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HomeMy WebLinkAboutA020 - Article from Municipal Lawyer, regulating residential vegetation 3 - Legal Department 515 Clark Avenue,P. O.Box 811 Caring People Ames IA 50010 Quality Programs Ez eptional service Phone: 515-239-5146 • Fax:515-239-5142 April 16, 2003 The Honorable Ted Tedesco, Mayor, ...,.- d i and Council Members R 16 2003 of the City of Ames, Iowa LI Re: Mowed Lawns vs. "Native Landsca in " CI�4'ClTti Ci 111( p g OF AMES, __ _IOWA Dear Mayor Tedesco and Council Members: With this is an article appearing in the March/April edition of"Municipal Lawyer" about what the author thinks should be in a city's ordinances to regulate residential vegetation. You might find it interesting in the light of our experiences during the last growing season. Incidentally,for the record, I received my first unmowed lawn email of this season on April 15. Yours truly, John R. Klaus City Attorney JRK:gmw Attachment c: Brian O'Connell Jeff Pearson , 1 � recently spoke at a natural land- scaping seminar for municipal offi- cials at Fermi Lab outside of Chi- cago, and was struck by the many iro- nies of that day. First, I was in a top- secret facility to discuss and promote something that I had spent the last fif- teen years trying to tell everyone about. Second, it had rained heavily, and as I / • . :/ / . passed full flood basins and swollen drainage ditches, it called to mind one / / / : • / / / / of the primary benefits of natural land- scaping—increasing the carrying ca- pacity of land. Third, I was at a high- tech facility discussing a low-tech solu- tion to many vexing municipal prob- � . ._ 'ems.Finally, and perhaps most ironic, I was in a room filled with municipal officials who were formerly enemies— yes,enemies.Here's why.--. The "Chicago Five" I grew up in Deerfield,Illinois,and spent my summers hiking in beautiful, natu- ral places like Isle Royale.After becom- ing a lawyer, I joined the Sierra Club Lawyers Round Table,a group that vol- unteered its time to assist individuals and organizations with environmen- tally-related legal problems. In 1989, I took on the representation of what became known as "the Chicago Five." Less famous than the Chicago Seven, the Chicago Five were gardeners who grew native Illinois plants on their lots.When neighbors complained about the"weeds,"the City of Chicago prosecuted these individuals under its weed ordinance. After attempts to work with the City failed, we filed a lawsuit to have ;r the ordinance declared unconstitu- tional.After a lengthy legal battle,the court dismissed the case, holding that the plaintiffs lacked standing.' Even though we lost that battle,the war was ultimately won:we convinced the City not only that what the Chicago Five was doing not illegal, but that it was envi- ronmentally beneficial to the City. That was 14 years ago. The case - exposed me to a network of individuals and organizations promoting natural landscaping across the country. From Maine to California, individuals and .n organizations work to convince neigh- bors,municipalities,and state and fed- tea, eral officials that gardening with native 18 Municipal Lawyer 11" ii � plants makes sense.'Today, because was built without regard for native plant the transition of the Natural Landscape of the attention raised by the Chicago material or the natural topography.6 Movement from the discussion phase { Five case, as well as a "green" mayor to the acceptance phase. and the persistence of many others,Chi- A Modern Movement Once the federal government man- cago not only allows native plant Takes Root dated the use of such landscapes at post gardening,but encourages it,and even The environmental consciousness of the offices,army bases and other federal fa- has an annual award given to the best 1960s, spawned by Rachel Carson's cilities around the country, others be- native landscape. book,Silent Spring7 outlining the disas- gan to"jump on the bandwagon."State trous environmental effect of DDT, departments of transportation are now What is Natural Landscaping? caused some individuals to question the using native plants on roadsides. Cor- Native landscaping is: standard suburban landscape practices. porations are using native plants on the practice of cultivating plants These individuals,pioneers of the mod- their corporate campuses. The tradi- which are native to the bioregion em Natural Landscape Movement,be- tional homeowner is beginning to look without resort to artificial meth- gan to plant prairie plants in the Mid- at his or her lawn—which takes hours ods of planting and care, such as west, wild-flowers in the East, cacti in and hours of work a month,-thousands chemical fertilizer,mowing,water- the West, and other species native to of dollars a year,and oodles of precious ing other than through natural their ecoregion in place of the exotic resources to maintain—not as an asset, processes (rain), with the goal of lawns, tulips, and roses in their subur- but as a liability. In the place of this harmonizing the landscape with ban yards.These pioneer natural land- green monster that carpets our nation, the larger biotic community and scapers met with ridicule and disdain, native landscapes are taking hold. ecosystem of the immediate and and were frequently cited by municipal The natural latidscape movement surrounding bioregion.3 officials for violating weed ordinances. has also begun to take root in other Some of them gave up. Others perse- countries. Canada, Great Britain, and A natural garden is a smaller ver- vered and continued to make the case many other nations have all begun to sion of a natural landscape. In its most for native landscaping. embrace natural landscaping by return- simple terms, it is a garden planned More than a century ago,philoso- ing their suburban and residential and designed to work with,rather than pher John Stuart Mill commented that landscapes to native plants and natural against, nature. Municipalities have every great movement goes through topography.10 an obligation to not only allow natural three phases: ridicule, discussion, and. gardens and native landscapes, but adoption.'The Natural Landscape The Municipal Role to promote them within their jurisdic- Movement of the 1960s and 70s diet Municipalities have an obligation to be tions as a means of protecting the with ridicule,but those who persevered pro-active with respect to native plants environment and enhancing the qual- were able to transform this ridicule and and natural landscaping. City officials ity of their communities. progress into the next phase.Through- must not just tolerate native plants in The Natural Landscape Movement out the 80s and 90s and beyond, the their community, but promote native traces its origin to a few landscape ar- Natural Landscape Movement entered plants in their community. City attor- chitects in the Midwest in the early part the discussion phase. Books were writ- neys must review laws that impede,and of the twentienth century.Its main pro- ten and seminars conducted as govern- draft laws that promote, natural land- ponents included landscape architect ment officials and others began to real- scaping. The benefits of a pro-active Jens Jenson4 and, to a degree, Frank ize the merits of using native plants and municipal natural landscape policy are Lloyd Wright.5 These individuals and a natural landscape rather than exotic substantial. Ecologically, there is no others promoted a notion of landscap- plants in an artificial landscape.When, doubt that natural landscapes are pref- ing that was in harmony with the natu- in 1994, President Clinton issued an erable, particularly when compared to ral environment, using native plant executive memorandum mandating the traditional suburban exotic lawns. materials,the existing topography,and use of native plants and natural land- Since natural landscapes do not require other natural features such as rocks, scapes at all federal facilities,9 it marked continued on page 20 rivers,and lakes. The Depression brought an end to most suburban development, and with Bret Rappaport is a partner with the Chicago, Illinois law firm it, the early Natural Landscape Move- Schwartz, Cooper, Greenberger& Krauss. He earned a B.S.from ment came to a close. The emergence Indiana University(1983)and a J.D.from John Marshall Law School of suburbia following World War II bur- (1986)where he was on law review.Mr.Rappaport was an Assistant ied whatever was left of the early Natu- Illinois Attorney General from 1986-1989. A committed con- ral Landscape Movement beneath a car- servationist and native plant enthusiast,Mr.Rappaport is a leading pet of lush green lawns,closely-cropped expert on municipal weed laws and natural landscaping. He has shrubs, and lollypop-shaped trees. written extensively on the subject and is a frequent lecturer at t "Levittown" gave rise to a sea of con- conferences around the country.His home in suburban Chicago is formity,as subdivision after subdivision naturally landscaped. March/April 2003 Vol. 44, No. 2 19 I LANDSCAPING NATURALLY continued from page 19 Johnny Prairie Seed and the municipal attorney to meet with local government pesticides, herbicides or fertilizers, the Germination and Seedling officials to adjust and "fine tune" the harmful effects of these chemicals on • An idea takes root. There must be the draft ordinance(but not to engage in a human and non-human residents are germination of the idea, marked by a comprehensive rewriting). eliminated. In light of water shortages commitment by the municipality to do • Reconvene the Committee. To gl- and other problems with non-point it. The first step is to find a person to low the natural landscape program to source pollution, natural landscaping lead the mission. It must be only one blossom in the community, the sixth has profoundly positive ecological ef- person, and that point person will be step in the Johnny Prairie Seed Model fects. "Xeriscaping," the practice of "Johnny Prairie Seed."He or she needs is to reconvene the citizens committee. planting native low water-consuming to be knowledgeable in the area,as well The purpose of this is to coordinate(i) plants, is the law in many cities, as Passionate and committed to getting events,(ii)publications,(iii)short-term particularly in the and West."In addi- it done. and long-term projects, and (iv) any tion to eliminating the problems • Involve Departments. The second other aspects of the natural landscape associated with exotic lawns, natural step is to involve affected municipal de- project that the committee comes up landscapes provide habitat for native partments—public safety, traffic, and with, such as integrating the local his- animals. public works—in the discussion process. torical society or other aspects into There are also positive economic An ad hoc committee should be set up the process. In Deerfield, Illinois, for consequences to the use of native land- to discuss the different implications of example, a native prairie garden at scapes. First, direct costs are reduced natural landscaping within the commu- Wilmot School incorporates aspects because natural landscapes are less nity. This committee should meet sev- of Deerfield history from the 1800s. costly to maintain than traditional eral times to discuss and brainstorm lawns or other landscapes.Once estab- about natural landscaping, how it will Blossom lished, natural landscapes are not affect the community in a positive way, • Get it Passed. The municipal council mowed,fertilized,or treated with pesti- and how it should be used,protected and should pass the ordinance as part of a cides or herbicides,and they do not need promoted. ceremony that presents the concept watering.Natural landscapes also reduce •Call Up the Citizens.Create a citi- as part of a overall city beautifica- the costs of pollution cleanup by filter- zens' advisory committee. A citizens' tion and quality of life initiative.Once ing runoff. Finally, natural landscapes advisory committee is a necessary and the ordinance is passed, the munici- offer a significant benefit with respect important component of the Johnny, pality must take that project—now to flood reduction by holding rain wa- Prairie Seed Model, since it will bring in full bloom—and continue to pro- ter in the roots and plants,rather than into the process non-governmeptal mote it. First, municipal properties allowing the water to run off into rivers agencies and individuals who will be af- should be naturally landscaped.Second, and lakes. fected by the program, and that are in, municipal resources should be made An additional economic argument terested in seeing it come to pass..Mem- available to homeowners who wish in favor of natural landscaping is the bers of this committee should include to naturally landscape. This doesn't schools, houses of worship, businesses mean that the city should a the doctrine of diminishing marginal P� y pay value—the less of an asset that re- and individuals. homeowners to plant native plants in mains, the more valuable it becomes. their yard, but if the municipality As suburban sprawl continues to gobble Maturation has the resources for a staff botanist or up open space, the elements of nature • Your Turn. The next phase is for naturalist,that person's services should that remain and can be preserved in- "Johnny Prairie Seed," the designated be made available to residents. Many crease in value. Accordingly, many point person,to meet with the munici- cities also have beautification projects developers view natural landscapes pal attorney. The existing laws should where they share the cost of street- retained in their developments as a be reviewed, and a model ordinance side plantings or trees with home- positive asset. Prices of homes in such should be drafted that not only protects, owners.13 The trees offered should all subdivisions are often higher than simi- but promotes, native landscaping in be native. Numerous other things can lar homes in areas without natural the community.The law must be drafted be done to promote natural landscap- landscaping.1z by the attorney, as experience has ing in the community. Publications $ shown that when citizens'advisory com- should be made available. Some com- Getting Started:The Johnny mittees or other committees are involved munities, like the City of Highland Prairie Seed Model in the actual ordinance drafting process, Park, Illinois, have published entire Municipalities should follow the what emerges is a incomprehensible,in- brochures on natural landscaping in "Johnny Prairie Seed Model" to pro- effective and complicated law.The goal their communities.14 mote natural landscaping. The phases is to make the law simple,and then sim- are: (a) germination and seedling, (b) plify that simple law further. Ordinance Guidelines i maturation, (c) blossom, and (d) full • Meet with Your Client. The final The following guidelines should be used bloom. step in the maturation process is for by communities in drafting new weed 20 Municipal Lawyer ordinances that are aimed at a more A model for a good, fair and workable Full Bloom benign relationship between yards modified weed ordinance, one that is The result is a community with a land- and nature: simple,easily understood,and allows for scape ordinance made for the twenty, natural landscaping, is as follows: first century. Natural landscaping as • The ordinance should protect the municipal policy is about looking for- fundamental right of residents to Public Nuisance: Untended, ward, but it also looks to the past, and choose their own landscaping; Rank and Unmanaged recognizes that Mother Nature knows • The ordinance should apply equally Vegetation best: long ago, she determined what to all residents as well as the munici- § 1. Prohibition plants are best suited to a particular pality itself and the State,if possible; Untended,rank and unmanaged growth place. The bottom line is that natural • Any restrictions should have a of vegetation on any property within landscaping is not only a good idea, it rational basis, i.e. a legitimate in- the City which is visible from any is a key component for creating a terest in public health, safety or public way, street, sidewalk or alley is healthier, more beautiful, and sustain- welfare; declared to be a public nuisance and able landscape in your community.We • The ordinance must not legislate may be abated in accordance with the are a part of Nature, not apart from conformity or aesthetics, nor allow procedures set forth in 2-3 of this Nature. Natural landscaping is a con, residents of the municipality to ex- Ordinance. This prohibition shall not cept that manifests that ethic,and it is ercise control over their neighbors' apply to vegetation native to [State or an idea whose time has come. landscapes; region], provided there is a setback • The ordinance should not require of not less than four (4) feet from the Notes the filing of an application, state- front lot line of vegetation not in ex- 1.Schmidling v.City of Chicago, 1 F.3d 494 ment of intent or management cess of eighteen (18) inches exclusive (7th Cir.1993).A comprehensive law review plan,and there should be no review of trees and shrubs. article discusses all the legal arguments raised. or approval process or fees assessed See Rappaport, Bret,As Natural Landscaping against residents who intend to §2.Procedure Takes Root We Must Weed Out Bad Laws—How engage in legitimate natural land- The City shall issue a written citation Natural Landscaping and Leopold's Land Ethic scaping; to a Landowner whose property is in Cow with Unenlightened Weed law and What • In order to avoid harassment of natu- violation of Section 1 of this Ordinance. Must be Done About It, 26 J.MARSH.L.REV. ral landscapers, the municipality's This citation shall inform said Land- 865(1993),available online at www.epa.gov/ grtlakes/gree nacres/weedlaws/j mlrover.html. "weed commissioners"who will en- owner of the basis of the citation and For an update to that article,see Rappaport, force the Natural Landscaping Or- shall include the following information: Bret and Hom,Bevin,Weeding Out Bad Veg- dinance,should be trained to distin- (1) the date of any inspection and the etation Control Ordinances, RESTORATION AND guish between those people who are name of the inspector;and MANAGEMENT NOTES,Vol.16,No.1 0998). growing permitted natural land- (2) the names and addresses of any 2.An excellent discussion of natural landscap- scapes and those with unpermitted neighbor(s)of the Landowner or other ing and municipalities from an urban planning growth; person(s)who contacted the City"or was and sociological viewpoint is John Ingram's • Enforcement of the ordinance contacted by the City regarding the al- doctoral thesis,When Cities Grow Wild—Natu- ralshould be undertaken through due leged violation of 1 of this Ordinance. Landscaping from an Urban Planning Perspec- process of law which guarantees in- The Citation shall be adjudicated in whe ci httm(las w.ccesseld.org/w February i, dividuals the right to fair adjudica- accordance with Art. whenciti.htm (last accessed on February 5, _, of the Mu- 2003). tion of their rights;and nicipal Code relating to adjudication 3.Id.at§1.1. • The ordinance should actively of[traffic offenses]. 4.JENS JENSEN,SIFTINGS(Johns Hopkins Univ. address the problems of environ- Press 1990). mental degradation brought about §3.Abatement and Penalty 5. BERDEANA AGUAR & CHARLES AGUAR, by proliferation of high maintenance Upon a finding of guilt in accordance WRIGHTSCAPEs(McGraw-Hill 2002). monocultural landscapes and the with Section 2 of this Ordinance, 6. For a full discussion of the Natural indiscriminate use of toxic chemi- the Landowner shall have twenty- Landscape Movement, see ANDY & SALLY cals in landscape management. eight (28) calendar days in which WASOWSKI, THE LANDSCAPE REVOLUTION It should encourage the preservation to abate the nuisance. If he/she does (Contemporary Books 2000). E and restoration of diverse, biologi- not so act,the City may take whatever 7. RACHEL CARBON, SILENT SPRING (Penguin Books 1962). cally stable natural plant communi- reasonable action is necessary to abate ttp 8.See http:////www.wist.info/authors/m.html. ties, and environmentally sound the nuisance. The costs of such abate- 9.Office of the Federal Environmental Execu- practices. This would reduce not ment shall be assessed against the tive,Guidance for Presidential Memorandum on only contaminants to the environ- Landowner and shall constitute a fine, Environmentally and Economically Beneficial ment such as pesticides, fertilizers, the collection of which may be made Practices on Federal Landscaped Grounds, 60 pollutants and noise, but would pursuant to the provisions of this Art. Fed. Reg. 40837 (Aug. 10, 1995), at http:// help reduce the accumulation of —[relating to the imposing a lien on tis.eh.doe.gov/nepa/tools/guidance/40837.pdf. yard waste. the property].15 continued on page 31 March/April 2003 Vol. 44,No. 2 21 decisions on Section 253(a) and its LASES continued from page 28 Other Cases of Interest use of the words"any entity,"the court Abdulwali v. RMATA, 315 E3d 302 -7!9petitive access transport services(to stated that, persuaded by the reason- (D.C.Cit.2003)(In death of child who oper as a switchless facilities-based ing of the Eighth Circuit in Missouri fell from train,court held t t the fail- provider o dic' e digital i si rma- Mun. League v. F.C.C., 299 F3d 949 ure to wam claim was b ed by sover- tion transmissio services over its (8th Cit. 2002) and the rule of statu- eign immunity,as trans' authority's sign fiber optic network\ a ' 'ties to and tory construction applied by the U.S. specifications fell wi in the scope of its from customer user points).L wned Supreme Court in Salinas v. United discretionary fun ion). and maintained extensive fiber o c States, 522 U.S. 52 (1997) and other Carrasca v. omeroy, 313 F.3d 828 facilities throughout its authorized cases, "Congress' use of the phrase (3d Cit. 200 (Summary judgement electric service area, which were used ntiry'in§§253(a)is indicative of overturn because district court to meet its telecommunications needs an expa ve statutory scope which effed in ncluding that facts in dispute through the interconnection of its includes a go mental entity, such were ' material in a claim of racial operations center, generation stations, as a municipally o d utility,seeking pr ing). and substations. The Nebraska Tele- to provide telecommu ' ations set- Curry v. City of Syracuse, 316 F.3d communications Association (NTA) vices, and that the statutes erated 324 (2d Cit. 2003) (Genuine issues of intervened, claiming that LES lacked as "absolute prohibitions which, a material fact existed as to whether a the authority to perform for-hire tele- matter of law, [did] not fall with' police officer used excessive force in ef- communications services or to hold the`safe harbor'provisions in§§25 (b) ting the arrest of plaintiff, and a contract carrier permit to perform and (c)." Accordingly, the s tutes whe r he had probable cause to ar- such services. The NPSC ruled that, were preempted by federa aw and rest plat iff for possession of a con- as no statute gave LES the requisite were unconstitutional. wever, the trolled subst ce and/or resisting arrest). authority and that Lincoln's home court found that bec se LES had Frank v. to Airlines, Inc., 314 rule charter, strictly construed, con- not been authorized y ordinance to F.3d 195 (5th Cit. 002) (FAA regula- tions no express grant of such author- provide telecomm cation(as opposed E3d and the O ibus Transporta- ity, LES did lack the legal authority to electrical) rvices, the NPSC tion Employee Testing Act preempt to provide for-hire telecommunica- properly deni its application. In re state law tort claims of negligence, in- tions services. LES appealed. During Lincoln El . System, 655 N.W.2d tentional infliction of emotional dis- the pendency of the appeal, the 363 (Neb 003). tress,and defamation).NL Nebraska Legislature enacted 2001 Neb. Laws, L.B. 827, which provided T that the NPSC "shall not issue... SCAPING NATURALLY continued from page 21 a permit...to an agency or political 0.See North American Native Plant Society Section One:That Paragraph PM-303.4 of subdivision of the state," and that available at www.nanps.org(Canada)and En- Subsection(B)of Section 174.005 of"The "[n]o agency or political subdivision of glish Nature available at www.english- Highland Park Code of 1968,"as amended, the state shall provide telecommuni - nature.org.uk(Great Britain)(lasaacc6ssed on adopting the BOCA National Property tions services for a fee...or be issu ... February 5,2003). Maintenance Code 1996 as amended,be a permit as a telecommunic ions 11.See, e.g., AzTEC,NM CODE§ 26.1.23(c) and the same is hereby further amended in contract carrier." NTA arg d that (1999). its entirety to exempt native plants from these enactments mooted a appeal, 12.Rappaport, Bret,As Natural Landscaping the height restriction on weeds; so that while LES raised the i ue of pre- Takes Root We Must Weed Out Bad Laws— hereafter the said Paragraph PM303.4shall emption based on Sect' n 253 of the How Natural Landscaping and Leopold's Land be and read as follows: Telecommunication ct of 1996. The Ethic Collide with Unenlightened Weed law and "PM-303.4 Weeds:All areas shall be kept Supreme Court o Nebraska dealt What Must be Done About It,26 J.MARSH.L. free from weeds or plant growth in excess REV.865,925-26(1993). of 10 inches(254 mm).Weeds shall be de- with the preemp 'on issue first, find- 13.See, e.g., the Village of Homewood, Illi- fined as all grasses,annual plants and veg- ing that unless a statutes were pre- nois"Shared Cost Trees Program"available at etation other than trees or shrubs provided, empted, the ' sue would be moot. It http://www.village.homewood.il.us/ however,this term shall not include culti- concluded t the statutes prohibiting pwprograms.htm#sharedcost (last accessed vated flowers and gardens, including but the NPSC om issuing a telecommuni- Feb. 11,2003). not limited to native plantings used for cations ontract carrier permit to a 14.Habitats:A Guide to Natural Landscaping aesthetic and/or wildlife promotion,to at- politic subdivision of the State, and in Highland Park, available from City Hall, tract and aid wildlife, and/or offset and proh' iting political subdivisions from 1707 St. Johns Street, Highland Park, IL control any soil loss problems either eit r providing telecommunications 60035. occuring or predicted.It shall be the cuty se ices for a fee, or holding a permit 15.Another example from the City of High- of any person owning,leasing,occupying, a telecommunications contract land Park,Illinois: or controlling any plot of ground in the ju- An Ordinance Amending Chapter 174 Of The risdiction to prevent the growth of noxious carrier, were unconstitutional and Highland Park Code Of 1968,As Amended, weeds such as cockleburs,thistles,ragweed, preempted by the Telecommunica- To Allow For The Planting And Cultivation and burdock thereon. tions Act. In reviewing the various Of Native Plant Species. HIGHLAND PARK,IL.CODE,chapt.178(1968).NL March/April 2003 Vol. 44, No. 2 31