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HomeMy WebLinkAboutAdjustment - 2012-10-16 COMMITTEE OF ADJUSTMENT FOR THE CITY OF KITCHENER MINUTES OF THE REGULAR MEETING HELD OCTOBER 16, 2012 MEMBERS PRESENT: Messrs. D. Cybalski, A. Head and Ms. J. Meader OFFICIALS PRESENT: Mr. B. Bateman, Senior Planner, Mr. D. Seller, Traffic & Parking Analyst, Mr. D. Pimentel, Traffic Technologist; Ms. J. Billett, Acting Secretary-Treasurer, Ms. H. Dyson, Administrative Clerk and Ms. A. Gingerich, Administrative Clerk. Mr. D. Cybalski, Chair, called this meeting to order at 10:01 a.m. MINUTES Moved by Ms. J. Meader Seconded by Mr. A. Head That the minutes of the regular meeting of the Committee of Adjustment held September 18, 2012, as mailed to the members, be accepted. Carried NEW BUSINESS MINOR VARIANCE Submission No.: 1. A 2012-066 Applicant: Nuno and Antonio Rosa Property Location: 59 Red Clover Crescent Legal Description: Part Block 3, Registered Plan 58M-300, designated as Part 173 on Reference Plan 58R-14269 Appearances: In Support: N. Rosa Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to legalize an existing accessory building having a rear yard setback of 0.32m (1.05‘) and a side yard setback of 0.22m (0.73‘) rather than the required 0.6m (1.97‘); and to legalize an existing deck with stairs having a side yard setback of 0.48m (1.58‘) rather than the required 0.75m (2.46‘) and a landing having a side yard setback of 0.48m (1.58’) rather than the required 1.2m (3.94’). The Committee considered the report of the Planning Division, dated October 1, 2012, advising that the subject property is zoned Residential Four (R-4) in the Zoning By-law with Special Provision 286R and designated Low Rise Residential in the City’s Official Plan. The site contains an existing single detached dwelling. The Owner is requesting relief from the following sections of the City of Kitchener by-law: 1. Request relief from Section 5.5.2 c) to permit a side yard setback of 0.22 metres for an existing shed whereas 0.6 metres is required. 2. Request relief from Section 5.5.2 d) to permit a rear yard setback of 0.32 metres for an existing shed whereas 0.6 metres is required. COMMITTEE OF ADJUSTMENT - 274 -OCTOBER 16, 2012 1. Submission No.: A 2012-066 (Cont’d) 3. Request relief from Section 5.6.1 b) to permit a minimum side yard setback of 0.48 metres for an existing staircase that extends from a deck whereas 0.75 metres is required. 4. Request relief from Section 38.2.1 to permit a minimum side yard setback of 0.48 metres for an existing staircase that extends from a deck whereas 1.2 metres is required. In considering the four tests for minor variances as outlined in Section 45(1) of the Planning Act, R.S.O., 1990 Chap. P. 13, as amended, Planning staff offers the following comments regarding the requested minor variance: The requested variances for the existing shed and staircase meet the intent of the Official Plan. The Low Rise Residential designation recognizes the existing scale of residential development and allows for modest alterations. The proposed variances will permit a reduced minimum rear yard and side yard for the existing shed and staircase. The minor changes will maintain the low density character of the property and surrounding neighbourhood. The purpose of a 0.6 metre side and rear yard setback for an accessory structure is to provide space to perform maintenance work to the subject structure. The existing shed was constructed with a brick exterior finish which is considered a very low maintenance material. The proposed rear yard setback for an accessory structure of 0.32 metres and proposed side yard setback of 0.22 metres provides space for maintenance work to the existing shed should it be required in the future. The purpose of a side yard setback of 0.75 m for a staircase is to allow adequate space for the Owner to provide maintenance to the subject structure and to permit access to and from the rear yard. The proposed side yard setback for a staircase of 0.48 metres will still allow the Owner to perform maintenance work to the existing staircase. A 0.48 metre side yard setback is adequate space to allow a person to pass to access the rear yard. On the westerly side of the property there is a 1.2 metre side yard setback that provides adequate access for both a person and lawn maintenance machinery to access the rear yard. The variances are considered minor. Staff is of the opinion that the requested variances will provide adequate maintenance and access space and will not negatively affect the adjacent properties or surrounding neighbourhood. The proposed variances are appropriate for the development and use of the land as the proposed residential use is a permitted use in the Zoning By-law. The proposed variances will allow the owner to legalize an existing non-complying accessory structure and staircase that will better suit the owner’s personal needs. The scale, massing and height of the accessory structure (shed), and staircase are appropriate and consistent with the existing single detached dwelling. The proposed variance will not impact the existing character of the subject property or surrounding neighbourhood. The Committee considered the report of the Region of Waterloo Transportation Planner, dated October 5, 2012, advising that they have no concerns with this application. Mr. D. Cybalski questioned if a building permit had been obtained for the addition built beneath the upper decking. Mr. Rosa advised it had not. Mr. Cybalski suggested that the condition to nd obtain a building permit for the shed also include provision to obtain a 2 building permit for the lower level addition and Mr. Rosa agreed. Moved by Mr. A. Head Seconded by Ms. J. Meader That the application of Nuno and Antonio Rosa requesting permission to legalize an existing accessory building having a rear yard setback of 0.32m (1.05‘) and a side yard setback of 0.22m (0.73‘) rather than the required 0.6m (1.97‘); and to legalize an existing deck with stairs having a side yard setback of 0.48m (1.58‘) rather than the required 0.75m (2.46‘) and a landing having a side yard setback of 0.48m (1.58’) rather than the required 1.2m (3.94’), on Part Block 3, Registered Plan 58M-300, designated as Part 173 on Reference Plan 58R-14269, 59 Red Clover BE APPROVED Crescent, , subject to the following condition: COMMITTEE OF ADJUSTMENT - 275 -OCTOBER 16, 2012 1. Submission No.: A 2012-066 (Cont’d) 1. That the Owner shall obtain a building permit(s) from the City’s Building Division for the existing shed and the existing addition beneath the upper deck. It is the opinion of this Committee that: 1. The variances requested in this application are minor. 2. This application is desirable for the appropriate development of the property. 3. The general intent and purpose of the City of Kitchener Zoning By-Law and Official Plan is being maintained on the subject property. Carried Submission No.: 2. A 2012-067 Applicant: Zhang Investments Inc. Property Location: 286 Duke Street West Legal Description: Part Lot 221, Plan 376, designated as Part 1 on Reference Plan 58R-9291 Appearances: In Support: C. Zhang K. Barisdale Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to provide a maximum of 10 off-street parking spaces for a Dental Office, with 6 spaces to be on site and 4 to be located on another lot (83 Victoria Street North) secured by a registered off-site parking agreement, rather than the required 16 parking spaces. The Committee considered the report of the Planning Division, dated October 9, 2012, advising that the subject property is municipally addressed as 286 Duke Street West and is located at the intersection of Duke Street West and Breithaupt Street. The property is currently developed with Personal Services a building that was most recently used for a business. The property is zoned as General Industrial (M-2) with Special Use Provision 376U and Special Personal Service Regulation Provision 478R. Regulation 376U permits a use within the building existing in accordance with Section 20.3 and Special Regulation Provision 478R. Regulation 478R permits a minimum lot width of 12.183 metres and a minimum front yard, side yard and side yard abutting a street of 0.0 metres for the existing building. The property is designated as General Industrial in the City’s Official Plan. The Owner is proposing to utilize the existing building for a Health Office (Dental Office) and requires 16 of-street parking spaces. The total floor area used for the dental office is 236 square metres. The parking requirement for a Heath Office and a Health Clinic in the zoning by-law is one space per 15 square metres of floor area. The Owner has filed a minor variance application requesting relief from Section 6 of the Zoning By-law to permit ten off-street parking spaces whereas sixteen parking spaces are required. The Applicant is proposing to provide six off-street parking spaces on-site and to provide four off- street parking spaces at 83 Victoria Street North, which would be secured through an off-site parking agreement in accordance with Section 6 of the Zoning By-law. The Owner is proposing to complete the site improvements, including the development of a formal parking lot, as outlined on Site Plan SP08/062/D/KA and illustrated below. The Owner is being expropriated from their current location by the Region of Waterloo in part with the Weber Street road widening project and has bought the subject property to relocate their dental office. COMMITTEE OF ADJUSTMENT - 276 -OCTOBER 16, 2012 2.Submission No.: A 2012-067 (Cont’d) There are seven legal parking spaces at 83 Victoria Street North as shown on Development Proposal No.89/12/MT (Site Plan dated February 9, 1989).The Owner has purchased both properties to accommodate his proposal. In considering the four tests for minor variances as outlined in Section 45(1) of the Planning Act, R.S.O., 1990 Chap. P. 13, as amended, Planning staff offer the following comments: The requested off-street parking variance meets the intent of the Official Plan. The property has evolved over time from an industrial use to other employment uses, which is permitted by the Official Plan. Free standing offices are permitted in mixed industrial-residential areas. The requested off-street parking variance and proposed off-site parking agreement meet the intent of the Zoning By-law. The applicant has prepared an on-street parking plan (Appendix A) for the area surrounding the subject property. There are 33 on-street parking spaces which can be utilized for short term client and patient parking. The Owner has advised that employee parking will be provided at 83 Victoria Street North and the six on-site parking spaces will be made available for clients at all times. Off-street parking must be provided on-site or within 400 metres of the subject property. The proposed parking spaces at 83 Victoria Street North are within 400 metres and will be utilized for employee parking. In review of this application, Transportation Planning staff undertook a Parking Utilization Study. At the time of the study, all seven parking spaces at 83 Victoria Street North were being utilized by the current tenant. As such, Transportation Services staff cannot support the variance. At the time of the study, the Owner had just recently taken possession of the property and not yet had an opportunity to renegotiate parking arrangements with the current tenant. If the requested variance is approved, the Owner has advised that the current tenant will be obligated to ensure that the four parking spaces (proposed to be utilized for the off-site parking agreement) will be available at all times. Further, the off-site parking agreement is registered on title and is irrevocable unless alternative arrangements are made, to the satisfaction of the City. The subject property is located in close proximity to the City’s downtown and is within walking distance to several bus routes as well as the future multi-nodal transit hub. The requested off-street parking variance is minor. Although the current parking arrangement at 83 Victoria Street North is not operating in a manner satisfactory to Transportation Services, the Owner will be able to control the parking situation more effectively through future negotiations with the current tenant. The off-site parking agreement provides legal parking off-site which will be registered on title of both properties. City By-law Enforcement staff monitor and enforce on-street parking to ensure that it is used for short-term use only. The requested off-street parking variance is appropriate for the neighbourhood. The adjacent residential neighbourhood is stable and is further complimented by reinvestment into former industrial buildings for appropriate employment uses that are compatible with the residential community. The Committee considered the report of the Region of Waterloo Transportation Planner, dated October 5, 2012, advising that they have no concerns with this application. Ms. J. Meader referred to comments of Transportation Services staff regarding a parking study at 83 Victoria Street North in which they indicate they cannot support the variance unless an alternative arrangement can be reached as the parking spaces are fully utilized. She requested clarification as to the current arrangements. Ms. C. Barisdale advised that the applicant is in the process of acquiring the property which is to close at the end of October and leasing arrangements would follow then. Dr. Zhang advised that a courier service currently occupies the site and once he has completed purchase of the property the courier service will be vacating the premises. He advised that appropriate arrangements will be made with any new tenant to ensure that 4 parking spaces on the site remain exclusively available for the Duke Street property. Mr. Cybalski questioned if the off-site parking for Duke Street is intended for staff parking and Dr. Zhang concurred. COMMITTEE OF ADJUSTMENT - 277 -OCTOBER 16, 2012 2.Submission No.: A 2012-067 (Cont’d) Ms. Meader raised concerns with not knowing what the contractual arrangements with the tenant are to be. Ms. Barisdale stated that Dr. Zhang will not legally be in position to make contractual arrangements until he owns the property. Mr. Cybalski requested clarification as to the number of spaces that are surplus at 83 Victoria Street North. Ms. Barisdale advised that 3 parking spaces are required for the existing courier services and a total of 7 spaces are on-site which are all being used at this time. Mr. Cybalski questioned if that means there are 4 excess spaces available to Dr. Zhang once he owns the property for whatever use is permitted on the site and Ms. Barisdale concurred. She also noted that there are 33 on-street parking spaces on Breithaupt Street, and should there be a problem at the Duke Street property there is more than ample on-street parking available. Mr. A. Head expressed the view that he would be more comfortable if the applicant had a firm offer and could make leasing arrangements for himself. Ms. Barisdale pointed out that the applicant will not require the property if not successful in obtaining the parking variance. Ms. Meader questioned the feasibility of obtaining details of the contractual arrangements for the tenant. Dr. Zhang reiterated that once he owns the property he will not allow a tenant that requires more than the 3 parking spaces and because of the need to provide the remaining 4 parking spaces for the Duke Street property he will not allow the current tenant to remain. He stated that the offer to purchase is firm with no conditions placed on it and the existing tenant will have to vacate the premise as of October 30, 2012. Mr. B. Bateman advised that any business leasing the property will have to apply for an occupancy permit at which time the City would have opportunity to verify the parking arrangements and if there is an issue it could be dealt with at that time. Moved by Mr. A. Head Seconded by Mr. D. Cybalski That the application of Zhang Investments Inc. requesting permission to provide a maximum of 10 off-street parking spaces for a Dental Office, with 6 spaces to be on site and 4 to be located on another lot (83 Victoria Street North) secured by a registered off-site parking agreement, rather than the required 16 parking spaces, on Part Lot 221, Plan 376, designated as Part 1 on BE APPROVED Reference Plan 58R-9291, 286 Duke Street West, Kitchener, Ontario, , subject to the following condition: 1. That the Owner shall enter into an off-site parking agreement by May 2013 in accordance with Section 6 of the Zoning By-law, with the Owner of 83 Victoria Street North, to be registered on title of both properties, for the life of the development, to provide four off- street parking spaces at 83 Victoria Street North for the exclusive use of 286 Duke Street West, to the satisfaction of the City’s Director of Planning and the City’s Solicitor. It is the opinion of this Committee that: 1. The variance requested in this application is minor. 2. This application is desirable for the appropriate development of the property. 3. The general intent and purpose of the City of Kitchener Zoning By-Law and Official Plan is being maintained on the subject property. Carried Submission No.: 3. A 2012-068 Applicant: Earth Park Developments Inc. Property Location: 900 Fairway Road North Legal Description: Part 11, Plan 591, being Part of Part 2 on Reference Plan 58R-14267, andBlock 56, Plan 58M-398 Appearances: In Support: H. Sewell R. Dal Bello COMMITTEE OF ADJUSTMENT - 278 -OCTOBER 16, 2012 3.Submission No.: 2012-068 (Cont’d) Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to have a parking space located within a building, with direct access from a driveway, having a maximum length of 5.24m (17.2‘) rather than the required 5.49m (18.02‘). The Committee considered the report of the Planning Division, dated September 24, 2012, advising that the subject property is located at 900 Fairway Road North. The subject property is developed with a block of townhouse units within a subdivision development known as Chicopee Trail by Earth Park Developments, in the Grand River South Community. The subject property is designated Low Rise Residential in the Official Plan and zoned as Residential Six Zone (R-6) in Zoning By-law 85-1. The applicant is requesting a minor variance to legalize one of the four garage’s dimensions currently in contravention of Zoning By-Law 85-1 Regulation 6.2e) (Figure 2). More specifically, relief is being sought to allow a reduction in the garage’s length to 5.24 (17.2 feet) metres whereas the minimum length, according to By-Law 85-1, is 5.49 metres (18 feet). According to the applicant, the reason for this reduction in the garage’s (off street parking space) length is due to the grading of the site. Steps were needed to provide access from the garage into the townhouse unit. In considering the four tests of minor variances as outlined in Section 45(1) of the Planning Act, R.S.O., 1990 Chap. P. 13, as amended, Planning staff offers the following comments. The variance meets the intent of the Official Plan. The intent of the Low Rise Residential designation is to recognize the existing scale of residential development and integrate a variety of low density residential uses within the area. The proposed variance to permit a reduced garage (off street parking space) length will not preclude the property from being utilized for residential uses. Therefore, the proposed variance meets the intent of the Official Plan. The purpose of requiring a minimum garage length of 5.49 metres is to meet off street parking requirement, allow adequate space for a vehicle to park in, vehicle doors to open and for users to safely enter/exit the vehicle and the garage. In the opinion of staff, depending on the size of the vehicle used, the proposed reduction in the garage’s length should not drastically affect functionality of the space. Therefore, staff feels that the variance meets the intent of the Zoning By-law. The difference between the minimum garage length and the proposed garage length is 0.25 metres (approximately 9.84 inches). Staff considers such a request to be minor in nature. The development and use of the land is hindered by grading of the site. In order to provide access from the garage into the dwelling unit, the steps had to be relocated. Since the problem of the grading is solved through the steps and entry relocation, it will not create any problems on the rest of the townhouse development and uses of the surrounding land. The Committee considered the report of the Region of Waterloo Transportation Planner, dated October 5, 2012, advising that they have no concerns with this application. The Committee considered the report from the Grand River Conservation Authority (GRCA) Resource Planner, dated October 9, 2012, advising that they have no objections to this application; however, information indicates that the subject land (Block 1) is within the allowance adjacent to the Provincially Significant Idlewood Swamp located on neighbouring lands. Consequently, Block 1 is regulated by the GRCA under Ontario Regulation 150/06 (Development, Interference with Wetlands and Alterations to Shorelines and Watercourses Regulation). Moved by Ms. J. Meader Seconded by Mr. A. Head That the application of Earth Park Developments Inc. requesting permission to have a parking space located within a building, with direct access from a driveway, having a maximum length of 5.24m (17.2‘) rather than the required 5.49m (18.02‘),on Part 11, Plan 591, being Part of Part 2 on Reference Plan 58R-14267, and Block 56, Plan 58M-398, 900 Fairway Road North / Landgren BE APPROVED Court, Kitchener, Ontario, , subject to the following condition: COMMITTEE OF ADJUSTMENT - 279 -OCTOBER 16, 2012 3. Submission No.: A 2012-068 (Cont’d) 1. That the owner shall enter into an agreement with the City of Kitchener, to be prepared by the City Solicitor and registered on title of the subject lands, to provide that the following warning clause shall be included in agreements of purchase and sale: “Be advised that the size of the parking space within the garage is undersized according to the City of Kitchener’s standards and may not be able to accommodate larger vehicles.” It is the opinion of this Committee that: 1. The variance requested in this application is minor. 2. This application is desirable for the appropriate development of the property. 3. The general intent and purpose of the City of Kitchener Zoning By-Law and Official Plan is being maintained on the subject property. Carried CONSENT Submission No.: 1. B 2012-030 Applicant: Camrose Property Management Property Location: 50 Bryan Court Legal Description: Block 1, Registered Plan 58M-304 and Part Block 1, Registered Plan 58M-303, being Part 4 on Reference Plan 58R-14342 Appearances: In Support: D. Aston C. Robson J. Dodd Contra: L. Ferrigno T. Kennedy T. Horlings C. Mulhern Written Submissions: J. S. Moon J. Romahn The Committee was advised that the applicant is requesting permission to give easements to the benefit of an abutting property for purposes of access and the right to use: visitor parking spaces (Area 1); all requisite services, emergency ingress / egress, usual / routine traffic and construction / sales traffic (Area 2); common amenity areas (Area 3); and emergency ingress / egress and construction / sales traffic (Area 4). The Committee considered the report of the Planning Division, dated October 4, 2012, advising that the subject property is located at 50 Bryan Court in the Grand River South Community. This property is mostly developed with condominium townhouses with one remaining phase left to be developed with an apartment building. There is an existing site plan application for this phase. The Official Plan designation for the subject lands is Medium Rise Residential with corresponding R-7 zoning in By-law 85-1. In order to facilitate with the development of this undeveloped phase, the applicant is requesting the creation of easements for access and use of servicing and visitor parking etc. over the existing common element roadways and parking areas of registered condominium plan WSCP 1. 449, in favour of Lackner Development Corporation. All other technical issues associated with the development will be dealt with at the site plan stage. With respect to the criteria for the subdivision of land listed in Section 51 (24) of the Planning Act, R.S.O. 1990, c.P.13, staff is satisfied that the creation of these easements are considered good COMMITTEE OF ADJUSTMENT - 280 -OCTOBER 16, 2012 1. Submission No.: B 2012-030 (Cont’d) planning that satisfies the policies of both the City’s Official Plan and the Provincial Policy Statement. The proposed easements are both necessary and appropriate for the development of the subject parcel of land. The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated October 2, 2012, advising that they have no objection to this application. The Committee considered the report from the Grand River Conservation Authority Resource Planner, dated October 10, 2012, advising that while they have no objections to this application, information indicates that a portion of the lands (Area 3) may contain wetlands. Consequently, a Ontario Regulation 150/06 (Development, portion of Area 3 is regulated by the GRCA under Interference with Wetlands and Alterations to Shorelines and Watercourses Regulation) . A petition was submitted by Mr. J. Moon on behalf of neighbouring property owners objecting to the consent application, raising concerns that increased traffic and access as a result of the easements will jeopardize the safety of the residents and unnecessarily increase unforeseen potential risks. A written request for information was received from Mr. J. Romahn, neighbouring property owner, in which he expressed concerns regarding the potential for surface parking to face his home that may result in headlights shining into his windows. Mr. D. Aston, MHBC, agent, attended in support of the application. Mr. Aston advised that the creation of the proposed easements is required to solidify the common elements of an existing condominium and a vacant parcel to be developed. He noted that the existing condominium plan was approved with easements for access and servicing; however, an error has occurred in bringing the easements forward with the various phasing of development to which Mr. Robson would address. In ground services are now in place and site plan approval has been received for a 50 unit apartment building on the vacant lands. There are no variances or change in land use proposed; however, it is his understanding Mr. Robson’s clients are reviewing options for the building design and may make further application to provide for a larger number of units. He pointed out that any changes proposed would have to go back through a further site plan approval at which time any issues of a site nature would then be dealt with. The block has been intended for development since 1988, when the first subdivision plan approval was received. He added that site plan approval was received in 2006 and the purpose of this application is solely to put in place the rights of access and servicing. Mr. D. Cybalski requested clarification of site plan approval, identification of areas pertaining to the easements on the site plan and registration of a development agreement since 2006. Mr. Aston submitted a copy of correspondence from the City, dated November 27, 2006 confirming site plan approval for the development; and a copy of the registered Section 41 Development Agreement (WR259829 - 2006-11-17). Mr. Aston advised that from a planning perspective City staff have indicated no concerns with the easements and he had no concerns with the recommendation of staff to approve the application subject to the conditions listed. Mr. C. Robson, Solicitor, representing Reid Heritage Homes, stated that the easements should have been included at the time of registration of the condominium but at some point during the phasing of this development the easements were erroneously left out of the associated documentation. He pointed out that the easements are clearly identified on the site plan and had they not inadvertently been dropped from documentation as the various phases were completed they would have already been in place; and if not approved, the vacant lot will become land locked. Mr. Lou Ferrigno, resident at 30 Bryan Court, raised concerns that he and others in his Condominium Corporation had been left out of the planning for this development and had no knowledge of existing easements or changes in direction on the building site. He stated that the use for Area 4 is vague and as he is located adjacent to this area he had concerns with impact to his foundation from heavy equipment being brought to and from the site. He questioned if an engineering survey had been done on the road as it was his opinion the road cannot support large trucks carrying heavy equipment and it will cause damage to his property, as well as adversely impact his privacy. He further questioned how emergency vehicles will access the road if construction equipment is parked there. COMMITTEE OF ADJUSTMENT - 281 -OCTOBER 16, 2012 1. Submission No.: B 2012-030 (Cont’d) Mr. D. Aston advised that Area 4 has an existing easement through 30 Bryan Court for emergency access to 50 Bryan Court and it is purely intended to be used for emergency access. He stated that Area 4 was reviewed as a full access use but found not suitable as there is no access to Lackner Boulevard. Mr. Ferrigno pointed out that the wording for Area 4 indicates a request to use it for construction / sales traffic and questioned if this is intended to be a temporary use. Mr. C. Robson advised that Area 4 can only be used for construction / sales traffic if permitted by the Condominium Corporation. Mr. Ferrigno stated that if access is approved for construction purposes he would want a fence erected to act as a separation from his condominium and the construction site. Mr. Aston reiterated that the only way it could be used for construction purposes is if the Condominium Corporation agrees which would require involvement of all members of the Corporation. Ms. J. Meader questioned that if permission is not received from the Condominium Corporation how access for construction purposes would be addressed. Mr. Aston advised that Bryan Court is to be used in any event. Mr. Thomas Horlings, resident of 50 Bryan Court, expressed concerns regarding an increase in traffic resulting from the proposed development. Mr. Cybalski noted that development of the vacant lands is inevitable and public information has been available since 2006. He stated that at this time, it is encumbent on the parties to try to co-operate and accomplish development with as minimal disruption as possible. Mr. Terry Kennedy, resident of 30 Bryan Court, expressed concerns with access to Lackner Boulevard, expressing the view that heavy trucks loaded with equipment will not be able to traverse into the site from Lackner and will damage the road, curbs and sidewalks if attempted. He also raised concerns with use of Bryan Court and how heavy trucks will get up the road if cars are parked on-street, suggesting they will have to stop traffic continuously to do so until the development is finished. Mr. Cybalski pointed out that the developer has the right to use Bryan Court in any event and the Committee has no ability to address that concern. Mr. Cybalski questioned the request to include “construction / sales traffic” in wording of the easement for Area 4 if restrictive covenants are in place to provide that it be used only for emergency access. Mr. Aston confirmed that currently it is to be used solely for emergency access but in the event they are successful in obtaining permission from the Condominium Corporation they wanted to have it included in the Committee’s decision. Mr. C. Robson added that before it could be used for construction purposes the Condominium Corporation would have to agree and notwithstanding the Committee of Adjustment approval they would still have to go back to the Condominium Corporation to have permission granted under by-law passed by the Condominium Corporation. Mr. Cybalski questioned that as it is contemplated to be included if it would be feasible to apply a condition of approval to provide that the applicant obtain permission under by-law of the Condominium Corporation. Mr. B. Bateman advised that this would be a separate process which the City cannot govern, noting that it would be an agreement between two private parties. Mr. Cybalski noted that condition 2 requires a joint maintenance agreement, suggesting that the matter may be addressed through this condition in any event, if approval of the Condominium Corporation is not granted. Mr. T. Horlings raised concerns of the potential for an additional site plan application to increase the number of units for the apartment building. Mr. Aston advised that if further site changes are proposed it would require additional site plan approvals which would be subject to City review and would have to meet zoning regulations. He reiterated that Mr. Robson’s clients are currently reviewing design building options and he anticipates a further site plan application. Mr. Horlings stated that if a larger number of units is approved it will adversely affect on-street parking which is lready a concern. Mr. Cybalski advised that this would be a matter that would have to be addressed through the site plan process. Mr. C. Robson added that it was his understanding that the number of units his client may be looking to increase would be only from 50 to 56 units. Ms. J. Meader pointed out that if any change in the site plan is proposed that go beyond existing zoning regulations on the site, it would be subject to a public planning process and the Committee cannot restrict future applications. She added that the site plan process is not a public process and therefore, area residents would not be involved to the same extent. Mr. T. Horlings questioned if parking in Area 1 would still be available to residents during construction. Mr. Cybalski advised that an easement provides that it cannot be blocked. Mr. COMMITTEE OF ADJUSTMENT - 282 -OCTOBER 16, 2012 1. Submission No.: B 2012-030 (Cont’d) Aston confirmed that Area 1 would remain available with a number of parking spaces existing that will remain into the future. Mr. Aston added that the proposed development will include surface area parking to service the apartment building and will have adequate visitor parking on-site. He stated that the details of design are still being worked through and in discussions with the Condominium Corporation he was confident that over time the issues raised regarding parking and design related issues will be addressed as part of the design phase. Mr. D. Cybalski stated that the Committee’s role is to consider whether the easements requested are good planning or not and pointed out that residents of the condominium will be able to express their concerns to their Corporation at such time as any vote is taken on a request for permission to use Area 4 for construction purposes. He noted that the application before the Committee is a matter of housekeeping in that the easements originally existed but were overlooked in bringing them forward with the different phases of development on this block; and they do meet the tests of good planning. Ms. Meader referred to comments of Engineering staff regarding revision to the easement plans to provide for visitor parking on the east and west sides of the site; as well as, an increase in easement for servicing of Unit 26. Mr. Aston advised that the visitor parking referred to is not required as there will be sufficient visitor parking on the future site; and the other relates to the corner of the unit identified which requires confirmation of where the servicing pipe is located. He stated that this will be worked through under final registration of the easements and via Condition 1 of approval. Moved by Mr. A. Head Seconded by Ms. J. Meader That the application of Camrose Property Management requesting permission to give easements over lands described as WSCP No. 449 in favour of Lackner Corporation, as shown on the Easement Plan prepared by MHBC dated September 13, 2012, for purposes of: access to and the right to use sufficient visitor parking spaces (Area 1 as shown on the Easement Plan); access to and the right to use all requisite services; and access through for persons and vehicles as required to access and use the appurtenant emergency access easement; and for routine and usual traffic, as well as for construction and sales traffic, to and from Bryan Court (Area 2 as shown on the Easement Plan); access to and the right to use common amenity areas (Area 3 as shown on the Easement Plan); and, access to and the right to use for emergency ingress / egress and construction / sales traffic (Area 4 as shown on the Easement Plan); on Block 1, Registered Plan 58M-304 and Part Block 1, Registered Plan 58M-303, being Part 4 BE GRANTED on Reference Plan 58R-14342, 50 Bryan Court, Kitchener, Ontario, , subject to the following conditions: 1. That the owner shall provide the Secretary-Treasurer with a digital file of the deposited reference plan(s) prepared by an Ontario Land Surveyor in .dwg (AutoCad) or .dgn (Microstation) format, as well as 2 full size paper copies of the plan(s). The digital file must be submitted according to the City of Kitchener’s Digital Design Standards to the satisfaction of the City’s Mapping Technologist. 2. That the owners of the proposed dominant lands and servient lands shall enter into a joint maintenance agreement, to be approved by the City Solicitor, to ensure that the said easements are maintained in perpetuity, which agreement shall be registered on title immediately following the Transfer Easement. 3. That a satisfactory Solicitor’s Undertaking to register the approved Transfer Easement and immediately thereafter, the approved joint maintenance agreement, shall be provided to the City Solicitor. 4. That the City Solicitor shall be provided with copies of the registered Transfer Easement and joint maintenance agreement immediately following registration. COMMITTEE OF ADJUSTMENT - 283 -OCTOBER 16, 2012 1. Submission No.: B 2012-030 (Cont’d) It is the opinion of this Committee that: 1. A plan of subdivision is not necessary for the proper and orderly development of the municipality. 2. The requirements of the Zoning By-law are being maintained on the severed lands and the retained lands. 3. The use of the land in the application conforms to the City of Kitchener Municipal Plan and the Regional Official Policies Plan. Pursuant to Subsection 41 of Section 53 of the Planning Act, the applicant shall fulfil the above- noted conditions within one year of the date of giving notice of this decision. Pursuant to Subsection 43 of Section 53 of the Planning Act, the decision of this Committee shall lapse two years from the date of approval, being October 16, 2014. Carried Submission No.: 2. B 2012-031 Applicant: Canadian National Railway Company Property Location: CN Rail Property on the Corner of Breithaupt Street and Ahrens Street West Legal Description: Part Lots 223, 224, 225 and 226, Registered Plan 376 Appearances: In Support: R. Blunt M. Elliott Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to sever an irregular parcel of land having a width on Breithaupt Street of 7.2m (23.62‘), a northerly depth of 74.9m 2 (245.74‘) and an area of 546m (5,877.29 sq.ft.), to be conveyed as a lot addition to 108 Ahrens Street West, subject to an irregular shaped easement for underground fibre optic cable over the severed lands in favour of the retained lands, measuring 0.268m (0.88’) fronting Breithaupt Street and 2.4m (7.88’) at the rear public lane, by a depth of 74.9m (245.74’). The retained land will be an irregular shape having a width on Breithaupt Street of 15.3m (50.19‘), a southerly depth of 2 74.9m (245.74’) and an area of 1,178 m (12,680.31 sq.ft). The Committee considered the report of the Planning Division, dated October 4, 2012, advising that the subject lands are located at the southeast corner of Ahrens Street West and Breithaupt Street. The lands are owned by the Canadian National Railway and contain railway tracks for use as a rail corridor. While these lands abut an active rail corridor, they do not carry any rail traffic themselves and are considered surplus the railway company’s needs. In addition, the lands contain a portion of an industrial building located primarily on the abutting property, addressed as 108 Ahrens Street. Staff understands that the portion of the building that is encroaching is legalized under an agreement. It should be noted that on April 17, 2012, the Committee of Adjustment approved Consent Application B2012-011 to sever a 487 square metre parcel from the CN Rail lands and convey it as a lot addition to the adjacent property addressed as 108 Ahrens Street West. This consent application was never finalized since the approval conditions were never fulfilled. Since the time of the original approval, CN Railway has considered the consent further and has decided to request conveyance of slightly more land to the abutting parcel as well as to request that an easement be retained over a portion of the lands for maintenance of telecommunications facilities. The size and shape of the proposed severed parcel is very similar to the one proposed through the original consent application. COMMITTEE OF ADJUSTMENT - 284 -OCTOBER 16, 2012 2.Submission No.: B 2012-031 (Cont’d) In this regard, the owner is requesting consent to: • sever a parcel of land with approximately 7.2 metres of frontage on Breithaupt Street, a length of approximately 75.0 metres, and an area of approximately 546 square metres, and convey it as a lot addition to the property immediately to the south, addressed as 108 Ahrens St; and further, • create an easement in favour of the retained lands over a portion of the severed lands with approximately 0.3 metres of frontage on Breithaupt Street, a length of approximately 75.0 metres, and an area of approximately 77 square metres. With respect to the criteria for the subdivision of land listed in Section 51 (24) of the Planning Act, R.S.O. 1990, c.P.13, the uses of both the severed and retained parcels are in conformity with the City’s Official Plan, the dimensions and shapes of the proposed lots are appropriate and suitable for the existing uses and any proposed use of the lands, and the lands front on an established public street. The severed parcel which currently contains a portion of the existing building on 108 Ahrens Street will be added as a lot addition to 108 Ahrens Street, removing the need for the existing encroachment agreement. The resultant parcel is currently serviced with independent and adequate service connections to municipal services. The size of the retained parcel is appropriate for the railway’s purposes. The proposed property lot line adjustment does not involve any changes to the existing building. In this regard, staff is of the opinion that the request to sever is appropriate and will not impact the subject lands and surrounding area. In addition, staff is of the opinion that the proposed easement is appropriate. Provincial Policy Statement, Staff is further of the opinion that the proposal is consistent with the 2005Growth Plan for the Greater Golden Horseshoe, 2006 and conforms to the . The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated October 2, 2012, advising that they have no objection to this application. Ms. J. Meader questioned if the conditions of approval are identical to the previous consent application and was advised that they are identical with the exception of Condition 4 which relates to the addition of an easement which was not part of the original consent application. Moved by Mr. A. Head Seconded by Ms. J. Meader That the application of the Canadian National Railway Company requesting permission to sever an irregular parcel of land having a width on Breithaupt Street of 7.2m (23.62‘), a northerly depth 2 of 74.9m (245.74‘) and an area of 546m (5,877.29 sq.ft.), to be conveyed as a lot addition to 108 Ahrens Street West; and to create an irregular shaped easement for underground fibre optic cable over the severed lands in favour of the retained lands, measuring 0.268m (0.88’) fronting Breithaupt Street and 2.4m (7.88’) at the rear public lane, by a depth of 74.9m (245.74’); on Part Lots 223, 224, 225 and 226, Registered Plan 376, CN Rail Property at Breithaupt Street and BE GRANTED Ahrens Street West, Kitchener, Ontario, , subject to the following conditions: 1. That satisfactory arrangements shall be made with the City of Kitchener for the payment of any outstanding municipal property taxes and/or local improvement charges. 2. That the owner shall provide the Secretary-Treasurer with a digital file of the deposited reference plan(s) prepared by an Ontario Land Surveyor in .dwg (AutoCad) or .dgn (Microstation) format, as well as 2 full size paper copies of the plan(s). The digital file must be submitted according to the City of Kitchener’s Digital Design Standards to the satisfaction of the City’s Mapping Technologist. 3. That the owner shall pay to the City of Kitchener a cash-in-lieu contribution for park dedication equal to 2% of the value of the lands to be severed. COMMITTEE OF ADJUSTMENT - 285 -OCTOBER 16, 2012 2.Submission No.: B 2012-031 (Cont’d) 4. That with respect to the easement to be created: a. the owners of the proposed dominant lands and servient lands, shall enter into a joint maintenance agreement to be approved by the City Solicitor, to ensure that the easement is maintained in perpetuity, which agreement shall be registered on title immediately following the Transfer Easement(s); b. a satisfactory Solicitor’s Undertaking to register the approved Transfer Easement and immediately thereafter, the approved joint maintenance agreement, shall be provided to the City Solicitor; and, c. the City Solicitor shall be provided with copies of the registered Transfer Easement and joint maintenance agreement immediately following registration. 5. That the lands to be severed shall be added to the abutting lands addressed as 108 Ahrens Street West and title shall be taken into identical ownership as the abutting lands. The deed for endorsement shall include that any subsequent conveyance of the parcel to Planning Act be severed shall comply with Sections 50(3) and/or (5) of the , R.S.O. 1990, c. P.13, as amended. 6. That the owner’s Solicitor shall provide a Solicitor’s Undertaking to register an Application Consolidation Parcels immediately following the registration of the Severance Deed and prior to any new applicable mortgages, and to provide a copy of the registered Application Consolidation Parcels to the City Solicitor within a reasonable time following registration. It is the opinion of this Committee that: 1. A plan of subdivision is not necessary for the proper and orderly development of the municipality. 2. The requirements of the Zoning By-law are being maintained on the severed lands and the retained lands. 3. The use of the land in the application conforms to the City of Kitchener Municipal Plan and the Regional Official Policies Plan. Pursuant to Subsection 41 of Section 53 of the Planning Act, the applicant shall fulfil the above- noted conditions within one year of the date of giving notice of this decision. Pursuant to Subsection 43 of Section 53 of the Planning Act, the decision of this Committee shall lapse two years from the date of approval, being October 16, 2014. Carried ADJOURNMENT On motion, the meeting adjourned at 10:50 a.m. th Dated at the City of Kitchener this 16 day of October, 2012. Janet Billett, AMCT Acting Secretary-Treasurer Committee of Adjustment