Defending Your Landscape Against Bad Weed Laws

By Jason and Lisa Spangler, jasons@wumple.com and lisa_spangler@yahoo.com


It was a typical hot Texas summer day.  Lisa and I returned home from a hard day at work, then took a quick tour of the front garden to see what was blooming (which was not much at the beginning of August since we do little to no supplemental watering).  Little did we suspect that lurking in our mailbox was a letter that would turn the next two months into a stress filled period of time during which we would fear for the future of our garden.

I quickly flipped through the day's mail.  What was that, a letter from the MUD?  "State law authorizes Springwoods Municipal Utility District to enforce restrictive covenants within its boundaries."  Uh oh, that didn't sound good.  "Upon inspections of the District, we photographed the following violation: Maintenance - Mowing Needed."  The letter stated that we must "correct this situation within thirty (30) days", and failing to do so "renders the violator subject to referral to the District's attorney for legal action."

We guessed that the inspector did not notice the front of our property was a healthy, water conserving native plant garden rather than a water guzzling St. Augustine lawn like most of properties in the district.  Our first thought was to email the NPSOT-NPAT mailing list asking for advice (edited):

To: NPSOT-NPAT@yahoogroups.com
From: "Jason Spangler" <jasons@wumple.com>
Date: Fri, 09 Aug 2002 09:12:04 -0500
Subject: Help, they want to mow down our native plant garden!

Help, they want to mow down our native plant garden in 30 days!

Lisa and I live in the Hunters Chase Property Owners Association and the Springwoods Municipal Utility District less than a mile outside the City of Austin.  On December 31st of 2002, we will be annexed into the City of Austin.

Here is a web page with some pictures and a plant list of our garden: http://garden.wumple.com/

Does anyone have any advice?  Has anyone dealt with a similar situation before? 

We recently received the following letter from the Springwoods MUD:

"Upon inspection of the District, we photographed the following violation: Maintenance - Mowing Needed."

The first sentence of the following item was highlighted.

"3.08 Maintenance: Each Owner shall keep all shrubs, trees, grass, and plantings of every kind on such Owner's Lot cultivated, pruned, free of trash, and other unsightly material.  All improvements upon any Lot shall at all times be kept in good condition and repair and adequately painted or otherwise maintained by the Owner of such Lot.  Declarant and the Architectural Committee shall have the right at any reasonable time to enter upon any Lot to replace, maintain, and cultivate shrubs. trees, grass, or other plantings as deemed necessary; to paint, repair, or otherwise maintain any improvements in need thereof."

They inspected on 7/30, when little was blooming but everything was green and healthy.  Perhaps they did not recognize the garden as a garden?  I must admit it looks nothing like the half dead, over watered, pesticide and fertilizer laden St. Augustine lawns down the street.

I am not a lawyer, but I think I see several problems with the notice.  First, mowing is not mentioned in the rule.  Second, the garden meets the definition of the rule:
Our plan is to add some more rocks and hardscape to make the garden more apparent.  The additional hardscape may add enough structure to eliminate confusion.

We also plan on adding signage to the plants near the sidewalk, and moving our Texas Parks and Wildlife and NWF backyard wildlife habitat signs to the front of the garden.

We will also prepare a folder of information for the MUD about gardens, native plants, legal precedents, environmental advantages of gardens and native plants over lawns, pictures of the garden in bloom, and any other information supporting our position.

After doing the above, we are planning on inviting the MUD inspector to the garden, giving them a tour, presenting the folder, and explaining why we do not violate the above rule.

If the inspector does not rescind the notice, then we will ask for an extension in writing and present our case to the MUD Board of Directors during the next meeting (which is after the 30 days).  If they do not rescind the notice then we'll have to find a lawyer.

Lisa and I could not bear to loose our native plants and the associated wildlife.  We are determined to fight this and prevent them from mowing our garden.

Please email me any advice or similar experiences you may have.  Thanks!

Many people responded to our message with words of encouragement and advice.  Monique Reed, botanist and horticulturist, posted the following message full of suggestions:

From: "Monique Reed" <monique@mail.bio.tamu.edu>
Date: Friday, August 09, 2002 11:22 AM
Subject: Re: Help they want to mow our garden!

I looked at your photos.  I don't have to much experience fighting the legal authorities, but I do know from anecdotal evidence that the following may be helpful in getting the authorities to see things your way:
  1. Be able to show/prove that you are scrupulously diligent in eradicating "noxious weeds" such as western ragweed, giant ragweed, poison ivy, and Cenchrus grass burrs.  Keep a gardening journal. This demonstrates that you are not just letting it all go, you are actively maintaining.  There is a probably a weed list that they will judge you against, mostly things with stinging hairs, burrs, or highly allergenic pollen, like marsh elder.  Even if it's good bird food or butterfly fodder, you will probably have to get rid of it; this is rarely flexible.  There is also probably a maximum height for "lawn" areas.
  2. If you have any area of strictly grass at all, anything that could be seen as a lawn, mow it if you can or make it look like an intentional planting.  If it's recognizably Bermuda or St. Augustine, mow it or get rid of it. 
  3. Find a competent botanist to come out, make a good list of what you have, and write a "To Whom It May Concern" letter stating that you have valuable native plants, not unkempt weeds.
  4. Respect any city right-of-way ordinances or ordinances about how high vegetation can be at driveway/street junctions.  You will not win against these rules.
  5. Keep a cool head and try not to put the city in the position of having to make an all-or-nothing decision, because then it will be all for them and nothing for you.  Give them room to give you lots of leeway by meeting them halfway on a few things.
I think you have gone a long way toward showing that you're making a habitat, not a manicured landscape.  The authorities may be more amenable to granting you an exemption  for some or all of your property if :
  1. You can show that many of your plants are perennials, which should be afforded the same consideration as traditional perennials.  Have photographic evidence of what the "green stuff" will look like next year when it's in flower.  How interesting is an azalea when it's not in flower?
  2. Proceed with your plant labeling scheme.  This makes it educational. Ditto for your habitat signs and bird feeders and such.  They speak of attention and not neglect.
  3. Consider having non-lawn grasses in neatish arcs or clumps and not scattered one here and one there among the showy-flowered things.  I know that's not how it is in nature, but to a non-botanist's eye, grass amongst flowers can look weedy.  (And what is prettier than a big sweep of pink Muhly in the fall?)
  4. Consider a few well-maintained, edged paths so that what is left is a collection of big, well-laid-out,  well-defined  "beds" of native plants.  They can't very well tell you the flowers in your *beds* are too tall!  A bench here or there also says, "garden", as does an arbor, birdbath, etc.  The critters and butterflies won't care.
  5. Get letters from your neighbors stating that they support your right to grow native plants and that they do not object to your yard. (Sharing cuttings and seeds is a help here.) Ditto any native plant societies you belong to, a school, the local children's museum, whatever.  If you're a source of science materials to the community, they'd be foolish to shut you down.
  6. Consider screening some of the more wild places from street view with a lattice or fence--you can always grow natives over the fence.
  7. As much as possible while letting the plants set seed for you, keep things neat. Tidy away finished annuals, cut down dead, spent perennials you propagate vegetatively, deadhead the things that you aren't letting seed, etc.  Even tying together seed-setting stems into neat bundles says "a gardener has been here"  Heck, if there's a label tag with the plant's name and a note "harvest seed in August" hanging from something, it looks like gardening and science, not weeds.  If your community is under a burn ban, try not to have anything that looks more like fuel than a garden.
  8. Read up on garden design and then if you have to make the jump from "wild habitat" to "landscaped exclusively with lots and lots of natives," you will be ready.
  9. If you know they will be checking your house, bite the bullet and water so that the natives look their best.  WE know they're valuable even in a not-so-leafy drought state, but they're sure more impressive green and flowery.
Hope some of this helps.

Monique Reed

Felder Rushing, a well known lecturer, author, and past president of the Mississippi Native Plant Society, replied with the following message (excerpted):

From: "Felder Rushing" <felder@teclink.net>
Date: Friday, August 16, 2002 1:31 PM
Subject: Re: Help, they want to mow down our native plant garden!]

My garden, which the neighbors have a FIT over, has been featured in Southern Living, Landscape Architecture, Fine Gardening, House and Garden, New York Times, Better Homes and Gardens, and even the National Wildflower Research Center's handbook (I don't think it's published any longer).

What I did to calm them down was what you have ALREADY done: keep public passages and walks neat, use hard features (bird bath, bird houses, sections of fence, garden art, arbors, bench), signs, labels, and BADGES - yours being the National Wildlife Federation certificates and etc.  Anyone who doesn't recognize all that as valid, has a control problem, and you don't need a lawyer to help out - just friends.

Felder Rushing,
Past president, Mississippi Native Plant Society, author, yadda yadda yadda
Oh, and if you want to see some REAL trash, check out my garden at http://www.felderrushing.com/

Bill Seaman, a professional horticulturist and past speaker at NPSOT events, faced a similar situation in the past.  The following is an excerpt from an email message he sent us:

From: "Bill Seaman" <bseaman@arborilogical.com>
Date: Tuesday, August 13, 2002 5:19 PM
Subject: Native Plant Garden

I hope you are a teacher, because teaching is what you are going to be doing for the next few months.  And your students, while they are going to be adults, they aren't going to act like it.

I have hoed this row with my own garden and it took four trips to municipal court and nine months dissecting the ordinance before the judge went off on a tangent to save face, his and the code enforcement officers.  They finally gave up.  They don't bother me any more.  I managed to do this without an attorney, but I did have a tremendous amount of help from my enlightened friends.

My recommendation is to have a meeting on site with the person responsible for issuing the notice.  Have them tell you verbally what their expectations are for you to be in compliance.  Once you think you understand, then ask the official to provide the information to you in writing.  When you meet with this person have two knowledgeable native plant/wildscapers, etc., people present.  Their job is to witness, and clarify any issues that come up in the conversation.  They are not there to argue the point.  If the official tells you to do anything that is unreasonable, respectfully disagree.  Don't agree to any action you oppose.  Depending on how the ordinance is set up, the code compliance officer will not be in a position to have the final say.  Take notes, make a record of conversations and phone calls, keep track of everything. 

Now the hard part.  Be nice, stand your ground, but be nice.  Bureaucrats hate it when your nice to them.  They have this twinge of guilt when they have to enforce stupid ordinances that really don't make since and make them look foolish.

We also have several other suggestions:
  1. Ask for advice from other native plant gardeners.  Others have fought similar battles in the past and can provide useful information.  Resources like the NPSOT-NPAT mailing list at http://groups.yahoo.com/group/NPSOT-Austin-announce/ are invaluable resources for information and help.  
  2. Read the Weed Laws article by Bret Rappaport in the John Marshall Law Review, Volume 26, Summer 1993, Number 4, available online at http://www.epa.gov/grtlakes/greenacres/weedlaws/index.html
  3. Refer officials to the U.S. EPA's "A Sourcebook on Natural Landscaping for Public Officials", available online at http://www.epa.gov/glnpo/greenacres/toolkit/
  4. Break down the rule part by part and show how your landscape does not violate the rule.
  5. Ask knowledgeable professionals in the fields of botany, landscaping, and native plants to examine your property and send letters to the governmental entity citing your landscape.  This might appear to some local officials as outside interference, however.
  6. Be aware of the laws regarding your property.  The Texas Statutes regarding Property can be found online at http://www.capitol.state.tx.us/statutes/pptoc.html . I am not a lawyer and this is not legal advice.
    1. § 207.003 seems to say that if your property is in a subdivision where a property owners' association (POA) levies assessments, that within 10 days of a written request that the POA must supply a current copy of the restrictions applying to the subdivision and the bylaws and rules of the POA.
    2. § 209.006 seems to say that the POA must inform the owner that, upon being notified of a violation, the owner may request a hearing by the board or a committee of the board on or before the 30th day after the owner receives the notice.
  7. Greg Krumme, lawyer for Springwoods MUD, said that the best thing to do is open a dialog and respond both in writing and by phone.  He said they are willing to work with the property owners who believe they are not in violation.
  8. Contact a lawyer if the governmental entity initiates legal action concerning your landscape.
If you must present your case in front of a POA or MUD board, we also have the following advice:
  1. Present a pleasing bouquet of flowers and/or grasses from your garden to the officials.
  2. Hand out copies of the best pictures of your landscape in bloom.  Explain that many native plants do not bloom year round.
  3. Bring a written response that argues that your landscape is not in violation of the rules.  When the discussion veers toward ascetics or conformity, remind the officials that your garden does not violate any of the rules.
  4. Present a brief statement to the officials that summarizes your position about your landscape and that it does not violate the rules.  Describe the benefits of water-wise landscaping, habitat gardening, and native plants.
  5. Read out loud the definition of a native plant and the definition of a noxious weed.  Clarify that native plants used in landscaping are not noxious weeds.  Correct the officials if they claim Johnson Grass or any other invasive weed is a native plant, or they claim a native plant in the picture is a weed.
  6. Bring copies of the professionally prepared plant list.  Emphasize that no noxious weeds were found in the landscape.
  7. Argue your case logically, reasonably, and calmly, even in the face of overwhelming criticism.
  8. State your goal.  Ask the officials to find that your landscape is not in violation of the rules.
  9. Obtain official minutes of the meeting when they are made available.
With luck, you will be successful at convincing your local government that your landscape does not violate the rules and is actually beautiful and beneficial.  We suggest you then reverse the tide and begin educating your local officials about the benefits of native plants and environmentally sound landscaping methods.  You could even suggest improvements to the landscaping rules and suggest places in your city or area that could benefit from such changes, and even offer to help out with making such improvements as a volunteer.

Our garden's situation was resolved positively on 2002/10/8 after two months of phone calls, letters, inspections, and a MUD board meeting.  We have posted a summary of the situation at http://jasons.wumple.com/Interests/Nature/WeedLaws/Welcome.html .

As soon as we received the violation notice, we called ECO Resources Inc., the company that administers Springwoods MUD.  We explained our property was a garden (rather than a lawn), and that there were no weeds and nothing to mow in the garden.  Robin Sussman of ECO Resources Inc., the Restrictive Covenants Assistant, said she had inspected the neighborhood and thought the garden looked "too tall".  She said she would reinspect the property in the near future and contact us.

In the middle of August we sent a packet of information via certified mail to the MUD and ECO Resources Inc.  The package included a letter explaining our garden and why we were not in violation of the covenant, recent additions we made to the garden, and what we would like to see done (receive a letter saying we are not in violation).  The package also included copies of letters of support from organizations and individuals concerning this matter, a list of benefits of our garden, a list of references cited and used when creating the garden, copies of Wildlife Habitat letters and certificates, and an extensive plant list (organized by family, genus, and species).  Over the next few weeks several professionals (involved in landscaping, native plants, and wildlife) and a NPSOT official wrote letters of support to the MUD and ECO Resources Inc.

After many phone calls, Robin Sussman of ECO Resources Inc. told us that our property passed the second inspection but the situation was now a "larger issue" due to the letters of support for our garden the MUD had received.  She put us in touch with the MUD's attorney, Greg Krumme, who told us the MUD board would take the issue up at the next board meeting.  Greg also said the board asked their landscape consultant, Richard Fadal of Texascapes, to visit our property and give his opinion to the board.  We said we would attend the board meeting and present our case, and that we would like to be present for Richard's visit to answer any questions.

Richard Fadal of Texascapes visited our property, complimented us on the garden, and at the MUD board meeting told the directors our landscape was a valid Xeriscape and native plant garden.  At the MUD board meeting, we presented the garden information and pictures to the directors.  They complained about and criticized our garden for a while, and we reminded them repeatedly that the restrictive covenants only require that vegetation on the property be cultivated, pruned, and free of trash and unsightly material and that our property met those requirements.  At the end the board ruled that the property was not in violation of the restrictive covenants.

Jason and Lisa Spangler are members of the Austin chapter of NPSOT.  Jason is Director of Technology and Lisa is an Advisory Software Engineer at Austin area software companies.  They believe that if computer programmers like themselves can garden with native plants for wildlife, then anyone can!