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Rights of Anonymous Complainant Trump Rights of Nature

by Rachael Charbonneau

Cunningham Closs' front yard in full bloom
Cunningham Closs' front yard in full bloom

On Thursday afternoon, Levack resident Martha Cunningham Closs heard a knock at her door. It was a Greater Sudbury By-Law Enforcement Officer informing her that the City had received a complaint because she had not yet cut her grass this summer. The officer informed her that grass cannot be kept more than six inches tall. Cunningham Closs went outside with the officer and asked, “Do you really see any grass? There’s not that much grass left.”

A few years ago, Cunningham Closs began a wildflower garden project in her front yard. She has loved wildflowers since she was a child, as do bees and butterflies. She admits that it’s a work in progress, but she enjoys restoring habitat for these beautiful and important creatures, and this was the main reason for her undertaking this project. “Bees love wildflowers. You know those big cornflowers that pop up that everybody seems to not like? Butterflies love them.”

Grass does not perform well in Cunningham Closs’ front yard. “My ‘lawn’ is actually almost a 45 degree angle slope that is south facing. So it’s really hard to get anything to grow there. It gets basically baked. So, ‘grass’ for want of a better word, never really grew there anyway. It was moss and chunks of crab grass, really.” Another factor leading to her desire to grow wildflowers is that she lives beside an outcrop that has blueberries, wild raspberries, wild strawberries, and trees. “I have to actually work to demarcate my yard from the bush.” So she decided to try to start working with her surroundings and began adding plants, both wild and domesticated, to try to provide some shade, moisture retention, and to build the soil.

“This was the first year, in June and July, that it looked just fantastic. It’s not as bright and spectacular right now as it was back in June and July, and I guess to someone’s taste, that’s not acceptable. I am trying to bring in other flowers that bloom at different times into the parts that are all seeded. It’s not where I want it to be yet either. If I had some landscaper come in and pay them a thousand dollars to just do it all at once I’m sure that would be fine, but I’m not going to do that. I’m going to do it little bit by little bit.”

Naomi Grant of the Coalition for a Liveable Sudbury pointed out that Cunningham Closs is trying to grow a garden – not a lawn. “There's nothing against doing that in the by-law, as long as it is not deemed ‘unsightly’.” And yet this is precisely what the By-Law Officer determined. According to Cunningham Closs, after explaining her project to the officer, he restated, “You’re going to have to take care of it, it’s ‘unsightly’.” He suggested she remove the wildflowers that are presently seeding.

Cunningham Closs believes the changes he suggested will make the yard look worse than it does now. This brings to light the subjectivity of the word “unsightly”. When questioned regarding the subjectivity of this term, Shelley Kasunich, Communications and e-Media Officer at the City of Greater Sudbury, stated, “It depends how ‘unsightly’ it is.”

The actual by-law reads that grass, weeds, and wild vegetation can be no longer than twenty centimetres, which is almost eight inches. Presumably, domesticated plants are permitted to exceed eight inches, but gardening exclusively with domesticated plants is expensive and therefore discriminatory against people who can’t afford to garden that way, but who still enjoy gardening. Cunningham Closs elaborates: “There is the poverty issue too. There is the- do you have money to landscape, do you have money to get domesticated flowers as opposed to wildflowers, do you have money to buy the equipment to cut grass, do you have money to pay somebody to cut your grass? I consciously made a decision to turn this into a wildflower patch.” Indeed, gardening should be accessible to everyone.

Furthermore, domesticated plants are not the best option from an ecological perspective. Domesticated plants, as well as the domesticated plant industry, are resource intensive. Wildflowers are well adapted climactically and can withstand more variability.

Another potential distinction is: When is a plant considered “wild”? Some domesticated plants, such as roses and mallow, can take over an area when it goes to seed too. Cunningham Closs explains: “Mallow plant is a domesticated plant but it takes off like a weed, but right now it’s in a seed phase and it has little lantern-like seed pods. Well, they’re not the prettiest things to look at, but those seeds are going to reseed themselves and turn into beautiful pink and white mallow plants.” When pressed, the City’s Kasunich was not prepared to comment about whether “wild vegetation” included wildflowers. “I’ll have to check with EarthCare to see how they’re working around that.”

EarthCare is the Sudbury Advisory Panel whose stated goals are to “enhance the environmental health of Greater Sudbury, encourage members of the community to take environmental responsibility, and share knowledge and experience.” There seems to be a conflict between the by-law and the mandate of the EarthCare Advisory Panel.

Cunningham Closs expressed frustration with this conflict. “So, you’re not only telling me I have bad taste, you’re forcing me to do something that’s not good for the environment. We now know that lawns aren’t healthy. Keeping a lawn is ridiculous. It wastes water. It pollutes if you’re using fertilizer that is hurting the environment. How long have we been having these conversations about environmentally friendly landscapes? We’ve been having these conversations for a long time now.  If I had something dangerous to children out there or something that would cause a health hazard to people, I could understand the by-law, but wildflowers? No. This by-law is stupid. It’s antiquated. We cannot live with everybody having a putting green for their front lawn. You can’t have that kind of lawn naturally.”

Perhaps the conflict between the by-law and the EarthCare mandate is representative of a core issue: the conflict between people who have accepted that we have to relearn how to see ourselves as part of an ecosystem and people who insist on maintaining the belief that humans can and should dominate all life. This is a very serious cultural lag and the City should be providing leadership.

Cunningham Closs also questions the city’s complaint-driven policy. Many people, including her children and some of her neighbour’s children and grandchildren, enjoy her front yard. She has received many compliments. And yet, one person who is not enjoying the look of her garden can veto anyone else’s experience, including Cunningham Closs. “The unfairness of one person without a name, who I can’t debate, state my cause to. One person can disrupt this whole thing.”

When asked what Cunningham Closs’ rights are with regarding to the identity of the complainant, Kasunich asserted the City is not authorized to share that information. The complaint itself can be accessed under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), but the name of the complainant would be redacted. There is a five dollar charge for this request. When asked if there is a mediation option, Kasunich replied that there is no such option because of the complainant’s right to privacy.

A visit from a By-Law Officer is the first step in what can be a long process. During the visit, the By-Law Officer will make suggestions on how one can voluntarily bring their yard into compliance. A timeframe for doing so will be negotiated, the standard being two weeks. After this visit, an official Notice of Non-Conformity will be issued. The By-Law Officer will return after the timeframe discussed has elapsed and if the resident is making an effort, more time can be granted. This is at the discretion of the officer. If no effort has been made, the officer will do one of three things: lay a charge, which would cost between $150-$300; call a contractor to complete the work (the cost of doing so would be charged to the resident’s taxes); or, in the worst case scenario, issue a summons to appear in court, which carries a maximum fine of $5000.

Cunningham Closs can appeal the Notice of Non-Conformity within five days to the General Manager of Growth and Development. There is no charge for this appeal. If it is turned down, she can appeal that decision within five days to the City Clerk's Office, but that appeal costs $100. 

This story was edited on September 30th to reflect a correction to information initially supplied by the City of Greater Sudbury regarding Freedom of Information (FOI) requests.

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rm_charbonneau (Rachael Charbonneau)
Sudbury, Ontario, Canada
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