Posted by: Patricia Salkin | January 20, 2015

IN App. Court Upholds Ordinance Setting Forth Maximum Height of Grass and Finds No Constitutional Violation

The Indiana Appeals Court had a fun time with this one. Based on environmental beliefs, Alexander Gul claims that modern day lawn maintenance practices are harmful and he therefore refuses to mow his lawn to comply with a City ordinance mandating that the height of grass in one’s yard may not exceed eight inches. According to the facts, “Gul allows his yard to grow naturally and does not apply chemicals, mow, water, or fertilize it. He explains that his decision to maintain a natural yard is a statement of his sincerely held environmental belief that the overuse of chemicals, water, and lawnmowers to maintain a traditional lawn is harmful to the environment.” The City disagrees, and finds the lawn simply overgrown. “Over the course of twelve years, Gul has been cited for violations of the Ordinance thirty-eight times. He has been assessed fines totaling $1720 and abatement costs of $1100.” The trial court granted summary judgment for the City and Gul appealed.

Gul argues that the ordinance at issue (1) violates his freedom of conscience under
the Indiana Constitution; (2) violates his freedom of expression under the United States
and Indiana Constitutions; (3) is facially invalid because it conflicts with two Indiana
Code provisions; and (4) is void for vagueness under the federal Due Process clause.

The opinion begins with two quotes by the Court:
“Her lawn
Looks like a meadow,
And if she mows the place
She leaves the clover standing
And the Queen Anne’s Lace!” (Edna St. Vincent Millay, “Portrait by a Neighbor.”)

“The grass may be greener on the other side of the fence but you still have to mow it.” (Anonymous Proverb.)

The Court of Appeals held that Article 1, Section 3 of the Indiana Constitution (freedom of conscience) was intended to apply to religious, rather than non-religious, matters of conscience and that even if the freedom of conscience provision includes non-religious matters of conscience, it protects only the right to hold one’s own opinions, and does not protect the right to act on one’s own opinions in contravention of the law. The Court further held that the decision to refrain from mowing one’s yard does not constitute expression that is protected by the First Amendment to the United States Constitution; and that the City’s determination that Gul had abused his right to expression was rational, and thus not a violation of Article 1, Section 9 (freedom of expression) of the Indiana Constitution. Further the Court found that the ordinance did not mandate use of an administrative proceeding, and thus there was no violation of Indiana Code section 36–1–6–9; and that the ordinance was not unconstitutionally vague as a result of its failure to define “grass.”

The conclusion says it all – “After cutting through Gul’s arguments, we affirm.”

Gul v. City of Bloomington, 2014 WL 7243326 (IN App. 12/22/2014)

The opinion can be accessed at:
http://www.in.gov/judiciary/opinions/pdf/12221401jgb.pdf


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