Wildlife garden row could end up in court
Environmental-law group considering bid for injunction
By Kate Jaimet, The Ottawa Citizen, July 9, 2009
A Constance Bay man who ran afoul of a city bylaw over the long, meadow-like grass in his front yard says he may begin legal proceedings against the city as early as today.
Hank Jones says he is taking advice from the environmental-law organization Ecojustice and is seriously considering filing for a court injunction to prevent the city from mowing the long grass and wildflowers that make up the budding wildlife garden in his front yard.
Although the city does not appear to be imminently poised to mow down Jones' wildlife garden, and has sent a bylaw supervisor to work with him on a compromise, Jones said Wednesday that a bigger issue was at stake.
"I'm ready to go national. I understand all cities have bylaws like this, and it's because of aesthetics, and aesthetics are what somebody else wants you to do," he said.
He said bylaws that encouraged mowed, golf-course-style lawns and discouraged natural, meadow-like properties contributed to environmental problems and to the decline of beneficial insects, such as bees and butterflies.
"Since this is a pollinator garden -- and it enriches the population of pollinators, who are taking a hit across North America, jeopardizing food security -- this is not just an aesthetic issue," Jones said. "It looks like a pretty deep and far-reaching issue, and it needs to be fixed."
He added that he was prepared to fight the case under the guidance of Ecojustice, even if it takes years in court.
"I'm not a young man. I may not be around to see the end of it. This, if it ends properly, is my legacy."
Hank Jones and his wife, Vera, received a notice last week informing them they were in violation of city bylaw 2005-208, for failing to remove the heavy undergrowth, long grass, or weeds on their property. They were instructed to cut the grass by Wednesday or risk having the city do the work and send them the bill. The notice was sent out in response to a complaint by a neighbour, who said that the long grass harboured skunks and mosquitoes.
When the Joneses complained to their councillor, Eli El-Chantiry, he arranged to have a bylaw supervisor visit the property and work with the Joneses on a solution.
On Wednesday, El-Chantiry said a compromise had been found that would allow Hank and Vera Jones to grow wildflowers, fruit trees and long meadow grasses on their portion of the half-acre property as long as they mowed and maintained the part of the property adjacent to the road, which belongs to the city.
"We're willing to work with them to achieve what they want in terms of naturalization," said Susan Jones, the city's general manager of emergency and protective services and no relation to Hank and Vera Jones.
However, she added, the city could not guarantee in writing that it would never step in and mow the lawn.
"If they stop doing something (to maintain the property), we may have to go back. We can never give that guarantee that we wouldn't go in and do it," she said. "This is going to be a work in progress, given what they want to do."
Although he agreed to work with the city, having no written guarantee that his meadow would be protected left Hank Jones uneasy. Then on Wednesday, he received a call from Will Amos, a staff lawyer at the environmental-law clinic jointly run by Ecojustice and the University of Ottawa, who had heard about the situation in the news and proposed turning the matter into a legal fight.
"The Joneses recognize this isn't just about them," Amos said. "This is one reason Ecojustice sees them as perfect clients for us. ... It's about all municipalities in Canada who purport to have the authority to go and chop down peoples' lawns. The message needs to be heard loud and clear, and, if it takes an injunction against Canada's capital, so be it."
Amos said that, while he was still considering the legal options, one course of action would be to file an injunction against the city in Ontario Superior Court, followed by a claim seeking a legal review of the Joneses' notice of violation.
This legal review could be used to challenge both the specific notice against the Joneses and the overall validity of the bylaw. Amos said the bylaw could potentially be challenged on the basis that it was unconstitutional (violating freedom of expression), that it was too vague, and that it was outside of municipal jurisdiction.
However, Susan Jones, the manager responsible at the city, said she believed the bylaw would stand up to legal scrutiny. She said the city received about 1,700 complaints each summer from people whose neighbours had unkempt, weedy gardens that pull down property values, and those were the properties targeted by the bylaw.
"This is a bylaw that was developed in full consultation with the community, who developed the standards they wanted," she said. "I think we're on good grounds here."
Meanwhile, Hank Jones said he would keep up his end of the bargain with the city by mowing the grass adjacent to the road and planting attractive native shrubs on a steeply sloping part of the property leading from the road easement to the rest of the lawn.
He added that the concerns of his neighbours were important to him. A retired Fisheries and Oceans scientist, he said the wildlife garden was something of a scientific experiment.
"We would like to invite our neighbours to participate. If they have concerns with what we're doing, a critique would be good, or as we say in science, a peer review," he said. "These concerns will be taken, they will be investigated, and, if they require some kind of change, we will make the change."
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