HomeMy WebLinkAboutLGL-008-13 .I LEGAL REPORT
LEGAL DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: September 9, 2013 Resolution#: °1By-law#:
Report#: LGL-008-13 File#: L1000-10
Subject: POSSIBLE AMENDMENT TO FORTIFICATION BY-LAW NO. 2011-091
RECOMMENDATION:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report LGL-008-13 be received for information.
Submitted by: Reviewed by:
Andrew C. Allison, B. Comm., LL.B. Franklin Wu, MAOM
Municipal Solicitor Chief Administrative Officer
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: LGL-008-13 PAGE 2
1.0 BACKGROUND
1.1 At its meeting on June 24, 2013, the General Purpose and Administration
Committee passed the following resolution (#GPA-401-13):
THAT the matter of an amendment to Section 9(2)(c) of Fortification
By-law 2011-091, respecting video surveillance equipment which
would prevent homeowners from using video equipment to capture
images of neighbouring properties, be referred to Staff for a report.
1.2 A copy of Fortification By-law 2011-091 is attached to this Report (Attachment 1).
Also attached is a copy of Report CLD-026-11 (without attachment).
2.0 DISCUSSION
2.1 Subsections 9(1) and 9(2) of the Fortification By-law read, in part, as follows:
9(1) No person shall construct excessive protective elements on land.
9(2) In this section, excessive protection elements includes,
(c) visual surveillance equipment, including video cameras, night
visions systems, or electronic surveillance devices capable of
permitting either stationary or scanned viewing or listening
beyond the perimeter of the land.
2.2 As stated in Report CLD-026-11, the Fortification By-law is not intended "to apply
to regular security precautions that many homeowners have taken to protect their
property. It addresses "excessive" measures ...".
2.3 A concern has arisen over the ability of the Municipality to enforce the prohibition
on "excessive" protection in situations where one private property owner has
installed video surveillance equipment that may be capturing views beyond the
limits of the land being monitored by the equipment.
2.4 In the two years that the Fortification By-law has been in place, the Municipality
has received a total of 4 formal complaints from residents who have alleged that
their neighbour's video surveillance equipment is "excessive" because it is
recording activity on their property. Without access to the dwelling where the
equipment has been installed, it is not possible to determine precisely what is
being visually surveyed.
2.5 One possible way to avoid the potential problem is to amend the by-law to
require that surveillance equipment installed in a residential area be pointed
inwards towards the owner's residence. However, this could present some
practical challenges to home owners, particularly in front yards and it could also
mar the streetscape, leave areas of a person's property exposed (not under
surveillance), and make the cameras more susceptible to vandalism. Another
REPORT NO.: LGL-008-13 PAGE 3
possible way to avoid the potential problem is to require homeowners to obtain a
permit as a condition of installing surveillance equipment. In the opinion of Staff,
this is an administratively cumbersome approach to an issue that only arises
once or twice a year.
2.6 In the opinion of Staff, the best approach is to leave the wording of the by-law the
way that it is but, when necessary, step up the enforcement effort. Clause
9(2)(c) of the by-law is enforceable, but it may require that more aggressive
enforcements steps be taken to ensure compliance. In situations where it is
unclear whether surveillance equipment is "excessive" because it may be
recording activity on neighbouring property, Municipal By-Law Enforcement
Officers can ask the home owner who has installed the equipment for permission
to enter the home in order to confirm what is being visually surveyed. (Under
section 437 of the Municipal Act, 2001, Officers do not have the ability to enter a
person's dwelling unless the person consents, a court order or warrant is
obtained, there is a situation of immediate danger, or the entry is otherwise
authorized under the Act). If the home owner does not consent to the entry, then
the Officer can seek to obtain a court order pursuant to subsection 438(2) of the
Municipal Act, 2001 which provides as follows:
Order
(2) A provincial judge or justice of the peace may issue an order
authorizing the municipality to enter on land for the purpose of carrying out
an inspection for a purpose described in subsection 436(1) and to exercise
powers described in clauses 436(2)(x) to (d) as specified in the order if he
or she is satisfied by evidence under oath,
(a) that the circumstances of the inspection are provided for in a by-law
under subsection (1);
(b) that the inspection is reasonably necessary; and
(c) that one of the following conditions exists:
(i) where there is no by-law under section 436 which provides
for inspections in such circumstances, the municipality has
made a reasonable attempt to obtain the occupier's consent
for the inspection,
(ii) where there is a by-law under section 436 which provides for
inspections in such circumstances, the municipality has been
prevented or is likely to be prevented from doing anything set
out in subsection 436(1) or(2).
2.7 All four of the formal complaints received in relation to the Fortification By-law
have been investigated and compliance confirmed to the satisfaction of the
REPORT NO.: LGL-008-13 PAGE 4
municipal by-law enforcement officers. On the first complaint, a visual inspection
by an officer confirmed that the surveillance equipment could not be capturing
images beyond the perimeter of the person's residential property. The second
complainant advised an officer on a recent (August 2013) follow-up investigation
that things were fine and therefore there was no need for the officer to request
permission to enter the home with the surveillance cameras. The third complaint
was resolved when the home owner with the surveillance equipment allowed
officers to enter the home and confirm that the surveillance cameras were not
capturing images beyond the perimeter of the property. The fourth complaint
was resolved through a visual inspection of the monitor. The bottom line is that
municipal by-law enforcement officers have been able to effectively enforce
subsections 9(1) and 9(2) of the Fortification By-law using existing powers, and
therefore no change is recommended to the By-law.
3.0 CONCURRENCE
3.1 The Municipal Clerk concurs with the recommendation in this Report.
CONFORMITY WITH STRATEGIC PLAN — Not applicable.
Attachment 1: Fortification By-law 2011-091
Attachment 2: Report CLD-026-11 (without attachment)
ATTACHMENT NO. 1 TO
REPORT LGL-008-13
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NUMBER 2011-091
A by-law to prohibit the excessive barricading or fortification
of land within the Municipality of Clarington
WHEREAS section 133 of the Municipal Act, 2009 authorizes a municipality that
is responsible for the enforcement of the Building Code Act, 9992 to regulate of
the fortification of and protective elements applied to land in relation to the use of
land and to prohibit excessive fortification;
NOW THEREFORE the Council of The Corporation of the Municipality of
Clarington enacts as follows:
Part 1 —INTERPRETATION
Definitions
1. In this by-law,
"building"has the same meaning as in the Building Code Act, 1992;
"Building Code Act, 1992"means the Building Code Act, 9992, S.O. 1992,
c.23;
"Chief Building Official"has the same meaning as in the Building Code
Act, 1992;
"Committee"means the General Purpose and Administration Committee
of Council;
"construct"has the same meaning as in the Building Code Act, 1992;
"Council"means the Council of the Municipality;
"fortification"means the construction of devices, barriers or materials in a
manner designed to strengthen or provide defensive works to land;
"land"has the same meaning as in subsection 133(2) of the Municipal Act,
2001;
"Municipality"means The Corporation of the Municipality of Clarington or
the geographic area of Clarington, as the context requires;
"Municipal Act, 2001"means the Municipal Act, 2001, S.O. 2001, c.25;
"person"includes a corporation and the heirs, executors, administrators or
other legal representatives of a person to whom the context can apply
according to law; and
"protective elements"includes surveillance equipment.
References
2. In this by-law, reference to any Act is reference to that Act as it is
amended or re-enacted from time to time.
Fortification By-law 2011-091 Page 2
3. Unless otherwise specified, references in this by-law to sections and
subsections are references to sections and subsections in this by-law.
Word Usage
4. This by-law shall be read with all changes in gender or number as the
context may require.
5. A grammatical variation of a word or expression defined has a
corresponding meaning.
Conflict
6. If a provision of this by-law conflicts with a provision of the Building Code
under the Building Code Act, 1992,the Building Code prevails.
Application
7. This by-law applies to all land within the Municipality unless specifically
exempted by this By-law.
Part 2-PROHIBITIONS
Fortification
8. (1) No person shall construct any excessive fortification on land.
(2) In this section,"excessive fortification"includes the construction of,
(a) steel plates,steel bars, bullet-resistant shutters, laminated
glass or heavy gauge wire mesh to a window,door or any
other opening on any level of any building or structure other
than the basement level of such building;
(b) concrete block, brick, or other masonry or similar product to
partially or completely obstruct or seal any window, door or
other exterior entrance or egress to land;
(c) steel sheeting or plates or other similar products to the
interior or exterior walls of a building such as to reinforce
walls or create a secondary wall such as to protect against
firearms,artillery, explosives,vehicle contact,shock, and any
other similar intrusions;
(d) armour plated or reinforced doors,whether exterior or
interior, designed to resist against impact of firearms artillery,
explosives, battering rams, shock or vehicle contact;
(e) pillars, cones or barriers constructed of concrete, steel, or
any other material that are designed to obstruct, hinder,
restrict,or deny access to land by conventional means of
access or modes of transportation; and
(f) an observation tower designed to enable a visual observation
of surrounding areas beyond the perimeter of the land
whether the tower is occupied by an individual or a
surveillance camera or like equipment.
Protective Elements
9. (1) No person shall construct excessive protective elements on land.
Fortification By-law 2011-091 Page 3
(2) In this section,"excessive protective elements"includes,
(a) perimeter warning devices such as"laser eyes"or other
types of advanced warning systems designed to forewarn of
the encroachment onto the perimeter of land from adjoining
lands or roadways but excluding similar constructions to
forewarn of entry into a building on land;
(b) electrified fencing or other similar barrier including hidden
traps, electrified doors or windows, land mines or other
explosive devices or any weapon or thing that may cause
injury or death when triggered or activated; and
(c) visual surveillance equipment, including video cameras, night
vision systems, or electronic surveillance devices capable of
permitting either stationary or scanned viewing or listening
beyond the perimeter of the land.
Part 3-EXEMPTIONS
Exempt Users
10. Sections 8 and 9 do not apply to any land solely occupied by,
(a) a"financial institution"as defined in section 2 of the Bank Act,
S.C. 1991, c.46;
(b) a detention centre zoned for such use and otherwise permitted
by law;
(c) a"police service"as defined in section 2 of the Police Services
Act, R.S.O. 1990, c. P.15
(d) the Royal Canadian Mounted Police;
(e) the federal Department of National Defence;
(f) the Ministry of the Attorney General for Ontario for the purpose
of a courthouse;
(g) a"school'as defined in subsection 1(1) of the Education Act,
R.S.O. 1990, c. E.2; or
(h) a"day nursery"as defined in subsection 1(1)of the Day
Nurseries Act, R.S.O. 1990, c. D.2.
Exempt Uses
11. Sections 8 and 9 do not prohibit,
(a) the use or construction of commercially marketed security
devices designed and applied to provide reasonable protection
from theft or other criminal activity against a person or
property of a person;
(b) the reasonable use of protective elements such as a"laser
eye"or other advance warning devices on windows or doors of
a dwelling for the purpose of providing a warning to an
occupant of the dwelling or of dispatching emergency services
personnel where an entry into a dwelling has occurred; or
Fortification By-law 2011-091 Page 4
(c) a"normal farm practice"as defined in subsection 1(1)of the
Farming and Food Production Protection Act, 1998, S.O.
1998, c.1.
Application for Exemption
12. Any person wishing to obtain a partial or complete exemption from the
provisions of this by-law must file with the Chief Building Official a written
application requesting an exemption which contains the following
information:
(a) date of construction;
(b) proof that the applicant is the sole owner of the land or,
alternatively, each owner's written authorization to submit the
application;
(c) legal description and municipal address of the land;
(d) particulars of the existing use(s)of the land, and of the
intended use(s) if any change in use is anticipated;
(e) a sketch or survey of the land and all buildings on the land;
(f) particulars of all existing and proposed fortification and
protective elements including the date or dates of construction
of existing fortification and protective elements; and
(g) particulars of each exemption requested including the reasons
for requesting the exemption.
13. The Chief Building Official shall review the actual or proposed construction
and,for that purpose, may make any further inquiries of any person,
agency, board,department, ministry or public body that he deems
necessary and,further, may require the submission of additional
information and documents at the applicant's expense.
14. In considering an exemption application,the Chief Building Official shall
have regard for,
(a) the provisions of any applicable site plan agreement;
(b) special circumstances or conditions applying to the land or
the use referred to in the application;
(c) whether strict application of the provisions of this by-law
would result in practical difficulties or unnecessary and
unusual hardship for the applicant that would be inconsistent
with the objectives of this by-law;
(d) whether such special circumstances or conditions are
existing and not created by the applicant; and
(e) whether the general intent and purpose of this by-law is
maintained.
15. The Chief Building Official may approve or refuse any exemption
application and may impose any conditions upon an approval as he
determines to be appropriate.
Fortification By-law 2011-091 Page 5
16. No person shall make a false or intentionally misleading recital of fact
statement or representation in any application or other document required
by this by-law.
Part 4—ENFORCEMENT
Definition
17. In this section,"Officer"means any employee, officer or agent of the
Municipality whose duties include the enforcement of this by-law and any
police officer as defined in section 2 of the Police Services Act, R.S.O.
1990, G. P.15;
Inspections
18. An Officer may, at any reasonable time, enter upon any land for the
purpose of carrying out an inspection to determine whether or not the
provisions of this by-law have been complied with.
19. No person shall prevent hinder or interfere or attempt to prevent hinder or
interfere with an inspection undertaken by an Officer.
Order to Comply
20. (1) Where an Officer is satisfied that there has been a contravention of
any provision of this by-law,the Officer may issue an order
requiring the owner of the land on which the contravention has
occurred to correct the contravention by removing all or some of the
fortification or protective elements.
(2) An order shall set out,
(a) reasonable particulars of the contravention;
(b) the location of the land;
(c) the general nature of the work required to be done to correct
the contravention; and
(d) the date by which the work must be done.
(3) An order may be served by,
(a) personally delivering it to the owner;
(b) sending it by registered mail to the owner at the address of
the owner shown on the last revised assessment roll for the
property or the last known address of the owner; or
(c) sending it by registered mail to the owner at the last known
address of the owner.
(4) If the address of an owner is unknown or the Municipality is unable
to effect service on an owner in accordance with subsection (3), a
placard setting out the terms of the order may be placed in a
conspicuous place on or near the owner's land.
(5) Service of an order under this section shall be deemed to have
been effected on the date that it is delivered personally 3 days after
it was mailed or the date that it is posted on the property as the
case may be.
Fortification By-law 2011-091 Page 6
Existing Fortifications
21. If an order is issued under section 20 with respect to fortifications or
protective elements that were present on the land on the day this by-law is
passed,such order shall give not less than three months to complete the
work.
Failure to Comply
22. No person shall fail to comply with an order issued under this by-law.
Remedial Action
23. (1) Where an order has been issued and compliance has not been
achieved by the date specified in the order, the Municipality may
cause the work set out in the order to be done.
(2) The Municipality may recover all costs of doing any work
undertaken pursuant to subsection (1)together with an
administration charge equal to 25%of such costs from the owner by
adding the costs to the tax roll for the land and collecting them in
the same manner as property taxes.
Offences and Penalties
24. Every person who contravenes any provision of this by-law guilty of an
offence upon conviction is liable to a fine pursuant to the provisions of the
Provincial Offences Act, R.S.O. 1990, c. P.33.
Part 5-GENERAL
Short Title
25. This by-law may be cited as the"Fortification By-law".
Effective Date
26. This by-law comes into effect on the date of its passing.
By-law approved this3rday ofoct6_bar,,2011.
roa drian Foster
atti L Barrie
unicipal Clerk
ATTACHMENT NO. 2 TO
REPORT LGL-008-13
ciffingwin REPORT
CLERK'S DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: September 26, 2011 Resolution#: 60-5F9'11 By-law#:
Report#: CLD-026-11 File#:
Subject: PROPOSED FORTIFICATION BY-LAW
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report CLD-026-11 be received;
2. THAT the By-law attached to Report CLD-026-11 be approved; and
3. THAT all interested parties listed in Report CLD-026-11 advised of Council's
decision.
Submitted by: Reviewed by:
tti L. Barris. Franklin Wu,
Municipal Clerk Chief Administrative Officer
r
PLB/LDC
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: CLD-026-11 PAGE 2
1. BACKGROUND
In the course of their duties, members of the Clarington Fire and Emergency Services,
the Ambulance service and the Durham Regional Police must often enter homes
quickly. This can be inhibited by excessive security fortifications which some property
owners have incorporated into their buildings.
The Durham Regional Police have asked for the Municipality's assistance to avoid
delays of entry which may compromise the safety of all parties involved. Staff are
therefore recommending the implementation of a Fortification By-law. The by-law will
not apply to regular security precautions that many homeowners have taken to protect
their property. It addresses "excessive" measures which some residents have taken to
fortify their buildings.
2. COMMENTS
Personal security is a large concern for many people. Fears about the safety of family
members in the home have driven security equipment into a major industry. Staff
recognize this and are sensitive to those legitimate concerns.
The proposed by-law is directed to those situations where a residence has been turned
into a fortress with locks, bars and security devices which would prevent Police, Fire or
Ambulance attendants from entering a building if needed. The proposed by-law is
similar to by-laws already in force in Oshawa, Whitby, Ajax and Pickering. These by-
laws have proven successful in assisting the emergency services in those
municipalities.
Since many of these fortifications require structural addition or alteration to the existing
building it will be the responsibility of the Chief Building Official to administer the
provisions of the by-law. Enforcement of matters under the by-law will be undertaken in
cooperation with the Durham Regional Police and the Municipal Law Enforcement
Division.
The by-law will apply to all properties within the Municipality. In the case of buildings
with pre-existing fortifications the owner may make an application for an exemption in
order to keep the existing elements. This will be reviewed by staff and alterations may
be required before approval is granted.
The by-law will also provide an exemption for those buildings and businesses which, by
virtue of their business require extra security, for example financial institutions, schools,
and police stations are all exempt.
REPORT NO.: CLD-026-11 PAGE 3
3. PARTICULARS OF RESTRICTIONS
As stated above it is not the intent of the by-law to restrict any and all security
measures, only those which are excessive in the given situations. While fences with
barbed wire and watch towers may be normal and necessary for a correctional
institution, they are not needed for a private residence. The by-law will not apply to
commercially marketed devices and equipment intended to provide a reasonable level
of protection to the homeowner.
Anything designed or intended to restrict or impede entry into a building could be
considered excessive. The installation of steel plates, bullet proof glass, or heavy
gauge wire mesh on the doors or windows of a private residence would be examples of
excessive fortifications added to a building. The use of electrification on doors,
windows or fencing would also be considered excessive along with surveillance
equipment which is set to monitor the area beyond the yard or the perimeter of the
property.
Where there is a legitimate need for the addition of fortification elements to a building
the owner may make application for an exemption to allow the work to be done. The
Chief Building Official may make such enquiries as required to determine if an
exemption will be granted.
4. CONCURRENCE
This report has been reviewed by Tony Cannella, Director of Engineering Services,
Gord Weir, Director of Emergency and Fire Services and the Municipal Solicitor who
concur with the recommendations. A copy of the Report and the By-law have been
forwarded to the Durham Regional Police for their information.
5. CONCLUSION
The passage of a by-law to regulate and prohibit excessive fortifications of buildings
within the Municipality will assist emergency services staff in performing their duties.
Staff therefore respectfully recommend that Committee approve this Report and the
attached by-law and forward them to Council for passage.
CONFORMITY WITH STRATEGIC PLAN — Not Applicable
Staff Contact: Len Creamer, Manager, Municipal Law Enforcement
List of interested parties to be advised of Council's decision:
Inspector Chris Ostler, Durham Regional Police
Region of Durham, Emergency Medical Services