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| 6/11/2009 10:20:00 AM | Email this article • Print this article | Who's being sued?
The City of Newcastle and The Planning and Zoning Commission
Members are: Gordon Harness, Michael Littlejohn, Nathan Ryker, Tony Speck and Dennis Sanders
Wanna sound off? Send a letter to the editor or send us comment on Facebook or by e-mail at editor@newcastlepacer.com.
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Dog rescue sues City
Council postpones vote while attorney looks into charges
The City's attempts to regulate a local dog rescue came to a standstill Monday after the kennel filed a lawsuit.
Theresa Monnard of RockySpot Rescue filed a civil action for $10,000 or more against the City and the entire membership of the Planning and Zoning Commission.
Monnard and her attorney, Alex Yaffee, are alleging three causes of action resulting from last month's Use on Review hearing with the Commission.
According to the lawsuit's petition, Monnard alleges that the City's actions were "arbitrary, capricious and in violation of Oklahoma law."
During their regular meeting Monday, the City Council was expected to vote on the Commission's recommendations for the Rescue's Use on Review permit regulations. The City's attorney, Ted Haxel, however, recommended that they take no action. He also commented they "be very careful with how they proceed," in light of Monnard's lawsuit.
The Council will now address RockySpot and their proposed regulations in their July 13 meeting, to allow Haxel time to look into the matter.
"I haven't digested what they are doing," said Haxel. "I don't know if the things they are asking for, they are serious about, or if they are trying to get someone's attention."
What's Going On?
Monday's suit stems from a years-long feud between the rescue and its neighbors, who have voiced noise complaints and concerns of zoning non-compliance.
The Commission addressed those issues during a Use on Review hearing on May 18. In this meeting, Yaffee addressed the Commission with a list of "parameters we could live with."
Neighbors Gary and Carol Thompson and their attorney, Greg Dixon, also addressed the Commission.
During Thompson's comments, he addressed zoning concerns. He also pointed a finger to the City, saying, "I've been ignored. I've had to scratch and scrape to get something done. I hired an attorney [to get the City to enforce its ordinances]. The City failed me.
"You have a list of ordinances that say this is not supposed to exist," he said, addressing the Commission. "You've got to decide if your ordinances are worth the paper they're printed on."
After all comments were heard and a recess held, the Commission voted to recommend to the City Council the rescue receive a Use on Review permit to continue its operation. Their decision last month, however, is pending compliance with proposed Commission directives and a six-month review.
Their recommendations, including proposed directives must also be given a final stamp of approval by the City Council, a decision that was supposed to come Monday.
Lawsuit Details
The Rescue's lawsuit includes three cause of action, including: 1) abuse of discretion, 2) violation of due process and 3) detrimental reliance, estoppel, injunction and waiver
It also includes more than four pages of facts and historical information about the rescue and its relationship with the City and its neighbors. Those details outline Monnard's compliance with the 1986 code of ordinances she was ordered by the City to follow when she started her rescue in 1999.
The lawsuit then goes on to describe Monnard's purchase of additional, adjacent land in 2001, where she constructed a kennel, for which the City allegedly issued permits.
Fast forward to March 2, 2007, the lawsuit states that this was when the City first requested the rescue to submit a "Use on Review" application. It also alleges that at no time prior to this did the City say the rescue was subject to the "Use on Review" permit process, and that the "Use on Review" process itself was never in "effect, utilized or common practice prior to 2003."
According to the lawsuit, 2003 was when the City amended its Code and regulations, four years after Monnard purchased the property and received her first permits for the operation.
Then in November 2008, the City once again asked Monnard to submit a "Use on Review" application, the lawsuit states. This was under the 2003 regulations, "even though it was previously represented to her that she was 'grandfathered in'" under the original 1986 Code of Ordinances.
The lawsuit then finishes with the May 2008 Commission "Use on Review" public hearing. During this meeting, the lawsuit alleges that the Commission rendered a "ruling" which irreparably harms the rescue. It also alleges that it is "contrary to city ordinances and retroactively imposes ordinances and use restrictions" that violate the state and U.S. Constitutions.
In addition, the lawsuit states that the rescue will be subject to "unannounced inspections" and "six months reviews." This was ruled to ensure 'the operation of the rescue was working' and the 'noise' levels did not disrupt on citizen's summer barbeques, which was the subject of much discussion at the Planning Commission meeting."
Furthermore, the lawsuit alleges that the Commission failed to make an "actual recommendation" to the Council. It also alleges that the Commission's actions would "ensure the complaints of one citizen had been fully satisfied and directed that the rescue immediately implement the restrictions adopted by the board."
In the final section of the petition, it is alleged that the Commission's powers are "limited" and "set forth in the code of ordinances." The lawsuit questions the Commission's authority to impose directives and inspections on the rescue, much less enable a "zoning police power."
"The City has wholly failed to demonstrate how the property is now subject to the current code or how the current regulations are applicable inasmuch as Ms. Monnard operated the rescue with the full consent of the city for 10 years without any restrictions, requirements or limitations."
Ultimately, the lawsuit alleges that the City's "retroactive application of code" is meant to "control, regulate, shut-down and police a rescue that has been operating lawfully and in existence for 10 years."
Abuse of discretion
Lawsuit Causes of Action
The following were listed in the lawsuit by Theresa Monnard as the reasons for the three causes of action:
• Alleges that the City's requirement of the rescue to submit a "Use on Review" application constitutes abuse of discretion.
• Accuses the City of abusive scheming for the sole purpose of satisfying their own "self-serving goals."
• Alleges that the City's conduct is an "unreasonable exercise of the city's police power and authority."
• Accuses Commission members of conduct that "exceeds the scope of the power given to them." Also alleges that their conduct was done "willfully, wantonly and in bad faith."
• Monnard is requesting a settlement to include property, costs, attorney fees and any other relief the court finds equitable.
Violation of due process
• Again alleges that the City and Commission's conduct to require a "Use on Review" was "arbitrary, capricious and without a rational basis, and constitutes an arbitrary deprivation of Ms. Monnard's property rights and due process of law."
Detrimental reliance, estoppel, injunction and waiver
• Alleges that no time prior to 2007 was the rescue subject to a "Use on Review."
• Alleges that the City allowed construction of the kennel facilities without any restrictions and granted all necessary building permits.
• States that Monnard has invested significant expense in the upkeep and development of the rescue and property. Also, this cause of action states that the "life and well being" of dogs are dependent on the rescue, which serves McClain County.
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Reader Comments
Posted: Wednesday, February 10, 2010
Article comment by:
Oklahoma Lucky Dawg Rescue
you go girl! we are facing a somewhat similar situation w/our city..they want only the humane society, who are not avail, to be the only rescue
Posted: Wednesday, November 18, 2009
Article comment by:
Ashley McIntyre
Theresa keeps her place very clean. Yes, dogs do live in her home and carry a scent all their own but from what i know she bathes them when she can and ALWAYS picks up their poop. So i say, What Smell????
Posted: Friday, October 09, 2009
Article comment by:
Kagmali
Its funny but I have found that those who complain the most about a dog rescue are usually the ones who are contributing to the problem.
Running a rescue is hard work and very expensive. I know, I run one for Mini Dachshunds. If these people who complain would start helping instead of critizing those running a rescue what a much better world this would be. But what would the world be without those who pull wings off butterflys - set frogs on fire - decapatate cats and hang dogs. We need those kind of people. It makes those of us who love animals love them even more.
Without these local rescues doing what they do, the money it takes to take care of an over population problem would be comming out of their pockets and you would have a massive stray dog problem which can turn ugly when they pack.
So being a hound person and an avid dog lover, thanks for taking the fight when others might have given up.
One more thing. My momma told me to never trust a MAN who does not like dogs.
They are usually no good.
Posted: Friday, September 25, 2009
Article comment by:
John H.
I think he city has EVERY right to clean up a pig sty if they need to! Why should the neighbors move? This lady is buying more land to bring in more animals...did she do that before or after the neighbors moved in?
How would you like it if your neighbor started keeping pigs next door to you? What if they wanted to start parting out cars on their front yard? How is the offensive odor from TOO MANY dogs in an area any better?
Posted: Wednesday, August 12, 2009
Article comment by:
Nicki Davis
I'm utterly appalled at the actions of the City Planning Commission, not to mention this so called neighbor. What a miserable human being this person must be to have such a vendetta against those that can't help themselves and for someone that choses to provide that needed help. The service that Theresa and her rescue facility give is invaluable. Having adopted one of her rescues over 2 years ago, I can honestly say I don't know what I would have done had I not found her heavenly place full of four legged love. It is a travesty that she and her animals are being put through this horrific nightmare. I hope justice prevails on the side of those four legged loves that cannot fend for themselves, but who bring so much joy into our lives every day. If the rescue is not there for me to adopt another when the time comes, I will be devastated.
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