Municipality of Emerson – Franklin, Manitoba
· adopted 2009-11-10
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THE RURAL MUNICIPALITY OF FRANKLIN
BY-LAW NO. 11/09
Being a by-law to maintain property and to regulate nuisances, derelict, abandoned and
unsightly property.
WHEREAS The Municipal Act reads in part as follows:
232(1)
A council may pass by-laws for municipal purposes respecting the
following matters;
(a)
the safety, health, protection and well-being of people, and the
safety and protection of property; ...
(c)
subject to section 233, activities or things in or on private
property; ...
(o)
the enforcement of by-laws
232(2)
Without limiting the generality of subsection (1), a council may in a by-
law passed under this Division...
(d)
establish fees or other charges for services, activities or things
provided or done by the municipality or for the use of property
under the ownership, direction, management or control of the
municipality ...
233
A by-law under clause 231(1)(c) (activities or things in or on private
property) may contain provisions only in respect of
(a)
the requirement that land and improvements be kept and
maintained in a safe and clean condition;
(b)
the parking and storing of vehicles, including the number and type
of vehicles that may be kept or stored and the manner of parking
and storing;
(c)
the removal of top soil; and
(d)
activities or things that in the opinion of council are or could
become a nuisance, which may include noise, weeds, odours,
unsightly property, fumes and vibrations.
236(1)
Without limiting the generality of clause 232(1)(o) (enforcement of by-
laws), a by-law passed under that clause may include provisions
(a)
providing for procedures, including inspections, for determining
whether by-laws are being complied with; and
(b)
remedying contraventions of by-laws, including
(i)
creating offences,
(ii)
subject to the regulations, providing for fines and penalties,
including the imposition of a penalty for an offence that is
in addition to a fine or imprisonment, so long as the
penalty relates to a fee, rate, toll, charge, or cost that is
associated with the conduct that gives rise to the offence,
or related to enforcing the by-law,
(iii)
providing that an amount owing under subclause (ii) may
be collected in any manner in which a tax may be collected
or enforced under this Act,
(iv)
seizing, removing, impounding, confiscating and selling or
otherwise disposing of plants, animals, vehicles, or other
things related to a contravention,
(v)
charging and collecting costs incurred in respect of acting
under subclause (iv),
(vi)
imposing a sentence of imprisonment for not more than six
months for the commission of offences or non-payment of
fines.
242(1)
If a designated officer finds that a person is contravening a by-law or this
or any other Act that the municipality is authorized to enforce, the
designated officer may by written order require the person responsible for
the contravention to remedy it if, in the opinion of the officer, the
circumstances so require.
242(2)
The order may
(a)
direct a person to stop doing something, or to change the way in
which the person is doing it;
(b)
direct a person to take any action or measure necessary to
remedy the contravention of the Act or by-law, including the
removal or demolition of a structure that has been erected or
placed in contravention of a by-law and, if necessary, to prevent a
reoccurrence of the contravention;
(c)
state a time within which the person must comply with the
directions; and
(d)
state that if the person does not comply with the directions within
a specified time, the municipality will take the action or measure
at the expense of the person.
243(1) If, in the opinion of a designated officer, a structure, excavation or hole is
dangerous to public safety or property, or because of its unsightly
condition, is detrimental to the surrounding area, the designated officer
may by written order
(a)
in the case of a structure, require the owner
(i)
to eliminate the danger to public safety in the manner
specified, or
(ii)
remove or demolish the structure and level the site;
(b)
in the case of land that contains the excavation or hole,
require the owner
(i)
to eliminate the danger to public safety in the manner
specified, or
(ii)
fill in the excavation or hole and level the site;
(c)
in the case of property that is in an unsightly condition, require
the owner
(i)
to improve the appearance of the property in the manner
specified, or
(ii)
if the property is a building or other structure, remove or
demolish the structure and level the site.
243(2)
The order may
(a)
state a time within which the person must comply with the order;
and
(b)
state that if the person does not comply with the order within the
specified time, the municipality will take the action or measure at
the expense of the person".
AND WHEREAS it is deemed expedient to pass a By-law for the purpose of maintaining
property and regulating and abating nuisances and derelict, abandoned and unsightly
property that are detrimental to the health, safety and comfort of the residents of the
Municipality of Franklin;
NOW THEREFORE the Council of the Municipality of the Rural Municipality of Franklin, in
Council assembled, enact the following policies and procedures which shall govern the
inspection, remedy, enforcement or action respecting unsightly and/or unsafe property
and/or structures or those which may cause a nuisance in the Municipality Franklin;
1. Definitions
a)
"council" means the council duly elected in the Municipality.
b)
"designated officer" means a building inspector or other official
appointed by council, from time to time, to enforce this by-law, or, in the
absence of such an appointment, the Chief Administrative Officer.
c)
"interested person" means the owner, occupier or mortgagee of
property which is the subject of an order made under the authority of this
by-law.
d)
"mortgagee" in the case of any property means any person holding a
registered real property mortgage against the property according to the
records of the land titles office for the area within which the property is
situated.
e)
"Municipality" means the Municipality of Franklin.
f)
"occupier" in the case of any property means any person in actual or
constructive possession of the property pursuant to a lease, tenancy
license or other right to occupy.
g)
"owner" in the case of any property means the registered owner of the
property according to the current assessment records of the Municipality.
c)
"person" means an individual, firm, partnership or corporation and
where the context requires shall include the plural as well as the singular.
d)
"property" means any land as defined in The Municipal Assessment Act
within the Municipality whether or not there is situated thereon a dwelling
house or any other building.
e)
"rubbish" means any garbage, trash, or junk including, but not limited
to unwanted or discarded household items, waste from building
construction, remodelling and repair; tree branches, grass and shrub
clippings, leaves or other general yard and garden waste; motor vehicle
parts or tires; newspapers, magazines, packaging materials, waste paper
or cardboard, dead animal carcasses, and any other unsightly or
discarded material which causes or is likely to cause a public hazard or
nuisance, or is unacceptably offensive in light of community standards of
cleanliness or generally accepted neighbourhood aesthetics.
f)
"unsafe structure" means any structure, whether a building, fence,
excavation or hole, which in the opinion of the designated officer is at risk
of collapse or otherwise dangerous to public safety or property.
g)
"unsightly property" means a property which in the opinion of the
designated officer is detrimental to the surrounding area, including but
not limited to the growth of grass to a length which is unsightly or the
growth of weeds so that same become a nuisance to adjoining properties.
Application
2.
This by-law applies to all property and to all owners and occupiers of property
within the Municipality.
Standards
3.
No owner or occupier of property shall permit on such property, and each owner
and occupier of property shall keep such property free and clear of:
(a)
rubbish;
(b)
unsafe structure(s);
(c)
unsightly property;
(d)
the storage of motor vehicles capable of registration under the Highway
Traffic Act or the Off-Road Vehicles Act, which are not registered under
either of those statutes, unless the said property and/or structures are
lawfully used and licensed as a commercial automobile dealership;
(e)
the storage of household appliances, whether or not the same are
capable of operation;
(f)
the growth of weeds as defined in The Noxious Weeds Act so that the
same become a nuisance to adjoining properties;
(g)
the growth of grass to a length which in the opinion of the designated
officer is unsightly; or
(h)
regular outdoor burning, the smoke of which causes a nuisance to
adjoining properties.
Complaint
4.
Any person may allege a violation of this by-law by filing a written complaint
with the designated officer in such form and with such particulars as the
designated officer may from time to time require.
Inspections
5.
Upon receipt of a complaint, as aforesaid, the designated officer shall inspect all
property alleged to be in violation of this by-law, in such manner as shall be
reasonably necessary in order to determine whether or not there has been a
violation of this by-law.
Warnings and Orders
6.
Where inspections reveal a violation of any provision of this by-law, the
designated officer:
(a)
may in his or her discretion give written notice of the contravention to the
owner and occupier of the property by regular mail substantially in the
form attached as Schedule A.
(b)
if the contravention continues following the warning notice, if any,
provided under subsection 6(a) above, or if in his or her discretion no
such warning notice is provided, the designated officer shall issue a
written order which shall:
(i)
specify the time within which compliance shall be required;
(ii)
advise that should compliance not be effected within the specified
time, the Municipality may undertake the remediation at the
expense of the owner of the property and that such expense may
be collected in the same manner that a tax may be collected or
enforced under The Municipal Act;
(iii)
advise of the process of appeal;
(iv)
be substantially in the form attached as Schedule B;
Appeals
7.
Any interested person may appeal an order made by the designated officer by
filing with the Chief Administrative Officer of the Municipality at any time before
the time for compliance with such order an objection substantially in the form
attached as Schedule "C".
8.
Upon receipt of an appeal in the required form, the Chief Administrative Officer
of the Municipality shall cause a copy thereof to be forwarded to the council
forthwith and the council shall entertain such appeal within forty days of receipt
of same by holding a hearing. Council may hear the appeal as a committee of
the whole or by subcommittee especially established for this purpose. A notice of
hearing shall be issued by council and shall be served upon the persons and in
the manner specified in section 10 below no later than 5 days prior to the appeal
hearing.
9.
The council shall determine an appeal within 5 days of a hearing and shall serve
a notice of disposition forthwith upon determination, upon the interested
persons. The council may:
(a)
confirm the order of the designated officer;
(b)
vary the order of the designated officer in any respect; or
(c)
set aside the order of the designated officer.
Service of Notices or Orders
10.
Any order issued by the designated officer under subsection 6(b) and a notice of
hearing issued under section 8 hereof of this by-law shall be served by personal
service or by registered mail upon:
(a)
the owner;
(b)
the occupier, if any; and
(c)
in respect to any order alleging a violation of subsection 3(b) (unsafe
structures), the mortgagee, if any;
of the property effected by order.
11.
Service made personally shall be deemed to have been made on the date of
such service and service made by registered mail shall be deemed to have been
made 3 days after posting. In the case of service upon an occupier, the address
for mailing shall be the address of the property. In the case of an owner, the
address for mailing shall be as shown on the current assessment records of the
Municipality. In the case of a mortgagee, the address for mailing shall be as
shown according to the records of the Land Titles Office for the area within which
the property is situated.
Enforcement
12.
The costs of actions or measures taken by the Municipality to carry out the
terms of an order issued by the designated officer are an amount owing to the
Municipality by the owner of the property. In addition to all other rights of
collection which the Municipality may have at law, such amounts may be
collected by the Municipality in the same manner as a tax may be collected or
enforced under The Municipal Act.
13.
Any person who contravenes or disobeys, or refuses or neglects to obey or
comply with any order made under this by-law is guilty of an offence and is
liable, on summary conviction, to a fine not exceeding $1000, or in the case of
an individual, to imprisonment for a term not exceeding six months, or to both
such a fine and such an imprisonment.
14.
Where a corporation commits an offence under this by-law, each director or
officer of the corporation who authorized, consented to, connived at or
knowingly permitted or acquiesced in the doing of the act or omission that
constitutes the offence or offences, is likewise guilty of the offence and is liable
on summary conviction, to the penalties for which provision is made in section
13 above.
15.
Where the contravention, refusal, neglect, omission, or failure continues for
more than one day, the person or corporation is guilty of a separate offence for
each day it continues.
Done and passed in council assembled at Dominion City, in the Province of Manitoba
this 10th day of November, 2009.
Read the first time this 21st day of October , 2009.
Read a second time this 21st day of October , 2009.
Read a third time this 10th day of November,2009.
SCHEDULE "A"
Date
File:
Dear Sir/Madam:
Re:
Unsightly/Unsafe Property By-Law
Name of Municipality
Acting upon a written complaint, the designated officer had cause to inspect
your property at
in
.
civic and legal address
Name of Municipality
Upon inspection of the property, it is apparent that a violation exists in
accordance with
By-law No.
due to
.
Name of Municipality
Therefore, the Municipality requests that you rectify the situation by
(describe violations/ describe remedy) on or before
.
(date)
In accordance with Section 239(1) of the Municipal Act, I will enter onto the
property on
(date) to conduct a second inspection. If there has
been no compliance with this notice, an Order may be issued authorizing the
Municipality to take actions or measures necessary to bring the property into
compliance with By-law No.______ and the costs of such actions or
measures are an amount owing to the Municipality by the owner of the
property. In addition to all other rights of collection which the Municipality
may have at law, such amounts may be collected by the Municipality in the
same manner as a tax may be collected or enforced under The Municipal
Act.
Your cooperation and assistance in this matter is appreciated.
If you have any questions, please contact the writer at
.
Sincerely,
designated officer
SCHEDULE "B"
Date
File:
(name and address)
Dear
Re: Unsightly/Unsafe Property at
(Civic and Legal Address)
[Further to my letter of
,] this is to advise you that
an [a second]
(date)
inspection of your property at
conducted on
(Civic and Legal Address)
(inspection date)
found that it is [continues to be] in violation of the Municipality of _______
(Name of
Municipality)
Unsightly Property By-Law No.
. (the "By-Law")
Specifically, your property contains
on your property
which to date has not been removed.
Under the authority of Section 242 (1) of The Municipal Act, you are hereby
ordered to
on or before
. In the event that you
do not comply with
(Describe Order/Remedy)
(date)
this order, please note that section 12 of the By-law provides as follows:
The costs of actions or measures taken by the Municipality to carry out
the terms of an order issued by the designated officer are an amount
owing the Municipality by the owner of the property. In addition to all
other rights of collection which the Municipality may have at law, such
amounts may be collected by the Municipality in the same manner as a
tax may be collected or enforced under The Municipal Act.
You may appeal this order in writing by filing with the Chief Administrative
Officer of the Municipality at any time before the time for compliance with
such order has elapsed an objection substantially in the form attached to the
By-law as Schedule "C".
I trust you will govern yourself accordingly.
Sincerely,
designated officer
SCHEDULE "C"
Unsightly Property By-Law No. of the
(Name of Municipality)
IN THE MATTER of the Unsightly Property By-Law No. of the
.
(Name of Municipality)
NOTICE OF OBJECTION
To:
(Name of Municipality)
PLEASE TAKE NOTICE that the undersigned Appellant hereby appeals to the
Council
of the
from the Order to
(Name of Municipality)
(Nature
of
Remedy/Repair)
made by _____________________________________________ on the
______day of
(name and title)
_____________, 2000 respecting the premises known as
.
Dated at __________, Manitoba, this ______ day of __________________,
2000.
Signature
of
Appellant
(Print
Name)
Address