Land Use Archives - Halifax Law

Constitutional Law/Land Use Law: U.S. Supreme Court Case Update

joe chater — Mon, 16 May 2016 15:45:16 +0000

I just learned that the U.S. Supreme Court will be in conference this Thursday, to consider the merits between accepting my client’s petition in Bee’s Auto v. City of Clermont. This is an exciting and consequential period: if at least four (4) Justices vote to accept the petition, we would be notified of a calendaring period for oral arguments before the Supremes. I am keeping my fingers crossed for my client, who has been ravaged by the injustices of municipal corruption in his business location.

No. 15-1147

Title:

Bee’s Auto, Inc., et al., Petitioners

City of Clermont, Florida

Docketed:

March 15, 2016

Lower Ct:

United States Court of Appeals for the Eleventh Circuit

Case Nos.:	(15-10212)
Decision Date:	September 3, 2015

~~~Date~~~	~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 2 2015	Petition for a writ of certiorari filed. (Response due April 14, 2016)
Dec 2 2015	Appendix of Bee’s Auto, Inc., et al. filed.
Apr 14 2016	Brief of respondent City of Clermont, Florida in opposition filed.
Apr 26 2016	Reply of petitioners Bee’s Auto, Inc., et al. filed.( To Be Recovered)
May 3 2016	DISTRIBUTED for Conference of May 19, 2016.

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Land Use/Appellate: New Briefing Just Filed in U.S. Court of Appeals for the 11th Circuit – Regarding Destruction of Evidence

joe chater — Tue, 09 Jun 2015 12:32:44 +0000

In Bee’s Autos, Inc., and Wayne Weatherbee v. City of Clermont, Florida, I am privileged to work on behalf of an auto repair owner who was victimized by the municipality where his business is based, Clermont, Florida. Now, Clermont had been targeting Weatherbee and his business for several years in a variety of vicious fashions. Twice, I successfully represented Weatherbee on Free Speech issues after he protested city corruption through the posting of large signs. Here is a picture of Wayne (who I think resembles either former pro-wrestler “Big Sexy” Kevin Nash or country music singer Trace Adkins) and one of his signs:

There are too many stories about what Clermont has done in targeting this hard-working, honest, industrious, local businessman. I will only tell you about the most recent legal battle. As part of Clermont’s campaign to drive Wayne out of business and, it is reasonably believed, expropriate his land, it wrongfully claimed that one of his properties located in Downtown Clermont had been rezoned back in 1991, and to disallow its use as an auto repair facility. In fact, it had not rezoned, and this is only the start of the the chicanery.

In 2011, Wayne filed suit against Clermont alleging expropriation and inverse condemnation. This is where the interesting aspects of the appeal — that I am presently pursuing on behalf of Weatherbee — come into play. The City later filed a motion for summary judgment, meaning that it wanted the federal trial court to declare that the facts were insufficient to support Wayne’s lawsuit. In doing so, the City asserted that Wayne had no documents authenticating his lawsuit allegations, and thus that there was no factual basis for allowing the lawsuit to continue.

The federal trial court granted summary judgment — the City won at the trial court level. After this occurred, well after, Wayne — who was always very persistent with making public records requests, often times ignored (contrary to Florida law) by the City. Finally, though, he uncovered documents — the first from an outside source (a retired news reporter) and the second from the City.

Here is what these documents showed: (1) the alleged zoning change — dating back to 1991 — was done under a different ordinance number, without any public notice, without even being mentioned in the minutes of the City’s Planning & Zoning Board; effectively, by violating Florida law, in 1991, the City supposedly rezoned that area — completely in covert fashion; (2) the evidence of this was destroyed by the City — one month after it was served with Wayne’s lawsuit. So, the City violated state law and its own ordinances in adopting an illegal zoning change; and the City destroyed/spoiled evidence that would have demonstrated these illegal actions. Effectively, the City broke the law and then attempted to conceal it, all the while arguing in Court that the documents never existed.

Now, on Appeal before the U.S. Court of Appeals for the Eleventh Circuit, based in Atlanta, Georgia, the City is claiming that even if the documents did exist that Wayne should have discovered this if only he had demonstrated better diligence. In other words, if Wayne had only looked harder, he would have discovered the evidence of destruction. The City argues that, because Wayne did not find these documents and records of their destruction, that it is now too late to reinstate his lawsuit.

So, in my Reply Brief (I filed the Initial Brief, the City responded two weeks ago with its Answer Brief), filed last night, I decided to break the spoliation of evidence issue down even further: to the level of Bart Simpson (trademarked) and his famous “I didn’t do it” (trademarked and copywritten) remark. I found a Simpsons (trademarked) chalkboard generator. I then filled it in, and pasted it into my Reply Brief. You can find it pasted, below. Is it a quirky maneuver? Yes. However, the issues in this case involve such egregious, unlawful actions by public officials. In order to ensure that the case does not simply get unnoticed or buried amidst the slew of other appeals sitting at the 11th Circuit, something needed to be done to make this Appeal stand out.

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Update on Lake Loon-Cherry Brook Community Centre Matter

joe chater — Wed, 25 Feb 2015 20:54:47 +0000

Well, at present, the historic Black-Canadian communities of Lake Loon and Cherry Brook will remain cautiously optimistic that a settlement can be brokered with the City of Halifax. At present, I do not feel at liberty to discuss in detail the scope of preexisting discussions. The fact that the sides continue to talk is good — however, the cynical lawyer in me also believes that talk is cheap, and that action will prove necessary, whether toward binding, lasting resolution of issues, or litigation.

Part of my cynical side was renewed today, with the following article regarding the never-ending battle by former Africville residents to establish real compensation following the unlawful expropriation of their homes. This battle appears to have been going for twenty years. Kudos to Rob Pineo for continuing the fight, and to recognizing the significance of the expropriation issue. http://www.cbc.ca/news/canada/nova-scotia/africville-lawsuit-seeks-to-add-evidence-to-case-against-halifax-1.2969701.

Well, I am in my early forties — at this rate, an Africville-like battle in Lake Loon-Cherry Brook should resolve before I hit CPP eligibility. 😉

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Media: Protest Rally at Lake Loon Community Centre

joe chater — Sat, 21 Feb 2015 19:36:25 +0000

I am pleased and honoured to serve as counsel for the Lake Loon-Cherry Brook Community Development Association, and its efforts to preserve the Lake Loon Community Centre. For those unaware, the Community Centre has been at the center of this historical, African-Canadian community for the past several decades. The land is owned by the community; however, there is presently an ongoing conflict versus Halifax Regional Municipality over rightful ownership. All documents present would support the contention that the government does not own this parcel of land, and cannot order the forced demolition of this historic structure. Hopefully, HRM will ‘do the right thing,’ and relinquish its bid to expropriate the Community’s land.

Today, there was a great turnout for the protest rally — with dozens of members of the community showing up, and wielding protest signs. I was also pleased by the appearance of both television and print media. Onward ….

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Land Use Law: Discussion Regarding Recent Court Decisions on Aboriginal Title

joe chater — Mon, 10 Nov 2014 15:12:51 +0000

Discussion of the SCC’s Recent Interpretation & Expansion of Aboriginal Title

Over the past few months, the Supreme Court of Canada issued landmark decisions impacting Aboriginal title. These decisions impact the various constitutional obligations of both federal and provincial governments. Each decision also discusses — to varying degrees — the ability of government entities to override Aboriginal title.

The basis for the Supreme Court’s recent expansion stems from British Columbia court rulings that severely limited the nature of “Aboriginal title.” Ultimately, this severely limited interpretation of Aboriginal title sparked the SCC’s decree in Tsilhqot’in Nation v British Columbia, 2014 SCC 44. In Tsilhqot’in, the Court unanimously — for the first time — recognized Aboriginal title. It is critical to understand the significance of the decision in Tsilhqot’in.

The first reason has already been provided: this case constitutes the first time that the SCC formally recognized a constitutional grant of Aboriginal title. Of course, this precedential decision will prove binding upon all other Canadian courts. The greatest impact will occur in provinces lacking treaty understandings with aboriginal entities, or those who have not otherwise secured agreements that extinguish(ed) aboriginal title claims.

However, it is perhaps the second reason which will prove — at a minimum — the most all-encompassing. The SCC established principles of procedural due process — these principles will almost certainly impact provincial and federal government action on unsettled or contested claims of Aboriginal rights. This may prove especially potent over matters involving the development and transport of natural resources.

The SCC ruling in Tsilhqot’in tackled and resolved several issues affecting Aboriginal title:

(1) The Court issued guidelines around pleadings in Aboriginal land claim cases;

(2) The Court set out the legal standard for establishing Aboriginal title;

(3) The Court outlined the contours of Aboriginal title rights; and

(4) The Court elucidated on the applicability of provincial laws to the issue of Aboriginal title.

Generally, the SCC defined Aboriginal title, while also establishing the standard necessary for the Government to legitimize an infringement. The Government has a procedural duty to consult and accommodate the affected Aboriginal group. Further, the Government’s actions must be backed by a “compelling and substantial objective,” that also acknowledges the Government’s fiduciary obligation to the group.

The Government’s duty to consult requires a degree of consultation and accommodation across a spectrum. The degree of governmental consultation and accommodation is proportionate to the strength of the claim and to the seriousness of the adverse impact on the claimed right. The Court insinuated that a compelling and substantial objective could include, but is not limited to, general economic development of agriculture, forestry, mining, its necessary infrastructure, and the expansion of non-Aboriginal populations. Notwithstanding, even if a “compelling and substantial public purpose” is established, the Government must show that the proposed abridgment on the Aboriginal right is consistent with the Crown’s fiduciary duty toward Aboriginal people.

Next, the SCC ruled that provincial laws of “general application” will apply to territory covered by Aboriginal title, subject to two (2) exceptions:

1. The law must actually be of general application and written in such a way so as to cover territory covered by Aboriginal title. With regard to the facts in Tsilhqot’in, British Columbia’s Forest Act only contemplated Crown land; the Court ruled that such is not synonymous with land covered by Aboriginal title.

2. The law not must not infringe upon Aboriginal rights, as safeguarded under Section 35 of the Constitution Act of 1982.

Subsequently, within just a few weeks following issuance of Tsilhqot’in, the SCC elaborated further on its Tsilhqot’in rationale, specifically with regard to the ability of provinces and private corporations to develop and harness natural resources. Tsilhqot’in certainly provided context to regions and provinces lacking a specific treaty with a First Nations band. However, it left unclear the nature of a relationship in regions covered by a specific treaty.

In Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, the Court addressed this issue. In doing so, the SCC both upheld historic treaties signed between First Nations and the Crown, while also endorsing the role and responsibility of provincial governments dealing with natural resource developments on land covered by treaty.

So, what is the significance of the Grassy Narrows decision. Well, let’s break it down:

(1) It affirms, describes and confirms the treaty relationship between the Crown and First Nations people. In other words, it affirms the historical, numbered treaties entered between the First Nations and the Crown, and dating back to the 19th and 20th centuries, with many surrendering land claims to the Crown. It also affirms the critical importance of such treaties — both for the Crown’s duties to the First Nations, and the ability of the Crown to take and utilize the land.

(2) It confirms the ability of provincial governments to take up and manage land to develop natural resource projects.

(3) It discusses limitations upon provinces to ‘take’ land, subject to fiduciary obligations to the First Nations.

The significance of the Grassy Narrows decision? Its recognition of the ability (or limitations on such ability) by Government to develop natural resources on land encompassed by treaty, and subject to fiduciary obligations. The SCC clearly cited Sections 109, 92 and 92A of the Constitution Act of 1867 as providing provincial authority to take Crown land under treaty for provincially-regulated purposes, such as natural resources development. However, such authority is not without limit. Indeed, provinces are held to duties attendant on the Crown, which must be exercised in conformity with the honour of the Crown and subject to the fiduciary duty on the Crown in dealing with First Nations interests.

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