||May 24, 2006|
The white dotted line, left side of house, shows approximately where the
legal set-back would be (7 1/2 feet). Presently, the setback is 4 feet.
Let’s play “Let’s Pretend.”
Let’s pretend you’re a hard working head of a family in San Marcos. Let’s also pretend you want to expand the size of your home. So, being the honest sort, you go through the requirements required by the city of San Marcos to effect that expansion. You submit your plans, the city’s duly appointed, highly trained, and highly paid senior building inspector looks over the plans and says . . . “why, these plans are lovely! Nothing wrong here. Carry on!” And signs off on them. He monitors the plans throughout the construction and even signs off on the building’s final permit.
Let’s pretend throughout all this that you’ve hired a professional contractor to prepare the plans according to code and to build them.
Then let’s move forward a few months. Let’s pretend you’ve finished your home addition and now someone from the city, responding to the complaint of a neighbor who says you’ve built beyond what the law allows, comes in and tells you that you have to tear down the remodeled addition to your home. And, let’s just pretend that the cost to do that is, oh, let’s pretend it’s somewhere around $60,000 to $80,000.
And, let’s pretend that we are shocked at all of this and are wondering where the money is coming from to accomplish this tear down. And then let’s pretend we wonder why we have to do that when the city’s duly appointed, highly trained, and highly paid building inspector told us that everything was just, to use a technical term, ‘hunky-dory.’
Wouldn’t you think the city of San Marcos would bear some, if not all, of any financial liability, instead of the homeowner who relied, in good faith, upon the assurances of said duly appointed, certified and highly paid building inspector that all was well?
Wouldn’t you think that if there had been errors made that the building contractor who was licensed and bonded, and who was engaged to build this room addition, might be at least partially liable for any errors of omission or commission?
Let’s pretend now that the big ol’ city of San Marcos decided to sue you in order to get a court to order you to comply with their direction.
Boy! Wouldn’t that be a terrible game of ‘Let’s Pretend?’
Problem is . . . it’s not a game of ‘Let’s Pretend.” It’s what has happened to the family of Rey Rodriguez of San Marcos.
Rey Rodriguez is a member of the California Highway Patrol. Has been for 16 years. He is used to not only following the law but enforcing it as well. When he’s not performing his duties as a highway patrolman you can often find him leading youngsters on hikes . . . helping them discover life and choose a productive, exciting life rather than wind up joining some gang. Mr. Rodriguez is a member of The Young Adventurers, an organization devoted to youth.
Now it appears that Mr. Rodriguez has done everything he was supposed to do, and relied, in good faith, upon the representations made by certified and professional specialists in the trades . . . and that now he may wind up submitting to a ‘taking’ of his property.
In exploring this strange and sometimes bizarre set of circumstances we talked to several attorney’s to get their read on the issue.
All three attorneys we contacted were of the same mind. Equitably, the city of San Marcos had some liability, if not total, but legally, municipalities are so loaded with immunities from prosecution that it would be more likely that the city would win in a lawsuit than Rodriguez.
The more we delved into this story the more it began to appear that the city of San Marcos is in a no-win situation. It is a public relations nightmare. Their highly paid employee, Senior Building Inspector Leon Jeurett (who, we have been told by reliably informed sources, has been terminated by the city) signed off on all the permits, from beginning to end. Mr. Rodriguez paid several thousands of dollars to the city of San Marcos for plan checks. At no time were the plans found to be faulty.
One of the three attorneys we talked to, Gary Kreep, thought Rodriguez might well prevail in a courtroom because if the city were to insist on him demolishing the addition to his home that would amount to a ‘taking’ of real property, without compensation. Further, if Rodriguez relied upon, in good faith, the representations of the city’s own building inspector, then a ‘detrimental reliance’ may have been created, in which case the city of San Marcos may well be found to be partially, if not totally, liable.
Kreep is the founder of a legal foundation based in Ramona known as the United States Justice Foundation (USJF.com) and is one of the most respected property rights lawyers in America. In its mission statement the USJF says “the United States Justice Foundation is a nonprofit public interest, legal action organization dedicated to instruct, inform and educate the public on, and to litigate, significant legal issues confronting America.”
Mr. Kreep, who has offices in Escondido, is best remembered locally for his mounting a successful petition to deny Ernie Hahn and his development company the opportunity of developing a shopping center and highway re-routing that would have occupied most of downtown Escondido. Hahn and his company eventually managed to locate on the southern edge of Escondido in the North County Fair (more recently renamed the Westfield Shopping Center) but Gary Kreep had won the day, legally.
While Kreep does not yet represent Mr. Rodriguez, he suggested Rodriguez may well have sufficient arguments on his side to prevail. All three attorneys we spoke with, however, suggested the best and most desirable solution would be some type of compromise solution. Rodriguez appears open to that though he is hesitant to any agreement as he feels he has been pretty badly burned by relying on previous representations by officials of San Marcos.
What the matter amounts to is that the Rodriguez family hired contractors in 2005 to build a two-story, 1,128-square-foot room on the south side of their home at 414 Wintergreen Place in San Marcos.
The contractors built the addition about four feet from the edge of the property line and the city requires a setback distance of 7 1/2 feet. Rodriguez affirms and the original plans confirm that the setback distance was 7 1/2 feet. At buildout, however, the setback was only four feet.
The San Marcos building inspector did not catch the problem when he reviewed plans for the project and inspected the site during construction, including the final.
One of the next door neighbors, Debbie Cantwell, noticed the setback was not the required distance away from her property line and, together with another neighbor, Harriet Way, paid a private surveyor to review the room addition and confirm her suspicions. She subsequently filed a complaint with the city of San Marcos, saying the addition infringes on her property.
There is no question but what Ms. Cantwell’s allegations are correct. The setback is not the 7 1/2 feet stated in the original plans. Her complaint is absolutely valid. The question is, how best to resolve it?
On November 8th, 2005, the San Marcos City Council made the decision to order Rodriguez to demolish the room addition because of non compliance. The city’s building director set a deadline of February 10th for the family to submit plans to accommodate demoliton.
Having not heard from the Rodriguez family by the deadline the city set a second deadline of April 14.
No demolition plans were filed but an attorney on behalf of the Rodriguez family sought to reach some compromise settlement, unsuccessfully.
Reaching no common ground for agreement, the Rodriguez family has considered filing a countersuit against the city. Their argument all along has been that city should have identified the problems when doing the plan checks and inspecting the site and, had they done so, the problem could have been corrected well before build out was completed, saving all parties needless expense and harrassment.
Darrell Gentry, a former San Marcos city councilmember and a consultant who served as the city's planning director in the 1980s, spoke on behalf of the Rodriguezes when they made their case in front of the Planning Commission and the City Council.
"They felt like they paid plan check and inspection fees and should have been given quality services," Gentry said. "This whole issue is a result of a series of errors."
Gentry said the city inspector should have noticed a difference between four feet and 7 1/2 feet.
The basic premise of the city’s position is that residents need to make sure their contractors follow the rules because the city won't excuse them for mistakes. Why there is a need for building inspectors if they neither find nor correct mistakes seems to beg the question.
Rick Gittings, San Marcos city manager seems to recognize the bind that the Rodriguez family is in, but he maintains the city’s position: "We gave them the full benefit of the doubt because we think they honestly thought the contractor built it the way it was supposed to be built," he said. "We appreciate their frustration with the whole outcome, and this is not something we like to have happen because it's an expensive fix regardless of who is at fault."
The city’s lawsuit suggests the city may also ask for an additional $2500 a day in fines for violating city laws, which appears to be just rubbing more salt in an already painful wound. The cost of paying for the remodel required by the city is estimated to be somewhere between $60,000 and $80,000, according to Rodriguez.
At this time the suit is scheduled to be heard in July by Superior Court Judge Thomas Nugent.
Now, to complicate matters further, another neighbor, Harriet Way, who lives next door in a home owned by her boyfriend, Gary Bryan, is also threatening a lawsuit and has filed numerous complaints with the city, with the Humane Society, and with the state. The property owned by Gary Bryan, however, is on the opposite side of the house from where the setback violation allegedly occurred. It is unclear why Ms. Way is so upset about the variance as it has immediate potential impact on Ms. Cantwell but no apparent immediate impact on Bryan and Way, aside from the fact that the Rodriguez remodeling included a window on the second floor which theoretically would afford the Rodriguez family the opportunity of peering over into the property of the Bryan house. Mrs. Way apparently bases her complaint on CC&R’s for the community.
In a very lengthy phone interview, Ms. Way complained of the setback variance, of the fact that Linda Rodriguez has a day care center in the home, of vandalism to her boyfriend’s car tires, of harrassment, of nonconformance of the Rodriguez home with community standards, of Rodriguez carrying in a new marble countertop which she thought exceeded the size in order for the house to remain in conformance, that school buses were stopping in front of her house, and that she backed out of her driveway and hit another car, which was all the fault of the day care center and people parking on the street which blocked her exit access from her own driveway, that she was not notified that the Rodriguez family planned a room addition.
She filed complaints for all of the above actions.
She and her boyfriend also alleged that Rodriguez had assaulted Mr. Bryan and scratched his face in the process. They called 911, and police authorities took statements, looked into the matter and referred it to the district attorney. The district attorney’s office did not file due to insufficient evidence. The Sergeant in charge of Rodriguez’s office also investigated and found no cause of action.
While the city attorney’s office would likely be open to a possible resolution, if one reads between the lines, no movement has been seen thus far. The city attorney’s office has stated they don’t like to file lawsuits and then only as a last resort . . . when they don’t get cooperation. They also maintain the goal is to get them to do the remodel.
Lay observers wonder why the city doesn’t simply do ‘the right thing’ and expedite a solution. If the city acknowledges it was partially to blame and accepts some of the remodel cost . . and if the contractor acknowledges part of the fault lies with him, then perhaps a deal can be put together to let Rodriguez off the hook. The city gets what it wants but pays a portion of the demolition/remodel cost, the builder, who is licensed, bonded, and insured, may well be able to absorb the balance of the cost . . . and it’s likely the insurance will pay his share of the financial burden. And Ms. Cantwell indicates she would be much happier if that were to happen. Whether Ms. Way would be happy remains open to question.
At least that’s the thinking of lay observers. Such an agreement is not without precedent.
Ed Gallo, city councilmember of Escondido, told us that Escondido had a similar case several years ago where the city had issued a building permit before full paperwork and permitting processes had been completed, and the property owner had proceeded with construction. Initially, the city attorney advised the council that the property owner was fully liable and the city, as in the San Marcos case, was protected by immunity.
"Several of us council members looked at the whole issue and, upon review of the facts, could clearly see that the city of Escondido had erred and no way should this property owner have to be liable. We advised the city attorney to back off and we picked up some or perhaps all of the tab to make corrections. We negotiated some type of settlement. It was simply the right thing to do.”
Rodriguez suggests that’s exactly what happened here in San Marcos. The building contractor may also have some liability in this matter in that the contractor had originally shown the required 7.5 feet setback in the building plans. The senior San Marcos building inspector, Leon Jeurett, signed off on the original set of plans and continually signed off throughout the construction phase, up to and including the final permit. Rodriguez also told us that Mr. Jeurett is no longer with the city, having been terminated. This was confirmed by several city officials. Whether the termination was related to this issue or a similar series of issues, he was not certain and officials would not comment further citing privacy issues. Rodriguez claims Mr. Jeurett was also involved in several other controversial issues including a recent controversial variance issue involving the Appleby’s Restaurant in San Marcos.
Bottom line: Rey and Linda Rodriguez's room addition created a property rights dispute in the Richland area last year, and the City Council has told the Rodriguez family they have to remodel the house so it conforms to San Marcos' standards.
At this point, no one is budging.
We spoke with Mayor Corky Smith:
San Marcos Mayor Corky Smith
“It’s just a violation of our city ordinance . . . the only way to be resolved is if the neighborhood came up with some type of petition and agreed to accept it. That might sway the council to let it go. I tried to talk to Darrell Gentry, to set up a meeting within the community with Rey and the neighbors in my office. At that time, there was so much animosity, we could not get a set down meeting. I thought maybe we could solve it through discussion.
Obviously, we would prefer a settlement to going to court but the neighbors would have to be agreeable. Simply granting a variance would create a precedent. That’s why staff has taken a stiff necked position on this. If we did grant a variance, it would create a problem in the future. The neighbors are so mad at Rodriguez that I think they are trying to punish him. One lady (Ms. Way) was so angry she talked ot me for about an hour on a phone. It has all the appearances of a neighborhood feud.
I agree that our people signed off on the correct plans. When the inspector inspected the foundation, there was a question and he didn’t know where the property line was. He didn’t pull out his map and ruler and check the property line. Normally they don’t check that fine.
Before signing the final they are supposed to check everything else.
I just don’t know what type of settlement could be reached. We may simply have to leave it with the court.”
Mayor Smith did confirm that the senior building inspector is no longer employed by the city.
We also spoke with Councilmember Pia Harris:
Councilmember Pia Herris
I think part of the problem was that Mr. Rodriguez was unwilling to acknowledge there was a problem in conversation with his neighbors and
that apparently developed some antagonism. Certainly, the Contractor should have been aware of infringement. I think all of us would prefer to avoid the lawsuit and resolve it via some equitable settlement. But, I don’t have any settlement offer to study, nothing to discuss with my fellow councilmembers. So, right now, what resolution might address the problem is the question.
We attempted to speak to City Counclmember Jim Desmond but he declined to discuss the issue with us other than to say he had already voted on the matter.
City councilmember Mike Preston has recused himself because he lives so close to the property being discussed. He did not vote on the issue nor did he discuss it at the council meeting.
City Councilmember Hal Martin: I only see a remedy if the neighbors agree to withdraw the complaint. Not likely. Emotions are too high.
We spoke further with Darrel Gentry, Land Use Consultant, and a friend of the Rodriguez family.
Counclimember Hal Martin
“It’s a big mess. Rey’s wife, Linda, operates a Day Care Center for children 8-14; she’s done that for a number of years. But that wasn’t what the addition was built for. Linda’s aged mom and dad, in their 80’s, had some health problems and they added the room to accommodate them.
Rey Rodriguez was not trying to pull a fast one here. He simply wanted to add some room to accommodate Linda’s folks. He did everything a homeowner is supposed to do. Normally, when you pay several thousands of dollars for a plan check you have to assume the plan checks are done professionally, from beginning to end, thoroughly. That’s what you pay the high fees for. In this case, clearly, they weren’t done properly.
The addition was built, the city inspector signed off on the occupancy permit . . . the older folks moved in, then the neighbor got involved and made a cause out of the issue, and here we are today."
Several persons familiar with this case confirmed that Harriet Way, one of the neighbors involved in the dispute, is something of a community activist and has filed numerous complaints, not only against the Rodriguez family, but on others in the neighborhood.
Following the Rodriguez consultation with Darrel Gentry he sought, on their behalf, a simple variance. He told them he couldn’t guarantee the planning commission and/or council would grant the variance but he thought there were reasonable arguments to make in support of the variance. Strong argument from the two affected neighbors persuaded both the planning commission and the council to deny the variance.
Says Gentry: “I just think it’s a big No-Win for the city. Just terrible PR. Everyone I talk to thinks that Rey Rodriguez and his family got a raw deal. What are we getting for plan checking fees? How can we assure our insurance companies that our houses are properly checked and inspected? If the elected officials in this community can’t stand up and defend a resident from a raw deal, who’s next?”
We next talked to the builder, Warren Gaul. He had the contract with Rey Rodriguez to build the room addition, however, he did not have a current contractor’s license so he arranged to work under the contractor’s license number of Norman Priest.
I had the contract to do the job but it was his license and license number I used. He did not supervise the job. I didn’t take out any liability insurance or bonding because I was working under his (Norman Priest’s) license,” said Gaul.
“The building inspector for San Marcos was on the job a number of times. He was out, to my knowledge, at least 3 times. He signed off on the final. We both measured the job; he measured it in my presence. At that time we both thought the property line was the brick structure that was out front so that’s where we measured to.
I haven’t talked to Mr. Rodriguez for some time on it. He was supposed to be trying to get some resolution. I talked to Carl Blaisdell (head of the San Marcos City Building Department) . . . he suggested the best way to resolve it was for Rey to propose an offer to the lady who was affected (Debbie Cantwell) . . . to purchase that area. It’s basically unusable property anyway. These kind of setback violations are common. Nobody normally does a survey on simple room additions . . . there was no intent on anyone’s part when this thing happened.
I even looked into a mediator service . . . have both parties sit down and negotiate. But Ms. Way was so determined to stir the pot . . . she called the cops all the time . . . everytime the sheriff’s deputies came out here they just shook their heads in disbelief, as if to say . . . ‘her again!’ The deputies told me there was no problem. She’s very good at provoking people.
One day I parked in front of her house and it irritated her. It was a public street . . . and I had a right to park there . . .but she just wouldn’t turn loose. She also made some ethnic slurs against Mr. Rodriguez and his family. I think she must have too much time on her hands; seems like she’s just looking for trouble. Up until the time we had a formal survey I thought everyone was happy. Ms. Way, has been stirring up the neighborhood all along and there is impact on her property. It’s Ms. Cantwell who has the infringement due to the setback problem . . . and she’s a lot easier to talk to than Ms. Way.”
Norman Priest pretty much confirmed the story that Mr. Gaul told:
“I had no contract on this job. I heard about this after the fact. What happened here, Warren used to be a licensed contractor. He said in order to get a job he needed a permit, in order to get a permit, he needed a license number and workman’s comp. (I’m a licensed contractor and have workman’s comp). I asked him, ‘how can you do that if you’re not a contractor yourself. He said as long he had a contractor’s license number it would work . . . and I let him use mine.”
I never had a contract for the job . . . I admit this was not a smart thing to do. It’s something I did for a friend and was just trying to help him out.
I never did any paperwork on it for liability insurance because I never had the job.
And so it seems now that all parties have been heard in this dispute. At least outside of court.
How will it best be resolved? Will the city of San Marcos grant a variance, even though it has turned it down once already? Will the city of San Marcos acknowledge their liability in this matter. Will the builder(s) acknowledge their liability? Will the Rodriguez family compensate the Cantwell family for the encroachment due to the faulty setback? Or will the whole matter wind up in the courts?
We started out playing “Let’s Pretend.” But this is not a Fairy Tale. It’s the real, hard facts of life. Sometimes happy endings are hard to come by.