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.
….2
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.
Sincerely,
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
Northumberland
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