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A Felon, for Now 

Judge tells Titlow Hill developer Ken Bareilles he has to work for his misdemeanor

In the end, well-liked Eureka attorney Ken Bareilles' pleas of good character and charitable contributions to his Eureka community, not to mention what he has claimed to be ill-treatment and misleading information from Humboldt County government, were not enough to convince Judge Ronald Brown last Friday.

The occasion was a hearing on Bareilles' motion to have a felony count against him reduced to a misdemeanor. He'd already plead guilty to the felony last year, for the unlawful subdivision and sale of three parcels on his Double B Ranch in the Titlow Hill area. (Actually, he subdivided 58 parcels -- 32 parcels illegally, he says, and 26 patent parcels legally -- after he gave up trying to get approval from the county to subdivide. However, the statute of limitations has run out on all but the three latest subdivisions.) But in January Bareilles filed the motion to reduce the count, claiming he'd discovered erroneous statements about him in a pre-sentencing probation report, which suggest among other things that he sold land to people knowing they were marijuana growers and that he'd foreclosed on some of his buyers -- all of which he denies. (See "Titlow Hill Blues," Feb. 18, 2010).

At Friday's hearing, Deputy District Attorneys Arnie Klein and Christa McKimmy presented several witnesses, including county Code Enforcement Officer Jeff Conner, Titlow Hill area resident Marisa St. John, county Community Development Services Director Kirk Girard and county planner Steve Werner.

McKimmy's and Klein's questioning seemed keen to establish that Bareilles had built new, unpermitted roads on the ranch property for the purpose of residential access and that such roads could be the source of erosion and environmental pollution; that Bareilles' fragmented development of the ranch, including in areas the county saw as geologically unstable for residential development and best suited for timber and agricultural preserves, circumvented zoning and General Plan requirements of the area; and that the public had been denied due process and the chance to hear views and express their own on how the ranch should be developed.

"The county has been affected by this illegal subdivision activity," said Werner. "His activity occurred in a vacuum, and there was no way for surrounding landowners to participate. There was no due process."

Girard testified that the purpose of a General Plan is to protect the public interest, with guidelines that assure land buyers will be able to get water to their property, for instance, or for that matter build on it (you can't get a permit to build on an illegal parcel); it determines fire hazards, runoff and water withdrawal standards to protect the neighborhood; and it establishes the needs for environmental protection. Girard said Bareilles' development had jeopardized the public interest in all of those areas.

"Did you ever come across a situation as bad as the one Mr. Bareilles created?" asked Klein.

"No," said Girard. "The parcels are in limbo. And just the geographic scale ... I've heard of individual illegal land sales. But not systematic ones."

In his cross-examinations, Bareilles' co-counsel Kelly Walsh intimated that what county officials called illegal access-road building was in fact just Bareilles making improvements on existing log roads for one of his logging operations. He also established that Girard and Werner didn't know the lay of the land personally, and that there had not been a county study of the area deemed geologically unstable.

Walsh then produced witness Ronald Hunt, a licensed surveyor and forester with extensive knowledge of the Double B and Titlow area, who testified that he'd just been up to look at the Double B recently, and based on what he saw the ranch's condition looked "better than in the ’80s."

"Were there any slides?" asked Walsh. "No," said Hunt.

"Did you notice any degradation to the timber?" asked Walsh.

"No," said Hunt.

Klein, cross-examining Hunt, simply demanded to know if Hunt considered himself a law-abiding citizen. "Have you ever applied for a permit, and if you were denied, did you do it anyway?" Klein asked. Hunt, looking uncomfortable, said that he hadn't.

And that's what it came down to for Judge Brown. Bareilles, in his testimony, said he had not harmed anyone by circumventing the process, and complained that his case over "nothing more than a permit violation" had drawn more publicity than the sex case involving a Fortuna teacher and student.

Brown disagreed.

"Mr. Bareilles' conduct, and the publicity, sort of provokes others to subvert the process and do their own thing, so to speak," Brown said. "So, there is harm in this case. And it's harm in a broad sense, to the citizen and voters of the community. You have to wonder, if people were permitted to do whatever they want with their property, what this county would look like."

As for the extent of harm to Bareilles' buyers, said Brown, that remained unclear; none of them had been brought in to testify.

He sustained the felony count, without prejudice -- meaning Bareilles can work toward a reduction to a misdemeanor by proving he's good for restitution. He gave Bareilles a 36-month probation, during which time he must perform 500 hours of community service among other things.

A restitution hearing was set for June 18. It's tricky -- the county has to determine what needs to be done to square the illegal lots with the requirements of the General Plan and zoning, and prepare an Environmental Impact Report on the entire subdivision to look at cumulative impacts of the developments. Bareilles may be required to put up an initial $283,000 initially toward that effort, and possibly millions more later.

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Heidi Walters

Bio:
Heidi Walters has been a staff writer with the North Coast Journal since 2005.

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