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The Municipal Corporation of the
Town of Fort Erie
By-law No. 71-2016
________________________________________________________________
Being a By-law to Regulate Fences
in the Town of Fort Erie and to Repeal
By-law No. 70-2013
Whereas, Subsection 11 of the Municipal Act, 2001 S.O. 2006,c.32 as amended provides that the
municipality may pass by-laws relating to the health, safety and well-being of the inhabitants of the
municipality, and to pass by-laws respecting structures, including fences, and
Whereas Subsections 445 and 446 of the Municipal Act, 2001 as amended, provides that if a
municipality has the authority under this or any other Act or under a by-law under this or any other
Act to direct or require a person to do a matter or thing, the municipality may also provide that, in
default of it being done by the person directed or required to do it, the matter or thing shall be done
at the persons expense, and may recover the costs by adding them to the tax roll and collecting
them in the same manner as taxes, and
Whereas the Town's Comprehensive Zoning By-law 129-90, as amended, was further amended
by By-law No. 69-2013, passed by the Municipal Council of the Town of Fort Erie on July 15, 2013,
to include regulations relating to fences for the purpose of requests for relief to the Committee of
Adjustment, and
Whereas By-law No. 70-2013 was passed by the Municipal Council of the Town of Fort Erie on
July 15, 2013 to regulate fences in the Town of Fort Erie, and
Whereas the Town's Comprehensive Zoning By-law 129-90, as amended, was further amended
by By-law Nos. 133-2014 and 152-2015 to amend the regulations relating to fences, and
Whereas Report No. PDS-53-2016 was considered at the Council-in-Committee Meeting held on
June 13, 2016 and subsequently approved by Council to repeal and replace By-law No. 70-2013,
and to amend Comprehensive Zoning By-law No. 129-90 as amended to remove fence
regulations, and
Whereas it is deemed desirable to repeal and replace By-law No.70-2013, as amended
Now Therefore the Municipal Council of The Corporation of the Town of Fort Erie hereby enacts
as follows:
1.
Short Title
The short title of this By-law is the "Fence By-Law".
By-law No. 71-2016
Page 2
2.
Definitions
2.1
The following terms are defined for the purposes of this by-law:
"Appropriate Approval Agency" means the agency that has the authority to determine the
location of the 1 to 100 year flood line.
"Chief Building Official" means the Chief Building Official appointed by Council and
charged with the duty of enforcing the provisions of the Building Code Act, 1992, S.O, 1992,
c.23, and the provisions of the Building By-law.
"construct" means to erect, install, extend or make material alterations or repairs.
"corner lot" means a lot having 2 or more street lines intersecting at an angle of not more
than 135 degrees, provided that where the street lines of a lot are curved, the angle of
intersection of such street lines shall be deemed to be the angle formed by the intersection
of the tangents to the street lines, drawn through the extremities of the interior lot lines, and
the corner of the lot shall be deemed to be that point on the street line nearest to the point of
intersection of the said tangents.
"driveway triangle" means the triangular shape to be formed where a rear yard abuts a
front yard of the adjacent lot. The triangular shape shall be measured as a right angled
triangle with 4.5 metre sides along the street line and interior side lot line in the rear yard.
"effective ground level" means the mean level of the ground within a radius of 1.25
metres of the fence location being considered.
"electric fence" means a fence through which electricity passes.
"fence or fencing" means any hedge, free standing wall, structure, partition, or barrier
grown, consisting of or constructed of any material or combination of materials, enclosing,
partly enclosing or dividing land or being used for decorative purposes.
"fence of open construction" means a fence constructed so that at least one third of its
vertical surface area is of open space, enabling motorists and pedestrians to have an
unobstructed view through the fence.
"fence of closed construction" means a fence constructed of solid material, without open
spaces, such that views through the fence are substantially obstructed.
"front lot line" means the lot line that divides the lot from the street, including a private
street but;
i)
in the case of a corner lot the shorter street line shall be deemed to be the front lot
line and the longer street line shall be deemed to be a side lot line, but;
ii)
in the case of a corner lot with two (2) street lines of equal length, the lot line that
abuts the wider street, shall be deemed to be the front lot line, and in the case of
By-law No. 71-2016
Page 3
both streets being under the same jurisdiction, or of the same width, the lot line
where the principal access to the lot is provided shall be deemed to be the front lot
line;
iii)
in the case of a through lot, the front lot line shall be deemed to be the street line
where the principal access to adjoining lots is provided.
"front yard" means a yard extending across the full width of a lot between the front lot line
of such lot and the nearest part of any building or structure on such a lot.
"front setback line" means the distance required to be maintained from the street line to
the nearest part of any existing building or structure on a lot or in the case where there is no
building or structure on the lot, the distance required by the Zoning By-law for any building
to be constructed.
"grade level of the street" shall mean the grade level of the centre of the travelled portion
of any street.
"hedge" means closely planted row of shrubs, bushes, vegetation, grasses or low trees
enclosing, partly enclosing or dividing land or being used for a decorative purpose.
"lot line" means any boundary line of a lot.
"officer" means a municipal by-law enforcement officer, building inspector, chief building
official or any other person appointed or employed by the Town for the enforcement of the
by-laws and includes a peace officer.
"owner" means a registered owner, but also includes an occupant, lessee, tenant or any
other person in charge of or in control of the premises.
"person" includes an owner and may be a natural person, firm, corporation, partnership or
association.
"privacy screen" means a visual barrier used to shield any part of a yard from view from
any adjacent property or street.
"side yard" means a yard extending from the front yard to the rear yard of a lot and from
the side lot line of such lot to the nearest part of any building or structure on such lot.
"sight triangle" means the triangular shape formed by street lines of a corner lot where
such lot is located at the intersection of two or more streets and the line drawn from a point
in one street to a point in the other street, each such point being 4.5 metres from the point of
intersection of the streets measured along the said street lines provided that where the two
streets do not intersect at a point, the point of the intersection of the street lines shall be
deemed to be the intersection of the projected tangents to the street lines drawn through the
extremities of the interior lot lines. Such triangular shape may also be called a daylighting
triangle.
By-law No. 71-2016
Page 4
"street" means a public highway or public road under the jurisdiction of the Town, the
Regional Municipality, the Niagara Parks Commission or the Province of Ontario, and
includes any highway as defined by the Municipal Act, 2001 as amended from time to time
"street line" means a lot line dividing a lot line from a street and is the limit of the street
allowance.
"Town" means The Corporation of the Town of Fort Erie.
"vehicle" means a motor vehicle, an automobile, a tractor, a truck, a motorcycle or motor
assisted bicycle and any other vehicle propelled or driven otherwise than by muscular
power.
"zone or zoned" means the Zone specified in the Town of Fort Erie Comprehensive
Zoning By-law No. 129-90 and amendments thereto or any successors thereto.
3.0
Fences
3.1
Fence Heights in Residential, Commercial, Urban Entertainment Centre and
Core Mixed Use Zones
3.1.1
Except as otherwise provided in this By-law, no person shall construct or permit to be
constructed or maintained any fence of a height greater than 2.3 metres above the
effective ground level in any rear and/or side yards from the rear lot line to the front
setback line.
3.1.2
When the rear yard of one property abuts the front yard of an adjoining property, no
person shall construct or permit to be constructed or maintained within the driveway
triangle:
(i)
a fence of closed construction that exceeds 1 metre in height above effective
ground level, or
(ii)
a fence of open construction that exceeds 1.25 metres in height above
effective ground level.
3.1.3
No person shall construct or permit to be constructed or maintained within 4.5 metres
of the street line in a front yard:
(i)
a fence of closed construction of a height greater than 1.0 metre above
effective ground level; or
(ii)
a fence of open construction of a height greater than 1.25 metres above
effective ground level.
3.1.4
Where a building or a part of a building in a residential zone is closer to the front lot
line than 4.5 metres, this distance shall be known as the front yard setback line and
Subsections 3.1.3 (i) and (ii) are applicable from this front yard setback line, as
illustrated in the following figure:
By-law No. 71-2016
Page 5
By-law No. 71-2016
Page 6
3.1.5
No person shall construct or permit to be constructed or maintained a fence within a
sight triangle.
3.1.6
No person shall construct or permit to be constructed or maintained a fence within
the driveway triangle.
3.1.7
Notwithstanding the requirements of this by-law, the sight/ daylighting triangle
provisions of any legislation or regulation of the Region of Niagara, the Niagara
Parks Commission and the Province of Ontario shall apply along all Regional Roads,
Parks Commission Roads and Provincial Roads.
3.2
Fence Heights in Other Zones
3.2.1
No person shall construct or permit to be constructed, any fence exceeding 2.6
metres in height above the effective ground level, around the perimeter of any parcel
of land in in any, Industrial, Institutional, Rural, Agricultural or Public Zone.
3.2.2
Where an Industrial, Institutional, Rural, Agricultural, or Public or Zone abuts any
other zone, the provisions of Section 3.2.1 of this By-law shall prevail.
3.3
Fence Heights in Dune Protection, Environmental Protection and Hazard Zones
3.3.1
The regulations for fences applicable to the adjacent zone shall apply to fences in
the Dune Protection, Environmental Protection and Hazard Zones. Where two zones
are adjacent to the Dune Protection, Environmental Protection or Hazard Zone, the
more restrictive regulations shall apply.
3.4
Fence Heights along Lake Erie
3.4.1
No person shall construct or permit to be constructed or maintained between the rear
of a dwelling and the 1 in 100 year flood elevation of Lake Erie or shore protection
works, as approved by the appropriate approval agency unless it is:
(i)
a fence of closed construction of a height greater than 1.0 metre above
effective ground level; or
(ii)
a fence of open construction of a height greater than 1.25 metres above
effective ground level.
Notwithstanding the foregoing, privacy screens are permitted in accordance with
Section 4.0 of this By-law, between the rear of dwellings and the 1 in 100 year flood
elevation as determined by the Appropriate Approval Agency.
3.4.2
No person shall construct or permit to be constructed or maintained below the 1 in
100 year flood elevation of Lake Erie or between shore protection works as approved
by the Appropriate Approval Agency, any fence, except a temporary fence of open
construction with a height less than 1.25 metres above effective ground level, as
illustrated in the following figure. For the purposes of this section," temporary" shall
mean not to remain between October 1st and April 30th.
By-law No. 71-2016
Page 7
3.5
Barbed Wire Fences
3.5.1
Except as otherwise provided in this By-law, no person shall construct or permit to be
constructed or maintained any fence composed wholly or partly of barbed wire, along
any street, or on lands located in any zone except any rural or agricultural zone; or in
an industrial zone if the fence encloses the property and is a minimum of 2.0 metres
in height above effective ground level and does not exceed 2.6 metres above
effective ground level.
3.6
Restrictions on Fence Materials and Construction
3.6.1
No person shall construct or permit to be constructed or maintained any fence
composed wholly or partially used vehicle tires or sheet metal in any zone.
3.6.2
No person shall construct or permit to be constructed or maintained an electric fence,
except in an agricultural or rural zone.
3.6.3
No person shall construct or permit to be constructed or maintained a fence
containing any sharp material or objects that may be dangerous.
3.6.4
No person shall erect a fence or privacy screen on property owned by the Town or
Regional Municipality of Niagara, including any public street, Regional or Town
daylighting triangles or on an easement in favour of the Town or Region of Niagara
without the express prior written consent of the Town and/or Region of Niagara.
3.7
Fence and Privacy Screen Condition
3.7.1
All fences and privacy screens including posts shall be maintained to a structurally
sound condition.
4.0
Heights for Privacy Screens
4.1
No person shall construct or permit the construction of a privacy screen
in a residential zone unless complying with the following conditions:
(i)
maximum height: 2.5 metres above effective ground level
(ii)
maximum length in any yard: 6 metres
(iii)
maximum combined length: 12 metres
(iv)
minimum setback from a street line: 9 metres
(v)
minimum setback from a side lot line: 1 metre
(vi)
minimum setback from a rear lot line: 1.5 metres.
5.0
Fence Height Exemptions
5.1
The provisions of this By-law relating to the height of fences, except the provisions of
Section 3.1.4 of this By-law, do not apply to land owned or leased and used by:
By-law No. 71-2016
Page 8
(i)
The Corporation of the Town of Fort Erie.
(ii)
Regional Municipality of Niagara.
(iii)
Ontario Hydro and Canadian Niagara Power.
(iv)
Any department or agency of the Federal, or Provincial Government, including
the Niagara Parks Commission and the Peace Bridge Authority.
(v)
The District School Board of Niagara.
(vi)
The Niagara Catholic District School Board.
(vii)
Any person for the purpose of temporarily protecting any excavation or
construction site.
5.2
The erection of an acoustical barrier shall be exempt from the provisions of this by-
law provided it is erected under approval or requirement of an agreement with the
Town or as a local improvement.
6.0
Enforcement
6.1
The Chief Building Official, Municipal Law Enforcement Officer or their designate
shall enforce the provisions of this By-law and are authorized to 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.
6.2
Where an owner fails to comply with any provision of this By-law, an Order may be
issued to the owner requiring compliance. Every owner shall comply with such an
Order. The Order will give particulars of the reasons that the fence does not comply
and indicate the time for complying with the Order and giving notice that, if the Order
is not complied with within that time, the owner is guilty of an offence and the Town
may carry out the Order at the owners expense.
6.3
An order may be personally delivered or served by Registered Mail. Where an Order
is mailed, the Order shall be deemed delivered on the earlier of receipt of the order
by the addressee or the fifth day following the date of mailing, whether actually
received or not.
6.4
Where an Order has been issued and compliance has not been achieved within the
required time period as set out in the Order the Town may, through its employees or
agents or persons acting on its behalf, enter upon the land to remove the fence or to
take the steps required to effect compliance, and all expenses incurred may be
added to the tax roll and collected from the Owner of the property in the same
manner as municipal taxes.
6.5
No person shall hinder or obstruct an Officer, appointed under this By-law or
employed to enforce this By-law, from carrying out an inspection of lands, nor shall
any person obstruct any employee or agent authorized to carry out work for the
Town specified in an Order issued hereunder.
6.6
Every person who contravenes any of the provisions of this By-law is guilty of an
offence and, upon conviction is liable to the set fines established under Schedule "A"
attached hereto and the penalties as prescribed by the Provincial Offences Act,
R.S.O. 1990 c. P.33.
By-law No. 71-2016
Page 9
7.0
Relief from By-Law
7.1
The Director, Planning and Development Services (the "Director") is delegated
authority to refuse or approve applications for minor variances to this by-law.
7.2
Any person may request relief from any provision of this By-law from the Director
who has been delegated authority to refuse or approve applications for minor
variances to this by-law.
7.3
The Director is further delegated authority to develop and implement procedures for
the administration of applications for minor variances to this by-law.
7.4
An application for a minor variance from the provisions of this by-law shall be made
to the Director on the prescribed form together with payment of the fee established in
the Fees and Charges By-law No. 40-09, as amended or replaced from time to time.
7.5
Notice of the application shall be given to the applicant, the owner(s) of the lot and all
property owners that abut the subject property and to any applicable agencies or
authorities.
7.6
The notice referred to in Subsection 7.4 shall identify the subject property, state the
date scheduled for the decision, provide a description of the proposed minor
variance and information as to how to make representations to the Director prior to
his/ her decision.
7.7
In the event that the applicant wishes to submit additional information for the
consideration of the Director the applicant may request a deferral of the decision by
submitting a written request by 4:30 P.M of the day before the date the decision is to
be made.
7.8
In considering an application for a minor variance, the Director shall have regard for:
a) special circumstances or conditions applying to the lot, building, or use:
b) whether strict application of the provisions of this by-law in the context of the
special circumstances applying to the lot, building, or use, would result in practical
difficulties or unnecessary and unusual hardship for the applicant of a type and
nature inconsistent with the general intent and purpose of this by-law and the Official
Plan;
c) whether special circumstances or conditions are pre-existing and not created by
the owner or applicant;
d) whether the fence will alter the essential character of the area in which it is
located; and
e) comments received.
By-law No. 71-2016
Page 10
7.9
The Director may authorize a minor variance from the provisions of this by-law, with
or without conditions, if, in the opinion of the Director:
a) the variance is desirable;
b) the variance is minor in nature; and
c) the general intent and purpose of this by-law is maintained.
7.10
The applicant, and any person who made representation to the Director, may appeal
the Director's decision to Council by delivering written notice of appeal to the Director
on the prescribed form together with the fee established by By-law No. 40-09 within
ten (10) days of the date of notice of decision.
7.11
In the event the Director does not receive written notice of appeal in accordance with
Subsection 7.9, the decision of the Director shall be final.
7.12
In the event the Director receives written notice of appeal in accordance with
Subsection 7.9, the Director shall submit a report to Council. The applicant and those
who received notice of the original application shall be notified in advance of the
meeting at which Council will consider the report and shall be given an opportunity to
address Council prior to Council's decision. The decision of Council shall be final.
8.0
Administration and Interpretation
8.1
The provisions of By-law No. 70-2013 as amended continue to apply to any existing
fence in good repair that is in compliance and continues to comply with the
requirements of By-law No. 70-2013 on the date of passing of this by-law, until such
time as the existing fence is replaced or undergoes substantial repair.
8.2
If there is a conflict between a provision of this By-law and a provision of the
Swimming Pool By-law No. 149-08, as amended or replaced, the provisions in that
By-law shall prevail over the provisions of this By-law to the extent of any conflict.
8.3
By-law No. 70-2013 is repealed.
By-law No. 71-2016
Page 11
8.4
That the Clerk of the Town is authorized to effect any minor modifications,
corrections or omissions, solely of an administrative, numerical, grammatical,
semantical or descriptive nature to this by-law or its schedules after the passage of
this by-law.
Read a first, second and third time and finally passed this 20th day of June, 2016.
Mayor
Clerk
I, Laura Bubanko , the Clerk, of The Corporation of the Town of Fort Erie hereby certifies the foregoing to be a
true certified copy of By-law No. 71-2016 of the said Town. Given under my hand and the seal of the said Corporation, this
day of , 20
______________________________________________________
ITEM
COLUMN 1
Short Form Wording
COLUMN 2
Provision creating or defining
offence
COLUMN 3
Set Fine
1
Fail to comply with an Order
Section 6.2
$200
2
Obstruct or hinder an Officer
Section 6.6
$200
Town fo Fort Erie By-law No. 71-2016
Schedule "A" to By-law No. 71-2016
Title: To Regulate Fences in the Town of Fort Erie