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Signage and smoking in Lumberland

February 9, 2012

With so much publicity surrounding the high-impact industrial use and conservation easement provisions of the proposed Lumberland zoning code, the provisions that impose content-based restrictions on signage and ban practically all smoke-emitting activities, not only in public areas, but also on private land, appear to have gone largely unnoticed.

Section 5.5 effectively imposes content-based preferences in mandating the types of signs (both preexisting and new) for which permits and expensive public liability insurance must arbitrarily be maintained. As an attorney, I believe this provision is subject to challenge on Constitutional free speech grounds. Within the past two years, federal courts for both New York and the 8th Circuit Court of Appeals have (rightly) stricken down similar laws. Indeed, because the zoning law imposes criminal liability for violations, filing suit in federal court for injunctive relief may be imperative if this provision is not changed.

Just as pernicious is Section 5.3.10(a), which will criminalize practically all activities that produce any “measurable emission of smoke.” Read literally, this provision criminalizes all smoking of any form of tobacco —even if done on your own property. This is more draconian that even NYC’s ban—one of the most restrictive in the nation. It apparently also criminalizes the use of outdoor barbeque grills and smokers, as well as private, recreational campfires or firepits.

Although I share the town’s goals of preserving our scenic and natural assets and rural residential character, these provisions are overreaching and offensive, and should not be enacted as written. If they are, they should be immediately challenged in court.

David Leamon, Esq.
Glen Spey, NY