Back in 1964, Leslie Gore recorded “You Don’t Own Me,” a song whose lyrics included, “I’m free and I love to be free, To live my life the way I want, To say and do whatever I please.” This kinda encapsulates the city’s response to the Reverchon Park lawsuit filed last month by neighboring residents Charlotte and Robert Barner.
The city responded to the suit back on March 6, while I was out of town, so apologies for my tardiness.
The four-page reply begins with a bang:
A. Plaintiffs lack standing.
Neither Plaintiff has standing to bring this action. Neither has suffered an injury in fact or other injury distinct from the public. Neither Plaintiff has statutory standing to bring any of the claims. Neither Plaintiff has a private right of action to bring any of the claims. The Court lacks jurisdiction and all, or alternatively part, of the claims should be dismissed.
I read this to say that since the project hasn’t been built, they’ve “suffered no injury in fact” – because why be preemptive? The lack of statutory standing bit seems to mean that since condo owners are not recognized as individuals in zoning-related voting, only the HOA would/might have standing to sue. Rounding out the “Leslie Gore” reply is that the court itself “lacks jurisdiction” to hear the case and that “all, or alternatively part, of the claims should be dismissed”. I know it’s legalese, but it amuses me so see a “you can’t hear everything…but if you can, you can’t hear everything”. It sounds so childish.
B. Governmental immunity, official immunity, and legislative immunity
This is the sovereignty argument that government is above the law – something that’s been getting truer by the day. Most commenters when the suit was filed expected the city to claim sovereignty.
BUT, if the city is judged to not be immune, they have this to say:
General Denial of all the plaintiff’s allegations “and demands strict proof thereof, by a preponderance of the credible evidence”.
The Affirmative Defenses section then goes on to list (relist?) that the city has sovereign immunity, plaintiffs lack standing to bring suit, city not being given proper notice and “Plaintiffs lack capacity to assert the claims alleged”.
That last bit again references back to the fact that the Barner’s are members of an HOA, who the city is asserting only have the right to sue – not individual owners. It’s a problematic legal issue faced (rarely) by members of an HOA in municipal actions (that I’ve seen most often in zoning disputes like PD-15). It’s simple for HOAs to enable individual standing but they keep the default “one building, one vote” setting in their HOA docs so they can unanimously veto (not often used to support) anything that comes their way.
If the court agrees with the city that only their HOA, not the Barner’s individually, can sue, I’d expect a refiling by the HOA. After all, Reverchon’s proposed redevelopment of the ballfield will impact all residents in many ways.
But if the court lets the suit proceed, expect a more detailed response from the city. After all, this first reply doesn’t answer any of the charges brought up in the suit, it’s just a document meant to quash the proceedings. After all, the city’s reply was just four pages full of legalese that you and I could have knocked out in a single page in plain English.
Since I’m feeling very audio today, for those not Leslie Gore fans, maybe the city’s response can be more succinctly summed up by Patsy’s famous line from Absolutely Fabulous, “Don’t question me.”
