Code Enforcement Falsely Subjects Widow to Red Tags

Posted on Freedom Advocates on July 11th 2006 

By [post_author] –

A true nightmare story of what can happen when you find yourself outside the political “inner circle.” A relative of a disgruntled employee told Hillary Falconer of Briarcliff Farm that she was going to report  Falconer to the county and other agencies.  Shortly thereafter, Briarcliff Farm was inspected by the enforcement unit of the Planning Department of the County of Santa Cruz.  And thus, the nightmare began! Santa Cruz “red-tagging” is an experiment in social engineering.  Those in favor with those in power get special treatment.  Those who are not in favor often end up with alleged building code violations called “red tags.”  This is not the story of a free America that has rights protected by the Constitution. Rather, it portrays the “Gestapo of the West” where only the wealthy or those willing to commit their life savings or retirement funds have a chance to protect themselves.*

By Ronald Zumbrun* 

Below I have detailed a true nightmare story of what can happen when you find yourself outside the political “inner circle.”  Hillary Falconer is a long-time resident of Santa Cruz, California.  In 1959, her parents purchased Briarcliff Farm, where Hillary grew up.  In 1975, they sold the farm to Hillary and her husband Don. Since 1959, the property has been run as a family horse farm. 

Briarcliff Farm is a 12¾ acre horse ranch used primarily for boarding and breeding horses and related activities.  Prior to 1997, Briarcliff farm was a model farm used as the example by private groups and government officials of how to properly manage and maintain a horse facility.  Hillary and Don had been running the farm since they acquired it in 1975.  Don had retired as Vice-President of the Santa Cruz County Bank in 1978.  He died unexpectedly on December 7, 2000, after the red-tag ordeal had begun.

The horse operation on the subject property was built prior to 1980 and any zoning or permit requirements were grandfathered in under Santa Cruz County policy.  The remaining facilities on the Briarcliff Farm all were previously permitted or built long ago prior to the inception of county requirements and therefore also are grandfathered.  The two exceptions are a bunkhouse for workers and an uninhabitable trailer.  The bunkhouse requires an after-the-fact permit, or a change of use to storage or needs to be torn down. In 1985, a young woman was hired to work at Briarcliff who eventually became a horse trainer.  The Falconers took her in, providing housing and other benefits.  She practically became a member of their family. 

Twelve years later, on August 31, 1997, the subject horse trainer became extremely upset when the Falconers hired an additional trainer for the farm.  She angrily declared that she was quitting her job and moving out.  In doing so, she demanded to be allowed to take a particular horse owned by the Falconers.  She left in a huff after being denied her request.

Because of the uneasy feeling Hillary got from that encounter, she placed a padlock on the horse’s stall.  Later one evening the woman and her mother drove to Briarcliff pulling a horse trailer, only to find the stall locked.  The mother, a Santa Cruz real estate broker, told Hillary that she was going to report her to the county and other agencies.  She said, “Give us the horse or I am going to cost you every cent you have and put you out of business in this town.”  And thus, the nightmare began!

Shortly thereafter, Briarcliff Farm was inspected by the enforcement unit of the Planning Department of the County of Santa Cruz.  During October 1997, Hillary Falconer received notice from the county that Briarcliff Farm, including the entire horse facilities including 34 stalls, was being red-tagged with numerous alleged violations of county codes.  County Inspector Richard   Nieuwstad met Don Falconer on the property and toured the site.  He concluded that the Falconers had “a major problem” and placed over 50 red tags.  All but two of them were without any factual legitimacy.

It is believed that the disgruntled horse trainer’s mother was responsible for instigating the county enforcement action, including the details of the purported infractions.  She also contacted her ally, County Supervisor Janet K. Beautz, who then demanded that the County Planning Department initiate the enforcement action and continuously wrote and e-mailed county personnel to ensure that the Falconers were being prosecuted.

Ms. Beautz has been identified as the county supervisor who is the most active concerning applications and enforcement matters.  The Planning Department is required to furnish her with all applications and proposed Notices of Violation filed in her district. She continues to be involved throughout many of the proceedings.  The Planning Department and its enforcement unit clear any proposed final action in cases of interest to Ms. Beautz to ensure she is in agreement prior to taking final action or making recommendations to the Board of Supervisors.

Supervisor Beautz acted outside her authority in this matter and had a conflict of interest, creating a separation of powers violation through her actions.  She serves as a member of the Board of Supervisors, which is the final governmental body responsible for adjudicating administrative actions.  In this case, she acted as an individual in the initial enforcement confrontation and provided misinformation of which she had no personal knowledge to the county enforcement unit.  She demands enforcement action against citizens such as the Falconers.  Thus, Ms. Beautz has conflicts of interest – she can not act as both prosecutor and judge regarding adjudicatory actions.  Her enforcement activities have continued from before 1997 until the present.

Hillary soon found herself short of cash but sitting on very valuable property—Briarcliff Farm.  She began to seek refinancing in order to keep her farm operating, to have funds to hire an attorney to fight the red tags, to correct any deficiencies and to make necessary improvements such as building an indoor arena to make Briarcliff Farm competitive.  To her dismay, no refinancing money was available because of the red tags.  She eventually inquired about selling the property, but no mortgage company would finance a sale until the red tags were entirely removed.  Moreover, potential purchasers were no longer interested, given the circumstances.

An administrative hearing was then scheduled.  Hillary’s attorney inquired on December 31, 2002, concerning the designated hearing officer and made a request that a state administrative hearing officer be assigned.  No response or hearing was ever provided.  After many attempted meetings and unreturned telephone calls with planning staff, finally a meeting was held on December 14, 2005 with the head of enforcement.  Although he was very congenial and supportive during the meeting, he never issued a reply to a follow-up letter seeking solutions.  On March 16, 2006, another letter was written to the same person proposing specific solutions to the problems including a stipulation resolving matters while dealing with the unpermitted bunkhouse and trailer.  

In the meantime, and after eight years of trying to resolve this frustrating situation, Hillary Falconer was forced to respond informally to offers to purchase her property because she could not get financing to allow her to continue her horse farm operation.  She received tentative offers from five different families, all in the $3 million range.

Eventually, on May 2, 2006, at 9:00 a.m., Ms. Falconer’s attorney was able to have a telephone discussion with the head of enforcement who indicated that matters could be resolved and that he would respond to the proposed solutions immediately.

However, on the same day at 11:00 a.m., a realtor representing Hillary had her own meeting with the head of enforcement which lasted past 1:00 p.m.  His attitude had changed.  While in the morning he talked of saving Ms. Falconer’s horse farm, he later indicated to the realtor that a horse farm was a fruitless goal and that the property should be subdivided into four lots with huge homes built on each.  Of course this action would bring greater tax revenue to the county.  It is believed that between the two meetings, the chief of enforcement discussed the situation with Supervisor Beautz who opposed allowing Ms. Falconer to resolve matters and continue her horse operation without the red tag problem.

The county has never responded to the letters or telephone calls by Ms. Falconer’s attorney as promised.  All five parties who had shown interest in purchasing Briarcliff changed their minds following communications and meetings with county representatives who gave a distorted representation of the property and even asserted that the horse farm would only be allowed 24 horses.  This is contrary to the zoning for a 10+-acre parcel.  Meanwhile, farms with less than 10 acres have been allowed to have 100 or more horses.

Throughout this entire time period following the enforcement actions, Hillary has sought ways to get financing but has been prevented from doing so due to the red tags.  Her attorneys have contacted the county numerous times in an attempt to reach a resolution wherein the red tags could be temporarily lifted in order to obtain financing.  The enforcement unit has always refused.  When presented with a reasonable resolution, including a binding stipulation, the head of enforcement again refused, saying that all red tags had to be lifted before the enforcement action could be completed.  This left Ms. Falconer without the ability to refinance; to sell her property; to correct any valid red tag deficiencies; to afford counsel to defend the enforcement action; or to compete with other facilities by upgrading her facility.  Her situation continues to disintegrate.  The county also will not remove individual red tags that have been resolved until all red tags have been removed.  This is the case even where the grounds for the red tag were found to be false.  Thus, all of the 50 + red tags remain today which scares off potential refinancers or purchasers.

It’s now nearly nine years since the first red tags were issued.  Hillary’s only choice is to bring suit against the county, Supervisor Beautz and other responsible individuals.  She will be seeking declaratory relief and will allege that the delays that have occurred subject the county to claims of estoppel, laches and violation of statutes of limitations.  She also will be seeking injunctive relief and taxpayer relief.

Further, she will be seeking full compensation based on concepts of inverse condemnation for a total taking of her property.  At a minimum, she will be seeking delay or interim damages for the nine years she was damaged.  Other theories include fraud, violation of the Federal Civil Rights Act, conflict of interest, violation of separation of powers, and punitive damages.

Unfortunately, Hillary Falconer is not the only one who has been subjected to this type of abuse from Santa Cruz County.  Reports indicate that many thousands of Santa Cruz families are currently subject to red tags.  These actions have occurred without preliminary hearings and most have not received an administrative hearing and cannot refinance or sell their homes.

The Santa Cruz situation is complicated because years ago permits were impossible to obtain for any type of improvement.  Some contend that Santa Cruz red-tagging is an experiment in social engineering.  Those in favor with those in power get special treatment.  Those who are not in favor often end up with a red tag.  This is not the story of a free America that has rights protected by the Constitution.  Rather, it portrays the “Gestapo of the West” where only the wealthy or those willing to commit their life savings or retirement funds have a chance to protect themselves.

With the recent heightened attention and support of property rights in our country by both sides of the political spectrum, this practice by Santa Cruz must be stopped.  The same applies to any other county which uses its enforcement powers for purposes other than protecting the public’s health, safety and welfare.

*Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm.  He is representing Hillary Falconer in pursuing the proposed litigation.  Mr. Zumbrun’s column originally appeared in the June 2006 issue of Daily Recorder. In the 1970’s Mr. Zumbrun founded the Pacific Legal Foundation, a public interest law firm that brought many private property rights cases to the United States Supreme Court.

**The rights of all are served when the rights of one are protected. Mrs. Falconer needs your financial assistance for this important litigation. Contributions can be sent to: Mrs. Hillary Falconer, P.O. Box 578, Soquel, CA 95073

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