Green Landscaping: Greenacres
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The John Marshall Law Review
Volume 26, Summer 1993, Number 4
on Weed Laws and Natural Landscaping
- APPENDIX A
Model Modified Weed Ordinance
- APPENDIX B
Natural Landscaping Act
- APPENDIX C
College Station, Texas Proposed Natural Landscape Ordinance
- APPENDIX D
City of New Berlin v. Donald Hagar
MODEL MODIFIED WEED ORDINANCE
A good, fair and workable model "modified weed ordinance" is:
PUBLIC NUISANCE: UNTENDED, RANK AND UNMANAGED VEGETATION
§ 1. PROHIBITION:
Untended, rank and unmanaged growth of vegetation on any property within the City which is visible from any public way, street, sidewalk or alley is declared to be a public nuisance and may be abated in accordance with the procedures set forth in 2-3 of this Ordinance. This prohibition shall not apply to vegetation native to [State or region], provided there is a setback of not less than four (4) feet from the front lot line of vegetation not in excess of eighteen (18) inches exclusive of trees and shrubs.
§ 2. PROCEDURE:
The City shall issue a written citation to a Landowner whose property is in violation of 1 of this Ordinance. This citation shall inform said Landowner of the basis of the citation and shall include the following information: 1) the date of any inspection and the name of the inspector; and 2) the names and ad-dresses of any neighbor(s) of the Landowner or other person(s) who contacted the City or was contacted by the City regarding the alleged violation of 1 of this Ordinance. The Citation shall be adjudicated in accordance with Art.---, of the Municipal Code relating to adjudication of [traffic offenses].
§ 3. ABATEMENT and PENALTY
Upon a finding of guilty in accordance with 2 of this Ordinance, the Landowner shall have twenty-eight (28) calendar days in which to abate the nuisance. If he/she does not so act, the City may take whatever reasonable action is necessary to abate the nuisance. The costs of such abatement shall be assessed against the Landowner and shall constitute a fine, the collection of which may be made pursuant to the provisions of Art. - [relating to imposing a lien on the property].
NATURAL LANDSCAPING ACT
Lorrie Otto's natural landscaping law was edited by David L. Kinnamon, Donald Hagar's attorney, in Milwaukee, Wisconsin
Natural Landscape Act
An ACT to protect private property with natural landscapes, and their restoration in the State. The people of the State of ___________, represented in assembly and senate, do enact as follows:
SECTION 1. LEGISLATIVE PURPOSE.
The legislature acknowledges the desirability of permitting and encouraging the preservation and restoration of natural plant communities in urban, suburban and rural areas. It further acknowledges the need to enjoy and benefit from the variety, beauty and values of natural landscaping including freedom from toxic chemicals, and seeks to guarantee the citizens the freedom to employ natural landscaping as a viable and desirable alternative to other conventional modes of landscaping. The legislature recognizes that a limited number of plant species may be serious agriculture pests, or in some instances may adversely affect human health or safety. In these instances it has provided limited remedies by defining the plants which are a threat to the agricultural economy, and the noxious weeds by their Latin and common names.
SECTION 2. NATURAL LANDSCAPING PROTECTED
(1) As used in this section:
(a) "Restoration project" means an area managed to
conserve or restore prairie grasses and forms; native trees, wildflowers and shrubs; an
old field succession of native and non-native plants; or a combination of the foregoing.
(b) The following plant species are defined as "weeds":
Cirsium arvense (Canada thistle)
Convolvulus arvensis (Field bindweed)
Euphorbia esula (Leafy Spurge)
[the above three species are on the Wisconsin Agriculture list]
(2) Neither the weed commissioner nor any other agents or employees of any county, city, village or town shall undertake to cause the destruction, cutting or removal of any vegetation on lands within a restoration project except on order of a court of record following a hearing at which it is established either that noxious weeds specifically named in the weed ordinance exist in such restoration project, that a condition creating a clear and present hazard to public health or safety has arisen, or that the project is a threat to the agricultural economy. An action for a court order under this subsection shall be maintained as an action to enjoin a public nuisance. A court order under this subsection shall provide that the destruction, cutting or removal of vegetation shall be selective, unless general destruction, cutting or removal is necessary to eliminate the offending condition.
COLLEGE STATION, TEXAS PROPOSED
NATURAL LANDSCAPE ORDINANCE
The Proposed College Station, Texas Natural Landscape Ordinance has a similar pro-active tone and effect:
PROPOSED NATURAL LANDSCAPE ORDINANCE
An Ordinance to promote the use of native vegetation,
including native grasses and wildflowers, in managed yards and landscapes to allow the use
of such plants in the preservation or restoration of natural plant communities.
Section 1. Legislative Purpose:
It is not the intent of this legislation to allow vegetated areas to be unmanaged or overgrown when such growth provides either a direct health hazard or provides a demonstrated breeding ground for fauna known to create a safety or health hazard. The legislature recognizes that a limited number of species may be indicators of neglect, a condition which may adversely affect human health or safety. Below, the city has specifically defined certain noxious weeds recognized to be indicators of neglect.
The use of wildflowers and other native plants in managed landscape design can be economical, low-maintenance, effective in soil and water conservation, and may preclude the excessive use of pesticides, herbicides, and fertilizers. Furthermore, native vegetation and native plant communities, on a worldwide basis, are disappearing at an alarmingly rapid rate. The city recognizes the desirability of permitting and encouraging managed natural vegetation within the city limits of College Station while maintaining public health and safety.
Section 2. Definitions:
The following plant species are defined as noxious weeds and do not come within the protection of this ordinance:
|Sonchus asper (L.) Hill||Asteraceae||Sow Thistle|
|Sorghum halepense (L.) Pers.||Poaceae||Johnson Grass|
|Ambrosia sp.||Asteraceae||Rag Weed|
|Cenchrus incertus M.A. Curtis||Poaceae||Grass Bur|
|Rumex crispus L.||Polygonaceae||Curly Dock|
|Croton capitatus Michx.||Euphorbiaceae||Dove Weed|
|Amaranthus sp.||Amaranthaceae||Pig Weed|
|Rhus toxicodendron L.||Anacardiaceae||Poison Ivy|
|Conyza canadensis (L.) Cronq.||Asteraceae||Horse Weed|
The term "managed" as used in this ordinance means a planned and designed yard or landscape with the intent to control, direct, and maintain the growth of natural vegetation.
Section 3. Managed Natural Landscaping:
It shall be lawful to grow native and naturalized plants to any heights, including ferns, wildflowers, grasses, forbs, shrubs, and trees, in a managed landscape design when said plants were obtained not in violation of local, state, or federal laws. No employee of the city may undertake to damage, remove, burn, or cut vegetation on a managed natural landscape incorporating native plants, except those specifically prohibited herein, and except on order of a court of record following a hearing at which it is established that noxious weeds exist in a managed natural landscape and that a condition creating a clear and present hazard to public health or safety has arisen. An action for a court order under this subsection shall provide that the destruction, cutting, or removal of vegetation shall be selective unless general cutting, destruction, or removal is necessary to eliminate the offending conditional.
Statements of intent:
|1.||If a complaint is filed by a citizen or the city against a piece of property, the burden or proof lies with the complainant to establish that a health or safety hazard in fact exists. Natural landscapes shall be assumed to be harmless, until proven otherwise.|
|2.||The city shall not act upon anonymous complaints. The property owner shall have the right to face the accuser.|
|3.||This and the unmanaged vegetation ordinance shall be proactively and uniformly enforced, and shall apply to all property not specifically exempted within the city limits.|
|4.||Aesthetic judgments shall not be a consideration nor play any role in determining non-compliance or compliance with the ordinance.|
|5.||The city shall notify the property owner of their rights of appeal.|
|6.||It shall not be the policy of the city to enter upon private land and to destroy property thereon without due process of law.|
City of New Berlin v. Donald Hagar
STATE OF WISCONSIN: CIRCUIT COURT BRANCH #1:WAUKESHA COUNTY
CITY OF NEW BERLIN, a municipal corporations,
DECISION Case No. 33582
DONALD HAGER [sic],
The City of New Berlin commenced an action against the defendant requesting the imposition of a forfeiture against the defendant at the sum of $10.00 per day commencing on July 18, 1974, and for a permanent injunction to enjoin and restrain the defendant from permitting weeds and grass to grow on his property contrary to the provisions of Section 11.07 of the Municipal Code of the City of New Berlin. At the time of trial the plaintiff moved to amend its complaint to include violations of Section 11.07(1) and (2) with reference to noxious weeds. The Court granted this motion.
Section 11.07 of the Municipal Code of the City of New Berlin provides as follows:
11.07 NOXIOUS WEEDS
(1) STATE LAW ADOPTED. Sec. 94.20, Wis. State., is adopted by reference and made a part of this Section.
(2) NOXIOUS WEEDS DEFINED. The following weeds are declared to be noxious in uncultivated areas and shall be destroyed in the city as provided by law, at such time and in such manner as shall effectually prevent them from bearing seed, or spreading to adjoining property, to-wit: Canadian Thistle, Marijuana that is not grown or cultivated for lawful commercial purposes, English Charlock or Wild Mustard, Field Bindweed, commonly known as "Creeping Jenny", Goatsbeard, Field Dodder, Indian Mustard, Oxeye Daisy, Sow Thistle, Harmful Barberry, Bull Thistle, Poison Ivy, Ragweed, Leafy Spurge.
(3) WEEDS TO BE MOVED. The weeds and grass in any recorded subdivision shall not be allowed to exceed 12 inches in height. If the owner of the lot or parcel upon which such weeds or grass are located fails to comply, the Director of Public Works shall cause the moving to be done and the charge assessed as a special tax against the property, pursuant to sec. 66.60 (16), Wis. Stats."
Section 94.20, Wis. Stats., which is adopted by Section 11.07 (1 of the Municipal Code), provides as follows:
94.20 NOXIOUS WEEDS
(1) The term "noxious weeds" as used in this chapter includes the following: Canada thistle, leafy spurge and field bindweed (creeping Jenny) and any other such weeds as the governing body of any municipality or the county board of any county by ordinance or resolution declares to be noxious within its respective boundaries.
(2) Every person shall destroy all noxious weeds on all lands which he shall own, occupy or control. The person having immediate charge of any public lands shall destroy all noxious weeds on such lands. The highway patrolman on all federal, state of county trunk highways shall destroy all noxious weeds on that portion of the highway which he patrols. The town board shall cause to be destroyed all noxious weeds on the town highways.
(3) The term "destroy" means the complete killing of weeds or the killing of weed plants above the surface of the ground by the use of chemicals, cutting, tillage, cropping system, pasturing live stock, or any or all of these in effective combination, at such time and in such manner as will effectually prevent such plants from maturing to the bloom or flower stage.
(4) The chairman of each town, the president of each village and the mayor or manager of each city shall annually on or before May 15 publish a class 2 notice, under ch. 985, that every person is required by law to destroy all noxious weeds, as defined in this section, on lands in the municipality which he owns, occupies or controls.
The issue in this case is the constitutionality of Section 11.07 of the New Berlin Municipal Code. The City alleges that Donald Hagar has violated the ordinance (a) by allowing grass to exceed 12 inches in height on his property, and (b) by failing to destroy all "noxious weeds" on his property as required by Section 94.20 of the Wisconsin Statutes. In his answer, Mr. Hagar admitted that he does allow grass to exceed 12 inches in height on his property. Mr. Hagar testified that, at times during the past year, certain "noxious weeds" grew on his property. The defendant claim:
(1) The Ordinance violates the due process
clauses of the United States and Wisconsin Constitutions because it has no reasonable
basis in fact and does not and cannot accomplish the purposes that the City offers for its
(2) The Ordinance violates the equal protection clauses of the United States and Wisconsin Constitutions because it applies only to recorded subdivisions and there is no valid distinction between recorded subdivisions and unplatted land in the City of New Berlin;
(3) The Ordinance is enforced arbitrarily, capriciously, and invidiously and therefore violates the equal protection clauses of the United States and Wisconsin Constitutions;
(4) The City does not have the power to prescribe and enforce conformity in the choice of landscaping.
The defendant, Donald Hagar, is a professional wildlife biologist. He testified he has attempted to cultivate the approximate two and one-half acres surrounding his home in a manner "sensitive to the environment and wildlife". His property contains a variety of native and non-native grasses such as reed canary grass, bluegrass, and timothy, and non-grass plants not listed as "noxious weeds" such as wild aster, goldenrods, and woodland sunflowers. It is Mr. Hagar's testimony that he actively cultivates the grasses on his property and has attempted to eliminate all "noxious weeds" from his property. Mr. Hagar complied with the Court's order to eliminate the "noxious weeds" from his property, and did so to the satisfaction of Mr. Salantine, the City's weed commissioner.
The defendant argues that there is no rational basis in fact for the existence of the ordinance. In Clark Oil & Refining Corp. V. Tomah, 30 Wis.(2d) M7, a city ordinance, enacted to reduce fix hazards, was held unconstitutional. The Court stated that it was the duty of the Court "to ascertain upon the whole record whether it is possible to say that the legislative choice is without rational basis." If the factual basis is "too thin" for legislative action, the legislative choice is without rational basis and the legislative act is unconstitutional. "The City claims, with reference to the growth of grasses and weeds, that (a) a fire hazard is created affecting surrounding property, (b) there is added to pollution of the air of allergenic substance which would affect persons with allergenic producing hayfever and other allergenic related illnesses, and (c) a substantial reduction in property values of adjacent property.
The Court finds nothing in the testimony to justify these claims by the City." The evidence is undisputed that many people suffer from allergies, and that some of these people live in the City of New Berlin. It is also undisputed that the allergies that the ordinance attempts to eliminate are those caused by allergenic, wind-borne pollen. "The question then becomes: Does the enforcement of the ordinance have any effect on eliminating or reducing the amount of allergenic, wind-borne pollen? The Court is of the opinion this question must be answered in the negative." It is undisputed that wind-borne pollen may travel hundreds of miles, and in face Dr. Fruchtman testified that people in New Berlin could be affected by pollen coming from the Southwestern United States. The ordinance attempts to eliminate locally grown allergenic plants but affects only twenty-five percent of the City of New Berlin, that is, the recorded subdivisions. The City in effect says "we will control wind-borne pollen from 25 percent of the City but not from 75 percent of the City." The City cannot be heard to say that the ordinance is designed to benefit allergy sufferers when 75 percent of the City is not covered by the ordinance.
The City's fire chief, Mr. Conway, testified that tall grass was a fire hazard, and the hazard to other property existed because burning embers could be carried to the homes of adjoining property owners. David Seaberg, an expert in fire lighting with the United States Forest Service, testified that in his opinion the grass on Mr. Hagar's property presented no appreciable fire danger. Mr. Seaberg testified that height is not the predominant characteristic that determines the fire potential of grass. Other factors such as fuel loading and continuity are significant factors in determining the fire potential. He testified the fuel loading on Mr. Hagar's property is only insignificantly greater than the fuel loading on the plot of land across from the Hagar property which is in an unrecorded subdivision area. Mr. Seaberg testified that the heat generated by a fire on the Hagar property could only ignite wood at a distance of four feet if it continued for seven and one-half minutes. He further said that any grass fire would last less than twenty seconds. There is, according to Mr. Seaberg, no reasonable possibility that a fire on Mr. Hagar's property would spread to either his or adjoining home. Owners of two properties in the Sunshadows Subdivision testified that their property had been depreciated because of the condition of Mr. Hagar's lot. This in effect was hearsay testimony told to them by their real estate broker. It is interesting to note that one of the owners who so testified said she had recently been offered more for her home than she originally paid for it, but still knows that the value of the property had depreciated. Howard Hansen, a qualified real estate broker, testified that the surrounding property was depreciated, basing his opinion on what he perceived to be the desires of the majority rather than upon market value. Mr. Hansen conceded that if the majority of the residents felt as Mr. Hagar did, the property would not depreciate but would in fact appreciate in value.
The Court is of the opinion that the Ordinance violates the
Equal Protection Clause of the Constitution. Subdivision 3 of the Ordinance applies only
to recorded subdivisions. The testimony shows that in the southern one-third of the City
of New Berlin only 21.3 percent of the land is platted. In the entire City only 21.8
percent of the land is platted. The Ordinance applies to less than one-fourth of the City
of New Berlin. This unequal application of the law is magnified in Section 34 of the City,
where Mr. Hagar's home is located. In that Section only 40 out of the 640 acres are
platted and thus subject to the Ordinance. The land immediately to the West and South of
the Hagar property is unplatted and free from the restriction of the Ordinance.
In Caledonia V. Racine Lime Stone Co., 266 Wis. 475, the Court stated the constitutional equal protection test as follows:
. . . All persons are entitled to equal protection of the law, and any ordinance limiting or restricting the right to a person to engage in a legitimate business must apply equally to all persons engaged in a like business where circumstances and conditions are similar, and that classification of persons to be regulated must be reasonable and substantial. In State ex rel Ford Hopkins Co. V. Mayor, 226 Wis. 215, 222, 276 N.W. 311, this court said:
- All classifications must be based upon substantial distinctions which make one class really different from another.
- The classification adopted must be germane to the purpose of the law.
- The classification must not be based upon existing circumstance only.
- To whatever class a law may apply, it must apply equally to each member thereof.
- That the characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation.'"
The City's Ordinance fails to meet this equal protection test. There is no reason for distinguishing platted from unplatted land. Certainly the distinction is not germane to the alleged purposes of the law. If the purpose is fire protection and elimination of allergenic pollens, no one can suggest that tall grass or "noxious weeds" on unplatted land are any less offensive than grass and "noxious weeds" on platted land. Unplatted land borders on Mr. Hagar's property as well as that of Mr. Hagar's neighbors. If the grass and noxious weeds" on Mr. Hagar's property are fire hazards and aggravate allergy sufferers, so would the grass and "noxious weeds" on the unplatted land that surrounds the Sunshadows Subdivision. Nowhere in the record is there any testimony that suggests the propriety of this distinction.
The Court is of the opinion the Ordinance fails to meet the Caledonia Equal Protection Test, and therefore Subdivision 3 of the Ordinance is unconstitutional.
"In addition, the Court would observe that the Ordinance is counter-productive. The testimony before the Court is undisputed that if native grasses and flowering herbaceous plants are allowed to grow without human interference, they will dominate and crowd out and eliminate non-native grasses and other weedy annuals. Mr. Hagar's property, if maintained uncut, will encourage native and other grasses which will crowd out weedy pioneer species."
There is no question, and the defendant admits, that "noxious weeds" grew on his property. This is a violation of the Ordinance, and the Court so finds. In determining the penalty, the Court considers the total evidence and Mr. Hagar's obvious sincerity, and fines him the sum of One ($1.00) Dollar and costs. Dated this 21st day of April, 1976.
BY THE COURT: