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Monday, December 12, 2011

Chicago’s Weed Ordinance Found Constitutional

Like most other municipalities throughout the state and across the country, the City of Chicago has in place an ordinance that regulates the height of weeds on private property. The City’s weed ordinance was recently the subject of a constitutional challenge by a property owner who was cited, and found to have violated, the ordinance. The appellate court upheld both the weed ordinance and the City’s administrative proceedings in Schacter v. City of Chicago.

In this case, the property owner had asserted a number of procedural and substantive challenges to the administrative proceedings, as well as constitutional challenges to the weed ordinance. Specifically, the owner alleged that the weed ordinance: (1) was vague and subjective; (2) invited arbitrary enforcement; (3) had been arbitrarily enforced; (4) failed the "strict scrutiny" test because it limited the right to property in an overly broad manner; and (5) bore no rational relationship to any legitimate or intended public purpose.

In addressing the owner’s constitutional challenge to the weed ordinance, the appellate court first rejected the property owner’s claim that the court should apply strict scrutiny in reviewing this ordinance, finding no “fundamental constitutional right” at issue.  Instead, the court determined that the City's prohibition on properties containing weeds averaging over 10-inches tall was rationally related to a legitimate interest, even if that interest was solely aesthetics. In supporting its decision, the appellate court cited the U.S. Supreme Court’s decision in Berman v. Parker¸ where the Supreme Court long ago recognized that the:

concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean…

Municipalities have traditionally justified and supported their “weed ordinances” with recitals that emphasize the health and safety benefits to the regulation (control of rodents, prevention of disease, etc). Based on this decision, aesthetics alone may provide sufficient justification and support for a municipality’s property maintenance regulations. 

Post authored by Julie Tappendorf, Ancel Glink.


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