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Amicus briefs help NAA members make case in court.

The apartment industry benefits from amicus briefs, I'. I also known as "friend of the court" briefs. These briefs inform courts of the apartment industry's viewpoint regarding important legal issues.

In recent years NAA has filed amicus briefs on behalf of members to address topics such as mandatory acceptance of Section 8 vouchers, rent control, alleged mold-related injuries and the use of third-party water billing to residents. In 2011, NAA has made substantial investments to continue growing the Legal Assistance Program including hiring additional staff and setting aside further funds to file more briefs. As a result, this year a record number of briefs will be filed to support member companies.

Clean Water Act

In October, NAA, together with the National Association of Home Builders and the Real Estate Roundtable, filed a brief with the U.S. Supreme Court in the case of Sackettu. EPA.

This case challenges the Environmental Protection Agency's (EPA) authority and enforcement procedures under the Clean Water Act (CWA) Saekett has significant implications for property owners and federal environmental regulation, particularly regulation of wetlands and other aquatic resources under the CWA. The central question before the high court is whether a landowner is constitutionally entitled to seek judicial review of an administrative compliance order issued by a federal agency before the agency files a lawsuit to enforce its administrative action.

Without an opportunity for federal court review of an EPA compliance order, land developers can be caught in a difficult Catch-22. Under current law, a landowner targeted by an agency order must comply with its terms, restore the property as the agency demands and then litigate its legality after the fact--even if the agency wrongly issued the order in the first place. Or, a landowner must run the risk and defy an order that may haw been illegally issued, and wait to be sued by EPA as fines and penalties mount.

Specifically, in Sackett. EPA ordered property owners to restore an active building site to its original condition after determining it was a protected wetland, despite having no direct hydrological connection to a body of water. According to EPA and lower courts, the only way to dispute the order was to seek a CWA wetlands permit--the cost of which would exceed the value of the property--or defy the order and face penalties of as much as $32,500 per day.

The Supreme Court will decide whether landowners haw the ability to litigate the legality of a compliance order in federal court once it is issued, mid consequently avoid the "comply or defy" dilemma.

Immigration Policy

Another issue of growing concern is the evolution of the role of the states and localities in enforcing immigration policy.

NAA reported recently in units magazine (September, p. 28) on the U.S. Supreme Court's ruling in Chamber of Commerce v. Whiting. That ruling upheld an Arizona law allowing the state to penalize employers--through suspending or revoking their business license--who hire undocumented workers. Citin-this decision, the Supreme Court then mandated that the 3rd U.S. Circuit Court of Appeals re-examine its decision in Lozano v. City of Hazleton (Pa.). Hazieton affects the apartment industry by directly addressing the question of whether state or local governments can penalize landlords for renting to illegal immigrants. For this reason, in November NAA will file an amicus brief on behalf of the apartment industry in the case.

Hazleton's immigration ordinances differ from the Arizona law examined in Whiting in that they address both employment and rental housing. The housing portion of the Hazleton ordinances punishes rental property owners/managers who knowingly or recklessly rent to undocumented immigrants under a theory that such action constitutes "harboring" illegal immigrants.

NAA's brief will argue to the 3rd Circuit that the Whiting ruling should be narrowly interpreted to apply only to state and local employment regulations as those regulations are not in conflict with existing federal law. However, the rental housing elements of the Hazleton ordinance should be struck down because federal statute has already determined a system for dealing with those that harbor illegal immigrants and because the Hazleton harboring provisions are in conflict with that system, they are unenforceable.

In a boost to the strength of NAA's argument in the Hazleton case, on Sept. 28, U.S. District Court Judge Sharon Lovelace Blackburn ruled that a similar harboring law enacted by the State of Alabama is unconstitutional Judge Blackburn in her ailing suited that neither Congress nor the U.S. Supreme Court has specifically defined the limits of what constitutes "haiboring." Nonetheless, federal law addressing that issue preempts state and local harboring regulations, making Alabama's statute unenforceable.

Importantly, the judge noted that federal law explicitly and implicitly permits apartment owners to provide rental housing to individuals without legal documentation. That rejected Alabama's argument that only providing rental housing without a further proactive act to someone known or reasonably believed to be an illegal alien constitutes "harboring."

The importance of immigration issues and the fact that several U.S. Circuit Courts of Appeals are reviewing state or local ordinances that address renting to undocumented immigrants raises the likelihood that the U.S. Supreme Court will review this issue in the future. This review may come as early as next year.

Missouri Utility Metering

The Missouri Public Service Commission (MPSC) has decided to "stay" any legal action and not pursue a proposed regulation that threatened to end submetering and ratio utility billing systems in the state's apartment communities. These commonly used utility practices have proven to be not only efficient in billing but also in conserving resources.

NAA assisted its affiliated Missouri apartment associations in Missouri Public Service Commission v. Aspen Woods Apartment Associates LLC. The commission staff originally alleged that owners who pass on individual bills to residents for their utility usage were acting as public utilities and should be regulated as such. NAA and affiliated apartment associations in Missouri educated the full Commission on both the law surrounding the proposed regulation and the impact such regulation would have on the apartment industry, resulting in MPSC's decision not to pursue the matter.

RELATED ARTICLE: How to Apply for an NNA Amicus Brief

NAA encourages members to contact the associa-11 Hil tion if a company is involved in a case at the appellate level as NAA may be able to assist in submitting a friend of the court brief on behalf of the company.

In determining whether to grant applications for friend of the court assistance, NAA's legal assistance committee will review the request based on the following factors:

* Is the legal matter significant to the industry or limited to the parties involved?

* Would a favorable judgment enhance the stature of NAA and its members?

* What is the likelihood of success and what would the impact be to the multifamily housing industry if the case is unsuccessful?

* Is the case consistent with NAA's established policies?

* What is the ability of additional interested parties to contribute financially to the legal action? (Interested parties may include NAA state and local affiliates, individual apartment firms and supplier companies/

NAA strongly encourages members to take advantage of this service. Contact John McDermott, Greg Brown, Michael Semko or Scot Haislip.

Scot Haislip, Esq., is NAA % Director. State & Local Gotwnment Affairs. He can be reached at 703/797-0623 or
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Author:Haislip, Scot
Date:Nov 1, 2011
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