In Which the Town Comes for My Garden

I’m a native plant gardener. I’ve removed all of my back lawn and replaced it with native trees, shrubs, vines, wildflowers, ferns, and grass and grass-like species, and I’ve removed most of my front lawn and done the same, apart from some mown paths. Why? Because native plants are better for the environment. Our wildlife, from insects to birds, coevolved with these plants and are well adapted to using them for survival. Alien plants often require special help to survive (watering, fertilizing, spraying with pesticides, none of which I do), or else they take over because they lack their natural predators to keep them in check. My native garden has attracted many species of birds, including things like flycatchers that one rarely sees in cities. The garden is awash in bees, moths, and butterflies the entire summer. Here are some pictures of the gardens:

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Today I received a notice of code violations. Supposedly someone complained about my front yard, and now the town is giving me two days (!) to remedy the violations, or the town will come and mow the garden down and bill me for the pleasure.

The first violation is straightforward and easily dealt with. The town prohibits trees and shrubs from obstructing vision from private driveways and requires them to be no more than three feet in height. No problem – I try to keep the shrubs by the sidewalk trimmed for public convenience, but some of them are as tall as five feet. I’ll give them a bad haircut now, and then in the fall, as per usual, I will cut them to the ground (these species respond well to this kind of hard pruning).

It’s the next citation that I find very troubling:

According to the notice, “weed and plant growth” in excess of 10 inches is prohibited. Well, that would prohibit pretty much any garden, wouldn’t it? But they clearly misrepresented the text of the ordinance, the definitions in which read as follows:

GRASS, WEEDS or PLANT GROWTH
All grasses, annual plants, trees or vegetation that are harmful to the public welfare, including stumps, roots, filth, garbage, or trash. The term “grass, weeds and plant growth” shall not include cultivated flowers, healthy trees, shrubs, or gardens.

NOXIOUS WEEDS
Plant growth deemed by the Town of Tonawanda Code Enforcement Officer as potentially dangerous to the public welfare, or such plant growth that is an unattractive public nuisance or grows in an undesirable location.

In short, my garden is fully exempted from this ordinance. Furthermore, the code enforcement officer followed the wrong procedure in citing my property. From the ordinance:

B. Written notice may be given by registered mail addressed to the owner of the parcel of real property in question together with posting at the parcel of real property in question or by personal delivery to the owner. Service shall be deemed complete upon the deposit of the registered mailing in a postpaid envelope and the posting at the real property in question and, if by personal delivery, upon the delivery of notice in person to the owner of the parcel of real property.

C. Such notice shall specify the violation(s) as determined by the Code Enforcement Officer and shall direct the owner of the parcel of real property in question to remedy the violation(s) and bring the parcel of real property into compliance with the provisions of this chapter within 10 calendar days of service of notice.

The notice did not come by registered mail; it came by regular mail. The letter does not give me 10 days from the date of service; it gives me 7 days from the date on the letter (just 2 days from the date I received it).

I believe I am on firm legal ground. The concern, however, is that the town will come and mow down my gardens without due process. This has happened all over the country and in Canada. Here’s one example from Illinois, and here’s another from Toronto. The Environmental Protection Agency even provides advice to homeowners on fighting their town governments!

From a utilitarian perspective, government should probably be subsidizing my work rather than prohibiting it. I’m providing benefits to the community and the environment. I’m still optimistic that this will end well, that I’ll be able to get in touch with either the inspector or the mayor, and the town will come to their senses. If not… watch this space.

31 thoughts on “In Which the Town Comes for My Garden

  1. Hi Jason,
    I’m Mary’s friend from ABC and a NH girl 😉 I believe they picked on the wrong gardener…..good luck to the TOWN on this one. Give them heck!

    Peace,
    Michelle

  2. Jason –

    Put signs in your yard “Do Not Mow” and perhaps something like appeal pending or whatever, and contact your local media – the newspaper, the TV channels – they may love an “underdog” story, especially when it’s the government vs someone trying to help the environment. If the squeaky wheel (your complaining neighbor) is getting the grease, make sure your own voice is heard! GOOD LUCK!!!

  3. Jason,

    You should be able to contest this in court – worse case scenario they cannot legally force you to have lawn on your parkway only something that complies with 10 inches. I had a judge rule that private property could not be touched and that I only had to comply on the parkway which I did – I did have remove about 75 percent of the species and move them to the private side but I replaced with others a few short natives and other non nativeones like different combination’s of sedums. But take a plant list into court, a list of the materials and price list, and if possible some kind of plan and show a willingness to compromise. I did that and was able to keep the garden and five years later no one has bothered me.

  4. Thanks all! I will keep you posted. I’m going to start with small measures and then escalate from there if those don’t work. SJ – I’ve actually left the public side of the sidewalk alone & keep mowing it. So this is apparently all about what’s in my front yard, which I think should be my own business. I do have the plant list ready to go. I have some state threatened & endangered species, which might factor into the legal strategy if it comes to that.

  5. You should immediately check your local laws pertaining to NO TRESPASSING signs, and place them on your property. It will certainly help if someone without your permission comes and mows your garden.

    Good luck.

  6. Jason, a more philosophical question for you: Do you take this as (another) argument against a political principle of federalism? Some argue that local governments are among the most tyrannical of all, and that if there were no agency protecting individual liberties and rights, such petty tyrants would run amok. In your own original post you mention that the EPA provides help against local governments (an amazing fact in itself).

    So would a more robust protection of states’ rights (or the authorities of even more localized governing bodies) lead to less freedom than we would have otherwise?

  7. Grover – I like it; I may have to steal it for the next update. 😉

    Jim – The very thought crossed my mind! However, if code enforcement were a state or federal issue, I imagine it would be much more difficult to get satisfaction. In talking with others here in the Buffalo area about this, I’ve found out about a woman who had a similar battle with the city of Buffalo over her garden. The city backed down after a media firestorm. I don’t think the federal or even state government would be nearly as sensitive to public pressure or the prospect of humiliation in the media. The fact that one federal agency is sympathetic to homeowners’ concerns doesn’t mean that another will be! Indeed, if enforcing the weed laws were the duty of the town environment commission rather than the building inspectors, I think I’d never have been cited, at least on the second count.

  8. You have a beautiful garden, Jason. Does New York have statutes about officials mis-representing and illegally enforcing laws and ordinances? New Hampshire has something which can be used to file a class-B misdemeanor action.

  9. I can’t see how everything isn’t either a cultivated flower or shrub and therefore ok. Every perennial “bush” is properly a “shrub”. The annuals are cultivated flowers. Just use a bunch of latin names to sound importent. We landscape architects do it all the time. Really, because it’s accurate, but ppl seem to be impressed. I actually rarely know common names. Anyway, good luck.

  10. Hey mate,

    I am a local with concerns much like many readers I suppose.

    This is why we formed the Church of Weeds. All life is sacred, every plant has a purpose – many of them are healing gifts given to us by the divine, by God.

    Government wants us to tithe and worship it, so they try to kill our plants, our spirit, and our hope.

    Someday, we will all live in regulated government housing, take regulated government medicine, think regulated government thoughts (look at the lack of thinking generated by public school grads), and marvel at government regulated an approved beauty.

    Fight the good fight.

    Mr Twenty Twenty

  11. Hey Jason,

    I am rooting for you. We’ve turned our front yard into a “wild” garden too.

    No only do we have a raised bed with tomatoes & Jerusalem artichokes, we did a straw bale with mint and wild edible plants.

    Ours in the only yard on our street that is not manicured. So far we have not had any complaints. I hope it stays that way.

    Keep us all posted.

    Carol

  12. When I moved into my small town from the really rural area, I immediately scarified my small front lawn and planted perennials. I have no grass to mow, and after eight years have a wonderful self-replenishing garden full of flowers and plants and grasses, much as yours. I adore the way they take care of themselves with just a touch from me. My biggest challenge is a wisteria that tries to swallow my house and stretch its arms across the alley!! Blessings to you as you pursue the way gardening should be. I pray nothing sharp touches your handiwork! Keep us apprised of the situation!

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