11/09/2017 – Jurisdiction Ontario
Part 60 published on 01/12/2017
Owner did not have the right to apply for a minor variance in relation to the common elements
The owner of two units in the condominium made application for a minor variance to reduce the total required parking on the condominium property. The owner sought to use its units as a place of worship. The zoning by-law required a minimum of 92 parking spaces in order for the two units to be used as a place of worship. Since there were only 82 parking spaces on the condominium property, a variance was required (in relation to the parking requirement) in order to permit the proposed use.
The Committee of Adjustment had granted the requested variance.
The condominium corporation appealed on the ground that the unit owner did not have standing or authority to make such an Application for minor variance. On the appeal, the Ontario Municipal Board (OMB) agreed with the condominium corporation and dismissed the minor variance application. The OMB said:
Nowhere in the Declaration is the Temple, as a unit owner, conferred authorization to take steps to alter the use of or change the common elements of the condominium in any way. The Declaration does not alter the general authority set out in the Condominium Act, 1998 that the Condo Board has the authority over the common elements of the condominium.
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It is uncontested that the Temple has an unfettered right to seek a variance regarding the use of its two units. There is no issue with the Temple’s proposed use of the units as a place of worship in and of itself. The dispute here arises from the fact that the application relates specifically to the 82 common element parking spaces and the input of other unit owners has not yet been solicited through the proper process before the Condo Board.
If the evidence were that the Temple’s use of its units as proposed would not result in any parking use beyond the six common element parking spaces the Temple has use of, it may be possible to structure a variance in a manner that could avoid the legal standing issue raised here. In that hypothetical circumstance, it might be argued that a variance to permit the use of the Temple’s units as a place of worship would be appropriate despite the Temple only having exclusive use of six common element parking spaces. An application to that effect may not run afoul of the authorization of the Condo Board established by the Condominium Act, 1998 or the Declaration.
However, the evidence here is uncontested that the Temple will routinely require use of more than six parking spaces. Furthermore, and most importantly, the evidence was that periodically, the Temple will likely require use of most, if not all, common element parking spaces for important events.
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In considering the language of the Condominium Act, 1998 and the Declaration, in combination with the nature of the variance sought, I find that “the owner” who must necessarily apply for the variance under s. 45(1) of the Planning Act, is the Condo Board in these circumstances.