The surprisingly interesting jurisprudence of weed ordinances

Lawns are one of the most ubiquitous landscapes in the United States and one of the most potent symbols of American suburbia. They serve as an ideal backdrop to the single family home,  providing just enough space to instill a feeling of privacy, and just enough greenery to foster a connection with nature. Lawns have unified the landscape and transcended social, political, racial, and religious divides like few things can. Michael Pollan, in this regard, compared their influence to the the interstate highway system, fast food, and even television. This deep cultural identification with lawns, he says, also explains “why lawn care is regarded as such an important civic responsibility.”

There’s another reason why lawns and lawn care have become imbued with such strong moral and civic qualities: the antithesis of a well-maintained lawn—the unkempt, uncontrolled, and overgrown yard—is as potent a symbol of failure and decay as the lawn is a symbol of hope and idealism. Few things can conjure feelings of abandonment, neglect, disinvestment, and dispair like a house being slowly consumed by the underbrush.

With symbolism this entrenched and powerful, it’s no wonder that conflicts over lawn maintenance incite people to file complaints, cut their neighbors’ lawns themselves, and even resort to violence.

Weed ordinances were developed long ago as a solution to these sorts of lawn problems, just as spite fence laws evolved to mediate boundary conflicts between vengeful neighbors. Although the earliest weed laws were agricultural measures, they were quickly adapted for use in cities and towns, where they were used to mandate minimum lawn care standards and prevent the growth of nuisance vegetation. The basic mechanism used in these ordinances—a maximum height limit for nonornamental vegetation, usually set somewhere around eight or twelve inches—has hardly changed over the last century.

In addition to protecting neatly maintained neighborhoods from the scourge of overgrown yards, weed ordinances have become the subject of a surprisingly interesting body of lawn care jurisdprudence. Given their widespread use and long historical pedigree, it’s not surprising that most courts uphold weed ordinances with little hesitation. But weed laws aren’t immune from constitutional attacks, and property owners sometimes win. So for the benefit of lawn enthusiasts and weed lovers alike, I now present to you an overview of the Law of Weeds.

The reasonableness test

Local governments have broad authority to enact weed ordinances, just so long as the restrictions are reasonable. In the legal context, this means that there has to be some rational purpose for the law. Not everyone has to agree that it’s a good law, or that it’s the best way to deal with the problems caused by overgrown lawns; it just has to be fairly debatable that there’s some point to the regulation. And in most cities, there are any number of reasonable grounds for weed ordinances, like maintaining aesthetics and property values, managing urban wildlife and pest problems, minimizing allergens, and preventing dangerous property conditions. But these goals aren’t always reasonable, especially in rural and sparsely populated areas.

Consider, for example, Baton Rouge Audubon Society v. Sandifer, a case decided in Louisiana in 1997. What happened is that the parish extended its weed ordinance to a remote coastal subdivision that contained just four residences, and then attempted to enforce the weed law against the Audubon Society, which owned seven acres in the subdivision and managed them as part of a larger nature reserve. The Audubon Society sued the parish to enjoin the ordinance, and the court ruled in its favor, finding that it was unreasonable to compare vegetation in a nature preserve to overgrown weeds that might be found on a typical subdivision plot.

But a weed ordinance isn’t unreasonable just because it interferes with conservation purposes, so even though some homeowners dislike lawns and would prefer to manage their yards as habitat for native plants and animals, this often isn’t enough to defeat a weed ordinance. The Audubon Society case was fairly unique because the parish was essentially using the weed ordinance to encroach on undeveloped land, not to maintain minimum property maintenance standards within a neighborhood of similar properties. A more common fact pattern is set out in Lightle v. City of Washington Court House, where an Ohio court upheld a weed ordinance as applied to a strip of land running along a creek bed. The Lightles considered the strip to be a wetland, and so they allowed it to grow naturally, but the city received “many complaints” from other residents complaining about high grass, mosquitos, and rodents. The court held that the Lightles couldn’t claim statutory protection for the strip without an official determination that the land was, indeed, a wetland, regardless of their placing a conservation easement on the property. The weed ordinance was valid, the court explained, because it bore a direct relation to the city’s interests in aesthetics and public health and safety.

What’s a “weed”?

Another issue that comes up in weed cases is whether the regulations are too vague for people to understand just what counts as illegal vegetation. But most courts, perhaps unsurprisingly, consider terms like “weeds” and “overgrown” to be obvious enough in their import to survive these challenges. In a typical case, Lundquist v. Milwaukee, the court explained that the term weeds “is sufficiently well-rooted in the English language that citizens who desire to obey the ordinance will have no difficulty in understanding it.” That case, like Howard v. City of Lincoln, also decided that a weed ordinance doesn’t have to name each species of plant that it covers, seeing as an ordinance that “listed every type of prohibited vegetation by its scientific name” would probably be even more “confusing to citizens—save, perhaps, horticulturalists.” In another case, Bauer v. Village of DeForest, the court simply dismissed the listing-every-weed-species argument because the property was overrun by two “clearly prohibited” weed species, Canadian thistle and field bindweed. Although both plants have rather lovely flowers, they’re widely despised due to their aggressive and invasive nature.

Some vagueness challenges just seem contrived, like the Texas case where the phrase “twelve inches on average” was challenged and the court had to explain that it wasn’t necessary for the ordinance to define “on average.” But other cases raise vagueness claims that are more plausible. In Rose v. Platte County, for example, the property owner was a former wildlife manager and had been maintaining his yard as natural habitat for more than 20 years. He argued that terms in the ordinance such as “blighting effect,” “dense growth,” “cultivated,” and “noxious and posionous plants” gave county officials too much leeway to decide what counted as weeds, but the court disagreed with him. “The specific words,” the court explained, “are descriptive phrases that merely provide further guidance as to the types of vegetative growth and circumstances that may violate the ordinance.” Jensen v. City Council of Cambridge also involved a homeowner who wanted to grow native plants on his property. Although Jensen didn’t argue that the meaning of “weeds” was vague, he did claim that the ordinance’s exception for “conservation areas” was vague and gave the mayor too much discretion. As in Rose v. Platte County, however, the court held in favor of the city, saying that the mayor chose and applied a reasonable interpretation of the rule, and the mayor’s interpretation wasn’t invalid just because other reasonable interpretations existed.

One case where a weed ordinance was actually deemed vague and struck down was Georgetown v. Vanaman, which involved an ordinance that didn’t include any height limit at all. And in State v. Golin, a property owner’s conviction for high grasses and overhanging tree branches was thrown out on vagueness grounds because the ordinances provided no guidance or specificity beyond prohibiting “any matter, thing, condition or act which is or may become detrimental or a menace to the health of the inhabitants of this municipality. . . . [or] which may become an annoyance, or interfere with the comfort or general well-being of the inhabitants of this municipality.”

Free speech through lawn maintenance

The First Amendment’s protection of free speech has occassionally been invoked in defense of unruly vegetation. In City of Montgomery v. Norman, for example, the property owner argued  that her free speech rights were violated by the city’s weed ordinance because she used “her garden as a means of art and expression . . . to demonstrate her concern for the community, to show her desire to revitalize and reclaim a community blighted by crime, and to educate other people about . . . chemical-free living and environmental protection.” Despite these intentions, the court observed that “there is little likelihood that her message would be understand by those who saw three- to four-foot seed rye growing in her front yard and close to the street.” The garden, the court said, just didn’t “have sufficient communicative elements to bring it within the protections afforded by the First Amendment.” The court also rejected her contention that the city’s weed regulations constituted an unlawful taking of property under the Fifth Amendment, explaining that she couldn’t make the necessary “showing that the economic viability of her residential property had been diminished” due to her inability to “cultivate edible plants over 12 inches tall.”

Another weed case involving the First Amendment was Williams v. City of Carl Junction, where the property owner alleged that he was issued citations under the weed ordinance in retaliation for being a “vociferous critic of City policies” and a “crass, often rude and profane, gadfly.” But Williams couldn’t prove his case in the end because there wasn’t enough evidence showing that the city wanted to retaliate against him, and not just enforce the weed ordinance. As the court pointed out, “the grass and weeds on his property were taller than ten inches in violation of the City ordinance. As Williams admits engaging in the unlawful conduct that violated the City’s nuisance ordinances, probable cause existed for the issuance of these citations.”

Discrimination in weeding

Equal protection challenges based on racial discrimination have fared rather poorly in the context of weed control, because if a property owner’s grass is actually overgrown, he has to be able to prove discriminatory intent. While it’s possible to prove these sorts of motives, it’s not easy. As the court in Rowe v. City of Elyria explained, three elements have to be proved to succeed on a selective enforcement claim:

First, [an official] must single out a person belonging to an identifiable group, such as those of a particular race or religion . . . for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Second, [the official] must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to.

These are not easy things to prove. Rowe, for example, only provided a list of people who he believed were not cited under the grass mowing ordinance, but he failed to provide any evidence that he belonged to a protected group or that the other people were actually treated differently. In another selective enforcement case, Hu v. Village of Midlothian, Hu argued that the city enforced its vegetation ordinance against him as part of a “concerted and orchestreated campaign of official harassment” based on malice toward him and the Asian community. But as the court explained, Hu failed to provide any evidence of direct discrimination, and he failed to show that any similarly situated non-minorities were treated differently. Hu also claimed that he was being singled out for unequal treatment as a “class of one,” but he again failed to produce any evidence of animus toward him or show that other people were treated more favorably.

Other equal protection claims—those that don’t involve discrimination based on race or other protected classifications—can only succeed if the property owner shows that his property was treated differently than similar properties, without any possible rational basis for doing so. The U.S. Supreme Court, all the way back in the 1904 case Missouri, Kansas & Texas Railway Co. v. May, dismissed an equal protection challenge against a law that required railroads, but not other land owners, to cut down Johnson grass. As Justice Holmes surmised, the state probably had some rational basis for treating the railroads differently, possibly because “the seed of Johnson grass is dropped from the [railroad] cars in such quantities as to cause special trouble” or because “the neglected strips occupied by railroads afford a ground where noxious weeds especially flourish.”

In a Michigan case decided just a few months ago, Vajk v. City of Iron River, the result was basically the same. The property owners argued that it was unfair for the city to enforce its noxious weed ordinance against them, but not to enforce it on the city-owned property across the street, where one weed was apparently allowed to grow in excess of five feet tall. The court rejected the equal protection argument because the property owners didn’t allege “sufficient facts to state a claim that the City had ‘no rational reason’ for distinguishing between [their] Property and the City’s property.” Although the court didn’t go into much discussion on the point, there certainly would have been a rational basis if the property owners had more than one unruly weed on their lot.

But there is one example of a court finding no rational basis for a weed law’s different treatment of similarly overgrown properties. The outlier case, Berger v. Mayfield Heights, involved an ordinance requiring vegetation to be mowed to less than eight inches, but only on vacant lots less than 100 feet wide. Some possible justifications for the ordinance were raised, such as the need to prevent damage from falling tree limbs and to control poisonous vines and vermin. But the court concluded that even if these reasons were enough to support the eight inch weed limit, the city couldn’t possible provide any rational explanation for not applying the ordinance to lots wider than 100 feet. If the goal of the ordinance, after all, was to prevent damages caused by falling tree limbs and poisonous vines, why shouldn’t it apply to all lots regardless of width? The city just couldn’t say.

Involuntary servitudes

Property owners in a few cases have challenged weed ordinances as involuntary servitudes prohibited by the Thirteenth Amendment, but comparing forced lawn mowing to pre-civil war slavery is offensive and completely nonsensical. As the court explained in Rowe v. City of Elyria, although the Thirteenth Amendment wasn’t limited to the abolishment of slavery, “the phrase ‘involuntary servitude’ was intended to extend ‘to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results.’” The court, unsurprisingly, determined that enforcement of the mowing ordinance didn’t rise to this level of forced labor.

Amazingly, though, Rowe isn’t the only person to equate lawn mowing with slavery (aside from perhaps some bratty teenagers who don’t want to do their chores). The issue was raised again in a case decided by the Georgia Supreme Court in 2010, Gasses v. City of Riverdale. As the court explained, the Thirteenth Amendment doesn’t prohibit government from requiring people to perform certain civic duties under threat of criminal sanction, and this includes “a municipal ordinance requiring a citizen to maintain grass, weeds, and vegetation for the welfare of the community.” In re Calhoun County Treasurer, a Michigan case also decided in 2010, involved an involuntary servitude claim raised in conjunction with the property owners’ objections to mowing an unpaved strip of land adjacent to the their property. The court determined that, for purposes of the weed ordinance, they were the owners of the unpaved strip, and that there was no involuntary servitude because they had alternatives to mowing the strip, such as paying the city to do it.

Procedural issues

Beyond these constitutional claims, a lot of weed cases deal with the basic procedural rights to notice and a fair hearing. In Bauer v. Village of DeForest, for example, the property owner’s claim of insufficient notice was dismissed because he was made aware of the two ways to challenge his weed abatement order, but chose not to pursue either method. The result was similar in Mayer v. State, where the court emphasized that the notice of violation provided a time frame for correcting the weed problem and clearly stated what the consequences of noncompliance would be. On the other hand, a notice deficiency was found in Adams v. City of Marshall because the violation sent to the the property owners only described the city’s informal procedures and didn’t inform them of their right to appeal the violation or their right to a hearing with the issuing officer.

Another procedural issue that sometimes comes up is the need for a predeprivation hearing. In Howard v. City of Lincoln, for instance, Howard alleged that he should have gotten a hearing before the city removed the vegetation on his property and imposed an assessment for costs. But city officials had met with Howard to discuss the weeds and given him a chance to explain his reasons for noncompliance, and the court found that, at least on the facts of the case, the meeting was sufficient and a formal hearing was unnecessary. As to the assessment, the court found that there were adequate appeals procedures in place, and so if Howard had wanted a more in-depth hearing, he could have obtained one. The predrivation issue was also raised in Dowd v. New Castle County, which was decided in April. In the case, the Dowds were issued a series of violations for a brush pile in their backyard, but they had received a certification that the vegetation was a “backyard wildlife habitat” and many of their violations were eventually dismissed. Under the county’s instant ticketing system, however, they had been required to pay the civil penalties for the cited property code violations before they could appeal them, and they argued that they should have been entitled to a hearing before having to pay the fines. The court, in deciding the matter, weighed the private interest at stake, the risk of erroneous deprivation, the probable value of additional safeguards, and the government’s administrative burden. On the facts of the case, the court held in favor of the county. The fines imposed on the Dowds, the court noted, were relatively small, while the instant ticketing system provided significant staff and cost savings for the county. Additionally, the court concluded that the ticketing process included safeguards that would be effective in most cases involving routine violations. Although those safeguards weren’t entirely effective for the Dowds, the court emphasized that their case was unusually complicated.

Is the venerable weed ordinance losing its relevance?

Although weed ordinances have been around for ages and lawns remain the dominant landscape in American neighborhoods, people’s views about environmental protection and the desirability of suburban growth patterns have changed dramatically over the past few decades. It’s not so strange these days for home owners to ditch their lawn mowers in favor of wooded landscaping, natural undergrowth, vegetable gardens, or other alternative landscaping, and these sorts of yards are also becoming more acceptable to the neighbors. Some of the cases described above hint at these changing patterns, but making sustainability part of the American lawn ethic isn’t really a job for the courts. Rather, it’ll be up to local governments to reform the traditional weed ordinance and to figure out other ways to balance the need for vegetation control against property owners’ desires to try out less artificial landscapes.

Article references

Weed ordinance examples

  • Hudson, New York, Code Chapter 86, Brush, Grass and Weeds
  • Rudolph, Wisconsin, Lawn Ordinance
  • Spring Lake, Minnesota, Ord. No. 08-002, An Ordinance Regarding Lawn Maintenance and Eradication of Noxious Weeds

Cited case references

Additional case references

  • Amtrak v. Caln Township, No. 08-5398, 2010 U.S. Dist. LEXIS 1876 (Jan. 8, 2010) (discussing federal preemption of weed ordinances under the Rail Passenger Service Act)
  • Bradley v. County of Will, No. 11 C 0423, 2011 U.S. Dist. LEXIS 40698 (N.D.Ill. Apr. 14, 2011) (abstaining from hearing case involving weed ordinance violation due to ongoing state court proceedings)
  • Carlisle v. Martz Concrete Co., 2007 Ohio 4362 (Ohio App. 2007) (rejecting various challenges to the weed provisions of the property maintenance code)
  • Elder-Evins v. Casey, Case No. C 09-05775 SBA, 2011 U.S. Dist. LEXIS 9192 (N.D. Cal. Jan. 31, 2011) (dismissing challenge to city’s weed ordinance as applied to the plaintiff’s allegedly “soverign land” because she failed “to explain how each code section violates her right to due process, or allege any facts to support her claim that these code sections are unconstitutional”; also dismissing the claims relating to tort liability, excessive force, and conspiracy)
  • Frame v. Menellen Township, No. 2539 C.D. 2009, 2011 Pa. Commw. Unpub. LEXIS 209 (Mar. 16, 2011) (upholding weed ordinance violations)
  • Litman v. State, 304 Ga. App. 690 (2010) (concluding that there was insufficient evidence to convict the defendant under the weed ordinance because he cut the offending vegetation within the cure period provided by the ordinance)
  • Mayfield Heights v. Barry, 2003 Ohio 4065 (Ohio App. 2003) (rejecting various challenges to the weed ordinance)
  • Schmidling v. City of Chicago, 1 F.3d 494 (7th Cir. 1993) (property owners who maintained natural landscaping lacked standing to challenge weed ordinance because none of them had received violations or were even threatened with enforcement by the city)
  • Sherwood v. Hawkinson, 300 Wis.2d 581 (Wis. App. 2007) (upholding weed ordinance violations; expert testimony was not necessary to establish violation)
  • White v. Mercado, No. 10-cv-8036, 2011 U.S. Dist. LEXIS 38817 (N.D.Ill. Apr. 8, 2011) (upholding lien and tax assessments for weed abatement, which eventually resulted in a tax sale of the property)
  • Wichita v. Hudson, 792 P.2d 1077 (Kan. App. 1990) (rejecting vagueness challenge against weed ordinance on the basis of “common sense”)
  • Winchester & W. R.R. v. City of Martinsburg, No. 3:06-CV-84, 2007 U.S. Dist. LEXIS 55158 (Jul. 27, 2007) (discussing federal preemption of weed ordinances under the Rail Passenger Service Act)

2 responses to “The surprisingly interesting jurisprudence of weed ordinances

  1. Pingback: The growing urban coyote problem and local management strategies | Ferae Naturae

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