Appeal of purported Nuisance Notice against Ralph Hurt property, 516 Burkesville Street, Columbia, KY 42728.

Prior to appealing this to the District Court of Adair County per KRS 82.715 Section (4), an appeal is being made to the Columbia City Council on July 5, 2005.

APPEAL:

The appeal is based on the following arguments:

First, the local nuisance ordinance, written as Chapter 92: Nuisances lists under 92.03(D): Weeds and grass. The excessive growth of weeds, grass, or other vegetation. Unless otherwise provided, EXCESSIVE shall mean growth to a height of 12 inches or more.

It is the contention of this appeal that other vegetation means just that trees, shrubbery, flowers, ornamental grasses, etc. and anything over 12 inches is in violation of the nuisance law. In addition, the vagueness of the ordinance allows the subjective determination of who is in violation when in actuality, any growth of anything over 12 inches is in violation and therefore, should be removed.

Second, per KRS 82.710 Requirements for local government nuisance code, Section (4): Provide for the establishment of a hearing board and hearing officers and the procedures to be followed by the hearing board and hearing officers. No such board appears to exist. If it does, no one is city government is aware of it, thus allowing for the harassment of citizens based on a subjective determination of the above ordinance and not by a hearing board. This is direct violation of KRS 82.710 at cited above.

Third, the yard, which is a portion of a 20 acre lot, is recognized by the United States Environmental Protection Agency (hereafter known as the EPA) as a natural landscape. This is defined as: The practice of cultivating plants which are native to the bioregion without resort to artificial methods of planting and care such as chemical fertilizer, mowing, watering 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 surrounding bioregion. (The John Marhsall Law Review, Vol. 26, Summer 1993, No. 4).

In addition, the EPA recognizes what the City of Columbia, Kentucky has enacted as a nuisance law, is in actuality a weed law defined as: Any federal, state, county and local, statute, regulation or ordinance which limits the type or size of vegetation which grows or is cultivated on land within the jurisdiction (The John Marhsall Law Review, Vol. 26, Summer 1993, No. 4).

Case Law upholds the right of the property to maintain a natural landscape around the home as found in Montgomery County, Maryland v. Stewart. In City of New Berlin v. Hager, it was determined that natural landscapes do not create a health, vermin or fire hazard. In Little Rock, Arkansas v. Allison, the court upheld the determination that natural landscapes are a natural wildlife area and that cultivating natural vegetation would not attract snakes or vermin.

Presently, a cursory inventory of the vegetation finds 32 varieties of flower, ground cover and shrubbery; Fourteen (14) different trees have been identified. Deer have been seen grazing, and wild turkey has been seen by others than the resident of the property. No snakes or vermin have been seen on the property. This is parallel to the National Wildlife Federations Backyard Wildlife Habitat Program, established in 1973, which promotes how to provide the basic habitat requirements of wildlife as communities plan and plant landscapes around homes, schools and places of work.

As a concession to the safety of the traversing and motoring public, a clear zone of approximately 200 feet has been maintained from the edge of the right-of-way up the property. This allows the United States Postal Service to deliver, and does not create a safety hazard for those using the sidewalk.

SUMMARY

This natural landscape has taken over a decade to cultivate. The natural flora and fauna that are returning to the land is the goal of this type of landscaping. While some may prefer the cultivated landscape, many prefer prairie yard, natural gardens or what is now referred to as an American Style Garden. A city or government agency does not have the right to create a subjective law in order to control the landscaping of private property which is not a health or safety hazard to the community.

The following points reiterate the argument of the appeal:

First, the vagueness of the ordinance and the subjectivity of determination of vegetation;

Second, the failure of the city to establish a hearing board as required by Kentucky statute;

Third, the recognition of the Federal Government of natural landscapes;

Fourth, this is a weed law and not a nuisance law;

Fifth, the case law of Montgomery County, Maryland v. Steward;

Sixth, the case law of City of New Berlin v. Hager;

Seventh, the case law of Little Rock, Arkansas v. Allison;

Eighth, the voluntary establishment of a clear zone.

THEREFORE, the notice of violation of the nuisance code should be dismissed with prejudice based on the above standards of law and subsequent determinations.

(Attachments)