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HomeMy WebLinkAboutAdjustment - 2008-08-19 COMMITTEE OF ADJUSTMENT FOR THE MINUTES OF THE REGULAR MEETING HELD AUGUST 19. 2008 CITY OF KITCHENER MEMBERS PRESENT: Ms. C. Balcerczyk and Messrs. D. Cybalski and B. McColl OFFICIALS PRESENT: Ms. K. Anderl, Senior Planner, Mr. B. Cronkite, Traffic Analyst, Mr. J. Lewis, Traffic Technologist, Ms. D. Gilchrist, Secretary- Treasurer, Ms. L. Garovat, Administrative Clerk, Ms. D. Hartleib, Administrative Clerk. MINUTES Mr. D. Cybalski, Chair, called this meeting to order at 10:06 a.m. Moved by Ms. C. Balcerczyk Seconded by Mr. B. McColl That the minutes of the regular meeting of the Committee of Adjustment, of July 15, 2008, as mailed to the members, be accepted. NEW BUSINESS MINOR VARIANCE 1 . Submission Nos.: Applicant: Property Location: Legal Description: Appearances: Carried A 2008-051 Greenbelt Construction Inc. 73 Amherst Drive Part Lots 28 and Part Syndenham Street, Plan 578, being Part 3. Reference Plan 58R-15624 In Support: None Contra: None Written Submissions: None As no one attended in support of this application, the Committee agreed to defer its consideration of this application to the meeting to be held on Tuesday September 16, 2008. 2. Submission Nos.: Applicant: Property Location: Leaal DescriDtion: Appearances: In Support: Contra: Written Submissions: A 2008-052 Henry & Carol Lang 469 Mill Street Part Lots 16 & 17. Plan 384 H. & C. Lang None None COMMITTEE OF ADJUSTMENT 181 AUGUST 19, 2008 2. Submission No.: A 2008-052 (Cont'd) The Committee was advised that the applicant is requesting permission to expand a legal non-conforming dwelling by constructing a 3m (9.84') by 4.3m (14.1') addition and a 4.3m (14.1') by 4.3m (14.1') deck onto the back of the existing dwelling. The Committee considered the report of the Development and Technical Services Department, dated August 3, 2008, advising that the subject property is located on the south side of Mill Street between Ottawa Street South and Courtland Avenue. The property has 25.9 metres of frontage on Mill Street, and an area of approximately 1720 square metres. The property abuts CNR railway tracks to the south. The property contains a two-storey single detached dwelling constructed in approximately 1935. The surrounding area is composed of a mix of industrial and low rise residential uses. The property is designated General Industrial in the City's Official Plan and is zoned General Industrial (M-2) in the Zoning By-law. The M-2 Zone does not permit single detached dwellings; however, staff confirms that the use existed prior to the enactment of the Zoning By-law. For this reason, the use is considered to be legal non-conforming. The owner is proposing to demolish a one-storey addition at the rear of the dwelling and construct a one-storey bathroom/laundry room addition (3.0 metres wide by 4.3 metres deep). In addition, the owner is proposing to construct a wood deck (4.3 metres wide by 4.3 metres deep). Both the deck and the bathroom/laundry room addition are proposed to be located at the rear of the existing dwelling. The application states that the purpose of this proposal is to allow the owners, who are senior citizens, to stay in their home longer than they otherwise would be able. For example, the proposal would allow improved accessibility: main floor laundry facilities are proposed, whereas laundry facilities are presently located in the basement. In order to construct the deck and addition, permission is required from the Committee of Adjustment to extend a legal non-conforming use under Section 45(2)( a)(i) of the Planning Act. In considering this request for permission, Planning staff offer the following comments. The Official Plan states that "The City shall support and attempt to accommodate residents who wish to adapt their housing to needs that change over time." Staff advises that the subject proposal would meet this objective, since it would allow the owners to have greater accessibility in their home. It is intended that legal non-conforming uses are to cease at the end of their natural life span, so as to allow development opportunities for uses permitted by the Zoning By- law. The Committee should consider whether granting permission would perpetuate the use, thereby exacerbating the legal non-conforming situation. Planning staff advises that the proposal would not perpetuate the use since the existing dwelling itself (the main area where the use is carried out) will continue to remain in place until the end of its existence. The proposal will not pose a significant adverse impact on abutting properties. The properties to the east and west are both single detached dwellings. If the subject property was in a residential zone, the required side yard setback would be 1.2 metres. In this case, the proposed addition would maintain a setback of 3.7 metres to the closest property line. The Committee considered the report of the Region of Waterloo Transportation Planner, dated July 29,2008, advising that they have no concerns with this application. In response to questions from the Committee, Ms. Anderl advised this is an existing legal non-conforming house in an industrial zone. The proposed addition replaces an old addition and will not change the use of the property. It will also allow the owners to remain in their home for a longer period of time. Moved by Ms. C. Balcerczyk Seconded by Mr. B. McColl COMMITTEE OF ADJUSTMENT 182 AUGUST 19, 2008 2. Submission No.: A 2008-052 (Cont'd) That the application of Henry and Carol Lang requesting permission to expand a legal non-conforming dwelling by constructing a 3m (9.84') by 4.3m (14.1') addition and a 4.3m (14.1') by 4.3m (14.1') deck onto the back of the existing dwelling, on Part Lots 16 & 17, Plan 384, 469 Mill Street, Kitchener, Ontario, BE APPROVED, subject to the following conditions: 1 . That this approval applies to the plan included with Committee of Adjustment Application A2008-052, received July 9, 2008, which shows the following: a bathroom/laundry room addition and wood deck attached to the rear of the existing dwelling; the addition being one-storey in height and 3.0 metres wide by 4.3 metres deep, and the deck being 4.3 metres wide by 4.3 metres deep. 2. That a building permit be obtained for development in general accordance with the addition and deck described in Condition No.1, to the satisfaction of the City's Chief Building Official and Director of Planning. It is the opinion of this Committee that: 1 . The use of this property as a single family dwelling has continued since the day the by-law was passed prohibiting this use. 2. The proposed addition and deck will not pose a significant adverse impact on the abutting properties. 3. This application complies with the City of Kitchener Official Plan policies which states that "The City shall support and attempt to accommodate residents who wish to adapt their housing to needs that change over time." Carried 3. Submission Nos.: Applicant: Property Location: Legal Description: A 2008-053 Anna Matiuszka 553 Weber Street East Part Lot 32, Plan 656, being Part 3, Reference Plan 58R-4871 Appearances: In Support: V & R Mitchell Contra: None Written Submissions: None The Committee was advised that the applicant is requesting legalization of an existing triplex with a left side yard of 1.09 m (3.57') rather than the required 1.5 m (4.92'). The Committee considered the report of the Development & Technical Services Department, dated August 8, 2008, in which they advise that the subject property is currently developed with a non-complying triplex located on Weber Street East, north of Sydney Street North. The property is designated as Low Density Multiple Residential in the King Street East Secondary Plan and zoned Residential Seven (R-7). The building is approximately 57 years old and has been continuously used as a triplex since approximately 1996. Previously, the building had been used as a barber shop for 26 years. The applicant is requesting permission to legalize an existing triplex to have a 1 .09 metre left side yard rather than the required 1.5 metre. COMMITTEE OF ADJUSTMENT 183 AUGUST 19, 2008 3. Submission No.: A 2008-053 (Cont'd) 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 meets the intent of the Official Plan and Zoning By-law for the following reasons. The intent of the Low Density Multiple Residential designation is to encourage the opportunity for residential development. Under the R-7 zoning, multiple dwellings are permitted. The variance is minor for the following reasons. The existing residential building has been in existence for 57 years and the lot dimensions reflect the original building's situation rather than the current zoning regulations. Since the construction of the building, only the use of the property has changed. This building has been in use as a triplex since 1996 with no concerns or complaints received by this department. The existing left side yard setback is only a minimal difference of 0.41 metres from the required regulations. The distance between the dwelling on the abutting property and the subject property is not close enough to be an issue. The variance is appropriate for the development and use of the land for the following reasons. The neighbourhood surrounding the building is characterized by a variety of residential development including multiple residential and single family residential and this use is consistent with this form of development. Staff notes that the property currently has two legal off-street parking spaces; whereas a triplex requires three separate parking spaces. It is possible to develop a third parking space in the rear yard as shown on the submitted drawing. Staff recommends that the third parking space be developed generally as shown on the submitted plan. As well, it is noted that one of the units is a basement unit and Planning staff do not, at this time, know if inspections have been conducted by City's Fire or Property Standards staff. It is recommended that this approval be subject to the property being inspected and approved by Fire or Property Standards staff. The Committee considered the report of the Region of Waterloo Transportation Planner, dated July 29,2008, advising that they have no concerns with this application. Mr. Cronkite advised the Committee that Transportation Planning would like a condition imposed on any approval that the applicants must apply for site plan control, as staff have a concern about the ability to get in and out of the parking spaces as shown on the plan submitted. When questioned by the Chair, Mr. & Mrs. Mitchell advised that neither of them is Anna Matiuszka, who is shown on the application as the owner of this property. They advised that they are the new owners of this property. They knew there was a problem with the property which was discussed with staff, and they are attending this meeting because they received the notice of hearing for this meeting. There was a brief discussion about whether Mr. & Mrs. Mitchell could take over this application and it was determined that if they provide the Secretary-Treasurer with a copy of the transfer of the land from Anna Matiuszka to themselves, that they could assume this application. It was generally agreed by the Committee members that this application be deferred to the Committee of Adjustment meeting of September 16, 2008, to allow Mr. & Mrs. Mitchell opportunity to provide the Secretary-Treasurer with a copy of the transfer of ownership to them and an opportunity to meet with Transportation Planning staff about the parking on this site. COMMITTEE OF ADJUSTMENT 184 AUGUST 19, 2008 4. Submission Nos.: Applicant: Property Location: Leaal DescriDtion: A 2008-054 Malcolm & Lynn Emptage 20 Winding Wood Cres Lot 58. Reaistred Plan 58M-158 Appearances: In Support: M. Emptage B.Lee Contra: None Written Submissions: L. Miceli & Z. Bebinski The Committee was advised that the applicant is requesting legalization of an existing deck with stairs located 0.36m (1.18') and 0.43m (1.4') from the side lot line rather than the required 0.75m (2.46'). The Committee considered the report of the Development & Technical Services Department, dated August 5, 2008, in which they advise that the subject property is located on the east side of Winding Wood Crescent, near the intersection of Doon South Drive and Winding Wood Crescent. The neighbourhood is comprised of single detached family dwellings on large lots. The subject lot contains a single family dwelling and backs onto Windrush Park. The two storey home was originally constructed in 2001 and has a back deck, stairway and landing that were constructed in the Spring of 2004. The applicant is requesting a minor variance to allow a 0.36 metre side yard stairway setback, whereas Zoning By-law 85-1 requires a minimum 0.75 metre setback. 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 meets the intent of the Official Plan for the following reasons. The intent of the Residential (R-3) designation is to allow for various forms of residential housing as well as non-residential uses such as a home business. The subject property contains a single-detached residential dwelling. The continuation of this use as well as the proposed variance to allow for the existing deck structure does not interfere with the character of the neighbourhood or intent of the Official Plan. The variance meets the intent of the Zoning By-law for the following reasons. The intent of the 0.75 metre side yard stairway setback is to allow for maintenance of both structures as well as to allow for privacy and separation of the homes. Additionally, the set back allows for access to the rear yard, which on site inspection was feasible through the opposite side of the home, and therefore meets the intent of the Zoning By- law. The variance is minor for the following reasons. Attached to the application for minor variance, the applicant submitted a letter from their neighbours stating that the deck structure poses no inconvenience or difficulties. As well, upon site visit, it was noted that several neighbours to the south of the subject property have erected similar decks. A side yard setback of 0.0 metres would be acceptable if the deck structure was less than 0.6 metres in height. However, due to the height of the structure and stairs, Zoning requires a 0.75 metre setback. The proposed side yard stairway setback of 0.36 metres rather than the required 0.75 metres is a minor reduction. The variance is appropriate for the development and use of the land for the following reasons. The structure does not affect the streetscape, and provides a second floor view of one of the City of Kitchener's amenities, Windrush Park. As well, as stated previously, the neighbouring property on Winding Wood Crescent have submitted a written statement to the affect that the structure poses them no difficulties, and upon site COMMITTEE OF ADJUSTMENT 185 AUGUST 19, 2008 4. Submission No.: A 2008-054 (Cont'd) inspection, neighbours to the south of the subject land have similar structures and therefore the development is a consistent and appropriate use of the land. The Committee considered the report of the Region of Waterloo Transportation Planner, dated July 29,2008, advising that they have no concerns with this application. The Committee considered the written submission of L. Miceli & Z Bebinski in support of this application. The Chair noted the comments of the Building Division requiring a re-inspection to verify that items 3 & 4 on the inspection slip dated April 18, 2007, have been completed. Mr. McColl noted that there are similar structures in this neighbourhood; although the setback variance is significant mathematically, it was his opinion that the variance requested meets the four tests in the Planning Act. Moved by Mr. B. McColl Seconded by Ms. C. Balcerczyk That the application of Malcolm & Lynn Emptage, requesting legalization of an existing deck with stairs located 0.36m (1.18') and 0.43m (1.4') from the side lot line rather than the required 0.75m (2.46'), on Lot 58, Registered Plan 58M-158, 20 Winding Wood Crescent, Kitchener, Ontario, BE APPROVED, subject to the following condition: 1 . That the owners shall contact the building inspector to request re-inspection of the deck and stairs to verify that Items 3 & 4 on the inspection slip dated April 18, 2007 have been completed. 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 Official Plan is being maintained on the subject property. Carried 5. Submission Nos.: Applicant: Property Location: Leaal Descriotion: A 2008-055 Alan & Karen Kocher 84 Gruhn Street Part Lot 9. Plan 387 Appearances: In Support: A & K Kocher Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to construct a one storey addition onto the easterly side of the existing dwelling to have a side yard of 0.889m (2.91') rather than the required 1.2m (3.93'). The Committee considered the report of the Development & Technical Services Department, dated July 29, 2008, in which they advise that the subject property is located on the north side of Gruhn Street, near the intersection of Gruhn Street and COMMITTEE OF ADJUSTMENT 186 AUGUST 19, 2008 5. Submission No.: A 2008-055 (Cont'd) Glasgow Street. The lot contains a single family home that serves as a residence. The one and a half storey home was originally constructed in the 1920s and has a rear addition that was built in 1992. The applicant is requesting a minor variance to allow a 0.889 metre side yard setback, whereas Zoning By-law 85-1 requires a minimum 1.2 metre setback. 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 meets the intent of the Official Plan for the following reasons. The intent of the Residential (R-5) designation is to allow for various forms of residential housing as well as non-residential uses such as a home business or care facility. The subject property contains a single-detached residential building used as a dwelling as well as a home business. The continuation of this use as well as the proposed variance to create a side addition and reduce the side yard setback meets the intent of the Official Plan. The variance does not meet the intent of the Zoning By-law for the following reasons. The intent of the 1.2 metre side yard setback is to allow for maintenance of both structures as well as to allow for a privacy buffer and separation of the homes. The plan showing the proposed addition as submitted by the applicant will reduce the side yard setback to 0.889 metres and contains a window as well as a door facing the neighbouring home. Due to the elevation of the subject property in comparison to the neighbouring property to the east, this does not allow a buffer for privacy. As well, the doorway and limited side yard would not, in this case, allow for sufficient access to maintain each building. The variance is not minor for the following reasons. Due to the elevation of the subject property compared to the neighbouring property, the addition would shadow and overpower the neighbouring residence, as well as reduce privacy by removing the vegetative and spatial buffer between the homes. This is regarded as a significant impact to the adjacent property. As well, in order to accommodate the proposed addition, mature trees important to the character of the street would be removed. The proposed side door would increase pedestrian traffic between the residences and further reduce privacy and security. Furthermore, it appears from the plans submitted by the applicant that a home business may be operating out of the residence. If the proposed addition and side door are to be used as a business entrance to the home, this would create an additional impact on the neighbouring property and therefore would not be minor. The variance is not appropriate for the development and use of the land for the following reasons. The neighbourhood in which the subject property is located is mostly comprised of turn of the century style brick homes with consistent double hung windows. The plans submitted by the applicant show modern horizontal slider windows and vertical vinyl siding to be facing the streetscape. This type of development would not be consistent with the character of the neighbourhood. The Committee considered the report of the Region of Waterloo Transportation Planner, dated July 29,2008, advising that they have no concerns with this application. Mrs. Kocher spoke to some of the comments in the staff report, noting that they do not operate a home business at this address and it is used solely as their residence. Further, they have no intension of removing any mature trees in order to construct the addition, and there is no difference in elevation between their lot and the abutting property. With respect to the exterior of the proposed addition, Mrs. Kocher advised that they propose to use the same vertical siding as the neighbours 3 doors down the street have used. She stated that they always use the existing side door of the house and their neighbour has no concerns with that. She also advised that they have revised COMMITTEE OF ADJUSTMENT 187 AUGUST 19, 2008 5. Submission No.: A 2008-055 (Cont'd) their plans for the addition by taking out the side windows in order to allow their neighbour more privacy. Ms. Anderl stated that in light of the information provided by the applicant, she may be willing to change the staff recommendation provided that certain conditions are imposed: 1. the owners must submit a tree management plan for approval; 2. Building Division is satisfied with the separation; 3. the owners must provide a letter of understanding from the abutting neighbours regarding construction of the addition, satisfactory to the City Solicitor; and, 4. the owners must submit elevation plans for approval of the Director of Planning that mirror the current aesthetics of the neighbourhood. Mr. McColl stated that looking at the neighbouring houses, all have lesser setbacks than the by-law requires. He also stated that the elevation drawing provided by the applicant shows that the windows are dissimilar to the windows in the main building, which adversely affects the streetscape. Moved by Mr. B. McColl Seconded by Ms. C. Balcerczyk That the application of Alan & Karen Kocher, requesting permission to construct a one storey addition onto the easterly side of the existing dwelling to have a side yard of 0.889m (2.91') rather than the required 1.2m (3.93'), on Part Lot 9, Plan 387, 84 Gruhn Street, Kitchener, Ontario, BE APPROVED, subject to the following conditions: 1 . That the owners shall submit and receive approval of a tree management plan from the Director of Planning. 2. That the owners shall receive approval of a building permit for the proposed addition from the City's Building Division, and shall satisfy the Building Division with respect to complying with the required fire resistance rating for the wall, due to spatial separation, including no glazing permitted on wall face which is less than 1 .2m from the property line. 3. That the owner shall provide the Secretary-Treasurer with a letter of understanding from the neighbour( s) abutting the side of the subject property where the addition will be built, in a form satisfactory to the City Solicitor, stating that they understand the location and appearance of the proposed addition, and they do not object to it. 4. That the owner shall submit an elevation drawing of the proposed addition, showing that it will mirror the current aesthetics of the neighbourhood, to the satisfaction of the City's Director of Planning. 5. That the variance as approved in this application shall apply to the size and location of the addition as shown in the site plan attached to this application. 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 188 AUGUST 19, 2008 5. Submission No.: A 2008-055 (Cont'd) 3. The general intent and purpose of the City of Kitchener Zoning By-law and Official Plan is being maintained on the subject property. Carried 6. Submission Nos.: Applicant: Property Location: Legal Description: A 2008-056 Primeland Developments 533 Banffshire Crescent Part Lot 59, Registered Plan 58M-348, being Part 1 , Reference Plan 58R-16157 Appearances: In Support: S. Ritchie Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission for the driveway to be located 8.35m (27.39') from the intersection of Banffshire Crescent and Banffshire Court rather than the required 9m (29.52'). The Committee considered the report of the Development & Technical Services Department, dated July 25, 2008, in which they advise that the subject property is located on the southwest corner of Banffshire Crescent and Banffshire Court, and is the corner lot of a row of street townhouses. While the lot is a generous size, it is irregularly shaped, and is wider in the backyard, than the front. The neighbourhood is currently under development and is proposed to comprise of street townhouses and single detached dwellings. The applicant is requesting a minor variance to allow a 8.35 metres setback from the driveway to the intersection of the streets, whereas Zoning By-law 85-1 requires a minimum 9 metre setback. 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 meets the intent of the Official Plan for the following reasons. The intent of the Low Rise Residential designation of the Official Plan is to permit residential uses. The subject lands are planned to be developed as street townhouses. As well, the R-6 Zoning designation requires a minimum of one parking space. The variance requested would not compromise the residential character of the neighbourhood, and would allow for the required parking space. The variance meets the intent of the Zoning By-law for the following reasons. The intent of the 9 metres setback is to provide adequate distance for motorists to perceive and react to the prevailing traffic conditions when approaching the intersection, when entering the cross street from the intersection, and when entering/exiting a driveway adjacent to the intersection. The setback is also intended to maintain clearance to prevent intersection sight lines from being obstructed by vehicles parked in adjacent driveways, and provides vehicle stacking areas between the intersection and driveway, so that driveways are not blocked by vehicles queued back from the stop control. Reducing the driveway setback from 9 metres to 8.35 metres should not interfere with the corner visibility of the intersection. The generous side yard is 6.7 metres at its smallest point, as well as the more than adequate front yard setback of 6.5 metres rather than the minimum required 4.5 metres should allow for unobstructed views of the intersection from vehicle traffic. Therefore, staff feels the proposed variance meets the intent of the Zoning By-Law. However, future widening of the driveway will not be COMMITTEE OF ADJUSTMENT 189 AUGUST 19, 2008 6. Submission No.: A 2008-056 (Cont'd) possible as it will reduce the setback further and could interfere with the intent of the Zoning By-Law. The variance is minor for the following reasons. The reduction of the setback from 9 metres to 8.35 metres is not a considerable distance and should not affect the aesthetic of the residential area, the safety of the intersection or the visibility of vehicles entering or exiting the driveway. Due to the nature of the block of development which are proposed street townhouses, as well as the irregular shape of the lot, the driveway is as close to the neighbouring property line and as far away from the intersection as possible. Therefore, staff feels a reduction of 0.65 metres is minor and the proposed driveway setback of 8.35 metres is sufficient in this case. The variance is appropriate for the development and use of the land for the following reasons. Due to the nature of street town homes, and irregular shape of the lot, it is difficult to reconfigure the building on the lot, as it is attached to its neighbour. As well, street townhouses are a desired use of land within the R-6 Low Rise Residential zoning and provide a mix of housing types for the greater neighbourhood development. The driveway leads to the required parking space and is consistent with the neighbouring street townhouses and single family dwellings. The driveway is located as far as possible from the intersection of Banffshire Crescent and Banffshire Court, and should allow for a pleasant corner view and unobstructed visibility. This minor variance should create no adverse effects on the community and therefore the requested variances are minor in nature and can therefore be approved. The Committee considered the report of the Region of Waterloo Transportation Planner, dated July 29,2008, advising that they have no concerns with this application. The Committee considered correspondence from Kitchener-Wilmot Hydro Inc., dated July 29, 2008, advising that any approval of this application should include conditions that require a minimum of 1.0m clearance from their plant (street light and distribution poles, anchors, etc.) to the back edge of curb and or edge of driveway asphalt including skirts out to the road. They recommended that the owner make financial arrangements satisfactory to Kitchener Wilmot Hydro for any relocation charges that may be incurred. Mr. Cronkite advised of his concern that this driveway never be widened as it will cause visibility problems at the intersection. Moved by Ms. C. Balcerczyk Seconded by Mr. B. McColl That the application of Primeland Developments requesting permission for the driveway to be located 8.35m (27.39') from the intersection of Banffshire Crescent and Banffshire Court rather than the required 9m (29.52'), on Part Lot 59, Registered Plan 58M-348, being Part 1, Reference Plan 58R-16157, 533 Banffshire Crescent, Kitchener, Ontario, BE APPROVED, subject to the following condition: 1 . That the variance as approved in this application shall apply to the driveway only as shown on the site plan submitted with this application. 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 Official Plan is being maintained on the subject property. Carried COMMITTEE OF ADJUSTMENT 190 AUGUST 19, 2008 CONSENT 1 . Submission Nos.: Applicant: Property Location: Leaal Descriotion: B 2008-025 Custom Foam Systems Ltd. 360 Trillium Drive Part Lot 3. Reaistrar's Compiled Plan 1478 Appearances: In Support: W. Cline G. Chatha Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to sever a parcel of land having a width on Shoemaker Street of 12.31m. (40.38') by a depth of approximately 120m. (393.7') and an area of 1,462 sq. m. (15,737.35 sq. ft.) to be conveyed as a lot addition to the property at 290 Shoemaker Street. The retained land will have a width on Trillium Drive of 92.5 m. (303.47') by a depth on Shoemaker Street of 140.705 m. (461.63') and an area of 15,300 sq. m. (164,693.21 sq. ft.). The existing and proposed use of the retained land is industrial. The Committee considered the report of the Development & Technical Services Department, dated August 1, 2008, in which they advise that the subject lands are located on the north-east corner of Trillium Drive and Shoemaker Street as shown on the map above. The applicant is requesting consent to sever a strip of land from 360 Trillium Drive as a lot addition to 290 Shoemaker Street. The proposed area to be conveyed is 12.3 meters wide and runs the full length of the property line. The applicant has indicated that the subject lot addition will allow for an expansion of parking at 290 Shoemaker St. Planning staff comment that this work will require a change to the approved site plan and recommend that the owner of 290 Shoemaker contact the Supervisor of Site Plan Development in this regard. Furthermore, a Site Plan is currently registered on the lands to be conveyed. The owners may wish to request a release from the existing Site Plan Agreement on that portion of land. 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 retained lands and the lands to which the lot addition shall be conveyed are in conformity with the City's Municipal Plan, the dimensions and shapes of the resulting lots are appropriate and suitable for the existing uses. The lands front on established public streets and have adequate means of access and both parcels of land are currently serviced with independent and adequate service connections to municipal services. Also, the resultant lots will be compatible in size with the lots in the surrounding area. Staff feels that the proposed consent is consistent with the Provincial Policy Statement, and conforms with the Growth Plan for the Greater Golden Horseshoe, and conforms to the City's Official Plan and Zoning By-law regulations. The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated August 6, 2008 in which they advise that in accordance with the Region's protocol dealing with site contamination and development, this site is identified in the Region's contaminated sites database as a potentially contaminated site. As a result, a Record of Site Condition is required for the retained and severed lands. In response to the Region's report, Mr. Cline advised that he spoke to the Region about their request for a Record of Site Condition, and was advised that they have no evidence of contamination. The Committee commented that if there is no contamination, it won't be difficult to fulfil the condition. COMMITTEE OF ADJUSTMENT 191 AUGUST 19, 2008 1. Submission No.: B 2008-025 (Cont'd) Moved by Ms. C. Balcerczyk Seconded by Mr. B. McColl That the application of Custom Foam Systems Ltd. requesting permission to sever a parcel of land having a width on Shoemaker Street of 12.31m. (40.38') by a depth of approximately 120m. (393.7') and an area of 1,462 sq. m. (15,737.35 sq. ft.) to be conveyed as a lot addition to the property at 290 Shoemaker Street, on Part Lot 3, Registrar's Compiled Plan 1478, 360 Trillium Drive, Kitchener, Ontario, BE GRANTED, subject to the following conditions: 1 . That the owner shall make arrangements satisfactory 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 lands to be severed shall be added to the abutting lands and title shall be taken into identical ownership as the abutting lands. The deed for endorsement shall include that any subsequent conveyance of the parcel to be severed shall comply with Sections 50(3) and/or (5) of the Planning Act, R.S.O. 1990, c. P.13, as amended. 4. That the owner's Solicitor shall provide a Solicitor's Undertaking to register an Application to Consolidate Parcels immediately following the registration of the Severance Deed and prior to any new applicable mortgages, and to provide a copy of the registered Application to Consolidate Parcels to the City Solicitor within a reasonable time following registration. 5. That the owner shall complete a Record of Site Condition in accordance with Ontario Regulation 153/04. In the event the Record of Site Condition is audited, the Region of Waterloo must be advised by the Ministry of the Environment that the requirements of an audit, if any, are completed to the satisfaction of the Ministry of the Environment. Two copies of the completed Record of Site Condition must be forwarded to the Regional Commissioner of Planning, Housing and Community Services. 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 August 19, 2010. Carried COMMITTEE OF ADJUSTMENT 192 AUGUST 19, 2008 COMBINED APPLICATION 1 . Submission Nos.: Applicant: Property Location: Legal Description: A 2008-057 & B 2008-026 Henrietta Hughes 14 Jackson Avenue & 1472 King Street East Part Lot 11 , Subdivision of Lot 1 , German Company Tract & Lots 12 - 14. Subdivision of Lot 1 . German Company Tract Appearances: In Support: C. Hughes H. Hughes S.Head Contra: None Written Submissions: None The Committee was advised that through Submission No. B 2008-026 the applicant is requesting permission to sever a parcel of land having a width on Jackson Avenue of 13.7 m. (44.94') by a depth of approximately 39m (127.95') and having an area of approximately 534 sq. m. (5,748.11 sq. ft.). The existing and proposed use of the property is a single family dwelling. The retained land will have a width on King Street East of 26.44m (86.74') by a depth on Jackson Avenue of approximately 39m (127.95') and an area of approximately 1,250 sq. m. (13,455.32 sq. ft.). The existing and proposed use of the property is commercial and multi-unit residential. The Committee was also advised that through Submission No. A 2008-057, the applicant is requesting permission for a single family dwelling in a CR-4 zone, on a lot having a frontage of 13.7m (44.94') and an area of 534 sq. m. (5,748.11 sq. ft.); with the building having side yards of 1.6m (5.24') and a front yard of 6m (19.68'). The Committee considered the report of the Development & Technical Services Department, dated August 10, 2008, in which they advise that the owner is proposing to convey a parcel of land addressed as 14 Jackson Avenue with approximately 13.8 metres of frontage onto Jackson Avenue and encompassing an area of 534 square metres. This property contains an existing single detached dwelling. The retained parcel of land, addressed as 1472 King Street East is 'L'-shaped with approximately 26.4 metres of frontage along King Street East and encompassing an area of 0.126 hectares. This property is currently developed with a mixed use commercial building and associated parking. Although functioning as two separate properties in terms of use and addressing, the reason for the consent is that the subject property has merged on title and the owner would like to sell 14 Jackson Avenue. Under normal circumstances, this request would be very straight forward. Unfortunately, the single detached use has legal non-conforming status in the CR-4 zone so, therefore, as a result of the property merging the proposed consent would create a lot for which a use is not permitted. To address this, the owner has applied for a "permission of use" minor variance application under 45b) ii) of the Planning Act. A site visit was conducted on August 6, 2008. The subject lands are designated as Mixed Use Corridor in the City's Municipal Plan and zoned Commercial Residential Four (CR-4) in Zoning By-law 85-1. The intent of the Mixed Use Corridor designation is to encourage a balance of commercial and residential uses that are transit-supportive and serve the surrounding residential neighbourhoods and employment areas. The current zoning affecting the subject lands is Commercial Residential Four (CR-4). This zoning provides for a range of commercial uses and also permits dwelling units only above the first storey. Minor Variance Considerations: 1. Permission of Use & 2. Zoning Regulations 1 . In considering the four tests for granting a "permission of use" minor variance, staff offers the following comments for the Committee's consideration. COMMITTEE OF ADJUSTMENT 193 AUGUST 19, 2008 1. Submission No.: A 2008-057 and B 2008-026 (Cont'd) Is approval of the application in the public interest? In the opinion of staff, allowing this variance for permission of use is in the public interest. The proposal has little impact as the retained lands fronting onto King Street are of sufficient size to allow further intensification as a stand alone lot over time. Moreover, should re-development along King Street occur in response to rapid transit, staff see merit in assembling land along the King Street corridor first, and in particular, the adjacent property immediately west of the subject lands and addressed as 1454 King Street, as this will increase the frontage for better development opportunity. Whether the approval represents good planning In the opinion of staff, separating the title is good planning in this case. Jackson Avenue is a stable residential street and leaving ownership of this property as is, may be detrimental to the stability of the residential character of the street. Planning staff only have to look at the experiences learned during the 1970's in the inner-city area of Kitchener whereby property mergers were encouraged which lead to speculation and de-stabilization of neighbourhoods throughout the 1980's and 1990's. Whether the proposed application creates unacceptable adverse impacts upon the abutti ng properties In the opinion of staff, the proposed application will not create any adverse impacts upon abutting properties, as there will be no visible change to what already exists now. 14 Jackson Avenue will remain as a single detached dwelling and the mixed use building at 1472 King Street will remain as a mixed use building. Is the proposed use similar as required in Section 45(2)(a) (ii) of the Planning Act. The property known as 14 Jackson Avenue has been used as a single detached dwelling since its existence and has enjoyed legal non-conformity since 1987 when By- law 85-1 was enacted. The previous Zoning By-law 4830 zoned the property as C-5, which permitted a single detached dwelling use. The minor variance application also requested regulations for lot width, lot area and front and side yard setbacks in absence of established zoning regulations for the severed lot. As such, the owner is requesting a lot width of 13. 7 metres, an area of 564 square metres, a front yard setback of 6 metres and 1.6 metre side yards. Staff has no issues with this request as they reflect what currently exists. Consent Considerations The applicant is requesting consent to sever the subject property to separate the ownership of the two properties that have merged. The purpose and effect of this application involves a correction of title. 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 dimensions and shapes of the proposed lots are appropriate and suitable for the existing uses and any proposed use of the lands, the lands front on an established public street, and both parcels of land are serviced with independent and adequate service connections to municipal services. The regulations for the severed lot are established through minor variance application A2008-057 and reflect what currently exists for the property. The lot width is 13.7 metres and an area of 534 square metres is indicative of the surrounding residential lotting fabric. The retained parcel of land meets the zoning requirements of the CR-4 zone. The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated August 6, 2008 in which they advise that they have no objections to B 2008-026. COMMITTEE OF ADJUSTMENT 194 AUGUST 19, 2008 1. Submission No.: A 2008-057 and B 2008-026 (Cont'd) The Committee considered the report of the Region of Waterloo Transportation Planner, dated July 29,2008, advising that they have no concerns with A 2008-057. Mr. Head advised that Committee that Mrs. Hughes has operated the restaurant since 1979, and the restaurant property is attached to 14 Jackson Avenue. At this time, Mrs. Hughes would like to convey the restaurant property to her daughter. He stated that the zoning of these properties used to be C-5 which permitted the house, but now the zoning is CR4 which makes the house a legal non-conforming use. Mr. Head advised that he agrees with the staff report except for the widening of Jackson Avenue. He stated that Mrs. Hughes is retaining the Jackson Avenue property, which property is quite typical of the Jackson Avenue area and no widenings have been taken from any of the other Jackson Avenue properties. As for staff recommended condition B5, requesting an Environmental Site Assessment for the road widening, Mr. Head advised that there hasn't been a use on these properties that would contaminate the soil. He also stated that the road widening would go through the buildings. Mr. Head asked that conditions B4 and B5 not be imposed by the Committee. In response to questions from the Committee, Mr. Cronkite advised that there is no imminent need for this widening, as there is no plan in the foreseeable future to widen Jackson Avenue; however, the road widening will ultimately be needed. The Chair commented that in view of these applications being for estate planning, it would seem that conditions B4 and B5 are not appropriate. Submission Nos.: A 2008-057 Moved by Mr. B. McColl Seconded by Ms. C. Balcerczyk The application of Henrietta Hughes requesting permission for a single family dwelling in a CR-4 zone, on a lot having a frontage of 13.7m (44.94') and an area of 534 sq. m. (5,748.11 sq. ft.); with the building having side yards of 1.6m (5.24') and a front yard of 6m (19.68'), on Part Lot 11, Subdivision of Lot 1, German Company Tract, 14 Jackson Avenue, Kitchener, Ontario, BE APPROVED. It is the opinion of this Committee that: 1 . The use of this property as a single family dwelling on a lot having a width of 13.7m, and area of 534 sq. m., a front yard of 6m and side yards of 1.6m, is similar to the use of the property as a single family dwelling on the day the by-law was passed. 2. Approval of this application does not create any adverse impacts on the abutting properties. Carried Submission Nos.: B 2008-026 Moved by Mr. B. McColl Seconded by Ms. C. Balcerczyk The application of Henrietta Hughes requesting permission to sever a parcel of land having a width on Jackson Avenue of 13.7 m. (44.94') by a depth of approximately 39m (127.95') and having an area of approximately 534 sq. m. (5,748.11 sq. ft.), on Part Lot 11, Subdivision of Lot 1, German Company Tract, 14 Jackson Avenue, Kitchener, Ontario, BE GRANTED, subject to the following conditions: COMMITTEE OF ADJUSTMENT 195 AUGUST 19, 2008 1. Submission No.: A 2008-057 and B 2008-026 (Cont'd) Submission Nos.: B 2008-026 Cont'd 1 . That the owner shall make arrangements satisfactory 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 shall receive final approval of Minor Variance Application A2008- 057. 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 August 19, 2010. Carried 2. Submission Nos.: Applicant: Property Location: Leaal Descriotion: B 2008-027, A 2008-258 and A 2008-059 Jeffrey Cubitt 2320 Fischer Hallman Road Part Lots 8 & 9. Richard Beasley's New Survey Appearances: In Support: J. Cubitt Contra: None Written Submissions: None The Committee was advised that through Submission No. B2008-027, the applicant is requesting permission to sever a parcel of land having a width of 76.711 m (251.67') on Fischer Hallman Road, having an irregular shape and having an area of 3,165.337 sq. m. (34,071.4 sq. ft.), containing an existing veterinary clinic. The retained land is at the corner of Fischer Hallman Road and New Dundee Road and will have a width along Fischer Hallman Road of approximately 58.458m (191.79'), a depth along New Dundee Road of approximately 60.485m (198.44'), having an irregular shape and having an area of 3,326.71 m (35,808.4 sq. ft.). The existing and proposed use of the retained land is a single family residence. COMMITTEE OF ADJUSTMENT 196 AUGUST 19, 2008 2. Submission No.: A 2008-058. A 2008-059 and B 2008-027 (Cont'd) The Committee was also advised that through Submission No. A 2008-058, the applicant is requesting the following variances for the retained land: a side yard, between the existing house and the new lot line, of 7.1 m (23.29') rather than the required 7.5m (24.6'), a rear yard of 5.9m (19.35') rather than the required 10m (32.8'), a lot width of 48.5 m. (159.12'), at a distance of 7.5m (24.6') from the front lot line, rather than the required 60m (196.85 ft.) and a lot area of 0.33 ha (0.815 ac.) rather than the required 0.4ha. (0.988 ac.); and through Submission No. A 2008-059 the applicant is requesting approval of a lot area for the severed land of 0.32ha. (0.79 ac.) rather than the required 0.4 ha (0.988 ac.). The Committee considered the report of the Development & Technical Services Department, dated August 10, 2008, in which they advise that the subject lands are located on the north-east corner of Fischer Hallman Road and New Dundee Road. The existing property was created when Fischer Hallman Road (formerly Westmount Road) was realigned in the late 1970's, resulting in a developable remnant parcel, which was originally part of the farm located west of Fischer Hallman Road. The land currently contains a veterinary office which was constructed in 1980 and a single detached dwelling which was constructed in 1990. The current owner lives in the house and runs a veterinarian practice in the office. The owner is requesting consent to sever the veterinary office from the home, with the intent of selling the practice to a partner, while retaining the house as personal living quarters. The lands are designated Agricultural Resource Area in the Regional Official Plan, and are designated Agricultural in the City's Official Plan and are zoned Agricultural Zone (A-1). The owner has also submitted applications for minor variances for both future parcels as follows: Lands to be severed: 1) lot area from 0.4 ha to 0.32 ha Lands to be retained: 1) side yard from 7.5 m to 7.1 m 2) rear yard from 10m to 5.9 m 3) lot area from 0.4 ha to O. 336 ha 4) lot width from 60 m to 41 .4 m (Staff note that the lot width should be measured at the minimum front yard setback. Therefore, due to the irregular shape of the proposed lot, the application should be revised to indicate that the lot width is actually 48.5 m, rather that 41.4 m as indicated.) 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 retained lands and the lands to be severed are permitted, however the consent does not meet the City's, Region's or Province's requirements for severance of land in agricultural areas. Staff recognize and appreciate that there are no changes proposed for either the lands to be retained or the lands to be severed. However, by creating a new lot, each lot will be required to be on its own private septic system and well. The location of the new septic bed is indicated on the severance sketch, however, staff would typically require a geotechnical investigation to support a septic system on an undersized lot. No other supporting documentation was submitted with the application for consent. The Region of Waterloo may wish to comment further on this matter, and their approval would be necessary for a new well. The proposed consent is not consistent with the Agricultural policies of the Official Plan (OP). Section 9.1.5 of the OP speaks to severances for new lots for non-farm-related uses. The intent of these policies is to ensure that agricultural resources are protected, and that new lots and uses are not introduced into agricultural areas, unless they are created between two existing non-farm-related residential lots that are separated by not more than 100 metres on the same side of an open road. Staff feel that the proposed severance does meet the requirements of this policy as adjacent uses are clearly farm operations. The intent of this policy is to reduce conflicts between agricultural uses, which can be quite invasive in nature, and residential or non-farm related uses. COMMITTEE OF ADJUSTMENT 197 AUGUST 19, 2008 2. Submission No.: A 2008-058. A 2008-059 and B 2008-027 (Cont'd) Furthermore, adjacent and nearby farming operations bring into question whether the proposed lot would meet the requirements of the Province's minimum distance separation (MDS) formula. Within agricultural areas, agricultural uses are to be protected and are given priority over other uses. Creation of a new lot, even if no changes are proposed, may hamper the ability of a nearby farm from expanding operations within their own lands, due to the MDS regulations. City staff feels that the proposed consent is not consistent with policies of the Regional Official Plan (ROP). The ROP states in policy 5.1.1 .6, "the creation of lots for non-farm uses will not be permitted". The City's OP policies for agricultural severances, as described above, are consistent with the Region's policies. The Region of Waterloo may provide additional comments to the Committee under separate cover. Staff also find that the proposed consent is not consistent with the Provincial Policy Statement (PPS). Agricultural policies in the PPS state that lot creation in prime agricultural areas is discouraged and only permitted for agricultural and agricultural related uses, residences surplus to farming operations and infrastructure. As discussed above, staff questions whether the proposed lot would meet the requirements of the Province's Minimum Distance Separation Formula. The Growth Plan for the Greater Golden Horseshoe also contains policies with respect to the protection of prime agricultural areas. 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 owner has applied for a number of variances, outlined above, for both the proposed lot to be severed and the lot to be retained. Each of the proposed lots is less than the minimum 0.4 ha required by the Official Plan (OP) for new non-farm related lots (9.1.5.viii). In this respect the intent of the OP is to ensure that lots are adequately sized for onsite services (both septic systems and private wells). The existing septic system would be kept with the house, and the veterinary office will require a new system. As discussed above, the new septic system would require that a geotechnical investigation be submitted and approved. Any new wells require approval from the Region of Waterloo. With respect to the variances for setbacks and lot width, and as discussed with respect to the consent, the intent of the OP is to limit severances which will create any new lot for non-farm related uses in agricultural areas, unless they are able to meet very specific criteria. Therefore, as the variances will support the proposed consent, which does not meet agricultural policies, staff feel that variances do not meet the intent of the OP. Staff feel that the proposed variances may meet the intent of the zoning by-law subject to conditions. The zoning by-law requires a minimum lot size of 0.4 ha. Lot areas of 0.32 ha and 0.336 ha are proposed. As previously discussed, 0.4 ha is required to ensure adequate lands for on site septic and well. If documentation can show that the reduced lots can safely contain individual septic systems and wells, staff feel that the intent of the zoning is maintained. However, this will require approvals of a geotechnical investigation by the City and the Region and consideration of the new well and septic system for the severed lot by the Region. The intent of the minimum lot width of 60 metres is to ensure adequate frontage for the required lot size, and to maintain the rural character. Measured at the required setback there is currently over 120 metres between the two parcels, however, as the lands have already been developed, dividing the two parcels with just over 60 metres each would result in an irregular lot line and/or require additional variances. In addition, the proposed lot to be retained also has frontage onto New Dundee Road of more than 60 metres, and although this is technically not the front yard as it is the wider of the two, the house faces New Dundee Road. Therefore, staff feel that a reduction in the lot width for the lands to be maintained meets the intent of the zoning bylaw. COMMITTEE OF ADJUSTMENT 198 AUGUST 19, 2008 2. Submission No.: A 2008-058. A 2008-059 and B 2008-027 (Cont'd) The owner also requires variances for setbacks for the lot to be retained. The owner is proposing a variance from 10.0 m to 5.9 m for the rearyard setback. Staff note that the current setback from the house to the eastern property line (current side yard but proposed rear yard) is today considered legal non-conforming, however this status is lost as a result of the severance. Should the consent be approved, the front yard would shift from New Dundee Road to Fischer Hallman Road, as Fischer Hallman Road would be the shortest frontage. Therefore, the current side yard becomes the rear yard. However the lot still appears to front New Dundee Road, and no setbacks will be changing therefore, staff feel the proposed variance to the rear yard setback from 10m to 5.9 m meets the intent of the zoning. The proposed variance to the side yard setback from 7.5 m to 7.1 m also results from the proposed consent. The intent of a 7.5 m side yard setback in rural areas is to ensure the large lot and rural character are maintained, and to ensure appropriate setbacks between structures on lots. In this case the side yard appears and functions as the rear yard to the house, and typically the rear yard is used as private amenity space. However, given that the buildings already exist and given that this is still a relatively large lot for a single detached dwelling, staff feel that there is adequate outdoor amenity space for occupants. Therefore, based on the foregoing, staff do feel that the variances meet the intent of the zoning by-law, provided the owner can prove that the reduced lots sizes can support individual septic systems and wells. Overall, staff does not feel that the proposed variances are minor or appropriate for the future development and use of the lands. The proposed variances facilitate the proposed severance, which is not supportable and does not comply with agricultural policies of the City, Region or Province. Therefore, the variances are not appropriate for the use of the lands as two separate properties. While there are no physical changes proposed for the subject lands, the applications propose a new non- agricultural lot, with new ownership and new development rights into an agricultural area. Future changes on the individual lots and the simple creation of the lot, may impact future expansions on nearby farms due to the minimum distance separation formula calculations. Agricultural areas must be maintained and protected for agricultural uses, as they are given priority under the PPS. The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated August 1,2008 in which they advise that the purpose of this application is to request permission to sever a parcel of land having a width of 76.711 m on Fischer Hallman Road, having an irregular shape and having an area of 3,165.337 sq. m., containing an existing veterinary clinic. The retained land is at the corner of Fisher Hallman Road and New Dundee Road and will have a width along Fischer Hallman Road of approximately 58.458m (191.79'), a depth along New Dundee Road of approximately 60.485m (198.44'), having an irregular shape and having an area of 3,326.71 m (35,808.4 sq. ft). The existing and proposed use of the retained land is a single family residence. The subject lands are identified on the Regional Official Policies Plan (ROPP) Map. No. 3 as a Prime Agricultural Area and on Map NO.6 as an Agricultural Resource Area. The primary activities within these designations are intended to be farming, mineral aggregate extraction and forestry. Policy 5.1.5.1 of the ROPP outlines the scenarios in which the designation of new areas, or expansions to existing areas, for recreational and/or institutional uses may be permitted within Agricultural Resource Areas. Policy 5.1.5.1 a) states that "the lots accommodating the proposed use will not be located on Prime Agricultural Areas." The subject lands are located within the Prime Agricultural Area, and as a result, the proposed application does not conform to the ROPP. Policy 2.3.4.1 of the Provincial Policy Statement (PPS) outlines that lot creation in prime agricultural areas is discouraged and may only be permitted for agricultural uses, agricultural-related uses, a residence surplus to a farming operation, and infrastructure COMMITTEE OF ADJUSTMENT 199 AUGUST 19, 2008 2. Submission No.: A 2008-058. A 2008-059 and B 2008-027 (Cont'd) purposes. This application is not consistent with the PPS as it purposes the creation of a new non-farm related, non-residential lot which does not apply to any of the permitted uses above. In summary, the proposed consent application does not conform to the ROPP and it's not consistent with the PPS, and as a result, the Region recommends refusal of this application. The Committee considered correspondence from Kitchener-Wilmot Hydro Inc., dated July 30, 2008, advising that any approval of this application should include conditions that require the applicants to make satisfactory arrangements with Hydro for the provision of electrical servicing to this land, including granting any easements that they may require. Mr.Cubitt advised the Committee that both buildings have their own septic system which can be moved to keep each system on its own property. There is one well to serve both properties, and the Building Division advised that they need an easement for both properties to use the same well. The clinic has its own driveway. He advised that an associate of his wants to buy the veterinary clinic and he wants to keep the house. He advised that the clinic was constructed in 1980 and the house was constructed in 1990. Ms. Anderl advised that in the past 18 years since the house was constructed there has been a shift in agricultural policy. The Chair asked staff to carefully consider that these applications are not creating any new lots. Ms. Anderl stated that these applications can affect neighbouring properties. Mr. Cubitt advised that the farm across the street and the one behind him are owned by his family. The Chair requested that Mr. Cubitt give staff an opportunity to review the agricultural policies. Ms. Anderl responded that the severance does not comply with official plan policies and the Province's minimum distance separation (MDS) formula can affect the ability of neighbouring farmers to expand their barns. Mr. McColl responded that this is a unique, existing situation and he does not see it affecting the neighbours. The Chair stated that he is concerned about the MDS calculations. He suggested that consideration of these applications be deferred until the meeting of September 16, 2008 to allow staff to investigate MDS calculations and how they may affect neighbouring farm operations. He stated that the intent of the policies is to maintain farmable land and this land is not used that way at this time. Moved by Mr. B. McColl Seconded by Ms. C. Balcerczyk That consideration of applications B 2008-027, A 2008-058 and A 2008-059 for 2320 Fischer Hallman Road, Kitchener, submitted by Jeffrey Cubitt, be deferred to the Committee of Adjustment meeting scheduled for September 16, 2008, to allow staff an opportunity to provide this Committee with the Province's minimum distance separation (MDS) calculations and to provide further clarification on City of Kitchener and Region of Waterloo official plan policies as to how this application can be accommodated. Carried COMMITTEE OF ADJUSTMENT 200 AUGUST 19, 2008 On motion, the meeting adjourned at 11 :20 a.m. Dated at the City of Kitchener this 19th day of August, 2008. Dianne H. Gilchrist Secretary- Treasurer Committee of Adjustment