Tuesday, March 20, 2012

Enforcement or Trespassing?

There was a little controversy last week after media reported on the “Power of Entry” bylaw proposed during our Committee meeting on March 5, 2012.

You see, Staff brought forward a recommendation that the Town develop a bylaw to make it easier for enforcement staff to determine compliance with various Town bylaws like the accessible parking, animal control, sign, fence, clean yard, noise, and pool bylaws.

It was recommended that for the enforcement of these specific instances and for those specific bylaws, that Town staff be authorized to enter onto private property. It was intended that in some cases the need to provide notice to a property owner would be waived, so that Town staff could investigate and determine if a bylaw infraction occurred.

Amendments to the Ontario Municipal Act in 2006 granted Towns and Cities broader enforcement abilities – such as the authority to set fines for bylaw offences, and an administrative power of entry to determine bylaw compliance. (Please see sections 435 to 438 in the Municipal Act.)

Let’s use a specific example to explain the reason for the staff recommendation. If the bylaw does not specifically use the “new” Municipal Act rules, the Town bylaw enforcement officer might not be able to enforce the accessible parking rules in front of a school, church, the plaza, or other large retail store because they are on private property.

Now, I use this example because those property owners do want the Town to enforce these parking provisions – because it is a service to patrons / the community.

However, several Councillors expressed concern about the proposed bylaw.

Why? Because, what might work for the Accessible Parking bylaw, might not work for the Sign bylaw. Can’t staff wait 24 or 48 hours to give time for a property owner to grant entry so that Staff can inspect or measure a sign?

But, what about the case of the animal control bylaw? Could there be a situation when public safety might be at risk – where a pitbull is loose in an unfenced yard – and Town representatives need authority to enter private property?

Given the feedback I have received and the discussion we had during Committee meeting, I wonder whether there needs to be specific rules for specific situations – instead of the more generic bylaw that was recommended by staff.

I am thankful for the feedback and I am glad that Councillors approved my motion to send the issue back to staff for more work.

April 1, 2012 Update:
There has again been much discussion about this particular issue. Unfortunately, some of it has been erroneous.

The facts are:
- On March 5, staff proposed that Council consider a "power of entry" bylaw that was intended to correct certain deficiencies in and/or streamline the enforcement of some of the Town's bylaws;
- Council received and reviewed staff's report and recommendation and had a discussion;
- During the discussion Councillors asked several questions and informed one another about misgivings that we had with the suggested bylaw. Councillors outlined many of the same concerns that Pelham residents have recently expressed in letters to the editor;
- After a discussion, Council unanimously rejected the proposal by voting to return it to staff.
So, in fact, there is no bylaw regarding power of entry on our agenda at this time.

Based on my discussions with staff and the feedback received from people, I am confident that staff will propose a much different approach to bylaw enforcement.

I hope this helps with your understanding of the issue.

April 4, 2012 Update:
Some media have reported on this issue recently. For example, please see:

"Pelham enforcement officers still barred from private property," Welland Tribune.

"Proposed big brother bylaw angers Pelham residents," Toronto Star.

"Pelham bylaw met with outcry," Niagara This Week.