HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/02/2000 - CONSIDERATION OF THE APPEAL OF THE MARCH 15, 2000, 77�7'
AGENDA ITEM SUMMARY ITEM NUMBER: 23
DATE: May 2, 2000
FORT COLLINS CITY COUNCIL STAFF: Laurie D'Audney
John Duval
SUBJECT:
Consideration of the Appeal of the March 15,2000,Decision of the Water Utility's Hearing Officer
Denying the Application of Earle and Maxine Horton for a Xeriscape Certification and Grass Height
Variance.
RECOMMENDATION:
Staff recommends that the Hearing Officer's decision be upheld.
EXECUTIVE SUMMARY:
This appeal is taken from the "Decision of the Hearing Officer" dated March 15, 2000, issued by
Steven Klausing, as the City's Water Utility Hearing Officer appointed by the General Manager of
Utility Services, a copy of which decision is attached (the "Decision"). The Decision pertains to
the application of Earle and Maxine Horton for a xeriscape certification and a grass height variance
under Section 20-43 of the City Code for their residence at 2750 Pleasant Valley Road,Fort Collins,
Colorado.
BACKGROUND:
Xeriscape Certification/Grass Height Variance
Several years ago, the City Council adopted Ordinance No. 89, 1994 designating a xeriscape
certification program as part of major changes to the City Code provisions relating to grass, weeds
and brush. The Water Utility felt the certification was a way to encourage water-conserving
landscapes and adhere to the intent of the City's water demand management policy. Under Section
20-43 of the Code,a certified xeriscape may receive a conditional variance from the Code provisions
that regulate the height of grasses in Code Section 20-42(c).
The xeriscape certification program is administered under regulations developed by the Water Utility
under the direction of the General Manager of Utility Services,as authorized in Code Section 26-52.
The criteria used to evaluate applications for xeriscape certification are divided into two parts. The
first part is used to determine whether the landscape demonstrates the principles of xeriscape,
P including visual appeal,and the second part is used for determining whether to grant a grass height
variance. The variance criteria evaluate whether the grass would create a fire hazard, attract
undesirable rodents,insects or snakes,produce allergens or promote the spread ofgrasses and weeds.
The criteria evaluate,among other things,community aesthetics to see if the proposal is compatible
with the nearby landscapes and whether people seeing it will consider it attractive.
DATE: May 2, 2000 2 ITEM NUMBER: 23
Horton Application
In July 1999, in response to a complaint from a neighbor, a City weed inspector left Earle and
Maxine Horton at 2750 Pleasant Valley Road a notice that they were in violation of the grass height
ordinance. Subsequently, Mr. Horton called Ms. D'Audney,the xeriscape program administrator,
to ask about obtaining a xeriscape certification for his property. Ms. D'Audney made a brief
inspection of the property from the road and assessed it as mowable grasses and weeds. She left Mr.
Horton a message saying she didn't think the landscape would qualify for certification.
Ms. D'Audney subsequently received on September 30, 1999, an application from the Horton for
xeriscape certification and a grass height variance for their entire property. An accompanying cover
memo explained that their landscaping, although deviating from the principles of xeriscape, was
intentional and was in keeping with their philosophy of natural gardening. The memo also stated
that the application was submitted under protest because they felt the City lacked the authority to
regulate the height of their grasses.
The Hortons' home is in the Siena subdivision, which is a two or three year-old subdivision
consisting of moderately priced homes. The lots are relatively small, with limited room for
transitions from one type of landscaping to another. Landscapes in the neighborhood are generally
irrigated and mowed, with trees and defined planting beds.
Ms. D'Audney visited the property again in October, 1999. Not being able to identify the grass
species on the property, Ms. D'Audney asked horticulturist Jim Clark to visit the property. He
confirmed that most of the species were water-conserving,but he also noted that several of the non-
native grasses can be invasive.
Evaluation of the Hortons' application was difficult because the grasses and plant material were
water-conserving,but the landscape didn't have the usual characteristics of a xeriscape. Compared
to a traditional landscape, xeriscape typically has smaller turf areas, lower water-using plant
selections and more efficient irrigation. Xeriscape usually has mulched planting beds and plantings
that are laid out in a particular design. In staff s view, the Hortons' landscape is more of a prairie
than a xeriscape and, if their lot were 1/4 acre or larger, it would fit better under the City's natural
areas certification program. The goal of that program is to encourage site management practices that
focus on protecting,restoring and enhancing native animal and plant communities, which is more
in line with the Hortons' objectives.
Aesthetics Evaluation
After applying the xeriscape program criteria, Ms. D'Audney determined that the landscape had
acceptably met all of the criteria except the visual appeal and community aesthetics criteria. To
double check her opinion on these two criteria,Ms.D'Audney told Mr.Horton she was going to ask
for input from his neighbors.
On November 4, 1999,Ms.D'Audney sent a letter to ten of the Horton'neighbors. The letter asked
for a written reply about the attractiveness of the Horton' landscape,what modifications could be
done to make it acceptable and whether they could support the City granting the Hortons a variance
to the grass height ordinance. The letter also stated that their responses would be kept strictly
confidential. Confidentiality seemed appropriate in an effort to not disrupt the neighborhood
DATE: May 2, 2000 3 23
ITEM NUMBER:
dynamics. Ms.D'Audney's preliminary evaluation accompanied the letter,including the conditions
under which the variance would be given. Six of the neighbors responded with letters.
Denial of Application
In a letter dated December 9, 1999, Ms. D'Audney informed the Hortons that their requests for
xeriscape certification and the grass height variance had been denied. Although the Hortons'
landscape met the goal of water conservation,Ms. D'Audney believed that the community value of
aesthetics had not been satisfied. In response to the denial,the Hortons sent Ms. D'Audney a letter
dated December 20, 1999, informing her that they intended to appeal the denial. The Hortons also
requested copies of the letters received from the neighbors.
Letters Withheld
In a letter dated January 6, 2000 from Deputy City Attorney John Duval, the Hortons received a
summary of all the comments received from the neighbors without identifying their identities. To
further protect the identities of the letter writers, on or about January 18, 2000, Michael Smith,
General Manager of Utility Services,petitioned the Larimer County District Court,pursuant to the
Colorado Open Records Act,to permit the City to withhold disclosure of the identities of those that
wrote responses to Ms. D'Audney's November 4, 1999 letter. This lawsuit is currently pending.
Appeal
On January 9, 2000, Mr. Horton appealed the denial of the xeriscape certification and grass height
variance to Wendy Williams, Deputy General Manager of Utility Services. The City agreed to
reconsider Ms. D'Audney's denial of the Horton'application and on January 20, 2000, Mr. Smith
appointed Steven Klausing as the Water Utility's hearing officer. The City and the Hortons
exchanged information and submitted materials to Mr. Klausing,a private attorney who also serves
as the City's Administrative Hearing Officer under its Land Use Code. The City submitted to Mr.
Klausing all the letters and documentation to date (excluding the letters received from those
neighbors who still desired confidentiality),copies of relevant court cases and written reports from
two xeriscape experts. Mr. Klausing also visited the Hortons' property on February 28, 2000.
On March 15, 2000, Mr. Klausing rendered his decision(a copy of the record before the Hearing
Officer is attached). He held that the City does have the authority to regulate the weed height
ordinance and to regulate land use based on aesthetics. He also confirmed that the Horton'plantings
are xeric. As far as aesthetics,he felt that attractiveness per se was not the question,but that his task
was to determine whether the proposed xeriscape was aesthetically acceptable in the context of the
neighborhood. In conclusion,Mr.Klausing found that the proposed xeriscape is not consistent with
r the intent of the xeriscape program and does not aesthetically qualify for this location. Accordingly,
Mr. Klausing found that the Water Utility properly denied the Hortons' request for xeriscape
'* certification and a grass height variance.
Second Appeal
On March 24, 2000, the Hortons submitted an appeal of Mr. Klausing's denial to City Council
z!
pursuant to Sections 26-53 and 26-351 of the City Code. An amended notice of appeal to Council
was submitted to the City Clerk's office on April 10, 2000.
DATE: May 2, 2000 4 ITEM NUMBER: 23
Procedure at the Appeal
Section 26-53 of the Code states that any water user affected by any decision, action or
determination made by the City's Water Utility in interpreting or implementing any programs
developed under Article III of Chapter 26 of the Code may file an appeal in accordance with the
procedure set forth in Section 26-351. That section, in turn, calls first for reconsideration by the
General Manager of Utility Services as the Director of the Water Utility. (In this case,the Director
utilized the services of the Hearing Officer to undertake that reconsideration.) Section 26-351 then
provides that if the person requesting the reconsideration is not satisfied with the final decision of
the Director and wishes to appeal the decision,such person is to appeal the Director's final decision
to the City Council in accordance with the procedures contained in Division III of Article II of
Chapter 2 of the Code.
The Hortons' amended notice of appeal asserts the following grounds for appeal:
(1) failure to properly interpret and apply relevant laws and provisions of the Code and
Charter,
(2) failure to conduct a fair hearing in that:
(a) the Utility exceeded its authority or jurisdiction as contained in the Code or
Charter;
(b) the Utility substantially ignored its previously established rules of procedure;
(c) the Utility considered evidence relevant to its findings which was
substantially false or grossly misleading; and
(d) the Utility improperly failed to receive all relevant evidence offered by the
appellant.
Staff s response to the allegations contained in the amended notice of appeal is included in the
agenda materials.
At the conclusion of the appeal hearing,the Council is authorized to uphold,overturn or modify the
Hearing Officer's decision in this matter, or, in the alternative, to remand the matter for
reconsideration by the Director or the Hearing Officer.
City Clerk
g LN
City of Fort Collins
NOTICE
The City Council of the City of Fort Collins, Colorado, on Tuesday, May 2, 2000 at 6:00 p.m. or as
soon thereafter as the matter may come on for hearing in the Council Chambers in the City Hall at
300 LaPorte Avenue,will hold a public hearing on the attached appeal from the decision of Michael
B. Smith, in his capacity as General Manager of the Office of Utility Services of the City of Fort
Collins, made on March 22, 2000 regarding the denial of xeriscape certification for the property at
2750 Pleasant Valley Road, filed by Earle R. and Maxine R. Horton.
If you wish to comment on this matter, you are strongly urged to attend the hearing on this appeal.
If you have any questions or require further information please feel free to contact the City Clerk's
Office (221-6515) or the Utility Services Office (221-6700).
Section 2-56 of the Code of the City of Fort Collins provides that a member of City Council may
identify in writing any additional issues related to the appeal by April 25, 2000. Agenda materials
provided to the City Council, including City staff's response to the Notice of Appeal, and any
additional issues identified by City Councilmembers, will be available to the public on Thursday,
April 27, after 10:00 a.m. in the City Clerk's Office.
The City of Fort Collins will make reasonable accommodations for access to City services,
programs, and activities and will make special communication arrangements for persons with
disabilities. Please call the City Clerk's Office (221-6515) for assistance.
Wanda M. Krajicek V
City Clerk
Date Notice Mailed:
April 21, 2000
cc: City Attorney
Utilities Services
Appellant/Applicant
300 LaPorte Avenue • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970)221-6515 • FAX(970)221-6295
-R 1 0
CITY COUNCIL, CITY OF FORT COLLINS, STATE OF COLORADO L
CASE NUMBER CITY (U7K
AMENDED NOTICE OF APPEAL TO CITY COUNCIL
EARLE R. HORTON AND MAXINE R. HORTON
Appellants,
V.
MICHAEL B. SMITH, in his capacity as General Manager of the Office of Utility Services
of the City of Fort Collins,
Appellee.
The above named appellants, Earle R. Horton and Maxine R. Horton, pursuant to City
• Code Section 2-48 and Section 2-49, state to the City Council as follows:
1. Appellants maintain a residence on property they own at 2750 Pleasant Valley Road,
Fort Collins ("the Property"). This is how Appellants are parties-in-interest.
2. City Code Section 20-42(c) makes it unlawful to allow weeds and grasses to grow upon
any property to a height of more than six inches.
3. The Appellee, as General Manager of the Office of Utility Services ("the Utility"),
administers the Utility's Xeriscape Certification Program which is authorized in City
Code Section 20-41.
4. Under City Code Section 20-43(c) the Utility is empowered to grant a variance to the
grass height ordinance to a property which it certifies as a Xeriscape.
5. On September 29, 1999, Appellants applied to the Utility for a Xeriscape Certification
and grass height variance for certain native grasses which they had planted on the
Property. The plantings are designed to create the aesthetic effect of a prairie, the
natural state of the land on which the Property is located. Mowing, as required by City
Code, destroys this aesthetic effect.
6. Laurie D'Audney, Utility employee, handled Appellants' initial application.
ce: CA
7. In their application, Appellants invited Laurie D'Audney to visit the Property with them
so that they could show her in person what they had done with the Property. She failed
to do this and so improperly failed to receive all relevant evidence offered by the
appellant. This is a permissible ground for appeal.
S. In evaluating Appellants' application, Laurie D'Audney solicited written opinions from
ten of Appellants' neighbors ("the Neighbors") concerning the "visual appeal" and
"community aesthetics" of Appellants' plantings. In doing so, she informed the
Neighbors that all replies to her would be "strictly confidential."
9. Laurie D'Audney failed to properly interpret and apply relevant provisions of the Code
and Charter. This is a permissible ground for appeal. Article IV, Section 5 of the City
Charter states that:
All city records shall be available for public inspection, subject only to reasonable
restrictions. Upon payment of a reasonable fee, a copy or a certified copy of any city
record shall be furnished by the custodian thereof. A certified copy of any city record
shall be prima facie evidence of its contents.
9. Appellants requested copies of the letters from Laurie D'Audney on December 20,
1999. She refused to deliver copies of the letters to Appellants.
10. Instead, Appellee filed a civil suit, by and through his attorney John R. Duval, to block
disclosure of the letters, in Larimer County District Court, Case Number 2000-CV-38.
Grounds for the suit are that disclosure of the letters would now cause "substantial
injury to the public interest." Appellants believe that this suit was filed in bad faith, and
that Appellee has no evidence of fact nor argument based in taw to support this
preposterous claim.
11. City records in which they have a direct interest were not available to Appellants upon
demand. These records are still not available.
12. This is a violation of Article IV, Section 5 of the City Charter. City Charter Article IV,
Section 10 defines any violation of the Charter as a misdemeanor criminal offense, with
specific penalties defined. Even if Appellee's suit against Appellants is valid, which it
is not, the City Charter has still been violated because Appellants were denied
copies of these records.
13, Appellants reported this violation of the City Charter to Steve Roy, City Attorney, John
R. Duval, Deputy City Attorney, Wendy Williams, Utilities Deputy Manager, Laurie
D'Audney, Michael B. Smith, Utilities General Manager, and John Fischbach, City
Manager. To Appellants' knowledge, none of these persons has taken any action to
investigate this violation of the City Charter. Appellants therefore believe that these
persons failed to interpret and apply a relevant law, which is C. R. S. 18-8-115, "Duty to
report a crime." This is a permissible ground for appeal.
• 14. Appellants believe that John R. Duval and Michael B. Smith filed suit to block their
access to City records solely with the intent to cover up wrongdoing by Laurie
D'Audney. In doing so they failed to interpret and apply relevant laws: "Accessory to
crime" (C. R. S. 18-8-105), "Abuse of public records" (C. R. S. 18-8-114(1)(c)), and
"Conspiracy" (C. R. S. 18-2-201). This is a permissible ground for appeal.
15. Laurie D'Audney made her decision on Appellants' application on December 9, 1999.
In it she stated that although the plantings met many of the criteria for Xeriscape, the
application was denied because the Neighbors disapproved of it and the plantings were
not "compatible with the values of the community."
16. This is a contradiction of ideas expressed in City Land Use Code Section 3.4.1, that
the "values of the community" are to preserve, protect, and promote natural landscapes
and plant communities. The evidence provided in the Neighbors' letters is therefore
grossly misleading concerning the actual aesthetic values of the City. This is a
permissible ground for appeal.
17. This action is in excess of authority granted to the Utility as contained in the Code.
This is a permissible ground for appeal. According to City Code Section 20-41 , the
purpose of the Utility's Xeriscape program is "recognition of landscapes that implement
the principles of xeriscape." Since Appellants' plantings implement the principles of
Xeriscape, the Utility may not deny certification just because some of the Neighbors
don't like them.
18. City Code nowhere grants the Utility or any other agency police power over aesthetics
on private property. Since this power is a violation of several rights granted by the
Constitution of the State of Colorado, Appellants assume that such power is denied.
The Utility's exercise of police power over the aesthetics of Appellants' plantings is
therefore in excess of the Utility's authority as contained in the Code. This is a
permissible ground for appeal.
19. The Utility granted Appellants an appeal of this decision, to be handled by Steve
Klausing, land use hearing officer for the City ("the Hearing Officer").
20. In discussing conditions of the appeal, Appellee promised Appellants that none of the
letters written by the Neighbors would be submitted to the Hearing Officer"or used in
any way" in the appeal without first securing an agreement from the letter writer that the
letter could be treated as a public record. Three of the letter writers agreed to this
condition, and copies of these three letters were given to Appellants and to the Hearing
Officer.
21 . It was revealed to the Hearing Officer that the total number of letters was six, and that
all six letters were "unanimous" in disapproving of Appellants' plantings. The effect of
this action was as damaging as submitting all six letters. The Utility thereby
substantially ignored its previously established rules of procedure. and committed a
further violation of Article IV, Section 5 of the City Charter. All six letters are now
records of the appeal to the Hearing Officer, as well as records of the original decision.
This is a permissible ground for appeal.
22. Appellee submitted unsubstantiated evidence to the Hearing Officer in the form of
Laurie D'Audney's letter of December 9, 1999, which contains the statement alleging
that all six letters were unanimous. Appellants believe that this letter is likely to be
grossly misleading unless it is accompanied by all six letters from the Neighbors. This is
a permissible ground for appeal.
23. Appellee somehow obtained an additional letter from two of Appellants' Neighbors to
use in the appeal. This letter was written by Scott and Kristen Beasley. (Kristen
Beasley had written one of the original letters.) The tone of the second Beasley letter
was much more unfavorable than the first one. In fact, Appellants believe the second
letter to be downright malicious. Appellants suspect that Appellee may have exercised
improper persuasion on the Beasleys and thereby failed to interpret and apply C. R. S.
18-8-707, "Tampering with a witness or victim." This is a permissible ground for appeal.
24. Based on the events described in the preceding paragraph, Appellants believe that
Appellee notified the six Neighbors who had previously written unfavorable replies of
the appeal, but failed to notify all ten Neighbors of it. In addition to being grossly unfair,
Appellee ignored previously established rules of procedure. This is a permissible
ground for appeal.
25. Appellee secured opinions from two qualified experts on Xeriscape to submit to the
Hearing Officer. Appellants fail to understand why Appellee persisted in submitting
illegally obtained and suspect lay evidence along with qualified professional opinions.
26. In materials submitted to the hearing officer, Appellants informed the Hearing Officer
that the Utility's regulations for the Xeriscape Program were, in Appellants' opinion, in
excess of the authority granted to the Utility as contained in the Code, and a violation of
several of Appellants' civil rights.
27. Like Laurie D'Audney, the Hearing Officer failed to meet with Appellants for a site visit.
This is a permissible ground for appeal for the same reason as is Laurie D'Audney's
failure to do so.
28. Appellee submitted five court opinions to the Hearing Officer, purporting to show that
municipal corporations like the City have the power and authority to enforce aesthetic
standards on private property. These opinions are moot because the City does not
claim this authority anywhere in the Code or Charter. The opinions are grossly
misleading because they involve matters that bear little or no similarity to Appellants'
variance application. This is a permissible ground for appeal.
• 29. The Hearing Officer's decision was made on March 15, 2000 according to the date on
his decision letter. This is the specific date of the action that is being appealed.
30. The Hearing Officer found that Appellants' plantings definitely qualified as Xeriscape.
but that he did not have jurisdiction to rule on the question of whether the Utility was
acting in excess of its authority, or that the Utility was acting in violation of Appellants'
civil rights. The appeal was therefore denied. This is the specific action that is being
appealed.
31. Appellants believe that Appellee intentionally provided them with a useless appeal
process in order intentionally to exhaust their resources, and to buy time for himself in
which to make illegally obtained evidence appear to be legitimate. Appellants believe
that this second goal was conceived with the express purpose of trying to cover up
wrongdoing by Laurie D'Audney. Appellants believe that Appellee thereby
compounded his previous errors in failing to report a violation of the City Charter to law
enforcement. This is a permissible ground for appeal.
32. Appellants believe that Utility agents have conceived a desire to benefit certain of
Appellants' Neighbors and at the same time maliciously to cause harm to Appellants,
because of a distaste for Appellants' way of life as evidenced in their landscaping.
Appellants believe that Appellee did not properly interpret and apply "First degree
. official misconduct" (C. R. S. 18-8-404). This is a permissible ground for appeal.
WHEREFORE, Appellants request the City Council to consider an appeal of their
Xeriscape Certification application because the Utility, in considering the application,
committed all of the errors described in City Code Section 2-48 as grounds for appeal:
(1) Failure to properly interpret and apply relevant laws and provisions of the Code and
Charter.
(2) Failure to conduct a fair hearing in that:
a. The Utility exceeded its authority or jurisdiction as contained in the Code or Charter;
b. The Utility substantially ignored its previously established rules of procedure;
c. The Utility considered evidence relevant to its findings which was substantially false or
grossly misleading; and
d. The Utility improperly failed to receive all relevant evidence offered by the appellant.
FURTHERMORE, Appellants respectively suggest that the Xeriscape Program as it is
written and applied is a strong disincentive to the practice of Natural Gardening in the City.
Appellants request the City Council to consider in its place a modification to the City grass
height ordinance, which would make the six inch height limitation only apply to species of
grass which are not native to Larimer County, Colorado
FURTHERMORE, Appellants respectively request that the City Council reverse the
decision denying them a Xeriscape Certification and grass height variance for the
Property.
FURTHERMORE, Appellants respectively request that the City Council remove the
Xeriscape Program from the jurisdiction of the Water Utility, and give it instead to an
agency that has demonstrated more respect for private property rights and more
competence in handling evidence. Appellants respectively suggest that the Natural
Resources department or the City Forester might be a better fit for this type of program.
FURTHERMORE, Appellants respectively request that the City Council direct the City
Manager to investigate the truth of the numerous allegations of criminal misconduct
contained in this notice of appeal, to prosecute if sufficient evidence is found, and to
dismiss any parties convicted of such offenses from City employment. According to City
Charter Article IV, Section 10, the term of such dismissal is required to be not less than
two years for each violation of the City Charter.
SUPPORTING DOCUMENTS
1. An annotated list of materials submitted to the Hearing Officer is attached hereto and
incorporated as "Exhibit A." Appellants object to use of several of the items in the
appeal to the City Council, and these are so noted in Exhibit "A."
2. A copy of the Fort Collins City Charter, Article IV, Sections 5 and 10, is attached hereto
and incorporated as "Exhibit B."
3. A copy of Colorado Revised Statutes Section 18-2-201 - "Conspiracy" is attached
hereto and incorporated as "Exhibit C."
4. A copy of Colorado Revised Statutes Section 18-8-105 - "Accessory to crime" is
attached hereto and incorporated as "Exhibit D."
5. A copy of Colorado Revised Statutes Section 18-8-40 - "First degree official
misconduct' and applicable definitions is attached hereto and incorporated as "Exhibit
E."
6. A copy of Colorado Revised Statutes Section 18-8-114 - "Abuse of public records" and
18-8-115 - "Duty to report a crime" is attached hereto and incorporated as "Exhibit F."
7. A copy of Colorado Revised Statutes Section 18-8-707 -"Tampering with a witness or
victim" attached hereto and incorporated as "Exhibit G."
DATED this 3 day of ,-�� 2000.
By: -ai U;
Earle R. Horton, contact person
2750 Pleasant Valley Road
Fort Collins, Colorado 80521
(970) 416 - 1023
DATED this 1001 day of — , 2000.
Maxine R. Horton
2750 Pleasant Valley Road
Fort Collins, Colorado 80521
(970) 416 - 1023
Exhibit A
Materials Presented to the Hearing Officer
1. "Letter from Earle and Maxine Horton dated February 22, 2000."
2. "Letter dated November 4, 1999 from Laurie D'Audney to Earle and Maxine
Horton."
3. "Law Review article from the John Marshall Law Review, Volume 26, Summer
1993, Number 4."
4. "Article III, Chapter 20 the Code of the City of Fort Collins."
5. "City of Fort Collins Xeriscape Certification Program dated September 7, 1994."
6. "City of Fort Collins Xeriscape Certification Program Grass Height Variance
Criteria, revised September 7, 1994."
7. "Memorandum dated September 29, 1999 from Earle and Maxine Horton to
Laurie D'Audney with attached Xeriscape Certification Application Form of Earle
and Maxine Horton."
8. "Letter dated December 9, 1999 from Laurie D'Audney to Earle and Maxine
Horton with attachments." Appellants object to this letter because it makes
unsupported allegations and because Appellee withheld evidence allegedly in
support of it from the Hearing Officer.
9. "Letter dated January 9, 2000 from Earle and Maxine Horton to Wendy Williams
with enclosed original photographs."
10. "Ten photographs showing the landscaping of 2750 Pleasant Valley Road."
Appellants object to this item because the photographs were taken without their
knowledge and consent and because Utility agents refused to perform a site
visit with Appellants present.
11."Letter dated February 2, 2000 to Laurie D'Audney from Herbert R. Schaal."
12."Letter dated February 2, 2000 to Laurie D'Audney from Grant Reid."
13."Letter (not dated)to Laurie D'Audney from Jason Brewington." Appellants
object to this letter because it bears neither date nor signature. nor does it
address concerns relevant to the questions asked in Laurie D'Audnev's
November 4 letter. Appellants also object to this letter because the Hearing
Officer questioned the legality of using it and because it was originally collected
in violation of the City Charter.
14."Letter dated November 16, 1999 to Laurie D'Audney from Calvin Bly."
• Appellants object to this letter because the Hearing Officer questioned the
legality of using it, and because it was originally collected in violation of the City
Charter.
15."Letter dated November 16, 1999 to Laurie D'Audney from Kristen Beasley."
Appellants object to this letter because the Hearing Officer questioned the
legality of using f. and because it was originally collected in violation of the City
Charter.
16."Letter dated February 16, 2000 to John Duval from Scott and Kristen Beasley."
Appellants object to this letter because the Hearing Officer questioned the
legality of using it
17."Copy of City of Leadville v. Rood, 600 P.2d 62 (Colo. 1979)." Appellants object
to this court opinion because it is moot and grossly misleading by virtue of being
irrelevant.
18."Copy of Veterans of Foreign Wars v. City of Steamboat Springs, 575 P.2d 835
(Colo. 1978)."Appellants object to this court opinion because it is moot and
grossly misleading by virtue of being irrelevant
19."Copy of Landmark Land Company, Inc. v. The City and County of Denver, 728
P.2d 1281 (Colo. 1986)."Appellants obiect to this court opinion because it is
. moot and grossly misleading by virtue of being irrelevant
20."Copy of US West Communications, Inc. v. City of Longmont, 948 P.2d 509
(Colo. 1997)."Appellants object to this court opinion because it is moot and
grossly misleading by virtue of being irrelevant
21."Copy of Berman v. Parker, 348 U. S. 26 (1954)."Appellants object to this court
opinion because it is moot and grossly misleading by virtue of being irrelevant
Exhibit B
Fort Collins City Charter, Article IV, Sections 5 and 10.
Article IV, Section 5. Records to be public.
All city records shall be available for public inspection, subject only to reasonable
restrictions. Upon payment of a reasonable fee, a copy or a certified copy of any
city record shall be furnished by the custodian thereof. A certified copy of any city
record shall be prima facie evidence of its contents.
Article IV, Section 10. Penalties for violation of Charter.
Any violation of a provision of this Charter shall be deemed a misdemeanor. Any
person convicted of such violation may be punished by a fine or imprisonment, or
by both such fine and imprisonment, the maximum amount and term of which shall
be no less than that established by ordinance for misdemeanor violations of the city
Code. Said maximum penalty shall be set by the Council by ordinance. Any officer
or employee of the city convicted of such a violation shall be deprived of his or her
office or employment and shall be ineligible to any city office or employment for two
(2) years thereafter.
Exhibit C
0 18-2-201 - conspiracy.
promote or facilitate its commission, he agrees with another person or
(1) A person commits conspiracy to commit a crime if, with the intent to
persons that they, or one or more of them, will engage in conduct which
constitutes a crime or an attempt to commit a crime, or he agrees to aid the
other person or persons in the planning or commission of a crime or of an
attempt to commit such crime.
(2) No person may be convicted of conspiracy to commit a crime, unless an
overt act in pursuance of that conspiracy is proved to have been done by him
or by a person with whom he conspired.
(3) If a person knows that one with whom he conspires to commit a crime
has conspired with another person or persons to commit the same crime, he is
guilty of conspiring to commit a crime with the other person or persons,
whether or not he knows their identity.
(4) if a person conspires to commit a number of crimes, he is guilty of
only one conspiracy so long as such multiple crimes are part of a single
criminal episode.
(4. 5) Conspiracy to commit any crime for which a court is required to
sentence a defendant for a crime of violence in accordance with section 16-
11-309, C.R.S. , is itself a crime of violence for the purposes of that
section.
(5) If a person conspires to commit a felony which is defined by any
statute other than one contained in this title and for which conspiracy no
penalty is specifically provided, he is guilty of a class 6 felony. If a
person conspires to commit a misdemeanor which is defined by any statute
other than one contained in this title and for which conspiracy no penalty is
specifically provided, he is guilty of a class 3 misdemeanor.
file://C:\WINDOWS\Profiles\earleh\My Documents\18-2-201.html 4/2/00
Exhibit D
0 18-8-105 — Accessory to crime. DI
(1) A person is an accessory to crime if, with intent to hinder, delay, or
prevent the discovery, detection, apprehension, prosecution, conviction, or
punishment of another for the commission of a crime, he renders assistance to
such person.
(2) "Render assistance" means to:
(a) Harbor or conceal the other; or
(a.5) Harbor or conceal the victim or a witness to the crime; or
(b) warn such person of impending discovery or apprehension; except that
this does not apply to a warning given in an effort to bring such person into
compliance with the law; or
(c) Provide such person with money, transportation, weapon, disguise, or
other thing to be used in avoiding discovery or apprehension; or
(d) By force, intimidation, or deception, obstruct anyone in the
performance of any act which might aid in the discovery, detection,
apprehension, prosecution, conviction, or punishment of such person; or
(e) conceal , destroy, or alter any physical or testimonial evidence that
might aid in the discovery, detection, apprehension, prosecution, conviction,
or punishment of such person.
(3) Being an accessory to crime is a class 4 felony if the offender knows
that the person being assisted has committed, or has been convicted of, or is
charged by pending information, indictment, or complaint with a crime, and if
that crime is designated by this code as a class 1 or class 2 felony.
(4) Being an accessory to crime is a class 5 felony if the offender knows
that the person being assisted is suspected of or wanted for a crime, and if
that crime is designated by this code as a class 1 or class 2 felony.
(5) Being an accessory to crime is a class 5 felony if the offender knows
that the person being assisted has committed, or has been convicted of, or is
charged by pending information, indictment, or complaint with a crime, or is
suspected of or wanted for a crime, and if that crime is designated by this
code as a felony other than a class 1 or class 2 felony; except that being an
accessory to a class 6 felony is a class 6 felony.
(6) Being an accessory to crime is a class 1 petty offense if the offender
knows that the person being assisted has committed, or has been convicted of,
or is charged by pending information, indictment, or complaint with a crime,
or is suspected of or wanted for a crime, and if that crime is designated by
this code as a misdemeanor of any class.
file://c:\wiNDows\Profiles\earleh\my Documents\18-8-105.html 4/2/00
Exhibit E
0 18-8-404 - First degree official misconduct. C
(1) A public servant commits first degree official misconduct if, with intent
to obtain a benefit for himself or maliciously to cause harm to another, he
knowingly:
(a) Commits an act relating to his office but constituting an unauthorized
exercise of his official function; or
(b) Refrains from performing a duty imposed upon him by law; or
(c) violates any statute or lawfully adopted rule or regulation relating
to his office.
(2) First degree official misconduct is a class 2 misdemeanor.
11 0 18-8-401 - Definitions . ,
x
The definitions contained in sections 18-8-101 and 18-8-301 are applicable to
this part 4, unless a different meaning is plainly required.
0 18-8-301 - Definitions .
i�
The definitions contained in section 18-8-101 are applicable to this part 3,
unless the context otherwise requires, and, in addition to those definitions:
(1) "Benefit" means any gain or advantage to the beneficiary, including
any gain or advantage to a third person pursuant to the desire or consent of
the beneficiary.
(2) "Party officer" means a person who holds any position or office in a
political party, whether by election, appointment, or otherwise.
(3) "Pecuniary benefit" is benefit in the form of money, property,
commercial interests, or anything else the primary significance of which is
economic gain.
(4) "Public servant", as used in sections 18-8-302 to 18-8-308, includes
persons who presently occupy the position of a public servant as defined in
section 18-8-101 (3) or have been elected, appointed, or designated to become
a public servant although not yet occupying that position.
file://C:\WINDOWS\Profiles\earleh\My Documents\18-8-404.html 4/2/00
Exhibit F
� 0 18-8-114 - Abuse of public records . �l
(1) A person commits a class 1 misdemeanor if:
(a) The person knowingly makes a false entry in or falsely alters any
public record; or
(b) Knowing the person lacks the authority to do so, the person knowingly
destroys, mutilates, conceals, removes, or impairs the availability of any
public record; or
(c) Knowing the person lacks the authority to retain the record, the
person refuses to deliver up a public record in the person' s possession upon
proper request of any person lawfully entitled to receive such record; or
(d) Knowing the person has not been authorized by the custodian of the
public record to do so, the person knowingly alters any public record.
(2) As used in this section, the term "public record" includes all
official books, papers, or records created, received, or used by or in any
governmental office or agency.
0; 18-8-115 - Duty to report a crime - liability for O'
I_, disclosure .
It is the duty of every corporation or person who has reasonable grounds to
believe that a crime has been committed to report promptly the suspected
crime to law enforcement authorities. Notwithstanding any other provision of
the law to the contrary, a corporation or person may disclose information
concerning a suspected crime to other persons or corporations for the purppose
uct
of giving notice of the possibility that other such criminal cond may be
attempted which may affect the persons or corporations notified. when acting
in good faith, such corporation or person shall be immune from any civil
liability for such reporting or disclosure. This duty shall exist
notwithstanding any other provision of the law to the contrary; except that
this section shall not require disclosure of any communication privileged by
law.
file://C:\WINDOWS\profiles\earleh\My Documents\18-8-114.html 4/2/00
Exhibit G
18-8-707 - Tampering with a witness or victim. U
(1) A person commits tampering with a witness or victim if he intentionally
attempts without bribery or threats to induce a witness or victim or a person
he believes is to be called to testify as a witness or victim in any official
proceeding or who may be called to testify as a witness to or victim of any
crime to:
(a) Testify falsely or unlawfully withhold any testimony; or
(b) Absent himself from any official proceeding to which he has been
legally summoned; or
(c) Avoid legal process summoning him to testify.
(2) Tampering with a witness or victim is a class 4 felony.
•
file://C:\WINDOWs\Profiles\earleh\Ny Documents\council\18-8-707.html 412100
Utility Services
Water & Wastewater
City of Fort Collins
MEMORANDUM
DATE: April 20, 2000
TO: Mayor and City Councilmembers
FROM: Laurie D'Audney, Water Conserva I in Specialist
John Duval, Deputy City Attomeyn
RE: City Staff Response To Amended Notice of Appeal to City Council Filed by Earle
R. Horton and Maxine R. Horton
This memo is filed in response to the allegations contained in the Amended Notice of Appeal to City
Council filed by Earle R. Horton and Maxine R. Horton (the "Hortons") with regard to the City's
denial of the Hortons' application for xeriscape certification and a grass height variance. That
application was initially denied by Laurie D'Audney, Water Conservation Specialist, who
• administers the Water Utility's xeriscape certification program. The Hortons' request for
reconsideration of Ms. D'Audney's denial was considered by Steven Klaussing (the "Hearing
Officer"), who was retained by the General Manager of Utility Services, in his capacity as the
Director of the Water Utility, to serve as a hearing officer in this matter. Background information
relating to the appeal is contained in the Agenda Item Summary. The following staff response is
directed towards the various allegations contained in the Amended Notice of Appeal. The
allegations are grouped together and appear in boldface type. The staff response to each allegation
follows.
I. FAILURE TO CONDUCT A FAIR HEARING.
A. The Appellant alleges that the Hearing Officer failed to conduct a fair hearing
by exceeding his authority or jurisdiction as contained in the Code or Charter because he
denied certification of the Appellants'xeriscape"just because some of the neighbors don't like
(the Appellants' plantings)(paragraph 17) and because he based his consideration upon the
aesthetics of Appellants' plantings (paragraph 18).
STAFF RESPONSE:
As to the first allegation, neighborhood input, while not conclusive, is certainly relevant to a
determination of whether the proposal meets the"visual appeal"criterion contained in paragraph 6
of the xeriscape program and the "community aesthetics"criterion contained in paragraph 2.A. of
• the grass height variance criteria. (Attached as Exhibit A). Such input is especially pertinent to the
P.O. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6681
Mayor and City Councilmembers
April 20, 2000
Page 2
following question contained in 2.A.3 of the criteria: "What percentage of the people who will be
seeing it(the proposed xeriscape)will consider it to be attractive or at least acceptable?" Thus, the
use of this neighborhood input by the Hearing Officer would have been permissible. However,there
is no indication in the record that the Hearing Officer's denial of the Hortons'application was,in fact,
based upon the input of the neighbors. Instead, the Hearing Officer based his determination upon
his own site visit and the photographs of the site that had been submitted to him. In fact, he
specifically declined to consider the neighborhood input, noting that, in his opinion, it "does not
provide a legally sound basis for denying the application..." (See page 4 of the Decision of the
Hearing Officer, attached as Exhibit B.) Therefore, the Appellants' allegation that the Hearing
Officer based his decision on neighborhood input is not supported by the record.
As to the Appellants' second allegation, the City's ability to consider aesthetics in making
determinations about the exercise of its police powers through regulations such as the xeriscape
certification has been clearly established by Colorado case law. (Seethe case summaries referenced
in John Duval's letter to the Appellants dated February 24, 2000, a copy of which is attached as
Exhibit C.) As stated by the Hearing Officer, "(t)his is a well settled point in Colorado and
recognized by the United States Supreme Court. Without reciting numerous cases it is settled law
that states(and cities through their home rule power)may regulate in the area of land use on the basis
of aesthetics." (See page 3 of the Decision of the Hearing Officer.)
B. The Appellants allege that the Utility substantially ignored its previously
established rules of procedure by revealing the substance of the neighborhood letters to the
Hearing Officer (paragraphs 19-21) and by notifying the six neighbors who had previously
written unfavorable replies of the Appellants' appeal of Laurie D'Audney's original decision
but failing to notify all ten neighbors of it (paragraph 24).
STAFF RESPONSE:
As to the first allegation,the six letters originally written to Laurie D'Audney are not,contrary to the
Appellants'representations in paragraph 21,part of the record of the appeal to the Hearing Officer.
The only letters presented to the Hearing Officer were those of the three neighbors who agreed that
their letters could be disclosed to the Appellants. After these letters were disclosed to the
Appellants, they were presented to the Hearing Officer and they became part of the record.
Admittedly, a reference to all six letters was contained in Laurie D'Audney's letter of December 9,
1999, which she mailed to the Hortons (attached as Exhibit D); however, the inclusion of Ms.
D'Audney's letter in the materials submitted to the Hearing Officer did not violate the agreement
between the City and the Appellants, nor did it violate any other previously established rules of
procedure of the City. Ms. D'Audney's letter was submitted to the Hearing Officer because it
represented the Water Utility's written decision initially denying the Appellant's xeriscape
certification application. It is this written decision that the Hearing Officer was reconsidering.
Mayor and City Councilmembers
April 20, 2000
Page 3
Therefore, the letter itself did not represent evidence, but only a record of the initial decision made.
Further, when Ms. D'Audney's letter was submitted to the Hearing Officer, the Hortons did not
object,-on the grounds asserted in this appeal, to the submittal of the letter to the Hearing Officer.
In fact, in their letter to the Hearing Officer dated February 22, 2000, (attached as Exhibit E) the
Hortons directly addressed the contents of Ms. D'Audney's letter, rather than objecting to the
submission of the letter to the Hearing Officer on the grounds asserted in this appeal. Therefore,the
Appellants waived their objection in this appeal to the submission of Ms. D'Audney's letter to the
Hearing Officer.
As noted above, the Appellants also allege that the Utility substantially ignored its previously
established rules of procedure by failing to notify all ten persons who had originally written letters
that Laurie D'Audney's decision was being reconsidered on appeal. On the contrary, there was no
agreement or previously established rule of procedure which would have required the Utility to
notify all ten neighbors who had originally been contacted by Laurie D'Audney.
C. The Appellants' next allege that the Utility considered evidence relevant to its
findings which was substantially false or grossly misleading. According to the Appellants,this
allegedly false and misleading evidence consisted of:(1) Laurie D'Audney's conclusion,which
was submitted to the Hearing Officer,that the Appellants'plantings were not compatible with
the values of the community(paragraphs 15 and 16);(2)the fact that Laurie D'Audney's letter
of December 9, 1999, contains a statement alleging that all six letters were unanimous
(paragraph 22); and (3) the fact that Deputy City Attorney John Duval submitted to the
Hearing Offrcer five court opinions which the Appellants believe involve matters that "bear
little or no similarity to Appellants' variance application" (paragraph 28).
STAFF RESPONSE:
As to the first allegation,Laurie D'Audney's opinion that the plantings were not compatible with the
values of the community is not grossly false or substantially misleading. Section 3.4.1 of the Land
Use Code,which is cited by the Appellants in support of this allegation, applies to development sites
within 500 feet of an area or feature identified as a natural habitat or feature on the City's Natural
Habitats and Features Inventory Map, or to development sites that possess certain characteristics
such as wetlands or riparian areas or foothills forest. This Land Use Code section has no application
to a xeriscape proposal situated in the midst of an established subdivision such as the one in
question, and it does not establish a"community value"that is applicable to individual xeriscapes.
As to the Appellants' second allegation, there is no evidence in the record to suggest that Laurie
D'Audney's statement in her December 9, 1999, to the effect that all six letters were unanimous in
their disapproval of the Appellants'application was substantially false or grossly misleading. At the
Mayor and City Councilmembers
April 20, 2000
Page 4
hearing on this appeal,the Appellants'will be entitled to introduce any evidence to that effect which
they believe may exist.
As to the Appellants' third allegation, the case law submitted by Deputy City Attorney Duval is
accurate and on point, as recognized by the Hearing Officer; it is not substantially false or grossly
misleading.
D. The Appellants allege that the Utility improperly failed to receive all relevant
evidence offered by the Appellants in that both Laurie D'Audney and the Hearing Officer
failed to meet with the Appellants at the site of the proposed xeriscape(paragraphs 7 and 27).
STAFF RESPONSE:
First, any failure of Laurie D'Audney to consider evidence is not the proper subject of this appeal,
since it is the decision of the Hearing Officer that is the subject of the appeal. (See paragraphs 29
and 30 of the Amended Notice of Appeal.) As to the Hearing Officer, he did view the site in
question. The fact that he did not do so in the presence of the Appellants does not mean that the
Hearing Officer failed to receive all relevant evidence offered by the Appellants. He viewed the site,
and the Appellants had ample opportunity to supplement his observations of the site with any
information they wished to submit to the Hearing Officer.
Il. FAILURE TO PROPERLY INTERPRETAND APPLY RELEVANT LAWS AND PROVISIONS OFTHE
CODE OR CHARTER.
A. In several places,the Appellants contend that the City employees named in their
Amended Notice of Appeal have failed to properly interpret and apply certain provisions of
the state criminal statutes, including those pertaining to accessory to crime, abuse of public
records,and conspiracy(paragraph 14),duty to report a crime(paragraph 13)and tampering
with a witness (paragraph 23).
STAFF RESPONSE:
Neither City employees nor the City Council have the authority to interpret and apply the provisions
of the state criminal statutes. Sec.2-48(b)(1)of the City Code properly limits the grounds for appeal
to a determination of whether the decision maker failed to properly interpret and apply relevant
provisions of the City Code or City Charter. A determination of whether crimes have been
committed under state laws is beyond the jurisdiction of the City Council.
Mayor and City Councilmembers
April 20, 2000
Page 5
B. The Appellants further allege that the City employees named in the Amended
Notice of Appeal have violated Art. IV,Sec. 5 of the City Charter pertaining to City records.
(Paragraphs 8, 9, 9(sic), 10, 11, and 12).
STAFF RESPONSE:
First, the Appellants have not been prejudiced by any failure to disclose the contents of the letters
received from the six neighbors. A summary of the contents of those letters was provided to the
Appellants by John Duval as an attachment to his letter of January 6, 2000. Additionally, copies of
three of the letters written by the neighbors were ultimately provided to the Appellants. Therefore,
the Appellants' objection is limited to the fact that the identities of the writers of the three other
letters were not disclosed and that they were not provided with verbatim copies of the letters written
by such individuals.
Art. IV, Sec. 5 of the City Charter provides as follows:
Section 5. Records to be public.
• All city records shall be available for public inspection, subject only to reasonable
restrictions...
Staff contends that the restrictions imposed upon the release of the three letters in question were
reasonable under the circumstances. The letter writers had been promised confidentiality, and the
identity of the person writing the letters was withheld to honor this promise of confidentiality. It
would have been unreasonable to have disclosed the letters to the Appellants because of the City's
promise of confidentiality. Moreover, the letters withheld from the Hortons were not submitted to
the Hearing Officer or used by him in reaching his decision. And, to resolve the question of
releasing the three letters to the Hortons, staff properly availed itself of the opportunity under the
Colorado Open Records Act to request a court order protecting the confidentiality of the letters in
question on the ground that a release of the letters would result in substantial injury to the public
interest. A copy of the state statute authorizing such a procedure is attached as Exhibit F. If the
court orders the letters to be provided to the Appellants,staff will comply with that order. Thus,the
restrictions imposed upon the release of the letters written by the neighbors are, in staffs view,
reasonable restrictions within the meaning of Art. IV, Sec. 5 of the City Charter.
III. RELIEF REQUESTED.
At the conclusion of the Amended Notice of Appeal, the Appellants ask the Council to:
Mayor and City Councilmembers
April 20, 2000
Page 6
1. Consider replacing xeriscape program with a modification to the City grass
height ordinance which would make the six-inch height limitation applicable only to species
of grass which are not native to Larimer County, Colorado.
STAFF RESPONSE:
The relief requested here is beyond the authority granted to the Council in the context of an appeal.
See Sec.2-56(d)of the City Code,attached as Exhibit G. Under this section,Council's alternatives
are limited to upholding, overturning or modifying the decision or remanding the matter to the
decision maker.
2. The Appellants request that the Council reverse the decision of the Hearing
Officer denying them a xeriscape certification and grass height variance for the property.
STAFF RESPONSE:
Staff believes that the Hearing Officer properly interpreted and applied the eight criteria contained
in the xeriscape certification program, including Criterion 8 pertaining to visual appeal, and also
properly interpreted and applied the six grass height variance criteria, including Criterion 2
pertaining to community aesthetics. There is ample evidence in the record which supports the
Hearing Officer's determination, and the record is devoid of any evidence indicating that the
proposed xeriscape is visually appealing or compatible with adjacent and nearby landscapes within
the subdivision.
3. The Appellants request that the City Council remove the xeriscape program
from the jurisdiction of the Water Utility and give it instead to an agency that has
demonstrated more respect for private property rights and more competence in handling
evidence. The Appellants suggest the Natural Resources Department or the City Forrester.
STAFF RESPONSE:
Again,the requested relief is beyond the authority granted to the Council in the context of an appeal.
Code Sec. 20-41, in defining"xeriscape certification," assigns responsibility for administering the
xeriscape program to the Water Utility. So, unless the Council amends the Code in this regard,
responsibility for administering this program will remain with the Water Utility.
4. The Appellants further request that the City Council direct the City Manager
to investigate the truth of the Appellants' allegations of criminal misconduct and to prosecute
if sufficient evidence is found,and to dismiss any parties convicted of such offenses from City
employment.
Mayor and City Councilmembers
April 20, 2000
Page 7
STAFF RESPONSE:
Again,the requested relief is beyond the authority granted to the Council in the context of an appeal.
The Appellants'allegations ofcriminal misconduct are being separately investigated by special legal
counsel retained by the City Attorney,pursuant to the authority contained in Resolution No. 92-190,
a copy of which is attached as Exhibit H.
IV. SUMMARY.
Staff believes that the decision of the Hearing Officer with regard to the Appellants'application for
xeriscape certification is a reasonable decision based upon the evidence presented to the Hearing
Officer and should be upheld by the Council.
Staff has made extraordinary efforts to fairly and impartially determine the merits of the Appellants'
application and has even utilized the services of an independent hearing officer to reconsider the
City's initial denial of the application. In resisting the Appellants'request for inspection of the letters
which were provided in confidence to Laurie D'Audney, staff has attempted to balance the privacy
interests of the persons who provided the letters to the City with the Appellants' need to know the
information upon which the application decision was made. Toward that end,staff has provided the
Appellants with a summary of the contents of the letters in question, it has provided copies of the
letters written by all of the neighbors who have approved their release, and it has appropriately
utilized the procedures available under the Colorado Open Records Act to seek a protective order
permitting the City to withhold from inspection those letters written by persons who continue to
object to the release of their letters.
The Appellants contend that City staffs response to their application and request for inspection
constitutes criminal misconduct. On the contrary,staffbelieves that its response has been reasonable
and fair, has complied with all relevant laws, and has provided the Appellants with ample due
process.
SJR:med
Attachments
PC: John F. Fischbach, City Manager
Mike Smith, Utilities Director
Laurie D'Audney, Water Conservation Specialist
CITY OF FORT COLLINS
XERISCAPE
CERTIFICATION PROGRAM
GRASS HEIGHT VARIANCE CRITERIA
Rev. 9n194
1. Is the area water-conserving?
;rrummtun-and;a so utezequtremen •thb considEred:acea liiust b2 wa er-consery*+a
a. What are-the water requirements of the grasses and other plants?
rs'�an eline . gasses: ro 5osedfor Inc usion are"those U1at typlc
gro�ve`11 n n land ec°i�'lo ogrca zone w1 a tots annual water depth, inc%d1ng both
natura • rectpl" tatlonatlo0nchGrass' esthat w u�ld'lik ly q�aliy�'
wou d ce ut ounecessanly. liimte3'to uff ogle grwam'�a111t1M
�e
hlues em; 1 e-oats grams, anus. ea grasses.. Th1s would, exclude a cas
omeone annng,a vanance.. or a meadow;gar en ai rs co' 'mposed o rmf d ana Pali
grasses more.wa�ter�
b. Are water-efficient irrigation methods practiced?
Thts.wtll"conslst of an assessmentof.the:iiniforinity" of the'applicahon and_the depth'of
reN svnr rww ss:- -s sr4=x *ac�:�z:
irrigation applied relative to the.amount regunedl
2. The height of grasses is limited in the City Code out of concern for the five factors listed.
below. To what degrreee_will these elements be�justr,fled concernsfor the considered area?
Both_s1dis-mu`tie weighed, the.en fr`6' ental an8.economic benefit` o the community
n. r..red.Yoh`av:.r,••,i_--.�ar.`^..t.N{._�A"7i14 ...:r,+-�..e.•'..4^e.._......�-..__...�___
from the water.conservatront versus the possible;costsaisted;belovi;
a. community aesthetics
This,criteria carries twice the""weight";of the others" since it 1s'also p snort t due_to
bemg,part of.the defimtlon ofxensca
1. How com atible is the considered area with adjacent and nearby landscapes?
Fp" °'one extre ra ea c y n� a n hbborrdSM o ff y6y.refaier
cu andsca es the eme .the area could`�be.adiacent-to'one:o
2. How many people will potentially be seeing it, as a function of its specific
location and its size?
e e num o eo le"affec ed =the less:concem over->?rantlnit
3. What percentage of the people who will be seeing it will consider it to be
attractive or at least acceptable?
b. production of pollen as an allergen
EXHIBIT
I A
• RECONSIDERATION OF XERISCAPE CERTIFICATION AND GRASS HEIGHT
VARIANCE
IN THE MATTER OF THE APPLICATION OF EARLE AND MARINE HORTON
Decision of the Hearing Officer
Parties: b t r
City of Fort Collins; Water Utility Department
ED
Mr. Earle Horton andMs. Maxine Horton, Applicants MAR 212000
TV
'
Jurisdiction
This is a reconsideration of the Applicants' request for Xeriscape Certification and a grass height
variance. These administrative actions are commenced by filing an application with the City of
Fort Collins Water Utility which then determines if an applicant qualifies for the certification and
variance. The General Manager of this Department is Mr. Michael Smith. The General Manager
has the authority to reconsider administrative decisions rendered by the Department however, in
• this case has delegated this authority to an independent Hearing Officer. Delegation and
appointment was accomplished by letter dated January 20, 2000 from Mr. Smith to Steven
Klausing. Steven Klausing accepted appointment and contacted the parties to obtain mutual
consent to the appointment and agreement upon a procedure.
The parties agreed to submit written materials to the Hearing Officer and consented to
determination of the matter based upon the submitted materials, however, the Hearing Officer
retained the authority to hold a hearing if it was deemed necessary to render a fully informed
decision. Both parties submitted materials to each other and to the Hearing Officer and the
Hearing Officer has reviewed all the submitted materials. It is the Hearing Officer's opinion that
a hearing is not necessary to determine this matter.
Background
Earle and Maxine Horton reside at 2750 Pleasant Valley, Fort Collins Colorado. The Hearing
Officer assumes they own this property. This property is in a relatively new standard single family
subdivision of moderately priced homes on lots which appear to be 6,000 to 7,000 square feet.
Landscaping of this home and neighboring properties suggests that the homes were constructed
within the last 2 years. The Horton have not landscaped their property by using a predominance
of irrigated turf or plantings in readily identifiable groupings. Instead they have utilized a
predominance of native grasses and vegetation in a design that does not suggest identifiable
• groupings. Watering is only used to initiate growth, fertilizer is not used nor is the vegetation
EXHIBIT
B
• 11
mowed. The Horton have used a variety of vegetation some of which is native to the Colorado
prairie and some of which is similar to native materials but may not be indigenous to the area.
Sometime in the summer of 1999 the City of Fort Collins through its Health and Safety Officer
notified the Horton that their landscaping violated a city ordinance regarding grass height. The
Horton were informed of the existence of a Xeriscape Certification and grass height variance
which they could apply for and which might be applicable to their situation. The Hortons applied
for the Xeriscape Certification and grass height variance in September 1999. In a letter from
Laurie D'Audney, dated December 9, 1999 the Water Utility informed The Hortons of the Cities
decision to deny the Xeriscape Certification and grass height variance. This reconsideration
followed.
Findings of Fact and Decision
The Hearing Officer has received and reviewed the following materials submitted from the parties.
Letter from Earle and Maxine Horton dated February 22, 2000.
Letter dated November 4, 1999 from Laurie D'Audney to Earle and Maxine Horton.
Letter dated February 8, 2000 from Earle and Maxine Horton to Steven Klausing.
Law Review article from the John Marshall Law Review, Volume 26, Summer 1993,Number 4.
Article III, Chapter 20 the Code of the City of Fort Collins.
City of Fort Collins Xeriscape Certification Program dated September 7, 1994.
City of Fort Collin Xersicape Certification Program Grass Height Variance Criteria, revised
September 7, 1994.
:Memorandum dated September 29, 1999 from Earle and Maxine Horton to Laurie D'Audney
with attached Xersicape Certification Application Form of Earle and Maxine Horton.
Letter dated December 9, 1999 form Laurie D'Audne to Earle and Maxine Horton with
attachments.
Letter dated January 9, 2000 from Earle and Maxine Horton to Wendy Williams with enclosed
original photographs.
Ten photographs showing the landscaping of 2750 Pleasant Valley Road.
Letter dated February 2, 2000 to Laurie D'Audney from Herbert R. Schaal.
Letter dated February 2, 2000 to Laurie D'Audney from Grant Reid.
Letter(not dated)to Laurie D'Audney from Jason Brewington.
Letter dated November 16, 1999 to Laurie D'Audney from Calvin Bly.
Letter dated November 15, 1999 to Laurie D'Audney form Kristen Beasley
Letter dated February 16,2000 to John Duval form Scott and Kristen Beasley
Copy of City of Leadville v. Rood, 600 P.2d 62 (Colo. 1979).
Copy of Veterans of Foreign Wars v. City of Steamboat Springs, 575 P.2d 835 (Colo. 1978)
Copy of Landmark Land Company, Inc. v. The City and County of Denver, 728 P.2d 1291 (Colo.
1986).
Copy of US West Communications, Inc. v. City of Longmont, 948 P.2d 509 (Colo 1997).
Copy of Berman v. Parker, 348 U. S. 26 (1954).
All of these materials are submitted into the record and made a part hereof.
In addition the Hearing Officer reviewed portions of the subject property on February 28, 2000.
The Hearing Officer finds that the City has, through its home rule authority, the legal power to
regulate matters pertaining to public health and safety. This power to regulate includes the power
to pass ordinances and the City has chosen to regulate matters pertaining to weeds, the height of
grass and the accumulation of rubbish etc. in Article III section 20-41 , Fort Collins Code. This
Code Section defines the terms including weeds and refers to the Cities Xeriscape Certification
program. Also set forth in Section 20-43, Variances is a procedure for a landowner to obtain a
variance to exceed the grass height regulation. The conservation and regulation of the use of
water and natural resources is also within the authority of the City. The Hearing Officer finds that
the City has a regulatory scheme in place to regulate grass height and has established through the
Water Utility a Xeriscape Certification Program. These programs are intended to regulate, among
other matters, the use and conservation of water and natural resources. The Hearing Officer
finds these to be proper uses of the police power and proper subjects to regulate.
The Applicants have raised a number of arguments to support their choice of landscaping
materials and design. They admit that they do not practice xeriscape landscaping as promoted by
the City. They characterize their landscaping as"Deep Ecology"which they assert is a
landscaping style, a moral philosophy, and according to some a religion but in any case their
chosen way of life.
. The scope of this review is however, much more limited than the Applicants would have the
Hearing Officer consider and therefore, many of the Applicants arguments are not applicable to
the issue before the Hearing Officer. The Hearing Officer does not have the authority to find the
' ode Sections challenged by the Applicants to be illegal, nor may he find that the City does not
have the authority to regulate in this area, nor may he find that the Code Sections violate the
Applicants' civil rights. Jurisdictionally the Hearing Officer's authority is limited to finding that
there is a regulation, that the subject matter is one which falls within the regulation and that the
Hearing Officer has the authority to render a decision and then based upon the facts render a
decision. The Applicants are correct when they point out that the Water Utility is an
Administrative Department which has limited power to make law. However, unless specifically
deprived of the power to issue regulation it is well accepted that administrative agencies have
specific rule making authority. In this case the Xeriscape Certification Program is recognized in
the City Code. The Hearing Officer is without authority to declare the Code or the
implementation of that Code through Departmental Regulation illegal, only a court of competent
Jurisdiction has that authority. Based upon the foregoing the Hearing Officer must reject the
Applicant's arguments based upon illegal delegation, free speech, the exercise of religion and due
process as well as equal protection.
The Applicants have challenged the Cities regulation on the basis that the City lacks the authority
to regulate on the basis of aesthetics. This is a well settled point in Colorado and recognized by
the United States Supreme Court. Without reciting numerous cases it is settled law that States
(and cities through their home rule power)may regulate in the area of land use on the basis of
aesthetics. The connection between aesthetics and health, public safety and welfare as exercised
through the police power has been recognized in Colorado for many years. Obviously there must
be a connection between the goal to be achieved through the regulation and the regulatory scheme
and the goals must be an appropriate police power aim. The Applicants' challenges to this
however, are within the areas previously mentioned as outside the scope of this review.
The Applicants have challenged the sufficiency of the regulation on the basis of vagueness or
specificity. Arguable this is also a legal argument which may fall outside the realm of the Hearing
Officer however,if the regulation is so deficient as to make it impossible for the Hearing Officer
to make a decision than it would fall within the authority of the Hearing Officer to find for the
Applicant on the basis that there is no standard against which to make a decision. That is not the
case in this matter. The City has a grass height variance criteria that lists six factors which
although they may be somewhat subjective and difficult to utilize are not so deficient as to leave
the decision maker directionless. The City also has Criteria for the Xeriscape Certification
Program which includes eight criteria. The Hearing Officer fords that there are sufficient criteria
to make a decision.
The question for the Hearing Officer therefore is whether the Applicants' landscaping plan
qualifies under the Xeriscape Program, if it does then a grass height variance would be justified.
This question is one of fact and to a certain degree is subjective. The Applicants have utilized
certain plant materials that are found within xeriscaping, the plan is low water consumptive and is
consistent with the native materials found within the Rocky Mountain region. Maintenance and
water needs are very low and there is no evidence that the plan is not ecologically consistent with
a xeriscape landscape plan. Where reasonable minds may differ on the choice of plants or design
the law should accommodate such differences without criminalizing them or prohibiting them.
The professional opinions provided by the City are not unanimous in their opinion that this plan is
not a proper xeriscape and in fact some reluctance can be seen in the opinions to condemn this
plan. On the issue of whether this plan should qualify as a xeriscape plan it can not be said that it
fails. Therefore on the issue of whether the plantings are xeriscape the decision must be that they
are.
The inquiry does not end here however. The City Xeriscape Program is not simply an acceptance
of any xeriscape plan. In fact the Applicants recognize that the Cities and their definition of what
qualifies as xeriscape under the program differs. The City does not offer a carte blanc acceptance
of any xeriscape plan no matter how indigenous the plantings or low water or no maintenance
they may be. Tempered with the xeriscape nature of the landscaping plan must be an aesthetic
element. It is this element that the parties differ over. While the practice of soliciting
neighborhood input does not provide a legally sound basis.for denying the application in this
Hearing Officer's opinion, it does illustrate the import of aesthetics from the strong viewpoints
received. The legal linchpin of any aesthetic ordinance is the existence of observable and
definable standards against which a determination can be made.
In the determination of the appropriateness of a xeriscape plan several factors must be considered.
Without a doubt in the area of aesthetics the most important is the surrounding neighborhood.
In this case the neighborhood is a single family traditional suburban development with homes on
lots in the range of 6,000 square feet. Homes have consistent setbacks from the curb and side
J i
• setbacks. The sidewalk is separated by a street lawn. There is very limited opportunity to
transition from one home to the next and therefore the contrast between landscaping treatments is
accentuated. The subdivision is not rural in any sense such as the size of the lots, clustering of the
homes to preserve open space, proximity to open space, adjacency to open space or design
themes or architecture. The Applicants would suggest that their landscaping rights would extend
to the right to cover their entire property in wheat if they so choose. Certainly in a rural setting
this would be acceptable as would grazing animals. But the exercise of every civil right (and here I
am for arguments sake assuming that landscaping is an expression of a protected civil liberty) is
regulatable in time, place and manner. The right to shout fire in a crowded theater or for that
matter deliver a political speech at the same theater may be denied during the showing of the
latest theatrical release. These well established legal principles lead to the inevitable conclusion
that the Applicants do not have the unfettered right to landscape in any manner they wish. The
Cities Xeriscape Program is limited to the extent a certification is granted and the grounds upon
which a variance will be granted.
The Hearing Officer finds that the landscaping plan for which the Applicants request certification
does not qualify under the Cities Xeriscape Program. Several factors lead to this conclusion. The
area intended to be xeriscaped is the entire site not covered by drive surfaces or other
improvements. The area is not intended to be mowed or watered at all. Consequently tall grasses
and other vegetation will not be limited to any specific area and there will be an absence of the
appearance of any specific plantings area. While it is obvious that this is not what the Applicants
are attempting to achieve it is implicit within the Xeriscape Program if one carefully reads the
. guidelines. The previous example of planting wheat over the entire lot illustrates this point. This
problem is compounded by the fact that there is no transition to the neighbors property nor is
there any transition along the streetscape. It is well established that the City may require
landscaping of a very specific type from new home builders and in particular landscaping of what
is commonly called the tree lawn between the curb and sidewalk. This is intended to present a
finished streetscape scheme which the City is within its power to require not for the least of which
reasons is the preservation of property values. The Applicants' property does not present a
completed image along the street and in the Hearing Officer's opinion the City would be within its
rights to prescribe the type of landscaping within this area if it chose to.
Finally, the issue of aesthetics must be addressed. The question is not whether the Applicant's
landscaping is attractive. The Applicants believe it is and many others may share that opinion if
not in the current location perhaps in a rural location. The question is whether it is aesthetically
acceptable in the context in which it is presented. The answer is that the beauty of a wheat field
would be lost within the context of the modem subdivision and this landscaping plan goes too far
for the confines of this subdivision. There are certainly steps the Applicants can take to bring this
plan within the definition of the Xeriscape Program and still maintain much of the plan but the
Hearing Officer finds that as it is presented now it is not consistent with the intent of the Program
and does not aesthetically qualify for this location.
Conclusion
The Hearing Officer finds that the Applicant's request for Xeriscape Certification and a grass
height variance was properly denied by the City. The Hearing Officer finds that the landscaping
plan does not qualify for the certification nor the variance and the Hearing Officer denies the
application.
Entered this day of March, 2000.
Steven Klausing, Wat Utility Hearing Officer
City A, ,rney
City of Fort Collins
February 24,2000
Mr. and Mrs. Earle Horton
2750 Pleasant Valley Road
Fort Collins, CO 80521
Re: Reconsideration of Horton Application for Xeriscape Certification and Grass Height
Variance for 2750 Pleasant Valley Road
Dear Mr. and Mrs. Horton:
As you are aware, Steve Klausing, the hearing officer in the above referenced matter, instructed
us in his January 31, 2000, letter to provide each other by February 25, 2000, with a copy of any
additional written materials we plan to submit to the hearing officer in response to each other's
initial disclosure of materials. Therefore, the purpose of this letter is to submit to you copies of
these additional materials.
In your letter of February 8, 2000, you ask that the"visual appeal"criterion of the City's
Xeriscape Certification Program and the"community aesthetics"and "social factors" criteria of
the Program's Grass Height Variance Criteria not be considered by Mr. Klausing in his
reconsideration of your variance application. You state that these criteria are unconstitutional,
and in support of your position you cite an article from the John Marshall Law Review.
These criteria, although based on "aesthetic"considerations, are not unconstitutional and can
properly be used in evaluating your application for a Xeriscape Certification and Grass Height
Variance. Both the United States and Colorado Supreme Courts have long recognized the
constitutional validity of cities considering aesthetics as a factor in the exercise of their police
power. Therefore, copies of the following enclosed cases will be provided by the Water Utility
to Mr. Klausing in support of the constitutional validity of these criteria:
1. City ofLeadville v. Rood, 600 P.2d 62 (Colo. 1979). In this case, a municipal
ordinance establishing building set-back requirements is upheld against due
process and equal protection challenges for two reasons. First, a municipal
ordinance is presumed to be constitutional, and an ordinance is constitutional if
it is rationally related to a legitimate government goal. Second,the court states
that it is a proper exercise of a city's police power, and therefore a legitimate
government goal, to enact ordinances which promote the health, welfare, and
safety of the people, and valid exercises of this power include the enhancement of
the aesthetic value of the city. EXHIBIT
(I C
300 LaPorte Avenue • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970)221-6520 • FAX(970)221-6327
2. Veterans of Foreign Wars v. City of Steamboat Springs, 575 P.2d 835 (Colo.
1978). In this case, a municipal ordinance regulating signs was upheld against
several claims of unconstitutionality because the court held, in part, that aesthetic
considerations are a valid exercise of a city's police power.
3. Landmark Land Company, Inc. v. The City and County of Denver, 728 P.2d 1281
(Colo. 1986). This case upholds a municipal ordinance protecting mountain
views against several constitutional challenges partially on the basis that the
protection of aesthetics is a legitimate municipal function and goal, and that the
city can choose the method of implementation of that goal, so long as such
implementation is not arbitrary or capricious.
4. US West Communications, Inc. v. City of Longmont, 948 P.2d 509 (Colo. 1997).
In this case, a municipal ordinance requiring overhead electric and
communications facilities to be relocated underground was upheld. The court
stated that a city's aesthetic motivations clearly fit within a city's health, safety
and general welfare concerns and are thus within the scope of the city's police
powers.
5. Berman v. Parker, 348 U.S. 26 (1954). This is a widely followed United States
Supreme Court case which holds that the concept of public welfare, as it relates to
cities enacting legislation, is a broad and inclusive police power, and that
aesthetic considerations are well within the bounds of this power.
If you have any questions about this letter or the enclosed cases, please do not hesitate to contact
me.
Sincerely,
��l 4
Jo R. Duval
Deputy City Attorney
Enclosures
c.: Mike Smith,Utilities Director(w/o enclosures)
Wendy Williams,Utilities Deputy General Manager(w/o enclosures)
Laurie D'Audney,Utility Education Specialist(w/o enclosures)
Rick Zier,Esq. (w/enclosures)
I.ItilitiE-
light&power • stormwater • wastewater • water
City of Fort Collins
December 9, 1999
Earle &Maxine Horton
2750 Pleasant Valley Rd.
Fort Collins, CO 80521
Dear Earle and Maxine:
I apologize that my response to your September 29, 1999 application for a
Xeriscape certification and Grass Height variance has taken so long. It has been a
difficult decision.
My preliminary evaluation found your landscape to satisfy many of the criteria for
certification. Since by definition Xeriscape is not only water conserving, but also
attractive, I needed to consider its visual appeal. As you know, I solicited letters
from ten of your nearby neighbors to evaluate the neighborhood reaction and
attractiveness. The six responses that I received made it clear that your landscape
does not meet the "attractiveness" criteria. Therefore, your request for a Xeriscape
certification is hereby denied.
The unanimous opinion of the letters was that your landscaping is not attractive, it
looks uncared for and detracts from the beauty of the neighborhood. Leaving your
grasses unmowed is not acceptable to your neighbors as doing so creates the
impression of a yard full of weeds.
While the City encourages Xeriscape as a means of conserving water, it is equally
important that it's attractive and compatible with the values of the community. For
a landscape to be awarded a Xeriscape certification, it should have a well thought
out design and look maintained.
Denial of your request means you must comply with the City's grass height
ordinance. I'm enclosing my evaluation and an article that identifies some design
strategies that might be helpful should you wish to modify your landscape.
Sincerely,
(D;
Laurie D'Audney
Water Conservation Specialist
cc: Beth Sowder, Code Compliance Inspector EXHIBIT
• D
700 Wood St. • CO.Box 5S0 • Fort Collins,CO SO5212-0530 • (970)221-6700 • FAX 9;0 221-6619 • FAX 970
e-mail:utilities(i ci.fort-collins.co.us • %vtv%v.ci.fort-co lins.co.us/UTILITIES)��1-6593 • TDD(970)22-F-6(103
i
Earic R Horton
Maxine R. Horton
2750 Pleasant Valley Road
Fort Collins,CO 80521
February 22, 2000 970 416 1023
Steven E. Klausing, Attorney
6885 West 91". Court, #24304
Westminster, CO. 80020
Re: Reconsideration of Xeriscape Certification at 2750 Pleasant Valley, Administrative
Hearing, Response to City Water Utility's initial written materials.
Mr. Klausing:
This letter constitutes my reply to the City Water Utility's initial written materials submitted to
us by Mr. Duval on February 18, 2000. If you agree with the reasoning in this letter, it may
not be necessary for you to read the rest of the materials I have submitted. The complete list
of materials I am submitting to you contains:
I. Letter dated February 22, 2000 from Earle and Maxine Horton to Steven Klausing (this
letter).
2. Letter dated November 4, 1999 from Laurie D'Audney to Earle and Maxine Horton and
ten neighboring households.
3. Letter dated February 8, 2000 from Earle and Maxine Horton to Steven Klausing
(submitted February 8, 2000 to Fort Collins Water Utility via Mr. Duval).
4. Article on weed laws from John Marshall Law Review Volume 26, Summer 1993,
Number 4 (submitted February 8, 2000 to Fort Collins Water Utility via Mr. Duval).
Item 3 argues that the City lacks authority to regulate private property according to
aesthetics, and Item 4 provides supporting arguments. While I believe that the arguments in
these materials are valid, they are not necessary if you accept my argument below that the City
does not even claim that authority, and therefore cannot delegate it to the Water Utility.
The materials defining the City of Fort Collins Xeriscape Program and Grass Height Variance
Criteria are not accompanied by statements certifying that they are approved by the City
Council, nor are they authorized by any section of City Code. Xeriscape is not defined in City
Code, either explicitly or by reference. These documents are purely a product of the Water
Utility, a division of the Administrative Branch of Fort Collins City Government. The powers
and duties of the Administrative Branch are derived from those of the City Manager, defined
in the City Charter, Article III, Section 2, Paragraphs (f) and (g), and consist of(a) enforce
the City Code and Charter and (b) do the bidding of the City Council consistent with(a).
Criteria of the Xeriscape Program which can be derived from City Code are (a) water
conservation as a function of the City Water Utility, (b) concerns related to public health and
safety as described in Section 20-42(a) of City Code,and(c)preservation of native plant
Noun
EXHIBIT
E
communities mentioned in the definition of"weed" in Section 20-41 of City Code and in
Section 3-4-1 of City Land Use Code. Other criteria of the program such as"visual appeal'
and"community aesthetics" do not originate with City Code or the City Council.
Mr. Duval suggested to me that these criteria are a natural extension of"public health and
safety." I do not find this assertion credible in the absence of any declaration in City Code to
support it. I have carefully inspected all of the City nuisance code and I find no reference to
visual appearance of private property anywhere. Things that are declared to be "nuisances"
are identified using detailed descriptions of objective physical characteristics. An electronic
search of the rest of the code using several keywords reveals no apparent concern with the
visual appearance of landscaping on private property within the City. References to landscape
aesthetics in the Land Use Code refer to compatibility of development projects with the
aesthetics of natural areas, not the other way around.
Accordingly, inclusion of `bisual appeal" and "community aesthetics" in the Xeriscape
Certification Criteria and Grass Height Variance criteria is unauthorized and therefore illegal.
Further, by considering our neighbors' interests in this matter the Water Utility has improperly
placed private interests ahead of the City's declared interest in preserving native plant
communities and ahead of our interests as property owners.
I therefore ask that the materials supplied by the Water Utility only be considered as they
contain objective comments related to concerns authorized in City Code. The letters from
four of our neighbors, the two expert opinions, and portions of Ms. D'Audney's evaluation of
our application address the unauthorized criteria of"visual appeal" and "community
aesthetics" and should be ignored by the hearing officer. Nevertheless, I will respond to them.
Ms. D'Audney's letter of December 9, 1999 states that she solicited opinions from ten
households in our neighborhood. She also sent us a copy of this letter, so that makes eleven.
Surely, our own opinion counts in this survey. By the rules given in her November 4, 1999
letter, no reply signifies approval of our landscaping. Three households out of eleven have
chosen to provide public replies. By Ms. D'Audney's rules, I must assume that eight
households out of eleven approve of our landscaping.
The letter from Mr. Brewington does not contain his wife's name. I must assume that the
letter is from him alone, that Mr. Brewington disapproves of our landscaping, and that Mrs.
Brewington approves of it. This means that out of eleven households,two and one-half have
comments to make about our landscaping and eight and one-half approve of it. The hearing
officer may decide to overturn Ms. D'Audney's original decision on the basis that she did not
count the number of neighbors' replies accurately.
Mr. Brewington finds our landscape unattractive, and also mentions several objective
concerns which are denied in Ms. D'Audney's evaluation. Since he does not claim to be an
expert in these matters, his opinion must be overruled by Ms. D'Audney's. He mentions
erosion control, which he thinks is a problem because we have some areas of uncovered
ground. I have found by observing clear water runoff onto our sidewalk during heavy
thunderstorms that we have no actual erosion occurring. We would have had more ground
covered by vegetation now if the City hadn't made us mow our landscaping in the middle of
last year's growing season.
Mr. Bly finds our landscape unattractive. He addresses no objective concerns that originate in
City code.
The Beasleys find our landscape unattractive. As real estate agents they should know that
their claim of lowered market value is not enforceable under law and therefore groundless.
They address no objective concerns that originate in City code.
In addition to citing our neighbors' opinions, Ms. D'Audney's letter of December 9, 1999
criticizes our landscape because it does not meet the definition of Xeriscape, does not appear
to have a well thought out design, and does not look maintained. Our property is not a
"menace to public health and safety,"conserves water, and benefits native plant communities,
according to Ms. D'Audney's own admission. These three criteria are the only components of
the definition of Xeriscape subject to Ms. D'Audney's authority. Our landscape has a well
thought out design. It is meant to look like a prairie. Authentic prairies do not incorporate
shredded bark mulch or raised planting beds, nor do they group forms in a manner pleasing to
civilized humans. Our landscape is well maintained. We remove all noxious weeds and
control erosion as necessary.
Ms. D'Audney also accuses us of not conforming to the values of the community. According
to City Land Use Code, Section 3-4-1, the values of the City that apply to landscaping are to
• preserve the natural environment. It is Ms. D'Audney's duty to enforce City values, not
neighborhood values.
The Water Utility hired two outside experts to evaluate the "visual appeal" and "community
aesthetics" of our landscaping. Mr. Schaal criticizes our landscape for contrasting with the
surroundings, but also points out that we are permitted to make it contrast much more
without even being granted a variance. Contrast is a valid and respected artistic technique. I
assume that Mr. Schaal does not use it much in his work, because his clients desire
compatibility with their surroundings. We feel that our neighbors' landscapes, without
exception, are ecologically wrong and we do not desire to be compatible with them. We
enjoy the sense of contrast that our landscape provides to the neighborhood.
Mr. Reid rates our landscape's visual appeal as being slightly above average for our
neighborhood. Instead of rating our conformance to community aesthetics, he condemns the
Water Utility's use of this criterion as being counterproductive.
We may decide to incorporate different species of native grasses into our landscape in the
future. In order to save us the trouble of having to re-apply for a Xeriscape Certification and
Grass Height Variance at that time, we ask that the certification documents identify the
following species of grass:
a. Any species of grass native to Colorado
. b. Wheat(Triticum aestivum)
c. Ryegrass(Lolium temulentum)
d. Tall fescue(Festuca arundinacea)
e. Wild oat(Avena fatua)
Our reasoning for listing non-native species is given in our original application, dated
September 29, 1999.
Thank you.
Sincerely,
04
Earle R. Horton
n 1607 Public Records 24-72-204
s
(f) Any request of confidentiality made pursuant to this subsection (3.5) shall be kept
confidential and shall not be open to inspection as a public record unless a written release e
is executed by the person who made the request.
(g) Prior to the release of any information required to be kept confidential pursuant to I
this subsection (3.5), the custodian shall require the person requesting the information to
produce a valid Colorado driver's license or identification card and written authorization
from any entity authorized to receive information under this subsection (3.5).The custodi-
an shall keep a record of the requesting person's name,address,and date of birth and shall
make such information available to the individual requesting confidentiality under this sub-
section (3.5) or any person authorized by such individual.
(4) If the custodian denies access to any public record,the applicant may request a writ-
ten statement of the grounds for the denial,which statement shall cite the law or regulation
under which access is denied and shall be furnished forthwith to the applicant.
(5) Any person denied the right to inspect any record covered by this part 2 may apply
to the district court of the district wherein the record is found for an order directing the cus-
todian of such record to show cause why he should not permit the inspection of such record.
Hearing on such application shall be held at the earliest practical time. Unless the court
finds that the denial of the right of inspection was proper,it shall order the custodian to per-
mit such inspection and, upon a finding that the denial was arbitrary or capricious, it may
order the custodian personally to pay the applicant's court costs and attorney fees in an
amount to be determined by the court.
(6) (a) If,in the opinion of the official custodian of any pub is recor , isc osure o fie-"
contents of said record would do substantial injury to the public interest, notwithstanding
the fact that said record might otherwise be available to public inspection, the official cus-
todian may apply to the district court of the district in which such record is located for an
order permitting him or her to restrict such disclosure.Hearing on such application shall be
he at the earliest practical time.After hearing, the court may issue such an order upon a
finding that disclosure would cause substantial injury to the public interest. In such action
the burden of proof shall be upon the custodian.The person seeking permission to examine
the record shall have notice of said hearing served upon him or her in the manner provid-
ed for service of process by the Colorado rules of civil procedure and shall have the right to
a ear and be heard.
(b) In defense against an application for an order under subsection1191 o t is section,
the custodian may raise any issue that could have been raised by the custodian in an appli-
cation under paragraph (a) of this subsection (6).
(7) In addition to any other requirement or restriction,the department of revenue or a
designated agent of the department may allow inspection of information contained in a dri-
ver's license application under section 42-2-107, C.R.S., a driver's license renewal applica-
tion under section 42-2-118,C.R.S.,a duplicate driver's license application under section 42-
2-117, C R.S., a commercial driver's license application under section 42-2-404, C.R.S., an
identification card application under section 42-2-302, C.R.S.,a motor vehicle title applica-
tion under section 42-6-103, C.R.S., a motor vehicle registration application under section
42-3-112,C.R.S.,or other official record or document maintained by the department under
section 42-2-121,C.R.S.,to a requestor,other than a person in interest or a federal,state,or
local government agency carrying out its official functions,only upon obtaining a complet-
ed requestor release form under section 42-1-206 (1) (b), C.R.S. If the requestor release
form indicates that the requestor will use information contained in records,requested indi-
vidually, or in bulk, for any purpose other than a purpose authorized by law, including an
authorized use under the federal "Driver's Privacy Protection Act of 1994", 18 U.S.C. sec.
2721,et seq.,or the lawful use of the records by the press and news media in gathering news
information, the department or agent shall deny inspection of any motor vehicle or driver
record for which a confidentiality request form has been filed pursuant to section 42-2-121
(4),C.R.S.
Source: L. 68: p. 202, § 4. L. 69: pp. 925, 926, § § 1, 1. C.R.S. 1963: § 113-2-4. L. 77:
(2)(a)(I) repealed, p. 1250, § 4, effective December 31. L. 81: (3)(d) added, p. 1237, § 1,
effective May 18; (3)(a)(I) amended, p. 1236, § 1, effective May 26. L. 83: (3)(a)(V) an
(3)(a)(VI) amended and (3)(a)(VII) added, p. 1023, § 2, effective March 22. L. 85 EXHIBIT
(3)(a)(VI) and (3)(a)(VII) amended and (3)(a)(VIII) added, p. 933, § 3, effective July 1
L. 88: (2)(a)(I) R&RE, p. 979, § 1, effective April 20. L. 91: (3.5) added,p. 828, § 1, effec r
ADMINISTRATION §2-56
Sec. 2-54. Scheduling of the hearing. (6) Motion, discussion and vote by the City Coun.
(a) In the event of an appeal, the City Clerk shall cil.
schedule a date for hearing the appeal no less than (b) No person making a presentation to the City
thirty(30)nor more than sixty(60)calendar days after Council shall be subject to cross-examination except
the date of filing of the notice of appeal. Written no. that members of the City Council and the City Attor.
tice of the date, time and place of the hearing shall be ney may inquire of such person for the purpose of
mailed by the City Clerk to the appellant and all other eliciting information and for the purpose of clarifying
parties-in-interest no less than ten (10) calendar days information presented.
prior to the date of said hearing. Said notice shall also
include a copy of the notice of appeal or amended (c) In the event of multiple appeals involving the
notice of appeal, as applicable, and shall inform the same decision of a board, commission or other deci-
parties-in-interest of the period of time within which sion maker, the Mayor, in his or her discretion, may
additional issues may be identified under§2-56. modify the procedure contained in subparagraph (a)
above so as to expedite the hearing of such appeals.
(b) Any written materials that any party-in-interest (Code 1972, §3A-10; Ord. No. 124, 1987, § 2, 9-1-87;
may wish the City Council to consider in deciding the Ord. No. 174, 1988, §§ 2, 3, 12.20-88; Ord. No. 111,
appeal shall be submitted to the City Clerk no later 1989, § 4, 8-1-89; Ord. No. 23, 1990, § 7, 4.3-90; Ord.
than 12:00 p.m. on the Wednesday immediately pre- No. 139, 1990, 1-15-91; Ord. No. 59, 1994, § 4, 449-
ceding the date upon which the hearing on the appeal 94; Ord.No. 53, 1997, §2, 3-18-97)
is scheduled to be held. Such materials shall then be
included by the City Clerk in the agenda materials Sec.2-56. New evidence; scope of review; alter-
pertaining to the appeal, native actions available to the City
(Code 1972, § 3A-9; Ord. No. 88, 1995, § 4, 8-1-95; Council;date of final action.
• Ord. No. 151, 1996, 12-17-96; Ord. No. 234, 1998,
§4, 1-5-99) (a) The City Council shall consider an appeal based
upon the record on appeal, the relevant provisions of
Sec.2-55. Procedure at the hearing. the Code and Charter, the grounds for appeal cited in
the notice of appeal and any additional issues identi-
(a) At the hearing on the appeal by the City Coun- fied by a member of the City Council prior to the
cil, the presentation of argument on the merits of the hearing. Any such additional issues must be identified
appeal shall be made in the following order, subject to in writing and filed with the City Clerk no later than
such limitations in time and scope as may be imposed seven (7) calendar days prior to the date of the
at the discretion of the Mayor: hearing.
(1) Explanation of the nature of the appeal and (b) New evidence shall not be considered on appeal
presentation by city staff; except under the following circumstances:
(2) Presentation of argument by the appellant and (1) When offered in support of or in opposition to
any parry-in-interest in support of the appeal; an allegation under § 2.48(2)c that a board,
commission or other decision maker considered
(3) Presentation of argument by any party-in- evidence relevant to its findings which was sub-
interest who is an opponent of the appeal; stantiall false y or grossly misleading.
(4) Rebuttal presentation by the appellant and any (2) When offered by city staff or parties-in-interest
party-in-interest in support of the appeal; in response to questions presented by Council-
(5) Rebuttal presentation by any party-in-interest members under§2-55(b).
who is an opponent of the appeal; and
Supp.No.55 163 EXHIBIT
G
§2-56 FORT COLLINS CODE
(c) In considering an allegation that a board, com- ARTICLE M.BOARDS AND
mission or other decision maker failed to properly COMMISSIONS
interpret and apply the relevant provisions of the Code
or Charter asserted under § 248(1), the City Council DIVISION 1. GENERALLY
shall determine how such provisions should, in the
Council's judgment, be applied to the evidence con- Sec. Meetings defined, open meetings re-
tained in the record on appeal.
grrired; exceptions.
(d) At the conclusion of such hearing, the City
Council shall uphold, overturn or modify the decision (a) The following words, terms and phrases, when
used in this Division, shall have the meanings as-
of the board, commission or other decision maker; cribed to them in this Section:
provided, however,that:
(1) The City Council shall instead remand the mat- Meeting shall mean any gathering of a quorum or
ter for rehearing if it finds that the appellant was three(3)or more members,whichever is fewer, of any
denied a fair hearing before the board, commis- board or commission of the city, or any committee of
sion or other decision maker for any of the rea- such board or commission, at which any public busi-
sons stated in§248(2). ness is discussed or at which any formal action may be
taken, but shall not mean any chance meeting or so-
(2) The City Council may also remand the matter cial gathering at which the discussion of public busi-
for rehearing in order for the board, commission ness is not the central purpose.
or other decision maker to receive and consider
additional information with regard to any issue (b) All meetings of boards and commissions of the
raised on appeal. city, and all meetings of any committees of such
boards and commissions,shall be open to the public at
(e) No later than the date of its next regular meet- all times, except that any board or commission, upon
ing, the City Council shall adopt, by resolution, find- the affirmative vote of two-thuds e13) of the quorum
ings of fact in support of its decision. The date of pas- present, may go into executive session for the purpose
sage of such resolution shall be the date of final action of considering such matters as would be permissible
of the City Council for the purpose of any subsequent for consideration by the City Council in executive .
judicial review of the decision of the City Council. session, as enumerated in § 2-31(a) above, insofar as
(Code 1972, § 3A-11; Ord. No. 124, 1987, § 3, 9-1-87; such matters may be pertinent to the purposes for
Ord.No. 23, 1990, §8,4-3-90;Ord.No. 67, 1993, § 3, which.the board or commission has been established
7-20-93; Ord.No. 59, 1994, § 5,4-19-94; Ord. No. 88, by the City Council.
1995, § 5, 8-1-95; Ord. No. 53, 1997, § 2, 3-18-97;Ord.No.234, 1998,§5, 1-5-99) (c) No final policy decisions shall be made, nor
shall any resolution be passed or other formal action
Secs. 2-57-2-70. Reserved. taken by any board or commission in executive ses-
sion.
(d) The following shall be exempted from the provi-
sions of this Section:
•Charter nfewnces—Appointive boards, Art. IV, § 1; water
Board,Art.XII,§7.
Cross references—Open meetings, § 2-621 et seq.; Liquor
Licensing Authority established,§3-31;Board of Elections created,
§ 7-26; Massage Licensing Authority seated, § 16.16; Personnel
Board seated, § 21-26; Board of Trustees of the Firefighters'
Pension Plan seated,§2142;Retirement Committee seated,§2I-
86. J
Supp.No.55 164
• RESOLUTION 92190
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ESTABLISHING A PROCESS FOR THE SELECTION
OF SPECIAL LEGAL COUNSEL FOR THE CITY
IN CASES OF CONFLICT OF INTEREST
WHEREAS, the legal interests of the City are generally represented by the
City Attorney pursuant to the provisions of Article VI of the City Charter; and
WHEREAS, Section 3 of said Article VI authorizes the City Council , upon the
request of the City Attorney in special cases, to employ special counsel if
deemed necessary and advisable under the circumstances; and
WHEREAS, the City Council has previously adopted Resolution 89-183, which
authorizes the City Attorney to utilize the services of certain specified law
firms and, under extraordinary circumstances, to appoint other legal counsel as
special counsel to the City when necessary; and
WHEREAS, the Council believes that the process established by Resolution
89-183 does not adequately address situations in which the City Attorney may have
a conflict of interest which prevents him or her from representing the City in
particular situations and which calls for the appointment of special legal
counsel to temporarily replace rather than augment the services of the City
Attorney; and
WHEREAS, the Council is desirous of establishing a supplemental procedure
for the selection of special counsel in such conflict of interest situations.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS
as follows:
Section 1. That the following procedures shall be utilized to select and
appoint special legal counsel for the City in situations where the City Attorney
must withdraw from representation of the City because of a conflict of interest; .
a. First, the City Attorney shall consider utilizing the services of
another municipal attorney pursuant to the terms and conditions of
such intergovernmental agreements as may have been executed under
the authority granted in Section 2 below; and
b. If the City Attorney determines that the matter should not be
handled by another municipal attorney, then the selection of special
legal counsel shall be presented to the City Council at the next
regular Council meeting, in which event the City Attorney shall
provide the City Council with the names of no less than three (3)
qualified attorneys, together with any background information which
would assist the Council in making the selection.
Section 2. That. the Mayor be, and hereby is, authorized to execute an
intergovernmental agreement with such other Colorado municipalities as the Mayor
and the City Attorney may, in their discretion, determine to be appropriate,
EXHIBIT
H
whereby the City and the other contracting municipalities shall agree to exchange
the services of their respective municipal attorneys in cases of conflict of
interest; provided, however, that such agreements shall , without limitation,
include the following provisions:
a. that the City shall be reimbursed for all expenses incurred by the
City Attorney in temporarily representing the interests of other
municipalities, such as mileage, long distance telephone calls,
etc.;
b. that the City Attorney and the City shall be indemnified and held
harmless from any claim of liability resulting from legal services
rendered by the City Attorney on behalf of other municipalities; and-
C. that the City Attorney shall have the discretion to decline any
request for legal representation of another municipality if the
rendition of such services would interfere with the City Attorney's
ability to perform his or her normal duties on behalf of the City.
Passed and adopted at a regular meeting of the Council of the City of Fort
Collins held this 15th day of December, A.D.� 1992.
mayor
ATTEST:
City Clerk k.N —
•
RECORD BEFORE THE HEARING OFFICER
i
Earle R Horton
Maxine R. Horton
2750 Pleasant Valley Road
Fort Collins,CO 80521
February 22, 2000 970 416 1023
Steven E. Klausing, Attorney
6885 West W. Court, #24304
Westminster, CO. 80020
Re: Reconsideration of Xeriscape Certification at 2750 Pleasant Valley, Administrative
Hearing, Response to City Water Utility's initial written materials.
Mr. Klausing:
This letter constitutes my reply to the City Water Utility's initial written materials submitted to
us by Mr. Duval on February 18, 2000. If you agree with the reasoning in this letter, it may
not be necessary for you to read the rest of the materials I have submitted. The complete list
of materials I am submitting to you contains:
1. Letter dated February 22, 2000 from Earle and Maxine Horton to Steven Klausing (this
letter).
2. Letter dated November 4, 1999 from Laurie D'Audney to Earle and Maxine Horton and
ten neighboring households.
3. Letter dated February 8, 2000 from Earle and Maxine Horton to Steven Klausing
(submitted February 8, 2000 to Fort Collins Water Utility via Mr. Duval).
4. Article on weed laws from John Marshall Law Review Volume 26, Summer 1993,
Number 4 (submitted February 8, 2000 to Fort Collins Water Utility via Mr. Duval).
Item 3 argues that the City lacks authority to regulate private property according to
aesthetics, and Item 4 provides supporting arguments. While I believe that the arguments in
these materials are valid, they are not necessary if you accept my argument below that the City
does not even claim that authority, and therefore cannot delegate it to the Water Utility.
The materials defining the City of Fort Collins Xeriscape Program and Grass Height Variance
Criteria are not accompanied by statements certifying that they are approved by the City
Council, nor are they authorized by any section of City Code. Xeriscape is not defined in City
Code, either explicitly or by reference. These documents are purely a product of the Water
Utility, a division of the Administrative Branch of Fort Collins City Government. The powers
and duties of the Administrative Branch are derived from those of the City Manager, defined
in the City Charter, Article III, Section 2, Paragraphs(f) and(g), and consist of(a) enforce
the City Code and Charter and(b) do the bidding of the City Council consistent with(a).
Criteria of the Xeriscape Program which can be derived from City Code are (a) water
conservation as a function of the City Water Utility, (b) concerns related to public health and
safety as described in Section 20-42(a)of City Code,and(c) preservation of native plant
communities mentioned in the definition of"weed" in Section 20-41 of City Code and in
Section 3-4-1 of City Land Use Code. Other criteria of the program such as`visual appeal"
and"community aesthetics" do not originate with City Code or the City Council.
Mr. Duval suggested to me that these criteria are a natural extension of"public health and
safety." I do not find this assertion credible in the absence of any declaration in City Code to
support it. I have carefully inspected all of the City nuisance code and I find no reference to
visual appearance of private property anywhere. Things that are declared to be "nuisances"
are identified using detailed descriptions of objective physical characteristics. An electronic
search of the rest of the code using several keywords reveals no apparent concern with the
visual appearance of landscaping on private property within the City. References to landscape
aesthetics in the Land Use Code refer to compatibility of development projects with the
aesthetics of natural areas, not the other way around.
Accordingly, inclusion of `visual appeal" and"community aesthetics" in the Xeriscape
Certification Criteria and Grass Height Variance criteria is unauthorized and therefore illegal.
Further, by considering our neighbors' interests in this matter the Water Utility has improperly
placed private interests ahead of the City's declared interest in preserving native plant
communities and ahead of our interests as property owners.
I therefore ask that the materials supplied by the Water Utility only be considered as they
contain objective comments related to concerns authorized in City Code. The letters from
four of our neighbors,the two expert opinions, and portions of Ms. D'Audney's evaluation of
our application address the unauthorized criteria of"visual appeal" and"community
aesthetics" and should be ignored by the hearing officer. Nevertheless, I will respond to them.
Ms. D'Audney's letter of December 9, 1999 states that she solicited opinions from ten
households in our neighborhood. She also sent us a copy of this letter, so that makes eleven.
Surely, our own opinion counts in this survey. By the rules given in her November 4, 1999
letter, no reply signifies approval of our landscaping. Three households out of eleven have
chosen to provide public replies. By Ms. D'Audney's rules, I must assume that eight
households out of eleven approve of our landscaping.
The letter from Mr. Brewington does not contain his wife's name. I must assume that the
letter is from him alone, that Mr. Brewington disapproves of our landscaping, and that Mrs.
Brewington approves of it. This means that out of eleven households, two and one-half have
comments to make about our landscaping and eight and one-half approve of it. The hearing
officer may decide to overturn Ms. D'Audney's original decision on the basis that she did not
count the number of neighbors' replies accurately.
Mr. Brewington finds our landscape unattractive, and also mentions several objective
concerns which are denied in Ms. D'Audney's evaluation. Since he does not claim to be an
expert in these matters, his opinion must be overruled by Ms. D'Audney's. He mentions
erosion control, which he thinks is a problem because we have some areas of uncovered
ground. I have found by observing clear water runoff onto our sidewalk during heavy
thunderstorms that we have no actual erosion occurring. We would have had more ground
covered by vegetation now if the City hadn't made as mow our landscaping in the middle of
last year's growing season.
Mr. Bly finds our landscape unattractive. He addresses no objective concerns that originate in
City code.
The Beasleys find our landscape unattractive. As real estate agents they should know that
their claim of lowered market value is not enforceable under law and therefore groundless.
They address no objective concerns that originate in City code.
In addition to citing our neighbors' opinions, Ms. D'Audney's letter of December 9, 1999
criticizes our landscape because it does not meet the definition of Xeriscape, does not appear
to have a well thought out design, and does not look maintained. Our property is not a
"menace to public health and safety," conserves water, and benefits native plant communities,
according to Ms. D'Audney's own admission. These three criteria are the only components of
the definition of Xeriscape subject to Ms. D'Audney's authority. Our landscape has a well
thought out design. It is meant to look like a prairie. Authentic prairies do not incorporate
shredded bark mulch or raised planting beds, nor do they group forms in a manner pleasing to
civilized humans. Our landscape is well maintained. We remove all noxious weeds and
control erosion as necessary.
Ms. D'Audney also accuses us of not conforming to the values of the community. According
to City Land Use Code, Section 3-4-1, the values of the City that apply to landscaping are to
. preserve the natural environment. It is Ms. D'Audney's duty to enforce City values, not
neighborhood values.
The Water Utility hired two outside experts to evaluate the `visual appeal"and "community
aesthetics" of our landscaping. Mr. Schaal criticizes our landscape for contrasting with the
surroundings, but also points out that we are permitted to make it contrast much more
without even being granted a variance. Contrast is a valid and respected artistic technique. I
assume that Mr. Schaal does not use it much in his work, because his clients desire
compatibility with their surroundings. We feel that our neighbors' landscapes, without
exception, are ecologically wrong and we do not desire to be compatible with them We
enjoy the sense of contrast that our landscape provides to the neighborhood.
Mr. Reid rates our landscape's visual appeal as being slightly above average for our
neighborhood. Instead of rating our conformance to community aesthetics, he condemns the
Water Utility's use of this criterion as being counterproductive.
We may decide to incorporate different species of native grasses into our landscape in the
future. In order to save us the trouble of having to re-apply for a Xeriscape Certification and
Grass Height Variance at that time, we ask that the certification documents identify the
following species of grass:
a. Any species of grass native to Colorado
. b. Wheat(Triticum aestivum)
c. Ryegrass(Lolium temulentum)
d. Tall fescue(Festuca arundinacea)
e. Wild oat(Avena fatua)
Our reasoning for listing non-native species is given in our original application, dated
September 29, 1999.
Thank you.
Sincerely,
MV
Earle R. Horton
Utilities
light&power • stormwater • wastewater • water
it of Fort Collins
November 4, 1999
Dear Siena residents:
The City of Fort Collins has a Xeriscape Certification Program to recognize and
encourage water-conserving landscapes. As an additional benefit, a certified Xeriscape
may, upon meeting specific criteria, receive a conditional variance from the Municipal
Code that regulates the height of grasses.
Earle and Maxine Horton of-2750 Pleasant Valley Rd. have applied for a Xeriscape
certification and a grass height variance for their entire property. They are interested in
growing water-conserving grasses that will not be mowed. In fact, consistent mowing
would harm most of the grasses they have chosen.
I am in the process of making a determination of their request. I have enclosed my
preliminary evaluation of the landscape for both the Xeriscape certification and the Grass
Height variance. The landscape appears to meet all the criteria evaluated so far. The
remaining criteria deal with neighborhood reaction and the subjective element of
attractiveness. As a nearby neighbor, I am asking for your help in evaluating these
remaining criteria. Please send me a written letter answering the following questions:
• Do you find the landscaping attractive?
• If not, what do you find unattractive about it?
• What modifications could be done to the landscape for you to find it acceptable?
• Whether you found it attractive or not, would you be supportive of the City
granting a variance to allow the yard to remain unmowed?
• Do you have any other comments?
Although I must ask you to include your name, address and signature, your response will
be kept strictly confidential. Please send the letter to me by Wednesday, November 17,
1999. If I haven't heard from you by that time, I will assume that you find the landscape
acceptable. Send your letter to: Laurie D'Audney, City of Fort Collins Utilities, P.O. Box
580, Fort Collins, CO 80522.
Thank you for your assistance in this evaluation. If you have any questions, please call
me at 221-6877.
Sincerely,
Laurie D'Audney
Water Conservation Specialist
cc: Earle & Maxine Horton
700 Wood St. • CO.Box 580 • Fort Collins,CO 80522-0380 • (970)221.6700 • FAX(970)221-6619 • FAX(970)221-6593 • TDD(970)224-6003
e-mail: utilities(i ci.fort-collins.co.us • %,iviv.ci.fort-collins.co.us/UTILITIES
i
City of Fort Collins
Xeriscape Certification
Evaluation Sheet
Name of Applicant(s): Earle &Maxine Horton
Site Address: 2750 Pleasant Valley Rd.
Type of Property: Residential
Is the Site within the Fort Collins City Limits? Yes
Criteria
Soil Improvement:Applicant says that the soil was amended before planting was done.
Needs of Plants Matched to Microclimates: Grass and plants seem to be planted in
appropriate areas.
Reduced Turf Area: Much of the area is grass, but not mowed and maintained turf.
Use of Mulch in Planting Beds: Most of the shrubs and trees are not in formal planting
beds, but among the grasses.
Emphasis on Lower Water-Requiring Plants: The plants and grasses used at the
property are water-conserving species.
Good Maintenance: When the property was first viewed in Judy, there were quite a few
weeds in the yard. By September, the weeds had been removed. If granted a certification,
it would stipulate that weeds need to be attended to regularly.
Efficient Irrigation: The grasses are low water-using and the applicants state that no
irrigation will be done except for establishing new shrubs.
Attractiveness: This is being addressed by getting feedback from adjacent neighbors.
Conditions
If this property is granted certification, the following conditions will apply:
• Weeds must be attended to regularly, including the following non-native grasses:
Tall Fescue (Festuca arundinacea),Wild Oat (Avena fatua), Annual Ryegrass
(Lolium temulentum) and Wheat(Triticum aestivum).
• Grasses included in the variance include:
Blue grama(Bouteloua gracilis), Bottlebrush squirreltail (Sitanion hystrix),
Buffalograss (Buchloe dactyloides),Foxtail Barley (Hordeum jubatum),
Galleta(Hilaria jamesii), Indian ricegrass (Oryzopsis hymenoides), Little
Bluestein(Andropogon scoparius), Meadow Barley (Hordeum
brachyantherum), Purple Three-awn (Artistida purpurea), Sheep Fescue
(Festuca ovina), Sidecats Grama (Bouteloua curtipendula) and Western
Wheatgrass (Agropyron smithii).
J ,
A. Would mowing harm the particular grass species?
. Buffalograss would be improved by an occasional mowing, but mowing may harm
sideoats grama and little bluestem. I don't know specifically about all the other
species.
B. Would it be difficult to mow the grass without harming any other forbs
(wildflowers) or shrubs in the area?
The yard would be difficult to mow as there are shrubs and forbs interplanted
among the grasses.
C. Where does the considered area fall on the lawn vs. ornamental garden
continuum?
This landscape tends toward a lawn as opposed to an ornamental garden, but
could best be called a "prairie."It is almost exclusively water conserving grasses,
with a few shrubs.
D. How large is the considered area?
The entire front and back yards are planted with water conserving grasses and
are being considered for the variance. This large area means more impact from
granting a variance.
E. What are the social factors of this case? If there are disagreements, are there
possible compromises?
1. What are the landscape owner's objectives for the landscape?
The owner's goal is to have a natural landscape that is water conserving and
low maintenance.
2. If there are neighbors opposed to it, what are their reasons?
An anonymous caller complained to the City about the unmowed grass, but
their reasons are unknown. Feedback from other neighbors is being sought.
3. Can any of the five possible negative impacts be mitigated with a mutually
acceptable approach?
So far, negative impacts have not been identified.
Earle.c Horton
Maxine R Horton
2750 Pleasant Valley Road
Fort Collins,CO 80521
970 416 1023
February 8, 2000
Steven E. Klausing, Attorney
6885 West 91". Court, #24304
Wenstminster, CO. 80020
Re: Reconsideration of Xeriscape Certification at 2750 Pleasant Valley, Administrative
Hearing
Mr. Klausing:
This letter supplements our original application materials, which Mr. Duval should have
submitted to you.
We ask that the City refrain from submitting any materials or arguments that address the
"visual appeal"criterion of the City of Fort Collins Xeriscape Certification Program or the
"community aesthetics"and"social factors" criteria of that program's Grass Height Variance
Criteria. This request includes both materials that are favorable as well as those that are
unfavorable to our application. If the City obtains expert opinions that address these criteria,
we ask that these references be stricken or that the Hearing Officer be instructed to ignore
them
The reason for this request is that these criteria are illegal according to common law and
violate provisions of both the Colorado and United States constitutions. In support of this
claim we submit an article on weed laws from the John Marshall Law Review, Volume 26,
Summer 1993, N�mber 4. The portion ofthe article that speaks most directly to our claims is
Section V. "SOME VILLAGES DON'T GET IT..."beginning on page 10.
The Xeriscape Program has the status of law in the City of Fort Collins, because it is the only
adminstrative relipfMvided for the City's grass height ordinance, City Code Section 20-
421 1 Therefor , the criteria used in evaluating applications must meet the same standards as
those required for any City ordinance. The "visual appeal" criterion is vague, and therefore
void. The "community aesthetics" and"social factors" criteria use a subjective and relative
standard that violptes dueprecess. They-also attemptto impose majority values upon
individual property owners. We look upon our landscaping as art and therefore speech. It is
a violation of both the Colorado and United States consitutions to apply community standards
of aesthetics, if such even exist, to individual acts of self expression, taking place on private
property.
We would not object to our landscaping being judged on the other criteria, such as health and
safety issues, if all other landscapes in the City were subject to the same scrutiny. The City
employee who originally evaluated our application found our landscaping to be in
conformance with�ail-theserequireements. -fit-is unreasonable that a natural:yard like-ours could
0 be subject to more scrutiny than is given to "conventional" lawns, considering all the danger,
J
waste, and pollution that these lawns produce. In our opinion our willingness to use drought
tolerant species and-to-€aregeurigatiansk -be-reason-enough for-the-City to grant us-this
certification and variance.
We are seeking an`unconditional" variance, to include all varieties of grass except those listed
as"noxious"by county, state, or federal agencies or weed control districts. Since we have
stopped irrigating, only vegetation that is suited to this climate will thrive, whether it is a
native-grass speeiesor-tot.-fitaddkien oiative-grasses,-we-haveladsueeess growing-non-
natives such as naturalized wheat, a drought tolerant variety of tall fescue, and annual
ryegrass. These species have ornamental value and are useful in soil augmentation and
erosion control. They are well suited to this climate and we do not understand why they
would not be alloyed-in a Xeriseape program. -Since we have-metthe major criteria-of water
conservation and use of drought tolerant vegetation, we feel that a grass height variance
should be granted for any type of grass that we can persuade to grow here without irrigation.
Thank you.
Sincerely,
FxLkw
Earle R. Horton
Weed Laws Article on Landscaping (John Marshall Law Review) hmp://www.epa.gov/glapo/g=nacros/weedlaws/JMLR.htW
.=.EPA ��°�°°
The John Marshall Law Review
Volume 26, Summer 1993, Number 4
A thing is right when it tends to preserve the integrity,
stability,and beauty ojthe biotic community.
It is wrong when it tends otherwise.
—The Land EthicL
L INTRODUCTION
The natural landscaping"movement"i has taken root and its adherents are a varied lot Attend any one of the many
seminars held on natural landscaping,prairie restoration,xeriscaping,or wildflower propagation,and you will be
with suburban uppies,weekend ecologists,and seniors whose retrment hobby is gardening.At the seminars you
will also encounter hard-core professional scientists and botanists interested in preserving the gene pools of
endangered and threatened plant species and the restoration of ecosystems.There will be some natural landscapers
wearing tie-dyed tee-shirts who look as if they just left a Grateful Dead concerti
In the Northeast,these people are re-creating the dense layers of the native American deciduous forest;they replace
lawns with understory species like dogwood,wild azakas and native shrubs,fems and woodland wildflowers.
Midwesterners are re-creating tallgrass and shortgrass prairies.Arizonians are landscaping with Sonoran desert
native species like giant saguaro,multi-stemmed ocotilo,and prickly pear cactus.They all share a common goal—
to harmonize gardening and landscaping practices with Nature 4
Many natural landscapers,however,face municipal weed inspectors who challenge their right to"garden in
• Thoreau's Trnditiotf.1 These conflicts are the unfortunate result of the collision of opposing forces;those who
favor a return to a harmonic relationship with Nature against those who promote the myth of superabundance and
the belief that"progress"is the process by which the less ordered natural world is harnessed by people to create a
more ordered material environments.b This notion of progress based on domination of Nature has its foundation in
the"enlightened"thinkers such as John Locke who wrote"land that is left wholly to nature...is called,as indeed it
is,waste".!This article argues that this homocentric view of the world is ill-conceived and the use of weed laws to
prohibit natural landscapes is a manifestation of the fundamental misunderstanding of humankind's proper place
within Nature.
To understand this article,however,one must first understand the lexicon.Here are some important definitions:
A'm✓el Lan6aaperg_The practice of cultivating plants which are native to the tdoregion without resort to
artificial methods of planting and care such as chemical fertilizer,mowing,wafering
other than by through natural processes(rain),with the goal of harmonizing the
landscape with the larger biotic community and ecosystem of the Immediate and
sunounding bioregion.4
A.Wmf Gerdm-A smaller version of a natural landscape.In its most simple terns,it is a garden
planned and designed to work with,rather than against Nature"i
Eraar- A plant growing other than in its natural bioregionalien.lo
Wind- "A plant considered undesirable,unattractive or troublesome,especially one growing
where it is not wanted,as in a garden."1
WeeAdow-Any federal,state,county and local,slatute,regulation or ordinance which limits the
type or size of vegetation which grows or is whivafed on land within the
jurisdiction 12
The Land Ethic,espoused by Aldo Leopold,li is the central tenet that must be followed if humankind is to survive.
The analysis of weed laws within the wbric of the Land Ethic may initially seem to mix relatively minor legislative
enactments with a grand concept But the Land Ethic,as demonstrated below,operates on both grand and minute
levels.It succeeds only when all aspects of humankmds interaction with Nature,large and small,inculcate its
meaning.
. In this regard,the average individual,although concerned,is essentially helpless to remedy the plight of the
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Amazon,the destruction of the ozone liyer,oil spills off Alaska and Scotland or any of the hundreds of other
assaults currently being waged against the organism that is Earth-Gaie.H Landscaping and gardening represent,
for most people,their most direct interaction with Nature.This Article thus turns to the application of the central
ecological tenet,the Land Ethic,to local weed laws-not because such laws ate the most ecologically pernicious
laws,but rather because weed laws operate on the most basic level to affect the landowner who tries expressly or
otherwise to manifest the Land Ethic.
This Article seeks to advise and persuade more than the typical Law Review subscriber,lawyer,or judge.There is
little in the way of published material available to city legislators to assist them in evaluting the natural landscaping
movement and its effects and impact on their village.There are few published cases available to anomeys
representing citizens who engage in natural landscaping and are charged with violating a weed ordinance.This
Article attempts to fill this void This Article is primarily a clarion call to policy-makers to accept and embrace the
natural landscaping movement and begin to accept the Land Ethic.
II. THE LAND ETHIC
Aldo Leopold is a modem prophet,t5 the"spiritual father of conservation"L and an"authentic American Hero."t7
His classic work,The Sand County Almanac;>_rr in which he articulated the Land Ethic,is the Bible of the modem
environmental-conservation movements.L9 He was not the first to espouse the notion that humankind and Nature
are interconnected.Henry Thoreau2li and John Muir2J gave this notion a modem voice.Others have spoken.
Leopold,however,said it best He combined sound science,clear prose and cogent logic to articulate an objective
way of thinking about humans and their relationship with the natural world Where many scientists of his time saw
their work as distinct from economics,politics,religion and other disciplines,Leopold did not compartmentalize his
thinking or analysis.The Sand County Almanac is a collection of essays in which he attempted to"weld"the
concepts of ecology,esthetics,and ethics.An integrated understanding of these ideas was what Leopold termed the
Land Ethic.Zt
A. Ecology
Ecology is the scientific study of the relationships between the various components of the natural community.
Leopold considered ecology simply the nature of Nature and the proper human role within iL'=He wrote"ecology
teaches us that no animal-not even man-can be regarded as independent of his environment Plants,animals,men
and soil are a community of interdependent parts,an organism."21
Leopold entered the Forest Service in 1911.Stationed in the Carson National Forest in New Mexico,he became an
advocate of aggressive predator management In one of his oft-quoted passages,Leopold wrote what he had learned
one day after killing a wolf and the significant impact it had on his thinking:
We reached the old wolf in time to watch a fierce green fire dying in her eyes.I realized then,and have known
ever since,that there"a something new to me in those eyes-something known only to her and the mountain.
1 was young then,and full of trigger-itch;I thought that because there were fewer wolwa meant more deer,that
no wolves would mean a hunters'paradise.But after seeing the green fire die,I sensed that neither the wolf nor
the mountain agreed Win such a view.2"
He wrote about the consequences of a simple approach to game management,like predator control:
Since then,1 have lived to sae state after state erdripate its wolves.t have watched the face of many a newly
womess mountam,and seen the south-facing slopes wrinkle with a maze of new deer bails.I have seen every
echble bush and seedling browsed,first to anemic destitute,and ahert to dean.I have seen every echble tree
defoliated to she height of a saddlehom....In the end the starved bones of the hoped-for deer herd,dead of its
own too-much,are bleach with the bones of dead sap,a molder under the high-lined Junipers.?
Leopold's notions of ecology in general,and wildlife management and predator control in particular,although long
acknowledged in scientific circles,have now won popular favor.The Endangered Species Act21 and the Marine
Mammal Protection Aa22 are two legislative embodiments of the biocentric view that Nature's elements are
essential even though the economic benefits to humankind may be neither obvious nor dnec011
H Esthetics
The second element of Land Ethic is natural esthetics-an appreciation of Nature as beautiful for what it does rather
than how it looks.31 Traditionally,in most of Western thought,Nature was viewed in homocentric temms22 Leopold
challenged that perception and believed that rather than defining beauty m abstract temporal human tents,form
followed function and that beauty was more.cerebral than Perceptual experience.;;In the Sand County Almanac,
Leopold described the wonders of Nature without resort to words hike"glorious,""beautiful,"or"subfnne."�4
Before Leopold,the preservation of natural areas was consistent with a homocentric philosophy and almost
exclusively a function of the area's visual impact National Parks were carved out,areas that demonstrated a
"take-Your-breathaway"quality.12 Consistent with the policy of protecting only the visually beautiful,the National
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Park Service engaged in facade management by eradicating predator species that prayed on popular animals,
sprayir,pesticides,preventing natural foes and introducing aestheticall pleasing exotic plant species.M This view is
changing.Visual beauty is no longer accepted as an appropriate basis for preserving natural areas.Leopold's natural
esthetic is now officially recognized.i
. C. Environmental Ethics
Aldo Leopold's third governing concept of the Land Ethic is environmental ethics.Leopold considered ecology a
moral mandate since the efforts of science"could only carry us so far."H"All science can do,"he wrote,"is to
safeguard the environment in which ethical mutations might take place."3-9 The ethical obligation that the members
of a natural system have is to"preserve the health of the system by encouraging the greatest possible diversity and
structural complexity and minimizing the violence of man-made changes."°0 Environmental Ethics is akin to
religion.41 Justice William 0.Douglas in his book,A Wilderness Bill of Rights,touched the same cord4-2 as did
Laurence Tribe in his classic critique of the homocentric basis for environmental laws,Ways Not To ThinkAboul
Plastic Trees.443
D. Aldo Leopold:A Pioneer Natural Landscaper
Natural landscaping is the manifestation of the Land Ethic.The Land Ethic is summarized in Sand County
Almanac:
All ethics so far evolved rest upon a single premise:that the individual is a member of a community or
interdependent parts.His instincts prompt him to compete for his place in that community,but his ethics
pranpt him also to cooperate(perhaps in order that there may be a place In compete for).
The land ethic simply enlarges the boundaries of the community to include adds,waters,pants,and animals.
or oo leclhely,the land.
In short,a land ethic changes the role of Hare sapiens from conqueror of the land-community to plain member
and citizen of it it implies respect for his fellow-members,and also respect for the community as such::u
Aldo Leopold began practicing his Land Ethic through natural landscaping in the late 1930s.In central Wisconsin,
he"sought to take a tract of womout land and bring it back to its original state.i4'On the"Sand Farm,"as it was
known,Leopold was inspired to compose the Sand County Almanac.
In addition to practicing rural natural landscaping at his Sand Farm,Leopold was responsible for the first urban
American natural landscape.40 In 1932,Leopold oversaw the restoration of two square miles of derelict farmland to
its natural state at the University of Wisconsin aboretum 4?The Land Ethic he espoused and the practice of
ecological restoration he began in Madison and on his fans are the foundational precursors of the modem natural
landscape movement This movement,however,must overcome regressive weed laws and uniformed public
officials who reject the Land Ethic.
E The Judicial Acceptance of the Land Ethic
The biocentric Land Ethic,the welding of ecology,esthetics,and ethics to recognize humankind's inter-dependence
with Nature,is part of the common law.In Southern Illinois,for example,the Cache River Natural area once
considered a swamp whose raison d'etre was to be drained by farmers,is now a National Natural Heritage
Landmark,the preservation of which an appellate court held takes precedence over the desires of farmer0l In
Minnesota,Leopold's Land Ethic was expressly adopted by the state's supreme court as the guiding principle for
construction of state envimmmental law.49 Justice Douglas relied on Leopold to support his argument for a broad
definition of standing in environmental cases.N
The Land Ethic,unfortunately,has not penetrated the minds or affected policy decisions of some city legislators and
officials who cling to archaic and environmentally hostile weed laws and prosecute natural landscapers.Such
actions corthadicL humankinds true relationship with Nature.The history of local weed laws explains their
intransigence.Slowly,through the efforts of various citizens and groups,the ignorance and history that girds these
laws,is being wittled away.This article now turns to that history.
IIL A HISTORY OF WEED LAWS AND THE BATTLES OVER THEM
A. Why We Have Weed Laws
Before humans became"civilized"there were no weed laws because in Nature there are no weeds.Weeds are a
product of civilization and cultivatan.51 As agrarian society developed weeds became the bane of farmers because
these exotic plants crowded out cmps.L2 In the United States,even before World War 1,states regulated certain
plants perceived harmful to agriculture.The prohibited plants were placed on noxious weed fists usually developed
by the state's department of agricuhure.11 However,agrarian weed control laws,necessary to protect crops,do not
pose problems for natural landscapers.Rather,natural landscapers are confronted with the local weed laws—a recent
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phenomemon that is unrelated to protecting crops or livestock from exotic plant species.M-
Local weed laws exist in the cities and the suburban lands of shopping malls and tract housing.Communities
enacted weed laws aiming to protect the public from neglectful landowners whose littered yards could attract rats,
mosquitoes or present a fare hazard.As a result of the misunderstanding of some charged with enforcing weed laws
and poor draftsmanship,these laws are often wrongfully enforced against natural landscapes.Natural landscapes
are not a threat to safety or public health.22 More distressing,enforcement of local weed laws fosters an unnatural
aesthetic conformity,by promoting and protecting monoculture laws,that furthers the malignant notion that
humankind and Nature are independent
Historically,the"virtues"of such artificial landscape were noted by Frank J.Scott,one of America's first landscape
architects,in The Arl of Beautifying Suburban Home Grounds.Scott wrote"[a]smooth closely shaven surface of
grass is by far the most essential element of beauty on the grounds of a suburban house."li
Lawns exist today for several reasons.First,lawns serve as a physical and psychological"moat"between the
homeowner and the outside world.Second,it is theorized that humans are genetically predisposed to favor open
grass-type landscapes as an artifact of our species'development on the savannas and grasslands of East Af icaV
Third,to many sprawling green shaved lawns are a status symbol delineating suburban homeowners from their city
brethren who generally have neither the land nor resources to make such a public statement of wealth.Finally,in
the land of cookie-cutter tract housing a premium is placed on neatness and conformity both of which are promoted
by mono-turf yards.Manicured lawns are,unfortunately,the collective face of modem suburbia
B. What Is Wrong With the Green Lawn and Weed Laws:And Those Who Proved It.
The proliferation of the suburban mono-turf lawns,so lauded by Scott,now covers 30 million acres,an area the size
of Virginia,requiring billions of dollars in equipment,chemicals,and upkeepA In addition to the cost and direct
harm to the environment,-9 the proliferation of the suburban mono-turf yard hastens the process of plant extinction
by reducing the available habitat for native plants,a global threat0 Exotic plants tend to out-compete native species
because the exotics'predators,animals and diseases often do not exist in the foreign land.
Local weed laws,which continue to protect and proliferate exotic mono-turf,are a constant reflection of the
detachment of modem society from Nature.Early local weed laws were enacted in the 1940s outlawing"weeds"
usually above some arbitrary height These for laws are typified by the Chicago weed law which flatly outlaws"any
weeds in excess of an average height of 10 inches."L
Perpetually green lawns,like plastic trees,implicitly reduce the entities they portray to terms of serviceability,utility,
and adornment.And such caricatures in turn reinforce the belief that the depicted objects exist not for themselves
but to service superior needs.62 As such,mono-turf yards are the most obvious example of humankind's disregard
for Nature and its failure to recognize and practice the Land Ethic.Lawns are imposed on the landscape without
regard for local geography,climate,or history.03 True gardening,by contrast,is the natural give and take between
the gardener and a piece of land-the essence of the Land Ethic.Putting in an exotic lawn"represents instead a
process of conquest and obliteration,an imposition...of an alien idea and even a set of alien species(for the grasses
in our lawns are all imported)."�4 The lesson of the Land Ethic is that"humans must change their role from
conquerer of the land to member and citizen."65
With the publication of Silent Springer and the attendant growth of environmental awareness in the 1960s,
homeowners began to cultivate natural landscapes.These practices collided directly with the estabUshmenfs
wooden view of what was proper groundcover for a house and the weed laws used to keep it that way.The history
of suburban natural landscaping and its conflict with local weed laws is a story about people and organizations.
Leopold firmly believed that if the Land Ethic was to ever succeed it must be practiced by private citizens,not just
govemmentli-7 The natural landscape movement is the story of how the efforts of a dedicated few can convince the
many of what is good and right It is a tribute to the power of people to change society's attitudes,and in tun its
laws,for the better.
1. Lorde Otto-The Hlrh Priestess ofNafaral Landscaminr Movement
The modem suburban natural landscape movemenfs roots are traced to the efforts of one woman,naturalist-teacher
Lorrie Otto.When the Ottos moved to their suburban Milwaukee home in the 1950s,the front yard was an acre
and a half of lawn with a bed of tulips and 64 spruce bees.It looked lice a swiss chalet surrounded by Christmas
trees.Mrs.Otto wanted her children to learn fist hand about the wonders of Nature so she planted some blue and
white aster(Aster azureus),yellow goldenrod(Solidago canadenis),fragrant bergamot(Monarda fistulosa),and
some fems.0
In the early 1960s,Bayside,Wisconsin,officials viewed her wild fern garden as"weeds"and cut it down.An
enraged Lorrie Otto took up the fight and convinced village officials that a natural landscape was a public good and
not a health hand.She went on to become the director of the"Wild Ones-Natural Landscapers,Ltd,"a
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non-profit organization whose mission is to educate and share information with members and the community at the
"plantslevel"and to promote bio-diversity and enviromentally sound practices.69 By 1992,the Will Ones boasted
five chapters in Illinois and Wisconsin and more than 1200members.
• Mrs.Otto,now in her seventies,has received national awards for her environmental efforts.Her naturally
landscaped yard is considered one of the best gardens in America It contains 80 wildflower and grass species
reflecting the diversity of a native Wisconsin prairie.
In a poetic turn of fortune,in the village that once sent a mower to Level Mrs.Otto's wildflowers,there are now
sold-out bus tours of a dozen naturally landscaped homes including her now famous yard
2. The Nadonal WBdfife Federation
The National Wildlife Federation(NWf%formed in 1936 by conservationists concerned with the loss of fishing
and game,7o is the United States'largest not-for-profn conservation education organization with 5.4 million
members.In 1973,in connection with its efforts to teach and promote the notion of shared stewardship
responsbility towards water,soil,air,plants,and wildlife,the NWF developed and promoted its Backyard Wildlife
Habitat Program.The program educates its members,supporters and the public about how to provide the basic
habitat requirements of wildlife—food,water,cover,and a place to rear young—as they plan and plant the
landscapes around their homes,schools,and places of work.1
Since the program's inception,the NWF has sought to explain that a great variety of plants,not just the limited
selection of trees,shrubs,flowers and turf grasses traditionally used in planting yards,provide superior habitat for
wildlife.The NWF enthusiastically promotes alternatives to the turf grasses.Those alternatives include small
woodlots and wetlands as well as meadows and prairies and other traditional alternatives such as vegetable gardens,
shrub masses and tower beds.
The NWF has joined the natural landscape movement by encouraging cities to change their weed laws and by
joining in litigation with both legal and technical support More recently,the NWF brought the message to schools
teaching students the Land Ethic by creating natural habitats on school property.72.
3. City of New Berfin v.Haear7l
The Hagar decision marks a significant watershed in the natural landscaping movement It is the first,and best,
• judicial recognition of the practice and the irrational assumptions that underly the use of weed laws to prosecute
natural landscapers.The City of New Berlin,Wisconsin elected not to appeal Judge Gmmling's decision and,as a
result,the opinion is unpublished Because this opinion is so significant it appears in its entirety in Am)cn&x D.
In April 1976,New Berlin sued Donald Hagar for violating its weed law by practicing natural landscaping and
cultivating a several-acre meadow.14 Hager,a wildlife biologist,fought back.He brought in experts to refute the
ciity's claims that his landscape was a health hazard.15 The testimony was convincing.Forest Steams of the
University of Wisconsin,demonstrated that the Norway nat does not inhabit or find food in a natural landscape.
United States Forest Service fire expert,David Seaberg,testified that Dr.Hagar's prairie did not create a fire hazard.
Professor Philip Whitford,a botanist from the University of Wisconsin,testified that a prairie fire,unlike a forest
fire,does not create large and persistent embers that can be carried by the wind David Kopitzke,a Milwaukee
County Public Museum botanist,established that wildflowers and natural landscapes do not create a pollen
problem.Exotic plants,like Kentucky Bluegrass,and trees,hike oaks,create more allergenic pollen than a native
prairie.
After three months of deliberation,on April 21,1976,Judge William Gramling issued his decision.76 The Court
found nothing in the testimony to justify the fire and pollen hazard claims that the city cited to support the weed
ordinance.He found that natural landscaping did not negatively affect neighbor property values.The court stuck
down the ordinance as violative of the Equal Protection Clause because the factual underpinning for the law was
too thin to be rational.n
Following his victory,Mr.Hagar continued his natural landscaping and New Berlin has not bothered any natural
landscapers si nce.11
4. Monizoinvv County.Maryland v.Suwart�
Walter Stewart,a scientist,and his wife,Nancy Stewart,a Justice Department attorney,borrowed a page from Mr.
Haga's playbook and successfully repelled efforts by neighbors and Montgomery County,Maryland officials to
enforce a weed law against their manual landscape.The Stewarts allowed a six-acre natural landscape to grow
around their suburban home.
• In 1987,the Stewats received a citation for violating the local weed ordinance.In response,they compiled a
detailed scientific and legal case ongoing that their natural landscape did not pose a danger to the safety or health of
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the Montgomery County residents.The county argued than overgrown yards harbored rats and snakes and were
harmful to people with rest hwfy problems.Faced with the Stewarts'evidence,however,the county elected to drop
the charges.ro
Because of the Stewart's efforts,Montgomery County changed its weed law to allow meadows as long as there is a
15-foot buffer maintained at 12 inches or Less,and species on a noxious weed list,such as poison ivy,are
controlledH
S Li de Rock.Arkansas v.ARisanl
in the South,Lyndae Allison maintains a natural landscape that the Arkansas Game and Fish Commission considers
a natural wildlife area Her half acre yard is mostly hardwood forest,with trumpet vines and mulberry trees.The
City of Little Rock had a different view.Little Rock cited her for violating Article 20-2 of the municipal code which
forbids"grass,weeds,or any other plant that is not cultivated"to grow higher than 10 inches or"in rank profussion
on the premises."O
The case went to trial in 1988.The city weed inspector testified that Allison's yard was filled with ivy and
honeysuckle,but he found no garbage or timer.A state urban wildlife biologist,Karen Yaich,testified that natural
landscapes,hie Allison's,do not attract rats or pest snakes.Ms.Allison testified that she cultivated a natural
landscape in order to provide nesting sites for native wildlife and because she preferred the natural appearance.
Little Rock Municipal Judge Marion Humphries dismissed the citation.The Court held:
a appears that what IAh.Allison]was wifivating was the land of vegetation that would not attract snakes or rats
as suggested by her neighbors,that it would sib songbirds.For that reason,her promisee would meet the
standards of the Game and Fish Commission of having a cerfified backyard wildlife area.L"
Without interference,Ms.Allison currently continues her natural landscaping efforts.
6. Ladybird Jabnson and Ike Nedonat WUddowtr Research Center
Ladybird Johnson led the effort to beautify the National Highway System and was instrumental in the passage of
the statute implementing her efforts."In 1982,as a spinoff of her highway beautification efforts,Ladybird
Johnson and the late Helen Hayes founded the National Wildflower Research Center,a non-profit environmental
organization dedicated to the preservation and reestablishment of native wildflowers,grasses,shrubs,and trees.The
Wildflower Center,with 18,000 members,provides information on recommended native plant species and seed and
plant sources for each state,plus tips on planting and maintaining native plants through its Information
Clearinghouse.L6 The center is an important institutional base for the natural landscaping movement
7. The Canadian Cases
Across the border,the same battle is being waged between the natural landscapers and some of thew neighbors and
village officials.Lary Lamb,a university ecologist,has fought neighbors in his Toronto suburb for years to maintain
his native North American prairie in his yard37
One thousand miles to the east,Cathy Smallwood grows a native woodland in the Newfoundland capita],St
John's.Lt In September 1992,the city served her with a citation for violating the law that required yards to be"kept
clean and free from growth of weeds and grass that are detrimental to health or public safety...or by reason of not
being cut regularly are excessive when compared with neighboring properties."12 The matter came before the
planning commission and Mrs.Smallwood convinced the commission,54,to allow her to keep her natural
landscape.Thanks to her efforts,St John's is now considering re-writing its weed ordinance to expressly allow
natural landscaping.
8. The"Cbkaeo S"
In America's heartland the battle is being waged to convince the nation's thud largest city to permit residents to
naturally landscape22-something the State of Illinois,Cook County,the Park District and the city itself all actively
practice on public lands.9'
The Chicago 5 are a varied lot Jack Schmidling grows a natural landscape consisting of a 110 varieties of Illinois
prairie,woodland and wetland plants and wiidflowers.22 His yard attracts 64 species of birds.Mike Regenfuss
cultivates a natural landscape as an important part of the North Branch Prairie Restoration Project,a joint project of
the Cook County Forest Preserve District and The Nature Conservancy,a national conservation organization.2
Since 1949,Larry Clark's family has cultivated a natural landscape consisting of at savanna,prairie,wetland,and an
experimental gm*n.21 Debra Petro lives on Prairie Avenue and since 1988,she has grown native Illinois prairie
and savanna plants as part of the Chicago Park District's Bob-0-Link Prairie Reconstruction Project 21 and the
Indiana Department of Natural Resources'Hoosier Prairie Restoration Project Rich Hyerczyk grows native Illinois
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prairie plants to help preserve native plants in cooperation with the Cook County Forest Preserve Dutrict2�
In 1991,the Chicago 5,fed up with the continuous threat of citation for violating the weed ordinance,filed suit in
federal court to declare the Chicago Weed Ordinance unconstitutional27 Beyond the legal arguments,21 the
Chicago 5 raised compelfrig common sense arguments for allowing them to maintain natural landscapes in
Chicago.The City cultivates a native prairie of wildflowers,legumes and grasses at The David Lee Animal Control
Center on the new south side.22 The Cook County Forest Preserve District is aggressively reintroducing prairie
plants throughout Chicago.LO The Chicago Park District is engaged in similar programsAl Like the Park District,
the Illinois Department of Transportation is reintroducing native prairies throughout the state.Its reasons are:(1)
historical(Illinois is die"Prairie State"),(2)environmental(prairie plants are beneficial to wildlife);and(3)
economical(by introducing prairie plants,IDOT is able to save money,and reduce gas consumption,wear and tear
on IDOT machinery,and man-hours necessary to mow roadsides).
The fact that homeowners are prosecuted while the governments that prosecute them plant natural landscapes
demonstrates the tug-of-war between those who want to live the Land Ethic and those who want to continue the
practices that ignore humanldnd's proper place within Nature.Some in government,bike the Chicago Park District,
recognize the Land Ethic.Others,hike those who prosecute natural landscapers,do noL The view of the former is
taking hold for a host of compelling reasons set forth below.
TV.THE REASONS FOR AND RESPONSE TO THE NATURAL LANDSCAPE
MOVEMENT
A. The NImement Officially Takes Root
Cook County and Chicago are not the only governments embracing natural landscaping-interest in the practice is
globaL10 In the London borough of Richmond upon Thames,for example,there is a sprawling"hay meadow"
resplendent with such wildflowers as buttercups and red clover.
In 1990,Congress mandated that 25%of all funds spent on highway landscaping projects be used to plant native
wildflowers along the easements and rights-of-way of the Nation's highways.10 The Clinton Department of Interior
is working with the Nature Conservancy and state and local governments to restore ancient American landscapes
including the Park Savanna in the Midwest,the coastal sage scrub ecosystem in Southern California and the Hill
Country region landscape in Texas.
Remarkably,even the conservative,anti-environment Bush Administration strongly advocated natural landscaping-
which it called"the New American Garden Style.n 707 According to the United States Department of Agriculture
Director of the National Arboretum:
In the past wildlife was drought of as the enemy of gardening and agriculture.Everyone has stories of
destruction and ruin of valued planis and crops.These concerns no longer have to be reasons why wildlife
cannot be welcomed back Into our living space.A new gardening style,drat designed by Oehme and Van
Sweden,landscape architects of Washington D.C.,was created on the grounds of the U.S National Arbonetum
as the New American Garden Style.The design,the plants,the preparation of the site,the maintenance
schedule and the year-round display all work together to reclaim a disturbed site and restore it as to habitat
where wildlife and humans can coewsL10
Accord-mg to the Bush Administration,a homeowner with a New American Garden should"overseed the entire
area with native wildflowers."n09
Canada has officially embraced natural landscaping.The Ottawa City Council,for example,has approved plans to
let nature take its course by reclaiming the cityfs 56 parks with natural landscaping.The idea is to naturalize the
public parks by planting trees,creating woodlots and plowing up existing grass to replant selected wildflowers and
native grasses.
The actions of national,state,and local governments demonstrate that natural landscaping and the goal of
harmonizing our yard with Nature and attracting backyard wildlife has officially taken hold Natural landscaping is
even termed"fashionable."111 The actions of governments and the acceptance of natural landscaping is not without
cause.There are good reasons for this trend.
B. Why the Movement Is Taking Riot
Prairie ecologist Neil Diboll,a natural landscaping advocate and expert for nearly two decades,cites three primary
reasons for the rapidly growing acceptance of natural landscaping:(1)ecologic;(2)economic;and(3)spislltual.LU
Ecologically there is no doubt that natural landscapes are preferable particularly when compared to traditional
suburban exotic lawns.Since natural landscapes do not require pesticides,herbicides or fertilizers,the harmful
effects of these chemicals are elimmatedlU In right of water shortages and problems with non-point source
Pollution,natural landscaping has profoundly positive ecologic effects.Xeriscaphng,the practice of planting native
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low-water-consuming plants,is the law in many cities and one of the most compelling ecological bases for natural
landscaping ILa
The positive economic consequences of natural landscaping ate twofold Fist,there are the direct costs.Natural
landscapes are less costly to maintain than a traditional exotic lawn or exotic landscape.Once established,natural
landscapes are not mowed,fertilized,treated with pesticides or herbicides,and they do not need watering.w For the
homeowner or office building manager,direct costs are substantially reduced
State departments of transportation across the nation are some of the strongest advocates of natural landscaping.
They reeognize the benefits of natural landscaping and plant native plants on roadsides and rights of way
throughout thei jutisdictions.1117 The Minnesota DOT is perhaps the most notable in its efforts.The MDOT
Wildflower Program is involved in preserving and planting prairie wildflowers at many rest areas and along
roadsides throughout the state.In addition to beautification of the state,a tourist attraction,the MOOT cites many
discemable benefits from its program.]is
Natural landscaping also reduces the costs of pollution cleanup.For example,water pollution in inland lakes and
rivers could be reduced when those living within the watershed naturally landscape their yard The result would be
reduced runoff and a reduction in non-point source pollution attributed to fertilizers and herbicides used for
maintenance of monoeuft=lawns.119
The second economic argument for natural landscaping is the doctrine of diminishing marginal value-the less of
an asset that remains the more valuable it becomes.As suburban sprawl continues to consume open space,the
elements of Nature that remain and can be preserved increase in value.Accordingly,many developers are citing to
the natural landscapes retained in their developments as a positive asset Prices of homes in such subdivisions often
cost more than similar homes in areas without natural landscaping.JA
The final reason for the movement towards natural landscaping-the manifestation of the Land Ethic through our
yards-is spiritual.Dibolrs argument is that insofar as we view ourselves as external and,therefore,not a part of
Nature,we do not share the universal energy and soul of the"Great Spirit"whether the spirit be God,in the
Judeo-Christian view,or some other metaphysical being.This disconnection from the life of the planet and universe
deprives humankind of the security of belonging to the big picture.The resultant"insecurity"or lack of connection
drives humankind to seek other forms of security,such as financial security,in an attempt to insulate ourselves
from the chaos of everyday life.
To achieve financial security,humankind despoils the Earth by converting natural resources into capital-an
unnatural concept In the process,humans have become unbalanced,and are willing to damage the very systems
upon which they rely for sustenance.This devastation transcends economic models,from capitalism to communism
to tnbalis m.It is not so much a problem of systems as it is a problem of spirit and culture.
Uhimately,economics drives culture and religion.Humatddrid can no longer pursue a pattern of destroying the
Earth;this is now uneconomical.No organism can survive in a medium of its own waste.Therefore,we must
develop spiritual systems that reflect this new reality and reward better nature in noneconomic terns,i.e.,spiritual
growth rather than monetary growth.Spiritual development will be a growth market of the future-that spirituality
is the Land Ethic and is manifested by homeowners through natural landscaping.
C. What Cities H:avc Done in Response to thi Movement
In response to the efforts of the Ottos,Stewarts,Allison,and Hagars of the world,and consistent with the reasons
set forth by Neil Diboll,not only are governments at all levels engaging in natural landscaping,but many
municipalities are changing weed laws to allow their citizens to naturally landscape their yards free from the fear of
prosecution.The Level of fieedom,however,varies.
1. TbeMadison "Permission"Law
Madison,Wisconsin was the first major city to recognize the legitimacy of natural landscapes by enacting an
ordinance validating them.As a result of its goundbreaking legislative efforts and because it is home to the
University of Wisconsin Arboretum,Madison is considered the cradle of the prairie restoration movement
Although many cities have enacted ordinances modeled alter the Madison Ordinance,upon close examination,the
ordinance proves both good and bad
The Madison Ordinance requires the homeowner to file an application for a natural landscape and then obtain the
approval of a majority of his neighbomIN By expressly allowing natural landscapes,the ordinance represents a
significant first step in the process of reversing the blight of truly environmentally harmful turf.The neighbor veto
and the application and approval process,however,are unnecessary limitations on the right to naturally landscape
one's yard These requirements also lead to a process of ad hoc"permission"to plant native plants and grasses.
Finally,the premise of the Madison Ordinance is counterintuitive-why should natural landscapes be singled out as
requiring permission when truly harmful landscapes remain unregulated?
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2. Modified Local Weed Laws
A beNer,and more recent type of local weed law remedies the shortcomings of the Madison Ordinance by allowing
natural landscaping without either neighbor approval or city permission.These laws retain the traditional
prohibition of growing"weeds"or"rank vegetation"but include a modifying clause that places natural landscapers
out of hamn's way.
There are two versions of modified weed laws:(1)the setback ordinance and(2)the natural landscape exception
ordinance.Setback ordinances generally requle an area measured from either the front or the perimeter of the lot,
in which the vegetation may not exceed a certain height,lice ten or twelve inches,exclusive of trees and bushes.
The vegetation behind the setback and within the yard,is unregulated Setback distances depend on the type of
community and size of the typical loth Communities with homes on large lots could have as much as a
twenty-foot setback,while in towns with smaller lots,a two-or three-foot setback would be more suitable.
Setback laws have several advantages and represent a workable compromise between the sometimes diverse
interests of the village,natural landscapers and neighbors.Primarily,setback ordinances allow for the unregulated
growing of vegetation on a majority of the lot Like a Same around an abstract painting,the setback around the
perimeter creates a tended leak that satisfies neighbor and village concems of conformity and aesthetics.The yard
takes on its intended look A setback also solves the practical problems caused by large plants and grasses lopping
over into neighbor yards or across sidewalks.The setback ordinances are also easy to understand and enforce.Both
the village and natural landscaper benefit from a clear and simple law.Neighbor complaints are generally satisfied
by such compromise and living in a community makes compromise essential.
The liability inherent in these setback laws is that a portion of the yard is rendered off4imits for certain types of tall
native plants.In some cases that excluded portion may prove to be the best land available to the homeowner for
cultivating certain plants.This liability is,however,a small price to pay for an otherwise workable and Stir
ordinance.
The second type of modified weed laws are those that limit the blanket weed ordinances with broadly worded
exceptions for environmentally beneficial Iandscapes.124 These exceptions include:
NAPVE -the use of native plant species for aesthetic and/or wildlife reasons;
PLANTINGS
WILDILIFE -the use of native andlor introduced plant species to attract and aid wildlife;
PLANTINGS
SEROSION
-to offset and control any coil loss occurring both accung or predicted;
SOIL FERTILITY -fie enrichment and eventual stabilization of soil fertility through the use of various
BULDING plant species;
GAL -any federal,state or local programs which require the unimpaired growth of plants
PROGRAM during a majority or all of the growing season;
EDUCATIMAL -any areas designated for educational studies;
PROGRAMS
cuLTNATHM -any pant species or group of plant species native or introduced and grown for
consumption,pleasure or business reasons:
BIOLOGICAL -the planting of a particular plant species or group of species which will effectiwly out
CONTROL compete and replace a roiews or troublesome weed species without additional soil
disturbance of the site;
PAFUQ.AND -any and all public parks and open space lands whether under the jurisdiction of
OPEN SPACE federal,state,or local agencies including private conseNdtiontpreserYdtion
organizations;and
WOODED AREAS -all areas that are predominately wooded.
Such modified weed laws expressly protect natural landscapes.They are easy to understand and adequately balance
the interests of natural landscapers and neighbors.Additionally,exceptions can be added or deleted from this list to
tailor the weed ordinance to the needs of the village and the bioreglon in which the village is located.
3. Proawalona(X"raiLandscweLaws
The final type of new beat weed law not only allows for,but promotes the Land Ethic by encouraging natural
landscaping.Villages which have chosen this route generally have no prohibitory weed laws.They have few laws
coupled with proactive measures and policies which encourage the use of native plants and natural landscapes. .
Long Grove,Illinois,is a good example of a community that embodies this policy.12A Long Groove has no law
• regulating vegetation height.The village requires developers to include scenic easements,at least one hundred feet
deep and planted with native plants,wildflowers and grasses between the homes and major streets,in their
subdivisions.Large portions of the town are designated natural areas as determined by a scientific ecological survey.
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Long Grove employs a naturalist to advise developers and homeowners on how to cultivate and maintain natural
landscapes.Long Grove sells native plants and seed minis to residents and has a committee that reviews prairie
restoration projects within the village.The median home price in this naturally landscaped village is S383,000.1L7
Fort Collins,Colorado has gone further than Long Grove.The city employs a full-time wildlife biologist and has a
ten acre nature preserve in the heart of downtown on land that used to be a formal park There is a city program to
identify and certify homeowner's backyard wildlife habitats.To receive this certification,homeowners must let
Nature reclaim their non-native lawns.Hundreds of citizens participate in the program?3"
Such pm-active natural landscape laws are,of course,the ultimate goal that we must attain.They truly reflect the
teachings of the Land Ethic.
V.SOME VILLAGES STILL DON'T GET IT-WHAT TO DO IF YOUR VILLAGE IS
ENFORCING ITS WEED LAW AGAINST YOUR NATURAL LANDSCAPE.
The types of old weed laws used by municipalities to prosecute natural landscapers generally suffer from a variety
of legal flaws.These flaws can be exploited by natural landscapers who are targeted for prosecution in order to wit
his or her case,or hopefully,convince his or her village that the weed law should not be applied to natural
landscapes.The flaws are constitutional,practical and evidentiary.
A. Natural Gardening as a Fundamental Right.
1. Landscaping as Speech and Art
Natural gardening can be constitutionally protected speech and therefore,any weed law must be closely rehired to a
compelling state interest While not all natural landscapes are obvious to even a casual viewer,many are.Indeed,
this is often the real"problem."Symbolic speech is as protected as oral speech.One of the best ways a person can
announce his or her concern for what humankind has done,and is doing,to the environment is to restore a portion
of the environment to its natural state.Restoring natural vegetation can,therefore,be a form of speech and,as such,
is entitled to the same protection that speech receives under the First AmendmentL2
The attempt made by natural landscapers to politically express themselves through the cultivation of wild plants is
one that parallels historical and traditional precedents.121 The political use of flowers as symbols is as important
today as it has been in the past The red rose is the symbol of the Socialist Party in France and the British Arbor
Party.In the War of the Roses,opposing sides took roses of different colors as their symbols.W
Natural landscaping can also be artistic expression protected by the First Amendments State law recognizes the
beauty,artistic expression and virtue of landscape gardenmg.133 Landscape architecture is defined as"the art and
science of arranging land together with the spaces and objects upon it,for the purpose of creating a safe,efficient,
healthful,and aesthetically pleasing physical environment for human use and enjoyment"124 A weed law,as
applied to natural landscapers,denies the landscapers'ability to express themselves,through an activity statutorily
recognized as art.
Neighbors and government officials need not concur that the natural landscape is"an"before First Amendment
protection attaches.In interpreting art as speech protected by the First Amendment,the court in Piarowski V.
Illinois Community College 131 stated,"[t]he freedom of speech and of the press protected by the Fast Amendment
has been hnerpeted to embrace purely artistic as well as political expression(and entertainment that falls short of
anyone's idea or
One of the most spectacular examples of natural landscaping as art lies in the heart of Chicago's Grant Park The
Wild Flower Works 11 is the creation of Chicago artist Chapman Kelly.IL7 Kelly sees his garden of wildflowers,
legumes and other native plants not merely as din and flowers,but rather a giant canvas on which he does his
"most spectacular work"I The ecological painting is a socio-political work that symbolizes the proper role of
humankind within Nature.
In 1988,when the Park District sought to have the Wild Flower Works plowed under,Kelly went to court and
obtained a temporary restraining order arguing his First Amendment rights.The lawsuit was later settled by
allowing the Wild Flower Works to remain in Grant Park and the Park District to receive regular reports on its
maintenance.
"Gardening is the an that uses flowers and plants as paint and the soil and air as the canvas-working with nature
provides the technique."Dp More remarkable examples of gardening as art are the efforts of the French
Impressionist,Claude Monet Following the death of his wife,Monet moved to Givemy,France in 1883.There he
planted the gardens that were the subject of his most famous paintings.Focusing on color relationships and the
effects of light'Monet carefully arranged pure colors in the abstract form of flowering plants to"create richly
patterned textures and mood by contrasting or homonizmg color relationships."IV In the later,and most productive
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part of his career,Monet used his tower and water gardens at Givemy as a living studio:"With the living,growing
and changing plants,always subject to light and weather,Monet creazed an organized concentrated color
environment where he could live,breathe,observe and walk,forever having his painters eye challenged by the
effects of light"L Many of the plants Monet employed,and much of the layout of the gardens,are the same or
similar to many of today's natural landscapes.
Enforcement of a weed law denies the artist the tools of her art,Nature.A city's weed law enforcement is as
devastating to a natural landscaper as declaring music a nuisance would be to a musician.Absent a showing of
some compelling municipal interest,a city does not have the power to restrain a natural landscapers freedom of
expression.The unjustified restraint of freedom of expression coosifi tes a violation of the First Amendment
2. Landwsplae as RedtJpn
Natural landscaping,for some,can be a constitutionally protected form of religious practice.Courts essentially
recognize religious practices subjectively,the only test being whether the individual asserts his belief in good faith
and that belief could arguably be relgious.L Therefore,not only would the established Native American
relgionsM and Eastern relgionsL which preach the oneness of humankind and Nature be entitled to First
Amendment protection for natural landscaping,but those who hold"nontraditional"religious beliefs would also be
entitled to such protection.Certainly,the adherents of Deep EcologyL would be entitled to First Amendment
protection for natural landscaping practices.
Beyond Fist Amendment protection to these less-common religions,the fundamental teachings of the Bible and
Judeo-Christian theology encourage a stewardship approach to humanldnd's interaction with Nature.L Vice
President Gore narrows the focus and strongly supports the premise that traditional Judeo-Christian religions
counsel for a harmonic relationship between humankind and Nature L
Enforcement of weed laws can be an impediment to the free exercise of these religions.Whatever protection the
Constitution affords that free exercise would apply to the practice of natural landscaping for those individuals
engaged in it as a result of or in furtherance of their feligion.L
B. Need Laws as Unconstitutionall.i Vague
Even if not a constitutionally protected fundamental right,natural landscaping can escape attack from outdated
weed laws because such laws generally do not define the term"weed"and are,therefore,unconstitutionally vague.
The Chicago Ordinance,like many,merely outlaws"weeds"or an accumulation of weeds.L As such,these laws
provide a subjective and relative standard,which violates the Due Process Clause.
A law is void for vagueness where it does not clearly define what it prohibits.tSo A law is void on its face if it is
"perfectly vague";to sustain the challenge the statute must be one which provides no"ascertainable standard for
inclusion or exclusion."L Weed laws that fail to define"weed"suffer from such a constitutional infirmity.M
The term"weed,"where not statutorily defined must be ascribed its dictionary definition.But"what is a weed?"is
a vague and subjective determination.Its meaning varies depending on who is applying the definition and where the
subject plant is located in relation to other"desired"plants.Thus a"weed"to fanner may be a rose or iris growing
in his corn or wheat field But a rose or iris is not a"weed"to the conventional gardener,who would cite corn or
wheat growing in his flower bed as"weeds."111 As Justice Douglas wrote:"Words which are vague and fluid may
be as much a trap for the innocent as the ancient laws of Caligula"�Weed laws can clearly be such a trap.
In Newark V.Garfield Development Corp., one court addressed the issue directly.In that case,the court snuck
down an ordinance that stated"al areas shall be kept free from weeds or plant growth which are noxious or
detrimental to public health and welfare or a public nuisance defined in article 2."Article 2 defined public nuisance
as"any premises which are unsanitary,or littered with rubbish or garbage,or which has an uncontrolled growth of
weeds."The court held:
That which appears to be contained without exception in all weed control legisletion but which is lacking in the
ordnance in question Is the definition of the particular vegetation which is sought to be controlled or a
mechanism by which the parUcWar vegetation is designated to be noxious and therefore subject to government
conbd 10
The court summarized the reason for the ruling as follows:
(lit seems clear to this court to be unedy repugnant to our system of taw to punish a person for an ad,the
criminality of which depends not on any standard erected by the law which could be known to the defendant in
adwoce.but one erected by a Judge or jury after the trial has been oompleletl.L
Even if weed ordinances are not void on then face,they can often be vague.as-applied to those who engage in
natural landscaping.Across the nation,all levels of governments are actively pursuing natural kndscaphng.1211 The
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most ramnarkable,and perhaps ironic,example of a government natural landscaping is Chicagdss prairie on the
southside at the David R.Lee Animal Control Center.The city planted hundreds of pounds of wildflower,native
grass and legumes seeds at the site.Marie WojciechowsK who is being prosecuted by Chicago for violating its
weed ordinance,gathered seeds from the city's prairie garden and grew plants from those seeds on her property.U2
She even received a letter from a city landscape architect asldng her to call if she needed any further assistance or
information about the prairie.IN Ms.Wojciechowsld now defends herself in a criminal case brought by the city for
growing the offspring of the city's own plants.
Without an exact definition of what type of vegetation is prohibited,weed laws violate due process because they
allow law enforcement officials and judges to rely on their own notions of what is right and what is wrong.761 The
primary thrust of the void-for-vagueness doctrine is:
The requirement that a legislature must establish guidelines to govem law enforcement...Where a legislature
rails to provide such minimal guidelines,a criminal statute may permit a standardless sweep that allows
policemen,prosecutors and lurks In pursue their personal prod lections IG
Weed laws create such a result Absent guidelines within the text of the weed law itself as to what plant species are
prohibited,an enforcement officer is free to decide,strictly on his own,whether the plant complained of in a given
situation is illegal.Since weed inspectors have no guidelines to determine if a homeowner violates the weed law,
this is unfelt and unconstitutional.
C. Weed Lars as Irrational in Violation of the Equal Protection Clause and Unreasonable in
Violation of the Common Law
If natural gardening is not a fundamental right and the weed law is not vague,the party charged with violating a
weed law may nevertheless challenge the rationale for a weed law.An ordinance must not only be rational to
survive constitutional scrutiny under the Equal Protection Clause,L but under the common law,municipal
ordinances must pass a more exacting standard of reasonable-ness.L64 Natural gardeners have successfully proven
that local weed laws are irrational and unreasonable as applied to natural landscapes.10
Natural landscapes are attractive and they do not decrease property values.More directly,natural landscapes do not
create a health hazard,as cases have proven.Some uninformed government officials and citizens believe that
natural landscapes cause problems with pollen,fire hazards,rats,and mosquitoes.These mistaken beliefs are all
soundly refuted by testimony and studies.In fact,natural landscapes reduce many of the very hazards that weed
laws are intended to prevent.
1. Fire
One of the most common arguments asserted in favor of local weed ordinances is fire prevention.As to natural
landscapes this argument is predicated on the unproven contention that tall grass and forb stems,commonly planted
as part of a prairie or meadow,constitute a fire hazard.This is not,in fact,true.In New Berlin v.Donald C
Hagar,r66 United States Forest Service expert David Seaberg testified that a grass fire can sustain high heat for only
twenty seconds.In order to ignite wood and sustain a fire potentially damaging to a home,a grass fire must bum
within four feet of the home for seven and a half minutes.Judge Gramling agreed,finding no rational basis for the
claim that natural landscapes create a fire hazardL
According to John Diekelmann,a noted landscape architect and plant ecologist,most prairie or meadow plantings
contain a large portion of green leafy material at ground level during most seasons and do not sustain firewltil In
short,restoring an area as prairie does not create a fire hazard Moreover,if firs prevention were the purpose,a
rational ordinance would prohibit the accumulation of biomass in a given area based on some index of flammability,
not merely undefined weeds.
2. Vermin
A second common argument raised in defense of local weed laws is that naturally vegetated areas sustain rats and
other vermin.Rats and other animals commonly regarded as vermin require a steady food supply.Natural
vegetation in yards does not provide the type and quantity of food required to sustain a population of rats and other
creatures regarded as vermin.10
In short,the man-made food supply of the sort often provided by structures,especially barns or garbage dumps,is
what sustains rats and other vermin.Thus,an ordinance aimed at limiting rats and other vermin should not be
targeted at"weeds"but rather should prohibit the food masagrown and openly stored on property.
3. Mosorrrlou
A third defense of local weed ordinances is the assumption that weed-covered areas provide a breeding place for
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mosquitoes.In fact,however,mosquitoes require standing water to breed Even the fastest growing mosquitoes
found in the upper Midwest need standing water for ten days to complete their life cycle.Since prairie and meadow
areas tend to absorb water quickly,they are less likely than fiequently watered lawns to contribute to the presence
of mosquitoes.If mosquitoes are the problem,it is standing water and not weeds that should be prohibhed.L211
4. Pollen
A fourth justification for local weed laws is the belief that weeds produce pollen which contributes to the suffering
of people with allergies.As with the other defenses of out-dated local weed laws,this is also mistaken.Herbaceous
plants responsible for pollen allergens fall into two general types:(1)plants such as ragweeds which characterize
environments subject to repeated disturbances such as erosion or cultivation,and(2)areas characterized by a
permanent cover of non-indigenous turf and pasture grasses such as bluegrass,perennial rye,and timothy.
Traditional lawn and landscape maintenance procedures in urban and suburban areas of the United States,which
are often the antithesis of natural landscaping and Land Ethic,are more likely to be a significant source of
community health problems than landscapes most often cited for"weed"law violations liz
This issue was at the center of the litigation that led to the Fairfax County,Virginia"Weed Law"fading that the
law was unconstitutional in 1976 in Board of Supervisors of Fairfax County,Virginia v.Wills and Van Metre,Inc.
L7 The decision was based in large measure on the testimony of Dr.Stanwyn Shetler,now the Assistant Director of
the National Museum of Natural History at the Smithsonian Institute.Dr.Sheller testified that wind-borne pollen
may travel hundreds of miles so that a local weed ordinance has virtually no effect in reducing allergy causing
pollens.In his decision,Judge Richard J.Jamborsky found:
Shatlers v samorry(repaMing pollen allergies and some otter assumumptions about weeds)challenges and
refines some of the old notions about weeds and nuisances muneiatad 73 years ago in City of St.Louis V.
Gall In the absence of a stowing that its tracts are a health hazard,the defendant should be permitted to
maintain the meadose.174
Similarly,in New Berlin V.Hagar, Judge Gramlmg found that a cityrs weed ordinance applied to natural
landscapes lacks a rational basis for the elimination of allergenic,wind-bome pollen that affects people with
hayfever and other allergies.
176
5. Enforcem ill of Weed ordinances Aeainsr Natural Landscapes Increases Wind-Borne Allereenie Pollen
and Olho Heakb Hazards
. The primary cause of hayfever is ragweed.L Ragweeds are a pioneer species in the normal course of phmt
succession that thrive in disturbed soil found in recently developed or degraded arem.rn In the normal course of
plant succession,weedy pioneer plants would if the soil remains undisturbed by cutting or other activity,be
succeeded by grasses and herbaceous plants.All plants produce pollen,but perennial native plants and native
grasses,the primary components of natural landscapes,are generally not producers of wind-bome,allergenic pollen.
Allowing these plants to grow,operates to crowd out the weedy pioneer species that create the health hazard.Based
on these facts,Judge Gramling concluded that the weed ordinance,as applied to natural landscapes,was
counterproductive.
Even more ominous than the health problems associated with some wind-borne pollens,is the likelihood that the
chemicals used to establish and maintain mono-turf yards pose a serious health risk to the environment and to
people and their pets,not to mention whatever wildlife remains in the area Homeowners apply more than
67,000,000 pounds of active lawn chemicals each year,more pounds per acre than are applied by farners.m
The damage to human health attendant to such landscaping practices is well-documented.For example in Fairfax
County,Virginia officials blame the high Levels of phosphorus in streams on lawn fertihzff run-off. The United
States Environmental Protection Agency found potentially harmful levels of nitrate in more than half the drinking
water wells tested nationwide.High nitrate Levels can cause"blue baby"syndrome,a potentially fatal
oxygen-depriving disorder in infantsM Finally,researchers at the National Cancer Institute have linked frequent
chemical-lawn heatments to an increased incidence of deadly cancer in dogs and suggest a link between the weed
killer,2,4-D,and cancer in humans
By prosecuting natural landscapers,and either implicitly or expressly promoting exotic mono•turf yards,villages
increasingly harm the public health.The connection between the prosecution of natural landscapers under weed
laws and enhancing public health,safety and welfare is not well-founded Prosecutor claims rest on convenient
assumptions that have not withstood judicial or scientific scrutiny.Even more frightening is the hkehhood that the
correlation is inverse—that these weed laws are,if not mandating,certainty encouraging turf grass lawns
established and maintained with chemicals that seriously endanger the public health,safety,and welfare.
. 6.Aestbedes
The final recurrent criticism of natural landscapes is that such yards simply"don t look nice."Neighbors wish to live
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next door to neighbors who have yards of"beauty."To some,natural landscapes look unattended and"messy."
Such shallow arguments demonstrate the underlying motivation that some feel to control the actions of those who
dare to be different
"What beauty is I know not,but it dependeth upon many things."119 Although some believe that beauty is visual,
the Land Ethic teaches that beauty is determined by how an activity,plant or species fits within the natural
woridM Humankind must conform its yards with nature,not some artificial model.Natural landscapes conform to
nature and are things of beauty.
On a perceptual level,a yard ablaze with colorful wildflowers and majestic flowing native grasses impresses the
viewer and attracts positive responses from passersby.For example,Chicago's Grant Park contains the two-acre
"The Wildflower Works."lk The Chicago Park District is planting native coneflowers and day lilies along the 4-1/2
mile-long median of Lake Shore Drive,Chicago's most famous street The program is considered the first of its kind
in the nation and if the planting proves successful,the Chicago Pak District plans to naturally landscape other
major streets in the city.[The State of Illinois ripped out the tulip end lose garden on the grounds of the State
Capitol end replaced it with native Illinois prairie plants.Illinois believes the aesthetic appeal of native landscapes is
more pleasing then traditional exotic landscapes end with respect to the claim that natural landscapes are ugly and
decrease neighboring property values,the opposite appears to be true.
These aesthetic qualities of natural landscapes have been embraced by corporate America.Sears,Roebuck&
Company is plant-ing a landscape of prairie glasses and Forbes around its new headquarters in Hoffman Estates,
I11inoisA9 Not only does Sears view the use of a natural landscape as en ecologic end economic benefit,but Sears
plans to use the natural landscaping as a marketing tool to attract other corporate office users to the 786 acre site.
Sears'plans have been called a"landmark"in the natural landscaping movemenLM Other corporations,large and
small,utilize natural landscaping at their corporate headquaters for ecologic,economic and aesthetic reasons.These
include:McIbnakrs in Oak Brook Illinois;Westbend Mutual Insurance in Westbend,Wisconsin;Schneider
Tracking in Greenbay,Wisconsin;and Promega Corporation,a biotech company in Madison,Wisconsin.0
Ultimately,the aesthetic argument against natural landscaping is illogical.One manes weed is another man's rose.M9
To some,pink plastic flamingoes,polka-dotted bloomered cardbord ladies,twirling plastic sunflowers,
asuo-turfcovered front stoops,end perfectly sculpted evergreens look simply ridiculous;but to others,such
landscaping is beautiful.People have a right to astro-turfruvered stoops,closely cropped evergreens,end spinning
plastic sunflowers in their yards.That is the American way.But individuals also have the right to a natural stone
walkway,flee-flowing native shrubs and forbs,end real sunflowers reaching to the sky in a blaze of gold.
VI. WHERE TO GO FROM HERE --- SUGGESTIONS FOR LOCAL
WEED LAWS THAT EMBODY THE LAND ETHIC
In the end,it is the public perception that must change,particularly those in policy making positions in villages
around the nation.History Points that way.In 16th Century England,wealthy andowners had lawns that were
natural meadows starred with a thousand flowers.In those days,grasses were hated weeds,and garden boys would
creep along the flower lawns picking out the gross.In the 19th and 20th Centuries,the perception of the ideal yard
has been confounded Grass became the vegetation of choice.Local weed laws protect and promote this idea.We
must return to the past
in response to the natural landscaping movement,communities are moving from repressive weed laws toward more
progressive wad laws The progress,however,is too slow;and far too often efforts to change regressive"weed
laws"are met with opposition based on misunderstandings Judges and government officials should abandon these
ill-founded notions.
The natural landscaping movement,having taken root,will continue to grow as we enter the 21st Century.
Unfortunately,weed laws in many communities persist and create a significant impediment to the growth of the
natural landscape movement These repressive laws must be changed
In her recent book Noah's Garden,Sara Stein challenges us to replace the sterile,contrived,inherited erotic
landscapes that have unfortunately dominated our lives.She writes of a promising future where kcal and state laws
regarding land use reflect the Land Ethic:
Some time in the future,the value of a popery will be perceived in par according to its value to wildlife.A
popery hedged with fruiting snubs will be word more Man one bordered by forsythia.One with dry stone
wane that provide passageway for chipmunks will be valued higher that one whose walls are cemented atone.
Buyers will place a premium on lob that provide summer flowers and fall crops of seed.Perhaps dire will be
formal incentives:tax abatements geared to the number or native species;deductions allowed for Ids that
require neither sprays nor sprinklers.A nursery co"of bats might be considered a capital improvement
There could be bonuses for blydhousea.On,bravo raw wordy
14 of 16 8/18/99 4:19 PM
deed Laws Article on landscaping (John Marshal Law tteview)
This is the goal,but in populated urban areas,it may be unrealistic to believe that unregulated, 1pm-active natural
landscaping laws,will be accepted in the near future.The"Jot ncyOf a thousand miles begins with the fast step,"
and it is with that axiom in mind that the following guidelines are offered to be used by communities in crafting
new weed ordinances that begin the toad toward a more benign relationship between our yards and Nature:
1. The ordnance should protect on fundamental right of residents to choose their own landscaping:
g. The ordinance should apply equally to all residents as well as the City.County and State.if possible:
], Any restrictions in to ordbence should have a rational basis:i.e.,a egi8mate intsraat in pudic health.
safety or welfare:
4. The ordinance must not legislate conformity or aesthetics nor allow residents of the City to werchse control
over their neighbors'landscapes:
8. The ordinance should not require In filing of an application.statement of intend or management plan:and
there should be no review or approval process or fees assessed against residents who intend to engage in
legitimate natural tsndscaPng;
6. In order to avid harassment of rhahsal landscapers.tie Clys"weed commissioners"who will enforce the
Natural Landscaping Ordinance,and thereby dnkrentiata between tone people who are growing permitted
natural landscapes versus Case with mpermatsd growth,should be able to distinguish between the two:
7. Enfomement of the ordinance should be undertaken through due process of law which guarentees
individuals to right to fair adjudication of their rights:and,
8. The ordinance should address the problems of environmental degradation brought about by proliferation of
high maintana moncealtural landscapes,and Me indiscriminate use of horde chemicals in landscape
management.C should encourage the preservation and restoration of diverse,biologically stable natural
plant communities,and environmentally sarnd practices.This would reduce not only contaminants to the
environment such as prefiddes,tertfilms,pollutants and noise,but would help reduce the scoumulatlon of
yard waste
A model for good,fav and workable modified weed ordinances embodying the foregoing guidelines is attached as
an appendix.This model is simple,easily understood,and allows natural landscaping consistent with the Land
Ethic.But,the law is not proactive in its treatment of natural landscaping.Two versions of such pro-active natural
landscaping laws-proposed by Lome Otto and College Station,Texas are attached in the appendix.Lorne Oto's
proposed Natural Landscaping Act is the best available model law.It embodies the Land Ethic more dlnectly and is
similar to the approaches adopted in Long Grove,Ninois and FL Collins,Colorado.The proposed College Station,
Texas Natural Landscape Ordinance is similar in its pro-active tone and effect.
Any of these three models offer a significant improvement on traditional anti-Nance weed laws many villages still
have on the books.The specific wording of any new weed law,of course,will vary from town to town and region
to region based on particular climate,geography,and population density,but whatever the final wording,the weed
laws of old must be changed to retest the Land Ethic and thereby enhance,rather than inhibit humankind's chances
of survival.
VII, CONCLUSION
Laws,however,are only a first step.They offer a means to an end but are never an end themselves.We cannot rest
with the enactment of a law and believe that it alone will accomplish the desired goal of a harmonic relationship
with Nature.As Dr.Wilson observed:
The wise procedure is for law to delay,science to evaluate and famili-arty to preserve.There is an implicit
principle of human behavior important to conservation:the better an ecosystem is blown,the less likely it will
be destroyed.As the Senegalese nxxhservatlonsisL Saba Dicum has said'In the end.we will conserve only
what we love,we will love onlywhat we understand,and we will understand only what we are tsught'L
If we cannot earn to accept the Land Ethic in our own yards and learn to five with Nature,then how will we ever
apply its teaching to the larger world around us.Aide Leopold said:
This la destroyed prairie remnant]is one little episode in to funeral of native ficra,which in turn is one episode
in to funeral of to floras of the world.Mechanized man,obavious of floras.is proud of his progress in cleaning
up the landscape on which,willy-nilly,he must live out his days.
121
Hopefully,this type of progress can be held in check and ultimately reversed as natural landscaping continues to
spread across the Nation.Local weed laws,a remnant of an age of conformity and misunderstanding must be
reviewed and revised to make way for this change.
15 of 16 811&99 4:19 Pus
Weed Laws Article on Landscaping (John Marshall Law Review) httP:Ilwww.epa.gov/ghiWgeenscreslwftdlaws/JMLR.htmi
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16 of 16 9/18/99 4:19 PM
§20-29 FORT COLLINS CODE
Sec.20-29. Violations and penalties. Open area shall mean real property zoned as open
space or designated transition or any other undevel.
(a) Any person who violates any provision of this oped real property in single, common or joint owner-
Article, upon conviction, shall be subject to the pen- ship,
alty in§ 1-15. .
Owner shall mean the fee owner of record or any
(b) Violation of any provision of this Article shall agent or representative of such owner and any person
be cause for a summons to be issued by authorized entitled, by lease or tenancy, to possession of the
enforcement officials according to adopted proce- premises.
dures.
(Code 1972, §78-8(A),(B)) Property shall mean in addition to the owner's lot or
Crow reference—General penalty,§1.15. tract of land whether improved or vacant, the area to
the center of an alley abutting the lot or tract of land,
Secs.20-30-20-40. Reserved. if any,all easements of record, and the sidewalk, curb,
gutter and parking area of any street abutting such lot
or tract of land.
ARTICLE III. WEEDS,BRUSH PILES
AND RUBBISH' Refuse shall mean solid and liquid wastes, except
hazardous wastes, whether putrescible or nonpu-
trescible, combustible or noncombustible, organic or
Sec.20-41. Definitions. inorganic,including but not limited to wastes and ma-
The following words, terms and phrases, when used terials commonly known as trash, garbage, debris or
in this Article, shall have the meanings ascribed to litter, animal carcasses, offal or manure, paper, ashes,
them in this Section: cardboard, cans, yard clippings, glass, rags, discarded
clothes or wearing apparel of any kind or any other
Backyard wildfire habitat certification shall mean discarded object not exceeding three(3) feet in length,
certification by the Division of Natural Resources un- width or breadth.
der its backyard wildlife habitat program recognizing Rubbish shall mean nonputrescible solid wastes of a
a yard as having the necessary components to sustain large size, including but not limited to large pieces of
the desired wildlife species. wood, large cardboard boxes or parts, large or heavy
Brushpile shall mean an accumulation of cuttings or yard trimmings, discarded fence posts, crates, vehicle
dead portions of trees and shrubs. tires, junked or abandoned motor vehicle bodies or
parts, scrap metal, bedsprings, water heaters, dis-
City Manager shall mean the City Manager or the carded furniture and all other household goods or
designated representative of the City Manager. items, demolition materials, used lumber and other
discarded or stored objects three (3) feet or more in
Ditch shall mean any channel, either man-made or length, width or breadth. As used in this definition,
natural, to carry water for drainage or irrigation, in- the term discarded furniture shall include, without
cluding its access and/or maintenance easements on limitation, upholstered furniture that is designed,
either side. manufactured and intended primarily for indoor use
but is used or stored outdoors in any unroofed area,
Natural area certification shall mean certification by whether the upholstered furniture is actually discarded
the Division of Natural Resources under its natural or not.
areas program recognizing a one-quarter-acre or larger
site as having the necessary components to be classi- Weed shall mean an aggressive, non-native
fied as a natural area. herbaceous plant detrimental to native plant
communities or agricultural lands, including but
not limited to jointed goatgrass (Aegilops cylin-
Cross references—Refuse and rubbish accumulation prohibited,§
12-18;vegetation,Ch.27.
Supp.No.48 1320
NUISANCES §2043
ddca), quackgrass (Agropyron repens), redroot pig- (b) It is unlawful for the owner of any property to
weed (Amaranthus re&oflexus), common ragweed permit refuse,rubbish or brush piles to accumulate on
(Ambrosia artemisikolia), giant ragweed (Ambrosia any part of the property.
triflda), wild oat (Avena fatua), white mustard (Bras-
sica hirta), wild mustard (Brassica kabmr black mus- (c) Except as is provided in subsection (d) of this
tard (Brassica nigra), birdsrape mustard (Brassica Section,it is unlawful for the owner of any property to
rapa), marijuana (Cannabis saliva), whitetop (Card. permit weeds and grasses to grow upon such property
aria draba), hairy whitetop (Cardaria pubescens), to a height of more than six(6)inches.
sandbur (Cenchms longispinous), diffuse knapweed
(Centaurea ditfusa), spotted knapweed (Centaurea (d) It is unlawful for the owner of any open area,
maculosa), Russian knapweed (Centaurea repens), ditch, ditch right-of-way or railroad right-of-way to
Canada thistle (Cirsium arvense), bindweed (Convol- allow the growth of weeds or grasses other than those
vulus arvensis), leafy spurge (Euphorbia esula), St. grown for agricultural purposes upon such open area,
Johnswort (Hypmicum perforatum), kochia (Kochia ditch or right-of-way in excess of twelve(12)inches in
scoparia), prickly lettuce (Lactuca serriola), perennial height.
pepperweed(Lepidium laafolium), dalmatian toadflax
(Linaria genisdfolia spp. dalmatica), yellow toadflax (e) It is unlawful for the owner of any property to
(Linaria vulgaris), purple loosestrife (Lythrum sali- permit the growth of noxious weeds as designated by
caria, Lythrum virgatum and any combinations the Colorado Weed Law or Latimer County Weed
thereof), buckhom plantain (Plantago lanceolate), District,regardless of height.
curly dock (Rumex crispus), Russian thistle (Salsola (Code 1972, §79-7;Ord.No. 184, 1986, §2(79-7(A}—
iberica), horsenettle (Solanum elaeagnifolium), black (D)), I1.18-86; Ord. No. 89, 1994,§3, 6-21-94)
nightshade (Solanum nigrum), buffalobur (Solanum
rostratum), perennial sow thistle (Sonchus arvensis), Sec.20-43. Variances.
Johnsongrass (Sorghum halepense), dandelion (Ta- (a) An owner of a tract of land that has been certi-
raxacum olfrdnale), fanweed(Thlaspi arvense), punt- fied as a backyard wildlife habitat may have a brush
turevine (Tribulus terrestris), cocklebur (Xambium pile not to exceed eight (8) feet by eight (8) feet wide
strumarium) and any other type of noxious weeds by three(3)feet in height if it is permitted by the terms
designated by the Colorado Weed Law or Latimer of the backyard wildlife habitat certification or the
County Weed District. natural areas certification.
Xeriscape certification shall mean certification by (b) An owner of a tract of land that has been certi-
the Water Utility under its xeriscape program for the fied as a xeriscape is permitted to have grasses grow-
recognition of landscapes that implement the princi. ing in excess of six (6) inches in height. This variance
ples of xeriscape. will be limited to the grass species identified with the
(Code 1972, § 79-6;Ord. No. 184, 1986, § 1(79-6), 11- certification document.
18-86; Ord. No. 89, 1994, § 3, 6-21-94; Ord. No. 155,
1997,§2, 114-97) (c) An owner of a tract of land that has been certi-
Cross reference—Definitions and rule of construction generally,§
1-2. fied as a natural area is permitted to have grasses
growing in excess of twelve (12) inches high. This
Sec 20-42. Nuisance declared. variance will be limited to the grass species and areas
of the site identified with the certification document.
(a) All weeds,brush piles, unmowed grasses, refuse (Ord. No. 184, 1986, § 2(79-7(E)), 11-18-86; Ord. No.
and rubbish on a property within the city are hereby 89, 1994, §3, 6-21-94)
declared to be a nuisance and a menace to the health
and safety of the inhabitants of the city.
Supp.No.48 1321
§2044 FORT COLUNS CODE
Sec.20-44. Removal procedure; assessment of re- provided in subparagraph (a), the removal may be
moval costs. done by the city, either by city personnel or by private
contractors, as the City Manager shall determine. In
(a) The City Manager is authorized and directed to the event of such removal by the city, the cost, in-
give notice to any owner whose property, open area, cluding inspection,removal of obstructions,if any,the
ditch or right-of-way is being kept or maintained in cost of any grading or sloping necessary to protect the
violation of the provisions of this Article or Article II public safety, other incidental costs in connection
of Chapter 12 regarding rubbish and refuse. Such no- therewith, and an amount not to exceed twenty (20)
tice shall be deposited in the United States mail, ad- percent of the costs for carrying charges and admini-
dressed.to the owner of record at the address on the stration shall be assessed against the offending prop-
assessment roll of the Latimer County Assessor or erty, open area, ditch or right-of-way and the owner
may be served upon such person personally. The no- thereof,pursuant to the applicable provisions of Chap-
tice shall state that if the offending weeds and/or ter 22 pertaining to public improvement assessments.
grasses are not cut or eradicated (as applicable), With respect to rubbish only, if.the owner has re-
and/or the offending brush pile, refuse and/or rubbish quested a hearing pursuant to the provisions of subsec-
are not removed, from such property, open area, ditch tion (a), removal of the rubbish may be accomplished
or right-of-way on or before five(5)days from the date as provided in this subparagraph(b)provided, further,
of such notice, it will be done by the city and the cost, that such material removed shall be stored by the city
including the cost of inspection, the cost of any grad. until such time as the City Manager (or any lawfully
ing or sloping necessary to protect the public safety authorized designee of the City Manager) holds the
and other incidental costs in connection therewith and hearing and determines, based upon the evidence pre-
an amount not to exceed twenty (20) percent of the sented by the owner and the staff of the city, whether
costs for carrying charges and costs of administration the nuisance should have been declared and the rub-
will be charged against the property, open area, ditch bish removed. If the City Manager determines that the
or right-of-way. With respect to rubbish only, the no- declaration of nuisance and removal is proper, then
tice shall also state that if said owner desires a hearing the rubbish shall be destroyed or otherwise disposed of
before the City Manager to contest the declaration of by the city, and the additional costs of storage shall be
nuisance and/or the removal, such owner shall re- assessed together with all other costs, as provided
quest such hearing within five (5) days of mailing of above. If the City Manager determines that the decla-
the notice and shall further state that if a request for ration of nuisance and removal was improper, then
such hearing is made, the city will remove the rubbish the material shall be returned to the owner, and no
in accordance with subparagraph (b) below and will costs shall be assessed.
store the material pending the holding of the hearing
and the determination therefrom. The notice shall (c) Such assessment shall be a lien in the several
further state that if no request for such hearing is amounts assessed against each property, open area,
timely filed, the city will remove the rubbish in accor- ditch or right-of-way until paid and shall have priority
dance with subparagraph (b) below and shall destroy over all other liens,except general taxes and prior spe-
or otherwise dispose of the rubbish. cial assessment liens. If any such assessment is not
paid within thirty (30) days after it has been certified
(b) If the property, open area, ditch or right-of-way to the Financial Officer by the City Manager and
has not been brought into compliance with this Article billed by the Financial Officer to the owner by deposit
within five (5) days from the date of the notice, and in the United States mail addressed to the owner of
(with respect to rubbish only) if the owner has not record at the address as shown on the tax rolls, and
requested a hearing before the City Manager to con- any agents, representatives or occupants as may be
test the declaration of nuisance and/or the removal as known, the Financial Officer is hereby authorized
•
Supp.No.48 1322
NUISANCES 120-61
to certify to the county Treasurer the list of delinquent and notice thereof and the proceedings shall otherwise
assessments, giving the name of the owner as it ap- be in accordance with the rules and regulations issued
pears of record, the number of the lot and block and by the Director of the Office of Transportation Ser.
the amount of the assessment plus a ten-percent pen- vices. The petitioner shall have the burden of proving
alty. The certification is to be the same in substance that a revision or modification is necessary in order to
and in form as required for the certification of other preserve substantial justice.
taxes.The county Treasurer upon receipt of such certi-
fied list is hereby authorized to place it upon the tax (c) Within thirty(30)days after the filing of the pe.
list for the current year and to collect the assessment tition, the Director of the Office of Transportation
in the same manner as general property taxes are col. Services shall make findings of fact based upon all
lected, together with any charges as may by law be relevant information and shall make a decision based
made by the county Treasurer and all laws of the state upon such findings and, if appropriate, modify such
for the assessment and collection of general taxes, in- assessment accordingly. Such decision shall be con-
cluding the laws for the sale of property for taxes, and sidered a final order of the Director of the Office of
the redemption thereof shall apply to and have full Transportation Services.
force and effect for the collection of all such assess-
ments. Notwithstanding the foregoing,if the offending (d) Every decision of the Director of the Office of
Property, open area, ditch or right-of-way is not sub- Transportation Services shall be in writing, and notice
ject to taxation, the Financial Officer may elect alter. thereof shall be mailed to or served upon the peti.
native means to collect the amounts due pursuant to tioner within fourteen (14) days from the date of such
this Article,including the commencement of an action decision. Service by certified mail, return receipt re-
at law or in equity and, after judgment, pursue such quested, shall be conclusive evidence of service for the
remedies as are provided by law. purpose of this Article.
(Ord. No. 184, 1986, § 2(79-8), 11-18-86; Ord. No. (Ord. No. 141, 1990, § 3, 1-15-91; Ord. No. 8, 1996, §
141, 1990, §§ 1, 2, 1-15-91; Ord. No. 89, 1994, § 3[4], 4, 2-20-96)
6-21-94; Ord.No. 156, 1997, 11-4-97)
Secs.20-46-20-60. Reserved.
Sec.20-45. Administrative review of assessment.
(a) Any owner who disputes the amount of such as- ARTICLE W. DIRT,DEBRIS AND
sessment made against such owner's property may, CONSTRUCTION WASTE'
within thirty (30) days of receipt of notice of such as-
sessment, petition the Director of the Office of Trans-
portation Services for a revision or modification of Sec.20-61. Definitions.
such assessment.
The following words, terms and phrases, when used
(b) Such petition shall be in writing,delivered to the in this Article, shall have the meanings ascribed to
City Clerk, and the facts and figures submitted shall be them in this Section:
submitted under oath either in writing or orally at a
hearing scheduled by the Director of the Office of City Manager shall mean the City Manager or the
Transportation Services. Unless the petition specifi- designated representative of the City Manager.
cally requests a hearing, the Director of the Office of Din, debris, construction waste shall mean common
Transportation Services shall make his or her deter- earth, salvage material, refuse
mination based upon the facts submitted in writing garbage, rubbish -
with the petition and the facts presented by the city other waste materials associated with ct resulting di-
staff. The hearing, if any, shall take place in the city; redly or indirectly from construction activity or proc-
ess.
'Cross reference—Streets and sidewalks,Ch.24.
Supp.No.48 1323
CITY OF FORT COLLINS
XERISCAPE
CERTIFICATION PROGRAM
September 7, 1994
City of Fort Collins .
Water Utility
700 Wood Street
P.O. Box 580
• Fort Collins, CO 80522
221-6681
i�
CITY OF FORT COLLINS
XERISCAPE
CERTIFICATION PROGRAM
WHAT IS THE PURPOSE OF THE XERISCAPE CERTIFICATION PRO RAMS
The City of Fort Collins created the Xeriscape Certification Program as a component of its
water demand management policy. The purpose of the program is to recognize and encourage
water-conserving landscapes.
WHAT ARE THE BENEFITS OF RECEIVING THE CERTIFICATION?
Property owners receiving the Xeriscape Certification can feel proud that they are being
ecologically responsible and contributing to our community's water conservation goals. As an
additional benefit for certain cases, certified xeriscapes will receive a conditional variance from
the city code that regulates the height of grasses.
WHO QUALIFIES TO APPLY FOR THE CERTIFICATION?
All properties are qualified to apply for certification, including residential, commercial,
industrial, institutional, and public.
WHAT ARE THE CRITERIA USED FOR THE CERTIFICATION?
The applicant landscape must demonstrate that the following principles of xeriscape have been
substantially applied.
1. Soil improvement.
A minimum of three cubic yards of organic material per 1000 square feet was applied to
the landscaping soil, except when counter-productive to the plants installed, such as with
some native plants.
2. Plants' needs matched to micro-climates.
Differing solar exposures and temperatures of portions of the site are compatible with the
growing requirements of the plants located there.
3. Reduced turf area.
High water-requiring turfgrass is limited in scope, and kept to areas used for play or
entertainment, or for a unifying plane balanced with other lower water-requiring plants.
4. Use of mulch in planting beds.
Planting beds are mulched with several inches of either organic or inorganic mulches. For
aesthetic reasons, a minimum of 50% of the area in mulch is covered by plant material
within 5 years of planting. If it is less than five years since planting, a best estimate will
be made by the administrator.
5. Emphasis on lower water-requiring plants.
Although a small amount of high water-requiring plants is permissible, the net water
requirements of the landscape are considered to be low or very low.
6. Good maintenance.
The landscape is maintained with practices that further water conservation. For example,
organic mulches are replenished as they decay, crowded shrubs and perennials are thinned
out, and turfgrass is aerated once per year.
7. Efficient irrigation.
Whether performed manually with a hose and sprinkler or automatically with an
underground sprinkler system, the landscape is irrigated according to the water
requirements of the plants, and uniformly applied.
8. Visual Appeal.
A certified xeriscape needs to be visually appealing for two reasons. First, by definition
xeriscape is water-conserving nndi attractive landscaping. Second, certifying a water-
conserving landscape that few people find attractive would be counter-productive to the
program's objective of promoting xeriscape. However, there are also two good reasons
for loosely applying this evaluation. First, beauty is a very subjective term. And second,
a primary goal of this program is to demonstrate that water-conserving landscapes can be
visually diverse, and that xeriscape is not a single "style". Therefore, applicant landscapes
will be rated on their visual appeal, but in a relaxed manner.
WHAT ARE THE CRITERIA USED FOR GRANTING A GRASS HEI HT VARIANCE?
See criteria below
WHAT ARE THE LIMITATIONS AND OBLIGATIONS ASSOCIATED WITH THE
CERTIFICATION?
1. For fire safety, areas of warm-season grasses shall be suitably-buffered from buildings and
wood fences. It is also advisable that these areas should be mowed, and the clippings
collected, after the grass has gone dormant in the fall.
2. The variance for grass height applies only to the grass species and particular location
• 2
� 1
identified on the certificate documents.
3. The certificate is subject to revocation if the Xeriscape Certification Program administrator
determines that the principles of Xeriscape are no longer being substantially met by the
landscape and its owners.
WHAT ARE THE APPLICATION STEPS?
1. Applicant mails a completed application to: Xeriscape Certification Program, Water
Utility, P.O. Box 580, Fort Collins, CO 80522. Alternatively, the application can be
hand-delivered to the Water Utility, located at 700 Wood Street.
2. The program administrator contacts the applicant by phone to arrange a time for a site
visit.
3. The program administrator makes the site visit to judge it relative to the criteria stated
above.
4. The program administrator makes a determination as to whether or not the site is qualified
for certification, and notifies the applicant by mail of the result. If the site qualifies, the
applicant will receive a certificate for documentation, along with an explanation of any
exemption from city code on grass height, limitations, and obligations.
3
. CITY OF FORT COLLINS
XERISCAPE
CERTIFICATION PROGRAM
GRASS HEIGHT VARIANCE CRITERIA
Rev. 9n/94
1. Is the area water-conserving?
As:a+mimmum an "ra soluteaequtrement,mthe consider ;azea;mus e< a e ervm
a. What are the water requirements of the grasses and otherplants?
s ap roxunate, ui e m rases: 'ro ose " or tnc usion are"those" f" i Y
gro e n an eco p c z ne r o annua = a a th, nc u g booth
na ra rect t ip an un atio o 0 nc a Grasses u likel : u t
oul c u e u : oC: eces e. rmtte u gras zee"grams i
]zees em , i e-oa , an anpus ea rase o exc u e,a"casetof
someone, anhng arrance,#'r mea ow gar en a : s com ose of,mid- an t lI
grasses andawild oWdrs thats. equue sigmficantlymorewaa�
b. Are water-efficient irrigation methodspracticed?
This will consist pf:'an assessment ofthe unifotmi ..of;theapp
lid ation and,the"dep of
a
trnga on app Oa 've io e'amount on
• 2. The height of grasses is limited in the City Code out of concern for the five factors listed
below. To what degree will these elements be 'justified concerns for the considered area?
Boths des must weighe the envy ronmenR' and economic-1 a efi the community
from tfi"e" water conservation,�ver'sus the'ossible�costs Js ed._ e o
a. community aesthetics
This criteria carries tce,the',"we'i�ght" o .the others'since tt isia sounportani due'to
betng.pa �ofeefinitioneriscap
1. How com atible is the considered area with a¢ and nearby landscapes?
A one�extreme the.area- bey m:a ne�g borhoo of a efined.
mamc a""dlan"ds,cappe . A =the o er extreme the area cool e.a iacen ' o one;.o
the -.itvc tur'a'-are
2. How many people will potentially be seeing it, as a function of its specific
location and its size?
enum er o people;a ec a : e" ess on ern ov' :Bran
y t
3. What percentage of the people who will be seeing it will consider it to be
• attractive or at least acceptable?
b. production of pollen as an allergen
Acco mgto r.• an- .sz o a, oval-a ler ist �s: ro am a e e
neg i ilile ec on e� ler e o :Go Ims- a ou as o
ou oncetva u u o is ogram em
om are a Dun o se amen o ens a : e
po len1 ed, ozens r ven, un re , iles.. e
un r sa cre es rases u a o rass°,b uegr eoa t
b ues em an eat rases o rass an s.an as wi e
mil o or aCo ns�9LE ore, tt_ practice 'tins o' mo e
c. seed production and the s read of grasses and weeds
n companson o er ee an . s- ee s : ereas avert small. eat om hese
grass wa mg eazb a ar ens.ri o e ersmce�xem eas�will�no
be ow ere or o sk o ee s-wr the area: om to< eed eref e
3t; eco es" Die o n or owner, o contro On
s ray ate onsi tli es sociate = vtth,exem Do S ou tnc ude=an_item
rat .to r�ert ee :contra -
d. habitat that attracts undesirable insects, rodents, and snakes
Several quesnons to,help assess this item (1)°Is there enoy "wild".landscape n bear y
atthese"animals Dula e� ea " an a �`(2Is there s�o t e� earbywild�
landscap�eaa these anuna s_cou n t exist, even with the,consi eredazea 3) Could
w-
the potentia]"problem uvitfi these anuna s be mi gated m some way;suc as eepmg
tl a area°cleaner no.b`Iushptl�es garbage 'etc.- or'ccr6ati a nos re mamcur 'borde
around ns�dered area so t is not contiguous to a 1azgerTwild"-areal (4 Aie`ihe
n ky<.= ,
anunals m_question�ashght nwsance, tke field micean rranonal f ar,Eke garter
_
snakes,Yor areal. eat ke„rattles
e. fire hazard
Will there be a laige amount'of"fuels"eared bythe drygrass'in the fall and wm'r?
Is the;grass near structures tfiat"coul . "ur ?What is the relative chance of ti getang
ignited by a cigarette or othe_ _r mead
3. How "mowable" is the considered area?
f IAs mowab a re tx ess_ usti8ca ion forr antinga w_ance:an
a. Would mowing harm the articular grass species?
A""r°buffalograss la woul aactually be im3iove'b "occ tsa onal mowing -space
oul ,ca se to thic en u Isom w a lue ram- grass rho ver does note a"and
e o n �deoa sand' 'ttle uestem°are eves ore" ess
c ose
b. Would it be difficult to mow the grass without harming any other forbs or shrubs in
the area?
2
• 4. Where does the considered area fall on the lawn vs. ornamental garden continuum?
ere & orF usu icatt n or re ulna '_Mow
_mg f a a n= e e n
plan ed' i wa er co ervm amass, than; ere- s„noregmn11g, o, q
that�se a re as an orn�m ngta ardenvh ere
heasssas iu . nee emen on
or n
_U1bL"MUM
5. How large is the considered area?
e maler�; a:ar ess� econcern�a 'out a ahvee�mpacts_from_eranUn avanance
6. What are the social factors of this case? If there are disagreements, are there possible
compromises?
a. What are the landscape owner's objectives for the landscape?
b. If there are neighbors opposed to it, what are their reasons?
c. Can any of the five possible negative impacts be mitigated with a mutually-acceptable
approach?
CONCLUSIONS
CERTIFICATION: Yes No
If "yes", conditions piaced on certification. If "no", reasons for denial.
GRASS HEIGHT VARIANCE EVALUATION:
PORTION OF LANDSCAPE BEING EVALUATED:
3
Memorandum
To: Laurie D'Audney, Fort Collins Xeriscape Certification Program
From: Earle and Maxine Horton
Date: September 29, 1999
Re: Application for Xeriscape Certification/Grass Height Variance
Accompanying this memorandum is our application form under the City of Fort Collins
Xeriscape Certification program. We landscaped our Fort Collins residential property using
natural gardening principles which we had learned through a lifetime of gardening experience,
reading, and observation of nature. We were then informed by the Health and Safety Office of
the Streets Department of the City that our landscaping violates a City ordinance governing
grass height. The Health and Safety Office suggested that we might qualify for a xeriscape
variance, and suggested that we apply for one. We believe that the City lacks the authority to
regulate this sort of activity, so we submit this application under protest. Nevertheless, we
hope that you will grant us a certification and variance so that we can continue to do as we
• have been doing.
We ask that you consider this memo a supplement to our application. The reason for this is
that there are several areas where natural gardening as we practice it might seem to deviate
from the published principles of xeriscape. It is our hope that reading the memo will convince
you that our goals coincide with the goals of your Xeriscape program, and might even go
beyond them.
In reviewing your application materials, it is evident that the program presupposes that
persons will modify existing landscapes from conventional, artificially cropped turf grass
systems to part xeriscape/part artificial turf grass, or that they will, in new landscaping, also
do a part xeriscape/part artificial scheme. Much of the wording of the application and the
explanatory materials indicates that this is so. We wish to point out that our property is not
now, nor has it ever been, landscaped in an artificial turf grass method, and it is not our
intention or wish to do so, even in part. We believe in natural landscaping which alters the
condition of the soil and the land as little as possible from its original condition. We believe in
water conservation, which is also declared to be an important policy of the City of Fort
Collins. We believe in using dangerous pollutants like gasoline, artificial fertilizer, and even
organic fertilizer no more than necessary. We believe in using plants which are native or
compatible with native species in their establishment, growth, and water use characteristics.
7
Because of our very meticulous process of selecting and establishing plants on our property,
we request your due consideration of what we are attempting to do and the fact that it very
greatly fishers the intent and purposes of the xeriscape program. This program and the
interpretation by City representatives of its requisites, should be cognizant and
accommodating of what we are doing, which is in its essence the truest form of xeriscape.
The grass species for which we are seeking a variance are blue grama grass(Bouteloua
gracilis), bottlebrush squirreltail(Sitanion hystrix), buffalo grass(Buchloe dactyloides),
foxtail barley(Hordeum jubatum), galleta(Hilaria jamesii), Indian ricegrass(Oryzopsis
hymenoides),tall fescue(Festuca arundinacea), little bluestem(Andropogon scoparius),
meadow barley(Hordeum brachyantherum),purple three-awn(Aristida purpurea), sheep
fescue (Festuca ovina), sideoats grams(Bouteloua curtipendula), western wheat grass
(Agropyron smithii), wild oat(A venafatua), annual ryegrass(Lolium temulentum), and wheat
(Triticum xstivum). We will not irrigate any of these species during next year's growing
season. Your grass height variance criteria mention that a variance is usually only granted for
drought tolerant species such as are found in an upland shortgrass prairie. We believe that all
of the species listed here are capable of growing in Fort Collins without irrigation, even
though some of them are usually classified as midgrasses. In particular, wheat, ryegrass, wild
oat, and Indian ricegrass are now thriving in areas where we have either poor drainage or
extra water from our roof drains. We also have isolated patches of Dutch white clover, not a
dryland species, thriving without irrigation. At any rate there is no harm in granting a variance
for all the species we have listed, as they will simply die from drought next year if they are not
capable of surviving without irrigation.
Although the application form does not make mention of it, the materials indicate that
evaluation of an applicant's property is done partly according to aesthetics, which the
materials admit is highly subjective. We submit that natural vegetation is of the highest order
aesthetically, and it is only the conditioning of those who grew up in Twentieth Century turf
grass culture that would suggest otherwise. That culture is flawed, from an aesthetic
viewpoint in that artificially cropped single species sod is essentially monotonous, from an
environmental viewpoint in that it necessitates vast alteration of the earth's natural condition,
and from a spiritual viewpoint in that it furthers the malignant notion that humankind and
Nature are independent. It is also wasteful economically both in the time, effort, and money
required to establish it, and in the time, effort, and pollution involved in maintaining it. Our
natural plantings are attractive,they are variegated in color and shape, they offer blooming
and seeding at different times throughout the growing season in an intentional and interesting
sequencing, and they grow to a variety of heights which is interesting and very attractive. A
short walk through the Pawnee National Grasslands or one of the natural areas maintained by
the City will convince any one possessing an objective mind of these facts without question.
There is, ultimately, the greatest beauty in what we are trying to achieve, which is simply a
return to the natural condition of beautiful Colorado. We specifically desire and prize the
adornment to our property that this landscaping provides, and it is very ornamental as that
2
term is defined in dictionaries. A true semi-arid landscape is most beautiful, unless viewed
with a myopic eye that rejects everything but mindless conformity to current fashion.
Our plantings offer no offensive odors, they produce only negligible quantities of pollens or
wind borne seeds, and they provide natural food and shelter for native birds. There is very
little danger from undesirable rodents, insects, or snakes. We use only drought tolerant plants
and natural water levels. The mass of plant material produced this way is much less than
when irrigation is used, and the plants are much less attractive to harmful rodents and insects.
When these kinds of plants are allowed to cure naturally while standing they become, in fact,
excellent mulch. The same argument applies to fire hazard. The fire hazard from dried plant
materials depends upon the total mass of plant material, not the height.
We live in a two year old subdivision containing 106 single family residences. This
subdivision is bounded on one side by a City park and natural area containing a pond and
wetlands. This includes a large area of six foot high rushes and other natural-looking plants.
On another side is a nine acre tract of undeveloped land used for hay, two lots away from our
property. A large variety of native and drought tolerant grasses appear to be growing there,
as well as many large rabbitbrush bushes and native willows. Many of our neighbors have
complimented us on the appearance of our property and landscaping, which has not even
attained the mature beauty that we know it will have after two or three growing seasons. The
people who have spoken to us about it have had only positive things to say. One person
complained to the City about our property, anonymously. If there is some negative impact on
this person from our activity we have no way of accommodating his or her concerns, since we
don't have any idea what these might be.
Please call to schedule a time to inspect our property when we can both be here to show you
what we have done with the property. The best time to call is after 1 PM on weekdays. We
should do this soon, before everything dies off for the winter.
Thank you for your consideration.
3
CITY OF FORT COLLIM
. XERMAPE CERTIFICATION
APPLICATION FORM
SIZE ADDRESS: 2750 Pleasant Valley Road, Fort Collins, CO
TYPE OF PROPERTY: x raideatial _COMMICWWOMW _school _Pubes
LS THE SIZE W11EIIN THE PORT COLUNS CITY LII6n= X Yes _No
NAME OF APPLICANI(S):Farle and Maxine+:Hoftai
MAIMING ADDRESS (if ddlbrm f:om site addnm):
PHONE (Wort) 970 416 1023 (bppx)
DATE OF APPLICATION SUBMl'1TAL: September 30, 1999
SOLI.DMOV>s1V W DescrMe What has bom dace in the last 10 years to ittr ww the soil
in your landacapc. Include the type of organic matter addod, the amount, the size of the area it
. Was VOW to. how it Was bompmumL and When it Was done.
Develoaer removed avximatel six feet of soil, leaving mixed sand, gravel
"' -ter• We u 8 an o hares oT�s .raw, 20 cubic ee o an pea
moos rvl carol _ needed
Final �t of lot was done in July of 1998.
r «. moss was used when pan
cue am iici DQ ni tmrnn fi xi ntr nl antc t0 i nCL'BEl�a thn �i 1'S nitrogen Content
MAWIENANCE PRACTICES. Respond to the fouowmg quest ns regatdmg
IDat Oe if I ,r es that fatfim Wafer aomavadon
Ate�Im>khn repkeaishod as dwy-ddx}R.Heavy use of mulch inhibits the
natural growth that we are trying to encourage we use some mulch to help
new shrubs beeane established, and rely on leaf litter for replacement.
To a rmanable deg=,do you comd your landscape disease, hoax and weed p vbb ms?
What isyoot geaaal appmach.and what type of conhols do you e�]p�j
We pull'or cut invasive weeds by hand. We allow native (orbs and natural-
ized non-native volunteers to mow where they will We believe that this
enhances the natural character of our landscaping.
We have sufficient Variety Variwty of grasses ana forbswe ieve
we will have serious disease or pest problems.
Is your mower blade loept is P OM O&W) We don't have a mower. We use
a string trimmer for keeping walks and M_easAzburid 5511cangs clear.
r ,
r
Is Yaw tueigrass mowed ollea estongh that no more than 1/3 of the led blade is removed? '
Grass height can be controlled adequately'in our semi-arid climate by ,
irrjcgnfjon. . We have found
that we get about six inches of leaf , in a season.
Do you s ers a yeas:tarfgtass? now area?
While aeration may be necessary for thatch-producing species like Kentucky
b3iit actuall increases water demand. We do not understand why this
question is here. Grass grown with reduced irrigation does not
Due 3'°0rrSMussuplej f UTMff PmBM• What type of fexi,7ixer(s)do you use? For
fer do you°�"�%or.moo �! 1f orpoic.what type? Wirt rate of
aPPacation(if kw w4 approz• pounds of ttinogM applied per 1000 Separe feet pet
year)? We use nitrogen fixing plan to iivaease the nitrogen content of t1Se
soil _ judging from the fi owth c dyCOnaILS enD
mineral content to sustain native Dlants. Since we do not plant to remove
dead plant material err mow on a bar s, we 1"L. depletee soi
of rni}ri an}a -e h-.�q mn.,an}{p�, 1 laryicrani nQ
MMGAnON PRACTICIs,
Do you irrigate your landscape ns mrally with a hose and aprintler,or do you use an automatic
underground sprialver system? watering can to establish shrubs
Describe you WI practices. For Ctample.how often you water, or if not by a am
sc beI bow do you decide whew to water? What is the approximate depth of water that you
ggqY at eac]r irrigation? out first
in order to pure so that we would be assured of adequate
erosion ooatrol. We wil not water a next year, excep or new shrubs
We hPlieve that the maiosity of our landscaoina is sufficiently established•
so as to need no further irrigation.
Are You SP°cifidt}'wanting a grass beight variaox from the City Cade for a portion of your
landscape? If so,what pordou? We are requesting a variance for the entire
nrDnI 1 rxal —__i__
Would you allow the public to visit your Site can a limited basis with your approval for each
visit? (!'lot— A wyes'response h not aooeuuY for cutificratim) _Yea -A_No
a gape piles for the site,pkM hKj ade a as"of it will,skis appYcaliae.
man Sh Saar SSO,Fart"aCeIN appacutift to: Ca"Scodoa Pr,��Water tm ftv P.O.
SOSU,or lued.de lke r it 20 00 Water tMMY at 700 Wad
Utilities
light& power • stormivatcr • wastewater • water
City of Fort Collins
December 9, 1999
Earle &Maxine Horton
2750 Pleasant Valley Rd.
Fort Collins, CO 80521
Dear Earle and Maxine:
I apologize that my response to your September 29, 1999 application for a
Xeriscape certification and Grass Height variance has taken so long. It has been a
difficult decision.
My preliminary evaluation found your landscape to satisfy many of the criteria for
certification. Since by definition Xeriscape is not only water conserving, but also
attractive, I needed to consider its visual appeal. As you know, I solicited letters
from ten of your nearby neighbors to evaluate the neighborhood reaction and
attractiveness. The six responses that I received made it clear that your landscape
does not meet the "attractiveness" criteria. Therefore, your request for a Xeriscape
certification is hereby denied.
The unanimous opinion of the letters was that your landscaping is not attractive, it
looks uncared for and detracts from the beauty of the neighborhood. Leaving your
grasses unmowed is not acceptable to your neighbors as doing so creates the
impression of a yard full of weeds.
While the City encourages Xeriscape as a means of conserving water, it is equally
important that it's attractive and compatible with the values of the community. For
a landscape to be awarded a Xeriscape certification, it should have a well thought
out design and look maintained.
Denial of your request means you must comply with the City's grass height
ordinance. I'm enclosing my evaluation and an article that identifies some design
strategies that might be helpful should you wish to modify your landscape.
Sincerely,
Laurie D'Audney
Water Conservation Specialist
cc: Beth Sowder, Code Compliance Inspector
0
700 Wood St. • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970)221-6700 • FAX(970)221-6619 • FAX(970)221-6593 • TDD(970)224.6003
e-mail: utilitiesO ci.fort-collins.co.us • %viv%v.ci.fort-collins.co.us/UTILITIES
City of Fort Collins
Xeriscape Certification
Evaluation
Name of Applicant(s): Earle &Maxine Horton
Site Address: 2750 Pleasant Valley Rd.
Type of Property: Residential
Is the Site within the Fort Collins City Limits? Yes
Considerations
Soil Improvement: Applicant says that the soil was amended before planting was done.
Needs of Plants Matched to Microclimates: Grass and plants seem to be planted in
appropriate areas.
Reduced Turf Area: Much of the area is grass, but not mowed and maintained turf.
Use of Mulch in Planting Beds: Most of the shrubs and trees are not informal planting
beds, but among the grasses.
Emphasis on Lower Water-Requiring Plants: The plants and grasses used at the
property are water conserving species.
Good Maintenance: When the property was first viewed in July, there were quite a few
weeds in the yard. By September, the weeds had been removed. If granted a certification,
it would stipulate that weeds need to be attended to regularly.
Efficient Irrigation: The grasses are low water-using and the applicants state that no
irrigation will be done except for establishing new shrubs.
Attractiveness: Letters were sent to 10 neighbors near the property to evaluate the
attractiveness. The six responses received stated that they did not find the landscaping
attractive.
Xeriscape Certification
Grass Height Variance
Evaluation
Name of Applicant(s): Earle & Maxine Horton
Site Address: 2750 Pleasant Valley Rd.
Applies to Which Portion of Landscape: The entire property.
Considerations
I. Is the area water conserving?
1. Are the water requirements of the grasses 20 inches or less, including natural
precipitation and irrigation.
The grasses planted on the property seem to fit this guideline.
2. Are water-efficient irrigation methods practiced?
According to the application, the landscape has been minimally watered and
watering will be discontinued as plants are established next year.
11. The height of grasses is limited in the City Code out of concern for the five factors
. listed below. To what degree will these elements be justified concerns for the
considered area?
1. Community Aesthetics
a. How compatible is the considered area with adjacent and nearby landscapes?
The adjacent homes are landscaped with bluegrass lawns and planting beds.
b. How many people will potentially be seeing it, as a function of its specific
location and its size?
This landscape is near the end of a cul-de-sac and will mainly be seen by the
adjacent neighbors.
c. What percentage of the people who will be seeing it will consider it attractive
or at least acceptable?
The six letters received from nearby neighbors made it clear that they did not
find the landscaping attractive.
2. Production of pollen as an allergen
The amount of grass pollen that would be produced by this landscape is
negligible.
3. Seed production and the spread of grasses and weeds
There is a very small threat that the grasses in this yard will invade nearby lawns
and gardens. However, it is mandatory for the owner to control any weeds.
. 4. Habitat that attracts undesirable insects, rodents, and snakes
Some creatures may find their way into the yard from the nearby open space, but
probably nothing threatening.
5. Fire hazard
This landscape doesn't appear to be a signif cant fire hazard.
III. How mowable is the considered area?
1. Would mowing harm the particular grass species?
Buffalograss would be improved by an occasional mowing, but mowing may harm
sideoats grama and little bluestem. I don't know specifically about all the other
species.
2. Would it be difficult to mow the grass without harming any other forbs
(wildflowers) or shrubs in the area?
The yard would be difficult to mow as there are shrubs and forbs interplanted
among the grasses.
3. Where does the considered area fall on the lawn vs. ornamental garden
continuum?
This landscape tends toward a lawn as opposed to an ornamental garden, but
could best be called a 'prairie."It is almost exclusively water conserving grasses,
with a few shrubs.
4. How large is the considered area?
The entire front and back yards are planted with water conserving grasses and
are being considered for the variance. This large area means more impact from
granting a variance.
5. What are the social factors of this case? If there are disagreements, are there
possible compromises?
a. What are the landscape owner's objectives for the landscape?
The owner's goal is to have a natural landscape that is water conserving and
low maintenance.
b. If there are neighbors opposed to it, what are their reasons?
An anonymous caller complained to the City about the unmowed grass, but
their reasons are unknown. Letters from nearby neighbors stated that the
landscaping looks uncared for and detracts from the beauty of the
neighborhood.
c. Can any of the five possible negative impacts be mitigated with a mutually
acceptable approach?
The negative impact of the landscaping is that it is judged unattractive by the
neighbors. Leaving the grasses unmowed was not acceptable to them because
they felt it created the impression of a yard full of weeds. Mowing the grasses
would probably solicit a more attractive reaction from the neighbors.
s WHEN SHOWN PLANT.
INGS OF A FRONT YARD.
i MOST SU31JRBANITES
a
VOTED THUMAS•UP ON
Ail
1. THE CONVENTIONAL
LAWN, DOWN ON
:. THE WEEDY LAWN. UP
ON a. A PRAIRIE GARDEN
i
5 OVER HALF THE YARD.
.�- 6 AND DOWN ON 4. A
PRAIRIE GARDEN OVER
♦ THREE-QUARTERS OF IT.
i .
HIGHLY AT ACTIVE6�
f r ,
•
that messiness is in a clearly of us who wish to break the
Suburban
identified nature reserve- mowing habit,and make .. .
Strate QI es but not In our neighbor's our landscapes a little more • .
1•mnt.-ard.There.it•s often ecological.But there are ae-
H Ov: LI TTL c LA%%♦ :A N seen as a sign of neglect. ceptable ways to grog wild,
YOC JET AWAY y. -H• In .America.neat..v.ierlc according to Prolissor Joan ..{;.
card:represent neighbt)rh- \assauer of the University V .
ness,work,and pride. of.Minnesota. .,. .... G
For the typical suburban- With support from the .. . • .. A
ite,it•s not always easy to USDA Forest Service Ur- R
distinguish the diversity of a ban Forestry Project, F r D
backyard prairie or wild- \assauer created
a E
Nature in the Flower garden front a latcn digital images of n
IS
raw is mess-. She chw• n•t gone to.seeds.That judg• several different
rake dead leases or Clean up mental attitude can pose a says to design,a D
fallen branches. It's Lori if real problem for those front card.She E
•I .s
F
I
G
i N
L.
Tu:i:ngrorwr tomato seedlings mm•hrio the auto/mtrr btold unnyt8—ter oto FA
it
D { 1,
showed the pictures to diversity in a palatable way.
more than 300 suburban. Give it a frame,she says. . by Warren Schultz
ites,roughly 20 percent Mowing a strip alongside
of whom were knowledge- streets and sidewalks shows
able about native plants. care.So does a trimmed R em embranees
Though everyone liked No. hedge and a low stone wall.
3 and disliked No.2 of the Include flowers and trees.
images on the preceding They have almost universal of Lawns Past
page,the ecologically mare appeal.Native plants with
disliked No. 1 and found small blossoms may be
No.4 very attractive.Those combined with big, bright MEDITATIONS ON CUTTING THE GRASS
who had little knowledge of flowers to sell the concept.
ecology preferred No.1 and Signal your intention.
found No.4"too much." Birdhouses and feeders in-
How are we to deal with dicate that you're creating a i
that discrepancy in tote; habitat for songbirds.
Should we throw caution Consider bold patterns. t trust have been an early summer Sammy,sometime
(and seeds)to the wind and Plant trees or flowers in between the spring planting marathon and the harvest lirmy on
risk the wrath of the neigh- rows or crisp curves. the farm.As best I can reap,that would have been the only
bors;Not necessarily, Keep your house and opportunity my dad had time not Only to mow the lawn,but to
sacs Nassauer. For the sub- garage in tip-top shape.In stop and pose for a snapshot with the boys.(that's me on the
yersive suburbanite,she many places,fresh white right,my brother Bert on the lek and my dad,Warr®Sr,in
has identified some design paint is a symbol of neigh- the center,flexing for the arnem)
strategies that present bio- borliness.—Denise Otis When I found this photo in the bottom of a ttvnk at my
mother's house.I could just about feel the sunlight Bashing
WISH
/'S H on my face,smell the freshly cut grass,and hear the roar
YOU U w p of the lawn mower.I could almost feel the mowers handle
Glacier National WERE H vibrating in my hand,and see the clippings flying up and
cl aSoots, bur pars no brlomour or ERE, staining my Keds.With the whirling blades just inches from
e/erwrioos, the snow ms/ts—,rhich j Slwciert anti my toes,I'm sure I felt a little Bared,but a lot safe,because
diflorum le usondr fyrllo a 'so t unrs/ mountain my dad's hand vvu beside mine on the handle.
role centerglacier likes(Elu/r' of for hiShen That may have been the day my inordinate—and now po-
uith there ratite w/d owes. Come Sb%vr r
With the ice
thews spat gran. litiapy incorrect—affeedon for lawn mowing was born.
pni erno�n u chlex p ww eve out
ground turn; munebi for rsfi'llyd 4 Since then,I've read that-Our American love of lawns comes
bulbs w1 and di wp sbr ewr� These bew erizalla from a primal longing foi comfort and safety That since s,
In, bohrd, n bit the
in the process Lrretredineshsmswdau7 rich the human species grew up on the savannas of Africa,every
National pant Service
Ofin, ,t time w e step onto the lawn vv a remember, on some level,
wree those expanses of grass with scattered trees--our home.
And I've heard it theorized that in dark,dangerous me-
dieval Europe,the precursor of the modern lawn was born '
as a pasture for domestic animals surrounding the castle.This
� t cleared area served feudal lords as a protection from sneak attacks.
I don't know:I think my connection with the lawn is a little
less anthropological and;lot more personal.Maybe,like the best
metaphors,the lawn works in mysterious ways,and reverberates
on more than one level.
For whatever reason,whenever 1 conk up the mower and step
into that square of turf,I feel like I'm standing on solid ground.
Yes,the surroundings of my lawns have changed over the
-tears—from the upstate New York farmyard to a soggy moun-
tain arse ut ietheVermont to a tiny Brooklyn postage stamp.Though
everything outride the borders of the lawn maybe different—
. rW"�NM � ..•
7Nwthtawtimwnetm"r"rrwrA..r.A�-..—. ___.._e._.0. r
h..ie R Horton
2750 Pleasant Valley Road
Fort Collins,-CO 80521
. 970 416 1023
January 9, 2000
Wendy Williams
Utilities Deputy General Manager �n
700 Wood Street C� �9�1 `/xv,
Fort Collins, CO 80521 r
Re: Appeal of Rejected Xeriscape Variance Application f
Enclosed: 18,photographs
Cc: Rick Zier(no photos)
Cc: John Duval (no photos)
Cc: Laurie D'Audney (no photos)
Ms. Williams:
This letter is our appeal to our rejected request for a"Xeriscape variance" for our Fort Collins
residential property.
We request that the six letters from our neighbors be excluded from consideration of our
application. These letters were obtained using a promise of confidentiality that is legally and
• ethically suspect. This casts doubt on the validity of the letters' contents, as well your right to
use or even possess the letters.
We will not comment on those fragments of text that we have been sent. We do not respond
to anonymous complaints, whether obtained legally or not. Further, we do not believe that
any of our neighbors has legal standing to challenge what we do on our property.
We do not practice Xeriscape as it is promoted by the Fort Collins Water Utility. Our
landscaping is an example of"Deep Ecology," which is a landscaping style, a moral
philosophy and according to some, a religion. It is, in any event, our chosen way of life. We
believe that the constitutions of Colorado and the United States give us the right to-practice
this way of life on our own property, right up to the property line. If necessary, we will apply
to the courts to establish this right.
You may choose to grant us a Xeriscape certification, even though we do not strictly meet all
of your requirements. Where are several reasons you might do this:
Xeriscape is a new and experimental style of landscaping, which must allow for considerable
variation in how it is implemented.
It is apparent from the landscaping that goes into new subdivisions within the city that efforts
by the city to promote water conservation are either ineffectual or non-existent. Conspicuous
• is the lack of support extended by the city to those who would attempt any kind of natural
landscaping. We suggest that the Water Utility might do more to promote water conservation
i
by loosening the requirements for Xeriscape certification, and defending natural landscapers
from those of their neighbors who believe that mindless conformity is a civic virtue.
You may wish to spare the city the expense of a lawsuit. We believe that the existing grass
height control ordinance violates several of our constitutional rights, and that we may be able
to obtain a court order blocking its enforcement throughout-the city.
Bad press could result if you reject our appeal when the Coloradoan finds out that the city
does not support and defend cultural diversity as it so often claims to do. Rather, it could
appear that many people-in city government actually hate diversity, hate freedom, and hate
nature. Our neighbors have had the good fortune to live near a family that cherishes these
virtues. If they choose not to be-grateful focthis opportunity, that is unfortunate.
We consider wheat(Triticum aestivum)to be an essential part of our landscaping, and an
inseparable part of our application. -It has spiritual significance for me personally, and
considerable ornamental value. If you do not allow us to grow wheat to its mature height, in
our front yard, then you must reject the application.
We do not intend to mow any of the vegetation on our property, ever. This practice violates
the principles of Deep Ecology. We would consider an exception if a hazard such as fire
danger were to develop. This is extremely unlikely since we do not irrigate. Without
supplemental irrigation the plant material mass and hence the fire load of our landscaping is
extremely low, possibly lower than that of our neighbors' conventional lawns.
Laurie did not take advantage of our invitation to visit our property with us. It appears,
however, that she did visit the neighborhood and interrogate some of our neighbors. We
extend the same invitation to you, although this is perhaps not the best time of year for
viewing a prairie landscape. Many people feel, however, that dried prairie grasses and
wildflowers have a subtle beauty that is most apparent in winter. If you do not choose to
come here, we include some photographs of our property for your consideration.
Please let us know in a timely manner if our appeal is granted.
Thank you for considering this appeal.
Sincerely,
t,LI
Earle R. Horton
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•EDAW INC February 2, 2000
240 EAST MOUNTAIN AVENUE Ms. Laurie D'Audney
City of Fort Collins
FORT COLLINS OOLORADO Utilities Department
P.O. Box 580
80524 Fort Collins, CO 80522-0550
Re: Xeriscape Certification of 2750 Pleasant Valley Road
TEL 970 484 6073
Dear Laurie:
FAX 970 484 8518
As you have requested, I am enclosing a resume summarizing my experience with
W W W °°°" `° design of xeriscape landscapes and my opinion regarding the certification of the above
landscape. This Jpinloii is given freely an a community service and relates only to the
two items in the program you asked me to evaluate, i.e., Visual Appeal and
Community Aesthetics.
Visual Appeal
The landscape in question is primarily a mixed grassland composed of native grasses
and forbs. I observed the site in January of 2000 during dormancy. It was not fully
established and had some bare ground showing. The area between the curb and the
• sidewalk had recently been worked over and small shrubs planted.
Due to the spotty coverage, unfinished look of the landscape and the lack of any
spatial landscape structure in scale with the residence, I believe that most people
would find this landscape unappealing, especially during the winter months. The
appeal could improve considerably during the growing season and upon complete
establishment.
Community Aesthetics
Adjacent and neighborhood landscapes principally consist of irrigated, mowed lawns
with shade trees, shrubs and defined planting beds. Although adjacent landscapes are
immature and not well developed, they consistently have a managed and groomed
look. The strip between the curb and the sidewalk throughout the block is a
continuous band of mowed, irrigated turf. Lots are small and the number of dwelling
units is high, leaving no room for a graceful transition from one landscape type to
another. This mixed grassland landscape, compared to surrounding landscapes, does
not appear groomed, has no transition and is highly contrasting with its surroundings.
Because of this, I find it to be incompatible.
The owners of the site appear to have invested time and effort to create a self-
sustaining prairie landscape, which is ecologically appropriate to the region but
unfortunately out of context with their neighbors. Were this landscape located
UNITED STATES adjacent to a natural area or on a large site where an adequate transition between
adjacent landscapes could be developed, then the landscape might qualify upon
EUROPE reaching full establishment.
AUSTRALIA
ASIA DESIGN. PLANNING AND ENVIRONMENTS WORLDWIDE
Laurie D . .dney
February 2, 2000
Page 2
In order to encourage the use of xeriscape landscapes, which could fit into this
neighborhood, I have indicated below the kind of actions that I think would help this
property to qualify for the certification program.
• Irrigated, mowed, low water requirement turf in the strip between the curb and the
sidewalk to provide streetscape continuity.
• Mulched plantings of low and medium growing, xeriscape-rated evergreen shrubs
next to adjacent landscapes for transition.
• Mulched foundation plantings of mixed xeriscape-rated shrubs, including
evergreens, at the base of the residence for scale.
• Some xeriscape-rated trees for scale, spatial structure and to blend with the
streetscape structure.
• Use of boulders to reinforce the naturalistic theme.
• Use of a header to make edges of the grassland plantings look trim and neat in
keeping with the neighborhood standard.
• An automatic irrigation system to extend growing seasons, and to assure efficient
application of water for establishment and vigor during drought.
Although I do not feel this property qualifies for xeriscape certification as currently
developed, I have difficulty seeing it declared a nuisance under Section 20-42 of the
Municipal Code based on unmoved grasses, when the question is really one of
neighborhood compatibility.
There are many other landscape options that are permitted, but which would be more
incompatible and less ecologically responsible, such as:
• Paving the site with asphalt or concrete
• A rockscape of gravel and boulders
• A complete planting of shrubs with no turf
• A dense planting of trees
• A desert landscape of cactus and yucca
• Bare ground
Regards,
Herbert R. Schaal, FASLA
PrincipalNice President
Enclosure
DESIGN. PLANNING AND ENVIRONMENTS WORLDWIDE
Herbert R. Schaal, FASLA, Principal
EDAW,.Inc.
Mr. Schaal is a Landscape Architect with over 25 years of experience in a broad range of applications
of the profession, including parks, housing, highways, energy facilities, erosion control and restoration
plans, urban design, commercial facilities, land use plans, botanic gardens, and regional studies. He
specializes in applying sustainable development principles in his work, including use of water
conserving technology, xeriscape principles, on-site wastewater treatment systems using wetlands and
biofilters, use of native and natural materials, enhancement of natural systems, and creation of
microclimate for energy conservation.
He has participated in seminars and workshops specifically addressing xeriscape and sustainable site
development. Twenty-three projects under his direction have won awards from the American Society
of Landscape Architects.
Experience
• Responsible for defining sustainable site design elements for Patagonia's Regional Distribution
Center in Reno, Nevada.
• • Responsible for the sustainable landscape master plan for Mobil Land's Stonegate Development
near Denver, Colorado. The plan prescribes water conservative, biologically diverse, low
maintenance landscape types related to a variety of streetscape, open space and park conditions. A
table of comparative water and maintenance costs is included.
• Responsible for site planning and landscape design, stressing a lifezone approach to planting native
trees, shrubs and grasses; drought-tolerant turf, and water conservation for the 40-acre Rocky
Mountain Energy Company Headquarters (now Ball Corporation) facility in Broomfield. This
project received a CCASLA Merit Award.
• Responsible for the award-winning Xeriscape Demonstration Garden at the Fort Collins City
Hall. This garden shows plant design and installation techniques which conserve water. This
project received a CCASLA Merit Award.
• Responsible for the landscape master plan for 15 miles of interstate freeway through Colorado
Springs, Colorado. The study deals with neighborhoods, community image and landscape zones
related to natural conditions.
• Responsible for the conceptual landscape design for the Northern Colorado Water Conservancy
District's Xeriscape Demonstration Garden in Loveland, Colorado. The plan demonstrates the
use of water conserving plants and xeriscape principles.
• Responsible for the planting design of the all-native garden at the Fort Collins Downtown Parking
Garage.
DESIGN, PLANNING AND ENVIRONMENTS WORLDWIDE
Herbert R. Schaal 2
• Responsible for the landscape design of the arrival garden at North Jefferson County Park. The
garden features a display of low-water requirement grasses and perennials.
• Responsible for design of 1931 Linden Ridge on Linden Lake in Fort Collins, Colorado. The
project included house siting with very strong indoor/outdoor relationships, the design of decks and
creation of all native plantings. The project received a CCASLA Merit Award.
• Responsible for design of Denver Botanic Gardens Alpine Rock Garden, North America's most
ambitious alpine and rock garden, containing over 2,000 plant species. This project received an
ASLA Award of Merit.
• Principal-in-Charge of design of the Loveland Xeriscape Demonstration Garden in Loveland,
Colorado. The garden demonstrates water conservative plans in a variety of applications.
Years of Professional Experience
Twenty-five
Education
B.S., Landscape Architecture, California State Polytechnic College, 1962
M.L.A., State University of New York at Syracuse, 1969
Professional Affiliations
Fellow, American Society of Landscape Architects
Member, American Association of Botanic Gardens and Arboreta
Member, Denver Botanic Gardens
Life Member, The Nature Conservancy
Certified Park Planner, Colorado
Founding Member, Colorado State Parks Foundation
Member, National Parks and Recreation Association
Profession: Landscape Architectural Registrations
Current*/Previous Registrations - #21817 Arizona*, #1486 California*, #194 Colorado, #88 Nevada,
#176 Nebraska*, #164 Oklahoma, #147 Missouri*, Utah*, #LA00152 Wyoming, and #104 National
Council of Landscape Architects Review Board*
Honors and Awards
California State Polytechnic University, Outstanding Graduate in Landscape Architecture, 1962
ASLA Award of Merit, 1972 - Davenport Studies
ASLA Award of Merit, 1974 - Olympia Soda Springs Study
ASLA Award of Merit, 1974 -Tucson Civic Center
Platte River Power Authority Certificate of Merit, 1978
ASLA Award of Honor, 1979 - Creating Land for Tomorrow
W.O.O.D. Architectural Award of Excellence, 1979 - Denver Botanic Gardens
DESIGN. PLANNING AND ENVIRONMENTS WORLDWIDE
. Herbert R. Schaal 3
American Public Power Association Honor Award, 1979 - Platte River Power Authority Headquarters
Colorado Chapter ASLA Merit Award, 1980 - Fort Collins Downtown
ASLA Award of Merit, 1981 - Colorado State Trails Master Plan
ASLA Award of Merit, 1981 - Hewlett-Packard Fort Collins
Associate Landscape Contractors of Colorado Grand Award, 1982 - Rocky Mountain Energy
Company Headquarters
Tucker Award of Excellence, 1983 - Alpine Rock Garden, Denver Botanic Gardens
Colorado Chapter ASLA Award of Honor, 1983 - Alpine Rock Garden, Denver Botanic Gardens
ASLA Award of Merit, 1983 - Alpine Rock Garden, Denver Botanic Gardens
ASLA Award of Merit, 1983 - Rocky Mountain Energy Company Headquarters
Colorado Chapter ASLA President's Award, 1984 - I-25 Pueblo Landscape Master Plan
Colorado Chapter ASLA President's Award, 1985 - Morrison Horticultural Demonstration Center,
Denver Botanic Gardens
Colorado Chapter ASLA Merit Award, 1986 - Fort Collins Xeriscape Garden
Colorado Chapter ASLA Merit Award, 1987 - Grand Canyon Landscape Program
Colorado Chapter ASLA Award of Honor, 1988 - Englewood Greenway
Colorado Chapter ASLA Award of Honor, 1989 - Loveland Civic Center
Colorado Chapter ASLA Award of Honor, 1989 - Addenbrooke Park
Colorado Chapter ASLA Merit Award, 1990 - 1931 Lindenridge
Colorado Chapter ASLA Merit Award, 1990 - I-25 Colorado Springs Landscape Master Plan
Colorado Chapter ASLA Merit Award, 1992 - AmeriFlora '92 Entry
• Colorado Chapter ASLA Merit Award, 1994 - Hewlett-Packard Ledge Garden
Colorado Chapter ASLA Award of Honor, 1994 - Planning the Green Zone
Colorado Chapter ASLA Award for Outstanding Example of Western Planning Ethic, 1994 - Planning
the Green Zone
American Horticultural Therapy Association Award of Honor, 1995 - Morrison Horticultural
Demonstration Center, Denver Botanic Gardens
AIA Denver Chapter Award of Distinction, Unbuilt and Future Projects, 1995 - Dinosaur
Discovery Center, Anderson Mason Dale Architects
Engineering Excellence Award, 1996 — South Platte River Improvement, McLaughlin Water
Engineers
Colorado Chapter ASLA Merit Award, 1997 — Terrace Garden at Red Butte Botanic Garden and
Arboretum
ACEC of Colorado, Engineering Excellence Award, 1998 — Lena Gulch, Taggart Engineering
Associates
ASLA Award of Merit, 1999—Terrace Gardens at Red Butte Garden and Arboretum
Prairie Chapter ASLA Merit Award, 1999 — Hershey Children's Garden, Cleveland Botanical Garden
DESIGN, PLANNING AND ENVIRONMENTS WORLDWIDE
LANDSCAPE ARCHITECT
. 1020 Cunningham Dr., Suite 3, Fort Collins, CO 80526
GRANT REID DESIGNS (970) 226-2963 or CSU (970) 491-7098
Fax (970) 226-0385 • E-mail: gwreid@webaccess.net
Laurie D'Audney February 2, 2000
Utility Education Specialist
City of Fort Collins
Dear Laurie,
In accordance with your request on Jan 27, I am providing you with a written evaluation of the
landscaping at 2750 Pleasant Valley Rd. Fort Collins.
On Monday January 31"I visited the site and walked around the property on all four sides of the
house.
My comments relate specifically to section S. Visual Appeal in the Xeriscape Certification
Criteria, and section 2. a. community aesthetics of the Grass Height Variance Criteria.
Visual Appeal
On a scale of 1-10 comparing the residential xeriscapes I have seen elsewhere in
Colorado, 2750 Pleasant Valley Rd. would rate about 4. It is in my opinion a bit below average
(5) in visual appeal mainly because of weak design and weak use of plant materials and
mulching. It would be improved by the addition of mulched planting beds of 3 to 10 feet in depth
next to the house foundation especially in front. Planted in these beds should be groups of
drought tolerant shrubs and small trees for scale. This would also eliminate grass against the
building (greater fire hazard) and add a diversity of texture and form necessary for an appealing
xeriscape. The mulch could be shredded bark on bare soil or gravel over weed barrier fabric or
both. Curving edges and informal groupings of plants (instead of the existing straight lines)
would be more compatible with the naturalistic character of the ground plane plantings.
A gentler transition from the neighbors bluegrass in front could be achieved by adding a 3
to 4 foot wide meandering strip of varied size rock mulch simulating a dry stream bed. Hand
pulling of the few lingering weed stalks would also help the visual appeal. The strip east of the
front walk between the street walk and curb is pretty bare and needs to have some grasses or
perennial ground cover. Although the front yard appears to have some empty patchy areas right
now, I think that it will fill in over the next two seasons with a small amount of maintenance.
I took half an hour to drive around the immediate neighborhood to look at front yard
landscapes on similar properties. Using the I-10 scale of comparative visual appeal for this
neighborhood only, I would rate 2750 Pleasant Valley Rd. a bit above average at 6. The "scrap
iron" focal element doesn't help in my personal evaluation and it is my guess that it would tend
to annoy the neighbors but this gets into a matter of taste and has little to do with the principles
of xeriscape design.
2. a. community aesthetics
The criteria under this heading have three divisions (1,2,3) all of which I think are poorly
conceived concepts running counter to any sensible water conservation policy. Since I have some
fundamental disagreements with the criteria themselves I do not intend to evaluate the property at
2750 Pleasant Valley Road as it relates to this section but rather, hope the City would take a hard
look at revising the criteria. Here is why.
Part 1 relates to compatibility with adjacent or nearby properties. This criteria is a sure fire
excuse to deny any xeriscape even the best designed and maintained. Most xeriscapes by virtue
of the types of grasses and plants are going to appear very different in comparison to adjacent
irrigated bluegrass lawns. We must accept and embrace this difference especially in the midst of
manicured urban environment if we are to encourage change to water wise landscapes. Why else
did Fort Collins create the Xeriscape Demonstration Garden near the heart of the city? We cannot
expect positive results by only approving a few contexturally comfortable xeriscapes on the
urban fringes next to what is left of the wild prairie or undeveloped foothills.
Part 2 relates to the number of people viewing the xeriscape and indicates a higher chance of
approval when fewer people are affected. You have it backwards! The more people that can be
exposed to residentially applied xeriscape principles the better and thus the greater should be the
chances for approval of such projects.
Part 3 relates to whether or not the people in the community would consider the landscape
attractive. This criteria makes the huge mistake of perpetuating and reinforcing landscape
aesthetic viewpoints which have for the most part been imported from regions of higher rainfall.
If you took a poll of this neighborhood(the only way to assess 2.a.3) my guess is that more than
50% of the people would consider that the landscaping at 2750 is unattractive or at best less
attractive than their own irrigated yard. The city is missing the point here. If we emphasize
approval based on what most people think is attractive (lush, manicured vegetation) then we will
never make inroads into expanding the acceptance of the more environmentally compatible xeric
landscape.
Sincerely,
Grant W. Reid ASLA
Landscape Architect
Jason and Sher 3rewington )
2738 Pleasant Vahtwy
Fort Collins CO, 80521
. Laurie D'Audney
Water Conservation Specialist
City of Fort Collins Utilities
Dear Ms. D'Audney,
Thank you for allowing us to provide our input regarding this matter. I believe that the correct use
of xeriscaping can provide an attractive, water-conserving alternative to conventional
landscaping. I appreciate the City's efforts to foster community awareness with regard to
xeriscaping and water conservation. We ourselves use many water conserving species in our
landscaping beds. However, we also believe that xeriscaping is correctly applied when it is part
of a more comprehensive landscaping plan. I agree that xeriscaping can be properly used in a
landscaping scheme that takes the following into account:
Water Conservation
Aesthetics
Compatibility with surrounding landscaping
Erosion control
Habitat
Moreover, it is my opinion the value of xeriscaping is compromised when it is applied to the entire
extent of a residential property. It is here when such a landscaping plan will fall short of the goals
intended by the Xeriscaping Certification Program. It is here where Earle and Maxine Horton's
landscaping fails.
Attractiveness: From discussions with Mr. Horton and all outward appearances, the goal of the
Horton's lanscaping is to provide a landscape that requires little or no maintenance. The grasses
are allowed to grow to an unacceptable height and are inconsistent with neighboring lawns. One
neighbor of the Horton's said it well: "It looks like the house has been abandoned". The
naturalized flowers are a nice touch, but they are hidden by unkempt overgrowth.
Potential Modifications to the Horton's Landscape Plan: As I stated before, this landscape would
require significant modifications. This type of xeriscaping is best contained in planting beds, not
as a lawn alternative. Naturalized areas can be beneficial, but only when applied in moderation.
The native grasses have not consolidated into a ground cover that would provide adequate
erosion control. The grasses are allowed to grow to an unacceptable height, which might attract
rodents and snakes. This is especially true when wheat is used in the landscaping. Some
species of grasses would actually benefit from mowing where others, being planted in the same
area, would be harmed. This, by design, allows for a landscape where proper maintenance
cannot be done.
Without regard to my opinions about the aesthetic qualities of the Horton's landscaping plan, I
would not be supportive of the City granting a variance to allow the Horton's yard to remain
unmowed. Aesthetics can be debated, but a landscape plan that would provide habitat for
rodents and thus their predators could develop into a safety issue with which the entire
neighborhood would have to contend.
Again, thank you very much for allowing me to provide my input. Feel free to contact me any time
in the future if I can be of any more assistance.
Sincerely,
• Jason Brewington
2738 Pleasant Valley
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November 15, 1999
Laurie D'Awdney
City of Fort Collins
PO Box 589
Fort Collins, CO 80522
Dear Laurie,
Thank you for your recent inquiry regarding Earle and Maxine Horton's application for a
Xeriscape variance at 2750 Pleasant Valley Road. While I respect the Horton's right to
freedom of expression and applaud their water conservation efforts, their style of
landscaping detracts from the overall beauty of our neighborhood. I also strongly believe
that if we were to attempt to sell our home, the current condition of the Horton's yard
would lower our property value and selling price.
• Xeriscaping can be an attractive alternative to traditional landscaping methods. Several
homes throughout Fort Collins feature beautiful Xeriscaping. These property owners are
employing guidelines suggested by the Colorado Nursery Association for Xeriscape. The
CNA has stated that a well designed Xeriscape does not rely on natural precipitation as
the only source of water. Drip systems and/or sprinkler systems are intended to be used
with Xeriscaping. Bark mulch is suggested to help provide form and structure to the
landscaping design as well as retain moisture and control weed growth. Grouping
drought tolerant plants and ornamental rock together in an attractive manner is also
suggested.
The Horton's have chosen to follow few, if any of the guidelines recommended by the
Colorado Nursery Association. While their style of landscaping certainly conserves
water, I would not consider the Horton's yard to be Xeriscaped, rather it has been
"zroscaped". The "prairie" style of landscaping at the Horton property is an ugly hodge-
podge of unkempt grasses and randomly planted scraggly bushes. Every visitor to our
home has made a disparaging remark regarding the abhorrent condition of the Horton's
yard. The Horton's landscaping has actually slightly improved from its condition this
summer. From June to August, the Hortons had knee-high wheat growing in their yard.
The Hortons cut their wheat at the request of the city and it is my understanding that if
granted the Xeriscape variance,the wheat and similar"grasses"will be grown to an
extremely undesirable height of several inches. Granting a variance will only make a
• difficult and trying situation even worse, especially for those homeowners who may be
affected by a loss in property value.
Thank you for the opportunity to present my opinions regarding the landscaping at 2750
Pleasant Valley Road. Aside from my concern regarding their method of landscaping,
the Hortons have been courteous and thoughtful neighbors. The Hortons and myself may
never agree on the best style of landscaping, but I feel that we do agree on the basic
principle of love thy neighbor.
Sincerplyl
ICr stin Beasley
2751 Pleasant Valley Road
223-0206
February 16, 2000
John R. Duval
City Attorney Office
300 LaPorte Avenue
Fort Collins, CO 80521
Dear Mr. Duval:
Thank you for your letter dated February 14, 2000. We appreciate the opportunity to
express our opinion regarding Earle and Maxine Horton's application for a xeriscape
variance. Xeriscaping can be a very attractive alternative to traditional landscaping
methods. Several homes in Fort Collins, including two homes in the Sienna subdivision,
feature beautiful xeriscaping that blends well with neighboring homes. In our opinion,
the Horton yard should not be described as"xeriscaped". The yard is a chaotic
combination of randomly planted bushes and unkempt grasses. To label the yard as
xeriscaped is a disservice to the entire concept of xeriscaping. It is yards such as the
Horton's that turn people off to the idea of water conservation through xeriscaping.
While we respect the Horton's right to freedom of expression, we believe that the
Horton's rights end where our rights begin.
Our foremost concern with the Horton's style of landscaping is its impact on our property
value. When a buyer considers purchasing a home, they weigh many factors such as
location, area schools,proximity to shopping and employment, and of course, the
neighborhood. We both hold current real estate broker licenses with the State of
Colorado. With a combined experience of eight years in real estate, we have frequently
witnessed the negative effect neighboring homes can have on the value and marketability
of a home. Whether it resulted in the home being sold for less than market value or
extended the time between listing and closing, the appearance of neighboring homes does
affect sale.
Beauty is in the eye of the beholder, but few eyes have seen the Horton's yard as
attractive or beautiful. Every visitor to our home has offered an unsolicited remark
disparaging the condition of the Horton yard. Before the Hortons cut their 24 inch
grasses at the request of the City, one visitor to our home questioned us as to why an
abandoned home was located in such a nice and relatively new neighborhood. When we
replied that the home was indeed occupied, our visitor was dumbfounded that a
homeowner would keep their yard in such a condition. We can only imagine comments
from interested buyers of our property, "Cute home and well maintained but we don't
want to live across the street from a property that has knee high grasses growing in it."
Regardless of the Horton's landscaping preferences, proper xeriscaping is not designed to
be maintenance free. Attempting to creating the appearance of a wild prairie is
inappropriate and impractical in a neighborhood where surrounding homeowners have
demonstrated their commitment to maintaining their yards in a neat and tidy manner. If
granted the xeriscape variance,the grasses in the Horton yard will be allowed to grow to
an extremely unsightly length of several inches or feet. This would only make a difficult
and trying situation even worse and increase our concern with respect to our declining
property value.
We are disheartened that a homeowner would deliberately seek a grant from the City of
Fort Collins that would allow him to lower both the marketability of his own home and
the surrounding neighborhood. We urge the City to reject the application for a xeriscape
variance. As first time home buyers we were greatly pleased to purchase our own home
after years of scrimping and saving. Please help us protect our largest financial asset.
Thank you again for the opportunity to express our opinions. We look forward to your
decision regarding this matter.
Sincerely,
Scott and Kristin Beasley
2751 Pleasant Valley Road