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HomeMy WebLinkAbout07/04/1972MEETING OF THE COMMITTEE OF ADJUSTMENT Tuesday, July 4, 1972 at 7:00 p.m., Council Chamber, Orono, Ontario. Present: E.R. Lovekin B.A. LL.B., Chairman, tK. Schoenmaker, Member, E.F.R; Osborne, Member,' c t Mrs. Ellen M. Yeo, Secretary -Treasurer The minutes of. meeting held on June 12, 1972 and meetings in Committee held on June 21, 1972 and June 27, 1972 were approved on motion by K. Schoenmaker, seconded by E.F.R. Osborne. Carried. Application File No. "B"19-72 Austin Turner, Owner, Newcastle, Ontario, (R.R. #21) , Part Lot 28, Con 3, Township of Clarke, Submission NO,0B1f19-72-13 As'business arising from minutes of former minutes, this application was presented for further consideration. As a matter of record the whole Committee inspected the site on Highway 4115 on June 21, 1972 and the following facts were noted: 1., This property on the combined highways of 435 and #115 is in an area where the Department of Highways permitted Commercial Development on the reasoning that, since at this,point, old Highway #35 and the new Highway #1i5 occupy the same right-of-way; 2. In such areas commercial development was permitted; 3. In those areas where Highway #115 occupies a "new" right-of-way, no development was permitted. Such_a policy is difficult to understand on a "Planning" or "logical" basis, but perhaps comprehensible on a technical legal_ construction in regard to the laws governing Highway access in Ontario; 4. This policy gave birth to what is commonly referred to . locally as "gasoline alley" on Highways #115 and 435 in the vicinity of Mr. Turner's property; 5. This application is clearly.an "infilling" application in a row of almost solid "commercial development" in the so called "gasoline alley"; 6. The whole of "gasoline alley" raises problems,.planning wise; At the conclusion of the inspection tour, this matter was adjourned to check the Plan of Survey to ensure zoning is either Highway Commercial or Agricultural for all or part of the property. Mr. Austin Turner, applicant, and Mr. Merrill Brown OLS., Bowmanville,` Ontario, appeared at this meeting in support of this application. too other person appeared in support of or in opposition to this application. Mr. M. Brown scaled the large Land Use Map and informed the Committee that the land was in a Highway Commercial Zone. Mr. Turner,gave oral evidence under oath stating that this is all the land he owns between two existing commercial properties namely Fina Station and Spur Station. Mr. Turner also indicated that he intended only to sell 200•' ,deep, not 250' deep as this would keep an even line with existing properties and he al°so intends to retain a farm right-of-way 20' in width in order to give himself access to the agricultural lands at the rear and to combined Highways #115 and #35. ,Application granted on the basis of an infilling operation in a Highway Commercial Zone, on motion by E.F.R. Osborne, seconded by K. Schoenmaker. Carried. CLASSIFICATION HC Page 2 Meeting Committee of Adjustment July 4, 1972: ' c Application File No. "B"12-72 "B"13-72 "B"14-72 W. Kay Lycett Q.C., Agent, Barrister & Solicitor, Orono, Ontario, Bernard Callan, Owner, Orono, Ontario, for part of Lot 29, Con 5, Village of Orono, Ont. Township of Cdlarke, Submission No. "B"12-72-10 Submission No. "B"13-72-11 Submission No. "B"14-72-12 As business arising from minutes of past meetings these applications were presented for further consideration. No person appeared in support of or in opposition to these applications. r The Committee reviewed the minutes of May 23, 1972, at which time -lengthy correspondence from Robert A. Edmunds P. Eng., Counties Engineer and Road Superintendent, Cobourg, Ont., and from Edward R. Woodyard, Secretary, Police Trustee Board of the Village of Orono had been received. In the letter from the Counties Engineer it was pointed outi'that the three lots should not be separated." and concern as to entrances was mentioned along with certain conditions to be met, if these applications were granted. In the letter from the Police Trustees while there was"no objection to residential lots being created this area should be related to a master plan: Mr. Callanan had been'made aware of the comments in this correspondence. Mr. Merrill Brown OLS., Bowmanville, Ontario, acting on behalf of the proposed purchaser Mr. Kostrzewa, 249 Hillside Ave., Oshawa, Ontario, informed the Committee that Mr. Kostrzewa-now- wished to relinquish his interest in these properties as there - were,, too many extenuating circumstances involved. The Committee informed Mr. Brown that they were of the opinion that to grant multiple ..1 severance's in this case would a4° be improper as it would be tantamount to creating a plan of subdivision by means of individual severances. These applications for separation of parcels of land (a) 94.5'x125' approx. 11,750 sq. ft.; (b) 95' x 125' approx. 11,875 sq ft; (c) 100' x 125' approx. 12,500 sq. ft. in area from the applicant's land were refused on motion by K. Schoenmaker, seconded by E.F.R. Osborne. Carried. CLASSIFICATION"RI" Application File No. "B" 4-72 Branislav Bogdanovic,Owner, R.R. #1 Newtonville, Ont., Lot 6, Con 7, Township of Clarke, Submission No. "B114-72-9 As business arising from former minutes, this application was brought forward for further consideration. Mr. Branislav Bogdanovic, applicant, appeared in support of this application. No other person appeared in support of, or in opposition to this application. Mr. Bogdanovic presented to the Committee a certified Plan of Survey, prepared byM,Z. Kostic OLS, dated 22nd June, 1972 Job No. A-13 with typed descriptgon of the subject land attached thereto. Mr. Bogdanovic indicated to the Committee that part 2 with an area of 40.131 acres was the subject land and/the property he wishes to sever from his land. is Page 3 Meeting Committee of Adjustment, July 4, 1972: The Committee: 1. Referred to the minutes of meeting March 27, 1972; and April 11, 1972; 2. Recalled their inspection of the property on April 5, 1972; " 3. Perused the Plan of Survey presented at this meeting and following further discussion were of the opinion that the applicant had complied with the conditions imposed as evidenced in former minutes. Application granted to sever 40.131 acres in an agricultural zone on motion by E.F.R. Osborne, seconded by K. Schoenmaker. Carried. ' CLASSIFICATION 10 "A" Application File No. "B"15-72 Percy William Allin, Owner, R.R. #2, Newcastle, Ontario, for part of Lot 21, Con 2, Township of Clarke, Submission No. "B"15 -72 - As business arising from past minutes, this application was presented for further consideration. Mr. and Mrs. Percy GIm. Allin appeared in support of this application. No other person appeared in support of, or in opposition to this application. Mr. Allin presented the following material to the meeting: 1. Correspondence from Department of Veterans Affairs, _480 University Avenue, Toronto 101, Ontario; "We have for acknowledgement your letter of May 26th, 1972, wherein you advise you have made application to sever a lot 150' by 232' in depth in order that your son will have . -a building site. This Administration has no objection to you severing this parcel of land fromyour property, provided you will obtain the approval of your local Committee of Adjustment. If approval is given, however, it will be necessary that you provide us with Survey plans and legal land description in triplicate of the area to be severed as well as survey plans and legal land description in triplicate of,the remaining area. This sale will be processed under Section 13 of the Act. The Director will convey directly to your son provided you give us your official consent and we are p forwarding the appropriate foams for completion if the severance is approved. Application,to the Severance can be made by yourself and your authority to do so comes under Revised Statute of Ontario 1960 Chapter 249 Section 4. (sgd.) "L.A.Churcher" Acting Superintendent Property & Securities Division. 2. Report of soil examination, Ontario Agricultural College and Ontario Department of Agriculture & Food, University of Guelph, Department of soil Science dated 5th May, 1972; Mr. Allin presented the soil report as evidence that his land with an areae of 2 acres is not suitable for agriculture. Mr. Allin, under oath, stated that he has owned his property under VLA for approximately 11 years ; 2 acres were required by VLA at the time he purchased the property; his son is apprenticed with him as a carpenter and his request for the severance of 150'x232.32" is for a building lot so that a single family dwelling can be built for his son. . . . . . . Page 4 Meeting Committee of Adjustment, July 4, 1972: Mrs. Allin then stated, that although they are zoned agriculture there are houses across the road from their property - 7 houses to the-south;and a golf course and 3 houses to the north. Immediately to the north of their property is Brown's School, now closed. As far as any agricultural use for their land, they cannot grow crops and the land is useless. It would seem reasonable to be allowed to build a house for a member of the family. ' Chairman E.R. Lovekin informed Mr. and Mrs. Allin that he had been approached by the Municipal Board to arrange a meeting with the Committee of Adjustment in the near future and he suggested that if Mr. Allin cared to defer this application until after this meeting, which will also include Council, this matter could be `adjourned. Mr. Allin verbally agreed with this suggestion and this application was adjourned until a later date. CLASSIFICATION 10."A" Application File "B"18-72 Kaspar Hollen, Owner, R.R. Newtonville, Ontario, for part of Lots 3 & 4, Con 1, Township of Clarke, Submission No. As business arising from former minutes, this application was presented for further consideration. Mr. Kaspar Hollen, applicant, appeared in tupport of this application. No other person appeared in support of, or in opposition to this application. Mr. Hollen, under oath, stated that he has his farm listed for sale and he wishes to retain a lot with an area of 145 acres on which to build a home. The Committee informed Mr. Hollen that he would come under,Appendix 1 sub. sec. (j) Farmer Retaining Lot " may retain a lot from the, sale of his farm". It was explained to Mr, Hollen that to cgmply with this section of the by-law he would have to lead evidence that he had a sale for, or was selling his farm; a certified Plan of Survey by an Ontrio Land Surveyor would be required and there is a further question about the road in front of his property as to whether this has been designated as a "public road." Mr. Hollen suggested that he would contact his solicitor M.B. Kelly Esq., Barber & Kelly, Bowmanville, Ontario for the required material and this application was adjourned. CLASSIFICATION 10 "A" Application File No. "A"18-72 (Cowanville School) Northumberland & Durham Owner, County Board of Education, Mr. Jack Hayden, Assistant Business Administrator, Agent, D'Arcy Street N. P.O. Box 470, Cobourg, Ontario, Submission No. "A"18-72-15 As business arising from former minutes, this application was brought forward for further consideration. Mr. Jack Hayden, Assistant Business Administrator, accompanied by Mr. Lawrence Greenwood, Board Member, Northumberland & Durham County Board of Education appeared in support of this• application. No other person appeared in support of, or in opposition to this application. . Page 5 Meeting Committee of Adjustment, July 4, 1972: The Secretary --Treasurer presented the following material to the meeting: 1. Correspondence from M.L. Ross, Road Superintendent for Township of Clarke, dated June 19, 1972. "Re: Application Cowanville School, Lot 17, Con 4, Twp of Clarke This building should not be allowed to be renovated in its present location. As it now stands, the wall of the building is 17' from the property line. If and when the road is widened to a 100' right-of-way, this would put the wall of the building on the property line. It is, therefore, my opinion that this application should be denied and the building demolished. Yours truly, (sgd.) "M.L. Ross" The Committee: 1. Referred to the minutes of May 23, 1972 at which time this application was presented along with applications for Leskard, Enterprise and Browns School. •There was a letter of objection to the Cowanville School application from one John Fonk and since that time another objection from Mr. M.L. Ross, Road Supt. The Committee took particular note of these objections; 2. The Committee recalled their inspection of this property on June 10, 1972, at which time they noticed that there was no basement in the building. 3. On the whole of the evidence submitted, the Committee concluded that the building was not worthwhile salvaging and that it should be demolished and the lot sold as a building lot for a single family dwelling, it being a lot of record under Sec. 3.15 of the by-law. This application refused on motion by K. Schoenmaker, seconded by E.F.R. Osborne. Carried. CLASSIFICATION 10 "A" Application File No. "A"12-72 Wolfram H. Klose, Owner, R.R. #1, Orono, Ontario, for part of Lot 25, Con 5, Township of Clarke, Submission No. "A"12-72-16 As business arising from former minutes, this application was brought forward for further consideration. Mr. Wolfram H. Klose, applicant, appeared in support of this application. No other person appeared in support of, or in opposition to this application. The secretary -Treasurer presented thefollowing material to the meeting /- 1. Correspondence from Clarke Planning Board, l Dated June 15, 1972, signed "Horace R. Best% The Committee noted the contents thereof; Mr. Klose was reminded that he was still under oath, if he had any more submissions to make. Mr. Klose indicated that he did not wish to speak at this time and the Committee proceeded -with their decision. Page 6 Meeting Committee of Adjustment July 41 1972: The Committee have reviewed this application with some care as it presents some specific prgb�ems and note that the original application in connection with this building was for a permit to build a dog kennel. At the time of that application, the present applicant owner lived outside the Municipality of the Township of Clarke in the Pickering area. His dog kennel business has apparently prospered and he now finds it increasingly D difficult to properly care for these animals. when he is not J properly living on the property. In essence, what the applicant is asking is that he be permitted to construct living accommodation and to join that accommodation to existing buildings without side - yard requirements separating two separate land uses. The Committee during its` ipspection of the property noted that obviously an area designated as an administrative area in the original application was being used temporarily for human habitation. The Committee wish to make it perfectly clear that nothing in this decision is deemed to be authorization for such use of the administrative area of the building. ,The Committee assume that this application has been brought in order to rectify the existing situation. It is not unusual for a farmer to spend a night in the barn with a valuable animal such as a horse or a cow which is giving birth, or some other serious physical ailment. Such isolated incidents would not establish or justify human habitation in an area primarily designed for animals. The Committee are prepared on the veryspecial facts of this case to permit a house to be attached directly to the administrative area at the north end of the existing building. The Committee feel that, in effect, the "administrative area" would form an effective buffer zone between the area for human habitation and the dog kennels. Properly constructed, such a building would be analogous to a situation where a,veterinary surgeon is allowed to treat small animals in a veterinary hospital attached to living accommodations. The decision of the Committee, therefore, is that if the applicant wishes to construct another area for human habitation on his property, he may do so, provided the access from such habitation is into the present administrative area of the dog kennel building 'and the provisions of the by-law requiring side yards separating different land uses are hereby waived. All other requirements of the building inspector shall be met in regard to the specific unit to be constructed. It is repeated that this permission in regard to side yards is granted as a minor variance and is not to be construed in any way as approving any previous improper use of the building which may or may not have occurred. The Committee referred to the minutes of June 12,'1972; recalled their inspection of this property on June 10, 1972; reviewed the photostat sketch of the proposed addition to the dog kennel and discussed with Mr. Klose the fact that the proposed addition should also include a kitchen�in that the present building is still a "dog. kennel". the so called "kitchen" presently part of the "dog kennei" could certainly,be used for the preparation of food etc. for the dogs and pups, the room adjoining as.a "living room" could be converted into a"waiting room" or "office". The., building as it presently stands is not to be used„for human habitation. Page 7 Meeting Committee of Adjustment July 49 1972: The Committee in referring to their inspection of this property stated that they had been duly impressed by the construction throughout, the heating system, built in sanitary disposal system; paved yards for exercising the dogs etc., , Mr. Klose was asked if he wished to amend his application from`the original request and if so the following amendment was suggested: "amended to attach a single family dwelling to the existing administrative area of the dog kennels. Relief is sought from the side yard provisions of residential uses and non residential uses in an agricultural zone". Mr. Klose indicated his willingness and the application was amended accord- ingly, initialled by Mr. Klose and witnessed by the Secretary - Treasurer. Application granted on motion by K. Schoenmaker, seconded by E.vF.R. Osborne subject to the following conditions.- 1. onditions: 1. Application amended to read," to attach a single family dwelling to the existing administrative area of the dog kennels. Relief is sought from the side yard provisions of residential uses and non residential uses in an agricultural zone"; 2. TAKE WARNING that this decision, for a minor variance of the Clarke Township Committee of Adjustment IS NOT FINAL AND BINDING until the time for appeal by any interested party has lapsed under the terms of the Planning Act of the Province of Ontario. THIS TIME FOR APPEAL IS 21 DAYS FROM THE DATE that the minutes of this decision have been mailed to the Minister of Municipal Affairs of the Province of Ontario; 3. This decision should not be registered on title until the said time for appeal has lapsed when the applicants shall then register on title by way of Deposit a copy of the Form of Consent and shall forthwith thereafter forward to the Secretary of the Committee a duplicate Certificate of Deposit or a Notarial copy thereof; 4. AND FURTHER that upon receipt by the Secretary of. the aforesaid document, the appropriate administrative officials of the Township of Clarke will be authorized to issue any and all necessary permits or to take any steps necessary to implement this decision. CARRIED. CLASSIFICATION 10 "A" Page 8 Meeting Committee of Adjustment July 49 1972: Application File No. "A"11-72 Roderick & Susan Marie MacDonald, Owners, 818.Central Park Blvd. W., Oshawa, Ontario, Spencer Real Estate, 137 King St. E., Bowmanville, Ontario, for part of Lot 30, Con 4, Township of Clarke, Submission No. "A"11-72-17 As business arising from minutes of former minutes this application was brought forward for further consideration. Mr. R.B. Spencer, Real Estate Agent, Bowmanville, Ontario, accompanied by the proposed purchaser Mr. Perry appeared in support of this application. No other person appeared in support of, or in opposition to this application. As a matter of record the Committee inspected this property at 6:00 p.m. Wednesday June 21, 1972, during a heavy thunderstorm. The following facts were noted: 1. The two houses to the south ire both under construction; 2. Neither of these two houses had any water in the basement, although the house farthest to the north had puddles of water lying on the plywood sub - floor because of the rainfall; 3. The Committee would assume, therefore, that the basements must be properly drained and the water table in the area is not dangerously high; Mr. R.B. Spencer, under oath, stated that he was the duly authorized agent to act on behalf of Mr. and Mrs. . Roderick MacDonald and he will send a copy of this authorization to the Secretary for the records. The Committee: 1. Reviewed the minutes of their meeting held on June 12, 1972; 2. Perused the Plan of Survey as presented at the aforesaid meeting. The subject land is outlined in "red" and the watercourse is indicated in outline. Also shown on this Plan of Survey are the two lots to the south on which the Committee had granted minor variance from the watercourse (ref. "A"352-71-62-Nov.29/71) and ("A"353-71-63,Nov 29/71.) These applications _ were granted subject to conditions regarding the watercourse. On all the facts of the particular case, and bearing in mind that a set back to the existing building line brought the rear of the house near the watercourse, this application for a minor variance from Sec. 3.8 of amending by-law 1653 was granted on motion by E.F.R. Osborne, seconded by K. Schoenmaker subject to the following conditions: 1. that the reduction of set back from water -course be 40' as applied for; 2. that the ditch shall be sodded as per Building Inspector's requirements and sodding to be completed in 1972; Page 9 Meeting Committee of Adjustment July 4, 1972: 3. TAKE WARNING that this decision for a minor variance of the Clarke Township Committee of Adjustment IS NOT FINAL AND BINDING until the time dor appeal by any interested party has lapsed under the terms of the Planning Act of the Province of Ontario. THIS TIME FOR APPEAL IS 14 DAYS FROM THE DATE that the minutes of this decision have been mailed to the Minister of Municipal Affairs of the Province of Ontario; 4. This decision should not be registered on title until the said time for appeal has lapsed when the applicant shall then register on title by way of Deposit a copy of the Form of Consent and shall forthwith thereafter forward to the Secretary of the Committee a duplicate Certificate of Deposit or a Notarial copy thereof; 5. AND FURTHER that upon receipt by the Secretary of the aforesaid document, the appropriate administrative officials of the Township of Clarke will be authorized to issue any and all necessary permits or to take any steps necessary to implement this decision. CLASSIFICATION 3.8 Application File No. 11B'20-72 CARRIED. Evelena Berniece Clysdale,Owner, Newtonville, Ontario, Mr. Charles Ewert, Agent, Box 9, Newcastle, Ontario, for part of Lot 9, Con 1, Township of Clarke, Submission No. "B"20-72-14 Application was made for exemption or partial exemption from provisions of the Planning Act so as to permit the separation of a parcel of land approximately 100'x 121to correct a boundary error revealed by a recent Plan of.Survey. The Secretary reported that 19 notices of the said hearing had been mailed in accordance with Item S of The Rules of Procedure. Mrs. E.B. Clysdale, accompanied by her husband Lloyd Clysdale appeared in support of this application. No other person appeared in support of, or in opposition'to this application. As a matter of record Mr. Lovekin, Chairman, disqualified himself from the hearing of this application, having previous knowledge of this matter and Mr. K. Schoenmaker senior member conducted the hearing on this case. The Secretary -Treasurer presented the following material to the meeting: 1. Plan of Survey prepared by M.D. Brown OLS., dated August 16, 1971, File 71116 deposited as Plan 93, September 14, 1971. Mr. Clysdale, under oath, stated the following facts: 1. This property has been owned approximately 20 years; 2. It is proposed to seil the property to one purchaser; 3. "Part 11, as shown on the Plan of Survey containing a 1 story frame dwelling was sold to his mother several years ago. The dimensions of the land conveyed was 100'x 50'. After the house was built land was added of approximately 19' deep on the north side and approximately 12' wide on the east side and is shown on the Plan of Survey as "part 2" Page 10 Committee of Adjustment Meeting July 4, 1972 3. cont 'd This part was added in approximately 1955 or 1956 but was never deeded or surveyed. 4. He now wishes to sell his property and the boundaries will have to be corrected before he can do this. The Committee were aware that this application would be presented at this meeting and an inspection was made of the property on June 29, 1972; The Committee concluded that this application was occasioned by the fact that the applicant is selling his property in Newtonville, Ontario, and a Plan of Survey revealed that established lines of occupation as established by a cedar hedge and other clear boundary markings do not follow the lands as legally described. In order to clarify this apparent discrepancy, a Plan of Survey was prepared and the applicant Mr. Clysdale will sell his property, properly described and surveyed so that the overlap legally owned by him, but not occupied, will not be conveyed to the purchaser, thus removing a cloud from the neighbour's title. Application for consent to a conveyance to correct a boundary error revealed by a recent survey granted on motion by E.F.R. Osborne, seconded by 'K. Schoenmaker. Carried. CLASSIFICATION "R1" c Application File "B"21-72 Robert Morton, Owner, R.R. #1, Kendal, Ontario, W. Kay Lycett Q.C., Agent, Barrister & Solicitor, Orono, Ontario, for part of Lot 18 Con 6, Township of Clarke, Submission No. "B"21 -72 - Application was made for exemption or partial exemption from provisions of the Planning Act so as to permit the separation of a parcel of land approximately 290' x 150' from the applicant's land. The Secretary reported that 21 notices of the said hearing had been mailed in accordance with'Item 5 of The Rules of Procedure. Mr. Robert Morton, applicant, and W. Kay Lycett Q.C., Barrister & Solicitor, appeared in support of this application. No other person appeared in support of, or in opposition to this application. The Secretary -Treasurer presented the following material to the meeting: 1. Correspondence from W. Kay Lycett Q.C., Orono, Ontario, dated June 20, 1972 "Mr. Morton proposes and forsees future retirement from the farming business and he hopes to enter into an agreement with his son whereby the business of the farm property will be transferred to his son. Towards this end he is also planning to erect for himself on the farm property a dwelling house for himself and his, wife to continue residing in the same area. He is, therefore, making application to your Committee for severance of a building lot from the farm property which is shown on sketches which he has prepared and which is attached to his application enclosed herewith. Page 11 Committee of Adjustment meeting July 4, 1972 Theproposed lot is to contain not less than one acre and is to have a frontage on two Township roads, one of 150' and the second of 290111 Mr. R. Morton, under oath, stated that his son Gordon who is presently 23 years of age has assisted him on the farm on a full time and part time basis since childhood as he was born and raised on the farm. .He now wishes to be granted a lot so that he will be in a position to transfer the family farm to his son Gordon. The Committee were satisfied from local knowledge and sworn testimony that the applicant is a well known bona fide farmer in the area whose chief source of income is from agricultural operations. W. Kay Lycett Q.C., referred to amending by-law 1653, appendix 1 sub. sec. (j) Farmer Retaining Lot, and specifically to "may retain a lot from the sale of his farm". Mr. Lycett stated that to require the applicant to first sell his farm before seeking approval for a severance would put an unfair hardship on the applicant. This application was adjourned to enable the Committee to inspect the property. CLASSIFICATION 10 "A" Application File No. "B"22-72 Joseph G. Stephenson,Owner, R.R..#2, Newcastle, Ontario, for part of Lot 23, Con 1, Township of Clarke, Submission No. "B"22-72 Application was made for exemption or partial exemption from provisions of the.Planning Act so as to permit the separation of a parcel of land approximately 100' x 150' being approximately 15,000 sq. ft. from the applicant's land. The Secretary -Treasurer reported that 25 notices of�the said hearing had been mailed in accordance with Item 5 of The Rules of Procedure. Mr. Joseph G. Stephenson, applicant, appeared in support of this application. No other person -appeared in support of, or in opposition to this application. The Secretary presented the following material to the meeting:. 1. A photostat copy of a Plan of Survey prepared by J. Sylvester dated 30th August 1961, #61099 Mr. Joseph G. Stephenson, under oath, stated the following facts; 1. He has owned and operated his farm on the eastern outskirts of the Village of Newcastle south of Highway #2 for approximately 40 years; 2. For the past 21 years his son has operated the farm and he, himself, has travelled for a firm l selling John Mansville products; 3. He and his wife live in the main house on the farm and his son Robert has lived in a second house on the same property which is on the edge of the Township road for 21 years. Page 12 Meeting Committee of Adjustment July 42 1972:. 4. The south end of the farm was severedy by Highway #401 but that section of the farm lying between #401 and #2 Highways is approximately 78 acres; 5. There is a pending application before the Planning Board to re -zone a lot in the north west corner of the property. , 6. The house in question which is to be severed with a suitable lot is approximately midway between #2 and #401 Highways on the west side of the Township Road.Since this Twp. .side road dead ends into #401, no serious traffic problem has been created. 7. Across the road from the applicant, multiple severances were created before zoning and the entire east side of the road from #401 to #2 Highway is ribbon development comprising,,approximately 30 individual si4gle family homes. Mr. Stephenson further stated that his existing home and the 78 acres are listed for sale; there is a 80' drilled well and a septic system on the property approximately 27 years; an inspection was made of the property by the Health Unit within the last 10 days or so. This application adjourned to enable the Committee to inspect this property. CLASSIFICATION 10 "A" Application File No. Charles Wesley Lemon, Owner, R.R. #22 Newcastle, Ontario. W. Kay Lycett Q.C., Agent, Barrister & Solicitor, Orono, Ontario, Lot 9, Con 2, Township of Clarke., Submission No. Application was made for exemption or partial exemption from Provisions of amending by-law 1653 for the following.. Minor Variances - reduction of side yard from 25' to 22' on the west and 15' on the east of the proposed dwelling and a reduction of set back from 93' to 631. The Secretary -Treasurer reported that 24 notices of the said hearing had been mailed in accordance with Item 5 of the Rules of Procedure. Charles Wesley Lemon, applicant, Harold Lambert, proposed purchaser, both of Newtonville, Ontario, accompanied by their agent W. Kay Lycett Q.C., appeared in support of this application. No other person appeared in support of or in opposition to this application. Mrs. Lena Winnifred Graham, R.R. 02 Newcastle, accompanied by her husband also appeared. The Secretary -Treasurer presented the following material to the meeting: 1. Correspondence from W. Kay Lycett Q.C., Barrister & Solicitor, Orono, Ontario, dated June 19, 1972: "My client, Charles Wesley Lemon wishes to make application for minor variance in respect of his lot comprising part of lot 9 concession 2 in the Township of Clarke which has a side frontage of 66 feet by a depth of 165 feet fronting on Hill Street within the hamlet of Newtonville. 'He has a proposed purchaser for this lot who wishes to erect a single family dwelling house thereon having a width of 29 feet and a depth of 51 feet more or less and having regard to r Page 13 Meeting Committee of Adju�stment,July 4, 1972: theprovisions of the present Zoning By-law applying to this, he finds it impossible to erect this house on the lot without making application for a reduction of the sideyard requirement cf 25 feet. The proposed house can be erected on the lot with a 'sideyard reduction of 'the west from 25 feet to 22 feet and a side yard reduction of the east from 25 feet to 15 feet. In view ofthefact that other houses in the immediate area are located within less than 93 feet of the centre line of the road, he hereby makes application also to have the set back requirement of 93 feet reduced to 63 feet so that the dwelling may be erected at not a lesser distance but a slightly greater distance from the centre, line of road than the other houses in 'the area and that it may be in keeping with the general requirement of houses in the area." Mr. Lemon, under oath,, stated.that he has owned the lot since approximately 1959. . Mrs. Lena W. Graham,, an abutting owner, asked why a reduction . in set back would be made from 93' to 63' apd.the,applicant replied that this was necessary to bring his house up to the established building line. Mr. Graham wanted to know how the sideyard requirements related to the area necessary for a private sewage disposal.system. To his knowledge there has never been a house on this property. -�4�r-Gnaw-Ftarr ec -t-o k -hew-*I-re-gi[�eparel-��� rrtg- ��(F� r-shat-ad-t-o-�l�-afea-�rr��-€c3e-a-pr}Mate-sc�crtaga-a}spasal , -sus. He was told that only on rare occasions was a septic tank located in the sideyard area and, therefore, there is no direct relationship between septic disposal requirements and sideyard requirements. The applicant was advised that a certificate of -inspection should be obtained from the-Haliburton Kawartha Pine Ridge District Health Unit, Cobourg, Ontario. . 1 Application,adyourned to enable the Committee to inspect the property. CLASSIFICATION "RR" Application File No. "A"21-72 Clarke Fish & Conservation Club; Owner, 378 King St.W., Oshawa, Ontario. J.B. McMullan, Agent, 378 King•St.,W..Oshawa, Ont., for part of Lot 32, Con -7, Township of Clarke, Submission No.."A"21-72.17 As business arising from minutes of former meetings this application was brought forward for further consideration. • J Irving Gleibermam Esq-., Sandler,Gordon & Gleiberman, Barristers & Solicitors, 464 Yonge St. Toronto, Ontario, c accompanied by three members of the Club - Mr. Robert Hann; Mr. C. Potter; and Mr. Wm. Torino, appeared in support of this application. No other -person appeared in support of or in opposition -to this application., The Secretary -Treasurer presented the following material to the meeting:. 1. Correspondence from Clarke Planning Board, dated June 20, 1972 signed "Horace R. Best" Secretary '.'Please be advised that during the regular meeting . . . . . . on June 15, 19729 the following motion with regards to Application 21-72 was passed,, as filed by Clarke Fishing & Ctanservation Club for relief from Section 3, Page 14 Meeting Committee of Adjustment July 4, 1972: 10 cont'd sub -section 8 requiring a separation of 100' from the bank of a stream, "F. Gray moved that the Secretary be instructed to submit the following comments to the Committee of Adjustment (1) In view of the area of the subject land and the fact that the recently constructed pond was man-made, the Planning Board are of the firm opinion that it would have been reasonably possible for the owners to plan the location of the pond and the proposed single family dwelling in such a manner as to maintain the required 100' separation. (2) Every attempt should be made, whenever possible, to safeguard the ecology of the Wilmot Creek rather than permit variances that would improve the aesthetic,value of the proposed dwellings. (3) in respect of the foregoing the Planning Board are of the opinion that this application for variance should be rejected." Seconded by E.,R. Woodyard sand carried." Yours truly (sgd.) "Eorace R. Best" 2. Correspondence from Irving Gleiberman,, dated , June 28, 19729 enclosing photostat copy of letters patent; 3. Photostat copy of Letters Patent incorporating Clarke Fish and Conservation Club, dated June 1, AD 1971, recorded this 8th day -of June A.D. 1971 as Number 243114. Before proceeding with their decision the Committee requested, Mr. Gleiberman to amend the application to agree with the name of the Club as in the Letters Patent "Clarke Fish & Conservation Club'.' Mr. Gleiberman agreed to this suggestion and the application was amended, initialled by Mr. Gleiberman and witnessed by the Secretary -Treasurer. At the same time the application was amended to " or such setback as Committee deems reasonable." This was initialled by Mr. Gleiberman and witnessed by the Secretary -Treasurer. The following is the decision of the Committee of Adjustment: This is an application by "Clarke Fish & Conservation Club" a body corporate under the Laws of the Province of Ontario. This body Corporate is without share capital and is the type of incorporation used where a group of persons band together to hold property or conduct some enterprise among a very restricted ,membership on a non-profit basis, but for business reasons wish to be incorporateO. ' The Solicitor for,this Corporation, who is also a member of the C1ubl.Mr. Irving_ Gleiberman, has informed the Committee that there are approximately 10 persons in the Company. Some of the aims of the Company are to establish and maintain a fish club and --to engage in actively promoting conservation and the like. It is common knowledge, among solicitors, that before such a club is incorporated, the prospective members of such clubs are investigated by the Ontario Provincial Police to ensure the bona fide nature of their activities. The fact that such a charter -has been granted the applicants is, therefore, to a degree, rima facie evidence of their good character and bona fide intentions. The Committee review6d the minutes of the meeting held on June 12, 1972 and met on the property June 27, 1972 at 12:45 p.m. with Mr. J.B. McMullan,,Mr. Robert Hann, Mr. C. Potter and Irving Gleiberman Esq., Solicitor. The location and orientation of the proposed one large single building on the site was the main point of the discussion. Originally several small chalets were suggested for this site but for reasons that are not relevant, as they are not within the prerogatives of this,Committee, the present proposal is for one large building. Page 15 Meeting Committee of Adjustment July 4, 1972: The applicants are represented by a Solicitor and they are aware that this Committee's decision has no effect on matters pending before the Planning Board or on building permits etc. The sole question before this Committee is whether the building set back can be changed as a "minor variance". The Committee wish to make it perfectly clear that they have taken into account all the oral evidence presented, the written communications filed and -the physical conditions noted during '- their trips to the site. The topography of the land is very important in this case and written or oral presentatiops cannot easily illustrate the very particular topography involved herein. The Committee frequently find site inspections useful, but in this case such an inspection proved essential to an understanding of the proposal. The Committee noted the letter dated the 20th of June,1972 signed by "Horace R. Best" Secretary of the Planning Board was very concrete and clearly suggested that this application should be completely rejected. The Committee thank the Board for making their recommendations so concrete as this facilitates the Committee's work. They reject this recommendation for the reasons stated herein. The Committee is well aware that the primary planning function lies with the Planning Board and the execution of specific measures is the prerogative of Council. They are also aware that the Department of Municipal Affairs has made it clear that Official Plans and By -Laws are to be followed in spirit as well as in specific requirements. The Committee, however, is a body legally constituted under the Planning Act charged with exercising a semi -.judicial function that of "adjusting" general rules to specific cases. Its members are appointed and not elected in order to insulate them from any kind of social or political pressure; whether this comes from Government Officials, Civil Servants, Municipal Officials or members of the.public at large by way of the Press or by individual comment. It is noted that no brief was presented in opposition to this application nor did anyone appear to make oral representations on the multiple occasions that this matter was heard. Rumours and grumbling are ignored by this Committee; written or oral representations are given.every consideration. The Planning Board letter of the 20th of June 1972 states that "every attempt should be made to safeguard the ecology of Wilmot�Creek% This is a true statement and one heartily agreed in by this Committee. The question raised herein, however,, is whether this particular suggestion endangers the ecology of Wilmot Creek. This is a subjective opinion judgment that must be made on the specific facts.- Generalities are dangerous. The very presence of any human being in the Township of Clarke creates a possible threat to the ecology of Wilmot Creek since that human being generates sewage by his very existence. Such a danger is, of course, minimal and acceptable by normal standards and any so called "danger" is fanciful. No one would suggest that the whole population of Clarke Township be evacuated to some other place in Canada to protect the -ecology of the local watershed. If such action were necessary or advisable it would require special legislation. Lands are taken for cities and airports (to the West a few mile s Pickering Townships If, for ecological reasons a safe zone is required in Durham, that action will be taken. One must remember that the individual citizen has rights as well as the public. The use of all real property has to be regulated for the general welfare but the private citizen also has rights to develop his property if he observes the law of the Realm. Control is not complete prohibition. Organized' society requires that its members pay taxes and obey the law; in exchange, Society agrees to physically protect the citizen from international violence (war) or personal violence (assaults) and guarantees his property rights (against thieves, robbers etc.) Page 16 Meeting Committee of Adjustment July 42 1972:. There is only one social organization where there are no individual property rights and that is a Communist Society. It need hardly be pointed out that Canada is a Democracy. This -Committee does not have among its members, persons qualified as professional engineers, public health authorities or qualified ecologists. Their decision must be based on the Professional evidence presented to them. Our decision should not be based on our own whims or prejudices or in response to outside pressures. There is no law that the Committee knows of that totally prohibits the construction of any buildings whatsoever in the Wilmot Creek watershed or that totally prohibits construction of any building within a stated number of feet from that creek. The provision with which we are dealing is a general provision which reads as follows: "Section 3.8 Lands Subject to Flooding:. In all zones the erection of buildings or structures for residential or commercial purposes shall be prohibited on land that is subject to flooding or on land where by reason of its rocky, low-lying, marshy or unstable character, the cost of satisfactory waterworks,sewage, or drainage facilities is prohibitive. Nor shall any building or structure or appurtenance thereto (other than conservation or flood control projects) be installed within (1001) one hundred feet of any stream or river bank, or in the flood plain of any water course, as determined by an Ontario Land Surveyor." It is to be noted that primarily this section is not dealing with ecology problems but rather with "flooding" situations. At the present time large sections of the United States are experiencing flooding problems and persons in Ontario recall the effects of "Hurricane Hazel". To forestallsuch disasters is the primary aim of such provisions. It is of importance to note the exact wording of this section since the location of the building proposed by the applicants is on the highest piece of land in the whole property, namely, on top of the "borrow"that came out of the pond. The applicant, therefore, is complying with the basic spirit of the by-law in placing his building on the proposed site out of an area where flooding is a danger. In practical. application this section is obviously being used not only to keep buildings out of flood plains so that future owners of this building will not be "flooded out", but it is also being.used to prevent possible contamination of the streams in the Township by structures that are so close to the creek that they present a real and dangerous source of contamination and endanger the ecology of the area., In this specific case the real and apparent danger would appear to be that the flooding by surface water or run off would flow over a septic tile bed and carry human waste into the stream and thus contaminate the ecology of the creek or stream. In determining whether or not they should exercise their discretionary power, the Committee look to general policy and the particular facts of the case. In this regard, the Committee asked the applicants why they had located the pond where they did on their property and why they were now suggesting that the building be so,close. The location of the pond, the Committee were told, had been determined in conjunction with the Dept. of Lands and Forests. The whole pond was constructed without cutting down a single tree. This would appear to be a commendable decision. To the east of the existing pond is the creek. To locate the proposed chalet to the east, any builder would have to go 100' from the creek which is 50' to 150' east of the pond. The land dug out to make the pond was placed on the west side of the pond with about a one in seven gradient to the top of a plateau. In effect the applicants are asking to place their building on top of this plateau. To locate the building further to the west would locate it on the low marshy ground the tither side of the ridge of land created by the "borrows'. • Page 17 Meeting Committee of Adjustment July 4, 1972: The Committee were told that the Health Unit would rather see any septic disposal bed located in the gravel ridge rather than on the low lying land to the West as any tile bed would be subject to surface run off and flooding which is not a desirable state of affairs. The Committee have on file a copy of a "Lot Inspection Application" marked "approved" and dated 31st May, 1972 issued by the local Health Unit. The Committee must accept this document as evidence that the applicants have done all things necessary to meet the health requirements laid down by this authority and there appears to be adequate logical grounds for such a decision. The applicants stated that originally they had planned to locate the pond to the north of its present location where the land was lower and spring fed. To build both the pond and the parking lot to the north would have involved the cutting down of a solid cedar bush and the destruction of hundreds of fair sized trees. This action would have been disapproved by the Dept. of Lands and Forests and -the applicants stated the pond was re -located because of this reasoning. In a letter from the Ontario Department of Lands and Forests Fish and Wildlife Branch dated at Lindsay on 4th April,1972, the writer signing on behalf of the District Forester stated that "The reason for this visit was the inherent responsibility of this Department to ensure that any development associated with a natrual water course will not have deleterious effects on the water course itself." It was noted that your pond will be a true by-pass and therefore does not require approval from this office." The writer goes on to make suggestions which the Committee understands have all been complied with. This letter seems to suggest that the creek is the watercourse and in such a case the building proposed in this application would be far more than 100' away from the watercourse. In regard to the creek, the pond and the height of land in the area, the following figures are relevant. This summary goes -from east to west 1 (1) creek to east side of pond -'50' to 100' (2) pond up to edge of bank about 66' (3) east side of plateau to west side of plateau 56' (4) down bank from top of plateau to marshy ground 401. In summary the applicants are saying that because of the topography of the surrounding land and the location of the pond a variance is necessary. They also say that the building will have the 'septic tank to the rear of the building so that the distance from the building to the pond is not the same as the distance from the pond to the septic tank. The building is approximately 56' square. The proposed building could not be located farther east because of the creek; farther north with- out destroying trees and being on low land; farther west as the "plateau" is only so wide. If the building was farther south, it would..be on low land behind the south bank of the pond. The building must be located on the "plateau" made by the "borrow" so that it will be elevated where the septic tile system can _ also be located on the plateau farther away from the pond. The Committee thought it advisable to give extensive reasons in this case as it seems to be one that has invoked special interest although the absence of formal briefs appeared unusual if interest ran so high. The Committee: 1. reviewed the minutes of meetings - May 23, _May 26, June 12, 1972; 2. recalled their inspections of the property on May 26, June 27, 1972; 3. Referred to Mr. Gleiberman's request at this meeting for a set back of 501; and this application was granted on motion by K. Schoenmaker, seconded by E.F.R. Osborne, sugject to the following conditions: 1. The Committee are prepared to grant a minor variance in this matter, but not the variance requested. Basically the reason for granting this variance is that the man made plateau constructed from the "borrow" is the only feasible location for a building in the whole area. . . . . Page 18 Meeting Committee of Adjustment July 4, 1972: 2. Set back from the pond edge shall be 551; this figure represents the maximum distance the building can be from the pond and still -be properly located on the plateau and remain convenient to the approved feptjc system; 3. Septic tank to remain over 100' from the pond; 4. It is understood that the building to be erected is not a "commercial" property and this decision in no way recognizes the property as anything but a private fishing club and the persons frequenting it shall be part time or non permanent residents with the possible exception of a caretaker; 5. TAKE WARNING that this decision, for a minor variance of the Clarke Township Committee of Adjustment IS NOT FINAL AND BINDING until the time for appeal by_any,interested party has lapsed under the terms of the Planning.Act of the Province of Ontario. THIS TIME FOR APPEAL IS 21 DAYS FROM THE DATE that the minutes of this decision have been mailed to the Minister of Municipal Affairs of the Province of Ontario;. 6. This decision should not be registered on title until the said time for appeal has lapsed when the applicants shall then register on title by way of. Deposit a copy of the Form of Consent and shall forthwith thereafter forward to the Secretary of the Committee a duplicate Certificate of Deposit or a Notarial copy thereof; 7. AND FURTHER that upon receipt by the Secretary of the aforesaid document, the appropriate administrative officials of the Township of Clarke shall be authorized to issue any and all necessary permits or to take any steps necessary to implement this decision. CLASSIFICATION 10 "A" CARRIED. General Business - Decisions were signed; correspondence dictated; the dates for the next two meetings were agreed upon being; August 24, 1972 September 11, 1972 and this meeting then adjourned Cc- < Secretary-Treasu r at 12:3b a.m. Chairman