A man fights for his right to have a garden

Mark D'Amico's garden before picture

Mark D’Amico doesn’t keep a conventional front lawn resembling the manicured look favored by his neighbors in Fort Worth’s Handley neighborhood. D’Amico created his own cottage garden.

He was so serious about the 150 different plants and flowers in his garden that he registered it as a “Certified Wildlife Habitat” with the National Wildlife Federation.

“It saves on water,” the artist says. “It’s big, bright and colorful. Flowers and hummingbirds and butterflies just swarm it — or used to.”

After a neighbor complained, D’Amico got into a scrape with Fort Worth’s code compliance department. He received a violation notice in 2006.

D’Amico says he told code compliance officer Robert Chambers that his plants and flowers were hard-to-find examples of exotic varieties. He had purchased seeds and traded for them for a decade to assemble the collection.

Several of the species are extinct in the wild, D’Amico says he told the code officer. Cultivating them and spreading the seeds helps keep the species alive.

The code officer said he understood and asked D’Amico to send him a list of all the plants, D’Amico says. Because he never heard from anyone in the city again, D’Amico says he believed the matter was settled.

But one day while he was home, D’Amico says he heard heavy equipment outside.

“I came out into the front yard and everything was gone,” he says.

“Not just mowed. They scraped it to the bare dirt with a big riding lawnmower. I was horrified.”

D’Amico’s home is not part of a neighborhood association where deed restrictions can enforce a neatly mowed lawn. Fort Worth code only states that grass and weeds cannot grow taller than 12 inches. No mention is made of shrubs and flowers.

“We called and sent letters and e-mail to both the mayor’s office and the city councilman who represents Mark’s neighborhood,” says Tom D’Amico, Mark’s father and the listed property owner. “Both offices ignored our calls, letters and e-mail. That’s pretty sad.”

Mark D’Amico says, “They can destroy anyone’s garden at any time for any reason, and there’s nothing anyone can do about it.”

Or is there?

Father and son answered that question step by step. First, they filed an $8,000 claim against the city. But that was rejected because the city said it had immunity when it came to actions of its employees, Tom D’Amico says.

They next filed a small-claims court lawsuit for $4,500. In a hearing, Mark D’Amico testified that he had no idea the city would destroy his cottage garden because neither Chambers nor anyone else informed him that the garden was in jeopardy.

In turn, a city lawyer argued that Chambers was carrying out his duty as a city employee and was immune from any legal vulnerability.

The justice of the peace decided in favor of the city, based on the city’s invocation of the doctrine of governmental immunity.

Father and son appealed to Tarrant County Court. Once again, the city pleaded its case for government immunity, court papers show. But in that courtroom, it didn’t work.

Tarrant County Court at Law No. 2 Judge Jennifer Rymell ordered both sides into mediation.

I left a message for Chambers at work, but he didn’t return the call.

He now works as a field operations supervisor in the water department.

A city spokeswoman said that because the case is in court, the city cannot comment.

Mediation was held last week, but no settlement was reached.

Meanwhile, another hearing is scheduled in Rymell’s court Monday because the city is contesting that court’s right to hear the case.

Tom D’Amico offers this advice to avid flower gardeners and collectors:

Anyone targeted by code compliance should “aggressively act and defend your rights as a property owner.”

He says, “Document all contacts [e-mails, notes, letters] with code enforcement and send any correspondence to them by certified mail requiring signature confirmation.

“Don’t be afraid to question their authority and take them to court if you feel your rights were violated. We cannot let governments automatically invoke governmental immunity and assert domain. They need to be held accountable.”

Final note: Mark D’Amico is growing back the garden.

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Comments

  1. I just feel like commenting🙂 Good stuff!