International Municipal Lawyers Association - Local Government Blog

Don’t Bogart that Joint My Friend

October 26, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

Lyrics: Lawrence Wagner
Music: Elliot Ingber

(on the soundtrack of “Easy Rider”)

Don’t bogart that joint my friend
Pass it over to me
Don’t bogart that joint my friend
Pass it over to me

Roll another one
Just like the other one
You’ve been holding on to it
And I sure will like a hit


Roll another one
Just like the other one
That one’s burned to the end
Come on and be a real friend


Marijuana is prescribed for certain medical conditions, such as pain relief, control of nausea and vomiting, and appetite stimulation. Since 1996, at least 13 states have legalized the sale of medical marijuana.

Now, check your zoning regulations and see what districts allow this land use:  “Retail Sales – Medical Marijuana.”  Couldn’t find it, right?

I first saw mention of this issue in Longmont, Colorado. It’s legal there and buyers now don’t have to drive into Boulder to get their meds.  Here’s a local proprietor with product to be prepared for sale.  One of his newest patients has had 14 knee surgeries and needs the pain relief.

Larry Hill — owner of the The Apothecary, 1314 Coffman St. — displays a medical marijuana plant Thursday that he has grown and harvested. Hill said he opened his medical marijuana dispensary in February and has “over 50 patients.” Lewis Geyer/Times-Call

Larry Hill — owner of the The Apothecary, 1314 Coffman St. — displays a medical marijuana plant Thursday that he has grown and harvested. Hill said he opened his medical marijuana dispensary in February and has “over 50 patients.” Lewis Geyer/Times-Call

When I started searching for other communities facing the issue of local zoning for medical marijuana sales, it was obvious there is a widespread debate.  Interestingly, Colorado and California, two of the 13 states allowing the sale, have most of the news stories.  Do you suppose their residents in those two states have special needs for pain relief, control of nausea and vomiting, and appetite stimulation?

Aspen, Colorado allows sale anywhere an office is permitted, says the city’s planning director.    

It’s being debated in Brush, Colorado, where there has been discussion (click here and here) about distancing requirements which would put the dispensaries on the same footing as liquor stores and sexually oriented business, hardly the medical treatment model. 

San Diego, California, has created a task force on the subject, but police are reportedly raiding dispensaries, guns drawn, bursting in using battering rams.

Charles Ziegenfelder, owner of PB 420 Cheech & Chong Headquarters, poses for a portrait just minutes before being informed that raids are being conducted at dispensaries in the area. Photo: Sam Hodgson. Courtesy

Charles Ziegenfelder, owner of PB 420 Cheech & Chong Headquarters, poses for a portrait just minutes before being informed that raids are being conducted at dispensaries in the area. Photo: Sam Hodgson. Courtesy

And, yes, there is even case law on the subject, from California, of course, where the Court of Appeal, Second Appellate District held that Claremont did not have to zone for the use and that the city could declare the dispensing to be a nuisance, at least where it appears the use is not permitted.  Go here for the actual decision.

For a good model zoning ordinance on “Medical Marijuana Dispensaries”, where else better to go than Berkeley, California?

Town Attorney Not Disqualified from Representing Town in Litigation on the Same Matter Where He Provided Advice to the Zoning Board

July 16, 2009
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Posted By: Professor Patricia E. Salkin

Most municipalities across the country are small and cannot afford separately retained legal counsel for its legislative body and all of its various boards, commissions and departments.  While best practices might dictate separate and specialized legal counsel for the executive and legislative branches of municipal governments, as well as for the planning and zoning boards (where a disproportionate amount of municipal litigation occurs), the reality is that only the larger city and suburban towns routinely operate this way.  There are no doubt, however, instances where the interests of two or more entities within the same municipality are in conflict, and in these cases, it is clear that each entity is entitled to its own independent legal counsel. Numerous state bar association opinions speak to this issue (e.g., when the zoning board is being sued by the legislative body).  Recently, the Maine Supreme Court had occasion to address the issue of whether it is a violation of the Rules of Professional Conduct for a town attorney to represent the town in litigation stemming from advice the attorney gave to the zoning board of appeals. The facts are as follows:

On the advice of legal counsel, the Zoning Board of Appeals of the Town of Westport Island refused to grant standing to residents wishing to challenge the planning board’s approval a permit requested by the Town Board to make improvements to the public boat-launching site. Residents opposed to the issued permit argued, among other things, that the Town Attorney should be barred from representing the Town in litigation over the standing issue since he served as an advocate and legal advisor to the zoning board on the same matter.

The Court concluded that while the Maine Bar Rules do prohibit attorneys from serving certain dual roles, in this case the representation was not in conflict.  Specifically, Rule 3.4(g)(2)(i) states:

A lawyer shall not commence representation is a matter in which the lawyer participated personally and substantially as a judge or judicial law clerk.  A lawyer shall not commence representation in a matter in which the lawyer participated personally and substantially as a nonjudicial adjudicative officer, arbitrator…or law clerk to such a person, unless all parties to the proceeding give informed consent.

The Court explained that since the zoning board is a branch of the Town, the attorney was simply doing his job as the Town’s legal representative when he advised the zoning board on the standing issue. The Court said that the attorney did not act in a judicial or quasi-judicial capacity and hence the Bar Rule was not implicated here and the motion to disqualify was properly denied.

Nergaard v. Town of Wesport Island, 2009 WL 1522707 (Me. 6/2/2009).

Gold in the Trailings

May 14, 2009
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Posted By: Nick Miller, Partner, Miller & Van Eaton

The economic news for local governments and their attorneys has not been good.  Big time cutbacks in local budgets have forced major changes in the law offices advising local governments.  In the midst of this economic detritus, some good news is emerging.

Much like the middle income families that can now afford to buy houses that are in foreclosure, City Attorney offices may now have the chance to attract and hold some of the very best new lawyers graduating this June.  We all know the big law firms have driven associate salaries far beyond government salare levels and the big firms have thereby discouraged many young attorneys from pursuing public service careers.  Now the economy is forcing the large firms to change their hiring patterns.  And the door may be opening for government law offices to compete on equal footing for this young talent.

Recent news headlines on law firms have focused on the tragedy of job losses and personal tragedies among recently fired attorneys.  This is grim, heart-rending news.  But underneath these headlines is a less reported trend.  The biggest firms are changing their offers to third year law students and first year attorneys.  They are deferring start dates for new attorneys, in many cases until January 2010 or even June 2010.  And they are rolling back associate starting salaries to levels comparable to the late 1990’s.

This change offers City Attorneys the chance to compete more equally for this talent pool.  Local government law has always had the attractive qualities of public service, challenging and wide ranging legal issues, and family-friendly working hours.  To this list can now be added competitive compensation, and a chance to try public service before stepping into 2400 hours/year work environs.

The salary picture is better for three reasons.  Associate salaries are being rolled back o levels comparable to the late 1990’s.  Also most of the large firms are offering to pay the deferred attorneys some portion (often 50%) of the normal first year salary in return for accepting the delayed start date.  And the over-enrollment of attorneys in the big firms means many firms will not object if a first year attorney decides to not pursue the big firm job, even after accepting the deferred compensation for several months.

So now is the time to reach out to your local law school placement offices.  And reach out to your colleagues in larger firms.  Tell them you are looking to help June graduates or 2008 deferred graduates find useful legal work.

Ho, Ho, Ho…Merry Christmas?

March 31, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

Time warp?  Has your blogster lost his last few marbles? 

Fact is, it’s the end of March and lots of folks still have their Christmas lights up.  A few years ago, I did a piece for the Vermont Journal of Environmental Law in which I mentioned people who love to festoon their abodes with electric icicles at Christmas time.  In a footnote I added:  “My family has lived in Vermont for generations, most recently in Glover, Barton and Lyndonville. I am now a ‘flatlander’ with a second home in Ludlow.  My practice takes me all across the country. I’ve been to forty-nine of the fifty states. I can tell you that there is no other state in the country where more houses remain lovingly adorned and lighted with these electrical icicles year-round. I wonder if it is because Vermonters like to be reminded of our winters or are proud of our ability to get through them.”

I never thought about people leaving up their decorations until this week, when I saw a news item about proposed regulations requiring people to remove them.  The County of San Diego will soon place a 60-day annual limit on the display of holiday lights. Click here for the news story. The new regulation can be found in the revamped lighting requirements.  Click here. The section exempts from regulation (except the electrical code) “[a] luminaire used for a holiday decoration, provided it is used for no more than 60 days in a 12 month period and is off between the hours of 11:00 p.m. and sunrise.”

First things first.  It looks like electrical decorations have to be removed under the National Electrical Code, Article 527, Section 527.3-B which provides:  “(B) 90-Day Rule. Temporary electrical installations for holiday decorative lighting and similar purposes must be removed after 90 days.” (The Code was recently ecumenically amended recently to substitute “holiday” for “Christmas.”)


From Mike Holt Enterprises, Inc.’s website

The City of Frisco, Texas, has its removal requirement right there in its zoning ordinance. Go to Section 6.08 which exempts “decorative seasonal lighting” and provides that the lights “…shall be removed within a reasonable time after any given reason [sic – presumably “season” but you could have some fun in court with the wording as it is].”

Now, what is reasonable?  In Frisco, according to the ordinance:  “The Building Official will determine what the ‘reasonable time’ should be.”  That’s bound to result in some unhappy encounters, don’t you think?

In Greenwich, Connecticut, you get to have holiday lighting for up to 40 days per year. See Sections 6-152 and 153 of the ordinance. Sun Valley, Idaho, has gone high tech and recently amended its holiday lighting requirement with this addition: “The use of LED approved holiday lighting is strongly encouraged.” Their regulations prohibit flashing holiday lights (Grinch-esque) and they have to off at 11 p.m.  Funny thing – and I’ve seen this loophole before – is that they don’t give any time before which they can be turned back on.  Don’t spread this around, but by the letter of the regulation you can turn them back on at 11:01 p.m.  Sun Valley allows the lighting from November 1 to March 15.  Not all holidays for all religious groups fall within this time period. Visakah Puja — Buddha Day or Buddha’s birthday, for example, is the major Buddhist festival of the year and it falls on the first full moon day in May this year.  Don’t put up your Visakah Puja lights in Sun Valley.

Finally, try this one for interpretation.  Chilmark, Massachusetts, a town on Martha’s Vineyard, has this regulation: “Holiday lights. Holiday lights may only be permitted to be illuminated during the traditional holiday periods.”

It’s a tough business regulating these lights.  Maybe the hands off approach in Vermont has some inherent merit.  Besides, your electrical code may be enough.

Another Cable TV Bankruptcy?

January 22, 2009
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Posted By: Nick Miller, Partner, Miller & Van Eaton 

Change may be coming to your community. And it won’t be from Washington DC. Instead, it will be from your friendly local cable operator—if the operator is either Charter or Broadstripe.

In a reprise of the Adelphia bankruptcy filed in 2002, two major national cable operators may be headed toward Chapter 11 bankruptcy court protection from creditors. Broadstripe and its affiliates filed for bankruptcy protection on January 2, 2009 in the United States Bankruptcy Court for the District of Delaware, (Case No. 09-10006 (CSS)). Last week, Charter reported it missed an interest payment and had hired counsel to try to renegotiate its debt, signaling that a bankruptcy filing may follow before the end of this week January 23, 2009.

If your city has granted a franchise to either of these cable operators, pay attention. And share this warning with colleagues in neighboring communities that have either Charter or Broadstripe as their cable operator.

The treatment of cable franchises in bankruptcy is neither simple nor straightforward—particularly if your community benefits from a franchise that contains significant in-kind or financial benefits. Most attorneys think the only issue presented by a bankruptcy is whether amounts owed have been paid—classic creditors’ claims. This is an important issue. But there is another and more important issue created by the unique legal character of a cable franchise agreement.

A bankrupt debtor may assign executory contracts of a bankrupt estate even if the contract contains an anti-assignment clause and the counterparty objects to the assignment. See, 11 U.S.C. § 365(f). But this authority is not available when “applicable law” excuses the counterparty from accepting performance from the assignee. You should not assume a bankrupt debtor has a right to assign your cable franchise without your City’s prior, independent consent.

The Adelphia bankruptcy court recognized that a municipal ordinance could be “applicable law”. Further, it drew a distinction between an anti-assignment clause in a franchise agreement, and one found independently in an ordinance of general applicability and effectuated legitimate regulatory concerns for the benefit of the public. The court concluded that where the anti-assignment clause was contained in an ordinance of general applicability, it would not compel Adelphia communities to recognize the assignment of the Adelphia franchises to Comcast or Time Warner. In re Adelphia Communications Corp., 359 B.R. 65 (Bkrtcy.S.D.N.Y., 2007)

This important principle preserves your community’s right to take an independent look at the proposed restructuring or transfer of the franchise to a new operator.

A different problem may confront your community if your state has recently adopted one of the state-wide franchise laws pushed by at&t over the last few years. There may be no transfer of a franchise involved if the purchaser of the assets in bankruptcy already holds a state-wide franchise in its own right. In that case, your strategy for protecting your community may devolve to assert liens have attached to the existing facilities in the right-of-way, or other legal arguments tied to your right-of-way property interest.

Obviously your community’s specific rights will vary depending on the language of your franchise and local ordinances. But stay alert, and plan both to file a creditor’s claim to preserve your financial claims and to file an objection to preserve your authority to reject a franchise transfer if you are not satisfied by the promises of the new operator.

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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.