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HomeMy WebLinkAbout2017-21 Unauthorized Use of County Property COUNTY OF NEWELL IN THE PROVINCE OF ALBERTA BYLAW NO. 2017-21 A BYLAW OF THE COUNTY OF NEWELL IN THE PROVINCE OF ALBERTA, FOR THE PURPOSES OF REGULATING UNAUTHORIZED USE OF PROPERTY. WHEREAS pursuant to the Municipal Government Act, RSA 2000 c M-26, as amended or repealed and replaced from time to time (hereinafter referred to"the MGA"), a Council of a Municipality may pass bylaws for municipal purposes respecting the safety, health and welfare of people and the protection of people and property; � AND WHEREAS pursuant to the MGA, a Council may pass bylaws for municipal purposes respecting people, activities and things in, on or near a public place or place that is open to the public; AND WHEREAS pursuant to the MGA, a Council may pass bylaws for municipal purposes respecting the enforcement of bylaws made under the MGA or any other enactment including any or all of the matters listed therein; AND WHEREAS pursuant to the MGA, a Municipality may grant rights, exclusive or otherwise, with respect to its land, including land under the direction, control and management of the Municipality; NOW THEREFORE the Council of the County of Newell, pursuant to the authority conferred upon it by the MGA and the laws of the Province of Alberta, enacts as follows: SECTION 1 —SHORT NOTICE 1.1 This Bylaw may be cited as the County of Newell "Unauthorized Use of County Property Bylaw". SECTION 2 -PURPOSE 2.1 The purpose of this Bylaw is to, among other things, regulate the Unauthorized Use of County Property, to promote the safe, enjoyable and reasonable use of such land, and to protect and conserve natural ecosystems for the benefit of all citizens and the County. SECTION 3— DEFINITIONS 3.1 "MGA" means the Municipal Government Act, RSA 2000, c M-26 and its regulations, as amended or repealed and replaced from time to time. �� ' 1��� Bylaw 2017-21 3.2 "Bylaw Enforcement Officer" means a Bylaw Enforcement Officer appointed by the County pursuant to the MGA for the purpose of enforcing County bylaws. 3.3 "CAO" means the Chief Administrative Officer of the County or his or her delegate. 3.4 "Council" means the council of the County. 3.5 "County" means the County of Newell. 3.6 "County Property" means: a. Any land/Property developed or used by the County as public park, sports field, playground, and recreational area; b. Reserve land pursuant to the County of Newell Land Use[ylaw No. 1892-1� as amended or repealed and replaced from time to time, and/or the MGA; c. Municipal rights-of-way including highways, roads, roadways, boulevards, sidewalks, walkways, road allowances, streets, lanes, road diversions, bridges, titled rights-of-way, undeveloped road rights-of-way, public space, water bodies, public utility lots, and storm water management facilities and dry ponds; d. Any land/Property owned and or titled to the County, including those lands which have been developed with a building, structure or parking �ot; and e. Any land/Property under the direction, control and management of the County. 3.7 "Order" means a written Order issued under this Bylaw in accordance with the MGA. 3.8 "Person" includes one or more individuals, partnerships, bodies corporate, unincorporated organizations, governments, government agencies, trustees, executors, administrators or other legal representatives, other than the County or its legal representatives. 3.9 "Private Property" means land owned by a person, group, corporation or other entity, not a governmental body. 3.10 "Property" means any lands, buildings, structures or premises, or any personal property located thereupon, within the municipal boundaries of the County. 3.11 "Provincial Offences Procedures Act", means the Provincial Offenses Procedures Act, RSA 2000, c P-34 and its regulations, as amended or repealed and replaced from time to time. 2 Bylaw 2017-21 3.12 "Unauthorized Use" means use of County Property, through the construction, storing, landscaping, erecting, placing or removal of anything on, in, under or over any County Property, without the written approval of the County. Examples of Unauthorized Use include but are not limited to: a. The placement of a driveway, parking area, utilities, telecommunication facilities, walkway, patio, deck, retaining wall, fence, shed, residence, steps, firepit, firewood, composter, vehicles or other structures and chattels; b. Landscaping, including the addition and/or removal of vegetation, or any use that interferes with vegetation growth; c. Drainage facilities such as pipes, catch basins, ditches, sumps, swales, on-site sewage disposal, detention ponds, or ancillary structures; d. Irrigating, cultivating, haying or livestock grazing; e. Building materials, stockpiles, debris, refuse or other chattels; and f. Digging, cutting, excavating or filling. 3.13 "Violation Tag" means a tag or similar document issued by the County pursuant to the MGA. 3.14 "Violation Ticket" means a ticket issued pursuant to Part 2 of the Provincial Offences Procedure Act. SECTION 4— PROHIBITION 4.1 No Person shall create or allow an Unauthorized Use of County Property or any other Property under the direction, control or management of the County. SECTION 5— ENFORCEMENT 5.1 For the purposes of this Bylaw and the applicable sections of the MGA, a Bylaw Enforcement Officer is hereby deemed a designated officer of the County; 5.2 A Bylaw Enforcement Officer may, for the purpose of ensuring that the provisions of this Bylaw are being complied with, enter in or upon any Property in accordance with Section 542 of the MGA to carry out an inspection, remedy, enforcement or other action required or authorized by this Bylaw, the MGA or other statute. 3 Bylaw 2017-21 5.3 When exercising their authority to enter onto Private Property for inspection or enforcement under Section 5.2, a Bylaw Enforcement Officer shaii provide the owner or occupier of the Private Property with reasonable notice as required by the MGA. 5.4 Any Person who contravenes this Bylaw may be issued an Order by a Bylaw Enforcement Officer to remedy the contravention in any manner deemed necessary in the circumstances pursuant to Section 545 of the MGA 5.5 The Order issued by the Bylaw Enforcement Officer under Section 5.4 shall: a. Identify the Unauthorized Use; b. Direct the Person to take any action or measures necessary to remedy the Unauthorized Use including, but not limited to, the restoration of the County Property to a natural state; and c. State the time within which the Person must comply with the Order; d. State that if the Person does not comply with the Order in the specified time, the County may take the actions or measures at the expense of the Person; and e. Shall notify the Owner of the right to apply by written notice for a review of the Order pursuant to Section 547 of the MGA. 5.6 An Order under this Bylaw shall be served on a Person, and is deemed to have been served on the Person when the Order has been: a. Personally delivered to the Person; b. Left for the Person at his residence with a person on the premises who appears to be at least eighteen (18) years of age; c. Sent via regular mail addressed to the last known postal address of the Person; or d. Posted in a conspicuous place on the Property referred to in the Order, when the Bylaw Enforcement Officer has reason to believe: i. That the Person to whom the Order is addressed is evading service; or ii. No other means of service is available. 5.7 If an Order is sent via regular mail as referred to in Section 5.6(c), then it is deemed to have been received by the Person: 4 Bylaw 2017-21 a. Seven (7) days from the date of mailing if the Order is mailed in Alberta to an address in Alberta; or b. Subject to Section 5.7(a) above, 14 days from the date of mailing if the Order is mailed in Canada to an address in Canada. 5.8 Pursuant to Section 547 of the MGA, a Person who receives an Order may request a review of the Order by written notice within fourteen (14) days after the date the Order is received. Upon reviewing the Order, Council may confirm, vary, substitute or cancet the Order. 5.9 A Person affected by the decision of the Council under Section 5.8 may, pursuant to and in accordance with the time limits set out into Section 548 of the MGA, appeal to the Court of Queen's Bench if: a. The procedure required to be followed by the MGA and/or this Bylaw was not followed; or b. The decision was patently unreasonable. 5.10 The application for appeal must state the reasons for appeal. 5.11 The Court may: a. Confirm the decision; or b. Declare the decision invalid and send the matter back to Council for directions. 5.12 Upon an Order being issued under this Bylaw, and expiry of the applicable appeal/review period with respect to the Order, the County may take whatever action or measures are necessary to remedy an Unauthorized Use and the expenses and/or costs of such actions, including legal fees on a solicitor-client full indemnity basis, shall become an amount owing to the County by the Person and may be added to the Person's tax roll and collected pursuant to the MGA including Section 553 and Section 554.1. 5.13 The expenses and costs of any action or measures incurred and/or taken by the County in the enforcement of this Bylaw, including legal fees on a solicitor-client full indemnity basis, are an amount owing to the County by the Person in contravention of the Bylaw and: a. May be collected as a civil debt; and 5 Bylaw 2017-21 b. May be added to the Person's tax roll and collected pursuant to the MGA including Section 553 and Section 554.1. 5.14 If the County sells ali or part of a building, structure or improvement that has been removed under this Bylaw, the proceeds of the sale must be used to pay the expenses and costs of the removal and any excess proceeds must be paid to the Person if entitled to them. 5.15 The remedies and actions available to the County under this Bylaw are in addition to any other remedies available to the County at law or under the MGA, including an injunction under Section 554 of the MGA. SECTION 6—OFFENCES AND PENALTIES 6.1 Any Person who contravenes any provision of this Bylaw is guilty of an offence and is liable on conviction to pay a penalty as set out on Schedule"A" herein. SECTION 7—VIOLATION TAGS 7.1 In addition to issuing an Order under this Bylaw, a Bylaw Enforcement Officer is hereby authorized and empowered to issue a Violation Tag to any Person who the Bylaw Enforcement Officer has reasonable and probable grounds to believe has contravened any provision of this Bylaw. 7.2 A Violation Tag shall be served upon such a Person: a. In the case of a corporation, by serving the Violation Tag personally or by registered mail upon the manager, secretary or other executive officer of the corporation, or another Person apparently in charge of the corporation's branch; or b. In the case of an individual, personally, by registered mail or by leaving it with a person at the Person's residence who has the appearances of being at least eighteen (18) years of age. 7.3 The Violation Tag shall be in a form approved by the CAO and shall state: a. The name of the Person; b. A description of the Property or County Property; c. The offence; 6 Bylaw 2017-21 d. The appropriate penalty for the offence as specified in Schedule "A" of this Bylaw; e. That the penalty shall be paid within thirty (30) days of the issuance of the Violation Tag; and f. Any other information as may be required by the CAO. 7.4 Where a contravention of this Bylaw is of a continuing nature, a contravention constitutes a separate offense in respect to each day or part of a day on which it continues. 7.5 Where a Violation Tag is issued pursuant to this Bylaw, the Person to who a Violation Tag is issued may, in lieu of being prosecuted for the offence, pay to the County treasurer the penalty specified on the Violation Tag. SECTION 8—VIOLATION TICKET 8.1 In those cases where a Violation Tag has been issued and the penalties specified on the Violation Tag have not been paid within the prescribed time, a Bylaw Enforcement Officer is hereby authorized and empowered to issue a Violation Ticket pursuant to Part 2 of the Provincial Offences Procedure Act. 8.2 Additionally, a Bylaw Enforcement Officer is hereby authorized and empowered to immediately issue a Violation Ticket to any person who the Bylaw Enforcement Officer has reasonable and probable grounds to believe has contravened any provision of this Bylaw. SECTION 9 —GENERAL 9.1 Should any provision of this Bylaw be invalid, then such invalid provision shall be severed, and the remaining Bylaw shall be maintained. 9.2 Evidence that a person is an owner of Property/land contiguous to County Property on which there is an Unauthorized Use is prima facie proof that the owner of the lands is responsible for the Unauthorized Use. 9.3 The County is not required to post signage on County Property prohibiting Unauthorized Use. 9.4 The County is not liable for any damages or costs suffered by persons in relation to enforcing this Bylaw and remedying Unauthorized Use. 9.5 The County is not liable for not taking actions or measures to enforce this Bylaw. 7 Bylaw 2017-21 9.6 This Bylaw shall come into effect once it has received the required readings and has been signed. August 5, 2021 MOVED BY COUNCILLOR BRIAN DE JONG that Bylaw 2017-21 receive FIRST reading. MOTION CARRIED September 9, 2021 MOVED BY COUNCILLOR TRACY FYFE that Bylaw 2017-21 receive � SECOND reading. MOTION CARRIED September 9, 2021 MOVED BY COUNCILLOR HUBY KALLEN that Bylaw 2017-21 receive THIRD and FINAL reading. MOTION CARRIED � �—r ��—c� - �—'�_P �e��l� � Reeve— Molly Dougfass Chief Administrative Officer— Matt Fenske 8 Bylaw 2017-21 SCHEDULE "A" FINES $1,000— First Offence $2,500—Second Offence $5,000—Third and any subsequent Offence 9