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HomeMy WebLinkAboutAdjustment - 2008-09-16 COMMITTEE OF ADJUSTMENT FOR THE CITY OF KITCHENER MINUTES OF THE REGULAR MEETING HELD SEPTEMBER 16. 2008 MEMBERS PRESENT: Messers D. Cybalski, A. Head & Ms. C. Balcerczyk OFFICIALS PRESENT: Ms. J. von Westerholt, Senior Planner, Mr. J. Lewis, Traffic Technologist, Ms. D. Gilchrist, Secretary-Treasurer, Ms. L. Garovat, Administrative Clerk and Ms. D. Hartleib, Administrative Clerk. Mr. D. Cybalski, Chair, called this meeting to order at 9:30 a.m. MINUTES Moved by Ms. C. Balcerczyk Seconded by Mr. A. Head That the minutes of the regular meeting of the Committee of Adjustment, of August 19, 2008, as mailed to the members, be accepted. Carried UNFINISHED BUSINESS MINOR VARIANCE 1 . Submission Nos.: Applicant: Property Location: Legal Description: A 2008-051 Greenbelt Construction Inc. 73 Amherst Drive Part Lot 28 and Part Syndenham Street, Plan 578, beina Part 3. Reference Plan 58R-15624 Appearances: In Support: D. Demian Contra: None Written Submissions: None The Committee was advised that the applicant is requested legalization of an existing house (under construction) having a rear yard of 7.35m (24.11') rather than the required 7.5m (24.6'). The Committee considered the report of the Development & Technical Services Department, dated August 7, 2008, in which they advise that the subject property is currently being developed with a single detached dwelling on Amherst Drive in the south east end of Kitchener. The property is designated as Low Rise Residential in the City's Official Plan and zoned Residential Three (R-3) with special provision 319U. The applicant is requesting permission to legalize a rear yard setback for a dwelling of 7.35 metres rather than the required 7.5 metres. 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 proposed variance meets the intent of the Official Plan as the property is designated Low Rise Residential and the use is for a residential dwelling. COMMITTEE OF ADJUSTMENT 181 SEPTEMBER 16, 2008 1. Submission No.: A 2008-051 (Cont'd) The proposed variance meets the intent of the Zoning By-law as the property is zoned R-3 which permits single detached dwellings. The rear yard setback of 7.5 metres is required to ensure adequate outdoor amenity space is provided for residential properties as well as ensuring adequate separation from dwellings on lots abutting the rear yard. Privacy for the enjoyment of the outdoor amenity area is also a consideration. The proposed building setback is slightly less than the required regulation and maintains the intent of the by-law. There is no visible difference in the setback between this property and the neighbours. The variance is minor because allowing this setback would not have an adverse effect on the neighbourhood, and it remedies an existing situation where no complaints have been received to date. The difference between the requested setback and the permitted setback is only 0.15 metres and is almost within the tolerance for which the City of Kitchener would not compel compliance. The request for minor variance is both appropriate and desirable as the outdoor amenity space will be maintained, and the neighbouring properties will not be negatively impacted. 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. Moved by Ms. C. Balcerczyk Seconded by Mr. A. Head That the application of Greenbelt Construction Inc. requesting legalization of an existing house (under construction) having a rear yard of 7.35m (24.11') rather than the required 7.5m (24.6') on Part Lot 28 and Part Syndenham Street, Plan 578, being Part 3, Reference Plan 58R-15624, 73 Amherst 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 Official Plan is being maintained on the subject property. Carried 2. Submission Nos.: Applicant: Property Location: Legal Description: A 2008-053 Velma, Rudyard and Clint Mitchell 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'). COMMITTEE OF ADJUSTMENT 182 SEPTEMBER 16, 2008 2. Submission No.: A 2008-053 (Cont'd) 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. 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. Mitchell advised that the Fire Department has already inspected this building and advised that everything is all right. He also advised that he has already submitted a parking plan to Transportation Planning staff. Ms. von Westerholt requested that the recommended conditions be imposed so that we can obtain confirmation that these conditions have been fulfilled. Moved by Mr. A. Head Seconded by Ms. C. Balcerczyk COMMITTEE OF ADJUSTMENT 183 SEPTEMBER 16, 2008 2. Submission No.: A 2008-053 (Cont'd) That the application of Velma, Rudyard and Clint Mitchell, 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'), on Part Lot 32, Plan 656, being Part 3, Reference Plan 58R-4871, BE APPROVED, subject to the following conditions: 1 . That the owners shall submit to and receive approval from Transportation Planning, of a properly scaled parking plan, and shall agree to implement the approved parking plan. 2. That the owners shall make arrangements with the City's Fire and Property Standards staff to inspect this building and shall receive approval from them for the basement unit. 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 COMBINED APPLICATION 1 . Submission Nos.: Applicant: Property Location: Leaal DescriDtion: B 2008-027, A 2008-258 and A 2008-059 Jeffrey Cubitt 2320 Fischer Hallman Road Part Lots 8 & 9. Richard Beaslev'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. 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.). COMMITTEE OF ADJUSTMENT 184 SEPTEMBER 16, 2008 1. Submission No.: B 2008-027. A 2008-258 and A 2008-059 (Cont'd) The Committee considered the report of the Development & Technical Services Department, dated August 28, 2008, in which they advise the above noted applications were previously discussed at the Committee of Adjustment meeting on Tuesday, August 19, 2008. The applications were deferred and staff were asked to provide further information to the Committee regarding Minimum Distance Separation (MDS) calculations and to provide further clarification of the City's and the Region's Official Plan policies with respect to how the applications could be accommodated. Official Plan The proposed consent is not consistent with the Agricultural policies of the Official Plan (OP). The intent of the Agricultural consent policies are to ensure that agricultural resources are protected. Section 9.1 .5 of the OP speaks to severances for new lots for non-farm-related uses. Severances are only permitted if they meet the following requirements: a) That non-farm-related residential lots only be created between two existing non- farm-related residential lots. Staff Comment: the proposed severance is not proposed between two existing non-farm related residential lots. This severance will create one lot that is residential, however the second lot is for a veterinary office. Therefore, this condition has not been met. b) Any non-farm-related residential unit shall be separated from any building housing livestock by a distance determined by the Minimum Distance Separation (MDS) formula. Staff Comment: please see the discussion on MDS below. c) The proposed lot shall not be permitted within any woodlot except as provided for in the Regional Tree Cutting By-law. Staff Comment: no concern d) The proposed lot shall not be permitted within or adjacent to an Environmentally Sensitive Policy Area. Staff Comment: no concern. e) That in the opinion of the Waterloo Regional Medical Officer of Health or the representative of the Ministry of the Environment and Energy, a private sewage disposal system can operate satisfactorily on the proposed lot(s). Staff Comment: The appropriate approvals would be necessary as a condition. f) Any new direct access to a Regional, Trunk or Primary Road to be created must comply with the Regional Road Access By-law and policies related thereto. Staff Comment: no concern g) The maximum permitted size of any lot(s) to be used for non-farm-related purposes shall be 1.2 hectares. Staff Comment: no concern h) The minimum permitted size of any lot(s) to be used for non-farm related purposes shall be 0.4 hectares. Staff Comment: The proposed lots do not meet the minimum size requirements. Because the minimum size is required by the Official Plan, this cannot be addressed through the Minor Variance process, but would require an Official Plan Amendment. Therefore, because the proposed consent does not meet the requirements for severances for non-farm related uses as outlined in the Official Plan, staff feel that the proposed consent cannot be supported. COMMITTEE OF ADJUSTMENT 185 SEPTEMBER 16, 2008 1. Submission No.: B 2008-027. A 2008-258 and A 2008-059 (Cont'd) Reaion Official Policies Plan The subject lands are identified on the Region Official Policies Plan (ROPP) Map NO.3 as Prime Agricultural Area and on Map NO.6 as an Agricultural Resource Area. ROPP policy 5.1.1.6 states that "the creation of lots for non-farm uses will not be permitted within Agricultural Resource Areas," except in the following special cases: a) conservation of woodlands, b) rectifying situations where farms have merged in title, c) infilling non-farm related residential lots only between existing non-farm related residential lots, d) creation of non-farm related residential lots in certain areas of North Dumfries, e) designation of new areas or expansions of existing areas for recreational or institution uses, f) for the establishment of small schools and churches for the Mennonite community, g) a new lot will not be deemed to have been created where consent is given for the following purposes (and are also contained in the City's OP): i) to create or alter an easement, ii) to correct or confirm valid title for a lot, iii) to make minor adjustment to conform to existing patterns of exclusive use and occupancy, or to rectify problems created by the encroachment of buildings or structures, private water supply or private sewage disposal facilities on abutting lots, iv) to make boundary adjustments between lots that do not result in the creation of any additional lot held, or capable of being held, in distinct and separate ownership. The proposed severance does not represent any of the above mentioned exceptions, therefore the creation of the lot is not permitted by ROPP policies, and the application should not be supported. Provincial Policy Statement 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 purposes. This application is not consistent with the above noted policy as it proposes the creation of a new non-farm related, non-residential lot. Therefore, because approval of Consent Applications must be consistent with the PPS, this application cannot be supported. Minimum Distance Separation With respect to the calculation of the Minimum Distance Separation (MDS) staff have contacted the Township of North Dumfries to obtain the information required to perform the MDS calculation. This includes details with respect to the size of the barns, tillable hectares, type and amount of animals and manure storage locations. At this time, staff do not have the information necessary to complete the MDS calculations. However, notwithstanding the MDS calculations, staff feel that the proposed consent does not conform to any other agricultural consent policy of the City of Kitchener or the Region of Waterloo and is not consistent with the Provincial Policy Statement. Therefore, 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, while the uses of both the retained lands and the lands to be severed are permitted, and the proposed lots front onto established public streets, further information and possibly a separate application for easements would be required in order to ensure that adequate services are available for both the severed and retained lands. The proposed consent does not conform to the policies contained within the City of Kitchener Official Plan, the Regional Official Policies Plan and is not consistent with the Provincial Policy Statement, and should therefore be refused. COMMITTEE OF ADJUSTMENT 186 SEPTEMBER 16, 2008 1. Submission No.: B 2008-027. A 2008-258 and A 2008-059 (Cont'd) Staff comments with respect to the proposed variances remain the same as previously presented. However, in summary, staff feel that the proposed variances do not meet the intent of the Official Plan, but may be able to meet the intent of the Zoning By-law subject to certain conditions. Staff feel that the proposed variances are neither minor nor appropriate for the future development and use of the lands, because they are intended to facilitate the proposed severance which is not supportable and does not comply with agricultural consent policies of the City, Region or Province. 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 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 is not consistent with the PPS, and as a result, the Region recommends refusal of this application. 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 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. Ms. von Westerholt advised that staff contacted the Township of North Dumfries to obtain information necessary to do the MDS calculations; however, they were not able to provide that information. Ms. von Westerholt then provided information on Official Plan Policies, Region Official Policy Plan policies and the Provincial Policy Statement; all of which prohibit lot creation in this circumstance. The Chair stated that these policy documents are very clear, and based on these policy documents, the Committee must refuse these applications. COMMITTEE OF ADJUSTMENT 187 SEPTEMBER 16, 2008 1. Submission No.: B 2008-027. A 2008-258 and A 2008-059 (Cont'd) Ms. von Westerholt suggested another possibility, that the veterinary clinic could be leased for a period less than 21 years. By that time there is a possibility that planning policies may have changed. Mr. Cubitt was very angry, stating that prior to the August Committee of Adjustment meeting he had met with staff about his applications and was advised that there was no reason why these applications could not be approved. The only reason these applications were deferred at the last meeting was so staff could provide the MDS calculations, which have not been provided. Ms. von Westerholt stated that the MDS calculations are not the only deciding factor, and she again reviewed the Provincial Policy Statement as is applies to this applications. Submission No. B 2008-027 Moved by Mr. A. Head Seconded by Ms. C. Balcerczyk That the application of Jeffrey Cubitt 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.), on Part Lots 8 & 9, Richard Beasley's New Survey, 2320 Fischer Hallman Road, Kitchener, Ontario, BE REFUSED. It is the opinion of this Committee that: 1. This application does not conform to the City of Kitchener Official Plan, the Region Official Policies Plan or the Province of Ontario's Provincial Policy Statement. Carried Submission No. A 2008-058 Moved by Mr. A. Head Seconded by Ms. C. Balcerczyk That the application of Jeffrey Cubitt 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.), on Part Lots 8 & 9, Richard Beasley's New Survey, 2320 Fischer Hallman Road, Kitchener, Ontario, BE REFUSED. It is the opinion of this Committee that: 1 . This application does not conform to the City of Kitchener Official Plan. Carried Submission No. A 2008-059 Moved by Mr. A. Head Seconded by Ms. C. Balcerczyk COMMITTEE OF ADJUSTMENT 188 SEPTEMBER 16, 2008 1. Submission No.: B 2008-027. A 2008-258 and A 2008-059 (Cont'd) Submission No. A 2008-059 (Cont'd) That the application of Jeffrey Cubitt 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.), on Part Lots 8 & 9, Richard Beasley's New Survey, 2320 Fischer Hallman Road, Kitchener, Ontario BE REFUSED. It is the opinion of this Committee that: 1 . This application does not conform to the City of Kitchener Official Plan. Carried This meeting recessed at 9:45 a.m. and reconvened 10:10 a.m. at with the following members present: Ms. C. Balcerczyk and Messrs. D. Cybalski, A. Head. NEW BUSINESS MINOR VARIANCE 1 . Submission Nos.: Applicant: Property Location: Leaal DescriDtion: A 2008-060 Sandra Singh 301 Frederick Street Part Lots 4. 5 & 7. Reaistered Plan 197 Appearances: In Support: R. Singh Contra: None Written Submissions: None The Committee was advised the applicant is requesting legalization of a building used for offices, having a lot width of 13.37m (43.86') rather than the required 15m (49.21') and permission to provide 7 off-street parking spaces for the office use rather than the required 10 off-street parking spaces. The Committee considered the report of the Development and Technical Services Department, dated September 4, 2008, advising that the applicant is requesting a minor variance to legalize an existing lot width of 13.37 metres, rather than the required 15.0 metres and to allow 7 off-street parking spaces rather than the required 10 off-street parking spaces for an office use. The subject property had previously been granted Committee of Adjustment approval under Application No. A21/91 to enclose a portion of an existing front veranda to have a setback from Frederick Street of 6.33 metres, a reduced westerly side yard setback of 1.44 metres, to provide 6 off-street parking spaces and to eliminate the required screening along the east property line. The variance application was approved subject to three conditions, however, the owner failed to fulfil the conditions and the variance is considered void. One condition of the previous approval was that a mutual right-of-way for vehicular access purposes between the owner of 301 and 305 Frederick Street be registered on title for both properties. The owner made a consent application (B31 /91) to create the right-of-way, however, this too was never completed and is therefore void as well. Staff recognize that the subject property has been used as an "office" for many years, however it has never been legalized. COMMITTEE OF ADJUSTMENT 189 SEPTEMBER 16, 2008 1. Submission No.: A 2008-060 (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 Municipal Plan for the following reasons. The property is designated as Low Density Commercial Residential in the Central Frederick Secondary Plan. This designation supports the use of the property as an "office". The variance meets the intent of the Zoning By-law for the following reasons. The property is zoned Commercial Residential One zone (CR-1) with a Special Regulation Provision limiting the building height and floor space ratio for any new construction, as well as a Special Use Provision prohibiting certain uses normally permitted in the CR-1 zoning. The proposed "office" use of the property is permitted in the CR-1 zoning category and is in compliance with all other regulations of the CR-1 zoning. The variance for a reduction in parking meets the intent of the Zoning By-law as the 7 proposed spaces to be accommodated on site appear to function and the property is located on a public transit route in close proximity to the main transit terminal. Having immediate access to public transit encourages alternate modes of transportation. Site plan approval for the parking lot will be required. The variance is minor for the following reasons. The building on the subject property has been in existence since approximately 1915, when it was originally built as a single detached dwelling. The existing 13.37 metre lot width accommodates the existing building and a narrow access drive to the proposed parking at the rear of the building. Further, the property has been used as an office for many years without any record of complaint. The proposed parking reduction can be considered minor in nature as there is immediate access to public transit on Frederick, public sidewalk is available in all directions to the subject site and the applicant will provide 7 parking spaces on site. However, as required under the previous Committee of Adjustment approval, in order to ensure that access to the parking at the rear of the property is maintained, staff will require as a condition of approval that a mutual right-of-way be registered on title of 301 and 305 Frederick Street. The existing driveway width of 301 Frederick Street is 2.4 metres and 305 Frederick has an existing driveway width of 2.15 metres. With a mutual right-of-way over both properties access to required parking will be maintained in perpetuity. The variance is appropriate for the development and use of the land for the following reasons. The Commercial-Residential nature of the property provides for the use of the property as an office which is in keeping with the character of the surrounding area. There is a mix of residential and office type uses along this section of Frederick Street. Providing some parking for the use at the rear of the property will not take away for the "residential" look of the building or affect the streetscape. Approval of the minor variance application for a reduction in lot width and parking is in keeping with the Provincial Policy Statement and Places to Grow Plan. It is an appropriate intensification of use on a former residential property, within an area of Kitchener that is accommodating to both commercial and residential uses in harmony. The Committee considered the report of the Region of Waterloo Transportation Planner, dated September 1,2008, advising that they have no concerns with this application. Ms. von Westerholt spoke to the second condition in the staff report, noting that it should be reworded to require the owner of 301 Frederick Street to approach the owner of 305 Frederick Street to apply for Consents on each property to create a mutual right- of-way. COMMITTEE OF ADJUSTMENT 190 SEPTEMBER 16, 2008 1. Submission No.: A 2008-060 (Cont'd) Mr. Singh noted that these properties have been in existence since 1915 and they had a mutual right-of-way which should still be there. Ms. von Westerholt advised that new easements would ensure that they exist and that both owners are aware of their existence. This is a way of ensuring that both properties have access. Moved by Ms. C. Balcerczyk Seconded by Mr. A. Head That the application of Sandra Singh requesting legalization of a building used for offices, having a lot width of 13.37m (43.86') rather than the required 15m (49.21') and permission to provide 7 off-street parking spaces for the office use rather than the required 10 off-street parking spaces, on Part Lots 4, 5 & 7, Registered Plan 197, 301 Frederick Street, Kitchener, Ontario, BE APPROVED, subject to the following conditions: 1 . That the owner shall submit and receive approval of a site plan application from the City's Development and Technical Services Department. 2. That the owner shall approach the owner 305 Frederick Street and pursue a mutual right-of-way for vehicular access, to the benefit of both properties. Both property owners shall submit Applications for Consent, each for their own property, and the mutual right-of-way shall be registered on title for both properties prior to the owner of 301 Frederick Street receiving approval of her site plan. 3. That conditions 1 and 2 shall be satisfied by March 1 , 2009. 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 2. Submission Nos.: Applicant: Property Location: Leaal Descriotion: A 2008-061 Nazira Saleh 1 63-165 Victoria Street South Lot 2. Plan 49 Appearances: In Support: N. Saleh Contra: None Written Submissions: None The Committee was advised that the applicant is requesting legalization of an existing building having a front yard setback from Victoria Street of 2.5m (8.2') rather than the required 3m (9.8') and a side yard setback from Park Street of Om rather than the required 3m (9.8'). The Committee considered the report of the Development and Technical Services Department, dated September 5, 2008, advising that the subject property is located at the intersection of Victoria and Park Streets and has historically been used a one COMMITTEE OF ADJUSTMENT 191 SEPTEMBER 16, 2008 2. Submission No.: A 2008-061 (Cont'd) dwelling unit and a small commercial unit. The property is zoned Convenience Commercial Zone (C-1) with a Special Use Provision to permit a recording studio on the premises. The owner of the property is seeking a new tenant who wishes to operate a personal service use. The change of use from "convenience retail" to "personal service" has identified the need for the minor variance application. The applicant is requesting a minor variance to allow a 2.5 metre front yard setback from Victoria Street rather than the required 3.0 metre setback and a 0.0 metre side yard setback from Park Street rather than the required 3.0 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 property is designated as a Mixed Use Corridor and the policies of this designation call for uses that are primarily intended to service the adjacent residential neighbourhoods and employment area and allow for intensive transit supportive development. The requested variances relate to building setback from the property lines which will have no impact on the Official Plan designation of the property. The proposed use of the property is a personal service use and one dwelling unit. This is in keeping with the Official Plan. The variance meets the intent of the Zoning By-law for the following reasons. The property is zoned Convenience Commercial Zone (C-1) which permits the use of the property for a personal service use and dwelling unit. The building has existed on the property since approximately 1928 and the change of use will not create any greater impact on the property that what has previously existed and is in compliance with all other regulations of the C-1 zoning. The variance is minor in nature for the following reasons. The building on the property has existed since approximately 1928. There are no exterior changes proposed to the building that will further impact the setback deficiencies. Legalizing the deficient yard setbacks will not impact the streetscape or the abutting properties. The variance is appropriate for the development and use of the land for the following reasons. The proposed uses of personal service and dwelling units are permitted in the C-1 zoning of the property. Considering the small size of the building, the combination of uses is appropriate. The Committee considered the report of the Region of Waterloo Transportation Planner, dated September 1,2008, advising that they have no concerns with this application. Moved by Mr. A. Head Seconded by Ms. C. Balcerczyk That the application of Nazira Saleh requesting legalization of an existing building having a front yard setback from Victoria Street of 2.5m (8.2') rather than the required 3m (9.8') and a side yard setback from Park Street of Om rather than the required 3m (9.8'), on Lot 2, Plan 49, 163-165 Victoria Street South, 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 192 SEPTEMBER 16, 2008 2. Submission No.: A 2008-061 (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 CONSENT 1 . Submission Nos.: Applicant: Property Location: Legal Description: B 2008-028 Tracy Bennett 629 Guelph Street Part of Edwin Street, Registered Plan 671 (closed by By-law 3732, also known as Part Lot 111, Streets and Lanes) and Part of Lane, Registered Plan 250 (closed by By-Law 2000- 176) Appearances: In Support: C. Bennett 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 Blucher Street of 14.704m (48.24') by a depth on the easterly side of 36.926m (121.14') and on the westerly side of 37.147m (121.87') and having an area of 545 sq. m. (5,866.52 sq. ft.), subject to a right-of-way in favour of the retained land and together with a right-of-way over the retained land. The proposed use of the property is a duplex dwelling. The retained land will have a width on Guelph Street of 20.162m (66'14') by a depth of 52m (170.6') and an area of 1,002.9 sq. m. (10,795.47 sq. ft.). The existing and proposed use of the retained land is a single family dwelling. The Committee considered the report of the Development & Technical Services Department, dated September 8, 2008, in which they advise that the subject property is addressed at 629 Guelph Street; however it is a through lot, having frontage on both Guelph Street and Blucher Boulevard. The site currently contains a decommissioned fire station which has been converted into a single detached dwelling. There is currently a right-of-way over the lands which provides access from Blucher Boulevard to the rear yard of 633 Guelph Street. The applicant is seeking consent to sever the rear of the property to allow construction of a duplex, and is also requesting a new right-of-way over the lands to be severed in favour of the lands to be retained. The proposed right-of-way is to be in exactly the same location as the existing right-of way which provides access to 633 Guelph Street. The lands are designated Low Rise Residential in the Official Plan and are zoned Neighbourhood Institutional Zone (1-1) with Special Regulation Provision 93R which limits the location of day cares. The designation and zoning permit the existing use of single detached dwelling and proposed duplex dwelling. With respect to the criteria for the subdivision of land listed in Section 51 (24) of the Planning Act, R.S.O. 1990, c.P.13, the uses of both the severed and retained parcels are in conformity with the City's Official Plan, the dimensions and shapes of the proposed lots are appropriate and suitable for the existing uses and any proposed use of the lands, and the lands front on established public streets. Also, the resultant lots will be compatible in size with the lots in the surrounding area. The lands to be retained are fully serviced, and services are available for the lands to be severed; however, the COMMITTEE OF ADJUSTMENT 193 SEPTEMBER 16, 2008 1. Submission No.: B 2008-028 (Cont'd) owner will be required to make arrangements with Engineering Services to extend water and sanitary services to the property line for the future duplex dwelling. There is currently a right-of-way registered over the rear of the property from Blucher Boulevard which provides access to 633 Guelph Street. Staff have explored whether it is feasible to create access to 633 Guelph Street from Guelph Street itself; however find that it would be difficult due to the significant difference in elevation between Guelph Street and the subject house. As such, staff feel that it is appropriate for the existing right-of-way to be maintained as it is; however it will now be over both the retained and severed parcels. Further to the existing right-of-way, the owner has also applied for a right-of-way over the lands to be severed in favour of the lands to be retained in the exact location of the existing right-of-way. This will allow the owners of the retained lands access over the severed lands to their rear yard. Staff have no concern with the requested right-of-way. Conditions have been included with respect to a joint maintenance agreement, and submission of a draft reference plan showing all the relevant parts to the satisfaction of the Director of Planning prior to registration. Staff feel that the proposed consent is consistent with the Provincial Policy Statement, and conforms with the Growth Plan for the Greater Golden Horseshoe. The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated September 5, 2008 in which they advise that they have no objections to this application. The Committee considered correspondence from Kitchener-Wilmot Hydro Inc., dated August 26, 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. Moved by Mr. A. Head Seconded by Ms. C. Balcerczyk The application of Tracy Bennett requesting permission to sever a parcel of land having a width on Blucher Street of 14.704m (48.24') by a depth on the easterly side of 36.926m (121.14') and on the westerly side of 37.147m (121.87') and having an area of 545 sq. m. (5,866.52 sq. ft.), subject to a right-of-way in favour of the retained land and together with a right-of-way over the retained land, on Part of Edwin Street, Registered Plan 671 (closed by By-law 3732, also known as Part Lot 111, Streets and Lanes) and Part of Lane, Registered Plan 250 (closed by By-Law 2000-176), 629 Guelph Street, 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 owner shall receive approval of a draft reference plan showing the proposed right-of-way for access from the City's Director of Planning. 4. a) That the Transfer Easement creating the right-of-way for access shall be approved by the City Solicitor prior to registration; COMMITTEE OF ADJUSTMENT 194 SEPTEMBER 16, 2008 1. Submission No.: B 2008-028 (Cont'd) b) That the owners of the lands to be severed and the lands to be retained, shall enter into a joint maintenance agreement to be approved by the City Solicitor, to ensure that the right-of-way for access is maintained in perpetuity, which agreement shall be registered on title immediately following the Transfer Easement; c) The owners of the lands to be severed and the lands to be retained shall acknowledge in the joint maintenance agreement, the existence of the right-of-way for access for the benefit of 633 Guelph Street, as set out in Instrument Numbers 1493261 and 1512429 and agree to keep the right- of-way free of any obstructions and maintain same as a driveway; d) The Transfer Easement and joint maintenance agreement shall be accompanied by a satisfactory Solicitor's Undertaking to register the approved Transfer Easement and immediately thereafter the approved joint maintenance agreement; and, e) The City Solicitor shall be provided with copies of the registered Transfer Easement and joint maintenance agreement. 5. That the owner shall pay to the City of Kitchener a cash-in-Iieu contribution for park dedication equal to 50/0 of the value of the lands to be severed. 6. That the owners shall make financial arrangements to the satisfaction of the City's Engineering Services, for the installation of: all new service connections, new curb and gutter, boulevard landscaping including street trees, and a paved driveway ramp, on the severed lands, and for the closure of all redundant portions of driveway. 7. That the owner shall enter into an agreement with the City of Kitchener to be prepared by the City Solicitor and registered on title of the severed lands which shall include the following: a) That the owner shall prepare a Tree Preservation Plan for the severed lands in accordance with the City's Tree Management Policy, to be approved by the City's Director of Planning and where necessary, implemented prior to any grading, tree removal or the issuance of building permits. Such plans shall include, among other matters, the identification of a proposed building envelope/work zone, landscaped area and vegetation to be preserved. b) The owner further agrees to implement the approved plan. No changes to the said plan shall be granted except with the prior approval of the City's Director of Planning. 8. That the owner shall make arrangements satisfactory to Kitchener-Wilmot Hydro Inc. for the provision of electrical servicing to the land to be retained and the land to be severed, including granting any easements required by Kitchener-Wilmont Inc. 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. COMMITTEE OF ADJUSTMENT 195 SEPTEMBER 16, 2008 1. Submission No.: B 2008-028 (Cont'd) 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 September 16, 2010. Carried 2. Submission Nos.: Applicant: Property Location: Leaal Descriotion: B 2008-029 Alfred Wirschke, Christine Wirschke, Kevin Wirschke and Timothy Wirschke 12-14 Carnaby Crescent Part Lot 35. Reaistered Plan 1216 Appearances: In Support: H. Wirschke B. Greenwood Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to sever 2 semi-detached dwelling units so that each one may be dealt with separately. The land to be severed, 14 Carnaby Crescent, has a width of 10.927m (35.84') by an average depth of 34.991 m (114.79') and an area of 353.12 sq. m. (3,801.07 sq. ft.). The retained land at 12 Carnaby Crescent has a width of 9.943m (32.62') a depth of 36.414m (119.46') and an area of 361.29 sq. m. (3,889.02 sq. ft.). The Committee considered the report of the Development & Technical Services Department, dated September 5, 2008, in which they advise that the subject property is located on Carnaby Crescent, which is located east of the intersection of Old Chicopee Drive and Ottawa Street North, in the Idlewood Planning Community of Kitchener. The surrounding area is developed with a diverse mixture of low density residential uses including single detached dwellings, semi-detached dwellings, and 3-unit multiple dwellings. The subject property contains a semi-detached dwelling constructed in approximately 1968. The dwelling is located on a single lot. The property is designated as Low Rise Residential in the Official Plan and zoned Residential Four (R-4). The applicant is requesting consent to sever the subject property into two lots in such a way as to allow separate ownership of each semi-detached house. The severed lot would have a frontage of 10.9 metres and an area of 353.1 square metres, while the retained lot would have a frontage of 9.9 metres and an area of 361.3 square metres. With respect to the criteria for the subdivision of land listed in Section 51 (24) of the Planning Act, R.S.O. 1990. c.P. 13, the severed and retained parcels are in conformity with the City's Official Plan and Zoning By-law. In addition, the dimensions and shapes of the proposed lots are appropriate and the land is suitable for the use of the lots as semi-detached houses, the lands front on an established public street, and both parcels of land are currently serviced with independent and adequate service connections to municipal services. Also, the resultant lots would be compatible with those in the surrounding area. The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated September 5, 2008 in which they advise that they have no concerns with this application. COMMITTEE OF ADJUSTMENT 196 SEPTEMBER 16, 2008 2. Submission No.: B 2008-029 (Cont'd) Moved by Mr. A. Head Seconded by Ms. C. Balcerczyk That the application of Alfred Wirschke, Christine Wirschke, Kevin Wrischke, Timothy Wirschke requesting permission to convey a parcel of land having a width on Carnaby Crescent of 10.927m(35.84') by an average depth of 34.991 m(114.79') and an area of 353.12 sq.m. (3,801.07 sq. ft.), on Part Lot 35, Registered Plan 1216, 14 Carnaby Crescent, 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. 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 September 16, 2010. Carried 3. Submission Nos.: Applicant: Property Location: Legal Description: B 2008-030 Deerfield Homes Ltd. 171 David Bergey Drive Part Lot 137, German Company Tract, being Part 1 , Reference Plan 58R-15790 Appearances: In Support: A. Lavallee Contra: None Written Submissions: None The Committee was advised that the applicant is requesting permission to give an easement over a parcel of land having an irregular shape and having a width of 2.367m (7.76') and a depth of approximately 8.192m (28.87') located at the southeast corner of the subject property. This easement will be to the benefit of Waterloo Standard Condominium Corporation No. 398. The property will continue to be used as a single family dwelling. COMMITTEE OF ADJUSTMENT 197 SEPTEMBER 16, 2008 3. Submission No.: B 2008-030 (Cont'd) The Committee considered the report of the Development & Technical Services Department, dated September 5, 2008, in which they advise that the purpose of this consent application is to convey a sanitary sewer easement in favour of Waterloo Standard Condominium Corporation 398, 175 David Bergey Drive, over a 332 square metre piece of property located at 171 David Bergey Drive. The easement was the requirement of site plan approval and the developer is fulfilling his obligation. The subject lands are designated as Low Rise Residential in the Municipal Plan and zoned Residential Six (R-6) with special regulation 291 R in By-law 85-1 . This request was approved by the Committee under application B2007 -018, however the decision has lapsed. 175 David Bergey Drive is developed as a 98 unit townhouse condominium complex. 171 David Bergey contains a single detached dwelling. The Committee considered the report of the Region of Waterloo, Planning, Housing & Community Services, dated September 5, 2008 in which they advise that they have no objections to this application. Ms. Lavallee questioned conditions 3 (b) and 3 (c) as recommended by staff. She stated that there is only one owner and the easement will only be the responsibility of one property owner. She also advised that this application requests a sanitary sewer easement and not a right-of-way for access. Ms. von Westerholt advised that the City's Legal Services have requested that these conditions be imposed, as the Registry Office does not police these easements. If the property changes hands, the City wants to make sure that the new owner knows there is an easement. Ms. Lavallee requested that the words "If required by the City Solicitor" be added to conditions 3 (b) and 3 (c), which the Committee agreed to do. Moved by Ms. C. Balcerczyk Seconded by Mr. A. Head That the application of Deerfield Homes Ltd. requesting permission to give a sanitary sewer easement over a parcel of land having an irregular shape, having a width of 2.367m (7.76') and a depth of approximately 8.192m (28.87'), to the benefit of Waterloo Standard Condominium Corporation No. 398, on Part Lot 137, German Company Tract, being Part 1, Reference Plan 58R-15790, 171 David Bergey 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. (a) That the Transfer of Easement creating the (right-of-way for access or parking)/(easement for services and stormwater management) shall be approved by the City Solicitor prior to registration; (b) That if required by the City Solicitor, the owner of the lands to be severed and the lands to be retained shall enter into a joint maintenance agreement to be approved by the City Solicitor, to ensure that the right-of- way for access is maintained in perpetuity, which agreement shall be registered on title immediately following the Transfer of Easement; COMMITTEE OF ADJUSTMENT 198 SEPTEMBER 16, 2008 3. Submission No.: B 2008-030 (Cont'd) (c) The if required by the City Solicitor the Transfer of Easement and joint maintenance agreement shall be accompanied by a satisfactory Solicitor's Undertaking to register the approved Transfer of Easement, and immediately thereafter, the approved joint maintenance agreement; and, (d) The City Solicitor shall be provided with copies of the registered Transfer of Easement and joint maintenance agreement. 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 September 16, 2010. Carried On motion, the meeting adjourned at 10:35 a.m. Dated at the City of Kitchener this 16th day of September, 2008. Dianne H. Gilchrist Secretary- Treasurer Committee of Adjustment