Austin Contrarian

Restaurants and cocktail lounges and the noise ordinance

The new noise ordinance isn't really my issue.  I didn't follow it as it wended its way from task force to Council.  Others have (see here, here and here).

But the controversy over Shady Grove finally motivated me to read the ordinances myself.  I've put my thoughts below.

Let me stress that I've had no prior experience with these ordinances.  I don't know how city staff has interpreted the noise ordinance in the past or how they're interpreting the new ordinances.  And I could have missed some relevant code provisions.  In other words, I've strayed outside my area of expertise.  Proceed at your own risk.

If anyone spots a mistake below, please let me know and I will cheerfully correct my analysis.

My Alan Dershowitz moment

Tom Kirkendall and Scott Henson cover the DOJ report detailing the Harris County jail's deplorable conditions.

Reading their posts, I was reminded of my own experience with the jail's shoddy policies -- as an attorney, fortunately, rather than as an inmate.

Way back when I was a cub lawyer in Houston, a partner in my firm was appointed counsel for a Harris County jail inmate who had filed a pro se civil rights lawsuit.  The partner promptly appointed me. The client was a Muslim who wanted to observe Ramadan, which required him to fast during daylight.  The jail fed inmates during the day, though, and refused to bend the rules to accommodate this inmate.  It thus gave him a blunt choice:  forget about Ramadan, or starve yourself for a month.  The jail also refused to let his imam drop off a Koran; it required inmates to order all books straight from the publisher.

By the time we were appointed, the federal judge, Sim Lake, had already entered a temporary restraining order requiring the jail to feed our client before sunrise and after sundown.  Our job was to prepare for the permanent injunction hearing.

So I deposed Harris County Sheriff Johnny Klevenhagen.  This was only my third deposition, and I must not have done it right, because I pissed off Klevenhagen so badly that he walked out midway through the deposition.  And did not return.  The county attorney and I just stared blankly at one another.  He shrugged.  I left.

To this day, I don't know why Klevenhagen got so mad.  (Really, I do.)  The line of questioning was innocuous enough:  "Q.  Don't you have inmates who spend all day at court?  A.  Yes.  Q.  Don't you have to feed them?  A.  Yes.  Q.  How do you do that?  A.  We prepare sack lunches for them.  Q.  You mean, sandwiches in plastic bags and such?  A.  Yes.  Q.  Well, why can't you set aside a couple for my guy to eat?"  And he walked out soon thereafter.

We had a status conference with the judge a few days later.  I told him about the deposition and the sheriff's answers (and sudden departure).  The judge listened patiently and then turned to the county attorney.  "You know, I'm not going to tell you how I will rule, but you need to settle."

And so the county promised to feed my guy before and after sunrise, let his imam give him a copy of the Koran, and kicked in $5,000 for his trouble.

I'd like to chalk this up to my Dershowitz-like skills but, really, this was a no-brainer.  The standard, if I recall, required the jail to balance its administrative convenience and security concerns with the inmate's legitimate religious interests.  Since feeding my client created no inconvenience or security concerns, the jail had no excuse.  It was not a close call.  The county attorney knew it, but had to put up a fight because that's what his client told him to do.

I wasn't really surprised, then, to see that the Harris County jail still can't get things right.

An unintended consequence of the Stop Domain Subsidies' Charter amendment?

Stop Domain Subsidies' proposed Charter amendment to ban retail subsidies is fraught with unintended consequences.

Here's one:  The Charter amendment likely will shunt low-income residents away from mixed-use developments and into stand-alone residential developments.  Why?  Because the proposed amendment bars subsidies to developments that merely include a retail use, even if the retail use itself receives no subsidy.  The City thus will be unable to "buy down" the affordability of units in mixed-use developments that include a retail use.

A concrete example:

Back in 2006, the City gave Ardent Residential a zoning change to redevelop the Stoneridge Apartments on South Lamar into a 300-unit mixed-use development.  The developer agreed to make 10% of the units affordable at 80% MFI.  But the units being replaced rented for a lot less.  To quell the furor over the rezoning, Betty Dunkerly proposed using some of the City's affordable housing bond money to "buy down" 10% of the units to 50% MFI, a genuinely affordable level.  The developer and the City are squabbling over the "buy down's" price tag, but the City appears ready to honor its pledge.  (It has to spend its $50 million in affordable housing bond money somehow.)

I don't know whether Ardent has filed a site plan yet, but it has talked all along about including retail as part of the mixed use.  That was part of the development's attraction. 

Assuming Ardent still intends to include a retail use, then, the Charter amendment will keep the City from honoring its pledge to buy "deep" affordability for these units.  The Charter amendment will keep the City from buying deep affordability in any mixed-use development that includes retail.  The City will be forced to spend its affordable housing dollars on stand-alone residential developments, or perhaps "live-work" developments.

I don't see how this protects local merchants.  The mixed-use development will still be built, and it will still have retail; the developer simply will rent the units at the market rate (or 80% or 60% of MFI if it takes advantage of the VMU incentives).

One could argue, perhaps, that purchasing affordability in mixed-use developments is an expensive, inefficient way to provide affordable housing.  (I'm ambivalent about it myself.)  But it doesn't seem wise to me to silence that debate by Charter amendment.

Every defense lawyer has wanted to file an answer like this.

From a real, live answer recently filed in a real, live case pending in a Texas state court (court, parties, and counsel redacted):

I.

Defendants assert a general denial under Rule 92 of the Texas Rules of Civil Procedure to the Plaintiff's Original Petition.

II.

Defendants assert that Plaintiff's damages were caused in whole or part by his own contributory negligence.  Specifically, the plaintiff is a dumbass who failed to unlock a twist lock causing his own injury -- fucking idiot.  Thus, a jury should also consider the negligence of the Plaintiff and defendants assert the dumbass defense.

III.

Defendants further assert that Plaintiff's injuries and damages, all of which he is faking, were caused in whole or in part by pre-existing conditions.  Thus, a jury should also consider the pre-existing conditions of the malingering Plaintiff.

WHEREFORE, PREMISES CONSIDERED, Defendants [redacted] therefore, prays for a take-nothing judgment and that the case be dismissed because the plaintiff is a malingering dipshit, for all costs, and for all other just relief.

Respectfully submitted,

etc.      

Moral:  When you dictate an answer over the phone to your secretary on your way back to the airport after a particularly crappy deposition, do not assume that you'll remember to edit it before filing.

Why I'm not a law professor.

Via Legal Theory Blog, the abstract for Professor Penelope Pether's (Villanova University School of Law) new paper:  Militant Judgment?: Judicial Ontology, Constitutional Poetics, and 'The Long War' (pdf):

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou's Being and Event, uses Badiou's theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of Islamic asylum seekers, enemy combatants and terrorism suspects, and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to the demands of the long war, or of post-9/11 constitutionalism on subjects serving on Western Anglophone common law constitutional courts.

Drawing in particular on the anti-terrorism control order jurisprudence of Justice Sullivan of the English High Court and the Chapter III judicial power jurisprudence of the Australian High Court, in particular as the latter deals with what is in the U.S.A. euphemistically called the preventive detention of sexually violent predators, and the indefinite detention of Islamic asylum seekers in the aftermath of 9/11, the article concludes that Australian High Court Justice Michael Kirby's recent jurisprudence of dissent instantiates a militant procedure of common law constitutional judging of others.

The Article suggests that the transformative praxiological potential of Being and Event lies in the radical uncertainty that this philosophy both implies and depends on, its anxiety, obsession and desire, and that the necessary uncertainty of the subject as to the occurrence of an event is at the heart of what might be the virtues of Badiou's account of being and event for a theory of post-9/11 constitutional judicial ontology. Militant judging recognizes both the constitutional judge's - and constitutionalism's - other, and in judging his equals those others on whom he passes judgment, the militant judge inscribes equality, becomes equal to the event.

It's not that this flavor of philosophy (anti-postmodernist, apparently), or this style of prose, exemplifies legal scholarship today.  Most legal scholarship isn't technically philosophy.  Rather, this, like most of the articles I skim every week, is just . . . irrelevant.  Immaterial.  Not in the sense of, "Yeah, right, I'll never use that in my practice," but in the sense of, "This isn't really knowledge." 

From my view outside the citadel, the problem with legal scholarship is that there are too many theorists and not enough empiricists.  There appears to be more empirical work being done today than even 16 years ago when I graduated from law school, but too much legal scholarship can still be boiled down to, "Here is what I think we should do; now let me construct a theory to rationalize it."  It needs more data discipline. 

Some of those theories are pretty wacky, too.  Legal scholars unfortunately can't agree on what's whacky and what's not, and therefore end up letting the modern equivalent of alchemists, astrologers and faith-healers share the bench with people doing useful work.

 

My "amicus brief of sorts"

While at the clerk's office pulling the trial briefs in the RG4N case, I came across this reply brief (pdf) filed by Casey Dobson on Allandale's garden-center claim.  I laughed out loud when I saw it, which I'm sure annoyed the little old lady sitting two terminals over.  Dobson quoted at length from my post last July, calling it an "amicus brief of sorts."

Dobson's point was that the legal issues had to be obvious if even some random armchair blogger could figure them out.  Still, this was the first time I've been quoted as a blogger in a brief (and apparently a first for Dobson as well).

Why the City hires outside counsel

A new RG4N talking point that popped up in the comments on this Chronic blog:  If RG4N's suit was really meritless, the City of Austin should have handled the lawsuit in-house instead of "wasting" hundreds of thousands of dollars hiring Casey Dobson.

This is silly, and anyone who knows anything about the practice of law knows it.  It is utterly routine for the City to hire outside counsel.  Just check out past City Council agendas (accessible here).  I chose six meetings at random and the retention or payment of outside counsel was on the agenda in four of them:

1. June 21, 2007 (authorizing payment to Cox Smith Matthews for the Harry Whittington lawsuit);
2. February 1, 2007 (contract with Scott, Douglass & McConnico relating to design and construction issues with airport parking garage);
3. December 7, 2006 (contract with Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel relating to ABIA expansion);
4. November 16, 2006 (authorizing a total contract amount of $1,575,000 to Brown, McCarroll for advice on water supply issues).

The Northcross arrangement is nothing special.

There are two reasons the City relies on outside counsel.

First, the City's attorneys already have plenty of stuff to do.  The City doesn't have attorneys on staff who can drop everything they're doing to spend most of their time litigating a single case.

A lawsuit can eat up hundreds of hours of attorney time even when it's a loser.  For example, it's not unusual in products-liability litigation for tens or even hundreds of thousands of dollars to be spent responding to "expert" technical opinions that are eventually rejected as junk science by the judge.  Judges don't like to decide things until they think both parties have had a complete opportunity to make their cases.

Second, and more importantly, the legal profession is now extremely specialized, and the City does not keep enough attorneys on staff to cover all areas of specialization.  Land-use litigation like the Northcross suit is a specialty. Condemnation litigation is a specialty.  Negotiating complex master development agreements is a specialty.  There are many, many other specialties that the City needs from time to time.

Theoretically, the City could maintain a large staff of specialized attorneys to handle every contingency.  But the City does not have a constant need for all of these specialized services; it fluctuates. Most of the time these attorneys would be sitting in their offices throwing paper airplanes at each other but still drawing a salary. 

It is more economical for the City to use outside counsel to ramp up its legal expertise and resources as events warrant.  It gives the City flexibility, in other words.  And virtually every other entity that is frequently involved in litigation follows the same practice.

Another Northcross update: Lincoln wins the conditional-use argument

The judge has ruled that Wal-Mart's proposed garden center "may qualify as an 'accessory' use."  This means that the site plan did not require a conditional-use permit.

In other words, the site plan did not require a public hearing and Planning Commission approval.

The remaining claims are going to trial beginning Tuesday.

I've argued before that the conditional-use argument was the most important one.  Not necessarily from a legal standpoint, but because it was the only basis for the widely-bandied claim that the neighborhoods were entitled to a public hearing and community review.  RG4N has other claims -- City staff allegedly failed to enforce the tree ordinance, perform an independent traffic analysis, or enforce a drainage note on a plat map.  Whatever the legal merits of these claims, though, they aren't claims that there should have been a public hearing.

In case you're wondering, I deliberately have not handicapped the remaining claims.  They all allege, at bottom, that City staff failed to give the site plan the review mandated by City ordinances.  Given the contentiousness of the site plan review, not to mention the public scrutiny it got, I find it hard to believe that staff cut corners.  Still, these claims ultimately depend on evidence.  I'm not privy to the evidence, so I don't have any special insight.  (Not that I ever do . . .)

I'll be at a hearing of my own out of town on Tuesday, so I'll miss the fireworks.

Postscript:  RG4N has issued a statement claiming that "[t]he ruling on ANA's motion does not affect a claim RG4N made about the proposed garden center . . . ."  Now Judge Cooper did not just deny ANA's motion, she granted Lincoln's motion.  She has ruled that a garden center "may be an accessory use."  RG4N may not technically have been a party to the partial judgment motions, but as a practical matter, this legal conclusion disposes of RG4N's argument that a garden center cannot be an accessory use.  (The trial court certainly will have discretion to revisit Judge Cooper's ruling, but I will be surprised if it does given that Judge Cooper sat through one and a half hours of argument and took a week to rule.)   

Thus I've been trying to figure out what RG4N is talking about.  Here's what I've come up with: 

ANA argued that a garden center could not be an accessory use because it is a "conditional use" in a GR district, and only "prohibited uses" can be accessory uses.  Judge Cooper (rightly, in my opinion) rejected that argument.

Even if a garden center may be an accessory use, though, there are still a number of criteria it must satisfy.   I've discussed those before (scroll down to "Is the Wal-Mart garden center an accessory use?").  As I parse the ordinance, there are six distinct criteria.   But I didn't think then that anyone could seriously dispute that the garden center satisfies all six, particularly when you factor in a number of admissions RG4N made in its petition.  In fact, I thought it so unlikely that I predicted the "conditional use vs prohibited use" argument that ANA made would be the only one they would even try to make.

Apparently I was wrong.  RG4N evidently intends to dispute that the Wal-Mart garden center would be an "incidental" use, or one of the other criteria.  Either that, or they intend to tell the trial judge that they get another bite at the apple because they weren't a party to ANA's motion.  I don't think the latter position would sit very well with the trial court.  But armchair analysis can be pretty murky sometimes.  We'll just have to wait and see.

RG4N is correct that it has three other complaints (trees, traffic and drainage) that were not affected by Judge Cooper's ruling.

Las Manitas and alley law

Thursday we learned, belatedly, that the Las Manitas loan was really about alley rights.  According to Brewster McCracken, the Perez sisters had an "absolute trump card to kill the hotel deal."  (You can listen to his interview with Jeff Ward on KLBJ here. Friday's Statesman had another article.)