Category Archives: Bylaw Updates

Free Gardens, Leash Lawns

Dear Members of Toronto Council,

The proposal to waste more tax dollars to communicate to the public the rationale for charging a fee to individuals forced into defending private gardens, simply exemplifies the need for Council to insist on the re-examination of the original Council request – which was to find a way to preempt the unnecessary and unwarranted issuance of violation notices.

The $200 fee, while an outrageous violation of process, was never the primary issue.  The initial intrusion into personal choices was and remains the crux.   Unless there is clear evidence of health and safety concerns, there is no need for municipal staff to intrude onto private property.  Instead of staying within their mandated role of investigating safety concerns, the Licensing & Standards (MLS) Department have become self appointed garden aesthetics police – despite their admitted lack of qualifications for that role – wasting an enormous amount of staff time and City resources, unduly inflating the MLS  budget, and forcing residents of Toronto to take the City to court in order to defend their Charter-protected rights to work toward restoring the earth starting in their own yards.

Receiving a notice of violation is a tremendous cause of distress in and of itself.  In some cases, subject gardens remain under threat for over a year or are never notified that the case against them has been dismissed at the staff level.    In one notable case, an elderly woman having volunteered in City-sponsored restoration activities for decades and having purchased her garden plants from the City itself through the High Park native plant sales; received a Long Grass and Weeds complaint in February while the garden was dormant.  Please note, that as a dedicated native plant enthusiast, she had no lawn and therefore no turf grass tall or otherwise.  There was never any suggestion that she had any prohibited or hazardous plants, yet she was still put through months of anxiety as her tiny yards were inspected multiple times by staff of both the MLS and Parks Departments, before the issue was finally placed before Community Council for appeal — only after she had been forced to cut foliage which had dared to dangle over the edge of the sidewalk.   In most areas such vegetative dalliances would be considered charming, but in Toronto the possibility of pedestrians brushing against a flower is apparently a public hazard.

A “natural” garden of 200+ species of native plants cut to the ground without notice at the direction of Toronto’s MLS Department. Despite an ongoing lawsuit relating to that action, and the MLS department’s knowledge that it lacks turf and prohibited species, this garden is facing charges for a third time.

There are hundreds of additional instances where residents have been illegally forced by staff into making alterations to their private gardens based simply on staff preferences rather than any regulated defects or safety concerns. There are many others where staff has recommended against approval of a garden – despite it not having violated the bylaw – forcing the resident to proceed to Community Council rather than give up their right to choose how to manage their private property.  These champions of the Canadian Charter of Rights and Freedoms and of Toronto’s ecological health, will now be hit with a $200 fine upfront…which is in no way mitigated by the chance that an untrained Community Council will recognize, in the face of staff rebuttal, the violation of the resident’s rights and refund that fine.

In July 2012, Council quite rightly requested a method to preempt the issuance of such violation notices.  Staff responded with a supercilious proposal that entirely ignored that request and simply removed the issue from the view of the public and Council while increasing their control over private yards – again without any violations being proven.  The unnecessary and unwarranted stress on individual residents receiving these threatening notices remains.   The damage to the conservation garden movement remains.   The damage to City coffers increases.

Please re-open this issue.  Regardless of your personal preferences in gardening styles, recognize that the City’s rights over private property is limited to health and safety concerns and request that staff actions be limited to that area.  This will save Toronto multiple thousands of dollars in direct staff re-deployment and many thousands more indirectly as additional gardens are no longer discouraged from  absorbing storm water in situ, eliminating the use of municipally-treated water, reducing pollution, improving the environment, public health, and joining in all the other myriad benefits that radiate from creating more vibrant, sustainable, communities.

Wasted Chances

Neighbours do not have a right to impose their preferences on how others design their yards…especially when the choices made by those others are far more beneficial to the environment than lawn.  Nor should City forces be used as hired bullies to enforce conformity to out-dated standards.  Allow yards to become different, more creative, and yes, sometimes perhaps a little messy…it is far preferable than adhering to the status quo of miles upon kilometres of useless, wasteful, environmentally and socially harmful lawn.

Edible Arrangements – http://www.facebook.com/occupygardenstoronto

There are thousands of acres of private yards in Toronto that could, with a little encouragement, be put to productive use.  This was recognized in the Urban Agriculture Report recently received by Council.  This was recognized by Ontario Courts which examined cases against Toronto gardens under the light of the Canadian Charter of Rights and Freedoms.  This is recognized in Toronto’s Green Plan, in its Wet Weather Flow Master Plan, in the TRCA Healthy Yards program and countless other City initiatives.  When will the MLS department and Council recognize it?

A garden neglected by its owner and by MLS staff who failed to investigate it.

If staff cannot be trained to recognize the difference between neglected and “natural” and cannot be made to understand basic civil rights, their powers over private yards should be removed not increased.

 

 

Sincerely,

All those dedicated to restoring the health of planet earth

Natural Garden Exemption Revision heading to Toronto Council November 29, 2012

A staff report and background file (which contains the many of the more contentious aspects that are not explicated in the staff report) concerning “natural gardens” currently awaiting Council review is alarming and unconstitutional.  Your help is needed to stop this draconian proposal.  Please contact your Councillor and ask your friends and social media contacts to do the same, send additional messages of protest to clerk@toronto.ca  or register to speak before Council about this important issue.

There remain only a few items on the agenda, so LS17.2 should be early in the day.  Session begins 9:30 am in Toronto Council Chambers.

The details are below, a more basic outline of why this report is so wrong and suggested phrases to use in contacting Council and an alternative proposal are in separate posts

In recent years, a number of residents, faced with Long Grass & Weed (bylaw 489–click on the title “Chapter 489” on the linked page to download the pdf file) have chosen to file claims for exemption from the bylaw as “natural gardens”.  Very few, if indeed any, of these gardens actually contained the tall grass or noxious weeds prohibited by the bylaw — they simply did not fit within the aesthetic preferences of the City’s inspectors.  More recently, this department has added its own online re-interpretation of the actual bylaw to support specious charges…changing “maintained” to “manicured”, allowing the inclusion of unspecified and non-prohibited plants as “weeds” in staff reports,  and asking that those applying for exemption obtain the support of their neighbours in order to grow a “natural garden” on their own property.  No other style of garden is expected to hold to the same standards.

In response to the upsurge in exemption requests, several Councillors requested additional information on dealing with them from staff.
City Council on July 11, 12 and 13, 2012, adopted the following:
Request the Executive Director, Municipal Licensing and Standards, to review Chapter 489, Grass and Weeds, Section 489 E and submit a report to the Licensing and Standards Committee on any recommended changes to the By-law and exemption process to pre-empt the issuance of unnecessary and unwarranted Notices of Violation related to Natural Gardens.

In response to this request, the MLS Department submitted a report to the November 16, 2012 meeting of the Licensing & Standards Committee.  This report did not address decreasing the issuance of notices, but rather proposed methods to:
– remove the process from Council and the public eye,
– effectively impose a $200 fine,
– increase power over the private yards of those residents that continue to insist that their gardens are not in violation of the bylaw
– impose other penalties on those not surrendering to the unlawful demands of the inspector.
The Committee did remove one contentious proposal, that of applying costs of ongoing inspections to gardens that been granted exemptions —unnecessary and unwarranted inspections — to the homeowner.

This proposal in no way seeks to “to pre-empt the issuance of unnecessary and unwarranted Notices of Violation related to Natural Gardens.” but rather reduces the visibility of their continued issuance from the view of Council and the general public and places increased power in the hands of the Department that has repeatedly proven that it cannot be trusted with this responsibility.
The enormous distress caused to the residents receiving these intrusive notices is exacerbated not relieved.

This Department admitted at Committee that its staff do not possess the knowledge to adequately assess what constitutes a natural garden…not even to the extent of recognizing unmown turf grasses and the short list of noxious weeds prohibited under the official bylaw, so notices are sent by registered mail without any indication that the property is in violation.

 Concerning the Staff Report , Background File,  Appendices and Attachments:

  1. “Natural Gardens” are grouped with those violating “health, safety, and nuisance” standards…indicating that the Department is predisposed against “natural gardens”.
  2. On receiving a complaint, the address of the property and the alleged infractions are publicly listed on the City’s website…contravening privacy legislation and without any proof that an infraction has occurred.
  3. Homeowners who do not capitulate to the the initial letter (which threatens to cut the garden in its entirety and add costs for inspection services, without explicating what faults have been alleged), are eligible to meet with the City’s sole horticulturist that is assigned to visit gardens.  The horticulturalist will then issue a report with her assessment of the property.  The proposal places interpretation of the horticulturalists report in the hands of the very department that has admitted it is not qualified to interpret such assessments, by delegating authority to grant exemptions to the Executive Director of Licensing and Standards…avoiding any public hearing.
  4. Residents still insisting that theirs is a legal garden must now pay a $200 fee to lodge an appeal to their Community Council.  (It is worth noting that most such appeals thus far in 2012 have been granted by Community Council…and that no staff reports, including those for which staff have recommended against approval,  have alleged any serious infraction of bylaw 489.   The success of the appeal process, in 2012 and in prior years, has depended more upon the aesthetic preferences of individual Councillors and staff than on the presence of actual health or safety infractions).
    1. Section (5) of Appendix A places further restrictions on “natural gardens” that are not included in the by law and which are not applied to any other style of garden; including authorizing staff to specify:
    • the location of the garden within the property,
    • the maintenance standards to be adhered to by the resident,and
    • “any other conditions respecting health, safety and nuisance as the Executive Director considers advisable”.
  5. Should the resident elect to appeal Staff’s decision, notice to all properties within 100 metres of the home and “any other concerned area residents” will be issued…further invading the privacy of the resident and adding unnecessary costs to the process, which the City intends to pass on to the resident.
  6. “failure to comply or appeal the decision will result in escalated enforcement including City remedial action and all related costs will be applied to the tax roll for subject premises”…all without any proof that any regulated infractions have occurred.
  7. Appendix A curtails the actual wording of the bylaw to read “defines “grass and weeds” as all noxious weeds and local weeds designated under the Weed Control Act, and other vegetation growth”.  City lawyers have concurred that they interpret the bylaw as applying ANY plants, including trees and shrubs, exceeding an 8 inch height solely at the discretion of the inspector.  This is clearly not the intent of the bylaw.
  8. The report continues to require the resident to prove that absolutely no weeds are present (as little as a single stalk of a non-regulated “weed” can appear on a staff list of “weeds on the property”), rather than placing the onus on the complainant or staff to prove that the bylaw has been violated.  Most reports contain lists of plants that are not regulated, simply those that the horticulturist deems ‘undesirable’.
  9. The background file contends that the role of the City horticulturist is not to identify prohibited weeds and tall turf grass but to “assist the public in beautifying their yards based on a set of criteria”.  It is not the role of municipal staff to determine what is beautiful.
  10. Report attachments offer links to City sponsored publications that promote the use of many harmful invasive plants and few native species.
  11. Appendix A of the Background files further states “Council has authorized regulations that will facilitate natural gardens contributing positively to the quality of Toronto’s appearance and its visual character to enhance the image and attractiveness of Toronto…”, re-iterating the department’s illegal focus on aesthetic interpretations being used to regulate gardens.

Information NOT included in the Staff Report:

  1. The City only has the power to regulate health and safety aspects of private property.  eg. It may impose preset height restrictions where vegetation may impede traffic sight lines.
  2. Ontario Courts have already ruled twice that aesthetic considerations are vague, subjective, and that garden design is a protected form of expression under the Canadian Charter of Rights and Freedoms (Section 2B).  It is also protected under Freedom of Conscious, although that claim has not yet been ruled on.  The Charter takes precedence over Municipal by laws.
  3. “natural” gardens are specifically exempted under the bylaw and should not need to go through an appeals process, which becomes a circular argument stating that all that is required to be exempt from prohibitions against tall grass and weeds is that they not harbour tall grass or noxious weeds.
  4. Many more residents than the “10” listed in the staff report (there are 14 on record as of October 10, 2012) receive violation notices, some waiting for months after receiving the notice which threatens to cut their garden, to learn whether or not their gardens remain in jeopardy.  The horticulturist reviewing these gardens, mentioned having 26 on her current list.
  5. The Ontario Weed Act, on which the by law relies, only allows actual noxious weeds, not surrounding vegetation, to be cut…and only where these weeds may impact agricultural or horticultural concerns.

The Department of Licensing and Standards has a long history of bullying behaviour, of mismanaging complaints concerning private gardens, and of wasting funds including repeated intrusions onto private property that are not health or safety hazards and the unnecessary issuance of notices sent by registered mail.  It has admitted it does not possess the necessary expertise to assess private gardens.  Still it persists in attempts to increase its hold on this inspection process…possibly in fear of losing a large portion of its budget should these unconstitutional intrusions onto private property be curtailed as Council requested.

This Department has clearly demonstrated that its motivation is to not to protect the health, safety and well being of the residents of Toronto, but its departmental budget and authority.

Let’s save Toronto money, improve the environment, the health of Toronto communities, and obey the Canadian Constitution by removing the opportunity to harass ecological gardeners from the auspices of the Licensing and Standards Department.

A “Natural Garden” of “Long Grass and Weeds”?  This native plant garden has been charged three times under by law 489…despite it hosting endangered species and having no turf grass and no noxious weeds.   The MLS Department is well aware of the owners restoration activities yet persists in upholding complaints against it as they consider it “unkempt”.