To:  Community Development Department, and Board of Supervisors, Albemarle Co. 

 

Subject:  Comments by the Natural Heritage Committee on the proposed Weed Ordinance – April 14, 2009

 

We appreciate the opportunity to review the proposed weed ordinance.  The consensus of our Committee is that weed ordinances generally are at odds with the concept of biodiversity protection.  Most of these are an outgrowth of a subset of urbanites wanting to engineer and sculpt lawns and gardens in 19th Century Victorian fashion.  It has been demonstrated many times that excessive mowing and management (herbicides, fertilizers) reduces a landscape to a simple monoculture with little value for biodiversity, reduced filtering capacity, and lower flood control capacity.  These management methods are costly, aesthetically noxious (constant lawn mower noise), produce excessive CO2 and aerosols, and use copious amounts of petroleum.  Our preference would be to avoid introducing any weed ordinance in the County.

 

If this option is not feasible, we suggest some guidance developed for other localities.  Given the efforts being made to encourage natural landscaping by the Environmental Protection Agency, The National Wildlife Federation, The Nature Conservancy and in many localities in Virginia (including the City of Charlottesville) the Natural Heritage Committee has some recommendations concerning the language of the proposed weed ordinance.  

 

 

First of all, to prevent an equal protection challenge to the ordinance, we feel any ordinance should be limited to developed areas within the designated Growth Areas of the County. To review some of the legal issues involved with weed ordinances please refer to the article in the John Marshal Law Review here:

 

http://epa.gov/greenacres/weedlaws/index.html

 

It should also be written so as encourage natural landscaping and the use of native plants.  To see what the City of Charlottesville has done to encourage Natural Landscaping visit:

 

http://www.charlottesville.org/Index.aspx?page=2261

 

They have also allowed for natural landscaping in their weed policy here:

 

http://www.charlottesville.org/Index.aspx?page=2350

 

It is also important that that definition of a "weed" be very clear, and so the concept of a "noxious weed" should be used instead which has a much more specific definition.   This would include invasive exotic species that quickly colonize unmanaged areas and are indicators of neglect, (Please reference the Virginia Department of Conservation and Recreation’s Natural Heritage Program website for more information at http://www.dcr.virginia.gov/natural_heritage/invspinfo.shtml)   It would also include giant ragweed, which although native, poses moderate health risks if placed in an area where people have contact with it. These species are enumerated in the USDA Plants database (http://plants.usda.gov/java/noxComposite)

 

Below is a model weed ordinance taking all these factors into account that we feel would be appropriate for Albemarle County and meet the criteria of passing both equal protection and being least restrictive:

 

 Unlawful growth of weeds and other vegetation.

 

(a)   The following definitions shall apply to these words when used in this section:

 

(1)   “Director” means the director of ______ and their designee(s).

 

(2)   “Owner” means:  (i) that person who owns any parcel of real estate, as identified in the real estate tax records in the office of the city assessor; (ii) any person who is the occupant or tenant of any parcel of real estate; (iii) any person having charge of a parcel of real estate as an executor, administrator, trustee, guardian or agent, or (iv) the beneficiary of any easement or right of use of a parcel of real estate

(3)  "Weed" shall any unmanaged species indicating neglect that poses a significant risk to the health and safety of people or the environment, including noxious weeds as listed by the USDA and invasive species as listed by the Virginia Department of Natural Heritage.  This definition shall not apply to (i) cultivated crops; (ii) public recreational areas or trails intended to be left in their natural state; and (iii) vegetation along natural streams or watercourses when necessary to deter erosion and; (iv)natural landscaping,

 

(4) "Natural Landscaping" shall mean a managed area specifically set aside by a land owner for conservation purposes, using native plants, which aims to blend residential or commercial property into the natural surroundings.  Natural landscaping shall (i) not encroach within a minimum of 5 ft from any developed areas, roads, or buildings (ii) Include a plan to identify and manage native plant material as well as a plan to manage and eliminate noxious weeds. (iii) include and maintain at least 80% native plants (by area coverage).

 

(5) "Native plant" shall mean a plant species herbaceous or woody indigenous to the mid-Atlantic states prior to the settlement of Jamestown, Virginia.

 

(b)   A person found guilty of a violation of either of the following provisions shall be punished as provided in section ___ of this chapter.

 

(1)   It shall be unlawful for the owner of any parcel of real estate to allow weeds or turf grasses to reach a height of twelve (12) or more inches or otherwise create a risk to the public well being, where such weeds are located: (i) on any developed lot or parcel in any Growth Area of the County, or (ii) on that portion of any undeveloped lot or parcel in the Growth Area which is within one hundred fifty (150)feet of any building, street, sidewalk or public right-of-way. All weeds existing in violation of this section are hereby declared to constitute a public nuisance.

 

(2)   It shall be unlawful for the owner of any parcel of real estate to allow thereon any hedge, shrub, tree or other vegetation, the limbs, branches or other parts of which overhang, extend or protrude into any street, sidewalk or public alley in a manner which obstructs or impedes the safe and orderly movement of persons or vehicles thereon, or in the case of trees, when the dead limbs or branches thereof are likely to fall into or across such street or sidewalk thereby endangering such persons and vehicles. Any such hedge(s), shrub(s), tree(s) or other vegetation existing in violation of this section is hereby declared to constitute a public nuisance.

 

 

Finally, if the County chooses to support a weed ordinance, we would offer to provide technical assistance on the effort.  Three of our committee members have extensive experience on issues related to native versus non-indigenous plants in Virginia, Jan Ferrigan, Lonnie Murray, and Phil Stokes.

 

Sincerely,

R. Michael Erwin, PhD

Chairman, Natural Heritage Committee

(EM: rme5g@virginia.edu, or 924-3207)

 

     

 

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