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Fence Bylaw 2019-20
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Corporation of the Town of Newmarket
By-law 2019-20
OFFICE CONSOLIDATION
This is a consolidation of the Town's By-law to prescribe the Height and
Description of Fences and Privacy Screens within in the Town of
Newmarket, being By-law 2019-20, as amended by the below listed by-
laws and is prepared for reference and information purposes only. The
following consolidation is an electronic reproduction made available for
information only. It is not an official version of By-law 2019-20. Official
versions of all by-laws can be obtained from Legislative Services by
calling 905-953-5300. If there are any discrepancies between this
consolidation and By-law 2019-20 and listed amending by-laws the
official by-laws shall prevail.
2023-36 - June 5, 2023
Regarding Hearing Officers
A By-law to prescribe the Height and Description of Fences and Privacy
Screens within the Town of Newmarket.
Whereas section 11 (3) 7 of the Municipal Act, 2001, S.O. 2001, c.25, as
amended (the "Act") provides that a lower-tier municipality may pass by-laws
respecting structures, including Fences and signs; and,
Whereas Subsection 98(1) and (2) of the Municipal Act, 2001 provides that a
Bylaw may be passed by a municipality stating that the Line Fence Act,
R.S.O., Ch. L. 17 ("Line Fence Act") does not apply to all or part of
municipality, subject to the continuing applicability of Section 20 of the Line
Fence Act; and,
Whereas section 26 of the Line Fences Act states that the Line Fences Act,
except section 20, does not apply to land in an area that is subject to a by-law
for apportioning the costs of line Fences passed under the Act; and,
Therefore be it enacted by the Council of the Corporation of the Town of
Newmarket as follows:
a.
Definitions
Note: Defined terms in this By-law are in bold and the first letter has been
capitalized.
In this By-law
"Accessory Outdoor Storage" means the incidental storage of
equipment, goods, or materials that are directly related to the lot,
outside of any building or structure.
"Building" means any Building of structure that is designed or
constructed to be used as the principal or main Building on a lot and
does not include accessory structures or Buildings.
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"Council" means the elected Council of the Corporation of the Town
of Newmarket.
"Corner Lot" means a lot situated at the intersection of and abutting
onto two or more streets or two sections of the same street, provided
that the angle of intersection of such street(s) is not more than one
hundred and thirty-five degrees (135°).
"Daylighting Triangle" " means the area within a triangle formed by
measuring a prescribed distance along two specified intersecting lines
and a third line joining the terminal points of the two measured lines.
"Deck" means a platform, with no solid roof or walls, which is
constructed on piers or a foundation above finished Grade adjacent to
a ground floor or walkout basement wall, is used as an outdoor living
area.
"Director" means the Director, Legislative Services/ Town Clerk of the
Town and his/her designate.
"Division Fence" means a Fence, Hedge or combination thereof
used to define a property Lot Line.
"Fees and Charges By-law" means the General Fees and Charges
By-law, as amended for the Legislative Services Department.
"Fence" means any structure constructed of building materials
designed for exterior use including but not limited to posts, boards,
panels, pickets, pilings, wood, fiberglass, plastics, metal, lattice, rails,
wire, chain link, masonry or similar materials or any combination
thereof which delineates any Yard or outdoor area but does not
include trellis or arbour.
"Grade" means the level of the ground adjacent to the outside wall of
a Building or structure.
"Hearing Officer" means the Hearing Officer appointed by the Town;
"Hedge" means a continuous line or shrubs or other plant material
closely growing bushes, trees, shrubs or other plantings used to define
a property Lot Line, but shall not include closely growing bushes,
trees, shrubs or other plantings on the interior side of a Fence.
"Height" means the total Height at any point along a Fence, Hedge,
Division Fence or Privacy Screen measured from the highest level of
Grade on either side of the Fence or Privacy Screen at any point
along the Fence or Privacy Screen from a point that is less than 0.6
metres (2 feet) from the Fence or Privacy Screen and includes the
posts, rails and any decorative "lattice" or similar form of capping. In
the case of a Fence, Division Fence or Privacy Screen located on top
of a retaining wall, Height shall mean the vertical distance between
the top of the retaining wall and the highest point of the Fence or
Privacy Screen.
"Height" means the vertical distance measured between the finished
Grade and the highest point of a Fence, Hedge, Division Fence or
Privacy Screen or any part thereof, directly above; in the case of a
Fence, Hedge, Division Fence or Privacy Screen located on top of a
retaining wall, Height shall mean the vertical distance between the top
of the retaining wall and the highest point of the Fence, Hedge,
Division Fence, or Privacy Screen directly above.
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"Line Fences Act" means Line Fences Act, R.S.O. 1990, c. L.17, as
amended, from time to time.
"Lot Line" means a boundary of a lot including its vertical projection.
"Lot Line, Exterior Side" means a side Lot Line which abuts the
street on a Corner Lot.
"Lot Line, Front" means:
(a) In the case of an interior lot, shall be the Lot Line abutting a
street.
(b) In the case of a Corner Lot, shall be the shorter Lot Line that
abuts a street.
(c) In the case of a Corner Lot with two Street Lines of equal
length, shall be the Lot Line which abuts a Regional Road. In the
case that both abutting streets are under the same jurisdiction or
are of the same width, the Municipality may designate either
Street Line as the front Lot Line.
(d) In the case of a Corner Lot abutting a 0.3 metre reserve, shall
be the Lot Line which does not abut the 0.3 metre reserve.
(e) In the case of a through lot, shall be the longer boundary
dividing the lot from the street. In the case that both such Lot
Lines shall be of equal length, the Municipality may designate
either Street Line as the front Lot Line.
"Lot Line, Rear" means the Lot Line or intersection of the side Lot
Lines, opposite to, and most distant from, the front Lot Line.
"Lot Line, Side" means a Lot Line, other than a front or rear Lot
Line. In the case of a Corner Lot, the Lot Line that abuts a street
shall be identified as the Exterior Side Lot Line.
"Municipal Act" means Municipal Act, 2001,c.25, as amended, from
time to time.
"Municipal Law Enforcement Officer" means a Person appointed
by Council as a Municipal Law Enforcement Officer and shall also
include an officer of the York Regional Police Service.
"Non-residential Property" means land used for other than
residential purposes and includes land used for both residential and
other purposes.
"Owner" means the registered Owner, lessee, tenant, mortgagee in
possession and/or the Person in charge of any property.
"Person" means an individual, business, firm, body corporate,
corporation, association, or municipality.
"Privacy Screen" means a visual barrier constructed of building
materials designed for exterior use including but not limited to posts,
boards, panels, pilings, lattice, rails, wire, chain link, masonry or similar
materials or any combination thereof used to shield any part of a Yard
from view from any adjacent lot or highway.
"Residential Property" means land used for residential purposes.
"Street Line" means the boundary between a public or private street
and a lot.
"Town" means Corporation of the Town of Newmarket.
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"Water Gate" means a gate, or valve, by which a flow of water is
permitted, prevented, or regulated.
"Yard" means an open, uncovered space on a lot re to a Building
and unoccupied by Buildings or structures except as may be
expressly permitted by this By-Law but does not include a court yard.
In determining Yard measurements the minimum horizontal distance
from the respective Lot Line(s) shall be used.
"Yard, Exterior Side" means the Yard of a Corner Lot extending
from the Front Yard to the Rear Yard between the Exterior Side Lot
Line and the nearest main wall of the principal Building or structure
on the lot.
"Yard, Front" means a Yard extending across the full width of a lot
between the front Lot Line and the nearest wall of the principal
Building or structure on the lot.
"Yard, Interior Side" means a Yard other than an Exterior Side
Yard, extending from the Front Yard to the Rear Yard between the
interior side Lot Line and the nearest wall of the principal Building or
structure on the lot.
"Yard, Rear" means a Yard extending across the full width of a lot
between the rear Lot Line and the nearest wall of the principal
Building or structure on the lot.
"Zoning By-law" means the Zoning By-law of the Town passed
under the Planning Act, R.S.O. 1990 as amended, from time to time.
2.0 Administration and Exemption
2.1 Interpretation:
(a)
A word interpreted in the singular number has a
corresponding meaning when used in the plural.
(b)
The imperial measurements included in this by-law are for
information only and are intended to be an approximate
conversion of the metric measurements, which shall prevail
in the event of any conflict.
2.2
This By-law shall be administered by the Director.
2.3
This By-law shall not apply to any Fence, Division Fence or Privacy
Screen erected for government or other public purposes by the Town,
the Regional Municipality of York, or any Provincial or Federal
governmental authority.
2.4
Where a property is subject to a site plan agreement under Section 41
of the Planning Act, R.S.O.,1990, any Fences shall comply with the
site plan agreement.
2.5
Where a Fence has been installed pursuant to a subdivision
agreement under Section 51 of the Planning Act, R.S.O., 1990, any
Fences shall comply with the subdivision agreement.
3.0
General Provisions
3.1
No Person shall erect a Fence or Privacy Screen or Division Fence
or cause a Fence, Privacy Screen or Division Fence to be erected,
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(a)
which is wholly or partly constructed of barbed wire, chicken
wire or other barbed or sharp material
(b) which is wholly or partly constructed from sheet metal or
corrugated metal panels manufactured chipboard,
waferboard, plywood or similar manufactured wood products.
(c)
which contains a device for projecting an electric current.
3.2
No Person shall construct a Fence over a drainage easement or
watercourse without constructing a Water Gate sufficient to ensure
adequate drainage.
3.3
All Water Gates on Fences shall at all times be kept free from
obstruction by the Owner of such Fence.
3.4
Notwithstanding any other provision of this By-law, no Person shall
construct a Fence, Division Fence or Privacy Screen so as to
obstruct access to any hydro or water meter or meter reading device
by any employee, officer or agent of Newmarket-Tay Hydro or the
Town.
3.5
No Person shall construct a Fence, Privacy Screen or Division
Fence that is greater than 20 centimetres (8 inches) wide.
3.6
Every Fence, Privacy Screen and Division Fence shall be
constructed and maintained by its Owner in a structurally sound
condition and in good repair. For the purpose of this subsection,
maintenance of a Fence, Privacy Screen or Division Fence with a
surface that has been previously painted, stained, varnished or which
has been treated with other similar protective finishes shall be
maintained so that such finish does not visibly deteriorate.
3.7
The Owner of any Fence or Division Fence or the agent or employee
of such Owner is permitted to enter upon the land adjoining the Fence
after having given at least 24 hours written notice of intention to enter
to the adjoining property Owner or tenant for the purpose of making
necessary and appropriate repairs, alterations or improvements to
such Fence but only to the extent necessary to effect such repairs,
alterations or improvements and provided that the adjoining land shall
be left in the same condition it was prior to such entry.
3.8
A Hedge in any Yard shall not be in excess of the Height limits
contained within this By-law except for the provision for width set out in
section 3.5 of this By-law
3.9
In the case of a Corner Lot, no Person shall erect a Fence or cause a
Fence to be erected within a Daylighting Triangle formed by
measuring five metres (5 m) along the Lot Lines from the intersection
of any two highways or at the intersection of two parts of the same
highway meeting at an angle of not more than one hundred and thirty-
five (135) degrees.
3.10 In the case of any lot, no Person shall erect a Fence or cause a
Fence to be erected within a Daylighting Triangle formed by
measuring five metres (5 m) along the Lot Line and a driveway, at the
intersection of the driveway and the Lot Line abutting the highway.
3.11 The area within the Daylighting Triangle shall be determined by
measuring from the point of intersection of two Street Lines or the
extension of such lines on a corner lot.
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4.0
Fences in Residential Zones
4.1
No Person in a residential zone shall erect or construct a Fence or
Division Fence in the Town in excess of the following Height
requirements;
(a)
Rear Yard: No Fence erected in a Rear Yard shall exceed
2.1 metres (7 feet) in Height provided that in the case of a
Corner Lot, where a Rear Yard abuts a Front Yard or
Interior Side Yard of an adjacent lot, no Person shall
construct a Fence, Division Fence or Privacy Screen that
exceeds 1.8 metres (6 feet) in Height.
(b)
Interior Side Yard: No Fence erected in an Interior Side
Yard shall exceed 1.8 metres (6 feet) in Height.
(c)
Front Yard: No Fence erected in a Front Yard shall exceed
1 metre (3 feet) in Height.
(d)
Exterior Side Yard: No Fence erected in an Exterior Side
Yard shall exceed 1.8 metres (6 feet) in Height.
(e)
Notwithstanding clauses 4.1(a) to (d), a Fence abutting an
arterial road designated in the Town's Official Plan may have
a Fence that does not exceed 2.4 metres (8 feet) in Height
along a rear Lot Line abutting said arterial road.
(f)
Where the Rear or Side Yard of any lot abuts the Side or
Rear Yard of any of any other lot, any Fence to be erected
shall not exceed the requirement of any Fence that may be
erected on any such abutting lot, that is to say the more
restrictive provisions of this by-law shall apply except in those
situations set out in clauses 4(a) and 4(d) above.
(g)
Notwithstanding section 4 of this by-law and the definitions of
Yards, where the principal entrance of a Residential
Property is located in an Exterior Side Yard:
i.
The Exterior Side Yard shall be deemed to be the
Front Yard.
ii.
The Front Yard shall be deemed to be the Exterior
Side Yard.
5.0
Privacy Screens in Residential Zones
5.1
Every Privacy Screen shall be:
(a)
located within Interior Side, Exterior Side or Rear Yards
only;
(b)
Privacy Screens located in a Front Yard maybe erected
between adjacent independent entrances of semi-detached,
townhouse and link dwellings providing that;
i. the Privacy Screen shall not encroach more than 1.2
metres (4 feet) from the wall containing the adjacent
independent entrances; and
ii.shall not exceed 1.8 metres (6 feet) in Height;
(c)
not closer to a Lot Line or a Street Line than a Deck would
be permitted to be located pursuant to the Zoning By-law;
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(d)
no longer than 12 metres (39 feet) in total length and no
individual section of length is longer than 5 metres (16 feet);
and
(e)
no more than 3 metres (10 feet) in Height if constructed at
Grade level and no more than 2 metres (6.5 feet) in Height if
constructed on a Deck.
6.0
Fences and Privacy Screens in Non-Residential Zones
6.1
No Fence in any non-residential zone shall be:
(a)
greater than 3 metres (10 feet) in Height within the Interior
Side, Exterior Side or Rear Yards; or
(b)
greater than 1.5 metres (5 feet) in Height within the Front
Yard, except where Accessory Outdoor Storage is lawfully
maintained within the Front Yard, in which case the
provisions of this By-law relating to Accessory Outdoor
Storage shall apply.
6.2
In a non-residential zone that permits Accessory Outdoor Storage
pursuant to the Zoning By-law, the area used for Accessory
Outdoor Storage shall be screened so that the goods, materials,
equipment or machinery are not visible from any street or abutting lots.
The Privacy Screening shall be provided by any combination of
Fences, walls, berms, landscaping and plantings that are:
(a)
not less than 2 metres (6.5 feet) and a maximum 3 metres
(10 feet) in Height; and
(b)
constructed of permanent non-transparent materials or
vegetation that provides a visual barrier.
7.0
Line Fences Act
7.1
With the exception of section 20 in the Line Fences Act, the Line
Fences Act shall not apply to any part of the Town.
8.0
Power of Entry
8.1
The Town may enter on a property at any reasonable time for the
purpose of carrying out an inspection to determine whether or not the
following are being complied with:
(a)
the provisions of this By-law;
(b)
an order issued under this By-law; or
(c)
an order made under section 431 of the Municipal Act.
8.2
Where an inspection is conducted by the Town, the Person
conducting the inspection 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 and extracts;
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(c)
require information from any Person concerning a matter
related to the inspection including their name, address,
phone number and identification; 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 inspection.
8.3
The Town may undertake an inspection pursuant to an order issued
under section 438 or the Municipal Act.
8.4
The Town's power of entry may be exercised by an employee, officer
or agent of the Town or by a member of a police force with jurisdiction,
as well by any Person under his or her direction.
9.0
Order
9.1
When a Fence or Privacy Screen is erected or altered in
contravention of the provisions of this By-law, the Director may issue
an order to any Person who:
(a)
has erected or altered or caused or permitted to be erected
or altered, a Fence or Privacy Screen on property contrary
to the provisions required of this By-law; or
(b)
the order shall require the Fence or Privacy Screen to be
brought into compliance with this By-law within a timeframe
indicated in the order and shall include reasonable particulars
to identify the contravention, the location of the contravention
and the date by which the Fence must be brought into
compliance with the By-law.
(c)
the order shall be served personally on the Owner, or to an
email address that the Person has provided to the Town or
posted at the address of the Owner where the Fence was
erected or altered, or sent by registered mail to the last
known address of the Owner, in which case it shall be
deemed to have been given on the 5th calendar day after it is
mailed.
(d)
if there is evidence that the occupant of the land is not the
registered property Owner, the order shall be served on both
the registered property Owner and the occupant of the land.
10.0 Remedial Action
10.1 Wherever this By-law, or an order issued under this By-law, directs or
requires any matter or thing to be done by any Person within a
specified time period, in default of it being done by the specified time
period, remedial action may be initiated by the Director, or a Town
designate. The Town may recover, from the Person directed or
required to do the matter or thing, the costs incurred through a legal
action or by recovering the costs in the same manner as taxes.
10.2 For the purposes of taking remedial action under Section 10.1 the
Town, its
Staff and/or its agents may enter, at any reasonable time, upon any
lands on
which a default to carry out a required thing or matter occurred.
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11.0 Penalty Provision
11.1 Any Person who contravenes a provision of this By-law, including an
order issued under this By-law is guilty of an offence and upon
conviction is liable to a fine as provided for by the Provincial Offences
Act, R.S.O. 1990, Chapter P.33, as amended
11.2 If a Fence or Privacy Screen has been erected or altered in
contravention of any provision of this By-law, and the contravention
has not been corrected, the contravention of the provision shall be
deemed to be a continuing of Fence for each day or part of a day that
the contravention remains uncorrected.
11.3 If an order has been issued under this By-law, and the order has not
been complied with, the contravention of the order shall be deemed to
be a continuing of Fence for each day or part of a day that the order is
not complied with.
11.4 Any Person who is guilty of an offence under this By-law shall be
subject to the following penalties pursuant to Part III of the Provincial
Offences Act, R.S.O. 1990, Chapter P.33, as amended:
(a)
Upon a first conviction, the minimum fine shall be $350.00
and the maximum fine shall be $100,000.00;
(b)
Upon a second or subsequent conviction for the same
offence, a fine shall be a minimum of $500.00 and the
maximum fine shall be $100,000.00;
(c)
Upon conviction for a continuing offence, the minimum fine
shall be $500.00 and the maximum fine shall be $10,000.00
for each day or part of a day that the offence continues; and
(d)
Upon conviction of a multiple offence, for each offence
included in the multiple offence, the minimum fine shall be
$500.00 and the maximum fine shall be $10,000.00.
11.5 For the purposes of this By-law, "multiple offences" means an offence
in respect of two (2) or more acts or omissions each of which
separately constitutes an offence and is a contravention of a provision
of this By-law.
11.6 For the purposes of this By-law, an offence is a "second or subsequent
offence" if the act giving rise to the offence occurred after a conviction
had been entered at an earlier date for the same offence.
11.7 Where an authorized officer or Municipal Law Enforcement Officer
has reasonable grounds to believe that an offence has been
committed by any Person or Owner, the authorized officer or
Municipal Law Enforcement Officer may require the name, address
and proof of identity of that Person or Owner, and the Person or
Owner shall supply the required information.
12.0 Collection of Unpaid Fines
12.1 If any part of a fine for a contravention of this by-law remains unpaid
after the fine becomes due and payable under section 66 of the
Provincial Offences Act, R.S.O. 1990, c. P.33 , as amended, including
any extension of time for payment ordered under that section, The
Director may give the Person against whom the fine was imposed a
written notice specifying the amount of the fine payable and the final
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date on which it is payable, which shall be not less than twenty one
(21) days after the date of the notice;
12.2 If the fine remains unpaid after the final date specified in the notice, the
fine shall be deemed to be unpaid taxes for the purposes of section
351 of the Municipal Act.
13.0 Variance
13.1 Where a proposed or existing Fence or Privacy Screen is not in
compliance with this By-law, the Owner of the lot on which the Fence
or Privacy Screen is or is proposed to be constructed, or an
authorized agent of the Owner, may request a variance from any of
the applicable provisions of this By-law.
13.2 An application for a variance shall be made on the form prescribed by
the Town and shall be accompanied by the non-refundable variance
application fee in the Fees and Charges By-law.
13.3 A request for a variance shall be submitted to the Director on the
application form prescribed by the Town and shall only be deemed to
be complete and ready for a review by the Director if it includes:
(a)
the name, address and contact information of the applicant;
(b) the address of the lot relevant to the variance request;
(c) reference to the specific Section(s) of the By-law from which
the variance is sought;
(d) a detailed description explaining why the applicant requires
the variance;
(e) a description of the Fence and/or Privacy Screen including
the dimensions and the specifications of the construction and
installation;
(f)
a survey of the lot identifying the location of the Fence and/or
Privacy Screen;
(g) a site plan of the lot identifying the location of the Fence
and/or Privacy Screen;
(h)
proof of notification to abutting neighbours by personal
service or
prepaid first class mail which indicates: (1) specifications of
the
Fence, (2) reasons for the exemption request, and (3)
objections
must be forwarded to the Director of Legislative Services
within 10
days
(i) payment of the non-refundable fee as outlined in the Fees
And Charges By-law.
13.4 Upon reviewing an application for a variance, the Director shall
consider:
(a)
whether it is in accordance with the general intent and
purpose of the By-law;
(b)
if approved, would the resulting Fence or Privacy Screen be
in keeping with the surrounding area and would there be any
negative impact on adjacent residents;
(c)
are there any special circumstances and would strict
application of the provisions of this By-law result in
unnecessary difficulty or hardship for the applicant; and
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(d)
would approval of the variance result in any impacts to the
health, safety or welfare of the public.
13.5 The Director shall inform the applicant, as well as any abutting
neighbours that submitted objections, by way of written notice setting
out the grounds for the decision with reasonable particulars, and the
right to appeal such decision to the Hearing Officer.
13.6 A request for an appeal to the Hearing Officer shall be made in
writing to the Director setting out the reasons for the appeal within 10
days after service of the written notice, and shall be accompanied by
an appeal fee set out in the Fees and Charges By-law to the Town,
13.7 Where no request for an appeal is received in accordance with
section13.6, the decision of the Director shall be deemed to be
affirmed.
13.8 Where a request for an appeal is received, a hearing of the Hearing
Officer shall be convened and the applicant shall be provided
reasonable written notice thereof. The Hearing Officer may
consider any matter in section 13.4.
13.9 Where an applicant makes a request for an appeal and fails to appear
at the time and place scheduled for the hearing of the appeal, or
requests an adjournment on the day of the scheduled hearing, the
applicant shall pay to the Town an administrative fee of $100.00,
which
may be refunded in the discretion of the Committee if the
nonattendance was unavoidable or the adjournment is in the public
interest, not prejudicial to the expeditious determination of the
proceeding or otherwise justified.
13.10 A decision of the Appeal Committee is final and binding.
14.0 Liability
14.1 In addition to any other party who commits the offence with respect to
this By-law, the Owner of the premises on which the Fence or
Privacy Screen was erected or altered shall be deemed to commit the
offence.
15.0 Severability
15.1 Where a Court of competent jurisdiction declares any section or part of
a section of this By-law invalid, the remainder of this By-law shall
continue in force unless the Court makes an order to the contrary.
16.0 Short Title
16.1 This By-law shall be referred to as the "Fence By-law";
And that By-law 2000-63, 2000-114, 2000-168, 2001-2, 2002-172 and
1992-91is hereby repealed.
Enacted this 15th day of April, 2019.
___________________________
John Taylor, Mayor
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___________________________
Lisa Lyons, Town Clerk