ST. LOUIS (CN) – An attorney for a Missouri woman allergic to grass argued before the Eighth Circuit on Wednesday that her city’s ordinance requiring her to have grass on her property is unconstitutional.
Janice Duffner lives in the city of St. Peters, which requires property owners to have their lawn consist of a minimum of 50 percent turf grass. Duffner is allergic to grass and has been keeping a flower bed that spans her entire yard.
On May 14, 2014, the city sent Duffner a letter informing her that she was in violation of the ordinance and warning her that further violation could subject her to $180,000 in fines and 20 years in prison. Nine days later, she applied for a variance due to her allergic condition.
A little over a month after that, the St. Peters Board of Zoning Adjustment granted a variance, reducing the amount of turf grass required from 50 percent to 5 percent. The board also required the grass area to be placed in Duffner’s front yard or in the side yard in front of the fence.
Duffner filed a federal lawsuit challenging the ordinance in 2016 after refusing to comply with the variance. She appealed after a federal judge in the Eastern District of Missouri found that the law advanced the government interest of proper aesthetics.
Duffner’s attorney, David Roland, argued before an Eighth Circuit panel Wednesday that quiet enjoyment of property has long been a fundamental right. He said St. Peters’ ordinance crosses the line from restrictive into compulsory.
“All of the flowers Ms. Duffner has are lawful,” Roland told the judges.
He continued, “What’s unlawful is the government opposition to force her to grow something that makes her sick. … Ms. Duffner does not have a chance to comply. Just by being a resident of St. Peters, she has to have a lawn comprised of 50 percent of the things that make her sick.”
St. Peters has a population of 56,076 and is 35 miles west of St. Louis. Its median income in 2016 was $35,811, up more than $13,000 from 2000, according to city-data.com.
Attorney Matthew Fairless represented St. Peters. He countered that when looking at land-use restrictions in suburbia and cities, courts have never looked at fundamental rights.
“Aesthetics, by the federal court and by the state of Missouri, are recognized as a legitimate interest and whether turf grass relates to that, the district court found that it does,” Fairless said to the panel.
The judges asked Fairless why just a 5 percent variance was granted. He responded that the law took effect in 2010, so the Board of Adjustment took into account what Duffner’s lawn was comprised of in 2009 to reach that number. He also added that three neighbors attended hearings and testified they wanted no variance issued.
Fairless argued that St. Peters is known for certain aesthetics.
“If you want to live in that community, you know you will be subject to certain land-use requirements,” Fairless told the court. “If you live in a different community, you are subject to different regulations.”
In his rebuttal, Roland attempted to poke holes in the city’s aesthetics argument.
“This ordinance does not apply to aesthetics because Ms. Duffner could have planted the required amount of grass in her back yard where no one could see it,” Roland said.
U.S. Circuit Judges Lavenski R. Smith, Steven M. Colloton and Ralph R. Erickson sat on the panel. It is unclear when they will issue a decision.
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