On July 29, 2020 City Council directed Administration, through motion MN20-11, to prepare an aggressive weed control enforcement plan for consideration at the August 26, 2020 meeting.
Accessibility
None with respect to this report.
Financial Impacts
Approval of the 2021 Communications Plan will require an additional $11,500 to the communication budget for the Bylaw Enforcement Branch in 2021. Approval of the 2021 Enforcement Plan would be managed with existing resources subject to any changes approved by City Council once the boulevard maintenance and Weed Control Act reports are considered in Q4 of 2020.
Policy/Strategic Impacts
The recommendations contained within this report support policies contained within Part A of the OCP with respect to:
Section D2 – Environment
Goal 2 - Urban Forest: Protect, promote and expand Regina’s urban forest and street tree canopy.
4.7 Maintain and continually expand a healthy and diverse urban tree canopy to improve air quality, increase carbon sequestration, reduce heat island effect and enhance the aesthetic character of the city.
The recommended enforcement plan recommends making better use of existing enforcement resources and processes in 2020. Should City Council wish to pursue a more aggressive approach to enforcement in 2021, it will require additional enforcement and communications resources which could be considered as part of the 2021 Budget.
There are two separate regimes that regulate weeds in Regina – the provincial regime established by The Weed Control Act which the City is required to enforce and the municipal regime voluntarily established by Council through The Regina Community Standards Bylaw 2016-2 under the authority of The Cities Act.
The Weed Control Act
The Weed Control Act is provincial legislation. The Act regulates municipal management of 71 species of weeds which are sorted into three categories - prohibited (27 species), noxious (37 species) and nuisance (7 species). Noxious and prohibited weeds are those specific species considered to be a threat to agriculture, human health, or the environment due to their invasive nature or toxic properties. Nuisance weeds are those species targeted because of their aggressive behaviour over native species. The Weed Control Act is not concerned with aesthetics, only with harm. The Act also contemplates that some weeds will be controlled and managed rather than eradicated.
The Weed Control Act requires every municipality in Saskatchewan, urban or rural, to appoint at least one Weed Inspector. The duties of the Weed Inspector may be exercised on both private and public land. Weed Inspectors require specialized knowledge in order to both identify regulated weeds and to develop an effective remediation plan.
The Cities Act and The Regina Community Standards Bylaw
The weed control requirements established by The Weed Control Act are limited to managing certain types of weeds which may threaten humans, livestock, crops or the environment. To address the concern of neighbourhood aesthetics (both in relation to yard non-maintenance and other conditions which affect amenity), Council adopted The Regina Community Standards (Bylaw 2016-2) under the authority of The Cities Act. The Regina Community Standards Bylaw regulates certain matters which may affect the amenity of a neighbourhood, including overgrown grass and vegetation. The vegetation standard established by the Bylaw is that grass and other vegetation (excepting intentionally planted shrubs, grasses, etc.) shall not exceed 15cm in height. This standard applies equally to private and public property. Responsibility for compliance with the standard lies with the property’s owner(s), which in the case of assets such as boulevards, alleys and parks fall to the appropriate City department.
In the event a privately owned property does not comply with the standards established by the Bylaw, a City Bylaw Enforcement Officer may use the enforcement tools provided by The Cities Act to remedy the contravention. The most effective remediation tool in The Cities Act is the ability for the City to enter private property and remedy the contravention of the Bylaw. This authority is subject to a number of legal requirements in the Act.
If the City seeks to recover the costs of doing the work, the City must follow the process established by sections 328 to 330 of The Cities Act. If following an inspection, a contravention of the Bylaw is found:
1. The Bylaw Enforcement Officer must issue a formal written Order to the property owner identifying the contravention, the required remediation and the date by which remediation must be completed;
2. The Order must advise the property owner that they have a right to appeal the Order to the Regina Appeal Board and that, they have 15 days in which to file any appeal;
3. If an appeal is filed, the Regina Appeal Board must hear the appeal and make a decision;
4. The owner has a further, albeit limited, right of appeal of the Appeal Board’s decision to the Court of Queen’s Bench and has 30 days from the decision of the Regina Appeal Board to commence any such appeal.
The City only becomes authorized to enter the land, conduct the work required by the Order and add the costs to the taxes after the 15 day appeal period has expired without an appeal being filed or, if an appeal is filed within the 15 day period, after the appeal has been finally resolved (including resolution of any further appeals brought in the Courts).
Alternately, The Cities Act authorizes the City to enact a provision in a bylaw that removes the right of appeal for the owner in order to expedite the work to remedy the contravention. However, in this scenario, removing the right to appeal for the owner also eliminates the ability of the City to recover the costs of the remediation work from the owner.
There are other enforcement tools available under The Cities Act, such as ticketing. Issuance of a ticket, however, only seeks to impose a monetary penalty on the owner for not complying with the Bylaw, it does not directly result in the work being performed. In the event the owner does not respond to the ticket by complying with the Bylaw, the City would be able to issue another ticket for the same offence provided more than 24 hours has passed since the last ticket. Any ticket issued by the City may be challenged by the owner.
If the owner does not voluntarily pay the ticket, the City may proceed with laying a charge for violating The Regina Community Standards Bylaw. The charge would be prosecuted in the City’s dedicated Bylaw Court. If the owner pleads guilty or is convicted after a trial, the Court would impose a fine and would have the option of issuing a compliance order. While there is a minimum fine the Court must impose, if an owner is convicted on a charge of contravening the overgrown grass and vegetation standard in the Bylaw ($150 for a first conviction), not all prosecutions result in conviction, not all fines imposed are collected and the resources that must be expended to prosecute exceed any fine amounts collected. As such prosecution is not a cost-recovery process.
Follow-up from CR18-123 – Landscape Regulations
The recommendations contained within the above report that was approved by City Council on December 17, 2018, saw guidelines put in place for landscaping of new one and two-unit dwellings as well as amendments to The Regina Community Standards Bylaw which broaden section 8 to include overgrown vegetation in addition to grass as well as a provision in Schedule A which required yards to be maintained to prevent soil erosion.
The operationalization of these amendments during the 2019 growing season was as follows:
· Bylaw Enforcement Officers (BEO) issued informal notices to any property found to be in violation, allowing for 14 days to comply with the request. If the BEO was able to make contact with the resident, they would verbally request compliance from the resident. After 14 days passed, the BEO would conduct a follow-up inspection.
· If the overgrown vegetation was cut, the case was closed and no further action was taken. If the follow-up inspection showed no compliance the BEO attempted to contact the resident to achieve voluntary compliance.
· If the BEO was unable to obtain voluntary compliance, an Order as well as a violation ticket for $100 was issued. The time for compliance specified in the Order was 15 days to align with the 15 day period in which the right to appeal could be exercised.
· After the 15 days had passed, the BEO would conduct another follow-up inspection to determine if the resident had complied with the Order. If compliance was achieved then the case would be closed, however if the violation persisted, the case would be forwarded for remedy. At the remedy stage, the overgrown vegetation would be cut by a third-party contractor and the costs applied to the tax roll of the property owner.
If the owner continued to not comply with the request of the Bylaw Enforcement Officer, the process provided above could take over 30 days to remedy a violation. During the 2019 overgrown grass and vegetation season, the ticketing process was used in a number of cases, however there was a very low voluntary payment rate.
Complaints under The Weed Control Act were handled by bylaw enforcement officers under the authority of The Regina Community Standards Bylaw. Appendix A shows the enforcement statistics for the 2019 overgrown grass and vegetation season.
2020 Overgrown Grass Season and COVID-19
With the increased case volume associated with overgrown grass and vegetation, the Administration began the process of hiring two casual Bylaw Enforcement Officers in March 2020. The intention was to hire one Bylaw Enforcement Officer with a horticulture or agriculture background to fulfil the role of the Weed Inspector and the obligations under The Weed Control Act in addition to assisting with the increased case volume for overgrown grass and vegetation. However, the impacts of the pandemic on City services and finances resulted in these positions not being filled. An existing Bylaw Enforcement Officer was appointed as the Weed Inspector and has been performing these duties as well as their regular enforcement duties for this season.
In addition to decreased staffing levels, enforcement in the City during the pandemic was limited to immediate public health and safety matters beginning the week of March 16, 2020 and did not begin to resume to pre-pandemic levels until the week of July 6, 2020. The pandemic also impacted the remedying of violations, including overgrown grass and vegetation as the decision was made to not place any undue financial hardships on residents during this time. As a result of this, only violations that posed an immediate risk to public health or safety were remedied as the costs for doing so are applied to the property owners tax roll. This meant that there were no overgrown grass remedies performed until enforcement levels started to increase.
As presence of overgrown grass on a property did not fit under the definition of public health and safety and therefore strict enforcement processes were not adopted, including proactive enforcement. Property owners were informed via an informal notice of the violation and then provided with 15 days to comply. If there was still no compliance after the 15 days, an Order was issued however there was no violation ticket issued. If further non-compliance continued, the address was added to the list of properties to be remedied which were to be addressed once normal enforcement levels resumed.
Following the resumption of regular enforcement levels the week of July 6, 2020, operational changes were made to the process used in 2019 in order to address the increased number of complaints and to speed up the remedying of violations. These changes were as follows:
· Informal notices issued to first time offenders only with 7 days allowed for compliance while Orders issued to repeat offenders.
· To address complaints regarding the length of time taken to remedy service requests, Bylaw Enforcement Officers stopped issuing informal notices and issued Orders for all violations of The Regina Community Standards Bylaw, for both first-time offender and repeat offenders.
· To further speed up the enforcement process, for the rest of the 2020 growing season, Orders will be issued manually in the field by Bylaw Enforcement Officers instead of through the enforcement software. While the current software allows for the entire enforcement process to be managed through one central system, it is not able to be used by Bylaw Enforcement Officers when they are working in the field which contributes to slower response times for all bylaw violations, particularly for simple violations such as overgrown grass.
Appendix A shows the enforcement statistics for the 2020 overgrown grass and vegetation season up to July 27, 2020.
Enforcement Software
Regardless of whether a complaint is received via a service request or a case is started proactively by the Bylaw Enforcement Officer in the field, the current software extends the time is takes to deal with any violation. The software is not configured for use in the field and requires the Bylaw Enforcement Officer to enter their inspection findings either at the end of their workday when they return to the office or at the beginning of their shift the following day. Since the officers are not equipped with portable printers, as part of their office work, Bylaw Enforcement Officers will submit a request to administrative staff to generate any necessary notices or orders for their case files. The enforcement documents such as Orders are then generated while the Bylaw Enforcement Officer is in the field dealing with other open case files. At the end of this business day, the Orders requested by the Bylaw Enforcement Officer are then available for review and signing with the Orders being posted and mailed the following day. The inability for officers to access their case files or print orders in the field means that a simple overgrown grass case takes a minimum of four business days to issue an Order thus resulting in additional time that a violation may exist in a neighbourhood before it can be remedied.
While the current software has drawbacks in terms of the time it takes to deal with bylaw violations, it does offer advantages to the previous manual environment:
· allows for all cases to be centrally managed with documents and photos stored in one location
· integration with the service request module which generates 80% of the bylaw enforcement work
· standardized reporting of enforcement activity such as open cases, number of Orders issued, etc.
· read-only access to other internal departments
· violation history for addresses for easier identification of repeat offenders.
The replacement of the current software with a solution that is accessible to the officers in the field in real-time and allows for the issuance of Orders for straight forward violations of overgrown grass would address the length of time that it currently takes to deal with bylaw violations while still realizing the benefits of a central enforcement system.
Maintenance of Boulevards
Regina does not have a bylaw that requires residents to maintain the boulevards adjacent to their property. While past communications have encouraged residents to be responsible for these portions of the right of way, if someone chooses not to maintain these lands there is no way to legally compel an owner to do the work. In situations where a resident does not cut the boulevard, maintenance responsibility then falls to City crews.
There are a number of municipalities with bylaws requiring residents to maintain the adjacent public property, however, more time is required to properly research and prepare recommendations for consideration by Council. This work could be completed by the end of Q4, 2020 for possible implementation in 2021.
Recommended Enforcement Plan
As The Regina Community Standards Bylaw and The Weed Control Act are separate regimes with distinct areas of focus, the options and issues must be presented separately as they are not interchangeable.
Regina Community Standards Bylaw
The recommended option takes into account all of the enforcement tools available under The Cities Act with a focus on remedying the violation as quickly as possible, minimizing the cost to the City, effectively using resources and deterring future instances of non-compliance. The recommended options are for 2021 growing season and beyond. For the remainder of the 2020 season, additional resources have been added and processes adjusted to shorten the time it takes to address complaints regarding overgrown grass and vegetation.
In the plan detailed below, a repeat violation would occur if the violation address and owner had not changed since the previous violation for the same offence.
The following table describes in chronological order the enforcement plan process steps:
Enforcement Tool | Comment |
Informal Notice (Note: may be issued verbally or in writing; informal notices have no associated legal requirements) | Informal notices issued for 48 hours in situations where it is an initial violation |
Order to Comply | Order to Comply issued for all repeat violations and when residents fail to comply with an Informal Notice. The Cities Act gives the owner 15 days to comply (continued alignment with statutory appeal period). |
Right to Appeal Order | Property owners have the right to appeal the Order to the Regina Appeal Board within 15 days of the Order being served. |
Notice of Violation Ticket | At the time an Order is issued, a violation ticket is also issued to provide additional incentive to comply (avoidance of possible prosecution and additional financial penalty). |
Remedy of Violation | If the property owner appeals the Order to the Regina Appeal Board, the Bylaw Enforcement Branch has no authority to remedy the violation unless all appeal rights have been exhausted and the end result of the appeal process is confirmation of the Order. If the property owner does not appeal the Order, the City may remedy the violation on the owner’s behalf 16 days after the Order is served and add the costs to the taxes. |
Prosecution | Any non-payment of violation tickets may result in requests for prosecution being prepared by the Bylaw Enforcement Branch and submitted to the Bylaw Prosecutor to proceed to Bylaw Court. |
Amendments to The Cities Act | No amendments required as Act provides a right to appeal an Order. The City could request an amendment to The Cities Act to reduce the appeal periods for orders for overgrown grass and vegetation. |
Regina Appeals Board (RAB) | The RAB only meets once a month. As no action can be taken by the City on an Order until the appeal process is exhausted or concluded, the RAB meeting schedule may need to be reviewed to increase the number of meetings during enforcement season to assist in expediting the process. |
Staffing Levels | Approval of the 2021 Enforcement Plan would be managed with existing resources subject to any changes approved by City Council once the boulevard maintenance and Weed Control Act reports are considered in Q4 of 2020. |
Pros
· An opportunity is provided for first time offenders to voluntarily comply with the request of a Bylaw Enforcement Officer without an Order or a violation ticket being issued, while stricter timeframes and financial penalties are applied to repeat offenders.
· The cost to remedy a violation can be applied to the property tax account of the owner.
Cons
· The appeal process inherently takes time to conclude during which time the status quo (contravention of the bylaw) is unlikely to be changed by the owner and cannot be changed by the City.
· While minimum fines are established in the bylaw, there is no guarantee that prosecution will be successful or that the fine imposed will be collected. Further, even when prosecutions are successful and the fines imposed are collected, the resources expended to prosecute are never cost-recovered.
The Weed Control Act
2020 Growing Season
The recommended weed enforcement plan for the City in 2020 is an interim solution to ensure compliance with the Act until corporate responsibility for the ongoing program is determined. Given the threat posed by prohibited and noxious weeds, this was to be the focus of the Weed Inspector. While nuisance weeds, such as foxtail and dandelions, are known to be present in a number of new neighbourhoods, the intent was to deal with these and other overgrown vegetation under The Regina Community Standards Bylaw.
The Weed Inspector should have specialized knowledge to identify whether a weed is one of the species regulated by the Act and what remediation measure may be necessary. This is not currently a core competency for a Bylaw Enforcement Officer however, the appointed Weed Inspector is working collaboratively with subject matter experts in Pest Management.
For the remainder of the 2020 growing season, it is recommended that enforcement of The Weed Control Act prioritize prohibited and noxious weeds along rail lines, highway corridors, industrial lands and large tracts of undeveloped or agricultural land.
2021 Growing Season
While the primary role of the Weed Inspector is to monitor the municipality for prohibited, noxious and nuisance weeds, as well as responding to complaints regarding the same, they are also responsible for coordinating the overall invasive weed management plan. The expertise to fulfil such a role and provide these services is not part of the core competencies for a Bylaw Enforcement Officer.
The Weed Control Act applies to private and public land. Given that various departments within the City are responsible for land where prohibited and noxious weeds are present, the Administration is recommending that a report be brought back to City Council outlining how the City will manage the obligations under The Weed Control Act, including details of an invasive weed management plan, delegated authority for management of the program as well as the associated costs, impacts and options.
In preparation for the 2021 overgrown grass and vegetation season, the Communications and Bylaw Enforcement Branch will work together to execute a communication plan that focuses on educating residents on all aspects of yard maintenance and the specific regulations contained within The Regina Community Standards Bylaw. The communications plan will begin prior to the start of the growing season and will continue throughout the season. The growing season begins in April/May and ends in September/October.
The communication plan for the 2021 growing season will focus on improving the content on Regina.ca. The following content will be updated and/or published no later than March 2021:
· Distinction between The Regina Community Standards Bylaw and The Weed Control Act
· Requirements for overgrown vegetation and grass under the bylaw as well as examples of acceptable vegetation and vegetation that would be considered a violation
· Link to The Weed Control Act
· Information for residents on how to manage their yards and options for landscaping
· Enforcement and complaint process
In addition to the topics identified above for Regina.ca, the additional communications tactics that will be used to inform residents of their yard maintenance obligations and the consequences for failing to comply will include:
· Targeted social media ads à (Approximate cost: $4,000)
· Brochures à (Approximate cost: $3,500 which includes design, language translation and printing)
· Water bill insert à (Approximate cost: $1,000 for design, printing and mailing)
· Community education sessions à (Approximate cost: $3000)
At the July 29, 2020 City Council meeting, Council considered MN20-11 Enforcement Plan – Noxious Weed Control and directed Administration to prepare an aggressive weed control enforcement plan for consideration at the August 26, 2020 meeting.
Respectfully Submitted, Respectfully Submitted,
Andrea McNeil-Wilson, Manager, Bylaw Enforcement 8/20/2020 Byron Werry, City Solicitor 8/20/2020
Prepared by: Andrea McNeil-Wilson, Manager, Bylaw Enforcement and Byron Werry, City Solicitor