Property Rights

Florida Appeals Court Upholds City's Veggie-Garden Ban

A court says a city can squash your property rights because it thinks vegetables are ugly.


Vegetable garden
Songdech Moonta / Dreamstime

Late last month, I had the opportunity to discuss my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, before a Seattle-based group of family and consumer scientists, many of them retired. During my talk, I focused in part on a series of city ordinances around the country that ban people from gardening in their own front yards. As almost always happens, these particular laws, among the countless dozens I discuss in the book, raised the most ire among the audience:

"Why would any city do this? How can a city do this? I hope these people are fighting back!"

One of the most egregious examples I highlighted comes from an ongoing case in Miami Shores, Fla. There, Hermine Ricketts and her husband, Laurence Carroll, had kept a nicely manicured vegetable garden in their front yard for nearly two decades. Then, in 2013, Miami Shores adopted an ordinance that banned vegetable gardens, and vowed to fine violators each day they failed to comply with the law.

The couple sued, arguing, as a local CBS affiliate put it, "that the ordinance ran afoul of the Florida Constitution, including that it violated their privacy rights and their right to acquire, possess and protect property."

Last year, a Florida state court upheld the vegetable-garden ban, on grounds that aesthetic reasons—the city thinks vegetables are ugly—are sufficient justification for a city to ban vegetable gardens.

Last week—a few days after my Seattle talk—a state appeals court ruled in the matter. The court's words are, at first, buoying. The decision begins with an non-exhaustive list of all the things Miami Shores residents may have in their front yards: "garden gnomes, pink flamingos and trolls…. boats and jet skis…. whatever trees, flowers, shrubs, grasses, fruits and berries they desire."

Everything save for vegetables.

Surely, thinks the reader, such a ban cannot stand. Tragically, after the appeals court's ruling, it did just that.

"Though [the plaintiffs'] claims seem compelling, the trial court's well-reasoned, ten-page final order rejecting the appellants' claims correctly acknowledged the difficult procedural posture confronting the appellants and dutifully applied controlling precedent," the appeals court held.

I will concede that the trial court's order is, in fact, 10 pages in length. Well reasoned? The order simply recommends that the proper remedy for Ricketts and Carroll—or anyone else whose right to plant a garden and feed themselves and their family has been trampled on—is to vote for better elected officials in their cities and towns. (It's worth noting that judges in Florida are also elected by voters.)

This is the judicial equivalent of the shruggie: ¯\_(?)_/¯

It's also a typical, if particularly repugnant, example of the trifling level of scrutiny—known as "rational basis review"—that's commonly applied by our courts.

"In Miami Shores, it is perfectly fine to grow fruit, build a pool, or park a boat in your front yard," says Ari Bargil, an attorney with the Institute for Justice, which represents Ricketts and Carroll, in an email to me in the wake of the court's ruling. "But this decision holds that it['s] perfectly rational for a City to prohibit vegetable gardens, while permitting virtually everything else."

Why ever would Miami Shores adopt such a draconian and unconstitutional measure? What rational basis might city lawmakers have had? These are great questions. Meh.

"City commissioners' motives in adopting ordinances are not subject to judicial scrutiny," the appeals court explains, citing Florida precedent. The particular Miami Shores garden ban is part of the city's zoning laws, an area in which courts often provide cities with almost boundless and arbitrary discretion.

"Prohibitions on gardens such as those in… Miami Shores… arise largely out of zoning regulations," I write in Biting the Hands that Feed Us. "Zoning, supporters contend, is intended to prevent conflicts and nuisances from arising. There's probably some truth to that argument. But sometimes, as in the case of the prohibitions on edible gardens detailed in this chapter, zoning itself becomes the nuisance and the source of conflict."

The problem of gardens and property rights snuffed out by draconian zoning rules is national in scope. In my book, I discuss many other examples of local gardening bans, several of which I first wrote about in a 2012 column, including ones in Oklahoma, Florida, Massachusetts, and Michigan (and have also written about since).

Thankfully, people are fighting back. For that approach to succeed, though, courts have to do their jobs.

"The Florida Constitution protects individuals from wholly arbitrary restrictions on their right to use their property," IJ's Bargil says.

I'm both optimistic and hopeful that Florida's highest court will see that truth and side with Ricketts and Carroll.