International Municipal Lawyers Association - Local Government Blog

Ficus Fight Fails Over Faulty Filing

April 27, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

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Notice that this is one of those unpublished decisions – the kind you can’t cite etc., sort of like what happens to you if you tear off that tag on the mattress.  When I see a decision that says not to be published, cited, quoted, read, whatever – it’s the first one I want to read.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Well, so too with these unpublished decisions.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.

Ripeness Rules

April 20, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

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?


February 6, 2009
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Posted By: Joesph Van Eaton, Partner, Miller & Van Eaton, PLLC

AT&T’s entry into the video market has not been smooth. Unlike Verizon, which is building fiber to the home, AT&T is by and large upgrading its old copper wire system so that it can be used to provide video. Its design required it to place refrigerator-sized cabinets throughout communities – a move that forced many communities to develop new siting standards (it didn’t help that some of the cabinets exploded).

Now two challenges have been filed at the Federal Communications Commission, claiming that manner in which AT&T provides public, educational and government access violates the law. One challenge was filed by the City of Lansing, Michigan. A more detailed challenge was filed by a consortium of organizations that promote access, community colleges, local governments, and local government organizations. The lead petitioner is the Alliance for Community Media (“ACM”). The petition was filed by the law firm of Spiegel & McDiarmid.

As the ACM petition points out, AT&T does not really provide PEG channels. It provides what it calls a PEG “application” or “platform.” The PEG application does not function like a normal, commercial channel on the AT&T system: AT&T cannot pass through closed captioning for example. One of the reasons some community colleges joined in the FCC petition was because they are required to deliver programming with closed captioning. AT&T won’t deliver secondary audio signals (used to deliver programming in a second language) on PEG channels. A viewer cannot surf between commercial and PEG channels; PEG channels can’t be recorded while viewing another channel. There are significant quality issues as well. The FCC will now decide whether these deficiencies violate federal law.

The ACM petition raises only federal claims. More challenges may be on the way: the Illinois Attorney General has announced that AT&T provision of PEG access is under investigation by the state. Many communities could raise (and are considering raising) independent claims under state laws. Lansing filed a state court claim at the same time it filed its FCC claim.

These cases are serious, and at the very least should raise a red flag for attorneys in communities that plan to provide access programming to AT&T systems. It will be important to review any programming arrangements carefully to be sure that rights are not lost.

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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.