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

A Tale of Spying, Sex, and Betrayal in Toronto the Green

Toronto prides itself on the environmental image it projects to the world.  It holds green fairs, produces volumes of publications on its “green initiatives”, it has a Green Master Plan, offers workshops on what the City is doing and what householders can do to reduce excess storm water flow, to increase the green canopy, to decrease pollution and to have “healthy yards”.

But, at the street level does this image hold true?  Toronto has been fighting a long battle against conservation gardeners…the very people who put into practise the actions that the City preaches.   The first public skirmish (and there were many before) took place when Sandy Bell challenged Toronto in court to protect a tiny patch of diversity in front of her home in 1996 that had fallen afoul of her neighbours aesthetic preferences…she won.  During the case, Toronto changed its bylaw to one that was also inadequate.  Two years later, Doug Counter took up the cause in Counter vs Etobicoke (since amalgamated into Toronto) and the courts recognized our right to garden on the public media adjacent to our homes.

Yet since those rulings, every year the Toronto’s Licensing and Services Inspectors continue descend on private yards to bully offenders — those who choose to garden with the planet in mind– into configuring their properties into replicas of 1950’s suburban gardens.  A few stand up to the tyranny and demand their Charter-protected right to be different.  Ten in the first 8 months of 2012, many more in preceding years.

In a city the size of Toronto, how do these miscreant gardens come to the attention of City forces?  There are informers are among us.  it could be the neighbour that you offended by asking to quiet his music after midnight.  it could be that sweet little old lady down the street…the one with the carefully clipped Korean boxwood hedge and Japanese honeysuckle climbing the whitewashed trellis who cluck clucks at your carefully chosen native wonders.  The garden police can be called in by anyone pausing long enough on the street to note your house number.

Perhaps its the sexual component that bothers them?  Conservation gardens encourage plants to intermingle, twining around each other, standing leaf to leaf, swaying suggestively in the breeze.  I don’t need to tell you about the birds and bees…they’re everywhere around these gardens.  Why, I’ve even seen a hummingbird brazenly stick its beak down the throat of a cardinal flower….right in the front yard!

Once the gestapo…I mean the garden police…I mean the brave men and women of the Municipal Licensing and Standards division have you on their radar, you’ll stay there for at least two years.  One leaf out of place can extend that period.

It doesn’t matter that your garden hasn’t violated any laws by having noxious weeds or tall turf grass.  If a complaint has been received your will receive an advisory notice warning you to take unspecified corrective action — before any investigation has taken place.  If you actually have any vegetation over 20cm (8 inches), especially if the inspector hasn’t seen that vegetation for sale at the local big box store or growing in his mom’s garden, you can be charged and made to cut down your garden.  City inspectors base their assessment on their personal perceptions and misconceptions rather than relying on any actual health or safety defects.

There is one avenue to stop the City mowers…you may appeal to a sitting of the local Community Council.  If they appreciate the look of your garden, you may prevail and be granted an exemption…valid only until the next complaint is received.

In 2009, seven such exemption requests were made at a single Council sitting. Disturbed by the amount of Community Council time taken up by these appeals, the Toronto/East York Community Council requested a report on the process.  No report materialized.  In January 2012, Councillor Nunziata requested another report…to try and recover the costs of  investigations from the victims of these over zealous garden police and to solicit support in the destruction of “natural” gardens from neighbours who hadn’t been disturbed enough to lodge independent complaints.

Councillor Nunziata seems to have forgotten that the beneficiary of supplimentary garden inspections performed by a horticulturalist from the City’s Parks department, is the MLS dept — the homeowner already knows what they have in their garden and does not need to have their choices examined.  In most cases, ecological gardeners are well informed and  have gone to great lengths to select their purchases and to identify any species that have subsequently volunteered.   Therefore, any charges levied for these inspection services should be to the MLS department that has failed for so many many years to adequately train its workforce.

Council seems to be viewing our 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 the 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 increasingly embraces its natural heritage as a primary defence against the impacts of climate change.

Toronto the Green is failing to protect the most important element in Toronto’s Green Plan…the individual residents who implement environmental projects on their own properties.