A former developer fined more than $45,000 by the City of Gilroy stemming from an out-of-code barbed wire fence he built after suffering a brutal beating at his home in 2008 will only pay a fraction of that because the city misread its own municipal code and incorrectly charged him for a large portion of attorney fees.
Now the city may be left two options: Let the matter go and work out a deal with homeowner Chris Coté over the remaining $2,300 owed, or sue Coté for the fees in a separate case, which could mean exhausting staff hours and ringing up legal fees.
“Well, surprises are for birthdays. And this is not a pleasant surprise,” City Councilman Perry Woodward said after hearing the city couldn’t recover the attorney fees – roughly $41,000 – which it planned to do through a lien on Coté’s property. “It’s embarrassing. The city attorney should know better. And it also puts into question a bunch of other similar fees that the city has charged. And I think the city attorney has some explaining to do.”
The city cited Coté, a former Gilroy resident who now lives in Texas, for building the fence at his 1515 Welburn Ave. home in March 2009. Coté, who still owns the home, says he built the fence after three masked men entered his home in June 2008 and nearly beat him to death with hammers and 2-by-4s. He was given 60 days to pay a $200 fine because the fence did not meet city standards. But instead of paying the fine Coté filed multiple appeals, including in the Sixth Circuit Court of Appeals.
The $200 fine has since ballooned. On top of $380 in late fees and almost $4,000 in administrative costs, the city billed Coté for more than $41,000 for legal costs from the recurring appeals process.
The city has considered placing a lien on Coté’s property due to lack of payment, but the City Council has delayed voting on that matter several times, most recently to review attorneys fees associated with the case. It was then that officials and City Attorney Linda Callon discovered the city would not be able to recover the bulk of the legal fees as planned.
Callon says “there was some belief” the city would be able to recover the fees, but after the Council’s Dec. 5 meeting, she learned otherwise.
“When we completed our research we concluded we could not (recover the fees),” Callon said.
She added, “We said, ‘Wait we better look at this.’ We wanted to get it right.”
In Coté’s case, the city is allowed, by its own municipal code, to recover attorneys fees for the code enforcement itself and a related hearing, said Kristi Abrams, the city’s community development director. There’s no word yet as to whether the city plans to change the code.
Following the initial hearing, any attorney fees incurred during an appeals process can only be recovered through separate civil action based solely on recovering those attorney’s fees, according to a city staff report authored by Abrams.
“While a plain read of the City Municipal Code appears to imply the ability to collect the cost of attorney fees in code enforcement actions as costs of collections, it recently came to the city’s attention that there is a distinction between attorney fees necessary for enforcement activities up to and including the administrative hearing and attorney costs associated with an appeal of the administrative hearing officer’s decision,” Abrams wrote in an email Thursday.
City Attorney Callon said she wasn’t sure if the city planned to sue Coté for the remainder of the fees.
Council members’ reactions differed when they heard the news the city wouldn’t be able to collect the fees.
“That doesn’t surprise me,” Councilman Dion Bracco said. “When I saw the bill, I thought it was outrageous they’d run up that bill on a fence.”
Bracco said he’ll have several questions to ask city staff during the Council’s next meeting on Monday.
“I think my biggest concern, especially on this, is I’d like to know how we racked up $45,000 in attorneys fees,” Bracco said. “I’m looking forward to the conversation on this.”
Councilman Bob Dillon called the news “kind of a shame” and said he would spark a discussion on the dais as to whether to sue Coté for the fees.
“I’m disappointed. I would like a fuller explanation than what’s in the staff report,” Dillon said.
When asked if he was concerned why it took so long for staff to realize they couldn’t recover the fees, Dillon responded, “It’s one of the few questions I’ll be asking.”
Councilman Woodward called the timeline “troubling.”
“It makes me wonder if in the past we have collected these very same fees. And if we owe refunds,” Woodward said.
Councilman Peter Lereo-Muñoz said Thursday he hadn’t read the staff report, but allowed, “That comes as a complete shock to me.” Cat Tucker, however, said she was happy to hear Coté, for now, wouldn’t have to pay the excessive attorney fees.
“I agree with that. The appeals process is the right of all citizens,” Tucker said. “As a citizen, to have to pay outrageous fees prevents anyone form challenging government, and that’s not right.”
She called the situation “a little bit ridiculous.”