In light of recent news out of San Mateo, I am posting a DRAFT of an article. Conclusion: Home rule does not protect charter cities against preemption of land use authority. Comments welcome. @ProfSchleich @CSElmendorf @carla_org @Yimby_Law https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3485872 …
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Judges are human (and probably homeowners!) so there is always a risk, even if the precedent is clear. A trial court opinion doesn't have much precedential weight, but if you get a bad appellate opinion, it can be cited as precedent by other courts.
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Especially if the plaintiffs think they have a path forward through other means, making this moot.
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https://mobile.twitter.com/noahkayray/status/1194366375759794176 … may also be relevant. (If the plaintiffs didn't brief something that the judge asked for... is that just an unrecoverable mistake at this point, as far as this particular case goes?)
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its a bit complicated, but tl;dr: initial briefings from both sides didn't include the constitutional issue, then judge asked for further briefing including that question...
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