Why are City governments enacting HOA-style ordinances?


By Deborah Goonan

Recently I have been reading reports about homeowners being cited for aesthetic violations, even though these owners do not reside in a homeowners’ association. Here’s a prime example, highlighting three different cities and pending legal cases of homeowners fighting for their rights to grow fruits and vegetables on their own properties.

Turf War
Americans are fighting for their right to garden.

Turf War

The sticking point in these disputes is that some city officials object to front-yard gardening, because they have decided that vegetable gardens are unsightly. None of these bureaucrats have been able to put forth a convincing argument that edible gardens pose any threat to health or safety, or in any other way encroach upon neighboring properties. They cannot even cite a nuisance factor.

This is purely about appearances. In fact, Miami Shores attempted to dismiss a lawsuit brought by a homeowner, defending his right to grow food in his own yard. The Institute for Justice (IJ) is assisting the homeowner in this case. I was flabbergasted to read the following in the Reason article:

Last year, Miami Shores attempted to dismiss the case. The village argued that Carroll and Ricketts “have no fundamental constitutional right to a vegetable garden in their front yard.” In a motion filed in January 2014, Miami Shores claimed that its ordinance is “designed to maintain the aesthetic appeal of the community” and that “an ordinance based on aesthetic grounds alone is a valid exercise of a city’s police power.”

Of course, the village’s request for dismissal was denied. The homeowners will have their day in court. The village of Miami Shores may be unable to justify its stance with a compelling interest to interfere in the use of private property.

But this article got me thinking: Why are municipal governments enacting ordinances purely on the basis of aesthetic violations? I thought such overreach was confined to the realm of HOAs, with their pages and pages of deed restrictions designed to maintain a pristine appearance or a uniform “look” to the community.

Homeowners in HOAs have been fighting battles over landscape choices, including gardens, for decades. And they are just recently beginning to make a little progress in states such as California, where the Governor enacted a law forbidding Associations from fining homeowners for not watering their lawns in a historic drought. The Governor later had to go back and clarify the law to include local governments as well as HOAs, after some town leaders decided that a brown lawn would be unacceptable. You can read about it here.

For the last couple of decades, HOA Industry, spurred on by a few attorneys and controversial court rulings, have been trying to convince the American public that CC&Rs (Covenants, Conditions, & Restrictions) form a “contract” between individual property owners and the Association. The homeowner is deemed to have agreed to CC&Rs and any future modifications by virtue of taking title to the home at closing. (see my previous Blog on that topic)

But, in the end, the courts can decide that some rules and restrictions are simply irrational, unreasonable, or just plain unconstitutional. And in the meantime, a groundswell of public outcry can certainly help move public policy in the right direction.

If food gardening is an inalienable right, then what difference should it make if the property owner happens to live under the private governance of a homeowners’ association? Aren’t Americans guaranteed equal justice under the law?

Ari Bargil, I.J.’s lead counsel on the Miami Shores case says it well:

“If the government can tell you what you can grow on your property, what can’t it do?”

Ditto for Association-Governed Residential Communities.

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