Landscape Court Decisions.

For those who doubt property value arguments verses landscape restrictions, this is the start of a backlash against who shall determine what is landscape acceptable.

Now I know that a condo or HOA with small lots does not fit into this scenerio but some of this can be adapted to smaller areas.

In April 1976, New Berlin sued Donald Hagar for violating its weed law by practicing natural landscaping and cultivating a several-acre meadow.74 Hager, a wildlife biologist, fought back. He brought in experts to refute the city's claims that his landscape was a health hazard.75 The testimony was convincing. Forest Stearns of the University of Wisconsin, demonstrated that the Norway rat does not inhabit or find food in a natural landscape. United States Forest Service fire expert, David Seaberg, testified that Dr. Hagar's prairie did not create a fire hazard. Professor Philip Whitford, a botanist from the University of Wisconsin, testified that a prairie fire, unlike a forest fire, does not create large and persistent embers that can be carried by the wind. David Kopitzke, a Milwaukee County Public Museum botanist, established that wildflowers and natural landscapes do not create a pollen problem. Exotic plants, like Kentucky Bluegrass, and trees, like oaks, create more allergenic pollen than a native prairie.

After three months of deliberation, on April 21, 1976, Judge William Gramling issued his decision.76 The Court found nothing in the testimony to justify the fire and pollen hazard claims that the city cited to support the weed ordinance. He found that natural landscaping did not negatively affect neighbor property values. The court stuck down the ordinance as violative of the Equal Protection Clause because the factual underpinning for the law was too thin to be rational.77

Following his victory, Mr. Hagar continued his natural landscaping and New Berlin has not bothered any natural landscapers since.78

4. Montgomery County, Maryland v. Stewart 79

Walter Stewart, a scientist, and his wife, Nancy Stewart, a Justice Department attorney, borrowed a page from Mr. Hagar's playbook and successfully repelled efforts by neighbors and Montgomery County, Maryland officials to enforce a weed law against their natural landscape. The Stewarts allowed a six-acre natural landscape to grow around their suburban home.

In 1987, the Stewarts received a citation for violating the local weed ordinance. In response, they compiled a detailed scientific and legal case arguing that their natural landscape did not pose a danger to the safety or health of the Montgomery County residents. The county argued that overgrown yards harbored rats and snakes and were harmful to people with respiratory problems. Faced with the Stewarts' evidence, however, the county elected to drop the charges.80

Because of the Stewart's efforts, Montgomery County changed its weed law to allow meadows as long as there is a 15-foot buffer maintained at 12 inches or less, and species on a noxious weed list, such as poison ivy, are controlled.81

5. Little Rock, Arkansas v. Allison 82

In the South, Lyndae Allison maintains a natural landscape that the Arkansas Game and Fish Commission considers a natural wildlife area. Her half acre yard is mostly hardwood forest, with trumpet vines and mulberry trees. The City of Little Rock had a different view. Little Rock cited her for violating Article 20-2 of the municipal code which forbids "grass, weeds, or any other plant that is not cultivated" to grow higher than 10 inches or "in rank profussion on the premises."83

The case went to trial in 1988. The city weed inspector testified that Allison's yard was filled with ivy and honeysuckle, but he found no garbage or litter. A state urban wildlife biologist, Karen Yaich, testified that natural landscapes, like Allison's, do not attract rats or pest snakes. Ms. Allison testified that she cultivated a natural landscape in order to provide nesting sites for native wildlife and because she preferred the natural appearance.

Little Rock Municipal Judge Marion Humphries dismissed the citation. The Court held:

It appears that what [Ms. Allison] was cultivating was the kind of vegetation that would not attract snakes or rats as suggested by her neighbors, that it would attract songbirds. For that reason, her premises would meet the standards of the Game and Fish Commission of having a certified backyard wildlife area.84

Without interference, Ms. Allison currently continues her natural landscaping efforts.

6. Ladybird Johnson and the National Wildflower Research Center

Ladybird Johnson led the effort to beautify the National Highway System and was instrumental in the passage of the statute implementing her efforts.85 In 1982, as a spin-off of her highway beautification efforts, Ladybird Johnson and the late Helen Hayes founded the National Wildflower Research Center, a non-profit environmental organization dedicated to the preservation and reestablishment of native wildflowers, grasses, shrubs, and trees. The Wildflower Center, with 18,000 members, provides information on recommended native plant species and seed and plant sources for each state, plus tips on planting and maintaining native plants through its Information Clearinghouse.86 The center is an important institutional base for the natural landscaping movement.

7. The Canadian Cases

Across the border, the same battle is being waged between the natural landscapers and some of their neighbors and village officials. Lary Lamb, a university ecologist, has fought neighbors in his Toronto suburb for years to maintain his native North American prairie in his yard.87

One thousand miles to the east, Cathy Smallwood grows a native woodland in the Newfoundland capital, St. John's.88 In September 1992, the city served her with a citation for violating the law that required yards to be "kept clean and free from growth of weeds and grass that are detrimental to health or public safety... or by reason of not being cut regularly are excessive when compared with neighboring properties."89 The matter came before the planning commission and Mrs. Smallwood convinced the commission, 5-4, to allow her to keep her natural landscape. Thanks to her efforts, St. John's is now considering re-writing its weed ordinance to expressly allow natural landscaping.

8. The "Chicago 5"

In America's heartland the battle is being waged to convince the nation's third largest city to permit residents to naturally landscape90 - something the State of Illinois, Cook County, the Park District and the city itself all actively practice on public lands.91

The Chicago 5 are a varied lot. Jack Schmidling grows a natural landscape consisting of a 110 varieties of Illinois prairie, woodland and wetland plants and wildflowers.92 His yard attracts 64 species of birds. Mike Regenfuss cultivates a natural landscape as an important part of the North Branch Prairie Restoration Project, a joint project of the Cook County Forest Preserve District and The Nature Conservancy, a national conservation organization.93 Since 1949, Larry Clark's family has cultivated a natural landscape consisting of a savanna, prairie, wetland, and an experimental garden.94 Debra Petro lives on Prairie Avenue and since 1988, she has grown native Illinois prairie and savanna plants as part of the Chicago Park District's Bob-O-Link Prairie Reconstruction Project 95 and the Indiana Department of Natural Resources' Hoosier Prairie Restoration Project. Rich Hyerczyk grows native Illinois prairie plants to help preserve native plants in cooperation with the Cook County Forest Preserve District.96

In 1991, the Chicago 5, fed up with the continuous threat of citation for violating the weed ordinance, filed suit in federal court to declare the Chicago Weed Ordinance unconstitutional.97 Beyond the legal arguments,98 the Chicago 5 raised compelling common sense arguments for allowing them to maintain natural landscapes in Chicago. The City cultivates a native prairie of wildflowers, legumes and grasses at The David Lee Animal Control Center on the near south side.99 The Cook County Forest Preserve District is aggressively reintroducing prairie plants throughout Chicago.100 The Chicago Park District is engaged in similar programs.101 Like the Park District, the Illinois Department of Transportation is reintroducing native prairies throughout the state. Its reasons are: (1) historical (Illinois is the "Prairie State"); (2) environmental (prairie plants are beneficial to wildlife); and (3) economical (by introducing prairie plants, IDOT is able to save money, and reduce gas consumption, wear and tear on IDOT machinery, and man-hours necessary to mow roadsides).102

The fact that homeowners are prosecuted while the governments that prosecute them plant natural landscapes demonstrates the tug-of-war between those who want to live the Land Ethic and those who want to continue the practices that ignore humankind's proper place within Nature. Some in government, like the Chicago Park District, recognize the Land Ethic. Others, like those who prosecute natural landscapers, do not. The view of the former is taking hold for a host of compelling reasons set forth below.