Monthly Archives: November 2012

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!

 

 

Allbirch Pollinator Garden wins fight to garden “naturally” in Ottawa

Hank and Vera Jones of Ottawa, Ontario transformed their property into a pollinator oasis and by doing so, incurred the wrath of local bylaw inspectors in 2010.   Gaining widespread media attention and support, the couple forced Ottawa to reconsider its bylaw (still awaiting official revision).  What transformed this quiet couple into eco-warriors?  They hold a profound belief that saving the planet can happen yard by yard.  Hank sent along the following note in support of Toronto’s eco-warriors.
“By 1870, Britain’s William Robinson had defined and demonstrated the wild, or natural, garden. Its boundaries grade into the natural surroundings, often transitioned by shrubbery. Its core is a mix of native and naturalized species laid out as inspired by, and in concert with, nature, rather than by formal settings. Wild gardens are easily sustainable, by definition, and healthy for our threatened native pollinators. As food gardening grows more popular in cities, and seed for next year’s garden are kept, having healthy pollinators populations is essential.
Today’s all-too-frequent urban ‘gardens’, are often just mown lawns of afro-asian turf grasses bespotted with annuals. They are unnatural in a biblical sense, and an abomination to wild pollinators.
In our impending future, urban home food gardening may well again become essential to family food security. Urban natural gardening will become an all-too-obvious, first-choice necessity. The sooner we learn this lesson, the easily our future will be!”
http://en.wikipedia.org/wiki/William_Robinson_(gardener)#The_Wild_Garden.2C_1870
The following was written by John Sankey also of Ottawa, ON in 2007
(http://web.ncf.ca/bf250/charter.html)

Naturalised Gardens and Municipal Standards By-Laws

An Ontario appeal court has found that wild gardens are a form of freedom of expression protected by the Constitution of Canada.

City of Toronto by-law 73-68 stated that “All parts of a dwelling, including the yards appurtenant thereto, shall be kept clean and free from … excessive growths of weeds and grass …”. Sandra Bell of that city was charged in 1993 by a city building inspector as being in violation of this by-law, due to the appearance of her front yard which she described as “an environmentally sound wild garden”. She was found guilty by a Justice of the Peace and fined $50.

Her appeal of this conviction was heard in 1996 (O.J. No. 3146 DRS 96-18852). Expert witnesses at the appeal included Harry Merrens, a York University geography professor, who testified that current domestic gardens express an urge to dominate or control nature. People who are part of the naturalistic gardening movement are generally motivated by a philosophy with ecological, economic and spiritual goals that seek a more harmonious and restorative relationship with nature. Such gardens still involve some degree of control, but they eliminate the need for chemical pesticides and power tools to control plants, and reduce the use of water. James Hodgins, the editor of Wildflower Magazine, testified that about 90% of native plant species grow naturally higher than the 1′ height cited by the building inspector, and that the term ‘weed’ is a subjective term that has no scientific standing. He noted that Toronto City Hall featured ‘ornamental’ grasses over a metre high, and that two City parks (High and Yorkville) featured extensive naturalised sections designed by City staff.

The appeal was allowed. The appeal court found that the bylaw did not exceed the authority of the City under its authority to pass by-laws “fixing a standard of fitness for human habitation to which all dwellings must conform”. It also, regrettably, rejected the notion that ‘weed’ was an unacceptable legal description for this purpose. But, it held, for a number of reasons, that the Toronto by-law’s primary purpose was an aesthetic one not related to safety, human health, or environmental nuisance, and was therefore void on that ground.

However, perhaps in view of the fact that Bell’s front yard was clearly not a shining example of a natural garden, the court went further. It quoted the Supreme Court of Canada that, “the purpose [of the Canadian Charter of Rights and Freedoms] is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being.” It found that the primary purpose of the by-law was “to impose on all property owners the conventional landscaping practices considered by most people to be desirable” and, as such, infringed Ms. Bell’s freedom of expression. It also found that “as between a total restriction of naturalistic gardens and causing some offence to those people who consider them ugly … some offence must be tolerated.”

The Bell case applied to privately-owned property. In 2002, a further ruling in the case of Douglas Counter (2002 CanLII 26796 (ON S.C.)) extended Charter rights of expression to the city-owned boulevard in front of his home which he was required to maintain.

So, you really are entitled to your back yard meadow in Ontario as long as you believe in it. However, you may well have to fight for it.

On 21 August 2007 the City of Toronto’s bylaws department declared open war on natural areas in the City: the 12-year-old natural garden of Deborah Dale, the past president of the North American Native Plant Society (NANPS), was demolished by City staff.

In defiance of the court rulings, and despite the absence of any such provisions in the relevant section of the Toronto Municipal Code, the City manager of licensing and standards is quoted as insisting, “It has to be a maintained natural garden … an exemption permit is required.” The city not only destroyed flowering plants and plants that were setting seed for use by NANPS in their fundraising efforts, they also removed shrubs, a red oak tree, and even the sign indicating that it was a natural, pesticide-free garden. Although Dale is receiving support from other areas of city government, she has had to go to court to deal with the bylaws department. The City has so far responded by attempting to bankrupt her through expensive pretrial and delay procedures.

The situation is worse in the City of Ottawa. The 2005 Property Standards Bylaw states that yards (all of them, not just those visible to the public) must be trimmed lawns or must be “landscaped or maintained” using “ornamental grasses or flowers”. The standard of judgement: consistent with the surrounding environment, i.e. the neighbours. The same judgmental criteria is used for road verges. There’s no room here for a natural space, only for neighbourhood zealots.

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)