Township trustees may determine what constitutes a “legal fence”

by Eric Christianson

Hopkins vs. Dickey
Iowa Court of Appeals, October 25, 2017

This dispute concerns the repair and maintenance of a 600 foot fence separating the properties of Matthew Hopkins and Robert Dickey. Iowa’s Fence Code 359.17(1) uses the “right hand rule” to determine who is responsible for the maintenance of a fence. Essentially, if the two property owners were to stand facing one another at the center of their adjoining property line, each is responsible for the fence to his/her right unless an alternate agreement is made in writing. In this case, Dickey is responsible for the west 300 feet and Hopkins is responsible for the east 300 feet.

In 2010 after several instances of cattle escaping, Dickey informed Hopkins that he needed to repair that portion of the fence. Hopkins declined to do so, stating “that’s not what the law requires” and he already had “too many projects.” Dickey filed a complaint with the local township trustees, who are responsible for managing fence disputes. The trustees ordered Hopkins to “erect and maintain the East 300 feet of the partition fence” and that such be a “lawful fence” having “five barb wires attached to posts not more than 10 feet apart.”

Hopkins appealed the trustees’ decision to district court. The district court upheld the trustees’ decision, finding the application of the right-hand rule was both “a customary practice” and “fair and equitable.” Hopkins then appealed to the Iowa Court of Appeals alleging:

  1. A verbal agreement with the previous landowner excused Hopkins from all responsibility to maintain the fence.
  2. The fact that the decision only applied to him violated case law that states that Iowa’s fence law exists “to equalize the partition fence burden.”
  3. The specifications that he was ordered to build the fence to exceeded those required by law.

The court of appeals affirmed the district court on all three points.

The alleged prior verbal agreement is hearsay and therefore inadmissible. Further, even if a prior agreement existed, it should be legally recorded according to Iowa Code 359A.13 to have any authority.

The fact that the court order only applies to Hopkins does not violate the principle of equalizing the burden as, at the time of trial, Dickey had recently rebuilt half of the partition fence. The court stated that it is undisputed that the portion of the fence built by Dickey was “in good repair” at the time of the fence viewing. Therefore it was not necessary to order Dickey to maintain the fence.

Finally, the appeals court found that the trustees have some leeway in deciding what constitutes a legal fence:

The term “legal fence” as defined in the statute is not a prescription, however, for how every partition fence must be constructed or what fence viewers must require, but sets forth a minimum standard for a “legal fence.” […] In this case, the fence viewers and the court determined Hopkins was responsible for a portion of existing fence that was in such disrepair it did not constitute a “legal fence.” The district court ordered Hopkins to construct a new fence in keeping with the style and character of the existing fence and in keeping with the fence constructed by Dickey and approved by the fence viewers.

Weeds are not protected speech or expression

by Hannah Dankbar

Discount Inn, Inc. v. City of Chicago
Federal 7th Circuit Court of Appeals, September 28, 2015

(Note that the Court included photos of native Illinois plants in its written opinion; a very unusual practice)

Chicago’s Department of Administrative Hearings decided that Discount Inn, Inc. violated the weed and fence ordinances.  The weed ordinance reads:

Any person who owns or controls property within the city must cut or other‐ wise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200. Each day that such violation continues shall be considered a separate offense to which a separate fine shall apply.

The fence ordinance reads:

It shall be the duty of the owner of any open lot located within the City of Chicago to cause the lot to be surrounded with a noncombustible screen fence …. Provided, however, that this section shall not apply to … sideyards. The owner shall maintain any such fence in a safe condition without tears, breaks, rust, splinters or dangerous protuberances and in a manner that does not endanger or threaten to endanger vehicular traffic by obstructing the view of drivers. Any fence which is not maintained in accordance with these provisions is hereby declared to be a public nuisance and shall be removed … . It shall be the duty of the owner of any lot whose fence has been so removed to replace such fence with a noncombustible screen fence meeting the requirements of this section and of this Code.” Municipal Code of Chicago § 7‐28‐750(a). Violators “shall be fined not less than $300 nor more than $600 for each offense,” and “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.

Discount Inn made two claims: (1) the ordinances violate the prohibition against “excessive fines” in the Eight Amendment; and (2) the weed ordinance is vague and forbids expressive activity protected by the First Amendment.

In regards to the first claim, the Supreme Court has not decided whether this clause applies to state action. This court assumes that it does apply, but found that the fines are not excessive. The fines for both ordinances enforce a legitimate government interest. Fencing vacant lots are important for identifying abandoned lots. The City has an interest in controlling weeds because uncontrolled weeds lead to problems such as obscuring debris, providing habitat to rodents and mosquitos, and contributing to breathing problems.

Regarding the second claim, Discount Inn argued that native plants are mistaken for weeds and their use is unnecessarily limited because of the ordinance. There is no clear definition of a weed in the city code. Discount Inn does not argue that they have native or other decorative plants, but simply rather that the ten-inch rule violates the free-speech clause of the First Amendment. It is true that the First Amendment protects some non-spoken work, such as paintings; however, the Court concluded that these weeds have no expressive value. The owner did nothing to cultivate or design the weeds.

Discount Inn also argues that the ordinances are unconstitutional because they do not specify a statute of limitations. There is no rule that there must be a statute of limitations. Prescribing a statute of limitations for a weed ordinance would require an insane use of city resources.

The decision was upheld.

Archives

Categories