Challenging bylaw complaints

Acceptance will come with exposure. Share your gardens by bringing them up front.

Deborah Dale

We’re in a climate crisis. Recognizing this, in 2019 the City of Kingston declared a climate emergency. In January 2020 it created the Climate Leadership Division, but doesn’t consider Natural Climate Solutions under climate leadership. We’re also facing a biodiversity crisis. Unlike Toronto, we don’t yet have a biodiversity strategy.

Wildscaping lawns—ecological catastrophes—is one way each of us can act now. The pandemic also highlighted the importance of local food security. Many of us want to grow food instead of lawns. 

We’re seeing more and more people parking their lawnmowers and turning their lawns into foodscapes or wildscapes. However, we know some people have had bylaw complaints lodged against them and—worried about being fined—mowed their naturalized yards. Others are hesitant to convert their lawn, afraid of violating the bylaw. I even met one woman who moved into the country after the city mowed down her vegetable and perennial garden. 

Our Property Standards bylaw is a barrier to people who want to convert their lawns, a barrier that we need to challenge. In 2019, I presented to the City of Kingston EITP Committee (Environment, Infrastructure, Traffic and Planning).

Property bylaws like ours are unconstitutional

Thanks to a wonderful webinar organized by Nina-Marie Lister, David Donnelly, Carly Murphy and Lorraine Johnson, hosted by the Ecological Design Lab in Toronto, I now know that the bylaw is unconstitutional. Watch the webinar, particularly beginning at 30:15 where David Donnelly, an environmental lawyer, explains why a bylaw like the one we have in Kingston is “unconstitutional, a form of harassment, and hypocritical” and why “a complaints driven process based on aesthetics is extremely troubling.”

What should you do if you’re charged under the bylaw?

David Donnelly from Donnelly Law says:

  1. First, you should resist. 
  2. Write a letter to the city saying you don’t accept the charges. That you’ll contest them in court. Refer them to Justice Fairgrave and the Bell decision that clearly outlines the unconstitutionality of a bylaw like ours. We have a copy of the letter written by Donnelly Law that you can paraphrase and send to the city. 

If you’ve been deliberately naturalizing your lawn and the city continues to pursues the bylaw complaint, let me know and I can put you in touch with Lorraine Johnson. Donnelly Law is looking for a case they can fight through the court system to force all municipalities across the province to rewrite the law.

Problems with City of Kingston By-Law Number 2005-100

Based on what I learned from the webinar and the court challenges, here are some issues with relevant sections from By-Law Number 2005-100: A By-Law For Prescribing Standards For The Maintenance And Occupancy Of Property Within The City Of Kingston along with some questions that you can use if visited by bylaw enforcement.

“Property, lands, yards and buildings whether vacant or not shall be kept clear and free from: 

4.42.2 “unsightly weeds and heavy undergrowth” 

  • How do you define “weed”? Can you identify which of these plants you consider weeds? Is Butterfly Weed a weed? What about Joe Pye weed? Jewelweed? Ironweed? Sneezeweed? Milkweed? If these weeds are ok, then which weeds are unsightly? Why?
  • Meet some of the plants known as weeds growing in my yard: Self-heal (Prunella vulgaris), Dandelion (Taraxacum), Bird’s foot trefoil (Lotus corniculatus), Yarrow (Achillea millefolium), Chicory (Cichorium intybus), Plantain (Plantago), Milkweed (Asclepias spp.) and White Clover (Trifolium repens). Some are edible, others are medicinal and all offer pollinator habitat. 
  • Invasive plants like burning bush, barberry, norway maples, periwinkle, english ivy, goutweed are weeds that invade our forests. Their heavy “undergrowth” prevents native plants from growing. Can I lodge a bylaw complaint against any yard with invasive species?
  • How do you define heavy undergrowth? These plants under my trees (undergrowth) offers habitat for firefly larvae, bees, overwintering butterflies and moths, salamanders, ants, spiders, snails and forage for birds. David Attenborough even made an award winning series of films about Life in the Undergrowth.

4.42.3 says that “grass longer than 20 centimeters (8″), brush and undergrowth by cutting regularly and removing the cuttings from the lands. This does not apply to agricultural properties” 

  • How do you define grass? Does it include our native grasses like Schizachyrium scoparium (little bluestem)? David Donelley recommends learning and using a few latin names if you can.
  • How long should grass be if 20cm is too long? The ornamental grass growing in yards and public spaces across the city is 1m or more. Is this too long? Can you name the species of grasses that are allowed to grow taller than 20cm?
  • What is undergrowth? Why is undergrowth undesirable? Are the native perennials growing under my trees and shrubs “undergrowth”? 
  • To reduce GHG emissions associated with food, the City of Kingston is encouraging growing our own garden. Does this mean my foodscape is agricultural?
  • Removing cuttings from the land creates extra “yard waste” to be “disposed of” at KARC, at a cost to the City. If the City is serious about sustainability, everything has the potential to be composted in the yard. The City of Kingston website even encourages composting on their “Yard Waste” page “Why not consider feeding yard waste to your garden.” 
  • “According to Jim Hodgins, who gave evidence at the trial [Bell vs. Toronto], a 20-centimetre height restriction would be ‘bizarre, incomprehensible and arbitrary’ and would ‘sterilize and devastate naturalized gardens, both aesthetically and ecologically.’ Justice Fairgrieve agreed, stating, ‘It is apparent that the effect of s. 7(c) [of the offending bylaw] is to impose a total ban on wild or naturalized gardens in private residential yards.’ Justice Fairgrieve, Bell vs. Toronto 

4.42.4 says that “lawns, hedges and bushes from becoming overgrown and unsightly by keeping trimmed.” 

  • How do you define “keeping trimmed?” How do you define overgrown? 
  • I consider a poor shrub ruthlessly trimmed into a lollipop shape unsightly. Can lodge a complaint?

4.42.5 lists “erosion of the soil by covering the ground and a suitably maintained covering includes but is not limited to grass, gravel, asphalt, ground cover (ivy, periwinkle), cultivated flowers or plants. 

  • So you’re encouraging me to grow invasive species in my yard? Ontario’s Invading Species Awareness Program lists ivy and periwinkle as invasive ground covers. Ontario Parks lists periwinkle and english ivy as highly invasive. Tree Canada calls periwinkle and english ivy tree killers
  • How do you define cultivated flowers or plants? I cultivate my meadow, cutting it back once a year. I cultivate what you’re calling my “weeds” by harvesting them for food or medicine.
  • Asphalting my entire front yard to avoid erosion is permitted? What impact would that have on pollinators?
  • Lawn grass absorbs far less rainwater than my meadow/forest/foodscape. Kingston suffers from sewage overflows. Runoff damages our rivers and lakes. Shouldn’t we be encouraging lawn alternatives that capture and absorb as much rainwater as possible?

Let your neighbours know what you’re doing

In the UK, for their #NoMowMay campaign Plantlife encourages people to make scaremows to scare away lawnmowers

If you’re naturalizing your yard, let your neighbours know what you’re doing by putting up a sign. This may reduce the chances of a complaint. And it may inspire others to convert their lawns!

References and resources if you want to dig deeper

  • Bret Rappaport in the John Marshall Law Review offers guidelines on crafting a new weed ordinance and suggests cultivating a public land ethic. How might we cultivate a public land ethic here in Kingston? As Natural Landscaping Takes Root We Must Weed Out the Bad Laws – How Natural Landscaping and Leopold’s Land Ethic Collide with Unenlightened Weed Laws and What Must Be Done about It
  • Toronto gardener, Ms. Sandy Bell, took the City to provincial court in 1996 to defend her right to garden. She evoked the Freedom of Expression clause in the Canadian Charter of Rights and Freedoms, to express her environmental beliefs through the planting of a natural garden on her private property. The win was precedent setting – the first time in Canada that environmental beliefs were recognized as a Charter-protected form of expression. “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.” … “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. The word excessive in the by-law was completely subjective and essentially arbitrary, and provided no guidance to allow courts to reasonably interpret the word or devise a test that achieved the legislative objective.” Justice Fairgrieve, Bell vs. Toronto
  • In early 2000, Douglas Counter took his case to the Ontario Superior court and won the right to garden on a public boulevard in Toronto (read his story the courts weigh in of his tall grass prairie garden and boulevard infiltration garden). “A three-year battle against the City of Toronto, initiated by one neighbour’s complaints to the City about my boulevard garden, ended up in court, where my father and I were successful in affirming the right of citizens to express their pro-environmental beliefs on the public boulevard in front of their homes, with the only limit on that right being legitimate safety issues. The Ontario Superior Court of Justice ruled that my native plant boulevard garden was protected by the freedom of expression clause in the Canadian Charter of Rights and Freedoms and the Ontario Court of Appeal upheld that decision. It’s the first time a court in Canada has recognized that citizens have a protected right to express pro-environmental values on public land. This is an important step forward in allowing responsible citizens to take stewardship of the land. Noteworthy is the Court’s recognition of the ‘enormous environmental significance’ of natural gardens, and the “tremendous spiritual significance” the memorial garden holds for me and my family.”
  • Wild gardens, not weeds. A Toronto woman prevailed in a fight over the right to cultivate a wild garden at her home. CBC National News.
  • 2019 native plant enthusiast Deborah Dale fought for the right to garden with native plants. The case was settled out of court with a gag order. You can read her article It’s not easy being green on page 25 of the Blazing Star. “Rather than encouraging neighbourhood discord by aiding specious claims against native plant gardens, government resources would be better spent in educating the public about the tremendous value of these remarkable spaces.” Includes a great list of counters to common concerns about naturalizing yards (mosquitos, allergenic, health & safety hazard, property value decimator, neglected, ugly). 
  • The Local Scoop, Tall Grass & Weeds, is a good read on these types of bylaws. “Municipalities must take the time to craft their bylaws better. The onus should be on them to devise a system to distinguish derelict properties from natural gardens. We could provide input, if we were consulted.”
  • It’s time to decolonize the lawn.
  • Property rights/property wrongs: “Rather than reinforcing the maintenance of manicured lawns (e.g. a maximum of centimetres for the vegetation cover), municipalities could decide on a percentage minimum (e.g. 50%) of the surface of your yard that has to be dedicated to a series of ecological services and develop the tools to support communities in achieving that objective.”

One comment

  1. Thank you for your thoughtful post Joyce. Just a small correction about my case. Toronto cut my 200+ species garden to the ground in 2007. As the case finally entered the courts, the city issued an apology in 2014 and a promise not to repeat their actions. Since the bylaw had undergone changes in 2012, any further action on my part was moot. The bylaw was once again rewritten in 2021 as other suits were lodged against the 2012 bylaw. We wait to see how the new bylaw will be interpreted in practice in the faint hope that common sense will prevail. Deborah Dale

Leave a Reply