Nuisance greenery takes root in city’s legal landscape

October 6, 2018

STERLING – The city has come up with a solution for removing dead trees from private property, but work on a broader nuisance greenery ordinance is proving to be more complicated.

The council on Monday approved an ordinance to better deal with a large number of dead and dying trees in private yards. The city says residents are ignoring notices to remove them from their property. The emerald ash borer is contributing to the problem, creating hundreds of dead or diseased trees that need to be taken away.

The trees have become a health, life and safety issue, and residents have voiced their concerns to city staff.

“Neighbors are concerned that these trees could come down on their homes, fences, cars, or power lines,” City Manager Scott Shumard said.

The new ordinance, which amends tree provisions already on the books, allows the city to issue a citation if the trees aren’t removed upon request. The current ordinance only allows the city to place a lien on a property for the cost of removal, which hasn’t brought the desired results.

“We collect very little on liens because the city isn’t very high in the pecking order for debt collection,” Mayor Skip Lee said.

The city assumes that cost is the main reason the tree removal notices are ignored. The ordinance sets up a loan program to help residents handle the expense. It can cost up to $1,000 to remove one tree, depending on variables such as size, access and proximity to power lines.

After the meeting, the council stayed for a study session, during which the nuisance greenery ordinance was put under a microscope. The main objective in writing the first draft was to allow the city to regulate the cutting and removal of neglected weeds, grass, trees and bushes.

Resident complaints provided momentum for the ordinance.

One of the residents, Alex Rios, of 1214 Fourth Ave., has a problem with his neighbor’s shrubs. He says they are overgrown and unsightly, which he fears could bring down the value of his home. He filed a complaint with the city, but was told that nothing could be done under the current code.

“There used to to be a beautiful flower bed there, but now anything and everything is in there,” Rios said. “It’s 10 to 14 feet high in places and it goes all the way to Johnson Avenue.”

The bottom line for Rios, is that the shrubs can impact his bottom line.

“The Appraisal Institute [a professional appraisers association] says that a neighboring unkempt lot can decrease home values by 10 percent,” Rios said.

The study session conversation focused on the subjective nature of nuisance greenery and the inherent difficulties in enforcing an amended ordinance. The code enforcement department, which would bear the brunt of carrying out the added duties, voiced its concerns.

“I think this ordinance would be very difficult to enforce,” Building and Zoning Administrator Amanda Schmidt said. “When we issue citations for mowing grass, we can measure it, but what’s an ‘overgrown bush’? This is extremely subjective – it’s about aesthetics, not safety.”

The department also expressed concerns that the ordinance could become the source of negative feelings.

“This could also create more discord among neighbors and hatred for our department,” Schmidt said.

From a legal perspective, the city has focused on health, life and safety, per state statute, when dealing with personal property issues. The subjective nature of legislating property owners’ landscaping choices made others nervous.

“Property values really can’t be a consideration here,” City Attorney Tim Zollinger said. “Who’s standards do we use for this, and how do we define words such as ‘neglected’”?

The mayor also expressed his concerns about regulating aesthetics, saying that the further the city drifts from health, life and safety considerations, the more uncomfortable he gets.

Playing devil’s advocate, law enforcement said there is a big hole in the law that this could help fill.

“The intent of the ordinance is to address obvious violation problems, and without it, we have no recourse for doing that,” Morgan said.

Alderman Jim Wise kept the ordinance alive by calling for compromise on the issue, although the rest of the council expressed skepticism over whether that would be possible. Wise said the law, as now written, doesn’t go far enough to protect neighbors from neglected private property.

Rios promises to keep pushing for an ordinance that empowers the city to address his type of situation.

“When I get hold of something like this, where I have a vested interest, I’m like a pit bull and I’ll use all options at my disposal,” Rios said.

The study session ended with the city attorney and code enforcement agreeing to work on a new version of the ordinance. Wise suggested that a new draft provide more direction for code enforcement staff.


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