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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.

Yellow Ribbons Banned On Town Green

December 6, 2009

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

The display of yellow ribbons in remembrance of friends and family serving far away goes back hundreds of years. Dr. Gavin Finley has an interesting website on the history. The American Folklore Center at The Library of Congress has more intriguing history and also cites the 1949 John Wayne and Joanne Dru film,  She Wore a Yellow Ribbon.

As only Congressional folklorists could, they get a bit carried away.  I got lost when I hit this line:  “The second aspect that makes folklorists reluctant to view this as a traditional expression is the matter of structural inversion.”  I leave it to your further study.

Sing along with me, if you will, this 400-year-old tune, in an arrangement by the incomparable Andrews Sisters.  It reflects the popular view of what the yellow ribbon used to represent before it took on its current meaning.  Or you can listen to it here.

She Wore A Yellow Ribbon

By Russ Morgan
Sung by the Andrews Sisters

Round her neck she wore a yellow ribbon
She wore it in the winter
And the merry month of May
When I asked her, Why the yellow ribbon?
She said, It’s for my lover who is far far away

Far away, far away, far away, far away
She said, It’s for my lover who is far far away
Far away, far away, far away, far away
She said, It’s for my lover who is far far away

When, at first, she met a winsome Johnny
He wasn’t sure her heart was pure
Her eyes were far too bold
So, round her neck
He tied a yellow ribbon
He tied a yellow ribbon
‘Cause it matched her hair of gold
Hair of gold, hair of gold
He tied a yellow ribbon
‘Cause it matched her hair of gold
Hair of gold, hair of gold
He tied a yellow ribbon
For her eyes were far too bold

If, perchance, you spy a lovely maiden
And by her side, there walks with pride
A Johnny strong and gay
And round her neck there is a yellow ribbon
No matter how you love her
Please stay far far away

Far away, far away, far away, far away
No matter how you love her
Please stay far far away
Far away, far away, far away, far away
Her love is for another
So stay far far away
Far far away

Far far away
For her lover who is far far away

Back to the issue at hand.  The Hartford Courant reports that the Borough of Litchfield, Connecticut, has banned yellow ribbons on the town green, “Borough Of Litchfield Board: Get Those Yellow Ribbons Off Our Town Green Trees.”

For six years military mothers and their supporters have been decorating the trees on the town green with yellow ribbons.  Tuesday, the Borough’s legislative board voted to ban the ribbons.

How come?  One mother who asked why said she was told “…the ribbons had to be taken down because they were hurting the trees and that they looked unsightly and worn.”

Board members said that their forester had told them the ribbons were damaging the trees because mold was growing beneath them.  I searched “mold on trees from ribbons” on Google and got 318,000 hits.  I read the first 20 or so.  None mentioned mold under ribbons.  Must be something endemic to the Borough of Litchfield…perhaps the “Litchfield Yellow Ribbon Mold.”  Sounds scary.  Just to make sure I wasn’t missing something, I changed the search to “mold from ribbons on trees.”  Another 318,000 hits.  Nada.

The board identified their forester as Starling Childs from nearby Norfolk, Connecticut.

I know him. He is an expert.  Check out his website.   He maintains the Great Mountain Forest, all 6,000 acres, in nearby Norfolk.  Here’s what he said upon hearing of the ban: “They must be confusing me with some other botanist, because I don’t remember even noticing the ribbons at all and I certainly didn’t comment on them.”

It turns out there is another reason besides the dreaded killer mold as evidenced in this board member’s statement: “What happens next? The Boy Scouts will come along and ask for their ribbons. And the Breast Cancer Awareness people will ask for their pink ribbons. Before you know it, we have this big swatch of colors and Litchfield no longer has a classic green.”

Ah, now I get it — ribbon blight.

This is not the first ban on yellow ribbons.  Prince William County, Virginia’s police chief has banned them on his cruisers because he’s afraid that if his officers show up at a war protest driving cruisers with yellow ribbons “it could be seen as any action we’re going to take is against their cause.” The officers can still hang them on their own cars and in the office.

The City Administrator of Cedarburg, Wisconsin, banned them from all city property after a local restaurant operator complained, saying they were pro-Bush.A unanimous Cedarburg Common Council reversed the ban three weeks later, at least partially, by allowing two yellow ribbons on each of its three welcome signs.

The City of San Mateo, California prohibits private displays on public property but the mayor has simply said he won’t enforce it as to yellow ribbons: “Clearly there are many laws on our books that are enforced when called to our attention, but we don’t have the resources to enforce all the laws we have until somebody brings it up.”

Fieldsboro, New Jersey banned the yellow ribbons on public property in 2003. Mayor “Buddy” Tyler explained: “Where would you draw a line if you started allowing the use of public property to exhibit whatever cause anyone wanted? Suppose someone wants to tie pink ribbons, or black flags, or a Confederate flag or a Nazi flag on public property?”  I can’t find any reports of Fieldsboro reversing itself, though 100 protestors led by none other than Curtis Sliwa of the Guardian Angels have protested.  The have called for the mayor’s resignation and referred to him as “Bonehead Buddy.”

So here is one of the Litchfield yellow-ribbon-banded trees, not yet stripped of its illegal decoration.  This is the only place, so far as I can tell (but I’m no arborist) in the world where the Litchfield Yellow Ribbon Mold exists…

Courtesy of

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?

It’s a Dog’s Life

April 13, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

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.


From News 14 Carolina

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.

From a search of and, I believe this is her fenced yard:



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:


   22   shih-tzu2  =   1 800px-stbernardinsnow


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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.