Case Pits Zoning Enforcement Rights Against Property Owners

, Daily Business Review

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Garden

For 17 years, Hermine Ricketts and Laurence “Tom” Carroll used their front yard in Miami Shores to grow vegetables and other plants.

But in May, they learned vegetables gardens would be prohibited by the city. Fruit and berry trees, and even garden gnomes, are acceptable. But forget the green leaf lettuce.

Miami Shores code enforcement officials told the couple to destroy their garden or face a $50 per day fine. So they dug up the garden where they grew up to 90 varieties of plants, many which aren’t available at supermarkets.

The litigation, expected to be filed in Miami-Dade Circuit Court today, pits the city’s zoning enforcement rights against the rights of property owners to decide what goes in their yards.

“What we are dealing with is a couple, and all they want to do is feed themselves. If the government can control the food they grow on their own property, what can’t the government do?” asked Ari Bargil, a Miami attorney with the Institute for Justice.

Ricketts and Carroll contacted the institute, a Virginia-based nonprofit organization that takes up causes of small businesses and other property owners.

Bargil, who represents the couple, said the lawsuit is part of the institute’s National Food Freedom Initiative. The campaign is designed to bring attention to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice.  

A challenge to Minnesota’s location restriction on and sales cap for home bakers and a lawsuit contesting Oregon’s ban on raw milk advertising also is planned as part of the initiative.

A phone message left with Ricketts and Carroll was not returned by deadline Monday.

The couple’s garden at 53 NE 106th St. was far from unsightly. The vegetables were in patches beside a manicured lawn set off by swirling borders.

“They were growing vegetables for 17 years without complaints or citations from the city, not a bad word from the neighbors—in fact they got compliments,” Bargil said.

Fundamental Rights

He stopped short of saying his clients were targeted by Miami Shores, which is notorious for tought code enforcement. However, the couple received a warning notice May 8, a day after the zoning change outlawed front-yard gardens.

City clerk Barbara Estep said the village does not comment on litigation.

But doesn’t the city have the legitimate right to enforce its zoning ordinances? Can’t it ban front gardens in the same way they regulate the home paint color or campy mailboxes?

Bargil said the city is limited when it comes to restrictions on growing food, an area of law where he argues citizens have fundamental constitutional rights.

Miami Shores “has impeded Hermine and Tom’s fundamental rights, and an analysis by the courts that apply are far less deferential to the city. In fact, it’s deferential to the plaintiffs,” he said.

The couple is seeking an injunction to keep the city from enforcing its $50-a-day penalty.

The complaint alleges violations of due process, equal protection, right of privacy clause.

Besides naming Miami Shores as a defendant, the couple names members of the Miami Shores Code Enforcement Board.

According to the draft lawsuit, Ricketts and Carroll did not use any pesticides or artificial fertilizers, and the ban prohibits them from making peaceful and productive use of their own property to feed themselves.

In recent years, the couple’s garden provided them with their entire vegetable intake and accounted for at least half of their overall food consumption, the complaint states.

“Miami Shores’ ban on front-yard vegetable gardens forces Hermine and Tom to replace something they once provided for themselves with an alternative that is inconvenient, less nutritious, unenjoyable and much, much more expensive,” according to the lawsuit.
 

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