Void for Vagueness

[Kristin Roisen]

I have been cited for a violation of the following city ordinance. 131.100 LOCATION, HEIGHT, and DENSITY of FENCES, WALLS, and HEDGES. (A) Except as provided in subsection (d), a fence,wall, or hedge not more than eight feet in height may be within ten feet of a property line abutting a street when that portion above 30 inches in height is less than 25% opaque when viewed from any angle at a point 25 feet away from the fence, wall or hedge. I want to trim my hedge fence to comply with the 25% opaque provision, however they will not give me in writing an objective measurement critieria of how to comply with the 25% provision of the ordinance. The only answer I have been given is "if it isn't what I think is 25% opaque I will give you a ticket." The code officer's supervisor said "you can only have sticks". Do I have a case to fight on the basis that it violates my right to have a written measurement criteria so I know when I have complied. Someone told me it violates my due process rights in that it is void because it is too vague. Also they say it is a public safety ordinance but there ares hundreds of violations all over a town of over 100,000 that violates this ordinance that they do not enforce. Many just a block or two away from my house. It doesn't seem fair that they have singled me out because my neighbor complained and the rest of the violations in the neighborhood were not cited.

 

[ALawyer]

Unfortunately for you an ordinace, that a neighbor is seeking to enforce, has become a problem.

If every law and ordinace was fully enforced the uproar would be so great we'd get rid of a lot of stupid laws. But that does not mean than a valid law can not be enforced, even if enforcement is spotty. Otherwise everyone stopped for driving 70 in a 60 mile zone could say "everyone else is doing it". And let's face it, many laws get enforced only when people complain.

This law does not seem particularly vague. 75% is susceptible of measurement. If the cop gives you a ticket you could fight it in court. They'd have to prove it exceeded the maximum opaqueness.

I doubt that it raises Constitutional issues that would be worth your while to pursue.