[Vision2020] Question for Mr. Ament and Mr. Curley

[Michael Curley]

Donovan:
You wrote as quoted below and my reply is under each:

> 
> NSA is not an accredited college. Therefore it cannot
> be called an "educational institution" because that is
> required according to the law and city code. You based
> your argument on this. This is a factual legal error.

You will note from my prior posts that I have never said that under 
no circumstances does the Zoning Administrator have a right to 
exercise reasonable discretion.  I have acknowledged that the Code 
says he does.  But because I say there are some circumstances in 
which discretion can be exercised, doesn't mean I think it is 
unlimited.  Specifically, as it applies to NSA being a prohibited 
use, I think his discretion is limited by the specific provisions of 
the Code that say if a use is not listed (permitted) it is prohibited 
and the further proscription that even the Bd of Adjustment does not 
have authority to expand the listed uses in a zone.  I DO think the 
ZA has authority to determine that NSA is, or is most closely aligned 
with the definition of, an educational institution.  However, were he 
to find that they are NOT, for example because he thinks "accredited" 
is a sine qua non of that status, that does not mean I think it would 
be reasonable discretion to call them a library, museum, bookstore, 
or commercial school.  they would, in that instance, be an 
"unaccredited college" that would be prohibited downtown because it 
is not permitted under any other category.
> 
> Second, even if Mr. Dickison, Joe Plaskon, Aunt
> Jamima, and Jesus Christ himself all agreed NSA was an
> educational institution, which none of them did to the
> effect they were according to city code, that would
> not make it an accredited college. Mr. Dickison said
> that NSA was NOT an accredited intuition as DEFINED by
> city code. Plaskon did not comment on the legality of
> this point. Even if he had, to the effect that he
> agreed with your argument, does not legally validate
> your point because the law, or city code, states the
> contrary. In addition, if you wish to say that Joe
> Plaskon is the valid authority of the law on this
> issue, as your referenced him as being, then why are
> you arguing against his decision on this issue?
> Further, the accreditation that NSA is seeking is not
> an accrediting agency recognized by the city code. So
> that has no legal merit on the case or your argument
> regarding potential future accreditation. 
> 
Mr. Plaskon said they fit the definition.  Mr. Dickison said they 
most closely fit it.  We didn't hear from Aunt Jemima or Jesus 
Christ.

City Code says:  "approved by the State Board of Education or by a 
recognized accrediting agency."  Unless you have some citation for 
me, I don't think the City has a list of "recognized accrediting 
agencies" and I moreover, I'm not aware that the City has ever ruled 
that TRACS (to which NSA applied) is NOT acceptable.  And, Mr. 
Dickison mentioned that NSA does have some type of certificate from 
the State.  I'm not sure if that meets the definition of "approved by 
SBOE" or not, are you?




> "If that is the case, then they are prohibited
> downtown. Because they are not a listed use--an
> 'unaccredited college.'"
> 
> First, there is no such thing as an "unaccredited
> college" according Moscow City Code. This a term you
> are making up. If not, please provide a link or code
> number. 
If they are not a commercial school--see below--they are a college 
and they are, by your words, unaccredited.

> Second, NSA does fit the definition of a
> commercial/trade school which IS expressly PERMITTED
> in the downtown commercial zone.
> 
> “School, Commercial. A program whereby instruction is
> given to pupils in arts, crafts or trades and operated
> as a commercial enterprise.” That is the exact and
> complete definition. 
> (Ord. 99-38, 12/20/99)”
> 
> NSA does fit this definition, from a legal standpoint.
> NSA does offer programs in instruction in the arts. It
> is also operated as a “commercial enterprise”
> according to city code,  
> 
>  “Commercial Use. An activity maintaining a display of
> goods, merchandise or services, for sale or involving
> a rental fee.” MCC § 11-9(21) This is the exact and
> complete definition. 
> 
> 
> NSA does offer and maintain services for sale,
> education in the arts. 
Commercial use and commercial enterprise are not the same thing.  NSA 
is a tax-exempt entity, and fortunately (for it an other tax-exempt 
entities) the sale of some items at retail does not make them a 
commercial enterprise.  And, as I mentioned in the prior post, 
offering instruction in the arts and selling t-shirts, books, and 
even computers at its bookstore, does not make UI a trade/commercial 
school.

> 
> 
> “As to the other issue you raised, Mr. Dickison's time
> was not limited at all.”
> 
> And
> 
>  “Mr. Dickison was in no way limited from making any
> legal argument he wanted to make.”
> 
> 
> Yes, he was. He was limited to the comments he could
> make and he was not allowed a rebuttal to your
> remarks.
My remarks were about the law.  Mr. Dickison repeatedly wanted to 
talk about my clients personally, which the chair had ruled 
irrelevant and therefore, inappropriate for discussion.  There wasn't 
a single part of my argument that Mr. Dickison didn't get to rebut 
should he have chosen to do so.  

 I think if one side gets a rebuttal, so
> should the other. Also, doesn’t the accused usually
> get the last word anyway, not the plaintiff?
NSA is not "accused" of anything.  However, in a criminal trial, no, 
the accused does not get the last word.

City Code generally controls the procedural aspects of the meeting.  
SEction 4-10-4 B 1 g. provides the order in which participants are 
heard.  The final speaker before the hearing is closed is:  "response 
[rebuttal] of applicant to public testimony."  We were the 
applicants.  We spoke last per the law.
> 
> 
> “Mr. Ament noted below that the chair on several
> occasions had to ask Mr. Dickison to refrain from
> attacking the complainants personally and to stick to
> the law.”
> 
>  I do not recall Mr. Dickison making personal comments
> about Joseph Hansen. In fact, I do not recall him
> mentioning Mr. Hansen or any of the other two
> plaintiffs by name at all.

Yes, Donovan, he did mention them by name and start to talk about 
them.  I believe he was cut off by the chair because the chair had 
previously told Mr. Dickison no to go there.  I also objected because 
(a) it had been ruled irrelevant, and (b) if they start talking about 
one side's motives, then we have to talk about the other side's 
motives and I didn't want to do that--because it is irrelevant to the 
question whether an entity is legally entitled to operate.  


 I do recall him questioning
> the motives to the case. This is a concern for many
> people, including myself. Are they after just NSA? Or
> are they going to go after all organizations downtown
> that do not perfectly fit the definitions in a
> commercial business zone?
If someone calls the city and says "a woman is cutting down trees in 
East City Park" and the city investigates and finds a woman cutting 
down trees in ECP, does the nature of the violation itself hinge one 
bit on the motives of the person who called the city in the first 
place?  Does it matter that they saw someone the day before and 
didn't call?  Does it matter if they know someone is cutting trees in 
Berman Creekside Park?  Should the city not take any action against 
the woman in ECP who is clearly violating the law?  

> 
> As to the legality, there was no violation of law to
> bring up motive. This was something that two members
> of the board decided, for this case only, to limit the
> arguments to what they wanted to hear.  

City Code 4-10-4-B-1-f:  "...the chairperson may rule that certain 
testimony may be excluded or shortened because of its RELEVANCE to 
the subject of the hearing."
> 
Cheers

Mike