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Yellow Ribbons Banned On Town Green

December 6, 2009
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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 http://nutmeggrater.blogspot.com


Don’t Bogart that Joint My Friend

October 26, 2009
1 Comment

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

Lyrics: Lawrence Wagner
Music: Elliot Ingber

(on the soundtrack of “Easy Rider”)

Chorus
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

[chorus]

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

[chorus]

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 www.voiceofsandiego.org

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 http://www.voiceofsandiego.org

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?


The New Jersey Supreme Court Has Been Reading John Muir

May 19, 2009
1 Comment

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

John Muir (1838-1914), naturalist and author,

John_Muir_Cane

courtesy of Wikipedia

said: “I never saw a discontented tree. They grip the ground as though they liked it, and though fast rooted they travel about as far as we do.”

The New Jersey Supreme Court went far this last week in supporting local tree ordinances.

This is a Bonus Blog in addition to the usual weekly fare, thanks to my friend, Andy Davis, a lawyer and Vice President at Paulus, Sokolowski & Sartor (www.psands.com) a multi-disciplinary engineering and architecture firm based in New Jersey.  Andy was with the Hackensack Meadowlands Development Commission when I was consulting with them for most of a decade on land use and wetlands matters.  He sent me the advance sheet of the decision and, since I just did a posting on trees, I thought it apropos to bring this case to your attention as soon as I could.  CLICK HERE for the decision.

The sound bite version is this – the court upheld a local tree removal ordinance under the police power on a rational relationship basis.  The ordinance requires replacement of any trees removed on private property or, if they can’t be replaced, a replacement fee paid into a fund which the township uses to plant trees in public places.  The ordinance, the court held, is “…a generic environmental regulation, and not a planning or zoning initiative.” At 20. It is not subject to the state’s land use planning and regulation enabling law, the Municipal Land Use Law.

The court applied the rational relationship test at the most minimal level, finding the ordinance rational if there wasn’t a sufficient showing to the contrary and saying “The job of the reviewing court is not to weigh the evidence for or against the enactment, or to evaluate the wisdom of the policy choice made.” At 22.

The court also said that “…the trial judge took a wrong turn when he placed the burden on the Township to justify the ordinance…” At 22.  Municipal attorneys in New Jersey must be dancing in the streets.

The Township needs only to show that the ordinance “advance[s] the cause it was intended to achieve.” At 24.

The court said that the challenging builders group “cannot see the forest for the trees.” (I doubt the builders chuckled over that one…) At 26. And finally, the court held the fee was not a tax. At 28.

In New Jersey, it’s Trees 1 – Builders 0.


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.”)

 untitled1

From Mike Holt Enterprises, Inc.’s website http://www.mikeholt.com

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.


Jersey Boys

February 10, 2009
1 Comment

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

My wife and I went to see Jersey Boys last night at The Bushnell here in Hartford. It’s a good show.  

And as luck would have it, the case reports from last week were dominated by New Jersey decisions, so I offer this special, all New Jersey edition of my weekly posting.

From the state’s highest court, we have a decision last Thursday dealing with rat-shaped balloons and Free Speech.  The short version is that if you want to display a rat-shaped balloon in Jersey, you’ve got the judiciary on your side.  State v. DeAngelo. Click here for the decision. Law.com reported on the decision this morning.

rat

From Boston.com and Associated Press (AP Photo/Brian Branch-Price, File)

And click here for another, even more attractive view.

A sign in Lawrence is:  “[a]ny object, device, display, mural or structure, or a part thereof, situated outdoors or indoors, which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business, product, service, event or location by any means, including words, letters, figures, design symbols, fixtures, colors illumination or projected images. This definition shall specifically include any building or part of a building, including walls and facades used for such purposes and shall further include banners, pennants, flags and similar attention attracting devices.”

The ordinance prohibits:  “Banners, pennants, streamers, . . . portable signs; balloon signs or other inflated signs (excepting grand opening signs); . . . displayed for the purpose of attracting the attention of pedestrians and motorists; unless otherwise excepted.”

Whenever you see “excepted” in a sign ordinance, the content-based regulation alarm should go off. 

And look at these exceptions for temporary signs that require no permit:

“1. Contracting signs. Temporary signs of contractors, [or] painters . . . on the lot on which the contracting work is being performed shall be permitted during the period of work.

2. Grand opening and business relocation signs . . . not to exceed 30 days . . . .

3. Political signs . . . may be erected for a period of 60 days. . . . When no election . . . is within 60 days, only one political sign at any one time shall be permitted. . . . Political signs in [non-residential] zones shall not exceed 32 square feet in area nor 6 feet in height.

4. Project development. One sign announcing the name of the project developer . . . shall not exceed 32 square feet in area.

5. Public functions. Signs advertising public functions; providing public service or information; or fund raising events . . . shall be permitted for a period of 30 days . . . and shall not exceed 32 square feet nor 8 feet in height.

6. Real estate . . . signs announcing the sale, rental or lease of the premises on which the sign is located . . . shall be in accordance with the following schedule: Residential zones: 4 square feet; Commercial zones: 16 square feet; and Industrial zones: 40 square feet.

7. Special events. Special event signs in conjunction with a temporary use allowed pursuant to 430.L as permitted by the Township Council.

8. Window signs.

9. Yard and garage sale signs.”

The court found that the ordinance was content-based regulation of noncommercial speech and held: “There is no evidence to suggest that a rat balloon is significantly more harmful to aesthetics or safety than a similar item being displayed as an advertisement or commercial logo used in a seven-day grand opening promotion. Nor is there any evidence to suggest that the ordinance ‘is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.’ [citation omitted].”  The court also found it was overly broad.

Professor Daniel R. Mandelker, when I asked him about the decision, said: “It is very important not to carve out exceptions for certain signs or uses and to make all requirements apply across the board to all uses.”

The second New Jersey case is Randolph v. City of Brigantine Planning Board, 2009 N.J. Lexis 25, an Appellate Division decision of last Friday. Click here for a copy.  Let’s see, a member of the planning board has an “intimate personal involvement” with the principal of an engineering firm with whom she has been living for 10 years (who happens to be the City Zoning Officer). They own a home together (I’m going to bet it’s not an investment property). The engineering firm employs the board’s consulting engineer who reviews applications and gives recommendations.

Need I say more? How do you call it?  Right, conflict of interest or appearance of impropriety under New Jersey statutory and common law, because the board member  might be “tempted to support and approve” the consulting engineer’s opinion to encourage his reappointment to the position.

The final case in this New Jersey hat trick is Toll Brothers v. Township of Reading, decided by the U.S. Court of Appeals last Wednesday.  2009 U.S. App. LEXIS 2121.  Click here for a copy.  Toll Brothers was an optionee and surprisingly in New Jersey there was no binding authority on whether an optionee had standing to sue to set aside a downzoning enacted after an application was made. Toll claimed equal protection, due process, takings, Fair Housing Act, RICO and other violations. The court, in an enlightening analysis of the three elements of Article III standing, held Toll Brothers did have standing.


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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.

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