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THE CORPORATION OF THE TOWN OF KINGSVILLE
BY-LAW 96-2020
Being a By-law to Prohibit and Regulate Public Nuisances
related to odours and lighting from the cultivation of plants
within the Town of Kingsville and to create certain penalties
related thereto
WHEREAS the Municipal Council of the Town of Kingsville deems it
appropriate to enact a by-law to prohibit and regulate certain public nuisances
within the Town of Kingsville pursuant to sections 128 and 129 of the
Municipal Act, 2001, S.O. 2001, c. 25, ("Municipal Act, 2001") as amended;
AND WHEREAS section 444 of the Municipal Act, 2001 authorizes
municipalities to make orders requiring the person who contravened the by-law
or who caused or permitted the contravention or the owner or occupier of the
land on which the contravention occurred to discontinue the contravening
activity;
AND WHEREAS sections 445 and 446 of the Municipal Act, 2001 authorize
municipalities to issue work orders and in default of a work order being
completed by the person directed or required to do it, the work shall be done by
the Town at the person's expense by action or by adding the costs to the tax
roll and collecting them in the same manner as property taxes;
AND WHEREAS in the opinion of the Council for the Town of Kingsville, the
following are or could become a public nuisance:
(a) odours from the cultivation of cannabis plants; or
(b) lighting from the cultivation of plants of any kind.
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE
TOWN OF KINGSVILLE ENACTS AS FOLLOWS:
PART I - INTERPRETATION
Definitions
1. In this By-law:
"By-law" means this by-law to prohibit and regulate certain nuisances related
to odours and lighting from the cultivation of plants in the Town of Kingsville;
"Town" means the municipal corporation of the Town of Kingsville;
"Cannabis Plant" means a plant that belongs to the genus Cannabis and, in
the absence of evidence to the contrary, includes any plant described as
cannabis or by a name that is commonly applied to cannabis;
"Cultivate, Cultivated, Cultivating or Cultivation" in respect of plants,
means to grow, propagate, harvest plants, process, or maintain or operate a
facility for these purposes;
"Nuisance" means anything that is injurious to health, indecent, offensive to
any of the Senses, or results in the loss of enjoyment of normal use of
property;
"Officer" means a Police Officer or a Municipal By-Law Enforcement Officer
appointed under any federal or provincial statute or regulation or Town by-law
or any other person assigned or appointed by the Town to administer or enforce
this By-Law and includes a person employed by the Town whose duties are to
enforce this By-Law; and
"Senses" means a faculty by which the human body perceives an external
stimulus and includes one or more of the faculties of sight, smell, hearing,
taste and touch;
Application
2. This By-law applies to all persons, lands and properties in the Town of
Kingsville.
PART II - RESTRICTIONS
Lighting from the Cultivation of Plants
3. No person shall cause, create or permit light from the Cultivation of plants
of any kind to shine upon the land of others so as to be or to cause a
Nuisance to any person or to the public generally.
4. Every owner or occupier of land shall ensure that no light from the
Cultivation of plants of any kind shines upon the land of others, or shines
into the dark night sky, so as to be or to cause a Nuisance to any person or
to the public generally.
5. Outdoor lighting and indoor lighting from the Cultivation of plants of any kind
that can be seen outdoors shall be operated, placed and maintained, or have
a barrier placed and maintained, so as to prevent or block direct illumination
of the interior of a building on adjoining land or lands regardless of whether
such a building has or may have a barrier, shades, drapes or other interior
window coverings.
Odours from the Cultivation of Cannabis Plants
6. No person shall cause, create or permit the emission of an odour from the
Cultivation of Cannabis Plants so as to be or to cause a Nuisance to any
person or to the public generally.
7. Every owner or occupier of land shall ensure that no emission of an odour
from the Cultivation of Cannabis Plants on his or her land is or causes a
Nuisance to any person or to the public generally.
PART III - ENFORCEMENT
Enforcement
8. The provisions of this By-law may be enforced by an Officer.
9. If an Officer is satisfied that a contravention of this By-law has occurred, he
or she may make an order requiring the person who contravened the By-
law or who caused or permitted the contravention or the owner or occupier
of the land on which the contravention occurred, to discontinue the
contravening activity.
10. An order under section 9 shall set out:
(a) reasonable particulars of the contravention adequate to identify the
contravention and the location of the land on which the contravention
occurred; and
(b) the date or dates by which there must be compliance with the order.
11. If an Officer is satisfied that a contravention of this By-law has occurred,
he or she may make an order requiring the person who contravened the
By-law or who caused or permitted the contravention or the owner or
occupier of the land on which the contravention occurred, to do work to
correct the contravention.
12. An order under section 11 shall set out:
(a) reasonable particulars of the contravention adequate to identify the
contravention and the location of the land on which the contravention
occurred;
(b) the work to be completed:
(c) and the date by which the work must be complete.
13. An order under sections 9 or 11 may require work to be done even though
the facts which constitute the contravention of the By-law were present
before this By-law came into force.
14. An order made under sections 9 or 11 may be served personally or by
registered mail to the last known address of:
(a) the person who caused, created or permitted the offence; and
(b) the owner or occupier of the lands where the contravention occurred.
15. Where an owner or occupier of the land on which the contravention
occurred, who has been served with an order and fails to comply with the
order, then an Officer, or any authorized agent on behalf of the Town may
enter on the land at any reasonable time and complete the work required
to bring the land into compliance with the provisions of this By-law as set
out in the order.
16. Where the work required to bring the land into compliance with the By-law
has been performed by or for the Town, the costs incurred in doing the
work may be collected by action or the costs may be added to the tax roll
for the land and collected in the same manner as taxes.
17. An Officer may enter on land, and into buildings, at any reasonable time
for the purpose of carrying out an inspection to determine whether any
provision of this By-law or an order made under this By-law is being
complied with, although an Officer may not enter into a private residence
or dwelling unit.
18. For the purposes of conducting an inspection pursuant to this By-law, an
Officer may:
(a) require the production for inspection of documents or things relevant to the
inspection;
(b) inspect and remove documents or things relevant to the inspection for the
purpose of making copies or extracts;
(c) require information from any person concerning a matter related to the
inspection; and
(d) alone, or in conjunction with a person possessing special or expert
knowledge, make examinations or take tests, samples or photographs
necessary for the purpose of the inspection.
19. No person shall prevent, hinder or obstruct, or attempt to hinder or
obstruct an Officer who is exercising a power or performing a duty under
this By-law.
Offence and Penalty
20. Every person who contravenes any provision of this By-law is guilty of an
offence and upon conviction is liable to a fine as provided for in the
Provincial Offences Act, R.S.O. 1990, Chapter P.33, as amended.
21. Any person other than a corporation who contravenes any provision of this
By-law or who fails to comply with an order made under this By-law or who
obstructs or attempts to obstruct an Officer in carrying out his or her duties
under this By-law is guilty of an offence and on conviction is liable to a
maximum fine of $5,000 for a first offence, and a maximum fine of $10,000
for a subsequent offence.
Same re Corporations
22. Any corporation which contravenes any provision of this By-law or who
fails to comply with an order made under this By-law or who obstructs or
attempts to obstruct an Officer in carrying out his or her duties under this
By-law is guilty of an offence and on conviction is liable to a maximum fine
of $50,000 for a first offence and $100,000 for any subsequent offence.
Other Remedies
23. If a person or corporation is convicted of an offence under this By-law, in
addition to any other remedy or any penalty imposed, the court in which
the conviction has been entered, and any court of competent jurisdiction,
may make an order prohibiting the continuation or repetition of the offence
by the person convicted.
Continuing Offence
24. Each day or a part of a day that a contravention of this By-law continues is
deemed to be a separate offence.
PART IV - MISCELLANEOUS
Severability
25. Where a court of competent jurisdiction declares any provision of this By-
law invalid, or to be of no force or effect, the provision shall be deemed
conclusively to be severable from the By-law and every other provision of
this By-law shall be applied and enforced in accordance with its terms to
the extent possible according to law.
Short Title
26. The short title of this By-law is the "Odours and Light Nuisance By-law".
Enactment
27. This By-law comes into force and effect on the day it is passed.
READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS
26th DAY OF OCTOBER, 2020.
MAYOR, Nelson Santos
CLERK, Jennifer Astrologo