The owner of the Red Barn is suing county officials, alleging
the Sunday market has been unfairly targeted for code
enforcement.
Jim Johnson
The owner of the Red Barn is suing county officials, alleging the Sunday market has been unfairly targeted for code enforcement.
The suit seeks an immediate injunction against the county that would halt all enforcement action against the Red Barn until the matter can be considered by the court.
Last week, the county sent the second of two compliance orders designed to shut down the Red Barn’s operations until a long list of code violations, including an expansion of the popular market beyond the boundaries of its 33-year-old use permit, has been resolved.
Filed in Monterey County Superior Court on Thursday by Stagecoach Territory Inc., owner and operator of the Red Barn, the suit also seeks to overturn the board’s Feb. 23 decision denying the Red Barn’s appeal of an earlier Planning Commission finding that the market had exceeded the limits of the permit, issued in 1977.
It seeks damages as a result of the county’s actions, as well as court costs and attorneys’ fees.
In addition to the county Board of Supervisors, the suit names county Planning Department director Mike Novo and county Building Department director Tim McCormick as defendants.
Attorney Myron Etienne, who represents the Red Barn, said he would not comment on the merits of the suit, but said he hopes the case would be resolved as soon as possible.
“We’ll move forward through the legal channels available to us as quickly as we can,” Etienne said.
County Counsel Charles McKee did not respond to a request for comment.
According to the suit, the county violated the civil rights of longtime Red Barn owner Fran Ellingwood — including her rights to equal protection, due process and free speech — as a result of the board’s Feb. 23 decision and ongoing efforts to enforce the code violations.
It claims the county’s actions were “clearly arbitrary” and “capricious,” and sought to penalize Ellingwood and her business for speaking out against the county.
The suit argues that the Red Barn operators intended to expand outdoor market sales into a former parking lot when they applied for a permit in 1979 for a new parking area. It alleges that several county officials knew the outdoor sales would be expanded and mentioned it in various county documents and in statements, including some as recent as 2002.
The suit argues that the expanded sales area was implicitly allowed, even though it wasn’t specifically included in the permit, because it was not specifically excluded.
It was only after the Red Barn used the expanded area for 30 years, without active county enforcement and following regular inspections by various agencies, that county officials began claiming the expanded area was off limits, the suit said.
After complaints by neighbors regarding traffic congestion and safety issues in the area – a heavily traveled section of Highway 101 in northern Monterey County across from San Juan Road – the county began investigating the business and issued a violation notice in November 2008.
Planning Commission hearings followed, as well as an inspection by a county code enforcement team that resulted in the first compliance order and culminated with the supervisors’ ruling.
No due process
According to the suit, compliance with the board’s decision to hold the Red Barn to the 1977 permit boundaries is “impossible to achieve” and would “put the Red Barn out of business,” creating a “substantial economic hardship” and putting an estimated 700 vendors out of work.
Under the terms of the board’s decision, the Red Barn market would be restricted to less than half of its previous sales area, leaving room for an estimated 150 vendor booth spaces out of the usual 400.
The suit says the county’s compliance orders include “tasks that cannot be reasonably accomplished in the time given” and were issued without due process, including any pre-order hearing.
The orders require the Red Barn operators to complete, or show sufficient progress, on a number of code violations, including unpermitted construction inside the historic building, which has been closed since late last year; work done without permits on a converted dairy barn and an RV; several unpermitted structures; aging bridges in need of repairs; and required contamination cleanup.
The original deadline was Jan. 7, but county officials waited more than two months before issuing the second order. That order also required the Sunday market to be reduced to the 1977 permit boundaries by March 5, which hasn’t been accomplished.
Hearing set May 20
A hearing before the county’s code enforcement hearing officer is set for May 20, and the county is poised to ask for the Red Barn to be held accountable for all enforcement costs, as well as fines of up to $2,500 per day that the business is in violation, up to a total of $100,000.
Unless the county’s enforcement actions are stopped pending trial, the Red Barn will suffer “irreparable harm,” the suit says, and such a “sudden and abrupt” enforcement of the county’s decision is “unjust and unwarranted.”
Conversely, the suit argues that stopping the county’s enforcement actions would not harm the county because the market has been operating in the expanded area for more than 30 years, and would not establish a precedent.
