Belvedere upholds $300,000 fine after fiery hearing on construction delays
- Tyler Callister
- 24 minutes ago
- 9 min read
The Belvedere City Council upheld a $300,000 construction time-limit penalty against residents David and Julie Flaherty after their attorney accused city staff of making “false and fraudulent” statements and warned the city’s constitutional defense could backfire in the courts.
The council voted 4-0 to deny the appeal by the 339 Golden Gate Ave. homeowners in a four-hour hearing Dec. 3. Councilmember Peter Mark, who chaired the Planning Commission during a 2020 dispute over two unapproved olive trees that became the focal point of the case, has recused himself from related council hearings and was absent.
The decision came six months after Marin Superior Court Judge Andrew E. Sweet ruled the council’s 2022 penalty decision lacked adequate factual findings and ordered a new hearing. Sweet retained jurisdiction, meaning the case will return to his court for review of the excessive-fines claim and other constitutional issues.
The $300,000 penalty — the maximum allowed under city rules — was imposed after the owners exceeded the 18-month construction time limit despite being granted 244 days of relief. The project took more than 4½ years from the November 2017 permit to the March 21, 2022, planning department final sign-off. The maximum penalty was reached Nov. 23, 2020 — nine days before the building department’s final approval and 16 months before the planning department’s final approval.
‘False and fraudulent’
Attorney John O’Connor launched a dramatic attack on city staff’s integrity, demanding the council examine the administrative record.
The disputed paragraph in the staff report stated that after the building department gave final approval of the project Dec. 2, 2020, continued work included “removal of unapproved lighting, planting of trees, bushes and other plants, installation of the irrigation system, placement of ground cover and the completion of hardscape elements such as walkways, patios, railings and other exterior decorative elements.”
“This is false and fraudulent,” O’Connor said. “I did not make that accusation lightly. I’m an officer of the court. I used to be a federal prosecutor. This is false.”
O’Connor argued the specific items listed have no documentation after March 2020, just as the COVID-19 pandemic began and when he said the irrigation system was completed March 20.
He had David Flaherty testify under oath that no work described in that paragraph occurred after March 20, 2020.
City Attorney Andrew Shen defended staff’s integrity, saying, “No one here is acting out of any ulterior motive and is unconcerned with anything other than the facts.”
Staff pointed to a May 2, 2020, email showing corrections needed for retaining walls and walking surfaces, inspection records from May 26, 2020, and a February 2021 permit for a metal trellis and guardrail work.
Constitutional warnings
O’Connor challenged the city’s constitutional defense, warning Shen’s legal interpretation could prove costly on appeal.
Shen argued a fine violates the Eighth Amendment only if it meets both of two conditions — being disproportionate to the offense and beyond the defendant’s ability to pay. O’Connor countered that legal history and multiple courts have held that either condition alone can invalidate a fine, meaning a disproportionate fine can be struck down even if the defendant is wealthy enough to afford it.
“The city attorney is taking one side of an unsettled debate, not stating settled law,” O’Connor said.
The Supreme Court declined to resolve the question in its 1998 U.S. v. Bajakajian decision, leaving lower courts divided.
O’Connor warned that if an appellate court rules that disproportionality alone can invalidate a fine, the city could lose even if the Flahertys are wealthy.
He cited the Supreme Court’s 2019 Timbs v. Indiana decision, which struck down a $42,000 vehicle forfeiture for a drug offense even though the defendant could afford it.
“If this $300,000 fine stays, if we have to appeal this to the Supreme Court, we’re going to do it,” O’Connor said. “I’d have to turn in my bar license if I didn’t do this.”
Several times O’Connor pounded the podium, saying the fine violates basic fairness principles and calling the affair “Kafkaesque.”
In his closing argument, O’Connor said the fine “shocks the conscience.”
“It is a terrible thing we’re doing here,” he said. “We’re supposed to be neighbors, friends, help people out, help the town.”
Wrong remedy, lawyer argues
O’Connor argued the city used the wrong enforcement tool for two olive trees that became the project’s central dispute.
He said former Planning Director Irene Borba and then-City Attorney Emily Longfellow had identified other enforcement options including administrative citations or code-enforcement actions that could have resulted in fines up to $100,000. Instead, the city kept the planning file open and continued assessing construction time-limit penalties even though no construction was occurring.
The trees — planted in 48-inch boxes instead of the approved 36-inch boxes — were ordered removed by the Planning Commission in August 2020. The Flahertys refused, arguing removal would require a crane and overhead power lines made that dangerous. The trees were eventually allowed to remain after the Flahertys granted the city an underground utility easement in October 2021.
O’Connor said that even if the trees were subject to fines, they went in three days late and should have drawn just $1,800 in penalties at $600 per day.
“The real issue before us today is: Are you going to fine Mr. Flaherty for contempt of Mr. Mark, for not removing the trees?” O’Connor said.
The city’s case
Shen argued the penalty was justified and does not violate constitutional protections.
He said the fine wasn’t excessive because Flaherty is culpable for missing the deadline, the ordinance protects the city from construction impacts, other cities impose comparable penalties and the Flahertys can pay, as the fine is less than 3% of the property’s value.
The property was purchased in 2015 for $7.9 million and is currently estimated to be worth between $10 million and $15.7 million.
Shen rejected O’Connor’s argument that the project qualified for an 18-month pandemic extension under Assembly Bill 1561, saying it did not qualify because it was a single-family remodel that added no housing units and the permit had expired before the statute’s March 4, 2020, operative date.
Shen explained that under city policy, a project isn’t considered complete until the planning department issues its final approval.
“This provides a clear bright line for all parties involved,” he said.
Council upholds penalty
Mayor Jane Cooper rejected O’Connor’s constitutional argument and called his remarks “offensive.”
“Belvedere’s (construction timeline) is not arbitrary, nor does it apply artificial or capricious deadlines,” she said. “It’s an ordinance in the city’s municipal code. … We were elected to support our codes — and that’s what our job is.”
Councilmember Pat Carapiet said councilmembers took an oath to uphold local laws, including the construction time-limit ordinance.
Vice Mayor Sally Wilkinson said there was little evidence the Flahertys had completed work by the deadline.
“Our bright line is our planning department final,” Wilkinson said. “But as Pat has mentioned, Mr. Flaherty blew through the $300,000 ceiling even before the building department final.”
Councilmember Kevin Burke said much of O’Connor’s arguments weren’t relevant because the maximum penalty had been reached before the olive-tree dispute.
David Flaherty disputed his project should be considered late “under any scenario” and promised to continue his fight in the courts.
Public comment splits
City staff received six letters from residents. Public comment split sharply between those praising the project’s aesthetics and those condemning Flaherty for code violations.
Madrona Avenue resident Carolyn Lund praised the project, saying it “turned what was an ugly house with poor landscaping into beautiful buildings with exceptionally attractive grounds.” She noted Flaherty helped with the city’s rebuild of Golden Gate Lane in 2021.
Susan Cluff of 9 Peninsula Road urged the council to reject the appeal, noting the project took 4½ years despite the extensions.
Former Mayor Sandy Donnell of 137 Golden Gate Ave. wrote in support of the fine, saying delays were due to Flaherty’s disregard for codes.
“For all the time the city staff, City Council and community have spent dealing with Mr. Flaherty’s aggressions, it is a shame that the fine cannot be increased,” she wrote.
Former Mayor Justin Faggioli, Donnell’s husband, called the project “one of constant violations.”
“As the delays mounted, Flaherty became increasingly belligerent against the city and his neighbors,” he wrote. “This is just his latest salvo.”
He accused Flaherty of sending a form letter to neighbors asking them to send it to the city in support of him — “a blatant attempt to manipulate public opinion against the City Council and city staff.”
Two pro-Flaherty letters from residents Edward Barber and Greg Wood contained the language supplied by Flaherty urging leniency.
Wood, of 205 Golden Gate Ave., also spoke at the hearing, praising Flaherty for preserving the home’s 1912 architecture rather than building “a glass box.” He questioned why Mark wasn’t present.
Attorney Lauren Druyan of San Rafael Avenue argued the fine was constitutionally excessive and would “discourage residents from preserving and updating historic properties.”
Project history
The saga began in 2017 when the Flahertys applied to substantially remodel the home. Belvedere issued a building permit in November 2017, with an 18-month completion deadline.
Under the ordinance then in effect, penalties started at $600 per day and escalated to $1,200 per day after projects exceeded their deadlines. The maximum penalty of $300,000 took 295 days to reach.
The Flahertys’ original deadline was May 28, 2019, but the city granted various extensions that brought it to Nov. 25, 2019. The city issued a compliance order May 29, 2019, giving the Flahertys 30 additional days to complete the project. The city issued a temporary certificate of occupancy Aug. 23, 2019, though that did not constitute final approval.
From May 2018 through February 2021, the Flahertys submitted 10 additional planning applications — the majority after the original deadline.
Disputes arose over unapproved lighting and two olive trees planted in the city right of way. Approved plans had called for three saplings in 36-inch boxes. The Flahertys instead purchased two larger mature dwarf trees in 48-inch boxes that were taller than the approved 12-foot height.
Staff recommended retroactive approval, but on Aug. 18, 2020, the commission ordered the trees removed. After multiple attempts to resolve the issue, the city let the trees stay in October 2021 after the Flahertys granted an easement.
The city deemed the project complete March 21, 2022, and notified the Flahertys they were liable for the maximum $300,000 penalty. They appealed to the City Council, which denied the appeal July 11, 2022.
Court orders new hearing
The Flahertys sued the city in October 2022, accusing it of miscalculating penalties, failing to provide due process and violating constitutional rights against excessive fines.
David Flaherty asserted long-standing “hostility” between himself and Mark. Flaherty was also a leader of Accountable Belvedere, which sought to defeat the failed Measure D general-fund tax in November 2022 that would have paid for the city’s planned $20 million road-fortification project. Wood was also a member, and the group backed Lund’s unsuccessful bid for council against Mark, Wilkinson and Cooper.
Sweet’s May 27 ruling found the council’s 2022 decision lacked factual foundation.
“The overwhelming majority of the ‘findings’ merely announce background information unrelated to the merits of the issues presented on the appeal,” Sweet wrote.
He criticized the city’s failure to explain how it determined which delays were within or beyond the Flahertys’ control.
The Flahertys had argued construction was delayed by discovery of a deteriorated retaining wall. The city’s Construction Time Limit Appeals Committee acknowledged the issue contributed to delays but provided no analysis of how it should affect the penalty.
The city granted 244 days of relief, including 60 days for the Tubbs fire, 90 days for landscaping and 64 days for COVID-19. Officials said the project was already nine months overdue when the pandemic began.
Next steps
The council will formally adopt a resolution affirming the penalty at its Jan. 12 meeting.
O’Connor indicated he plans to appeal. The case will return to Sweet, who retained jurisdiction over the excessive-fines claim.
A separate federal lawsuit filed by Laurent and Marguerite Lefouet of Eucalyptus Road challenging a $254,400 construction time-limit penalty on similar constitutional grounds is pending in U.S. District Court. That case could rule if the fines are excessive, potentially creating binding precedent.
The Flaherty and Lefouet cases are among several recent construction time-limit appeals in which the council rejected constitutional arguments: In October, the council reduced a $330,000 penalty against 1 Blanding Lane to $210,000. In January, the council reduced a $187,000 penalty against 30 Cliff Road to $133,000.
From these four cases alone, the city levied some $900,000 in penalties.
The city adopted new rules in June that use a fee-based system escalating permit-renewal costs rather than imposing retroactive penalties after project completion.
Reach Belvedere reporter Tyler Callister at 415-944-4627 and Executive Editor Kevin Hessel at 415-435-2652.