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4019 Encroachment By-LawTHE CORPORATION OF THE TOWN OF TILLSONBURG BY-LAW 4019 A BY-LAW TO REGULATE AND CONTROL THE GRANTING OF ENCROCHMENTS ON HIGHWAYS AND PUBLIC LANDS WITHIN THE TOWN OF TILLSONBURG. WHEREAS The Municipal Act, 2001, S.O. 2001, c.25 (hereinafter the "Municipal Act, 2001") provides that a lower-tier municipality may pass by-laws within the following spheres of jurisdiction: Highways, including parking and traffic on highways at section 11 (3) 1; Culture, parks, recreation and heritage at section 11 (3) 5 and Structures, including fences and signs at section 11 (3) 7; AND WHEREAS section 9 of the Municipal Act, 2001 provides that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under the Municipal Act, 2001; AND WHEREAS section 9(1) of the Municipal Act, 2001 provides that sections 8 and 11 shall be interpreted broadly so as to confer broad authority on municipalities to (a) enable them to govern their affairs as they consider appropriate, and (b) enhance their ability to respond to municipal issues; AND WHERAS section 391(1) of the Municipal Act, 2001 states that section 11 authorizes a lower-tier municipality to impose fees or charges on persons for services or activities provided or done by the municipality; AND WHEREAS section 429 of the Municipal Act, 2001 provides that a municipality may establish fines for offences under a by-law of the municipality; AND WHEREAS section 446 of the Municipal Act, 2001 provides that a municipality may take remedial action and recover the costs of taking remedial action; AND WHEREAS The Council of The Corporation of the Town of Tillsonburg is desirous of adopting an Encroachment by-law to regulate and control the granting of Encroachments on highways and public lands; NOW THEREFORE, The Council of The Corporation of the Town of Tillsonburg herby enacts as follows: 1.0 SHORT TITLE 1.1 This by-law shall be known and may be cited as the "Encroachment By-law". 2.0 DEFINITIONS 2.1 For the purpose of this by-law, "Applicant" means the Owner or Person who rnakes application for an Encroachment Permit or an Encroachment Agreement; "Council" means the Council of The Corporation of the Town of Tillsonburg; "County" means the County of Oxford; "Encroachment" means any type of vegetation, natural material, man-made object, or item of personal property occupying any part of a highway or public lands and shall include any aerial, surface, or subsurface Encroachments; a. "Aerial Encroachment" means an Encroachment that is located at least 30 centimeters (12 inches) above the surface of a highway or public lands; b. "Surface Encroachment" means an Encroachment that is located anywhere between the surface of a highway or public lands to a height less than 30 centimeters (12 inches) and beneath the surface of a highway or public lands to a depth of not more than 2.5 centimeters (1 inch); c. "Subsurface Encroachment" means an Encroachment that is located beneath the surface of a highway or public lands to a depth exceeding 2.5 centimeters (1 inch); "Encroachment Agreement" means an agreement required under this by-law, prepared by the Town for execution by the Town and an Owner granting authorization to erect, place, or maintain an Encroachment; "Encroachment Permit" means a permit for an Encroachment issued under the authority of this by-law; "Existing Encroachments" means any Encroachment Permits or Encroachment Agreements that are in place prior to the date of passing of this by-law; "Highway" means a common and public highway or portion of a common and public highway, and includes any street, lane, road allowance, sidewalk, bridge, trestle, viaduct or other structure that forms part of a highway and all lands between the lateral boundaries of a highway; "Manager of Engineering" means the Manager of the Engineering Department, his or her designate or, in the event of organizational changes, another employee designated by the Town; "Owner'' means any person who is the registered owner of real property as described in the records of the land registry office, or owner under agreement of real property, and includes any person in actual or apparent possession of real property under a lease, license or agreement with another owner; "Person" means any individual, partnership, association, school board, firm or corporation, business entity or club, incorporated group or organization; "Personal Property" means any object or item of property other than real property; "Public Lands" means lands owned by, leased, licensed to, or under the management of the Town, and shall include but not limited to any public highway, road, street, avenue, crescent, court, drive, lane, alley, circle, cul-de-sac, sideroad, path, place, gate, line, road allowance, thoroughfare, bridge, viaduct or trestle, culvert, common or public square, public place, sidewalk, park, woodland, storm water management facility, open space, municipal golf course or cemetery, and all parts thereof, including any surface, grassed area, boulevard, ditch, curb, gutter and sidewalk; "Right-of-Way" means a person's legal right, established by usage or by contract, to pass through grounds or property owned by another person; "Town" means The Corporation of the Town of Tillsonburg; "Town Clerk" means the Town Clerk, his or her designate or, in the event of organizational change, another employee designated by the Town; "Unauthorized Encroachment" means any Encroachment not authorized by this by-law. 3.0 AUTHORITY 3.1 Council hereby delegates decision making authority to the Director of Operations with regard to the issuance or denial of municipal Encroachments under this by-law, as Council is of the opinion that the delegated powers are of a minor nature. 4.0 EXEMPTIONS 4. 1 The provisions of this by-law do not apply to: (i) lawns and private entrances that comply with the requirements of the applicable Town and County by-laws regulating private entrances or that is constructed in accordance with the terms and conditions of a subdivision agreement or site plan agreement with the Town; (ii) the activities, works, and equipment of Town forces performing construction or maintenance operations on Town highways or public lands; (iii) signs authorized by any Town by-law; (iv) sandwich board signs whose placement upon a sidewalk complies with the requirements of the applicable by-law that regulates such signs, provided that the Town has no objection to the location of the sandwich board sign from a traffic, safety, or operational point of view; (v) election signs, real estate signs and other temporary signs whose placement upon a highway or public lands complies with the requirements of the applicable by-law that regulates such signs; (vi) every rural mail box upon a highway or public lands that is erected and maintained in compliance with the requirements of the Mail Receptacles Regulations under the Canada Post Corporation Act; (vii) all existing Encroachments authorized by the Town, unless the safety of the public may be affected by the Encroachment, or the Applicant wishes to alter the Encroachment in any way. 5.0 GENERAL REQUIREMENTS 5. 1 No person shall close, obstruct, encumber, excavate, construct, place, erect, alter or maintain any kind of Encroachment in, on, over, or under any highway or public lands without first obtaining a valid Encroachment Permit or Encroachment Agreement, as the case may be, in accordance with the provisions of this by-law. 5.2 All Encroachments that will be in place for less than one (1) year will be dealt with through the issuance of an Encroachment Permit pursuant to this by-law. 5.3 All Encroachments reoccurring on an annual basis or that will be in place for longer than one (1) year will be dealt with through the issuance of an Encroachment Agreement pursuant to this by-law. 5.4 Where an Encroachment would restrict public access over, under, or across the proposed Encroachment area, the Town, at its sole discretion, may consider providing the appropriate notification of the proposed Encroachment to the owners directly affected by the proposed Encroachment, being those owners whose properties are within 120 meters of the proposed Encroachment. 5.5 Where an existing Encroachment is deemed to affect the Town's ability to carry out its work within the highway or public lands or where the safety of the public may be affected by the Encroachment, the Applicant may be required by the Town to modify the Encroachment and such modification shall be at the Applicant's expense. 5.6 Where an Applicant requests an amendment to an Encroachment Permit or an Encroachment Agreement, the amendment must be in compliance with this by-law and approved by the Town, and any modification to the Encroachment shall be at the Applicant's expense. 5.7 All permitted Encroachments shall be deemed to be with the license of the Town and such license shall not create an easement, interest or any other real property rights over any highway or public lands. ENCROACHMENT PERMITS 6.0 PROCEDURE FOR APPLICATION 6.1 An application for an Encroachment Permit shall be made to the Manager of Engineering on the prescribed form which is attached herewith and marked as Schedule "A" to this bylaw. The Manager of Engineering may, from time to time, cause amendments of an administrative nature to the Encroachment Permit. 6.2 Every application for an Encroachment Permit shall include: (i) the name of the Person performing the intended work; (ii) the intended start date and duration of any such Encroachment; (iii) a brief description of the nature and purpose of the intended works; (iv) such other information, as required by the Manager of Engineering, to understand the nature of the proposed Encroachment and its impact; (v) a sketch or plan showing the location and dimensions of the Encroachment; (vi) a traffic control plan identifying all signage and traffic control devices and detour route if required to address both vehicular and pedestrian movements; (vii) liability insurance to the satisfaction of the Town naming the Town as additional insured for the duration of the Encroachment; (viii) WSIB Clearance Certificate for the duration of the Encroachment; and (ix) the non-refundable fee required under the Schedule of Fees for Certain Municipal Applications, Services and Permits By-law, as amended (hereinafter the Rates and Fees By-law). 6.3 Complete applications must be submitted at least seven (7) business days prior to the Encroachment or any works associated with the Encroachment. 6.4 Where a utility or public service company or commission requires an Encroachment as a result of an emergency, telephone notice shall be given immediately to the Town Customer Service Centre and to the OPP and on the next working day they shall make application for an Encroachment Permit on the prescribed form. 7.0 APPROVAL OF APPLICATIONS 7.1 In deciding whether to grant an Encroachment Permit, the Manger of Engineering shall consider the effect of the proposed Encroachment on the movement and safety of vehicles and pedestrians, any public service, and any other factors deemed relevant in the circumstances. 7.2 The approval of an Encroachment Permit can take up to seven (7) business days. 7.3 An Encroachment Permit shall be granted for a period not exceeding ninety (90) days and may be renewed for further periods not exceeding ninety (90) days for each renewal, up to a maximum of four (4) renewals. If additional renewals are required or the Encroachment reoccurs annually the Applicant will be required to enter into an Encroachment Agreement. 7.4 Application for renewal of an Encroachment Permit shall be made by presenting the existing permit before its expiry date, accompanied by any required fees as per the Rates and Fees By-law. 7.5 An Encroachment Permit may limit the existence of the Encroachment to a part of the day only, to specified days, or to times otherwise deemed appropriate in the circumstances by the Manager of Engineering. 7.6 An Encroachment Permit may include additional or special conditions of approval deemed appropriate in the circumstances by the Manager of Engineering. 7.7 An Encroachment Permit is not transferable. 8.0 REVOCATION 8.1 The Manager of Engineering may revoke an Encroachment Permit for non-compliance with this by-law by sending notice of revocation by registered mail to the address of the Applicant and the permit shall be considered revoked from the second day after the day of mailing the notice. 9.0 CONDITIONS 9.1 All Encroachment Permit holders shall: (i) strictly adhere to the conditions set out in this by-law and any additional or special conditions set out in the applicable Encroachment Permit. Any breach thereof is considered to be non-compliance and may result in a revocation or termination of the applicable Encroachment Permit. The Manager of Engineering or their designate may then take actions deemed necessary to reinstate the Encroachment for public safety at the Applicant's expense; (ii) obtain all other necessary agency permits and approvals required (i.e. County of Oxford, MOECC, MNR, LPRCA, Ministry of Labour, Building Permits, etc.) and comply with any applicable provincial legislation. Proof of such permits and approvals shall be provided if requested by the Town prior to issuing the Encroachment Permit; (iii) request all marking or other location information to determine the location and provide safeguards for all utilities, both public and private, in accordance with current regulations; (iv) release, indemnify and save harmless the Town, its councillors, directors, officers, employees, agents, consultants, contractors, assigns, and any others for whom the Town is at law responsible from and against any and all claims, demands, losses, expenses, costs, including but not limited to reasonable legal fees, damages, actions, suits or proceedings, or any other liabilities which may at any time or from time to time be asserted against, imposed upon or incurred by the Town as a consequence of or in connection with the Encroachment, the maintenance of the Encroachment, or any other matter relating to the Encroachment; (v) have the Encroachment Permit available for inspection at all times during which the work is in progress; (vi) keep the Encroachment in a state of good repair as determined by the Town. In the event that the Applicant fails or neglects to keep the Encroachment in a state of good repair, the Manager of Engineering may provide notice to the Applicant of any deficiency on the Encroachment and request that such deficiencies be rectified. If the notice is not complied with within two (2) business days from the date that the notice was sent or such other time as may be mutually agreed by the Town and the Applicant, the Encroachment Permit may be revoked. Notwithstanding the foregoing the Town may immediately remove any item on public property deemed to be in noncompliance or constitute a safety hazard. All costs incurred by the Town to remove the Encroachment shall be recovered from the Applicant; (vii) assume all maintenance and liability for temporary repairs until such time as permanent repairs are completed for the work described in the applicable Encroachment Permit to the satisfaction of the Town; (viii) reinstate all damage, disruption, or removal of existing infrastructure as described on the applicable Encroachment Permit, and all damages related to the work activity, to the satisfaction of the Town. Failure to reinstate the affected areas will result in the Town performing the required repairs at the Applicant's expense; (ix) provide and maintain all signs, barricades, traffic control devices, traffic control persons, or other persons and equipment as required by the Occupational Health and Safety Act and Ministry of Transportation guidelines, to the satisfaction of the Town, at the location of Encroachment, prior to commencement of work, at the sole responsibility and cost of the Applicant; (x) provide and maintain a reasonable temporary alternative route or detour for traffic and pedestrians where a highway or public lands is closed or partially occupied, to the satisfaction of the Town and all at the cost of the Applicant; (xi) maintain access to all public and private properties for the duration of the work. The Applicant shall provide written notice 48 hours in advance of the Encroachment to affected property owners of when the work is to commence and/or if a highway closure is to be undertaken; (xii) not store excavated material in such a manner as to obstruct pedestrian or vehicular traffic or to be placed near a catch basin such that the material may enter the sewer. Frozen or organic material, clay in a fluid state, silt or mud shall be excluded from backfill. This may require that all excavated material be replaced with granular material. Backfill material shall be compacted in layers not exceeding 300 millimetres; and (xiii) notify the Manager of Engineering at least 24 hours in advance of any additional time required and the reason for an extension, when conditions or unforeseen difficulties require a longer period for completion than indicated on the Encroachment Permit. Notwithstanding the forgoing the Encroachment Permit expires ninety (90) days following approval and a new permit will be required, as prescribed in subsection 6.3. ENCBOACHMENJAGBEEMENJS 10.0 PROCEDURE FOR APPLICATION 10.1 Application for an Encroachment Agreement shall be made to the Director of Operations by the Owner or a representative of the Owner on the prescribed form which is attached herewith and marked as Schedule 'B' to this by-law. The Director of Operations may, from time to time, cause amendments of an administrative nature to the Application for Encroachment Agreement form. 10.2 Every application shall include: (i) the name and contact information of the Owner and a legal description of the real property neighbouring the proposed Encroachment; (ii) a sketch showing the location and dimensions of the proposed Encroachment; (iii) a description of the proposed Encroachment including the highway or public lands encroaching upon, the intended use of the Encroachment, and estimated length of time of the Encroachment; (iv) such other information, as required by the any of the organizational units of the Town with an interest in the matter, to understand the nature of the proposed Encroachment and its impact; and (v) the non-refundable fee required under the Rates and Fees By-law. 10.3 If the Director of Operations and all other organizational units of the Town with an interest in the matter are satisfied with the application, the Owner or representative of the Owner shall then file with the Director of Operations: (i) three (3) copies of a plan certified by an Ontario Land Surveyor showing the location and dimensions of the Encroachment and of the adjacent part of the premises to which it is or will be appurtenant, and the location of all lot lines; (ii) a registerable description of the premises to which the Encroachment Agreement is or will be appurtenant; and 11.0 APPROVAL OF APPLICATIONS 11.1 In deciding whether to continue with the Encroachment Agreement Application, the organizational units of the Town with an interest in the matter shall consider the effect of the proposed Encroachment on the movement and safety of vehicles and pedestrians, any public service, and any other factors deemed relevant in the circumstances. 11.2 Any of the organizational units of the Town with an interest in the matter may impose such terms and conditions to any Encroachment Agreement as deemed relevant in the circumstances. 11.3 When all the organizational units of the Town with an interest in the matter are satisfied with the application, the Owner of the premises shall enter into an Encroachment Agreement with the Town. 11.4 The Encroachment Agreement shall then be registered by the Owner/Applicant with the land registry office against the title to which the Encroachment is appurtenant at the Owner's/Applicant's expense and evidence of such registration shall be provided to the Director of Operations within thirty (30) days of Encroachment Agreement approval. 12.0 REVOCATION 12. 1 The execution of an Encroachment Agreement in respect of an Encroachment does not create any vested right in the Owner or occupant of the premises to which the Encroachment is appurtenant, or in any other person, and the Encroachment Agreement may be revoked in accordance with the terms set out therein. 13.0 CONDITIONS 13.1 All Applicants of Encroachment Agreements shall: (i) make no alteration to the highway or public lands, including and without limitation the removal of trees or grade changes, and shall not erect any building or structures on the highway or public lands without the Town's written permission; (ii) carry out all authorized work in a proper and professional manner so as to do as little damage or disturbance to the highway or public land infrastructure as possible. The Applicant/Owner shall repair and make good all damage and disturbance that may be caused to the highway or public land infrastructure, to the satisfaction of the Town, at the sole expense of the Applicant/Owner; (iii) maintain the Encroachment in all respects in a state of good repair, including keeping the Encroachment in a sound, neat, safe and clean condition to the satisfaction of the Town. If the Encroachment is not kept in a state of good repair, upon seven (7) business days written notice (or such shorter time as may be required in the case of an emergency or other urgent matters) to the Applicant/Owner, the Town shall have the right to do any work necessary to fulfill this condition and all costs incurred by the Town shall be recovered from the Applicant/Owner; (iv) upon written notice from the Town, renew, repair, or maintain the surface of the highway or public lands if at any time the Town decides to renew, repair or maintain the surface of the highway or public lands upon which the Encroachment is located. If the notice is not complied with within seven (7) business days from the date that the notice is sent or such other time as may be mutually agreed upon by the Town and Applicant/Owner, the Town may renew or repair the highway or public lands at the expense of the Applicant/Owner; (v) not obstruct, hinder, or interfere with the free access to the Encroachment by any person acting on behalf of the Town, including an employee, officer, or agent of the Town; (vi) notify the Town in writing 30 days in advance of any potential transfer or sale of their property or any part thereof, together with the name and address of the potential transferee or purchaser. For clarity, in the event that the ApplicanUOwner sells the property to which the Encroachment Agreement is appurtenant, the ApplicanUOwner shall instruct the transferee or purchaser of the said property to submit a new Encroachment Agreement Application to the Town for the Town's review and approval; (vii) apply for a new Encroachment Agreement pursuant to this by-law if the Encroachment is moved, altered, or changed in any manner and will remain on the highway or public lands after such movement, alteration or change; (viii) at all times release, indemnify and save harmless the Town, its Councillors, directors, officers, employees, agents, consultants, contractors, assigns, and any others for whom the Town is at law responsible from and against any and all claims, demands, losses, expenses, costs, including but not limited to legal fees on a substantial indemnity basis, damages, actions, suits, judgements, or proceedings, or any other obligations or liabilities which may at any time or from time to time be asserted against, imposed upon or incurred by the Town as a consequence of or in connection with the maintenance, alteration, use or any other matter or thing, directly or indirectly, relating to the Encroachment; (ix) obtain and maintain insurance to the satisfaction of the Town naming the Town as an additional insured for the duration of the Encroachment Agreement. A Certificate of Insurance evidencing the insurance coverage shall be provided to the Town prior to the Town signing the agreement and thereafter promptly on the insurance renewal date; (x) acknowledge that the Town or Owner may terminate the Encroachment Agreement on sixty (60) days written notice for any reason whatsoever. In the event of agreement termination the Owner shall remove the Encroachment on the date of termination at their expense. If the Owner fails to remove the Encroachment on the date of termination, the Town shall provide the Owner with a notice requiring the Owner to remove the Encroachment within seven (7) working days. If the Owner fails to remove the Encroachment within the seven (7) working day period, the Town shall have the right to remove the Encroachment at the expense of the Owner. (xi) restore the highway or public lands to the condition they were in prior to the date of the Encroachment Agreement or in compliance with current Town standards upon the removal of the Encroachment from the highway or public lands, at the Owner's sole expense; and (xii) acknowledge that the Town shall have a right to terminate the agreement in the event that the Encroachment represents a danger to the safety of the public using the highway or public lands or detrimentally interferes with future improvements. Such termination shall be by written notice to the Owner. 14.0 ADMINISTRATION OF BY-LAW 14.1 The Manager of Engineering or their designate is responsible for the administration of Encroachment Permits of this by-law on behalf of the Town, including the review of applications for Encroachment Permits, the circulation of such applications, where appropriate, to other organizational units with an interest in the matter, and the issuance of Encroachment Permits. 14.2 The Manager of Engineering or any other organizational unit of the Town with an interest in the matter may impose additional conditions as a requirement of obtaining or continuing to hold an Encroachment Permit, including the requirement of an Applicant to enter into an Encroachment Agreement with the Town. 14.3 The Director of Operations or their designate is responsible for the administration of Encroachment Agreements of this by-law on behalf of the Town, including the review of Encroachment Agreement Applications, the circulation of such applications, where appropriate, to other organizational units with an interest in the matter, and to ensure that approved Encroachment Agreements are registered on title by the Applicant/Owner. 14.4 An Encroachment Agreement will not be issued or approved unless all organizational units of the Town with an interest in the matter are satisfied that the Encroachment will not pose a danger to the safety of persons using the highway or public lands, or interfere with the activities or adversely affect the conditions or operation of the equipment and facilities of the Town. 14.5 All Municipal By-Law Enforcement Officers with authority to enforce the by-laws of the Town are responsible for enforcing the provisions of this by-law. 15.0 OFFENCE AND PENALTY 15.1 Any person who contravenes any provisions of this by-law is guilty of an offence and, upon conviction, in addition to any other applicable penalty, is liable to a fine pursuant to s. 429 of the Municipal Act, 2001, as follows: (i) on a first conviction to a minimum fine $500 and not more than $25,000; (ii) on a subsequent conviction to a minimum fine of $500 and not more than $100,000; and (iii) in the case of a continuing offence, for each day or part of a day that the offence continues, the minimum fine shall be $500, the maximum shall be $10,000 and the total of all daily fines shall be a maximum of $100,000. 15.2 Any contravention that continues for more than one day is designated as a continuing offence. 15.3 An offence in respect of two or more acts or omissions shall separately constitute an offence and even if such acts or omissions are a contravention of the same provision of this by-law. 15.4 If this by-law is contravened and a conviction entered, the court in which the conviction has been entered and any court of competent jurisdiction thereafter may, in addition to any other remedy and to any penalty that is imposed, make an order prohibiting the continuation or repetition of the offence by the person convicted. 16.0 ORDERS AND REMEDIAL ACTIONS 16.1 Notwithstanding any other provisions in this by-law, Encroachments that exist contrary to this by-law shall be removed by the Owner thereof within two days after service of a notice from the Town advising that such Encroachment is in contravention of this by-law. Such notice shall be in writing, shall identify by the municipal address the lands upon which the Encroachment is situate and shall specify the particulars of non-compliance with this bylaw. 16.2 If such Encroachment has not been removed by the owner as required herein, the Town may cause such Encroachment to be removed at the expense of the Owner and any costs incurred by the Town may be recovered in like manner as the municipal taxes on the property where the Encroachment was located pursuant to section 446 of the Municipal Act, 2001. The remedies provided for herein may be proceeded with prior to and notwithstanding that no prosecution or conviction has been obtained under Section 15 of this by-law. 17.0 SEVERABILITY 17.1 If a court of competent jurisdiction declares any provision, or any part of a provision, of this by-law to be invalid, or to be of no force and effect, it is the intention of Council in enacting this by-law that the remainder of this by-law shall continue in force and be applied and enforced in accordance with its terms to the fullest extent possible according to law. 18.0 COMMENCEMENT 18. 1 This by-law shall come into full force and effect upon the final passing thereof. READ A FIRST AND SECOND TIME THIS 9TH DAY OF MAY, 2016 READ A THIRD. D FINAL TIME AND PASSED THIS 24TH DAY OF MAY, 2016 Original signed by MAYOR – Stephen Molnar Original signed by CLERK – Donna Wilson