Ordinance Dispute at Center of Help Yourself Garden Controversy

Photo courtesty of Ada Smith.

Last week’s city council meeting was packed with area residents who had heard about an ordinance violation issued to the owners of the Help Yourself Garden. The garden was planted by Tom and Laura Huth-Rhoades who, with the help of a local Girl Scout troop, added a stand last month to make it easy for people to leave and take produce.

In issuing its ordinance violation, the City of Lowell said the garden was never authorized in the first place. However, Laura Huth-Rhoades maintains that her garden is legal according to city rules. The issue has boiled over into a public dispute between the city, neighbors and Huth-Rhoades with accusations of bullying or threatening behavior being leveled on all sides.

To better understand the issue, Lowell’s First Look sent a Freedom of Information Act request to the City of Lowell for all documentation pertaining to the property. We have also met with City Manager Mike Burns and Chief of Police Steve Bukala to hear their perspective on the issue and have had multiple previous conversations with Huth-Rhoades. We also reached out to neighbors who live on Grove Street next to the garden to hear their concerns, but they preferred not to comment at this time.

City Says Multiple Ordinances Apply to Situation

The property at 906 E. Main St. prior to the creation of the Help Yourself Garden.

City leaders say there are multiple ordinances that are problematic for the creation of a community garden at 906 E. Main St., the location of the Help Yourself Garden.

For one, the home is zoned R-2. Community gardens aren’t allowed as either a regular or special use in that district. However, a search of Lowell ordinances doesn’t result in any mention of community gardens, implying that they are not specifically regulated in the city.

A secondary issue is the placement of the garden between the sidewalk and Grove Street. This section is the right-of-way, and the city maintains it is public property and prior approval is needed for any special plantings.

Burns and Bukala say homeowners could plant a garden in the yard between the sidewalk and the house, but it would have to be for personal use. They assert that any community garden would not be allowed in the R-2 District, regardless of its location on the lot. They also note the recently added farm stand is a non-compliant accessory building.

Homeowner Says City Authorization Isn’t Needed

Huth-Rhoades maintains the city has no right to dictate what can be planted in the right-of-way. She points to a section of the ordinance that directs property owners to properly maintain the right-of-way and keep it free from nuisances. Within that section, 23-47(c) notes:

“This article is not intended to prohibit or discourage the practice of developing natural groundcover areas, prairie yards, or gardens and lawns using accepted xerophytic plantings and techniques. It is intended to abate and eliminate situations where property is in a state of actual neglect and shows no distinct plan or pattern of upkeep or maintenance.”

This, for Huth-Rhoades, is proof of her right to plant a garden between the sidewalk and street. She has publicly stated that she, therefore, has no intention of removing the garden despite the ordinance violation ordering her to do so by September 19.

Lengthy Communication Proceeded Garden Creation

The property at 906 E. Main St. after the garden was planted.

Communication regarding what would eventually become the Help Yourself Garden started early in 2018. While documentation provided by the City of Lowell in response to the FOIA request started on April 30, one email from Huth-Rhoades references writing Burns earlier in the year.

Huth-Rhoades also says she had set up a meeting with Burns for earlier in April, but he did not show up. Burns says he was in the middle of working on the annual budget and unable to meet. However, Huth-Rhoades says Burns himself had suggested the April date when a meeting was requested in February.

The email communications obtained by Lowell’s First Look start with a lengthy exchange between Huth-Rhoades and city officials. Huth-Rhoades initially emailed City Clerk Sue Ullery, and as the emails progressed, over the next three days, Burns and City Attorney Dick Wendt added to the email chain. In all, 28 emails are recorded in the FOIA documents for the period from April 30 to May 3.

Within those emails, Huth-Rhoades asked three times for the specific ordinance pertaining to planting in the right-of-way before being directed to a specific section. When she disputed whether that section applied to the proposed garden, a different reason was then provided. This pattern continued and eventually, all of the following were mentioned at some point within the exchange as reasons why a garden would not be possible:

  • The garden was not permitted in the R-2 District.
  • The right-of-way is city property.
  • The city would have liability if someone were injured in the right-of-way./The city needs to be able to access the right-of-way for utility work and doesn’t want to be responsible for replacing the garden.
  • The garden is prohibited by nuisance and clear vision ordinances.

Ultimately, Burns denied the request based on the issues of liability and the city’s need to be able to access the right-of-way in an emergency. In a separate email, Wendt informed Huth-Rhoades that any attempt to plant in the right-of-way would be considered trespass.

While Tom and Laura Huth-Rhoades had a meeting with Burns scheduled for May 10, the denial email was sent on May 3. A lengthy email from Laura Huth-Rhoades followed. It disputed the city’s position on the issue and characterized the denial as a “legally unsubstantiated and heavy-handed approach to this matter.” In response, Burns noted city staff had been nothing but polite and professional in communication. He canceled the May 10 meeting and said there would be no further response.

Huth-Rhoades then requested a meeting with Mayor Mike DeVore, but it does not appear he responded directly. Instead, that email was forwarded to Burns. From the emails, it seems Huth-Rhoades and her husband Tom may have attended the May Coffee with Council meeting for they sent a follow-up email to Councilmembers Jeff Phillips, Jim Salzwedel and Marty Chambers to thank them for their time. Phillips and Chambers forwarded their emails to Burns. It is unclear if Salzwedel responded.

The emails from city councilmembers were dated May 7. On May 8, Burns sent an email to Huth-Rhoades saying he was authorizing traditional ground cover for the right-of-way along Grove Street.

Tom Rhoades responded by saying that he and his wife were “glad to be able to proceed, without incident or fear of reprisal, in pursuing plantings in accordance with city code sections 23:46-48.” That section of the ordinance prohibits public nuisances such as noxious weeds. Rhoades also asked if it could be assumed the no trespass order from the city attorney was also being rescinded. Burns responded to that email with a single line: “In regards to your question that would a correct assumption.”

Neighbor Complaints Prompt Enforcement Action

While Huth-Rhoades did communicate with Burns in July and August about her concerns with traffic speeds along Main Street, nothing further was said about the garden until the ordinance violation was issued on August 30.

When asked why a violation wasn’t issued or the homeowners contacted as soon as work in the right-of-way was noticed, Burns says he decided not to take enforcement action in order to keep the peace. “I thought ok, no one’s complaining,” he explains.

Reflecting on the current situation, Bukala says this is where the city made an error. “The mistake was that we let it go,” he says. However, he adds the alleged violation couldn’t be ignored once neighbors started complaining.

The first neighbor complaint arrived on August 29. It cited an increase in traffic along S. Grove Street, a dead-end road. The neighbor also questioned Huth-Rhoades’s motivation for creating the garden and noted that it “is not very appealing.”

The ordinance violation letter went out the next day, on August 30. However, it cited different concerns that what Burns noted in his May 3 denial email. The ordinance violation reads:

An unkempt “community garden” whereas the original agreement was ‘ground cover only,’ which is located in the city-owned right-of-way. This violates zoning section 7.02 under R-2 permitted use, as well as Article III, Section 23-47(2).

On September 4, a second neighbor sent an email of complaint. That message cited a concern that neighbors were not consulted before the creation of a community garden. It also referenced the garden as an eye sore and said yard work being done with a Bobcat at 9pm on a school night.

The complaint also noted increased traffic along Grove Street, but at the same time, the neighbor wrote: “For the most part, the garden is only busy when [Huth-Rhoades] has cameras present.” Of the eight main paragraphs in this emailed complaint, six are devoted to outlining alleged faults in Huth-Rhoades’s motivation and character.

The emails from these two households reference a third neighbor who had concerns about the garden, but there is no record in the FOIA documentation of that person contacting the city or police department directly.

Meanwhile, Huth-Rhoades says the garden is well-maintained and that only 4-5 visitors come each day. She also says most visitors either park on Main Street or pull into her driveway rather than driving down Grove Street and turning around in the cul-de-sac.

Mayor Defends City Action

Lowell’s First Look reached out to all city councilmembers for their perspective on this issue, but as of press time, only received a response from Mayor Mike DeVore. In a written statement, he strongly disputes how the issue has been characterized in the media. “It is being sold to the community and to any media outlet who will listen as a governmental body seeking to deny the community and it’s [sic] citizens of a benefit and to shutter a resident’s freedom,” he writes. “That could not be further from the truth.”

DeVore notes that the zoning violations against the Help Yourself Garden have been confirmed by Burns, Wendt and Williams & Works, an engineering firm which assists the city with planning and zoning issues. “They are legitimate violations,” DeVore says. He adds that they have been addressed in the same way any other zoning violation would be handled.

In closing his statement, DeVore says: “All the council members, myself included, and the city administration is completely supportive of the community garden…Supportive of a great idea that does benefit the community as a whole and hopefully will inspire plenty of residents to become involved. Just NOT in it’s current form and NOT at it’s current location.”

Issue May Become a Legal Matter

Bukala and Burns were hesitant to speak at length about the matter because of a concern that it could turn into a legal issue. Still, they asserted that a garden cannot be planted in the right-of-way because the city owns that strip of land. While they say a garden could be planted in the front yard, they maintain a community garden would not, under any circumstances, be allowed in the R-2 district. When asked how a community garden is defined, they deferred to the city attorney on that matter.

Meanwhile, Huth-Rhoades feels like the city was evasive from the start and is ignoring 23-47(c) which explicitly says there is no intent to discourage the planting of gardens. She is frustrated that despite repeated requests to meet with Burns, she was never given the opportunity to discuss this issue with him face-to-face. She also notes that the ordinance violation did not give her any opportunity to appeal.

City Attorney Dick Wendt is expected to be at the City Council meeting on September 17 to address this issue further.

Be the first to comment

Leave a Reply

Your email address will not be published.