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HomeMy WebLinkAboutCSD-11-067 - Amendments to Chapter 711 (Open Air Burning)REPORT T0: Community and Infrastructure Services Committee DATE OF MEETING: May 30, 2011 SUBMITTED BY: Jeff Willmer, Deputy CAO, Community Services, Ext. 2325 PREPARED BY: Shayne Turner, Director of By-law Enforcement, Ext. 2753 ~ WARD(S) INVOLVED: All DATE OF REPORT: May 20, 2011 REPORT NO.: CSD-11-067 SUBJECT: AMENDMENTS TO CHAPTER 711 (OPEN AIR BURNING) RECOMMENDATION: That a by-law be enacted to amend Chapter 711 (Open Air Burning) with regard to the nuisance provision of the by-law and the inclusion of outdoor wood burning appliances, as outlined in Report No. CSD-11-067. BACKGROUND: Chapter 711 (Open Air Burning) was enacted in 2006 to regulate the issuance of permits for controlled burning (ie. lot clearing) and the use of backyard recreational fireplaces and firepits. Prior to the enactment of the by-law, recreational fires were a permitted use, however there were little in terms of any regulations that staff could apply when dealing with complaints. There were some regulations contained in the Ontario Fire Code that could be applied in some situations, however they did not adequately address the nature of the concerns being expressed. In other words, Chapter 711 was created to better address existing permitted situations. Permits, issued by Fire Prevention, are required for larger controlled burning such as what may take place when areas of lots are cleared or in agricultural areas. Permits are not required for the recreational use of backyard fireplaces and firepits, however their use is regulated by specific criteria in the by-law. This criteria relates to safe distance setbacks, time-limits, types of material to burn and creating a nuisance. The use of backyard recreational fireplaces is relatively common, but should not be viewed as a right that can interfere with the reasonable enjoyment of a neighbouring property, or that can create an undue safety hazard. io-i 1 Staff Report Krr~.~-~~,i~iER CommunityServicesDepartment www.kitthenerta In 2010 the By-law Enforcement Division responded to 229 complaints and the Fire Department to 112 complaints, involving open air burning, noting that there is some overlap in the calls between the 2 Divisions. The Fire Department reports that, in the 5 years that the By-law has existed, there have been no injuries noted and 2 occurrences involving any form of property damage. The nuisance provision of the By-law has been found to be the most difficult provision to enforce, based on its subjectivity. Staff are proposing to amend the definition of nuisance. In addition, an issue arose during the summer of 2010 relating to the use of outdoor wood burning devices as a heating source (ie. heating swimming pool water) that staff determined could create a nuisance in a similar manner as recreational backyard fires. However, it was determined that the existing by-law did not speak to this type of use in any manner. Staff are proposing to include this type of outdoor appliance in the by-law. REPORT: Nuisance Provision The current definition of "nuisance" in the by-law refers to "excessive smoke, smell, airborne sparks or embers that is likely to disturb others". It is the reference to "excessive" that can create an enforcement issue as it requires a burden of proof based on an opinion that may differ depending on the parties involved. In addition, the definition refers to disturbing a person, but does not speak to the issue of the potential interference that an outdoor fire may cause to neighbouring properties. Thus staff are proposing to remove the reference to "excessive" in the nuisance definition as well as add the reference to interfering with the enjoyment and use of a neighbouring property. The following is the proposed definition of nuisance: "nuisance" means smoke, smell, airborne sparks, ash, particles or embers that disturb or are likely to disturb a person, or that interfere with the enjoyment or use of a property". io-2 1 Staff Report Krr~.~-~~,i~iER CommunityServicesDepartment www.kitthenerta Experience has shown that the majority of backyard fires occur during the evenings on weekends. This is also a relatively busy time for staff as they are dealing with a variety of complaints, particularly noise complaints. Existing service levels are such that there may be times when an officer is limited as to how soon he/she can attend to a backyard fire complaint. In the event that an officer cannot attend to the subject property in time to gather adequate evidence of a violation, legal action may be initiated by the officers based on witness information provided the person is willing to be involved in the process as a witness. This approach is similar to the existing process for noise enforcement for situations when the officer is not able to witness the noise. Thus, although it is not the preferred approach, it does provide an additional option for enforcement that can be applied when the circumstances warrant it. Further, the revised definition will make it easier for a witness to make a determination of nuisance rather than with the existing definition. OutdoorA~pliances The issue of using an outdoor wood burning device as a heating appliance arose last summer and unfortunately the existing by-law did not speak to such devices. Staff are proposing to amend the By-law by adding a definition of an "outdoor appliance" that will capture such devices, except for those that are entirely enclosed within a building. With the definition in place, the By-law's existing regulations will apply to the appliances in the same manner as they currently do for fireplaces and firepits. The regulations include: - Requiring a safe distance from structures, lot lines, trees, etc.; - Requiring to be located on anon-combustible surface; - Specifying what types of material (brush, firewood and manufactured logs) that can be burned; - Afire extinguisher must be readily available; - An age limit (18 years or older) for a supervisory person; - Restricting the hours to between 7 AM and 11 PM; and - Ensuring that it does not create a nuisance. Staff feel that the proposed changes to the By-law should address most of the issues that have been experienced, without being more restrictive for those who can have a backyard fire without creating any adverse impacts on neighbouring properties. 10-3 1 Staff Report Krr~.~-~~,i~iER CommunityServicesDepartment www.kitthenerta The effect of the amendments, if enacted, will be evaluated in the late fall of this year. ALIGNMENT WITH CITY OF KITCHENER STRATEGIC PLAN: The proposed amendments support the Community Priority of Quality of Life, as contained in the City's Strategic Plan. FINANCIAL IMPLICATIONS: There have been no financial implications noted at this time, relating to the proposed by-law amendments. COMMUNITY ENGAGEMENT: Information relating to the outdoor burning by-law, as well as safe burning practices, will continue to be communicated to the public through the efforts of the Fire Department and By- law Enforcement Divisions as part of their public information programs. ACKNOWLEDGED BY: Mike Selling, Acting Deputy CAO, Community Services Department 10-4