HomeMy WebLinkAboutCRPS-05-104 - Encroachment Policy
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Report To:
Date of Meeting:
Submitted By:
Prepared By:
Ward(s) Involved:
Date of Report:
Report No.:
Subject:
Finance and Corporate Services
June 27, 2005
Jennifer Sheryer and Shayne Turner
Jennifer Sheryer and Shayne Turner
all
June 10, 2005
CRPS-05-104
RECOMMENDATION:
Encroachment Policy
That the current practice respecting encroachment agreement requests for downtown patios,
miscellaneous downtown encroachments and encroachments on to City easements as outlined
in Report CRPS-05-1 04 be continued;
That all requests for legalization of existing encroachments on parkland and road allowances be
reviewed by the appropriate staff and come forward to Council with a staff recommendation that
takes into consideration safety, interference with public use of the land and where applicable
aesthetics of the encroachment and the culpability of the encroaching party;
EXECUTIVE SUMMARY:
That enforcement against existing encroachments continue to be initiated on a complaint basis;
BACKGROUND:
As the result of an encroachment request in January of this year, Council requested a
comprehensive review and report on Council's policy and procedures concerning agreements to
permit encroachment onto City owned lands.
In 1994, Community Services staff recommended an encroachment policy for City owned lands.
The report advised that the policy was recommended as a result of a growing concern that
parkland which is meant for the enjoyment of the general public is increasingly being
encroached upon and altered for the exclusive use of abutting property owners. As a result of
that report and recommendation Council passed a policy which is attached to this report. The
policy directed staff to enforce the provisions of the Parks By-law (relating to destruction of plant
matter and paving etc. and construction of buildings) and the Trees By-law (relating to
destruction of trees). The policy completely prohibited encroachments within natural areas,
floodplains, environmentally sensitive protected areas, wetlands, water courses or storm water
management areas. With respect to parkland the policy precluded restrictive use of parklands
that would preclude public use, including fences, gardens and structures that would restrict free
public passage. Finally the policy provided a process to bring parkland encroachment requests
forward to Community Services Committee for discussion where staff disagreed on whether the
public use of parkland would be restricted by the encroachment and provided where
encroachment requests were approved that the property owner should enter into an
encroachment agreement with the City.
REPORT:
Tvoes of Encroachers
Individuals requesting encroachments generally fall in to one of four distinct categories:
1. The "clean hands encroacher" category in which a party encroaches through no fault of
their own. This type of case is rare but would include the following type of situation.
Recently a company came forward to request an encroachment. They originally
constructed gardens and installed structures on their own property. As a result of the
city taking a road widening there were certain encroachments.
2. The "accidental encroacher" category which often includes a person who has failed to
exercise due diligence but did not intend to encroach or realize they were encroaching.
This category often includes people who have purchased a property without having a
survey done and later find out the backyard they thought they owned actually
encroaches on to City land. We have seen growth in this category and can expect
continued growth as the availability of title insurance has reduced the number of
purchasers who obtain surveys.
3. The "respectful encroacher" would include people who wish to encroach on City
property but are polite enough to come forward and request permission and legalization
before proceeding.
4. The "intentional encroacher". These are a separate category of people who
intentionally choose to expand their private property at the City's expense and although
fully aware that they do not own the property are not deterred from adapting it for their
exclusive use.
At present, council and staff make every effort to accommodate the clean hands encroacher.
Accidental encroachers with buildings that encroach are often given a bit of latitude due to the
substantial cost of removing a portion of a building from City property. Accidental encroachers
without buildings, respectful and intentional encroachers are treated in the same manner.
Tvoes of Encroachments
Encroachment requests usually fall into one of five general categories and are circulated to
relevant departments for staff comment before a recommendation is brought forward to Council.
1. Downtown Patio encroachment requests are circulated to licensing, operations,
engineering, traffic, fire, downtown development, KDBA and where the patio is new,
building is also circulated.
2. Miscellaneous Downtown encroachments such as signs and canopies projecting over
sidewalk areas are circulated to staff from operations, engineering, traffic, zoning and
where the encroachment impacts a heritage designated building the heritage planner is
also circulated.
3. Encroachments on to City easements are usually circulated only to engineering. By
way of an example Council approved a recent request to build a new house slightly onto
one of the City's sanitary sewer easements located on privately owned property. These
are slightly different from other encroachments as the person applying in these cases
normally owns the land over which we have an easement.
4. Road allowance encroachments are circulated to engineering, traffic, zoning, and
where applicable to enforcement. Requests to encroach on road allowance can include
items such as gardens, fences, basketball nets, retaining walls, driveways and
structures.
5. Parkland encroachments are circulated to Community Services for comment. These
encroachments are also normally for landscaping, fences, retaining walls, flag poles and
occasionally structures such as sheds.
Current Practice
For all types of encroachments Council is made aware of any concerns staff has and then
makes the final call on whether to grant an encroachment agreement. The process in place for
the first three types of encroachments seems to work well. The road allowance and parkland
encroachments seem to be the most frequently requested encroachments as well as the most
contentious ones. The general complaint about these encroachments is that they allow an
individual to exclusively use land that is held for the public benefit.
The primary staff consideration with parkland encroachments has been how the encroachment
impacts on public use of the parkland. Community Services staff traditionally has not objected
to encroachments that do not impact the actual use of the parkland. By way of example, an
encroachment onto a treed area with a steep incline on Iron Horse Trail land was found not to
impact the use of the actual trail area and was not objected to by Community Services Staff.
Although this fencing would not allow public to access the area it was basically not an area that
public generally would have used.
Road allowance encroachment requests receive special attention particularly from traffic staff.
Construction of certain encroachments in corner visibility triangles for example can create
hazardous visual obstructions. Because of the more permanent nature of buildings requests to
allow a new building to encroach on a road allowance are normally not approved.
Encroachment Aareement Ootions
Council does not ever have to grant an encroachment agreement. Council could take a strict
approach and refuse all encroachment agreements for parkland and road allowances with a
possible exception for "clean hands" encroachers. If Council chooses to refuse new
encroachment agreement requests it should consider increasing enforcement around
encroachments. Increased enforcement would avoid a situation in which respectful
encroachers are penalized for coming forward and intentional encroachers act without
consequence.
If Council chooses not to increase current enforcement levels it may wish to continue with its
current practice of granting encroachment requests when staff have not identified concerns with
the particular encroachment request. In our standard encroachment agreement the
encroaching party must provide insurance protecting the City and acknowledge the City's right
to remove the encroachment at any time. This agreement provides the City with more
protection than if a person illegally encroaches (i.e. does not have an encroachment
agreement).
Enforcement Ootions
1. Continue with our present enforcement. At present the City enforces encroachments on
a complaint basis. Often following up with one encroacher sets off a chain of
encroachment complaints or causes the City to become aware of several similar
encroachments in the area. Our current practice is to give a courtesy notice where
possible and then remove the offending encroachments.
2. Enact an encroachment by-law. Some cities have enacted by-laws to deal specifically
with encroachments. Although we could consider this approach it is not necessary to
have an encroachment by-law to enforce against people who encroach upon our land.
As the property owner we are entitled to remove offending encroachments. Enacting an
encroachment by-law would allow us to proceed with prosecutions where enforcement
has obtained the necessary evidence.
3. Begin to enforce proactively. We could take steps to do regular inspections of parkland
and/or road allowance areas and to enforce against people who are found to be
encroaching. This option would have significant expense to the City and would require
additional enforcement and/or parks employees and depending on the volume may also
require additional legal resources.
In the event Council chooses option #2 or #3 an additional staff report will be required
addressing the mechanics of implementation and resources required.
FINANCIAL IMPLICATIONS:
Any increase in enforcement against encroachments would require additional staff resources,
equipment and possibly funding.
COMMUNICATIONS:
CONCLUSION:
JENNIFER SHERYER
Assistant City Solicitor
SHAYNE TURNER
Director of Enforcement
cc: L. MacDonald