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Enforcement: Legal Considerations

Enforcement: Legal Considerations

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Enforcement: Legal Considerations

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  1. Enforcement: Legal Considerations Ryan Kellus Turner General Counsel and Director of Education Texas Municipal Courts Education Center Better Lights for Better Nights Conference August 15, 2014 Dripping Springs Ranch Park

  2. 1. How can we Enforce a Lighting Ordinance? Blinded by the lightRevved up like a deuceAnother runner in the night

  3. ENFORCEMENT AVENUES • Criminal Enforcement • Civil Enforcement • By Government • By Private Citizen Alleging Private Nuisance • Public Education & Information • Community Based • Industry Based • Incentives • Assistance “Carol Anne, listen to me. Do NOT go into the light. Stop where you are. Turn away from it.

  4. Government Enforcement Criminal Enforcement • Municipalities (in Municipal Court) • Ordinances per Local Govt. Code (General Law Cities) • Ordinance per Charter (Home Rule Cities) • Ordinances Required of Cities within 57 miles of the McDonald Observatory (Subchapter B, Ch. 229, LGC) • Counties (in Justice Court) • Observatories and Military Bases (Subchapter B, Ch. 240, LGC) Civil Enforcement • Municipal Ordinances (in District or County Court at Law) Ch. 54, LGC via Civil Penalties (Note: Sec. 30.00005(d)(2), LGC = Municipal Court of Record) • Municipal Ordinances, Ch. 54, LGC via Quasi-Judicial Enforcement of Health and Safety Ordinances • Building and Standards Commission, or • Civil Adjudication Process • Cities and Counties Governed by Subchapters B, Ch. 229 and 240, LGC may seek Injunctions as Enforcement “Marion, don't look at it. Shut your eyes, Marion. Don't look at it, no matter what happens!”

  5. “The dark side of the Force is a pathway to many abilities some consider to be unnatural.”

  6. 2. Where Can We Enforce A Lighting ordinance? I saw the light I saw the lightNo more darkness no more nightNow I'm so happy no sorrow in sightPraise the Lord I saw the light

  7. The ANSWER: IT Depends. Territorial Limits of Municipality? • Take Your Pick! • Law Enforcement • Extrajudicial Enforcement

  8. ETJ & Unincorporated parts? ETJ • Extent: ½ Mile to 5 Miles of Municipal Boundaries, Depending on Population of City • Criminal Enforcement in EJT Depends on: • Type of Municipality (General Law or Home Rule) • Subject Matter of Ordinance • Jurisdiction (i.e. Authority of a Court) - Express or Implied • Venue (i.e, Place of Trial) – Not an Element of Offense: Proof by Preponderance Unincorporated Parts (i.e., “The Sticks”) • Extrajudicial Enforcement • Keep Up the Dialog: IDA, IESA, LEED, Builders, Manufacturers • Educate Rural Communities • Educate County Commissioners and County Judges • Legal Enforcement • Private Nuisance Law Suits There is a darkness on the edge of town There is a darkness on the edge of town

  9. 3. What Are the Evidentiary and Proof Issues? Turn on your heartlightIn the middle of a young boy's dreamDon't wake me up too soonGonna take a ride across the moonYou and me

  10. THIs raises Interesting questions • What About Light Art? • What About the 1st Amendment?

  11. Does it matter who is shining the light?

  12. Does it matter whY they are shine the light?

  13. “Prove It!” • Prove What? The Challenge of Writing an Enforceable Law • Paper Work Violation? • Performance Standard Violation? • Witnesses • Personal Knowledge of Light Trespass? • Expert Witne$$es You can't start a fire, you can't start a fire without a sparkThis gun's for hire even if we're just dancing in the dark

  14. “did you follow the instructions?” • Admissibility • Light Trespass versus Trespass: Fourth Amendment Issues for Governments - Camara • Photometry • Kyllo • Daubert/Kelly

  15. The stars at night are big and bright deep in the heart of Texas Follow TMCEC on: • FOLLOW on: E—MAIL: RTURNER@TMCEC.COM TWITTER: @RKELLUSTURNER