Lagunitas tea seller hopes for historic building code

08/15/2018

Facing nearly a million dollars in penalties for extensive unpermitted building, tea purveyor and longtime Lagunitas resident David Lee Hoffman has taken a new stand to defend his property. 

Attorney Peter Prows filed a motion on his behalf in Marin Superior Court this month that argues for the validity of a determination of architectural significance bestowed by the Marin County Architectural Commission.

The county had discounted the commission’s 2016 determination for the property—which Mr. Hoffman calls “The Last Resort” and built as a model for sustainable living. Meanwhile, around 1,500 of Mr. Hoffman’s friends and neighbors signed a 2017 petition in support of reconsidering the architectural designation.

In his recent motion, Mr. Prows provides a legal defense for its ongoing validity. He also argues that it provides the most practical path forward, since the designation would allow the property’s roughly 30 unpermitted structures and illegal gray and black water systems to comply with California’s historical building code rather than the state’s stricter building code, which contains thousands of pages of prescriptive technical requirements.

“The Last Resort, with all its warts and quirks, is firmly part of California’s architectural heritage,” Mr. Prows wrote in his motion. “The unique construction problems inherent in historic buildings like these should be met with practical solutions to ensure safety, rather than strict compliance with every technical provision of the building codes that apply to regular buildings.”

The historical building code is a 27-page document intended to be “performance oriented rather than prescriptive” out of recognition of “the unique construction problems inherent in historical buildings,” the code itself states. To comply, designated buildings or properties must address unsafe conditions, yet do not need to meet regular code.

Mr. Hoffman has commissioned a plan from San Anselmo architect Adam Posard that demonstrates what it would take to meet the historical code.

Although Mr. Prow’s motion, which will be considered in September, may provide a new direction for the county for bringing the Lagunitas property into compliance, Mr. Hoffman remains in hot water. 

In 2015, the county put the property under the control of a receiver tasked with bringing it into compliance after Mr. Hoffman failed to meet a 2012 court order that both levied $226,672 in fines and mandated that he demolish all illegal structures at his own expense.

And Mr. Hoffman’s fines have continued to mount. According to an account from the receiver last month, Mr. Hoffman owes roughly $821,115, including for administrative penalties, delinquent property taxes and the receiver’s fees. Mr. Hoffman has moved much of his tea business, the Phoenix Collection, to a brick-and-mortar shop in Lagunitas and, per court order, halted all construction, though he continues to live and work on the property, which features many Asian-inspired creations stemming from trips to China to buy his choice pu-erh tea. 

A hearing scheduled for Sept. 28 will address both a July motion from the receiver, attorney Paul Eric Beatty, for further court instructions and the approval of another hit of fees as well as the motion filed last month by Mr. Prows, who requested that the historic designation be considered in the receiver’s plans.

Last November, after two years spent consulting numerous federal permitting agencies and consultants, Mr. Beatty made his first report on the measures he wanted Mr. Hoffman to take to address “immediate health and safety concerns.” In addition to roping off a host of structures, he recommended Mr. Hoffman demolish a garage and a storage building because they encroached on the public road that borders the property.

But at that time, Marin Superior Court Judge Paul Haakenson largely overruled Mr. Beatty—whom he appointed to help bring the property up to code—postponing the demolition and allowing Mr. Hoffman continued access to much of his property—with the exception of his teahouse, which was roped off.

Judge Haakenson also allowed Mr. Hoffman the opportunity to provide plans and obtain the necessary permits to modify the structures so as to comply with the required setbacks. He instructed Mr. Beatty to oversee those modifications.

In a motion filed on July 19, however, Mr. Beatty reported that Mr. Hoffman had only partially met expectations. “The sum substantive response from Mr. Hoffman thus far has been a concession that structure 3 must be ‘sacrificed,’ and a statement that structure 4 should be moved. Mr. Hoffman has not, however, provided the receiver with any plans, studies or information which suggest that he can and will move structure number 4,” he wrote last month.

Mr. Beatty requested permission from the court to employ a licensed demolition contractor to demolish and remove the two structures, which he estimated will cost $25,000.

The receiver lamented that course of action, but pegged the blame on Mr. Hoffman. “To be clear, the receiver requests instructions to demolish structures 3 and 4 reluctantly, and in view of two facts. First, both structures cannot be permitted to remain in their current locations under any circumstances. Second, Mr. Hoffman has simply done nothing—at least as far as the receiver can ascertain—to develop an ameliorative plan to either move or modify the structures in question,” he wrote.

The funds Mr. Beatty requested for demolition are just a drop in his total request for $205,000. This money will pay for the debt service from the first loan issued in 2016 for his work, the implementation of a mitigation plan that involves fencing off certain parts of the property and the fees and costs of his consultants. (Mr. Beatty’s ongoing personal fees, which recently reached $70,000, are not included in his ask.)   

To meet his request, Mr. Beatty asked the court to authorize a new certificate of indebtedness. In 2016, the court authorized him to borrow $93,000 by way of an initial certificate from the lender Gohl Insurance. The second certificate, if the court approves it, will become the primary lien on the property, loaned by Gohl at an interest rate of 14 percent for a term of six months.

Can Mr. Beatty keep racking up the bills, if Mr. Hoffman continues not to pay? According to Mr. Beatty, if Mr. Hoffman does not at least pay the current $385,962 in delinquent property tax assessments, the property will be auctioned as early as next year.

At the scheduled hearing in September, Judge Haakenson will consider Mr. Beatty’s request for more funds and issue directions about the demolition.

For his part, Mr. Hoffman said the county stopped even bothering to mail him the delinquent tax bill years ago. “This bureaucratic extortion doesn’t sit well with me,” he said. “I pay my taxes every year. And so I didn’t have a building permit—do you know anyone in Marin who doesn’t have illegal stuff on their property?”

In an email to the Light, Mr. Prows explained that the historical designation should make it easier to bring the property into compliance and, “assuming the county’s position remains the same, bringing the property into compliance should hopefully relieve some of those fees.”

In 2016, John Torrey, a Lagunitas resident and advocate for the site’s preservation, partnered with Mr. Hoffman to apply for the designation from the county’s architectural commission, a group created by the Board of Supervisors in 2015 that provides a level of recognition for properties determined to be “essential to the cultural fabric of Marin.”

The application was supported by three expert analyses of the cultural significance of The Last Resort. Sim Van der Ryn, a former California state architect, lauded the “advanced ecological design” of the property, comparing it favorably to the work of Frank Lloyd Wright, “another notorious code violator.” Jo Farb Hernandez, director of SPACES, a nonprofit dedicated to the preservation of historically significant art spaces, said “there could be no better example of a site worthy of preservation, on so many levels, than Marin County’s The Last Resort Lagunitas.” And Mark Hulbert, a licensed conservation architect and cultural resources consultant, placed the property on par with the Civic Center for historical importance to Marin.               

Also included with the application was a report by an engineering firm on the property’s wastewater and stormwater system. It concluded that “the current system would pose no more than a very low risk to human health or beneficial uses.”

In April 2016, the commission unanimously voted to approve Mr. Hoffman’s application. “We enthusiastically thought David Hoffman’s house qualified. It’s a walk-through sculptural garden,” Commissioner Bruce King told the Light at the time.

Yet within days of the commission’s vote, the designation was suspended. William Kelley, a staffer with the county’s building department and a non-voting member of the architectural commission, sent an email taking the position that the receiver’s approval was necessary.                                  

Mr. Prows argues that there was no subsequent commission mention or motion relating to undoing the designation. “The non-voting ex-officio member has no authority on his own, in an email, to rescind or modify a historic-designation decision previously made by the Architectural Commission,” he wrote of Mr. Kelley.

Therefore, Mr. Prows argues, the designation is still in place.

How should the court proceed?

Mr. Posard, Mr. Hoffman’s architect, has prepared a plan to bring each of the structures into compliance with the historical building code. The plan includes making safe all unorthodox structures, including a pond and composting toilet, that would be particularly problematic under the regular code. That plan should be the basis for Mr. Beatty’s renovation of The Last Resort, Mr. Prows argues.

“A receiver is an agent and officer of the court, and is under the control and supervision of the court,” he said. “Safety, rather than strict compliance with technical rules, ought to be the focus for The Last Resort.”