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HomeMy WebLinkAboutCLD-001-11 AddendumUnfinished Business ~1~I'711~011 REPORT CLERKS DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: April 4, 2011 Resolution#: GPR-3~-f 1 By-law#: o~~~/ ~'ys Addendum to Report: Report CLD-001-11 File#: P01.GE Subject: PROPOSED FENCE CONSTRUCTION COST SHARE BY-LAW RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT the Addendum to Report CLD-001-11 be received; 2. THAT Report CLD-001-11 be received; 3. THAT the By-law to provide for the apportionment of costs of Division Fences attached to the Addendum to Report CLD-001-11, as Attachment 1, be approved; and 4. THAT the Agricultural Advisory Committee be advised of Council's decision, forwarded a copy of the Addendum to Report CLD-001-11, and thanked for their input into this matter. Submitted PLB/LC Reviewed by: Franklin Wu Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379 REPORT NO.: Addendum to Report CLD-001-11 PAGE 2 1. BACKGROUND At the Clarington Council meeting of January 17, 2011, Report CLD-001-11 was referred to the Clarington Agricultural Advisory Committee for their input into the by-law as it relates to agricultural property and the proposed discontinuation of the Fence Viewing process. On March 10, 2011 the Agricultural Advisory Committee met and discussed the proposed by-law. The Committee had concerns and Committee member John Cartwright was delegated to meet with staff to discuss the issues and attempt to resolve them. Staff met with Mr. Cartwright on March 14, 2011. Initially Mr. Cartwright indicated that the Committee was in favour of maintaining the Fence Viewers for Agricultural property only and allowing the Cost Share approach to be applied to the rest of the Municipality. The first issue dealt with the nature of the fence which would be required to be built on an Agriculturally zoned property. Section 7.2 of the proposed by-law had stated that the standard for Agricultural properties would be a 9 strand page wire fence. After discussion with the Committee member this was amended to an 8 strand page wire fence, 106.7 cm (42 inches) tall with a single strand of barbed wire placed 15.2 cm (6 inches) above the top strand. Once that issue was resolved the Committee member withdrew his request to keep the Fence Viewers. The Agricultural standard would take priority over the Residential standard for any property line which abuts an Agricultural property and only along the abutting line. In the case of a property with one or more fence lines falling under Site Plan Control, the terms and conditions as set out in the Site Plan or Development Agreement would supersede the fencing requirements of this by-law. REPORT NO.: Addendum to Report CLD-001-11 PAGE 3 The second issue the Agricultural Advisory Committee raised was that staff consider adding a section to give the property owner requesting the fence the right to have any unpaid costs added to the tax roll and require the Municipality to pay out the outstanding amount to the owner. The Municipality could then pursue collecting the outstanding amount through the civil court. The requested procedure would be a variation on an authority which exists in the Line Fences Act. That Act permits an owner to ask to have the outstanding amount from a decision of the Fence Viewers added to the property taxes to be collected in a manner tike taxes. This means that the amount will show on the property tax bill as an outstanding lien but will not be collected as taxes. It will sit as a separate item until such time as the owner pays it off. In the meantime it will accrue interest until paid. The Act makes the assumption of the debt by the Municipality and the payment to the owner an option only. The Municipality is free to refuse to assume the debt and can leave it registered on title until paid or require the owner to pursue other means. Staff spoke to the Municipal Solicitor and confirmed that while this is permitted under the Line Fences Act, it would not be an available option for a By-law such as this which would be passed pursuant to the Municipal Act. As a result, the collection of the outstanding amounts will remain a civil matter between the two property owners. During discussions with the Advisory Committee, the Planning Department also requested a minor amendment to Section 8 concerning Heritage Properties. The wording of the section did not include individual properties which had been designated pursuant to Part IV of the Ontario Heritage Act. This has now been addressed. REPORT NO.: Addendum to Report CLD-001-11 CONCLUSION PAGE 4 The proposed by-law will not be a dramatic departure from previous practice. Given the limited number of requests in recent years staff do not believe the by-law will have a major impact on the public. A copy of the proposed by-law, with the sections that have been amended as a result of the meeting with the Agricultural Advisory Committee highlighted, is attached as Attachment No. 1. It is respectfully recommended that the by-law be forwarded to Council for passage. Attachments: Attachment 1 Proposed By-law Attachment 2 Report CLD-001-11 ATTACHMENT # -~ Tp THE CORPORATION OF THE MUNICIPALITY OF CLARINGTO~~~ # 'L -O O~// BY-LAW NUMBER 2011- Being a by-law to provide for the apportionment of costs of Division Fences WHEREAS the Municipal Act 2001 S.O 2001 c 25 as amended allows a municipality to pass by-laws with regard to structures including fences and signs; AND WHEREAS the Line Fences Act RSO 1990 c L17 exempts a Municipality from the arbitration requirements of the Fence Viewing process where a municipal by-law stipulating a cost sharing mechanism is in place, NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. SHORT TITLE 1.1 This By-law may be cited as the Fence Cost Sharing By-law. 2. DEFINITIONS 2.1 In this By-law: "Actual Cost" means the total cost of the construction of a Division Fence and includes the cost of the material used and the value of the labour pertormed to.complete the work. "Adjoining Owner" means the person who owns land adjacent to land of an Owner. "Agricultural Fence" means fencing constructed along the boundary line of any AgricultureHy zoned land, being actively used for agricuhurel purposes and shall consist of 8 strand page wire fencing 106.7 cm (42 inches) tall with a strand of barbed wire set 15.2 cm (8 inches) above the top strand of page wire. °Basic Cost° means the cost of constructing: i. An Agricultural fence; or ii. A residential fence. "Construct" means to build from new where there was no pre-existing Division Fence. "Division Fence' means a fence marking the boundary between adjoining parcels of land not under common ownership. "Municipality" means the Corporation of the Municipality of Clarington. "Owner' means the owner of land who initiates procedures pursuant to the by-law to install and apportion the costs of a Division Fence and includes the person managing or receiving the rent for the land or premises whether on his own account or as agent or trustee for the Owner. "Reconstruct means to replace an existing Division Fence that is not in a good state of repair using the same materials and building to the style as the existing Division Fence. "Repair" means to restore an existing Division Fence to its original State of Good Repair. "Residential Fence" means a 1.2 metre (4 foot) high steel chain link fence erected on Residential property which: i has a diamond mesh not greater than 50 mm (2 inches); ii is constructed of galvanized steel wire not less than 9 gauge or steel wire covered with vinyl forming a total thickness equivalent to 9 gauge galvanized wire; iii is supported by at least 48 mm (1.88 inch) diameter galvanized steelposts encased in a minimum of 50 mm (2 inches) of concrete from grade to a minimum of 1 metre (39 inches) below grade such posts to be spaced not more than 3 metres (10 feet) apart; and iv top and bottom horizontal rails of 35 mm (1.37 inches) minimum galvanized steel except that a minimum 9 gauge galvanized steel wire maybe substituted for the bottom horizontal steel rail. "State of Good Repair" means for the purposes of this By-law: i the fence is complete and in a structurally sound condition, plumb and securely anchored; ii protected by weather resistant materials; iii fence components are not broken, rusted, rotten or in a hazardous condition; iv all stained or painted fences are maintained free of peeling; and v that the fence does not present an unsightly appearance deleterious to abutting land or to the neighbourhood. "Upgrade" means to raise an existing Division Fence to a higher standard of greater value or quality of materials. "Work° means to construct, repair or maintain a Division Fence and shall include all costs for labour and material. 3. EXEMPTIONS 3.1 This By-law does not apply to: (a) any land that constitutes a public highway including land abutting a public highway that is held as a reserve by the Municipality or other public authority to separate land firm the highway or to land that is being held by the Municipality or other public authority as an unopened road allowance or for future public highway purposes; (b) an owner wishing to upgrade an existing Division Fence that is in a state of good repair; (c) the construction of any fence that is intentionally not constructed on the boundary line of the property; or (c) any person that is under a legal requirement either by an Act, Regulation, By-law or any other legislation to erect and maintain a Division Fence. 4. RIGHT TO CONSTRUCT, RECONSTRUCT OR REPAIR 4.1 An Owner of land may construct, reconstruct and repair a Division Fence to mark the boundary of his or her property. 5. WRITTEN AGREEMENT 5.1 Where the Adjoining Owner has agreed in writing to the construction, reconstruction, repair or upgrade of a Division Fence each owner shall be responsible for frfty(50) peroent of the actual cost of the work unless otherwise provided for in the written agreement. 5.2 A written agreement shall be signed by both parties and each party shall retain a copy of the agreement. 6. NO WRITTEN AGREEMENT 6.1 Where the adjoining owner has not agreed in writing to the construction, reconstruction or repair of a Division Fence, the Owner desiring to construct, reconstruct or repair a Division Fence shall serve or cause to be served upon the Adjoining Owner by registered mail, a notice of his or her intention to do so at least fourteen (14) days prior to the commencement of any work or execution of any contract in relation to the work to be undertaken. The fourteen (14) day notice period shall commence on the date following the day the notice is mailed. This notice shall include the following items: (a) a date for beginning the work to be undertaken; (b) a complete breakdown of the costs of the fence; (c) any estimates received for the cost of the fence; and (d) a request for payment based on the average cost of three separate quotes for the construction cost. 6.2 Where the Adjoining Owner has not agreed in writing to the construction of a Division Fence, the cost for the work shall be paid as follows: (a) the Adjoining Owner shall pay fifty (50) percent of the cost or fifty (50) percent of the Actual Cost whichever is less, based on the average cost of three separate construction quotes obtained prior to the commencement of construction by either party and presented to both parties; and (b) the Owner shall pay the balance of the Actual Cost. 6.3 Where the Adjoining Owner has not agreed in writing to the reconstruction or repair of a Division Fence each owner shall be responsible for (a) fifty (50) percent of the actual cost of the work, based on the average cost of three separate quotes construction obtained prior to the commencement of construction obtained by either part and presented to both parties, where both parties have agreed to the height, style and cost of the existing fence; or (b) ffty (50) percent of the cost of repairing or reconstructing a Basic Fence, based on the average cost of three separate construction quotes obtained prior to the commencement of construction either party and presented to both parties, where there has been no prior agreement for the construction of the fence. 6.4 Where the Adjoining Owner has not agreed in writing to the upgrade of an existing Division Fence but the owner is under a legal requirement to upgrade the existing Division Fence then the existing Division Fence will be upgraded and all costs shall be borne by the Owner. GENERAL PROVISIONS 7.1 The provisions of this By-law shall only apply prior to the commencement of any work and cannot be used retroactively for previously completed work. 7.2 Notwithstanding any other provision of the By-law, where either property forms part of an active farming operation on Agriculturally zoned land, the minimum requirement for cost share for the purposes of Section 6 shall be based on the consfruction of an Agricukurel Fence as defined in Section 2 of this By-law. 7.3 Where anon-Agricultural property abuts an Agricukurel property the standard for fencing along the common boundary line between the two properties shall be the Agricultural standard. The remainder of the Residential ornon-Agricultural property maybe fenced to the Residential standard. 7.4 Unless otherwise agreed, the cost for the work shall paid within thirty (30) days of completion of the work. 7.6 Where an Owner or Adjoining Owner is in default of his obligations pursuant to this By-law a person desiring to enforce the provisions of this By-law shall, within ninety days after completion of the work, serve or cause to be served on the defaulting person, a notice by registered mail requiring compliance with this By-law. The notice shall specify that if the default is not rectified within 30 days after service of the notice, the person enforcing this By-law may rectify the default and may take appropriate proceedings under Part IX of the Provincial Offences Act to recover the proportionate share of the cost of the work and additional costs of rectifying the default from the defaulting person. 7.6 Any Division Fence constructed, reconstructed or repaired pursuant to the provisions of this By-law shall comply with the provisions of the Municipality's Fencing By-laws. 7.7 Except as provided in section 3.1 this By-law shall bind the Municipality. 7.t3 Where an Owner wishes to construct, reconstruct or repair a Division Fence on property bordering Municipally owned lands, other than those listed in section 3.1, the Director of Operations shall represent the Municipality's interests in the matter. 7.9 Unless specifically agreed to by both parties, only new material shall be used in the construction or reconstruction of a Division Fence. 7.10 The provisions of this By-law shall not supersede any fencing restrictions or conditions as set out in a Site Plan Agreement or Development Agreement. 8. HERITAGE PROPERTIES 8.1 Any Division Fence constructed, reconstructed or repaired within an area designated as a Heritage Conservation District pursuant to Part V or fora heritage property pursuant to Part N of the Ontario Heritage Act is subject to the requirements outlined in the designating by-law. 9. VALIDITY 9.1 If a Court of competent jurisdiction should declare any section or part of a section of this By-law to be invalid such section or part of a section shall not be construed as having persuaded or influenced Council to pass the remainder of this By-law and it is hereby declared that the remainder of the By law shall be valid and shall remain in force. 9.2 This By-law shall come into Tull force and effect upon the date of its passage. BY-LAW passed in open session this 11th day of April 2011. Adrian Foster, Mayor Patti L. Barrie, Municipal Clerk Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: January 10, 2011 Resolution#: C'0~9'l~ By-law#: Report#: CLD-001-11 File#: P01.GE Subject: PROPOSED FENCE CONSTRUCTION COST SHARE BY-LAW RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report CLD-001-11 be received; and 2. THAT the By-law to provide for the apportionment of costs of Division Fences attached to Report CLD-001-11, as Attachment 1, be approved. Submitted PLB/LC d, CMO Clerk Reviewed by: Franklin Wu Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1 C 3A6 T 905-623-3379 REPORT NO.: CLD-001-11 PAGE 2 1. BACKGROUND Among the many functions of the Municipal Law Enforcement Division is the administration of the Line Fences Act (Act) as it applies to the division of costs for the construction of fences between adjacent property owners. The Act allows for an arbitration procedure where the two owners cannot agree on the apportionment of costs or the nature of the fence. The Line Fences Act is one of the oldest pieces of Legislation in the Province. The Act of the Province of Upper Canada, 1793, makes reference to the employment of Fence Viewers to provide mediation between disputing farmers over the height, nature and cost of fences to be constructed and maintained. In 1834 the first version of the Line Fences Act was passed by the legislature of Upper Canada. Over time the Act has changed little. Today it remains as a method of dispute resolution for all property owners. The current Acf provides that a property owner may construct a fence to mark the boundaries of his or her property. The Acf requires the local municipality to appoint at least 3 referees or "Fence Viewers" who will act as independent arbiters in fencing disputes. The Fence Viewers are paid by the Municipality and those costs can be billed back to the two property owners. As municipalities have become more urban, staff have seen a shift in the application of the Act from Agricultural to Residential properties. The overall number of Fence Viewings has steadily declined from an annual average of 20 in the early 1990's to its current rate. Since 2006 there have been eight Fence Viewings in the Municipality, with three in 2006, none in 2007, one in 2008, two in 2009 and two in 2010. Over the last ten years nine viewings have involved strictly residential properties and one was a residential property that bordered Municipal land. Four of the Awards were appealed to the Provincial Referee because one side or the other was unhappy with the Fence Viewers' award. CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO LAC 3A6 T 905-623-3379 REPORT NO.: CLD-001-11 PAGE 3 Two of the Appeals were dismissed, one as not necessary and the other as not applicable. In both cases the proposed fence work did not meet the requirements of the Act. In examining the cost share decision, four cases were decided on a 50-50 share basis. One case, which did not conform to the even cost split, involved special requirements on one property owner which did not apply to the other. What is not covered in the cost recovery provisions of the Line Fences Act is staff time required to prepare documentation and organize the Hearings. Each Fence Viewing and Appeal requires staff time to prepare the documentation, schedule Fence Viewings and Appeals, transcribe decisions and mail out the necessary paperwork. This process can be costly and time consuming for both the property owners and the Municipality. 2. ALTERNATIVES Section 26 of the Act does allow a municipality to opt out of the requirements if the local municipality passes a by-law to dictate terms of cost apportionment. A local municipality may choose to pass a by-law setting out a cost sharing formula for residents to use in resolving these matters among themselves. Staff believe that passing such a by-law would relieve municipal workload while still protecting the rights of private property owners to negotiate the costs of construction. Staff have spoken to representatives from the Ministry of Municipal Affairs and Housing. Province-wide there is an increasing trend to enact cost sharing by-laws for residential properties. Locally, Staff are aware that Pickering, Ajax, Whitby, Oshawa, Uxbridge and the City of Kawartha Lakes have abandoned the Fence Viewing process in favour of a cost sharing by-law. REPORT NO.: CLD-001-11 PAGE 4 3. MAIN FEATURES OF THE PROPOSED BY-LAW The intent of the By-law is to create a system that is fair to all citizens and not unduly onerous in its application. The Line Fences Act establishes the principle that where a property owner wishes to have a fence on the property line then there shall be a fence constructed. The general application of the Acf has been that unless there are compelling reasons to the contrary, the costs should be split evenly between the two owners. The Act currently offers the ability for adjoining owners to enter into private agreements to require fencing and many owners will avail themselves of that option when they have been made aware of it. The imposition of this By-law mirrors that ability in the Act and places the onus back where it belongs, on the involved property owners to resolve their issues themselves. The proposed By-law establishes that, where there is agreement between the two owners, costs shall be shared 50/50 based on a written agreement. Where there is no agreement. then the dissenting owner shall be responsible for the cost of a 1.2 metre high chain link fence constructed on the property line. If the originating owner wants to upgrade from that point, then he will carry the additional incurred costs. Ongoing maintenance of the fence is also split evenly between the adjoining owners based on the expected costs of a 1.2 metre high chain link fence. As with construction, repair costs for an upgraded fence which exceed the costs for a chain link fence would be borne by the party who wanted the upgrade. REPORT NO,: CLD-001-11 PAGE 5 4. EXCEPTIONS TO THE BY-LAW With certain exceptions listed below, the by-law will apply equally to all lands within the Municipality. The cost share approach has been equally effective in largely urbanized areas such as Ajax as well as more rural municipalities such as Kawartha Lakes. The classifications of lands use zones do not affect the process. As is the case with the Line Fences Act, the By-law will not apply to property abutting Crown land or a road allowance. The By-law will still hold the Municipality jointly accountable for properties bordering municipal parks and other open spaces. Rather than forcing the adjoining owner to file for a Fence Viewing the property owner may simply approach the Director of Operations to arrange for fencing and costs. The By-law is not a means to have an adjoining neighbour pay for upgrades to an existing Division Fence that is in a state of good repair. The owner requesting the upgrade would have to show that there was a deficiency and a need for the upgrade. Any fence construction within the Heritage Conservation District will be subject to all requirements for obtaining a permit pursuant to Part V of the Ontario Heritage Act. The By-law will not apply to any person who is under a legal requirement either by an Act, Regulation, By-law or any other legislation to erect and maintain a Division Fence. For example a property owner who is the subject of an "Order to Restrain" their dog cannot use the provisions of this By-law to force the adjoining neighbours to pay for upgrades to the existing fence as required in the terms of the Order: Any disputes in the cost or cost recovery will have to be addressed through the civil process and not through the Municipality. Currently the Act allows for the unpaid amounts, once certified as outstanding by the fence viewers, to be added to the Municipal Tax Roll as a lien. It does not have priority status and may sit for years before it is paid: REPORT NO.: CLD-001-11 PAGE 6 S. CONCLUSION The proposed By-law will not be a dramatic departure from previous practice. Given the limited number of requests in recent years staff do not believe the By-law will have a major impact on the public. It is respectfully recommended that the attached by-law be forwarded to Council for passage. Attachments: Attachment 1 Proposed By-law