International Municipal Lawyers Association - Local Government Blog

The FCC’s Open Internet Rules Could Impact Local Governments

March 1, 2011
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Authors: Joseph Van Eaton, Matthew K. Schettenhelm

May an Internet service provider block certain websites or content? May it slow Internet traffic from its competitors while favoring its own applications or services? Must the provider disclose these and other network management practices to its end-users?

On December 23, 2010, the Federal Communications Commission addressed these and other topics when it released new “open Internet” rules.  [Link 1] Local government attorneys should review the rules closely. Depending on the nature of the Internet service that a local government uses or provides, the FCC’s rules could protect a local government (as an Internet user), and impose new obligations upon it (as a service provider).

An analysis of the new rules is available here. [Link 2] The rules apply to Internet service that is sold on a retail, “mass market” basis. The FCC indicated that its rules—which do not exempt Internet service provided by a governmental entity—would not apply to certain premise owners, such as coffee shops and airlines, who obtain Internet service for customers from a third party. Nevertheless, on many important questions, the rules are fairly ambiguous and may require FCC clarification.

You Tell Me, Is It a federal Wetland or Not?

January 28, 2011
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Posted By: Dwight Merriam, Robinson & Cole, LLP

Do you recall the U.S. Supreme Court’s Rapanos decision in 2006 in which the Court split 4-1-4 on the extent of the federal government’s jurisdiction over wetlands under the Clean Water Act? That odd split, with Kennedy in the middle, left at least two possible tests for determination of jurisdiction and uncertainty that remains today.

The United States Court of Appeals, Fourth Circuit, on January 25th, handed down its decision in Precon Development Corporation Inc. the United States Army Corps of Engineers clearly showing how unclear the jurisdictional issue remains.

For background on the Rapanos decision and the fallout, click here and here.

The whole doctrinal disaster brings back fond memories the former Secretary of Defense Donald Rumsfeld, who famously said:

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don’t know
We don’t know.

I do miss him.

The Precon case arose over a dispute as to whether 4.8 acres of wetlands 7 miles from the nearest navigable water was subject to jurisdiction by the U.S. Army Corps of Engineers under the Clean Water Act. The Corps claimed jurisdiction and denied Precon’s application to impact the wetlands through development. Precon appealed and the federal district court granted summary judgment to the Corps upholding the Corps’ jurisdiction and permit denial.

Precon appealed the Corps’ jurisdictional determination and the Fourth Circuit vacated the District Court’s grant of summary judgment and remanded the case back to the District Court with instructions to remand the matter back to the Corps for reconsideration of its jurisdiction over the wetlands.

Precon is the developer of the 650-acre planned unit development known as Edinburgh in Chesapeake, Virginia. Between 2004 and 2006, Precon received Corps approval to fill 77 acres of wetlands for the development.

Precon later decided to develop 10 additional residential lots in Edinburgh, development that required impacting another 4.8 acres of wetlands. The Corps was not happy about Precon’s piecemealing the application by adding additional land. Precon said the Corps didn’t have jurisdiction over the 4.8 acres; the Corps said it did; and the issue was joined.

Landscapers, plumbers, electricians and carpenters were hard at work Sept. 17 putting the final touches on Edinburgh Meadows, the host site for this year's Homearama. (Steve Earley / The Virginian-Pilot)

The wetlands in question are next to a man-made drainage ditch that is 2,500 feet long, dug through wetlands with the dredge materials thrown up on the side creating a berm between the ditch and the 4.8 acres of wetlands.

Water in the ditch flows seasonally from late winter to early spring and connects with a perennial drainage ditch about 900 feet downstream from the site. That ditch runs along the boundary of the development for about 3,000 feet until it reaches a second perennial tributary 2 ½ to 3 miles south of the Edinburgh development. From there the merged tributaries flow into the Northwest River 3 or 4 miles downstream.

The Fourth Circuit accepts Kennedy’s “significant nexus” test as controlling in this case. The court’s analysis of the significant nexus determination takes several pages in the decision.

Interestingly, the Fourth Circuit decided that it should “treat compliance with Justice Kennedy’s ‘significant nexus’ test as a question of law, as we do any question of statutory interpretation, and review for compliance de novo…. However, recognizing the Corps’ expertise in administering the CWA, we give deference to its interpretation and application of Justice Kennedy’s test where appropriate.”

The court decided that the significant nexus test “does not require laboratory tests or any particular quantitative measurements in order to establish significance.” Interpreting Kennedy’s test, the court said that “he clearly intended for some evidence of both a nexus and its significance to be presented. Otherwise, it would be impossible to engage meaningfully in an examination of whether a wetland had ‘significant’ effects or merely ‘speculative or insubstantial’ effects on navigable waters.”

The court decided: “The question is thus whether the Corps’ record contained enough physical evidence -quantitative or qualitative – to allow us to uphold its determination that a significant nexus existed here.”

The court found that the record did not appear to contain any measurements of actual flow and that “even if the record had sufficiently documented flow, we do not believe that recitation of the flow of an adjacent tributary alone, absent any additional information regarding its significance, would necessarily suffice to establish a significant nexus…. Accordingly, we must conclude that this record does not support the Corps’ determination that the nexus that exists between the 448 acres of similarly situated wetlands and the Northwest River is ‘significant.’”

And so, case goes back to the trial court and from there back to the Corps.

What a mess the Rapanos decision has left all of us.

Supreme Court decides Los Angeles County v. Humphries

November 30, 2010
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The Supreme Court just released its opinion in Los Angeles County v. Humphries, No. 09-350, slip op. (U.S. Nov 30, 2010). The Court ruled that the “policy or custom” Monell requirement in Section 1983 cases applies irrespective of whether the relief sought is monetary or prospective.

Opinion is here.

The Humphries were accused of child abuse in California, but later exonerated. Under state statute, their names were added to a child abuse database for a period of 10 years. The statute has no procedures for challenging a person’s inclusion in the child abuse database, and neither California nor Los Angeles County instituted such procedures. The Humphries filed suit under Section 1983, seeking damages, and injunction, and a declaration that public officials and Los Angeles County had deprived them of their constitutional rights by failing to provide procedures to contest inclusion in the database.

The district court granted summary judgment in favor of the government entities, but the Ninth Circuit disagreed, stating that the Fourteenth Amendment required California to provide notice and “some kind of hearing.” The Ninth Circuit held that the Humphries were entitled to declaratory relief, and possible damages on remand. The Ninth Circuit held that the Humphries were prevailing parties and awarded $600,000 in attorney’s fees and that $60,000 must be paid by Los Angeles County. The County denied that it was liable and that, in respect to the County, the plaintiffs were not prevailing parties. The Country claimed that as a municipal entity, it was liable only if a municipal “policy or custom” caused the Humphries to be deprived of their constitutional rights. In this case, it was California policy, not Los Angeles County policy, that brought the deprivation. However, the Ninth Circuit saw no reason to remand in respect to the County’s obligation to pay the $60,000 in attorney’s fees because “the limitations to liability established in Monell do not apply to claims for prospective relief.” The County filed its cert petition asking the Supreme Court to decide a circuit split on whether or not Monell’s policy or custom requirement applies to both claims for damages and claims for prospective relief.

The Court reasoned that nothing in Section 1983 suggests that the causation requirement should change with the form of relief sought. In fact, the text of the statute suggests the opposite when it provides that a person who meets Section 1983 elements “shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress.” In addition, the Supreme Court in Monell thought that Congress intended potential Section 1983 liability where a municipality’s own violations were at issue but not where only the violations of others were at issue. To find the requirement inapplicable where prospective relief is at issue would undermine Monell’s logic. The case has been remanded back to the Ninth Circuit for further proceedings consistent with the opinion.

Posted in Constitutional

Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air

September 20, 2010

Posted By: Dwight Merriam, Robinson & Cole, LLP

DeKalb County, Georgia, can teach us all something about zoning enforcement.   The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone.  Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity.  Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale?

Says Miller: “It’s a way of life, like it’s something in my blood,” County Cites Farmer For Too Many Vegetables.

He ultimately got his property rezoned to allow the illegal veggies, but he’s still in the hole $5,000 in fines.

Our crack investigative team tracked down the actual citation:

Here is that miscreant, Steve Miller, in a head shot you’re likely to see soon on the post office wall.  I mean, look at him – would you trust him with a site plan approval or even a 2-foot side yard variance?

Courtesy of The Covered Dish, (“A Guy, A Garden And An Anti-Veggie Zoning Code,”

And here’s the evidence, clear proof of his illegal activities and egregious flaunting of the rule of law:

Here is even more damning evidence unearthed by WSB-TV.  The county peppered Steve Miller with its proof of the violation.


The crime scene is here (I’m surprised they didn’t have the SWAT team with those police helicopters and their powerful lights at this harrowing event…):

And finally, from our friends at after getting the exact address from, we have this shot of the unspeakable horror:

You can bet your prize winning pole beans that if there is a CSI Atlanta they’ll be able to help nail the next crazy man who thinks he can get away with this kind of crime, right in front of the neighbors.  Actually, the neighbors apparently like it: “When he moved here and I found out what he was doing I said, ‘Steve, you’re the best thing that ever happened to Cimarron Drive. And I still say that,” said neighbor Britt Fayssoux.

Our First Amendment Hard at Work

September 13, 2010
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Posted By: Dwight Merriam, Robinson & Cole, LLP

I’ve been busy and I have missed doing my occasional blog postings.  Given this dramatic event last week, however, I had to set aside everything else to tell you that on Thursday, September 9th, the Ninth Circuit held that getting a tattoo is protected speech.  Click here for the decision.

 Said the court: “We hold that tattooing is purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable ‘time, place, or manner’ restriction.”

 So, to get your tattoo with no sniveling zoning enforcement officers on your tail – you will soon be able to go to Hermosa Beach, California, and see Johnny Anderson, shown here hard at work at his shop, Yer Cheat’n Heart Tattoo and Body Piercing, in Gardena:

Exercise your First Amendment right to have a little ink shot under your skin.  It’s your expression and his art.  Here’s how Johnny describes it:

The tattoo designs that are applied by me are individual
and unique creative works of visual art,designed by me in collaboration with the person who is to receive the tattoo. The precise design to be used is decided upon after discussion with the client and review of a draft of the design. The choices made by both me and by the recipient involve consideration of color, light, shape, size, placement on the body, literal meaning, symbolic meaning, historical allusion, religious import, and emotional content. I believe my designs are enormously varied and complex, and include realistic depictions of people, animals and objects, stylized depictions of the same things, religious images, fictional images, and geometric shapes and patterns. . . . Sometimes, several kinds of images are combined into a single tattoo or series of tattoos. . . . I have studied the history of tattooing, and I draw significantly on traditional Americana tattoo designs and on Japanese tattoo motifs in creating my images, while all the while trying to add my own creative input to make the designs my own.

NPR reported the comments of City Attorney Michael Jenkins: “We are disappointed by the decision reached by this three-judge panel of the Court of Appeals. The Hermosa Beach City Council places a priority on protecting the public’s health and safety, and it adopted this ordinance because of the potential health hazards caused by unsanitary tattoo practices.”

The court’s slip opinion runs 28 pages, loaded with carefully-articulated First Amendment analysis and graphic descriptions of the tattooing process.  Do you think there wasn’t a bit of a smile among some of those justices and clerks as they etched there own ponderous words onto some hard drive:

Tattooing is a process like writing words down or drawing a picture except that it is performed on a person’s skin. As with putting a pen to paper, the process of tattooing is not intended to “symbolize” anything. Rather, the entire purpose of tattooing is to produce the tattoo, and the tattoo cannot be created without the tattooing process any more than the Declaration of Independence could have been created without a goose quill, foolscap, and ink. Thus, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection.

 The court concluded:

 In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City’s total ban on tattoo parlors in Hermosa Beach is not a reasonable “time, place, or manner” restriction because it is substantially broader than necessary to achieve the City’s significant health and safety interests and because it entirely forecloses a unique and important method of expression. Moreover, no genuine issue of material fact exists with respect to the constitutionality of the regulation. Thus, we hold that  Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors, and we reverse the district court’s order granting summary judgment in favor of the City and remand with instructions to grant Anderson’s motion for summary judgment and enjoin the City to include tattoo parlors in its zoning regulations.

So, if you don’t allow tattoo parlors, expect to hear from the entrepreneurs of skin illustration shortly, maybe with the free speech clause inked on the…well, wherever…

As soon as I finished reading the decision, I hopped right down to Johnny’s and one of his assistants, who was pretty excited because he said I was his very first customer, inked this great tattoo (I think his shaking was just first-time nervousness) which I will proudly show at the New Orleans meeting:

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.