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    Missouri Judge Says Couple Must Grow Grass to Which They’re Allergic or Face Potential Jail Time

    Missouri Judge Says Couple Must Grow Grass to Which They’re Allergic or Face Potential Jail Time

    “If a city can compel citizens to devote half of their property to growing a plant that the citizen does not want and that makes them sick, there is no longer any principled limit to the government’s control over private property”

    Today’s edition of “Government is Terrible and Property Rights Are Pretty Much a Joke These Days” comes to you from Missouri.

    There, Janice and Carl Duffner challenged a city ordinance requiring them to maintain 50 percent turfgrass. All was fine and well until a busybody reported the Duffners to the city.

    Janice Duffner is highly allergic to grass. The couple transformed their yard into a beautiful garden landscape. But, unless the Duffner’s adhere to the city ordinance, they can be fined up to $188,000 or face jail time up to 20 years in the slammer. A totally reasonable punishment for a landscaping violation.

    From St. Louis Today:

    U.S. District Judge John Ross’ 17-page ruling said Janice and Carl Duffner “failed to identify a fundamental right that is restricted by the Turf Grass Ordinance.”

    After unsuccessfully suing in state court, the Duffners filed their federal suit in 2016, claiming the ordinance was “unnecessary for the advancement of any compelling or permissible state objective” and “imposes a permanent obligation on the owner to cultivate and maintain that unwanted physical presence on their property for no reason other than that the government commands it.”

    …In Ross’ ruling in response to the city’s summary judgment motion, he wrote that the U.S. Supreme Court has ruled that “aesthetic considerations constitute a legitimate government purpose,” and therefore the Duffners failed to prove the ordinance was “arbitrary, capricious” and also failed to prove that it was not “rationally related” to a legitimate government purpose.

    The couple argued they had a right to use their “private property in a harmless, lawful manner of the owner’s choosing” and “exclude unwanted persons and things from private property,” Ross wrote. Ross said that claim was too general, and if accepted, could subject “many, if not all, zoning laws … to heightened judicial scrutiny.”

    The Duffners have the help of Dave Roland from the Freedom Center of Missouri. Roland plans to appeal to the Eighth Circuit:

    Carl and Janice Duffner are senior citizens who, due to severe grass allergies, converted their entire yard into a beautiful, well-maintained, grass-free flower garden that includes a landscaped hillside and flowers blooming from multiple mulched planting areas that are interspersed with walkways, sitting areas, and two small ponds.

    All was well until one of their neighbors complained to the City of St. Peters that the Duffners were not in compliance with a city ordinance that requires residential property owners to devote at least half of their yard to growing and maintaining “turf grass.” According to the ordinance, homeowners who do not grow the city-mandated turf grass can face fines of up to $500 and also 10 days in prison for each and every day they fail to comply with the city’s mandate.

    “This is one of the most bizarre laws I have ever seen,” said Dave Roland, the Duffner’s attorney and director of litigation for the Freedom Center of Missouri. “There is absolutely nothing unlawful or harmful about the Duffners’ flowers, yet St. Peters is threatening them with extraordinary fines and decades in prison simply because they choose to grow flowers instead of a plant that makes them sick.”

    …“A penalty is unconstitutional under the Eighth Amendment if it is ‘grossly disproportionate’ to the offense it is intended to punish,” explained Jenifer Zeigler Roland, the Freedom Center’s executive director. “The judge acknowledged that the Duffners’ flowers are not illegal, have not harmed anyone, and are not likely to harm anyone, but somehow still concluded that it might be constitutional to fine these senior citizens hundreds of thousands of dollars and to put them in prison for two decades.”

    The Duffner’s yard is not dumpy, nor is it an eyesore. It’s incredibly well maintained. Pictures posted by the Freedom Center of Missouri show as much:

    Roland concluded:

    “If a city can compel citizens to devote half of their property to growing a plant that the citizen does not want and that makes them sick, there is no longer any principled limit to the government’s control over private property,” Dave Roland said. “Likewise, if governments can impose such ridiculous penalties for completely harmless behaviors, the Eighth Amendment is practically useless. We are confident that the Eighth Circuit will reverse this terrible decision.”

    Ross’ decision is here:

    Carl and Janice Duffner v City of St Peters by Legal Insurrection on Scribd


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    In short, your HOA keeps the trains running on time.

    Hey, you deserved that for implying I’m a libertarian 😉

    Mac: “But, this case is strikingly different. ”

    Yes, your points are valid and reasonable.

    I just can’t control my bias, my HOA has been so deliberately evil arrogant and incompetent that they made my Cancer Bucket List.

    I know I tend to slip into hyperbole, but I’m not joking here. I’ll chase them round the Antares maelstrom, and round perdition’s flames before –

    …oh sorry. I kinda phased out there. What just happened? Why is everyone so quiet? Hey did someone just spray me with cold water?

    A HOA is an abomination. It is not a government entity, but rather a non-governmental association which is given the power to regulate the activities of persons living in a specific area, by those people. It usually does this through deed restrictions. And, it always causes trouble. Not only does it cause individuals problems through over-zealous authoritarian actions, but it places an unwelcome liability burden upon its members, for its actions. It is simply NOT a good idea to buy and live in any development which has an association which has any power over the individual home owner.

    Milhouse | April 2, 2018 at 11:54 am

    In what way is a HOA different from a condo board, which has the same powers over units in the building to which it has an underlying title? A development with a HOA is the same thing; when you buy your unit from the developer, it comes with the HOA’s underlying title to the development as a whole, and thus its right to dictate what you do with your unit.

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