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Judicial McFoolery
September 4th, 2009Link: http://www.EnglewoodStory.com
With sentencing still scheduled for October 9, 2009, for City Councilman McCaslin to have circulated the petition for Judge Atencio's inclusion on the November ballot to the Bartnick's neighbors on Pearl, who were witnesses in the case, seems like a clumsy attempt for payback, and perhaps unethical. If the Englewood judge is elected again, his salary is set over $121,000.00 annually.
On Thursday, August 13, 2009, witnesses for Englewood prosecution foiled the City’s plan to validate the prosecution of boarding house owners. Tricia Langon, Senior Planner, testified that the boarding house amendment “was not returned to Planning and Zoning Commission for their approval, because only major modifications or amendments to the code are returned to the Commission for review.”
Langon also testified that despite the Council’s October 6, 2008 enactment of Ordinance 55, (Boarding Houses) such residences are not businesses, but regular residences. They are not home occupations, and they do not require a license.
The jury was then released early, with the judge and prosecution both recommending the legs of the boarding house ordinance be dismissed in favor of the Bartnicks, and remanded to City Council for review.
Defense immediately went to the throat of the validity of the Ordinance because the Englewood City Charter, Section 58, declares that ALL modifications or amendments to ordinances must revert to Planning and Zoning for study and recommendation, even if the City Council chooses to disregard the recommendation. This is to prevent hasty enactments which often fail the test of justice.
The role of the volunteer citizens’ Planning and Zoning Commission to obtain legal council on proposed zoning codes as to fair housing, equal access and other zoning issues, while civil engineering counsel can ascertain measurable densities and standards. Hasty decisions also circumvent justice simply because they feel like a hard pressure sales job. Only time can allow that kind of intimidation to subside in favor of common sense.
The City circumvented its own Charter many times in the making of new Boarding House provisions, but this was the instance for Defense Council’s request for a directed verdict Thursday afternoon.
Judge Atencio taken aback, hemmed and hawed, and then declined his power and duty to declare summary judgment finding accurately that “what Defense is asking cuts to the heart of the ordinance”. Judge then determined “to allow the jury to decide the facts.”
The electric moment of truth was over. What was left of the material facts is unclear, as Tricia Langon had also admitted to the Bartnicks having pulled proper permits for zoning, but that under the new ordinance, parking areas require paint striping. Striping is an interesting dilemma if, unlike the Bartnicks whose back parking area is paved, the homeowner’s parking is unpaved. Keeping paint on dirt parking might prove to be an expensive year around feat for Englewood residences.
August 14, 2009, the jury, unaware of the previous days’ electricity, was sent to deliberate. They found the Bartnicks guilty of a shell of an Ordinance.
The implications of the Englewood verdict relate not only to setting City precedence for ungrandfathering pre-existing properties into newer codes, but also as to human rights and property ownership, the right to freely associate in the privacy of your own home with whomever you wish. If a neighbor accuses you of being unrelated, so be it.
What City Councilman, Bob McCaslin, was unable to accomplish for his friends, Ron and Robin Noffsinger, through Council legislation,
he turned up in the middle of Pearl Street to celebrate Saturday morning after the verdict was won through judicial McFoolery.
McCaslin's zeal short-sighted his actions linking the Englewood City Council to the very neighbors who had listed their names as witnesses against the so-called business. These neighbors each signed the good-old boy petition for re-election of small town political Judge. This is the same Judge who had refused to recuse himself earlier in the case.
Matthew Crabtree, challenger for the At-Large Council position, stumbled upon the judge's petitions for re-election, thus the confirmation of the City Councilman's conspiracy with the neighbors and the judge, when the clerk gave them to him on September 2, 2009.
The Judge is running unopposed this November. McCaslin is not up for re-election until next year.
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