Northern California Judge Reverses self on hedge case

The hedge at the center of the dispute.  Photo Courtesy
of Google Maps.

Northern California Judge Jeremy Fogel has reconsidered a May 2010 ruling, now finding that evidence exists to show that individuals in the Santa Cruz Planning Department violated Elan and Reverend Oracle's Due Process Rights by recording a notice of violation (NOV) on property stating it did not comport with the county code.

This blog has previously discussed this case at length.

According to court documents, Elan and Reverend Oracle wanted to build two circle driveways and a black chain link fence on their property. In December 2005, they filed for permit to do that.  While the Santa Cruz County Planning Department considered the permit, Richard Zscheile complained to the Department that the hedge on the property was too high and was causing a sight hazard for people driving around the curve shown to the right.

The department investigated the hedge several times, apparently with none of the inspectors being aware of each others work and found that the hedge did not produce a sight hazard though it was higher than the county allowed.  On February 7, 2007, a site planner then put a red-flag "Notice of Violation" (NOV) against the property, after being ordered by a supervisor to do so, and despite the planner's belief that the flag was unwarranted.  The department then sent the Oracles a letter telling them that the flag would be permanent unless they took action to remedy the problem.

The Oracles then filed a protest and entered into negotiations with the commission to remove the NOV and get the permit approved.  On June 7, 2007 they met with Ken Hart, a department supervisor who assured them that if they dropped the protest in favor of the renewed permit application, he would not make the NOV permanent.  Nonetheless, on August 28, 2007 a Code Enforcement Officer recorded the tag making it permanent.  Hart admits that this was in error, and despite 14 months of letters notifying his office of the error he refused to correct it.

As a result of this, the Oracles were unable to sell their property for fourteen months, during which the property depreciated $1M in value due to market conditions.  They sued under 42 U.S.C. Section 1983 for the County and Hart in particular depriving them of property without due process of law for both the erroneous entry of the NOV and the refusal to correct the problem for fourteen months.

Judge Fogel explained that "arbitrary administration of the local regulations" amounts to a violation of the Due Process Clause of the 14th Amendment and is actionable under 42 U.S.C. Section 1983.  He considered court documents which indicated that Deputy City Planner Alice Daly considered the appeal of the Oracle's building permit by using the recommendations of traffic engineer Ron Marquez.  However, Marquez recommended to allow the permit and Daly denied it without providing any reason.  Judge Fogel now finds that the absence of any reason given for the government action raises the inference that it is arbitrary - and the Oracles Due Process and Equal Protection claims should survive summary judgment.

The next issue the Court addressed was whether Mr. Hart's failure to tell anyone about the incident was sufficient to raise an inference that he intended to deprive the Oracles of their property.   Previously, Judge Fogel ruled that this was merely negligent conduct and was not actionable.  Now, the Court explained:

In Grubbs, a prison employee sought to hold a state official liable for an injury the employee suffered at the hands of an inmate. The Ninth Circuit concluded that to succeed on a § 1983 claim, the employee needed to show that the state official "participated in creating a dangerous condition, and acted with deliberate indifference to the known or obvious danger in subjecting the plaintiff to it." Grubbs, 92 F.3d at 900. The Supreme Court has noted that in the context of deliberate indifference, "it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 842 (1994).
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Based upon the present record, the evidence supports an inference that Hart knew that the NOV would be recorded in accordance with the County’s normal procedures, and there is no evidence that Hart’s failure to act was unintentional.

This is a noteworthy expansion of Section 1983 liability in the Northern District of California.  Previously, Courts had limited liability for negligent conduct or where there was a meaningful remedy in the courts.  Now, a government official's failure to act which he knows will permit an injury to occur can be the subject of an Enforcement Act action.

The Case is Oracle v. Santa Cruz Planning Department No. C 09-0373 and the opinion is below the jump.


Oracle v. Santa Cruz Planning Dept MFR