CONNECTICUT PLANNERS ROADSHOW WORKSHOP IV: THE ART OF PLANNING CT

Please join Peter Gillespie of the Town of Wethersfield, Neil Pade of the Town of Canton, Jen Rodriguez of the Town of Windsor Locks, and me for a lively workshop discussion of some cutting edge planning issues of the day.  The venue?  What better place than the Thomas Hooker Brewery in Bloomfield! Details and registration information below:

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A Short History of Defensible Moratoria

The interest in the use of moratoria has become greater with the possibility that marijuana will be approved for general use and the continued expansion of short-term rentals.

Zoning moratoria in one form or another have been around in Connecticut for almost half a century. The interest in the use of moratoria has become greater in the last year with the possibility that marijuana will be approved for general use and the continued expansion of short-term rentals, such as Airbnb and VRBO.

So what is a defensible moratorium?

One of the earliest decisions to involve what was essentially a moratorium was Lebanon v. Woods, 153 Conn. 182, 215 A.2d 112 (1965). The court upheld the validity under §8-2 of “interim zoning regulations,” a technique that has been around for decades. The interim regulations imposed bulk and area requirements to protect the status quo while the town updated its comprehensive plan. The court held that no express statutory authority was required for interim regulations.

Years later, a Connecticut trial court expressly recognized that “[a] moratorium is effectively an ‘interim’ zoning regulation, and therefore the court finds that zoning moratoriums fall within the scope of § 8-2h. “ See 137 East Aurora v. Zoning Comm’n of City of Waterbury, 2000 WL 1912211 (Ct. Super. 2000). Section 8-2h is the savings clause that protects an applicant who submits a complete and conforming application before the effective date of a zone change from such change.

Next from our Supreme Court was State ex rel. Brodie v. Powers, 168 Conn. 512, 362 A.2d 884 (1975). There, the court considered a moratorium adopted by resolution, rather than by a formal amendment to the zoning regulations. In a per curiam opinion, the court held that “[s]ince that resolution purported to amend the zoning regulations of the town of Westport, it could not be legally adopted without the public notice and hearing required by § 8-3 of the General Statutes.” Brodie did not establish if a moratorium was statutorily enabled.

Two years later in Rosnick v. Zoning Commission, 172 Conn. 306, 374 A.2d 245, 374 A.2 (1977), the court again considered an “interim development ordinance.” In Rosnick, the amendment applied to portions of the business districts and prohibited the granting of zoning permits for any new use or any change in use, and was time-limited, with the termination date about nine months after it became effective. The court never got to the question of the legality of the interim development regulation because it was held to be moot, given the interim development regulation had expired.

Finally, in Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 479 A.2d 801 (1984), the court answered the question directly: “In the case before us, the moratorium was neither procedurally flawed nor substantively unreasonable,” the court said. “The plaintiff has conceded that the regulation was enacted in accordance with the procedural requirements of General Statutes § 8-3, and the trial court expressly so found. The moratorium was reasonably limited in scope since it did not prevent all development but applied only to business uses. Using the same procedure, the commission could have rezoned the affected portion of the district to permit only residential uses. The moratorium was limited in time since it extended only for a nine month period. In these circumstances, we hold that the moratorium was within the power delegated to the local zoning authority by § 8-2.”

For local governments wanting to update their plans and regulations to face challenges such as marijuana and short-term rentals, the key considerations for a defensible moratorium, as described in St. Amand, and Merriam, “Defensible Moratoria: The Law Before and after the Tahoe-Sierra Decision,” Natural Resources Journal, Vol. 43, No. 3, Summer 2003, are these:

  1.  The moratorium must be enabled by statute or common law. This is established in Connecticut, but care must be taken to follow the zoning amendment process, and not attempt to do a moratorium through a resolution.
  2.  Protecting the public’s health and safety should be stressed. The use of “heavyweight” objectives, including life safety, are helpful in defending a moratorium. Other “light-weight” objectives, such as promoting tourism, are not going to be as helpful, and may detract from what is most important.
  3.  Limiting moratoria in time for no longer than what is absolutely necessary is helpful in defending. There is no standard time that might be applied for moratorium to update a comprehensive plan, or zoning regulations, but something in the order of six months, with possible extensions, should be all that is needed in most cases.
  4.  The moratorium should be limited in its physical dimensions. That is, the least amount of the community, or areas within a zoning district, should be affected.
  5.  A defensible moratorium will also be limited in its functional impact. Consider this to be like the First Amendment issue of overinclusiveness and underinclusiveness. In short, a moratorium should be closely tailored to the achievement of the objectives.
  6.  And finally, any defensible moratorium may be saved from judicial invalidation by providing a local, administrative processwhich is adjudicatory in nature, by which someone who is subject to the moratorium can seek relief.

Published on September 09, 2019 at 03:22 PM: https://www.law.com/ctlawtribune/2019/08/16/tattoos-have-first-amendment-protections-too/

Rezoning Probability, Property Valuation, and Eminent Domain

Robert Thomas recently posted a report on a Virginia Supreme Court decision regarding the probability of rezoning as a factor in determining the valuation of property taken by eminent domain.  

Some years ago I rewrote the chapter in Nichols on Eminent Domain on valuation.  A major part of that effort was looking at the impact of the probability of rezoning.  I ultimately had an opportunity in a New York case to apply the theory.  The state offered Gyrodyne $25 million for its property.  We applied the theory of the potential rezoning and eventually won $167 million (with interest), the largest judgment ever in New York for a single property.  The entire story is laid out in detail, even the court transcripts, at the company’s website.  Note especially the zoning analysis., the appraisal report, and the court’s decision.

Defensible Moratoria: The Law Before and After the Tahoe-Sierra Decision

Authors: Matthew G. St. Amand & Dwight H. Merriam

Originally Published in the NATURAL RESOURCES JOURNAL, Vol. 43, Summer 2003

ABSTRACT: Governments at all levels have used land use permitting and development moratoria as effective planning tools for decades. The U.S. Supreme Court’s Tahoe-Sierra decision last year, upholding a 32-month moratorium on all development around portions of Lake Tahoe, has heightened interest in moratoria. The Tahoe-Sierra decision elicited comments from all sides, most seeming to believe that the law had changed. Although defensibility remains an issue, a definitive review of the cases before Tahoe-Sierra; an analysis of the Tahoe-Sierra decision itself; and a look at the cases decided since reveals that there has been little change in the law. The objective of this article is to illustrate how the law has evolved and to serve as a research tool for landowners, governmental officials, advocacy groups, and the courts.

Throwback Thursday: Home Occupations

Originally published Summer 2013

More people are working at home doing everything from hairdressing to snowmobile repair to doggy day care . . . are you planning and regulating for this new world?

People Have Always Worked at Home, But…

Home occupations predate zoning regulations by thousands of years. Isn’t farming the quintessence of working at home? Now that we have urbanization and land-use regulations we need to consider how to accommodate these workers. The numbers are large and getting larger with telecommuting and other changes in how we work. Chances are your local regulations reflect a simpler, bygone era.

More Are Working at Home

The U.S. Census reports that almost 10 percent of workers worked at home at least one day a week, with nearly three-quarters of those working full time at home. One in 10 of workers over 65 worked exclusively at home. A quarter of those home- based workers are in management, business, and financial occupations. Perhaps you already allow lawyers, public accountants, bookkeepers, and financial advisers to work out of their homes.

Probably Many Illegal

The U.S. Census is not your local zoning enforcement officer so it is not asking the big question—are all these happy home workers permit- ted under zoning? In a single decade from 2000 to 2010, the home-based workforce in computer, engineering, and science occupations increased by nearly 70 percent. Do you call those out in your regulations? Probably not, and those workers are technically violating your local zoning laws. So what are we to do?

Find Out What You Have

Ask around. Do surveys. Get the high school civics class involved and have those eager teenagers interview people at the local grocery about their work-at-home activities and what they think your community ought to be doing with home occupations.

Avoid Creating Unnecessary Willful Violators

Define away the small stuff. Telecommuting is working at home but you don’t need to regulate it. So is nonindustrial work by the resident without employees or customers — think of the weaver with a loom who sells her goods on eBay. No employees, no customers, only an occasional FedEx or UPS truck, no hazardous materials, no noise or other adverse impacts . . . define that as an as-of-right use accessory to the residential use.

Define More by Impact Than Specific Use

Type in home-occupation zoning in any search engine, make a compendium of examples, and then spend some time with your board or commission over several meetings discussing what you think is appropriate for home occupations. Most of the regulations define home occupation in terms of work that is conducted by the people who live in the home and that is incidental and secondary to the residential character of the dwelling. Try this typical one, for example, from Brush, Colorado, population 5,292: “. . . a use conducted principally within a dwelling and carried on by the inhabitants thereof, which use is clearly incidental and secondary to the use of the dwelling for dwelling purposes and does not change the character thereof; provided that no article is sold or offered for sale except such as may be produced by members of the immediate family residing on the premises.”

At the other end of the size continuum is New York City:

  • A “home occupation” is an accessory use which:
    • is clearly incidental to or secondary to the residential use of a dwelling unit or rooming unit;
  • is carried on within a dwelling unit, rooming unit, or accessory building by one or more occupants of such dwelling unit or rooming unit, except that, in connection with the practice of a profession, one person not residing in such dwelling unit or rooming unit may be employed; and
    • occupies not more than 25 percent of the total floor area of such dwelling unit or rooming unit and in no event more than 500 square feet of floor area.

Most regulations use a mix of impact regulation and either specific uses or illustrative uses. New York City expressly prohibits certain uses as home occupations.

Use Discretionary Regulation

Variances are not the way to go. Use special permits or conditional uses— same thing, different term—and site plan review. Spell out in your regulations what types of conditions you might impose on: parking, visitors, employees, hours of operation, deliveries, appearance, and other aspects that may impact residential character. Consider a time limit of on the permit, say one year with extensions for multiple years thereafter if it is run well and the neighbors have no complaints.

Embrace New (Old) Forms of Housing

Have you heard of live/work units? They are combinations of living and working spaces that may at one time be all residential or easily converted   to include working spaces. In the old days before zoning they were the typical storefront shop with the residence above or in back. APA’s Smart Codes: Model Land-Development Regulations (PAS 556) has a Model Live/Work Ordinance at Section 4.2. Try some in your community. They provide a nice street-scape and a chance for small businesses to flourish.

Transitions Are Difficult

Successful home occupations often outgrow their space. If you have good controls on the number of employees, number of visitors, number of vehicles, hours of operation, and the like, you and the home-based owner will know when you reach the point when it is time to move on.

Resources

From APA: Regulating Home-Based Businesses in the Twenty- First Century (PAS 499), Home Occupation Ordinances (PAS 391), and Jobs-Housing Balance (PAS 516), all available at APAPlanningBooks.com (Previous link inactive, use https://www.planning.org/books/ to access.)

From Albany Law School: “Zoning for Home Occupations” (2006), avail- able at http://www.governmentlaw.org/files/RELJ- zoning_home_occupations.pdf. (Previous link inactive, use ZONING FOR HOME OCCUPATIONS: MODERNIZING ZONING CODES TO ACCOMMODATE GROWTH IN HOME‐BASED BUSINESSES.)

Tattoos Are Protected Speech, Too

“The principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo.”—Ninth Circuit
Goldfish sleeve tattoo. (Photo courtesy of Jeff Mansolf, Clockwork Tattoo and Art Gallery, Middletown)

The field of land-use planning and zoning is often a battleground for constitutional rights. Among the panoply of issues fought over are procedural due process, substantive due process, equal protection, inverse condemnation, privacy and search-and-seizure. Chief among them in terms of impact and interest are First Amendment issues.

The Religious Land Use and Institutionalized Persons Act (RLUIPA) is an example. That statute has helped push debate over the free exercise and establishment clauses to the forefront of local controversies regarding the siting of religious institutions. At the other end of the moral spectrum, there continue to be disputes over where sex businesses should go, as in the recent Third Circuit decision in Sutton v. Chanceford Township upholding a narrowly tailored, content-neutral adult entertainment zoning ordinance that left open adequate alternative channels of communication.

And over on the sign front, we continue to have fallout from the U.S. Supreme Court’s decision in Reed v. Town of Gilbert, Arizona (2015) barring virtually all content-based sign regulation, leaving local governments and those who want to put up signs trying to figure out how to make it all work.

But perhaps the most interesting and entertaining First Amendment land-use issue we have is the protection of tattoo parlors as places of First Amendment free speech. Yes, injecting colored inks under the skin is protected speech.

These cases, of which there have been several in the last two decades, arise when the hopeful proprietor of a tattoo parlor discovers such businesses are totally prohibited in a municipality; or they are so restricted that they could never succeed in permitted locations—usually industrial areas—or the proprietor is denied a site plan or special permit for a location.

Our attention to the issue arose with the Ninth Circuit’s decision in Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010), a case of first impression, where the court noted:

“The principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo; a form of speech does not lose First Amendment protection based on the kind of surface it is applied to. It is true that the nature of the surface to which a tattoo is applied and the procedure by which the tattoo is created implicate important health and safety concerns that may not be present in other visual arts, but this consideration is relevant to the governmental interest potentially justifying a restriction on protected speech, not to whether the speech is constitutionally protected. We have little difficulty recognizing that a tattoo is a form of pure expression entitled to full constitutional protection.”

The most recent case is Weaver v. City of Montebello, 370 F.Supp.3d 1130 (C.D. Cal. 2019). Katherine Weaver wanted to open a tattoo studio in Montebello, California, a small city eight miles East of downtown Los Angeles, with a population of 63,500 people. The Montebello zoning code regulates body art establishments, which it defines “as any premises or establishment, or facility incidental thereto, which performs body piercing, tattooing, branding, or application of permanent cosmetics” and prohibits them from being located within 1,000 feet of certain “sensitive uses” such as residences, schools, places of religious assembly, libraries, public parks, or any city-owned facility. This is the same sort of separation or distancing requirement we often see with sex businesses.

The net result is that the Montebello zoning code relegates tattoo shops to two small shopping centers that Katherine Weaver found to be unsatisfactory in terms of her business. In her pleadings requesting a temporary injunction, which the court ultimately granted, she noted that tattoo businesses do not depend on foot traffic and cannot afford the high rents of the typical shopping centers. In short, she had no place to go.

On top of that, she had to get a conditional use permit, the same as what is sometimes called a special use permit or special exception, and that permit is discretionary and had several subjective criteria.

The pièce de résistance of this regulatory scheme is that if you operate a tattoo parlor in Montebello in violation of the code, you can be charged with a misdemeanor, punishable by up to six months in jail and a $1,000 fine.

In granting the temporary injunction, the court first cited Anderson v. City of Hermosa Beach and two other cases that recognize operating a tattoo studio is protected First Amendment activity. Even though the business of tattooing may not be expressive conduct, the process is, and a tattoo shop owner could bring an as-applied or facial First Amendment challenge when the regulatory scheme prohibits or restricts that activity. The court noted the conditional use permit requirement likely vested local officials with unbridled discretion, and the conditional use permit procedures provided insufficient safeguards against prior restraint.

Finally, and this goes to the heart of nearly all land-use regulation, the court found the city of Montebello did not adequately show how this regulation advanced its police power interest in protecting the public’s health, safety and general welfare.

The lesson for local governments is they need to provide adequate channels of communication for this type of expression in the form of a reasonable number of available sites in locations where the businesses can succeed. Regulations should minimize discretion by decision-making authorities. Care must be taken to avoid chilling the speech with criminal sanctions. Remember, violations of federal constitutional rights may be brought in state or federal court under the Civil Rights Act of 1871, 42 USC Sec. §1983, and that law includes a companion provision that allows for the recovery of attorneys’ fees by successful plaintiffs.

Published on August 16, 2019 at 06:20 AM: https://www.law.com/ctlawtribune/2019/08/16/tattoos-have-first-amendment-protections-too/

How Local Government Can Nip RLUIPA Claims in the Bud

Excerpt from RLUIPA Reader: Religious Land Uses, Zoning and the Courts

This chapter is written from the perspective of a local government lawyer (and occasional planner). It offers advice about how municipalities can protect themselves from RLUIPA claims and liability. The focus is on avoiding claims in the first instance and then, if litigation ensues, ways in which government can defend itself. RLUIPA presents a dual threat to a municipality: first, the potential for financial liability in the form of money damages and attorneys’ fees paid to a prevailing religious claimant or paid to settle a claim, and second, the prospect of litigation supplanting local decision making processes whereby a court substitutes its judgment for that of local officials.

Know Where You Are So You Know Where You’re Going

Assuming you started at the beginning of this book and have read straight through to this point, you should have a good sense of all the basic elements of a RLUIPA claim. If you would not be comfortable giving a three minute discourse on what could be considered “religious exercise” and another three-minute speech on the factors a court will weigh in determining whether government has imposed a “substantial burden,” you may wish to restudy those sections. They are essential to avoiding liability.

At the same time, it must be conceded that no one will feel truly comfortable answering these two critical issues because neither Congress nor the courts have defined the boundaries of either religious exercise or substantial burden. The law of RLUIPA is organic, building on incremental precedent from diverse factual and cultural settings and creating an often murky admixture of holdings, dictum, and musings. Lawyers are often asked: “What’s the chance we will win?” When it comes to RLUIPA claims, the response is almost certain to contain more “ifs” per line than most opinions.

The challenge is to put that admittedly limited knowledge to work to help you—as a governmental planner, lawyer, administrator or public official—to eliminate or minimize the potential for governmental liability. The stakes are high. A court could direct the government to approve an application contrary to the community’s plan and regulations; there is the potential for money damages (although this remains uncertain); and attorneys’ fees can be awarded even if the matter is resolved short of trial.

Practice Pointer: Don’t settle these cases in any way, including granting a partial approval under the threat of RLUIPA, without full mutual releases from all liability including attorneys’ fees.

The first reaction might be to call in the lawyers, but that could be counterproductive. As the psychologist Abraham Maslow (1908–1970) said: “When the only tool you have is a hammer, then every problem begins to look like a nail.” Get a few lawyers in a room and throw them a hunk of raw RLUIPA, and they’ll gnaw at it like, well, what they are, lawyers: burden of proof, elements of the claim, discovery, depositions, venue, subpoenas, and suddenly your head is spinning.

Listen to your mothers who, like mine, said: “An ounce of prevention is worth a pound of cure,” and “A stitch in time saves nine.” Back up a few steps in the process and start working on your RLUIPA defense before any religious organization even thinks about wielding that sword. It’s almost always too late when the lawyers come aboard for damage control and extrication expeditions.

Plan, and Then Plan Some More

Another aphorism: the best defense is a good offense. Plan for religious uses. You plan for schools and gas stations; plan for religious uses. Conduct surveys. Know what their needs are. Your community might grow 10 percent in population over the next ten years. Presently, the religious assembly needs are being met with one thousand seats. In ten years you may need at least one hundred more seats, perhaps in different locations. Church-run schools have shown dramatic increases in enrollments. Will that trend continue? What do religious leaders foresee as their needs? Will local campuses suffice, or do they aspire to larger facilities? Are there forms of communication, such as Web-based services, which could reduce the need for public assembly space or change the peak times of use? Are they planning multiple services, or services on more days, in order to handle any increases in membership and attendance? Are they branching out into other areas, such as providing primary and secondary education, senior day care, after-school recreational programs, meals on wheels, affordable housing, and alcohol and drug rehabilitation? The list of potentially relevant planning considerations goes on and on. Don’t wait for these activities to land within the reach of RLUIPA. Treat them as a planning issue. Practice Pointer: Generally, treat religious land use activities as you would similar secular activities, such as other places of public assembly. Never restrict religious activities more than you would restrict nonreligious activities of the same type. Of course it would be unwise to give preference to religious uses because of the potential for being skewered by that other provision in the First Amendment—the establishment clause— which prohibits government from promoting religion or favoring one religion over another. But you must account for them in your planning as you would any secular use with similar characteristics, such as schools, places of public assembly, and offices.

The other side of planning is the allocation of present and future use demands to the exclusion of other uses. Is there a need to protect agricultural production to lower the community’s carbon footprint and preserve capacity for future generations? If so, that land cannot become a parking lot, whether for a church or another non-agricultural use. Is there a need for a pedestrian friendly community, especially for the retiring boomers, and the increased, mutually supportive human and economic activity that comes from more feet on the street? If so, is there a plan for concentrating places of public assembly—secular as well as religious—in central areas?

Practice Pointer: Keep chanting the mantra: “I will plan for all future land uses comprehensively.”

No court has yet held that aesthetics alone, even historic preservation, is a compelling government interest sufficient to fend off a RLUIPA claim once a substantial burden has been shown. But compelling governmental objectives may be found in measures to protect the public’s health and safety. There is a chance that a court might find, under the right circumstances, a compelling interest in protecting a community’s sole source aquifer from pollution by a megachurch parking lot or preventing traffic hazards.2

Put the heavyweight governmental objectives out front.3 Identify where risks to the public’s health and safety might exist. Don’t bother with lightweight objectives, important as they may be to you as planner, like “scenic vistas”—they may just end up diluting the objectives that might be compelling. This is what happened in the famous Lucas case in 1992.4 The state of South Carolina restricted building on beach-fronts that were especially likely to experience erosion because people could be killed and property destroyed, but the state also mentioned it was good for tourism to save these areas. The courts took note of the latter “lightweight” objective and, to some extent, lost sight of the life safety issue.

Audit Your Own Regulations as if You Were Suing Yourself

Step back from your own regulations and look at them as an outsider. If you are psychologically or politically unable to do that, then hire someone to do it for you. The objective is to drill deep into your present regulatory structure to find any underlying weaknesses that could become the basis for liability.

Ask yourself this critical question: Is there anything in your code that allows a school, day care center, or place of public assembly where you would not allow a religious land use or analogous use operated by a religious institution? If the answer is yes, you should probably eliminate the disparity by expanding the rights of religious institutions to equal those of nonsectarian organizations.

Based on your planning studies, do you have sufficient land in your community for the expansion of clearly religious activities such as worship and religious education, as well as for other activities commonly conducted by religious organizations that arguably might be claimed as part of a religious use (such as athletic facilities for church-sponsored leagues and functions on church campuses)? Remember that the market is imperfect, and many potentially developable sites may not be for sale. You might want to err on the side of zoning to provide an excess of potential sites for such uses, so that you will be better able to defend against the argument that your community has taken advantage of a constrained market to exclude new religious activities and related facilities.

Are you using the special use permit or conditional use—both of them in most jurisdictions are administrative and discretionary— for religious uses? If the answer is yes, allegations could be made that the process itself imposes an undue and substantial burden on the religious applicant, or that the discretion has been exercised in a way that disfavors religion or discriminates among denominations. It is generally better, from a RLUIPA strategy standpoint, to treat religious uses through neutral and generally applicable zoning laws than to do so through site-specific discretionary approvals.

RLUIPA is a statute of limited jurisdiction, and when a government undertakes an “individualized assessment” of a proposed religious use of a property under its land use regulations, it pulls one of the triggers for the substantial burden inquiry. Arguably, a special use permit or similar type of administrative review would be such an “individualized assessment.” But a law of general applicability, for example, that sets performance standards for all assembly uses would not be. In many jurisdictions it may be possible to convert the conditional use or special permit process into nondiscretionary performance standards.5 The as-of-right use with strict standards, including traffic impacts and density limits by floor area ratio and lot coverage, can provide just about all you need without having to make a site-specific decision as to a particular use.

Practice Pointer: Classify religious uses either as permitted as of right or not permitted at all in particular districts, if you can do so without compromising your comprehensive plan for growth and development.

If you decide to rezone properties to eliminate or restrict religious uses from certain areas, be sensitive to the reality that if a religious organization owns the site it might have vested rights in the former zoning, and if you rezone property while a religious organization is considering purchasing it (or shortly after it has purchased it), the rezoning may appear to be reactionary or retaliatory.6 It might be more prudent to err on the side of expanding vested rights, rather than eliminating or limiting those rights.

Practice Pointer: A last resort, and one that should be avoided, is a moratorium on religious uses. Moratoria have not fared well except when there is an overarching public health and safety need, when it is applicable to all or most development, and when it is intended to be a very short “planning pause” such as six months.

Prepare the Front Desk

Planners and land use administrators often cause more damage than they realize by innocently answering what seems to be a straightforward question and, in doing so, inadvertently create unwarranted expectations. Many times such questions are not what they seem. No one at the front desk can ever really know who is speaking for whom, and what may be intended. For example, a religious group may contract secretly to purchase property for a new facility. The group may have its representative inquire of the planning and building department what is and is not permitted on the property without revealing its plans. A problem may be ahead for the municipality if the answer is incorrect, or even if it is accurate but suggests, for example, that among the range of apparently allowed uses, there is great local enthusiasm for taxpaying business uses and dislike of tax exempt institutions.

If the inquiry is other than a run-of-the-mill question concerning an as-of-right use such as a single-family home, it may be best simply to offer a copy of the code and suggest that the individual consult with others. It might even be useful to give every person who makes any type of inquiry a one-page statement of the resources that are available through the municipal offices. In the process of providing that document, the public’s accessibility to the information is increased, and there is an opportunity to give an express warning that most land use approvals involve federal, state, and local complexities and interpretations requiring professional assistance. It can also be mentioned that anyone undertaking a land development project should seek the advice of design and development professionals and legal counsel as needed.

The other side of this coin is that it is important for public servants to serve the public and it is also important that a municipality demonstrate its willingness to assist religious organizations in meeting the terms of the regulations and moving their projects through the approval process in an efficient and orderly manner. The best way to balance the need to protect casual conversations from leading to untenable expectations while still providing a high level of service is to bring the potential applicants in front of local boards and commissions as soon as possible. It is much easier to manage communications when senior staff and experienced chairpersons are present. Consider a pre-application process with a public meeting, where potential applicants can explain to the public officials their anticipated requests. The objective is not to preempt, but to have some broader input and preserve record evidence that the potential applicant was helped in every way possible and was given the best advice by the appropriate authorities even before coming in with the application.

The pre-application meeting may be counterintuitive. Can it really help to start discussing a development project before it comes in as a formal application? In many, if not most, cases the answer is yes. Applicants often become economically and psychologically committed to detailed plans when they spend substantial money on them before getting any real feedback from decision makers. The pre-application meeting in the early stage provides a forum for give-and-take that can avert serious mistakes. Imagine a commissioner observing at such a meeting: “I see by your sketch plan that you have your major entrance on Elm Street. There is a draft amendment to the town’s Master Plan addressing the serious traffic congestion we have on that street from the recent development of the Mega Mart. If you reoriented the site plan to use Oak Street exclusively, I think it will avoid some serious problems for you.” Helpful observations such as this might circumvent a denial or conditional approval requiring a costly and extensive redesign.

Win by Avoiding the Simple Mistakes

I confess to being a poor tennis player. When forced to play, I have a simple strategy—just get the ball back over the net. Nothing fancy, no slamming or spinning, no driving the opponent to the very back corner . . . just get it over the net.

Most of the difficulty I encounter in defending RLUIPA claims arises out of a careless, thoughtless, uninformed, casual, or glib passing remark, or even a nervous attempt at humor in a highly charged situation. No, these “one off” remarks usually don’t create liability, but neutralizing them from a hearing or deposition transcript can be Sisyphean.

Some would call what needs to be done “coaching,” a pejorative term. This is better described as sensitizing and helping people understand the limits of their authority under RLUIPA.

In one case in which the municipality was ultimately held liable under RLUIPA, the decision makers rejected the reasonable advice of their planners—twice.7 It is not that elected officials have to do what their planners tell them, but when the expert advice is sought—twice—and rejected with no apparent overriding public policy considerations, it is reasonable and appropriate for a court to look at that process with more scrutiny.

Practice Pointer: You get what you ask for. When seeking professional advice, be careful in telling your consultant what you want reviewed. If it is only about traffic, say so.

In a recent instance regarding a synagogue proposal, which so far has not ripened into a RLUIPA suit, a member of a local historic preservation board commented that she didn’t think it was a problem having the synagogue in the historic district but that the proposed Star of David on the top might not be appropriate. It is hard to imagine how the principal symbol of the Jewish faith could be excluded entirely. This type of comment at the very first pre-application meeting demonstrated a lack of knowledge about the law and a high degree of insensitivity about the applicant’s religion. It was widely reported, and set the wrong tone for the commencement of the proceeding. Had this commission been briefed in advance on the essentials of RLUIPA and the importance of maintaining an appropriate public record, this rocky start could have been avoided.

Practice Pointer: If a public official makes a mistake, for example by saying something plainly wrong during a public proceeding or in a written statement, the best thing to do in most cases is to admit wrongdoing and apologize as part of an attempt to cleanse the record.

Practice Makes Perfect

A board or commission with land use decision making authority should be put through its paces to educate the members about compliance. Prepare a hypothetical application and conduct a mock hearing. Stir the pot. Egg them on; taunt them a little, from all sides. Don’t forget a gaggle of angry neighbors. Nothing pushes the buttons of public officials more than getting caught in crossfire.

Test their anger management. See if they know how far RLUIPA reaches. Ask, for example, for a bowling alley for a religious group to provide recreational opportunities for its members. Take that up a notch by saying that it will be a refuge for troubled teenagers. See if the officials ask for information on the religious group’s mission. During the later critique, ellicit a discussion about whether a bowling alley is an integral part of the religious expression, and then challenge the officials to think about whether they were tougher on the religious group than they might have been on a for-profit bowling alley or a nonreligious charitable group that used bowling as therapy. The military uses extensive post-exercise briefings to provide constructive criticism. It is much better to ferret out problems when the stakes are no more than a little rush of embarrassment.

Another approach, one that we use in procedural due process training, is to completely script a religious use hearing, and have public officials, staff, and other volunteers read the parts. Build as many problems and errors into the script as you can. The obvious ones will bring laughter. The subtle ones can stimulate discussion during the post-exercise critique.

Make the Record

Nothing is more important in successfully defending against a RLUIPA claim than a complete, comprehensive, and compelling record of rational decision making based on the pursuit of legitimate governmental objectives. Once the RLUIPA claimant gets past the “substantial burden” hurdle, the government must assert and prove “compelling” interests for its action. One example of how not to do it is provided by the case of Guru Nanak Sikh Society of Yuba City v. County of Sutter, a Ninth Circuit decision from 2006.8 In the end, the Ninth Circuit held that the county had imposed a substantial burden on Guru Nanak because the stated reasons and history behind the denial at issue, and the fact that there had been a previous denial of Guru Nanak’s application to build a temple on a parcel of land zoned “residential,” “lessened to a significantly great extent the possibility of Guru Nanak constructing a temple in the future.”9 Moreover, the court said the county did not assert, nor prove, that there was any compelling interest for its denial of the proposal for the temple. The real story lies in the details of the process, and the failure to create a supportive record.

Guru Nanak first applied for a conditional use permit for a temple on 1.89 acres. The county planning division recommended approval of the application subject to conditions consistent with the general plan, but the planning commission voted unanimously to deny the permit. “The denial was based on fears voiced by residents that the resulting noise and traffic would interfere with the existing neighborhood.” In response to the denial, and mindful of the concerns expressed about the perceived conflicts between the temple use and a residential neighborhood, Guru Nanak went looking for another site. It found 28.79 acres in an agricultural district, and proposed converting an existing 2,300- square-foot single-family residence and increasing the size of the building by about five hundred square feet to a temple of about 2,850 square feet. This building was intended to serve no more than seventy-five members and was to be used as a place of religious celebration, an assembly hall, and for weddings. It applied for a conditional use permit for this purpose. Churches are allowed nowhere in the county as of right. Nonetheless, various boards and agencies ultimately approved the proposal subject to numerous conditions, and the planning division issued a “mitigated negative declaration,” which, freely translated, means that the proposed temple would not create a significant environmental impact because the mitigation measures would reduce any impacts to insignificant levels.

After a public hearing, the planning commission approved the application by a vote of four to three. The four-member board of supervisors held a hearing on appeals brought by several neighbors, reversed the planning commission’s approval, and denied Guru Nanak’s application. The supervisors gave various reasons for the reversal, including that the property was agricultural and should remain so, that it was “too far away from the city” and would not promote orderly growth, that the use would be detrimental to surrounding agricultural uses, and that Guru Nanak should locate a church closer to other existing churches. Two of the commissioners characterized the proposal as “leapfrog development” given its location away from existing infrastructure.

In a lengthy decision, the Ninth Circuit analyzed the decision making process in detail and found it lacking. The court affirmed the trial court’s order granting summary judgment for Guru Nanak, and enjoined the county to immediately approve the conditional use permit application. Because the interpretation and application of the county’s regulations in denying the application a second time was found to have imposed a substantial burden on Guru Nanak, the county was obligated to prove, which it did not, that there were “narrowly tailored, compelling reasons” to deny the application.

Practice Pointer: First, eliminate any legitimate basis for claiming that a site-specific review and denial will create a substantial burden by clearly identifying other alternatives including, as appropriate, scaled-back or redesigned development on the same site, or development on other more suitable sites in specified areas. Second, if there is concern the court will find the denial or conditional approval to be a substantial burden, then make sure the record is replete with evidence detailing which safety or other compelling governmental interests were furthered by the denial or conditional approval, and why that outcome was the least restrictive means of addressing those interests.

Don’t imagine that government will lose simply because it denied a conditional use permit. The Supreme Court of Oregon, in Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of West Linn,11 held that the denial of a conditional use permit to build a new meeting house did not constitute a “substantial burden” even though the denial had “several adverse consequences for the church’s effort to build a meeting house.”12 The city had directed the church to submit a new permit application to use a greater portion of the available lot, to provide additional buffering, and to submit required noise studies. This process imposed additional 125 expenses on the church but was not a “substantial burden” because it appeared the conditions could be met and “nothing in the record indicated that the city would not approve a revised application.”

If Guru Nanak is the violet of the visible spectrum, the 2008 decision of the Connecticut Supreme Court in Cambodian Buddhist Society of Connecticut, Inc. v. Planning and Zoning Commission of the Town of Newtown is at the far end, hundreds of nanometers away.

In 1999 the society purchased a ten-acre tract with two acres of wetlands and a five-acre pond, and a home in which four Buddhist monks took up residence. The site was in a farming and residential zone where religious institutions are allowed by special exception. The local land use agency denied an application for approval of a 7,618-square-foot building (1,618-square-foot meditation temple and 6,000-square-foot meeting hall) with 148 parking spaces to accommodate 450 society members. Its reasons for denial included that it would be inconsistent with a “quiet single-family residential neighborhood with a rural setting,” health treatment uses rumored to be conducted on site were not permitted, the existing volume of traffic would double or triple, the temple design was not in harmony with the neighborhood, and the water and septic system did not meet regulations.

The Connecticut Supreme Court held that RLUIPA didn’t apply. The court reached that determination by first holding that “the substantial burden provision of RLUIPA does not apply to neutral and generally applicable land use regulations that are intended to protect the public health and safety, such as those at issue in the present case.”

After a long march through First Amendment jurisprudence and its relationship to interpreting “substantial burden” in RLUIPA, the court settled on case law determinations as to “when the substantial burden provision applies to government conduct in the first instance.” That, in turn, forced the court to analyze what an “individualized assessment” might be because RLUIPA, by its express terms, limits applicability of the substantial burden provision to those instances where there are individualized assessments.

In a precedent-setting act of prestidigitation that won the day for Newtown, the court concluded that while Newtown’s regulations gave the agency some discretion, they did not permit the agency to apply them to religious facilities differently than they were applied to other special exception uses such as clubs, hospitals, landfills, and private schools. Therefore, the special exception regulations did not allow for an “individualized assessment” and, consequentially the substantial burden analysis was never reached. Importantly, the land use agency had the discretion in the regulations to apply them in a discriminatory manner, but it did not. It was not the regulations per se or the procedural nature of the discretionary special exception authority, but the decision made by the agency (“motivated not by religious bigotry but by neutral considerations”) that defined whether it was an individualized assessment. Court watchers and RLUIPA aficionados will be standing by to see if other courts follow this line of reasoning. Until then, local governments will be citing this decision every chance they get.

Preserve the Evidence

The hot button issues in complex RLUIPA civil litigation cases are spoliation and electronic discovery (e-discovery). “Spoliation” looks like a typographic error, doesn’t it? Spoliation is derived from an Anglo-French word of the fifteenth century meaning to plunder. In the wild and wonderful world of discovery it means the willful destruction of evidence that otherwise should be preserved and potentially available to a litigation opponent. The short version of the big problem is that if any documentation (letter, report, meeting note, phone record, and even e-mail and other electronic documentation) is prepared or received in the normal course of business, or is potential evidence relative to an issue that it is reasonably probable would be subject to litigation, then whoever has that evidence should not destroy it.

Practice Pointer: If you do not already have a records-retention policy consistent with federal and state law that permits you to destroy documents and requires you to preserve others for express periods of time, you should develop one to make sure that everyone knows the rules and follows them.

The newly amended Federal Rules of Civil Procedure expressly refer to the discovery of “electronically stored information,” commonly referred to as ESI in “electronic discovery.” Electronically stored information includes “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, . . .” and parties in federal litigation may “inspect, copy, test, or sample any designated documents or electronically stored information . . . .” The sheer volume of electronically stored information, not to mention the sometimes damaging content found within, has created an almost incalculable burden on litigants. The cost of organizing and producing electronically stored information in a single case can be several million dollars. A formal records retention policy and organized electronic document storage and retrieval system can protect government from unnecessary liability.

Practice Pointer: Start with two simple steps. First, put all of your local government computer systems on a single server with adequate backup so that records can be more easily retrieved. Second, establish governmental e-mail accounts for all elected and appointed officials and staff, and prohibit anyone from using their personal e-mail accounts for any government-related communications. This latter step will avoid the need to potentially produce personal computers and data files in the discovery process.

In the End . . .

In the end, what you do at the beginning can make the difference between success and failure. Good planning (taking into account forecasting space needs, religion-neutral regulations, and adequately trained staff and decision makers), decisions based on substantial evidence, and proper records management can eliminate a large part of the potential liability for local governments. Our doctors tell us to eat right and exercise, but we still have nearly 25,000 cardiologists in the country.16 It is similarly unlikely that the RLUIPA defense bar will soon disappear.

Notes 1. I draw on many sources in this chapter and cite them specifically where it is appropriate. Otherwise, the text reflects the case law and literature generally. I want to expressly acknowledge that I draw extensively on two useful sources that apparently are not generally in the public domain, but which I can make available to the reader if they send me an electronic mail message to dwightmerriam@gmail.com. The first of these articles is by Jeffrey T. Melching of Rutan & Tucker LLP and was presented to the City Attorneys Association of Los Angeles County at its spring 2003 retreat. That paper is entitled, “The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA): What’s a City to Do When a Church Comes to Town?” The second is a recent short presentation by a lawyer who has labored in the RLUIPA trenches, most recently in an important case against a municipality, Westchester Day Sch. v. Vill. of the Mamaroneck, 504 F.3d 338 (2d Cir. 2007). That paper is by Kevin J. Plunkett of DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, and was presented to the New York State Bar Association Municipal Law Section’s annual meeting on October 20, 2007. It is entitled, “Religious Land Use and Institutionalized Persons Act (RLUIPA): Dos and Don’ts for Municipal Attorneys When Advising Municipal Board Members, Staff and Consultants.” 2. See Mont. Envtl. Info. Ctr. v. MDEC, 296 Mont. 207 (1999). 3. See Westchester Day Sch. v. Vill. of the Mamaroneck, 280 F. Supp. 2d 242, 230 (S.D.N.Y. 2003) (“traffic concerns have never been deemed compelling government interests”); Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005); Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore County, 2008 WL 314717 (Md. App. 2008). 4. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992). 5. For a case on point discussing the ins and outs of conditional use permits as compared with the alternative of the legislative planned unit development in a safe haven of the as-of-right approach, see Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005). ABA-LUCERO-09-0202-007.indd 128 BA-LUCERO-09-0202-007.indd 128 4/10/09 1:20:07 AM /10/09 1:20:07 AM How Local Government Can Nip RLUIPA Claims in the Bud 129 6. See Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846 (7th Cir. 2007); see also Cypress Christian Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002). 7. Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006). 8. Id. 9. Id. at 981. 10. Id. at 982. 11. 338 Or. 453, 111 P.3d 1123 (2005). 12. 338 Or. at 467, 111 P.3d at 1130. “For the purposes of this opinion, we assume without deciding that the city’s denial of the CUP constituted an individualized assessment as that term is used in 42 USC § 2000cc(a)(2)(C).” 338 Or. at 463 n.5, 111 P.3d at 1128 n.5. 13. 285 Conn. 381 (2008). 14. Id. at 400. 15. FED. R. CIV. P. 34(a). 16. W. Bruce Frye, Cardiology Workforce: A Shortage, Not a Surplus, HEALTH AFFAIRS, Feb. 4, 2004, available at http://content.health affairs.org/cgi/reprint/hlthaff.w4.64v1; Locumtens.com, Cardiology Career and Resource Center, http://www.locumtenens. com/cardiology-careers/main.aspx (last visited Mar. 17, 2009).

Reasserting the Right to Front-Yard Gardening

Hermine Ricketts and her husband, Tom Carroll, decided the best place ever for their vegetable garden was right there conveniently in their front yard. Local officials had other ideas.
Homeowners Tom Carroll and Hermine Ricketts in their garden.
Wilfredo Lee/AP

“The farmer in the dell, the farmer in the dell, hi-ho the derry-o, the farmer and the dell…” so goes one of the most popular and oldest nursery rhymes, originating from Germany’s “Es fuhr ein Bau’r ins Holz” and brought to America by immigrants, and then spread around the world. In the United Kingdom it has a variant, “The nurse takes a dog.”

Growing your vegetables in “a small wooded valley” is unquestionably appropriate, but what about if you decide your garden should be in the front yard of your home in a residential district?

This issue has come up time and time again over the years across the country, most recently in Florida, when Hermine Ricketts and her husband, Tom Carroll, decided the best place ever for their vegetable garden was right there conveniently in their front yard in Miami Shores Village, a municipality of just 3.75 square miles and 10,493 people. Their garden in the sunniest area of their lot included kale, scallions, beets, eggplant, cherry tomatoes, yellow Swiss chard, Chinese cabbage, okra, bell peppers, jalapeños, and squash. They had growing outside their front door a veritable feast of healthy food. And it was so good for Ricketts, who in recent years has come to use a wheelchair and requires oxygen.

Local officials, however, wanted a tidier appearance and sought to end Rickett’s 17-year gardening experience in the interest of “protecting the distinctive character of Miami Shores Village.” The village amended its zoning code in 2013 to prohibit such gardens with this simple change: “Vegetable gardens are permitted in rear yards only.” At the same time the code continued to allow garden gnomes, pink flamingos, trolls, boats and jet skis in front yards. Anyone nabbed for the zoning crime of growing vegetables in their front yard was subject to a fine of $50 per day. Ricketts and Carroll received a notice of violation and, fearing the fines, destroyed their garden; and along with it part of their food supply and the great pleasure they had enjoyed in tending their small plot.

They appealed, challenging the code as-applied, lost in their local administrative appeal and lost at trial. They then sought the help of the Institute for Justice, which describes itself as “[t]he nation’s only libertarian, civil liberties, public interest law firm.” Given the res judicata waiver bar to refiling their prior failed as-applied claim, their new action challenged the code on its face. A facial challenge is hard to win because, of course, it requires that the law be unconstitutional anywhere and everywhere it might be applied. As the Florida appellate court described it, they would have to succeed in “attacking the statute on the grounds that it cannot be validly enforced under any set of circumstances.” They lost at trial and lost when the appellate court upheld the trial court’s rejection of their claims.

The Third District Court of Appeal’s decision is well-reasoned, though the court clearly doesn’t like where it had to go. The court was stuck because it could only apply the minimal rational relationship test, rather than the strict scrutiny review that would have come with a suspect classification or fundamental right—growing vegetables are neither. One could argue, and they did unsuccessfully, that with those gnomes, jet skis, and other paraphernalia allowed to litter front yards in Miami Shores Village, a few cherry tomatoes were not so bad, and the prohibition on growing vegetables was overboard and vague.

What to do? Good advice for anyone who doesn’t like local zoning laws is the somewhat glib truism “If you don’t like the law, change it.” In this case, Ricketts, with the Institute of Justice’s help, went to the Florida Legislature and convinced it to change the law: “Except as otherwise provided by law, a county, municipality, or other political subdivision of this state may not regulate vegetable gardens on residential properties. Any such local ordinance or regulation regulating vegetable gardens on residential properties is void and unenforceable.” Good for you, Florida.

Reflecting on the change in the state law, Ricketts said: “After almost six years of fighting, I am relieved that my right to grow my own garden, on my own property, is finally going to be protected. Once it was taken from me, my health suffered severely. I am looking forward to the time that I can once again grow my own food, for my own consumption, without having to worry that an overzealous code enforcement officer will try to fine me into destitution.”

Ricketts is especially pleased to now be able to grow her garden without interference by the government: “You’re down on the earth, touching the soil, kneeling on the ground. … It’s a healing process,” she said. “I’m hoping to get back in the garden and spend time outside doing things I love. The healing things in the sunshine.”

“Gardening is wonderful,” Ricketts said. “I feel victory. … I have no words.”

Published on August 05, 2019 at 01:42 PM: https://www.law.com/ctlawtribune/2019/08/05/reasserting-the-right-to-front-yard-gardening

Dealing With the Dockless Scooter

A Lime scooter near the State Capitol building in Hartford. Photo by Michael Marciano.

They are a big business, a big problem, and they both aid and impede transportation. The challenge is to put them in their place, and there is a solution.

You see them most everywhere now, the so-called dockless scooters, electric scooters and other two-wheelers available for rent, picked up off the street, ridden around town and then, in most cases, simply abandoned on the sidewalk or alongside the street. They are a big business, a big problem, and they both aid and impede transportation. The challenge is to put them in their place, and there is a solution.

To be more technical, here is the definition of a dockless scooter from an Atlanta law regulating them:

Shareable Dockless Mobility Device: an electric/motorized or human-powered device that permits an individual to move or be moved freely, is available for rent to the general public for short-term one-way trips without the installation of any infrastructure in the public right-of-way and shall include but not be limited to a bicycle/e-bicycle, scooter/e-scooter and shall exclude any motor vehicle required to be registered with the state, in accordance with state law.”

It’s a fast-growing business. Even Uber is into it, with a startup last year, Uber Bike, in San Francisco. Now Lyft has just rolled into town to join the fun with hybrid e-bikes, even as it is in a lawsuit with the transportation authority over what Lyft claims was an exclusive deal.

The always-innovative Uber is offering a new deal in San Francisco and Chicago. For $25 a month you can have discounted Uber rides, free Uber Eats food delivery, and free JUMP bike and scooter rides. Uber bought JUMP Bikes in 2018 for $200 million. Bird, the largest of the e-scooter ride companies, has grown to a value of $1 billion, the fastest any startup has reached that mark. Lime also achieved that value quickly.

There are problems of all kinds everywhere with the dockless scooters. When Bird, Lime and Spin launched in San Francesco in March 2018, without benefit of permits, complaints of improper parking jumped from 624 in the prior six months to almost 2,000 in the six weeks after the new e-scooters appeared. It is likely to get worse for the city because even though the city has kept a tight rein on the e-scooter business, it is expected that the number of e-scooters there will soon double to 2,500 under an expansion program of the San Francisco Municipal Transportation Agency if operators sign up more low-income people for discounted rides.

This invasion of scooters has brought on “scooter rage” in some quarters, with people burying them in the sand so they can’t be found and rented, and throwing them into rivers, all of this and more, including examples of the common misuse of scooters, documented in 386 Instagram posts at “Bird Grave Yard.”

While for the average person, navigating around and through the piles of cast aside dockless scooters is largely an inconvenience and an opportunity to utter a few expletives, for those who use assisting devices in walking and those who use wheelchairs, they have become a complete barrier to mobility.

In January, Disability Rights of California brought a class action against San Diego, Bird and Lime under the Americans with Disabilities Act and similar provisions of California law. The complaint begins with:

“This action challenges the failure of the City of San Diego and private companies to maintain the accessibility of the City’s public sidewalks, curb ramps, crosswalks and transit stops for people with disabilities, in the face of an onslaught of unregulated dockless scooters. Private scooter companies have been allowed to appropriate the public commons for their own profit, regardless of the impact on the City’s residents. Persons with mobility impairments, including people who use wheelchairs or walkers, and people with significant visual impairments are thereby being denied their right to travel freely and safely on our public walkways.”

In late 2018, a group of pedestrians brought a class action against Bird and Lime in Los Angeles, claiming strict products liability, negligence, and public nuisance, among others things, and alleging numerous injuries from tripping over e-scooters carelessly set adrift and the loss of accessibility for those with physical disabilities.

The Atlanta ordinance has extensive restrictions on where dockless scooters can be parked, addressing the need to protect loading zones, vehicle parking, pedestrian and wheelchair access, bus stops, bikeshare stations, signage and traffic control devices, and “emergency service infrastructure,” such as fire hydrants and defibrillators. What do you think the chances are that dockless scooter riders carefully read, and scrupulously follow the mandates of, the 19-page, single-spaced ordinance?

The ordinance includes certain enforcement provisions, such as the right to reduce the number of e-scooters allowed under an operator’s permit and to impound and even dispose of the e-scooters. However, no enforcement provisions are going to solve the fundamental problem that there is usually no place to put these things when the riders are done testing Darwin’s theory on the street.

In the world of the startup begets the startup, along comes GetCharged Inc. with a great idea on how to solve the problem. It recently initiated a program in Atlanta working with owners of parking garages and other property owners to provide charging stations and a place to dock the dockless, getting them out of the way, quelling the mayhem, and bringing the providers of the scooters into compliance with the law. Their docks store, charge, and service up to 10 otherwise orphaned scooters in a single car parking space. The company claims it has contracts already for 2,500 locations.

Sal Cassano, safety adviser for GetCharged and former FDNY commissioner, says that GetCharged “has identified a key solution to help city planners keep our streets organized and safe. The docking stations will also help to prevent fires that have become more common in homes and warehouses where lithium ion e-scooter and e-bike batteries are often charged in unsafe conditions.”

Looks like this is an idea whose time has come.

Published on July 31, 2019 at 01:35 PM: https://www.law.com/ctlawtribune/2019/07/31/dealing-with-the-dockless-scooter