Archive for January, 2012

Procedural Defects in Enacting Ordinance Can Block Enforcement of Ordinance

Sunday, January 22nd, 2012

Clerks and other local government officials are reminded that it is very important to cross their “T’s” and dot their “I’s” when enacting ordinances, or an otherwise valid enforcement action of that ordinance is subject to challenge and may fail.

In a recent appellate decision, Town of Presque Isle, v. Holly Iwakiri, the Court of Appeals reversed a circuit court ruling that Holly Iwakiri was barred from attacking the validity of an ordinance on procedural grounds.  Ms. Iwakiri had received ordinance citations violating the Town’s boating ordinance (speeding in a no wake zone and water skiing after 5:00 p.m.).  Ms. Iwakiri did not dispute whether or not she was in violation of the ordinance, rather she attacked the ordinance as invalid on several grounds.  The circuit court had found the ordinance was validly enacted.  The appeals court reversed in part, finding that there was a factual dispute as to whether the ordinance had been properly enacted – specifically, whether or not the ordinance had been properly published.  (The appeals court affirmed the remainder of the circuit holdings in favor of the Town).

“You Snooze, You Lose” – Don’t sit on Your Rights.

Monday, January 2nd, 2012

A recent unpublished court of appeals case serves as a reminder that statutes of limitations and other statutory and regulatory deadlines are (almost always) non negotiable.  In Tsamardinos, v. Town of Burlington, the Tsamardinos brought suit against the Town because of water drainage allegedly caused by deficient storm water runoff design of a town road and some subdivisions with the drainage area of the road.  Although the Tsamardinos brought a number of, arguably, substantive claims regarding taking without compensation, nuisance, trespassing, etc., the circuit court never reached the merits of the case, finding instead that the claims were time barred.  The appeals court affirmed.