The hypocrisy of Burlington's naturalized garden by-laws

Burlington needs show that it's acting on the climate crisis by embracing naturalized gardens which encourage genetic diversity, support native species, and create inviting habitats where life thrives

Karen Barnes garden 2019. Photo credit: Karen Barnes.

Karen Barnes has been cultivating naturalized gardens on her Burlington, Ontario property since 2015. With a Masters in Ecology, the naturalized gardener has been encouraging genetic diversity, supporting native species, and creating an inviting habitat for insects and local wildlife.

Yet, every year Barnes is told that she is in violation of the city’s garden by-law, and is instructed to cut her plants down to less than 20 cm (8 inches).

The now defunction Municipal by-law #12-2011 defined naturalized as, “a yard or a portion of a yard containing vegetative growth that does not form part of a natural garden that has been deliberately implemented to produce ground cover, including one or more species of wildflowers, shrubs, perennials, grasses or combinations of them, whether native or non-native, consistent with a managed and natural landscape other than regularly mown grass.”

Despite the yard conforming to that by-law, city workers showed up in 2016 to cut down Barnes’ native plants. She called the police who instructed the city workers to vacate her property. No other actions were taken that year.

In 2017, city workers cut down Barnes’ milkweed, wild flowers, native species and a bush while she was not home.

Then, in 2018 the city made significant changes to the lot maintenance by-law replacing By-law #12-2011 with By-law #59-2018. That change came about after I received notice on June 29^th that I was contravening By-law #12-2011 Part 3 3.1(b) which states, “Every owner of property shall ensure that grass and ground cover is trimmed or cut to a height of 20 centimeters (8 inches) or less and shall ensure weeds are removed or destroyed between May 1 and October 15 each calendar year.”

The notice of violation stated I was to remove or destroy all the milkweed in my front yard abutting the sidewalk and adjacent property within seven days – July 5^th – or city workers would do it and I would be billed for the cost.

The thing is, the City of Burlington had been giving away milkweed seeds and plants for some time and it was readily available for purchase at local garden centres.

David Suzuki had been promoting milkweed because it’s the only plant that monarchs lay their eggs on and the leaves feed hungry monarch caterpillars.

I let Canadians know what was going on in Burlington. And, after an overwhelming cross-country response, on July 6^th 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.

No city worker cut my milkweed and my garden is still a thriving naturalized space that’s home to monarchs, bees, gold finch, a humming bird, and a plethora of insects.

Barnes retained a lawyer that summer to help the city understand that her garden actually conformed to their new by-law. The city took no action.

Unfortunately, that respite was short lived and 2019 turned out to be a ping pong year for Barnes. Initially, the city declared Barnes’ property fit the description of a naturalized garden.

Then, a second by-law officer issued a non-compliance order mere weeks later. After discussions with that officer, Barnes was told, once again, that her garden complied.

A month later, she was told neighbours had complained and she would have to cut all plants to a height of less than 20 cm.

That August, while Barnes was at court seeking an injunction against the city, workers came and cut down her garden to the ground well before the deadline that she had been given.

Barnes figured that it wasn’t worth going to court because the city had carried out their threat. However, in 2020 the notices began again and city workers cut a two-foot-strip beside the sidewalk.

In 2021, a worker drove from the local park on a riding mower to cut the naturalized boulevard as well as a strip across the front garden near the sidewalk.

In 2022, Burlington created a new lot maintenance by-law #49-2022. No notices came and once the garden made it past the October 15^th deadline for non-compliance, Barnes thought all was good.

Then, Barnes received a notice of non-conformance later that month and that’s when she retained environmental lawyer, David Donnelly.

According to Donnelly, Barnes’ right to a naturalized garden is protected under the Charter of Rights and Freedoms.

Author and native plant advocate, Lorraine Johnson, wrote a report stating that Barnes has a naturalized garden and verified she was maintaining and managing the space.

Johnson also met with a by-law officer that November and was able to point out goldenrod, milkweed, and native asters – all of which are great pollinators and not weeds.

Johnson also showed him clear signs that the garden was being maintained and cultivated.

The officer’s only response was that the garden looked unkempt. However, being unkempt does not fall within the purview of by-laws which focus on health and safety, not aesthetics.

Despite Barnes’ efforts to show the city her naturalized garden conformed to the latest iteration of the by-law, on June 2, 2023, Barnes received notice by registered mail that she must comply by June 6^th or the city would cut down her garden.

The order highlighted three sections – the boulevard needed to be less than 20 cm.; the entire yard need to be less than 20 cm.; and a hedge near a side pathway needed to be cut.

On June 5, 2023, Donnelly wrote the City on behalf Barnes expressing concerns. The City replied on June 7, 2023 stating they would not proceed with enforcement until they completed a study of those concerns.

By-law officers and city workers showed up on June 20th cutting the boulevard and garden to the ground, but leaving the hedge intact all while Barnes and her daughter, Julia, asked them to stop.

Barnes received a notice from her mortgage company that the city intended to fine her $10,000 per day until she conformed to the by-law. Barnes had received this information from the city.

Additionally, the city has included a flat $100,000 fine for non-compliance in the newest version of the by-law.

Barnes has yet to be notified by the city if these fines are pending and under what circumstances they will be enforced.

Just as the city was being hypocritical about my milkweed, Burlington has created naturalized areas throughout the city that do not conform to the height restrictions being placed on Barnes.

Landscape design is an art form and artistic expression is protected under the Canadian Charter of Rights and Freedoms.

As a society, we are at a cross-roads and need to decide whether to cave to lawn and garden industry standards and practices which feed the climate crisis, or whether we are really going to help Halton Region’s 48 species at risk of extinction, encourage genetic diversity, create habitats, feed pollinators, and help slow down the 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 email Burlington Mayor Marianne Meed Ward mayor@burlingto.ca and Ward 6 Councillor Angelo Benetivegna angelo.bentivegna@burlington.ca to show your support for naturalized garden.

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Please note that on August 10, 2023 changes were made to the original article to reflect that Barnes received notice on June 2nd to cut her garden not June 4th as previously reported.

Barnes was also contacted by the city, as well as by her mortgage company, regarding the $10,000 per day fine.