The first panel, “Protecting the Public – Local Law,” featured Robert Alfton who spoke on Labor Law in the Public Sector, Aashish Srivastava who addressed Cyberbullying Laws in Australia, and concluded with a joint presentation by Iris Jones and Patricia Lynch, who discussed the Need for a Global Response to Cyberbullying.

The second panel, “Governance in the Public Sector,” featured Phillip Sparkes who addressed The Ethical Obligation of Government Legal Advisors, a joint presentation by Charles W. Thompson, Jr. and Robert N. Hills on Graffiti Vandalism in America – Shaping the Municipal Response, and concluded with a presentation by Susan Moore on Innovation in ADR to Resolve Political Impasses.

The third panel, “Stewardship, Sustainable Use and Development of Land and Resources,” featured Edward Sullivan who discussed Land Use and Forestry Protection, Timothy D. Hollister who addressed Black and White Issues in the Evolution of Green Building Standards, and Benjamin E. Griffith who gave a presentation Fracking for Shale Gas – Energy Security and Sustainable Water
Resources.

The fourth panel adhered to the same overall theme of the third and featured Julian Grant who discussed Ownership and Care of the Beaches and Coastal Regions of the U.S. and the World, Steven R. Meyers who addressed Public Private Partnerships in the Global Economy, and Dwight H. Merriam who gave a presentation on Private Residential Communities – A Cross Cultural Comparison.

THE WJA World Congress was attended by over 350 members and guests representing over 50 nations. Support and staffing was provided by WJA staff, the Czech Bar Association, ICC Paris and National Committees of the region, as well as local law faculties in Prague and Plzen and IMLA.

The diversity of the many panels was matched only by the breadth of the legal topics and issues addressed during the five day Congress.The participation of IMLA members as speakers and presenters at the WJA 24th Biennial Congress signifies the continuation of a rich and meaningful collaboration between IMLA and WJA dating back to over 2 decades.

Like many cities, St. Paul has a property maintenance code which establishes minimum maintenance standards for all structures, including provisions on light, ventilation, heating, sanitation, fire safety, etc. In 2002, the City established the Department of Neighborhood Housing and Property Improvement (DNHPI) as an executive department responsible for administering and enforcing the code.

The director of DNHPI increased the level of code enforcement target at rental properties, and directed proactive “sweeps” to detect code violations. DNHPI sought to compel property owners to take greater responsibility for their properties or, alternatively, force changes in ownership. To achieve its objectives, DNHPI employed a variety of strategies for renter-occupied dwellings, including orders to correct or abate conditions, condemnations, vacant-building registration, fees for excessive consumption of municipal services, tenant evictions, real-estate seizures, revocations of rental registrations, tenant-remedies actions, and if necessary, court action.

Plaintiffs in this case are essentially landlords, with portfolios ranging from one property to over forty properties. These landlords received code enforcement citations that in many cases, cited between ten and twenty-five violations per property. As a result, Plaintiffs claim they suffered increased maintenance costs, fees, condemnations, and were forced to sell properties in some instances.

Plaintiffs brought a number of claims (11 in total), and the district court dismissed all on summary judgment. The plaintiffs appealed to the Eighth Circuit Court of appeals, where the Court affirmed in all aspects except one. On review, the 8th Circuit held that disparate impact theory applied to a claim of racial discrimination under the FHA when a city applies its housing maintenance code to substandard housing, because the cost to repair tended to reduce housing options for people of color. The standard used by the 8th Circuit is that a plaintiff “must show a facially neutral policy ha[d] a significant adverse impact on members of a protected minority group.” Plaintiffs are NOT required to show that the policy or practice was formulated with discriminatory intent. The Circuits are split on this. The Seventh Circuit (and a few others have follow) includes the following factors to be used: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229 (1976)]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.

SCOTUSblog is a good place to follow the action.

Well, it may be a while before we get an answer to that particular question, but the question trail doesn’t end there. IMLA joined an certiorari-stage amicus effort in City of San Leandro v. Int’l Church of the Foursquare Gospel. [Read Ninth Circuit decision here] [Read San Leandro's cert petition brief here]

It’s an interesting case, and if SCOTUS grants cert, it might be the case that clears up some of the ambiguity of RLUIPA. The Questions Presented in the cert petition are:

1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a “substantial burden” under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006).

2. Whether case-by-case analysis of a land use application constitutes an “individualized assessment” under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(2)(C) (2006).

3. Whether neutral, generally applicable planning principles may be a “compelling interest” of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§2000cc(a)(1)(A) (2006).

See IMLA’s amicus submission here.

I am Teona Tavelishvili. I am visiting here through the Legislative Fellows Program organized by American Councils for International Education in hopes of learning about how local governments operate in the United States. The program facilitates month long internships with local and state governments throughout the United States and is designed to help young professionals from other countries gain a better understanding of the legislative and political processes.

I am lawyer of the local administrative body of  Sagarejo municipality. This is a town in Kakheti, in eastern Georgia with 12,000 population.  During my interning period I attended the Mid-Year Seminar which took place in Washington DC.  I met representatives of counties, city attorneys and other members of IMLA from different states of America. I listened to their interesting speeches and representatives shared each other their municipality’s issues. They were talking about their counties problems and offered their solving ways.  Some of them are similar to my municipality’s others are not. But what I found interested here is that this organization makes many good things for municipalities and such meetings and seminars is very important, to improve working systems in local bodies.

My great desire is  when I go back to my country tell my region about IMLA and make presentation about the functions and goals of IMLA and offer Georgians to create the similar organization in our country.

Here’s the description provided on the NPR website of the audio feed: As the foreclosure crisis continues, derelict properties have become a growing problem in neighborhoods nationwide. Webster, Mass., has come up with an innovative way to deal with buildings deemed nuisances: posting the names and contact information of the owner in front of the property.

How is your community dealing with abandoned properties? Have any other communities tried posting a “wall of shame” on a owner’s abandoned property?

In the past three years, cable operators have flooded the FCC with petitions claiming that because satellite providers serve the same communities, the cable operators face “effective competition” and should be deregulated. What has caused this dramatic uptick in filings at the turn of the decade? As you might suspect, the answer appears to relate less to a sudden emergence of meaningful competition (which, for most, remains hard to come by) than to old-fashioned gamesmanship.

In many recent petitions, cable operators, seeking to beat the release of 2010 U.S. Census data, have distorted the competitive status of many local markets by comparing current satellite subscribership with 10 year old (2000 U.S. Census) occupied housing data. For communities that have grown over the past decade, this creates a highly misleading picture of competition: it overstates satellite subscribership, often dramatically. Yet, lacking better data, the FCC—which finds effective competition if a cable operator shows that 15% of community households subscribe to satellite—has accepted these mismatched showings and freed cable operators from local regulation.

This need not be the case. Local government attorneys can now quickly and easily clarify this distortion using a simple tool: 2010 U.S. Census data. We have found that using 2010—not 2000—U.S. Census housing data often materially changes the 15% analysis. If your community has experienced any growth over the past decade, you should review whether a cable operator has recently filed an effective competition petition. If so, a simple filing with the FCC could correct the operator’s “effective competition” status and preserve valuable community benefits.

Why an Effective Competition Finding Matters

An “effective competition” finding helps the cable company and hurts the local community. After the FCC finds “effective competition,” a local government may no longer regulate the cable company’s basic cable service rates. In addition, cable operators use “effective competition” status to justify other anti-consumer practices. For example, certain operators have claimed that they no longer must place PEG channels on the basic service tier, and can require additional equipment to view it. The “competitive market,” it is said, will protect these benefits. But in areas where this so-called “effective competition” is the product of a cable operator’s skewed market calculations, cable subscribers in the community are left with no protection at all.

Why Recent Petitions May Not Fairly Reflect the Competitive Market in Your Community

In recent years, cable operators have flooded the FCC with effective competition petitions. In 2009, the total number of local markets found subject to effective competition more than doubled, increasing from 3,205 to 7,034. The FCC explained that the increase was due largely to petitions relying on the 15% satellite market share test. The FCC also found that cable rates are higher in markets that supposedly face “effective competition.”  The FCC openly attributes this effect to these recently-filed petitions.[1]

The fact that monthly cable bills have risen in new “effective competition” communities should not be a surprise for a simple reason: many recently-filed petitions do not document real competition at all. Because the FCC compares a community’s satellite subscribership with its total occupied households (to find effective competition, the FCC requires over 15% of households to subscribe), and because the U.S. Census only updates household counts every 10 years, many cable operators have claimed “effective competition” by comparing current satellite subscribership with ten year old household data. In many communities, this has produced “effective competition” findings that recent household data reveal to be simply wrong.

What Your Community Can Do

Local government attorneys now have an easy way to counter this tactic. For many states, the U.S. Census Bureau has already released occupied household numbers by community. For many others, such data will be released shortly.[2]

If your community has been the subject of a recent effective competition petition (even one already granted), you should test the cable company’s reported subscribership count against the occupied household count reported in the 2010 U.S. Census. If the total number of competing subscribers the company reports is less than 15%, your community should correct the record and preserve local benefits. The cable operator should not achieve “unregulated” status based on an openly misleading depiction of your local cable market.

Should you have any questions, please do not hesitate to contact us (Miller & Van Eaton, PLLC).

May an Internet service provider block certain websites or content? May it slow Internet traffic from its competitors while favoring its own applications or services? Must the provider disclose these and other network management practices to its end-users?

On December 23, 2010, the Federal Communications Commission addressed these and other topics when it released new “open Internet” rules.  [Link 1] Local government attorneys should review the rules closely. Depending on the nature of the Internet service that a local government uses or provides, the FCC’s rules could protect a local government (as an Internet user), and impose new obligations upon it (as a service provider).

An analysis of the new rules is available here. [Link 2] The rules apply to Internet service that is sold on a retail, ”mass market” basis. The FCC indicated that its rules—which do not exempt Internet service provided by a governmental entity—would not apply to certain premise owners, such as coffee shops and airlines, who obtain Internet service for customers from a third party. Nevertheless, on many important questions, the rules are fairly ambiguous and may require FCC clarification.

Do you recall the U.S. Supreme Court’s Rapanos decision in 2006 in which the Court split 4-1-4 on the extent of the federal government’s jurisdiction over wetlands under the Clean Water Act? That odd split, with Kennedy in the middle, left at least two possible tests for determination of jurisdiction and uncertainty that remains today.

The United States Court of Appeals, Fourth Circuit, on January 25^th, handed down its decision in Precon Development Corporation Inc. the United States Army Corps of Engineers clearly showing how unclear the jurisdictional issue remains. http://pacer.ca4.uscourts.gov/opinion.pdf/092239.P.pdf

For background on the Rapanos decision and the fallout, click here and here.

The whole doctrinal disaster brings back fond memories the former Secretary of Defense Donald Rumsfeld, who famously said:

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don’t know
We don’t know.

http://www.slate.com/id/2081042/

I do miss him.

The Precon case arose over a dispute as to whether 4.8 acres of wetlands 7 miles from the nearest navigable water was subject to jurisdiction by the U.S. Army Corps of Engineers under the Clean Water Act. The Corps claimed jurisdiction and denied Precon’s application to impact the wetlands through development. Precon appealed and the federal district court granted summary judgment to the Corps upholding the Corps’ jurisdiction and permit denial.

Precon appealed the Corps’ jurisdictional determination and the Fourth Circuit vacated the District Court’s grant of summary judgment and remanded the case back to the District Court with instructions to remand the matter back to the Corps for reconsideration of its jurisdiction over the wetlands.

Precon is the developer of the 650-acre planned unit development known as Edinburgh in Chesapeake, Virginia. Between 2004 and 2006, Precon received Corps approval to fill 77 acres of wetlands for the development.

Precon later decided to develop 10 additional residential lots in Edinburgh, development that required impacting another 4.8 acres of wetlands. The Corps was not happy about Precon’s piecemealing the application by adding additional land. Precon said the Corps didn’t have jurisdiction over the 4.8 acres; the Corps said it did; and the issue was joined.

Landscapers, plumbers, electricians and carpenters were hard at work Sept. 17 putting the final touches on Edinburgh Meadows, the host site for this year's Homearama. (Steve Earley / The Virginian-Pilot)

The wetlands in question are next to a man-made drainage ditch that is 2,500 feet long, dug through wetlands with the dredge materials thrown up on the side creating a berm between the ditch and the 4.8 acres of wetlands.

Water in the ditch flows seasonally from late winter to early spring and connects with a perennial drainage ditch about 900 feet downstream from the site. That ditch runs along the boundary of the development for about 3,000 feet until it reaches a second perennial tributary 2 ½ to 3 miles south of the Edinburgh development. From there the merged tributaries flow into the Northwest River 3 or 4 miles downstream.

The Fourth Circuit accepts Kennedy’s “significant nexus” test as controlling in this case. The court’s analysis of the significant nexus determination takes several pages in the decision.

Interestingly, the Fourth Circuit decided that it should “treat compliance with Justice Kennedy’s ‘significant nexus’ test as a question of law, as we do any question of statutory interpretation, and review for compliance de novo…. However, recognizing the Corps’ expertise in administering the CWA, we give deference to its interpretation and application of Justice Kennedy’s test where appropriate.”

The court decided that the significant nexus test “does not require laboratory tests or any particular quantitative measurements in order to establish significance.” Interpreting Kennedy’s test, the court said that “he clearly intended for some evidence of both a nexus and its significance to be presented. Otherwise, it would be impossible to engage meaningfully in an examination of whether a wetland had ‘significant’ effects or merely ‘speculative or insubstantial’ effects on navigable waters.”

The court decided: “The question is thus whether the Corps’ record contained enough physical evidence -quantitative or qualitative – to allow us to uphold its determination that a significant nexus existed here.”

The court found that the record did not appear to contain any measurements of actual flow and that “even if the record had sufficiently documented flow, we do not believe that recitation of the flow of an adjacent tributary alone, absent any additional information regarding its significance, would necessarily suffice to establish a significant nexus…. Accordingly, we must conclude that this record does not support the Corps’ determination that the nexus that exists between the 448 acres of similarly situated wetlands and the Northwest River is ‘significant.’”

And so, case goes back to the trial court and from there back to the Corps.

What a mess the Rapanos decision has left all of us.

Opinion is here.

The Humphries were accused of child abuse in California, but later exonerated. Under state statute, their names were added to a child abuse database for a period of 10 years. The statute has no procedures for challenging a person’s inclusion in the child abuse database, and neither California nor Los Angeles County instituted such procedures. The Humphries filed suit under Section 1983, seeking damages, and injunction, and a declaration that public officials and Los Angeles County had deprived them of their constitutional rights by failing to provide procedures to contest inclusion in the database.

The district court granted summary judgment in favor of the government entities, but the Ninth Circuit disagreed, stating that the Fourteenth Amendment required California to provide notice and “some kind of hearing.” The Ninth Circuit held that the Humphries were entitled to declaratory relief, and possible damages on remand. The Ninth Circuit held that the Humphries were prevailing parties and awarded $600,000 in attorney’s fees and that $60,000 must be paid by Los Angeles County. The County denied that it was liable and that, in respect to the County, the plaintiffs were not prevailing parties. The Country claimed that as a municipal entity, it was liable only if a municipal “policy or custom” caused the Humphries to be deprived of their constitutional rights. In this case, it was California policy, not Los Angeles County policy, that brought the deprivation. However, the Ninth Circuit saw no reason to remand in respect to the County’s obligation to pay the $60,000 in attorney’s fees because “the limitations to liability established in Monell do not apply to claims for prospective relief.” The County filed its cert petition asking the Supreme Court to decide a circuit split on whether or not Monell’s policy or custom requirement applies to both claims for damages and claims for prospective relief.

The Court reasoned that nothing in Section 1983 suggests that the causation requirement should change with the form of relief sought. In fact, the text of the statute suggests the opposite when it provides that a person who meets Section 1983 elements “shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress.” In addition, the Supreme Court in Monell thought that Congress intended potential Section 1983 liability where a municipality’s own violations were at issue but not where only the violations of others were at issue. To find the requirement inapplicable where prospective relief is at issue would undermine Monell’s logic. The case has been remanded back to the Ninth Circuit for further proceedings consistent with the opinion.

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:

Courtesy http://www.care2.com/news/member/812642344/2369780

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