ABSTRACT: On June 6, 2017, in SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF MONTEREY, Attorneys for Plaintiff, City of Carmel-by-the-Sea, namely Donald Freeman, Esq. City Attorney Carmel-by-the-Sea and Glen R. Mozingo, Esq. Assistant City Attorney, filed a VERIFIED COMPLAINT FOR CIVIL PENALTIES, PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF in CITY OF CARMEL-BY-THE-SEA Plaintiff,v. STOFFER JOZEF WAGELAAR AND ANNA DEPASQUALE WAGELAAR, AS CO-TRUSTEES OF THE JOSEF WAGELAAR REVOCABLE TRUST ESTABLISHED BY DECLARATION OF TRUST DATED JANUARY 31, 2007 AS RESTATED JULY 24, 2014; DOES 1-25. Defendants (Case Number 17CV002052).
FIRST CAUSE OF ACTION
VIOLATION OF CARMEL-BY-THE-SEA MUNICIPAL CODE
SECTION 17.08.060 CITY ORDINANCE (89-17)
SECOND CAUSE OF ACTION
REQUEST FOR AN ACCOUNTING OF ILLEGAL RENTAL OF
SINGLE-FAMILY RESIDENCES WITHIN THE R-1 DISTRICT
(Carmel Municipal Code Section 3.32.080)
THIRD CAUSE OF
ACTION
FAILURE OF DEFENDANTS
TO REGISTER WITH THE CITY AS AN OPERATOR OF A HOSTELRY
(Carmel
Municipal Code Section 3.32.050)
FOURTH CAUSE OF ACTION
FAILURE TO COLLECT TRANSIENT OCCUPANCY TAX AND
REPORT RENTS
(Carmel Municipal Code Sections 3.32.020, 3.32.040,
3.32.060)
PRAYER FOR
RELIEF
WHEREFORE,
Plaintiff CITY OF CARMEL-BY-THE-SEA prays for reliefs as follows:
- That under C.M.C. Code Section 17.08.060
Prohibited Uses, City Ordinance (89-17) Defendants, Stoffer Jozef Wagelaar
and Anna De Pasquale Wagelaar, their successors, agents, representatives,
employees, and all persons or entities who act in concert with or on
behalf of the Defendants be preliminarily and permanently enjoined from
committing any act in violation of C.M.C. Code Section 17.08.060
Prohibited Uses, City Ordinance (89-17) including the violations alleged
in the First, Second, Third, and Fourth Causes of Action.
- That
under C.M.C. Code Section 17.080.060 Prohibited Uses, City Ordinance
(89-17), Defendants be ordered to pay an amount to be determined at the
time of trial for each violation of the City Ordinance (89-17).
- That
the Defendants, Stoffer Jozef Wagelaar and Anna De Pasquale Wagelaar, be
required to turn over to the City of Carmel-by-the-Sea, within fifteen
(15) days from the date of this Complaint, an accounting indicating any
and all rentals of less than thirty (30) consecutive days of the Wagelaar
residence and any and all other rentals of less than thirty (30)
consecutive days of single-family residences in the R-1 district from June
1st 2015 through the date of filing of this Complaint.
- That
Plaintiff recovers its costs of the suit herein, including attorneys' fees
and costs of investigation.
- For such other and further relief the Court may deem just and proper.
The City of Carmel by the Sea vs. Stoffer Jozef Wagelaar, Co- Trustees of the Josef Wagelaar Revocable Trust Established By Declaration of trust dated January 31,2007 as restated July 24, 2014, et al. (17CV002052) case file copy, including Summons, Notice of Judicial Assignment and Case Management Conference and VERIJFIEID COMPLAINT including EXHIBIT A, EXHIBIT B, EXHIBIT C, EXHIBIT D, EXHIBIT E, EXHIBIT F, EXHIBIT G, EXHIBIT H, EXHIBIT I, EXHIBIT J and EXHIBIT K, is embedded. At the August 8, 2017 city council meeting, Announcements from Closed sessions, City Attorney Glen Mozingo stated that the matter had been “settled.” Defendant agreed he was in violation of the law and has agreed to pay the City a “fee” of $42,100. And provided there are no further violations in the next 24 months, at the end of 24 months the City intends to waive city attorney fees, some small percentage of the TOT tax, first tier penalties, second tier penalties, fraud penalties and interest. For others engaging in similar unlawful conduct, the City will invoke an amnesty period of 90 days for those to contact the City, after which time the City will prosecute alleged violators.
COMPLAINT FOR
CIVIL PENALTIES, PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF FOR VIOLATIONS OF CARMEL-BY-THE-SEA
CMC:
17.08.060 PROHIBITED USES ORDINANCE 89-17 (PROPERTY OWNER UTILIZING PROPERTY FOR
TRANSIENT LODGING USES FOR REMUNERATION IN A RESIDENTIAL DISTRICT).
ILLEGAL
COMMERCIAL USE
OF
A SINGLE-FAMILY RESIDENCE IN THE R-1 DISTRICT.
REQUEST FOR AN
ACCOUNTING OF ILLEGAL RENTAL OF A SINGLE-FAMILY RESIDENCE WITHIN THE R-1 DISTRICT.
FAILURE OF
DEFENDANTS TO REGISTER WITH
THE
CITY OF CARMEL-BY-THE-SEA AS AN
OPERATOR OF A HOSTELRY.
FAILURE TO
COLLECT TRANSIENT OCCUPANCY TAX AND REPORT RENTS
EXHIBIT B VRBO website April 4, 2016
EXHIBIT C Second notice of violation to Defendants April 30, 2016
EXHIBIT D Defendant Josef Wagelaar returned a signed letter acknowledging receipt of Notice of Violation, May 9, 2016
EXHIBIT E VRBO website and found the property "Dutch Casetta" August 8, 2016
EXHIBIT F Via e-mail and telephone conversations, March 14, 2017 Rayne Fairsom
EXHIBIT G Email correspondence March 24, 2017 Gregory Griffith
EXHIBIT H Ee-mail correspondence. March 25, 2017 Raymundo Diazleal.
EXHIBIT I Copies of C.M.C. Section 17.08.060 is an infraction and is subject to civil and criminal enforcement pursuant to C.M.C. Sections 1.16.010 (c) (3) (b) and _l.16.0l0 H.
EXHIBIT J Copy ofC.M.C. Section 3.32.080
EXHIBIT K Copy of M.C. Chapter 3.32 entitled ''Transient Occupancy Tax"
REFERENCE:
EWING v. CITY OF CARMEL-BY-THE-SEA
Supreme Court Case:
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S023822
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Court of Appeal Case(s):
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Sixth Appellate District
H007702 |
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Case Caption:
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EWING v. CITY OF CARMEL-BY-THE-SEA
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Case Category:
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Review - Civil Appeal
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Start Date:
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11/15/1991
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Case Status:
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case closed
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Issues:
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none
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Disposition Date:
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01/08/1992 Petition of review
Denied
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