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Closing argument

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Pat Hughes

on 7 December 2011

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Transcript of Closing argument

Ostroski v. Lynn Counterclaim Violation of the Zoning Ordinance Private Intentional Nuisance 10-CV-4075 Judgment Injunction Operating a home business is not permitted Spotlights on bedroom windows are an intentional and unreasonable interference The Plaintiffs "complaints" have been reasonable Punitive damages The counterclaim lacks a legal basis

Private Intentional Nuisance How can you deny intent? Mow-stalking "Fucking asshole" "Beep! Beep! Beep!" The plaintiffs can enforce the ordinance Section 7. Violation and Penalty.
. . . and in addition to the above penalty such actions at law or suits in equity may be maintained by . . . any interested persons, as may be authorized by law. The Zoning Ordinance did not change Section 6. Changes and Amendments
. . . That said proposed change shall be first submitted to the Special Commission appointed by the mayor for recommendation and report. That not less than thirty (30) days notice of such proposed change shall first be published in the official newspaper of said municipality, and a hearing be granted to any person interested at a time and place specified in said notice. K.S.A. 12-761(b)
. . . any person the value or use of whose property is or may be affected by such violation, shall have the authority to maintain suits or actions in any court of competent jurisdiction to enforce the adopted zoning regulations and to abate nuisances maintained in violation thereof. The City of Eastborough uses the selective enforcement of this ordinance to police home businesses Threatened with moving car K.S.A. 12-757(b)
All such proposed amendments shall first be submitted to the planning commission for recommendation. The planning commission shall hold a public hearing thereon, shall cause an accurate written summary to be made of the proceedings, and shall give notice in like manner as that required for recommendations on the original proposed zoning regulations provided in K.S.A. 12-756, and amendments thereto. K.S.A. 12-756(b)
. . . Notice of such public hearing shall be published at least once in the official city newspaper in the case of a city or in the official county newspaper in the case of a county at least 20 days prior to the date of the hearing. Notice requirements are jurisdictional:
Carson v. McDowell, 203 Kan. 40 (1969) "Shall" is presumed to be mandatory The City of Eastborough did not even claim to be changing the zoning ordinance when it enacted the business licensing ordinance. Mr. Ostroski questioned if the fence needed a permit and a variance.
The City required the Lynns to get a permit
The City required the Lynns to get a variance
The City's position on the variance didn't change for more than a year The plaintiffs said there were trucks, employees, traffic, trash in the yard, and potentially hazardous materials.
There were trucks
There were employees coming, going, and fighting
There was traffic
There was trash in the yard
There was a fire in a trashcan from painting supplies Mr. Ostroski complained of an assault by Mr. Lynn's car.
The video is consistent with the off-camera assault
Lack of tire marks does not mean there was no assault
Intentional assault is the only explanation consistent with Lynn turning around and flipping off Mr. Ostroski after driving by. Mr. Ostroski reported suspicious activity across the street
A van circling the area was suspicious
A van dropping off containers in "no-man's land" was suspicious
Mr. Ostroski never mentioned Lynn in his report of the incident REASONABLE REASONABLE



An injunction against making police reports is contrary to the public interest An injunction against making police reports would be "prior restraint" An injunction against making police reports would infringe on the right to petition the government. UNREASONABLE

UNREASONABLE UNREASONABLE Lighting the goal? Prohibitory Injunctions:
No business operations at the residence.
No shining the lights at the plaintiffs' house. Business from home is not solved:
Nothing prevents return to status quo ante
Still in violation of zoning despite changes
In violation of business licensing ordinance By statute: K.S.A. 12-761 for zoning violation
As remedy for intentional private nuisance:
Spotlight is a substantial interference
There is no adequate remedy at law
Equities favor the plaintiffs
No public interest in shining spotlights on a neighbor's bedroom
Cases support injunctive relief for shining lights at night "I know that his concerns are valid because Mr. Lynn comes down to City Hall and advise[s] . . . .what he is doing to intentional irritate Mr. Ostroski further." Eastborough Chief of Police Trespassing
One incident appears to be made up
One incident Richard Lynn agrees he was on the Ostroski's side of the fence
There is no reason to conclude it is Mrs. Ostroski rather than Richard Lynn who misrepresents what happened.
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