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HomeMy WebLinkAboutCD-10-95 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON REPORT Meeting: General Purpose and Administrative Committee File# Date: Monday, March 20, 1995 Res. #fa L --I By-Law# Report#: CD-10-95 File#: Subject: RESTRICTION OF HOURS OF OPERATION OF HOME OCCUPATIONS Ftecornrnendffon is respectfully recommended that the General Purpose and Administrative Committee recommend to Council the following: 1. THAT Report CD-10-95 be received; 2 . THAT the request of Deborah and Dan Brock for the Council of the Municipality of Clarington to pass an amendment to applicable By- laws to restrict the hours of operation of home occupations be denied; and 3 . THAT Deborah and Dan Brock be advised of Council's decision. BACKGROUND: At a Council meeting held of November 28, 1994, staff were instructed to review and prepare a report concerning a request from Deborah and Dan Brock for "an amendment to applicable By-laws to restrict the hours of operation of home occupations" . The Brocks live next door to a person who operates a hairdressing shop from her home. Since 1989, the Brocks have had to contend with the additional noise associated with this home occupation, i.e. that from the vehicles and patrons . In the fall of 1989 charges were brought against the Brock's neighbour pursuant to the provisions of the Barber Shop By-law 72-25 . This was for operating outside of permitted times . A Justice of the Peace subsequently dismissed these charges for want of proof. The court held that the Crown had failed to prove its case since at no time had an officer entered the shop and confirmed that a business transaction had taken place. Without that evidence the Crown could not prove that the subject was operating the business out of specified times . Notwithstanding this, the defendant's solicitor was prepared to argue that his client operated a hairdressing shop, not a barber shop; thus the Barber Shop By-law 72-25 was not applicable. Upon review of the Municipality of Clarington Zoning By-law 84-63 and The Municipal Act R.S.O. 1990, it is apparent that a barber shop and hairdressing salon (establishment) are referred to as separate entities, and therefore must be treated as such. RPAPER EGYC, 6 0 1 THIS B PRRTEDQ RECYCLED PAPER REPORT NO. CD-10-95 PAGE TWO COMMENTS• The Municipality of Clarington Zoning By-law 84-63 does reference the subject of home occupations . The By-law defines home occupations, sets forth general provisions and stipulates which zones support a home occupation. The general provisions do provide that a home occupation shall not create or become a public nuisance due to traffic, noise, and hours of operation. This is an extremely broad provision, open to several interpretations, i.e. when does it constitute a "public nuisance" ; after one complaint, two complaints? While the Zoning By-law does stipulate that a home occupation shall not become a public nuisance due to hours of operation, these hours cannot be regulated by the Zoning By-law. Section 34 of The Planning Act does not provide the Municipal Council the authority to regulate such in a Zoning By-law. The Municipal Act confers upon a Municipality the power to, in essence, license approximately one hundred "callings" . A By-law can be passed by a Municipality for licensing, regulating and governing the owners of a hairdressing salon. Such a By-law would be applicable to this particular situation. Municipal By-laws need to be passed in "good faith" for the general interest of the Municipality. In the case of Kowal and Nelson (Township) {1953} , a trailer camp operator brought a motion to quash a By-law for licensing and regulating said camps. The court quashed the By-law as it was not passed in good faith. It was aimed at the applicant, the only operator in the Municipality, and was intended to put him out of business . The Brock's complaint of their neighbour's hairdressing salon and the hours of said operation and noise created has been the only complaint the By-law office has had since at least 1989; the only complaint concerning a hairdressing salon anywhere within the Municipality. The passage of a By-law to license, regulate and govern a hairdressing salon at this time, for this specific situation, may be construed by the court at a later date, as having been enacted in bad faith for one specific operation. It should be noted that the Barber Shop By-law 72-25 is an antiquated piece of legislation. The restrictive conditions contained in the By-law serve little apparent use at this time. RECOMMENDATION: It is recognized that in the future it may be necessary and desirable to enact a Comprehensive Licensing By-law for many "callings" within the Municipality of Clarington. Such a By-law would allow staff to update and amend active licensing By-laws as well as create new ones. The process in the end, would become more streamlined and efficient. However, such a process would be very time consuming and presently beyond staff resources to effectively enact and enforce. 602 REPORT CD-10-95 PAGE THREE In the interim, it may be in the Brock Is interest to pursue their particular matter civilly. Respectfully submitted, Reviewed by, Pat L.--glaCrie, C.T. W.H. Stockwell Town Clerk Chief Administrative Officer TM*PB*MH Interested parties to be notified of Council and Committee's decision: Deborah and Dan Brock 7 Orchard Park Drive Bowmanville, Ont. L1C 4E2 603 ` COUNCIL DIRECTION D--10 -- - C qe,), all 4j--x 1 -6-0 4