HomeMy WebLinkAboutAdjustment - 2012-03-20 FNCOMMITTEE OF ADJUSTMENT
FOR THE
CITY OF KITCHENER
MINUTES OF THE REGULAR MEETING HELD MARCH 20, 2012
MEMBERS PRESENT: Messrs. D. Cybalski, A. Lise and B. McColl
OFFICIALS PRESENT: Ms. J. von Westerholt, Senior Planner, Mr. J. Lewis, Traffic & Parking
Analyst, Ms. L. Thompson, Planning Technician, Mr. D. Seller, Traffic &
Parking Analyst, Ms. D. Saunderson, Secretary-Treasurer and Ms. H.
Dyson, Administrative Clerk
Mr. D. Cybalski, Chair, called this meeting to order at 10:06 a. m.
This meeting of the Committee of Adjustment sitting as a Standing Committee of City Council was
called to consider applications regarding variances to the City of Kitchener Fence By-law. The
Committee will not make a decision on these applications but rather will make a recommendation
which will be forwarded to the Committee of the Whole and Council for final decision.
The Chair explained that the Committee's decisions with respect to fence variances are
recommendations to City Council and not a final decision. He advised that the Committee's
recommendations will be forwarded to City Council on Monday, April 23, 2012, at 7:00 p. m., and the
applicants may register with the City Clerk to appear at the meeting if desired.
NEW BUSINESS
Submission No.: FN 2012-002
Applicant: Jose DaSilva
Property Location: 289 Overlea Drive
Legal Description: Lot 29, Plan 1324
Appearances:
In Support:
Contra:
Written Submissions:
J. & T. DaSilva
S. Donahue
R. & H. toucher
B. & M. Coca
T. Kavelman
E. Kassa
J. Charette
V. Connell
B. Pyne
The Committee was advised that the applicant is requesting legalization of an existing wooden
privacy fence having a height of 3.65m (11.98`) rather than the permitted 2.44m (8.0').
The Committee considered the report of the Planning Division, dated February 27, 2012,
advising that the subject property is located on the north east side of Overlea Drive, off of
Queen Street South. The property is developed with an existing single detached dwelling.
The applicant is requesting a minor variance to legalize an existing fence having a height of
3.65 metres in the rear yard, whereas the Fence By-law permits a maximum fence height of
2.44 metres in a rear yard.
The variance meets the intent of the Fence By-law and can be considered minor for the
following reasons. The intent of the 2.44 metre height restriction for fencing in a rear yard is to
ensure that a fence does not create and exceedingly high wall effect on the surrounding
properties or streetscape, while maintaining the ability for a property owner to have private rear
yard amenity space.
COMMITTEE OF ADJUSTMENT
Submission No. FN 2012-002 (Cont'd
MARCH 20, 2012
Planning staff was consulted by the property owner of 289 Overlea Drive seeking advice on
what measures could be taken to mitigate a privacy infringement issue in their rear yard. It
was explained to staff that the abutting property to the south of the subject property had
surveillance cameras mounted on their home that pointed into the rear yard of 289 Overlea
Drive, eliminating the property owner's privacy in their rear yard amenity space. To this end,
staff had recommended a three pane freestanding wooden garden structure having a height of
3.65 metres, strategically placed to impede the view of the cameras.
The property owner constructed the free standing structure, however increased the length of
the structure to approximately 16 metres along the side property line. The height of the
structure is 3.65 metres.
The City's Legal Department has made the interpretation that this free standing structure is a
fence, thereby necessitating the request for minor variance. It is noted that there have been
concerns raised by neighbouring property owners to the City's By-law Enforcement staff.
Staff recognizes that the existing fence exceeds the maximum height permitted by the Fence
By-law. However, due to the unique circumstance of this individual situation and to ensure the
property owner has privacy in their rear yard amenity space, staff is of the opinion that the
existing fence structure meets the intent of the Fence By-law and is appropriate for the
development and use of the land. The existing fence can also be considered minor as there is
minimal impact on the streetscape and the impact of the higher fence on the abutting property
owner is only for a length of approximately 7 metres.
The fence constructed by the property owner is aesthetically pleasing, being constructed of
wood with a decorative feature on the top. However, it is recommended that the variance be
only for the existing structure to ensure that no additional higher fence is constructed.
It should be noted that the Zoning By-law would permit construction of a detached accessory
building having a maximum height of 5.5 metres in the rear yard provided a 0.6 metre setback
is maintained from the property line. The fence structure as existing is 0.3 metres from the
property line with a height of 3.65 metres.
The Committee considered the report of the Region of Waterloo Transportation Planner, dated
February 29, 2012, advising that they have no concerns with this application.
The Committee considered written submissions from the neighbours in opposition to this
application.
The Committee considered written submissions from the neighbours in support of this
application.
Mr. J. DaSilva advised that he had initially built a 6' high wooden privacy fence between his
property and the neighbouring property at 293 Overlea Drive. He stated that, in his opinion,
the neighbour was upset with the installation of the initial privacy fence and installed
surveillance cameras in their rear yard which point directly into his backyard. Due to the
installation of the cameras he installed a second fence to block the view of the cameras to
maintain his privacy.
Mr. B. McColl questioned the applicant as to whether he has also installed surveillance
cameras on his property. Mr. DaSilva noted that he also purchased and installed 7 cameras
on his property. In response to questions, Ms. J. von Westerholt advised that there currently
is no regulation on the installation of surveillance cameras.
Mr. McColl expressed concerns with recommending approval of this variance noting, that he
would not want to set a precedence, recognizing that there could be additional property owners
in the neighbourhood that have also installed surveillance cameras. In addition he noted that
there is no mechanism to prevent the owner at 293 Overlea Drive from raising the height of the
cameras beyond the height of the fence.
The Chair stated that the ability to view into the rear yard of a neighbouring property using a
COMMITTEE OF ADJUSTMENT
Submission No. FN 2012-002 (Cont'd
MARCH 20, 2012
surveillance camera would be relatively similar to a second storey window on an adjacent
property in terms of privacy. He requested additional clarification from staff on the reasoning
for supporting this application.
Ms. von Westerholt advised that the property is an interior lot that can only be seen by the
adjacent property owners. She stated that staff were of the opinion this is an isolated situation
and recommended approval due to the circumstances.
Mr. A. Lise advised that he could support this application, noting that the Line Fences Act
states that a fence is meant to provide a separation between property owners and their
neighbours.
Mr. McColl advised that in his opinion, with modern technology constantly evolving, there is a
greater potential for applications similar to this one. He noted that there are three adjacent
property owners in opposition to this application and the height of the fence is 50% higher than
what the By-law permits. In considering all those factors he stated that he could not support
the recommendation of this application.
Ms. S. Donahue advised that she is a neighbouring property owner and although she is
sympathetic to the neighbours' concerns, she does not want the approval of this application to
set a precedent in their neighbourhood. In response to questions, she stated that she isn't
concerned with the use of surveillance cameras.
Ms. L. Thompson noted that staff are currently in the process of reviewing the Fence By-law,
and consideration has been given to increasing the height of interior fences by an additional 2'
or 3'.
Mr. Lise stated, as a point of clarification, that the Committee considers each application on its
own merit.
The Chair noted that the Committee is responsible for trying to find a compromise between the
property owner and the neighbours. In this situation, if staff are comfortable with their
recommendation, and knowing that the By-law is currently under review, he could support the
application as proposed.
Moved by Mr. A. Lise
Seconded by Mr. D. Cybalski
That the application of Jose DaSilva requesting legalization of an existing wooden privacy
fence having a height of 3.65m (11.98`) rather than the permitted 2.44m (8.0'), on Lot 29, Plan
1324, 289 Overlea Drive, Kitchener, Ontario, BE APPROVED.
It is the opinion of this Committee that:
The variances approved in this application are minor.
2. This application is desirable for the appropriate development of the property.
3. The general intent and purpose of Chapter 630 (Fences) of the City of Kitchener Municipal
Code is being maintained on the subject property.
ADJOURNMENT
On motion, the meeting adjourned at 10:14 a. m.
Dated at the City of Kitchener this 20th day of March, 2012.
Carried
Dianna Saunderson
Secretary-Treasurer
Committee of Adjustment
