March 18, 1998
To: Toronto Community Council
From: Lesley Watson, Director, By-law Administration and Enforcement, City Works Services
Subject: Fences Within the City Street Allowance (Wards 19, 20, 21, 22, 23, 24, 25 and 26)
Purpose:
To report on fences within the City street allowance and on the notification requirements for fence applications.
Funding Sources, Financial Implications and Impact Statement:
Not applicable.
Recommendations:
It is recommended that the Toronto Community Council choose between the options for amending the current Municipal Code requirements for fences on public property within the former City of Toronto, and the public notification process as presented below:
1. (a) That fences and ornamental walls within the City street allowance, both at the front of a property and beyond the main front wall of the building not exceed a height of 1.0 m;
OR
(b) That fences and ornamental walls within the City street allowance located beyond the main front wall of the building not exceed a height of 1.9 m and that such fences and ornamental walls be set back a minimum distance of 2.1 m from the rear edge of the City sidewalk or 3.8 m from the curb where there is no sidewalk;
AND
2. (a) That notification of all fence and ornamental wall applications continue to be forwarded to the Ward Councillors;
OR
(b) That the requirement for notification of fences and ornamental wall applications to the Ward Councillor be eliminated;
OR
(c) That City staff post a notice on the property, of application for fences and ornamental walls over 1.0 m in height for a period of 14 days;
AND
3. That appropriate City Officials be authorized and directed to take the necessary action to give effect thereto.
Council Reference/Background:
In the last few months there have been various requests of staff for reports or information on issues related to fences in the road allowance. These include requests directly from City Councillors, and requests from the Toronto Community Council, as follows:
A. In a letter dated December 18, 1997, Councillor Jakobek requested me to report on the prohibition of fences over 1.0 m in height on flanking streets.
B. In a separate request, Councillor Johnston requested that I report on the notification procedures for fences.
C. The Toronto Community Council, at its meeting of February 18, 1998, also requested the appropriate officials to report to its meeting of April 1, 1998, on:
(1) whether the issue of the fence by-law can be delegated to a fence by-law process or to the Committee of Adjustment;
(2) how to achieve this;
(3) the desirability of doing so; and
(4) by-law amendments required to prohibit privacy fences or screening fences on corner properties over and above a height of 42 inches.
D. In addition, the Toronto Community Council, at its meeting of January 21, 1998, in considering the department=s report dated January 9, 1998 entitled AMaintenance of a Wooden Fence - 745 Markham Street@, requested the Acting Commissioner of Urban and Development Services to report on the policy and process for fences: such report to include the roles and responsibilities of the applicant, staff and the Community Council, suggested ways to provide for community input, and also setting out a dispute resolution process.
This report deals with items A, B, C(4), and most aspects of item D, with the exception of the dispute resolution process. A separate report by the City Solicitor will address the legal aspects of items C(1) to C(3). A separate exercise is currently underway to develop a uniform fence by-law to regulate fences on private property, for consideration by the Emergency and Protective Services Committee. One aspect of this work is a review of the current dispute resolution process in place in the former City of Toronto, and if and how it could be replicated to deal with boundary dispute and other fence disputes in the new City. I have therefore left this issue out of my present report.
Fences on the public road allowance are authorized under ' 313-33 of the City of Toronto Municipal Code Chapter 313. As ' 313-33 also deals with ornamental walls which have the same impact as fences on the street allowance, they are included with fences in the discussion in this report.
Comments:
Section 313-33 of Municipal Code Chapter 313 regulates the construction of fences within the City street allowance. The by-law currently permits the construction of fences up to 1.0 m in height at the front of a property and to a height of 1.9 m on the flank of a property.
The Code also requires that all applications for a fence which comply with the height regulations and may be approved by the Commissioner, be circulated to the Ward Councillor for comment, and where objections are received, the application must be refused. The applicant may appeal this refusal, in which case, a report would be submitted to your Committee.
Applications which satisfy the height requirements as well as the other criteria in the Code and to which there has been no objection by either the Ward Councillor or an area resident, would be approved subject to the applicant obtaining a permit and entering an agreement with the City. The standard agreement outlines various requirements, including clauses regarding the ongoing maintenance of the fence, indemnification of the City as well as the cancellation rights retained by the City.
The following table provides a breakdown of the applications processed in 1996 and 1997. I note that until October 1997, ornamental walls were processed as encroachments under ' 313-50 of the Municipal Code and therefore are not reflected in this table.
|
Year |
Total fences approved |
Fences 1.0 m or less |
Fences over 1.0 m but less than 1.9 m |
Fences over 1.0 m at the front of property |
Fences over 1.9 m on flank of property |
Objections received
(all applications) |
|
1996 |
117 |
52 |
65 |
15 |
1 |
3 |
|
1997 |
118 |
45 |
73 |
12 |
1 |
3 |
Arguments For and Against Fences on Flanking Streets:
Property owners generally apply for fences over 1.0 m high for the following reasons:
(a) to provide privacy;
(b) to provide security from intruders;
(c) to contain young children and pets; and
(d) to maximize yard space.
The majority of these requests are for the side and rear yards of corner properties which have a greater exposure to pedestrian and vehicular traffic.
While it is understandable that owners of corner properties would want to provide security and maintain privacy for their yard space, when a fence is constructed within the City boulevard rather than on the property line, it may draw opposition from area residents.
Typical objections to corner fences over 1.0 m in height are:
(a) that they obstruct the view of the street, particularly that of the immediate neighbour=s;
(b) that they are inconsistent with other fences on the street which are limited to a height of 1.0 m;
(c) that the street Aentrance@ is narrowed; and
(d) that higher fences create a safety concern by providing a Ahiding area@ for someone waiting for an approaching pedestrian.
Implications of Changing Current Rules:
To address these concerns, Councillor Jakobek and the Toronto Community Council have requested a review on the feasibility of limiting fences on corner properties to 42 inches (1.07 m) in height. To be consistent with neighbouring fences and to ensure that sight lines are maintained, should the height of fences permitted on flanking streets be reduced, a preferable height would be 1.0 m (39 inches), rather than 42 inches (1.07 m).
Reducing the height of fences on flanking streets to 1.0 m would deal with the noted visual and safety concerns. However, it is important to recognize that historically, there have always been numerous applications for fences over 1.0 m within the City boulevard, as typically reflected in the figures provided for 1996 and 1997. Given such demand for this use of the street allowance, a side effect of a more stringent by-law could be a large increase in the number of applicants seeking an exemption to the by-law. On this point, the following table reflects the changes to the permitted height of fences within the City boulevard that were made in 1985 and 1994. The changes were made in an effort to deal with the sensitive nature of fences and the community=s sometimes opposing demands to both permit and prohibit privacy fences.
|
Year |
Height |
Approval Required |
Reason for Change |
|
Pre-1985 |
- up to 0.76 m (2.5 ft.)
- over 0.76 m (2.5 ft.) |
- Commissioner
- City Council |
|
|
1985 |
- up to 0.91 m (3.0 ft.)
- over 0.91 m (3.0 ft.) to maximum of 1.5 m (5.0 ft.) |
- Commissioner
- City Council |
To introduce a maximum height for fences on City boulevard. |
|
1994 |
- up to 1.9 m (6.25 ft.)
- over 1.9 m (6.25 ft.) |
- Commissioner
- City Council |
To delegate authority for fences up to 1.9 m in height to Commissioner.
Increase permitted height of fences to reflect typical privacy fence. |
|
1995 |
- up to 1.0 m (3.0 ft.)
- up to 1.9 m (6.25 ft.) on flank only
- over 1.0 m (3.0 ft.) at front or 1.9 m (6.25 ft.) on flank |
- Commissioner
- Commissioner
- City Council |
To restrict privacy fences to flanking streets. |
A possible side effect of a more restrictive by-law may also be an increase in unauthorized construction of privacy fences within the City boulevard. These fences would have to be dealt with by enforcement to the extent of requiring removal or height reduction, or through an appeal to the Community Council.
An alternative that could be considered would be to continue to permit fences to a height of 1.9 m on flanking streets, but to amend the by-law to increase the required setback from 0.46 m to 2.1 m from the rear edge of the sidewalk or 3.8 m from the curb where there is no sidewalk. This option minimizes the impact of higher fences on the streetscape and addresses safety concerns, while still permitting such requests from homeowners whose yards abut the street.
Notification Process:
Section 313-33 of Municipal Code Chapter 313 currently requires that notice of all applications for a fence or ornamental wall be forwarded to the Ward Councillors. Prior to this process, the opportunity for public input/comment was through the Standing Committee. The change requiring that notice be sent to the Ward Councillor was made in 1992, as part of a number of streamlining initiatives that were adopted by City Council, to streamline procedures and improve quality of service.
The current notification process has been effective in identifying any concerns/objections the area residents have and in reducing the processing time for fence applications. To date, there has been only one instance where the process broke down and where an objection was received after approval and construction of the fence. In this instance, the problem may have resulted from misinformation/ miscommunication from the ratepayers group.
Should the permitted height of fences within City street allowance be restricted to 1.0 m, the current process of notification could be eliminated and these fences could be processed >as of right=, on the basis that 1.0 m high fences do not adversely affect the streetscape.
Given that specific criteria have been developed for fences, this could also be extended to include criteria permitting fences up to 1.9 m in height. This would allow fences which comply with the criteria to be processed >as of right= and again, the requirement for notice for these applications could be eliminated. The right to appeal an >as of right= fence could be limited to disputes of whether the criteria were applied in accordance with the by-law. This process would further streamline and expedite the processing of these applications.
Where a fence has already been constructed and is not in compliance with the requirements of the by-law, I would continue to report to the Toronto Community Council and any notice of objection received would be included in my report.
Should City Council prefer to maintain a notification process, then this could be achieved by either maintaining the existing procedure or by requiring that a notice be posted on site for a two week period similar to our procedures for cafe applications.
Existing Regulations Governing Fences:
A uniform fence by-law to regulate fences on private property is currently being developed, for consideration by the Emergency and Protective Services Committee. This proposed fence by-law will harmonize the regulations for fences on divisional lines and on private property, but it will not deal with fences on the City street allowance. Therefore, the recommendations of this report and any amendments to ' 313-33 of Municipal Code Chapter 313 will not conflict with the review of the private fence by-laws.
Harmonization of the by-laws/policies for fences within the City street allowance has not been started yet, therefore the changes outlined in this report would amend ' 313-33 of Municipal Code Chapter 313 only. Of the existing by-laws and policies for fences on the street allowance across Metro and the six former municipalities, five of the seven former jurisdictions permit privacy fences on flanking streets with a setback of 0 to 0.46 m from the back of the sidewalk. Former Metro and York=s rules are more restrictive as they do not permit privacy fences within the street allowance. However, there are significant factors, such as the prevalence of outer boulevards in some of the former municipalities which affect the impact of privacy fences on the street allowance. This variability in the urban form will need to be considered when the by-laws/polices for fences on street allowance are reviewed and unified.
Conclusions:
While it is feasible to reduce the height of fences and ornamental walls on flanking streets to 1.0 m, I expect that this would result in a large increase in requests for exemptions to the by-law requirements and/or an increase in unauthorized fence construction. Should appeals for exemptions not be permitted, then it would be essential to ensure that the by-law criteria is applied consistently, including enforcement measures to bring fences into compliance with the by-law requirements.
It may be preferable, however, to revise the criteria of the by-law to increase the setback requirement for fences on flanking properties. This alternative minimizes the impacts of fences on streetscapes, while recognizing the exposure of corner properties and the demand for privacy fences within the City boulevard.
With respect to the notification process, this process could be eliminated and applications could be processed on an Aas of right@ basis. This recommendation is based on the small number of objections to applications that are received, and on the basis that the proposed changes to fences on flanking streets will better address the general concerns of privacy fences within the City boulevard.
The recommendations at the beginning of this report are designed to let the Toronto Community Council choose between these approaches.
Contact Name and Telephone Number:
Fani Lauzon, 392-7894
Director
