Local Government Law Bulletin October 23, 2015

The Berm

That grassy strip between the sidewalk and the curb is called the berm. The house on the corner of Sibley and Elm in Howell has berms on two sides. Those berms have served as the battleground for a war between the City of Howell and the former homeowner, David Shoemaker, for several years. The Sixth Circuit Court of Appeals ended the war on July 29, 2015. The city won.

The war started when the City of Howell upgraded the road and curbs on East Sibley Street. In connection with that project, they uprooted a red maple that Mr. Shoemaker had planted and then planted nine saplings. Mr. Shoemaker wanted to keep his red maple and did not want the city’s saplings, but the city told him it owned the berm and it wanted the saplings.

The saplings made it difficult to mow, a task Mr. Shoemaker was disinclined to complete because, he reasoned, the city told him it owned the berm and controlled the landscaping of the berm. The city ordinances, however, placed the burden squarely on Mr. Shoemaker’s shoulders: “No owner . . . shall permit . . . on [their] lot . . . or . . . between the property line and the curb . . . any growth of weeds, grass or other rank vegetation to a greater height than eight inches . . .” On four occasions, the city notified Mr. Shoemaker that he had let the berm grass grow too long. The first two times, he capitulated and mowed the grass in time to avoid penalty. The third and fourth times, however, he stood firm.

The city hired a contractor to do the job and invoiced Mr. Shoemaker both times. In total, Mr. Shoemaker was billed $600: $300 in fees ($150 for each grass-cutting service) and $300 in fines ($50 for the first infraction and $250 for the second). He paid that amount as part of the property taxes due when he sold the house in 2012. Then he sued the city.

The campaign shifted from the City of Howell to the United States District Court for the Eastern District of Michigan in Port Huron. There, on November 12, 2013, the late Honorable Lawrence P. Zatkoff issued an opinion concluding that the City of Howell had violated Mr. Shoemaker’s constitutional rights in two ways. First, the city had failed to afford Mr. Shoemaker procedural due process. Judge Zatkoff found that the city’s informal “hearings by telephone” were random and confused, the city failed to notify Mr. Shoemaker that the deficient procedure even existed, and that the “hearings” were biased because they were conducted before the very officials that had issued the notice of violation in the first instance. Second, Judge Zatkoff determined that the city’s requirement that Mr. Shoemaker mow the city’s property violated his substantive due process rights:

Imposition by government body—be it municipal, state, or federal—of mandated private maintenance of public property directly contradicts the goal of limited government intervention. To be sure, such action strikes at the very heart of the freedoms and liberties the United States has come to represent. Left unchecked, such an unheralded display of government power may fray the fabric that holds this Nation together.

Shoemaker v City of Howell, No. 2:11-cv-15135-LPZ-MJH, p. 17 (ED Mich, November 12, 2013).

Much of Judge Zatkoff’s analysis depends on the determination that the berm indeed belonged to the city, a fact Judge Zatkoff said was established by the city’s own admission. Judge Zatkoff’s ultimate conclusion that by requiring homeowners to mow the city’s berm, the City of Howell was taking the first step on the path to destroying the nation understandably raised a few eyebrows. It was not surprising that the City of Howell decided to take the conflict to a higher court.
The Berm continued from page 3

The City of Howell found greater success at the Sixth Circuit Court of Appeals. Two of the members (Judge Gilman and Judge Sutton) of the three-judge panel believed that Mr. Shoemaker received all the process due to him given that the interests at stake were relatively minor. Judges Gilman and Sutton also concluded that the City of Howell was not asking Mr. Shoemaker to mow the city’s berm, it was asking Mr. Shoemaker to mow the berm that, under Michigan law, they owned together. That level of intrusion, they concluded, was not so heinous as to rise to the level of a substantive due process violation. The majority decision reversed the district court’s judgment in favor of Mr. Shoemaker.

Judge Clay, the third member of the panel, filed a dissenting opinion. He thought the majority was so concentrating on the forest, the ubiquitous berm-mowing ordinances across the nation, that it could not see the trees, the very specific, very inappropriate actions the City of Howell took against Mr. Shoemaker. Judge Clay would have affirmed the district court. Although Judge Clay acknowledged that Mr. Shoemaker might have a twig or two in the bundle of sticks that make up berm-ownership rights, that does not justify the city’s mandate of mowing a berm that it rendered “unmowable.”

Extracting lessons from the skirmish between Mr. Shoemaker and the City of Howell is no easy task. The Sixth Circuit decision leaves open the question of whether it would be appropriate to require a neighboring homeowner to mow the berm if the municipality owns the entire bundle of sticks. Although the City of Howell’s procedure survived the battle, it should not serve as a model for other municipalities. Even the majority determined that the notice and hearing, though minimally sufficient, were far from ideal. Perhaps the most compelling lesson to be learned is that long drawn out battles over berm-mowing are expensive and unnecessary. Make sure your ordinance, and the actual practice, provide sufficient notice and an adequate opportunity to be heard before you make the homeowner pay.

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