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HomeMy WebLinkAboutBy-law No. 2013-031 - Amend c711 - Outdoor BurningBY -LAW NUMBER a I 1 -'©-;�) OF THE CORPORATION OF THE CITY OF KITCHENER (Being a by -law to repeal and replace Chapter 711 of The City of Kitchener Municipal Code with respect to Outdoor Burning). WHEREAS Part 2 subsection 7.1(1) of the Fire Protection and Prevention Act 1997, S.O. 1997, c. 4 allows a council of a municipality to pass by -laws regulating the setting of open air fires, including establishing times during which open air fires may be set; AND WHEREAS Council is authorized under section 128 of the Municipal Act, 2001, S.O. 2001, c. 25 to pass by -laws to prohibit and regulate public nuisances, including matters that, in the opinion of Council are, or could become or cause public nuisances; AND WHEREAS Council considers excessive smoke, smell, airborne sparks or embers to be or to be capable of becoming or causing public nuisances by creating negative health effects on neighbouring residents, increasing fire exposure hazards, infringing the enjoyment of the use of neighbouring properties, and generating false fire alarms thus potentially diverting public resources from real emergencies; AND WHEREAS Council is authorized under section 11 (2) of the Municipal Act, 2001, to pass by -laws respecting the environmental well -being of the municipality, the health, safety, and well -being of persons, and the protection of persons and property; NOW THEREFORE the Council of The Corporation of the City of Kitchener enacts as follows: Definitions 1. In this by -law: "building" means: (a) a structure occupying an area greater than ten square metres consisting of a wall, roof and floor or any of them, (b) a structure occupying an area of ten square metres or less that contains plumbing, or F, (c) a structure designated in the Building Code, Ontario Regulation 350106 under the Building Code Act, 1992, S.O. 1992, c.23; "City" means The Corporation of the City of Kitchener; "conduct(ing)" of a fire shall include the lighting, burning, use, and maintenance of a fire; and with respect to recreational fires shall also include sitting by or remaining in close proximity to the recreational fire; "Director of By -law Enforcement" shall mean the City's Director of By -law Enforcement or designate; "Fire Chief' means the City of Kitchener Fire Chief or designate; "Fire Code" shall mean Ontario Regulation 213107 under the Fire Protection and Prevention Act, 1997; "Fire Department" means the Kitchener Fire Department and any member thereof; "Fire Permit" means written permission to conduct open air burning granted by the Fire Chief; "nuisance" means smoke, smell, airborne sparks, ash, particles or embers that: (a) are likely to disturb a person; (b) are likely to interfere with the enjoyment or use of a property; or (c) negatively and unreasonably affect a person due to a medical condition while that person is at a property that he/she occupies or spends significant time at with the consent of an occupant; "occupant" means a person having effective control over or apparent possession of any property or the relevant portion thereof, and for the purposes of this by- law a mortgagee -in- possession of property, a receiver and manager, a personal representative, or a trustee in bankruptcy who has taken possession of a property shall be deemed to have effective control over the property; "officer" means any member of the Kitchener Fire Department, any City municipal law enforcement officer, any City by -law enforcement officer, and any member of the Waterloo Regional Police Service; "open air burning" means any fire that is conducted outside a building, including a fire conducted in a garden, yard, alley, field, park, industrial site, construction site, building lot, parking lot, street, or other open place. For the purpose of this by -law open air burning does not include the following: 3 (a) the operation of welding or similar equipment; (b) the operation of a coal or wood fired locomotive or boat; (c) a controlled burn that is part of a manufacturing process; (d) a manufactured or non - manufactured outdoor fireplace or a manufactured or non - manufactured outdoor fire pit, not fuelled by natural gas or propane and operated in accordance with the regulations herein; (e) an appliance which is fuelled by natural gas or propane, including but not limited to a manufactured or non - manufactured barbeque, smoker, fireplace or fire pit, that is in conformance with the Technical Standards and Safety Act, 2000, S.O. 2000, c. 16, is for outdoor use and is installed in accordance with the manufacturer's instructions; (f) a commercially manufactured solid fuel burning barbecue; (g) a commercially manufactured smoker not contained within a building or a fixed structure; or (h) a smoke house; "outdoor appliance" means a portable or fixed solid fuel burning device that is not contained within a building, is constructed of non - combustible material, is wholly or partly enclosed, has a chamber intended to contain combustion, and is not designed and intended to cook food. An outdoor appliance may include a stack to direct the flow of air or combustion gases from the appliance, and shall include stoves, furnaces, boilers, fireplace inserts, or ovens; "outdoor burning" shall mean any fire that takes place in an outdoor appliance, outdoor fireplace, or outdoor fire pit and shall also include an uncontained fire and open air burning; "outdoor fireplace" means a manufactured or non - manufactured, non- combustible, wholly or partially enclosed container that is not fuelled by natural gas or propane, is designed to hold a fire, and is not designed and intended to cook food, and shall include but is not limited to a chiminea; "outdoor fire pit" means a manufactured or non- manufactured, non - combustible, contained pit that is not fuelled by natural gas or propane and is designed to hold a fire; "owner" means the registered owner of property and shall include any person fitting the definition for owner under the Fire Code; 4 "person" includes a corporation and a partnership and the heirs, executors, administrators and other legal representatives of a person to whom the context can apply according to law; "property" means any public or private land, building, structure or other real property within the City; "recreational fire" shall mean a fire in an outdoor fire pit, outdoor fireplace, or outdoor appliance; "smoke house" means a fixed structure designed and intended to cook or cure food with smoke; "uncontained fire" means a fire that is not protected by a device to halt the spread or development of the fire to the satisfaction of the Fire Chief. Devices that may in certain circumstances be satisfactory to the Fire Chief may include items such as drums and incinerators. General Provisions 2. The provisions of this by -law shall apply to all lands and to all outdoor burning within the City except as otherwise stated herein. 3. No person shall set or use an uncontained fire whether or not that person holds a Fire Permit. 4. Every person shall put out a fire forthwith upon direction of an Officer, or upon suspension or revocation of a Fire Permit. Fire Bans 5. The Fire Chief may issue a fire ban for any reason pertaining to fire safety. 6. The Director of By -law Enforcement may issue a fire ban due to smog conditions upon receipt of credible information that a smog advisory is in effect, including but not limited to an e-mail originating from Environment Canada advising that a smog advisory is in effect. 7. Where a fire ban is issued by either the Fire Chief or the Director of Enforcement, the City shall ensure that notice to the public of the fire ban is given by at least two of the following means: (a) the issuance of a media advisory; (b) posting notification on the City's internet site; or 5 (c) any other means of giving notice that has a reasonable likelihood of coming to the attention of persons who are impacted. 8. No person shall conduct any outdoor burning at any time at a location for which a fire ban issued by the Fire Chief is in effect. 9. No person shall conduct any outdoor burning at any time at a location for which a fire ban due to smog conditions issued by the Director of By -law Enforcement is in effect. Outdoor Fireplaces, Outdoor Appliances, and Outdoor Fire Pits 10. Every person conducting and every owner permitting to be conducted a recreational fire shall ensure that: (a) the fire does not create a nuisance; (b) the fire is located at a distance of not less than 5 metres (16.4 feet) from any building, structure, property line, tree, hedge, fence, roadway, overhead wire or other combustible article; (c) the fire is only conducted between the hours of 6:00 pm and 11:00 pm of any day; (d) no material other than brush material including tree limbs, branches and bush trimmings or manufactured logs specifically designed for fireplaces is burned in the fire; (e) a portable fire extinguisher or operable garden hose is available from the time of setting of the fire until the fire is totally extinguished; (f) an owner or occupant of the property on which the fire is conducted and of at least eighteen years of age maintains constant watch and control over the fire from the time of setting of the fire until the fire is totally extinguished; (g) there is no combustible ground cover within 1 metre (3.2 feet) of the fire; (h) the size of the combustion area of the outdoor fireplace, outdoor appliance, or outdoor fire pit is not larger than 1 metre (3.2 feet) in any direction; and (i) the fire is fully contained and controlled within the outdoor fireplace, outdoor appliance, or outdoor fire pit. 1.1 11. Every person conducting a fire in an outdoor fire pit and every owner permitting a fire to be conducted in an outdoor fire pit shall ensure that the outdoor fire pit is contained by a distinctive, raised, non - combustible barrier that completely surrounds the outdoor fire pit to separate it from the surrounding area. This requirement shall apply even where the outdoor fire pit is dug into the ground. 12. Every registered owner of property shall ensure that no outdoor fire pit, outdoor fireplace, or outdoor appliance is installed or left in a location where outdoor burning would not be permitted to be conducted pursuant to this by -law. Smoke Houses 13. Every person operating and every owner permitting to be operated a smoke house shall ensure that the smoke house does not create a nuisance. Open Air Burning 14. No person shall conduct open air burning without first having obtained a Fire Permit from the Fire Chief. 15. No owner shall permit a person to conduct open air burning unless that person has first obtained a Fire Permit from the Fire Chief. 16. Any person eighteen years of age or older, who is the owner or occupant of a property within the City upon which the open air burning is proposed, or who has been authorized in writing by the owner or occupant of such property, may apply to the Fire Department for a Fire Permit. 17. An applicant for a Fire Permit under this by -law shall provide, together with his/her application the following documentation or information: (a) all information or authorization as is required under this by -law; (b) a description of the site to be used for the open air burning(s), sufficient to identify each site for which the application is made; (c) the date and time of the proposed open air burning(s); (d) a description of the materials to be burnt; (e) a description of the method of extinguishment; and (f) such further information as the Fire Department may reasonably require. 18. The Fire Department shall not issue a Fire Permit under this by -law where it determines that the proposed site at which the open air burning is to be conducted is not suitable for that purpose. 7 19. A Fire Permit shall not be issued for a property where a building is being constructed. 20. A Fire Permit issued under this by -law may be made subject to such terms and conditions as the Fire Department considers to be necessary: (a) in the interest of public safety; (b) to minimize inconvenience or nuisance to the general public; (c) as advisable in the circumstances; and (d) to give effect to the objects of this by -law. 21. Every person obtaining a Fire Permit and every person conducting open air burning pursuant to a Fire Permit shall ensure that the permitted open air burning is conducted in accordance with the following requirements: (a) the Fire Permit holder must be present and observing said fire from the time of lighting to the time of extinguishment and clean -up of the fire unless ensuring that an alternate who is specifically listed on the Fire Permit is present and performs these functions; (b) the open air burning shall only take place between the hours of 7:00 am to 7:00 pm from April 15 to September 30 and between the hours of 7:00 am to 5:00 pm from October 1 to April 14 of each year unless otherwise approved and noted by the Fire Chief on the Fire Permit; (c) the open air burning shall only take place at the time(s) and date(s) set out on the Fire Permit, if any; (d) the maximum size of the fire shall not exceed 1 cubic metre (35.3 cubic feet) of material to be burned at any one time, unless an exemption from this requirement is specifically obtained from the Fire Chief and noted on the Fire Permit; (e) a proper method of extinguishment shall be available at all times the open air fire is burning. The method being used must be approved by the Fire Chief and noted on the Fire Permit; (f) notwithstanding any other provision of this by -law, the open air burning shall not be permitted within 20 metres (65.6 feet) of any building, structure, hedge, fence, vehicular roadway, overhead wire, property line, or obstruction of any kind or nature whatsoever; (g) no material other than brush material including tree limbs and branches, leaves, bush trimmings or raked grasses shall be burned; (h) no agricultural, industrial or domestic waste of any kind, construction material, or pressure treated wood shall be burned; and (i) notwithstanding the issuance' of the Fire Permit the open air burning shall not be conducted where it causes a nuisance to any person whether due to wind or otherwise. 22. From time to time, the Fire Chief may formulate guidelines respecting open air burning within the City of Kitchener, and where such guidelines are written and in force: (a) all such guidelines shall be deemed to constitute terms and conditions applicable to any Fire Permit; and (b) the Fire Department shall give a copy of the current guidelines to any person to whom a Fire Permit is issued under this by -law. 23. Every Fire Permit holder shall ensure that open air burning is in accordance with any terms and conditions contained in the Fire Permit or in the guidelines formulated by the Fire Chief. 24. Where any holder of a Fire Permit fails or refuses to comply with a term or condition to which the Fire Permit is subject or any provision of this by -law, or where an officer has a safety concern, an officer may immediately suspend or revoke the Fire Permit and if suspended or revoked the Fire Permit holder and any alternate conducting a fire pursuant to the Fire Permit shall immediately take all steps necessary to extinguish the open air burning. 25. A Fire Permit issued under this by -law is not transferable and no person shall transfer a Fire Permit. 25. The person to whom a Fire Permit is granted may be held responsible for any failure to comply with this by -law even where an alternate designated on the Fire Permit is present. Outdoor Burning and Smoke House Prohibition 27. Where any person has two (2) convictions under this by -law for offences occurring at the same property, that person shall not conduct any outdoor burning or operate any smoke house at that same property for a period of five (5) years from the date of the second conviction and for a period of five (5) years from the date of any subsequent conviction under this by -law for an offence occurring at the same property. E Enforcement 28. Every person who contravenes any provision of this Chapter is guilty of offence and is liable, upon conviction, to a fine for each offence, not exceeding: (a) on a first offence, five thousand dollars ($5,000); and (b) on a second or subsequent offence, seven thousand five hundred dollars ($7,500). 29. Notwithstanding section 28 of this by -law every person who conducts outdoor burning or operation of a smoke house in contravention of section 27 of this by -law is guilty of an offence and is liable, upon conviction, to a fine not exceeding ten thousand dollars ($10,000). 30. The fine amounts in sections 28 and 29 are exclusive of costs and are recoverable under the Provincial Offences Act, R.S.O. 1990, c. P.33. 31. An officer may enter on land at any reasonable time for the purpose of carrying out an inspection to determine whether or not this by -law is being complied with. Entry to any place actually being used as a dwelling unit shall be subject to the requirements of the Municipal Act, 2001. However, this right of entry shall in no way restrict any right of entry authorized under the Fire Protection and Prevention Act, 9997. 32. For the purposes of an inspection pursuant to this by -law, an officer may: (a) require the production for inspection of documents or things relevant to the inspection; (b) inspect and remove documents or things relevant to the inspection for the purpose of making copies or extracts; (c) require information from any person concerning a matter related to the inspection; and (d) alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purposes of the inspection. 33. Where a person fails to comply with any provision of this by -law, the City may take the required action at that person's expense including the extinguishing of any fire conducted in contravention of this by -law. 34. Costs incurred by the City pursuant to section 33 above may be recovered from the person(s) failing to comply with a provision of this by -law by adding the costs to the tax roll and collecting them in the same manner as property taxes. 10 Exemption 35. A campground facility operating in a location permitted by the City's Zoning By -law 85 -1 as amended or any successor thereto shall be exempt from the provisions of this by -law save and except for the provisions prohibiting outdoor burning during a fire ban issued by the Fire Chief. General 36. It is hereby declared that each and every of the foregoing sections of this by -law is severable and that, if any provisions of this by -law or the enabling by -law should for any reason be declared invalid by any Court, it is the intention and desire of Council that each and every of the then remaining provisions hereof shall remain in full force and effect. 37. By -laws 2006 -96, 2007 -128, 2010 -087, 2011 -087, 2012 -035, 2012 -100, 2012 -120 and the contents of Chapter 711 are hereby repealed. 38. The Clerk of the City is hereby directed to make this by -law a part of The City of Kitchener Municipal Code by adding it to the Concordance and arranging and numbering it as Chapter 711 so as to fit within the scheme of the Code. 39. This by -law shall come into force and effect on April 1, 2013. PASSED at the Council Chambers in the City of Kitchener this �— day of , A.D. 2013. Mayor P [h.T `( Clerk