Column: Weeding Out The Truth

If I had to pick sides, I guess I’m anti-lawn. Come summer the small patch of land in front of our Ann Arbor home turns into a micro-garden of pole beans, potatoes and tomatoes, with orange cosmos towering in the narrow strip between the sidewalk and street. Much of our back yard is filled with an herb garden, flowers and, of course, a teeter totter.

So when Doug Cowherd of the local Sierra Club chapter contacted The Chronicle about a dispute between Pittsfield Township and a homeowner who’d been issued a citation over the condition of his yard, I was prepared to sympathize with anyone who challenges the suburbian status quo.

And then, on Feb. 5, I sat on a hard bench through 7.5 hours of testimony in Judge Cedric Simpson’s court. I heard an awful lot about cultivation, weeds, native gardens, organic gardeners, neighbors, township ordinances and the definition of hearsay. I watched a drama unfold that revealed how, in the search for a righteous cause, truth can be inconveniently difficult to discern.

The Court

The 14A-1 District Court is housed in a one-story building off Washtenaw Avenue, between a Lutheran church and the county jail. People go there for small claims, landlord/tenant disputes, criminal misdemeanors and general civil cases within the geographic range of Saline, Milan and several townships, including Pittsfield. The building shows signs of age, as do its wood-paneled courtrooms, with fluorescent lights, ceiling fans, microphone cords snaking down from the ceiling and pew-like benches for the public. Judge Simpson has presided there since 1999. On the day of this hearing, newly-elected Judge Chris Easthope was presiding in the adjacent courtroom.

Security is fairly tight: no cell phones or other electronic devices are allowed without special permission, and I had to take my boots off to be scanned (it turns out, there are metal shanks in the soles that would have set off the alarm). The security guards and bailiffs are generally retired law enforcement officers or they have current jobs in law enforcement and pick up a few extra hours at the court. The ones I met were courteous, business-like and, especially after I’d spent a few hours there, friendly. One told me about the informal gathering of police and sheriff’s deputies – dubbed the League of Justice, or LOJ – that meets regularly at Damon’s. Another told me that if he were ruling in this Pittsfield case, “I’d say, ‘Cut your grass, buddy!’”

Pittsfield Township’s Case

Here’s one of only a few undisputed facts: On June 23, 2008, Pittsfield Township’s code enforcement officer issued a citation to Stanislav Voskov – who goes by Stan – for weeds in his yard and lawn extension that had grown higher than 10 inches, violating a township ordinance on property maintenance that carries a $100 fine:

302.4 Weeds. All premises and exterior property shall be maintained free from weeds or plant growth in excess of ten inches. All noxious weeds shall be prohibited. Weeds shall be defined as all grasses, annual plants and vegetation, other than trees or shrubs provided; however, this term shall not include cultivated flowers and gardens. This section shall be enforced according to the procedures in Chapter 38 of the Township Code.

What happened before and after that citation was issued? What’s the definition of “cultivated”? That’s where things get interesting. But the attorney for Pittsfield Township, Jennifer Charnizon, kept focused on the one crucial question: In June 2008, was the property on Dalton Avenue in violation of this township ordinance?

The first to testify was Edward Swope, a code enforcement officer for Pittsfield Township. He looks the part, with glasses and close-cropped gray hair  – a contrast to Voskov, whose long hair, also gray, was pulled back in a ponytail, tied with a green scrunchy. Swope testified that he’d first met Voskov in September 2006, within his first week on the job, responding to a neighbor’s complaint about an unkempt lawn. Swope said Voskov produced a document stating he’d reached an agreement with the township to maintain the yard this way, with various species of plants – but the document was unsigned, and the township denied entering such an agreement.

Nothing more happened in 2006, Swope said, because the seasons changed. But in May 2007 complaints resurfaced, so Swope again visited the property and testified he saw weeds higher than 10 inches. The photo he took (shown above) was among several entered into evidence.

Swope said he and Voskov exchanged “many communications,” which led to a third party getting involved: Katherine Czapp, an expert in natural landscapes, who was enlisted by Voskov. (Remember her name, as she plays a pivotal role later.) Czapp proposed a plan to create a natural landscape in the front yard, as well as a program to maintain it. Swope said when he returned to the property later that summer, he was satisfied with what they’d done.

That ended the drama in 2007, but in June of 2008 Swope testified that he again started getting complaints about the condition of the yard. When he checked it out, he said he found grass growing higher than 10 inches. When he talked to Voskov a few days later, Swope said Voskov told him he’d “let the front yard go” but promised to bring it into compliance by June 23 (Voskov later denied this claim). No changes were made to the property by the 23rd, Swope said, so he issued the citation.

The Homeowner’s Case

Voskov’s attorney, Steve Safranek – the second attorney to represent Voskov in this case – was in for the long haul. Before the hearing, he told The Chronicle it would be  a long night – it started at 4 p.m., and one of his witnesses wasn’t even planning to arrive until 7:15. This turned out to be a surprise for both the prosecuting attorney as well as Judge Simpson, who said,”I guess I’ll call my wife and tell her not to hold dinner.”

Safranek came at the case from several angles:

1. Conflicting ordinances. Safranek contended there was confusion over which ordinance applied to the situation, and cited another Pittsfield ordinance – Chapter 38, Article II-B – that allowed weeds as high as 18 inches. That ordinance also allowed exceptions to the height restriction for cultivated trees and shrubs, flowers or other decorative ornamental plants under cultivation, wildflowers and certain other plants.

Safranek said there were two different, conflicting standards at play, and that it wasn’t clear which ordinance was being applied. Charnizon pointed out that even under the 18-inch restriction, the property was in violation. Judge Simpson said: “The one that’s going to matter is the one in the court file.” At that point, Safranek said his client didn’t have a copy of the original citation, but that it appeared to him that the citation in the court file, submitted by Swope, had been altered. “That’s an extraordinarily serious accusation,” Judge Simpson said, one that alleged fraud. “You’d better be able to back it up now.” Safranek dropped that issue, and a seemingly exasperated Judge Simpson adjourned for a brief break.

2. Competence of Swope. In questioning Swope, Safranek challenged the ordinance officer’s ability to identify plants in Voskov’s yard. He asked Swope if he could name any wildflowers, cultivated shrubs or trees. “I’ll concede that he’s not a horticulturalist,” Charnizon said. Swope agreed that he wasn’t an expert, but said he didn’t believe the plants he saw were cultivated. When asked, Swope said he hadn’t measured the height of the plants with a tape measure. But, he said, based on the height of a standard 24-inch-high mailbox, he believed that grass and weeds growing higher than the mailbox proved they were over 18 inches when he issued the citation.

3. Cultivation: One of the main arguments Safranek employed was to define what it means to “cultivate.” He called Karen Reynolds, a horticulturalist who now works on the University of Michigan grounds crew, to testify as an expert witness. Before she could qualify as an expert, she was questioned by Charnizon as well as Judge Simpson about her credentials, prompting her at one point to say, “I feel like I’m on trial – jeez! I just want to go home and have dinner.”

Charnizon said she didn’t feel that Reynolds qualified as an expert, but that if the judge felt it would be helpful to hear the testimony, she wouldn’t object. Reynolds had not seen the property – her assessments were based on the photographs she was shown in court. In some cases, she said the photos weren’t clear enough for her to make a judgment. Speaking more generally, Judge Simpson asked her to define cultivation. “Anything that’s planted, planned or cared for by human beings,” she said. “Caring for” might mean simply waiting and watching something grow, she added. But when the judge asked whether cultivation entailed some kind of preparation and maintenance, she agreed that it did. Judge Simpson later asked if throwing seeds into the grass and doing nothing for three years would still qualify as cultivation. “Yes,” Reynolds replied.

Safranek called a second witness: Michael Kielb, a biology professor at Eastern Michigan University who teaches natural history, ornithology and botany. However, after he was questioned about his credentials and background, Judge Simpson declined to qualify him as an expert witness, and he stepped down.

4. Community standards. Safranek called Jan BenDor to testify about Pittsfield Township’s own efforts to promote natural gardens. BenDor served as Pittsfield’s deputy clerk from 2000 to March of 2008, and was instrumental in developing six naturalized “demonstration” gardens on township land. Safranek showed the court a printout of a PowerPoint presentation BenDor had developed, which she used when speaking to community groups and which is still posted on the township’s website, about gardening with native plants.

BenDor testified to the importance of using native plants, yet – like Reynolds – BenDor had not seen Voskov’s property. She said she’d been asked by the Sierra Club to get involved in the case. She also said that in Pittsfield Township’s experience developing natural gardens, it was important to show “signs of care,” such as weeding and mulching. Signs of care were actually encouraged by the township, BenDor said, but cultivation can be a very subjective standard. That’s why the township had been working to come up with an ordinance to address this issue, setting standards that were clearer and more friendly to this type of gardening. “We didn’t want to micromanage people’s yards,” BenDor said. “Sure,” said Charnizon. “Neither do we.”

5. Testimony of Voskov and His Fiancée. The next witness on Voskov’s behalf was his fiancée, Mariya “Masha” Odintsoea. She came to the stand with a stack of books on organic gardening, and testified that both she and Voskov had an interest in the environmental movement. They wanted to develop a front and back yard that would be a habitat for them and for wildlife. They also have extreme sensitivity to chemicals, she said. When their relationship began nearly seven years ago, she said, Voskov started mowing his lawn with a push mower because they didn’t like the noise and fumes of a gas-powered machine. They also were thinking of having children at some point, and didn’t want their kids crawling in a yard loaded with pesticides.

Until a few months ago, Odintsoea lived in Chicago, visiting Voskov about once a month. At some points in her testimony, when she talked about the work Voskov had done in the yard, Judge Simpson warned Safranek to  keep her testimony restricted to what she knew, not what Voskov had told her. Later, when Charnizon asked her why Voskov didn’t continue employing the organic gardener, Odintsoea said it was her understanding that the gardener was too busy with other projects.

When Voskov was called to the stand, he brought his own set of books. A computer consultant who’s lived in his Pittsfield Township home for 21 years, Voskov said he chose a different type of cultivation for his yard starting in 2006. He was influenced by friends in Ann Arbor, he said, and he wanted to have a yard he’d be proud of when they came over to visit. He estimated that he spent more than 100 hours tending to the yard, saying that manual labor is the best way to eradicate unwanted plants like dandelions, which he said he pulled by hand. He said he spent hundreds of dollars buying plants for the yard between 2006 to 2008, and worked with the organic gardener, Katherine Czapp, until she told him she was too busy to continue. Voskov said he did everything he could to comply with the township’s ordinances.

Later, Charnizon questioned him about what exactly happened with Czapp, noting that when Czapp was working on the yard in 2007, Swope didn’t issue a citation. Voskov said it was a family matter – Czapp was his stepmother, he revealed, and there was a family fallout that had nothing to do with the yard. Judge Simpson asked, “Why are you telling us this now, when before you said she was too busy?” That’s what she said at the time, Voskov responded.

Charnizon also questioned Voskov about what happened during a visit to the property in August of 2008, two months after the citation was issued. Among those who visited the property were Voskov’s previous attorney Joe Lloyd, Judge Simpson, Charnizon and Swope. (Swope had previously testified that during the August visit, the yard was in the nicest shape he’d ever seen it. Pictures from that August trip showed that mulch had been placed around some plants, and flowering plants were visible.)

During that August visit, the group had toured Voskov’s back yard because of concerns that the trees, shrubs and other natural growth there prevented access to utility lines. Voskov said the judge asked him if he’d agree to cut a swath of several feet around the edges of his back yard. Voskov said that before he could answer, his previous attorney agreed. Voskov said he felt it was posed as a court order, not a discussion or agreement. He said his impression was that he’d have to cut down everything.

Charnizon later asked, “You’ve never been told you have to mow everything down because it’s too tall, right?” After a long pause, Voskov said, “I don’t recall.”

Still later, Charnizon asked: “Is it your testimony that you didn’t give consent to have all of us enter your back yard?”

“Nobody asked me that question,” Voskov said. “I was never given the option of denying you access to the back yard. I assumed I had no choice.”

That prompted an exasperated Simpson to say, “I’m done. I’m done.”

After this exchange, Safranek returned for follow-up questions. He asked if anyone told Voskov that he needed to give them permission to enter the back yard. Voskov said no. Did he know that he had the authority to deny them entry? No. Did he believe he was ordered to cut a four-foot swath around the property? Yes.

“Ordered by whom?” Simpson asked. By the court, Voskov replied. Simpson handed Voskov the court file and told Voskov to find that order. “I do not see it,” Voskov said. “That’s right,” Simpson said. “Next question.”

Though Voskov had said he cut a swath around his yard, Charnizon noted that it hadn’t, in fact, been clear-cut – she handed him a photograph showing many shrubs and trees that had been tagged within that swath, and that were still in place. “You can’t have it both ways,” she said. “You can’t say the judge ordered you to clear-cut, then say you complied except for mature trees and shrubs that were tagged.”

By now it was approaching 11:30 p.m. and everyone seemed exhausted. “I have some serious questions regarding the credibility of these witnesses,” Judge Simpson said. The late evening ended with scheduling for a date to hold closing arguments and for the judge to issue his ruling. “I’m willing to stay tonight,” Charnizon said at one point, after several dates were proposed but rejected because of scheduling conflicts. “If I didn’t have 40 cases tomorrow morning,” Simpson said, “I would, too.”

The date was finally set for Monday, Feb. 9 at 6:30 p.m.

Closing Arguments

The cast of characters reconvened on Feb. 9 in the same courtroom. (I’d come to view the courtroom as a theater, with each person acting out their ritualized roles and quirks of personality, including the near-silent court recorder and the bailiff, who spoke with a rich, booming baritone when swearing in witnesses.) It was quieter in the building than the previous Thursday – no other court was in session, and the doors closed at 4:30 p.m. to the public.

Simpson began the proceedings by outlining the history of the case. Simpson said that following the August 2008 visit to Dalton Avenue, Voskov had reached an agreement with the court about how to maintain his yard – a claim that Voskov had denied in his Feb. 5 testimony. Simpson noted that on two separate dates last fall, Voskov failed to appear in court. Simpson also said that Voskov had entered a plea in January 2009, which Voskov later claimed he felt coerced into making. Simpson said he didn’t believe Voskov was coerced, but that the court had set aside the plea to give him the benefit of the doubt.

When Simpson concluded his remarks, Charnizon gave the closing argument for Pittsfield Township. She said the township’s moderation was apparent in this case. Swope didn’t issue citations in 2006 or 2007, and hadn’t even issued a citation in 2008 until he was told by Voskov to talk to Voskov’s attorney. Voskov and his current attorney have implied that this is a vindictive prosecution, Charnizon said. “That’s simply not the case.” The township had the authority to mow Voskov’s property, but didn’t. They could have issued a citation every day that they found the property in violation of the ordinance, but didn’t, she said.

Nor is it about aesthetics, Charnizon continued. In June, the property looked abandoned – that’s the kind of condition that the township ordinance is in place to address. She noted that even one of Voskov’s own witnesses – Jan BenDor – said the township was promoting natural gardens, but that those required at least minimal signs of care. Voskov’s testimony about the amount of tending he gave his yard “strains credibility,” Charnizon said. As long as Voskov’s property showed some minimal evidence of care, she said, “that’s all we’re seeking.”

Safranek’s closing statement was rocky, frequently challenged with objections by Charnizon and Judge Simpson over misstatements of fact. He said he didn’t think the property “in any way looks abandoned,” and that it was possible to take photographs of any property and make it appear abandoned. As evidence of care, he pointed out that dandelions in a photo from 2007 were no longer in evidence in 2008: “There aren’t any dandelions,” he said. “There aren’t any dandelions!”

At one point, Safranek said the township is obligated to enforce the ordinance that’s most favorable to the homeowner. Simpson asked, “Do you have authority for that position?” Safranek said he could deliver a legal brief on the issue the next day. “No – I’m issuing a ruling tonight,” Simpson said. When Safranek again made the claim, Simpson said “if you keep saying it’s the law, you have to cite it with support.”

“Don’t challenge me, counsel,” Simpson said. “Not today.”

Simpson’s Decision

Judge Simpson gave his ruling immediately after closing arguments ended.

He said he wasn’t called on to decide whether or not maintaining someone’s property in a certain way was good or bad. Rather, the sole issue is whether in June 2008 the property was in violation of the township ordinance. The photos taken in August, which show the yard in better condition, distort the question, Simpson said – the citation wasn’t issued in August. (He was perhaps referring obliquely to an Ann Arbor News article, which included a photo of the property provided by Voskov and taken in August 2008.)

Both township ordinances that deal with weeds also talk about the concept of cultivation. Safranek had argued that because the two ordinances are inconsistent, they can’t be enforced. “This court would very strongly disagree,” Simpson said. And even if the court applied the 18-inch height to this case, there would still potentially be a violation.

The crux of the case is the term “cultivate,” Simpson said. He argued that courts must apply “ordinary and plain meaning” to words, and he found that the expert witness’s definition of the term was, for the purposes of this case, “useless.” Simpson said that in looking at the photos of the property taken in June, he found nothing to indicate that the property had been cared for. He found Jan BenDor’s testimony useful, especially her discussion of “signs of care.”

Simpson said he found that Swope’s testimony was credible. However, Voskov’s testimony and actions “are extraordinarily troublesome to me,” Simpson said. Simpson said he’s extremely aware that people see and hear things differently, and that when those differences arise in court, people aren’t necessarily lying, they just have conflicting perspectives. “Where I get troubled is where it extends beyond that,” he said. Voskov testified that there was no agreement for the court to enter his property in August 2008, but “there certainly was agreement,” Simpson said, “and that was the reason that everyone was out there.” Voskov also testified that he didn’t give consent for them to enter his backyard. That’s troublesome, Simpson said, because “he led the way, with no objection until now.”

Even so, Simpson said he gave Voskov the benefit of the doubt. But that changed when Voskov testified first that the organic gardener parted ways because she was too busy, then later revealed that she was his stepmother and they’d had a falling out.

“I traced back through my notes and in my mind to attempt to give every benefit of the doubt to the respondent, that there wasn’t an attempt to mislead this court as to who this person was,” Simpson said. But he came to the “inescapable conclusion” that there was, in fact, an attempt to mislead. ”I don’t find his testimony has any credibility or carries any weight whatsoever with this court.”

Simpson said that he could recall only one other time in his 10 years on the bench when he’d reached that conclusion.

With that, Simpson ruled that Voskov violated the ordinance in June 2008. In addition to the $100 fine, Simpson awarded “reasonable” attorney fees to the township, to be billed at a later date. “And that is the ruling of this court.”

The Aftermath

It’s possible that Voskov will appeal his case, especially if he’s emboldened by support from environmental groups. And certainly the broader issue won’t go away – particularly in the Ann Arbor area, where plenty of people still hate the look of an un-mowed yard, but where advocates for natural gardens and the use of native plants have a strong voice.

The irony is that Pittsfield Township officials have been among those advocates, too, but now find themselves portrayed as some kind of manicured-lawn-loving fascists. That hardly seems the case.

So township officials face the PR challenge of defending themselves in a society that loves to overlook inconvenient facts, especially when those facts get in the way of a good David-vs.-Goliath story line. That’s true even on the national level, where the case is getting some attention: Jonathan Turley, a legal expert and professor at the George Washington University Law School, wrote about the case on his blog, calling township officials “lawnocrats.”

“He should appeal,” Turley wrote, referring to Voskov. “While the township looks foolish, the movement toward natural lawns or no mow is a serious matter designed to conserve water, reduce pollutants, reduce runoffs, and reinforce native plants … This story is yet another example of the criminalization of America.”

Or not.