For a house in east Santa Fe, it’s definitely not easy being green.
Earlier this year, the color of the stucco on a home in the St. John’s College area literally became a federal case, in the form of a civil rights complaint. That complaint was dropped, but the legal dispute between homeowner Jennifer Day and city government is still ongoing, in state court.
Day is appealing a City Council decision denying her an exception to city code that says the color of house stucco in the Day’s upscale eastside neighborhood must be “predominantly brown, tan or local earth tones.”
The color Day and her husband Jimmy applied to their house on Camino de Cruz Blanca is described as “forest green.” According to her court complaint, it’s not much different than colors used on other homes in the area and is hardly visible anyway, partially hidden by juniper and piñon trees in the foothills of the Sangre de Cristo Mountains.
The case went back to state court last month because Jennifer Day dropped the federal civil rights complaint against the city for violation of equal protection under the law. “All I’ll say is that claim was abandoned,” said her attorney, Mark Basham, adding that he generally doesn’t talk about pending cases.
No hearing dates have been set on the remaining appeal case in Santa Fe District Court.
“The city has filed a response, and we will reply and make a request for oral arguments,” Basham said.
City records show that the Day house is a single-family home with an attached garage built in “a simplified Santa Fe style” in 1991. The Days bought the home in 2014 and it is one of three they own in the area.
But, not long after buying it, the couple decided to re-stucco after noticing stucco “sliding off the housing in several areas” and out of concern the summer rains would cause damage.
They also decided to build a 233-square-foot portal and did so without obtaining a building permit from the city.
According to city historic planner David Rasch, a city inspector on other business in the neighborhood was alerted to the violation by the construction noise a year ago and took note. The Days were issued a stop-work order, which also noted the “illegal green stucco” had been applied to the home.
The Days then applied for retroactive approval and in meetings in December and January, the city Historic Districts Review Board granted the Days an exception for the portal, but not the green stucco, despite Rasch’s ambivalence about enforcing brown in this case.
“I think I am not caring too much about this one because (the home) is not right on the street frontage,” he told the review board, according to minutes. “What you can see from the street frontage is so minor.” The official staff recommendation was to allow an exception for the green stucco, while disagreeing with some of the Days’ statements about the situation. Discussion at the meeting indicates that other green houses in area are in violation of the color code.
‘Harmonizing’ with landscape
During Day’s appeal hearing before the City Council in February, Rasch explained why laws in Santa Fe are designed to make the color of homes in historic districts uniform.
“It goes back to traditional architecture,” he said. “The reason earth-tone stucco is required to Santa Fe Style buildings is, if you think about traditional structures built with adobe bricks and mud plaster from the site, it harmonizes with the landscape by using the soil at which the building is built. So that earth-tone stucco harkens back to the mud plaster that buildings had.”
The Days’ case came down to two issues: whether the green they chose was a permitted “earth-tone color” and whether the home is visible to the public. If it were deemed not sufficiently visible, the Days would have grounds to apply for an exception for green stucco.
Though the Days’ house is set back from the street, the city’s official stance is that it is still visible from Camino de Cruz Blanca, Wilderness Gate, the road through St. John’s College, the parking area for the Atalaya hiking trail, which is also on St. John’s College property, and from the trail itself.
Design standards are triggered whenever buildings in the area are in “public view from any public street, way or other public place,” according to city regulations. A “public place” is defined as an area to which the public has “legal access.”
Attorney Karl Sommer, who represented Day before the City Council, argued that private St. John’s isn’t a public place, although city residents and even tourists do make extensive use of the trail parking lot and there are many public events on campus. The city attorney’s office argued that St. John’s roadway is accessible to the public and so is the Atalaya Trail that runs uphill from the college. But Sommer countered that those who come to St. John’s don’t have legal access. “What they have is permission,” he said, which could be taken back if the campus were ever sold.
Sommer also said that the city’s applicable ordinance addresses two types of regulations: one section covering “style” and another addressing “preservation.”
The Days’ 1991 home is in what’s called the Historic Review Historic District, which dates from the 1980s and which covers an area that is actually relatively modern by Santa Fe standards, roughly centered around 1960s-era St. John’s. The city’s historic core is in the separate Downtown and Eastside Historic District, which stretches from the Plaza east to the upper reaches of Canyon and Cerro Gordo roads. Sommer noted for the council that “there was nothing up there” – in the neighborhood of the Day house – while he was growing up.
In the Historic Review Historic District, design is the issue, not preservation of historic structures, Sommer said.
Sommer also said that the city previously approved an exception for green stucco on Garcia Street in the city’s actual historic core. But the city’s response to Day’s suit says that particular stucco was a “muted color that is more grey than green.”
“The long and the short of it is this property is not visible from a public way and these regulations don’t apply,” Sommer told the council. “St. John’s is not a public way and it is not a logical reading of your ordinance to apply it that way.”
The appeal hearing allowed for public comment and a half dozen people urged the council to deny the appeal. Three were members of the Old Santa Fe Association, a group that works to preserve and maintain historic structures and traditions.
Part of their argument was that the city had established laws, and set up a Historic Preservation Division and review board to regulate them, for a reason. “This is your board,” John Penn LaFarge, the association’s president, told the council. “This is your town and these things need to be upheld.”
Stefanie Beninato, a frequent speaker at council meetings, also spoke against the Day appeal on the grounds that green isn’t “earthen.”
“As a professional historian who has worked in this field of preservation for 35 years, earthen is historic,” she said. “You use the same dirt to make the stucco. It is the color of the earth. You do not find green in the stucco.”
Day argued in a court filing that she suffered hardship resulting in “unwarranted expense and disturbance” because they had to do something quickly to protect their home from the monsoon rains. The color was chosen because it is a similar shade of green as homes in nearby Wilderness Gate, and blended into the landscape and trees.
“We have taken our cues from nature and surrounding homes when repairing the old stucco on this home,” the Days wrote in a letter to the city. “We are very pleased with the overall aesthetic of our family compound and we are certain that it is a compliment (sic) to the historic nature of Santa Fe.”
The city counters that any hardship the Days incurred was self-inflicted.
Assistant City Attorney Theresa Gheen wrote in a memo to the City Council that the Days should have known better. Because they own three homes in historic districts and previously owned one on the same street, “it is reasonable to infer that the Applicants knew about historic district requirements, or should have known.” A city court response says the Days also previously applied for and received approval from the city Historic Preservation Division for home alterations.
Councilors agreed that, had the Days applied for a building permit for their portal or contacted the city about green-stuccoing their home beforehand, the dispute never would have happened. “It’s a huge amount of time for a lot of people over a house whose owner didn’t bother to go and get a permit,” Councilor Signe Lindell said during a long City Council discussion of the issue. “And that’s really, to me, why we’re here.”
Councilor Chris Rivera concurred. “You know, personally, I really don’t care about the color of your house, but I do care about the code,” he told the Days. “… I think had the applicant gone through the process of getting a permit that we may be here, but it might be under different circumstances, and potentially not here at all.”
Jennifer Day’s civil rights complaint seeking damages called the councilors and members of the H-Board “untrained non-professionals” who didn’t accept the staff recommendation, and accused the city of “malicious, reckless, wanton, oppressive and/or fraudulent behavior.”
The formal findings of fact approved by the City Council after rejecting the appeal by unanimous vote states that allowing the home to remain green would “damage the character of the historic district” because it contrasts with permitted colors.
Also, allowing green stucco “would not strengthen the unique heterogeneous character of the City,” the council concluded – in its statement enforcing a code that ironically sets the anti-heterogeneous requirement that houses in many areas all be pretty much the same color.