International Municipal Lawyers Association - Local Government Blog

Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air

September 20, 2010
3 Comments

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,” http://www.atlantamagazine.com/blogs/covereddish/blogentry.aspx?BlogEntryID=10140961

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.

WSB-TV

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 bing.com after getting the exact address from 411.com, 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. http://www.wsbtv.com/news/24979774/detail.html




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?


Removal of Appointed Members of Planning and Zoning Boards

August 12, 2009
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Posted By: Professor Patricia E. Salkin

I often field phone calls asking whether planning and zoning members can be removed from office by the local legislative body.  Usually, the context involves board members who are allegedly “out of touch” with community desires and goals, or who “blatantly ignore” the urging of the appointing official or board.  Most of the time, however, state statutes and local laws provide that board members can only be removed “for cause,” yet the laws rarely define this phrase.  I typically try to engage in a conversation over what might be examples of “for cause.”  For instance, whether the board member missed a lot of meetings; whether the board member attended a number of meeting visibly (and perhaps verbally) unprepared; whether the board member failed to follow the by-laws or rules of procedure; and whether the board member consistently demonstrates a refusal to follow the applicable law.  Oftentimes, the answer to these questions is no, but the desire for removal seems more closely aligned with political motivations.  In these cases, I typically advise that the public relations nightmare and accompanying lawsuit that will follow, may not be worth the removal action. 

A recent federal district court case from Connecticut is instructive as to the legal analysis regarding the question of whether a federally protected property interest attaches to the position of planning and zoning board member.

Closson was appointed to the planning and zoning commission in 1997 and in 2005 he was elected by members of the commission to serve as chairman.  He was reelected as chairman in 2006 and 2007, and in 2007 he was reappointed by the Board of Selectmen to the commission. In 2008, the Board sent Closson a letter informing him that the Board intended to remove Closson for cause citing various alleged failures to amend the plan of conservation and development. About 10 days later, the Board held a hearing on the removal, and Closson presented evidence in his defense and argued that his performance was satisfactory. Two weeks later, the Board voted to remove Closson, and a week later Closson filed a lawsuit in state court alleging a violation of his due process.  The suit was removed to federal court.

On a motion to dismiss, the Town argued that Closson has no property interest in an voluntary, unpaid position as a commission member, and that he did receive due process regarding his removal. The District Court concluded that Closson did have a property interest in the appointed position, citing Connecticut state case law holding that an appointed fire marshall who received $70 per month and could only be removed for cause, had a continuing property interest in the appointment, the Court noted that under the Town Charter, Closson could only be removed for cause. The Court said, “it seems unlikely that Closson’s position as an unpaid, rather than minimally paid, appointee would change the Connecticut Supreme Court’s determination that such positions are property under Connecticut law.”  The Court then considered whether Closson’s property interest rises to the level of a federally protected interest.  While the Second Circuit has held that municipal board members do not enjoy federal constitutional protections of their positions, Closson argued that his position was appointed and not elected and therefore should be held to a different standard.  The District Court held, however, concluded that there is no federal due process protection for an unpaid, volunteer position on a municipal board, whether elected or appointed.

Closson v. Board of Selectmen, Town of Winchester, 2009 WL 1538138 (D. Conn. 6/1/2009).


No More Naked Shakespeare in Portland, Maine

August 6, 2009
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shakespere

 Courtesy www.nakedshakespeare.org

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

Got your attention with that title, right?  We’re in the dog days of August; we need to jazz it up a little.

“Dog days” comes from ancient times when Sirius, the Dog Star, rose around sunrise during mid-summer – it doesn’t anymore because the earth’s axis has shifted.  It is our brightest star, 26 times brighter than the sun and the fifth closest star, just 8.6 light years away. The name comes from the Greek word for searing or scorching. The Romans thought the star contributed to the summer heat. In my beloved Merriam-Webster I find the adjective “canicular” meaning “of or relating to the dog days.”  The word comes from the Latin canicularis, which is itself from Canicula (“Sirius), the diminutive of canis.  And, of course, where do we find Sirius in the heavens?  In the constellation Canis Major.  Then again, school children today might tell us it is satellite radio…

Anyway, enough astronomy.  Back to naked Shakespeare.

No one is actually playing Marcus Antonius in the buff bleating out:

Friends, Romans, countrymen, lend me your ears!
I come to bury Caesar, not to praise him.
The evil that men do lives after them,
The good is oft interred with their bones;
So let it be with Caesar.

Julius Caesar Act 3, scene 2, 74–77

It’s only called naked because they are not in costume. http://pressherald.mainetoday.com/story.php?id=275013&ac=PHnws.

The Portland zoning code prohibits entertainment in a bar if another one within 100 feet already has an entertainment license.  At the Wine Bar & Restaurant on Wharf Street, the Shakespeare Ensemble of Acorn Productions had been performing naked Shakespeare.  Here is their website.  Here is a review from January.

City officials said they didn’t know about it until March. I guess they don’t get out much. It seems that such reading of sonnets and plays is indeed entertainment in the view of the council, and without a license, the plain clothed thespians must be banished, like the good Duke Senior and his men in As You Like It.  Banished from the Wine Bar…

winebar

Courtesy http://blog.typeadiversions.com/2008/01/wine-bar.html

They are banished, but maybe not forever – on Monday the Council granted the renewal of the liquor license, but would not approve the entertainment license.  They voted unanimously to have the Public Safety Committee and the Planning Board take another look at the 100-foot separation requirement enacted just three years ago. 

So, there may be an Act II.


RLUIPA Ripeness Rule Reinforced

July 27, 2009
1 Comment

The concept of ripeness in several realms is elusive.  I have never figured out how to properly thump a melon at a grocery store, although I have made a thorough study of it.  You might want to click here, or here, or here  for some guidance, none of which seems to work when it’s just me in a stare down with a cold, stone faced and silent honeydew.

Just yesterday one of my younger children from what we call the “second litter” asked me at dinner how I could tell if a coconut was ripe.  I paused, realized that I had no answer, and did what every good parent should do and asked instead why they weren’t eating their salad.  Yes, attack and divert.

You think melons and coconuts are tough — try ripeness in land use litigation.  It has been a battleground in regulatory takings.  No one seems to like the current rules.   Here’s an article which you might find useful for background.  Even Professor Daniel R. Mandelker of Washington University in St. Louis, who is a self-styled “police power hawk” (meaning he is almost always on the side of planning, regulation and government), doesn’t like the current ripeness rules and testified in the U. S. Congress about what it should do to fix the situation.  Professor Mandelker co-hosts IMLA’s teleconference series “Mondays with Mandelker and Merriam.”  Click here for information.

Ripeness is a good defense for government lawyers and ripeness rules do make sense where they prevent a case from being tried prematurely, because it is almost always better for all concerned if property owners and government have an opportunity to resolve their differences.  Ripeness, at least as it applies to inverse condemnation, has two prongs.  First, the government must reach a final position so that everyone knows what can be approved and what won’t be.  The second prong is that a property owner must seek compensation in the state courts before proceeding to the federal courts for relief.

That first finality prong of ripeness made its way into litigation under the Religious Land Use and Institutionalized Persons Act (RLUIPA) in the case of Murphy v. New Milford in the Second Circuit.

On Wednesday, the United States Court of Appeals for the Third Circuit handed down a decision in Congregation Anshei Roosevelt v. Planning and Zoning Board of the Borough of Roosevelt in which it adopted the ripeness rule applied in the Murphy case.   The lawyer for the Borough of Roosevelt was Professor Marci Hamilton, who will be the guest of Professor Mandelker and me on our IMLA teleconference next Monday, August 3rd.  She also represented New Milford in the Second Circuit in the Murphy case.

In Murphy, the complainants were conducting prayer meetings at their home.  Those meetings became more frequent and attracted larger numbers of people.  The zoning enforcement officer issued a cease and desist order on the ground that the use of the property for a religious institution was not permitted.  The Murphys went to federal court and won on their RLUIPA claim.  However, the Second Circuit said that the case was not ripe for adjudication because the Murphys had not appealed the cease and desist order or applied for any local zoning relief such as a variance.

In Roosevelt, the Congregation Anshei Roosevelt brought an action in federal district court in New Jersey against the Borough of Roosevelt, its mayor and council, and its planning and zoning board under RLUIPA and state law.  The defendants moved to dismiss claiming that the matter was not ripe for judicial review.  The federal district court granted the motion to dismiss and on appeal to the United States Court of Appeals for the Third Circuit, that court affirmed the district court’s dismissal. 

The Congregation established a small New Deal resettlement in the Borough long before zoning was enacted.  Under current zoning regulations, the pre-existing, non-conforming synagogue has been allowed to continue.

In 2005, the Congregation entered into an agreement with the Yeshiva under which the Yeshiva would provide the Congregation with rabbinical services and the Congregation in turn would allow the Yeshiva to conduct study and worship activities at the synagogue.  The Yeshiva began its operations, a neighbor complained, the zoning officer consulted with the Borough attorney, and it was ultimately decided that the activity could continue as part of the non-conforming use. 

Enter the concerned citizens group, the Roosevelt Preservation Association.  The Association appealed the zoning officer’s decision to the Planning and Zoning Board.  Hearings were held.  A rabbi testified as to why a Yeshiva is necessarily is part of a synagogue, the neighbors testified that there were 34 students enrolled and that those students congregated on the property and the street and that there many cars coming to and from the Yeshiva. 

The Board ultimately overturned the decision of the zoning officer and said that the Yeshiva would need a variance to operate there.  In the Board’s view requiring an application for a variance would not be a substantial burden on the congregation and the Yeshiva.

In the Court of Appeals, the Congregation and the Yeshiva argued that the case was ripe because the Board had reached a final determination on whether the Yeshiva was a house of worship use and therefore permitted as a pre-existing, non-conforming use and that the Board had also decided that the current zoning regulations were applicable to the property.

In handing down its decision, the Court of Appeals noted that ripeness is a jurisdictional inquiry under Article III of the U. S. Constitution.  The Court went on to cite the leading inverse condemnation case in this area, Williamson County Regional County Planning Commission v. Hamilton Bank of Johnson, U. S. Supreme Court (1985) and quoted from it noting that the takings claim as decided in that case was “not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.”

The Court of Appeals also cited Murphy and the four reasons for requiring ripeness:  it helps develop the full record, it provides the Court with knowledge as to how the regulation will be applied to a particular property, it may avoid litigation all together if the local government gives the relief sought, and it shows “the judiciary’s appreciation that land use disputes are uniquely matters of local concern more aptly suited for local resolution.”

The Court of Appeals said that the Board had not determined that the Yeshiva was not a permitted use, but had only found that there was a “significant increase in the intensity of that use” and that the variance was necessary to “consider the effect on the neighborhood.”

As so the claim that the Board had made a final determination with regard to the application of the zoning rules at this property, the Court discussed the land use aspects of RLUIPA and ultimately determined that “[t]he factual record is not sufficiently developed to decide fully the RLUIPA claim here, and the Board has not issued a definitive position as to the extent the Yeshiva can operate on the synagogue property.”

The pièce de résistance is what every local government lawyer and planner likes to hear from a federal court:  “Finally, we have stressed ‘the importance of the finality requirement and our reluctance to allow the courts to become super land-use boards of appeals.  Land-use decisions concern a variety of interests and persons, and local authorities are in a better position than the courts to assess the burdens and benefits of those varying interests.’”

Time and time again federal courts have stated emphatically that they do not want to be “super land-use boards of appeals,” and consequently they have, in most cases, supported ripeness rules that require finality in the decision making process at the local level.

The Third Circuit has marked the decision as “not precedential.”  However, the Federal Rules of Appellate Procedure were recently amended to allow the decision to be cited.

Rule 32.1 Citing Judicial Dispositions

(a)    Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as unpublished, not for publication, nonprecedential, not precedent, or the like; and (ii) issued on or after January 1, 2007. (b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.

The debate continues on how these nonprecedential decisions can be used. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1280962.

Meanwhile, I will go on mindlessly thumping the honeydews…


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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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