.The Katz Brothers and Santa Clara County’s Continued Legal Battles

A tractor-trailer pulls onto the shoulder at the foot of the Santa Cruz Mountains near Morgan Hill, at dusk on Oct. 12, across from a fresh deer carcass where insects and amphibians sing their evening songs.

The driver, carrying something akin to a lunar crawler or oil sands equipment, pauses for a moment to revel in the fact that, while in an utterly rural landscape, he’s just a short distance from Apple Inc.’s global headquarters.

“New York,” he says, revealing his destination point, confirming that, following in the footsteps of many in the tech workforce in recent years, the four-axle Oshkosh machine is moving out-of-state.

It’s the third firefighting vehicle the Katz brothers have had to sell to pay for their ongoing legal brawl with the Santa Clara County Planning and Development Department.

The pair came to national attention in an Associated Press article about their efforts to respond to the 2020 CZU Lightning Complex Fires. State resources were stretched thin, and they appeared on scene to protect homes in Bonny Doon, a village north of Santa Cruz, long before Cal Fire crews arrived.

More than 900 homes were destroyed in the converging blazes.

Back then, they brought a single small fire truck, which they were later able to sell to afford the one now being sent back east. 

Joe Christy, founder and president of the Bonny Doon Fire Safe Council, says he remembers hearing about the Katz brothers’ contributions, noting it was the private brigades that led defensive maneuvers during the three days they awaited Cal Fire.

The Katz brothers could’ve brought another truck, too—a more powerful model—had they not sold it off to cover legal bills in a protracted battle over grading they say they did, in part, to create a fire break on a newly-acquired property during the Loma Fire.

“If we had a second fire truck, we could have saved more homes,” Jesse Katz said. “We just didn’t have the resources—which I would’ve had if it weren’t for our legal problems with the county.”

Jesse, 44, was still covered in soot from the CZU response when he got a call from a Santa Clara County official. A Board of Supervisors aide told him an agreement they’d struck to pause enforcement had fallen apart. The county was going to strong-arm them.

And now, as a third fire truck disappeared into the night on the back of a semi, Jesse mused that he hopes it’ll find a new life protecting against forest fires in upstate New York, perhaps even across the border in Canada.

Battle Lines Across the County

In the end, the Planning Department got what it wanted—a verdict that upheld stiff fines against the brothers with a healthy collection of military surplus vehicles in the Santa Cruz Mountains.

But the way in which the case against Jesse and his sibling Rob, 33, played out raises questions about practices employed by the Silicon Valley agency’s code enforcement officers and lawyers, as well as its transparency record, and suggests a willingness to disregard evidence to win prosecutions.

“I don’t think what the county is doing should be allowed to happen under cover of darkness,” Jesse said.

From the county’s perspective, the case is an example of the enforcement process working: a complaint from a neighbor leads to a visit from an official who orders the Katz brothers to stop moving large amounts of earth, and citations for violations are issued (for illegal cuts and fills amounting to millions of pounds of soil), then amended, as additional information emerges. Some are eliminated as the brothers argue their side of the story, but others remain, and the brothers must pay up.

The county levied 17 violations against the Katz brothers. After telling their side of the story, 11 were removed. Then, upon appeal, two more were deleted. With just four left, the county is still seeking more than $282,200 in fines—more than the original value of their sprawling property.

During an administrative hearing, the Katzes claimed they weren’t properly served with a Notice of Violation for some infractions, and said the county told them this would allow them to seize their land if they didn’t sign a compliance agreement.

“We asked repeatedly to have a copy of the NOV,” Rob testified. “They refused. We appealed to the Board of Supervisors, saying, ‘Can you please investigate this and show us if a NOV was sent?’ We’ve always maintained the mindset that, like, maybe we messed up, maybe we missed something. We’re human. But, in this instance, the error was on their part. And they lied about it—and then they doubled-down.”

Broader Issues

It’s not the first time County Planning has caused major headaches for Santa Cruz Mountains residents in wielding their code enforcement powers.

For years, the Planning Department has relied on an old building violation to prevent rural Los Gatos homeowner Sidney French, now 70, from repairing her 1930s-era cabin.

The document, from 1997, states her home was demolished and rebuilt without a permit. But even after French presented signed statements from neighbors attesting to it having been in its current form for decades, the Planning Department refused to budge and has even threatened criminal charges and exorbitant fines.

After additional experts looked into the case and advocated on French’s behalf, the county finally agreed a few months ago to expunge the mistake from her records.

French also filed an elder abuse complaint with Adult Protective Services against the County Counsel’s Office on Dec. 30. She took the extraordinary step after the department told her, 10 days earlier, it was declining to investigate complaints she’d sent in over how the department acts—or doesn’t.

However, her fight with the county continues, as she says it looks like they simply shifted the violation to another address, instead of eliminating it altogether, and adds the county is still refusing to remove the actual violations that she racked up because of the incorrect notations from 1997.

On Oct. 22, French added a new whistleblower complaint. She did this, she says, because her previous filings don’t resemble any in the latest transparency report to the Board of Supervisors.

As of Nov. 7, the report had not been posted to the county’s whistleblower portal.

French says last year’s didn’t appear there, either, until after she demanded the county put it up.

Agricultural Beginnings – The Katz Legacy

The Katz brothers grew up in Morgan Hill after the family moved from San Jose.

“I spent my life there and watched the southern part of Silicon Valley become more urbanized,” Jesse said. “When I was young, there were strawberry fields around the house and people rode horses unironically.”

He has memories of watching the wildfire that consumed the mountain property he and his little brother would come to own.

“We would play in the forest out to the west in the Santa Cruz Mountains,” he said, telling of their early cycling and motorsport adventures. “I started working at the local Specialized bike shop when I was in 7th grade.”

Rob went on to study manufacturing engineering at Chico State with a minor in sustainability management. Jesse took classes in business, mechanical engineering, industrial design and marketing at a variety of colleges across California.

The brothers say they bought the Croy Road property, in part, to hold onto a little slice of the region’s agricultural heritage.

“We didn’t have any illusions about this being a profitable endeavor,” Jesse said. “It’s deeply hurtful to have Santa Clara County mischaracterize and portray us as bad actors.” Rob is technically the sole owner of the land, through an LLC.

The Katz brothers say the grading they did was appropriate because it related either to creating defensible space during and after the Loma Fire or was connected to agricultural activities they’d envisioned. They’ve argued some dirt-moving occurred prior to their ownership, and was simply laid bare after they cleared trees Cal Fire said they might want to remove.

They also say they’re happy to remediate their property, if they’ve done something wrong. Santa Clara County maintains the Katz brothers couldn’t have been attempting to farm, as they found little evidence of this. The Katz say they’d barely gotten started when the county forced them to put things on hold.

Brother Farmers

A transcript of audio recordings of conversations with county staff, obtained by this newspaper, reveal that in the wake of the Stop Work Order, the brothers tried desperately to learn what sort of agriculture they could continue, but were shut down at every turn.

The county’s legal team told administrative hearing officer, George “Duf” Sundheim, that  if the brothers were really planning to engage in agriculture, they should’ve brought this up during inspections.

However, the recordings transcript shows Jesse Katz told one of the inspection party—Craig Farley, of the South Santa Clara County Fire District—the exact location of a proposed root cellar, as well as the spot microgreens were to sprout.

In addition, they told multiple county officials of their designs for growing grapes.

“One question we have is, whether we would be allowed to resume our agricultural endeavors after this inspection, because I have like, 3-400 grapevines that like, if I don’t get them in the ground in the next couple weeks, we’re fucked; and I’ve already lost the whole season’s worth of seasonal agriculture,” Jesse said. “Our vintner’s been holding these for us, and he’s like, ‘You have to get them into the ground right now.’ But the thing is that all that terracing below the emergency landing zone is for those grapes, and I need to do more dirt work before we can put those in.”

“Yeah,” county construction inspector Jerry Guevara acknowledges, per the transcript.

“All the hay needs to get scraped off,” Rob says, “because the hay can’t be in the grapes.”

“I understand resolving this red tag code enforcement stuff might be a big process, but if we could be allowed to resume our agricultural endeavors,” Jesse chimes in, “It’s an extreme hardship for us to be in suspended animation since November.”

Ward Penfold, of the County Counsel’s Office—who earlier in the day told the brothers his own distant relatives run the famous Penfold winery in Australia (“That Grange stuff is really expensive,” he commented)—appears to completely brush off the viniculture remarks, as they gathered evidence for their prosecution. “We’re just gonna have to circle-up with the team after the inspection and all,” he said.

It’s unclear why this audio was excluded, as the inspection took place outdoors and so the conversations likely wouldn’t have carried the same expectation of privacy. In fact, in the ruling nixing recordings (that weren’t voicemails), the hearing officer states California’s current standard is “whether a participant to the communication reasonably expected the communication was simultaneously overheard or recorded.” 

Ironically, in his decision, Sundheim agreed a recording of a marijuana dispensary raid would be admissible, as officers executing a search warrant would have no reasonable expectation their conversations weren’t being overheard or recorded.

Just this past January, Randall Zack from the County Counsel’s Office, sent a transcript of all the surreptitious recordings containing mysterious green highlighting to the Office of the County Hearing Officer and the Katz’s lawyer—while cc’ing county lawyer Michael Rossi and James Stephens, as well as the Board of Supervisors clerk. The version the Katz brothers’ lawyer sent had been clean. 

Zack is now a deputy attorney general with the California Attorney General’s Office. He didn’t respond to questions about this email, or the Katz brothers’ case.

Many of the green passages in the county’s version direct attention to quotes seemingly most damaging to the brothers’ case (such as how Jesse tells code enforcement officer Tyson Green “our strategy has been to hope that we can fly under the radar for long enough that if and when any enforcement action comes against us, we’ll be able to substantiate our intent, and show good faith, and show the progress we’ve made.”)

However, other highlights show the Katz sharing their ideological views on integrative agriculture with the county, including where Jesse discusses (with Green) their desire to create “more of a living landscape and a revitalized forest where people can be more in harmony with nature in ways that is a productive use of the land.” In another highlighted quote from the first inspection, Rob mentions to Guevara how excited they are to have a south-facing slope to work with.

Jesse said that they shared with the county the site’s agricultural properties. “If you’re on a shaded, north-facing slope, you can’t grow the same types of things,” he said. The green highlight suggests County Counsel was aware of this too, and flagged it as an area of concern, in case Sundheim, former chairman of the California Republican Party, chose to admit the transcript.

In an April 11 letter to the hearing officer, the county was still using the fact that the brothers hadn’t been doing “in the ground” farming—something they believe they’ve been prohibited from—as a reason their trucks shouldn’t be considered agricultural vehicles.

But when county witness Darrell Wong, a civil engineer, was asked on the stand about whether the county considered if the brothers had farming plans, he confirmed they never did.

“When you go out to a property and you see grading activity that clearly violates the ordinance code, are you in the habit of asking the property owner about every single exception to see if it applies?” Katz’ lawyer, Donald Sobelman of San Francisco-based Farella, Braun + Martel, LLP, asked.

“I do if it’s brought up,” Wong said. “But in this case—with both inspections—there was no exemption that was ever brought up.”

The county got a warrant that allowed it to search the Katz’ shipping containers, yet staff apparently never bothered to peer inside. The brothers say since they were no longer allowed to disturb the ground, the shipping containers were the main place they could continue to engage in agricultural activities.

The county’s own photos show vegetation poking out from one container, and planters with growing items placed on top of—and along—others.

At the administrative hearing, county counsel argued it was the brothers’ responsibility to proactively direct the inspectors’ attention to the inside of each container if they wanted to be granted an exception.

Photos the Katz brothers placed into evidence depict a variety of agricultural uses from seed germination to squash growing. The Katz’ lawyer brought this discrepancy up while cross-examining code enforcement officer MaryEllen Luna.

“It could be the case that every one of those cargo containers was being used for agricultural use,” he suggested.

“Possibly,” she replied. “I did not look inside them.”

Sobelman asked if the Stop Work Order would prevent the Katz from doing agriculture.

“You can plant stuff, but you cannot continue to grade,” she said.

The brothers say they still needed to do more earth-moving before they could conduct agriculture on a commercially-viable basis.

The Katz Brothers & “Kangaroo Court”

The Katz brothers were worried they might face a “kangaroo court” long before they got to the administrative hearing. After all, it was county employees who warned of underhanded behavior in the department.

Early on, Tyson Green, the code enforcer, sought to build a report with Jesse and told him how, as a Planning Department neophyte, he actually follows procedures—unlike others in the office.

In a March 11, 2019 call—three-and-a-half months after he’d first reached out (and three months since he’d left a message on department head Jaqueline Onciano’s machine)—Jesse complained to Green about a lack of communication from the Planning Department. According to Jesse, after the Stop Work Order appeared, it took more than a month to even get in touch with the county.

At the time, the Katz brothers were telling the county they had an opportunity to help them eliminate an illegal pot farm on the property next door (the neighbor was willing to give them the land for free), a proposal the county doesn’t seem to have followed up on.

“I think there’s some real inherent flaws in the way we do things out here,” Green tells Jesse. “If I issue somebody a Notice of Violation, I’ve got my contact information on there…and I’m required—within two days—to get back to somebody…I operate by that philosophy…I will tell you though, that that is not the standard operating procedure of most people around here.”

The brothers eventually managed to get a voluntary site visit scheduled, but as the date approached, Jesse shared with county staffer Michael Meehan that he felt like Penfold, of the County Counsel’s office, had taken an unnecessarily adversarial tack.

Meehan, who didn’t respond to interview requests, reminded Jesse that his colleagues weren’t to be mistaken for friends.

“What’s important for you to know is that—to be quite frank—they have everything they need to totally fuck you on this,” he said. “County Counsel has the authority to basically employ a receiver to take a loan out on the value of your property, remove you from the property, remedy all of the grading violations—at cost to you—and then also bill you for every minute that they spend working on it.”

He urged them to get into a compliance agreement.

“We need to be allowed to go back to our agricultural endeavors, or we’re gonna miss this whole season, and all the money that we’ve invested in these vines,” Jesse said.

Meehan cautioned that their attempts to reason with the county were falling on “deaf ears,” as the legal arm of Silicon Valley’s regional government built a case against them.

“They don’t want to hear anything,” Meehan said in the April 19, 2019, conversation. “They just want to show up. And so, the more information you give them, they’ll take it as hedging. You know what I mean?”

He told Jesse to speak to James Stephens, the code enforcement manager.

Jesse replied that it was the first time he’d ever heard that name—more than five months after the initial Stop Work Order appeared.

Meehan said he’d actually talked to Stephens just the day before about their case—and, boy, was he ever pissed. “He was upset that you hadn’t reached out to him,” Meehan said.

This is an ongoing and evolving story. Updates will continue to be posted.