I probably shouldn’t have been surprised, but I was surprised upon learning recently of a municipal by-law requiring landowners to keep grass and weeds down below a maximum height on the municipal boulevard abutting private properties. The by-law was passed by an urban municipality – a city in the GTA area – and applies to all “private land” regardless of its use. While it is easy to picture the small strip of grass located between the edge of the street or sidewalk and a residential front yard and to understand why a municipality might expect the homeowner to cut the grass on the boulevard (road allowance) strip if the homeowner is cutting the lawn on the private property anyway, what about larger farm properties or industrial properties within the municipality? Is it fair to impose an obligation to maintain large stretches of municipal property on non-residential landowners? Is it legal?
It turns out that boulevard maintenance by-laws are fairly common in Ontario. A 2012 report from the “Boulevard Maintenance Task Force” to municipal council in one community explains the rationale and authority for the by-laws:
“Most residents and business owners … assume responsibility for maintaining turf areas on municipal boulevards abutting their properties, however, some property owners only cut the grass within their own fenced yards or only up to the limit of the sidewalk fronting their homes. This practice creates an unsightly, unkempt appearance within the community particularly on residential corners and side lots.
[…]
“Amendments to the Ontario Municipal Act now authorize municipalities to enact By-laws requiring property owners to maintain the boulevard areas abutting their private properties. Enforcement of the By-law would be similar to the current practice whereby Enforcement Officers would respond to complaints by conducting site visits and providing formal notice to the owner to cut the grass. However, if the owner chooses to ignore the notice, the Town will undertake the work and add the costs incurred (including administration and overhead) to the tax roll.”
I have been unable to find any specific authorization in the Municipal Act, 2001 for by-laws that require property owners to maintain abutting municipal lands, whether within a road allowance or not. The preamble to the by-law I looked at from the GTA-area municipality refers to the very broad authorizations in Section 11 of the Act, which permit by-laws for the “economic, social and environmental well-being of the municipality, including respecting climate change” and for the “health, safety and well-being of persons.” The Act also provides that municipalities may require a property owner to clean and clear the owner’s own land and may prohibit and regulate with respect to public nuisances. However, there doesn’t appear to be any specific authority to require private landowners to carry out maintenance work on municipal-owned property.
Another by-law I reviewed stated in its preamble that: “AND WHEREAS … section 446 of the Municipal Act, S.O. 2001, c.25, grants a municipality the authority to direct or require a person to do a matter or thing, and the municipality may also provide that, in default of it being done by the person … directed or required to do it, the matter or thing shall be done at the person’s expense and, the municipality may recover the cost of doing a matter or thing from the person directed or required to do it by action or by adding the costs to the tax roll and collecting them in the same manner as property taxes”. However, Section 446 of the Act doesn’t actually grant authority to order someone “to do a matter or thing” – it only provides for the municipality’s right to charge back the cost of doing the matter or thing where a person doesn’t do it. The municipality still has to have had the legal authority to order someone to do something in the first place.
So are municipalities really authorized to order landowners to maintain the municipal boulevard or road allowance adjacent to private lands? Keeping weeds and grass down to an acceptable height along streets and highways is certainly a reasonable goal that should be supported by all members of a community. However, boulevard maintenance by-laws don’t just call on certain members of the community to devote time and expense to the upkeep of public lands; a requirement to carry out work on municipal lands also shifts the risk of liability to private landowners. I didn’t see any by-law that mentioned protections for landowners who are required to enter upon and carry out work on boulevards or road allowances. If damage is done or someone gets hurt, the landowner may very well be on the hook.
If there is legislation that authorizes a municipality to require private landowners to carry out operations on abutting municipal lands (and to take on the risk of liability), it doesn’t seem to me to be the Municipal Act, 2001. There used to be a law in Ontario called the Statute Labour Act, which obligated landowners to contribute labour to maintain municipal roads. The law dated back to the first Acts of the Parliament of Upper Canada in 1793 and effectively enabled property owners to contribute labour in lieu of paying taxes in cash. The original Act provided: “That the roads and highways, in and through every parish, township or reputed township shall be cleared, repaired and maintained by the inhabitants thereof, and that every person being a householder or freeholder, shall either in person or by a sufficient man in his stead, be obliged to work on the roads …”. The Statute Labour Act was repealed on January 1, 2022 and no new legislation has been passed to replace it.