Arrival of the White Hats

Date: Monday, June 26, 2000 12:01 PM

On Thursday June 1st we called Zoning´s Mr. Kahler because we had heard nothing from Zoning about the appeal we´d filed on May 12th. We were at first told that no appeal was possible for these ordinances; but when we cited the contrary statements in the city´s own notification letters, he changed his story. We were next told that the omnipotent Law Director, John Clemmons, had determined that the appeal should go before the Building Appeals board instead. Mr. Kahler said he had our phone# to call us but he couldn´t do anything without the Law Director. We began investigating this bizarre change of venue, including visits to the Planning Department and to the local public library. (What would a plumber, electrician, mechanical engineer, etc have to determine about my leaf-composting?) In my probing, I discovered that the Building Appeals Board hadn´t met in several months, only met when there was a case to consider, rather than regularly, so why weren´t they called already for my case, and furthermore two of the five names on Planning´s documents were no longer receiving mail! (Sounds a might fishy) On the afternoon of June 2nd, according to the US Post Office cancellation stamp, Zoning reversed course and sent notices to the adjacent properties and local media, that the case would be heard by the Zoning Appeal Board on that Wednesday, the 7th of June. Allowing one day for delivery time, that´s less than 4 days notice, not the legally prescribed 10 days. [1137.05(c)(1)]

This severely limited our response time and we were unable to get in touch with many potential supporters among Fairfield´s citizens. In the available time, we scrambled to assemble a series of letters and documents which we mailed to neighbors, the media, and some of the Building Appeal and Zoning Appeal boardmembers. We also attempted to reach supporters among the participants in the Fairfield Habitat Home Tour 2000 (for which we were a featured site), by phone and email. There simply was no time to get through. Even my sister, Betty Sandoz who´s practically a founding member of the Fairfield Sportsmen´s Association, was unable to attend because she had a family commitment she´d made prior to an out-of-town family member. She couldn´t imagine how ridiculous this hearing could be made. She is now actively following up. As expected, the bigoted group that helped instigate these proceedings were the only group prepared to show up.

At the hearing, we presented environmental logic and economic data which established that the claims of economic detriment to property values in our area was untrue. It was barely considered though it nullified the basis for the zoning charges. Instead, the bigots attacked in full force, saying they knew nothing about the environmental issues, their property values or any other issue but they didn´t like the looks of my habitat. It was too wild for their scalped earth tastes and nature was offensive to them.

Whenever the boardmembers attempted to focus on the other documentation we supplied, pin-pointing the elements of misconduct in the application of the ordinance (including charging us with ordinances applicable to corner lots, which we are not, and demanding the removal of our habitat insignia from the National Wildlife Federation as illegal, as well as attempting to take the case to court on the basis of false evidence), the flimflam artist of a Legal Director waved and intimidated the board with the claim that "all that" list was part of our claim that these ordinances were unconstitutional and the board "was not competent" to judge them. We protested that issues of trumped up charges (even if later dropped), railroading, unfairness, and evidence of misapplication of the code were "matters of administration" but the Law Director was insistent even though the list of unfairness and irrationality is shocking.

We were faulted as un-authoritative on the environmental correctness of our habitat even though we presented our credentials as a nominee for a Rockefeller Foundation Fellowship in environmental science and women´s issues at the University of Oregon, as the Director of Publicity for the Alternate Energy Association of Southwest Ohio, and as a voracious researcher on natural landscaping and eco-spirituality. I even offered names of local naturalists we consulted and a letter of recommendation from the local landscaper (Urban Thickets of Hamilton) -- a letter which he wrote after viewing the property in ´98.

Instead, the Law Director offered a statement from Kathy Quisling Winters of the Citizen Forest Commission which said that Ohio´s Division of Natural Resources´ Heidi Devine, who spoke at the habitat home tour workshop, advised attendees not to break the zoning code. Now, not only did Ms Winters not arrive until late in the workshop that day, but she conveniently omitted the fact that Ms Devine´s actual presentation advocated that audience members grow a nice tall hedge to screen out the ugliness of adjacent unnatural landscaping, collect a substantial brushpile for habitat purposes and even create a wetlands. Ms Heidi said nothing about the possible ramifications for unsuspecting audience members until I pointed out that her design was illegal according to Fairfield´s antiquated code. I had in fact prepared a paper for distribution to workshop participants outlining the suggestions of naturalists with American Gardener magazine for a cautious approach to introducing your habitat for neighborhood scrutiny -- something a decent environmentalist would do to warn new converts, something neither Fairfield´s Parks, the Forest Commission nor ODNR were doing for their newbies.

The Board was clearly bewildered by the complexity of this case and the gamesmanship but the night was longer than their tolerance and they rushed to close without due consideration of the seriousness of the issues. They literally denied our appeal while simultaneously approving of our committment (they said they admired me, ugh) and dedication to ideals they admitted knowing to be right. The Law Director totally misled them, to their potential jeopardy from litigation. By supporting the abuses we´ve listed in spite of the knowledge that the ordinance itself is unconstitutional and could be tested shortly in Fairfield, the Law Director exposed them to possible charges of conspiracy to deny my civil liberties which is a misdemeanor of the first degree [525.13(a) & (b)].

They said they admired us without remembering the lessons of history. Americans have repeatedly rejected the concept of following authority figures who abuse the powers given them, from refusing to return fugitive slaves, to the dangers of appeasement before WWII and to coverups of Vietnam. But the lessons were even in our fairy tales told by our parents. My beautiful swan was labelled an ugly duck because it looks strange to a jack-booted zoning official and a few bigoted neighbors. The younger boys in our neighborhood love our yard. When was the last time any of them asked to see one of the adjacent yards and brought their friends to share the adventure? Guaranteed never. And if Fairfield´s leaders ignore their responsibility like the residents of Hamlin in the classic nursery tale, the Pied Piper of history and science will speak to their children and their grandchildren will disown them. Already many more Fairfield homeowners are ignoring the ordinances. There are more than a half-dozen homes within a couple blocks where hedges, kindling wood, foundation plants and driveway bushes exceed the McCarthy era limits. How many more Ôadmired´ citizens will Fairfield put in jail?

So where do we go from here? The next appeal would be to have the Court of Common Pleas overturn the Zoning Appeal hearing because it violated our right to adequate advance notice. But one of the judges currently sitting in Common Pleas is the same one that sent me to jail. Fat chance he´d care about violations of city ordinances by the city´s law director. (BTW, the rumor has reached us that he made a comment to my then lawyer that he was annoyed by this uppity woman to the point that he went overboard... interesting)

Another alternative is to appeal to city councilman Mark Scharringhausen who should have been at the zoning hearing but was called out of town (I wonder if the law director knew that too) since he is more accustomed to economic data and less provincial thinking as a representative to outside potential sources of city development. The city law director and zoning employee would also technically be operating under city council´s purview. On the other hand the last time I made a presentation to city council, it was used in court against me. In Fairfield, democracy is not even a virtual reality.

In addition, I was observing the current judge in municipal court and Judge Campbell seems fairly open to the idea that sometimes officials make mistakes so the path of challenging these charges on their lack of merit may work to get the jack-booted zoning woman discredited vs the lengthy and outrageously expensive ($2,000 to $10,000) pricetag on the unconstitutionality route which would only rip the pages out of Fairfield´s lawbook. This actually looks quite doable considering the summonses but we´ve been cheated before by depending on the courts, which is why we´re excited at the prospect of newspaper coverage by the Cincinnati Post´s David Wecker, White Hat Number One.

Summons-by-summons, this is how it looks:

We have more pictures, prepared for defending our case, and this is the brief I intend to give to the judge which will illustrate that the charges are false, were false when laid and thus dispose of the immediate threats. Summons by summons.

1. Summons 10943 - case no. 200 CR-B-795 alleges that we have hedges located less than one foot from the nearest public right-of-way that exceed 4 feet in height... The panoramic snapshot shows the front of our property. There are a pair of gorgeous big blue spruces, spaced one at each front far corner of the lot, and one evergreen bush on each side of the driveway. By definition, a hedge is a row of closely spaced bushes (or in the city´s terms, plantings) that form a fence or barrier. There is no hedge near the public right-of-way on our property, now or ever.

2. Summons 10944 - case no. 2000 CR-B-793 alleges that we have noxious weeds (russian, canadian or common thistle or wild lettuce), or grass (or other vegetation) over 8" in height or going to seed. As a habitat owner I am very familiar with the plants that grow on my property, though the wind, the birds and the wildlife on our land occasionally plant some new things, but I guarantee the photos taken by the Metala woman do not show any of the listed varieties. There are none. What I do have, and you can see those in the pictures fairly clearly, are seas of violets, indian strawberry and Virginia creeper or pachysandra, with occasional wood-sorrel, mints, and dandelions. The location of my plants and trees are identified on the lot plan that I keep for my habitat.

The photos taken by the jack-booted Metala woman not only do not show any listed weeds, they do not show the height of my plantings which is why even Judge Spaeth threw her charges out on this ordinance back in ´98. She must be a slow learner or she simply feels she is immune to punishment for her misapplication of zoning authority.

My pictures demonstrate, as they did in ´98, that our grass is under 8". Back in that case, the city attorney made a pitiful attempt to weasel with the word height as if it meant length. Some grasses lay over, some we specifically planted, like creeping red fescue, though our grass is not a monoturf by any means. And some grasses simply can be made to lay over when they reach a certain height.

My daughter and I share an interest in wildcrafting medicinal herbs and that´s why we have been delighted to experiment with our wildcrafting gardens in the forest and orchard area. Both plantain and indian strawberry have medicinal properties which we have explored for ourselves, our friends and family. Neither of those plants exceed the eight inch height according to the botanical books, nor does pachysandra in the gardening catalogs (which say 6"). Just because the Metala woman´s pictures show lush, green ground cover does not in any way prove that the 8" limit was exceded. There are no noxious weeds nor any lawn grass over 8".

3. Summons 10946 - case no. 2000 CR-B-796 alleges that our yard has an exterior blight area. For the identification of this area, we have the Metala woman´s certified notice which states in the remedy section her demand to rake away the leaves around the fence line and other debris (which apparently referred to twigs since that´s all that was there). The leaves were there for winter-to-spring composting of soil enhancement materials, such as kitchen offal. By mid-summer these leaves are normally used up and then I resort to leafy material from summer overgrowth in the habitat. To remove these from the fenceline, where they were completely harmless (and in fact provided a deep mulch to enrich the soil and control weed growth), I have simply used them as deep mulch around my willow and a maple. The willow especially was in need of the moisture of the mulch after the last two drought years.

As for the other demands the Metala woman is now making through her pictures, referring to the lightning de-horned poplar, the brushpile and anything else she can trump up, these were not on the notices she sent for this charge about blight and constitute making the prosecution a moving target besides being outrageous meddling. I´ve consulted an arborist about the poplar and he confirms our observation of tree behavior, namely that, in a forest, the tree will embrace the fallen member and lower it inch-by-inch with each windstorm. The process will likely take a couple years. The brush pile is for habitat and consists of exactly the same materials as the neighbor´s kindling pile but it was not listed as part of the remedy demanded for this charge.

As for the ordinance´s rationale about economic factors, my line of credit has grown, according to the bank´s professional appraisers, at a faster rate (since we began natural landscaping five years ago) than the rates observed by the county auditor´s tax assessors for our area. Further we have real estate values of actual homes sold in the immediate area which confirm that prices here are healthy. Though there are a number of landscaping bigots among our neighbors, their role is more orchestrated than the city claims. We noted, for example, that the date of the neighbor complaint (listed as April 19th) is after the date that the Metala woman sent her certified letter. The response at the appeal hearing is another indication of how orchestrated this affair is and how complicit is the city´s law director. Among his interventions to cover Metala´s trail of harassment were the withrawal of two of her original certified notices, which were even more patently false than the summons about the non-existent hedge. His activities during the charade that passed as a public hearing though were classic. For him the only recourse may be to make a claim through the Ohio Supreme Court Disciplinary Council which monitors the behavior of attorneys.

So that´s where we stand today. We´ve tried contacting the Green Party, and other national figures who claim environmental and governmental interests. The results may come to a head July 12th when we have our court appearance next. This time we think we will be represented by a friend of my sister´s who has offered to do this pro bono,... a real White Hat in the old movies. Wish us well, or better still, come lend your voice any way you can to bring pressure or support.

Ideas, via snail-mail, should be sent to

Penelope Press
PO Box 54050
Cincinnati OH 45254

or by email.