Category Archives: Toronto Garden Police

Nature is Scary — Holding Back the Invasive Green Tide

Cities around the world are increasingly coming to realize the importance of nature…in fighting climate change, in reducing infrastructure and operating costs, in attracting more educated and progressive residents, and in improving the overall well being of those who choose to live there.

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Guelph, Ontario — LEGAL!

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suburb of Boston, MA — LEGAL!

It’s a new approach for many  — city staffers among them.  Nature doesn’t come in clean, hard, well-define lines…like those of concrete, metal and glass.  Unlike a building, nature grows, moves, and changes with the seasons.  It has a tendency to do the unexpected.  It can be messy.

It can also be exuberant, it can lift your spirits, it can surprise and bring joy.  It is alive.  Even the most disconnected high-rise dweller inwardly delights at the sight of a butterfly or a flower or a bird.  Very few are able to go through life without adding a houseplant or a goldfish or the occasional walk along a beach to their existence.  The United Nations recognizes access to nature as a fundamental human right.

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Guelph, ON — LEGAL!

More and more urban dwellers  are joining the movement to add nature to their spaces — real nature — not just the plasticized, hybridized, alien plants brought in from other lands to add colour to blank green (also alien) lawns without fear of them fitting into the local ecology.  We are finally learning that native plants are needed to feed not only our souls, but the very basis of the food web…native plants giving improved nourishment to the pollinators that in turn provide food for our tables.

In Toronto we have the strange dichotomy where City policy and some Departments and Councillors encourage nature…while other Departments and elected officials fight tooth and nail to hold back the inevitable and very necessary Green Tide.

There is still a lot of fear and ignorance surrounding the concept of nature…and how sad that nature may be considered to be a “concept” by some.  Sadder still to see that fear and ignorance echoed by elected officials and reinforced by City staff.  Rather than informing complainants that gardening on boulevards and planting virtually anything other than grass lawns is an environmentally and fiscally sound practise that benefits the City; staff rush to harass the owner of the property whose plantings have drawn unwarranted suspicion.

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Toronto, ON — Just one more of many charged annually with the offence of being “natural”

Some City Departments dream about a City where gardens are subject to neighbourhood popularity contests adjudicated by them.  In Toronto, they’ve even created a separate category for ecologically oriented private properties — “Natural Gardens” — segregated from all other landscaping styles within several City bylaws.

If your property is placed in this category, you need not be guilty of violating any city ordinance or actual law…your property can be subjected to review, repeated inspections, and if the duly-ordained Executive Director of the Licensing and Standards Department wishes,

  • restrictions on where within your property you may be permitted to grow anything other than alien turf grass,
  • how you will maintain your gardens, and
  • when you shall perform said maintenance…forever, without appeal and without cause…shall be given over to said Director.

Pedophiles, drug dealers, gun runners, burglers, and other criminals aren’t subjected to such limitations on their rights and freedoms … even after being convicted … but in Toronto, if you don’t want to grow a lawn,  rigid controls are necessary to prevent subversive ideals from spreading an  invasive green freedom.

I am paying the price for attempting to educate my community and City officials.  My garden is awaiting judgement, mid winter.  In their infinite patience, the City’s Transportation Department; deeming stems of butterflymilkweed and asters standing a full 34″ against the winter cold, a hazard to public safety have granted me an extension beyond the original Christmas timeframe, allowing me until February 1, 2013 to bring my garden into compliance with a bylaw that it has not contravened.

Specifically, the letter from Bob Taylor, Manager Traffic Planning Right of Way, alleges that:
1.  the soft landscaping exceeds 0.9m (35.4″ at least this is higher than the previous letter of December 19, 2012 which demanded that my garden be maintained at 20cm (8 inches)).

2.  “some of the soft landscaping is overhanging the sidewalk resulting in a vertical clearance substantially less than 2.5m” (I should say so, given that he must be referring to a few fronds of ornamental native grass or asters at ground level…extreme limbo anyone?).

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“wooden arc / hoop objects” requiring encroachment permit?

3.  “there are wooden arc / hoop objects inserted in the ground which are encroachments for which permission has not been sought and approval not granted” ( I presume here he refers to a single bamboo plant stake, (formed into a u-bend to eliminate sharp ends)  intended to hold back the dreaded asters from encroaching on the sidewalk).  Please note:  retaining walls up to 0.9m are not required to apply for encroachment permits.

It is clear that Mr Taylor’s and Ms Cook’s objective is subjugation not public safety.  Simply because a complaint has allegedly been lodged does not give Toronto staff cause nor the authority to over-rule the Canadian Charter of Rights and Freedoms through creative interpretations of municipal bylaws, which may themselves be legally questionable.  It is apparently beyond the scope their jobs to inform complainants that it is perfectly legal and environmentally and fiscally preferable to replace lawn, especially on boulevards, with more ecological plantings.

Obviously Toronto staff have the time and resources to make life very difficult for residents should they so choose…but do they have the right and the backing of our elected officials?  Please contact Councillors and the City’s Ombudsman in defence of Residents Rights to enjoyment of their own property; to fight the effects of climate change and to create wildlife habitat.

Toronto Council consists of 45 elected officials…that’s an awful lot of people for one person to educate.  Please help me by sending messages in support of native plants, front yard gardens, and resident’s rights to one or more of them (feel free to cc me at ddale (at) verdigrow.com) or to telephone them directly (contact info can be found at: http://app.toronto.ca/im/council/councillors.jsp):
City Staff: “Bob Taylor, Manager Right-of-Way” btaylor@toronto.ca,  “Tracey Cook, Executive Director MLS” tcook2@toronto.ca, “John Livey, Deputy City Manager” <jlivey@toronto.ca>
Council:
<mayor_ford@toronto.ca>,
<councillor_ainslie@toronto.ca>, <councillor_augimeri@toronto.ca>, <councillor_bailao@toronto.ca>, <councillor_berardinetti@toronto.ca>, <councillor_carroll@toronto.ca>, <councillor_cho@toronto.ca>, <councillor_colle@toronto.ca>, <councillor_crawford@toronto.ca>, <councillor_crisanti@toronto.ca>, <councillor_davis@toronto.ca>, <councillor_debaeremaeker@toronto.ca>, <councillor_delgrande@toronto.ca>, <councillor_dford@toronto.ca>, <councillor_digiorgio@toronto.ca>, <councillor_doucette@toronto.ca>, <councillor_filion@toronto.ca>, <councillor_fletcher@toronto.ca>, <councillor_fragedakis@toronto.ca>, <councillor_holyday@toronto.ca>, <councillor_kelly@toronto.ca>, <councillor_layton@toronto.ca>, <councillor_lee@toronto.ca>, <councillor_lindsay_luby@toronto.ca>, <councillor_mammoliti@toronto.ca>, <councillor_matlow@toronto.ca>, <councillor_mcconnell@toronto.ca>, <councillor_mcmahon@toronto.ca>, <councillor_mihevc@toronto.ca>, <councillor_milczyn@toronto.ca>, <councillor_minnan-wong@toronto.ca>, <councillor_moeser@toronto.ca>, <councillor_nunziata@toronto.ca>, <councillor_palacio@toronto.ca>, <councillor_parker@toronto.ca>, <councillor_pasternak@toronto.ca>, <councillor_perks@toronto.ca>, <councillor_perruzza@toronto.ca>, <councillor_robinson@toronto.ca>, <councillor_shiner@toronto.ca>, <councillor_stintz@toronto.ca>, <councillor_thompson@toronto.ca>, <councillor_vaughan@toronto.ca>, <councillor_wongtam@toronto.ca>,   <councillor_grimes@toronto.ca>

 

 

 

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”.

 

 

 

That’s Not Natural — Is It? The FAQ’s of Natural Gardens

So what’s wrong with setting neighbourhood standards?
Take a walk around your community.  Do you love every garden, every house design, the colours painted on every building?  I’ll assume not.   I’ll also assume that not everyone passing by loves the choices you’ve made on your property.  That’s called diversity…and it’s a good thing. Allowing people to express different ways of doing things —even publicly exposed in their front yard — helps us to be more creative, to learn, and to grow.  Will we make mistakes?  Quite likely.  Will our projects look ‘lovely’ from day one and stay that way year round?  Will we all progress at the same pace or even move in the same direction?  Of course not.  That’s all part of the process, but over time our successes and our failures will lead to a more vibrant city and to a more connected neighbourhood.  We aren’t all the same, and neither should our gardens be.  We need to feel safe to explore new concepts in our own yards.

by Janet Harrison (thelocalscoop.org)

Why should “natural” gardens be exempt from the Tall Grass and Weed bylaw?
They actually aren’t.  If a “natural garden” had a lawn with grass over 8 inches (20cm) tall or allowed specific prohibited species of weeds to flower…its owner would be asked to cut them before they set seed, as should be the case in any garden.

The primary reason that “natural gardens” were explicitly mentioned in bylaw 489 is that this style of garden was not well understood when the bylaw was drafted in 1998 in response to the Courts decision to uphold Sandy Bell’s Toronto eco-garden.  The idea was to provide some protection for a newer, greener way of gardening; one that was actively being promoted by Toronto as it is elsewhere around the world, and one that wasn’t always well understood by the general public.  It was intended to allow your garden time to mature, to get through the gangly adolescent phase and allow your neighbours time to get used to your yards new look…simply point to the by law to prove your plantings are legitimate.  Having to APPLY for an exemption wasn’t supposed to become the process.

What makes a garden “natural”?
It is an odd term isn’t it?  But most gardens in Toronto haven’t been “natural” in a generation or more.  Somewhere along the way, we bought into the idea of exotic species from other lands being appropriate garden plants…ones that generally weren’t eaten by insects, that flowered profusely throughout the growing season, that required staking, feeding, watering and general coddling…and which give little back to the environment.  Even the vaunted “butterflybush” (an invasive species) provides only a brief window of lower quality nutrition to adult butterfly than a diverse range of native plants which also play host to their caterpillar phase.  Exotic plants have become more familiar to many than those that actually belong in Ontario ecosystems…and that’s not natural.

“Natural Garden” was intended to encompass yards designed to look more as plants appear in nature…distinguishing them from those of barren lawns with regimented lines of petunias.  “Natural” gardens may not appear as structured as those to which many have become accustomed.  Their borders may to be blurred, plants intermingled, and to those unfamiliar with the species growing in them, they may sometimes appear to be more of a jumble than a garden.  They also tend not to arrive fully grown as ethically propagated native plants usually arrive as very small specimens that may take years to grow to the size of the alien, and often invasive, plants that one can pick up at the local supermarket.

No Nature Deficit Disorder Here

“Natural Gardens” are also extremely functional.  “Natural” gardens, even those that have yet to learn to include native plants, perform important ecosystem functions.  They tend to have layers, building vertically from ground cover, to taller plants, to shrubs, to trees…increasing the infiltration capacity of a plot of land exponentially and providing a wide range of habitat within a relatively small footprint.  That means less runoff overwhelming city storm sewers and waterways and more support for local wildlife.  They breathe and absorb pollution and carbon.  Front yard gardens increase neighbour to neighbour interaction and calm traffic flow.  Those that are composed primarily of native species provide incalculable additional benefits including allowing children, the infirm, and the busy a chance to observe and interact with nature without leaving home.

Don’t I have the Right to Complain About other People’s Yards?

A Different Decor — this Toronto yard is widely known  — and the neighbours don’t seem to mind.

Sure, you have the right to talk to your neighbours, to offer them your perspective…but unless there is a valid health or safety concern, the City is not legally empowered to intervene.

You also have the right to move into a community that has set standards for what you may do. There are plenty of condominium complexes and ‘gated communities’ where residents have elected to adhere to group standards.  There was even a book written about such places…somewhere called Stepford I think?

Your neighbour has the right to use and enjoy his property as he wishes, just as you do yours, as long as what he does doesn’t pose a hazard.  Give their garden a chance, it might just grow on you!

Time To Turf The Turf Toronto or “A Garden Too Far?”

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.

Time To Turf The Turf Toronto

This title is not as contentious as one might initially imagine.  Pulled together, it becomes TTTTTT, and that’s what this issue can become; a bridge, a link between Councillors, residents, staff, and the wildlife that still inhabit Toronto, all of whom may  hold very differing viewpoints.

The Issues

  1. Unnecessary Long Grass & Weed Complaints
  2. The presence of actual noxious weeds and unmown grass.
  3. Harmful or invasive plants
  4. “Unkempt” yards

The Background
The Ontario Weed Act employed by the City of Toronto within bylaw 489, covers 23 species; excluding milkweed — specifically exempted in urban areas because of its essential role in the life cycle of Monarch Butterflies, a species denoted of “special concern” under Federal and Provincial Endangered Species Acts.

Most of these “noxious weed” species are of exotic origin, or short lived pioneer species of disturbed sites that will eventually give way to other species.  While not advocating for their protection in Toronto, it should be noted that most of these species are not actually harmful outside of agricultural areas.  Hogweed, a recent addition to the list, which may cause significant skin irritation in combination with exposure to sunlight,  is a notable exception.

There are a far larger number of unregulated species that are harmful to our urban/suburban environment, most notably “invasive” species that can overwhelm our remaining natural areas, spread into neighbouring properties, and that can be very difficult to control.

Many of these plants aren’t generally recognized by the public, or by staff, as harmful since they are commonly sold in the nursery trade, at supermarkets, and corner stores or are traded between gardeners because “they have loads to spare”.  In many progressive jurisdictions, however, these plants are banned from sale or trade.  Prohibition of these plants has not yet happened in Ontario although there are campaigns afoot to encourage retailers to voluntarily remove them from sale.

These invasive plants are even more commonly found in “traditional” gardens than in the “natural” sites subjected to long grass & weed (LGW) investigations.  Periwinkle, English Ivy, Goutweed, Oriental Bittersweet, and a host of other garden plants are all harmful to our environment.

Garlic mustard, is a species, which along with most found in staff reports, is NOT prohibited under Toronto’s current bylaw 489.  It is endemic in Toronto’s parks and natural areas.  It is also sometimes cultivated as a kitchen herb or left to flourish in traditional gardens because of its “pretty white flowers”.  It, and Dog Strangling Vine, another harmful alien species sometimes sold as “Black Swallowort”, should be officially designated as “local weeds”.   Currently only Purple Loosestrife has been designated as a “local weed” in Toronto.

Finally, we reach the subject of “unkempt” yards.  There are bylaws dealing with trash and litter.  There cannot legally be a bylaw dealing with garden design.  What to some is a tangled mess of plants, to others is a treasure-trove of rare or even endangered species forming an important environmental message:  someone who truly cares for Planet Earth lives here.  Toronto recognizes this.  It publicly advocates for natural gardens in private yards and public spaces — yet the MLS Department, routinely charges those residents who implement them on private property based purely and illegally on their personal aesthetic preferences.

These spaces are readily distinguished from grass left too long unmown even to untrained eyes.  Biodiversity is much greater in “natural” gardens, although left alone, biodiversity in unmown yards will eventually also increase.  Among the first to appear in those, however, will be ragweed (OWA listed), other invasive, generally alien, species, goldenrod and aster.  These last two are essential native nectar plants for fall feeding pollinators before migration or winter dormancy.  Their seed heads also provide food for overwintering birds.

The Solutions
So what is Toronto to do?

It cannot legally continue to threaten those who choose a “different” style of gardening from their neighbours.  It can only charge those who simply refuse to mow turf lawns or have been prevented from doing so by illness or other temporary circumstances…although unmown spaces are less harmful than the regular use of power lawn cutters, leaf blowers, and other noxious machinery.

It would be huge waste of resources to continue its current path of providing 1:1 educational services to the most receptive (those whose intent was to improve the environment through their personal gardens) while ignoring the bulk of more harmful yards that actually host the same or more invasive species than those charged.

It could redirect funding from “garden policing” into a mass education campaign…aimed at all gardeners across the GTA; urging them not to propagate or purchase the myriad of harmful invasive species found in local stores or traded amongst horticultural groups—replacing the list of approved  “xeriscaping” plants list of primarily invasive species included in this staff report, with one composed entirely of native species.

It could re-deploy staff into providing educational presentation to community associations, schools, horticultural groups, and others that are willing to listen to new concepts.

It could showcase and encourage gardens of native species, rather than those currently winning awards in the “environmental category” of Toronto’s garden awards, in order to introduce the concept of urban/suburban meadows, woodlands, and alvars.  It could recognize that at times, and to those new to the concept, these spaces may sometimes appear to be “unkempt” — particularly after neighbourhood children and other wildlife have romped through them.

It could work toward a more ecological world starting with the thousands of acres of wasted space that are currently devoted toward lawns in Toronto.

It could Vote for Butterflies not Turf.

Monarch butterfly, a species of special concern, in a Garden Too Far

These yards aren’t illegal…but don’t you wish they were?

Anyone who knows me well knows that I can be a little obessive about rules and regulations.  I firmly believe that everyone; regardless of their perceived influence, charm, or power, should play by the same set of rules as everyone else.

That’s one reason why this Toronto Staff report concerning Bylaw 489 (tall grass and weeds) is so upsetting to me.  It places “natural” gardens in a category separate from all the other styles of gardens and forces those choosing to garden with the planet in mind to adhere to standards higher than those applied to any other gardening style.  It also lumps neglected yards in with the yards of those who carefully choose and place their plants into functional, ecologically sound, communities.

We’ve all taken walks around the neighbourhood and clucked our tongues at other people’s gardens.  Why can’t they have the good sense and common decency to be exactly like us?   My sister absolutely hates a very ornate “big fat Greek wedding” style garden that popped up in front of an otherwise modest bungalow near her.  It comes replete with loads of statuary, an enormous ostentatious concrete fountain that overwhelms the dimension of the house behind it, an ornate wrought iron fence edging the property, and a colour cacophony of annual bedding plants and perennials surrounding the tiny green patch of lawn that manages to find space amid all the decor.  Much as she hates it, no bylaw inspector will invade this property on her behalf or rummage through it searching for plants not specifically prohibited (and there are many invasive and poisonous plants in this particular garden).  They recognize this owners right to be “ugly”.

Big Fat Greek Wedding Garden

My personal pet peeve is the ardently green lawn of a home near mine…the owner running a huge gas-powered riding mower over a relatively small lawn, watering it assiduously, even more so during droughts, fertilizing and surreptitiously spraying it with prohibited chemicals with absolutely no fear of repercussion from City bylaw enforcement officers.  Astro turf would be less harmful to the earth.

No Complaints about this Garden?

 

Another garden, that no one but bylaw officers seemed to mind, was a front yard vegetable garden…now absolutely and unequivocally allowed under a newly implemented bylaw.  Congratulations Toronto on one good decision, fingers crossed that the Parks Department’s Urban Agriculture initiative is also implemented!
(ed. it was approved at the Nov 27, 2012 Council meeting)

Toronto Approved Garden

 

 

The owners of these spaces all seem to love their gardens.  To their minds, they are doing their part to showcase the diversity that is Toronto.  I also love my wild looking meadow, a bio-diverse habitat and feeding ground for a wide range of insects, birds, and other wildlife…and a continuing source of nutrition for the pollinators that visit vegetable gardens during their short bloom periods.  We all have the right to express ourselves through our gardens (so long as they are not a health or safety hazard)…unless of course, we garden “naturally” in Toronto, Ontario.

My Miscreant Garden

My garden has been cited under bylaw 489 three times; twice in November (including 2012) as it was preparing for winter dormancy and once during the longest drought to hit Toronto in over 50 years (again, much of the garden was dormant, as were any unwatered neighbouring lawns).  Given this exhibit of sound judgement and astute understanding of the tenets of ecological gardening, it is little wonder that Toronto Council is considering awarding the Licensing & Standards Department increased powers over the management of such privately owned gardens.

My property was also cited under bylaw 629, for dead branches (staff photos showed the interior of a healthy pine tree), heavy undergrowth (a small garden of more native plants, a boxwood, and an alternate leaf dogwood in my backyard), and trash (debris on my neighbour’s property, some flagstone stepping stones that the officer claimed was gypsum, and a small hidden layering of wet newspapers in my backyard being used to kill the last vestiges of lawn).  The City’s evidence also included an extensive array of photos of a small yard waste pile, photographed so as to increase its apparent size.

Successfully fighting those charges cost me a lot of sleep, enjoyment of my home, a $200 fee to appear before a Property Standards committee composed of citizen volunteers and, along with my supporters and lawyer, two days at City hall (the Committee opted to allow staff a second chance to prove their case since they weren’t able to at our first appearance).  Despite there being no substance to the City’s charges, the order was officially listed as “confirmed”…apparently as an indication that all was now (as it always had been) well.  The Bylaw Officer, seemingly upset at watching his spurious charges being dismissed one by one, finally claimed that the needles under the pine tree were a fire hazard and demanded that the City’s Fire Department investigate them…and so it continues.

A lawsuit instigated over Toronto’s destruction of my front yard meadow is still ongoing.  Additional legal assistance and stories of run ins with bylaw bullies gratefully received!

 

 

Toronto Proposes Added Restrictions on “Natural Gardens”

The Licensing & Standards Department of Toronto, Ontario has declared war on Conservation Gardeners.  Requested to deliver a report to alleviate the current rate of residents required by the department to apply for permission to have a “natural garden” (a ridiculous concept), they have responded with a series of measures designed to discourage the growth of anything other than turf grass.  Their recommendation was considered on Friday November 16, 2012.  The results are in, and I for one, am not pleased. Conservation gardens are still being vilified and lumped into the same category as neglected yards…no other garden style is to be subjected to this level of ongoing scrutiny.  There is still hope, register your comments with Council before its November 27th sitting via clerk@toronto.ca

If the implications of this report concern you, you may still register your comments with Toronto’s MLS Committee: lsc@toronto.ca  (subject line:  RE: 2012.LS17.2, November 16, 2012 Licensing and Standards Committee) and write to Toronto’s Mayor Rob Ford urging him to intercede: mayor_ford@toronto.ca

I ask that Committee reject the submitted report in its entirety and reiterate Council’s request for a  “process to pre-empt the issuance of unnecessary and unwarranted Notices of Violation related to Natural Gardens.”

Access the staff report:  http://app.toronto.ca/tmmis/viewAgendaItemHistory.do?item=2012.LS17.2
and be sure to read the hidden portion: (http://www.toronto.ca/legdocs/mmis/2012/ls/bgrd/backgroundfile-51975.pdf)

Many may not be familiar with the precepts of the ecological gardening movement, however, there are an increasing number of people worldwide who recognize that growing alien, often invasive, turf grass is a tragic waste of resources and environmentally counter-productive; particularly in this time of global warming and species loss.

More and more countries and municipalities are recognizing the desire and need for individual properties to join together in making a difference and are encouraging their citizens to put their yards to productive use in either growing food or native plants that aid  the stressed populations of pollinators on which our food crops rely, and other wildlife.

Cash for Grass programs are being used elsewhere to offer tax breaks to citizens willing to forgo their outmoded turf yards.  The use of native plants is being mandated in some drought stricken localities.  Only a few of the most out of touch communities continue to prosecute those who choose to garden with the needs of the planet in mind.

It is distressing to find Toronto within that last group.

True, the gardens now being popularized may not look like the ones most of us remember from our childhoods, but they do resemble those cherished by our parents or grandparents – patches of earth that interact more harmoniously with nature than today’s “traditional” gardens of barren turf grass and alien annuals.

Garden styles that are among the first to arrive in neighbourhoods sometimes fall victim to derision and even vandalism from their neighbours.  Still, the innovative implementers of these projects persist in the hopes that over time and with exposure to new concepts, more people will learn to accept and perhaps even embrace their plantings.  It is unconscionable that some of these must also fight the same City that actively promotes the implementation of rain saving, fiscally  and environmentally responsible, conservation gardens.  Being different is not unlawful.

The Details:
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.

Please note that the request of Council was seemingly intended to stop the ongoing harassment of residents who have not violated bylaw 489 by allowing noxious weeds to grow or by failing to mow their lawns.  These residents have simply elected to manage their yards in a manner that may differ stylistically from those of their neighbours.  This report does not address that request and in fact places additional “unnecessary and unwarranted” restrictions on those choosing to exercise the Charter protected right to garden in an environmentally responsible manner.  It further suggests adding costs for ongoing unwanted monitoring of private property to the owner.

Not having a lawn is no way illegal, immoral, disreputable, or harmful to “the quality of Toronto’s appearance and its visual character”.  By referencing such terms, the MLS Department   demonstrates that it lacks an understanding of the important environmental and fiscal role that can be played by the thousands of acres making up Toronto’s private yards.  Cultivating “natural gardens” is unquestionably far more responsible and defensible than cultivating alien turf grasses which are now widely recognized as ecologically useless and resource depleting manifestations of a bygone era, yet the MLS department routinely sends notices to residents simply because their yards lack lawn or otherwise appear to the eyes of individual inspectors to be unusual.

It should be noted that the original precept of including an exemption for “natural gardens” within bylaw 489 was to recognize that gardening styles are protected under the Canadian Charter of Rights and Freedoms and that Toronto does not have jurisdiction over their design.  This report fails, as the Department has consistently failed, to recognize that “natural gardens” are specifically recognized as being exempt by the bylaw.  Only those few that seek to include long turf grass or noxious weeds may be required to apply for an exemption.  Instead, natural gardens are being asked to hold to a higher standard of compliance than surrounding properties, which often may contain more of the  “weed” species listed in staff reports and which are generally more harmful than the gardens charged.

It is unlikely that any conservation gardener would deliberately seek to contravene the covenants of Bylaw 489 by growing noxious weeds.  Some may choose to leave sections of unmown turf grass, presumably in preparation for replacing those areas with native species, in which case they may choose to apply for the exemption as provided.  Those that may inadvertently contravene the bylaw by failing to recognize prohibited plant species should willingly comply when those species are identified or may elect to apply for exemption.   Education; of staff, the complainant, and in rare instances, the gardener; is the key to compliance.

If MLS department staff cannot be trained to recognize the short list of plants that Toronto actually wishes to control within its boundaries, this function should be passed to Weed Inspectors as designated under the Ontario Weed Act,  rather than allowing ByLaw Officers to continue to intimidate law abiding, environmentally and fiscally responsible residents.

Of note within Appendix A of the report:

  1. The report in no way addresses Council’s request to “pre-empt the issuance of unnecessary and unwarranted Notices of Violation related to Natural Gardens“.
  2. Should the MLS Department choose to prosecute a “natural garden” the right of appealing this abuse of authority will transfer to the Executive Director of that same department…eliminating any public petition or trial by elected officials.   Should the resident choose to refute the Director’s decision, they will be forced to pay a $200 fee despite their assertion that they are not in violation of the bylaw.  The proposed process also allows for the prejudicing of the Community Council hearing the appeal by reporting that the Executive Director has deemed the garden unacceptable.
  3. Adding to the financial burden and intrusion into the privacy of the resident, even after undertaking the appeals process, the report allows that “Council may require, as a condition of approval, that City staff monitor the natural garden at the expense of the applicant.”  Note;  Committee elected to remove the portion in bold from the report before passing the remainder to Council for final approval.
  4. The report encourages violating the privacy of residents by directly informing their neighbourhood that they have been charged with a municipal offense…creating the impression that the plantings are somehow improper.  This furthers the existing illegal practise of advertising alleged bylaw infractions on the City’s website.
  5. The report places the regulation of “natural gardens” in the same category as unmown grass and noxious weeds.  No other style of garden is specifically subjected to controls beyond adhering to height limitations on turf grass and specified species.  Conservation gardens, it deserves to be noted, are actually desirable; having proven economic, social, and environmental benefits.
  6. The report relies on regulating gardens based on individual perceptions of their aesthetic value rather than any actual health or safety defect.  This clause clearly illustrates the MLS Departments lack of understanding of the Charter of Rights and Freedoms and the precepts governing ecological gardens.
  7. “Natural Gardens” continue to be segregated from all other gardens based solely on interpretations of their appearance rather than by the presence of the regulated aspects of unmown lawn or presence of noxious weeds.
  8. The report specifies the prohibition of “invasive weeds” without having applied to have additional plants designated as local weeds under the Ontario Weed Act.  It should be noted that the list of  plants recommended for xeriscaping as attached to the report contains numerous species commonly sold through retail nurseries that are in fact invasive and which are prohibited from sale in many environmentally aware jurisdictions. [(4)(c)[3]]
  9. The report requires property owners to enter into a contract which essentially passes control of their yard to the MLS Department. [(4)(c)[3]] and [(5)(d)]
  10. The report allows for restricting the location of lawful gardens on private property [(5)(a)]
  11. The report leaves open the definition of maintenance to the same department that has illustrated a lack of understanding of the tenets of conservation gardening. [(5)(b)]
  12. The report unnecessarily reiterates the prohibition against noxious weeds which is already present in 489. [(5)(c)]
  13. Section (12): “A Community Council under delegated authority or Council may require, as a condition of approval, that City staff monitor the natural garden at the expense of the applicant.”  placing an unwarranted and financially burdensome control on the resident.

With Respect to Appendix B “Natural Gardens Fact Sheet”

  • This sheet seeks to define a style of garden using terms that may or may not apply to individual gardens under scrutiny.
  • It attempts to codify gardens and maintenance preferences outside of official regulations.
  • It lists plants that while commonly considered undesirable by environmentally responsible residents, are not actually designated noxious weeds.
  • Link 2 is out of date
    Link 3 “xeriscaping” recommends the inclusion of a large number of plants widely recognized as invasive while including very few native species.

 

Draft letter to Council

Please select from the following passages, or create your own letter…but register your protest with Toronto Council to protect our civil rights, our environment, and the future health and well being of Toronto.  If you plan to make a submission to Council on this item, please let us know so that we can coordinate our allotted 5 minute presentations and ensure that Council is presented with a complete picture.  Persons wishing to speak must register with the City Clerk before 4:30 November 26, 2012

Dear Council:

Please re-iterate Council’s original request for a process to “pre-empt unnecessary and unwarranted charges” rather than simply removing the bulk of them from public view.

We ask that you restrict the role of the Licensing and Services Department to its mandated role of health and safety — removing all clauses related to garden design, size, location, plant selection, maintenance or aesthetics.  It is not the role of staff or Council to over-rule the Canadian Charter of Rights and Freedom by restricting our freedom to express our beliefs through our gardens unless  our choices pose a public hazard.  Please stop wasting tax dollars by deploying garden police.

“Natural Gardens” should not be singled out for special investigation.  There are generally far more invasive alien species and far more hazardous conditions in traditional gardens than in “natural” ones. A far more appropriate use of City resources would be to launch an educational campaign aimed at all residents concerning the problems posed by invasive species, including those commonly sold in Toronto, than the MLS Departments current approach of investigating individual yards one by one.

We can understand Council wishing to place judgement of private gardens in the hands of staff.  It must be very difficult to look residents in the eye and tell them that the gardens that they have nurtured and love, don’t meet with your approval.  It must be even more difficult to justify patrolling gardens at a time when Toronto’s legitimate police forces are facing curtailment.  Perhaps the goal of hiding this activity within internal departments is designed to protect the broader public from the knowledge that their tax dollars are being diverted to such inane pursuits?

A problem with the proposed approach is that virtually none of the gardens that have had to appeal charges under bylaw 489 actually violate it.  They seldom contain grass, let alone tall grass; and noxious weeds, should any at all be discovered would almost certainly be yanked out in horror by dedicated conservation gardeners.  Usually, MLS Officers simply deem that the gardens in question do not meet their personal aesthetic standards.  There is nothing in the staff proposal that indicates that future MLS rulings would in any way improve to “pre-empt the issuance of unwarranted and unnecessary bylaw violation notices”, as was requested by Council.

Few, if any, of the approximately 70 staff reports going before Toronto Community Councils over the past several years allege any health or safety violations; yet each of these has been forced to apply for an exemption to a bylaw they have not violated.  Under the proposed system the taxpayers that own these gardens would effectively be required to pay a fine of $200 despite not being guilty…again with no assurance that the law would prevail and their private property would be saved.

It’s unclear too how these properties have become lumped into a single “natural garden” category, yet, MLS staff assert  that they are somehow different to their eyes and they seem to feel the need to placate an un-named complainant.  If this report passes, staff could limit the extent and location of private gardens, and continue to monitor them even if no further complaints are lodged.  Different is not illegal.  Diversity stimulates community.

The opinions of these anonymous agitators, and the personal opinions of staff, should not take precedence over those of property owners.  As long as the garden does not pose a health or safety risk, it is not unlawful.  Garden design, even those that the current majority of residents may not appreciate, is a protected and crucial form of expression under the Canadian Charter of Rights and Freedoms.  This protection has been upheld by Ontario courts and in other jurisdictions.  More often than not, the miscreant gardens actually are far more beneficial, or at least less harmful, than their more conventional neighbours.  .

Imagine the embarrassment of having the landscape that you enjoy and are working hard to develop, being charged with a municipal infraction; that infraction being posted on a public website; the added humiliation of having that unwarranted charge broadcast to all your neighbours; and then having to pay a hefty fee and take the time to defend charges that have no merit.  At committee, staff cited the single instance of repeated requests for exemption as cause for applying this fee against all innocent gardeners.

If residents do not feel safe to explore new directions, it is unlikely that the necessary mass needed to achieve significant environmental improvements in the city will ever be reached.  There are over 4000 acres wasted on grass boulevards alone within the City of Toronto.  Imagine the good that could be achieved, and the cost savings to be realized, if a mere fraction of privately held land was encouraged, or merely allowed, to convert to more useful pursuits than staff’s stated preference of lawn with maybe “a few flowers” [In answer to the question: “What’s natural?”: “Grass,” said Smithies. “And a few flowers, too, if they want. We don’t object to flowers.” Allan Smithies, Manager of Traffic Planning.  Toronto Star October 22, 2010.]

Which causes the greater harm:

  • the sight of stalks left to shelter overwintering pollinators or the polluting and disruptive leaf blower employed by those too lazy to use a rake and too obsessed to allow leaves to feed the earth?
  • a yard filled with layers of plants, native or not, that increase the infiltration of precipitation on site, reducing the strain on aging sewer infrastructure and on waterways; or a patch of flat useless green that gobbles up excessive volumes of municipally-treated water (the transport of which accounts for one of the city’s highest electrical usage), volumes of fertilizers, gallons of fuel and mandates the release of noxious fumes in the name of maintenance?
  •  a landscape that is devoid of life; or one that supports a myriad of wildlife from the smallest pollinators to the songbirds that feed their young on them?
  • a garden that causes people to pause and consider new concepts, to examine new (ancient) lifeforms, and opens discussions among neighbours; or a boring green mat that either requires the surreptitious application of pesticides or that hosts a wider range of “weeds” than that of the derided garden?

What City should Toronto be in the 21st century?  One in which its residents are encouraged to join the battle against climate change and species loss; or one in which the voices of the past overshadow the needs of the present?

Sincerely,

People concerned with the health and safety of planet earth.

by Janet Harrison (thelocalscoop.org)

Report on Toronto’s Natural Garden Exemption Process

An open letter to Toronto Councilors:
Following the January 10, 2012 meeting of the Etobicoke-York Community Council, Councillor Frances Nunziata requested a report on several aspects of Toronto’s Natural Garden Exemption process.    A great deal of misinformation about “natural” gardens has been disseminated in recent years and we would like to take this opportunity to provide our own report, attached, on the subject.

Municipal bylaws are neither designed nor empowered to regulate aesthetics nor is it the province of Councillors or staff to decide whether or not an individual garden is appropriately designed or contains acceptable plants beyond whatever species have been officially designated as “local” or “noxious” weeds (see Appendix A). Bylaws are enacted to ensure that minimal health and safety standards are set for the protection of the public and they must be as unintrusive on individual rights as possible. To quote the Licensing & Standards Committee’s own webpage: “[its] primary focus is consumer safety and protection, with a mandate to monitor, and make recommendations on the licensing of business and enforcement of property standards.”

“Natural” gardens presumably include a subset of yards that differ from those filled with plastic flamingo’s, painted gnomes, plundered river rock, alien turf grasses, or concrete parking pads.    The yards that come into question under this “exemption” policy generally fall into two distinct groups: those that are part of abandoned or derelict properties, some of which may in fact violate health and safety standards; and those that are tended but differ in appearance from the garden style made popular by the 1950’s Ozzie and Harriet show.    It is the latter category that most often apply for an exemption, creating the mistaken impression that ecological gardening is somehow improper.

Toronto staff and Council seem to increasingly be viewing gardens through the lens of a gated-community association, where the goal is to create as much uniformity as possible…in the outside appearance of the homes and presumably in the occupants of those residences. This is very much counter to the view that the world holds of Toronto, one in which diversity is prized. Biodiversity should be no less valued than cultural diversity especially as the rest of the world in- creasingly embraces its natural heritage as a primary defence against the impacts of climate change. It is time to allow Toronto gardens to move out of the past in order to help to protect the future.
Sincerely,
Toronto Conservation Gardeners

Summary
• there are fewer than two dozen plant species governed under the Ontario Weed Act, and by extension, Toronto bylaw 489, yet the bylaw is applied against a much wider array of species which can be readily found in virtually any gar- den or public space.
• the current appeals process asks residents to apply for exemption from a bylaw of which they are not in violation. If such a violation existed (e.g presence of noxious weeds or un-mown lawn) no exemption would be granted; if no such violation exists, the application process is unnecessary.
• garden design is the Charter-protected right of the resident, not the province of neighbours nor of Council and most certainly not that of individual bylaw inspectors.
• the Charter protected right to plant in accordance with environmental principles…on both private land and on the city-owned verge has already been affirmed by the Courts.
• the City was warned in 1996 that the current bylaw 489 would likely not withstand a constitutional challenge, and that challenge has now been launched.
• it is incumbent on elected officials to act to protect the rights of residents regardless of their personal viewpoint of garden aesthetics.
• it is not the role of Council to gather support against ecological gardens, but it should be its role to celebrate, encourage, and support those who choose to act on global environmental issues starting in their own yards.
• unless a garden poses a health and safety risk, it cannot be governed by the city any more than the City can impose standards on a resident’s choice of religion, on the colour they choose to paint their homes, or how they choose to live their lives within those homes.

Next Steps for a Progressive City
• eliminate the counter-productive “natural garden exemption” process in favour of prosecuting only those properties that actually offer valid health and safety concerns.
• train bylaw enforcement staff to recognize the few prohibited plant species and to recognize the difference between unmown lawns and bio-diverse gardens.
• work to educate residents and staff about the importance of biodiversity and the need to accept a more sustainable and ecological approach to yards.
• work to educate residents and staff about the environmental dangers of invasive alien species commonly sold and traded and consider adding some of those to Toronto’s officially designated “local weeds” list.
• promote the replacement of alien, especially those already deemed invasive, species with native plants in private and public lands.
• replace City plantings of invasive species in parks and streets with regionally native species of local genotype.
• promote local businesses and organizations that sell ethically propagated, locally native, species rather than purchasing from out-of-province suppliers based purely on the lowest bid.
• prohibit the sale and propagation of invasive species.
• implement the recommendations of the City’s Green Plan, Wet Weather Flow Master Plan, and numerous other documents promoted by the City that advocate these steps.

Natural Gardens
Toronto has offered no specific definition of “natural” gardens but the term appears to be generally used in cases where residents have chosen to use vegetation other than turf grass in their yards. Turf grasses it should be noted are primarily alien species, most originating in Eurasia. Toronto’s Health Department has stated that Kentucky Blue Grass, a popular Eurasian turf grass is among the worst known plant allergens.

It is assumed that the term “natural” was intended to encompass “ecological or ecologically-oriented” gardens…a style that is not only not illegal, but one that is actively encouraged by various Toronto Departments, Plans, and Policies (eg. Parks & Recreation Dept., Wet Weather Storm Water Management Plan, Toronto Green Plan etc).

The benefits provided by ecological gardens extend far beyond their boundaries. Their implementation in residential properties acts to substantially decrease City costs related to water treatment and supply, storm-water management, yard waste collection, improves air quality, and increases the environmental health of the communities in which they are situated. Front yard gardens, particularly those encompassing the adjacent boulevard, have also been cited as calm- ing traffic; increasing social interactions between neighbours; and improving the overall well being of residents. By providing habitat for pollinators, eco-gardens aid in the fertilization of flowering plants beyond the gardens in question and provide a source of protein for the young of increasingly stressed songbird populations.

Obviously individual gardens cannot begin to make up for the great loss in natural areas consumed by urban expansion. In combination with one another, however, they can create much needed linkages between the natural areas that remain and provide miniature safe zones for increasingly threatened urban wildlife, including native pollinators which are essential for the health of even non-native crops. It is incumbent upon Toronto to join the growing ranks of munici- palities that support and encourage such gardens.

Toronto Bylaw 489: “Tall Grass and Weeds”
Although a number of bylaws have been used to prosecute residents who choose non-standard landscapes, only Bylaw 489 allows those charged to apply for an exemption. This would appear to mean that residents making such an application, are requesting permission to grow lawn in excess of 8 inches (20 cm) in height and/or allow noxious weeds to be present. In practise, neither would be allowed. This bylaw is enforced only on private properties, not public lands.

The “exemption” appears to be simply a mechanism of imposing the personal aesthetic preferences of various Councillors and staff on privately held lands. Only a very few Staff Reports actually note the presence of any noxious weeds, and those may include as few as a single stalk, easily found in virtually any garden and in most parks and public lands. The term “managed”, moreover, seems to have been re-interpreted as “manicured”… a state of precision that is antithetical to the term “natural”. Actual health and safety issues are seldom, if ever, brought to light by these reports.

A 2012 addition to violation notices issued under this bylaw threatens the recipient with costs of $94 for the first hour plus $55/hour or part thereof for any additional inspections required if “compliance” is not achieved within a specified time period, usually within a few days of mailing of the notice. Given that the description of the violation is deliberately vague, such compliance is virtually impossible to achieve without a meeting with the inspector.

The bylaw reads in part:
489-2. Maximum height.
A.    The owner or occupant of private land shall cut the grass and weeds on their land and remove the cuttings whenever the growth of grass and weeds exceeds 20 centimeters in height. B.   For the purposes of this section, the term “grass and weeds” refers to: (1)    All noxious weeds and local weeds designated under the Weed Control Act2; and
(2)    Any other vegetation growth that does not form part of a natural garden that has been deliberately implemented to produce ground cover, including one or more species of wildflowers, shrubs, perennials, grasses or combinations of them, whether native or non-native, consistent with a managed and natural landscape other than regularly mown grass.
E.   Review of notice. (1)    A notice, including notice by placard, given or placed under this section shall contain the statement that the owner or occupant may, upon the receipt of notice under this section, request that the issuance of the notice be reviewed by the community council on the basis that the growth is exempt as a natural garden.
2 Editor’s Note: See R.S.O. 1990, c. W.5.

City lawyers have construed the bylaw to prohibit any vegetation in excess of 8 inches, meaning that should staff be so inclined, a standard garden of Japanese honeysuckle, periwinkle, goutweed, and other familiar, but harmful, invasive, and alien, vegetation could be charged under the bylaw; yet, presumably because these plants are recognized by MLS Officers, such gardens are left unmolested.    In actuality it would be virtually impossible for any garden, regardless of how manicured, to “pass” these arbitrary inspections.

It also means that residents who comply with City missives to leave grass clippings on their lawns are in violation…a construct questioned by the Reverend Edward Koroway of the St Marks Catholic Church charged under the bylaw in June 2008.

An Advisory Notice to inform residents that a complaint has been received is sent before any investigation has taken place and does not include any mention of the exemption process. That process is, apparently, included in subsequent Violation Notices/Work Orders sent via registered mail, which are returned to the City should no one be available to receive it. Additional efforts are not made to notify the resident should that mailing be returned by Canada Post as un- deliverable. See example in Appendix B

The Ontario Weed Act
The Ontario Weed Act currently lists twenty-four species of noxious weeds (Appendix A). That Act is enforceable only where such weeds may impact agricultural or horticultural operations. The Weed Act authorizes the destruction only of noxious or locally designated weeds, not surrounding vegetation. Toronto has officially designated only Purple Loosestrife as a Local Weed.

Common milkweed is specifically exempted under the Act in urban areas due to its crucial role in the lifecycle of the monarch butterfly, a species denoted as being “of special concern” under Federal and Provincial Species at Risk Acts.

In 1998 the City issued a press release stating that complaints against goldenrod (a native species not listed in the Act) would not be accepted as it is a highly beneficial plant and an essential fuel for migrating Monarch butterfly.

The Proposal made by Councillor Nunziata to the Licensing & Standards Committee
Recommendation 1 The feasibility of providing notification to area residents when a request for a Natural Garden Exemption is to be considered by Community Council and criteria as to who should be notified.
The rationale listed in the January 25, 2012 report for this proposal is that:
“a neighbour, who may have issue with the current state of the lands but was not the one             to formally report this to the City would not be aware of the exemption request and consequently would not have an opportunity to submit comments to the Community Council for consideration.“

Garden design is not subject to community approval nor should decisions about health and safety matters (the stated rationale for the bylaw) be made on the basis of presumed support or popularity.

Properties that have had a garden complaint (or any other MLS violation) levied against it, are publicly listed for a period of 2 years on Toronto’s website even before they are investigated and regardless of whether or not a violation actually exists.

This action is a direct contravention of the Municipal Freedom of Information and Protection of Privacy Act,
“A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information, (b) was compiled and is identifiable as part of an investigation of law, except to the extent that ! disclosure is necessary to prosecute the violation or to continue the investigation.”1

Directly informing neighbouring residents would extend this violation of privacy.

Since “exemptions” seek to absolve yards from aesthetic considerations, this process is blatantly unconstitutional. Rather than notifying neighbouring residents that an exemption is being sought, Toronto should initiate a process to notify complainants where no infraction exists; that is, where no health nor safety issues exist, and to educate them about the benefits that ecological gardens provide to their community and to their City. Extending such information to neighbouring residents would also be beneficial and perhaps encourage more residents to join the seemingly miscreant gardener in improving the environmental health of their community.

Recommendation 2 (revised): Revising the fees for Natural Gardens to include a re-inspection fee for the costs incurred by the City as a result of these re-inspections, in consultation with the General Manager, Parks, Forestry and Recreation.

The beneficiary of these garden re-inspections is the MLS department. In most cases, ecological gardeners are well informed and have gone to great lengths to select their purchases or gather appropriate seed, and to identify any species that may have subsequently voluntarily grown.    Examining their choices is not the province of Toronto staff. Therefore, any charges levied for these inspection services should be to the MLS department that has failed to adequately train its workforce in order to avoid the need for further inspections.

Recommendation 3: The feasibility of amendments to existing bylaws to stipulate that Natural Garden Exemptions are only effective until such time that the property with the exemption changes ownership.

Currently “exemptions” are only considered valid until a subsequent complaint is received. In effect, yards could be subjected to continual inspections based not on the presence of infractions, but on the misconceptions of those lodging complaints and the lack of any mechanism to inform complainants that the yards in question are not health and safety risks.

Making these “exemptions” valid for the term of ownership might be seen as a progressive step only if “exemptions” were themselves a valid process. There is, moreover, a troubling aspect in that invalidating “exemptions” on the sale of the property would add a burden to the new owner who would then be required to apply for a permit to retain the landscaping style…in effect devaluing a property that is beneficial to Toronto.

Backyard Habitat certification provided by the Canadian Wildlife Service and general yard Habitat certification is offered by both the US-based National Wildlife Federation and by the Toronto-based Green Evolution Site. These certifications are often seen as enhancements to property value.

Decisions of the Ontario Provincial Court
Ontario’s Provincial courts have already heard two widely quoted cases: Bell vs Toronto (1996) and Counter vs Etobicoke (1998) which asserted the rights of Toronto residents to garden according to their beliefs on their own property and on adjacent city-owned lands (ie. the boulevard).

Bylaw 489, and other bylaws used in a similar manner, are in violation of Section 2B of the Canadian Charter of Rights and Freedoms which protects freedom of expression, and although the 1996 judgement relied on that section exclusively in his ruling, it is also presumed to be a violation of Section 3, which references freedom of conscious.

In ruling against the application of the bylaw’s predecessor in Bell vs Toronto (1996) Provincial Justice Fairgrieve stated:
“the objective of creating neat, conventionally pleasant yards did not warrant a complete denial of the right to express the values and beliefs reflected by naturalistic gardens. As between a total restriction of naturalistic gardens and causing some offence to those people who consider them ugly or inconsiderate of others sensibilities, some offence must be tolerated.”
The current bylaw was enacted during the course of the trial and was also referenced by Justice Fairgrieve:

“I am not purporting to decide in this case whether the new bylaw, which is not in issue here, would survive    Charter scrutiny, even if a constitutional challenge to it would presumably require the same kind of analysis that is required here and, I assume, lead to the same conclusion.”

In his ruling, Justice Fairgrieve also quoted expert witness James Hodgins:   “the effect of a 20-cm. height restriction (which he described as “bizarre, incomprehensible and arbitrary”) would be
to “sterilize” and “devastate” naturalized gardens, both aesthetically and ecologically.”
and noted that:    “Mr. Wall <Toronto’s attorney> conceded that the City was not permitted to impose standards based on aesthetic preferences”

Justice Pitt (Counter vs Etobicoke) stated:
Ҧ 29A municipality can exercise only those powers which are explicitly conferred by a provincial statute:
“since there appears to be no obvious correlation between a height restriction for plants and any health, safety or environmental hazards posed by them, I think the new by-law makes it even clearer that the City’s concern with weed control is primarily motivated by aesthetic considerations.”

“Moreover, to use the words of Justice Iacobucci in Ramsden, “the benefits of the bylaw are limited while the abrogation of the freedom is total; thus, proportionality between the effects and the objective has not been achieved”.

A Brief History of Weed Bylaws
A surplus of postwar chemicals led to the creation of the multimillion dollar lawn care industry. Further fueled by television programs featuring lawns as replacements for Victory (vegetable) gardens, this new industry also led to the creation of the most significant barrier to urban biodiversity–weed ordinances. Provincial weed ordinances (eg. the Ontario Weed Act) were created to protect specific crops. Municipal weed bylaws were created to protect the new status quo.


Early municipal ordinances were extremely subjective, most limiting the height of unspecified “weeds” and grass to an arbitrary eight inches.    These were routinely struck done when challenged due to their vague and subjective nature. These same cases also proved false, claims of public health risks and of reduced property values posed by these gardens. (see Appendix C)2

In response to unwarranted harassment of these gardens, the US EPA maintains on its website a series of articles including a section titled: “Some Villages Still Don’t Get It – What to Do if Your Village is Enforcing its Weed Law against Your Natural Landscape.”3, presupposing that larger cities have more important activities to undertake than the harassment of their property owners.

In the early 1980’s, some municipalities attempted to create a garden permit system. Most of these were quickly abandoned as being overly cumbersome, counter to constitutional rights, and too expensive to administer.

By the 1990’s the permit system had largely been supplanted by setback requirements…restricting the height of vegetation at the front border to a specified height (usually 10-12 inches). This system can also be seen as arbitrary since there would appear to be little valid reason for restricting height below the levels required for safety purposes.

Toronto’s current bylaw 489 has been cited as an example of permissive ordinances in that it includes “broadly worded exceptions for natural landscapes, thereby expressly protecting them from municipal prosecution.”4    Unfortunately, enforcement officials and some Councillors have chosen to reinterpret that bylaw as more closely resembling the outmoded permit system by way of imposing their personal aesthetic values.

Another, evidently more successful, example of such broadly worded protection ordinances allows exceptions for “uncontrolled growth” including those involving native plantings, wildlife plantings (includes non-native plants that attract wildlife), and educational plantings.5

Many proponents of naturescaping, and of civic rights, feel that property disputes resulting from such design decisions should be managed through public education. This stance is gaining increasing support worldwide as the beneficial effects of gardening in concert with nature become self evident.

Supporting this view, numerous corporations have embraced such landscaping at their headquarters (Quaker Oats, General Mills, The Body Shop, Chrysler, Husky Oil). The US National Association of Home Builders has enacted a stringent certification system to protect natural areas in new developments including in one of the first developments, a system of natural swales replacing curbs and storm sewers.

The newest innovation to weed bylaws moves away from invalid attempts to enforce social conformity, instead focusing on protecting the local ecology by prohibiting specified invasive species. Illinois enacted one of the earliest examples; its Exotic Weed Act of 1992. Similar laws have been enacted across New England, and many western states.

Toronto’s Green Roof Program
Toronto has invested heavily in promoting “Green Roofs”. According to a list provided from a York University Study Appendix D), native species provide very suitable vegetation for the challenging environmental conditions of such projects. Similar plantings occurring at ground level currently may incur charges under bylaw 489.

“Natural” Gardening beyond Toronto
Cities around the world are embracing their natural heritage as a primary defence against the effects of climate change. Several drought-stricken Australian municipalities require that native plants be used in landscaping in order to reduce the strain on water supply and to reduce wild fire spread.

Boulevard Gardens
In San Francisco and other cities in California and neighbouring states, residents are offered tax incentives to grow plants other than grass on their boulevards as a means of reducing rain runoff into over-burdened storm sewers. Vancouver, Guelph, London, Oakville, Barrie and many other Canadian municipalities, actively encourage boulevard plantings as a means of improving the environment, reducing runoff, increasing social interactions, and calming traffic.

Cash for Grass Incentives
Grass lawns, among the largest crop by land area in North America, are harmful to the environment; requiring millions of gallons of treated water, chemical fertilizers, the use of power mowing equipment with the resulting noise and air pollution, and supplanting space that could host useful native species. Cash for Grass, programs offer tax rebates or cash inducements for replacing heavy water using turf grass, preferably with low water using native plants. These programs are becoming increasingly popular in the United States, particularly in drought-prone regions such as Texas, Arizona and California. Grass lawns have become one the largest crops in North America by land area, yet given the dearth of grazing animals where these lawns tend to occur, it is also the most useless. Diverse landscapes offering a variety of levels, such as trees, shrubs, and forbs absorb far more precipitation than lawn. Absorbing rainfall in-situ reduces the strain on constructed storm-water removal systems and helps to replenish groundwater levels.

Ontario’s Biodiversity Strategy
“At the genetic level, diversity can provide living things with the potential to survive changes in their environment.  Biodiversity contributes to our quality of life in ways that are more difficult to define. Ontario’s variety of landscapes and species is important to our cultural and artistic expression. For many Ontarians, getting outdoors and away from concrete and artificial light and noise is a way to renew the spirit. Seeing a butterfly or hearing a bird call in a city garden provides a moment of wonder and delight. Species and ecosystems have evolved over thousands and millions of  years, and most were here prior to the arrival of humans. They have their own intrinsic value. This strategy is not about nature versus people. It is about living sustainably and respecting nature. Sustainable living is a priority and regarded as a responsibility by all sectors of society – government, business and industry, communities, institutions and organizations, and individual Ontarians. All Ontarians recognize that we must live within nature’s means – that the Earth does not have an endless capacity to tolerate and absorb the impacts of human activity. We place a high value on our natural heritage and the many benefits that it provides.

Canada was the first industrialized nation to ratify the 1992 UN Convention on Biological Diversity. Canada published the Canadian Biodiversity Strategy in 1995. Its vision is “a society that lives and develops as part of nature, values the diversity of life, takes no more than can be replenished and leaves to future generations a nurturing and dynamic world, rich in its biodiversity.” The cumulative impact of a series of seemingly small habitat losses can be significant. Ontarians care about the environment, and many participate in efforts to conserve biodiversity. There is growing alarm in the scientific community about climate change and the cumulative impact of the loss of biodiversity on a global scale. We must build a broad public understanding of and a commitment to biodiversity, and develop a variety of ways in which people can participate in maintaining our natural heritage as a legacy for future generations.
Biodiversity conservation must be built into all aspects of land use planning.”6

The lines compiled above are reprinted from the Provincial planning document and hold just as true in Toronto as in the remainder of the Province and in Canada. The “seemingly small habitat” initiatives taken by some Toronto residents should be celebrated for their cumulatively global impact not reviled because t a small portion of neighbouring residents remain uniformed about the good that they do.

Community-based Food Production
There has been a resurgence of interest in urban agriculture as a means of providing a more secure food base and as a way of combating climate change by reducing transportation requirements. The “Victory Garden” movement of WWII was founded on similar principles. Several major hotels and restaurants have joined this trend by establishing rooftop herb gardens and (honey bee) apiaries.

This movement shares the motivation of eco-gardeners of increasing the productivity of urban lands.

Conclusion
It is a shame that many Toronto Councillors and city staff continue to maintain a low level of commitment to the health and growth of Toronto’s communities despite the numerous official policies and reports to the contrary.. The City has made some progress since the insular Toronto of the 1950’s…but apparently still has a very long row to hoe.

Biodiverse front yard gardens do not lower property values any more than any other type of diversity does. In today’s inflated market, there is very little a single home could do to accomplish that…other than ensuring that all neighbouring properties stagnate in a replica of decades past. Progressive communities now actively celebrate biodiversity by en- couraging front yard and boulevard plantings as a means of increasing social interaction, calming traffic, reducing storm water runoff, and generally enhancing the environment. Communities embracing such ideals tend to experience higher not lower property values.

In many jurisdictions, tax rebates are awarded to properties that eliminate grass lawns due to the high environmental and municipal costs associated with its care.    Gardens that do not use municipally treated water save the City the cost of treating and transporting hundreds of gallons annually. Gardens that absorb virtually all precipitation onsite and eschew chemical additives ensure that no runoff pollutes local waterways and reduce strain on the City’s overburdened sewers. Not requiring power mowers spares the air and our eardrums. Songbirds, butterflies, bees and other pollinators are able to glean a varied and healthy diet from biodiverse, preferably native, plantings.

Full gardens, particularly those containing native plants, do not give rise to rats, fire, allergens, lower property values or any of the other misinformed viewpoints long since disproven in courtrooms around the world. In progressive communities, gardens; green roofs on the ground, are championed due to the enormous social, environmental, and cost benefits they provide. True, they don’t tend to look like Ozzie & Harriets garden…but we don’t live in Ozzie & Harriet’s world. Today we face global warming, loss of species, invasions of harmful alien species, aging water management infastructure, and a myriad of other issues that can be, at least partially, addressed by biodiverse gardens.

It’s unreasonable to expect everyone to love every yard at every moment of every year, but such gardens, given a chance to grow to their full potential, are increasingly vital to the well being not only of local communities, but globally.


Report Appendix A Ontario Weed Act – Schedule of Noxious Weeds

Report Appendix A Ontario Weed Act – Schedule of Noxious Weeds
Please note, the Act is generally intended to apply only to those areas where these plants may impair agricultural or horticultural operations.
Common Name                           Scientific Name 
1    Barberry, Common                      Berberis vulgaris L.
2    Buckthorn, European                  Rhamnus cathartica L.
3    Carrot, Wild                                 Daucus carota L.
4    Colt’s-foot                                    Tussilago farfara L.
5    Dodder spp.                                 Cuscuta spp.
6    Goat’s beard spp.                        Tragopogon spp.
7    Hemlock, poison                         Conium maculatum L.
8    Johnson Grass                            Sorghum halepense (L.) Persoon
9    Knapweed spp.                           Centaurea spp.
10    Milkweed spp.                           Asclepias spp.    NATIVE
11    Poison-ivy                                  Rhus radicans L.    NATIVE
12    Proso millet, black-seeded        Panicum miliaceum L. (black-seeded biotype)
13    Ragweed spp.                            Ambrosia spp.    NATIVE
14    Rocket, yellow                            Barbarea spp.
15    Sow-thistle, annual, perennial    Sonchus spp.
16    Spurge, Cypress                         Euphorbia cyparissias L.
17    Spurge, leafy                               Euphorbia esula L. (complex)
18    Thistle, bull                                  Cirsium vulgare (Savi) Tenore
19    Thistle, Canada                           Cirsium arvense (L.) Scopoli
20    Thistle, nodding spp.                   Carduus spp.
21    Thistle, Russian                           Salsola pestifer Aven Nelson
22    Thistle, Scotch                              Onopordum acanthium L.
23    Vetchling, tuberous                       Lathyrus tuberosus L.
24    Hogweed, Giant                            Heracleum mantegazzianum