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HomeMy WebLinkAboutAdjustment - 2008-02-19COMMITTEE OF ADJUSTMENT FOR THE CITY OF KITCHENER MINUTES OF THE REGULAR MEETING HELD FEBRUARY 19, 200$ MEMBERS PRESENT: Messers M. Hiscott, A. Head & B. McColl OFFICIALS PRESENT: Ms. J. von Westerholt, Senior Planner, Mr. R. Parent, Traffic Analyst, Ms. D. Gilchrist, Secretary-Treasurer, Ms. D. Hartleib, Administrative Clerk. Mr. M. Hiscott, Vice Chair, called this meeting to order at 9:35 a.m. MINUTES Moved by Mr. B. McColl Seconded by Mr. A. Head That the minutes of the regular meeting of the Committee of Adjustment, of January 15, 2008, as mailed to the members, be accepted. Carried UNFINSHED BUSINESS MINOR VARIANCE 1. Submission No.: A 2007-027 Applicant: Adam & Joan Scott Property Location: 3C - 350 Doon Valley Drive Legal Description: Unit 58, Level 1, Waterloo Standard Condominium Plan No. 369 - and - Submission No.: A 2007-028 Applicant: Janice Penlington Property Location: 5C - 350 Doon Valley Drive Legal Description: Unit 60, Level 1, Waterloo Standard Condominium Plan No. 369 - and - Submission No.: A 2007-029 Applicant: Doug & Ada Craniford Property Location: 10C - 350 Doon Valley Drive Legal Description: Unit 53, Level 1, Waterloo Standard Condomini Plan No. 369 - and - Submission No.: A 2007-030 Applicant: Peter & Alice Hambly Property Location: 12C - 350 Doon Valley Drive Legal Description: Unit 55, Level 1, Waterloo Standard Condominium Plan No. 369 Appearances: In Support: M. Code COMMITTEE OF ADJUSTMENT 12 FEBRUARY 19, 200$ 1. Submission No.: A 2007-027 - A 2007-030 tCont'd) Contra: None Written Submissions: None The Committee was advised that through Submission No. A 2007-027 the applicant is requesting legalization of a deck and stairs having a setback of 2.52m (8.26') from the top of the slope rather than the required 4m (13.12'); through Submission No. A 2007- 028 the applicant is requesting legalization of a deck and stairs having a setback of 2.45m (8') from the top of the slope rather than the required 4m (13.12'); through Submission No. A 2007-029 the applicant is requesting legalization of a deck and stairs having a setback of 1.51 m (4.95') from the top of the slope rather than the required 4m (13.12'); and through Submission No. A 2007-030 the applicant is requesting legalization of a deck and stairs having a setback of 2m (6.56') from the top of the slope rather than the required 4m (13.12'). The Committee considered the report of the Development & Technical Services Department, dated December 18, 2007, in which they advise that the subject properties include Units 3C, 5C, 10C and 12C on lands municipally known as 350 Doon Valley Drive, and are located on the north side of the street. Each of the units contain a residential semi-detached unit and all contain a deck which encroaches into the 4 metre top of bank setback. The applicants have requested the following variances: • Scott Unit 3C- a reduction in the setback from the top of bank from 4.0 metres 2.28 metres to allow existing deck and stairs; • Penlington Unit 5C- a reduction in the setback from the top of bank from 4.0 metres to 1.96 metres to allow existing deck and stairs; • Craniford Unit 10C- a reduction in the setback from the top of bank from 4.0 metres to 1.16 metres to allow the existing deck and stairs; • Hambly Unit 12 C- a reduction in the setback from the top of bank from 4.0 metres to 0.00 metres to allow the existing deck and stairs and a reduction in the setback from top of bank for buildings from 6.0 metres to 4.73 metres. The subject lands are designated `Low Rise Residential' in the City's Official Plan and are zoned `Residential Zone 6 (R-6) with Special Regulation 330 and Special Use 279, according to Zoning By-law 85-1. Both the designation in the Official Plan and the zoning of the subject property permit the residential use to be located on the subject lands. The subject property and residential use thereof meets the intent of the Official Plan, which is to allow residential uses to occur on these lands. With respect to intent of the Zoning By-law, the subject lands are currently zoned R-6 Residential Six, which allows residential uses. In addition, the 330 R Special Regulation affecting these lands is intended to more specifically define the use of the subject lands for a multiple unit development consisting of semi-detached units in clusters of no more than 8 units for a total of 98 units on the entire site. Subsection h) of the Special Regulation indicates that a minimum setback of any structure including decks and accessory buildings to the top of bank, whether actual or Grand Valley Slope, which ever is the closer, shall be 4.0 metres. In this regard, it would appear that the 4 properties listed above, have encroached into this setback to varying degrees with the construction of their decks, steps and/ or gazebos. With respect to the criteria for granting a minor variance in Section 45(1) of the Planning Act, R.S.O. 1990, c.P.13, the use of subject lands conforms to the City's Official Plan. The residential use is consistent with the R-6 zone. However, the setback from the top of bank has been encroached as indicated above for the four units which have applied to the Committee for relief from this encroachment in order to recognize the location of the existing decks. COMMITTEE OF ADJUSTMENT 13 FEBRUARY 19, 200$ 1. Submission No.: A 2007-027 - A 2007-030 tCont'd) The intent of the Zoning By-law was to establish a setback from the top of bank in order to maintain the integrity of the slope by minimizing impacts there on from development and so as not to impede access to these lands as they are regulated by the Grand River Conservation Authority. Staff has reviewed the back ground information provided by Mr. Code and has also reviewed site plan files for the Condominium project. It would appear that the decks or gazebos were constructed in the absence of building permits, which are only required if the structure exceeds 0.6 metres in height. In addition, in consultation with the residents and through a site inspection to the property, it was ascertained by staff that a fence delineating the setback was installed only for the construction period. Staff has consulted the Grand River Conservation Authority on these requested variances. Any variances to the setback area from the top of bank should only be considered in consult with the GRCA as this is a regulated area of the Grand River Conservation Authority. During the approval of the site plan and the plan of condominium process, it was agreed that the Provincial erosion access allowance and the GRCA structural setback would be addressed if the house construction was 6 metres away from the long-term stable top of bank and if the deck construction was 4 metres away from the long-term stable top of bank. The Provincial erosion access allowance ensures that development is set back far enough from the top of the bank for access during emergencies. The GRCA structural setback ensures that structures, grade changes, vegetation removal, bank overloading and interference with drainage are restricted adjacent to a steep slope. At the time, the GRCA agreed to the 4 metres setback, despite its concern about the effects of occupants' activities on the long-term stability of the slope. The GRCA supported the development of residential units this close to the top of the slope based on assurance that the Zoning Bylaw would regulate occupants' activities such as fill placement, vegetation removal and that the construction of structures would be controlled and would be outside of the 4.0 metres setback . To ensure that future landowners were aware of these restrictions, very specific wording was recommended by the GRCA and incorporated by the City of Kitchener into the Zoning By-law tBy-law 2000-105). The site plan also clearly illustrated the development setback limits and includes a note stating that "no accessory structures including retaining walls, patios, decks or privacy screens to be located within 4.00 m of top of bank setback. No alteration of existing grading, placement of fill or removal of natural vegetation permitted on the slope over the lands affected by the structural setback". In addition, the GRCA also requested that the City of Kitchener include the above noted restrictions in their agreement with the developer under Section 41 of the Planning Act. The City of Kitchener and the developer were also to consider other options to notify future occupants of the restrictions, such as inserting a clause in the offer to purchase agreement and in the Condominium agreement. Further, in order to avoid requests for amendments to the development setbacks in the future, GRCA staff recommended that an easement be registered in the favour of the City of Kitchener over the lands affected by the structural setback. City staff in a March 15, 2000 report prepared for the zoning application considered this request. The report stated that at that time "Staff considered an easement was not necessary in this instance given the protection offered by the proposed zoning by-law and further controls available through the approval of a site plan and development agreement". In turn, a conservation easement was not established at the time. Through the review of the above noted Minor Variance applications, it has become apparent with that there were three different versions of the line delineating the stable top of bank and its associated setback. Unfortunately, the differences were not flagged during the Condominium process. These variations have resulted in confusion with all COMMITTEE OF ADJUSTMENT 14 FEBRUARY 19, 200$ 1. Submission No.: A 2007-027 - A 2007-030 tCont'd) parties as to which line is the appropriate delineation of the stable top of bank and setback. The GRCA has indicated that they would be able to allow the encroachments as they exist today for the affected properties, which recognizes the existing encroachment so as not to cause undue hardship to the owners and as this site is being treated as a unique situation. In order to prohibit further encroachments it was suggested that the City and/or the Condo Corporation re-instate the fence or bollards which was agreed upon by all parties during the development process, to clearly demark and identify the 4 metre setback for the stable top of bank. In addition the GRCA requested that the applicants acknowledge that should there be a slope failure, it will be at the cost of the current residents for the removal/replacement of any structure(s) within the 4 metre erosions access allowance and would require GRCA access to the affected lands. The Committee considered the report of the Grand River Conservation Authority, dated February 6, 2008, in which they advise that, based on the information submitted by the agent (Mel Code) and through extensive discussions the City of Kitchener staff, it has become apparent that there has been a series of plans (Zoning By-law, Site Plan and Condominium Plan) depicting different lines for the stable top of bank and setback for these properties. As a result of this, accessory structures have been constructed within the setback that was accepted and approved by the GRCA through the zoning process. Based on the information provided in the geo-technical report (dated November 1999, completed by PetoMacCallum Ltd.) and the letter report (dated January 20, 2000, completed by PetoMacCallum Ltd.) it is evident that slope erosion is not a concern for the stability of the slope. At this time, the GRCA will not object should the applications be approved. To provide clarity for future applicants/owners, we request that the City/Condo Corporation reinstating the fence or bollards, which was agreed upon by all parties during the development process, to identify the 4 metre setback for the stable top of bank. It is our understanding that the applicants acknowledge that should there be a slope failure, it will be at the cost of the current residents for the removal/replacement of any structure(s) within the 4 metre erosions access allowance. Mr. Code advised that the only substantive warning put in place to indicate the top of bank on this property was a farm fence on poles, which was removed by the developer before these units were sold, and the owners did not receive any warning from the developer of this required setback. Nothing was written into the condominium documents or into the offers of purchase and sale to indicate the required set back from top of bank. Mr. Code stated that the developer and their agents provided a new top of bank line which was different than the original line. However, none of the correspondence that he has seen provided this new information to the City of Kitchener or the Grand River Conservation Authority. Because they did not provide the new top of bank line to the City, the new line was not included in the City's by-law. He advised that he has spent 2 years trying to reconstruct what happened. Mr. Code advised that 3 top of bank lines have been created: the first line was established by himself and MTE consultants, the second line was established by Metz/Fedy, and the third line was established by the architect, and the three lines have caused great confusion. Mr. Code advised that in addition to the 4 applications before the Committee today, there are 5 other homes that contravene this by-law. There is also a property which has a deck and gazebo over the setback line. In September of 2003, the owners paid a surveyor to determine the top of bank line, as they found it, and it was based on that survey that they were able to get a building permit for the deck and gazebo. He recommended that a by-law amendment be undertaken by the City of Kitchener to rectify this situation. COMMITTEE OF ADJUSTMENT 15 FEBRUARY 19, 200$ 1. Submission No.: A 2007-027 - A 2007-030 tCont'd) He asked that this Committee waive the fees paid for these applications because of the confusing situation which has been created. He also objected to the conditions recommended by staff to require another survey to show the top of bank line, the demarcation of the line with bollards, and the notification of the other owners, all to be the responsibility of the condominium corporation. He noted that these 4 owners do not have control over the condominium corporation, and are not in a position to fulfil these requested conditions. Ms. vonWesterholt advised that there has been a lot of confusion, as indicated by Mr. Code, and many of these owners never went through the building permit process for their decks. Staff would like to resolve this confusion. The three lines as identified by Mr. Code, that were determine at 3 different stages of the development process, and preparation of anew survey would avoid more confusion as to the location of the top of bank. Ms. vonWesterholt showed the Committee photographs of the subject property which were taken last May when she, Mr. Code and staff from the Grand River Conservation Authority (GRCA) visited this site. She stated that the decisions that the Committee comes to today will affect other units on this property; as there are 3 top of bank lines that have been established and no one can agree on which is the correct line. She asked that staff's recommended conditions be imposed by the Committee, then the line can be determined by survey and it will be recognized relative to the by-law. Further, she was of the opinion that installation of bollards at the top of bank line will be less intrusive than a fence. With respect to the requested conditions for the survey and bollards, Mr. Code stated that these property owners had no control over this situation. Further, this matter should be referred to the developer who caused this problem. Mr. McColl suggested approving these applications with staff's recommended conditions, and to reimburse these applicants for the Minor Variance application fees they paid. The Committee members debated whether staff's recommended conditions 5, 6 and 7 should be imposed and whether the fees should be refunded. Upon questioning Mr. Code advised that the difference between the first 2 lines that were established is between 0.5m and 2m. He advised that if the second line is accepted, the zoning by-law will have to be amended to accept that line. Further demarcation of this line on the site could be done quite easily. He stated that he is in agreement with the essence of what City staff wants and he has volunteered his time to assist. He also advised that his line was established in the year 2000 and it was agreed to by the City and the GRCA, and it was the basis for the by-law. The second line was established without the knowledge of City staff. Ms. vonWesterholt stated that with Mr. Code's assistance, staff could meet with all 18 property owners whose properties abut the top of bank, to establish the line. Mr. Code responded that he believes the situation can be resolved without another survey. He advised that the Metz/Fedy line is his preference; but it is not the line referred to in the by-law. Mr. Head recommended that the Metz/Fedy line be accepted as the top of bank line, and the setbacks be approved. He then recommended that the City of Kitchener undertake an amendment to the zoning by-law relative to the Metz/Fedy line. COMMITTEE OF ADJUSTMENT 16 FEBRUARY 19, 200$ Submission No.: A 2007-027 - A 2007-030 tCont'd) Submission No. A 2007-027 Moved by Mr. B. McColl Seconded by Mr. A. Head That the application of Adam & Joan Scott requesting legalization of an existing deck and stairs having a setback of 2.28m (9.18') from the top of the bank as established by "Metz-Fedy", rather than the required 4m (13.12'), on Unit 58, Level 1, Waterloo Standard Condominium Plan No. 369, 3C - 350 Doon Valley Drive, Kitchener Ontario, BE APPROVED. 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. 3. The general intent and purpose of the City of Kitchener Zoning By-law and Municipal Plan is being maintained on the subject property. Carried Submission No. A 2007-02$ Moved by Mr. B. McColl Seconded by Mr. A. Head That the application of Janice Penlington requesting legalization of an existing deck and stairs located 1.96m (6.43') from the top of the bank as established by "Metz-Fedy", rather than the required 4m (13.12'), on Unit 60, Level 1, Waterloo Standard Condominium Plan No. 369, 5C - 350 Doon Valley Drive, Kitchener Ontario, BE APPROVED. 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. 3. The general intent and purpose of the City of Kitchener Zoning By-law and Municipal Plan is being maintained on the subject property. Carried Submission No. A 2007-029 Moved by Mr. B. McColl Seconded by Mr. A. Head That the application of Doug & Ada Craniford requesting legalization of an existing deck and stairs located 1.16m (3.8') from the top of the bank as established by "Metz-Fedy", rather than the required 4m (13.12'), Unit 53, Level 1, Waterloo Standard Condominium Plan No. 369, 10C - 350 Doon Valley Drive, Kitchener Ontario, BE APPROVED. 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. COMMITTEE OF ADJUSTMENT 17 FEBRUARY 19, 200$ 1. Submission No.: A 2007-027 - A 2007-030 tCont'd) Submission No.: A 2007-029 tCont'd) 3. The general intent and purpose of the City of Kitchener Zoning By-law and Municipal Plan is being maintained on the subject property. Carried Submission No. A 2007-030 Moved by Mr. B. McColl Seconded by Mr. A. Head That the application of Peter & Alice Hambly requesting legalization of an existing deck and stairs located Om from the top of the bank as established by "Metz-Fedy", rather than the required 4m (13.12') and a building located 4.73 (15.51') from the top of bank as established by "Metz-Fedy", rather than the required 6m (19.68'), on Unit 55, Level 1, Waterloo Standard Condominium Plan No. 369, 12C - 350 Doon Valley Drive, Kitchener Ontario, BE APPROVED. 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. 3. The general intent and purpose of the City of Kitchener Zoning By-law and Municipal Plan is being maintained on the subject property. Carried Moved by Mr. B. McColl Seconded by Mr. A. Head That the application fees for Submission No.'s A 2007-027 to A 2007-030, inclusive, be refunded. Carried 2. Submission No.: A 2007-101 Applicant: Sorin Boeriu Property Location: 2269 Hidden Valley Crescent Legal Description: Lot 3, Registered Plan 1740 Appearances: In Support: None Contra: None Written Submissions: None Moved by Mr. A. Head Seconded by Mr. B. McColl That the application of Sorin Boeriu requesting permission to construct a single family dwelling to have a height of 11.67m (38.28') rather than the permitted 10.5m (34.44'), on Lot 3, Registered 1740, 2269 Hidden Valley Crescent, Kitchener Ontario, BE DISMISSED, as no one attended the Committee of Adjustment hearing of December 11, 2007 or February 19, 2008, in support of this application. Carried COMMITTEE OF ADJUSTMENT 18 FEBRUARY 19, 200$ CONSENT 1. Submission No.: B 2007-033 Applicant: Holy Trinity Serbian Orthodox Church Property Location: 660-700 Fisher Hallman Road Legal Description: Part Lot 47, German Company Tract, being Parts 1 & 2, Reference Plan 58R-13049 Appearances: In Support: Z. Marbovic B. Takich F. Constantino Contra: None Written Submissions: None The Committee was advised that the applicant requesting permission to sever a parcel of land having a width along Ottawa Street of approximately 30.48m (100'), and a depth along Fischer-Hallman Road of approximately 35.96m (118'). The use of the property is a one storey house and shed. The retained land will have a width on Fischer-Hallman Road of 207.8m (681.75') and an area of 12,658.23 sq. m. (136,256.51 sq. ft.), and will be used for a church and church hall. The Committee considered the report of the Development & Technical Services Department, dated October 9, 2007, in which they advise that 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 1.26 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. A previous severance application, B2005-012, was brought before the Committee of Adjustment in March 2005. At that time, it was deferred pending the outcome of a traffic study to be undertaken by the Region of Waterloo in the Ottawa Street South / Fischer Hallman Road area. Recent discussions with Regional staff indicate that the study has not been finalized as yet and there are still outstanding issues. The lands to be severed are zoned Residential Three Zone (R-3) and are designated Low Rise Residential in the Official Plan. The retained lands are split zoned Residential Three Zone (R-3) and Neighbourhood Institutional Zone (I-1) with Special Regulation 79R. 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 recommends approval of this application as it is for the purpose of severing an existing, municipally serviced residential dwelling. The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated February 4, 2008, advising that in addition to their comments from October 9, 2007, staff wishes to provide the following as additional comments: COMMITTEE OF ADJUSTMENT 19 FEBRUARY 19, 200$ 1. Submission No.: B 2007-033 tCont'd) The Region has further discussed the issue regarding the creation of the right-of-way across the abutting lands to the south for future access to this property. The intent was that as such time as the subject property redevelops into a more intense use, access to these lands, in addition to the abutting lands would be gained through this right-of-way to a more appropriate access to Fischer-Hallman Road. The Region has determined that this right-of-way is longer required as a condition of this application and for the proposed use of the lands as a single family dwelling. It is also understood that under the current R-3 zoning, a small home business could be included with restrictions on use and number of parking spaces. The Region has no objection to the use of the existing access to Fischer-Hallman Road under the current zoning. The applicant should be made aware that the Region will oppose any future development application that proposes a change in zoning that would allow intensification of this lot with the existing access configuration. In addition, staff will review any future development applications for the abutting lands to the south to determine the acceptability of access to Fischer-Hallman Road. A noise study will required to assess the impact of transportation noise from both Fischer-Hallman Road (Regional Road No. 58) and Ottawa Street (Regional Road No. 4) on the existing residence at 660 Fischer-Hallman Road. Ms. vonWesterholt advised that staff was contacted by the prospective purchasers for the severed land, advising that they intend to use this property for business purposes, and not as a residence. The City would not support the use of this property as commercial premises, and the Region has advised that they would not support this application if the intended use is anything other than residential. She advised that the City's desire for this area is that smaller properties be consolidated rather than having consolidations being dismantled. The applicant's representatives advised that the church purchased this land as residential and they now have a property that contains 2 houses, which is illegal, and they are in a position where they have to sell. They advised that the property is zoned R-3 and the purchaser will continue a residential use. Ms. vonWesterholt responded that the proposed purchaser advised staff that they want to use this property as a free standing hair salon, which is not a permitted use. Mr. Constantinou addressed the Committee advising that his brother intends to purchase this property and use it as a residence with a home business of a hair salon, as permitted in the zoning by-law. Ms. vonWesterholt requested an additional condition that would require this severed land to be consolidated with abutting lands in the future if it is ever sold. The applicant's representatives advised that they are opposed to this new condition and the Region's request for a noise study, as everyone knows this intersection is noisy. Moved by Mr. B. McColl Seconded by Mr. A. Head That the application of Holy Trinity Serbian Orthodox Church requesting permission to convey a parcel of land having a width along Ottawa Street of approximately 30.48m (100'), a depth along Fischer-Hallman Road of approximately 35.96m (118') and having an area of 0.13 ha (0.3211 ac.), on Part Lot 47, German Company Tract, being Parts 1 & 2, Reference Plan 58R-13049, 660 Fischer-Hallman Road, Kitchener Ontario, BE GRANTED, with the following conditions: 1. That the owner shall make satisfactory arrangements to the City of Kitchener for the payment of any outstanding Municipal property taxes and/or local improvement charges. COMMITTEE OF ADJUSTMENT 20 FEBRUARY 19, 200$ Submission No.: B 2007-033 tCont'd) 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 two full size paper copies of the plan(s). The digital file must be submitted according to the City of Kitchener's Digital Submission Standards to the satisfaction of the City's Mapping Technologist. 3. That the owner shall make arrangements satisfactory to the City's Engineering Services, for the installation of all new service connections to the severed lands and/or retained lands. 4. That the owner shall pay to the City of Kitchener acash-in-lieu contribution for park dedication equal to 5% of the value of the lands to be severed. 5. That the owner prepare a Noise Study for the severed lands (660 Fischer- Hallman Road), to the satisfaction of the Regional Commissioner of Planning, Housing and Community Services, to indicate to the Regional Municipality of Waterloo any mitigation measures which may be necessary due to transportation noise from Fischer-Hallman Road (Regional Road No. 58) and Ottawa Street (Regional Road No. 4) and if necessary, shall enter into an agreement with the Regional Municipality of Waterloo to provide for implementation of the approved noise study attenuation measures prior to final approval. 6. That the owner shall enter into a modified subdivision agreement with the City of Kitchener to be prepared by the City Solicitor and registered on title of both severed and retained lands which shall include the following condition: a) That no building permits shall be issued for the expansion of buildings or the redevelopment of lands legally described as Part Lot 74, German Company Tract (municipally known as 660 Fischer-Hallman Road) and Part Lot 47, German Company Tract (municipally known as 700 Fischer- Hallman Road). The foregoing shall not prevent the issuance of building permits for internal renovations and improvements. 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 February 19, 2010. Carried 2. Submission Nos.: B 2008-001 Applicant: South Kitchener Holdings C\O Trammellcrow Company Property Location: 131 Goodrich Drive Legal Description: Part Lot 10, Plan 1524 and Lot 4 & Part Lot 3, Plan 1522 COMMITTEE OF ADJUSTMENT 21 FEBRUARY 19, 200$ 1. Submission No.: B 2008-001 tCont'd) Appearances: In Support: B. Green M. Fasken Contra: J. Redman E. D'Agostino Written Submissions: None Mr. D'Agostino advised the Committee that Mr. Redmond thought he had until March 18, 2008 to respond to this application. Mr. Redmond needs time to contact transportation consultants and engineer, and he is not ready to respond to this application today. The Secretary-Treasurer confirmed that at its January meeting, the Committee deferred consideration of this application to the meeting scheduled for March 18, 2008; however, it is not uncommon to bring an application back sooner if the issues for which the application was deferred have been resolved. Mr. Green advised that at the January meeting he submitted a written request to have this application deferred to this meeting. He advised that Mr. Redmond contacted him last week, and he spent 3 hours with him yesterday, providing the requested information. The applicant has been willing to provide Mr. Redmond with the information he requested. Mr. Green explained that it will be a hardship to his client to wait another month to have this application considered. Such a delay will hold up the site plan approval and building permits. Further, approval of this application will allow development of this site for its own use. Upon questioning by the Committee, Ms. vonWesterholt advised that March 18, 2008 was an arbitrary date that was chosen to allow time to resolve the issues. Mr. Fasken advised that deferral of this application at the January meeting was to allow time to respond to the Region's request for a Record of Site Condition; however, the staff member at the Region who wrote the report to this Committee did not realize that such a report had already been submitted to the Region. Further, Mr. Fasken noted that Mr. Green has already spent a considerable amount of time providing information requested by Mr. Redmond. Mr. Head recommended that in fairness to Mr. Redmond, consideration of this application should be deferred to the March meeting. Moved by Mr. Mr. A. Head Seconded by B. McColl That consideration of Submission No. B 2008-001 - 131 Goodrich Drive, be deferred to the Committee of Adjustment meeting scheduled for Tuesday March 18, 2008. Carried. This meeting recessed at 11:00 a.m. and reconvened 11:15 a.m. at with the following members present: Messrs. M. Hiscott, B. McColl & A. Head. COMMITTEE OF ADJUSTMENT 22 FEBRUARY 19, 200$ NEW BUSINESS MINOR VARIANCE 1. Submission Nos.: A 2008-003 Applicant: Christopher Valdez Property Location: 106 Water Street Legal Description: Lot 10 and Part Lots 6. 7 and 11. Registered Plan 389 Appearances: In Support: C. Valdez R. Valdez Contra: None Written Submissions: None The Committee was advised that the applicant requesting legalization of an existing triplex on a lot having a width of 13.7m (44.94') rather than the required 15m (49.21'), having a front yard setback of 1.6m (5.24') to the front porch, rather than the required 3m (9.84'), and a rear yard of 4m (13.1') rather than the required 7.5m (24.6'). The Committee considered the report of the Development & Technical Services Department, dated February 8, 2008, in which they advise that the subject property is located along Water Street North, close to the VIA Rail station. The building is currently being used as a triplex, and this application will legalize the existing setbacks and lot widths. The building was converted in the 1980s, and since then there have been several inquiries about possibly legalizing the building. A site visit by staff was made on January 25tH. The Official Plan designation is Mixed Used Corridor, under the Civic Centre Secondary Plan, and the zoning is Commercial Residential Three (CR-3) under By-law 85-1. The proposed use fora 3 unit multi-residential building is permitted by both the Official Plan and Zoning By-law. The applicant is requesting minor variance approval to legalize the existing building location for a multiple residential use to have a rear yard of 4.0 m (13.12 ft) rather than the required 7.5 m (24.61 ft), a front yard setback from Water Street North of 1.6 m (5.25 ft) rather than the required 3 m (9.84 ft), and a lot width of 13.7 m (44.95 ft) rather than the required 15 m (49.21 ft). 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 Official Plan and Zoning By-law for the following reasons. The intent of the Official Plan designation is to encourage the opportunity for residential redevelopment. The conversion of this building from a single detached dwelling to a multiple residential is in keeping with the intent of the both the Official Plan and Commercial Residential zoning. Single detached homes are not a permitted use for CR-3 zoning, so the variance will mean the property will be brought into conformity with the zoning bylaw. The variances are minor for the following reasons. The original building has existed since the 1930's, and the lot dimensions reflect the original building's situation rather than the current zoning. The front yard setback is needed to accommodate a closed in veranda which was previously used as a display windows for commercial purposes. The variances recognize an existing situation and no complaints or concerns have been received to date. COMMITTEE OF ADJUSTMENT 23 FEBRUARY 19, 200$ Submission No.: A 2007-003 tCont'd The variances are appropriate for the development and use of the land for the following reasons. The block that the building is situated in is characterized by a mix of housing types and commercial properties. Legalizing this multiple residential building would be in keeping with the mixed nature of the neighbourhood. There are possible issues with the parking layout. Planning staff is concerned about possible impacts of headlights shining into the neighbouring property with the current parking situation. Based on this concern, some type of screening may need to be installed in the rear yard. Detailed landscaping screening should be included as part of a site plan approval submission. The Committee considered the report of the Region of Waterloo Transportation Planner, dated February 11, 2008, advising that they have no concerns with this application. Mr. McColl noted the staff report in which the advise that the current parking situation may allow headlights to shine into the neighbouring property. He put forward a motion to approve this application subject to staff's recommendation and including resolving the problem of car headlights. Moved by Mr. B. McColl Seconded by Mr. A. Head That the application of Christopher Valdez requesting legalization of an existing triplex on a lot having a width of 13.7m (44.94') rather than the required 15m (49.21'), having a front yard setback of 1.6m (5.24') to the front porch, rather than the required 3m (9.84'), and a rear yard of 4m (13.1') rather than the required 7.5m (24.6'), on Lot 10 and Part Lots 6, 7 and 11, Registered Plan 389, 106 Water Street, Kitchener, Ontario, BE APPROVED, subject to the following condition: 1. That the owner shall submit, and receive approval of a site plan application from the City of Kitchener, which shall include among other things, eliminating the impact of vehicle headlights on the adjacent properties. 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. 3. The general intent and purpose of the City of Kitchener Zoning By-law and Municipal Plan is being maintained on the subject property. Carried 2. Submission Nos.: A 2008-004 Applicant: 1196425 Ontario Ltd. Property Location: 447 Frederick Street Legal Description: Lot 1 & 2, Plan 42 Appearances: In Support: S. Patterson Contra: None Written Submissions: None The Committee was adv ised that the applicant requesting permission to locate off-street parking within 1.5m (4.92') of a street line (Conestoga Expressway) rather than the required 3m (9.84'); to provide 29 off-street parking spaces for aretail/professional COMMITTEE OF ADJUSTMENT 24 FEBRUARY 19, 200$ 2. Submission No.: A 2007-004 tCont'd) office building rather than the required 30 spaces, and permission to provide a loading space measuring 2.6m (8.53') by 5.5m (18.04') rather than the required 3m (9.84') by 10.7m (35.1'). The Committee considered the report of the Development & Technical Services Department, dated January 8, 2008, in which they advise that the subject property is located at the corner of Frederick and Edna Streets, with the east side backing onto the Conestoga Expressway. The property is surrounded by Weber Park, several commercial buildings, and a neighbourhood shopping centre directly across Edna Street. The numbers 15 and 23 bus routes run along Frederick Street next to the site. The property is designated in the Official Plan (Central Frederick Neighbourhood Plan) as a Mixed Use Node with Community Shopping Centre Zone (C3) zoning and special provision 407R. The applicant is proposing to construct a four storey office building with ground floor retail, and the concurrent site plan application SP07/84/F/BB has been approved in principle. A site visit was made by staff on February 4, 2008. The applicant is requesting minor variance approval to allow parking to be located 1.5 m (4.9 ft) from the street line rather than 3.0 m (9.8 ft), to allow for 29 parking spaces rather than the required 30 spaces, and to have a loading space of 3.0 m by 5.5 m (9.8 ft by 18 ft) rather than 3.0 m by 10.7 m (9.8 ft by 35.1 ft). 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 Official Plan and Zoning By-law for the following reasons. The intent of the Official Plan designation is to allow for pedestrian-oriented, transit supportive development. The construction of this mixed-use, street oriented building, with reduced parking and a reduced loading zone is in keeping with the intent of the both the Official Plan and the Community Shopping Centre zoning. The variances are minor for the following reasons. The parking setback is from the Expressway rather than any immediately adjacent roadway. The highway surface is about 25 metres from the rear property line, and during the site plan process Ministry of Transportation has granted approval for a reduced setback from a required 14 m to the requested 1.5 m. There is only one less parking space required. Transportation planning had concerns with the originally proposed 2.6 m width for the loading space, but agreed that a 3.0 m width would be suitable, so the application was subsequently revised. The types of trucks using the loading space at this office building would likely be mail and delivery trucks rather than large transport trucks. The variances are appropriate for the development and use of the land for the following reasons. The area is proposed to be a mixed used node that is oriented toward the street, provides pedestrian connections to residential neighbourhoods, and is compatible with the surrounding low-rise residential areas. This building is at a key corner in the Central Frederick Neighbourhood and will provide a better sense of place in the area. The variances are needed to facilitate the orientation toward the street and allow the parcel to be developed given the restraints put on the property (expressway at the rear of the property and the setbacks and daylight triangles required). The Committee considered the report of the Region of Waterloo Transportation Planner, dated February 11, 2008, advising that they have no concerns with this application. The Committee considered the report of the Ministry of Transportation Regional Development Review Coordinator, dated February 11, 2008, advising that they have no issue with this application. Moved by Mr. B. McColl Seconded by Mr. A. Head COMMITTEE OF ADJUSTMENT 25 FEBRUARY 19, 200$ 2. Submission No.: A 2007-004 tCont'd) That the application of 1196425 Ontario Ltd. requesting permission to locate parking within 1.5m (4.92') of a street line (Conestoga Expressway) rather than the required 3m (9.84'); to provide 29 off-street parking spaces for aretail/professional office building rather than the required 30 spaces, and permission to provide a loading space measuring 3m (9.84') by 5.5m (18.04') rather than the required 3m (9.84') by 10.7m (35.1'), on Lot 1 & 2, Plan 42, 447 Frederick Street, Kitchener Ontario, BE APPROVED. 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. 3. The general intent and purpose of the City of Kitchener Zoning By-law and Municipal Plan is being maintained on the subject property. Carried 3. Submission Nos.: A 2008-005 Applicant: Fred's Equities Inc. Property Location: 539-541 King Street East Legal Description: Lot 85, Plan 303 Appearances: In Support: E. Wiens Contra: None Written Submissions: None The Committee was advised that the applicant requesting legalization of a building containing 4 dwelling units and an office, located on a lot having a width of 12m (39.3') rather than the required 16m (52.49'), having a right side yard of 0.03m (0.098') rather than the required 1.2m (3.93'), and legalization of 4off-street parking spaces rather than the required 5off-street parking spaces. The Committee considered the report of the Development & Technical Services Department, dated February 8, 2008, in which they advise that the subject property is located along King Street East, adjacent to the recently built Betzner Brownstones. The building is mixed use, with four dwelling units and an office use. The existing uses have existed since 1989. A site visit by staff was made on February 4, 2008. The Official Plan designation is Mixed Used Corridor, under the King Street East Secondary Plan, and the zoning is Commercial Residential Four (CR-4) under By-law 85-1. The proposed multiple dwelling and office uses are permitted by both the Official Plan and Zoning By-law. The applicant is requesting minor variance approval to legalize the existing building location for a multiple residential/office use, having a right side yard setback of 0.03 m (0.1 ft) rather than the required 1.2 m (3.9 ft), a lot width of 12 m (39.4 ft) rather than the required 16 m (52.5 ft), and also having 4off-street parking spaces rather than the required 5 spaces. 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 Official Plan and Zoning By-law for the following reasons. The intent of the Official Plan designation is to encourage the opportunity for COMMITTEE OF ADJUSTMENT 26 FEBRUARY 19, 200$ 3. Submission No.: A 2007-005 tCont'd) residential redevelopment along with appropriate commercial and residential uses. It calls for apedestrian-friendly environment, and for parking to be kept away from the front if possible. The Official Plan also calls for the City to provide opportunities for a wide variety of housing options. The mixed use and pedestrian-oriented nature of this building is in keeping with the intent of the both the Official Plan and Commercial Residential zoning. The variances are minor for the following reasons. The original building has existed since 1925, with an addition constructed in 1965, and the setbacks and lot widths reflect the original building's situation rather than the current zoning. Reducing the parking requirement will not adversely affect the surrounding area, as adequate on-street daytime parking is available for the commercial use. The variances are appropriate for the development and use of the land for the following reasons. The apartments provide affordable housing for the neighbourhood along the Central Transit corridor, and this street-fronting building provides a street wall on King Street along with the adjacent car wash building and the Betzner Brownstones. The variances for reduced parking are appropriate along atransit-oriented main street like King. The Committee considered the report of the Region of Waterloo Transportation Planner, dated February 11, 2008, advising that they have no concerns with this application. Moved by Mr B. McColl Seconded by Mr. A. Head That the application of Fred's Equities Inc. requesting legalization of a building containing 4 dwelling units and an office, located on a lot having a width of 12m (39.3') rather than the required 16m (52.49'), having a right side yard of 0.03m (0.098') rather than the required 1.2m (3.93'), and legalization of 4off-street parking spaces rather than the required 5off-street parking spaces, on Lot 85, Plan 303, 539-541 King Street East, Kitchener Ontario, BE APPROVED, subject to the following condition: 1. That the owner shall demarcate the parking spaces on this property. 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. 3. 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 1. Submission Nos.: Applicant: Property Location Legal Description: Appearances: In Support: B 2008-002 Mike and Donna Milloy 93 Edgehill Drive Part Lot 8, Beasley's Broken Front Concession, Plan 698 being Part Lot 23, C. Baycetch Contra: None COMMITTEE OF ADJUSTMENT 27 FEBRUARY 19, 200$ 1. Submission No.: B 2008-002 tCont'd) Written Submissions: None Ms. C. Baycetech requested that the Committee defer its consideration of this application to its meeting of March 18, 2008, to allow her an opportunity to address the issues raised by City staff. When questioned by the Committee, Ms. Baycetech advised that her client lives at 95 Edgehill Drive and he wants to increase the size of his property, and aright-of-way is also proposed. She advised that her client will also be adding a detached garage to 93 Edgehill Drive. Ms. vonWesterholt advised that additional time is required to address such matters as off-site parking. Mr. McColl advised that he is a neighbour of this property but he does not have a pecuniary interest in this application. He noted that there are some errors on the application, as he thinks the lot areas have been transposed. Further, there is no municipal water or sewer to these lands. He also questioned the Building Division comments concerning a new wall on the new property line. Moved by Mr. A. Head Seconded by Mr. B. McColl That the consideration of Submission No. B 2008-002 - 93 Edgehill Drive, BE DEFFERED, to the Committee of Adjustment meeting scheduled for Tuesday March 18, 2008, to allow the applicant to address the issues raised by the City staff and to this Committee. Carried 2. Submission Nos.: B 2008-003 Applicant: Paul J. Bitzer Property Location: 83 Benton Street & 58-60 St. George Street Legal Description: Lots 6 & 7, Part Lots 2, 4, 9 & 10, Plan 205 Appearances: In Support: P. Bitzer B. Bitzer Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to sever the property at 58-60 St. George Street, containing a duplex dwelling, from the property at 83 Benton Street, containing a single detached dwelling. The land to be severed will have a width on St. George Street of 12.192m (40'), a depth of 56.864m (186.56'), and an area of 1171.8 sq. m. (12,613.56 sq. ft.). The retained land will have a width on Benton Street of 20.294m (66.58'), a depth of 49.884m (163.66') and an area of 1290.4 sq. m. (13,890.2 sq. ft.). The Committee considered the report of the Development & Technical Services Department, dated February 1, 2008, in which they advise that the subject lands are located in the Cedar Hill Neighbourhood and are municipally known as 83 Benton Street and 58-60 St. George Street which contain a single detached dwelling and a duplex dwelling, respectively. The subject lands are irregular in shape and are the result of two irregular lots which have merged in title. The applicant is requesting consent to sever the lands along the previously existing property lines. The subject land is currently within the boundaries of the Cedar Hill Secondary Plan and was considered by the Cedar Hill Land Use and Social Environment Study. Upon COMMITTEE OF ADJUSTMENT 28 FEBRUARY 19, 200$ 3. Submission No.: B 2008-003 tCont'd) completion of the study, the City adopted new zoning, which has been appealed to the Ontario Municipal Board. As such there are two zones on each parcel of land. More specifically, 83 Benton Street (to be retained) is designated Medium Density Commercial Residential and is zoned CR-2, 136R and CH-2, 427R. The existing single detached dwelling complies with these regulations. The land to be severed is designated Low Density Multiple Residential and zoned R-7, 108R, 136R and CH-1. These lands comply with zoning regulations; with respect to the R-7 zoning the sideyard setback is legal under the Vacuum Clause, and with respect to the CH-1 zone the duplex is legal non-conforming. Both parcels currently have access via aright-of-way off of St. George Street which provides access to parking areas in the rear yards. Based on older survey plans this situation has existed since at least 1983 and the subject right-of-way is already registered on title. Sufficient parking is provided in the rear yards and planning staff have no concern with this situation continuing. It is also noted that there is a right-of- way over an existing driveway on the right side of the land to be severed. This would not change as a result of the proposed severance. Planning staff note that Cedar Hill is a prime redevelopment area within the City, and the zoning and designations on the lands are intended to support consolidation of lots which would allow for larger scale redevelopments. From this perspective, the accidental consolidation of lands, as is the case in this situation where two properties have merged in title, may be beneficial as larger lots with greater redevelopment potential are created. However, in this particular situation, the existing lands are very irregularly shaped, and there are other pieces of adjoining lands which would likely be necessary to create a functional redevelopment parcel. Additionally, staff recognizes that the assembly of lands can occur over many years, and that until sufficient lands have been consolidated, it may be inappropriate to limit their transfer. In this case the severance would recreate a previously existing property line and no new development is proposed in the short term. Therefore, staff has concluded that this severance can be supported, however with the condition that the lands be consolidated with adjoining parcels prior to issuance of any building permits. The condition will not limit the transfer of the individual parcels prior to redevelopment and would allow for building permits to be issued for internal improvements and renovations. 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 Municipal Plan and zoning by-law, the dimensions and shapes of the proposed lots are appropriate and suitable for the existing uses, the lands front established public streets, and both parcels of land are currently serviced with independent and adequate service connections to municipal services. In addition, it is the opinion of staff that the proposed severance is consistent with the Provincial Policy Statement (PPS) issued under Subsection 3 (1) of the Act, and it does not conflict with any applicable provincial plan or plans. The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated February 11, 2008, advising that they have no objection to the approval of this application. Mrs. Bitzer stated that she is opposed to the imposition of condition 3 a) as recommended by staff, and Ms. vonWesterholt stated that this condition will not prevent the sale of the land, and the City wants consolidation of land in this area rather than fragmentation. Moved by Mr. A. Head Seconded by Mr. B. McColl That the application of Paul J. Bitzer requesting permission to convey a parcel of land having a width on St. George Street of 12.192m (40'), a depth of 56.864m (186.56'), and an area of 1171.8 sq. m. (12,613.56 sq. ft.), on Part Lots 2, 4, 7, 9 & 10, Plan 205, COMMITTEE OF ADJUSTMENT 29 FEBRUARY 19, 200$ 3. Submission No.: B 2008-003 tCont'd) 58-60 St. George Street, Kitchener, Ontario, BE GRANTED, subject to the following conditions: 1. That the owner shall make satisfactory arrangements to 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 two full size paper copies of the plan(s). The digital file must be submitted according to the City of Kitchener's Digital Submission Standards to the satisfaction of the City's Mapping Technologist. 3. That the owner enter into a modified subdivision agreement with the City of Kitchener to be prepared by the City Solicitor and registered on title of both the severed and retained lands which shall include the following condition: a) That no building permits shall be issued for the expansion of buildings or the redevelopment of lands legally described as Pt Lot 2,4,7,9 & 10 of Plan 205 (municipally known as 83 Benton Street) and the lands legally described as Lot 6, Pt Lot 7 & 10 of Plan 205 (municipally known as 58-60 St. George St) until the subject lands have merged in title and have also been consolidated with lands legally known as Pt Lot 1, 4 & 9 Plan 205 (municipally known as 87 Benton Street/46 St. George St) and the lands legally known as Lot 5, Pt Lot 10 Plan 205 (municipally known as 56 St. George St). The foregoing shall not prevent the issuance of building permits for internal renovations and improvements. 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 February 19, 2010. Carried ADJOURNMENT On motion, the meeting adjourned at 11:26 am. Dated at the City of Kitchener this 19th day of February 2008. Dianne H. Gilchrist Secretary-Treasurer Committee of Adjustment