HomeMy WebLinkAbout2011-045THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NUMBER
2011-045
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
performed 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 Agriculturally zoned land, being actively used for agricultural
purposes and shall consist of 8 strand page wire fencing 106.7 cm (42
inches) tall.
"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:
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
steel posts 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 may be substituted for the bottom horizontal steel rail.
"State of Good Repair" means for the purposes of this By-law:
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 from the highway or to land that is
being held by the Municipality or other public authority as an
unopened road allowance or far 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 fifty(50) percent 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
6.3
(b) the Owner shall pay the balance of the Actual Cost.
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
6.4
(b) fifty (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.
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.
7. 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 construction of an Agricultural Fence as defined in Section 2
of this By-law.
7.3 Where anon-Agricultural property abuts an Agricultural property the
standard for fencing along the common boundary line between the two
properties shall be the Agricultural standard. The remainder of the
Residential or non-Agricultural property may be 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.
7.5 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.
7.8 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 for a
heritage property pursuant to Part IV 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 full force and effect upon the date of its
passage.
BY-LAW passed in open session this 11`h day of April 2011.
.-. t~_
aan Fosfer,-Mayor
Municipal Clerk