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City, Chris Henry prepare for appeal showdown in Council chamber

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You’ve got to have a prelim before any big fight. Fresno’s code-enforcement appeal court is no different.

Administrative Hearing Officer Michael Flores expects to host a meeting of both sides prior to the May 24 hearing of Summerset Village owner Chris Henry’s appeal of nearly 1,500 alleged code violations.

If Flores gets his way, the meeting of City Hall and Team Henry lawyers will be this week.

“I want to know what kind of logistical needs they’ll have,” Flores told me on Friday.

Those logistics include expected number of witnesses, anticipated equipment needs and a ballpark guess as to how much time to set aside for “pro” and “con” arguments.

What kind of equipment? One or both sides might deliver PowerPoint presentations.

Flores said he’ll also invite officials from the administration of Mayor Ashley Swearengin to the meeting. That will be a key to ensuring the hearing has proper security on hand.

The hearing is slated to begin at 9 a.m. (according to the May appeal calendar at the City Clerk’s Office). Flores doesn’t want to mess around that day with the settlement of small details.

“I want to hit the ground running,” Flores said.

Code-enforcement appeals usually are relatively brief and low-key affairs. They’re held in a modest-sized conference room across the hall from the City Clerk’s Office on City Hall’s second floor.

Two city-paid hearing officers handle several dozen appeals per month. Both are veteran lawyers.

The hearing officer sits at one of three tables. A city code enforcement inspector armed with files of documents sits at another table. The appellant (or her representative) sits at the third table.

Both sides are sworn in. Testimony is recorded. The give-and-take is rather casual. Sometimes the inspector and appellant talk directly to each other. The hearing officer asks questions.

The hearing officer usually delivers a definitive decision (orally) after both sides are talked out. A written decision arrives a week or so later.

City of Fresno vs. Chris Henry isn’t your typical appeal. Flores said he expects to hold the hearing in the City Council Chamber, which can easily handle an audience of more than 100 as well as TV cameras and newspaper video cameras. The action probably will spill into May 25.

Flores said city law allows for public input. The council chamber has a public microphone with adjustable rostrum. The chamber also has a large screen to let everyone see the countdown on the three-minute limit for public speakers.

Flores said he might ask the city to have interpreters on hand.

Chris Henry in the eyes of many is the worst “slumlord” in Fresno history. But the accused in America get their day in court. Henry obviously thinks the story of the Summerset Village crisis of November 2015 is more nuanced than the media would have us believe.

Otherwise, he wouldn’t have appealed the city’s 455-page code citation.

Six thoughts on Slugfest Over Summerset:

1.) Flores as of late Friday morning said he hadn’t heard who from the City Attorney’s Office would be representing the Code Enforcement Division.

The mere fact that he expects the city team to be headed by a lawyer tells you this isn’t your average appeal hearing. You don’t find a city lawyer sitting in a corner when code enforcement nails a landlord for allowing chickens in the backyard.

2.) We do know who is representing Henry. Flores said that will be Stephanie Hamilton Borchers from the local law firm of Dowling/Aaron.

According to the firm’s website, Borchers has practiced law in Fresno for nearly 20 years. She joined Dowling/Aaron’s appellate law and litigation practice groups in 2009.

“Ms. Borchers has comprehensive knowledge of appellate law and procedure, having practiced for more than 5 years as a senior research attorney to the Presiding Justice of the Fifth District Court of Appeal,” the website states. “While working for the Fifth District Court of Appeal Ms. Borchers obtained invaluable insight into appellate advocacy and strategy from the judicial perspective.”

Borchers knows what it means to duke it out in a courtroom.

Before joining Dowling/Aaron, the website states, Borchers “served as an Assistant United States Attorney, prosecuting a broad range of civil cases as well as criminal forfeiture cases for the Eastern District of California. While representing the United States as an Assistant United States Attorney, Ms. Borchers handled all aspects of civil litigation from case origination through appeal.”

Borchers earned an undergraduate degree (rhetoric and communication) from UC Davis in 1993 and her law degree from UC Davis in 1997.

She is current a member of the Fresno County Bar Association’s Appellate Law Steering Committee.

3.) Flores took a tour of the Summerset apartment complex several weeks ago. A sizable group of city officials and interested parties accompanied him.

One of the tag-alongs was a Southern California lawyer representing Henry. I asked Flores for a name. Flores said he didn’t have the lawyer’s business card easily at hand.

Doesn’t matter. Henry clearly is lawyering up.

4.) We all know the Summerset story by now. The 220-unit apartment complex in Central Fresno, about a half-mile south of the Veterans Hospital, lost its natural gas service in mid-November 2015. PG&E shut off the gas due to leaky pipes within the compound.

Hundreds, perhaps several thousand, residents spent some two weeks without heat or hot water in their apartments. The result was a humanitarian crisis that got national notice.

The city’s response included extensive inspections of each Summerset apartment, interior and exterior, as well as the complex’s common areas.

What does a single code-enforcement complaint with 1,450 individual citations look like?

Take Unit A of the 2127 N. Angus Street units, for example.

Citation No. 1303: “The heating system to this unit is damaged and/or inoperable….”

No. 1304: “This residence does not have hot water….”

No. 1305: “There is evidence of insect (roaches, termite), vermin and/or rodent infestation….”

No. 1306: “The kitchen sink is damaged/dilapidated….”

No. 1307: The bathroom sink faucet is leaking.”

The city says each alleged violation breaks both Fresno code and state health/safety laws.

5.) Henry is facing a $200 fine for each of the 1,450 alleged code violations — $290,000.

Henry, with strong encouragement from City Hall, moved swiftly (if belatedly) to fix things. By all accounts, Summerset Village is a much different place today.

A key question facing Flores: Does Henry get a break on that $290,000 fine because he did act aggressively to fix things?

It’s not an easy issue. The typical Mom-and-Pop landlord in appeal court usually doesn’t get a break for a $200 code violation if the corrective action was taken only after numerous deadlines were missed.

The Henry/Summerset case is different. Henry moved swiftly long before the first deadline was even issued, let alone missed. But that’s only because the city didn’t know Summerset had been falling apart for months.

In other words, the Mom-and-Pop landlord is usually nailed by aggressive code enforcement action. Henry got nailed only because disaster finally came a-knocking.

6.) I’ve bugged Flores a handful of times over the past few weeks, each time seeking the “packet.” This is the stack of pertinent documents prepared for both sides and the hearing officer by the Code Enforcement Division.

Each time, the packet had yet to arrive on Flores’ desk. He said that should come as no surprise. The packet isn’t due until seven days before the hearing.

I know the city’s side of the argument. The 455-page complaint spells spells out everything. The only thing missing was photos.

I was especially curious about Henry’s point of view. Will he and his lawyers give a detailed account of what happened last fall in and around Summerset, thus alleging that the trouble isn’t the owner’s fault (at least in part)? Or will Team Henry simply fight the 1,450 citations on a procedural point, saving its big guns for an appeal of Flores’ decision to Superior Court?

No packet, no revelations from Team Henry. So, we’ll have to wait and see.

But I do think something of long-term interest will come out of the Summerset appeal hearing, something more important to the future of public policy than the stories (entirely legitimate) of tenant woe that almost certainly will emerge next week in the Council Chamber.

I’m talking about “SIGINT” – shorthand for signals intelligence.

Something mighty unusual happened at Summerset Village in the last six months of 2015. A stunning array of individuals and institutions was involved in and around the daily life (personal, economic, social, administrative, political, regulatory) of the complex.

Even without the benefit of sworn testimony, it’s clear that an apartment complex so big that it encompasses mailing addresses for three separate streets was constantly sending “signals” of disastrous dysfunction on a daily and massive scale.

These signals no doubt came in all sorts of shapes and disguises. All were missed – or, perhaps, purposely ignored to further an agenda.

Hindsight is 20-20. Chris Henry is about to feel its wrath. He’s a big fella – he volunteered to get into the landlord game.

But a lot of others deserve hindsight’s scrutiny, as well. And I’m not just talking about PG&E and City Hall.

George Hostetter
George Hostetter is The Sun’s Fresno Civic contributor – covering the City of Fresno, County of Fresno, and Fresno Council of Governments.

2 Comments

  1. A couple of observatoons. First off, is the hearing officer the same Michael Flores who used to work in the City Attorney’s office? I like Mr. Flores, but that would seem to be a conflict.

    Also, you talk about others, “mom and pops,” not getting a reduction after missing compliance deadlines, but the City issues administrative fines even without any notice to comply, such as with violations of the marijuana ordinance. From their enforcement, it would be difficult for the average citizen to clearly understand what their procedural rights are.

  2. George, that complex was known in the Fresno non profit and emergency services sectors as a disaster area back in the late 1970s. While Chris Henry should’ve acted to clean Summerset up after he bought it, the fact remains that he inherited a train wreck the City and other governmental bodies ignored for decades.

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