How the Government Got in Your Backyard

by Jeff Gillman

  The second major source of controversy over property use, and the one that puts the most restrictions on what you can and can’t have in your yard, comes from homeowners’ associations. Homeowners’ associations (HOAs) are usually established by the developer of a neighborhood when houses are first constructed. The association has a legal agreement with the local government that the HOA will provide community facilities (streets, sidewalks, and recreational areas) and certain services (street maintenance, trash collection, snow removal, and water and sewer lines). The HOA’s articles of incorporation and bylaws are often approved by local planning officials and must conform to federal housing guidelines. Because HOAs have legal obligations to provide services, they have the authority to collect assessments and enforce rules. Unlike most private organizations, HOA membership is mandatory for those who purchase property in the neighborhood.

  As private associations, HOAs can make their own rules, though state laws ultimately set the limits on their authority. HOAs often require that landscaping conform to a neighborhood plan, trees and shrubs be limited to certain heights, flowers come from an approved list, fences and decks follow prescribed designs, houses and/or front doors be painted one of a limited number of colors. It’s not unusual for them to place restrictions on pets, the age of residents, window air conditioners, swing sets, satellite dishes, when and whether you can hang laundry outdoors, signs in yards (including political campaign signs and flags), leaving garage doors open, parking campers or commercial vehicles in driveways (or your car in front of your neighbor’s house), and placing trash cans in the street during certain hours.

  Various attempts by homeowners to create environmentally friendly lawns, such as converting lawns to native plants, replacing grass with synthetic lawns, and allowing grass to go brown during droughts have drawn the ire of HOAs, which usually demand that lawns be composed of bright green grass. In a major coup that reduced the power of HOAs, Florida passed a law in 2009 allowing residents to replace grass with native vegetation despite any HOA rules that might exist. Unfortunately for yard rebels everywhere, forty-nine states have yet to follow suit.

  The Political Dynamics

  Local governments justify land use policies as efforts to provide amenities desired by residents, to protect the public from the harmful effects of private development, and as a means of protecting the property values of others in the community. Local governments have increasingly used policies to limit development, or to require that land be set aside for open spaces or other public purposes because governments lack the funds to buy the property for these uses. The public wants parks, beach access, and well-maintained roads and residences, but is slow to volunteer the resources needed to provide them. Local governments often encourage the formation of HOAs as a way to shift the costs of facilities, maintenance, and resolving disputes between neighbors from the city’s overburdened list of responsibilities and budgets to the HOAs. Unfortunately, a problem arises when local governments have to uphold and enforce the punishments imposed by HOAs, despite the fact that they are based on the rules of a private association.

  Regulations imposed by local governments are constrained by the fact that much of their revenue comes from property taxes. Thus, towns that limit development or drive residents to find another property in another town because of silly rules badly inhibit their ability to fund their operations and programs. Likewise, compared to individual neighborhoods represented by HOAs, which tend to be economically and demographically homogenous, local governments are usually elected by diverse constituencies, which makes it more difficult for one group to impose its tastes on another.

  WE ALL want to protect individual property rights—until our neighbor paints their house neon orange, lets the grass grow two feet high, starts to talk about installing a drag strip, or decorates with plastic pink flamingos. One person’s freedom runs afoul of another’s common sense.

  There’s a contradiction between our rural, self-sufficient heritage and the interdependence of modern life. At one time in our history, social expectations of what was appropriate may have been sufficient to keep our neighbors in line; now, informal expectations have been replaced by legal contracts. Conflicts between neighbors raise the fundamental question of governing: “who decides?”

  While the governing boards of HOAs are democratically elected and make decisions through democratic procedures, they suffer the same problem as most organizations, including the government: the people who care the most (in this case, about the appearance of their neighbors’ properties) are the ones who participate, and few others pay close attention until there is a nasty dispute. The question then becomes whether the HOA board members are being busybodies under the guise of protecting property values. Since just about anything could conceivably affect property values, there doesn’t seem to be much that can thwart the plans of petty tyrants on HOA boards, other than the risk of being thrown out of office by peeved neighbors who think they’ve finally gone too far.

  That said, homeowners in HOA neighborhoods have the ability to review its rules when they buy property in that location. Just as they can choose to reside in a town that has a mix of tax levels and public services that fits their preferences, they can choose to live in a neighborhood that does not impose rules that they consider inconvenient. Residents sort themselves into neighborhoods that promote the types of conformity they desire (and can afford!). As political scientist Evan McKenzie found in a study of residential community associations: “[residents] place a high value on the restrictions, feeling that the infringement on one’s own freedom is a small price to pay for the protection from the potential misdeeds of one’s neighbors.” HOAs also serve as effective advocates for the neighborhood in dealing with the local government, helping residents resist the petty rules that the government might attempt to place on them, and helping residents obtain the mix of services and tax burdens that they desire from their city or town.

  Policy Option One: Leave Things as They Are

  One of the nice things about the way things are now is that some places have tight regulations and some don’t, and if you do your homework before you move to an area, then you’ll have a pretty good idea of what you can or can’t do. If you want to live in a place where you can grow your grass four feet high, you can buy a house in that sort of place. If you want to live under HOA rules that ensure that your neighbors will keep their grass green and their trees pruned, you have that option too.

  When a government or an HOA decides that everyone’s yard should conform to a certain set of standards, it is promoting a particular aesthetic that is, theoretically, endorsed by the people in the community. We all have different ideas about what lawns should look like, and, if the overwhelming majority of people in a community believe that a lawn should have grass that grows exactly so high, is exactly so green, and has exactly so many weeds, then why should one person be able to destroy the aesthetic of the whole community by deciding to grow fruit trees and vegetables or by allowing a prairie to flourish? Majority rule, after all, is how democracies make decisions.

  Regulations mean that your neighbor won’t be growing weeds that can infest your yard, and the yards in your neighborhood won’t look like a quarry because all of the grass is dead. There are sound reasons for neighbors to demand that everyone play their part within a community.

  Right-Wing Rating Local governments and HOAs do a fine job of reflecting what the people who live in an area expect from their neighbors and their lawns. If you don’t want to follow their rules, then don’t live there.

  Left-Wing Rating Generally the rules imposed by HOAs are fine, but sometimes they go overboard. People shouldn’t have to go to court to be able to plant native plants in their own yards.

  Policy Option Two: Federal Laws Should Limit the Authority of HOAs and Local Governments to Control Yards

  In this country we prize freedom and the right to do just about anything we want to with our property. Because of that, we should have fed
eral laws that limit the ability of state and local governments and HOAs to regulate what we plant.

  The freedom to decide what to do with your yard shouldn’t be granted only to those who live outside the suburbs. Everyone should be able to choose to let their yard “go wild” without any care at all, plant a garden of one sort or another (usually either a vegetable garden, flower garden, or native planting), or maintain the yard in a minimalist way. These options have certain benefits for the person who owns the home, and even for those living in the area.

  The main benefit of allowing a lawn to go wild is clear: less work. And the person with the wild lawn can claim to be avoiding the use of potentially dangerous pesticides, avoiding polluting the environment with carbon dioxide from lawn mowers, avoiding wasting good clean water on plants that are genetically programmed to go dormant in the summer anyway (most lawn grasses go dormant over the summer months if they’re not watered), and avoiding using fertilizers that may run off and pollute nearby lakes and streams. A lawn maintained this way may not please some people’s sense of aesthetics, but so what? The person who consciously follows this method of maintaining their yard is not necessarily doing wrong by the environment.

  Growing a diversity of things in a wild yard, whether on purpose or simply because of a desire to do less maintenance, is also more ecologically sustainable than growing a single crop. Having other plants mixed in with grass, notably legumes like clover, results in less need for fertilizing because legumes collect nitrogen from the air, and when they are mowed or when they die back over the winter, they return it to the soil.

  One argument used regularly by those who prefer that we all conform to having a well-maintained, grass-covered front lawn is that wild yards are dangerous. They harbor creatures that may infest nearby lawns and they contain a large amount of fuel that could feed a fire. But lawns and gardens just don’t have enough fuel (dead, dry plant material) in most circumstances to be particularly efficient at conducting fire from one home to another. Rodents often do prefer landscapes with a lot of cover, though these rodents generally include rabbits and voles, which can certainly be pests of trees and vegetables, but they rarely vector human pathogens.

  On the other side of the labor spectrum from a wild yard, gardens have some significant benefits over grass lawns, one of the most significant being that you can eat the things that grow. If you eat grass from your lawn you’re likely to do the same thing that dogs and cats do when they eat grass—puke it right back up.

  Right-Wing Rating Lawn care is definitely not a responsibility of the federal government.

  Left-Wing Rating I never need to mow the grass again! Senseless conformity will no longer stand in the way of ecologically sensitive lawns.

  Policy Option Three: State and Local Governments Should Regulate Lawns

  The voles and rabbits in one overgrown yard could well come over to a well-maintained yard, as could the seeds from weedy plants. Though Donald Hagar’s yard didn’t contain many allergens, that isn’t to say that a lawn gone wild can’t. And there are certainly plenty of potentially dangerous plants like poison ivy that could invade a poorly maintained lawn. We need a way to protect our yards. Just because we don’t have a homeowners’ association protecting us shouldn’t mean that we have to suffer from our neighbors’ actions and watch our property values drop.

  It is up to local governments to provide these restrictions. The federal government does not have constitutional responsibility for land use, and as a practical matter, it covers too many geographical regions. State and local governments cover smaller, more homogeneous regions and could pass reasonable laws to ensure that yards are maintained to a certain set of minimum standards, enabling all of us to enjoy a better aesthetic as well as increased property values.

  Right-Wing Rating We like our yards neat, but local and state government regulation is no better than federal government regulation.

  Left-Wing Rating State and local governments are best positioned to identify ecologically sensitive ways to manage our lawns, but beware of governments that mandate green-grass-only lawns. Laws must be sensitive to ecological issues, too.

  The Bottom Line

  The federal government is not going to legislate exactly which plants you can and can’t have in your yard, with the exception of noxious or intoxicating weeds (which we discussed in depth in earlier chapters). Local governments and HOAs will probably continue to regulate them. How tightly you think these institutions should regulate your yard (and your neighbor’s yard!) depends mostly on your sense of aesthetics, your concern about your property value, and how much you worry about pollen, weed seeds, rodents, and other critters.

  People will be people, and there’s no accounting for taste in music, clothing, or yards. We can certainly understand the comfort of living in the familiar aesthetic of the suburban yard, and, knowing that, can appreciate the fact that some people want to ensure that they will have this aesthetic around them for their entire lives. But doesn’t a small fine, maybe $20 or so a week, seem like enough of an incentive to keep people on the straight and narrow? If a garden is really invading a sidewalk to the point that it isn’t useable, then why not just have the city’s park board or maintenance crew come in, chop it away, and charge the owners of the property for the work?

  CHAPTER 11

  Global Warming:

  Natural or Man-made?

  OVER THE PAST few decades, all sorts of environmental problems have arisen that threaten the well-being of our globe, and that we can prove have been caused by our industrial exploits. For example, it was easy to put our finger on what exactly caused acid rain—a prominent environmental problem brought to light in the 1980s—by collecting the rain and testing it. These tests showed minute traces of sulfuric and nitric acids within the rain. By connecting this finding with the knowledge that acid rain occurs mostly around cities that spew nitrogen and sulfur compounds into the atmosphere as waste, it was easy to discern acid rain’s cause. In fact, the connection was actually made way back in 1872, when Robert Smith published his book Air and Rain: The Beginnings of a Chemical Climatology, in which he noted that the rain around the industrial city of Manchester in England was acidic, especially in the areas where the most soot was found.

  Likewise, the thinning of the ozone layer, which was theorized by scientists in the 1970s and later proven through satellite imagery, could be connected with our release of chlorofluorocarbons (CFCs) and the known fact that they react with, and break down, ozone. The connection between CFCs and the thinning ozone layer was confirmed when we sampled air from the upper atmosphere and found it included these synthetic gases.

  The newest problem that we are apparently causing is global warming. But unlike acid rain and the hole in the ozone layer, we don’t have a gun that is clearly and unambiguously smoking, so it would be somewhat cavalier at this point to name a cause. After all, the earth’s climates regularly changed before humans came along. There were ice ages, and periods where most of the world was in what we would now consider the tropics. So how do we know that anything abnormal is happening, much less that humans are causing it? And, even if we are causing it, should our government actually try to reverse it? Isn’t there anything good to be said about global warming? For citizens who are frustrated by the writers of letters to the editor who assert that the previous day’s weather is definitive proof for or against global warming, an assessment of what science does and doesn’t tell us about climate change is in order.

  The Science

  There are certain places where a warming trend is blatantly obvious: the disappearance of glaciers in the Arctic, South America, the Himalayas, and in Africa over the past hundred years or so. Temperature readings across the globe also tend to support this warming trend, as do a variety of biological indicators, including the movement of trees up hills over the past few decades, presumably to find cooler climates. There is also evidence that the tropics are expanding.

  Despite these examples, ther
e are some regions across the world—portions of the Antarctic, for example—that do not seem to be warming. And there may be reasons, besides large-scale climatic ones, why temperature sensors read higher temperatures now than long ago. For example, as an area accumulates humans, those humans do things like build houses and put down asphalt, causing heat to accumulate and form a “heat island,” or a small area of land where the temperatures read by thermometers will be higher than in other nearby regions. Over time, it is possible to get an inaccurately inflated picture of how much warmer an area has become because temperature sensors can’t tell whether increases in heat come from a new highway or from natural causes.