Attorneys for the Mountain Central Board of Realtors and the city of McCall were in court last week, but never got around to arguing the merits of the lawsuit filed by the Realtor group.
Last fall, the Realtor group challenged McCall's affordable housing laws that require developments to set aside 20 percent of the development as affordable housing and require fees to be paid when taking out a building permit.
In a hearing held Feb. 21 at the Valley County Courthouse in Cascade, Fourth District Judge Thomas Neville postponed the main argument due to time constraints and agreed to hear the city's argument that the Realtor group had no standing to sue the city.
The Realtors do not have standing because they do not own property and failed to show "palpable injury," said Christopher Gabbert, a contract attorney for the city of McCall from the Nampa law firm White Peterson.
"They are not claiming the board will be harmed, but its members will be harmed," Gabbert said.
The Realtors have standing to sue the city on behalf of its members due to a threat of a future harm, said Victor Villegas, attorney for the board from the Boise law firm Evans Keane, LLP
"(The Realtors) will suffer irreparable harm," Villegas said. "You don't have to suffer a present harm in order to have standing. A loss of opportunity has caused a loss of income."
Villegas also argued that the results of the city's affordable housing laws would be a "drop in membership, dues and influence the group may have."
In taking the matter under advisement, Neville will have the two parties back in court, most likely in Boise, in either late March or early May.
The court needs to get this right, because the risks of getting this wrong could be catastrophic
and expensive," Neville said in taking the city's motion under advisement.
However, he rejected the city's motion to strike several affidavits filed by the Realtors board.
Gabbert argued the Realtor affidavits were inadmissible because they contained opinions and were inadmissible hearsay.
Gabbert also challenged two studies included in the affidavit of Ray Moore, president of the Realtors group. The studies described the effects of affordable housing on communities.
"The two studies are relevant," Villegas said. "Inclusionary zoning is harmful based on their knowledge and experience in the field of real estate."
"This business of striking affidavits is tricky business," Neville said. "I don't believe a single word of some documents I receive as a judge ... they could be helpful. I would like to have the right to read it."
