Fear in the Hills
"There's more people that are not in this room, who are out in the hall and spilled out into the street — I'm not saying they've got pitchforks, but there's people out there who are really, really concerned about this and they're not going to go away. ...
This code enforcement program is completely out of control."
— Paul Bassis, at a meeting in Garberville organized by the Civil Liberties Monitoring Project
Elk Ridge is that long dividebetween the Mattole and the South Fork of the Eel. To get onto its network of private dirt roads, which are run by road associations to which neighbors pay annual fees for upkeep, you can take the Briceland Road out of Redway. First you travel through groves of giant redwoods, pocked with darkness, until gradually the road rises into tan oak, fir and assorted oaks. Eventually, depending on the road you take, you might top out into a green meadow with giant live oaks, floods of sunshine and sweeping vistas of ocean and more ridges, some snow-capped.
It was along this road in February that residents say a convoy of Sheriff's deputies and a county code enforcement officer wandered up and down the private roads and into yards, surprising the rural residents of homesteads scattered among the trees. Their visit came just days after code enforcement inspections in the nearby Woods Ranch Road area, initiated after a complaint of a diesel spill, had led to two marijuana busts. According to court records of inspection warrants granted and served, the unit had inspection warrants for the properties it had investigated on Woods Ranch Road, but it did not have any for the properties of residents who said they were bothered on Elk Ridge.
Randy and Sarah Foster live on Elk Ridge. Their place, though high up, isn't on one of those bald hilltops; it's nestled more in the trees, with a languid pond they dug some time way back. Randy bought the 40 acres for a song, $50,000, back in 1974 — nobody wanted to live there then, he said, because the place had been stripped bare by logging. The trees have come back nicely.
Last Thursday in the early evening, the Fosters stood outside their home and talked about that day in February when code enforcement came for a visit. Sarah said she wasn't home that day, but Randy told her about it later. He was just getting ready to go on his daily run, when about five four-wheel-drive vehicles, two of them unmarked and the rest with Sheriff decals, came up their driveway, and several cops got out. They wore flak jackets, he said, and had their weapons out. Randy said one of them came up to him and gave him his card: code enforcement officer John Desadier. He asked Randy for directions to Young Jacobsen's place. It was a couple miles away — Randy gave him detailed directions.
It was all very polite, Randy said. But he was rattled. Still, once they drove off he went for his run. When he got back, he said, their dog Dojo was barking like crazy. He looked down his driveway, which makes a big loop through the woods, and saw that Desadier and his team had returned and were now walking through a second house on Randy's property — it was his brother's old place, which his son had recently been fixing up to live in.
"They were walking all over the place," Randy said. "They had their automatic weapons out."
Randy said once Desadier noticed him, he came up the hill and started peppering him with questions: "Well how about that house down there, with the pump, is that yours? How about your septic, where's your septic? It's not code, it's illegal. Is that your burn pile? It's illegal." He said Desadier told him his boneyard of lumber and machinery was solid waste, and illegal — Foster's a retired carpenter and machine man, worked 16 years at Milts Saw Shop in Garberville before heart trouble halted him. And then, said Randy, Desadier told him he couldn't have two houses on his land, which is zoned TPZ, and said maybe he could let the volunteer fire department have the one down the hill that his son was fixing up — for practice, you know, in putting out fires.
Desadier had no inspection warrant for the Fosters' place that day. But Randy said that when the deputies and inspector turned to go, Desadier told him, "I'll be back."
The Fosters said normally they like visitors and will invite them to tea — but these ones had scared them.
"When they came up at first I thought, oh my God, I'm busted," Randy said.
"For what, we don't know," said Sarah, laughing. "Maybe 15 years ago there would have been a reason, but not now."
But if they weren't scoping for marijuana grows and really were just concerned about junk piles and whether the Fosters had permits, why the armed tactics? And why now?
What was up with code enforcement?
Everybody came out of the woodwork for the meeting. It was a Friday afternoon in Garberville. April 4. Sun and clouds played chess on the not-so-far-off tree-spiked ridges. There was a bit of a chill in the air still, and people who'd worn their jackets were soon sweating as they packed into the vet's meeting hall.
About 300 of them actually fit into the room. Another 300 or so clogged the lobby and, yes, spilled down the steps and into the street. At the top of the steps, Lee Ulansey and Dennis Ryan of HumCPR (the Humboldt Coalition for Property Rights), had set up a table stacked with bold red, black and white posters bearing rants against the county's general plan update, each beginning with "After nine years of work and $10 million all we have is a mess." One quote in particular probably touched this crowd: "We may need to tear down one or two houses, so that people start getting the point that we're serious about enforcement." It's attributed to Tom Hofweber, the county's supervising planner, from a planning commission meeting during the recent TPZ uproar where the county introduced an ordinance to require landowners to get conditional use permits for future construction on TPZ lands, and was convinced to withdraw it by an angry populace. That gave rise to HumCPR — which some say is an arm of the developer/realtor crowd, a charge Ulansey refutes. Its focus is the general plan update, in particular on killing the Sketch Plan A alternative, which it sees as exerting too much governmental control and some sort of rural purging.
HumCPR wasn't one of this meeting's organizers. But it had a ready crowd, receptive to discussing privacy and rights.
Inside, someone from CLMP — which did organize this meeting — was introducing the panel: Second District Supervisor Roger Rodoni; Humboldt County Sheriff Gary Philp; one of the county's two code enforcement unit officers, Jeff Conner; and, though he hadn't yet arrived, District Attorney Paul Gallegos.
CLMP's focus was the county code enforcement unit. CLMP had received a number of disturbing calls from residents about what had happened up at Woods Ranch, and Elk Ridge.
People were furious, and scared. And it was happening in all the rural areas of the county — everybody had heard, by now, the report from the hippie-communal property near Trinidad, called Yee Haw, where a Sheriff's deputy on a code enforcement inspection was said to have pointed a gun at a woman and her babies. So over the next three-plus hours, people — including that mother from Yee Haw — told their stories, ranted and demanded answers.
After the meeting, Robie Tenorio, of CLMP, said one thing at least was now clear: "I think we learned that no one is in charge."
The following Tuesday, another large crowd gathered, this time before the Board of Supervisors in Eureka, and people again told their stories and, again, demanded answers. In the end, the board voted to suspend the code enforcement unit's activities for 45 days (this was clarified later to exclude from the moratorium voluntary inspections), and to convene a nine-member task force to look into its operations.
The task force will be seeking answers to the questions raised at the meetings: Who is in charge of code enforcement? Who decides where code enforcement makes its inspections? Is code enforcement going after unpermitted buildings and compost poopers, or pot? Why has the unit and its attending deputies wandered onto parcels they don't have inspection warrants for? And why the guns?
Maybe it'll help to go back in time, to some semblance of a beginning.
Right after that Garberville meeting, Dan Taranto dug out a bunch of his old newspaper clippings, made copies, and then made rounds through the county handing out the thick packet. Most of the clippings are from 1987 and 1988 — the last time there was a major battle in the county over code enforcement. But not the first.
In an interview a couple of weeks ago, Taranto said this recent outcry is actually the fourth time Humboldt County's rural citizens have been embroiled with county officials over code enforcement.
"The first one was in the early '70s, when someone circulated a memo by the building inspector to all the departments that said he was worried about the impacts that illegal buildings in the outlying areas would have on the tourist industry," said Taranto.
Back then, Taranto was already a housing law reform advocate. He'd come to Humboldt in 1966, did a master's thesis in botany on the sex life of a certain freshwater algae, and built a house in 1971 out of recycled old growth redwood. A year later, he was cited by the building inspector because his conscientiously low-consumptive, 150-square-foot house was "too small." He expanded it to 850 feet. There were other complaints — he complied, but felt harassed.
A few years later, the issue escalated. Rural homebuilders were being cited for not conforming to the county's Uniform Building Code. The rural dwellers complained that the UBC was an urban set of standards that made no sense in a country setting, and that it was devised by special interests — the building industry. It was inflexible, had more to do with uniformity than health and safety, and was adhered to blindly. "When they use a word like "code,' it infuses the notion that this is one of the chapters of the Bible," said Taranto.
Taranto and others formed Humboldt United Stand, after the group that had recently started in Mendocino, and in their fight prompted the Board of Supervisors to create the Class K standard, called now the alternate owner builder permit — a looser set of standards for owner-built homes, and in 1976 owner-builders were made exempt from penalties under the UBC.
But in late 1987 came a huge code enforcement blow up. It was, the news clips reveal, said to be triggered by complaints about the unpermitted construction of a cement-processing plant in Willow Creek. The county proposed sweeping changes to the code enforcement program, including elimination of the protection of owner-builders from UBC sanctions, a system of fines to pay for code enforcement, a return to an earlier system in which an inspector could enter a building with a warrant (no permission necessary), and making a code violation an infraction instead of a misdemeanor — while that sounds better, an infraction would take away a person's right to a jury trial, says Taranto.
Hell broke loose. On Feb 4, 1988, 1,800 people flooded the Eureka High auditorium, according to the news clips. Five more hearings followed. The Board canned the plan.
Last week, down in Redway on the front porch of KMUD radio station, several people were hanging around nibbling on little plates of food. It was the beginning of the public radio station's pledge drive, and some of the people on the porch were waiting for their turn to pitch for donations on the air, while others had just finished. They were talking about the code enforcement hubbub. And, hell, about how everybody's got an unpermitted something or other in this county.
Then came the joke.
"What's a 20th wedding anniversary gift in Humboldt?" asked Joe Ashenbrucker, a county community health outreach worker. He paused, then answered: "Sheetrock."
Loud guffaws, into the middle of which Chris Hinderyckx, a registered nurse at the Garberville hospital, tossed out an alternate answer: "Flush toilet!" That just got everyone laughing harder.
"No one," said another man, "cares about permits!"
It's true that code compliance just sort of poked along in the early 1990s, said Michael Richardson, a senior planner with what's now called the community development services department — the combined planning and building divisions — in a recent interview. Individual planning and building staff fielded whatever complaints came their way. "The standard procedure was to write the property owner two letters," he said. If the owner responded, good, they moved forward. If not, the case was filed. "We didn't have investigators. People didn't really want us to play a larger role."
But eventually some high-profile violations caught up with them, he said, including an illegal campground on private land at Clam Beach. People complained about the lack of enforcement.
So in 1994, the Board of Supervisors directed deputy county counsel/deputy district attorney Richard Hendry to start a code enforcement unit. The unit was charged with handling cases that the planning, building or environmental health departments couldn't resolve — it could file legal notices, demanding compliance. It could investigate. There could be a public hearing to declare the property a public nuisance, to which the owner could show up to explain the situation.
In an interview last Friday, Hendry — whose name still appears on the legal documents the code enforcement officers file with the court — recalled that the unit started out with one attorney position, a half-time secretary and one investigator — a peace officer. "The Board and the CAO discussed it, and decided the investigator should be armed," said Hendry.
This is why they're actually called "District Attorney Investigators," explained D.A. Paul Gallegos at the Garberville meeting. They are deputized by him, so they can bear arms. But county counsel has authority over their actions.
The unit grew to two investigators, but then in 2004, during the state budget crisis, its budget was cut and the unit eliminated. Four months later, however, it was reinstated after Supervisors Jimmy Smith and John Woolley came up with a deal with the Humboldt Waste Management Authority to fund the unit through an increase in franchise fees for garbage haulers and a yearly junk-pile grant.
The Board also created an oversight committee in 2004, said Hendry. Its members — the Sheriff, the D.A., County Counsel, the environmental health director, the chief building inspector, the head of public works, the director of community development services — met monthly until last year. Now they meet quarterly. (According to Hendry, these meetings are confidential.)
But meanwhile, over on the planning and building side of things complaints were piling up, said planner Richardson. He took over the complaint program himself and at one point had a backlog of 600 complaints, he said. He whittled them down — and sent many to the county counsel's unit.
Then Claude Young came on the scene, in 2002. Young, a retired lawyer and real estate broker who's in his 80s, and who moved from Southern California to retire here in 1994, told his story over coffee one afternoon earlier this month.
"I bought a piece of property in Hydesville — 35 acres. I built a beautiful home." Years passed. And then a neighbor started building a commercial structure that he thought was improper for that zoning. He filed a complaint with the planning department. Waited two or three months — no answer.
He ended up going down to the department, talking to Richardson and to the community development services department director Kirk Girard, and getting brought on as a "temp" worker to help with the code violation complaints.
Now he's on full-time. He and another guy, Christian Nielsen, handle all the complaints. Young devised a three-letter warning system for violators, to give them time to respond to the complaint. Nielsen put together a database to organize the cases and keep track of their progress. And, perhaps significantly, Young ramped up communication between departments. He began meeting with code enforcement investigator Jeff Conner and the environmental health division's director, Brian Cox, once a month for coffee. At these meetings they talk about the cases they're handling, and they often help each other where the cases overlap.
Young says things are much more efficient now, despite the fact he fields around 300 cases a year now.
"Before I got here, they sent about 47 percent of all of their cases to the code enforcement unit under county counsel," he said. "We now send about 5 percent of my cases to the code enforcement unit."
In the code enforcement unit, over the years, the caseload got hefty too. Last July, the county hired John Desadier, a former Sheriff's deputy, to take on some of Jeff Conner's caseload.
Desadier has been associated with the recent high-profile inspections that have riled so many people. Many at the Garberville meeting hinted that he might be the problem. (Desadier wasn't at the meeting, though he'd been invited.) But Conner was on some of them, too.
Hendry said that at any one time the unit has 130 complaints open — referrals, mostly, from other county departments. Most of them get resolved with the property owner's compliance.
"Ninety-five percent of our cases are done without having to do any type of inspection warrants," Hendry said.
Court records show that in 2007, the code enforcement unit served just 20 inspections warrants. In the first three months of 2008, 10 inspection warrants were served. Some of those warrants had to do with the usual code enforcement fare: junk yards, too many animals, abandoned vehicles, solid waste issues. They were near Eureka, Blue Lake, Rio Dell.
Many of them, however, were for properties in the hills. And many reflect one of the community development services department's latest missions: to crack down on illegal subdivisions.
At the Garberville meeting, code enforcement investigator Conner explained that he was directed to focus on unpermitted development in rural Humboldt. It's unclear where the direction came from.
"I was given four target areas," he said. "Tooby Ranch, which I started working on probably about two years ago as part of the Tooby Ranch lawsuit; Titlow Hill, where there is a very large illegal subdivision, approximately 65 illegally created parcels many of which have development on them; and lands that were sold by two LLCs — Schmook Ranch LLC and Vilica LLC."
A week later, in his office, CDS director Kirk Girard said that this focus does represent a real change in his department's code compliance program.
"The first was the Tooby Ranch," he said. "That was the first special case."
The county sued Bob McKee in 2002, after McKee bought the 13,000-acre Tooby ranch and sold 38 parcels in 2000. The county said he'd violated the state Williamson Act and the state Subdivision Map Act. In 2006, a judge ruled that McKee had not violated his Williamson Act contract. The county appealed.
Girard said the county first heard about the Tooby Ranch deal when neighbors called the department to complain about how property was being sold and the new people weren't using the land for agriculture, in defiance of the lands' Williamson Act contract.
"And this became a very high profile case at the state level," Girard said. "The department of conservation, that oversees the Williamson Act program, was deeply involved at this point — people started building buildings and ponds and new roads out there and they weren't obtaining permits for anything. So that was illegal construction on Williamson Act preserve land."
Girard said the county also happened to be getting audited by the state for this very thing — to look for violations of the Williamson Act. A lot of counties were being audited, he said.
"And so we filed complaints against all of the illegal construction on Tooby Ranch. We wrote property owners and said, this house that you built and this pond that you constructed and this septic system, all needs permits. And so that was the first major enforcement action associated with protection of the Williamson Act program."
When the state's audit came back, it said Humboldt County had other problems besides just Tooby. Girard said the state had a list of properties the county needed to investigate. (He couldn't produce the list, he said, at the moment, but the assessor's office had it. Linda Hill, the county assessor, said last week that while she had a letter about the audit, there was no property list in it.)
A lot was at stake: If the county's Williamson Act preserves weren't in compliance — were being used for something other than agriculture — the state could cancel all of the subvention payments the county gets for all of these preserves. Those payments make up for the money lost to the major tax breaks preserve owners get.
"So, [the audit] was, in a sense, the mother of all complaints," Girard said. "The entire program was at stake because of these few, these very few preserves, that were obviously out of whack."
That's when the county added Nielsen to its code compliance staff.
Nielsen and Young then investigated the Schmook Ranch, in southern Humboldt, which was another Williamson Act preserve and TPZ preserve, and found more illegal building construction, Girard said.
Then came Titlow Hill — which wasn't on the state audit list, said Girard, because it's not a Williamson Act preserve.
"Neighbors complained," he said. "We have neighbors at Titlow Hill saying, what are you doing, they're saying it to the board, they're saying it to us, they're writing us continuous letters saying another greenhouse was built and another house was built and another road was graded and there's still illegal subdivisions and they're selling these illegal properties — what is going on here? They're absolutely indignant."
It's a very old case, in fact. More than a decade ago, said Girard, "Kenny Bareilles applied for a subdivision. The planning commission said no. So he felt like that was an inappropriate decision and he went ahead and sold properties."
Girard said the Grand Jury also was pressuring the county to look into potentially illegal subdivisions. The Grand Jury was worried about people who were paying taxes on illegal land and illegal houses — who had bought the property, perhaps, not knowing the predicament they were in. As Claude Young put it, in an interview earlier, that could seriously affect one's property value when you went to sell it. Or, maybe get you a reduced tax assessment.
There are loads of suspect parcels in the county, the Grand Jury said, where they've got tax IDs — no parcel escapes the assessor — but no sign of having gone through the zoning or building process. Sometimes they turn out to be perfectly legal, said Girard.
Both Conner and Young say that they've worked with a number of the Titlow Hill residents, and they're working out some solutions to making their lots legal and getting building permits. Conner told the crowd in Garberville most fines are waived if people cooperate.
And, no, says Girard, one of the solutions is not, despite what some people are saying, to "tear down houses."
"You know where that quote came from?" Girard said. "It was in the TPZ hearings, and Tom Hofweber was talking about what's the difference between allowing houses by right — which means all you need is a building permit, called a ministerial permit — and requiring a conditional permit for them in TPZ. If it's ministerial, the government can't decide whether you can or can't do it, they can only tell you how to do it. If it's a use permit, it's discretionary, and the government decides — we can not only decide how it's done, but if it's done.
"At the hearing, Mary Gearheart asked the question, "What's the difference between a use permit and a building permit on this enforcement issue. And Tom said, if somebody builds a house on TPZ, and they don't get a permit and they get caught, when code enforcement tries to remedy the situation, the only remedies available to them are how, not if: So, it deals with, did it meet uniform building codes? Not the fundamental question of should it be there or not. But with a use permit, you get to address the question of should it be there or not. And so then he said, with a use permit, in an enforcement situation, you would have more control over the outcome. "And unless,' he said, and this is where the unfortunate quote came out, "unless you start tearing down houses that were built without a building permit, there won't be any consequences.' Now, this is the part of the quote that was left out: He then said, "But that's not going to happen. We will not ever tear down a house of somebody without a building permit.' He said, basically, you could be this Draconian but that's not going to happen."
There is an apparent coziness between the code guys and the drug guys in the press releases issued by the Sheriff's department about some of the marijuana busts that started as code inspections. Here's a particularly explicit example, noting a July 26, 2007, code enforcement inspection-turned-pot-bust: "... at 1345 hours the Humboldt County Sheriff's assisted the Humboldt County Code Enforcement Unit with a marijuana related search warrant on a rural parcel of property located off Bair Road in Redwood Valley."
In a recent interview, George Cavinta, who supervises the criminal investigators within the Humboldt County Sheriff's department, says drug enforcement unit investigator Mark Peterson has more cases than he can get to already — he doesn't need code enforcement to drum more up. And if he goes along on an inspection, says Cavinta, it's because they just need an extra body. Or maybe a beefier vehicle.
"Code enforcement, they drive, what, I think Tauruses," he said. "Two-wheel-drive cars. And they don't have the resources to go out in the woods to work a site like a large subdivision. So they ask the drug enforcement unit to go along. We have the resources to get to these rural areas. It's unfortunate that once code enforcement gets out there, more than 50 percent of the time they're looking at commercial marijuana grows. It's common. And often they've been out there before. Our officers might as well be with them then. ... They go there anticipating they're going to run into it."
It's also why Conner and Desadier often request inspection warrants that say they don't have to notify the landowners ahead of time.
"I has been my experience and training that persons who construct greenhouses in extremely remote areas of Humboldt County almost always do so for the purpose of cultivating marijuana," wrote Conner in a warrant request to investigate a Vilica property in Redwood Valley — which did end up having commercial grows on it. "It is also my experience that violators of County code, especially those who cultivate marijuana, will sometimes modify the conditions on their property before an announced inspection with the intent to hide or obfuscate the investigation."
And it's this oft-criminal element (sometimes they run into legal 215 grows) they encounter, say Conner and Desadier, that makes them feel the need for backup. And guns.
At that meeting in Garberville, if there was one thing that upset people most of all it was the reports of guns having been pointed in people's stomachs, or at women and babies. "We need a moratorium on the armedness!" shouted one guy in the crowd.
Conner said while it wasn't common, about 15 percent of the code enforcement programs in the state use armed code enforcement investigators.
Girard said code enforcement programs differ depending on the county or city. In some places, all code enforcement is handled out of the planning and building departments. In others, code enforcement functions are separated, with voluntary compliance handled by the department where the complaint came in — planning, for instance — and, when that fails, sending the case over to the legal operations of the county where compliance can be forced.
Humboldt has used the split system since 1994. At the Garberville meeting, it was apparent that many people wouldn't mind seeing the entire program handled within the planning and building department.
"If you're running a department, and you have one division that can generate controversy, like code enforcement can, a controversy in that division can color non-controversial activities in another division," he said. "And so you get this political spilling over of that problem. And so ... to compartmentalize the controversy and to give it to a unit that is more able to not only withstand the controversy but deal with it, that is better organizational design."
As for the practical side, he said: "Training a building inspector to look at what the nailing schedule should be for sheetrock, and how to file a request to a judge to get an inspection warrant, is silly," he said. "So, that skillset for dealing with people that are not willing to comply on a voluntary basis looks a lot more like District Attorney's office, looks a lot more like County Counsel's office, looks a lot more like law enforcement than building and planning functions where we're working with people that are just trying to do the right thing. The skillset is night and day apart."
Up on Elk Ridge last Thursday, after retelling the story of how the code enforcement cop and his backup deputies had descended upon their place a couple of months ago, Randy and Sarah Foster walked across the dirt driveway to the pond they like to skinny dip in — nobody else is around, usually, to care. Randy stared at the pond. He said he knew, back in '74, this place would be a good place to raise kids — and it has been. "Fresh water, clean air, room to move," he said. "I don't see how you'd want it any other way. I mean, it's dirty — but there's all the animals. One of the greatest things we get here are all the birds. The kingfisher will come along and stake out its territory, kreech-kreech. And the blue heron — you can hear it unwrap its big, leathery wings. Ah, man, they're so huge. Hawk, falcon, peregrine falcon, osprey."
He built his house — the one he and Sarah live in — out of a book called Peace of Mind in Earthquake Country. It's solid. But it's not quite finished.
"In China they say, "A man who finishes his house has given up,'" Randy said in his quiet voice, smiling. He heard that from his Aikido instructor.
"There's always something to be done," added Sarah. "We'd like to make the porch a wrap around."
But this code enforcement business has them worried.
"I'm not here to fight about this," he said. "I'm here to learn what I need to do to make it right."