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HomeMy WebLinkAboutLGL-006-19Clarington Legal Services Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: General Government Committee Date of Meeting: June 17, 2019 Report Number: LGL -006-19 Resolution: GG -413-19 File Number: L1000-39 By-law Number: 2003-046 Report Subject: Repeal and Replacement of Lot Maintenance By-law 2003-046 Recommendations: 1. That Report LGL -006-19 be received; and 2. That the draft By-law attached to Report LGL -006-19 (as Attachment 1) be approved. Municipality of Clarington Report LGL -006-19 Report Overview Page 2 x By-law 2003-046 is a by-law to provide that land shall be kept clean and clear of refuse and debris. x For reasons set out in this report, it is recommended that the by-law be replaced with a new and improved version. 1. Background 1.1 Clarington BV -law 2003-046 is a by-law to promote the elimination of debris, standing water, long grass, and weeds on private property. This by-law is frequently relied on by Municipal Law Enforcement Officers during the summer months to address minor nuisances associated with properties that are unsafe or untidy. 1.2 Upon receipt of a complaint, Municipal Law Enforcement will attend at a property to investigate whether enforcement action is needed. 1.3 If necessary, a Municipal Law Enforcement Officer is authorized to issue an order to require a property owner to comply with the by-law. If an owner fails to comply with an order within a reasonable amount of time, the by-law provides that the Municipality may hire a contractor to perform the work. In 2018, approximately 260 orders were issued by Municipal Law Enforcement Officers. Of that number, approximately 20 property owners did not voluntarily comply with an order. In those instances, the Municipality performed the necessary work and charged the cost back to the owner. 2. Analysis 2.1 In discussions between Municipal By-law Enforcement staff and the Municipal Solicitor, it has been determined that several corrections, clarifications, and functional improvements to the by-law are needed to make the by-law more transparent and effective. Due to the number of changes, it is more efficient to repeal the existing by-law and replace it with a new by-law. Although the basic purpose and effect of the new by-law would be the same as the existing by-law, the proposed changes would improve the enforcement situation for staff and residents. The changes to the by-law are briefly summarized below. Administrative Fees 2.2 The current by-law imposes a 25% administrative fee in addition to any costs that are recovered from a non-compliant owner. Staff recommend that a fixed fee of $50.00 is a simpler and more appropriate fee that better represents the Municipality's cost of administration. Municipality of Clarington Resort LGL -006-19 Powers of Entry Page 3 2.1 The Municipality is empowered by the Municipal Act to pass by-laws that provide for the entry of Municipal staff onto private property at any reasonable time for the purpose of an inspection to determine compliance with the by-law. Staff recommend that this power be expressly provided within the new by-law to improve transparency. Default 2.2 It is also recommended that the new by-law expressly provide that in the event that an owner does not comply with a work order, the Municipality will perform the work and recover the cost from the owner. Set Fines 2.3 It is recommended that the new by-law include set fine offences to provide for an additional deterrent to non-compliant property owners. Please note however that the set fines will require the approval of the Ministry of the Attorney General before they can be fully implemented. If the new by-law is enacted by Council, the Municipal Solicitor will apply to the Ministry for set fine approval. Obstruction 2.4 The proposed by-law would make it an offence to obstruct an Enforcement Officer in the performance of their duties. By-law Name 2.5 It is recommended that the new by-law be given the informal title of the "Clean and Clear By-law", rather than the existing usage of the "Lot Maintenance By-law". The proposed terminology better aligns with that of the enabling language of the Municipal Act. General 2.6 The proposed by-law has been drafted to correct and clarify several enforcement provisions, and to eliminate any provisions from the current by-law that have become obsolete. 3. Concurrence This report has been reviewed by the Municipal Clerk who concurs with the recommendations. Municipality of Clarington Resort LGL -006-19 4. Conclusion Page 4 It is respectfully submitted that proposed by-law will enhance the Municipality's ability to respond to various property nuisance issues. 5. Strategic Plan Application Not applicable. M Submitted by: robertMaciver, LL.B., MBA, CS, Municipal Solicitor Reviewez 9 d by: Andrew C. Allison, B. Comm, LL.B CAO Staff Contact: Robert Maciver, LL.B.,MBA, CS, Municipal Solicitor, 905-623-3379 ext 2013 or rmaciver@clarington.net Attachments: Attachment 1 - Draft By-law (To be distributed with the Final Agenda Update) There are no interested parties to be notified of Council's decision. If this information is required in an alternate format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. The Corporation of the Municipality of Clarington By-law 2019 -XXX Being a By-law to keep land clean and clear in the Municipality of Clarington WHEREAS Subsection 11 (2) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended (the "Act") provides that the Municipality may pass by-laws respecting the health, safety and well-being of persons; AND WHEREAS Section 127 of the Act provides that the Municipality may require the owner or occupant of land to keep their land clean and clear of refuse and debris; AND WHEREAS Section 128 of the Act provides that the Municipality may prohibit and regulate with respect to public nuisances, including matters that, in the opinion of Council, are or could become or cause public nuisances; AND WHEREAS pursuant to Section 425 of the Act, the Municipality may pass by-laws providing that a person who contravenes a by-law of the Municipality passed under the Act is guilty of an offence; NOW THEREFORE, the Council of The Corporation of the Municipality of Clarington hereby enacts as follows: DEFINITIONS 1. In this by-law, "Debris" means refuse, rubbish, or material of any kind and without limiting the generality of the foregoing includes garbage, litter, disused furniture, garden waste, earth or rock fill, old or decayed lumber, inoperative mechanical equipment, automotive or mechanical parts, a vehicle that by its condition or lack of current licence plates appears to be inoperative, and materials from construction or demolition projects; "Enforcement Officer" means a Provincial Offences Officer as defined under the Provincial Offences Act, R.S.O. 1990, c. P.33; "Municipality" means The Corporation of the Municipality of Clarington, or its geographical area as the context requires; and "Owner" means an owner or occupant of land in the Municipality PROHIBITIONS 2. No Owner shall permit the accumulation of any debris on their land. 3. No Owner shall permit grass or weeds on their property to grow to a height that exceeds 20 centimetres. 4. No Owner shall permit the accumulation of stagnant or standing water on their land. EXEMPTIONS 5. That portion of any lands zoned for environmental protection is exempted from section 3 of this By-law. ENFORCEMENT 6. Where any Owner contravenes any provision of this By-law, an Enforcement Officer may direct such Owner to comply with this By-law. Every Owner so directed shall comply with such direction without delay. 7. (1) If an Enforcement Officer is satisfied that a contravention of this By-law has occurred, the Enforcement Officer may make an order requiring the Owner of the land on which the contravention occurred to do work to correct the contravention. (2) Any Owner who fails to comply with an order under this section is guilty of an offence. (3) If an Owner is in default of any work required by an order under this section, the work may be done by the Municipality at the Owner's expense, and in addition to the costs to do the work, the Municipality will impose an administrative fee of $50 on the Owner. (4) The Municipality or a person acting on its behalf is not liable to compensate the Owner, or any other person by reason of anything done by or on behalf of the Municipality in the reasonable exercise of its powers under this By-law. 2 POWERS OF ENTRY 8. An Enforcement Officer, whether alone or accompanied by an individual possessing special or expert knowledge or skills, may enter on any land within the Municipality at any reasonable time for any purpose in relation to the enforcement of this By-law including for the purpose of carrying out an inspection to determine whether or not the following are being complied with: (a) this By-law; (b) a direction or order of the Municipality made under the Municipal Act, 2001, S.O. 2001, c. 25 or this By-law; or (c) an order made under section 431 of the Municipal Act, 2001, S.O. 2001, c. 25. 9. For the purposes of an inspection under this By-law, an Enforcement Officer may: (a) require the production for inspection of documents or things relevant to the inspection; (b) inspect and remove documents or things relevant to the inspection for the purpose of making copies or extracts; (c) require information from any person concerning a matter related to the inspection; and (d) alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purposes of the inspection. 10. In addition to any other provision of this By-law, and subject to the provisions of the Municipal Act, 2001, S.O. 2001, c. 25, a provincial judge or justice of the peace may issue an order authorizing the Municipality to enter on land, including a room or place actually being used as a dwelling, for the purpose of carrying out an inspection to determine whether or not the following are being complied with: (a) this By-law; (b) a direction or order of the Municipality made under the Municipal Act, 2001, S.O. 2001, c. 25 or this By-law; or (c) an order made under section 431 of the Municipal Act, 2001, S.O. 2001, c. 25. 3 OBSTRUCTION 11. No person shall hinder or obstruct, or attempt to hinder or obstruct, any person who is exercising a power or performing a duty or direction under this By-law. OFFENCES 12. Every person, other than a corporation who contravenes any provision of this By- law, is guilty of an offence and on conviction is liable, for every occurrence, day or part thereof upon which such offence occurs or continues, to a fine of not more than $10,000 for a first offence; and not more than $25,000 for any subsequent conviction. 13. Every corporation which contravenes any provision of this By-law, is guilty of an offence and on conviction is liable, for every occurrence, day or part thereof upon which such offence occurs or continues, to a fine of not more than $50,000 for a first offence, and not more than $100,000 for any subsequent conviction. 14. Without limiting any other section of this By-law, every person who contravenes any provision of this By-law is guilty of an offence and on conviction is liable to a fine in accordance with the Provincial Offences Act, R.S.O. 1990, c. P.33. 15. If any person is in contravention of any provision of this By-law, and the contravention has not been corrected, the contravention of the provision shall be deemed to be a continuing offence for each day or part of a day that the contravention remains uncorrected. 16. Where any person contravenes any provision of this By-law, such person shall be responsible for all costs incurred by the Municipality directly related to the contravention. SEVERABILITY 17. If any section or sections of this By-law, or parts thereof are found by any court of competent jurisdiction to be illegal or beyond the power of the Municipal Council to enact, such section or sections or parts thereof shall be deemed to be severable from this By-law and all remaining sections or parts of this By-law shall be deemed to be separate and independent therefrom and to be properly enacted and to be of full force and effect. CONFLICT 18. In the event of a conflict between any provision of this By-law and any applicable Act or regulation, the provision that is the most restrictive prevails. 4 SCHEDULES 19. The following Schedules are attached to and form an integral part of this by-law: x Schedule "A" — Set Fines EFFECTIVE DATE 43. This by-law shall come into force and take effect on the date it is enacted. 44. By-law 2003-046 is repealed on the date this by-law comes into force and effect. SHORT TITLE 45. This by-law may be referred to as the "Clean and Clear By-law". Passed this XX day of XXXXXX, 2019 5 Adrian Foster, Mayor C. Anne Greentree, Clerk Schedule "A" — Set Fines ITEM COLUMN 1 COLUMN 2 Short Form Wording Provision creating or defining offence COLUMN 3 Set Fine 1 Failure to remove debris from land s.2 $100.00 2 Failure to cut grass or weeds s.3 $100.00 3 Failure to remove standing water s.4 $100.00 4 Failure to comply with an order s.7(2) $100.00 5 Obstruction of an Enforcement Officer s. 11 $100.00