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PLANNING AND DEVELOPMENT - Variances - Zoning regulations

Monday, April 01, 2019 @ 1:04 PM  


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Appeal by Canad from a Queen's Bench judgment affirming a decision by the City of Winnipeg Appeal Committee. The City's Board of Adjustment approved variances to a zoning bylaw in respect of property owned by the intervenor, Keter Holdings. The variance sought was to build a hotel to a height of 68 feet, with a front setback of 4.5 feet. The bylaw at issue restricted building height to 49 feet and required a front setback of 25 feet. The appellant owned and operated two hotels in the vicinity and opposed the variance. The Board approved the variance. The Appeal Committee upheld the decision on the basis there was no damaging effect or injurious nature, the setback corresponded to setbacks on nearby properties, and it met the criteria in s. 247 of the City Charter. The Court of Queen's Bench found that although the Appeal Committee's reasons were conclusory and did not examine the bylaw provisions, its decision was reviewable on a review of the record. Canad appealed.

HELD: Appeal dismissed. The decision of the Appeal Committee was consistent with a reasonable interpretation of the impugned bylaw provision as allowing the variance. Such interpretation was implicit based on a record that included a report specifically addressing the injurious effect of the bylaw on the property. The reviewing judge found the Appeal Committee's curt reasons deficient and carefully considered the record, concluding that it supported the decision that the criteria for granting the variance were met. The reviewing judge correctly applied the reasonableness standard of review and appropriately afforded deference to the Appeal Committee's decision. It was not established that the reviewing judge committed any error when applying the applicable legal principles to determine whether the decision of the Appeal Committee was reasonable.

Canad Corporation of Manitoba Ltd. v. Winnipeg (City), [2019] M.J. No. 61, Manitoba Court of Appeal, B.M. Hamilton, J.A. Pfuetzner and J. leMaistre JJ.A., March 11, 2019. Digest No. TLD-April12019002 AOP: Real Estate