How the Government Got in Your Backyard

by Jeff Gillman

  There is little incentive or need to remove peyote, magic mushrooms, and other drugs from the Schedule I list, except in specific instances where these drugs have religious or medical uses. Peyote can be used in some states for religious rituals.

  Right-Wing Rating Is anyone else suspicious that medical reasons aren’t really the primary motivation here? Scientifically proven painkillers are widely available. We don’t need to make it easier for people to make self-destructive and socially destructive choices.

  Left-Wing Rating Marijuana is illegal mainly because it was used at one time by unpopular racial minorities. It is arguably safer than alcohol and many legal prescription drugs, and thus should be available at least for medically useful purposes.

  Policy Option Two: Have a Longer List of Illegal Plants

  There are many, many plants in the United States that can cause harm to people but are not currently regulated by the government. One of the foremost of these plants is castor bean, a noninvasive plant often used as an ornamental, which can produce the extremely deadly toxin ricin. It’s arguably easier to make ricin from castor beans than it is to make opium from poppy seeds. Currently, ricin has no accepted value as a medicine, so it should be on the list as a Schedule I drug. If the standard for inclusion on the list is that a plant must not only be dangerous but also a narcotic, then there are still plenty of plants out there that fit this description, including deadly nightshade and Salvia divinorum, which is a hallucinogenic drug of choice for youngsters that leaves them in a temporary, though disturbing, stupor. Why aren’t we actively adding these plants to the Schedule I drug list, so we can keep them away from users who could potentially hurt themselves or others?

  Right-Wing Rating Adding more plants to Schedule I would dilute our efforts against already existing, and much more prominent, plant problems.

  Left-Wing Rating Adding more plants to the list restricts our personal freedoms further without making us significantly safer.

  Policy Option Three: Legalize All Plants

  If you ride a motorcycle, there’s no denying that it’s safer to wear a helmet. Still, some people choose to wear a helmet, and some choose to take their chances. Driving laws are largely governed by the state where you live and, while some states make it illegal not to wear helmets while riding on a motorcycle, most think it should be the rider’s choice whether their crash results in a minor concussion or a fatality. The government is not so flexible when it comes to plants, though, and it maintains a “do not grow” list that seems arbitrary. You could grow tobacco (it’s only killed 90 million people or so), castor bean, deadly nightshade, or Salvia divinorum, but you can’t grow coca, or the poppies from which opium is made. This is despite the fact that it would take a tremendous amount of plant material as well as a significant amount of chemical know-how to make cocaine from coca or opium from the poppies.

  What is clear, especially to gardeners, is the lack of understanding that the government has regarding plants. Poppies are illegal but castor bean, which is used to make ricin (categorized as a biological agent according to the federal Biological Weapons Anti-Terrorism Act of 1989), is legal to grow. It all seems hypocritical or, at best, confused.

  The government also takes an inconsistent stance with regard to the drug THC. As of the writing of this book, the drug dronabinol, which has the same active ingredient (THC) as a marijuana cigarette, is legal with a prescription, while the marijuana cigarette itself is not.

  As long as the government can’t reasonably and consistently decide what is safe and what is dangerous, then it shouldn’t schedule any plants at all. There would still be plenty of laws in place banning dangerous behaviors, including driving under the influence of intoxicating substances. This wouldn’t change. Laws might even become more stringent to compensate for the legality of these plants.

  Decriminalization also saves taxpayers money in several ways. If marijuana, magic mushrooms, and other drugs were legal they could be taxed like alcohol and bring in considerable revenue to state and federal governments. Law enforcement costs for arrest, prosecution, and particularly incarceration of drug users would be drastically reduced, saving governments more money. And crime would decrease, both organized crime and street crime, because drugs could be obtained legally—which means more safely and inexpensively.

  Right-Wing Rating It’s not about the money; it’s about public safety. The good life comes from working hard, not from intoxication. Decriminalizing any currently criminal behavior would reduce crime, but that’s an empty and ineffective solution, since the underlying dangers of drugs would remain.

  Left-Wing Rating Use actual scientific evidence to determine which drugs have hazardous effects and classify them and regulate them appropriately on the FDA Schedules. If a drug isn’t clearly more dangerous than legal drugs like alcohol, take it off the Schedule and let adults make their own decisions.

  Policy Option Four: Legalize Plants for Medicinal and/or Religious Reasons

  Many states already allow the use of marijuana and peyote for religious or medical reasons. Unfortunately, the federal government seems to be working its hardest to keep both of these plants on its Schedule I list. The lack of a federal law governing religious or medical uses means that the federal government could arrest anyone using or possessing these plants. Laws need to change so that people who really need marijuana can get it. Additionally, by descheduling marijuana, research grants from the United States government could be made available to start testing it more thoroughly to see how much promise it really has for treating nausea, glaucoma, pain, and other problems. Despite the report in 2006 by the FDA concluding that there was no legitimate medical use for marijuana, there actually have been studies that demonstrate the contrary, and it would be beneficial if the government explored the possibility that marijuana and other currently illegal drugs could be a useful source of medicines.

  This option is actually, functionally, very close to the way things are working right now. The one significant difference would be that states that don’t allow certain plants to be used medicinally or for religious purposes would be forced to do so.

  Right-Wing Rating Selective legalization for medical and especially religious purposes may be acceptable, as long as the drugs are tightly controlled and aren’t made completely legal.

  Left-Wing Rating This seems fair, especially when it comes to helping those who are sick.

  The Bottom Line

  There is no question that there are plants on the list of Schedule I drugs that can cause harm to people. However, there is also no doubt that the presence of certain plants on the list and the absence of others seems to show that the government places plants on the list because of political pressure rather than their real dangers.

  Smoking weed is not necessarily a victimless crime any more than drinking alcohol and driving, or smoking tobacco in a bar where others will inhale that smoke are victimless crimes. Yes, many of the plants currently on the Schedule I list have effects that are arguably worse than alcohol, prescription medications, or certain other plants that are legal. But even people who are extremely concerned about the use of harmful recreational drugs see the benefit of allowing terminally ill patients who cannot swallow the more widely prescribed medications to use marijuana cigarettes.

  Based on the research that we have and what we know, it seems a questionable decision to continue to list marijuana as a Schedule I drug, though it probably should not be listed as anything lower than a Schedule II drug, until we have more data. We need more information about many of the plants listed on Schedule I, in addition to marijuana. These plants have not been sufficiently researched by our government for their potential uses beyond their ability to give recreational highs. Without this data, their placement as Schedule I drugs seems terribly hypocritical, when so many other plants that can cause intoxication or even death are allowed to remain unscheduled.

  CHAPTER 10

  Local Restrictions: Is Your

  Backy
ard Really Yours?

  THE BEACON WOODS Civic Association in Bayonet Point, Florida, took Joseph Prudente, a man who was a little down on his luck at the time, to court because he couldn’t afford to sod his lawn in what was a deed-restricted community. The association had told Prudente repeatedly to fix up his lawn. When he didn’t, they decided to force the issue, noting that he had signed an agreement to keep his yard covered with grass. Prudente didn’t show up on his appointed court date, and was found in contempt of court. He was jailed without bail on Friday, October 10, 2008, until he could afford to sod his yard. Fortunately, some good-willed neighbors came to the rescue, donating time and sod to the effort, ultimately springing Prudente from the slammer that Sunday.

  If the Joseph Prudente case were an isolated incident, we could all sit back, relax, and have a good laugh—but it isn’t. Across the United States there are any number of restrictions and requirements that local governments place on your yard. Sometimes these requirements seem to make sense, such as restricting the number of chickens a person can keep in an urban or suburban dwelling, and sometimes they seem to be a bit off the wall, like requiring a particular grass height.

  Over the years, a number of court cases have been tried regarding the enforcement of standards on a person’s yard, but none has received as much attention as City of New Berlin v. Hagar. Unlike Joseph Prudente, Donald Hagar did have the means to maintain a nice suburban yard. But he didn’t want to. In 1976, Hagar was a wildlife biologist in the process of creating a meadow on his 2½ acre property in New Berlin, Wisconsin. The creation of this meadow precluded a lawn, which irritated the powers that be in the city of New Berlin and they proceeded to sue him for violating their weed law. They pointed out that Hagar’s property included plants that produced allergens, had the potential to spread fires rapidly, and provided shelter for nasty creatures such as the Norway rat. What the city didn’t count on was that Hagar had friends who actually knew something about the meadow he was growing, including professors from the University of Wisconsin and employees of the U.S. Forest Service. In court these expert witnesses testified that meadows such as the one Hagar was cultivating did not create shelter for rats and were not particularly likely to spread fire, and that the plants within this meadow were less likely to produce allergenic pollen than the exotic Kentucky blue-grass planted in other yards (despite its name, Kentucky bluegrass is not native to the United States) or trees such as oaks. Finding nothing to support the claims by the city that Hagar’s yard was a hazard, the judge ruled in his favor. The court then proceeded to strike down the weed ordinance because the basis on which the law was built was so weak.

  As our country has come to understand and appreciate native plants, many of the local laws that once regulated what people could grow in their lawns have disappeared, or at least ceased to be enforced. However, there are still fines that can be levied against those who go their own way. In 2009, Asa Dodsworth, a resident of Berkeley, California, was threatened with fines of $3000 per day for what amounted to growing a vegetable garden and fruit trees in his front yard: vegetation over six feet tall, unpermitted trees, unpermitted garden beds, and obstruction of the right-of-way. While it’s true that some of his plants were covering the sidewalk and may have been considered a hazard, 3000 seems a little steep for having a garden instead of a lawn.

  At one time a good lawn would have included a good amount of clover and other plants we now call weeds.

  The Science

  What constitutes a good yard has changed significantly over the years. At one time a good lawn would have included a good amount of clover and other plants we now call weeds. Yards today are filled with grass, and only grass. This didn’t come about by chance. During the Second World War, an herbicide was invented that would kill certain plants, like trees and dandelions, while leaving grasses alone. This chemical, known as 2,4-D, was the most effective herbicide known at that time. After the war (during the war it was deemed a wartime secret), it was considered a great tool for controlling weeds, such as dandelions in lawns. The problem was that it would kill clover in the lawn as well. Clover is a plant that collects nitrogen from the air and, when it is cut, provides that much-needed nitrogen to the grass as it grows. Without clover, grass needs fertilizers. It was once the case that you couldn’t have a decent lawn without clover, but today, clover is considered a persistent weed in most suburbs, and annual applications of synthetic fertilizers provide the nutrients that a lawn needs.

  Lest you get the idea that letting your yard go to weeds is a good idea, there are problems with poorly maintained yards. Lawns that are not mowed can be particularly attractive to ticks, which can spread Lyme disease and make general pests of themselves. Additionally, weedy lawns often harbor invasive and banned weeds. And then there’s the whole issue of how an untidy yard looks.

  Landscaping that is attractive, or at least acceptable, to a wide range of people does have some real benefits that are frequently ignored. Most of these benefits favor businesses in the area, but some also favor people who live in the community. People who shop in strip malls with better landscaping may pay as much as 8 percent more than they would at strip malls that aren’t well landscaped. People will also pay a premium for a nicely landscaped house, which may very well mean that your house is worth more in a well-maintained neighborhood than in a neighborhood that has perennially brown lawns.

  Government Policy

  Almost all the laws that affect your yard—zoning, building permits, and most uses of eminent domain—are local laws made by the more than 87,500 local governments (including counties, municipalities, school districts, and so on) in the United States. The federal government only rarely gets involved, for invasive species or intoxicating plants, or to protect wetlands and the habitats of endangered species. The greatest interference with your yard is likely to come, not from governments, however, but from rules made by local homeowners’ associations.

  Though the ability to protect your own property is a fundamental element of your individual rights, most people recognize that what they do with their property has consequences for their neighbors and can infringe upon the rights of others. Since colonial times, local governments have regulated individuals’ uses of their property to prevent public nuisances, such as slaughtering animals in urban yards. Likewise, long-standing zoning laws designate whether a particular property is to be used for residential, commercial, or industrial purposes. Beginning in the 1960s, state and local governments decided to expand the possible restrictions that could be put on land use in order to preserve historical landmarks, protect coastal areas, and maintain green space in cities and towns. These newer types of laws might, for example, require property owners to allow public access or use of their property in exchange for building permits. This type of local government restriction, of course, is seen as incredibly intrusive by property owners.

  Recent controversies about restrictions on property use generally have focused on one of two activities. The first involves a government “taking” property or reducing the value of property without “just compensation” for the property owner, as required by the Fifth Amendment to the U.S. Constitution. The second is the imposition of intrusive rules by homeowners’ associations on their residents. We’ll consider each in turn.

  The courts, with a few exceptions, have allowed local governments to make land use decisions without much restriction. (Land use, in this context, refers to whether a piece of property can legally be used as a place for a house, a farm, or a business.) Governments also have the power of eminent domain, meaning they can obtain property for purposes that will benefit the general public—roads, schools, and parks—as long as they pay just compensation to the property owner. This power allows the government to overcome the obstruction of individual property owners who are unwilling to sell or who are attempting to extort exorbitant prices for their property. When the land is being converted to public use, eminent domain is usually not controversial.

 
Local governments have pushed the boundaries of the concept, however. In the 2005 case of Kelo v. City of New London, the U.S. Supreme Court allowed the city of New London, Connecticut, to use its power of eminent domain to take homeowners’ properties and sell them to private developers as part of the city’s comprehensive redevelopment plan. The Court ruled that the benefits of economic growth qualified as a “public use” that benefited the entire community. The ruling generated quite a controversy because such a broad definition of public use puts everyone’s property at greater risk.

  Fortunately, having the government take property for reasons that stretch the definition of public use to extreme lengths is a rare occurrence. Still, these kinds of government actions have given rise to the property rights movement. Besides arguing against the unreasonable use of eminent domain, these groups also argue that government regulations that restrict the use of property amount to an uncompensated government “taking” of property. Restricting development in wetlands to protect water quality, or banning huge billboards because they are ugly or distracting to drivers, for example, means that property owners can’t make money from developing or selling their land in certain ways. Thus, the government should pay for the loss in property value caused by the restrictions. The courts have agreed, but under relatively limited circumstances.

  Oregon has the most stringent requirement that government compensate property owners for any loss in property value caused by government regulations. Traditionally, Oregon has had some of the strictest land use laws in the country (especially in the Portland area). However, voters in Oregon approved a ballot initiative called Measure 37 in 2004, giving property owners the right to claim compensation from the state or local government when the value of their property was reduced by environmental or other land use regulations. If the government failed to compensate them after two years of making the claim, property owners could make use of their property according to the regulations in place when they bought it. Critics of the initiative feared that the costs of complying with it would discourage local governments from passing or implementing land use regulations, since they couldn’t afford to compensate all potential claimants for all potential losses in property values. The initiative’s passage in Oregon spurred copycat ballot measures in several other western states. To date, all of these measures have been defeated by voters or invalidated by state courts. Even Oregon voters have reconsidered: in 2007, they passed Measure 47, which narrowed the applications of Measure 37 by prohibiting subdivisions on high-value farmlands, forestlands, and groundwater-restricted lands, and by preventing property owners from overturning existing zoning laws.