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April 2010 - Tall Grass & Weeds Part 3 - Has the City gone bonsai ...

When is a hedge or shrub a fence? When the City of Toronto says so!
Learn about some inane bylaws that put your shrubs and hedges at risk of the City cutting crew.
Has the City gone bonsai on all vegetation?
The Scoop as fence viewer
The Scoop did not get a cushy job deciding on the placement of fences or disputing any cost-sharing that is part and parcel to the process of line fence disputes for division fences. We're going to review and discuss Chapter 447, Fences, to illustrate the stupidity of equating fences with vegetation.
The Scoop has dug into the bylaw files to try to help a fellow NANPSter defend his shrubs and trees (see our next story) and to try to figure out what the hell is going on with the City's war on vegetation. Bylaws have changed and become more restrictive, and to the alarm of property owners who enjoy their plants, shrubs and hedges - a threat to their very existence.
The public, in general, has no idea of the amendments that suddenly put one on the wrong side of the law. Again, the first encounter with the law may be an investigation instigated through the complaint-driven system (ML&S). And it doesn't preclude investigations that could escalate to revisiting past violators along the lines of the June Long Grass and Weed program and trolling the streets for new prey via the computer, e.g., Google Street View, a.k.a. drive-by-shooting. What next...police helicopters?
ML&S invites you to report contraventions to the Fences bylaw, from the ML&S website: "If you see a fence that you think is in violation of the Chapter, contact your District Office and an Officer will investigate the complaint." It sounds like ML&S is going pro-active along the lines of the June LGW campaign, but as an open season event.
We are actually not going to sit on the fence over this issue. Instead, we're going out on a limb to take on the fences bylaws. We're going to take pot shots at the Code and bylaws so that these flawed pieces of municipal legislation will have as many holes as a section of lattice topping a wooden fence (and that's a real structure, we're talking about). Our view is biased and rather slanted. We're standing on the side of the fence where Municipal Code Chapter 447, Fences, must be amended to remove any mention of vegetation in the definition of 'fences'.
We can't emphasize enough that your efforts to grow shrubs and trees are being violated by City directives. If you are not outraged, please take a moment to check your pulse. Let's look at some definitions, background, history, and basics to inform you, before we tear down the fence bylaw. Then, we'll move on to a very contentious case.
History of Fences
There is precious little in the archives relating to fences. Most of the bylaws were enacted to deal with line fences or divisions. The Township of Scarborough incorporated in 1850 and repealed a bylaw regarding height. Toronto enacted an unspecified bylaw in 1929. Forest Hill dealt with regulating fences of "excessive height" in 1930.
North York in 1956 enacted a bylaw for height and descriptions of fences and took the lead with pool fences in 1957. Scarborough and Toronto followed in 1958. Safety issues surrounding pool fences were of paramount concern for council members, which opened a flood gate of bylaw amendments over the years.
The Scoop supposes that bringing home a new edition to the family raises safety concerns. So when East York acquired lovely little Leaside in 1967, they felt that they had to deal with the fence height issue. In 1985, Etobicoke ended up with a bumper bonus of multiple municipalities and amended the Chapters of the Zoning Code with respect to fence heights for the Township of Etobicoke (Chapter 320), Village of Long Branch (Chapter 330), Town of Mimico (Chapter 340) and Town of New Toronto (Chapter 350).
Without actually looking at the physical records, details are scant regarding definitions and their evolution through the bylaws. Vegetation appeared in the bylaw titles starting in 1926 with Scarborough enacting a bylaw to deal with obstructions and maintaining fences on the public highway: "Being a bylaw to regulate the planting of hedges on road allowance." In 1967, East York passed a bylaw: "Being a by-law respecting fences, hedges, etc., for the protection of the public." More amendments followed in 1996, which may be site specific: "to regulate the placement of hedges and fences on municipal streets and boulevards and to protect the public from hazards from hedges and fences."
Scarborough in 1974, mentions something about certain descriptions of fences. Wording changed in 1998 in the same meeting July 6 & 7, in bylaws, 1998-0623 - To amend bylaw No. 111-92, entitled "To regulate the placement of hedges and fences on municipal streets and boulevards and to protect the public from hazards from hedges and fences", being a bylaw of the former Borough of East York, and at the same time 1998-0624 to amend bylaw No. 81-89, entitled "A by-law to regulate the height and description of lawful fences", being a bylaw of the former borough of East York. It appears that at amalgamation, the City went with East York on the safety initiative.
In 2000, Toronto repealed all the bylaws of the former municipalities: City of Toronto Code 182, City of York Code 794, for fences and fence height respectively; City of Toronto Code 318, City of York Code 796, and City of Etobicoke Code 234 to do with pools. City of Toronto Chapter 447 was adopted as the standard.
Definitions and playing Jeopardy with Vegetation
The definition of a fence is not what you think it would be or should be. The definition, particularly in its current incarnation, is the reason that should make people mad as hell if they profess to be tree huggers or, if a little more conservative, tree indulgers.
Like everything else, fences on private property are subject to legislation under the City of Toronto Act through Municipal Codes and bylaws. The rules cover restrictions on types of materials, placement of fences and maximum heights. Unfortunately, they have included vegetation, namely hedges and shrubs, in the definition of fence.
City of Toronto Municipal Code, Fences, Chapter 447 ARTICLE I Private Property 447-1. Definition: "FENCE — A barrier, including one for noise attenuation, or any structure, except a structural part of a building, that wholly or partially screens from view, encloses or divides a yard or other land, or marks or substantially marks the boundary between adjoining land, and includes any hedge or shrub that has the same effect." [Amended 2000-10-05 by By-law No. 869-2000; 2004-06-24 by By-law No. 557-2004; 2008-07-17 by By-law No. 793-2008]
Yes, you've got it! Currently, any hedge or shrub in your front, side or backyard is equated with a structure that most people refer to as a 'fence' (wooden, wrought iron, chain link, etc.) which screens, encloses or divides a yard, or marks a boundary. Or simply exists. And because it is enshrined in a bylaw, it is enforceable if a complaint is lodged through ML&S.
Fence definitions were amended three times in the Municipal Code between 2000 and 2008. In post-amalgamation 2000, Bylaw 394-2000 was enacted to prescribe the height and description of fences on private property and to require owners of privately owned outdoor swimming pools to erect and maintain fences and gates around the swimming pools. They defined fence such that it included any hedge or grouping of shrubs used for the same purpose in a front yard or a flankage yard (corner lot).
In 2004, Bylaw 557-2004 changed the definition and it was amended to include any hedge or grouping of shrubs. They dropped the reference to front and flankage yards.
The last major change was in 2008 by Bylaw No. 793-2008, enacted to amend Chapter 447 to increase the safety of pedestrians and vehicular traffic by ensuring that sight lines are not obstructed, to amend certain definitions, and to include new definitions. The definition of fence was amended to include any hedge or shrub. Note the singular use of shrub.
If you look at the three bylaws, the evolution of the definitions changed so that it has become very restrictive for property owners to grow shrubs and trees. They claimed that they expanded the definition of a fence to allow Municipal Standards Officers to deal more effectively with obstructions under Chapter 447, Fences. Instead, through their misplaced fanaticism for safety, they have produced an even more restrictive code that affects homeowners who want to maintain taller vegetation anywhere on their property in the City of Toronto.
Height Rules
Here are the maximum heights that you are allowed to have for a hedge or a single shrub on private property in the City of Toronto in 2010, so far: Front yard: 1.2 m (4')Front yard within 2.4 m (7' 9") of any driveway: 1.2 m (but must be of open mesh/equivalent construction; if solid design, must not exceed 1 m)Flankage yard (corner lot): tricky, depending on the orientation of the house, driveway, yards, and street - see report - Fence sight linesBackyard: 2 m (6' 7")
By dropping the reference to front and flankage yards in 2004, it became open season on culling backyard hedges and shrubs. And then it became open season on single shrubs in 2008. How did it go from no problem having tall hedges and shrubs in a backyard to suddenly ML&S being allowed to dictate a height restriction with full endorsement by Council? Where is the safety issue? The fundamental or real question is why is vegetation included in the fence law at all? The reference to vegetation appears hastily tacked on, as if an after thought. Further investigation is required. The proscribed act is mala in se. It meets the criteria: an evil in itself – check; is intrinsically wrong – double check; or involves moral turpitude – triple check, as it involves environmental ethics.
The maximum height for a fence in the front yard is 1.2 metres. But fences can appear taller if they are on a positive slope. In 2004, they amended the Code and added a clause to restrict the effective height of a fence on a slope: "a fence when measured at any point along its length from the average grade level measured perpendicular to and one metre away on either side of the fence shall not exceed the height of 1.2 metres pursuant to Section 447-2.B., Chapter 447, Fences, of the Toronto Municipal Code." Thus, if you have a fence on a slope, you have to take into account the grade of the land and average the values on either side of the fence. Obviously, they are looking at fences as traditional two-dimensional structures with height and length as the deciding factors. Yet, hedges and particularly shrubs are much more three-dimensional than your standard wooden fence. Many shrubs are quite round and pleasantly plump. In this case, to which two sides do you think they are referring? Inside and outside?
Fence exemptions
There is a process of appeal that may exempt fences that contravene the code, and which may or may not include provisions. Older fences that "grow" out of compliance when the code changes can be grandfathered: 447-7. Transition. Any fence or swimming pool enclosure that was lawfully erected before the day this article comes into force is deemed to comply with this article and may be maintained as erected, but when the fence or swimming pool enclosure is replaced, the replacement fence or swimming pool enclosure shall comply with this article. [Adopted 2000-07-06 by By-law No. 472-2000]
However, since the City changed the bylaw in 2004 regarding backyard vegetation, wouldn't hedges and shrubs be grandfathered at that time and not in 2000? Ultra vires? And since the definition of fences changed in 2008 to a single shrub, shouldn't shrubs that were single and not otherwise attached or living common-law prior to the change, be exempt? Ultra vires?
Each fence exemption becomes a bylaw unto its own, enacted at Community Council, and listed in Schedule A to Ch. 447, Art. I, Site Specific Exemptions.
You will notice that the list starts in 2001, post-amalgamation, when all of the bylaws from the old municipalities were repealed and Chapter 447 ruled supreme. The Scoop presumes that exemptions from the old municipalities are still viable, but there is no mention of this. Let's hope that the property owners don't have to repeat the exemption process.
Site specific exemptions are in the fences bylaw because the powers that be are super paranoid about pool enclosures, which have safety and liability issues. The last bylaw that was added was on June 9th, 2009. Of the total number of 152 exemptions amassed since 2001, only 13 (8.5%) make mention of hedges or shrubs (# 21, 35, 41, 51, 74, 107, 108-110, 117, 118, 127, 143). Ten of the 13 cases (6.6%) are front yard fences of which one is a pool enclosure. The other three pool enclosures are in the backyard with cedar hedges providing existing protection from access to the pool, i.e., the mesh size of the chain link fences were of concern, are not in compliance, and must be replaced if the hedges are removed. All but two specifically identify cedars, cedar trees or cedar hedges.
Interestingly, the number of fence exemptions granted increased dramatically between the 2004 amendment and the 2008 amendment to Chapter 447: 74% of the total. Only one of the 13 with vegetation was listed before this time and one after. Without information on all infractions, it is difficult to tell if there were more complaints filed during this time or if ML&S was more pro-active with citing front yard fences. There could be a correlation with an upswing in ML&S activity followed by an increase in exemption requests. But many property owners will not make the effort to fight for their vegetation and will comply, and not go the exemption route. It is hard to tell without looking at the number of violation notices.
Of the 13 cases, the 4 properties (two different sites) that were granted exemptions on November 27, 2007, did not have provisions built in to the exemptions. The rest of the cases had provisions. The system for adding provisions seems arbitrary; recommended by ML&S and decided by Community Council. There is no set pattern, but it is predictable that as restrictions increase, fences with provisions will become the norm.
The low numbers of fence exemptions involving vegetation could be indicative of a low number of complaints involving non-compliant hedges/shrubs or the granting of few exemptions of hedges/shrubs. It would be pure speculation without knowing the total number of complaints filed that involved vegetation. But it would be comforting and would give us hope to know that it was the former, i.e., very few people objected to hedges and shrubs. It would show that the majority does not object to hedges and shrubs and views vegetation as separate from fences.
The Scoop invites you to take a trip down memory lane... literally...a haven for hedges. Five contiguous properties at the end of Country Lane in the Bridal path area are listed as having fence exemptions (hit the button - "try street view on google maps" and type in "Country Lane, Toronto"). Three of the properties submitted proposals for fence exemptions for their cedar hedges (#108-110). The iron post and stone fences constructed were in compliance at 2 m in height. What is striking is the large 4 to 5 m cedar tree line on the north side of the street. It may seem like overkill to apply pre-emptively for an exemption for 2.5 m cedars on a dead-end that ends in an unassumed road (to be used at one's own risk), when there are lots of hedges and shrubs out of compliance on this lane. But that's the law! It's a gorgeous view, so why is it a crime to have large vegetation? Why is it a crime if we want a small piece of this on our tiny city plots?
The fee to apply for an exemption is $200, not including taxes. If you do win an exemption at one of the area Council Meetings, you've bought your very own bylaw. Yes, you can be a part of Toronto archives history forever...or at least your 'fence' can be! You could also come away empty handed and without a bylaw to your name, if you lose.
"Although a fence exemption process exists, it has not been provided for in the current By-law the way similar exemption processes have been for art murals and natural gardens. The recommended additions formalize the existing process. The fee is already included in Toronto Municipal Code Chapter 441, Fees and Charges." The reason that fence exemptions are treated differently than art mural and natural garden exemptions is that fences are more permanent in nature. The transient nature of gardens and art murals do not lend themselves to be included permanently in the bylaws as site specific exemptions.
The Scoop take on fences exemptions
What about hedges and shrubs? The Scoop postulates that they decided to stick hedges and shrubs in with fences because they usually live longer than plants in a natural garden exemption and pretty 2-D pictures in an art mural exemption.
Many exemptions are given under the Transition clause, i.e., if the fence existed before July 6, 2000. However, many exemptions are granted with provisions. If a hedge or a shrub is a fence, how do you lawfully erect them? Definition of erect: put up or create. Ask the Reverend from the NGE about creating. Are hedges and shrubs not planted? According to the Transition clause, if you planted your hedges or shrubs prior to July 2000 (or is it 2004 for backyard ones?) and they were in compliance, irregardless that they obviously grew out of compliance, as plants are known to do, subsequently, they should all be grandfathered. Can ML&S even prove when you planted them and whether they were in compliance at the time? Maybe we should be giving out birth certificates for the trees and shrubs that we adopt out at the plant sale and maintain growth charts.
The Scoop has seen enough fence exemptions to conclude that they are arbitrary decisions. One case of a homeowner with a backyard wooden fence that was 1" over compliance requested an exemption. The poor sod still had to present before Council and was granted an exemption. Where is the safety issue? Why does ML&S even pursue such cases? Because they are automatons; just following the rules. Funny, how the police have discretion in handing out tickets. Guess ML&S inspectors haven't earned that privilege.
In the background report, Fence Sight Lines, under comments: "In reviewing the request from the Licensing and Standards Committee as well as other sight-line issues, staff have made a number of recommendations, as discussed below. The amendments to Chapter 447, Fences, would only apply to new fences and to fences being replaced." What happened to this recommendation? There is no mention of it in the amended Code that is in force today. So, it seems that solid fences, which include hedges and shrubs, in the front yard that are 1.2 m high and within 2.4 m of a driveway erected after July 6, 2000, and before 2008, are not automatically exempted. So it entails a trip to council to pay $200, plus your time to fight it.
Fence bylaws or Property Standards usually address screening for privacy. In the Fences bylaw, the term "privacy" does not come up unless the defendant uses it. And very rarely do the cases mention it in the titles of the cases. Outside of Toronto, privacy is more of a concern.
Scoop Note: Speaking of growing out of compliance...
Scoop trivia (but not trivial if it affects you): a chimney can actually 'grow' out of compliance. If you live in a bungalow and the bungalow next to you gets topped up to a monster house, you may find suddenly that your chimney violates the building code because it is now lower than the roofline next door. And you get to pay to fix it. Yes, the Law works in mysterious ways...
More Definitions and The Scoop take on veggies mixed in with fences
We're delving into the definitions heavily to convince you of the folly of including vegetation in the fences definition and to look for ways out of the dilemma. Logic and reason must count for something.
Both Toronto and the Province of Ontario have legislation outlining the passing of bylaws (see below). Both the City of Toronto Act and the Municipal Act state that a municipality may pass a bylaw pertaining to structures, including fences and signs. There is no definition of 'structure'. Vegetation is not a 'structure' in this context. Most people would not consider a shrub or hedge a structure. So, The Scoop wonders why any government body would equate vegetation with a fence. In the list of 11 matters that are outlined, there is no mention of plant life. There is mention of economic, social and environmental well-being of the municipality, healthy, safety and well-being of persons, and protection of persons and property. So, the big question is does Toronto or any municipality have the authority to pass a bylaw that confers a definition of fence as vegetation, be it a shrub, tree or hedge? And even if vegetation could be included under any of the 11 matters, how does vegetation present a threat on a boundary where there are no safety issues? Ultra vires? And protection of property includes protecting vegetation on property. How is damaging vegetation "protecting" property? Very odd! Ultra vires?
Pertinent parts: Paragraph 10(2)10 of the Municipal Act, 2001 S.O. 2001, c.25, as amended provides that a single-tiered municipality may provide any service or thing that the municipality considers necessary or desirable for the public through by-laws entitled Structures, including fences and signs (2006, c. 32, Sched. A, s. 8).
Paragraph 8 (2) 10 of the City of Toronto Act, 2006, c. 11, Sched. A, s. 8 (2), as amended provides that a single-tier municipality may pass bylaws respecting the following matters: Structures, including fences and signs.
There is no definition of hedge or shrub in the Municipal code. In dictionaries, a typical definition of a hedge is a row of closely planted shrubs, bushes, or trees forming a boundary or fence; anything serving as a fence or barrier. A hedge may act like a fence but it is really not a fence. This is an exception to the rule: if it walks like a fenceline dewberry (Rubus exsularis) and talks like a ....
Since there is no definition of hedge or shrub in the Municipal code, is this bylaw suffering from the same vagueness of the bylaws concerning tall grass and weeds and excessive growth, i.e., along the lines of Bell v. Toronto (City) ruling? Ultra vires?
Definition of a hedge
In the City of Toronto Act, 2006, Registration of agreements respecting ravines 105.2 (2) (a) Structures, Including Fences and Signs: deals with "walls, fences, hedges, trees, shrubs or other groundcover or facilities for the landscaping of the land of the owner or the protection of adjoining lands". Vegetation is not lumped in with other structures, such as fences. Clearly, those who deal with the Ravine bylaws don't equate vegetation with fences. Thus, for each bylaw, a new definition can be rendered without any semblance of consistency across the board.
When is a tree a hedge? Probably if it has a high hedge tolerance, we surmise, but that is for you to guess. But who knows what criteria ML&S or PF&R uses? Check the USDA plant database search site by species – under 'Plants Profile: more information', under characteristics, growth requirements, hedge tolerance – low, medium, high. Not all plants have been categorized. Northern white cedar (Thuja occidentalis), threatened/endangered in 8 states in the U.S., has a high hedge tolerance, meaning that the top can be trimmed. But it depends on the size of the specimen. It would be considered a critical injury to top a large cedar...a slow but inevitable death, when the reduced leaf load could not support the needs of a large tree. The City of Vaughan advises against topping trees: "Topping is the senseless practice of removing a majority of a trees branches and is not an acceptable arboricultural practice. Topping will not make trees safe, it creates a hazardous tree; topping makes a tree more susceptible to storm damage; topping makes a tree more prone to insect and disease problems; topping is a waste of money."
Besides, a high hedge tolerance does not mean that it is the destiny of cedar to be trimmed and manicured, but it has the plasticity to do so. Should ML&S & Community Councils be playing with the health or life of your trees, just to adhere to a rigid, regressive code? Your constitutional right to Freedom of Expression is being chopped down as surely as the tree trimmers wield a pair of loppers.
Definition of a shrub:
A shrub is a horticultural rather than a strict botanical category of woody plant, distinguished from a tree by its multiple stems and lower height, usually less than 5–6 m (15–20 ft) tall. A large number of plants can be either shrubs or trees, depending on the growing conditions they experience, e.g., cedars, sumacs. It's all in the interpretation. After looking through reams of City documents, The Scoop would like to apply this definition of shrub, liberally (or non-partisan): mixed fruit juice, sugar, and spice made commercially to be mixed with rum or other spirits. Bottom's up – the City should avoid ambiguity and drop any reference to vegetation from the definition of a fence.
Other Municipalities
We thought Toronto was really bad for defining vegetation as a fence, but Mississauga has to be the worst example because it includes trees in with hedges and shrubs, followed by Ajax with shrubs, hedges but no trees. Although, the way Toronto misinterprets everything and makes up definitions on a whim, don't be surprised if a line of people waiting for a bus at the corner bus stop is considered a "hedge".
Some municipalities have a stipulation in their bylaw that if you erect a fence, that the "nicer" side of the fence face the neighbour. How does that work, if your vegetation is declared a fence and you are forced to cut your hedge, so that everyone sees the remainder as a reminder in the form of an ugly scar?
Some municipalities have fence rules erected in Property Standards or Zoning bylaws, only and don't mention vegetation, e.g., Brampton, Guelph, and Vaughan. While others, have fence bylaws but do not define any vegetation as a fence, e.g., King City, Markham, Oakville, Pickering, Port Colborne, and Richmond Hill.
The Scoop is most impressed with the City of Ottawa and the Town of Whitby. In 2006, the Town of Whitby realized the error of their ways and rescinded their 1999 bylaw to drop hedges from the definition of fences. Our capital city of Ottawa, is acting much more maturely and progressively, than Toronto when dealing with vegetation under the Fences bylaw. They deliberately don't include vegetation! "Hedges, bushes and trees that serve as natural screening are not defined as a fence and therefore the height and/or trimming of such is not regulated." Let's adopt Ottawa...or at least their bylaw!
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