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HomeMy WebLinkAboutAdjustment - 2012-08-21 FNCOMMITTEE OF ADJUSTMENT FOR THE CITY OF KITCHENER MINUTES OF THE REGULAR MEETING HELD AUGUST 21, 2012 MEMBERS PRESENT: Messrs. A. Head, A. Lise and B. McColl OFFICIALS PRESENT: Ms. J. von Westerholt, Senior Planner, Mr. D. Seller, Traffic & Parking Analyst, Ms. J. Billett, Acting Secretary-Treasurer and Ms. A. Gingerich, Administrative Clerk. Mr. A. Head, Vice-Chair, called this meeting to order at 10:10 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, September 17, 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.: 1. FN 2012-005 Applicants: James and Hildy Nickel Property Location: 47 Gravel Ridge Trail Legal Description: Lot 30, Registered Plan 58M-451 Appearances: In Support: J. & H. Nickel Contra: J. & C. Da Silva Written Submissions: None The Committee was advised that the applicant is requesting permission to legalize an existing 2.133m (7’) high wooden privacy fence having a setback from an exterior side lot line of 0.610m (2.01’) rather than the required 4.5m (14.77’). The Committee considered the report of the Planning Division, dated August 7, 2012, advising that the subject property is municipally addressed as 47 Gravel Ridge Trail and is located on the south side of the street at the corner of Gravel Ridge Trail and Melinda Street. A single detached dwelling currently exists on the subject property. The property is zoned Residential Three (R-3) with Special Regulation Provision 403R in the City’s Zoning By-law 85-1. The property is designated as Low Rise Residential within the City’s Official Plan. The Applicant is seeking relief from Section 630.5.1.(c)(iii) of the Fence By-law to permit an existing 2.13 m. (7.00 ft.) high wooden privacy fence having a setback from an exterior side lot line of 0.61 m. (2.01 ft.) whereas a 4.5 m. (14.77 ft.) setback from an exterior lot line is required. In considering the requested variance to the Fence By-law, Planning staff offers the following comments: The intent of the minimum 4.52 metre exterior lot line setback for fences between 1.82 and 2.44 metres in height is to provide a buffer between the sidewalk and a fence. The buffer is necessary for pedestrian and vehicular safety as well as for neighbourhood aesthetics. The COMMITTEE OF ADJUSTMENT AUGUST 21, 2012 14 Submission No.: FN 2012-005 (Cont’d) 1. City is committed to providing pedestrian-friendly streets that contribute to a pleasant walking environment and attractive streetscape. The requested 0.61 metre exterior lot line setback provides a buffer between the fence and the sidewalk. No pedestrian or vehicular safety issues are present as the fence is located outside of the corner visibility triangle and the driveway visibility triangle. The fence features a board-on-board design, similar to board and batten siding, which contributes to good neighbourhood aesthetics. As a result, the variance maintains the intent of the Fence By-law. The Committee considered the report of the Region of Waterloo Transportation Planner, dated August 1, 2012, advising that they have no concerns with this application. Ms. C. Da Silva spoke in opposition to the application, advising that when driving up the street her home is not visible and when standing on the front lawn they cannot see down the street due to the height of the neighbour’s fence. Mr. and Mrs. Nickel advised that they are permitted to have a fence 8’ in height at the rear of their property but chose to construct that portion of the fence at a height of only 6’ so as not to block windows and light to the side of the neighbouring home. Ms. Da Silva commented that they would like to see the fence lowered and indicated that they had been made to sign an agreement with their builder not to construct a fence in excess of 5’ in height. Ms. J. von Westerholt advised that such an agreement is a private arrangement between the purchaser and what the builder would like to see in their subdivision, but is outside of the regulations of the City’s Fence By-law. Mr. A. Head advised the Da Silva’s that the rear portion of the subject fence complies with the Fence By-law and the applicant could legally have built this portion of fence higher than what they did. He advised that the Committee is to decide only on the variance created by the portion of the fence along the side yard of the subject property which abuts the street. Moved by Mr. A. Lise Seconded by Mr. B. McColl That the application of James and Hildy Nickel requesting permission to legalize an existing 2.133m (7’) high wooden privacy fence having a setback from an exterior side lot line of 0.610m (2.01’) rather than the required 4.57m (15’), on Lot 30, Registered Plan 58M-451, 47 BE APPROVED Gravel Ridge Trail, Kitchener, Ontario, , only as described in the application form and shown on the drawings submitted with the application. It is the opinion of this Committee that: 1. The variance approved in this application is 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. Carried Submission No.: 2. FN 2012-006 Applicants: Viriato and Catarina Pereira Property Location: 900 Magdalena Court Legal Description: Part Lot 109, Registered Plan 58M - 451 Appearances: In Support: V. & C. Pereira A. Lavoie Contra: None COMMITTEE OF ADJUSTMENT AUGUST 21, 2012 15 Submission No.: FN 2012-006 (Cont’d) 2. Written Submissions: None The Committee was advised that the applicant is requesting permission to legalize an existing 1.98m (6.6’) high wooden privacy fence having a setback from an exterior side lot line of 0.914m (3’) rather than the required 4.5m (14.77’). The Committee considered the report of the Planning Division, dated July 31, 2012, advising that the subject property contains a single detached dwelling and is located at the northwest corner of the Magdalena Court and Gravel Ridge Trail intersection. The applicants wish to build a 1.98 metre high wood fence within the exterior side yard to provide a private and safe play area for their children. The applicants are requesting relief from Section 630.5.1c(i) of the Fence By-Law to legalize an existing 1.98m (6.6’) high wooden privacy fence having a setback from an exterior side lot line of 0.914m (3’) rather than the required 4.5m (14.77’). In considering the requested variances to the Fence By-law, Planning staff offer the following comments. In the case of this property, the front yard is located between the building and the Magdalena Court lot line. The variance meets the intent of the Fence By-law. The intent of the 4.57 metre side yard setback is to ensure that the fence does not impact traffic and pedestrian visibility. The proposed fence will not encroach into the 7.5 metre Corner Visibility triangle (CVT). Also, with respect to the intent to preserve neighbourhood aesthetics, staff believes that Gravel Ridge Trail will continue to be pedestrian friendly since there will remain a separation of 0.914m metres between the sidewalk and the proposed fence. The area to be secluded by the proposed fence is used by the applicants as a private outdoor amenity area. To provide the needed privacy for this amenity area, staff is in support of the request to locate the proposed 1.98 metre fence 0.91 metres from the exterior side lot line. The Committee considered the report of the Region of Waterloo Transportation Planner, dated August 1, 2012, advising that they have no concerns with this application. Moved by Mr. B. McColl Seconded by Mr. A. Lise That the application of Viriato and Catarina Pereira requesting permission to legalize an existing 1.98m (6.6’) high wooden privacy fence having a setback from an exterior side lot line of 0.914m (3’) rather than the required 4.57m (15’), on Lot 109, Registered Plan 58M-451, 900 BE APPROVED Magdalena Court, Kitchener, Ontario, , only as shown in the drawings submitted with the application. It is the opinion of this Committee that: 1. 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. Carried Submission No.: 3. FN 2012-007 Applicants: Michael and Janet Etmanskie Property Location: 207 Coach Hill Drive Legal Description: Lot 138, Registered Plan 1329 Appearances: COMMITTEE OF ADJUSTMENT AUGUST 21, 2012 16 Submission No.: FN 2012-007 (Cont’d) 3. In Support: M. Etmanskie Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to legalize an existing 2.2m (7.22’) high wooden privacy fence having a setback from an exterior side lot line of 0m rather than the required 4.5m (14.77’). The Committee considered the report of the Planning Division, dated August 9, 2012, advising that the subject property is located at 207 Coach Hill Drive, on the northwest corner of Cherry Hill Drive and Coach Hill Drive. A single detached dwelling currently exists on site. The property is designated Low Rise Residential in the Official Plan, and is zoned Residential Three (R-3) in Zoning By-Law 85-1. The applicant is seeking permission to legalize an existing 2.2 (7.22’) metre high wooden privacy fence having a setback from an exterior side lot line of 0 metres rather than the minimum 4.57 metres (14.77’) setback required by Section 630.5.1 (c)(i) in the Fence By-Law. In considering the requested variance to the Fence By-law, Planning staff offers the following comments. The intent of the minimum 4.52 metre exterior lot line setback for fences between 1.82 and 2.44 metres in height is to provide an adequate buffer space between pedestrians and tall fences. The buffer is necessary for pedestrian and vehicular safety, and for neighbourhood aesthetics. The City is committed to providing pedestrian-friendly streets that contribute to a pleasant walking environment and attractive streetscape. The requested 0 metre setback does not provide any buffering between the pedestrian walkway and the fence, and thus does not maintain the intent of the By-law. For this reason, Planning staff cannot support the requested variance. Based on the foregoing, Planning staff recommends that the application be refused. Further to the above comments, Planning staff notes that the fence was erected on a retaining wall that encroaches onto city property. Furthermore, a portion of the existing fence is located within the driveway visibility triangle of 119 Cherry Hill Drive. Should the Committee consider approving the subject application, staff recommends that approval be subject to the following conditions: 1) That the Owner enters into an encroachment agreement with the City for the retaining wall located on City lands; and 2) That the Owner removes the portion of fence that is located within the 4.5m driveway visibility triangle of 119 Cherry Hill Drive. The Committee considered the report of the Region of Waterloo Transportation Planner, dated August 1, 2012, advising that they have no concerns with this application. Mr. M. Etmanskie submitted a petition in favour of the requested variance, signed by approximately 40 property owners in the surrounding area. Mr. Etmanskie advised that he was willing to remove the portion of fence located within the driveway visibility triangle but would like to leave the remaining fence as it now exists. He noted that he had replaced the original fence that had fallen into disrepair and the new fence is approximately 1’ higher due to the addition of lattice on top of the fence boards. Mr. B. McColl raised concerns that companies quoting on fencing do not appear to be advising potential clients of regulations under the Fence By-law. Mr. Etmanskie advised that all quotations he had received were too high in cost and he in fact had built the fence himself with a friend who works in the industry. Ms. J. von Westerholt advised that notices are sent annually to all fencing companies and they are regularly reminded of the Fence By-law COMMITTEE OF ADJUSTMENT AUGUST 21, 2012 17 Submission No.: FN 2012-007 (Cont’d) 3. regulations. She noted that the applicant has indicated he did not use a fencing company and proceeded to construct the fence himself. In this respect, she stated that the owner has obligation to do their due diligence in ensuring they comply with the Fence By-law. She added that 3 to 4 years ago, the City sent notices to all corner lots offering a substantial reduction in the fee to make application to legalize existing fences which the applicant could have taken advantage of at that time. She pointed out that this application is more complex than those previously considered this date in that, it involves an obstruction to the driveway visibility corner and the retaining wall on which the fence sits encroaches on City property. Mr. Lise acknowledged the opportunity given to legalize corner lot fencing, noting that as part of legalizing such fences the owners were required to install landscaping to mitigate the impact of the fencing. He questioned if the trees shown in the photograph are in front of the subject fence and thereby, in jeopardy if the fence is required to be set back further. Mr. Etmanskie confirmed that the trees are on his property just behind the fence. Mr. Lise raised concerns of potential conflict between the City’s Fence By-law and the Line Fences Act, and although the local by-law can over-ride the statute, he commented that the fence constructed marks the boundary between this property and that adjacent to it, suggesting that in this instance it may not make sense to move the fence back. Mr. A. Head questioned a means to resolve the issue of encroachment without an agreement if the property owner is amenable to allowing the City access as needed and to removing the portion of fence in the driveway visibility triangle. Ms. Von Westerholt advised that removal of the fence from the driveway visibility triangle would help in resolving some of the concerns but noted that staff has an obligation to point out the issue of encroachment to the Committee. She stated that if the owner is willing to set back the fence it would be at his cost and he would have to undertake the work, but this would then negate the need for an agreement with the City. She suggested that it would be a matter of the owner’s willingness to work with the City’s Legal staff on the encroachment issue; adding that primarily it is an issue of liability for the City. Mr. B. McColl commented that in this instance he would be prepared to support approval subject to the owner entering into an encroachment agreement with the City and removal of the portion of fence located in the daylight visibility triangle. Moved by Mr. B. McColl Seconded by Mr. A. Lise That the application of Michael and Janet Etmanskie requesting permission to legalize an existing 2.2m (7.22’) high wooden privacy fence having a setback from an exterior side lot line of 0m rather than the required 4.57m (15’), on Lot 138, Plan 1329, 207 Coach Hill Drive, Kitchener, Ontario, BE APPROVED, subject to the following conditions: 1. That the owner shall enter into an encroachment agreement, to the satisfaction of the City Solicitor, with the City of Kitchener for the retaining wall located on City lands. 2. That the owner shall remove the portion of fence that is located within the 4.5m driveway visibility triangle of 119 Cherry Hill Drive. It is the opinion of this Committee that: 1. The variance approved in this application is 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. Carried COMMITTEE OF ADJUSTMENT AUGUST 21, 2012 18 ADJOURNMENT On motion, the meeting adjourned at 10:30 a.m. Dated at the City of Kitchener this 21st day of August, 2012. Janet Billett Acting Secretary-Treasurer Committee of Adjustment