Podcast

How Two Gardeners Beat Chicago City Hall

December 8, 2019December 11, 2019 Mike Nowak Adam Minter, eco-influencer, fighting weed ordinances, invasive plants, Jeffrey P. Smith, Junkyard Planet, native plants in urban yards, recycling v. reuse, Secondhand, sustainability, The Mike Nowak Show with Peggy Malecki

Podcast: Play in new window | Download (Duration: 1:26:51 — 40.6MB)

(December 8, 2019) We don’t often break stories on The Mike Nowak Show with Peggy Malecki. But that’s exactly what we’re doing this morning. To learn how two gardeners beat Chicago City Hall, tune into the second hour of the show live or on the podcast. But we moved that story to the head of this blog post, because it’s a win for sustainability. Back in October, Peggy and I talked to somebody who was fighting a battle against one of Chicago’s worst ordinances. Here’s what I wrote then.

…Pete and Noreen Czosnyka, who live on Chicago’s northwest side, were slapped with a $675 fine. On June 22, 2019, a city inspector cited them for being in violation of Code 10-32-050, Failure To Maintain Parkway. The inspectors note reads, “weeds on parkway over 10 inches causing rodent problem.” They were also cited for violation of Code 7-28-120(A), Weeds In Excess Of Ten Inches. The note reads, “Weeds on property, on average, are greater than 10 inches in height.”

As I noted at the time, Pete said that “We got our plants from the City of Chicago from its now dead 2011 ‘Sustainable Backyard Program,’ added an Earth machine composting bin, three rain barrels.” So they were basically doing what the City had asked its citizens to do a mere eight years ago. That advice had come from the long-dead Department of the Environment. But the Department of Streets and Sanitation had other ideas, and issued them a citation.

And they weren’t the only ones who were caught by the schizoid behavior of the City of Chicago. I know of several environmental activists who put native plants in their yards and were slapped with fines. Most of them paid the penalties and moved on. Kathy Cummings, who appeared on this show in 2012, was one of the exceptions. Her case continued for years. I’ll be honest. I don’t know to this day how it was resolved.

So why has the City been so willing to assess fines under the “weed” law? Basically, it’s a cash cow. According to NBC Chicago5, “revenue generated from the weed control ordinance totaled more than $6 million in 2013.” What has that number been since? You would need to file a Freedom of Information Act (FOIA) request to find out. Chicago city government is stunningly opaque. And, regardless of administration (are you listening Lori Lightfoot?), it shows an unwillingness to change.

Let’s be clear. There are many property owners who don’t care if their lots are neglected. Yes, they should be fined. But if inspectors can’t tell the difference between unmowed lawns and native plantings, we have a problem. The current ordinance doesn’t address that in any way.

So, the DSS inspectors showed up at the Czosnyka home on June 22. The violation notice to them came on September 4. No warning, no chance to address or fix the “problem.” Just shut up, show up and pay the fine. Apparently, that’s standard practice. Well, la dee da. But there was another option, as in the case of Kathy Cummings. Fight it.

They decided to fight it. I’ll be honest. I expected them to lose the case and pay the fine. End of story, until the next environmentally aware homeowner made an appearance in court.

After one court appearance and a delay, the Czosnykas appeared again on December 5, just a few days ago. That very day, I received an email from Pete. It boiled down to this sentence: “WE WON!!!”

Well, color me stupid.

Their lawyer had a lot to do with their victory. His name is Jeffrey P. Smith and he had this to say about the decision. I apologize for cutting and pasting the whole thing. But it’s definitely worth reading.

We defended the case with both my clients as witnesses, and offered a dozen exhibits, almost all of which were admitted, several over the City’s objection.

The judge’s order states that the City did not meet its burden of proof. The judge before issuing her written order gave an oral opinion stating that the City established a prima facie case through the inspector’s citation. In most cases that carries the day. However, the judge effectively found that the City’s prima facie case was rebutted by the Czosnykas’ testimony and evidence showing that the plantings were not weeds and that their gardens, including the parkway, were managed and maintained. The judge also specifically noted that the Czonsnykas hired a pest inspector who found no evidence of a “rodent problem.”

We also argued that the City weeds ordinance has no definition of “weeds,” which creates a perilous and, some would say, unconstitutional situation for gardeners. We did argue that under commonly understood meaning, the Czosnykas’ gardens were not weeds. The judge agreed that that section of the Code has no definition, and, although this wasn’t a construction codes case, she used for guidance part of the Construction Codes that says all undefined terms in those Codes shall be governed by Merriam-Webster’s dictionary. With respect to “weed,” she focused on the dictionary factors of “undesirable” and “uncultivated” and found that we had established both that the plantings were desirable and cultivated. That beat the “10-inch weed” ordinance.

With respect to the parkway, she stated that we had shown the parkway included grasses, which are part of a dictionary definition of “lawn,” and that it was all “maintained.” Again, testimony had shown how purposeful and attentive the Czosnykas are with their plantings. I argued that the ordinances are meant to discourage and prevent neglect, not to punish real gardening, esp. where the City itself has sold, promoted, and has itself planted such plants, which by their nature (pun intended) grow tall. The City objected to my argument about intent of the ordinance, but the municipal code itself says that ordinances should be construed so as to give effect to the City Council’s intent.

We also objected to the ordinances’ vagueness, and asserted an equitable principle saying that the City can’t prosecute what it has permitted. The judge did not have authority to deal with the constitutional questions, and was unpersuaded by the estoppel argument. However, those points are now part of the record, preserving my clients’ right to argue them in a higher court if necessary.

I don’t think it will be necessary. It has been almost 30 years since I was myself a City of Chicago attorney, in its Appeals Division, but I assume that the City’s approach is still rational and cost-benefit-related. A plaintiff in administrative appeal has a high burden, and this wouldn’t be a good use of resources for a City that doesn’t have a cash surplus.

The next and more important step is to get some change in City, county, and state law so that property-owners are no longer at peril for wildflower, butterfly, rain, or similar native gardens, as opposed to what the ordinance is intended to prevent, i.e., neglected, overgrown lots.

So, where does that leave us. I received some advice from Charlotte Adelmann, who is co-author of The Midwestern Native Garden; Midwestern Native Shrubs and Trees and Prairie Directory of North America, among other works. She is also a lawyer and has fought many battles over planting natives. Back in October, she stated bluntly that “This sloppily drafted, inarticulate, confusing, and misleading ordinance should be repealed.”

Following the judgement on December 5, she had some advice for others who might be targeted by DSS.

1) BE SURE TO KEEP YOUR GARDEN/LANDSCAPE (regardless of its so-called average height) MAINTAINED AND MANAGED, and BE PREPARED TO PROVE IT IN COURT WITH TESTIMONY, RECORDS SHOWING MAINTENANCE, and with PHOTOGRAPHS, RECEIPTS, AND WITNESSES.
2) Hire a lawyer BEFORE you go to court; don’t wait until you lose the case. Follow your lawyer’s advice. Don’t get side tracked by matters that, though important in the big picture, are not relevant to winning your case.

That’s certainly what I’m going to do. Meanwhile, Pete Czosnyka and his lawyer, Jeff Smith, join us on the show this morning. You won’t want to miss this conversation.

Secondhand: Travels in the New Global Garage Sale

“American homes are overflowing with stuff.” That’s what Adam Minter‘s new book, Secondhand: Travels in the New Global Garage Sale, tell us. But didn’t we already know that? Apparently, we didn’t.

In 2015, Americans tossed out 24.1 billion pounds of furniture and furnishings, according to the most recent data from the U.S. Environmental Protection Agency. Along with all those old sofas went 32 billion pounds of textiles–including clothes, bedsheets, towels, and wiping rags–and 45.3 billion pounds of what the Environmental Protection Agency calls “miscellaneous durables.” This catch-all comprises products that aren’t generally destroyed in the course of use, including everything from rakes to forks and spoon,s jigsaw puzzles to jigsaws, rotary telephones to smartphones. It’s a flood that’s yet to crest.

But, as Minter reports, it’s a worldwide phenomenon. He takes you from Japan to Singapore to Nogales, Arizona and Nogales, Mexico to Ghana and more to uncover the world of the secondhand industry. It’s a world of shoes and refrigerators and books and furniture and clothing styles. The value of these items wax and wane from generation to generation, and sometimes on a much shorter time scale.

Minter writes,

Most American homes contain very little of value beyond the sentiments of the person who purchased them. The contents of the bathroom–from toothbrushes to soap–can’t be reused. Kitchen utensils are typically too beat up to serve anything but the scrap-metal industry. Old CDs, DVDs, books and media players are generally worthless unless they’re scarce, in good condition, or of interest to collectors. Furniture, unless it’s an antique of value, has a diminishing market, especially if it’s made by Ikea. Used clothing, unless it’s made by a well-known and expensive brand, is often barely competitive with the flood of new garments made in low-cost factories around the developing world. And electronics, from desktop computers to phones, rapidly depreciate into a state of worthlessness–at least to consumers in places where the next upgrade is just a season away.

In other words, we create too much stuff, and we haven’t really figured out how to deal with it yet. In the age of climate crisis, that’s probably not a good thing.

We ask Adam Minter about that this morning. He is also, by the way, author of Junkyard Planet: Travels in the Billion-Dollar Trash Trade, a critically-acclaimed bestselling insider’s account of the hidden world of globalized recycling.