RE: Hideyo's court case 19th?? - to Michelle
Thank you, Michelle for you input. One of my vets is going to do a live testimony, so I think he can testify the below (space needs for different species) on my behalf. I will also look it up about the ordinance form other cities I know they all have a limit.. but they dont calculate the way Alb does I remember looking into it other cities even outside of NM, they all seem to tend to pick a number (3 or 4, or 5 or whatever they decide to pick) as a limit where there was no explanation as to why the number was picked as a limit, which I guess is also a bad thingAt least Alb tried to come up with a formula, if it was a good formula, it would have made a sense.. but it does not. Michelle, what would you think of my argument on this? Well the city only allows a 10% of the total property space as a place where animals can live and within the space, each animal (up to 30lb) requires 75 sq So will not the bottom line be as long as an animal is allocated for 75 sq, does it matter to the city if they live throughout the entire living space or not as long as I am ok with it? I am having a hard time to understand their 10% logic --- I have a total of 4,000 and I am claiming for 20 cats --- so theoretically, each animal is allowed for 200 sq --- which is much larger than the space they request if I dont mind personally as the property owner having cats through the entire living space, why does it matter if they take 10% of space or 100% of space.. the only thing I can think of is a density issue.. but again why would they care if they all kept indoor and each animals has a lot of space.. I hope I am making sense.. any input on this issue is appreciated, Michelle From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, December 13, 2005 8:30 AM To: felvtalk@felineleukemia.org Subject: Re: Hideyo's court case 19th?? Look at the reasoning used in the decisions you have where ordinances were struck down, and see if you can use that. Also, if you can get one of your expert witnesses-- the vet or the animal services person who is writing you a letter-- to say in a letter or in testimony that different species and sized animals need different amounts of space and that, as far as they are concerned, the formula in the ordinance has no relation to the amount of space that any particular species of animal actually needs, and to give a different opinion of how to determine whether cats are too crowded or not, that should be more than enough. At that point the burden should switch back to the city to prove that there is some rational basis to the formula that they use. If you can, you might also want to contact animal control or the mayor's office in other cities in NM, like Santa Fe, and also nearby towns, like Corrales, to see if they have ordinances limited animal numbers and if so what the language is. If they do not have limits on the numbers, or if the limits they have are more flexible or make more sense than the Albuquerque one, you might want to submit those as well to bolster your claim that when cities try to figure out limits on animals for health and safety they do not use the bizarre formula that Albuquerque does. I am not sure if this will work or not. it sort of depends on what you find out. Just a thought. Michelle In a message dated 12/9/2005 8:40:04 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I was also reading some stuff on the website from other cases.. that when its assumed that the ordinance does not make sense, its a burden of the challenger (which is me) to prove that its not -and though it totally does not make how they calculate how many animals one can have.. how do I prove it it does not make sense scientifically???
Re: Hideyo's court case 19th?? - to Michelle
If they all have limits and they are a fixed number, I probably would not bring them up at all. As to your argument, I think you are right about focusing on the 10% issue. It is really random. Where does it come from? Are they suggesting that people who have dogs are supposed to confine them to 10% of the house and are wrong to let them live in the whole house? On what basis could they say that? And if they say no, they are assuming people allow animals the run of the house and that is ok, then there is obviously no basis for limiting the number based on an assumption they are only using 10% of the house. Basically they are saying that if someone has a 9,000 square foot house they can have more than twice as many animals even if they keep all the animals in only 900 square feet of the house, whereas you are giving them 4,000 square feet-- they are saying that someone who owns a bigger house, just by virtue of owning the bigger house, is allowed to keep more animals than you even if they give them less space. There is no rational basis to this regarding the health or welfare of the animals or the neighbors. The one danger I can think of with this argument is that most towns have ordinances limiting the number of large animals, like horses, based on acreage-- e.g. you must have 1 acre per horse-- rather than on the amount of space actually given to the animals-- e.g. the person might keep the horse in a 10 foot by 20 foot paddock. I actually think those ordinances are stupid too, and it should have to do with the space you can actually give the animal versus what you own, but a judge may think about those ordinances and not want to call their validity into question. Michelle In a message dated 12/13/2005 1:51:42 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Thank you, Michelle for you input. One of my vets is going to do a live testimony, so I think he can testify the below (space needs for different species) on my behalf. I will also look it up about the ordinance form other cities – I know they all have a limit.. but they don’t calculate the way Alb does I remember looking into it – other cities even outside of NM, they all seem to tend to pick a number (3 or 4, or 5 or whatever they decide to pick) as a limit where there was no explanation as to why the number was picked as a limit, which I guess is also a bad thing…At least Alb tried to come up with a formula, if it was a good formula, it would have made a sense.. but it does not. Michelle, what would you think of my argument on this? – Well the city only allows a 10% of the total property space as a place where animals can live – and within the space, each animal (up to 30lb) requires 75 sq – So will not the bottom line be as long as an animal is allocated for 75 sq, does it matter to the city if they live throughout the entire living space or not as long as I am ok with it? I am having a hard time to understand their 10% logic --- I have a total of 4,000 – and I am claiming for 20 cats --- so theoretically, each animal is allowed for 200 sq --- which is much larger than the space they request… if I don’t mind personally as the property owner having cats through the entire living space, why does it matter if they take 10% of space or 100% of space.. the only thing I can think of is a “density” issue.. but again – why would they care if they all kept indoor and each animals has a lot of space.. I hope I am making sense.. any input on this issue is appreciated, Michelle
RE: Hideyo's court case 19th?? - to Michelle
I think it came from hobby breeder permit where people keep their animals in kennels and cages (originally, they did not even have a multiple permit, the law was only written for hobby breeders and then, they add the multiple permit name added to the existing hobby breeder ordinance As I read lots of other cases and articles written regarding the pet law what it is saying that pet limit law may seem like a quick fix to the problem, but in reality, It targets all owners, regardless of their actions or the behavior of their animals. Limiting the number of animals an individual may own is an ineffective solution to animal control problems because it fails to address the heart of the irresponsible ownership. Limit laws often force caring, responsible owners to surrender their excess animals to shelters already overcrowded, there by increasing a citys shelter population problems and euthanasia. In many cases, communities already have nuisance laws in place that, if nuisance law is properly enforced, there really wont be any need for limit law as what happened to the PA case, more number of animals per se does not mean more nuisance. I also requested stats information from the city, regarding the type of complaints and the number of complaints so that I can draw a conclusion whether there is any relationship between the number of animals one own and the number of complaints the city receives. What Greg is concerned is that.. I am going to present my case before the hearing officer who is contracted by the city --- so he was not sure how he is willing to admit that the ordinance is invalid after all he is hired by the city --- so I should primary focus on the factual information that there is no nuisance, no complaint from neighbors, and all animals are taken care of and am not violating the intent of law at all and then address how the provision of the current ordinance does not make sense.. and then argue about the problem of the enforcement of law as you mentioned --- (trying to take away something that was already) and then mention the validity of pet limit law and conclude again with the very first point I made regarding welfare of the animals and community (not being impacted) what do you think? From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, December 13, 2005 12:02 PM To: felvtalk@felineleukemia.org Subject: Re: Hideyo's court case 19th?? - to Michelle If they all have limits and they are a fixed number, I probably would not bring them up at all. As to your argument, I think you are right about focusing on the 10% issue. It is really random. Where does it come from? Are they suggesting that people who have dogs are supposed to confine them to 10% of the house and are wrong to let them live in the whole house? On what basis could they say that? And if they say no, they are assuming people allow animals the run of the house and that is ok, then there is obviously no basis for limiting the number based on an assumption they are only using 10% of the house. Basically they are saying that if someone has a 9,000 square foot house they can have more than twice as many animals even if they keep all the animals in only 900 square feet of the house, whereas you are giving them 4,000 square feet-- they are saying that someone who owns a bigger house, just by virtue of owning the bigger house, is allowed to keep more animals than you even if they give them less space. There is no rational basis to this regarding the health or welfare of the animals or the neighbors. The one danger I can think of with this argument is that most towns have ordinances limiting the number of large animals, like horses, based on acreage-- e.g. you must have 1 acre per horse-- rather than on the amount of space actually given to the animals-- e.g. the person might keep the horse in a 10 foot by 20 foot paddock. I actually think those ordinances are stupid too, and it should have to do with the space you can actually give the animal versus what you own, but a judge may think about those ordinances and not want to call their validity into question. Michelle In a message dated 12/13/2005 1:51:42 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Thank you, Michelle for you input. One of my vets is going to do a live testimony, so I think he can testify the below (space needs for different species) on my behalf. I will also look it up about the ordinance form other cities I know they all have a limit.. but they dont calculate the way Alb does I remember looking into it other cities even outside of NM, they all seem to tend to pick a number (3 or 4, or 5 or whatever they decide to pick) as a limit where there was no explanation as to why the number was picked as a limit, which I guess is also a bad thingAt least Alb tried to come up with a formula, if it was a good formula
Re: Hideyo's court case 19th?? - to Michelle
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 thenthe citytook 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?
RE: Hideyo's court case 19th?? - to Michelle
Michelle - If I ever forget to tell you, I wanted to you know how grateful I am of your insight on this. And I will tell all my furry children how much you are helping me and saving their lives!! Yes, everything you say totally makes sense. I wish I had something physical to proof that they had given me the permit --- I think I can reasonably reason it in such a way that someone reported me in 2004 having multiple cats and the officer came by to investigate --- and he did not put any record in my file that he gave me the permit after the investigation,, but also there was no other follow up in the file at all, which may make it reasonable to believe what I am saying --- though the officer who gave me the permit lied to Denise (director of ASD) that I only had 8 cats in April of 2004 and he only gave me the permit of 8 (I had 18 then, and I have 20 now) --- so, I am not sure how I am going to prove that he is also lying to cover his butt I gave all the paper work to him, but he did not keep anything in the file.. I dont know, Michelle if I mentioned to you about another lady who had 120 cats in her property in Alb, in 2004, they gave her a sanctuary status to her. She was very much in a similar situation as I was (lives in a residential zone) --- but she really did not want me to bring her case up as she wants to protect her cats which I respect totally in case the city finds out and may try to take her status away, too. When I mentioned this case briefly, she thought the sanctuary status was also given to incorrectly. But I did not want to give Denise this ladys information is there anything I can do from this information?? I will bring all the points up as you mentioned, and thats what Greg suggested, too --- so that if I appeal, I can make sure that I can use all the arguments I need 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?
Re: Hideyo's court case 19th?? - to Michelle
Hmm. Wow, I would want to bring up that other woman's case, but you're right in not wanting to jeopardize her. What is the zoning for where you are? If you incorporated as a nonprofit rescue group, could you get a kennel or sanctuary license? Michelle
