Criminal justice. Costly Codes

• Author: Matt Reynolds
• Pages: 18-19

CRIMINAL JUSTICE

Costly

Codes

Fines and fees spark a movement

for reform

BY MATT REYNOLDS

Zach Mallory was inside his

home in rural Wisconsin

when motion sensors alerted

him to uninvited guests.

Mallory glanced at a security moni-

tor through an app on his phone. The

screen framed four sheriff’s deputies, a

building inspector and a town planner.

Armed with a warrant, they were there

to investigate potential violations of

zoning rules.

“I felt it was excessive,” Mallory

says, recalling the June 2020 event.

“They hadn’t proven there were any vi-

olations. They simply wanted to inspect

the property.”

He owns Mallory Meadows, a

3.8-acre farm in Eagle, where he and

his wife, Erica Brewer, grow produce

and raise chickens, ducks and Icelandic

sheep. Mallory and Brewer, a full-time

nurse, dreamed the farm would lead to

early retirement. In May 2020, Eagle’s

town planner, Tim Schwecke, warned

them the town would investigate a

complaint that the couple was operat-

ing a business on a residential property.

Later, town ofcials threatened them

with $20,000 in nes if they did not cut

overgrown grass, remove an unpermit-

ted hot tub, beehives and livestock or

apply for the necessary permits.

In a lawsuit led in November,

Brewer and Mallory claim that under

the First Amendment, the town is retal-

iating against them for voicing support

for a neighboring horse farm that also

ran afoul of the town’s enforcement

policies. When the couple bought the

property in 2016, it was zoned as “ag-

ricultural”; the town rezoned their land

as “rural residential” in 2017, but they

are allowed “limited” agricultural use,

according to their court ling.

Brewer and Mallory say the town’s

actions have thrown their plans

into chaos.

“Economically, this has had a huge

impact,” Brewer said in December. “I’m

struggling to gure out how am I going

to get ahead of the winter weather to

have crops for next year.”

The Institute for Justice, an Arling-

ton, Virginia-based libertarian public

interest group, represents Brewer and

Mallory, and another Eagle couple,

Annalyse and Joe Victor.

The Victors say they were ned for

keeping semitrucks on their property.

A judge entered a default judgment

against them for $87,900 in September

2016, and town attorneys recommend-

ed jail time. Though the judge struck

out the jail provision, Joe Victor says

the judgment makes it “impossible for

us to sell our home and leave.” In Janu-

ary, the couple led a motion to vacate

the judgment.

Regardless of whether the code

violations are valid, Institute for Justice

attorney Kirby Thomas West argues Ea-

gle is levying and threatening nes that

are disproportionate to the offenses,

and they reect what the group has seen

in California, Georgia, Florida, Missou-

ri and other states. Across the country,

Americans are being hit with hefty nes

and fees for petty violations, advocates

for reform say, igniting a movement

pressing for change.

“Code enforcement exists to pro-

mote public health and safety, but the

way we’re seeing it happen across the

country right now is to make money,”

West says.

In January, Eagle—a town with a

population of 3,600 and a $1.8 mil-

lion 2021 scal year budget—asked

a federal judge to throw out Mallory

and Brewer’s case, arguing the couple

is trying to use the court “as a zoning

board of appeals” without exhausting

all of the state procedures and remedies

available to them. The town says the

couple declined a voluntary inspection

to investigate the merits of the anony-

mous complaint, and it is only ensuring

compliance. Municipal Law & Liti-

gation Group of Waukesha represents

the town. The rm’s attorney Remzy

Bitar says the couple’s lawsuit is with-

out merit.

Measuring what’s excessive

In a 2019 story titled “Addicted to

Fines,” the magazine Governing found

budgets from almost 600 towns in

which nes and forfeitures accounted

for more than 10% of general fund rev-

enue. In 284 cities and towns, “decades

of economic decline” had diminished

tax bases, and nes and forfeitures

Zach Mallory and his wife,

Erica Brewer, say they are

being unjustly targeted for

zoning violations.

Photo courtesy of Institute for Justice

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