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Notice that this is one of those unpublished decisions – the kind you can’t cite etc., sort of like what happens to you if you tear off that tag on the mattress.  When I see a decision that says not to be published, cited, quoted, read, whatever – it’s the first one I want to read.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Well, so too with these unpublished decisions.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

Not-so-Instant Replay at Council Meetings

November 19, 2008
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Posted by: Warren Kraft, Assistant City Attorney/’HR Director, West Bend, Wisconsin

The use of the “proper” rules of parliamentary procedure is a frequent topic of the Municipal Attorneys List-Serv, and occasionally its Wisconsin counterpart.  We debate the theory behind Roberts’ Rules of Order and whether the legal counselor should attempt to angle the legislative body toward a “more appropriate” methodology.

Additionally, many jurisdictions televise the meetings of their local legislative bodies, oftentimes video-taped for replay on the public access channels.

These two apparently disparate topics melded together in recent weeks in a community north of Milwaukee along the western shore of Lake Michigan.  As the Milwaukee Journal-Sentinel reported in its Nov. 9 editions:

Port Washington Council uses instant replay

By Dan Benson of the Journal Sentinel

Posted: Nov. 9, 2008

Port Washington – Nowadays, it’s commonplace that village board and common council meetings are videotaped and broadcast over local cable systems.

But rarely, if ever, have officials gone to the tape to make sure they got a vote right.

But that’s exactly what the Port Washington Common Council did.


“We zigged when we should have zagged,” City Attorney Eric Eberhardt said.

A frenzied debate to allow boats from the city’s marina to be stored on a city-owned parking lot was at the center of the recent replay debate. The council voted 4-3 to approve the proposal. Doing so would generate up to $4,000 in revenue. But downtown businesses opposed the idea, saying it would be a blight on their picturesque lakefront.

Opponent Ald. Allan Haacke went to Eberhardt after the vote and said the vote had been made inappropriately, violating Robert’s Rules of Order, which is universally accepted as scripture when it comes to running an orderly public meeting.

Like any good referee wanting to get a call right, Eberhardt went to the tape.

And here’s what it showed: Ald. Burt Babcock made a motion to call the question to stop the debate and force a vote. At the same time, Haacke moved to table the issue, which also would stop the debate but postpone any action to a future meeting.

Mayor Scott Huebner’s “head was kind of on a swivel” reacting to the competing motions and other discussion that was going on, “and looked to me for guidance,” Eberhardt said.

Relying on his memory of Robert’s Rules, Eberhardt told Huebner that the motion to call the question should take precedence over all other motions.

So instead of calling for a second to Babcock’s motion to call the question, or even a vote on the motion, the tape showed, Huebner called for a vote on the underlying issue of whether to store boats in the city parking lot. Technically, Eberhardt also found, a motion to table takes precedence over all other motions, with calling the question the next in line.

“The real deficiency was that neither of those motions was seconded,” Eberhardt said.

Eberhardt notified the council of the error, and on Wednesday, aldermen voted to rescind the Oct. 21 vote, then re-voted, this time defeating the proposal 4-3. And, adding more drama, between the first and second votes, the city’s Business Improvement District voted to oppose the measure. That swayed one alderman to switch sides.

What happened in Port Washington is a first for Ed Huck, executive director of the Madison-based Wisconsin Alliance of Cities, and “is demonstrative of new technology serving the public interest.”

Videotaping or audiotaping public meetings is not required by state law, but local governments have chosen to do so, often at great expense, to better serve the public, Huck said.

“Here is a prime example,” Huck said. “All of a sudden, I have this picture of the council president in a striped shirt with his head under a hood, looking at a TV monitor.”

If readers of this blog have not personally experienced this on-the-job frenzy, we surely know of our colleagues who have had to reach into the recesses of their minds and have a ready answer.  Many times, we are tempted to ask for a brief recess to research the question but forgo that opportunity as the legislative consideration may increase in intensity.  During post-meeting reviews, it is all too easy to offer critiques of how we should or should not have handled an issue.

So, what do we make of Eric’s experience? 

First and foremost is the municipal attorney’s constant commitment to “get it right.”  On ocassion, it might not be the first time and turning to the tape can help fix the situation.  Oftentimes, in my former position, the city clerk and I would exchange puzzled glances about what the council just said or did, and we would “check the tape” the next day.  Before cable technology swept over our community, we always had old-fashion analog cassette tape to review.

During other debates, a council member would offer a motion in highly convoluted language, then glance at the city staff dais to ask, “Did you get that?”  Many times, we would seek clarification so we understood the concept, the principal effect to help the member’s colleagues also understand what was proferred, and then promise to word it correctly.  “Check the tape” before inserting the text into the draft minutes were the next day’s objective.  A level of trust and credibility is necessary for this to occur.

A secondly, and almost equally important lesson, is the willingness to listen to the “next-day quarterbacks” who themselves might be befuddled by what occurred the night before.  I do not recall any of my professors endorsing use of the phrase, “We zigged when we should have zagged.”  We know about colleagues who interpret the call for “further review” as a threat to one’s integrity.  There are some quarters where an admission is not viewed as weakness, rather interpreted as enlightenment.  Well, maybe just the one time …

Most of us can read between the story’s lines and envison a rather heated debate on the Port Washington City Council floor.  In an honest moment, we might even recall a similar situation, or perhaps, situatons, where we ourselves got caught up in the debate and found ourselves stumbling when the “call” came in our direction.  At its organizational meeting, my former Council began discussing an item, though related, was not specifically listed on the agenda and as they included me more in the conversation, I found myself more detached from my “watchdog” role.  The city clerk turned and whispered that this was not on the docket.  It was enough to prompt me to interject that this conversation needed to be deferred until it could be properly posted.  And, later in the afternoon, I had to explain myself to the city manager who was absent from that noon hour meeting.

When the end of the day comes, our role as legal advisor is based on credibility.  “A frenzied debate” occurred, a parliamentary mistake occurred, and the city attorney responded promptly to “further review” and to make appropriate reports and recommendations.  Isn’t it a pleasant read when the result and news report are not heavily weighted with a gotch-ya?

And, keep in your arsenal a now-acceptable legal concept for mid-course corrections: “We zigged when we should have zagged.”

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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.