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PRESENT:
Lord Mayor Betty Disero, Councillors: Gary Burroughs, Norm Arsenault (2:20 pm), Al Bisback, Clare Cameron, Wendy Cheropita, Stuart McCormack, Erwin Wiens
REGRETS:
Councillor John Wiens
STAFF:
Eric Withers Manager of Planning
Mark Iamarino Planner II
Joanna Rees Planner I
Ashlea Carter Secretary-Treasurer, Committee of Adjustment
Liam Murphy Student Planner
Peter Todd Town Clerk
Colleen Hutt Deputy Clerk
OTHERS:
Callum Shedden Daniel & Partners
MEDIA:
Beth Audet Niagara This Week
CALL TO ORDER:
The Lord Mayor is to call the Special Council Meeting to order at 2:00 p.m. to deal specifically with an Appeal of Committee of Adjustment Decision FV-2/18 dated July 19, 2018 regarding 83 Melrose Drive.
The Clerk confirmed that the Notice of Appeal was mailed to interested parties on November 19, 2018.
The Clerk described in the procedure for the meeting as presented in the agenda.
CONFLICT OF INTEREST:
There were no conflicts on interest declared.
FENCE VARIANCE APPLICATION FV-02/18
83 Melrose Drive
The following information is being provided to Council Members as per the Town's Fence By-law Appeal procedure which was adopted by Council on April 18, 2016.
1. A copy of the Notice of Appeal
2. The complete record before the hearing of the Committee of Adjustment
3. A copy of the notice of the appeal hearing
4. A copy of report CS-16-011 which was approved by Council on April 18, 2016 which includes a copy of Fence By-law 4778-14 and the Fence By-law Appeal Procedure.
WITNESSES TO BE HEARD IN THE FOLLOWING ORDER:
All individuals giving evidence before Council on the appeal hearing shall testify under an oath or solemn affirmation.
Statement read:
Do you affirm that the evidence to be given by you in regard to the matters in question between the parties to this proceeding shall be the truth, the whole truth, and nothing but the truth.
1. Town Planner(s) and/or any other Town staff and/or any other witness(es) retained by the Town shall give evidence as to the position of Town staff concerning the minor fence variance sought on appeal, and upon completion of the Town's evidence, those individuals who gave evidence on behalf of the Town shall be subject to questioning by the Appellant and by Council
At this time, Mark Iamarino, Planner II came forward and summarized the staff report provided to the Committee of Adjustment.
Mr. Iamarino stated the variances requested were as follows:
1. Maximum height from 1 metre, as required in the Fence By-law, to 2 metres for the existing hedge in the front yard.
2. Maximum height from 1 metre, as required in the Fence By-law, to 1.64 metres for the existing fence, parallel to a drive way and 4.5 metres from the street line.
3. Maximum height from 2 metres, as required in the Fence By-law, to 2.15 for the existing fence in the north side yard.
4. Maximum height from 1 metre, as required in the Fence By-law, to a range of 1.64 to 2.1 metres for the existing fence in the front yard.
Mr. Iamarino provided the following information:
Section 45(1) of the Planning Act establishes four tests for considering minor variances: whether the variances is minor, is appropriate for the development of the land, building or structure, and maintains the general intent of the general intent of the bylaw and official plan.
Section 20.3 of the Town's Official Plan, General Transportation Polices - Site Triangles shall be provided where ever possible at road intersections. Zoning By-law, Section 6.17 where a fence has been constructed the height limitation will be determined by the fence by-law.
He stated staffs' opinion is the intent of the Fence By-law is to not only allow for privacy but also to prevent traffic safety concerns by providing drivers visible site lines. Due to the orientation of the house the portion of the lot that appears to be the rear yard amenity space, is the technically the side yard of the property.
Mr. Iamarino further stated that staff did not support variance 1 and 2 as they did not meet the four tests for minor variance pursuant to Section 45(1) of the Planning Act.
Mr. Iamarino answered questions from Council in regard to the variances.
2. Any Interested Parties in favour of the minor fence variance sought on appeal shall present their evidence, and upon completion of their evidence, shall be subject to questioning by the Appellant and by Council.
Greg Dell, Agent on Behalf of Applicant, was affirmed and came forward.
Mr. Dell stated they would like appeal dismissed due to incorrect information provided on the notice of appeal and also because the it is his opinion that the appeal is frivolous. Mr. Dell provided four photographs for Councils review showing the laneway as it abuts Melrose Drive and described the nature of the application. He stated the large willow tree that sits between the fence and the hedge is a concern. The applicant has offered to remove the first section of lattice that would provide a better site line.
Mr. Dell answered questions from Council with regard to the Applicant's property.
Paul Jurbala, Applicant was affirmed and came forward.
Mr. Jurbala, 83 Melrose Drive, stated the hedge and fence do not create a traffic hazard, in his opinion. Other neighbours who use the laneway were contacted and they have stated that the corner is not a safety concern for them. Mr. Jurbala further stated the hedge and fence have been in place for more than 24 years. The applicant's had offered to remove the first section of lattice again after the variances were approved in order to negate the appeal. Mr. Jurbala requested Council to ratified the approvals by the Committee of Adjustment.
Mr. Jurbala answered questions from Council with regard to the height and maintenance of the hedge.
3. Any Interested Parties against the minor fence variance sought on appeal shall present their evidence, and upon completion of their evidence, such interested Parties shall be subject to questioning by the Appellant and by Council.
Mr. Thomas Richardson, Sullivan, Mahoney was affirmed and came forward.
Mr. Richardson appeared on behalf of the Appellants, Mr. & Mrs. Morley. Mr. Richardson provided an exhibit book for Council reference.
Mr. Richardson first referred to a sketch showing 83, 89, 93 and 97 Melrose Drive, stating that the laneway served the properties of 89, 93 and 97 Melrose Drive. 89 Melrose Drive has a secondary access on the laneway. Mr. Richardson spoke to the exhibit book and referenced an aerial, photographs from Mr. Morley, the fence by-law, the staff report and decision of the Committee of Adjustment. He stated the height of the hedge has not always been in its current state, as was shown in the photographs dated 1990-1993.
Mr. Richardson stated that the Appellants were appealing variances 1 and 2, as they did not meet the requirements in the Planning Act for a minor variance. They were requesting that Council allow the appeal and refuse variances 1 and 2.
Mr. Richardson answered questions from Council in regard to the orientation of the property, owner status of the property and laneway. He also answered questions from Mr. Dell in regard to the laneway and the construction of the fence and planting of the hedge.
John Morley, Appellant was affirmed and came forward.
Mr. Morley provided a history of the laneway, hedge and fence. Mr. Morley answered questions from Council in regard to the hedge and the safety concern at the corner.
Mark Iamarino was recalled to the podium to answer further questions from Council in regard to definition, side, front and rear yards.
Council proceeded to discuss the details of the variances.
Moved by Councillor Norm Arsenault, seconded by Clare Cameron:
Variance No. 1
That a maximum height of the existing hedge be 1 metre in height for a distance of 4.5 metres from the travelled portion of the private lane; and
That a maximum height from 1 metre, as required in the Fence By-law, to 2 metres be permitted for the existing hedge in the front yard beyond 4.5 metres from the travelled portion of the private lane.
APPROVED (resolution #1)
Moved by Councillor Clare Cameron, seconded by Allan Bisback:
Variance No. 2
That a maximum height of the existing fence be 1 metre in height for a distance of 4.5 metres from the travelled portion of the Melrose Drive; and
That a maximum height from 1 metre, as required in the Fence By-law, to 1.64 metres be permitted for the existing fence in the front yard beyond 4.5 metres from the travelled portion of the Melrose Drive.
APPROVED (resolution # 2).
GENERAL INFORMATION:
Council may make any decision that the Committee of Adjustment could have made pursuant to the Fence By-law.
The decision of Council is final and not subject to review including review by any Court.
No decision of Council on an appeal is valid unless it is concurred by the majority of the members of Council that heard the appeal, and the decision of Council, whether granting or refusing an appeal, shall be in writing and shall be signed by the members of Council who concur in the decision.
Any authority or permission granted by Council may be for such time and subject to such terms and conditions as Council considers advisable and as are set out in the decision.
The Clerk's Department shall not later than ten (10) days from the making of the decision by Council send one (1) copy of the decision to:
a) the Appellant;
b) to the Interested Parties who gave evidence in the appeal hearing; and
c) to By-law Enforcement Department of the Town.
An appeal to Council operates as a stay of any pending prosecution under the Fence By-law relating to the property at issue until Council has made its decision respecting the appeal.
PROCEEDINGS BY-LAW:
Clerk to read resolution for reading of by-law
(5109-18) - A by-law to confirm the proceedings at the Council Meeting of the Corporation of the Town of Niagara-on-the-Lake on December 12, 2018.
-resolution #3, BY-LAW RECEIVED THREE READINGS.
RESOLUTIONS:
1. Moved by Councillor Norm Arsenault, seconded by Clare Cameron:
Variance No. 1
That a maximum height of the existing hedge be 1 metre in height for a distance of 4.5 metres from the travelled portion of the private lane; and
That a maximum height from 1 metre, as required in the Fence By-law, to 2 metres be permitted for the existing hedge in the front yard beyond 4.5 metres from the travelled portion of the private lane.
APPROVED.
2. Moved by Councillor Clare Cameron, seconded by Allan Bisback:
Variance No. 2
That a maximum height of the existing fence be 1 metre in height for a distance of 4.5 metres from the travelled portion of the Melrose Drive; and
That a maximum height from 1 metre, as required in the Fence By-law, to 1.64 metres be permitted for the existing fence in the front yard beyond 4.5 metres from the travelled portion of the Melrose Drive.
APPROVED.
3. Moved by Councillor Gary Burroughs, seconded by Councillor Allan Bisback that leave be given to introduce By-law No. 5109-18, and that the same be considered read a first, second and third time and passed, any ruling of this Council to the contrary notwithstanding.
APPROVED.
4. Moved by Councillor Stuart McCormack, seconded by Councillor Erwin Wiens that this Council adjourn to the next regular meeting to be held December 17, 2018 and if a special meeting is required, it will be held at the call of the Lord Mayor.
VERBAL MOTIONS:
ADJOURNMENT: 04:04 AM |
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