It seemed the bad publicity alone would quash the Village of Miami Shores’ spat with an elderly couple over a 17-year-old vegetable garden the pair grew in their front yard.
But for four years, the village of about 11,000 people in northeastern Miami-Dade County fought two of its residents—And won — twice, in a case that raised a constitutional challenge of a zoning code restricting vegetable gardens to backyards.
Homeowners Hermine Ricketts and Laurence Carroll bought a single-family house in Miami Shores in 1993, according to public records. For nearly two decades, they tended a lush tropical home garden with edible and ornamental plants, and vegetables like lettuces and cabbages in the front yard. During that time, Miami Shores permitted vegetable gardens in the back of homes. But in 2013, it changed that rule to limit these gardens “only” to backyards. The change meant Ricketts and Carroll had to uproot their plants, or face fines of $50 per day.
“Though these claims seem compelling, the trial court’s well-reasoned, 10-page final order rejecting the appellants’ claims correctly acknowledged the difficult procedural posture confronting the appellants,” Third District Court of Appeal Judge Vance E. Salter wrote in upholding Miami-Dade Circuit Judge Monica Gordo’s ruling against the homeowners.
The crux of the appellate decision: Ricketts and Carroll brought an “as-applied” constitutional challenge, arguing that the village’s application of the statute against them violated their constitutional rights—as opposed to a “facial” challenge, which would have alleged the legislation was always unconstitutional. They appealed to Miami-Dade’s circuit court after two unsuccessful appearances in administrative proceedings before the village’s code enforcement board, which sustained the violation, allowed a one-month grace period to remedy, and imposed $50-per-day fine for noncompliance after that period.
Ricketts and Carroll initially appeared pro se before the circuit court’s appellate division, but later removed the garden and dismissed the case, with the village imposing no fines. But they revived the case weeks later with representation from the Institute for Justice, a nonprofit libertarian public interest law firm. This time, they challenged the constitutionality of the design standard in the zoning code that permitted vegetable gardens “only” in backyards, and sought declaratory and injunctive relief.
But the state appellate court ruled the “first proceeding conclusively determined that a violation occurred based on the evidentiary record,” barring claims the statute was unconstitutional “as applied” specifically to the couple.
“This is just the way land-use law works. It’s an extraordinarily complex area of law,” said McGlinchey Stafford member Manuel Farach, who sits on the Florida Bar’s executive council for the Real Property and Business Law Sections, and was not involved in the litigation. “What you have here is a demonstration of just how difficult it is to show that your property has been taken by government action.”
Richard Sarafan and Nina Greene of Genovese Joblove & Battista represented the municipality.
“Plaintiff’s complaint hinges entirely on the legally incorrect claim of an inalienable/fundamental/constitutional right to grow vegetables in their front yard,” the defense attorneys wrote in a motion to dismiss the circuit court case. “This fatal defect defeats each of the various ‘kitchen sink’ challenges alleged by plaintiffs.”
Institute for Justice attorneys Ari Bargil and Allison Daniel in Florida and Michael Bindas in Washington represented Ricketts and Carroll.
“Miami Shores homeowners may have virtually anything in their front yard. They may decorate with garden gnomes, pink flamingos and trolls. They may park their boats and jet skis. And they are free to grow whatever trees, flowers, shrubs, grasses, fruits and berries they desire,” the couple’s lawyer, Bargil, wrote in a brief quoted in the opening of the Third DCA opinion issued Nov. 1. “There is, however, one thing forbidden: vegetables.”