BC Supreme Court finds that Re-Zoning Approval with Variances did not “Create a New Zone”

Recently, the B.C. Supreme Court denied a judicial review petition challenging the approval of a re-zoning application for an apartment complex. In Penticton Society for Transparent Governance and Responsible Development v Penticton (City), 2022 BCSC 2111, the Petitioner alleged that the City had effectively created a new, non-existent land use zone when it approved an amending bylaw that up-zoned a property to an existing zone but where the City was required to subsequently grant variances for aspects of the property that did not meet the requirements of that pre-existing zone.

The City’s zoning bylaw provides for three multiple housing zones. Within each of the zones, RM2, RM3, and RM4, the permitted lot size, density, and floor area ratio (“FAR”) increases.

The subject property owners applied to construct an eight-unit, four-storey residential apartment building on a lot which was initially zoned as “small lot residential”. The City adopted an amending bylaw changing the property’s zone to “RM3”, medium density multiple housing. In the zoning bylaw, RM3 required as follows:

  • a minimum lot width of 25 metres,
  • a minimum lot area of 1400 m2,
  • a maximum density of 2.0 FAR, and
  • a maximum building height of 27 metres.

The subject lot did not meet all these requirements in that it was less than 19 metres wide, and the lot area was only 1,112.5 m2. That said, the proposed building would fit under the maximum floor area density and be shorter than the maximum height for buildings in the RM3 zone.

When the City adopted an amending bylaw to up-zone the property to RM3 it did not alter the requirements of RM3. Instead, the City granted variances for the property immediately after it was re-zoned to RM3.

The Petitioner argued that it was unreasonable and impermissible for the City to grant an up-zoning application for a property that was, at first instance, incapable of meeting the requirements of RM3. The Petitioner further argued that the City could not grant variances until after the up-zoning was granted, but because the property was incapable of being up-zoned at first instance, it never became open to the City to consider or grant such variances.

The Court disagreed and dismissed the petition. The Court found that section 479 of the Local Government Act (the “LGA”) grants the City authority to create zones and set restrictions within those zones. It also found that section 498 grants authority to issue variances from certain zone requirements, such as landscaping buffers and lot size elements, but not with respect to requirements for the use or density of the lot.

Here, the Court noted that the proposed building met the use, density and height requirements of the RM3 requirements. Therefore, the only issues which required variance were related to lot size elements and the footprint of the building on the lot. The Court found that the City was authorized to grant variances in respect of those latter issues immediately after the up-zoning occurred. Importantly, the Court seemed to minimize the issue raised by the Petitioner with respect to the necessary order of operations by noting that the re-zoning and the variance permits were approved “in tandem”, which the Court found was a reasonable approach and in line with the City’s statutory powers.

The Court also pointed out that section 479(c) of the LGA empowers the City to regulate the use and density of land and structures in a zone, the siting, size, and dimensions of buildings and structures in a zone, and the location of uses on the land in a zone. However, there is no reference in s. 479(c) to minimum or maximum sizes of parcels in a zone. The reference to minimum and maximum parcel size is only found in s. 479(d), which expressly relates to parcels created by subdivision.


The Court agreed with the City’s argument that the minimum lot width and area requirements in the RM3 zone are set out in a section headed “Subdivision and Development Regulations” and relate solely to subdivision rules created pursuant to s. 479(d) of the LGA. Accordingly, when the City was considering the re-zoning application unrelated to a subdivision application, the City was not restricted to minimum lot width or area requirements set out in the zoning bylaw. It was only bound not to alter use or density of the land, which it did not change in this instance by granting the eight-unit apartment building.

The main takeaway for local governments is that a re-zoning application can be granted for a property and a particular proposed development even where the subject property might not comply with lot size requirements in the targeted zone.