HomeMy WebLinkAboutDTS-07-116 - Fence By-law Infractions - Laurentian WestREPORT
Report To: Council
Date of Meeting: June 25, 2007
Submitted By: Jeff Willmer, Director of Planning
Prepared By: Jeff Willmer, Director of Planning X519-741-2325}
Shayne Turner, Director of Enforcement X519-741-2753}
Ward(s~ Involved: Ward 4
Date of Report: June 21, 2007
Report No.: DTS-07-116
Subject: Fence By-law Infractions -Laurentian West
RECOMMENDATION:
1. That report DTS-07-116 be received for information and discussion; and,
2. That those corner lot owners who have wooden privacy fences, in violation of the
City of Kitchener Fence By-law, along streets with sidewalks, be advised not to
apply for a variance but to bring their fences into conformity the by-law; and,
3. That staff increase efforts to build community awareness of the regulations of the
Fence By-law; and further,
4. That staff be authorized to actively enforce the Fence By-law.
BACKGROUND:
On June 18, at the request of Councillor Galloway, Council directed staff to report back on three
procedural options to address the proliferation of corner lot fences built in violation of the City's
Fence By-law.
REPORT:
Context:
The Fence By-law limits front yard fences to 0.91 m (3 ft.) in height. For corner lots, fences in
the side yard abutting a street are also limited to 0.91 m in height, except that fences up to
1.82m (6 ft.) in height are permitted with a setback of 1.5m to 4.57m (5 to 15 ft.) from the
property line.
The City of Kitchener does not require permits for the construction of fences. Those residents
who contact City Hall are advised of the 1.5m setback requirement for corner lot privacy fences;
a brochure (copy attached -Appendix A) is also available at City Hall and on the City's website.
City enforcement staff have proactively contacted fence construction companies and post-hole
digging companies to inform them of the regulations. Despite that, it is not uncommon for
corner lot owners to construct azero-setback privacy fence of 1.82m-2.44m (6-8 ft) in height to
provide screening between their rear yard and the street.
The Laurentian West community has recently seen upwards of 50 corner lot privacy fences
which fail to meet the 1.5m setback (see photo, Appendix C1).
Enforcement:
Because the Fence by-law is enforced on a complaint-only basis, and the community in general
is unaware of the regulation, many of these illegal fences are allowed to remain as no complaint
is received.
Given that corner lot fences are highly visible throughout a neighbourhood, there is the distinct
potential for the investigation of one complaint to lead to one or more others in the same or
adjacent neighbourhoods. It is difficult for the enforcement staff to rationalize only dealing with
one complaint while other potentially illegal situations exist in close proximity.
In many of these cases, it is found that the original complaint relates to a fence that is rather
new, and subsequent complaints coming out of the first relate to fence that may have existed for
some time. Often what enforcement staff hear is that the property owner only did what he has
observed on other properties.
Application Fees:
Fees for Committee of Adjustment applications are intended to cover all costs associated with
the operation of the Committee, including: the Committee's own expenses (honoraria, etc.},
advertising costs to publish the required Notice of Hearing in The Record, and City Clerk staff
costs to prepare notices, attend Committee meetings to take minutes, and to write up minutes
and decisions. The fee does not cover Planning or Transportation Planning staff time to inspect
properties, assess the merits of applications, or write recommendations.
If it is Council's intension to reduce the $402 fee for certain Fence Variance applications, it is
recommended that a minimum fee of $100.00 per application be charged, in order to cover the
City's out of pocket expenses to publish the Notice of Hearing in The Record. The $100.00
represents the average cost to describe each application in a Notice of Hearing over the last 6
months."
Implications of Suggested Alternatives:
Alternative #1: Waive application fee
The chief disadvantage of this alternative is that in addition to failing to pay for staff time
invested in handling the application, it fails to pay the City's disbursement for publishing a Notice
of Hearing in The Record. This alternative would require amendment to the Fees & Charges
By-law.
Alternative #2: Reduce application fee to $100
As with #1, this alternative would require amendment to the Fees & Charges By-law. This
alternative puts some of the responsibility on the property owner, acknowledging that they have
constructed a fence in violation of the by-law. The reduced fee would cover the approximate
cost of publishing a Notice of Hearing. If it is Council's intent to approve such variances, the
message sent is that it is OK to build first and seek forgiveness later. If it is Council's intent to
refuse such variances, the message can be sent without requiring variance applications. See
Merits section below.}
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Alternative #3: Amend the Fence By-law to legalize zero-setback fences on corner lots
This alternative rewards those who, knowingly or unknowingly, have constructed fences
contrary tothe by-law, and perpetuates situations which are unsightly, dangerous, or both.
2002 Amendment to the Fence By-law
Just over four years ago, in very similar circumstances, Council amended the by-law to reduce
the setback requirement from 4.57m (15 ft.) (see Photo C2) to 1.5m (5 ft.) for fences up to
1.82m (6 ft.) in height (see Report DTS-02-048 attached as Appendix B). This allowed corner
lot residents to enjoy more of their rear yard within privacy fencing, while still maintaining the
intent of the by-law by providing space for landscaping (see Photo C3 and C4). This was a
significant concession, and makes it much more difficult to justify a further concession to go to
zero setback.
Since the 2002 amendment, there has been a substantial reduction in corner lot fence
variances, and few if any such variances are recommended by staff for approval. Any fence
that is approved by the Committee of Adjustment and Council is usually justified on the basis
that there are others like it in the area, which have not been the subject of complaint or
enforcement. It is inaccurate to assume that most such variances are routinely approved.
Merits of Zero-Setback Corner Lot Fence Variances:
It would be inappropriate to consider the procedural alternatives without consideration of the
merits of such fence variance applications in general. There are two reasons for the regulations
for corner lot fences: safety and aesthetics.
Incases where an adjoining lot has a driveway next to a corner lot, any fence over 0.91 m (3 ft.}
in height must provide a "driveway visibility triangle" of 4.57m (15 ft.) This allows a driver
backing out of a driveway to see oncoming pedestrians or other sidewalk traffic before crossing
the sidewalk. A 6-8' high privacy fence constructed along the rear lot line and street side lot line
is a complete visual obstruction, resulting in vehicles having to back well onto or entirely across
the sidewalk before the driver can see past the fence to the sidewalk see Photo C5}. This is an
unacceptable situation.
In cases where there is no adjoining driveway, the intent of the regulation is improved
streetscape appearance. The 1.5m (5 ft.} space between a privacy fence and a property line
leaves space for landscaping, whether used simply for a lawn (see Photo C6 and C7} or to plant
trees, shrubs or other landscaping see Photo C3 and C4}. The zero setback fence eliminates
this opportunity, resulting in a barren streetscape. Furthermore, it is much more frequently
targeted by graffiti artists, as it is an easy target only .3m (1 ft.) from the sidewalk.
If the flanking street has no sidewalk, there would typically be 4-5m (13-16 ft.) of grassed
boulevard between azero-setback fence and astreet-side curb see Photo C8). This situation
likely justifies a variance, although it is acknowledged that the City may eventually install
sidewalk when the road is reconstructed.
If the zero-setback fence is not of wood construction but of wrought iron, chain link or similar
open construction (see Photo C9) it allows visibility for safety and aesthetic benefit. Together
with landscape hedging such fences can provide privacy can be provided much more
attractively than wood fencing (see Photo C10). These situations also likely justify a variance.
It is a basic principle of assessing variances that "forgiveness permission" sends a wrong
message. If an application is made prior to construction, and is found to be without merit, it
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should be refused. If the same proposal would be approved only on the basis that it is already
built, the message is clear: build first in violation of the by-law and receive permission
afterwards.
Virtually all of the Laurentian West fences are wood construction adjacent to a sidewalk. If
Council is inclined to approve the 50+ variances in Laurentian West, it should consider the
precedent that such action would set. It would be exceedingly difficult to refuse any such
variance in the future, without being able to distinguish between this group of infractions and
any future infraction. Typical lot widths in Laurentian West may be smaller than average, but
corner lot widths are a minimum of 15m X49 ft.} for single detached dwellings, and 12.5m (41 ft.}
for semi-detached or street townhouse dwellings as they are throughout the city. Furthermore,
the approval of such variances would be unfair to those who have constructed fences in
compliance with the by-law.
FINANCIAL IMPLICATIONS:
No capital budget implications.
COMMUNICATIONS:
None required.
CONCLUSION:
The proliferation of fences being built contrary to the by-law is the result of lack of awareness by
residents, together with the fact that passive, complaint-based enforcement does not seem to
be addressing issues of non-compliance. This report recommends that action be taken to
improve both.
City Council and the community at large have stated concern with the appearance of new
suburban neighbourhoods. New subdivisions implementing the City's new urban design
guidelines are just now starting to take shape. It would be a significant step backwards to
legalize over 50 illegal zero-setback wooden privacy fences on corner lots adjacent to
sidewalks.
Jeff Willmer
Director of Planning
List of Attachments
Appendix A -Fence Brochure
Appendix B -Report DTS-02-048
Appendix C -Photo illustrations
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