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ACLU challenges Clarksville yard-inspection ordinance

December 13, 2016

A Clarksville resident is suing the southern Indiana town for entering her yard without her permission or warrant, an action she says violates her Fourth Amendment rights.

The ACLU of Indiana filed the case of Mary Hazel Upton v. Town of Clarksville, Indiana in U.S. District Court for the Southern District of Indiana, New Albany Division, yesterday, requesting a preliminary injunction barring Clarksville town officials from entering residents’ yards or properties without express permission or warrant from a court. The ACLU brought the case on behalf of Mary Upton, a Clarksville resident who said town officials have repeatedly accessed her property without her permission to inspect it for weeds and stray cats.

In court filings, ACLU attorneys contend that personnel from the town of Clarksville have walked through a gate to enter Upton’s backyard, where they have conducted inspections and taken photos of her property. The inspections, which occurred in October 2012, September 2015 and July and September 2016, resulted in a “Notice of Violation” that required Upton to comply with town ordinances governing weeds within seven days or be issued a citation, which leads to a court appearance and possible fines.

The September 2016 notice found Upton to be in violation of town ordinances by having tall weeds, trash and junk in her yard, as well as for failing to address exterior maintenance and vegetation and yard-maintenance issues. After that inspection, Upton sent a letter to the town inquiring about their reasons for repeatedly entering her yard without permission.

In a response dated Sept. 30, Rick Barr, the Clarksville building commissioner, referenced Clarksville Town Ordinance 97.02, which provides that it is unlawful for a property owner to allow their property “to be overgrown with weeds, grass, or rank vegetation beyond the height of one foot, or to such an extent that the growth is detrimental to the public health and constitutes a nuisance.”  

Barr further wrote that there were two concerns with her yard. First, the uncontrolled growth of weeds and other plants was blocking the view of motorists driving by, and second, the excess growth had become entwined with a neighbor’s utility lines, he said.

Barr also sent Upton a copy of Clarksville Town Ordinance No. 20115-G-05, which provides that, “The Building Commissioner may at any reasonable time go in, upon, around or about the premises where any Building or Structure subject to the provisions of this Building Ordinance or the rules of the Fire Prevention and Building Safety Commission is located for the purposes of inspection and investigation of such building or structure.”

Finally, Barr wrote to Upton that if she did not remove the excess growth in her yard within seven days, she would be subject to a fine of no more than $2,500 a day, as well as the actual cost the town incurred to remove the excess growth for her.

But Upton’s attorneys wrote in their brief that the town’s practice of entering Upton’s yard without a warrant or her permission, and the ordinances that allow them to do so, are in violation of Fourth Amendment protections.

“The non-consensual and warrantless inspection of our client’s property is unconstitutional,” Ken Falk, ALCU of Indiana legal director, said in a statement.

Clarksville Town Manager Kevin Baity wrote to the Indiana Lawyer that as of Tuesday morning, the town had not yet been served with the ACLU suit, but that it was the town’s policy not to comment on pending or imminent litigation.  
 

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