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Titlow Hill Developments

Court rebuffs county's effort to extract money from lawbreaking subdivider

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Mark Creaghe bought an illegally created lot near Titlow Hill. - PHOTO BY HEIDI WALTERS
  • photo by Heidi Walters
  • Mark Creaghe bought an illegally created lot near Titlow Hill.

Mid-morning last Friday, on the second floor of the Humboldt County Courthouse, a crowd gathered in the hallway outside Courtroom 4. The hearing on the matter of restitution in the illegal land sales case -- People vs. Ken Bareilles -- was on a break. Bareilles and his wife, Linda, hung around near the doorway with a couple of their daughters, talking with Bareilles' brother and sister-in-law, Paul and Elizabeth Bareilles. A clump of Bareilles' supporters stood nearby -- including landowners who'd bought some of the illegally subdivided lots from Bareilles up on the Double B Ranch near Titlow Hill. (See "Titlow Hill Blues," Feb. 18.)

Bareilles pled guilty last year to the felony unlawful sale of three lots up on the ranch -- he sold more, by his own admission, but those sales happened too long ago to be prosecutable. Bareilles got three years probation and 500 hours of community service, with the option to seek a reduction of his crime to a misdemeanor.

Now, the county was seeking restitution from Bareilles -- about $2.2 million, which the county said it needed to study the illegal lots and try to make them consistent with the county's general plan, and to study the overall impacts of all of the land sales. There are 58 illegal lots on the ranch, either created by Bareilles or subsequent buyers. Unpermitted development has occurred on many of them; landowners were unable to get permits because the lots were illegal. Although Bareilles was convicted for just three land sales, the county says that in the process of attempting to make those three lots legal, it would have to examine the cumulative impacts -- past, present and future -- of the entire subdivision on land, water and other resources. This would mean hiring a consultant to prepare a costly environmental impact report.

"The ultimate goal is to rectify the underlying Subdivision Map Act Violation," Kirk Girard, the director of county community development services, had said on the witness stand before the morning break. "Under the California Environmental Quality Act, you're not allowed to look at projects in isolation."

During the break, Deputy County Counsel Davina Smith walked out of the courtroom, and as she passed through the small crowd she saw one of the landowners, Mark Creaghe, and asked him how he was. He said he was fine. And then she asked him if he'd removed his cabin from his land yet. (Creaghe was recently ordered by county code enforcement, which Smith oversees, to remove a small cabin he built last year on his property without a permit). Suddenly Creaghe's big voice was booming out for all nearby to hear. "This is just ridiculous!" he said.

"What's ridiculous?" Smith asked.

"This whole thing is ridiculous," Creaghe said. He muttered something about taxation without representation, and added, "I paid $10,000 in taxes for 10 years on my property, but the county says I don't have a right build on it."

Smith, her voice low and calm, said she advised Creaghe to get an attorney to help him understand what his options were for making his parcel legal, and left.

Creaghe continued to boom. "They keep talking about environmental degradation out there. Well, I have wild turkeys moving in. I've got coyotes. I've got ground squirrels. I've got gray squirrels. I've got deer, bear, mountain lion."

Back in session, the arguments continued. Attorney Kelly Walsh, representing Bareilles, said the county wasn't a direct victim in this case -- Bareilles didn't sell the land to the county; none of the owners of the three parcels had requested the county to help them make the land legal (although owners of other lots had, Girard told the court); and, furthermore, the burden of paying for environmental reports and the compliance process, in Humboldt County, is borne by the developer -- or, in this case, the current landowners. The county might pay, but it is reimbursed by the landowner. The county's attorney, Deputy D.A. Christa McKimmy, said the county lost the chance to have a public process for approving the subdivision. "Here the defendant has stolen that public voice ... and the county that represented [that voice] has been violated."

Judge Brown agreed that the public voice had been stifled. But in the end, he denied the county's claim to restitution. "It seems to the court that the direct victim of the conduct is the property owners, not the county," Brown said. He added that the D.A. was welcome to bring back before the court any landowners it could find to argue for restitution for them.

But that could prove tricky. The landowners who showed for Friday's hearing, at least, seemed to agree they were victims -- but of the county, not Bareilles.

"Ken's a friend," said Creaghe, after the hearing. "Ken was very, very upfront with us when we bought our property. He told us we wouldn't be able to get permits. I actually have to agree with the judge on that one -- the people lost their voice. But it's not worth $2.2 million."

For that matter, Creaghe said, it wasn't even a sure thing that, after an EIR and all the rest of it was completed, his and his neighbors parcels would be made legal. But the interim situation looks no better -- the comfortable rural tradition of build now without a permit, pay the fine later, seems over. Future code enforcement visits were a near certainty.

"Now I'm going to have to tear down my brand-new cabin," said Creaghe. "And almost every single one of those parcels out there has a house on it -- some have been there 20 years or so. How are they going to deal with that?"

Bareilles, in an interview after the hearing, said he tried to offer to put up money to help his land buyers make their parcels legal, but was rebuffed. He said the county needs an amnesty program to deal with the thousands of illegal parcels in the county, in addition to his own.

Kirk Girard, in an interview Tuesday, said the county has a whole range of remedies to explore, including the Board of Supervisors' pursuing a civil case. "This much development, on this large of a scale -- it will not be just left to status quo," he said.

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