Tuesday, July 16, 2013

Councillor Miriam Mutton's July 12 letter to Cobourg Town Council

Mayor Gil Brocanier and Members of Council
The Corporation of the Town of Cobourg
55 King Street West
Cobourg, Ontario K9A 2M2                                                                          July 12, 2013

Mr. Mayor and Members of Council,

            RE:      Boulevard Garden at 423 George Street
Notices of Violation dated May 29, 2013 and July 10, 2013
                        By-law 028-2013

I am writing to express my objection to the application and enforcement of the Town’s Boulevard By-law against my natural garden on the boulevard in front of my property and specifically to the Town’s actions on reported complaints filed against my garden under By-law 028-13, a By-law to Provide Maintenance and Protection of Boulevards within the Town of Cobourg.

I have received two notices of violation which threaten that my garden will be cut down. Both identify the infraction of the by-law as being that the vegetation on the boulevard exceeds a height of 8”. No safety issues were identified in either notice from the Town of Cobourg which were both signed by the same By-law Enforcement Officer.

The boulevard garden in front of my home is an expression of my views about supporting and enjoying nature in an urban setting. My natural garden brings much joy to me and many passers-by and has done so for many years. A number of strangers and area neighbours have expressed to me their enjoyment of the garden over this time. I purchased my home from my grandmother in 1989 and continue to undertake incremental improvements to this designated heritage building and family heirloom. I was born into a family of gardeners, farming families actually, with a tradition of close connections with the land, and the environment. I am also a professional landscape architect. A primary service of my practice of more than 25 years is garden design and each garden is unique.  

This particular boulevard garden located in front of my home is in keeping with the gardening style and planting themes on my property. This boulevard garden began to take shape soon after George Street was reconstructed about 2000. I had also maintained a similar type of garden on the boulevard in the years preceding street reconstruction. And, to my knowledge, I have lived amicably with my George Street neighbours throughout this time.

It is my understanding that courts have ruled that growing and tending a natural boulevard garden is a legal right protected by the freedom of expression we enjoy in Canada under the Charter of Rights and Freedoms. I think the Cobourg Boulevard By-law, by limiting boulevard growth to eight inches in height, violates that right and contradicts previous those Court decisions.
In the legal case of Counter v City of Toronto, in a similar situation, the Ontario Superior Court of Justice ruled that Canadians have the right to grow a boulevard garden because “gardening is a form of expression in and of itself”. Justice Pitt of the Court stated that a municipality can only restrict the height of the boulevard garden “to the extent that the City determines driver and pedestrian safety are at risk”. The Ontario Court of Appeal agreed with the Superior Court in that case.

Tending to the boulevard garden is a way for me to express my fundamental environmental beliefs, and I have always made sure that the garden does not compromise public safety.

The boulevard natural garden in front of my home also provides opportunity for learning, the sharing of environmentally sustainable ideas - including resilient planting for water conservation which the Town promotes - and for the simple and pure enjoyment of nature in an urban context. As the steward of the lands adjacent my property I choose how I maintain the land. My garden maintenance practices respect the environment, the needs of people using the public right of way and practical municipal requirements including snow storage from winter sidewalk and street maintenance. My boulevard garden also acts to help calm traffic on a neighbourhood street regularly used by drivers of vehicles as a short cut to avoid several signalized intersections.

I do not see how a restriction of only eight inches is necessary for public safety, and ask you to provide to me any studies or explanation that the Town has to justify eight inches as a safety measure. I doubt very much such justification exists. I am aware that many municipalities in Canada allow and encourage natural gardens with a plant height of one metre on boulevards.

I would ask that the Town cancel these Notices of Violation and inform me that they have been cancelled. I believe that enforcement action against my natural garden by Town staff would be breaking the law and violating my rights. I am prepared to defend my rights and protect my garden. I would ask that instead of taking this legal enforcement action, you work towards ensuring that we have regulations and related procedures that are just for the benefit of all citizens of the Town of Cobourg by amending the by-law to bring it in alignment with court rulings.


Miriam Mutton
423 George Street  Cobourg, Ontario K9A 3M7       905.373.0159

Attachment under separate cover: Counter v. City of Toronto Decision

Copy: Lorraine Brace, Town Clerk
            Glenn McGlashon, Acting CAO
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