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Wednesday, August 12, 2015

Appeals Court Upholds City's Parkway Mowing Ordinance

Most municipalities have "weed" ordinances on the books that require homeowners to maintain their lawns in a certain condition, including requiring mowing.  Many of these ordinances apply not only to the private lawn, but also to the parkway area between the sidewalk and street, even if that parkway area is publicly controlled by the municipality (through an easement or other instrument). This type of ordinance became the subject of a lawsuit recently decided by the Sixth Circuit Court of Appeals involving the City of Howell, Michigan.  Shoemaker v. City of Howell (6th Cir. July 29, 2015)

The City of Howell requires homeowners to keep grass and vegetation to a height no greater than 8 inches. The ordinance included the "curb strip" in front of the homes on which the City held an easement. After a homeowner refused to mow the curb strip in front of his house, the City hired a contractor to mow the strip and then cited the homeowner for an ordinance violation. The homeowner defended the citation by claiming that the ordinance violated his due process rights because he didn't get a hearing and his fundamental right not to be forced to maintain the curb strip. The district court ruled in favor of the homeowner, but on appeal, the Sixth Circuit Court of Appeals found in favor of the City.

The Sixth Circuit Court of Appeals first noted that the curb strip was owned by the homeowner, and the City's interest was through a right of way for public convenience.  As a result, there was no fundamental right at state because of this shared interest in the property. The court also found the property interest in this case to be relatively minor (small fine and contractor costs for mowing), and any requirement that the City provide "more" process to the owner (hearing, etc) to be costly and more burdensome than necessary, given the minimal risk of a deprivation of due process to the owners. 

The appeals court also acknowledged that the City had notified the homeowner on numerous  occasions of the ordinance violation, including 4 door hanger notices, 3 letters, a conversation with the homeowner's daughter, and a phone call with the owner.  Those notices provided sufficient due process to the owner of the violation. The court did, however, note that the notices were "not perfect" because they did not state the amount of the fine and the consequences for failing to pay the fine - requirements of the City's own ordinance.  Nevertheless, the appeals court found that the process was sufficient to meet due process requirements, stating as follows:
the Constitution does not require strict adherence to the city's ordinances. What the Constitution does demand - that the notice as given be reasonably calculated to alert Shoemaker of the charges against him and any avenues available for challenging those charges - was accomplished by the notices distributed by the city.
This case is a good one for municipalities, as it upholds a municipality's right to enforce its "weed" ordinances on parkways or "strip curbs" even if that property is publicly controlled. It also provides guidance to municipalities on the importance of providing adequate notice to the owners prior to taking any enforcement actions, although that notice need not be "perfect" in order to satisfy due process.

Post Authored by Julie Tappendorf


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