Posted By: John Pestle, Partner, Varnum LLP
Attendees at IMLA’s spring seminar heard an update on recent appellate decisions favoring municipalities on their control of the rights-of-way as to (and fees from) telecommunications companies. This reflects 13 years of litigation on basic principles under the Telecommunications Act of 1996 which now appears to be coming to a favorable close, although the Supreme Court may yet step in. And attendees heard about state and Federal efforts to site electric transmission lines, overriding local control.
Viewed from a longer perspective, these are both part of a long-term and continuing debate between local units of government and state/national authorities regarding franchising and control over the rights-of-way. Briefly, at their inception most classic utilities (telephone, gas, electric, cable) were solely local operations – - operated just within one city – -and thus were franchised and regulated locally. And hence control over the rights-of-way as to them was local as well.
Technological developments helped change this. For example, the electric industry shifted to large, much more efficient plants which served large areas, such as many cities and counties, and built transmission lines which connected plants within a state and then between states. As a result, electric regulation over rates and terms of service shifted to the state and national level. The telephone industry had previously followed a similar trajectory and with the shift from locally manufactured gas to natural gas from the Southwest after World War II, gas utilities followed a similar route. Most recently, the cable industry has moved in the same direction, with more operations moving from the purely local to the regional level.
From the perspective of local government although economic regulation (rates, terms of service) tended to shift to the state or national level, control of the rights-of-way tended to remain local for obvious reasons. Even so, tensions remained, and remain to this day.
In the most widely used type of example, if a line (telephone, electric, gas or whatever) has to run through Community A (but not provide service in A) in order to provide local service in Community B, then can/should Community A be able to take actions to protect its interests, with consequent adverse affects on persons in Community B who are receiving service? Community’s A’s actions may range from prohibiting the construction of the line, to changing its route, to taking other actions to mitigate visual or other harms (e.g. – – undergrounding), to the most prosaic of engineering-oriented street and right of way matters.
But if, as has occurred or been proposed in some instances, the state or Federal government controls the permitting process for such a line, to what extent can or should it in the interest of the residents of Community B be able to ignore or overturn the interests of Community A, such as running a line through natural or scenic areas of Community A with consequent significant adverse impacts on it and its residents?
The point is that the tension created by these issues is long-standing, and is sometimes portrayed as being between state and local interests, and sometimes portrayed as being between the interests of the communities receiving service versus those traversed by (but not receiving service from) utility lines. That tension can be seen in court decisions and constitutional debates from over a hundred years ago. And these issues are still being wrestled with today, as exemplified by the IMLA sessions this past week.
Timing is everything. Some advocates in Santa Monica last week learned that lesson – the hard way. Treesavers v. City of Santa Monica Court of Appeal of California, Second Appellate District, Division Eight, 2009 Cal. App. Unpub. Lexis 3130, (April 22, 2009).
Notice that this is one of those unpublished decisions – the kind you can’t cite etc., sort of like what happens to you if you tear off that tag on the mattress. When I see a decision that says not to be published, cited, quoted, read, whatever – it’s the first one I want to read. Ever get one of those e-mail messages that says: “Bobby Bozo wishes to recall his email…?” When I see one of those I figure it has to be something really good, right? Go ahead, admit it, you look for that recalled e-mail…
Well, so too with these unpublished decisions. Why do the judges decide something and then tell folks they shouldn’t read it? Yes, I know, it is usually a narrow decision, based on the law and facts particular to that case, and whatever.
The basic facts are these. The City of Santa Monica didn’t like the Ficus trees that were along certain roads. Their roots are shallow and buckle the sidewalks. Out go the Ficus, in come the Jacarandas and Gingkos, apparently much better behaved tress.
As the city reported:
“Ficus roots grow close to the surface, are destructive to the surrounding paved areas and generate a high level of sidewalk maintenance expenditures. Replacing the Ficus with the Ginkgo will reduce sidewalk maintenance expenditures and liability exposure in this pedestrian oriented district.”
Here’s a Ficus tree:
Here’s a Jacaranda:
And here is a Gingko:
“The plan calls for the creation of a cohesive district in the heart of downtown through a coordinated planting plan with variegated color and texture. Along the north-south streets, an alternating pattern of London Plane trees is proposed on Second, Fourth and Sixth Streets, with Jacaranda trees on Fifth and Seventh Streets to complement the existing Jacarandas on the Third Street Promenade. The existing Ficus trees on these streets will be ‘reforested’ over time with the new trees; the replacement of every other Ficus is proposed as a first phase improvement. In five to seven years, after the trees are well established, a second phase of replanting will replace the remaining Ficus.”
Treesavers, an unincorporated association of individuals who reside in the County of Los Angeles, opposed the plan, participated in the hearing and ultimately sued. But they were too late in bringing the action – and that’s the lesson here for both sides:
“The bottom line problem with Treesavers’ current CEQA case is that the City Council approved the pedestrian and streetscape improvement project at a public meeting in October 2005, a meeting at which Jerry Rubin spoke about the removal of the ficus trees, and Treesavers did not file its petition for writ of mandate in the trial court until October 2007. The petition was too late.”
The time for the action started with the first decision:
“The 180-day limitations period starts running on the date the project is approved by the public agency, and is not re-triggered on each subsequent date on which the public agency takes some action toward implementation of the project.”
Always keep your eye on the statute of limitations.
The ripeness defense is a powerful sword. It can cut off claims that are not ready for prime time. Claims against governments are sometimes brought to intimidate and to wear down public officials. Ripeness rules can help stop such abuses. Sometimes though, it merely delays the inevitable.
Ripeness is for the most part a bright line rule with few exceptions. This week we noticed a case out of Texas that shows just how bright that line can be. On April 15th the U.S District Court on for the Northern District, Dallas Division, told Sara’s Secret/Condoms to Go to complete its application for a certificate of occupancy and have it denied before it came back to court.
The Decision Is Sara Lee Goff, D/B/A Sara’s Secret/Condoms To Go and Lexus Group, Inc. v. The City of Murphy, Texas, The City of Garland, Texas, and the City Of Rowlett, Texas, 2009 U.S. Dist. LEXIS 32128. Rowlett, which is the focus of this decision, is just over 20 miles northeast of Dallas. It has grown from 5,100 residents in 1978, Rowlett to 50,000 today.
Sara Lee Goff (no relation apparently to the popular baker of fine buns) is in the business of selling at retail “inter alia, lotions, creams, oils, herbal pills, lingerie, games, bachelor and bachelorette party goods, condoms, cards, costumes, accessories, and instructional video tapes and DVD’s.” Goff, d/b/a Lexus Group, Inc. (“LGI”) (you can bet the car people are thrilled to have Goff using “Lexus” in her business name), sought to open retail establishments in three Texas towns and was turned down in all three.
The City of Rowlett moved to dismiss on ripeness grounds “… because it has not denied LGI’s application for a certificate of occupancy. The City of Rowlett merely informed LGI that its proposed business may be a sexually oriented business and requested that LGI either furnish documentation that it was not a sexually oriented business or apply for a conditional use permit for a location within the permitted zoning district for a sexually oriented business.”
Goff made what was essentially a futility exception claim – she said she had “abandoned hope of convincing Rowlett . . . that [it] was not a sexually oriented business” and that she was already injured because she could not go forward with her business “in the wake of denials from the City of Garland and the City of Murphy.”
The court rejected Goff’s three arguments. First, it said that the consequences of the denial of a certificate of occupancy did not include any criminal prosecution so the decisions which might support a finding that the case was ripe didn’t apply.
Second, the court said there was no harm until there was a denial. At this point all that was requested was information on how to categorize the business. The claim, said the court was “abstract and hypothetical” until a denial. Go back up and read the list of what she sells. I guess there is at least a remote chance that she could avoid the definition of a sexually oriented business. I went to the city’s website and read the ordinance. Here it is. Go to this general site and search “sexually oriented business.” The section is too long to analyze for you but let’s just say the City of Rowlett obviously is concerned about this type of use.
Goff says: “I’m in the romance business. Couples come in here looking for a way to spice up their love life. They leave with one or two items, and weeks later they come back asking for new items. It’s wonderful to see so many people happy.” Richardson, Texas-Based Romance-Novelty Store Chain Serves Couples’ Needs,” Dallas Morning News, Nov. 22, 2002.
Her lawyer, Gary Krupkin, claims: “We’ve never been held to be a sexually oriented business,” He says the company has shops in cities including Dallas, Plano, DeSoto, Carrollton and Kaufman. “When those cities reviewed our business model, they determined we were not a sexually oriented business.” “Condoms to Go owner sues Garland, Rowlett, Murphy over sex business label,” Dallas Morning News, Sept. 24, 2008.
The court doesn’t address what happens if Goff is denied because it is a sexually oriented business, and she could still locate in a zone where such businesses are permitted.
Third, Goff voluntarily withdrew her application, even though she claimed she did so only because of the denials in the other two municipalities.
So, for the time being, in Rowlett, Texas, it’s no go for condoms to go…
But, wait, there’s more…I just went to Goff’s website, in the interest of intellectual pursuit of course, and they now have a new service: “Sara’s Secret now brings all of the tantalizing seductiveness of our store to the privacy of your home with our Sara’s Secret At Home Parties. You and your friends can let your imagination run from an intimate caress to an untamed adventure as our carefully trained Secret Siren’s show you everything to enhance your most seductive rendezvous.” Does zoning cover this?
Now, there’s a phrase with ambiguous meaning. If you go way back, 400 years or so, you can find where a “dog’s life” and “go to the dogs” referred to the hard life of dogs kept for hunting, left out in the wet and cold, and fed only scraps. In the mid-1600s there was a proverb: “It’s a dog’s life, hunger and ease.” Nowadays, the meaning for some people has turned 180 degrees and has come to signify living in a pampered way.
So, too, the tales (tails?) of land use law for this week wag both ways. First, from the news reports, this one out of Hampstead, North Carolina, comes the story of a Pender County no-kill animal shelter that apparently has been forced to shut down because it is illegal under the current zoning. The shelter operators claim it is a pre-existing nonconforming use; the county apparently believes it was not open and continuously operating before the zoning was adopted. Click here for the story as aired on the local television station.
Here is one of the pups about to become homeless. Worse yet, according to the many protesters who tried to force the county to let the shelter remain open, unadopted dogs from the no-kill shelter will go to the county shelter which does euthanize unwanted animals.
As of Friday night, the latest reports were that the shelter had closed with half of the remaining 15 dogs having been adopted. See “Topsail Humane Society closes, looks for new location” by clicking here.
The shelter is at 117 Lewis Street – I can’t tell exactly which building here – but it looks rather residential except for the boat storage, don’t you think?
The second recent story is of a Connecticut decision that I found on line a few days before it will be officially reported. It’s from the state’s single middle-level appellate court and is about a woman who had 22 shih tzus as pets. I know more about the case than I wanted to as I had to sit through one painfully-long local hearing on the matter while I awaited my turn for one of those five minute “hello-how-are-you-here’s-our-little-application-glad-you-like-it-thank-you-for-the-approval-good-night” jobs.
The case is Kilburn v. Plan and Zoning Commission of West Hartford (April 14, 2009). Click here for a copy and be the first in your block to read it.
The case is interesting not because Faith Kilburn was denied a special permit to keep 22 of the little yelpers in her home, but because in deciding on her original application requesting to keep 22 the commission said she could keep three (more than two is a “kennel”) and she had two years to get rid of the rest. She didn’t challenge the condition and two years later when the condition hadn’t been met (and nothing surrounding the proposed use had changed), she applied to amend the special permit to keep 22 and was again denied. If you don’t appeal the condition when it is imposed, you can’t complain about it later, said the court.
Think about it – 22 shih tzus at 10 pounds each is about equal to a heavyweight Saint Bernard. Hey, there’s an argument – the 22 little guys equal one really big dog. There is a whole body (so to speak) of agricultural zoning law based on animal units. This is really fun. Boulder County has a great section on animals with this wonderful graphic (click here):
I’m thinking, maybe she should have argued:
Posted By: Dwight Merriam, Partner, Robinson & Cole LLP
When it comes to local governments getting sued under any of the federal laws that sometimes deal with local government matters — Section 1983, the Fair Housing Act, and the Religious Land Use and Institutional Persons (RLUIPA) — being in state court is usually better for the local government. Last month the U.S. District Court for the Central District of California gave the County of Los Angeles the home court advantage by sending a RLUIPA case back to the state court. County of Los Angeles v. Sahag-Mesrob Armenian Christian School, 2009 U.S. Dist. LEXIS 24999 (March 18, 2009).
Here’s how it happened.
First, the religious organization, the Sahag-Mesrob Armenian Christian School, last September opened up a school in the unincorporated area of the county without getting the required conditional use permit. That resulted in an enforcement action by the County and the filing of a nuisance abatement action in state court in December. The day after, the County filed a notice for a preliminary injunction.
A month later, on January 23, 2009, the Sahag-Mesrob Armenian Christian School, the defendant in the state action, filed a notice of removal in the federal district court. Four days later the School filed an Answer and Cross-Complaint including — you guessed it — the RLUIPA claim.
The Ninth Circuit has a strong presumption against removal. Whether there is a federal question to support removal to the federal court is governed by the “well-pleaded complaint rule.” The court looks to see if the plaintiff’s statement sufficiently presents a federal question on the face of the complaint. That complaint must speak for itself. It cannot be aided by any defense.
An exception to the well-pleaded complaint rule is that an action may “arise under” the law of the United States if construction of federal law is necessary to provide relief and there is no disturbance of the federal-state balance of judicial responsibilities.
In this case, the County of Los Angeles was not looking to remove the case to federal court and its complaint dealt only with state law in attempting to stop a zoning violation. The School countered by arguing that the jurisdiction came under the “arising under” exception because the RLUIPA defense would ultimately drive the decision of the court.
The federal district court rejected the School’s arguments, holding that removal could not be based on a federal defense. The court further rejected the School’s claim that the County had “artfully pleaded” its way around the federal issue. No artful pleading here, said the court, just a zoning violation that belongs in state court.