Save Fairytale Farm!

In 2007, the house next door came up for sale, and we planned to buy the property for Debora’s aging parents, and take down the fences to have one giant backyard. We lost the bid by $10,000 and were devastated to learn that the new owners (now former City Council member Micah Posner and his wife Akiko) were planning on building a second house in the backyard, turn the two units into condos, and sell off the front house. Our dirt is rich river soil,  and we have the last 2 single family homes on our block. We lost the house, but wanted to at least save the garden’s potential, so we proposed that they could live in the existing house, not build a second house, and we would invest in the property instead. We wrote them a letter stating our purpose:  that we wished to keep these two houses single-family homes forever. The house had sold for $675,000, and they told us in order to make it affordable for them, we would have to buy 39%, at $265,000. So we hired a lawyer and wrote a Tenancy In Common (TIC) agreement, took out a loan against our house, and sunk ourselves into enormous debt. And Fairytale Farm began!

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At first, it was wonderful to have the bare earth to enrich and grow food crops, and Debora started a series of community events to try to pay for the new $1500 mortgage and taxes that she really couldn’t afford. Though the farm-to-table dinners were delightful, and “Summertime Salons” turned into food swaps, musical nights, art in the garden, and the richest community Debora could have ever envisioned, it did not prove profitable enough to continue, and Debora’s Crohn’s disease became too severe for her to host events.

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She kept the annual garden tours, and helped establish the first public fruit orchard down the street at Riverside Gardens Park. And then she tapped into the UCSC environmental internship program, and started teaching students urban farming, food preservation techniques, and how to integrate into the Santa Cruz community.

After a few years, Debora had to start renting a room in her house to help pay for the new mortgage. She found someone to help take care of her children and only charged a third of market rate. Later, she rented to a good friend of Micah’s who helped teach the interns and take care of the garden, and was a huge part of our community, babysitting Micah’s children, supporting Debora’s failing health, at half the going rate for rent. It was hard to lose the privacy of living alone, but the help with childcare and the garden was invaluable.

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Today, Debora has taught nearly 20 interns and has hosted 100s of community members in tours, classes, and other events. The second neighborhood community orchard has been approved by Parks and Rec, and we are breaking ground at Mike Fox Skate Park with the first trees being planted in February 2017.

 

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However, eventually things began to sour. Micah and his wife wanted to make more income than they could get by renting just one of their bedrooms. So they asked us if they could build a 10 X 12 shed and turn it into an illegal ADU. (Their inside 3rd bedroom rented for $650 a month. The shed would add another $700.)  They asked to put it against the side nearest our house, and per our TIC agreement, we would get none of the rent. Regretfully, we allowed them to do it. Akiko wanted to be home with her children, and figure out a new career, and this was the only way they could afford to make that happen, they told us. And so began a series of annual renters who unfortunately had zero contribution to the garden or community, and severely impacted our quality of life.

We had to put up with  a loss of visual, sound, and mental privacy. We lost our direct pedestrian access path that we used for hauling compost and horse manure since the shed was placed at the end of the driveway. But we always thought it was a temporary situation. Little did we know that allowing Micah to do this for 7 years would pave the way to us potentially losing everything.

In January of 2016, Micah got caught. He was red-tagged, told to legalize the structure, and then censured on City Council for knowingly renting an illegal ADU. He also was found to have falsified his 700 forms, which public servants are required to post in order to be transparent about their income as it may reveal conflicts of interest and effect their voting record. The city attorney had to go back over every vote Micah had participated in that involved ADU’s, but luckily for Micah and the City Council, our co-owned property is zoned medium density residential, and not low density where the ADU laws had been voted upon. (Medium density residential occupants are not allowed to have ADU’s – we must build multiple full units, i.e. duplexes, triplexes, etc.) So Micah narrowly got off on a technicality, without the Council having to go back and re-vote on a number of issues. The Council also did not scrutinize his 700 forms. Not only did he fail to include the income from this renter, he also “left out” the income from his inside renter for all 4 years on Council, the assets and income from the house he bought next door to him on the other side for a year, and his assets and income from his business, Santa Cruz Pedicab. He fixed this all when he was caught, but other than being censured, there was no consequence to these actions, although though the forms say “under penalty of perjury” if they were falsified.

Many people felt that he should have recused himself when voting on these issues. David Green Baskin from the Santa Cruz Water Commission was concerned about the perjury on the 700 forms. He wrote, “So when the revelations of Micah’s deceit were made public, the part that got me was that his conduct, both in having the illegal rental, and especially in falsifying the Form 700, reflected a level of dishonesty that is foundational to his public service. What he took from me, and from all of us, was trust.” Central Water District President John Benich asked Posner to “stand aside” from the groundwater agency because he was “not honorable” adding that “an agency that may ask the public to pay fees should not be led by someone who did not pay what was required of him.” Many others asked for him to resign. Instead, he was censured, and that was that. Or so we thought.

Because his political career was now in jeopardy, Micah told us he decided to build a legal studio addition to show everyone he had turned over a new leaf. (He and his wife also wanted to get their renter out of their house, and into the backyard where it would impact us instead by being much closer to our house and garden.) Even though he decided at the end of summer not to run again for Council, his dogged determination to build whatever he wanted continued.

Trouble for him is, our TIC agreement requires our approval for any new additions (alterations beyond the footprint of the house.)  And the whole reason we bought this property was to keep it from becoming a multi-unit property, and to preserve the garden. Although the new unit would not pave over the garden space, having lived next to Micah and his family’s illegal renters for 7 years (and then the blessed respite of the months after the red tag), Debora and her family were acutely aware of what it was like living next to a duplex. Almost every year, there was new rental turnover in both the inside bedroom, and the outdoor shed, with all the friends, lovers, and added density a second unit brings. No one was ever a friend of Micah’s family, except the last renter who was only there for a few weeks before the red tag. No one ever participated in Fairytale Farm events, or contributed at all to the community, so it was a constant burden. So Debora said no to more units, and this is where the community peace was shattered.

Micah didn’t seem to like being told no. So he began a weekly campaign, coming over as often as possible, to discuss the placement of the windows, to argue the merits of the unit, to insist that he had the right to do what he wanted. Unfortunately, Debora had just had emergency surgery when her 5 year old colostomy fistulized and abscessed into her abdomen, and she had to go to UCSF and get a new stoma cut. Post surgery, she had constant complications and severe pain, but Micah persisted, finally allowing a 3 week break after she broke down one day, pleading for respite. After that 3 week hiatus, Micah and his wife required weekly meetings on the subject, and when Debora kept saying no, they forced Debora and her husband to go to professional mediation, and threatened to buy us out. Debora finally had to get a temporary restraining order, since Micah would not leave her alone, and would not stop coming on to her property even when asked over a dozen times, often in writing, but the permanent restraining order was denied.

Since Micah inherited a large sum of money when his mom died (rendering him able to pay off his entire mortgage and buy the house next door to him), he is in a good financial position. Since Debora is chronically ill and unable to work long-term (and her daughter has just begun college so the family is financially strapped), Micah could succeed by dragging out the legal proceedings. Even though Debora tried to communicate that the garden is literally her lifeline through multiple crises over the years, and is her career, a public treasure, and her sanctuary, Micah’s need to build whatever he wants on what he perceives as “his house” trumps her health and Fairytale Farm’s community benefit.

And then, in July of 2016, Debora discovered that the attached patio cover that Micah built years ago was never permitted. So the entire time Micah was being censured on City Council, he knowingly had another illegal structure. Debora even overheard him laughing about how lucky he was the inspector didn’t look up when he was being red-tagged! Why he chose to hide this while being censured is troubling. Debora asked that Micah get it legalized as it represented a legal liability to all co-owners. Micah refused at first (because he would have to remove part of this patio cover to build his duplex, and he didn’t want to pay for a permit for something that he wanted to take down half of.) But Debora was insistent, since this affected our liability, so 3 weeks later, after being warned we would have to issue a legal notice to correct the violation of the TIC agreement, Micah finally began the process of getting the patio cover permitted. He told Debora it would be permitted in 2 weeks, and no inspection was required, which was false. But the City gives 6 months for a person to perform the work, so he put it off,  finally submitting a design permit for his duplex instead, which the City accepted in November. Debora later found out Micah’s architecture plans for the patio cover were not followed; he built the patio cover himself, and built it too close to the neighbor’s property, so she asked Planning to force Micah to alter it.

Debora also contacted the lawyer who wrote the TIC agreement. Debora asked her if Micah was allowed to build as many units as he liked without our consent. The lawyer said it was clear that the TIC agreement didn’t allow for additional units, and she had notes that said she wrote the TIC agreement for a single family home, which is why she didn’t add language about building additional units. There is only a “discretionary work” clause that doesn’t require a licensed contractor, and only says “aesthetic” permission is required by the co-owners. But the lawyer couldn’t explain this to Micah until he contacted her himself, or agreed to her writing an explanation to him, since she represented both parties. Micah refused. Instead, he used another lawyer’s opinion of the contract; that if you read it at face value, there’s a chance he could build 5 units under “discretionary work” and the we as co-owners get nothing. Both parties are going to arbitration over this soon, but Micah still refuses to get the notes or advice from the author of our TIC agreement.

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When Debora’s oldest daughter received no financial aid for college due to us having an “investment property” that unfortunately brings no rental income, Debora tried renting out our third bedroom on AirBnB for the summer months, with Debora’s daughter helping to greet the guests and clean the room. But it was a huge inconvenience to share the garden with strangers during the active farming months. When Debora started investigating the old permits of both houses, she discovered her back bedroom was built in 1975 as a “family room” and the second kitchen in her house had never been permitted. So she applied for a permit for removing the kitchen, and making the family room an official bedroom, so she would be in full compliance of all codes on her own property.

Debora and her husband Karsten issued several legal notices when Micah did not permit the patio cover, since he had a zip-line, swings, and climbing structure made of an old futon frame hanging over concrete with children playing on it, and refused to take it down. Since we are on the deed, any lawsuit would affect us as well, but Micah didn’t seem to think it mattered. All parties mediated on this but there was no resolution. At that point, the TIC agreement says both parties go to arbitration, and the we tried to get a TIC expert to arbitrate. Unfortunately, TICs are very uncommon in Santa Cruz, so we found an expert in San Francisco. Micah and Akiko rejected that, since they claimed with young kids they were unable to make it to SF. We made a second date in December, but Micah and Akiko said they couldn’t make that date either, because they were going to Baja for three weeks vacation. So now the date has been pushed (hopefully) to February.

Meanwhile, on the day Micah left for Baja he posted a public notice of a Zoning Administrator hearing. He had submitted plans for the duplex to the City in November, and never told the us. Now it’s going to a public zoning hearing for approval on January 18th at 10:00 am. We went down to the Planning Department to tell them we are co-owners and do not give permission for this unit, but the Planning Department said they approved the design permit anyway, and Mike Ferry, the planner who approved this project, said even knowing the co-owners were going to arbitration over this, he would not put off the zoning meeting, and we had no rights as co-owners to stop this process. Zoning is expected to approve this, regardless of public comment or our lack of consent.

So here is where it stands. The City does not care that the co-owners are arbitrating over this duplex. They are okay with Micah submitting plans to “permit a new patio cover” when he built it years ago and submitted the plans in August. Micah refuses to get the TIC agreement author’s advice, perhaps because he thinks she may deny his rights to the project. We have spent so much money on legal fees that we no longer can run Fairytale Farm. The garden will have to go fallow while Debora goes back to work for years to pay off the money spent, which means losing her disability payments, even though she is no longer in remission since the surgery in April and has chronic pain. No longer will UCSC interns get to learn from this location, no longer will Lower Ocean get her considerable time and energy to donate to community projects.

Micah doesn’t seem to care. He told a friend he wanted to build this duplex so he can “maintain his lifestyle” such as going on vacation 2 months a year and not having to work, instead living off his his wife, who has decided to go back to school to become a high school teacher, and his rentals. Micah also owns an income property at 734 Riverside, the house next door to him on the other side, which has an illegal and unsafe attic space in the 2 bedroom house. Does he know his renter sleeps in this room, since there are 3 people living in a 2 bedroom house? Or can claim he doesn’t know what his renters do, since it says in the lease they can’t sleep in the attic room, allowing him to look the other way?

Micah made over $60,000 from his illegal ADU and we got none of the profit but all of the impact. We will get none of the rent of this duplex. As we never plan to sell Fairytale Farm, the increased value doesn’t matter. Instead, we will suffer from higher density forever. Did Micah defraud us into thinking we were buying this property with him to keep it a single family home, knowing all along that he would eventually build? Or did he change his mind and doesn’t care what our original intent was for making such a massive investment with no financial return? He knew his harassment was affecting Debora’s health, and didn’t stop, even when she had to get a restraining order. Debora’s Crohn’s disease of 30 years will continue to deteriorate. She will eventually be on TPN and may require a wheelchair, which is why she bought this property 15 years ago near downtown – since she no longer can drive over an hour due to chronic mineral depletion, and she knew this was a place to grow old. Micah didn’t tell the Planning Department when he submitted his duplex plans that the co-owners did not approve. And he will not do the ethical thing – calling our lawyer who wrote the TIC agreement, for clarity and to validate the conversation Debora had with her, that “discretionary work” is for minor alterations, not building added units.

Micah told us wants to do all the building himself and pay himself for it. He will probably make it look as if he has a licensed contractor (since that is required by California law for a project of this size, when not all owners live in the home), but he has already told us that he intends to do as much of the building himself as possible. So the the house we invested in may not be built not up to code, or he may show us architectural plans, as he did with the patio cover, then build it differently and hide it from the inspectors. He has proven that he will lie to whoever he wants to accomplish his agenda. Even when Karsten tried to do his twice annual inspection allowed in our TIC agreement with a licensed contractor, Micah blocked the contractor stating the TIC agreement only allows just the co-owners (neither of us are contractors) to inspect the house. He also asked the us not to go down to the Planning department to check on him, which we refused and was how we learned of further deception and liability risk to us.

Friends and neighbors have started to write in to Eric Marlatt, the Zoning Administrator, to protest the building of this unit. Micah and Akiko will eventually be forced to arbitration. The arbitrator will either interpret “discretionary work” as added units or not. We may win or lose, but either way, we will be paying the debt off for this decision, and Micah’s obfuscation, for years. And here is where we stand.

Please help us get some justice. Help Fairytale Farm by signing this petition.

And write to Eric Marlett at: emarlatt@cityofsantacruz.com

 

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Help Micah understand that the garden is a beautiful contribution to the Santa Cruz neighborhood and community that is more important than his building additional income units. That there is more value in 100s and potentially 1000s of people learning sustainable living and urban farming through Fairytale Farm. That hundreds of thousands of bees, butterflies, birds, and pollinators depend on this farm for life. That UCSC students get to learn and teach to others the importance of seed saving, land stewardship, and urban planning. That beauty, and soil, and community can be more important than remedying one’s dishonesty or political reputation, or to continue one’s lifestyle of not working. We want to save this garden for the future. Please help us in sharing this story.

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With love  – from the Fairies at Fairytale Farm