The Gestapo of the West – 8 Years Later
By [post_author] –
Posted on Freedom Advocates on June 10th 2008
In June of 2000, I authored an article entitled “Santa Cruz: The Gestapo of the West” that pertained to certain improper land use policies of the City of Santa Cruz, including favoritism and selective enforcement.
Since then, I have crossed paths with countless individuals who have fallen victim to the unconstitutional practices of the County of Santa Cruz which similarly merit public exposure. The greatest deprivation of constitutional rights is occurring within the County’s enforcement power. An enforcement action does not originate from a violation of county permitting or regulation laws. Instead, all enforcement actions commence when a member of the public complains that a property owner is in violation of the law because of the alleged absence of permits or alleged regulatory violations. The identity of the complainant is never disclosed. Thus a neighbor or others (including county officials) can wreak havoc with just one telephone call or letter. The fact that County enforcement does not initiate the inquiry can be seen as an excuse for nonenforcement or special treatment. Meanwhile, when a letter or telephone call is received, the County enforcement unit seeks and enforces whatever violations it thinks it has found on the subject property.
Once a complaint is received, the proper process as described by the County Planning Director is:
- Notice to the property owner of the alleged violation
- Field investigation and corroboration
- Judgment by a case planner
- Administrative hearing
- Recording of violation with the county recorder on the property owner’s home or other property, if upheld at the administrative hearing
In reality, however, the recording is not the last action in the sequence of events; it is the first. The County justifies the recording aspect as giving notice of the purported violations to prospective homebuyers. However, the recorded notice causes serious problems for the property owner. Once a red tag has been recorded, the owner can no longer sell or refinance the property. This can affect the ability to obtain insurance on the property, or to rent or lease it. The County refuses to temporarily lift red-tags to allow the property owner to borrow funds to correct the violation, or hire land use consultants or attorneys to address the problem. Indeed, no red-tag will be removed until all red tags are corrected. This can lead to a very misleading title at the recorder’s office when certain of the violations have actually been corrected or found to be false.
In addition to the absence of an initial due process hearing, there also is inadequate corroboration of the anonymous complainant before the red-tag is placed on title. This can reduce the value of the property by 50%, but the County assessor declines to correspondingly reduce the property tax because the situation presumably is within the control of the property owner.
In this country, no state may “deprive any person of life, liberty, or property, without due process of law.” (U.S. Const., 14th amend., § 1.) “The fundamental requisite of due process of law is the opportunity to be heard.” (Grannis v. Ordean (1914) 234 U.S. 385, 394.) To satisfy due process under the Fourteenth Amendment, hearings must be “at a meaningful time and in a meaningful manner.” (Armstrong v. Manzo (1965) 380 U.S. 545, 553.) The California Constitution provides the same guarantee. (Cal. Const. art. I, § 7.)
The Fourteenth Amendment guarantee of procedural due process applies to administrative proceedings. (Anderson National Bank v. Luckett (1944) 321 U.S. 233, 240-247; Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.) “While the state’s administrative agencies have considerable leeway in how they structure their adjudicatory functions, they may not disregard certain basic precepts.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board (2006) 40 Cal.4th 1, 5.)
A prior due process administrative proceeding is especially required where a liberty or property interest is at stake. The United States Supreme Court has held as to civil forfeiture actions that “[u]nless exigent circumstances are present, the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture.” (United States v. James Daniel Good Real Property (James Daniel) (1993) 510 U.S. 43, 62.)
The presumptive method of providing a meaningful opportunity to be heard is to provide a hearing before depriving a citizen of a property interest. The United States Supreme Court “usually has held that the Constitution requires some kind of a hearing before the State deprives a person of liberty or property.” (Zinermon v. Burch (1990) 494 U.S. 113, 127, emphasis in original.) “[T]he Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect.” (Fuentes v. Shevin (1972) 407 U.S. 67, 82.) When the County fails to provide a hearing, the recording of the notice of violation runs afoul of the property owner’s procedural due process rights under the Fourteenth Amendment. A great many, if not all, of the County’s enforcement actions are therefore null and void.
To qualify for due process protection, the deprivation of property or its use need not be final. It is “well settled that a temporary, nonfinal deprivation of property is nonetheless a ‘deprivation’ in the terms of the Fourteenth Amendment.” (Fuentes, 407 U.S. at p. 85.) Finally, the nature of a real property owner’s interest is not evaluated from the perspective of the government agency alleging the violation, but rather “we evaluate the property owner’s interest from his viewpoint.” (Mohilef v. Janovici, 51 Cal.App.4th at p. 287, fn. 19, emphasis in original.)
A perfect example of the Santa Cruz County’s blatant disregard for due process involves Don and Hillary Falconer and their Briarcliff Horse Farm. Prior to late 1997, Briarcliff was the horse farm used by local and state agencies as the model farm in their geographical area. While the Falconers have been the subject of prior Viewpoints, I haven’t covered the denial of their due process rights and the resulting legal effect of voiding the entire enforcement action.
On October 20, 1997, the Falconers were served with a notice of violation by a Santa Cruz County enforcement officer. Numerous violations were alleged, including the building of their home and garage without a permit and their entire horse operation. After extensive negotiations, the County presented a stipulation to resolve matters. That stipulation, if signed, would have closed down their entire horse operation. The Falconers refused to sign.
On May 19, 1998, a Notice of Violation was recorded at the County Recorder’s Office upon the request and signature of the County’s head enforcement officer. Included in the description of violations was “operating commercial horse boarding and riding arena without use permit (70 + horses).” Over 50 violations were recorded, including the Falconers’ home and garage.
No hearing was offered or provided before the recording occurred. In fact, the house and garage had been permitted, and the horse operation, with a capacity of handling 100 horses, was grandfathered because no permits were required during the time their operation was established. Nevertheless, the enforcement action proceeded.
On December 7, 2000, Don Falconer died of a heart attack, leaving Hillary Falconer to handle the full horse farm as well as the enforcement action. It was later established that, before recording the enforcement action, the County had made no attempt to establish when horse farms were first permitted or when the Falconers’ horse operation had been established, and had failed to realize that the house and garage had already been permitted when built.
On June 18, 2007 the deposition of the initial code enforcement officer that produced the red-tags was taken. At his deposition, he produced a log of events that the County maintains. That log indicated that on May 25, 1999 he and a higher county official, in researching old zoning ordinances, found that “the first Ordinance regulating commercial horse boarding came into effect on 11.23.82.” This was long after the Falconers’ horse operation was established.
Despite the May 25, 1999 discovery of the grandfather date and the entry in the enforcement logs, no action was taken by the County to acknowledge that fact. Hillary Falconer learned of this concealment after the June 18, 2007 deposition.
To worsen matters, on November 15, 1999 the County presented another list of alleged infractions which was recorded against the Falconer title on September 12, 2002, again without providing Hillary Falconer with a prior due process hearing. Of course, the list still included the entire horse operation.
Hillary finally brought suit on June 19, 2006. At this time no changes had been made to the list of violations, although the information had been provided to the County as to its errors. The title to Briarcliff Farm remains clouded with over 50 enforcement matters.
The County didn’t want the case to be addressed in the Santa Cruz County Superior Court and had it removed to the Federal District Court in San Jose. An important ruling is expected shortly.
Hopefully, the County of Santa Cruz will realize that it is acting unfairly and unconstitutionally. To remedy its errors, the County should establish two due process hearings: one before recording the violations and a second hearing afterward to rule on the validity of the alleged violations. It also should eliminate recorded violations known to be false or erroneous. It should provide a process whereby alleged violators can sell or refinance their property while maintaining sufficient equity to protect the County. When seeking civil penalties, it also must recognize that the County cannot select the hearing officer as is its present custom. This is unfair and rife with conflicts of interest. Property owners should be allowed to request that an independent hearing officer be appointed by the State Office of Administrative Hearings. While the County continues to resist this reform, the City of Santa Cruz has already adopted this practice.
Furthermore, some appropriate body should audit or determine why the County of Santa Cruz currently follows such unfair practices. At stake are the preservation of sound government and the protection of the rights of its citizens as required by our Constitution.
The Gestapo of the West – 8 Years Later by Ronald A. Zumbrun
Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm. It represents Hillary Falconer in the subject litigation. You can learn more about the Zumbrun Law Firm at www.zumbrunlaw.com.
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