International Municipal Lawyers Association - Local Government Blog
Ho, Ho, Ho…Merry Christmas?
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP
Time warp? Has your blogster lost his last few marbles?
Fact is, it’s the end of March and lots of folks still have their Christmas lights up. A few years ago, I did a piece for the Vermont Journal of Environmental Law in which I mentioned people who love to festoon their abodes with electric icicles at Christmas time. In a footnote I added: “My family has lived in Vermont for generations, most recently in Glover, Barton and Lyndonville. I am now a ‘flatlander’ with a second home in Ludlow. My practice takes me all across the country. I’ve been to forty-nine of the fifty states. I can tell you that there is no other state in the country where more houses remain lovingly adorned and lighted with these electrical icicles year-round. I wonder if it is because Vermonters like to be reminded of our winters or are proud of our ability to get through them.”
I never thought about people leaving up their decorations until this week, when I saw a news item about proposed regulations requiring people to remove them. The County of San Diego will soon place a 60-day annual limit on the display of holiday lights. Click here for the news story. The new regulation can be found in the revamped lighting requirements. Click here. The section exempts from regulation (except the electrical code) “[a] luminaire used for a holiday decoration, provided it is used for no more than 60 days in a 12 month period and is off between the hours of 11:00 p.m. and sunrise.”
First things first. It looks like electrical decorations have to be removed under the National Electrical Code, Article 527, Section 527.3-B which provides: “(B) 90-Day Rule. Temporary electrical installations for holiday decorative lighting and similar purposes must be removed after 90 days.” (The Code was recently ecumenically amended recently to substitute “holiday” for “Christmas.”)
From Mike Holt Enterprises, Inc.’s website http://www.mikeholt.com
The City of Frisco, Texas, has its removal requirement right there in its zoning ordinance. Go to Section 6.08 which exempts “decorative seasonal lighting” and provides that the lights “…shall be removed within a reasonable time after any given reason [sic – presumably “season” but you could have some fun in court with the wording as it is].”
Now, what is reasonable? In Frisco, according to the ordinance: “The Building Official will determine what the ‘reasonable time’ should be.” That’s bound to result in some unhappy encounters, don’t you think?
In Greenwich, Connecticut, you get to have holiday lighting for up to 40 days per year. See Sections 6-152 and 153 of the ordinance. Sun Valley, Idaho, has gone high tech and recently amended its holiday lighting requirement with this addition: “The use of LED approved holiday lighting is strongly encouraged.” Their regulations prohibit flashing holiday lights (Grinch-esque) and they have to off at 11 p.m. Funny thing – and I’ve seen this loophole before – is that they don’t give any time before which they can be turned back on. Don’t spread this around, but by the letter of the regulation you can turn them back on at 11:01 p.m. Sun Valley allows the lighting from November 1 to March 15. Not all holidays for all religious groups fall within this time period. Visakah Puja — Buddha Day or Buddha’s birthday, for example, is the major Buddhist festival of the year and it falls on the first full moon day in May this year. Don’t put up your Visakah Puja lights in Sun Valley.
Finally, try this one for interpretation. Chilmark, Massachusetts, a town on Martha’s Vineyard, has this regulation: “Holiday lights. Holiday lights may only be permitted to be illuminated during the traditional holiday periods.”
It’s a tough business regulating these lights. Maybe the hands off approach in Vermont has some inherent merit. Besides, your electrical code may be enough.
Another Cable TV Bankruptcy?
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Posted By: Nick Miller, Partner, Miller & Van Eaton
Change may be coming to your community. And it won’t be from Washington DC. Instead, it will be from your friendly local cable operator—if the operator is either Charter or Broadstripe.
In a reprise of the Adelphia bankruptcy filed in 2002, two major national cable operators may be headed toward Chapter 11 bankruptcy court protection from creditors. Broadstripe and its affiliates filed for bankruptcy protection on January 2, 2009 in the United States Bankruptcy Court for the District of Delaware, (Case No. 09-10006 (CSS)). Last week, Charter reported it missed an interest payment and had hired counsel to try to renegotiate its debt, signaling that a bankruptcy filing may follow before the end of this week January 23, 2009.
If your city has granted a franchise to either of these cable operators, pay attention. And share this warning with colleagues in neighboring communities that have either Charter or Broadstripe as their cable operator.
The treatment of cable franchises in bankruptcy is neither simple nor straightforward—particularly if your community benefits from a franchise that contains significant in-kind or financial benefits. Most attorneys think the only issue presented by a bankruptcy is whether amounts owed have been paid—classic creditors’ claims. This is an important issue. But there is another and more important issue created by the unique legal character of a cable franchise agreement.
A bankrupt debtor may assign executory contracts of a bankrupt estate even if the contract contains an anti-assignment clause and the counterparty objects to the assignment. See, 11 U.S.C. § 365(f). But this authority is not available when “applicable law” excuses the counterparty from accepting performance from the assignee. You should not assume a bankrupt debtor has a right to assign your cable franchise without your City’s prior, independent consent.
The Adelphia bankruptcy court recognized that a municipal ordinance could be “applicable law”. Further, it drew a distinction between an anti-assignment clause in a franchise agreement, and one found independently in an ordinance of general applicability and effectuated legitimate regulatory concerns for the benefit of the public. The court concluded that where the anti-assignment clause was contained in an ordinance of general applicability, it would not compel Adelphia communities to recognize the assignment of the Adelphia franchises to Comcast or Time Warner. In re Adelphia Communications Corp., 359 B.R. 65 (Bkrtcy.S.D.N.Y., 2007)
This important principle preserves your community’s right to take an independent look at the proposed restructuring or transfer of the franchise to a new operator.
A different problem may confront your community if your state has recently adopted one of the state-wide franchise laws pushed by at&t over the last few years. There may be no transfer of a franchise involved if the purchaser of the assets in bankruptcy already holds a state-wide franchise in its own right. In that case, your strategy for protecting your community may devolve to assert liens have attached to the existing facilities in the right-of-way, or other legal arguments tied to your right-of-way property interest.
Obviously your community’s specific rights will vary depending on the language of your franchise and local ordinances. But stay alert, and plan both to file a creditor’s claim to preserve your financial claims and to file an objection to preserve your authority to reject a franchise transfer if you are not satisfied by the promises of the new operator.
Tags: Court, van eaton, miller, cable, franchise, nick, local, charter, broadstripe, adelphia, bankruptcy, united, states, operators, comcast, time, warner, law, ordinances
