Re: November 27, 2012 City Council meeting on item 2012.LS17.2, Natural Garden Exemption, Monarch Butterfly, and Toronto 2015 Pan Am Games
What do Chapter 489, the Monarch Butterfly and the 2015 Pan Am Games have in common?
In Toronto, as 2015 and the Pan American/Parapan American Games loom on the horizon, we are turning our backs on one of the original Pan Am participants – The Monarch Butterfly. This iconic species, a species at risk (of Special Concern at the provincial and national levels), migrates from Canada to Mexico every year and back as a multi-generational, natural phenomenon.
Toronto Municipal Code, Chapter 489, Grass and Weeds is thwarting our efforts to create wildlife habitat for resident and migrating birds and pollinators, including the Monarch Butterfly. Native Milkweeds (Asclepias spp.) are the only source of food to rear Monarchs, yet personnel in PF&R are demanding the removal of milkweed seed pods as a stipulation in approving a Natural Garden Exemption.
The year, 2015, is the 40th Anniversary of the discovery of the overwintering sites in Mexico; one of the greatest natural history discoveries of our time. Toronto-born resident and University of Toronto professor, Dr. Fred Urquhart and his wife Norah spent 40 years researching the Monarch and engaging citizen scientists before the discovery was finally made on January 9, 1975. For their research efforts, advocating for protecting the habitat of the Monarch Butterfly, and inspiring others to create ecological preserves, they received the Order of Canada in 1998. “They have generously shared their knowledge on the important role insects play in a healthy ecosystem and our part in ensuring the survival of the planet by caring for a fragile species.” (http://www.gg.ca/honour.aspx?id=3871&t=12&ln=Urquhart) (http://www.gg.ca/honour.aspx?id=3870&t=12&ln=Urquhart) (Background: http://www.monarchwatch.org/news/urquhart.htm)
Let us not only welcome the Pan Am Games and their participants and spectators, but let us always welcome the Monarch Butterflies, other migrators, as well as our own citizens, be it residents of every species. Allow us to create Monarch Waystations in our home gardens and elsewhere in an effort that will help assure the preservation of the species and the continuation of the spectacular monarch migration phenomenon. (http://www.monarchwatch.org/waystations/)
Climate change, by inducing hotter, drier summers could shift suitable habitats north, so Southern Ontario, including Toronto may become crucial for the Monarch’s survival. As the steward of ZooWoods, a re-creation of a maple-beech forest downtown at the St. George Campus of the University of Toronto, I am planning on creating a Pollinator Garden on a portion of the site and dedicating it to the Urquharts. Perhaps it can be linked to the other two campuses at Scarborough and Erindale. I want to be assured that I will be able to move forward on the project.
How can you, as a councillor help?
Please do not approve the amendments to Chapter 489 and the Natural Garden Exemption (NGE) process. The intent to change the bylaw and NGE process to pre-empt unnecessary and unwarranted Notices of Violation is commendable. However, the bylaw and the administration of the bylaw are severely flawed. A tax on gardens is not the way to go.
Toronto Municipal Code, Chapter 489, Grass and Weeds is redundant as the issues are covered in other bylaws: Chapter 629, Property Standards; Chapter 918, Parking on Residential Front Yards and Boulevards; Chapter 743, Use of Streets and Sidewalks. Note: issues concerning vegetation in Chapter 743 and 918 are similar as both are concerned with the front yard. How many bylaws have to include vegetation as a perceived threat to the health and safety of the citizens of Toronto?
The main issue is that ML&S inspectors cannot distinguish between a garden and a neglected or derelict yard which is a Property Standards issue. A garden by definition is a plot of ground, usually near a house where flowers, shrubs, vegetables, fruits, or herbs are cultivated. A neglected or derelict yard does not have a garden. Gardening implies a degree of tending. Lawn and garden are two separate entities, hence the phrase: “lawn and garden”. A neglected yard has lawn (turf grass) which has been allowed to overgrow or has been denuded of vegetation (e.g., during construction activities) and has been allowed to re-seed with vegetation, i.e., colonizers, most of which are non-native; many of which are invasive. A neglected yard is usually part of a neglected property which usually has many other defects or issues: waste, etc.
There is no mechanism by which to shut down the vitriolic neighbour (bully, neighbour from hell) who will look through the bylaws for ammunition to harass their victims. In an effort to reduce the number of frivolous complaints, some municipalities charge a nominal complaint fee on an escalating scale, in an effort to reduce the number of complaints without basis.
The best solution is to quash Chapter 489 and amend Chapter 629 to deal with prohibited vegetation. More reasons are listed below:
PROBLEMS WITH CHAPTER 489
Irregularities in the administering of the Weed Control Act (WCA) by the City of Toronto
– City personnel investigating properties are not appointed Weed Inspectors as required under the provincial Weed Control Act and are not familiar with the WCA.
– PF&R, Natural Garden Inspector, Patricia Landry who has been inspecting properties single-handedly for several years is not an appointed Area Weed Inspector, i.e., designated by by-law and information submitted to OMAFRA in accordance with the provisions under the WCA (S.6,7). See WEED INSPECTORS (pg. 8) to view the list of Weed Inspectors which are only in name, not occupation.
– Staff are using the wrong terminology – technically, we don’t have “noxious” weeds in Toronto (WCA, Section 22). We have “local” weeds (WCA, Section 10). The only local weed enacted by bylaw is Purple Loosestrife (1991). However, when the bylaw was repealed and re-enacted in 1994, there is a question of whether OMAFRA approved it. Is Purple Loosestrife a local weed, currently?
– Note: the bylaw is enforced only on private land while public land can harbour any sort of grass and weeds, including infestations of invasive species.
– Note: Noxious or local weeds must be removed from all lands. The City of Toronto has been remiss in removing the same types of inappropriate plants that illicit Notices of Violation on private land. In fact, could the City be accused of aiding and abetting the seeding in of the very species that are eliciting bylaw infractions? The City of Toronto should set a good example and remove invasive and noxious/local weeds from its land.
Irregularities/ambiguity in Toronto Municipal Code Chapter 489 and info on 311 website
– The definition of “grass and weeds” fits all gardens.
– Terms: maintained vs. manicured. “Maintained” is the wording in the bylaw. “Manicured” is used on the 311 website.
– “Maintained” implies to manage, nurture, and protect which applies to all gardens. Manicured denotes a highly manipulated, unnatural state, contrary to a “natural” garden.
– Roof top gardens are covered under Chapter 489 but are presumably not under scrutiny to the same extent as ground level gardens (vegetation is out of sight, out of mind except to residents with access to the garden).
– Properties with green roofs do not have height restrictions for vegetation (Chapter 492, Green Roofs). A double standard exists between green roofs and roof top and street gardens.
– The same vegetation can be growing on a green roof, roof top and at street level. However, a double standard could exist if gardens at street level have height restrictions on vegetation but above street level properties do not. Presumably, a health and safety risk by vegetation is present not only at the street level (barring any encroachment or sight line issues for pedestrian/vehicular traffic which are under the jurisdiction of Transportation Services, Right-of-Way Management).
– The bylaw is an aesthetic issue; a height issue. If any of the so-called weeds and grass, invasive and noxious weeds that are listed in reports generated by PF&R were under 20 cm in height (e.g., 19.5 cm tall), Chapter 489 would have no effect.
– The sole purpose of grass and weed bylaws is aesthetically driven. It was recognized by Judge Fairgrieve in the Bell vs Toronto (City) case in 1996.
– A bias exists against having vegetation other than turf grass, particularly native species which City personnel and many of the public perceive as “weeds”, yet are important pollinators – see below
– Re: Appendix B: Natural Gardens Fact Sheet in NGE Report of November 2, 2012 (P:\2012\Cluster B\MLS\LS12019): Ragweed and Poison Ivy are not invasive by definition (SEE Pg. 8) because they are native species. However, they are a human health hazard and should be regulated in urban areas. They say they may “request” removal of specific “noxious” weeds, but actually, they demand removal of weeds that are not noxious.
– I recommend that Toronto declare Ragweed and Poison Ivy as local weeds under the Weed Control Act (Ont.), Section 10. Giant Hogweed is not listed on the fact sheet, but it should also be included, as well. Invasive species: European buckthorn, DSV and Garlic Mustard should all be declared as local weeds because of the enormous threat to the environment. The highly invasive and hard to eradicate, Japanese Knotweed not listed in the fact sheet, but should be listed as a local weed, as well.
We are losing habitat at a phenomenal rate across North America and a solution, while not perfect, is to create habitat on each and every property so that the birds, bees and butterflies (and other pollinators) can survive. Many of these species pollinate our food in community gardens. We want to create not only wildlife corridors but waystations, particularly on isolated sites, like ZooWoods. Ninety percent of native plants, e.g., milkweeds are taller than 30 cm and do not flower until they are above 20 cm. If they do not flower, pollinators, like the Monarch Butterfly, cannot access a food source and the plants will not go to seed, thus denying a food source for birds and other animals.
Conforming to neighbours aesthetics
There is a perceived bias that the lawn is the only acceptable form of vegetative cover for the front yard and boulevard in the city’s view; even recently with the amendments in Chapter 743, Use of Streets and Sidewalks and featured on the 311 website:
“If a homeowner is not maintaining either their front lawn and the boulevard, Municipal Licensing & Standards will investigate.
If a homeowner is maintaining their front lawn but NOT the boulevard, please contact Right-of-Way Management.”
Should the wording be “front yard” instead to avoid any ambiguity? The lawn in an overgrown state, is the target, yet other vegetation is caught up in the issue. Why would I have to notify neighbours? If they object to my style of garden, or are bullying me why do I have to conform? Will I also have to conform to other standards, as well: the colour of paint on my house, hard landscaping elements, or even a style of bird bath? What happened to the word “diversity” in the City of Toronto?
WEED CONTROL ACT
R.S.O. 1990, CHAPTER W.5
Section 22 is the “far enough away” clause, basically stating that Sections 3, 13, 16, 18 do not apply if Section 22 is valid: duty to destroy (S.3); order for destruction of weeds (S.13); destruction of weeds (S.16); Notice requiring noxious weeds and weed seeds to be destroyed (S.18). Section 22 applies if noxious weeds are far enough away to not interfere with commercial agricultural or horticultural industries. Section 22 would apply to urban areas, particularly large cities such as Toronto. The intention of the Act is to protect agriculture and human health and it is not to be used as a “defacto” property standards bylaw
Section 10 gives municipalities a procedure to designate any plant that is not on the list of 23 on the Schedule of Regulation 1096, as a “local” weed, i.e., a designation of noxious for that municipality. However, the designated plant must be named in a bylaw and approved by OMAFRA. If the municipality that falls under Section 22 wants to designate any of the plants listed on the Schedule of noxious weeds, as “local” weeds, it appears that approval from OMAFRA would not be needed. However, the municipality would still have to enact a bylaw to name that plant as a local weed under Section 10 [10.(3)]. Currently, the only local weed in Toronto is Purple Loosestrife enacted in a bylaw in 1991 and then repealed and re-enacted in 1994. It appears that the 1991 bylaw was approved. The question is – did OMAFRA approve the new 1994 bylaw? Is there a document that is signed by the Minister of Agriculture? Is Purple Loosestrife a local weed? One contact at OMAFRA told me that they don’t keep lists of local weeds. In my view, this is a glaring oversight. Wouldn’t it be prudent for OMAFRA to keep track of all local weeds?
Plants named in the Schedule of the Regulation are noxious weeds. 23 items are listed. Section 5 pertains to not causing anymore damage to the surrounding growing crop in the destruction of noxious weeds. Supposedly, in the situation of a garden, vegetation that is not noxious would be protected from destruction. This has not always been the case.
Pertinent parts of the Provincial Weed Control Act
22. Sections 3, 13, 16 and 18 do not apply to noxious weeds or weed seeds that are far enough away from any land used for agricultural or horticultural purposes that they do not interfere with that use. R.S.O. 1990, c. W.5, s. 22.
Designation of weeds
10. (1) A council of an upper-tier or single-tier municipality that has appointed an area weed inspector or a council of a local municipality that has appointed a municipal weed inspector may by by-law designate as a local weed any plant that is not a noxious weed. 2002, c. 17, Sched. F, Table.
Effect of designation
(2) The by-law may apply in respect of the whole or any part of the municipality and, for the purposes of this Act, the plant that is designated shall be deemed to be a noxious weed within the area to which the by-law applies. R.S.O. 1990, c. W.5, s. 10 (2).
Approval of by-laws
(3) The by-law does not take effect until it is approved by the Minister. R.S.O. 1990, c. W.5, s. 10 (3).
Duty to destroy noxious weeds
3. Every person in possession of land shall destroy all noxious weeds on it. R.S.O. 1990, c. W.5, s. 3.
Order for destruction of weeds
13. (1) An inspector who finds noxious weeds or weed seeds on land in the area within his or her jurisdiction may order the person in possession of the land to destroy the noxious weeds or weed seeds. R.S.O. 1990, c. W.5, s. 13
Destruction of weeds
16. (1) Despite section 13, the council of any local municipality may direct any of its municipal weed inspectors or, if there are none, the area weed inspectors to cause noxious weeds or weed seeds to be destroyed in the prescribed manner on all or part of any lot shown on a registered plan of subdivision and on lots not exceeding 10 acres that are not shown on such a plan. R.S.O. 1990, c. W.5, s. 16 (1); 2002, c. 17, Sched. F, Table.
Notice requiring noxious weeds and weed seeds to be destroyed
18. (1) A district weed inspector who finds noxious weeds or weed seeds on any land owned by or under the control of a municipality within his or her district may deliver or send by mail, by registered mail, by certified mail or by courier service to the clerk of the municipality a notice requiring the noxious weeds or weed seeds to be destroyed before a date specified in the notice. R.S.O. 1990, c. W.5, s. 18 (1); 2009, c. 33, Sched. 1, s. 27 (3).
WEED CONTROL ACT, REGULATION
Weed Control Act
R.R.O. 1990, REGULATION 1096
The list of noxious weeds for Ontario is tabled in the Schedule (Regulation 1096).
5. The circumstances and conditions under which an inspector may cause noxious weeds to be destroyed under section 15 or 18 of the Act are,
(c) that in the destruction of noxious weeds in a growing crop, the inspector does not cause greater damage to the crop than is necessary for the economical and effective destruction of the noxious weeds.
R.R.O. 1990, Reg. 1096, s. 5.
Info on noxious weeds in Ontario
Weeds Act – Frequently Asked Questions
Clarification of Section 22 (Far Enough Away Clause) incl. public notice
Correspondence from Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) lists Weed Inspectors for 2011 and 2012: David Chapman for Toronto/East York; Helen Sousa for Etobicoke/York; Nancy Lowes and Doug Smith for Scarborough. Note: Chapman’s and Lowes’ phone numbers are incorrect. The OMAFRA list for 2010: David Chapman, Doug Smith, and Helen Sousa. The OMAFRA 2009 list: three aforementioned plus Nancy Lowes for Scarborough, and Jamie Warren for North York. I spoke with Mr. Chapman and Ms. Lowes who are in higher managerial positions, and neither have been doing weed inspections for a long time.
Bylaw to appoint weed inspectors:
Weed Inspectors 2004:
Weed Inspectors 2007 (To amend By-law No. 383-2004, “To appoint area weed inspectors under the Weed Control Act” and to repeal By-law No. 308-1998, “A By-law to appoint Weed Inspectors.”, to appoint a new weed inspector and to revise and repeal appointments): http://www.toronto.ca/legdocs/bylaws/2007/law0426.pdf
Bylaw for processing Weed Inspectors (To amend Municipal Code Chapter 169, Officials, City, respecting the processing of area weed inspector appointments under the Weed Control Act):
DEFINTION OF INVASIVE SPECIES
The terms “invasive” and “noxious” are bandied about very loosely and incorrectly. Definition of Invasive (according to Ontario Invasive Plant Council):
Invasive species – Alien species whose introduction or spread negatively impact native biodiversity, the economy and/or society, including human health.
Alien Species – Plant, animals and micro-organisms that have been accidentally or deliberately introduced into areas beyond their native range. Synonyms may include introduced, non-native and exotic
TORONTO MUNICIPAL CODE BYLAWS
Local Weed – Purple Loosestrife
By-Law Number: 1991-0608
To declare purple loosestrife a local weed in the City of Toronto
Ministry of Agriculture and Food (OMAFRA) order dated June 3, 1992.
http://www.toronto.ca/legdocs/pre1998bylaws/toronto – former city of/1991-0608.pdf (second link not available online)
To Repeal and Re-enact By-Law No. 608-91, Being “A By-Law to declare Purple Loosestrife a local weed in the City of Toronto” to reflect proposed Municipal Code Chapter 346, Weeds.
Minister of Agriculture, Food And Rural Affairs’ order respecting Article II of Chapter 202 of the Municipal Code. Note: no date given. Was it approved?
The interpretation of the bylaw on 311 website that is being used is inaccurate (e.g., Chapter 202 is an old City of Toronto bylaw). Note that natural gardens should be “manicured” not “managed”.
NGE Staff Report November 2, 2012
Includes two fact sheets: “What qualifies as a Natural Garden” and “Common Invasive Plants and some Recommended Alternative Plants for Your Garden” with some contentious, inaccurate information.
Municipal Code Bylaws
Chapter 492: Green Roofs
Chapter 489: Grass and Weeds
Delegation of By-law Exemptions for Art Murals and
Natural Gardens (2008)
Chapter 629: Property Standards
Chapter 632: Property, vacant or hazardous
Chapter 918: Parking on Residential Front Yards and Boulevards