ASSAAD

CRCP 106(a)(4) —Rezoning Decision—Due Process—Spot Zoning. Plaintiffs Whitelaw, III and various neighbors (the neighbors) sought judicial review of the rezoning decision of defendant Denver City Council (the Council). Cedar Metropolitan LLC (Cedar) applied to rezone a 2.3-acre parcel. To build an "age-targeted" apartment complex on the site, Cedar sought to tear down a blighted church and rezone the parcel from single family home to a zone district that allowed three-story apartment buildings. The neighbors are property owners who live in the neighborhood near the parcel. They challenged the rezoning efforts, asserting it would hurt their property values, create traffic and parking problems, cause hazards to pedestrians, and degrade the character of the surrounding neighborhood. Following an eight-hour hearing, the Council granted the request to change the zoning. The neighbors challenged the rezoning in district court under CRCP 106(a)(4). The district court rejected all of their claims. On appeal, the neighbors asserted various claims, principally violation of their right to due process. They made five due process arguments. The Court of Appeals will affirm a rezoning decision unless the governmental entity exceeded its jurisdiction or abused its discretion, which occurs if the body misapplied the law or no competent evidence supports its decision. The neighbors first argued that a lobbyist for Cedar communicated before the hearing with Council member Susman, in whose district the parcel lies, through her private email account and by phone. They alleged that the failure to disclose these communications to the public before the hearing deprived them of their due process rights because they did not have notice and an opportunity to rebut the information on which the Council may have impermissibly relied in making its determination. Despite evidence of approximately 50 pages of such emails, the neighbors pointed to no evidence that they had a "substantial prejudicial

Criminal law—Ineffective assistance of counsel—When defense counsel fails to request that the trial court waive court costs on behalf of a defendant who has previously been found to be indigent, a determination of prejudice in an ineffective-assistance-of-counsel analysis depends on whether the facts and circumstances presented by the defendant establish that there is a reasonable probability that the trial court would have granted the request to waive court costs had one been made—Court of appeals' judgment reversed and cause remanded.

<p>APPEAL from District Court, Canyon County.</p> <p>If the title to an act actually indicates, and the act itself actually embraces, two different objects, when the constitution says it shall embrace but one, the whole act must be treated as' void from the manifest impossibility in the court choosing between the two, and holding the act valid as to one and void as to the other. (Cooley’s Constitutional Limitations, sec. 148, p. 178; Antonio v. Gould, 34 Tex. 49; State v. McCracken, 42 Tex. 383.) “The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislature and dangerous to the state.” (Cooley’s Constitutional Limitations, 172; State v. Silver, 9 Nev. 227; People v. Mahaney, 13 Mich. 481; State v. Pollock,-19 Nev. 384, 12 Pac. 834; Stewart v. Father Matthew Society, 41 Mich. 72, 1 N. W. 931; Walker v. Caldwell, 4 La. 297; State v. Union, 33 N. J. L. 352; State v. Ransom, 73 Mo. 78; People v. Pills, 35 N. Y. 452; State v. Wright, 14 Or. 365, 12 Pac. 708.) Almost any legitimate enterprise, whether it is a banking association or an irrigation association, is indirectly a benefit to the public, but this is not the sense in which the term is used in reference to taking private property for public use. (Savings etc. Assn. v. Topeka, 20 Wall. 455; In re Pequest River, 41 N. J. L. 175.) However salutary a law may be considered in its ultimate objects, unless in its' enforcement there is a method provided for the assessment according to benefits, it cannot under our laws be considered as constitutional. Unless such a provision is made, it will be considered as taking the property without due process of law. No rule of law is better established than that in making special assessments for any purpose, they must be accordin

<bold>1. Constitutional Law — effective assistance of counsel — tardiness</bold> <block_quote> Defendant was not denied effective assistance of counsel in a termination of parental rights proceeding even though his counsel was late on the second of five days of hearing after a lunch recess, because: (1) respondent failed to demonstrate how his attorney's tardiness caused him to be denied a fair hearing; and (2) there was no way of determining what respondent's attorney was precluded from asking based on her failure to make an offer of proof as required by N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 103.</block_quote> <bold>2. Evidence — hearsay — mental health records of children</bold> <block_quote> The trial court did not err in a termination of parental rights case by admitting, over objection, mental health records of two of the minor children, because: (1) even assuming arguendo that the records contain inadmissible hearsay, in a bench trial it is presumed that the judge disregarded any incompetent evidence that may have been admitted unless it affirmatively appears that he was influenced thereby; and (2) respondent has not pointed to any specific instances of hearsay upon which the trial court improperly relied.</block_quote> <bold>3. Termination of Parental Rights — past abuse — reasonable probability</bold> <bold>of continued abuse — emotional and behavioral problems</bold> <block_quote> The trial court did not abuse its discretion by terminating respondent father's parental rights, because: (1) the trial court found that all three children had been abused and exhibited symptoms of that abuse, and respondent admitted that he physically<page_number>Page 279</page_number> beat and abused the children; (2) the court determined there was a reasonable probability that respondent would again abuse the children if they were returned to his care based on the testimony of respondent's individual therapist; (3) the children's therapist test