4

Hypothetical: a homeowner received a letter in the mail from the city stating that said homeowner is being ordered to keep their lawn mowed such that the lawn did not violate the city ordinance about maximum grass height. This hypothetical letter stated that if the homeowner failed to keep the lawn mowed that the city would have the lawn mowed for him and charge him for the mowing service.

In general, I wonder if the city is allowed to dictate how that property should look, but in thish specific case the problem is even trickier...

Hypothetically, the homeowner actually uses the plants that grow in the lawn. He considers the entire lawn to be a garden and uses the plants in it for various purposes, including but not limited to a food source.

So there are several issues with the order received:

  1. The homeowner does not care what the neighbors think of the yard. He likes it the way it is and feels he should be able to keep it how he wants as long as it is not causing the neighbors any injury to their person or property.

    a. Does the city have authority to make demands based on personal opinions (even if held by the majority) about what looks pleasant?

  2. The homeowner wants to keep growing the garden. To him, it very much is a garden.

    a. Since it is a used garden, does that cause the city to lose any legal authority to do this which they may otherwise have had?

  3. The homeowner does not want some mowing service person destroying the garden.

    a. As soon as the homeowner notifies the city that this is a garden, does the city still have any legal authority to destroy that garden as they have threatened to do?

The homeowner does not believe the lawn-garden is causing any injury to the neighbors or their property and not tall enough to harbor critters.

Can the city legally compel someone to destroy their garden?

This is considered from the point of view of the state of New York.

Since that is (sort of) a yes/no question, if you need something broader to provide a good answer, perhaps consider: On what legal grounds can a city compel someone to destroy their garden? Does the city even need to provide a rationale, or are they legally justified by mere fiat?

The closest case law I can think of was a case where a man had a sign on his property that a city ordered him to remove, but the court determined that the city had no authority to dictate what he could or could not write on his property. I don't think that case was New York, but I cannot find it again. Also that case may have been a first amendment issue which probably does not apply to gardens. Is there any law (case, state, federal, common, anything...) which could apply to the above scenario?

| improve this question | |
  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet♦ Jun 7 '18 at 19:39
5

The city can do any of those things under any of the circumstances mentioned if a city ordinance duly adopted by the city council authorizes it to do so.

A city may legislate by adopting any ordinances which do not violate its charter, state statute, the state constitution, or the U.S. constitution.

If the city has any "rational basis" for its ordinance, which is an extremely low threshold that will not be found to be violated unless it is clear beyond a reasonable doubt that it has been violated, then it is constitutional, since it does not impair any particular constitutional right. Aesthetic concerns are a sufficient rational basis to meet the rational basis test for constitutionality.

None of those sources in New York State prohibits a city from imposing a lawn and garden care ordinance, or forces a city to allow someone to grow food at their residence. Destroying a garden is not a "cruel and unusual" punishment for violating a city ordinance under the 8th Amendment to the United States Constitution or its state constitutional equivalent.

| improve this answer | |
  • 1
    It seems very cruel and unusual to me, to deny someone the use of the resources on his property merely because of aesthetic preferences of neighbors, and I would like to know more about how that distinction (ie: is it cruel and unusual) is made, but I assume that is probably a matter for a separate question (which might already exist here; I'll look later). Thank you very much. – Aaron Jun 6 '18 at 19:18
  • 4
    Under the current jurisprudence of the 8th Amendment, spending someone to life in prison without possibility of parole for shoplifting is not cruel and unusual if someone is a recidivist, and very harsh sentences are authorized even for first time offenders. Thirty years in prison for bouncing a check as a first year offender violates the 8th Amendment at the margin. – ohwilleke Jun 6 '18 at 19:20
  • 2
    +1 for the correct answer and especially the comment response. It might be entertaining to consider if first amendment rights were violated under Masterpiece Cakeshop v. Colorado Civil Rights Commission, assuming some religious connection to having a garden, which may be necessary in some pagan religions. – Viktor Jun 7 '18 at 3:17
4

The city ordinances are not what a letter from the city says they are, or even what the mayor thinks they should be; they are what is written down, having been made law by the proper procedure. What the homeowner needs to do is get hold of a copy of the ordinances, and check what they actually prohibit and whether there are any relevant exceptions. If they do prohibit this lawn-garden, then the city has the power to enforce them; but if not, not.

(It appears that OP has already used a version of this strategy, so this answer is superfluous; but it's still an important point for future reference.)

| improve this answer | |

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.