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Gul v. City of Bloomington

Court of Appeals of Indiana

December 22, 2014

ALEXANDER GUL, Appellant-Plaintiff,
v.
CITY OF BLOOMINGTON, Appellee-Defendant

Page 854

APPEAL FROM THE MONROE CIRCUIT COURT. The Honorable Valeri Haughton, Judge. Cause No. 53C08-1308-MI-1428.

ATTORNEY FOR APPELLANT: JAMES ALEXANDER TANFORD, Bloomington, Indiana.

ATTORNEY FOR APPELLEE: PATRICIA M. MULVIHILL, City of Bloomington, Bloomington, Indiana.

BAKER, Judge. MAY, J., and BARNES, J., concur.

OPINION

Page 855

BAKER, Judge

" Her lawn

Looks like a meadow,

And if she mows the place
She leaves the clover standing

Page 856

And the Queen Anne's Lace!" [1]

" The grass may be greener on the other side of the fence but you still have to mow it." [2]

Alexander Gul believes that modern day lawn maintenance practices are harmful to the environment. As a result, he refuses to mow his lawn to comply with an ordinance requiring that the height of grass in one's yard may not exceed eight inches. He appeals the trial court's order granting summary judgment in favor of the City of Bloomington (Bloomington) on Gul's complaint against Bloomington appealing an administrative conclusion that Gul had violated the grass height ordinance.

Gul argues that the ordinance at issue (1) violates his freedom of conscience under the Indiana Constitution; (2) violates his freedom of expression under the United States and Indiana Constitutions; (3) is facially invalid because it conflicts with two Indiana Code provisions; and (4) is void for vagueness under the federal Due Process clause. After cutting through Gul's arguments, we affirm.

FACTS[3]

Gul owns and occupies residential property in Bloomington. On multiple occasions throughout the years, Bloomington has cited Gul for violations of Bloomington Municipal Code section 6.06.050 (the Ordinance), which prohibits a landowner from allowing the property to become overgrown with grass that is over eight inches tall.

Gul allows his yard to grow naturally and does not apply chemicals, mow, water, or fertilize it. He explains that his decision to maintain a natural yard is a statement of his sincerely held environmental belief that the overuse of chemicals, water, and lawnmowers to maintain a traditional lawn is harmful to the environment.

Bloomington officials disagree and view Gul's yard as merely overgrown. Over the course of twelve years, Gul has been cited for violations of the Ordinance thirty-eight times. He has been assessed fines totaling $1720 and abatement costs of $1100.

On July 11, 2013, the Bloomington Department of Housing and Neighborhood Development (HAND) issued Gul a citation for having tall grass and assessed a fine of $50. Gul appealed the citation to the Bloomington Board of Public Works, and the Board affirmed the citation and fine on July 30, 2013.

On August 7, 2013, Gul appealed the Board's decision to the trial court. On November 20, 2013, the parties submitted to the trial court joint stipulations of facts, law, and exhibits. Based on those documents, Gul filed a motion for judgment on the stipulated record on December 12, 2013, and Bloomington filed a motion for summary judgment on January 16, 2014. The trial court denied Gul's motion and granted Bloomington's motion on January 23, 2014, finding that the Ordinance does not violate the United States or Indiana Constitutions and that it is not facially invalid. Gul now appeals.

Page 857

DISCUSSION AND DECISION

Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Pedraza v. City of E. Chicago, 746 N.E.2d 94, 99 (Ind.Ct.App. 2001). On appeal, the trial court's order granting or denying a summary judgment motion is cloaked with the presumption of validity. Id. The appellant has the burden of persuading this Court that the decision to grant summary judgment was erroneous. Id. On appellate review, all properly asserted facts and reasonable inferences that may be drawn therefrom should be resolved against the movant. Id. We will sustain the trial court's decision if it is sustainable by any theory or basis found in the record. Id.

In this case, Gul argues that the Ordinance is unconstitutional. We apply a de novo standard of review to determine the constitutionality of a statute or ordinance. Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1272 (Ind. 2014).

I. Freedom of Conscience

Article 1, Section 3 of the Indiana Constitution provides as follows: " [n]o law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience." Gul argues that the Ordinance is unconstitutional because it interferes with his ...


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