When a Garden Needs a Lawyer

Here's a guest rant from Michelle Clay/The Clueless Gardeners. 

In July, against their wishes, the city of Bartlett, Illinois mowed down Donald and Benia Zouras’s garden.  And Don and Benia have to pay for it.

I’ve sifted through their record of what happened, and I’ve read the relevant parts of their town’s laws.  The research has left me confused.  The fact that I’m not a lawyer doesn’t help.

Some background: Don and Benia have worked for years to make their suburban yard into a wildlife habitat.  Their yard was one of three that I profiled back in March here at Garden Rant as risky but noble gardening causes.   At the time, Don seemed confident that his two brushes with disapproving neighbors and heavy-handed local laws were the end of his troubles. 

The Zouras’s made an effort through signs to let their neighbors know what was up with the yard.  But despite having their website posted on a sign by the sidewalk, they received almost no feedback until after the mowing took place.  Anonymous neighbors then called his yard an eyesore, an overgrown mess.  “At least with a forclosed home someone is mowing the lawn.” said one person.”  Said another, “You need to realize there is other houses around you and it just doesn't blend in; it's simply ugly and unorganized. Keep that stuff in your backyard.”

These comments were, thankfully, outnumbered by sympathetic feedback.

To be clear, it wasn’t their entire yard that got mowed; it was the strip between sidewalk and road where the utilities are buried.  But here is the odd part: the town cited a part of the law that applies to creating obstructions (visual or otherwise) to pedestrian or vehicular traffic.  The Zouras’s hell-strip garden may not have been the aesthetic ideal of suburbia, but they live on a straight road, away from intersections.  Their plants could hardly be blocking the view of drivers.  Furthermore, judging by the photos, the plants did not flop significantly into the sidewalk.  Was the bureaucrat who cited that part of the law just inept?  Or was that particular snippet of the town code drawn out of a hat as an excuse to enforce the aesthetics of some neighbor who had his panties in a bunch?

The letter they received from the town also mentions that it is unlawful to plant anything “in any public street or parkway” without approval of the Public Works Director.   This, I think, is the only part of the town’s complaint that holds water.   The Zouras’s did not apply for a permit to plant where the street’s power lines are buried, and therefore the town trumps.  Never mind that Don attempted to get some clarity from town on the letter’s strange wording, and was answered with one-line variants of “we already sent you a letter that says you violated the town’s code.”

Oddly, there was another part of the law which the town didn’t use against the Zouras’s yard, but could have: the Nuisance Laws.   These laws state that “Any such weeds as jimson, burdock, ragweed, thistle. . .” (perhaps the authors of this law were unaware that Pitcher’s thistle, Cirsium pitcher, is listed as a federally threatened plant)  “. . .cockleburr, or other weeds of like kind. . .”  (Mead’s milkweed, Asclepias meadi, is likewise endangered)  “. . .found growing in any lot or tract of land. . .”  (even parkland?)  “. . . in the village are hereby declared to be a nuisance, and it shall be unlawful to permit any such weeds to grow or remain. . .”   (This is a joke, right?  I can understand making weed illegal, but weeds?)

This bit is somewhat of a tangent, but I can‘t resist repeating it here: “It shall be unlawful for anyone to permit weeds, grass or plants, other than trees, bushes, flowers or other ornamental plants to grow to a height exceeding eight inches. . .” 

Just let that one sink in a bit.  A Bartlett resident could be fined for growing tomatoes.  Or for owning an ugly shade tree.  Perhaps the town didn’t cite this section of the law because the law is too ridiculous to hold up in court.

For the safety of workers, and to protect the underground cables and pipes from damage, it is reasonable for a town to demand permits for what gardeners plant on their utility strips.  But would the town have turned a blind eye on Don’s yard for a few more years if the neighbors had found it to be visually appealing?  Did the town go clumsily looking for an excuse to mow his yard in order to appease the offended sensibilities of a few suburban conformists?

If there's a lawyer in the house, I would love to hear an opinion.

Photo used with permission from Don Zouras.

Comments

[Lisa]

Oh my heart goes out to these folks, it's sad the city pulled the "we don't like your taste" card, because it wasn't really for the reasons they listed, it was probably because the city got sick and tired of listening to the loudest whiney butt. I could be mistaken, but it appears from the first picture two that at least some of it is in flower, so that means there are right and wrong flowers too? I hope they can get over the shock, if they can't I hope they sue that smug city.

[Tibs]

"I am a bureaucrat and I'm okay", sung to the tune of Monty Python's "I am a lumberjack". And yup, the mayor got tired of hearing Whiney Butt and told the bureaucrats to take care of it. Or else.

The homeowners could go around town and take pictures of other places that don't meet the above cited codes, (or any city codes for that matter, there are lots of silly rules on the books. For a fun time, read your city's codes!) and start their own whiney butt campagn about uneven enforcement. But that would just make the poor grunt of a bureaucrat suffer.

[Kathleen]

In my next life, I'm living in the country far away from busybody neighbors who have nothing better to do than monitor who is planting what where. This sort of thing happens all over.

[Susan in the Pink Hat]

That is a huge hellstrip. Eight inches? That is a shocker. If they really did get a lot of sympathy from some folks in their comment box, and if they really are committed to change this, why not try to fight that ordinance with a petition? A height increase to 12 or 14 inches will surely not interefere with traffic. And I'm sure they could find people in violation of this to take to the city council and say, "if you aren't going to uniformly enforce the law, then change it." I don't think they will have much luck changing the nuisance law, though.

[Kate]

This reminded me of a story of a gardener Douglas Counter from Ontario who challenged the city by taking his case for preserving his natural boulevard garden to court and won! His story was featured in an episode of Recreating Eden. http://www.recreatingeden.com/index.php?pid=8&season=01&episode=6p

[Michelle Clay]

Thanks for that link, Kate!

[dcs]

Being a curmudgeon, my first thought is to say "Oh visibility is the problem, is it? Well, I'll show you a hell strip." Then I'd go get a string trimmer, hang a length of chain from the shaft as a guide that puts the head exactly 7" from the ground. I'd leave the existing plants, maybe plant some native grass between them. Once per week (documenting date and time) I'd go out and "mow" those plants to within an inch of the "legal" height.

Compared to the pre-mowssacre plantings, it would look awful.
But it would leave no excuse for them to mow it, complying perfectly with the letter of the law. I probably wouldn't do it, but I'd be tempted.

[Gloria]

I never plant in the hell strip for this reason, no courage to fight city hall.
Don and Benia have put a lot of work and money into that garden, it is a shame they have lost that section. I hope they have not lost heart with this defeat. A wildlife garden is of benefit to the community in ways that are being recognized slowly.
Michele, have you seen that Amelanchier has recieved notice from Buffalo NY that both the front and back will be mowed in 7 days. No time to fight. No previous notice. He was on a garden tour this summer and got noticed by someone.He is really worried.

[Laura Bell]

Wow. Way to go Bartlett IL. That's certainly more attractive (btw, what's the html tag to denote "dripping sarcasm" ?).

If the idea is to protect the underground pipes & cables, why are shallow-rooted plants like grasses & annual flowers being cut down, but not the trees ? Seems to me if anything is going to cause problems with the underground utilities, it's the deeper, much more troublesome roots of a growing tree. Should work need to be done on that part of the hell strip, it would certainly be easier to remove & replace the smaller plants & stepping stones there than the tree. Yet it meets code ? Where's the logic in that ?

[Abby]

This is why I keep my "meadow" in a back yard surrounded by arborvitae and viburnum. Here in FW, the city won't cite you unless someone complains, so it seems step one is to get your neighbors on your side, or try to reach a compromise with them. This town is not very progressive, but at least they exempt rain gardens from the weed ordinance.

[Michelle Clay]

Oh nooooooo, not Amelanchier, too! His garden had such promise! Gloria, do you know if he has any sort of web presence? I would love to get some attention focused his way. Ack, just ack.

Laura, that's a really good point about the tree roots. I'm laughing now because I'm crying inside.

[CellBioProf]

I urge everyone who want to plant or expand their ecological garden to change the local weed laws BEFORE they plant. I sent letters to my 3 township supervisors last December (before a meeting to examine the weed ordinance) suggesting wording to protect such gardens. In the letter, I noted several of the benefits to local communities of such a planting. I also read part of my letter at the township supervisors meeting. They passed my amendment unanimously, without discussion. Now I plant happily in the front yard (and keep an eye on the activities of the township planning commission in case they decide to revisit the ordinance).

[Jessika]

My thoughts? (and yes, these do come with a legal degree, but please no hating) Most of these laws were put into place so that they could deal with complaints. I highly suspect that if no one had ever whined about his yard, then no action would have been taken. But, because the rules were in place, they could be leaned on (however justifiably or unjustifiably) to mow. Laws pertaining to hell strips are pretty darn confusing and varied. You're obligated to take care of the area, but in certain parameters and with certain limitations. And if you do something ANYONE doesn't like, you stand a chance of your hard work being bulldozed.

[Sarah Jane]

It's unfortunate for these gardeners, and this is the reality of the way land use and planning law is enforced in the US. I work in a planning department in California, and our code enforcement works on a complaints-only basis. So, basically, if you're not bothering your neighbors, we're not bothering you. About anything. Ever.

The example CellBioProf cites is ideal. I think most local politicians will respond quickly and favorably to a direct and reasonable request for an ordinance amendment. Once there's been a to-do with the neighborhood, and you've got people on "the other side" of your reqest, things get more difficult.

And it's not about logic or unequal enforcement, it's about squeaky wheels getting the grease. We all need to go forth and be squeaky wheels in the name of positive change to local laws and ordinances before conflicts arise. I know I'd welcome that in my work, and sure my counterparts in other places would as well.

[Michelle Clay]

Thank you very much for the info CellBipProf, Jessika, and Sarah!

[Gloria]

Check this out.

Nature On Trial, fighting for freedom of chioce in landscaping.
Court Decision
The decision is available in two forms:

http://northcountrynotes.org/jason-rohrer/natureOnTrial/seedBlogs.php?action=display_post&post_id=jcr13_1150214324_0&show_author=0&show_date=0

[Thomas Mickey]

I think the problem with the neighbors who forced this move is that we have loved the lawn for two hundred years and can't rid ourselves of its importance in the home landscape. The seed and nursery industries of the 19th century sold us the English garden, with its beloved lawn. And so we have cultivated the green cover outside the home, and along the sidewalk, for a long time.

[Michelle Clay]

Thanks so much for the link, Gloria1 That's some fascinating reading.

Thomas, the American lawn actually originated around 1915, when the combination of reel lawnmower, garden hose, subsidised water, and encouragement from the USDA, the US Golf Association, and the American Garden Club made it possible for middle-class Americans to emulate the upper-class of England. I wrote an article on it for my local paper, if you are interested: http://thecluelessgardeners.blogspot.com/2010/07/why-grow-lawn.html

[Patrick]

Just for the sake of taking the other side, I think the before pic of the hellstrip looks weedy and unkemp. If you are going to garden a hell strip, make it look beautiful. Wildlife are attracked to any garden and it doesn't have to look like an abandoned field, which seems to be the problem with this hellstrip and what I can see past the walk into the front yard. My whole front yard is gardened away, except for the Hell strip, and the paths which are still grass. Do my neighbors like looking at the back of the shrubs forming a border right across the front of my yard? Many would probably say they don't. But I keep the lawn cut on the strip and weed the edges along the side walk so its at least tidy. You need to be reasonable, or move to the country where every untended piece of land looks like that. The pics of this garden make their yard look awefull. I probably wouldn't like it either...

[ANTIGONUM CAJAN]

That is what one could expect from those progeny of the original Mayflower, fellows, traveling the Atlantic to start a CHURCH!

Or those who bleep common daily utterances from movies and television.

The ones who substituted
blind and deaf, the N word
and so forth... A total arbitrary set of rules imposed as if written in stone.,

[Diana/ Garden on the Edge]

I don't know the local ordinances for gardening in my Hell Strip but I do it anyway. I just do it with the knowledge that the city could arbitrarily mow it down and replace it with grass - nothing valuable or wimpy gets planted there (let them TRY to eradicate the mint, just let them TRY).

Of course I have the advantage that several other houses along my block also have plants in their Hell Strips so it's not likely anyone would complain and if they did they would be seriously shunned by the gardeners in the neighborhood (who outnumber the non-gardeners by a significant amount).

[Michelle Clay]

Patrick, it is incorrect that every garden attracts wildlife. Consider a generic suburban combo of daylilies, foundation plantings, dyed mulch, and sod grass. There is nothing in such a yard that would attract hummingbirds, for instance. Or snakes. Or monarch butterflies.

Wildlife requires specific food, specific shelter, and clean water. Without all of these these things, a visit from, say, a hummingbird will be a rare event.

[anne]

With regard to wildlife attraction, I would also add that using certain chemicals that are often used in a more formal "neat" garden would keep certain insects (including some butterflies) and other wildlife out of a garden, disrupting the chain of life there.

Of course, some wildlife you might not want to attract (rodents, ticks and mosquitoes, for example), and growth that those animals can hide and move around in might not be so great. This issue didn't seem to be part of the discussion with these folks' yard though, interestingly; the aesthetics seemed to be more important, so I'm guessing there wasn't a pest problem there.

Myself? I would just get a cat to keep rodents at bay, and hope the toads, frogs, lizards and birds would take care of the ticks and mosquitoes!

[Patrick]

If you put the pictures of this yard under magnification, it looks like a weedy eye sore. The owners are lucky that the city didn't mow further than that. In my town they charge the property owner $75.00 an hour to cut yards that look like that. I can't see anything redeeming about this yard. Perhaps you could include a compelling photo aray to make your position more pallitable, And spare us the condemnation of your billigerant attitude that makes everyone that doesn't agree with your opinion out to be the enemy. Weed laws threaten everyones gardens. But if your garden looks like an abandoned field, like this one appears to be, then you are asking for trouble. I wouldn't turn the law on my neighbor, but I wouldn't support this sloppy attempt to put nature back into the conscienceness of the town I live in. And for the record, all you need to do to attract Hummers is to put up a feeder with some sugar water...

[Gloria]

It is everyone's right to not support a garden of this nature. But it should be our right to grow a garden of this nature.
Once a commenter said that another commenter and I sounded defensive about native plant /habitat gardening.With this kind of action how would we not be?