When Cities Grow Wild - Natural Landscaping from an Urban Planning Perspective

by John Ingram

3.1 Natural Landscaping on Private Property

Historically, there have always been proponents and practitioners of natural landscaping. From English prime minister Winston Churchill with his country home in Kent to the designs of influential American mid-western landscape architect Jens Jensen, the list of those involved with the early days of natural landscaping includes several prominent names. Perhaps the most significant advocate was Aldo Leopold. It is, in fact, to him that natural landscaping not only owes a part of its philosophical underpinnings as articulated by the Land Ethic, but also the first modern, urban natural landscape -- a 1932 restoration of a large piece of derelict farmland abutting the University of Wisconsin in Madison to its natural state.

Beyond these well known pioneers, however, the continued growth and promotion of the movement rests with mostly nameless individuals. Certainly, amongst the movement itself there are certain key individuals stand out, but for the most part it has been a quiet, grassroots movement that has only broken into the mainstream in the past decade24. As a contemporary phenomenon, its kickoff can be attributed to the 1962 release of Rachel Carson's enormously influential book, Silent Spring, which exposed the environmental dangers of pesticide use both by the agricultural industry and by private homeowners engaged in conventional landscape management practices. After the books publication, individuals began to reject traditional lawns and, consequently, to adopt natural landscaping as an env]ironmentally friendly alternative approach to land care. Ultimately the movement achieved a certain critical mass of support which manifested itself in the creation of single purpose natural landscaping organizations and landscaping firms and the practices official recognition and promotion by several key national environmental organizations25.

Although naturally landscaped yards and public properties are still a relative rarity amongst the turf lawn dominated urban "blandscape", there is now a certain base level of public and political awareness of the practice throughout North America. In some areas, notably the American Midwest states of Minnesota, Illinois and Wisconsin, the practice is widely promoted and even celebrated as both a private and public pursuit. Still, as the next section will make clear, it has been an uphill battle as individuals have had to repeatedly defend their practices against neighbours and municipal officials convinced that the landscapes they were creating were unsightly, unkempt and posed public health hazards.

3.1.1 Private Property Natural Landscaping: Legal Challenges

As the natural landscaping movement has grown in popularity, so have the challenges it has been forced to overcome. The pioneers may have done much to promote natural landscaping, but they did not witness the codification of an antithetical, turf-based landscape ethic in a variety of municipal by-laws promulgated from the mid 1950s onwards. As outlined in section 2.1.1, The Evolution of the (sub)Urban Landscape, the lawn has become a loaded symbol for the larger landscape ethic of which it is a part. In the minds of most property owners and public officials, the maintenance of neighbourhood property values, public health and civic aesthetic order is contingent on the superficial care and upkeep of turf. It is this "collective code of landscape conformity" that is enshrined not only in typical municipal service standards, but also in common "unsightly premises" and "weed" ordinances (Johnson, 1993)26. It is these ordinances that pose one of the most significant barriers to natural landscaping on private property.

Dating from the early part of this century, most municipalities passed by-laws and ordinances that banned "weeds" above an arbitrary height and lawns of a certain "unsightly" character in residential areas. Although many of these laws were rooted in genuine concern for public welfare and health, they were also intended to preserve the established aesthetic order of both the urban and suburban residential landscape (Rappaport, 1993, Clark, 1994, Jenkins, 1992).

Unlike state and provincial weed laws whose sole stated objective is to protect specific crops from explicitly named plants, municipal weed laws are neither intended to protect agriculture, nor are they specific in what is meant by the word "weed". Unsightly premises ordinances tend to be similarly vague and subjective in their definition of key words as "unsightly" and "excessive".

The most comprehensive legal review of weed by-laws to date, attorney Bret Rappaport's article in the John Marshall Law Review, determined that many by-laws simply define, or rather associate both weeds and unsightly premises with grass heights of over eight inches (Rappaport, 1993). Given their subjective and vague nature, therefore, many of the by-laws have been struck down when challenged by natural landscapers who have been prosecuted under them. The record of cases involving naturally landscaped yards has also determined that most weed and unsightly premise by-laws are unfounded in their assertion of the public health risks associated with "weedy" properties.

Since the first weed law cases against natural landscaping in the early 1970s, most by-law challenges have been won by "naturescapers", as many refer to themselves. From the successful rulings, natural landscaping has not only gained fundamental legal acceptance in the courts, but also in the press. Many of the cases generated substantial publicity for the practice. Indeed, as a result of the early cases, there has been a general progression, or evolution of by-law standards from prosecution to acceptance. Encouragingly for proponents, the legal position has actually continued to evolve to one of enthusiastic promotion in an increasing number of municipalities (Rappaport, 1998). In terms of legal precedent, two major cases should be briefly reviewed. One of the two occurred in the U.S. while the most recent, and for Canadians, the more significant, occurred in Toronto in 1996. The first critical legal battle, City of New Berlin v. Hagar, occurred in Wisconsin in 1976. The case involved a private landowner, Hagar, who naturalized the front lawn of his suburban property and was prosecuted under the City of New Berlin's weed ordinance. Hagar refused to pay his fine and was brought to court by the City. The case is so important because Hagar not only was a tenacious defender of natural landscaping, but also a wildlife biologist with access to professional, scientific support and evidence. Some legal observers consider it the "first, and best, judicial recognition of the practice [natural landscaping] and the irrational assumptions that underlie the use of weed laws to prosecute natural landscapers" (Rappaport, 1993).

The case set an extremely important legal precedent in that the court sided with Hagar and ruled unequivocally that natural landscapes do not pose a threat to public health and safety as the municipality and its weed law suggested they did. The following table outlines some of the myths concerning the safety of residential native landscapes that were disproved by the case. The table uses the evidence submitted to the court by Hagar's team of expert witnesses. Ironically, even in the twenty years since the case, many public officials, public opinion in general and numerous ordinance and by-laws still maintain what was emphatically disproved by the ruling.

Table 3.0 Myths and Facts about Natural Landscapes

Myth #1 Natural landscapes present a health hazard, as they attract rats, other vermin and mosquitoes

Fact: Natural landscapes do not encourage rats and other vermin, as they do not provide the type of food in the quantities required to sustain any population. Rats populations are associated with human environments and the garbage food sources they make available. Additionally, natural landscapes are less of a mosquito breeding ground than their domesticated counterparts, given their rapid water infiltration rates. Mosquito breeding requires at least ten days supply of standing water, an occurrence more common in turf-based landscapes where water infiltration rates are slowed substantially by turf.

Myth #2 Natural landscapes, particularly meadow and prairie plantings, are responsible for increased airborne pollen and localized allergy problems

Fact: Wildflowers and native grasses associated with natural landscapes do not create a pollen problem. The herbaceous plants most responsible for pollen allergens fall into two general types: (1) pioneer plants such as ragweeds. which are associated with environments subject to repeated disturbances such as erosion or cultivation, and (2) non-indigenous turf and pasture grasses such as Kentucky bluegrass, perennial rye, timothy and Bermuda grass, all of which are the predominant constituents of lawn grass.

Myth #3 The dried grasses and shrubs of natural landscapes present a fire hazard.

Fact: Grassland fires burn quickly, at moderate temperatures and do not have high fuel loads. Also, fires, when they do occur, do not create large and persistent embers that can be carried in the wind as is the case with wood, or forest fires.

(source: Rappaport, 1993, 1998)

In addition to disproving the the health, fire and safety problems wrongly associated with native landscapes, the cross examination of a local realtor also determined that naturally landscaped residential properties do not detrimentally affect neighbourhood property values. More importantly still, the judge also ruled that the ordinance under which the defendant was tried violated the Equal Protection clause of the U.S. Constitution (Rappaport, 1993). The presiding judge struck down the law as unconstitutionally vague, holding that the term "weed" was too subjective and that a law could not prohibit a plant without expressly and objectively defining it.

Here in Canada, the landmark natural landscaping case took place quite recently. In Bell v. Toronto (City) [1996], the appellant, Sandy Bell, appealed a conviction issued by the City of Toronto under the city's Housing-By-law which required that residential yards be kept free of "excessive weeds and grass" (City of Toronto By-law No. 73-68). Ms. Bell received the conviction and was assessed a $50 fine for her small, naturalized front lawn in the residential Beaches district of Toronto. Bell challenged her conviction under the by-law on three grounds: first, that it was a violation of the Canadian Charter of Rights; second that it was void for "vagueness and uncertainty"; and third, that it exceeded the City of Toronto's delegated legislative authority.

In the case, Ontario Provincial Justice Fairgrieve ruled that the word "excessive" used in the by-law was "completely subjective and essentially arbitrary, and provided no guidance to allow the courts to reasonably interpret the word or devise a test that achieved the legislative objective" (Bell v. Toronto [1996] O.J. No. 3146). In ruling that it was void on account of its vagueness, the judge also ruled that the by-law was an "impermissible regulation of land-use based on aesthetic considerations" (Bell v. Toronto [1996] O.J. No. 3146). Most importantly for the natural landscaping movement in Canada, the by-law was also found to "clearly and unjustifiably" violate the freedom of expression guaranteed by section 2(b) of the Charter of Rights and Freedoms. Natural landscaping as a practice, therefore is guaranteed as a matter of conscience that cannot be prohibited by the government without a compelling reason. In siding with the defendant, Justice Fairgrieve offered the following words:

The objective of creating neat, conventionally pleasant residential yards does not warrant a complete denial of the right to express a differing view of man's relationship with nature. As between a total restriction of naturalistic gardens and causing some offence to those people who consider them ugly or inconsiderate of others sensibilities, some offence must be tolerated. (Bell v. Toronto [1996] O.J. No. 3146)

ing300.jpg (120000 bytes)
Figure 3.0 Sandy Bell, her son and her garden
(source: Wildflower v13, n1, 1997)

The Bell case, in the estimation of natural landscaping legal observer and attorney Bret Rappaport, "offers compelling authority for natural landscapers faced with an unreasonable weed ordinance predicated solely on ensuring aesthetic conformity with the community" (Rappaport, 1998 p25). For Canadian law, it is a landmark and precedent setting decision.

It is important to point out that the preceding cases, as pivotal as they are, represent only a fraction of the cases that have gone before the court. Although the Bell case represents the single Canadian case, there have been many more in the United States. The two cases reviewed, however, serve to demonstrate the flawed nature of the unreformed weed and unsightly premises by-laws that remain. They also serve notice that those remaining by-laws and ordinances which force people to comply with a certain aesthetic standard will not stand the test of law if tried.

3.1.2 Natural Landscaping By-laws

In response to the overruling of the by-laws outlined in the previous section, more and more municipalities have been forced to adopt permissive natural landscaping by-laws. Generally speaking, the nature of the by-laws has evolved from highly restrictive ordinances to more accepting and supportive by-laws. The shift, of course, reflects the increasing acceptance and practice of natural landscaping by both private individuals and public authorities.

The first generation of permissive by-laws allowed naturally landscaped properties by permit only after they had received "approval" from a majority of neighbours. The very first ordinance of this sort was adopted in Madison, Wisconsin in the early 1980s. Still in effect today, the Natural Landscaping Ordinance not only puts the onus on the landowner to create support for his or her project, but also requires a successful applicant to adhere to certain maintenance and setback requirements stipulated by the city (Daniels, 1995). Additionally, to obtain the permit, the property owner is required to first submit a somewhat daunting site plan with the location of the plant materials, list of plant materials by common name and all setbacks of plant materials.

Although the ordinance was certainly a first step in legally recognizing natural landscaping, critics view the neighbour veto and city approval process as an unnecessary limitation of the right to naturally landscape ones yard (Rappaport, 1998). Despite its later adoption by other jurisdictions, the ordinances restrictive nature and its cumbersome and expensive administration process ultimately led to development of more simplified and permissive by-laws. Even though the original ordinance is still in effect in Madison, city officials and the general public has become quite accepting and supportive of natural landscaping and the city is no longer strict in the by-laws application (City of Madison, personal contact 1998).

The next generation of natural landscaping by-law began to appear in the early 1990s. Unlike the Madison-style permissive by-laws, the updated ordinances permit natural landscapes without neighbour approval or city permission. Typically associated with these by-laws, however, is a setback requirement from the front or perimeter of the lot where vegetation may not exceed a certain height (usually 10 or 12 inches) excluding trees and bushes. The border keeps plants from encroaching upon the sidewalks and streets and frames the natural landscape, creating a tended look that provides a measure of conformity, tidiness and intention and the all important "perception of care" outlined in section 2.2.5 (Nassauer, 1996). Examples of this type of by-law can be found across the United States from Portland, Oregon to Orlando, Florida. Again, given natural landscaping's historic roots in the region, the majority of by-laws can be found in municipalities in Wisconsin, Illinois and Minnesota. Overall, the setback-based by-laws have been found to be easy to understand and enforce and present a workable compromise between the diverse interests of the community, the natural landscaper and his or her neighbours (Rappaport, 1998).

ing301.gif (32878 bytes)Figure 3.1


Some border mowing alternatives for the 'setting back' or 'framing' of naturalized properties
(source: Platt et al., 1994)

There is a related type of "second generation" weed law that includes broadly worded exceptions for natural landscapes, thereby expressly protecting them from municipal prosecution. Toronto's recently amended weed by-law provides such an example. It states:

A. For the purposes of this Article, the term "grass and weeds" shall refer to all noxious weeds. and local weeds. designated under the provisions of the Weed Control Act [Editor's Note: See R.S.O. 1990, c.W.5.] and any growth which does not form part of a natural garden that has been deliberately implemented to produce ground cover, including one (1) 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. [Added 1997-01-13 by By-law No. 1997-0037] (Toronto Municipal Code, 1998)

Another example of such an approach is in Boone County in northeastern Illinois where its revamped weed ordinance includes broadly worded exceptions for natural landscapes. Its wording has been adopted by other American jurisdictions (Wild Ones Native Plant Consultants, personal contact, 1997). An excerpt from the Boone County ordinance follows:

Boone County, Illinois Weed Law Exceptions
The following exceptions have been provided to assist the home/land owner by establishing legal provisions whereby uncontrolled growth is permissible. To apply for any of these provisions see the section entitled
4. Exceptions
a. NATIVE PLANTINGS - the use of native plant species for aesthetic and/or wildlife reasons
b. WILDLIFE PLANTINGS - the use of native and/or introduced plant species to attract wildlife ...
f. EDUCATIONAL PROGRAMS - plantings designed for educational purposes (from Boone County Health Department, 1987)

Although natural landscaping by-laws continue to progress and evolve, however, many believe that the ultimate utility of ordinances is limited. Some proponents feel that there should be no by-laws at all, and that property conflicts resulting from an individual choosing to naturally landscape his or her property should be managed through public education. This issue remains unresolved.

3.1.3 Corporate and Private Developers Landscaping Initiatives

The continued evolution of supportive natural landscaping by-laws is buoyed by the practices increasing application in the private corporate realm. More and more influential corporations have initiated or completed significant natural landscaping projects on company properties. The sheer number of endeavours not only builds public awareness of the natural landscaping, but also strengthens credibility of the practice amongst public authorities and private land owners. For the corporations themselves, natural landscaping achieves three other primary goals: first, the projects can help build a company's public image as an environmental steward and benefactor; second, the creation of natural landscapes can improve employee morale with staff picnic sites and walking/jogging trails being common design elements; and third, the reduced maintenance costs associated with natural landscapes is appreciated by "bottom line" conscious companies.

As with many of the more progressive natural landscaping initiatives,the bulk of current corporateing302.jpg (35064 bytes)projects are located in the American Midwest. One of the best known examples is the IBM corporate offices in Minneapolis-St.Paul where a 10 acre conversion of its turfed corporate landscape to a high quality tall grass prairie was so successful  in terms of cost savings, public reaction and employee support that the company  has since restored another 300 acres of its property to prairie (Reed, 1994).
Figure 3.2 AT&T Corporate Campus Prairie, Illinois

(source:North Eastern Illinois Planning Commission, 1997)

In another example, Safety Kleen Corp., the worlds largest recycler of hazardous and non-hazardous automotive fluids, developed a 79 acre woodland complete with a 1.25 acre storm water pond with a naturally vegetated outlet to an existing creek. A post-development audit conducted by the the U.S. EPA determined significant cost savings over traditional sod landscape and an improvement in staff morale given the sites natural beauty, the passive recreational opportunities it provided, and its use for company picnics (EPA, 1998). Other companies that have successfully employed natural landscaping strategies include General Mills, the Quaker Oats Company, the Body Shop and Chrysler. The projects all range in scope, style and geographic location.

As a practice, natural landscaping has been endorsed by the National Association of Home Builders in the US through their project Global Relief for New Communities, a stringent certification program to support developments which live in concert with [their] natural surroundings rather than erase nature from the landscape (Reed, 1994). To qualify for certification, new developments must submit specific plans concerning the conserving of soils, trees, wildlife habitats  and water features ining303.jpg (42145 bytes)    addition to use of native species in landscaping. One of the first developments to was  Northridge, a 344 acre   residential development outside of Washington, D.C. where site features include the elimination of curbs and gutters in favour of naturally vegetated drainage swales and naturally landscaped cul-de-sac islands (Reed, 1994). Another more recent certification program has been started by the non-profit National Institute of Urban Wildlife.

Figure 3.3 Suburban Wetlands, Illinois
(source:North Eastern Illinois Planning Commission, 1997)

3.1.4 Natural Landscaping on Private Property: Conclusions

Although there are certainly many supportive by-laws in place and an increasing number of private commercial ventures employing natural landscaping concepts, together they are still in the minority. Despite its rapidly growing popularity and its broad based support in some regions, the majority of North American municipalities still use out-dated ordinances. Many, like Halifax itself, have yet to even have their first exposure to the practice, or to show any genuine interest in its applications and benefits. For these reasons there are going to be many more "first times" when individuals must defend their landscaping approach and convince municipalities, legally or otherwise, to amend their restrictive ordinances. Although legal precedents have been set in both Canada and the US, knowledge of them will remain limited until the practice becomes commonplace. Still, momentum is on the side of natural landscaping, and as a legal counsel on the subject pointed out recently, "the telephone calls don't come as often as before" (Rappaport, 1998).

Increasingly, more progressive municipalities are abandoning restrictive, regulatory approaches to natural landscaping all together. Instead these few jurisdictions are actively promoting and facilitating its use through overarching public policies and by helping to expose the practice to the general public through highly visible parkland and open space projects. On the project level, community involvement in the design, planting and maintenance of these areas is generally very high. Indeed, natural landscaping is fast becoming a "mainstream" municipal concern and policy matter. Although there is certainly a level of trend or "faddishness" in some of the projects and policies underway, the next section will make clear that, for the most part, natural landscaping is consolidating itself in the public realm as one of the more significant environmental planning concerns of recent years.

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All rights reserved. Updated April 17, 1999.

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