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HomeMy WebLinkAboutAdjustment - 2000-10-03 FENCOA/2000-10-03-FEN COMMITTEE OF ADJUSTMENT FOR THE CITY OF KITCHENER MINUTES OF THE REGULAR MEETING HELD OCTOBER 3, 2000 MEMBERS PRESENT: Ms. S. Campbell and Messrs. B. Dahms and A. Galloway. OFFICIALS PRESENT: Ms. J. Given, Principal Planner and Ms. J. Billett, Secretary-Treasurer. Mr. B. Dahms, Chair, called this meeting to order at 10:00 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 Chapter 630 (Fences) of the City of Kitchener Municipal Code. 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, October 23, 2000, 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.: Applicant: Property Location: Le.qal Description: FN 2000-010 Martin & Ellen Dilgert 8 Meadow Crescent Lot 159 and Part of Lot 158, Re.qistered Plan 876 Appearances: In Support: Mr. M. Dilgert 8 Meadow Crescent Kitchener ON N2M 4E7 Mr. H. Schaefer 16 Meadow Crescent Kitchener ON N2M 4E7 Contra: Mr. F. Koch 175 Lakeside Drive Kitchener ON N2M 4C6 Ms. M. Haase 12 Broadleaf Place Kitchener ON N2M 4E5 Ms. B. Martin 16 Broadleaf Place Kitchener ON N2M 4E5 Written Submissions: In Support: None Contra: Mr. F. Koch 175 Lakeside Drive Kitchener ON N2M 4C6 COMMITTEE OF ADJUSTMENT - 27 - OCTOBER 3, 2000 1. Submission No.: FN 2000-010(Cont'd) The Committee was advised that the applicant is requesting permission to erect a wooden fence 0 m from the exterior side lot line adjacent to Broadleaf Place, from the front corner of an existing carport and continuing along the side lot line to the rear lot line, having a maximum height of 2.13 m (7 ft.), rather than the permitted 0.91 m (3 ft.). The Committee noted the comments of the Department of Business & Planning Services in which they advised that the applicant is requesting the variance to allow for a larger private rear yard area. Compliance with the by-law would greatly reduce the useable amenity area of the property. The fence is proposed to be located approximately 23 m (75 ft.) from the intersection of the property lines at Meadow Crescent and Broadleaf Place. This location is well outside the required daylight triangle and the proposed fence in this location will not impact visibility at the intersection. The fence is to extend from the existing carport out to the side property line abutting Broadleaf Place and run parallel to the lot line to the rear property line. The fence is intended to extend across 50% of the rear of the property and then be reduced in height to 0.91 m ( 3 ft.). The driveway for the neighbouring property at 165 Lakeside Drive is located approximately 8.6 m (28 ft.) from the proposed fence location and will not impede visibility for vehicular or pedestrian traffic. The variance can be considered minor in nature as it will not adversely affect the neighbouring property. The fence is an appropriate use of the property and maintains the general intent and purpose of the by-law and Municipal Plan. The Department of Business and Planning Services recommends approval of Submission FN2000-010. The Committee noted the comments of the Director of Building in which he advised that the Building Division has no concerns or comments with respect to this application. The Committee noted the comments of the Traffic & Parking Analyst in which he advised that the Traffic & Parking Division has reviewed this application and has no concerns with the proposed fence. The Committee noted the comments of the Grand River Conservation Authority in which they advised that they have no objection to this application. The Chair requested all parties to identify themselves and their property locations in relation to the subject property. Mr. M. Dilgert advised that he was the owner of the subject property; Mr. H. Schaffer advised that he was the owner of 16 Meadow Crescent and was in support of the application. Mr. F. Koch advised that he was the owner of 175 Lakeside Drive and also was acting on behalf of the property owner of 12 Broadleaf Place, Ms. M. Haase. In this regard, Mr. Koch presented the Committee with a letter of authorization from Ms. M. Haase appointing him as her agent. Mr. Koch advised that both he and Ms. Haase were objecting to the application. Ms. B. Martin advised that she was the owner of 16 Broadleaf Place and was in opposition to construction of the fence as it is proposed under this application. The Chair reviewed the staff comments, noting that staff are recommending approval of the application and inquired if Mr. Dilgert had anything further to add. Mr. M. Dilgert advised that the main reason for constructing the fence was for security of his children and privacy of his property. He pointed out that he has small children and has experienced other children in the neighbourhood as well as adults, trespassing through the rear of his property as a shortcut and wishes to construct the fence to ensure the security of his children and to prevent others from trespassing on his property. In addition, he advised that if he were to construct the fence with a 15 ft. setback as required in the by-law he would loose what little sunlight he has in his rear yard. Mr. Dilgert further stated that because of his occupation he has a utility trailer and construction equipment on his property that he wishes to obstruct from view. Mr. Dilgert stated COMMITTEE OF ADJUSTMENT - 28 - OCTOBER 3, 2000 that it was his intention to construct a well designed fence with landscaping in front to ensure an aesthetically pleasing structure. Mr. Dilgert pointed out that his only other option would be Submission No.: FN 2000-010(Cont'd) to construct the fence in accordance with the by-law which would result in a 8 ft. fence setback 15 ft. from the property line, being a higher structure and not as aesthetically pleasing. Mr. A. Galloway referred to the sketch submitted with the application and requested clarification with respect to the proposed height of the fence along the rear lot line. Mr. Martin advised that the height of the fence along the rear lot line will be the same height as the fence along the exterior side lot line for approximately 16 ft. in length, at which point the height of the fence will drop to 3 ft. for the remainder of the rear lot line. The Chair enquired if it was intended to have a 3 ft. fence along the south side lot line and Mr. Martin responded that there is a 4 ft. hedge existing along that side lot line and he has no intention of constructing a fence in this area. Mr. F. Koch requested permission to direct questions to Mr. Martin and the Chair allowed Mr. Koch ample opportunity to do so. Mr. F. Koch began by submitting to the Committee a "Book of Authorities" containing extracts from the City of Kitchener's Municipal Code and Zoning By-law, together with an extract from the Planning Act and various examples of case law. Mr. F. Koch put forward questions to the applicant which established that the applicant had purchased his home in 1984; the subject property is a corner lot; the location of the fence to be constructed with regard to the variance is along the exterior side lot line; the by-law regulating the construction of fences was in force at the time that the applicant purchased the property; and, that the subject property is located within the residential neighbourhood known as "Forest Hill". Mr. F. Koch then submitted to the Committee an "Exhibit Book" containing a copy of the signed agency authorization of Ms. M. Haase; a copy of an article from the K-W Record published on July 24, 2000 with regard to the Forest Hill Neighbourhood; a copy of a map of the Forest Hill Neighbourhood; a copy of a hand drawn map of the subject area showing locations from which photographs contained in the Exhibit Book were taken from; and, a series of photographs of the neighbourhood. Mr. F. Koch read several statements from the newspaper article alluding to the characterization of the Forest Hill neighbourhood which suggest that the area consists of lot frontages of 50 to 60 ft., homes being sought after and sold quickly when placed on the market and residents having pride in their properties, setting very high standards for themselves. Mr. Koch questioned if the statements in the newspaper article were a fair assessment of the neighbourhood and Mr. Martin concurred. Mr. Koch again referred to the Exhibit Book, and under Tab "E" on Page 4, established that photograph # 8 was that of Mr. Martin's property showing the lot line adjacent to Broadleaf Place along which the proposed fence is to be constructed. Photograph # 10 on Page 5 was also examined establishing that it represents the view of the subject property from Ms. Haase's front yard and that the proposed fence was to be constructed along the side lot line facing Mrs. Haase's front yard. Mr. Koch questioned if the grade of Mr. Martin's property was higher than that of the properties across the street and Mr. Martin responded that was correct. Mr. Koch then inquired as to the location of windows in Mr. Martin's home and Mr. Martin responded that windows were located at the front, side and rear of the dwelling, with the kitchen window being on the side of the home adjacent to where the fence is to be constructed and, in addition, to the rear of the home in the area where the 3 ft. fence is to be constructed there are 3 windows. Mr. Martin responded to further questioning by Mr. Koch in which he pointed out that the proposed fence will end at the edge of the existing carport; privacy is the primary purpose for construction of the fence; he was unsure if there were other corner fences in the neighbourhood; the sketch of the fence submitted with the application is plotted on a copy of the property survey; the post for the fence will be 6 ft. in height; and that the fence shown as photograph # 16 on Page 8 of the Exhibit Book is similar to that which he intends to construct, however, he was not aware of the exact height of the fence shown in photograph # 16. COMMITTEE OF ADJUSTMENT - 29 - OCTOBER 3, 2000 Submission No.: FN 2000-010(Cont'd) Ms. B. Martin questioned what type of landscaping and the location Mr. Martin intended to place it front of the fence. Mr. Martin advised that he intended to transplant existing flowering shrubs and bushes from their present location on his property to the area in front of the fence, between the fence and the sidewalk. The Chair referred to photograph # 8 and enquired if the fence would enclose the trees along the side lot line. Mr. Martin responded that he intends to transplant the trees and locate the fence in their place. Mr. Koch enquired as to the height of the trees and Mr. Martin responded that they range from 3 to 5 ft. In this regard, Mr. Koch pointed out that the proposed fence would be double the height of the 3 ft. trees. Mr. H. Schaefer then addressed the Committee and advised that he was in support of the application as he has also been subjected to children and adults cutting through his property and believes that the only way to prevent this from occurring is to allow the fence on Mr. Martin's property to be constructed. Mr. A. Galloway questioned if the owner of the property at the corner of Broadleaf Place and Lakeside Drive directly to the rear of the subject property had raised any concerns with respect to the proposed fence. Mr. Martin advised that he had spoken with the owner of the property who had indicated he had no concerns with the proposed fence and understood that fencing was necessary to provide safety for the children. In addition, this neighbour had indicated he was happy with the landscaping improvements that Mr. Martin had made to his property. Mr. F. Koch was then permitted an opportunity to address the Committee during which he pointed out that he had been a resident of the area for 30 years, while Mrs. Haase had been a resident for 40 years. He advised that the subdivision had been developed in the 1960's and characterized the subdivision as an open neighbourhood with attractive large lots and mature trees. Mr. Koch stated that Mr. Martin's property was located on a very prominent corner lot which can be viewed by the entrance to 3 of the crescents in the area. In this regard, he suggested that the fence as proposed would be a very prominent feature within the neighbourhood, whereas the by-law permits only a 3 ft. high fence. Mr. Koch pointed out that he also owns a corner lot and has the same concerns with regard to safety of children and people trespassing across his property. Mr. Koch suggested that the impact of the fence from the view of Mr. Martin's property will be less as Mr. Martin's property is at a higher grade than that of the neighbours across the street. Mr. Koch stated that there are no other similar fences prominently located up to side lot lines on corner lots in the area. Mr. Koch further advised that he, Ms. Martin and Ms. Haase had undertaken discussions with Mr. Martin prior to the hearing this date and were unable to reach any compromise with respect to the proposed fence. Mr. Koch then referred to his Book of Authorities and under the Planning Act stated that there are certain requirements to be considered by the Committee in determining whether or not to approve the application. The Chair advised Mr. Koch that the Committee was well aware of the four tests under the Planning Act. Mr. Koch then stated that the onus is on Mr. Martin to establish that his request is minor in nature and, referring to case law contained in his Book of Authorities, suggested that the variance requested in Mr. Martin's application was not minor in nature as it represents a variance of at least 100%, being the difference between a permitted 3 ft. fence and his request for a 6 - 7 ft. fence. Mr. Koch also suggested that the Committee should have regard for the issue of aesthetics and the visual impact the fence will have on neighbouring properties. Mr. Koch then referred to the Planning staff report and suggested that the main focus of the report is on traffic safety, with particular regard to the properties on either side of the subject property, but does not address concerns relative to the properties located across the street. Mr. Koch cited further case law from his Book of Authorities with regard to aesthetics and also reviewed wording in Article 4 of Chapter 630 (Fences) of the City's Municipal Code, which he believes by imposing a 3 ft. restriction recognizes the visual impact on neighbouring properties. Mr. A. Galloway pointed out that the applicant could construct an 8 ft. fence along the exterior side lot line setback 4.5 m (15 ft.) and, given the length of the exterior sideyard, he could not see any lessening in impact to the neighbours if the fence was constructed in accordance with the by-law. Mr. Koch referred to photograph # 4 of the Exhibit Book and suggested that there COMMITTEE OF ADJUSTMENT - 30 - OCTOBER 3, 2000 would be a significant difference if the fence was setback 15 ft. Mr. Martin pointed out that if the fence is constructed as permitted under the by-law those entering Broadleaf Place will still Submission No.: FN 2000-010(Cont'd) see an 8 ft. fence. Mr. Martin stated that his only other option would be to build a longer and higher fence than what he is proposing. Mr. Koch suggested that it is not for the Committee to decide what Mr. Martin's options are but rather what is being requested in the application. Mr. Galloway disagreed with Mr. Koch stating that the Committee should take into consideration what the applicant can do as opposed to what is being requested and weigh the difference in impact between the two. Mr. Koch stated that he felt constructing the fence as proposed would have a visual impact on the neighbours and the neighbours would have no control over the maintenance of the proposed landscaping. He stated that the main concern of the neighbours is the closeness of the fence to the lot line. Mr. A. Galloway stated that given the fact that the applicant could construct an 8 ft. fence setback 15 ft. which, in his opinion, would not lessen the visual impact to the neighbours across the street, he felt the requested variance was appropriate and was prepared to move approval of the application. Ms. S. Campbell was in agreement with Mr. Galloway's comments. The Chair advised that he also was in support of the application and thanked the parties present for their submissions. The Chair pointed out that the Committee has had similar applications before it and ample precedent exists for approval of such an application. The Chair further commented that the fence is not located in a frontyard but rather in a sideyard and, echoing Mr. Galloway's comments with respect to the applicant being able to construct an 8 ft. fence setback 15 ft. without requiring the Committee's approval, stated that he was not convinced the visual impact would be any less. Moved by Mr. A. Galloway Seconded by Ms. S. Campbell That the application of Martin & Ellen Dilgert requesting permission to erect a wooden fence 0 m from the exterior side lot line adjacent to Broadleaf Place, from the front corner of an existing carport and continuing along the side lot line to the rear lot line, having a maximum height of 2.13 m (7 ft.), rather than the permitted 0.91 m (3 ft.), on Lot 159 and Part of Lot 158, Registered Plan 876, 8 Meadow Crescent, Kitchener, Ontario, BE APPROVED. It is the opinion of this Committee that: 1. The variance approved in this application is minor in nature. 2. This application is desirable for the appropriate development of the property. The general intent and purpose of the City of Kitchener Municipal Code Chapter 630 (Fences) is being maintained on the subject property. Carried The Committee advised all parties present that the decision of the Committee is a recommendation to Council, which will be considered at the Council meeting of October 23, 2000, at 7:00 p.m., in the Council Chamber and they may register as a delegation to appear before Council at that time. Submission No.: Applicant: Property Location: Le.qal Description: FN 2000-011 Frank Novak & Tracey Wrixon 2 Ramblewood Way Lot 144, Re.qistered Plan 1334 Appearances: In Support: Mr. F. Novak 2 Ramblewood Way Kitchener ON N2N 1G6 COMMITTEE OF ADJUSTMENT - 31 - OCTOBER 3, 2000 Contra: None 2. Submission No.: FN 2000-011 (Cont'd) Written Submissions: In Support: None Contra: None The Committee was advised that the applicant is requesting permission to erect a wooden fence 0.61 m (2 ft.) from the exterior side lot line adjacent to Elm Ridge Drive, from the front corner of the existing dwelling continuing along the side lot line to the rear lot line, having a maximum height of 1.83 m (6 ft.), rather than the permitted 0.91 m (3 ft.). The Committee noted the comments of the Department of Business & Planning Services in which they advised that the applicants are requesting permission to construct a wooden fence 0 metres from the exterior side lot line abutting Elm Ridge Drive, having a maximum height of 1.83 metres (6 feet) rather than the maximum permitted height of 0.91 metres (3 feet). The applicants wish to erect a fence high enough to contain their dog. If they were to comply with the by-law, a significant portion of their yard would be lost. The portion of the fence requiring a variance would run along the rear lot line and northerly side lot line abutting Elm Ridge Drive up to the front facade of the house, but not extending past the front of the house. The intent of the regulations for corner lot fencing is to maintain visibility for pedestrian and vehicular traffic. Although a portion of the fence is within the corner visibility triangle, it is not a large area and will pose no visibility problems for either vehicular or pedestrian traffic. Additionally, the property, which abuts the rear lot line, is also used for residential purposes. As the driveway for the abutting property is located on the far side of the house from the subject property, the height of the proposed fence would not appear to obstruct visibility for vehicles backing onto Rose Garden Street. Traffic Division staff has no concerns regarding visibility for the proposed fence. Staff wishes to clarify to the applicant that the sidewalk is not the property line and it is the applicant's responsibility to ensure that they are aware of the exact location of the lot lines. Based on the above comments, it is the opinion of staff that the general intent of the by-law is being met. The requested fence variance is considered minor in nature and it is also considered appropriate development for the property and surrounding residential area. The Department of Business and Planning Services recommends approval of minor variance application FN 2000-011 as submitted. The Committee noted the comments of the Director of Building in which he advised that the Building Division has no concerns or comments with respect to this application. The Committee noted the comments of the Traffic & Parking Analyst in which he advised that the Traffic & Parking Division has reviewed this application and has no concerns with the proposed fence. The Committee noted the comments of the Grand River Conservation Authority in which they advised that they have no objection to this application. The Chair reviewed the staff comments, noting that staff are recommending approval of the application and enquired if Mr. Novak had anything further to add. Mr. F. Novak advised that he had reviewed the staff reports and had nothing further to add. The Secretary pointed out that the notice had incorrectly stated the fence would be erected 0.61 m (2 ft.) from the exterior side lot line whereas the application indicates that the fence will be located 0 m from the exterior side lot line. COMMITTEE OF ADJUSTMENT - 32 - OCTOBER 3, 2000 2. Submission No.: FN 2000-011 (Cont'd) The Chair stated that as the fence is to be located adjacent to a roadway and does not affect the rearyard or sideyard of an adjacent property he did not have concerns with what was stated in the notice as opposed to what was in the application. Mr. A. Galloway further pointed out that the Planning staff comments are based on a wooden fence 0 m from the exterior side lot line. The Secretary also noted that the variance requested relates to the height of the fence as opposed to the distance from the sideyard. Mr. F. Novak advised that he had undertaken discussions with his neighbour with respect to the fence and no objections were raised. The Chair enquired if the discussions were relative to a 0 m lot line and Mr. Novak stated they were. In view of these comments, the Chair stated that he was prepared to support the application. Both Mr. Galloway and Ms. Campbell were also in agreement. Moved by Ms. S. Campbell Seconded by Mr. A. Galloway That the application of Frank Novak and Tracey Wrixon requesting permission to erect a wooden fence 0 m from the exterior side lot line adjacent to Elm Ridge Drive, from the front corner of the existing dwelling continuing along the side lot line to the rear lot line, having a maximum height of 1.83 m (6 ft.), rather than the permitted 0.91 m (3 ft.), on Lot 144, Registered Plan 1334, 2 Ramblewood Way, Kitchener, Ontario, BE APPROVED. It is the opinion of this Committee that: 1. The variance approved in this application is minor in nature. 2. This application is desirable for the appropriate development of the property. The general intent and purpose of the City of Kitchener Municipal Code Chapter 630 (Fences) is being maintained on the subject property. Carried The Chair advised Mr. Novak that the decision of the Committee is a recommendation to Council, which will be considered at the Council meeting of October 23, 2000, at 7:00 p.m., in the Council Chamber and he may register as a delegation to appear before Council at that time. ADJOURNMENT On motion, the meeting adjourned at 10:55 a.m. Dated at the City of Kitchener this 3rd day of October, 2000. J. Billett Secretary-Treasurer Committee of Adjustment