Ask the General Counsel: Is my bamboo garden a nuisance and an intrusion? | Business


In this edition of Ask General Counsel, attorneys from General Counsel, PC, a full-service law firm in McLean, discuss the battles between neighbors over bamboo.

For many, bamboo serves as a beautifying tool for their gardens, adding a vibrant and somewhat exotic touch to what would otherwise be your typical suburban garden. The hardy nature of bamboo allows it to be grown in most terrains without the use of chemicals/pesticides. Add to that the fact that it has practical benefits, like preventing erosion, and it’s easy to see why homeowners and residents alike like to keep this grass (that’s right, it’s not a tree ) around.

Unfortunately, one neighbor’s bamboo garden may spur another to take legal action. For example, in a March 2022 case, Willems vs. Batchellerthe Fairfax County Circuit Court held that the propagation of bamboo by the defendants onto the plaintiffs’ property was a nuisance because of the damage caused by the overgrowth, and that the bamboo was also trespassing because it required the effort and the defendants’ planning to plant it near the plaintiffs’ property.

Essentially, the defendants should have known that growing bamboo and not caring for it would have these consequences. With issues like this, Fairfax County turned to its people for a solution.

What is Running Bamboo?

Bamboo comes in two main types: clumping and running. Without getting into the weeds of botany, the general difference between the two is that clumping bamboo keeps its roots in a designated area and grows in clusters, while running bamboo has roots that spread in long, horizontal shoots.

Garden enthusiasts are drawn to running bamboo for its versatility – under control, running bamboo can provide natural barriers for privacy or aesthetics. However, Fairfax is concerned about what happens when bamboo (considered invasive in Virginia) is left unchecked, such as by a homeowner who owns land but rarely frequents it for maintenance.

The March 2022 Amendment

The Fairfax Board of Supervisors, after hearing residents’ support and concerns about uncontained running bamboo at its Feb. 22 hearing, postponed its decision on possible civil penalties for failing to contain running bamboo. On March 22, the council approved an amendment to Fairfax County Code Chapter 119, establishing an ordinance that empowers the Department of Code Compliance (DCC) to investigate complaints of running unconfined bamboo and d imposition of penalties on those in breach.

How does this new ordinance affect owners and residents of Fairfax County?

Under Virginia Code § 15.2-901.1, Fairfax County is authorized to impose civil penalties on landowners who allow uncontained running bamboo to spread onto adjacent properties not owned by the landowner. bamboo or on any public right of way.

The March 22 amendment would allow the DCC to seek civil penalties against owners within 30 days of receiving notice of the violation, with $50 for the first violation and $200 for any subsequent violation. Additionally, a separate violation would be assessed for each business day the same violation exists, with total penalties not to exceed $3,000 per 12-month period for each violation.

Council has given homeowners some leeway: The ordinance does not come into effect until January 1, 2023, and at the February 22 hearing, council members emphasized that they are prioritizing the community education on the issue rather than fines. In addition, under the new order, owners will be able to appeal any decision of violation. With over 200 acres of bamboo to regulate, Fairfax County has its work cut out.

General Counsel, PC provides legal representation to businesses, non-profits, and individuals throughout the Washington, D.C. metro area (and beyond). If you need help, please visit our website at or email [email protected]

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