Re: Hideyo's court case 19th?? - to Michelle

[Lernermichelle]

I think the next logical step is for you to go to law school!   Ok, if you are going to be before a hearing officer rather than a judge, Greg is right-- the hearing officer probably can not, let alone will not, rule an ordinance invalid. I think you are right to stress the no problem, no nuisance, no health and safety issue first. But I think that second you ought to argue that, in fact, because there is no problem the city actually approved you for the permit in 2004 and should not be able to arbitrarily change its mind now, especially since you relied on the approval last year to make build things for the cats, etc.  I think you actually should ask Greg to pull up some relevant cases on equitable estopel and that you should ask Greg to tell you if it makes sense to argue this at the hearing level.  I probably would argue it because it could give the hearing officer an out-- a way to approve your appeal without having to strike down the ordinance, which he probably will not want to or be able to do, and without having to say that anyone who is not a nuisance can have more animals than the ordinance says (which he also will not want to do). If you can convince him that in your case specifically the city actually approved your request for permits, that you relied on this and spent money based on it, and then the city took the permits  away with no change in circumstances and is trying to say it is now illegal for you to have the same number of cats they had already approved, and then show the hearing officer that there is a legal principle called equitable estoppel (and give him some cases) saying they can't do that,  then the hearing officer might feel like he has a way to rule in your favor without either striking down the ordinance or giving everyone else a reason to flaunt the ordinance.  He can say that in this particular case, because the city approved the permits and you relied on the approvals, the city can not now turn around and deny them without any change in circumstance or actions on your part.  That is my opinion, though again I have almost no experience with municipal. law.   I would then conclude by saying that you also think the ordinance is unconstitutional because it has no rational basis for setting the limit it does, and the limit is totally arbitrary and makes no sense, have your witness testify about why it makes no sense, and give the hearing officer copies of the relevant decisions from other states.  Say that you realize the hearing officer may not have the power to declare the ordinance unconstitutional, but you want him to consider that is probably is, when making a decision on your other arguments and the facts of your case, and that -- and this is  important!!-- you want the argument and the cases entered into the record in case you need to appeal the decision to a court, so you can make the argument there (I have no idea if you would need to have them in the record of if a court would have the power to decide the case de novo, which means from scratch, so you could raise new arguments later-- it depends on New Mexico law-- but saying this will give you a good reason to insist the hearing officer take a look at materials that are going to tell him the ordinance is probably unconstitutional, which may sway how he decides the case on the other issues.  Does that make sense?  I used to do that a lot in administrative hearings before the MA welfare agency-- I did need to get the stuff in the record there in order to later raise it in court, so the hearing officers had to include it if I submitted it, and sometimes I think it may have swayed how they decided the case on other grounds even though they did not have the power to strike down regulations entirely.  The other benefit to doing this is that  the city attorney will also get copies of the stuff then, and it may make him drop the whole thing.   Hope this helps. Again, I am far from an expert on this, so take my suggestions as merely that.   Michelle   In a message dated 12/13/2005 2:36:22 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: what do you think?