Planning and zoning ordinance unconstitutional, attorney says

Mansfield officials have previously stated they will not enforce the new zoning law in accordance with the full breadth it provides them, rather, they will operate on a complaint basis. (Amar Batra/The Daily Campus)

Mansfield’s new definition of a fraternal organization in its zoning regulations violates the First Amendment’s protection of the right to assemble, according to a First Amendment lawyer.

When asked to review Mansfield’s Planning and Zoning Regulations, Mitchell Pearlman, an attorney who teaches First Amendment law in the University of Connecticut’s journalism department, said the town’s ban on any, broadly defined, “fraternal organization” from gathering in residential areas is unconstitutional on the federal and state levels.

Article IV of Mansfield Planning and Zoning Regulations defines a fraternal organization as: “Any group of persons organized for a common purpose, interest or pleasure. This term includes, ... social, service and professional/academic organizations.”

“To my mind, the Mansfield zoning regulations’ defining fraternal organizations and prohibiting them from holding events is a violation of the U.S. Constitution’s First Amendment prohibition against government abridging the right to peaceable assembly of persons within the jurisdiction of the United States,” Pearlman said.

These restrictions may constitute prior restraint, government action that prohibits speech or other expression (i.e. assembly) before it can take place, Pearlman said.

While the town has the right to intervene if events break the law, they cannot prevent people from assembling peacefully in a residence, Pearlman said.

The Mansfield Town Council unanimously passed a motion to have the town attorney provide a written response regarding the definitions of fraternal organizations and fraternal houses at their next meeting on Nov. 27.

The change to the definition was made in order to address the problem of the existing definition of a “fraternal organization” referencing a UConn office that no longer exists, Mansfield officials said.

People have the right to assemble…but they don’t have a right to party.
— Rebecca Schafer, Mansfield Preservation Society

Mansfield officials have previously stated they will not enforce the law in accordance with the full breadth it provides them, rather, they will operate on a complaint basis.

“Maybe a big party that gets reported to the police will receive a notice of violation for fraternal activity off-campus. But I don’t foresee a neighbor complaining about the honors club meeting at a property,” Mansfield’s Assistant Planner and Zoning Enforcement Officer Janell Mullen told the Daily Campus.

Pearlman said this policy doesn’t change the fact that the regulation is unconstitutional.

“Voluntary selective enforcement of the regulations by Mansfield officials, in my opinion, will not save them from being declared unconstitutional by federal and state courts,” Pearlman said.

Ryan Cunniff, the president of UConn’s Interfraternity Council, said students are not comforted by officials saying the power will only be used selectively.

“It can be easily abused with the way it’s set up,” Cunniff said. “That’s why I’m uncomfortable with it being the way it is, and (Mansfield officials’) only counter argument being ‘Oh we won’t take it that far.’ That’s not really reassuring.”

Rebecca Shafer, one of the founders of the Mansfield Preservation Society and a personal injury, asbestos defense and insurance litigation lawyer, said she would “let (Pearlman) have his opinion” on the matter and she does not think the updated definition violates the Constitution.

“People have the right to assemble…but they don’t have a right to party,” Shafer said.

Shafer said her organization works to maintain the integrity of Mansfield’s residential neighborhoods where, she said, fraternities have always been banned in certain residential zones.

“A neighborhood is to be a neighborhood. It’s not a party zone,” Shafer said.

Cunniff said he feels student organizations were unfairly targeted by the regulations.

“It’s a direct attack on students and student organizations, a lot of which are perfectly fine,” Cunniff said.

Colin Mortimer, a UConn student who recently ran for Mansfield Town Council, agreed that the regulations target students living in Mansfield.

“Planning and zoning have given themselves a very strong tool they don’t need, nor do they have the responsibility to hold, and argue that they’re only going to use it when they want to. We believe that’s not fair,” Mortimer said.  

Existing public safety and nuisance laws adequately deal with the issues the changes to the regulations attempt to address, Mortimer said.

“The police are a better regulating force than planning and zoning to deal with criminal activity,” Mortimer said. “I think (police) apply the law more fairly. Police have much more experience dealing with students breaking the law.”

Cunniff said police have been increasingly cracking down on parties since his freshman year. He said people, and not even those who live in neighborhoods near fraternal houses, have been reporting more events.

“The police do a wonderful job making sure everything is safe and in order, but they’re getting a lot of pressure from the town to be more vigilant in ticketing even if a situation wouldn’t really warrant (it),” Cunniff said.

Ben Shaiken, a recently re-elected member of the Mansfield Town Council representing the Democratic party, said he feels the town approached the issue the wrong way.

“My concern with the way that their change to the zoning ordinance is written is it’s fairly broad. It’s complaint-driven, but I don’t think it’s a good idea,” Shaiken said.

Ric Hossack, a Mansfield resident who ran for town council this year as a Republican, said he believes the regulations violate residents’ rights.

“I understand that they are trying to address the issue of student parties… but I think they’re going about it the wrong way. You don’t go about it by curtailing people’s rights,” Hossack said.

The town should not try to change student behavior through legislation, Hossack said.

“I think the town spends an inordinate amount of time trying to modify student behavior when in reality, they can’t,” Hossack said. “Kids are going to do what they want to do.”

The regulations actually restrict the activity of all town residents, Hossack said.

“To make an ordinance that is intended to modify student behavior, but actually encumbers the residents of the town, is just wrong,” Hossack said.

Shaiken said student parties held in residential neighborhoods can get out of hand and the town needs to work to solve this problem. He also said the town has the right to update its zoning regulations to reflect the changing makeup of its neighborhoods.  

“I don’t think it’s an unreasonable thing for the town to be requesting that folks aren’t getting home from soccer practice on a Saturday night to have people throwing up in the street,” Shaiken said.

Mortimer said he thinks planning and zoning should not have any jurisdiction over regulating where people can and cannot gather, since if falls out of the sphere of regulating land use.

“Who gives the authority to planning and zoning to arbitrarily decide where people assemble and what infraction is an infraction?” Mortimer said.  

Planning and zoning’s solution is an oversimplification of the problem, Mortimer added.

“It’s an irresponsible way to… fix to an actual, complicated problem,” Mortimer said. “You don’t fix a problem by banning everything.”

Mortimer said both students and town residents must acknowledge the existing problems with how they deal with one another.

“Both sides are engaging in bad behavior, students are not being good neighbors…and the town is attacking and belittling students thinking that will help them achieve their goals,” Mortimer said. “Neither of those (behaviors are) going to work. It’s just going to further antagonize each side.”

Shaiken said he wants to see a solution emerge that is the result of cooperative efforts.

“I think students absolutely need to be part of the solution and the administration does too,” Shaiken said. “It needs to be a solution everybody comes up with together if we want to have any chance of it working.”

Hossack said students and Mansfield residents are currently divided.

It’s an irresponsible way to… fix to an actual, complicated problem. You don’t fix a problem by banning everything.
— Colin Mortimer, UConn student

“There’s definitely an invisible wall between town residents and the students, and there doesn’t have to be,” Hossack said.

Cunniff said students want to find a solution that is amenable to all affected groups.

“As students, I think we’re a lot more willing to work with (Mansfield residents) than they think (we are) or (than they) are willing to work with us,” Cunniff said.

Mortimer said he and Haley Hinton, a fellow UConn student, ran in the election to show that UConn students are serious about working with town residents, and that both sides need to work to reconcile their differences in order to operate as a cohesive community.

“We don’t believe the people in the town are bad people, that they hate students,” Mortimer said. “We just think there is a fundamental misunderstanding between the student population and the town population, and we just want to see both sides act like… mature residents who are members of the same town so that we can work toward common goals instead of further separating ourselves.”


Anna Zarra Aldrich is a staff writer for The Daily Campus. She can be reached via email at anna.aldrich@uconn.edu. She tweets @ZarraAnna.