My rambling opinion on the latest legal stuff...(IANAL)...
First, I encourage you all to read both of these one after the other (in order):
LCG's Motion To Dismiss and Lift Stay:http://www.c-a-r-e.org/pdfs/LCG%20Mo...iss%201-06.pdf
JeffCo's Response to LCG's Motion to Dismiss:http://www.c-a-r-e.org/pdfs/Jeffco%2...taj_021207.pdf
LCG's motion is brilliant (as I've stated before). What is very, very interesting to note is when you compare what LCG says to JeffCo's response, you see how JeffCo spins/characterizes/reads-too-much-into the motion to dismiss. Case in point:
Jeffco: "Lake Cedar asks the Court to find that the Act frees it from all local oversight of health, safety and welfare on its property."
That's simply not true -- if you read the LCG motion and you can comprehend the English language, nowhere in their brief did they state anything close to that.
I think from what I've read here and from what seems to make legal sense, the purpose behind LCG's motion is to effectively lift the stay so that they don't run any hazard of being in contempt. I'm guessing that, internally, LCG thinks they can do whatever the hell they want with impunity, but they want to do things the right way.
One way to read JeffCo's response goes like this:
JeffCo's stance: the issue before the court hasn't been decided -- we haven't made our final decision which we were told to do with "all due speed" last May. The issue before the court is a tower-fall/public-health-and-safety issue that is well within the BOCC's purview, and the injunction is based on that issue. They are making the case (read "spinning") that LCG's contention that the court no longer has subject matter jurisdiction is, in effect, stating that LCG can continue with impunity and ignore local regulations (I suppose you could read "regulations" , the term used in the "Act", to include items such as building permits, building code requirements etc.).
What I find silly/ironic is that JeffCo even responded to the motion to dismiss. For the life of me, I cannot comprehend that the outcome of the BOCC's upcoming hearing (where, ostensibly they will vote again, under the guidelines set by JJ, on the issue) will be anything other than a unanimous vote to approve the rezoning. (Note, JJ's May 2006 remand back to BOCC mandates
that whatever decision the BOCC comes to must
include text that shows how they came to that decision. If they vote "no", and don't have competent reasoning such as "oh, see, there really is
a tower fall issue and here's proof", JJ will vacate the injunction, slap the BOCC and then..I guess I don't know what -- does he effectively approve the rezoning himself? I dunno...).
I'm guessing JJ isn't going to do any ruling until after the BOCC makes their upcoming decision. But, it would be interesting if he got a wild hair and decided to consider the motion to dismiss outright, right now. I suppose he'd only do that if he felt compelled by LCG's motion and was going to rule in their favor, vacate the injunction and dismiss the case. I wonder what he's thinking right now about JeffCo's response to the motion to dismiss. He could be thinking "JeffCo makes a point -- while their response is rife with useless crap (whether LCG actually has the FCC permits) -- let's say I read the "Act" very narrowly and assume "regulation" doesn't include public-health-and-safety issues such as tower-fall as they relate to things like building codes etc. that the County can enforce. If that's the case, then this court still does have subject matter jurisdiction, and I should let the BOCC make their decision, then work through the aftermath."
This stuff is too darn interesting :-)