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It Is Time to Reform Landscape Ordinances – Part 4

It Is Time to Reform Landscape Ordinances – Part 4

Photo: One of many pollinator-friendly yards in the City of Madison, as depicted by the city’s Pollinator Protection Task Force Report. Photo by Ledell Zellers.

By Janette Rosenbaum

During the time that this series was being published, Madison did in fact reform its landscape ordinances. For the first time since 1978, Madison updated its regulations pertaining to “natural lawns”.

Natural lawns – now referred to as “natural landscapes” – are defined by the city as residential yards in which grasses exceed eight inches in height. This category includes yards that are entirely landscaped with prairie plantings, yards that have a single ornamental clump of tall grass, and everything in between.

Previously, all yards in this category were required to obtain a permit. Without a permit, grass in excess of eight inches was a violation of the ordinances. As noted in previous articles in this series, many people in Madison have tall grass in their yard, while few have ever obtained – or even attempted to obtain – a permit.

As described in Part 2 of this series, Madison knew at the time the permit requirement was created that tall grass does not attract rats, hurt property values, or cause any of the other negative impacts commonly attributed to it. Still, the 1976 effort to completely eliminate a ban on tall grass failed due to the concerns of those who continued to believe in tall grass’s bad rap.

Today, Madison recognizes that banning tall grass – and thus virtually requiring fossil-fuel-powered mowing, fertilizers, pesticides, and all the other maintenance practices associated with lawns – interferes with the city’s goal of being more sustainable and more environmentally friendly. Specifically, making it difficult for property owners to establish prairie plantings, by requiring them to go through an onerous permitting process, presents an obstacle to the goal of protecting pollinators, which the city declared to be an urgent priority in the fall of 2015.

Still, the workgroup charged with taking action to protect pollinators failed to fully legalize tall grass. Instead, on January 3, 2017, the City of Madison adopted a limited revision to the natural landscapes ordinances that says the following:

  1. Grass in residential yards may not exceed eight inches in height.
  2. Grass in residential yards may exceed eight inches in height, if the property owner obtains a permit.
  3. Grass in residential yards may exceed eight inches in height without a permit, if the area containing the tall grass only occupies a certain limited percentage of the yard, and if this area is a certain distance from the property lines, and if the tall grass is a species found on a brief list included in the ordinance.

Supporters of the revised ordinance say that this change will make it easier for property owners to legally have natural yards. Others who were hoping for a more progressive update, however, have several concerns about the new rules.

First, the exemption to the permit requirement only helps property owners who have – or who would like to have – small natural plantings. Almost no one in this category currently has a permit, and almost none of them have been prosecuted for not having a permit. Eliminating the permit requirement for small natural plantings helps almost no one, while still leaving property owners with full natural yards vulnerable to prosecution.

Second, enforcement of the new ordinance would require Building Inspection employees to calculate what percentage of a yard is occupied by a natural planting. Although Building Inspection Director George Hank stated, at a city meeting where the proposed revision was being discussed, that his employees were good at math, those employees have stated to the author of this article that they often rely on eyeballing rather than measuring when determining the size and location of plants. If inspectors take that approach to the new ordinance, property owners could be forced to go to court to argue that their planting is in fact smaller than the percentage limit.

In addition, the aspect of the ordinance that allows only certain grass species to bypass the permit requirement depends on inspectors being able to accurately identify grass species. In previous cases, Building Inspection employees have been unfamiliar with native species, and have described natural yards as containing a “significant number of plants [they] couldn’t identify.” Again, a property owner could be falsely accused of not meeting the requirements for the permit exemption, and would then be forced to convince a judge that their grass belongs to the exempted species.

Third, given Building Inspection’s history of enforcing ordinances arbitrarily – as described in previous articles – it is not hard to see how the new ordinance could be misconstrued to mean that even with a permit, a property owner cannot have grass species other than those listed as allowable without a permit. The new section of the ordinance also requires tall grasses to be set back at least five feet from property lines – a requirement that could be inappropriately applied to those who have permits, who currently must provide a setback of only three feet, or none at all with the permission of the adjoining neighbor.

Clearly it is not the intention of the new ordinance to be more restrictive than the old one, but the confusing wording, along with the structure of exemptions to exemptions, could again force property owners to go to court to sort out which requirements apply to the type of yard that they have. The simple solution: stop imposing onerous regulations on grass, and allow property owners to landscape their yards with the most harmless and regionally-appropriate of plants.

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It Is Time to Reform Landscape Ordinances – Part 3

It Is Time to Reform Landscape Ordinances – Part 3

Photo: Tim Wong’s bush has grown next to his neighbor’s driveway for over 20 years without causing any problem.

By Janette Rosenbaum

The first two parts of this series reviewed how Madison’s vegetation ordinances came to be, whether they are benefitting the public, and how enforcement of them might be reformed. This third part examines a specific case of enforcement.

Tim Wong is a member of the Schenks-Atwood-Starkweather-Yahara (SASY) neighborhood association, which conducted the violation survey described in Part 1 of this article. He is also one of the residents of that neighborhood who received complaints about his yard.

Wong quickly resolved the complaint, which regarded flowers in his terrace being too tall. Then, Building Inspection (BI) supervisor Kyle Bunnow came to his property to “make sure he understood the rules”. During that visit, Bunnow pointed to a bush in a vision triangle in Wong’s yard, which had existed in that location for over 20 years without issue, and declared, “That has to go.”

The case ended up in court, where Bunnow constructed the following story in his testimony: Suppose that a car is backing out of an adjacent driveway, while a child is approaching on the sidewalk. The motorist and pedestrian do not see each other, because of the bush, and tragedy results.

This hypothetical danger ignores the following facts: First, Wong does not own a motor vehicle and has a tree growing in his driveway. The neighbor’s driveway, which more closely abuts the bush, is occupied by a picnic table most of the year; the neighbors only park vehicles in their driveway during winter, when the leafless bush is nearly transparent. Second, another of Wong’s neighbors testified that she has never seen any motor vehicle in Wong’s driveway. Third, as described in Part 2 of this article, almost no motor vehicle accidents anywhere have been attributed to the presence of a plant.

It is thus extremely doubtful that the destruction of Wong’s bush would result in any benefit to traffic safety – or to public health, safety, welfare, or morals more generally. Another feature of Wong’s case — to which we shall return in a moment — also illustrates the questionable legal grounds on which Madison’s vegetation ordinances are enforced.

The Fourteenth Amendment of the United States Constitution states that all citizens must be treated equally under the law. Harvey Jacobs, an expert on property rights and professor at the University of Wisconsin-Madison, explains how this relates to a citizen’s use of their private property: Use of private property is controlled by local zoning laws, but because people own property in different zones, they do not all have the same rights as to how they can use their property. In the 1920’s, the Supreme Court ruled that this is not a violation of the Fourteenth Amendment, so long as everyone owning property in the same type of zone is subject to the same restrictions on the use of their property.

To return to our main topic, this should mean that Madison’s vegetation ordinances are acceptable under the Fourteenth Amendment, so long as everyone in the same neighborhood is held to the same standards. But to return to the case of Mr. Wong, this does not appear to be how enforcement is handled.

During that meeting with Supervisor Bunnow, Wong pointed to a bush on a neighboring property, which was clearly overhanging the sidewalk. Although this is a violation of the ordinances, Bunnow stated that he “had no problem” with it. It thus does not appear as though Wong and his neighbor were treated equally.

The Fourteenth Amendment sometimes allows for inequal treatment based on special circumstances; perhaps one of those exceptions applies here. Some examples of valid inequal treatment are as follows: One restaurant might be allowed to serve alcohol on their premises, while another restaurant in the same neighborhood is not, on the basis of only the first restaurant possessing a liquor license. Or, a residential property owner might receive special permission to violate setback ordinances due to their property having unusual topography.

The inequal treatment of Wong and his neighbor might be valid if, for example, the neighbor had a natural yard permit. This permit allows Madison residents to be subject to a somewhat more lenient set of vegetation ordinances. However, since the permit exception was created several decades ago, the city has issued perhaps 100 such permits. This is hardly enough to cover all the violations in the SASY neighborhood, let alone the many yards all across the city that are only in compliance with the ordinances if they have a permit. It is thus unlikely that Wong’s neighbor has a permit.

It is also possible that Wong’s neighbor had not received any complaint about their property. However, this does not seem like a reasonable criterion on which to discriminate between Wong and his neighbor. Neither bush had received a complaint (remember that Wong’s complaints were about another aspect of his property, which he addressed), and at any rate it is doubtful that any of the complaints in the neighborhood reflected a valid use of the police power to begin with.

Third, it could be the case that the discrimination reflected intelligent enforcement of the ordinances – that is, Wong’s bush was judged to be an actual hazard, while the neighbor’s bush was not. However, as described above, there is very little evidence that Wong’s bush was in any way endangering anyone.

In conclusion, the ordinances must be enforced through fair and reasonable criteria, so that true safety hazards are addressed while technical violations are left alone. The current enforcement practices do not support this goal. While the city may not have the resources to find and resolve all true safety hazards, shifting resources away from the senseless prosecution of technical violations would surely help to address the shortfall.

 

 

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It Is Time to Reform Landscape Ordinances – Part 2  

It Is Time to Reform Landscape Ordinances – Part 2  

Photo: Tree-lined streets like this one have safer traffic flow than streets without trees.

By Janette Rosenbaum.

Part 1 of this article described Madison’s vegetation ordinances, how public opinion is now at odds with those ordinances, and how the ordinances are still used to enforce the preferences of the minority. This second part looks at the reasoning underlying the ordinances and their enforcement.

All cities in the United States are enabled to pass and enforce laws under what is known as the police power. This power authorizes a city to create laws that are intended to protect public health, safety, welfare, or morals.

It is doubtful whether Madison’s vegetation ordinances achieve these ends, or even whether they were originally believed to do so. Like many cities, Madison has long banned tall grass on private property. But in 1978, Madison became the first US city to reverse this ban – at least partially.

In 1976, Madison had attempted to eliminate the ban on tall grass in yards, but the effort failed, due to the concerns of those who believed tall grass would attract rats and adversely affect property values. In 1978, a compromise was reached: Madison residents would be allowed to have tall grass in their yards as part of a mindful effort to be more environmentally responsible, while tall grass resulting from neglect of property would be banned. A permitting process would be used to distinguish between one and the other.

What is fascinating is that it was already well known at the time that tall grass does not attract rats, reduce property values, or cause other negative effects commonly attributed to it. This holds true whether the tall grass is part of a well-maintained prairie, or whether it is an overgrown lawn.

40 years later, the science has not changed. There is now even more evidence – including Madison’s own experience – that no harm of any kind results from tall grass. These facts are laid out in the city’s own publications on the topic. Yet, as the city considers eliminating the permit requirement and allowing tall grass as a matter of right, opponents of the change continue to raise the discredited issues of rats and property values.

It is thus not only true that banning tall grass does not contribute to public health and safety, but that Madison has known this for decades. Other vegetation-related ordinances that are still on the books suffer from a similar problem.

One example is the “vision triangle” ordinance, which bans tall plants near intersections, or near the juncture of a driveway and a sidewalk. The ostensible reason for this is that tall plants could interfere with visibility for motorists and pedestrians, leading to accidents.

However, there is little evidence that such a risk exists. Investigating traffic accident statistics shows that relatively few accidents are attributed to poor visibility – and within the list of causes of poor visibility, plants rank very low.

The leading cause of traffic accidents is driver distraction and driver error. Research suggests that plants actually ameliorate these hazards. A concept known as Attention Restoration Theory posits that nature – including plants, especially those growing in their natural forms – is so easy for our brains to process, that looking at it actually helps us recover from the fatigue caused by activities such as reading difficult materials and planning for the future. This boost to our mental energy increases our ability to pay attention and make good decisions. In other words, there is evidence that looking at plants makes us better, safer drivers.

Further evidence for this has been found in studies specifically looking at plants and driving behavior. For example, drivers travel more slowly along tree-lined streets. Motorists on highways bordered by wildflowers find it easier to pay attention than those driving on highways with mowed edges. And sections of freeway with forested medians were found to have no more accidents than sections of the same freeway where the median was landscaped with turf grass.

While it certainly may be the case that some specific plant in a vision triangle may be creating a hazard that outweighs the benefits, applying the vision triangle ordinance as a blanket rule is in fact likely to lead to reduced traffic safety. The ordinances need to be enforced intelligently in order to serve their intended purpose.

The third article in this series will tell the story of a resident who was prosecuted for a vision triangle violation, and question whether it was legal for the city to bring this case.

 

Postscript: On January 3, 2017, Madison officially adopted an update to the 1978 requirement that property owners obtain a permit to have tall grass in their yard. Now, in certain limited circumstances, tall grass will be allowed without a permit. An upcoming article in this series will review the new ordinances and question whether the change will make it easier to have an environmentally-friendly yard in Madison.

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It’s Time to Reform Landscape Ordinances – Part 1

It’s Time to Reform Landscape Ordinances – Part 1

By Janette Rosenbaum

In Madison, you cannot have any plants in your terrace within two feet of the street. You cannot have any plants along the bottom of your driveway that are more than two feet tall. And you cannot have a tree branch over the sidewalk, unless it is higher than seven feet (even on those occasional days when it is loaded with snow).

All of these situations are illegal under Madison’s city ordinances. Obviously, there are many violations of these ordinances in our neighborhoods. Because the city’s Department of Building Inspection (BI) does not have the resources to search for and prosecute them all, it relies on citizen reports to locate and address violations.

This report-driven process might work fine if most of the violations were true public safety hazards created by negligent property owners. However, this is not the case. In the several decades since these ordinances were passed, public opinion has increasingly turned away from manicured lawns and geometrical hedges. Instead, today’s Madison residents want a city filled with abundant vegetation.

This was demonstrated by the Schenk-Atwood-Starkweather-Yahara Neighborhood Association (SASYNA), located on the east side of the isthmus. During the summer of 2015, several members of the association surveyed the main street in their neighborhood, and found that 65 out of 91 houses — or 71% — were in violation of at least one of the ordinances.

Normally, when an ordinance is so out of step with public opinion, an understanding develops that the ordinance is no longer enforced – or, at least, is enforced only when the violation constitutes a true public safety hazard. But this is not the case in Madison either. Rather, the citizen-report process works as follows: Any Madison resident can use the complaint form to report a violation on private property in the city. They can do so anonymously, and they are not required to demonstrate that the violation is creating a safety hazard — or even to claim that this is the case. Thus, a resident can complain about a property because they simply do not like the vegetation… or because they simply do not like the owner of the property. There is very little risk of repercussion, and BI is virtually required to take the complainant’s side.

Abuse of the complaint system is not a hypothetical concern. Despite the SASY neighborhood’s overwhelming “vote” for more plants, last summer dozens of properties received complaints, possibly from a single resident. Although even a BI employee agreed that the anonymous complainant(s) just had “nothing better to do”, a number of the complainees were forced to remove gardens that they had worked hard on and enjoyed. Some spent months fighting legal battles to keep their favorite plants.

Many of these ordinances are currently being revised, and potentially will be eliminated. In the meantime, two reforms to the enforcement process would help to bring it in line with modern-day opinion, and protect Madison’s majority from the tyranny of the handful who still prefer rigidly-maintained vegetation.

First, BI employees should be trained to distinguish between a technical violation and a true public safety hazard. Second, complainants should be required to give their names when filling out the form, and could be asked to indicate whether they’ve attempted to resolve the safety problem — if indeed there is a safety problem — directly with their neighbor. These simple changes would limit abuse of the system, and would help to strike a balance between public safety and the ecological sustainability that residents clearly want.

An upcoming second part of this article will review why Madison’s vegetation ordinances exist, and whether they are achieving their purposes.

 

 

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