A pollinator garden rooted in controversy whacked by city

May 24—WATERTOWN — Deep in the weeds of the city's codes, there is chapter 98, adopted in 1953 and amended in 1958. It deals with the growth of plants that are "noxious or detrimental to the public health, or the seed or pollen or other emanation thereof, which, when carried through the air or otherwise dispersed, is noxious or detrimental to the public health, it shall be removed from said premises."

At 303 S. Rutland St., on a third of an acre, what was seen as beautiful and beneficial to pollinators by the family that lives there was viewed by the city's code enforcement office and the code itself as a violation and a matter of public safety that had to be dealt with.

On Tuesday morning, Lindsey E. McCann, who lives at 303 S. Rutland St. with her husband and four children, was in Syracuse with one of their children when her home-schooled daughter called her from home to inform her that a crew had arrived and was busy removing their yard's "pollinator habitat."

McCann then went to her phone to witness the operation. "We're watching it on security cameras as they're destroying everything right now," she said, distraught. "We have a certified pollinator habitat and garden. It's a native species garden."

McCann said she has operated her land as a pollinator garden since 2019. She and her husband, Joshua P. McCann, purchased the South Rutland Street property in 2016. The have four children, ages 4 to 12. Joshua is a disabled Army veteran and spent all his six years in the service at Fort Drum, minus deployments and training.

"My kids are proud of the garden," McCann said. "They've been helping doing everything."

Last week, McCann sent a letter to City Council members. "Our yard has provided walkers with a spot where they can see nature at its best within city limits," it partially reads. She added that code enforcement was trying to make the family remove their habitat "and our ability to farm our land."

There's nothing in city code that recognizes certified, nor non-certified pollinator habitats. As for the "farm" aspect, city code 310-47 personal agriculture states, "Animals, crops, plants, and composting shall only be kept in conditions that limit odors, noise, the attraction of insects, and rodents so as not to cause a nuisance or health hazard to occupants of nearby buildings or lots."

The 303 S. Rutland St. property is familiar to City Code Enforcement supervisor Dana P. Aikins.

"We cut everything that appeared to be grass and weeds," he said. He added that the issue wasn't with what the family was doing to the yard.

"It was the manner they're doing it in," Aikins said. "We don't have an issue with working with people who want to have a pollinator garden. Most of the items there was grass."

He noted that another property which has a "sanctuary" and which does not require similar notices or cleanups is located at 730 Holcomb St. in the city.

McCann said the issue was taken to court last year and she is represented by a Jefferson County public defender. They met again on Thursday.

"We were in court all last year about this," Aikins said. "We gave them every opportunity to create just a little diagram. We had some suggestions, but not mandates. The public would also appreciate if this stuff didn't go to the sidewalk and hang over. There's a bunch of other places around town that have done this in a more proper fashion. Theirs just looks unkempt. We worked with them the previous year and didn't take action."

McCann said her property is certified by a variety of groups such as Wild Ones, New York Bee Sanctuary, Xerces Society, Pollinator Pathway and the Butterfly Garden Certification Program.

"Even if it was all wildflowers and not encroaching maybe on the sidewalk, that would be more acceptable," Aikins said. "All we've asked them and their several public defenders is to draw us a little plan, tell us what you're planting, identify where it is on your property and tell us what it does, to indicate to us a little bit. I can determine grass and weeds. I'm not an expert on what pollinators use."

"Our lawyer said that was illegal and he can't demand us to submit plans," McCann said. "It was never a part of the court case."

Aikins said that following court appearances last year, the owners were told to clean up the yard.

"They did clean it up, and now we're back there this year," he said on Wednesday. "So based on last year's determination and my effort to try to work with them and get them to do the right thing, which they haven't, we mowed it yesterday."

He said the action was preceded by a letter sent to the McCanns a week and a half ago.

McCann said that the city can't claim victory in last year's court case. "The case got dismissed with the agreement that everything that had been pollinated and served its purpose, we would break down, which we ended up composting," she said. "They didn't win any case. The case got dismissed because it was the end of the season."

McCann said that during Tuesday's cleanup, the contractor hired by the city "even went through and weed-whacked inside of our raised garden beds we just put up."

Aikins said the term "raised bed" is not defined in the city code nor the 2020 Property Maintenance Code of New York State. "Therefore we refer to the standard definition," he said.

Cornell Cooperative Extension defines a "raised bed" this way: "Raised beds are basically unmovable, bottomless boxes. The vertical 4 x 4 supports extend downward into the ground. Raised beds can be made from naturally rot-resistant lumber such as redwood, or big wooden barrels, brick or stonework."

"This department has also encouraged the McCanns to work with the City Council and City Planning Department to create new laws/rules/regulations so these types of sanctuaries are permitted and guidelines created which work for the entire community," Aikins said.

The city contracts for such tasks as mowing unkempt lawns. "We bid that out," Aikins said. "It takes away from what we're doing if the city did it with our own workers. They bill us and we bill the owner and tack on a code enforcement surcharge."

That surcharge is based on the number of times a crew has been to a property.

"In this case, probably even though we went to court, this is the first time we cleaned it up," Aikins said. "They'll only have the minimum charge."

The city code says that remedies will cost a fine "not less than $50 nor more than $250 for the first offense." The surcharge is basically a fine that escalates for repeat offenders.

"If we go mow it again, the first time is $100 on top of the contractor's fee, which I won't have until they bill us within 30 days," Aikins said. "The next time is $250, and then $350 and $450 — just to try to get you to clean your property up."

On Thursday afternoon, Lindsey and Joshua McCann, as they stood in their yard, said they will begin replanting. "We got more pallets so we will be putting more boxes, up," Lindsey said. "They took everything: the milkweed, the golden rod and the asters that were everywhere."

Lindsey said she met with her public defender earlier in the day. "She directed us to continue showing people what it is, put more signage up."

"Pollinators are important," Joshua said. "There has to be somewhere in the city for them to go, or everything is just going to die."

Lindsey said their garden attracted much more than bees as pollinators. It was also popular stop for butterflies, including swallowtails and painted lady varieties.

"There's a lot of biodiversity that a lot of people don't see as they're walking through the city," Lindsey said. "We've had pre-school and kindergarten classes walk by, saying, 'Look! You can see bugs and stuff!' It's all these different plants that you didn't know grew in New York. This is what naturally should be here as opposed to invasive species that choke out other things."

The McCanns said their children love learning about the garden. "A lot of the plants are edible. People don't know you can forage. It's teaching them about biodiversity, conservation, being environmentally aware and that reducing their carbon footprint is important. It's important to be self-sustaining."

On Thursday, there were signs of new blooms. In a kiddie pool, onion plants remained. Strawberry plants appeared elsewhere. Inside a toilet that the couple recycled for the garden, marigolds looked days away from blooming. "We had sunflowers growing out of it last year and the year before," Joshua said.

The couple was asked if the neighbors complained about the yard.

"Not that we outwardly noticed," Lindsey said. "The neighbor behind us says they always love seeing all the new birds. We had two pairs of cardinals this year, which were new."

Aikins said the City of Watertown Bureau of Code Enforcement issues about 80 to 100 violation letters regarding tall grass, weeds and brush per week (during the late spring, summer, and early fall). Approximately 10 to 15 of these result in city cleanups (through its third-party vendor). The remaining violations are resolved by the property owners.

"Trash and debris is always a problem," Aikins said. "But grass and snow is seasonal. As soon as you hit a certain date and no one has mowed, they're everywhere. We can only send so many letters a week and still get all of our other state-mandated things done. We've kind of broken the city up and start at the main drives, or any complaints we get."

Some communities have backed the No Mow May movement. Residents are allowed to let their lawns grow in the month as a conservation initiative to promote healthy habitat for pollinators. For example, in Cortland, residents there can register for the initiative with the city's code enforcement office.

"There's no provision in our current code to do that," Aikins said, and would likely have to be approved by City Council. "There's no function right now for me to allow that, even if I wanted it."

One of the backers of No Mow May, Bee City USA, says that lawns cover 40 million acres, or 2%, of land in the U.S., making them the single largest irrigated crop we grow.