Dedicated to Doug & Doug

That bustle isn't the pleasant activities of birds or other animals setting up home in your hedgerow. No, it's the ML&S snooping around your property, measuring, sketching, and documenting your vegetation. They've received a neighbour's complaint about your "fence". This could be the neighbour that doesn't like you for a myriad of reasons, most notably because you not only have the gall of the earth (Prenanthes trifoliolata) to reside beside them, but that you actually exist. Or it could be based on a complaint from anyone within the neighbourhood or the City. You've decided to fight back and the officers are earning their $200 fee charged to you for consideration for an exemption through the Fences bylaw.

Doug Smith has been to Council twice in an effort to defend his property and his rights – both of which are being violated. After a vigorous defence arguing about the issue of the definition of tree vs. hedge, and involving arborists from the Forestry branch of Parks, Forestry and Recreation, Doug was left with only two options: to keep his largest cedar tree closest to the house and to either remove "an appropriate number" of the other cedars or to lop the other cedars down to the prescribed 1.2 m height for 'fences' in front yards. The Forestry personnel conceded that the largest cedar would incur a serious injury if cut, but thought the others would be fine. Let's get this straight – there are no safety violations in this case - just the safety of the shorter cedars and the state of Doug's mental health from the stress, that are being violated with the threat of cutting.

Allegations arose after the first meeting involving violations of the Code of Conduct for Council members and a conflict of interest. At this point the Integrity Commissioner was contacted. At the second meeting, despite Doug's evidence of a similar fence exemption which was granted nine months earlier (and identified as having a safety issue), the farcical council ruling left Doug with only one option – keep the large cedar and lop off the others. Further allegations of violations of the Code ensued, which are presently being pursued. The Scoop can only use the word "allegations" as nothing has been proven...yet! This is not over and it is an election year. Stay tuned.

ML&S obviously doesn't work on the setting-a-precedence system, like the City Planning Division or real Law. The fact that there was a similar case at *178 Strathnairn Ave. in the area several months earlier with a safety-sight line issue, but was still issued an exemption with no provisions (EY27.6), held no sway with Council.

The system is based on a case by case ruling to extract $200 from every homeowner who challenges the bylaw. If you win the Council lottery, you are given an exemption and a guaranteed spot in the bowels...er...appendix of the municipal code. (Guess ML&S never saw the houses down the street: #156 &158 Straithnairn which have a 1-2 m wooden fence with shrubs running almost the entire length of the driveway between them and #144 & 146 with the 4 m cedars near the road – shh!).

Doug believes that his first option was cut because if the cedars were thinned out, then the remaining ones would eventually fill in over time and create a taller hedge. With an exemption in place, ML&S could not touch them. Touché!

Barring cutting or moving the cedars, one of Doug's options now is to try to find a way to grandfather his cedars until we can pull a "Whitby" (get the bylaw amended to exclude vegetation from fences). The old Zoning codes from Etobicoke do not mention vegetation except for the visibility triangle for corner lots. The irony is that according to a councillor, a case that has been decided in a local Community Council meeting can be reviewed, based on a motion by any councillor, before the main council when they meet at City Hall. Apparently, the rules changed and the decision is now final at the local council. The double irony is that had it been a case under the code for Private Tree Protection (Chapter 813), it could have been reopened for review by a motion from any councillor. It is utterly ridiculous that bylaws operate independently from each other and reality.

*Note: When is an exemption not really an exemption? When a cedar hedge is a fence? Based on the ML&S Investigation website, 178 Strathnairn, which was granted a fence exemption on May 14, 2009, will be visited by ML&S on May 1, 2010. To check on the progression on the height of the exempted cedars? The last fence exemption listed in Schedule A of Chapter 447, Fences, is June 9, 2009...and the Strathnairn case is not listed...is it tardiness in amending the list of exemptions in Schedule A? Or was it really an exemption? Is there a change of mind? It's a living "fence" and can keep growing...

ML&S does not like losing and conceding a win to property owners. Concessions are not as bad, but it's sort of like being awarded the consolation prize instead of the big prize when a case is denied. It doesn't look good on their score sheet or in their office betting pool. The Scoop wonders if they get together with PF&R for a bigger stake in the games.

In a way, isn't it a little too cozy when you have another City division like Parks, Forestry & Recreation vouch for ML&S? Isn't it like having the police, police the police? And is unnecessary cutting really considered good forestry practice?

Forestry is fully aware of any bylaws affecting trees and has a 'disclaimer' on the website: Trees on Private Property. "A large part of Toronto's urban forest grows on private property. Private trees are an important part of the urban forest that is nurtured and protected by Urban Forestry. In some cases, trees on private property are protected and regulated under the provisions of municipal by-laws. Urban Forestry encourages property owners to work with us to keep Toronto's trees healthy and to protect healthy trees on private property that are not subject to the provisions of municipal by-laws."

So, they'll protect all trees with a dbh of 30 cm+. They won't protect private healthy trees that are deemed hazardous - that makes sense. But what about trees, like cedars, that are typically under 30 cm dbh, not a hazard, and just have the misfortune of being caught up in a senseless bylaw – Chapter 447, Fences? It's a travesty in which Urban Forestry is complicit.

We get no relief under the City of Toronto Act, Part III General Powers: Limits and Additions Natural Environment, Trees, 2006, c. 11, Sched. A, s. 104. The section applies to a city bylaw prohibiting or regulating the destruction or injuring of trees. However, it only applies to "woodlands" which are defined in the Forestry Act that constitute an area of one hectare or more. [2006, c. 11, Sched. A, s. 104 (4)]

More conflicting directives based on location, i.e., location of the information on the City website: Natural care for your gardens and trees: "Trees are an important part of the urban landscape. Ninety percent of Ontario's urban forest is comprised of trees on private property, so how you care for your trees is extremely important. Trees, because of their impact in the garden, the time it takes them to reach maturity and the costs of replacing them, require ongoing monitoring and routine care to ensure their health."

The City of Toronto is hypocritical. In the Great Toronto Clean and Green campaign through the Parks, Forestry and Recreation Division, it advocates the planting of trees and shrubs, including white cedar on private property with their Trees across Toronto program. Yet another of its divisions, ML&S demands the cutting down of trees and shrubs on private property. It's on Lord David Miller's watch. What the Lord sweepeth with one hand, he slasheth with the other. When was that broom traded in for a scythe?

Vegetation does not have to be included under the fences bylaw to address safety issues. The issue of obstructions by vegetation is already covered under two other municipal codes through bylaws. One is the Property Standards bylaw 629-11. (F) Landscaping, drainage and grading which states that all hedges, shrubs, trees or other plants have to be planted and maintained in a manner that does not constitute a safety hazard for pedestrians or vehicles. It is quite general and includes vegetation overhanging pavement, sidewalks or the travelled portion of any street. This part of the bylaw is so poorly written with its errors of omission, since it doesn't allow tree branches at any height to overhang the road. Well, then we can assume that at least half of the city-owned trees are not compliant and should be cut back so that their branches don't shade the road. In other municipalities, wording is also a little tighter and it is mentioned that only low-hanging branches can be construed as an obstruction. It's slightly better wording but still vague.

Boulevard obstructions are also covered in another of the City bylaws, Chapter 918, Parking on Residential Front Yards and Boulevards, Article VIII, Maintaining Parking Area, Property owner's responsibilities 23 B: "Shrubs, hedges, maintained natural gardens, flowers and other plantings located within the boulevard shall not be more than 0.8 metre in height measured from the travelled portion of the adjoining roadway."

As usual, Toronto has to overprescribe safety precautions in several places in the municipal code. In the Fences code, Bylaw 793-2008 they also added this part under 'Obstructions prohibited' (447-2 C.1.): No vegetation shall be permitted to grow or object permitted to be placed in such a way as to obstruct the view through a fence under 447-2C.

So why have a height restriction on top of this?

The Scoop detects a clear bias against evergreens in the City. Those darn needle-bearing trees! They don't clean up as much pollution as broad-leaved trees, and they have the audacity, particularly spruces and cedars, of being dense (but not stupid) and having their branches hang very low, so you can't see through them. Outdoor staff from Parks trim lower branches for safety; to eliminate habitat for local perverts and drug dealers. But evergreens add to the beauty of our landscape, particularly in winter when clumps of snow nestle in the branches.

Just take vegetation out of the bylaw, and if sight lines are a real concern, then don't let anything block them. But vegetation in all its forms could be used for traffic calming, too. Many intersections have a very wide field of view enabling drivers a clear view. But, it also allows brain-dead drivers free rein to blow through stop signs and red lights. The bylaws keeping sight lines open actually enable bad behaviour. If more vegetation was planted on our streets, the brain-dead drivers that usually blow through stop signs and red lights, would be forced to hesitate before proceeding through the intersection. Now, they would have to not only consider their own selfish welfare, but they would have to consider their vehicle's preservation.

The safety concerns surrounding sight lines around driveways should also be examined differently, too. The onus for safety should be on the operator of the multi-tonne lethal weapon, to act responsibly. The downtown core of Toronto has hundreds of driveway situations that block or impair the vision of drivers and pedestrians. Permit and non-permit parking on the streets impede the sight of vehicles entering and exiting driveways. Drivers have to be more attentive and unhurried in their driving. There are all kinds of sight obstructions from sides of buildings to garages, etc. These issues cannot be resolved until the building is replaced, so the community has to learn to live with it. Let's learn to live with vegetation...and more of it!

Besides, vegetation softens the landscape. It's too bad that people don't plant more plants to break up the visual, vertical monoculture of fences. Many properties could be enhanced with the addition of plants, shrubs, trees, vines, to moderate the stark background of fences.

Maybe we should take up a hedge fund for the City before the invasive critters, Asian long-horned beetles and emerald ash borers, munch their way through most of the broad-leaved trees and leave us with just a bunch of evergreens...oh, yeah...the evergreens that we cut down or never planted in the first place. Or we could start a hedge fund to pay the legal fees for other gardeners caught in Doug's Dilemma.

(from The Local Scoop April 2010)