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HomeMy WebLinkAboutCSD-13-015 - Amendments to Municipal Code Chapter 711 - Open Air Burning REPORT TO:Community and Infrastructure Services Committee DATE OF MEETING: February 25, 2013 SUBMITTED BY: Michael May, Deputy CAO, Community Services Department, 519-741-3400, extension 3523 PREPARED BY: Shayne Turner, Director of By-law Enforcement, 519-741- 2753 WARD(S) INVOLVED: All DATE OF REPORT: February 19, 2013 REPORT NO.: CSD-13-015 SUBJECT: AMENDMENTS TO CHAPTER 711 – OPEN AIR BURNING RECOMMENDATION: That a by-law be enacted to repeal and replace Chapter 711 (Open Air Burning) of the City of Kitchener Municipal Code to limit the permitted hours to conduct recreational fires in a firepit or fireplace to between 6:00 PM and 11:00PM, to provide for a process to ban open air burning on a property found to be a chronic problem and provide for housekeeping changes as outlined in Report No. CSD-13-015; and further, That a Council Policy statement be adopted to help guide the administrative and enforcement process relating to Chapter 711 (Open Air Burning) of the City of Kitchener Municipal Code, as outlined in Report No. CSD-13-015. BACKGROUND: At the August 27, 2012, meeting of Council, Report CSD-12-115 was considered. As a result, Council passed the following resolution: That a by-law with an effective date of April 1, 2013 to amend Chapter 711 of the Municipal Code (Open Air Burning) by limiting the hours for recreational fires between 6:00 p.m. and 11:00 p.m. and, to provide processes for staff to deal with chronic violators of Chapter 711, be presented for Council’s consideration prior to March 1, 2013; and, That a by-law to amend Chapter 711 of the Municipal Code (Open Air Burning) changing the distance separation of an open fire from any property line, building and/or other combustible article from 6 metres to 5 metres; be given three readings this date; and, That staff be directed to: increase enforcement of Chapter 711 during peak hours; apply to the Ministry of the Attorney General for set fines; investigate cost recovery for costs 14 - 1 incurred by Fire Services with respect to Chapter 711; and, develop a communication plan to provide information to the public regarding open air fires; and further, That staff be directed to examine the feasibility of implementing an outdoor gas fireplace program and report back to Council in March 2013. This report discusses the by-law amendment, as well as other components of Council’s direction. REPORT: By-law Amendments Firstly, staff propose that the changes to the by-law be made by way of a replacement of the current by-law as opposed to amendments to the existing document. This is primarily for clarity purposes and does not result in any changes to the intent of the by-law outside of Council’s direction or that which is otherwise discussed in this report. The following is an overview of the changes proposed by staff: 1. Council’s direction with respect to changing the hours for recreational (backyard) fires, limiting the hours for such fires from 6 P.M. to 11 P.M., is relatively straightforward, and has been incorporated into the proposed by-law changes; 2. An additional change that staff are proposing, which was not discussed at the August 2012 Council meeting, but has been raised since, is to consolidate the types of backyard fires currently defined in the by-law, as “firepits” and “fireplaces”, into one (1) term, simply known as a “recreational fire”. When the by-law was initially developed in 2006, these 2 definitions were used to define the two (2) basic types of backyard fires commonly found. A firepit is contained in an open pit, whereas a fireplace is, for the most part, completely contained in a type of container, more commonly known as chimeneas or firebowls. The regulations in the by-law (ie. setbacks, times, nuisance, etc.) are common to both types. In talking with the enforcement staff, they proposed that a common name for both types be developed in order to provide clarity to the public from an education standpoint, and for staff from an enforcement perspective. In simplest terms, both types are recreational in nature and the safety and nuisance regulations will continue to apply to both; 3. Staff are proposing a change to the definition of nuisance to make it less subjective and reduces an unreasonable standard by imposes a “reasonable person” standard. The terms “likely to disturb” and “likely to interfere” are being retained; 14 - 2 4. Minor revisions have been made to some definitions for clarity purposes; 5. The Director of By-law Enforcement will be responsible for declaring a ban due to smog advisories when he/she is informed of such. The Fire Chief will continue to be responsible for declaring a fire ban due to safety concerns, such as extreme dry conditions; 6. Staff are proposing a provision that would prohibit a fireplace or firepit to remain in a location after it has been determined that it does not conform to the setback requirements. This may be used as a tool to deal with situations where staff may be involved in a complaint situation after the fact, or after the incident has occurred; 7. With regard to dealing with chronic violations, the initial issue to consider with respect to recreational (backyard) fires is what constitutes a “chronic violator”. Staff have considered this and believe the only logical way to trigger the process towards banning a property, thus removing a right from someone that others will continue to have, is to propose that the process focus on properties whereby more than one (1) conviction, pursuant to Chapter 711, has been registered. Relying on a conviction means the violation has been scrutinized at a higher level, beyond the municipality, and therefore removes the potential for a single person to dictate the process or have a ban imposed in an unreasonable fashion. It is proposed that, after 2 convictions have been registered against a person at a property, the by-law will prohibit any person from having a fire on the subject property for any reason and regardless of their ability to comply with all other regulations in the by- law. Such a ban would remain in place for a period of 5 years from the date of the last conviction or until such time as the ownership of the subject property changes. New property owners cannot be held accountable for the conduct of the previous owners. Council Policy Statement Staff are also proposing that Council endorse a policy statement to assist enforcement staff, particularly as it relates to enforcement of the nuisance provision, which is far more subjective than the other elements of the by-law. Except where it is blatantly obvious to an officer that the level of smoke is “likely to disturb”, it is reasonable to require a witness statement from the complainant in order to proceed with a prosecution, as independent input to show that someone is actually being bothered. Again, this provides an additional form of objective analysis given the implications of a conviction relative to triggering the ban process. Staff are proposing that the policy statement speaks to the following components: - giving enforcement staff the option to issue a warning, as opposed to laying a charge, where circumstances warrant such (ie. where people are cooperative with the officers and the fire is immediately extinguished); 14 - 3 - allowing enforcement staff to require a witness statement where he/she determines it necessary in order to proceed with a prosecution; and - a level of discretion as to the enforcement action initiated, when investigating anonymous complaints, or where a person refuses to provide a witness statement where it is deemed necessary. A copy of a draft policy statement, incorporating the above noted comments, is attached. Campground Exemption Staff have received a request from Bingemans campground facility requesting consideration to be exempt from the provisions of the Chapter relating to when a ban is declared. The fundamental basis of their request relates to the tourism nature of their business. A copy of their submission is attached to this report. Staff have considered their request and support an exemption from the basic requirements of the by-law relating to things such as timelimits, setbacks, etc., during the normal course of the open air burning season. This is consistent with how the current regulations have been applied in the past in relation to the campground. It is recognized that people wishing to take part in the campground experience, do so knowing full well that campfires are an integral part of the experience. With regard to when bans are declared, staff do not object to the campground being exempt from the provisions of the ban relating to smog advisories. Such advisories can arise and be rescinded within very short time frames, thus staff do not dispute the points raised in their submission relating to this specific type of ban. Staff cannot support an exemption relating to a ban declared by the Fire Chief, as it relates to safety issues such as extreme dry weather conditions. An example being the ban that was declared in July of 2012 that lasted several weeks. It is noted that other types of campgrounds and Provincial parks are captured by fire bans that have been issued in other areas of the province. In addition, extreme dry conditions will be more evident, and likely more accepted and understood by the public given the safety implications and that it is a common practice in most other areas. Having said this, any such exemption to a declared fire ban is subject to Council’s direction. Set Fines Staff will be submitting an application for approval of set fines to the Office of the Attorney General as soon as the by-law has been inserted into the Municipal Code as replacing the current Chapter 711. The set fine process allows officers to issue a provincial offences ticket on the spot, as opposed to having to summons a person to court and is generally viewed as a more effective and efficient enforcement tool. An obvious comparison is a speeding ticket that a person may receive pursuant to the Highway Traffic Act. Staff are proposing fines in the range of $200 to $400 depending on the severity of the violation. For example, burning during a 14 - 4 declared City wide fire ban or where a property specific ban is in place, will carry the largest fine. It must be recognized that this process does involve some time, potentially 6 to 8 weeks from the time of submission. Having said this, staff will endeavour to move the process along as expeditiously as possible within their scope and ability to do so, in advance of the typical burning season. Cost Recovery As part of the 2013 fees and services bylaw, the Fire Department has included fees to be charged for continued responses to a property as a result of open air burning violations. This fee is $463.50 for the first hour, including the vehicle and 4 staff, plus consumable materials, and $232 per 1/2 hr thereafter, plus consumable materials. This is consistent with other responses involving one vehicle and 4 staff (a typical response). This fee covers the cost of staff attending open burning situations where the property owner has been previously advised of the requirements, cautioned or charged. Purchase or Rental Appliance Program The cost of outdoor gas fireplaces is relatively low when compared to the other types of appliances that Kitchener Utilities has developed programs for. As such, there does not appear to be a need, or a market for developing such a program at this time. Communications Plan Following Council’s decision regarding the various components of this report, By-law Enforcement and Fire staff will work with the Communications Division to prepare a media release to start to raise awareness. Other elements of the communications plan will be developed and rolled out as we get closer to the typical outdoor burning season, likely in May, weather permitting. These elements may include information posted on the City’s web site, social media components, information in Your Kitchener as permitted, and some printed material to be available in certain public locations at City facilities. In addition, By-law Enforcement staff will be participating in a series of “open house” type events as part of their spring public awareness initiatives and will ensure that the topic of open air burning is appropriately supported during these events. ALIGNMENT WITH CITY OF KITCHENER STRATEGIC PLAN: The aforementioned amendments support the Community Priority of Quality of Life, as contained in the City’s Strategic Plan. FINANCIAL IMPLICATIONS: It is difficult at this point to quantify new or specific cost implications that may result from the enforcement of the proposed regulations. Existing costs associated with enforcement of the current by-law provisions are already provided for in the Operating Budgets for the By-law Enforcement and Fire Divisions. 14 - 5 As part of the 2013 budget process, $29,000 was allocated in the By-law Enforcement Division’s operating budget in order to increase enforcement of Chapter 711 during peak times in the summer burning season. Obviously, costs are driven by the number of complaints received. Thus, if there is a noticeable increase in enforcement costs experienced during the 2013 year, staff will advise Council as part of the 2014 budget process. It is anticipated that the costs associated with communications can be absorbed within the existing operating budget allocation. If increased efforts are necessary, requiring unbudgeted funds, staff will advise Council accordingly. COMMUNITY ENGAGEMENT: A communications and public awareness plan will be developed, to communicate Council’s decisions resulting from this report. It is also anticipated that Council will receive, under separate cover, a petition from a group who th is advocating a complete ban on backyard recreational fires, prior the February 25 meeting date. ACKNOWLEDGED BY: Michael May, Deputy CAO, Community Services Department Encl. 14 - 6 COUNCIL POLICY RESOLUTION POLICY NUMBER: I-___ DATE: POLICY TYPE: ADMINISTRATION SUBJECT: ENFORCEMENT – OPEN AIR BURNING BY-LAW (CHAPTER 711) DRAFT DATED FEBRUARY 19, 2013 PURPOSE AND SCOPE: To help guide staff in the administration and enforcement of Chapter 711 (Open Air Burning) POLICY CONTENT: 1. That By-law Enforcement and Fire staff have the option, when enforcing the provisions of Chapter 711 (Open Air Burning), to determine when a warning is given or legal action is initiated. The options available to staff will depend on the level of cooperation from a property owner or occupant in extinguishing a fire upon request and/or whether a warning has previously been issued relative to the subject property. 2. That By-law Enforcement and Fire staff may require a witness statement from a person who has registered a complaint with regard to a potential violation of Chapter 711 (Open Air Burning) where the staff person determines it necessary in order to proceed with a prosecution pursuant to the By-law. 3. That By-law Enforcement and Fire staff have the option not to proceed with enforcement action when investigating a complaint pertaining to a nuisance, that has been received anonymously, or where a person fails to provide a witness statement where such statement is deemed necessary and there is an obvious lack of information to successfully proceed. KITCHENER Page 1 of 1 14 - 7 14 - 8 14 - 9