Burlington garden bylaw effectively bans 90% of Ontario's native plant species
The Superior Court of Ontario has accepted evidence that a 20 cm height restriction is irrational given the fact that about 90 per cent of native plant species in Ontario grow higher than 20 cm.
Common milkweed. Photo credit: Doreen Nicoll
In April 2019, Burlington City Council was lauded for unanimously passing a motion declaring a Climate Emergency. Council also approved a comprehensive Climate Action Plan to become net carbon neutral by 2050.
Less impressive has been the targeting of naturalized and rewilded gardens that have been popping up across the city on private property. But the attacks on Karen Barnes’ naturalized garden have been particularly brutal and ongoing since 2015.
Over the years there have been notices of non-compliance, threats to cut down the garden and several years where the garden was reduced to nothing more than stubble by city workers.
Burlington created a new lot maintenance By-law in 2022. Barnes’ garden made it to the end of the gardening season – October 15th – without incident. Later that month Barnes received a notice of non-compliance and that’s when she retained environmental lawyer, David Donnelly.
Barnes then had author and native plant advocate, Lorraine Johnson write a report that was shared with the City. The report stated Barnes has a naturalized garden that presents clear signs of maintenance and management.
Johnson also met with a By-law officer that November and was able to show him goldenrod, milkweed, and native asters. All of these plants are vital for pollinators and none are listed among the 25 noxious weeds designated under the provincial Weed Control Act.
The officer’s only response was to state that the garden looked unkempt. By-laws focus on health and safety not aesthetics.
In an interview with Small Change Johnson said, “we’re at a moment when we really need to make a decision about what we value more. Do we value these very conventional, anti-ecological ideas about neatness vs. messiness, or do we value a different aesthetic that is based on nature’s model?”
Concerted efforts went into educating By-law and the City around the ways Barnes’ naturalized garden conformed to standards. Never the less, on June 2, 2023 Barnes received notice that she needed to cut her garden to less than 20 cm/8 inches. She had four days to comply or the City would do the work and bill Barnes.
The order highlighted three sections – the boulevard, the entire yard, and a hedge near the side pathway.
On June 5th, Donnelly wrote to the City on behalf of Barnes. The City replied June 7th stating they would not proceed with enforcement until they had completed a study of Donnelly’s concerns.
Instead, By-law officers and City workers cut the boulevard and garden to the ground on June 20th leaving the hedge untouched.
The City of Burlington also notified Barnes, and her mortgage company, that they intended to fine Barnes $10,000 per day until she conformed to the By-law.
Additionally, the City included a flat $100,000 fine for non-compliance in the newest version of the By-law which could be added to Barnes’ list of fines.
Barnes has yet to be notified by the City whether any of these fines are pending and under what circumstances they will be enforced.
Johnson sees the fines as a ridiculous over reach and something that could actually scare people away from even trying to create much needed pollinator habitats.
Amy Schnurr, Executive Director of Burlington Green, shared in an email, “a diverse landscape is more resilient to changes in the environment and they provide a multitude of benefits to both wildlife and people. Naturalized areas with pollinators provide food and shelter for insects, birds, and wildlife such as opossums that consume pesky ticks.”
Schnurr also pointed out that naturalized spaces with their native shrubs, plants and trees help sequester carbon and support stormwater management.
The 2018 lot maintenance By-law allowed for passive restoration meaning, plants could self-seed. The 2022 version included the term ‘deliberately planted or cultivated’ inferring a thought process had to be involved and plants or seeds placed in specific spots with purpose.
Cultivation actually means left to grow or encouraging a plant to grow. That can be as simple as not disturbing a seed that has fallen from a plant also known as self-seeding.
It could also mean ensuring the soil is healthy. Simply leaving fallen leaves that accumulate in the garden and letting them decompose the following spring enriches soils.
However, this By-law doesn’t allow for that kind of natural fertilization. Leaves are to be removed from yards and either bagged for collection or left by the curb to be vacuumed up by City trucks – a service that was expanded across the city after council declared a climate crisis.
So, the term cultivation is vague and open to interpretation and misuse within the context of this By-law.
The 2018 By-law was created after I received notice that I had to cut down the milkweed growing in my naturalized garden. I challenged the notice because the City was giving away milkweed seeds and plants to residents. I also challenged the By-law because milkweed had been removed from the provincial list of noxious weeds in 2014.
The evening before the City was to cut down my milkweed I received an email letting me know that Chief Planner and Director Heather MacDonald released a memo stating that Burlington was aligning its lot maintenance By-law with the Provinces Weed Control Act which removed milkweed from the noxious weed list in 2014.
Yet, the hypocrisy continues.
“The city has created naturalized boulevards on Plains Rd. It’s really hypocritical of them to expect me to mow down my yard and boulevard when they themselves are doing the exact same thing,” Barnes told Small Change.
Mayor Marianne Meed Ward, Ward 6 Councillor Angelo Bentivegna, and Deputy Mayor, Rory Nisan, released a joint statement on August 8th that contained a number of omissions and problematic errors outlined in Donnelly’s response of August 9th.
The line, “the recent Star story listed a property that does not comply with our bylaw for naturalized gardens,” is pretty egregious when you consider Barnes’ garden contained no plants from the noxious weed list.
In fact, since Donnelly took the case in October 2022, “there has never been a suggestion from City Staff the Ms. Barnes is not in compliance with the Schedule.”
There was no obstruction of the walkway to the front door.
The Order directed Barnes to mow the boulevard to a height of 20cm. Donnelly points out that the boulevard is public property. And, that, “you cannot compel someone to maintain someone else’s property, against their beliefs. This right is constitutionally protected.”
That means the sole grounds for issuing the order was that Barnes’ native plants grew taller than 20 cm. in height. The Superior Court of Ontario has accepted evidence that this height restriction is irrational given the fact that about 90 per cent of native plant species in Ontario grow higher than 20 cm.
Effectively, Burlington has placed a ban on provincial native plant species.
No mention was made of the over-the-top fines or the fact that the City contacted Barnes’ mortgage company. These are not so subtle forms of financial as well as emotional abuse.
Ultimately, landscape design is an art form and artistic expression is protected under the Canadian Charter of Rights and Freedoms. That makes it unconstitutional to impose an aesthetic standard on anyone else.
The joint statement also disingenuously referenced, “this matter was recently before the courts and the ruling was in the City’s favour.”
Turns out the matter referred to was actually a trial that took place 18 months earlier concerning a 2019 offence.
Seems the authors of the joint statement failed to acknowledge that Barnes had been taken to court because she had a bull thistle and a sow thistle in her garden.
These plants are listed as noxious weeds for strictly agricultural reasons — they compete with alfalfa and reduce the quality of hay. Yet, the City spent thousands of dollars to have Barnes remove two thistles which pose no harm within an urban setting.
The case had absolutely nothing to do with the constitutionality of the 2022 By-law as inferred in the joint statement.
Donnelly has extended an olive branch requesting a meeting with the Mayor, City Staff and the City solicitor to try to untangle this mess.
“The street where we live is an ecological desert. People have lawns like golf courses full of pesticides and mowed down to almost nothing. That is not habitat for anyone,” said Julia Barnes, film maker and daughter of Karen Barnes.
“It’s especially important that we have gardens like this in urban spaces where pollinators are not going to otherwise find food. It’s a bit of an oasis for them and something to help them on their journey.”
Schnurr maintains that the current state of the environment requires both common-sense solutions and common-sense municipal By-laws.
From where I stand it looks like the City needs to overhaul the current By-law with the help of experts like Johnson and Nina-Marie Lister. Because really, how rational is it for Barnes to have her home taken by the City of Burlington simply for creating a pollinator sanctuary during a biodiversity and climate crisis?
Karen and Julia have set up a fund to help them with the costs of their on-going legal challenge. You can donate here.
You can also show your support for naturalized gardens by emailing:
Burlington Mayor Marianne Meed Ward mayor@burlingto.ca
Ward 6 Councillor Angelo Benetivegna angelo.bentivegna@burlington.ca
Ward 3 Councillor and Deputy Mayor Rory Nisan rory.nisan@burlington.ca
* A version of this article first appeared on rabble.ca.
I did write to the Mayor’s office and also pointed out the area along the lake in Burloak Park, where the city has naturalized the shore and top of the cliff, with wild roses and wild raspberries amongst other native plants. I is a wonderful place to walk and see butterflies and many kinds of birds. I suggest that these areas in the city be catalogued and recommended as places to appreciate the native plants, birds and butterflies. People need to be re- educated to appreciate these aspects. Not to mention that many of us are trying to grow some food in our backyards and need the pollinators.
The ‘lawn’ industry is not environmentally friendly with its chemicals and pollution from gas engines. I feel sorry for those who walk around with gas leaf blowers breathing in fumes all day.
Superb article! I will definitely donate.