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HomeMy WebLinkAboutAdjustment - 2005-03-08 COMMITTEE OF ADJUSTMENT FOR THE CITY OF KITCHENER MINUTES OF THE REGULAR MEETING HELD MARCH 8, 2005 MEMBERS PRESENT: Messrs. P. Britton, D. Cybalski and B. Isaac. OFFICIALS PRESENT: Mr. B. Sloan, Planner, Ms. R. Brent, Assistant Secretary-Treasurer and Ms. D. Gilchrist, Secretary-Treasurer Mr. P. Britton, Chair, called this meeting to order at 10:00 a.m. MINUTES Moved by Mr. D. Cybalski Seconded by Mr. B. Isaac That the minutes of the regular meeting of the Committee of Adjustment of February 8, 2005, as mailed to the members, be accepted. Carried NEW BUSINESS MINOR VARIANCE Submission No.: Applicant: Property Location: Leqal Description: A 2005-016 Savic Homes Ltd. 1316 Victoria Street North Part Lot 122, German Company Tract Appearances: In Support: Mr. D. Brzak Contra: None Written Submissions: None The Committee was advised that the applicant requests permission to construct an addition to the rear of the existing building with a left side yard setback of 0.6 m (1.96 ft.) instead of the required 3.0 m (9.8 ft.). The Committee considered the report of the Development & Technical Services Department, dated March 1, 2005, advising the requested variance is to reduce the side yard setback for a rear yard building addition. The addition would require a site plan application. Through the consideration of a site plan, the location of the building addition, parking and other site development matters may be impacted and could result in additional variances or a change to the requested variance. Therefore, staff recommends that consideration of the minor variance be deferred until such time as a site plan has been submitted and considered. The Committee considered the comments of the Region of Waterloo Transportation Planner, dated February 25, 2005, advising they have no concerns with this application. Mr. Brzak explained the variance is requested so the addition will be in line with the existing building. There is a storage yard on the abutting property, so the addition will not bother the neighbours. Mr. Brzak advised the applicant does not want to apply for site plan approval before COMMITTEE OF ADJUSTMENT 46 MARCH 8, 2005 1. Submission No.: A 2005-016 (Cont'd) they receive approval of this application, as they do not want to go to the expense of engineering drawings which may have to be changed if this application is not approved. Mr. Sloan advised engineering drawings are not required at the initial stage of site plan approval, and the applicant should have approval in principle for the site plan prior to this application being considered, in case the required variances change. It was agreed by all parties that consideration of this application be deferred until the applicant receives approval in principle for their site plan. Submission No.: Applicant: Property Location: Leqal Description: A 2005-017 Adam and Joan Scott 3C-350 Doon Valley Road Unit 58, Waterloo Standard Condominium Plan 369 Appearances: In Support: Mr. M. Milczarczy Contra: Ms. B. Brown Written Submissions: None The Committee was advised that the applicant requests legalization of a rear yard deck (and stairs) that would be up to 1.9 m (6.23 ft) from the top of the bank instead of the required 4.0 m (13.12 ft.) setback as required in the Zoning By-law. The Committee considered the report of the Development & Technical Services Department, dated March 1, 2005, advising the property is located at the intersection of Doon Valley Dr and Old Mill Road, and is directly across from Conestoga College. It is zoned R-6 (Residential Six) with special provisions 279U and 330R and was recently developed with a condominium townhouse development. This application concerns unit 3C which is located towards the north end of the property, backing onto the Grand River. The applicant is requesting legalization of an existing rear yard deck and stairs that are located up to 1.9 metres (6.23 feet) from the top of bank instead of the required 4 metres (13.12 feet) setback as required in the Zoning By-law by special provision 330R. 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 variance does not meet the intent of the Zoning By-law and Municipal Plan for the following reason. The intent of the required setback for decks and other accessory structures is to provide a buffer between land uses (residential for the subject property and open space to the north) and help ensure that structures are not in close proximity to the stable slope / top-of-bank, thereby preserving the integrity of the natural environment. Special provision 330R states: "The minimum setback to any building or structure, including accessory buildings, decks, swimming pools or retaining walls, from either the theoretical 2:1 top of slope or actual top of the Grand River Valley slope, whichever is located closer to said building or structure, as shown on a drawing entitled 'Top of Bank Detail, G.R.C.A.-I', dated January 20, 2000 and prepared by Mel Code, Consultant, shall be 4.0 metres." It is noted that the zoning of the land to the north of the subject property is P-3 (Hazard Land). The 4.0m setback requirement is already less than the typical GRCA requirement. The construction of the deck into the required setback clearly goes against the intent of the special provision, 330R, contained in the Zoning By-law. It is noted that the deck was constructed in violation of this provision and without benefit of a building permit COMMITTEE OF ADJUSTMENT 47 MARCH 8, 2005 2. Submission No.: A 2005-017 (Cont'd) The variance is not minor for the following reason. The deck and stairs encroach 2.1 metres into the required 4 metres setback. This is slightly more than half the required setback, it could impact the Grand River Valley slope and therefore is not considered minor. The variance is not appropriate for the development and use of the land for the following reasons. As noted above, the variance does not meet the intent of the Zoning By-law, as it does not maintain the integrity of the natural environment. The building envelope and area available for decks was identified through the original development applications for this site. The extent of buildable area for the deck was known. Therefore, the extent of the deck and stairs are not appropriate for the development and use of the property. Based on the foregoing, Planning staff recommends that the application be refused. The Committee considered the comments of the Region of Waterloo Transportation Planner, dated February 25, 2005, advising they have no concerns with this application. The Committee considered the comments of the Grand River Conservation Authority dated March 2, 2005, advising they recommend the application be refused, as it is contrary to the Provincial Natural Hazard policy and the GRCA slope policy. It is also their opinion that the application is not minor and that it does not conform to the intent of the zoning by-law. Mr. Milczarczy stated the goal of planning principles is to maintain the harmony of the community, and it is not intended they be enforced blindly. With respect to the deck, Mr. Milczarczy advised the encroachment of 2.1 metres is where the stairs are located and 1.1-1.4 metres where there are no stairs. Mr. Milczarczy displayed photographs of the subject deck. It was Mr. Milczarczy's position that the adverse effect on the environment is minimal. The deck has been constructed of wood which is porous, there was no extensive digging, and the deck is not weighty. With respect to the intent of the by-law, Mr. Milczarczy commented the City and the GRCA state the variance is contrary to the intent of the by-law. His position was that the intent of the by-law is still maintained, as there is still a buffer, although reduced in size. The deck as constructed maintains the intent of the zoning by-law and the official plan. Mr. Milczarczy offered the opinion the City is overly mathematical with its position that the variance is not minor. With respect to the integrity of the natural environment, Mr. Milczarczy stated this area is a back yard, and you would expect to see this kind of activity in a back yard. Mr. Milczarczy then commented on the Grand River Conservation Authority concerns, stating that overloading and drainage concerns are minimal as this is a wooden structure. If there are concerns about slope stability and erosion, there are options available. The Committee could require planting of vegetation, and if the variance is to great, the stairs could be moved to the east side of the building which would reduce the encroachment by 1 metre. The Chair commented that it is the intent of the by-law to deal with slope failure, and it has been based on science. He questioned whether Mr. Milczarczy had any scientific proof that the original science was incorrect. Mr. Milczarczy responded that the GRCA advised the province originally wanted a 6 metre setback; however, the GRCA reduced this setback to 4 metres. Although the 4 metre setback is required in the zoning by-law, variances to the by-law can be considered. The Chair responded the 4 metre setback has restrictions in the zoning by-law. He questioned what proof Mr. Milczarczy has that the concerns of the City and the GRCA are not valid. The Chair then commented that the photographs submitted by Mr. Milczarczy showing other units in this development are at variance to the same special regulation, and he has concerns about setting a precedent. The Chair also questioned who would be liable if the slope fails and the deck fall. Mr. Milczarczy responded that his client and the deck builder would be liable. The Chair questioned whether the City would be liable if this Committee approves the variance. Mr. Milczarczy responded his clients would accept the risk because they have been made aware of the science. COMMITTEE OF ADJUSTMENT 48 MARCH 8, 2005 2. Submission No.: A 2005-017 (Cont'd) In response to the Chair's comment about other similar variances on this property, Mr. B. Sloan advised there a total of 4 units in the condominium that have variances to this special regulation, and recommended they all come before this Committee at the same time. He also advised the building envelopes and available deck space were clearly identified in previous applications. The Chair stated the Committee does not wish to deal with these variances incrementally, and prefers to deal with all four variances at the same time. At the concurrence of Mr. Milczarczy, it was agreed that consideration of Submission No. A 2005-017 be deferred, tentatively scheduled for consideration on May 10, 2005, pending receipt of the other 3 Applications for Minor Variance. The Chair advised Mr. Milczarczy that he should bring forward scientific evidence in support of these variances, which he should discuss and review with the Grand River Conservation Authority prior to coming before this Committee. Ms. B. Brown, GRCA, advised there is a combination of technical issues and policy issues with respect to the setback from the top of the slope. Even if the applicant is able to obtain geotechnical advise there may still be a policy issue concerning access to the top of the slope. She noted the Grand River Conservation Authority tried to obtain environmental protection for the slope through the zoning by-law and the official plan. Further, there were warning clauses inserted in the condominium agreements and in the agreements of purchase and sale. It was generally agreed by all parties that consideration of this application be tentatively deferred to the Committee of Adjustment meeting scheduled for May 10, 2005; pending receipt of Applications for Minor Variance for the other 3 condominium units. Submission No.: Applicant: Property Location: Legal Description: A 2005-018 Loblaw Properties Limited 750 Ottawa Street South Part Lot 9, Municipal Compiled Plan 1021, and Part Lots 4 and 5, Municipal Compiled Plan 1022, Appearances: In Support: Mr. J. Rodger Contra: None Written Submissions: None The Committee was advised that the applicant requests permission to reduce the minimum side yard setback abutting Strasburg Road from the required 6.0 m (19.68 ft.) to 3.5 m (11.48 ft.) to facilitate an addition to the existing grocery store. The Committee considered the report of the Development & Technical Services Department, dated March 1,2005, advising the site in question is located at the intersection of Ottawa Street South and Strasburg Road, and is part of the Laurentian Power Centre. The centre is surrounded by other commercial uses, as well as the City's Fire Hall Headquarters, and the Grand River Transit yards. The applicant wishes to expand the existing Zehrs Supermarket, by adding 4642 square metres of floor area. The property is designated Planned Commercial Campus under the City's Municipal Plan and zoned Commercial Campus Zone (C-9) under Zoning Bylaw 85-1. The proposed addition will encroach 2.14 metres into the required side yard abutting a street setback (along Strasburg Road). As a result, the applicant is requesting a reduction in the required setback for a side yard abutting a street, from 6.0 metres to 3.5 metres. The addition will also require the loading area to be moved closer to the street. A site plan application has been submitted and is currently under review. COMMITTEE OF ADJUSTMENT 49 MARCH 8, 2005 3. Submission No.: A2005-018 (Cont'd) As the proposed building addition will flank a major City intersection, the City's Urban Design Guidelines encourage the avoidance of blank walls, the articulation of building facades, and the breaking up of building mass through such techniques as banding, murals, keystones, window bays, etc. Where building articulation is not provided, the 6.0 metre setback provides ample space to screen the fa(;:ade with landscaping. According to the City's landscape architects, 3.5 metres is not sufficient to plant dense landscaping to screen the fa(;:ade. As such, through the site plan process, staff will work with the applicant on a suitable elevation treatment to compensate for insufficient landscape area. The City's preference for a fa(;:ade treatment would be to incorporate features and materials found along the main entrance of the building, as well as fake windows or public art - to create a visual focal point at the intersection. Staff recommend that this variance be approved subject to the applicant receiving final site plan approval. This approach has also been taken on previous variance applications, for Zehrs at Stanley Park Mall and Sobeys and the Williamsburg Town Centre. 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 variances meet the intent of the Municipal Plan for the following reasons. The variance will allow the building mass to be oriented to the street, and through the site plan process, an effective fa(;:ade treatment will be achieved. The variance meets the intent of the Zoning By-law for the following reasons. The intent of the yard setbacks is to allow sufficient space for landscaping to screen unsightly areas, such as loading areas, where appropriate design treatments are not proposed. An appropriate alternative design treatment for the Strasburg Road frontage and rear service area will be achieved through the site plan process. The variance is minor for the following reasons. Implementing the alternative fa(;:ade design measures noted above will ensure that the building fa(;:ade will be attractive and not create a visual eyesore. The variance is appropriate for the development and use of the land for the following reasons. The variance will facilitate the development of a street oriented building, which if designed appropriately, can become an attractive corner piece of the intersection. Based on the foregoing, Planning staff recommend that the application be approved, subject to the applicants obtaining final site plan approval, which will include the submission and review of building elevation drawings. The Planning Division recommends approval of minor variance application A2005-018, to permit a reduced setback of 3.5 metres for the side yard abutting a street setback along Strasburg Road, subject to the following condition: That the owner enter into a Section 41 Site Plan Agreement with the City of Kitchener to be prepared by the City Solicitor to the satisfaction of the City's Manager of Design and Development, and registered on title of all the subject lands. Said agreement shall include the provision of special landscape treatment and fa(;:ade improvements at the Homer Watson Boulevard and Strasburg Road intersection, through the approval and implementation of landscape plans and elevation drawings. The Committee considered the comments of the Region of Waterloo Transportation Planner, dated February 25, 2005, advising they have no concerns with this application. The Committee considered comments from Kitchener-Wilmot Hydro Inc., dated March 1, 2005, advising of a safety standards established by Ontario Regulation 22/04, and the Occupational Health and Safety Act, for the benefit of the applicant. COMMITTEE OF ADJUSTMENT 50 MARCH 8, 2005 3. Submission No.: A2005-018 (Cont'd) Mr. Sloan addressed the Committee advising this location is a fairly important commercial intersection in the community. The applicant has submitted a site plan which has been approved in principle subject to submitting for approval an elevation drawing and design for the wall of the addition which will face Strasburg Road. He noted this Committee has approved similar variances in the past. Mr. Cybalski stated that given the significance of this intersection, the Committee should receive elevation drawings showing the design of the wall, in order to determine if the four tests set out in the Planning Act can be met. Mr. Rodger stated Loblaw is committed to working with staff to address the appearance of this wall. Further, he advised timing is an issue. It was generally agreed by all parties that consideration of this application be deferred to the Committee of Adjustment meeting scheduled for April 12, 2005, pending receipt of an elevation drawing by March 14, 2005. Submission No.: Applicant: Property Location: Leqal Description: A 2005-019 Stamm Investments Limited 186 Gehl Place Part Lots 140, 141 & 142, German Company Tract Mr. P. Britton declared a pecuniary interest in this application as his planning firm has represented this applicant, and did not participate in any discussion or voting with respect to this application. This application was considered by the remaining two members, and Mr. Cybalski chaired the meeting during consideration of this application. Appearances: In Support: Mr. J. Parkin Contra: Ms. B. Brown Written Submissions: None The Committee was advised that the applicant requests permission to reduce the excavation setback for an existing licensed pit operation from 43 m (141.07 ft.) to 30 m (98.42 ft.) on the southwest portion of the property, south of the Gehl Place right-of-way. The Committee considered the report of the Development & Technical Services Department, dated March 1, 2005, advising they have no concerns with this application provided that within 6 months of the date of the Committee of Adjustment decision, the owner obtain confirmation from the Ministry of Natural Resources that the expansion of the pit meets MNR requirements, including any licensing requirements, and that the confirmation be provided to the City's Manager of Design and Development. The Committee considered the comments of the Region of Waterloo Transportation Planner, dated February 25, 2005 advising they have no concerns with this application. The Committee considered the comments of the Grand River Conservation Authority, dated March 2, 2005, advising a portion of the area to be included in the excavation limit is wetland. We recommend that the application be deferred until discussions can occur between the City of Kitchener, the applicant, their consultants, the Grand River Conservation Authority and the Ministry of Natural Resources to investigate options to retain the wetland feature. Mr. Parkin addressed the Committee advising this application has been submitted so as to allow the recovery of a high quality pocket of aggregate located in this area. He noted this is a licensed gravel pit by the Ministry of Natural Resources (MNR), and the final approval of the site plan amendment lies with the Ministry. The MNR wants to know the City's position on this matter which is why this application is before the Committee today. COMMITTEE OF ADJUSTMENT 51 MARCH 8, 2005 4. Submission No.: A 2005-019 (Cont'd) In consideration of the concerns of the Grand River Conservation Authority (GRCA), Mr. Parkin referred to a facsimile transmission from MHBC Planning, dated March 3, 2005, stating their position that consideration of this application does not need to be deferred as the GRCA concerns can be considered through the MNR site plan amendment process. In summary, Mr. Parkin stated the 30 metre setback exceeds the MNR requirement, it will not impact surrounding uses, the zoning by-law allows extraction in this area, and the area is licensed for extraction by the Ministry of Natural Resources. Ms. Brown, GRCA, addressed the Committee advising they have a concern with the southwest corner of the property, and want an opportunity for discussions to take place in this regard with the applicant, the City, and the Ministry of Natural Resources. Further, she stated this application for minor variance is a Planning Act application; consequently, the wetland policy should be considered. Upon questioning, Ms. Brown advised the GRCA is currently updating its study, and new environmental work has been done. Confirmation of the wetland in this area has recently been received. So far, the complex is not provincially significant; however, it is regionally significant in the draft report. It was generally agreed by the parties in attendance that the condition recommended by the Development and Technical Services Department would be amended to require consultation with the Grand River Conservation Authority with respect to the wetland in the southwest corner of this property. Moved by Mr. D. Cybalski Seconded by Mr. B. Isaac That the application of Stamm Investments Limited requesting permission to reduce the excavation setback for an existing licensed pit operation on the southwest portion of the property to 30 m (98.42 ft.) rather than the required 43 m (141.07 ft.), on Part Lots 140, 141 & 142, German Company Tract, 186 Gehl Place, Kitchener, Ontario, BE APPROVED, subject to the following condition: That within 6 months of the date of the Committee of Adjustment decision, the owner shall obtain confirmation from the Ministry of Natural Resources (MNR) that the expansion of the pit meets MNR requirements, in consultation with the Grand River Conservation Authority of special consideration of wetlands in the southwest corner of the property, including any licensing requirements, and that the confirmation be provided to the City's Manager of Design and Development. It is the opinion of this Committee that: 1. The variance requested 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 Zoning By-law and Municipal Plan is being maintained on the subject property. Carried CONSENT Submission No.: Applicant: Property Location: Leqal Description: B 2005-011 Peneretail II Ltd. 655 Fairway Road South Part Lot 2, Registered Plan 1525 COMMITTEE OF ADJUSTMENT 52 MARCH 8, 2005 1. Submission No.: B 2005-011 (Cont'd) Appearances: In Support: Contra: Written Submissions: Mr. R. Blunt None None The Committee was advised that the owner requests permission for lease greater than 21 years for a grocery store building only within the existing commercial retail plaza. The Committee considered the report of the Development & Technical Services Department, dated March 1,2005, advising they have no concerns with this application. The Committee considered the comments of the Region of Waterloo Planning, Housing and Community Services, dated March 3, 2005, advising they have no objections with this application. Moved by Mr. D. Cybalski Seconded by Mr. B. Isaac That the application of Peneretail II Ltd. Requesting permission for a lease in excess of 21 years for a grocery store building only within the existing commercial retail plaza, on Part Lot 2, Registered Plan 1525, 655 Fairway Road South, Kitchener, Ontario, BE GRANTED. It is the opinion of this Committee that: A plan of subdivision is not necessary for the proper and orderly development of the municipality. The requirements of the Zoning By-law are being maintained on the severed lands and the retained lands. 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 March 8, 2007. Carried Submission No.: Applicant: Property Location: Legal Description: B 2005-012 Holy Trinity Serbian Orthodox Church Kitchener Waterloo 660 Fischer Hallman Road Part Lot 47, German Company Tract, being Parts 1 & 2, Reference Plan 58R-13049 Mr. P. Britton declared a pecuniary interest in this application as his planning firm has represented this applicant, and did not participate in any discussion or voting with respect to this application. This application was considered by the remaining two members, and Mr. Cybalski chaired the meeting during consideration of this application. Appearances: In Support: Mr. K. Hanbidge Dr. Remirez Mr. S. Ludoski Contra: None COMMITTEE OF ADJUSTMENT 53 MARCH 8, 2005 2. Submission No.: B 2005-012 (Cont'd) Written Submissions: None The Committee was advised that the applicant requests permission to create one new lot that would contain an existing residential dwelling. The new lot would have a lot area of approximately 0.13 ha and would have frontage on Fischer-Hallman Road of about 36.17 m (118.66 ft.) and frontage on Ottawa Street of about 18.52 m (60.76 ft.). The retained lands would have frontage of 207.16 m (679.65 ft.) on Fischer-Hallman Road and a lot area of approximately 1.62 ha. The existing use of the retained lands as a religious institution and 2 single detached dwelling units is currently proposed to continue. The Committee considered the report of the Development & Technical Services Department, dated March 3, 2005, advising the subject property is located on Fischer Hallman Road at Ottawa Street. The applicant is proposing to sever a 0.13 hectare parcel of land which has an existing residential dwelling on it. The retained lands are 1.62 hectares in size and have an existing church and a single detached dwelling. The purpose of the application is to create a separately conveyable lot for the existing residential dwelling at the corner of Fischer Hallman Road and Ottawa Street South. The lands to be severed are zoned Residential Three Zone (R-3) and are designated Low Rise Residential in the Municipal Plan. The retained lands are split zoned Residential Three Zone (R- 3) and Neighbourhood Institutional Zone (I-1). The existing uses conform to the zoning by-law and municipal plan and no additional/new uses are proposed at this time. The proposed severed and retained lands conform to zoning regulation requirements. Presently the use of the property is illegal as there are two residential dwellings on the R-3 portion of the subject lands. In the R-3 zoning, only one residential unit is permitted. The approval of the proposed severance will result in legalizing the situation on this site, as each residential unit will be on its own lot in accordance with the zoning by-law. City staff recommend approval of this application as it is for the purpose of severing an existing, municipally serviced residential dwelling. Engineering staff have advised that the sanitary connection to the severed lands is very shallow and would have to be a consideration if any new buildings were proposed on the site at some time in the future. It is unclear whether the existing building is actually connected to services. That application B-2005-012 be approved subject to the following conditions: That satisfactory arrangements be made with the City of Kitchener for the payment of any outstanding Municipal property taxes and/or local improvement charges on both the severed and retained lands. That the owner make financial arrangements to the satisfaction of the City's Director of Engineering for the installation of all new service connections to the severed and retained lands, if required. That the owner pay to the City of Kitchener a cash in lieu contribution for park dedication equal to 5% of the value of the lands to be severed. The Committee considered the comments of the Region of Waterloo Planning Housing & Community Services, dated March 3, 2005, advising they have no objections to this application provided the owner prepares a Noise Study for the severed parcel, to the satisfaction of the Regional Commission of Planning, Housing and Community Services, to indicate to the Regional Municipality of Waterloo methods used to abate traffic noise from Ottawa Street and Fischer- Hallman Road for the severed property and if necessary, shall enter into an agreement with the City of Kitchener to provide for implementation of the approved noise study attenuation measures prior to final approval. Mr. Hanbidge addressed the Committee in response to the conditions of approval recommended by the City and the Region. He stated he does not agree with paying the requested parkland COMMITTEE OF ADJUSTMENT 54 MARCH 8, 2005 2. Submission No.: B 2005-012 (Cont'd) dedication or completing a noise study, as the proposed purchaser intends to convert the dwelling into a dental clinic. He stated the fees and levies will be paid at the time of rezoning. Further, he stated the Region's noise study would be redundant, and the parkland dedication was paid the last time this property was severed. In response to Mr. Hanbidge's comments, Mr. Sloan stated that if the applicant can prove the parkland dedication was paid through a previous application, it would not be required a second time. Mr. Sloan agreed with Mr. Hanbidge that the Region's requested noise study should not be required, as this property is already developed. With respect to the change of use to a dental clinic, Mr. Sloan advised staff comments were submitted based on the information contained in the application as submitted, which mentioned nothing about changing the use of the property to a dental clinic. As a change of use is proposed, this application may be premature, as a rezoning of the property would be required. There should at least be preliminary discussions between the applicant and the Region with respect to access to and from this regional road. He recommended consideration of the application be deferred for this purpose. If the Region is not supportive of the proposed access, a zone change and site plan will be required prior to this application being considered, and the configuration of the severed parcel may have to change. It was generally agreed by all parties that consideration of this application be tentatively deferred to the Committee of Adjustment meeting scheduled for April 12, 2005, provided the applicant submits revised comments from the Region by March 21,2005. Submission No.: Applicant: Property Location: Legal Description: B 2005-013 45 Victoria Street Limited 45 Victoria Street North Lots 60, 61 and 62, Registered Plan 374, being Parts 1,3, 4, and 5, Reference Plan 58R-14293, and Part Lots 56, 57, 58, 59, 111,112, 113, 115, 116 and 117, Registered Plan 374 and Part of Lane, Registered Plan 374, being Parts 2, 6, 7, 8, 9, 10 and 12, Reference Plan 58R-14293 and - Submission No.: Applicant: Property Location: Legal Description: B 2005-014 410 King Properties Limited 410 King Street West Lot 118 and Part Lots 56, 57, 58, 59, 110, 111, 112, 113, 114, 115, 116, 117 & 119, Registered Plan 374, and Part of Lane, Registered Plan 374, bein.q Part 11, Reference Plan 58R-14293 Appearances: In Support: Ms. A. Marchildon Mr. T. Boutilier Contra: None Written Submissions: None The Committee was advised that the applicant requests a consent for lease greater than 21 years for use of a visitor parking area, and an easement for access to this parking, on 45 Victoria Street North for use of the proposed development at 410 King Street West. The Committee was also advised that the applicant has applied for a consent to divide the land at 410 King Street West into two separate parcels. The severed land would have frontage of 63.45 m (208.16 ft) at King Street and an area of approximately 0.79 ha. The severed land currently contain a portion of a vacant building (previous Kaufman Footwear) proposed to be reused for residential condominiums. The retained land would have frontage of 69.97 m (229.56 ft) on King Street and a lot area of approximately 0.45 ha. The portion of the vacant building on the retained land is proposed to be reused for office/commercial purposes. COMMITTEE OF ADJUSTMENT 55 MARCH 8, 2005 3. Submission No.: B 2005-013 & B 2005-014 (Cont'd) The Committee noted the report of the Development & Technical Services Department, dated February 23, 2005, advising the overall purpose of these applications is to help facilitate the renovation and re-use of the presently vacant former manufacturing facility for a mixed use development. The subject property is located on the north-east corner of King Street West and Victoria Street North in a portion of the Kitchener Downtown area known as the Warehouse District. The former Kaufman Footwear Company manufacturing facility, now vacant, is situated on 410 King Street West and a portion of the facility's parking area is located on 45 Victoria Street North. The Kaufman building is designated under Part IV of the Ontario Heritage Act.. The Committee of Adjustment has previously approved a stratified consent of the subject site (B2003-014 & B2003- 015). The applicant proposes a major renovation of the property for multiple residential use, office and commercial uses. Multiple residential use, consisting of 114 units, is proposed for the southern portion of the building, situated closer to Francis Street. An acknowledged Record of Site Condition (RSC) has been received by the City and Region for this portion of the building. The northern portion of the building, situated closer to Victoria Street, will be used for future office and/or commercial use. 45 Victoria Street North will continue to be used for parking and access purposes for the retained lands. All the lands (410 King Street West and 45 Victoria North) are subject to a current Site Plan Application. Site Plan Approval is awaiting the approval of a current Zone Change Application. The current Zone Change Application ZC2003/01/K/TB will be presented to the Development and Technical Services Committee on March 7, 2005. The Zone Change will apply to only that portion of 410 King Street West for which the City has received an RSC. For that portion, the purpose of the Zone Change is to: · lift the existing "9H" Holding Provision (9H) to permit multiple residential uses on 410 King Street West; · allow for ground floor residential use; and · allow some encroachment of parking within the 3 metre Francis Street set back. Multiple residential use is a permitted use on these lands, but is restricted by the "H" Holding Provision. Bylaw 85-1 stipulates that the "H" may be lifted when the following conditions have been met: The City is in receipt of a letter from the Ministry of the Environment (now delegated to the Region of Waterloo) advising that the Ministry (Region) is satisfied with allowing residential use, having considered the potential adverse environmental condition or constraints caused by adjacent industrial uses, transportation corridors and site decommissioning requirements; ii) The industrial processes permitted by subsection 138.(a) of Appendix "C" cease to exist, and have been deleted by final approval of an amendment to this by-law; and iii) The holding symbol affecting these lands has been removed by by-law. The requirements of ii) above have now been satisfied since the manufacturing use has ceased to exist and the by-law to prohibit manufacturing uses on the property was deleted from By-law 85-1 by By-law 2002-177, approved by City Council on September 16, 2002. The Technical Reports required by i) above were submitted to the City and the Region of Waterloo on January 15, 2003. The Region, on behalf of MOE, have indicated their support for the lifting the Holding Provision subject to the receipt of an RSC for the retained lot and the implementation of the recommended measures of the approved Technical Studies. The applicant's request for easement for right-of-way and long-term lease of parking spaces on 45 Victoria Street North, in favour of the severed land in Submission No. B 2005-014, is supported by Staff to ensure that the residential component of the site has access to additional COMMITTEE OF ADJUSTMENT 56 MARCH 8, 2005 3. Submission No.: B 2005-013 & B 2005-014 (Cont'd) visitor parking spaces. Consent applications B2003-014 & B2003-015, pertain to these lands and were dealt with by the Committee of Adjustment on March 18, 2003. The severance conditions applied at that time regarding requirements for site decommissioning, building/grading, noise studies, and traffic noise warning clauses, were subsequently incorporated into an Agreement with the City of Kitchener, and those Agreements have been registered on title. In considering the Planning Act tests for the subdivision of land, the resultant lots are suitable for the purposes for which they are to be subdivided; are adequately serviced; and are compatible with the surrounding area. Staff have considered all other matters concerning the current Consent applications, and the requirements of the related applications. Staff are prepared to recommend approval of the two applications. The Planning Division recommends that the Consent Applications B2005-013 & 014 be approved, subject to the following conditions: That satisfactory arrangements be made with the City of Kitchener for the payment of any outstanding municipal propriety taxes and/or improvement charges. That the owners of 404 King Street West, and 45 Victoria Street North enter into an agreement, to be approved by the City Solicitor, which will ensure that rights-of-way for access and parking are maintained in perpetuity, and provide confirmation that said agreement has been registered against the title of both properties. 3. Final approval of Zone Change 03/01/K/TB. The Committee considered the comments of the Region of Waterloo Planning, Housing & Community Services, dated March 3, 2005, advising they have no concerns with respect to Submission No.'s B 2005-013 and B 2005-014. The Committee considered the comments of Kitchener-Wilmot Hydro Inc., dated February 28, 2005, requesting arrangements be made for servicing / re-servicing the severed and/or retained lands, including any necessary easements. Mr. T. Boutilier, Planner, advised the Committee the City's Development and Technical Services Committee approved the zone change last evening, the purpose of which is to lift the holding provision on the parcel of land to be severed. Those lands still requiring a Record of Site Condition have not been included in the zone change. The noise warning clauses and traffic study required by the Region have already been completed. Further, the site plan for these lands can be approved mid-April once the zone change and these Applications for Consent are final. The Chair questioned whether there is a health risk for the residential use of the property. Mr. Boutilier advised a Record of Site Condition has been signed by the consultant and the property owner. He also advised the contaminant is naptha which was used in the former manufacturing process. There is a pump pulling all the naptha from the residential site. He explained naptha is a liquid and floats on water, so it is easily captured. The Chair questioned whether there is a need to make future purchasers aware of the contamination, and whether there is a form of agreement which would hold the City and this Committee harmless. Ms. Marchildon stated that purchasers will be made aware of the contamination by way of disclosure in the condominium declaration. She expected that a Record of Site Condition will be submitted within the next 60 days for the retained land. Also, the pumping at 45 Victoria Street North is one year ahead of schedule and is expected to be ready by this fall. The Chair advised this Committee will require an agreement which will hold the City harmless. COMMITTEE OF ADJUSTMENT 57 MARCH 8, 2005 3. Submission No.: B 2005-013 & B 2005-014 (Cont'd) Submission No. B 2005-013 Moved by Mr. B. Isaac Seconded by Mr. D. Cybalski That the application of 45 Victoria Street Limited requesting permission for a lease in excess of 21 years for a visitor parking area for use by the proposed residential condominium development at 410 King Street West, and an easement to allow access to this parking, on Part Lots 112, 115, 116 and 117, Registered Plan 374 (lease)and on Part Lots 112, 115, 115 & 117, Registered Plan 374, and Lots 23 & 79, Streets & Lanes (easement), 45 Victoria Street North, Kitchener, Ontario, BE GRANTED, subject to conditions: That the owners shall make satisfactory arrangements with the City of Kitchener for the payment of any outstanding municipal propriety taxes and/or improvement charges. That the owners of 404 King Street West, (the land to be severed in Submission No. B 2005-014) and 45 Victoria Street North shall enter into an agreement, to be approved by the City Solicitor, which will ensure that rights-of-way for access and parking are maintained in perpetuity, and provide confirmation that said agreement has been registered against the title of both properties. 3. That the owners shall receive final approval of Zone Change 03/01/K/TB. That the owner shall enter into an agreement with the City of Kitchener, to be prepared by and satisfactory to the City Solicitor, which holds the City harmless with respect to any liability relating to adjacent lands which are known or suspected to be contaminated. That the owner shall make all necessary arrangements with Kitchener-Wilmot Hydro Inc., including granting any necessary easements, for the provision of electrical re-servicing and/or servicing of the lands to be severed and/or retained. It is the opinion of this Committee that: A plan of subdivision is not necessary for the proper and orderly development of the municipality. The requirements of the Zoning By-law are being maintained on the severed lands and the retained lands. 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 March 8, 2007. Carried Submission No. B 2005-014 Moved by Mr. B. Isaac Seconded by Mr. D. Cybalski That the application of 410 King Properties Limited requesting permission to convey a parcel of land having frontage on King Street of 63.45 m (208.16 ft.) and an area of approximately 0.79 ha, on Lot 118 & Part Lots 111 to 117 & 119, Registered Plan 374, and Part Lot 123, Streets & Lanes, being Parts 3, 4, 5, 6, 7 & 14, Reference Plan 58R-14771, 410 (404) King Street West, Kitchener, Ontario, BE GRANTED, subject to conditions: COMMITTEE OF ADJUSTMENT 58 MARCH 8, 2005 3. Submission No.: B 2005-013 & B 2005-014 (Cont'd) That the owners shall make satisfactory arrangements with the City of Kitchener for the payment of any outstanding municipal propriety taxes and/or improvement charges. That the owners of 404 King Street West, (land to be severed) and 45 Victoria Street North shall enter into an agreement, to be approved by the City Solicitor, which will ensure that rights-of-way for access and parking are maintained in perpetuity, and provide confirmation that said agreement has been registered against the title of both properties. 3. That the owners shall receive final approval of Zone Change 03/01/K/TB. That the owner shall enter into an agreement with the City of Kitchener, to be prepared by and satisfactory to the City Solicitor, which holds the City harmless with respect to any liability relating to adjacent lands which are known or suspected to be contaminated. That the owner shall make all necessary arrangements with Kitchener-Wilmot Hydro Inc., including granting any necessary easements, for the provision of electrical re-servicing and/or servicing of the lands to be severed and/or retained. It is the opinion of this Committee that: A plan of subdivision is not necessary for the proper and orderly development of the municipality. The requirements of the Zoning By-law are being maintained on the severed lands and the retained lands. 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 March 8, 2007. Carried ADJOURNMENT On motion, the meeting adjourned at 12:20 p.m. Dated at the City of Kitchener this 8th day of March, 2005. Dianne H. Gilchrist Secretary-Treasurer Committee of Adjustment