HomeMy WebLinkAboutDTS-07-181 - Fence By-law
Report To:
Date of Meeting:
December 3, 2007
Development and Technical Services Committee
Jeff Willmer, Director of Planning
Submitted By:
Prepared By:
JeffWillmer, Director of Planning (519-741-2325)
Shayne Turner, Director of Enforcement (519-741-2753)
Pat Harris, Manager of Licensing (519-741-2854)
All
Ward(s) Involved:
Date of Report:
Report No.:
Subject:
November 27,2007
DTS-07-181
Fence By-law
RECOMMENDATION:
That staff initiate an amendment to Chapter 630 of the City of Kitchener Municipal Code,
otherwise known as the Fence By-law, to increase the maximum height of corner lot
fences from 1.8m (6ft.) to 2.4m (8ft.) provided they are set back 1.5m and do not obstruct
any corner visibility triangle or driveway visibility triangle; and,
That Fence Variance applications FN 2007-007 (3 Mahogany Street), FN 2007-009 (501
Bridlewreath Court) and FN 2007-010 (78 Max Becker Drive) be refused, as recommended
by the Committee of Adjustment; and,
That effective immediately the application fee for fence variance return to the regular rate
of $402.00 ($442.00 effective January 1 2008) being the same rate as zoning and sign
variances; and,
That staff increase efforts to build community awareness of the regulations of the Fence
By-law; and,
That effective immediately Chapter 630 (Fences) be enforced on an active basis, in
situations involving corner lot privacy fences which violate required setbacks from the
road allowance; and further,
That City staff be directed to report back, prior to March 1, 2008, regarding the merits of
either a proposed system to require licensing of fence contractors and post-hole
contractors, or a proposed system to require that a permit be obtained prior to
constructing a privacy fence on a corner lot.
BACKGROUND:
At its meeting of June 25 2007, following consideration of Report DTS-07-116 (copy attached),
Council passed a resolution (copy attached) establishing a fee of $100 for corner lot fence
variances.
On October 1 2007 Council considered recommendations from the Committee of Adjustment
regarding three corner lot fence variances. After hearing submissions from the applicants and
from staff, Council deferred the matter and requested a further report from staff.
REPORT:
1st Recommendation: Increased Flexibilitv in the Fence Bv-Iaw
Currently 1.8m (6 ft.) high fences are permitted with setbacks of 1.5m to 4.5m, and 2.4m (8 ft.)
fences require a setback of 4.5m or greater. Having considered recent applications for
variance, staff agree that there is little reason to distinguish between fences that are 1.8m in
height and those that are 2.4m in height. We recommend that any privacy fence up to 1.8m in
height be permitted with a minimum setback of 1.5m.
2nd Recommendation: Deferred Decisions on Variance ADDlications
Community safety
There is general consensus that no fence should be allowed to obstruct a corner visibility
triangle or driveway visibility triangle.
Subsequent to discussion of corner lot violations of the fence by-law at the October 1 Council
meeting, the community has brought forward another concern. Privacy fences with zero
setbacks or minimal setbacks, as opposed to the required 1.5m (5ft.) setback, pose a safety
hazard as they create a concealment area behind which an attacker may remain concealed until
a pedestrian passes within reach.
The merits of approving vs. refusing have been thoroughly discussed at the Jun 25 and October
1 meetings. They are briefly summarized here:
Reasons to approve
. fences are already built;
. owners would incur a cost to relocate the fence.
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Reasons to refuse
. "forgiveness permission" encourages people to build first and seek approvals after;
. zero-setback fences eliminate opportunities for landscaping between the fence and the
sidewalk;
. zero-setback fences create concealment areas for would-be attackers, thereby resulting
in reduced sense of safety and reduced likelihood of walking;
. zero-setback fences are demonstrated to be much more likely targets for vandalism,
especially spray painting;
. complainants -- although they tend not to identify themselves to neighbours or speak out
in public meetings -- have initiated complaints about the violating fences; otherwise
there would not have been enforcement action; this demonstrates that there are those in
the community who disapprove of the violating fences;
. approval is unfair to those who have willingly complied with the by-law;
. approval would be unfair to those who have applied for variances, have been refused,
and have incurred the cost of relocating fences;
. approval rewards any unscrupulous contractors who may be taking advantage of
unsuspecting homeowners by charging once to build a fence and charging a second
time to relocate it;
. approval would establish a community expectation of similar approvals in the future, and
make enforcement of the by-law virtually impossible;
. while there may be between 50 and 200 current corner lot fence violations, there are
between 4,000 and 6,000 additional corner lots throughout the city where owners would
be encouraged to build first and seek approval afterwards.
3rd Recommendation: Variance Aoolication Fee
The recently-implemented $100 application fee creates an expectation, on the part of
applicants, that the City is encouraging people to apply and therefore is suggesting that
approval is likely. The fee comes nowhere near covering the cost of dealing with the
application including the newspaper ad and staff time (Clerks, Planning, Transportation
Planning).
The cost of processing applications for variance (most of which is now borne by the taxpayer,
not by the owner/applicant) is between $500 and $1,000; similar to the cost of new post holes,
new fence posts and re-assembling fence sections. However, any benefit of variance approval
is to the individual corner lot owner, and not to the community. This is an irresponsible
application of taxpayers' money.
4th Recommendation: Buildino Community Awareness
If the City is to pursue active enforcement, it is first necessary to make sure that every
reasonable opportunity has been taken to make the community aware of the by-law regulations.
In the past, property owners who have violated the by-law, whether intentionally or
inadvertently, have explained that they were not aware of the by-law. By increasing public
awareness we expect to reduce the potential for violations to occur. Staff intend to increase
their efforts to circulate fence by-law information to fence contractors and stores that supply
fence materials, with an additional focus on getting information to corner lot owners in newer
subdivisions where there is a higher potential for fence projects.
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5th Recommendation: Active Enforcement
Laws are not effective if they are not enforced. It is obvious that the complaint-only basis has
allowed many violations to remain in place. This in turn has led other property owners to
assume that it is permissible to construct privacy fences with zero setbacks or minimal
setbacks.
Currently, the Fence By-law is being enforced on a complaint basis except where an obvious
safety concern exists. It is recognized that complaint based enforcement can result in violations
remaining in place, notwithstanding the fact that the area residents do not take issue with the
matter. This has the potential to cause other property owners to assume that what they are
seeing is not a violation, resulting in similar actions (thus more violations) on their part.
An option to reduce this effect is to move to proactive enforcement for these types of violations.
However, this change in procedures does come with some concerns. Any increase or change
in a service level can have a degree of adverse impact on other enforcement matters, most
notably the potential to impact the timing of other active investigations (e.g., property standards,
zoning, etc.). Typically, the investigation of fence complaints can be somewhat lengthy because
it usually involves a property owner who is reluctant to undo work that has already been
completed.
An increased number of complaint files may also result in an increase in the number of fence
variance applications being submitted.
There is also the potential for a disruption in a neighbourhood where no resident concerns
existed prior to the proactive enforcement. In situations such as this, communication around the
purpose of the enforcement policy is important.
Should Council approve a form of proactive fence enforcement, staff propose to focus on
situations involving fences where there are setback violations on corner lots. It is staff's
suggestion that the officers would deal with violations as they observe them, during the normal
course of their duties.
6th Recommendation: Licensina/Permits
Any new requirement to obtain a permit, or to limit fence construction to licensed contractors
only, may merely add another layer of regulation that could be as difficult to enforce as the
current Fence By-law is. Although licensing of fence contractors may help to alleviate some of
the violations, it will not end all violations. Owners that construct their own fences would not
come under a licensing system. Those contractors that come in from other municipalities may
be difficult to get licensed as they are in and out before anyone is aware of them.
To obtain a licence, contractors would have to demonstrate knowledge of the City's regulations
(not only of the Fence By-law regarding height and location but also the Before-U-Dig
procedures). There is a public perception that if a business is licensed they have met certain
standards as required by the municipality which may include quality of work. In the case of
licensing fence contractors this would not be the case and could put the City in a difficult
position if the quality of a fence contractor's work was not acceptable.
If fence contractors were licensed, repeat offenders could possibly have their licence revoked by
the municipality; however, this would not likely happen as a result of a first offence, and would
require a licensing hearing.
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FINANCIAL IMPLICATIONS:
There are no capital budget implications associated with the recommendations of this report.
There would be operating budget implications with the cost of implementing licence or permit
system, and the cost of increased enforcement activity at least in the short term.
Active enforcement could result in increased volume of variance applications, and the cost of
dealing with them; however, eliminating the $100 fee and taking a hard line on violations should
considerably reduce the number of fence variance applications.
COMMUNICATIONS:
A copy of this report will be mailed to each of the applicants referred to in Recommendation #2,
as well as any party who has corresponded or otherwise participated in discussion of the issue.
CONCLUSION:
There is no doubt that zero-setback privacy fences detract from community safety and
community aesthetics. They eliminate or greatly minimize opportunities for landscaping
between fence and sidewalk, and create a "wall on the street" environment that is not inviting to
pedestrians. Any variance applications that may be made in advance of fence construction
would stand no chance of approval. Approval of variances to legalize existing violations
rewards those who, knowingly or unknowingly, construct fences in violation of the City's fence
by-law.
The owner/occupant of a corner lot has a right to a privacy fence, provided it is set back 1.5m
from the property line along a City street. Everyone in the community has a right to a safe and
attractive public realm.
Pat Harris
Manager of Licensing
Shayne Turner
Director of Enforcement
Jeff Willmer
Director of Planning
List of Attachments:
Recommendations ii), iv) and v) of Committee of Adjustment, September 18 2007
Minutes of City Council, October 1, 2007
Report DTS-07-116
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APPENDIX C - PHOTO ILLUSTRATIONS
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Report To:
Date of Meeting:
Council
June 25, 2007
Submitted By:
Prepared By:
Jeff Willmer, Director of Planning
Ward(s) Involved:
Date of Report:
Report No.:
Subject:
JeffWillmer, Director of Planning (519-741-2325)
Shayne Turner, Director of Enforcement (519-741-2753)
Ward 4
June 21, 2007
DTS-07-116
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 a zero-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 Bv-Iaw to leQalize zero-setback fences on corner lots
This alternative rewards those who, knowingly or unknowingly, have constructed fences
contrary to the 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.
In cases 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 a zero-setback fence and a street-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 (49 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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