Hesperia’s Overzealous Enforcement Costs $200 K

HESPERIA—The city of Hesperia, which has long courted controversy and the enmity of many of its residents because of its aggressive code enforcement tactics, recently made an ignominious retreat and has now agreed to shell out a $200,000 settlement to a family it formerly had cited and had tried to strong-arm for $129,000 in fines.
Hesperia officials had long lived by the credo “You can’t fight City Hall” in seeking to transform the 72 square mile desert town where many of the streets are unpaved into an urban setting similar to those in greater metropolitan Los Angeles. Shortly after incorporation in 1988, the charter city council hired Rancho Cucamonga deputy city manager Robert Rizzo as city manager in an effort to apply urban land use standards similar to those in the county’s more developed and affluent areas. But trying to conform the rustic desert landscape and a community where many properties were zoned for both residential and agricultural use proved problematic.
Citing its own authority as a municipal corporation, the city would obtain inspection warrants for non-government properties and buildings, for  non-business and non-employee housing, non-state housing, non-rental family dwellings, and private domiciles without affidavits, seeking evidence of public nuisances in what it defined as “administrative” i.e., code enforcement cases.  On occasion, those cited claimed these actions were inconsistent with state law and constitutional protections. Moreover, the city’s code enforcement protocol consisted of having code enforcement officers issue citations which would then be adjudicated not in court but before an individual hired by the city and deemed to be an administrative hearing officer. This constituted a biased forum, many of those cited alleged. And until relatively recently, at least, the city was employing Wayne Overstreet as what it called an administrative hearing officer to adjudicate the code enforcement citations. As early as June 2007, however, assistant city attorney Douglas Haubert acknowledged that Overstreet lacked the credentials to serve in the capacity of administrative hearing officer.  According to the California State Bar, Overstreet is not licensed to practice as an attorney. Haubert in 2007 said that the term administrative law judge that had been applied to Overstreet was inaccurate. The city, nevertheless, did not desist in using Overstreet in that capacity.
Indeed, city officials pressed on with what were often officious methods to convince residents to shed the more casual cultural aesthetics of the Old West and hew to the more rigid aesthetic standards of the late 20th and early 21st Centuries. On the theory that few, if any, of the city’s residents who were cited had the financial wherewithal to challenge the city’s policies, the city created a code enforcement citation and adjudication protocol that skirted the constitutional rights of its citizens.
For years the city’s calculation succeeded, and despite occasional challenges by residents who sensed they were being given the bureaucratic bum’s rush, few were willing to spend the $40,000 to $70,000 necessary to truly stand up against the city by filing suit and seeing the matter through to the final stages of litigation.
In January 2010, the Hesperia code enforcement division took up a case that to all appearances was indistinguishable from the thousands of others in which the municipality used its  authority, bankroll and control of the process to  overwhelm its citizens and obtain an inevitable adjudication in the city’s favor.
The division’s focus in this case was a property on Redwood Avenue owned by Esther Duran which her daughter, Janet, was using as a temporary rescue shelter for horses that would otherwise have been sent to slaughterhouses for euthanization or processing for the dog food or glue industries.
Janet Duran, an ambulance driver, in 2004 took up the cause of doomed horses, including wild mustangs run to ground by cowboys in Nevada and Arizona and ones being sold by their owners at auction, ostensibly to buyers interested in using them for horsemeat for as little as $5, $10, or $15 a head.
The Redwood property prior to city incorporation was zoned for agricultural use. The post-incorporation zoning was agricultural residential and the Durans were permitted under the city’s code to have up to six horses on the property per its acreage.
On January 13, 2010, a team of city employees that included two code enforcement officers, four armed sheriff’s department deputies in flak jackets and two animal control officers  descended on the Duran’s property. One of the code enforcement officers served Esther Duran with papers and the team then seized three horses and five dogs, one of which was a stray whose owner the Durans were seeking to locate. Both Esther and Janet were cited and slapped with a total of $129,000 in fees, which upon the city’s processing protocol were ratcheted up into liens against the property. Those liens resulted in Esther Duran’s mortgage increasing from $1,400 to $4,700 per month.
Unwilling to take the city’s action lying down, the Durans hired attorney Louis G. Fazzi, whose office is located in Upland, a city with aesthetic standards Hesperia so wishes to emulate. Fazzi brought several principles to bear which the city had in the past routinely overlooked in its enforcement efforts, including compliance with the city’s own codes, which actually allowed for the presence of up to three more horses than the Durans had on the property on January 12, 2010 and up to five dogs, as well as the right to due process. The city’s response was to seek a series of delays, which had the effect of increasing the Durans’ legal costs while the underlying issue – the return of their animals – remained unresolved.
Despite the cost, the Durans did not simply duck out of the fight. Fazzi persisted on their behalf, successfully removing the matter to federal court. Still, the city told the court the Durans were maintaining a substandard property and that the animals for that reason should not be returned to them. Fazzi maintained that the property was up to code and in compliance in all regards. In March, a court-appointed independent inspector went over the Redwood property with a fine-tooth comb, concluding the property was indeed up to code.
In April, U.S. District Court Judge John E. McDermott ruled that the city’s action against the Durans was improper and that their animals would have to be returned to them. Fazzi immediately brought a motion to have McDermott consider whether the entire process the Durans had been subjected to was unconstitutional.
While McDermott’s ruling was pending, the city offered the Durans a $200,000 settlement. The tendering of that offer, and the Durans’ acceptance of it, put the matter to rest, preventing a potentially precedent-setting ruling that would prohibit the city from continuing to employ the same tactics against other city residents. To back the city off in other code enforcement cases, those contesting the action will need to follow the same procedure, and foot the bill for and put up with the same series of delays, the Durans did.
Fazzi has suggested that other municipal entities beyond Hesperia would have had something to lose had the case gone to trial. Other cities have used draconian tactics against their residents similar to those applied by Hesperia. A ruling at trial in favor of the Durans could have put other cities up and down the state who have assessed similar fines at jeopardy.
City councilman Paul Bosacki indicated he was uncomfortable discussing the matter.
“What code enforcement was doing and how they were conducting business was not necessarily done with the blessing of the council,” Bosacki said. “I know I don’t get involved in the day-to-day inner workings of the city. That’s up to [city manager] Mike Podegracz and his people.”
Bosacki said he could not comment on the specifics that led up to the $200,000 settlement with the Durans. “I don’t know the details,” he said. “I can tell you that there has always been litigation against the city. Some of it has merit. Some of it doesn’t.”

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