Northern California Judge agrees to reconsider aspects of hedge case

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

A Northern California judge has agreed to reconsider a May 2010 ruling which stated that Due Process procedures existed for recording a notice of violation (NOV) on property that did not comport with the county code.

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.

Section 1983 requires an intentional action.  Judge Jeremy Fogel found that there was insufficient evidence that the erroneous entry was intentional.  However, the numerous letters sent to the Department in fourteen months could create an inference that the failure to correct the mistake was intentional.  As a result he granted summary judgment on the first matter, but denied it on the second matter.

Now, the Oracles are requesting that Judge Fogel reconsider his ruling that there was no intentional act to deprive them of their due process rights with regard to the first matter.  On Wednesday, Judge Fogel granted the request to reconsider the matter.

The case is Oracle v. Santa Cruz County Planning Department, No. C 09-0373.  The summary judgment opinion and the reconsideration order are below the jump.

Here is the Summary Judgment Opinion:
Oracle v. Santa Cruz County Planning Dept. MSJ
Here is the Reconsideration Order:
Oracle v. Santa Cruz County Planning Dept. MR