By Richard Darvas
May 17, 2010 (Dehesa)--On a hilly downgrade that spills into Dehesa Valley, Vietnam veteran Joseph Diliberti built an earthen sanctuary on 3.7 acres. Over 31 years--shaped by ideals of Henry David Thoreau’s transcendentalism and principles of Jamaica’s Rastafarianism--the individualist hand-crafted mud houses, a lofty tree house and an Asiatic pagoda. But an unresolved weed abatement dating back to 2004 leaves Diliberti in danger of losing his land to a public auction on March 18, 2011. Compounded by penalties and interest levied by the County tax collector, a weed-cutting service billed at $25,500 has mushroomed to a $63,993 tab. On behalf of San Diego Rural Fire Protection District (RFD), Fire Prevention Services (FPS) cleared vegetation on the site for three days in 2004. FPS’ actions as a private contractor reflected new defensible-space regulations enacted after the 2003 Cedar Fire.
Since East County Magazine ran an investigative feature on Diliberti’s plight on May 3, 2010, new developments have emerged—including a grassroots effort to help Diliberti keep his land, complete with fundraising, a Facebook page, and a documentary filmmaker.
Richard Halsey of the California Chaparral Institute (CCI) has spearheaded a grassroots movement to help Diliberti save his home. Features of this groundswell of activism include fundraising and letter-writing campaigns. Halsey also recently lobbied for political intervention at the state level. Finally, he claims to have gathered dozens of citizen complaints and court records that buttress allegations of corruption on the part of FPS.
“The response to our fundraising campaign has been tremendous,” Halsey reveals. “We have raised several thousand dollars from a diverse group of people. We are using this money to get the word out about Joseph and pay for the costs associated with organizing our efforts to help him, plus legal advice.”
There has been a flurry of media coverage since this story first broke. The San Diego Union-Tribune, L.A. Times, NBC 7/39, ABC 10News, AOL News and the Associated Press are some of the media outlets that have lately devoted airtime and ink to this local story.
Halsey and other supporters appeared at RFD’s last fire board meeting on May 4 to ratchet up political pressure. On his website, Halsey writes that he hopes to have the matter added to the agenda of the fire board’s next meeting in June.
A Facebook page has also been established by Halsey to galvanize public sentiment and promote discussion through the social-networking website. Currently the site advertises over 500 followers. In addition, ECM has been contacted by a filmmaker interested in creating a documentary movie about Diliberti's story.
Increasingly, Halsey has targeted FPS for perpetrating “alleged abuses” which have “traumatized” everyday citizens. He has posted numerous documents on his website to catalogue these transgressions.
“FPS is very good at legal games,” Halsey claims. “Private citizens have a very difficult time fighting them in court. Besides the expense, the energy involved chews people up and spits them out…We have two cases where FPS did not prevail. One was the settlement in Riverside and the other was an appeals decision in Paulson v FPS.
Kenny Osborn, FPS’ president, shares his insights regarding these civil lawsuits.
In Riverside, Osborn indicates that the case was related to weed abatement and trash cleanup on vacant land in 1999. “In our opinion, this was nuisance litigation.” Ultimately, he claims he chose the most pragmatic option. “It was cheaper to settle than pay our attorneys to drive back and forth to Riverside.”
“It was a vacant piece of property,” Osborn recalls of the Paulson case. “It had piles and piles and piles of brush and junk…the city of El Centro had us haul out all of that stuff.” Damage to a shed and other property was primarily at issue. “At the end of the day, the jury found that we were liable for negligence. From my understanding it pertained to property damage.” In 2007, the total judgment was $124,420. “I don’t have a problem admitting we lost that,” remarks Osborn.
One alleged abuse that Halsey has cited is a private citizen’s complaint, purportedly on behalf of the community of Idyllwild, regarding the fact that FPS possesses no contractor’s license.
“We don’t,” Osborn confirms. In the state of California, the distinct scope of operations for weed-abatement contractors is exempted. For years he claims he has petitioned the Contractors State License Board to establish a classification for FPS’ type of business.
Recently Halsey has cast doubt on the statistical veracity of an FPS report produced for RFD. As a term of the contractual agreement, the report includes relevant details about Diliberti’s forced weed abatement.
“FPS claims that 845 cubic yards of material were ‘remediated’ on less than a half acre,” reads an excerpt from CCI’s website. “That's 169 average dump truck loads or a mountain of material about 20 feet across and nearly 70 feet tall—all from less than a half acre?”
Osborn disagrees that 845 cubic yards is an inflated figure for debris remediation on Diliberti’s small plot. In order to illustrate this conviction, he approximates using the following formula.
“Let’s say the brush hasn’t been cut in 30 years. Thirty-year-old brush is usually between 6 and 12 feet tall, but let’s just say the brush was only 3 feet tall. So you take 3 feet times 18,000 square feet…divide that by 27 [to convert cubic feet to cubic yards], that will tell you how many cubic yards were standing.”
Osborn notes that the vegetation is cut about 4 inches above ground level. To account for air space—rocks, footpaths or other gaps—within the plant growth, he advises that the sum should finally be divided by 2. Minus 4 inches, 2.67 feet multiplied by 18,500 square feet is 49,395 cubic feet. First divided by 27, then by 2, the result is 915 cubic yards.
In addition, Osborn objects to Halsey’s basic description of brush disposal on Diliberti’s property. “Due to the type of vegetation in this case, we were able to chip and grind it all on-site. The crew spread the chips—as approved by the fire department’s standards—in the areas it cleaned to minimize growth of new weeds. Additionally, I do not know of any company that would use a dump truck to haul brush.”
After a forced abatement occurs, Osborn affirms that FPS is often willing to broker a deal with a given resident. He says that extenuating circumstances have resulted in discounts, sliding scales, interest-free loans and even debt forgiveness. Six months passed before Diliberti’s debt was transferred to the tax collector’s rolls. In the meantime, Osborn says that Diliberti refused to exercise his appeal options through FPS or RFD. Instead, Osborn says that FPS received several belligerent phone calls from Diliberti in the days immediately following the weed abatement. “It went straight from there to litigation.”
Had Diliberti pursued a different course of action, Osborn claims that there was leeway to strike a compromise. “Certainly we would’ve worked with him.” But he says that a breakdown in communication and the swift arrival of a subpoena soon thereafter left FPS no viable alternative.
On April 29, 2010, Halsey penned a letter to the state Senate’s standing committee on Natural Resources and Water. In it, he outlined how private contractors violate Public Resource Code (PRC) 4291 with regard to vegetation clearance. FPS is referenced as “one such contractor” in the letter.
However, Osborn explains that PRC 4291 regulates defensible space in areas that are not served by local fire entities. These guidelines correspond to so-called state-responsibility areas where Cal Fire has jurisdictional sway. “Each [fire] agency has its own code and its own contract,” Osborn clarifies. Therefore, under the auspices of local fire agencies, FPS is not subject to PRC 4291’s parameters in its execution of forced weed abatements. Dave Nissen, RFD’s division chief, has previously stated that the brush-management code which regulated his jurisdiction in 2004 was Hazard Reduction Ordinance 2002-02.
Bill Craven is the chief consultant for the Senate’s Natural Resources and Water committee. When asked if his group plans to take any action based on Halsey’s letter, Craven’s response is not encouraging. “Not at this time, but this case does raise the issue of minimum standards that should apply to third party contractors who are hired for defensible space enforcement.” He also defers responsibility to mediate this local conflict to local political bodies before the matter may be elevated to the California Legislature.
RFD has declared that since its department is no longer responsible for debt collection, and that responsibility has been transferred to the County’s tax assessor, it no longer has any discretion in the matter. Likewise, the tax collector’s office has stated it has no latitude to reduce or waive the $63,993 debt. County Supervisor Dianne Jacob has also cited jurisdictional reasons that effectively bar her office from addressing Diliberti’s case. When the obvious question of who holds the ultimate decision-making authority is raised with Craven, his reply is telling.
“Let's see what happens with the local food fight.”
Coincidentally, Nissen sees no point in adding the Diliberti matter to RFD’s fire board’s June agenda. “There is no action that can be taken by the board that would change the outcome of Mr. Diliberti's current situation,” he observes. “However, the public can request the item be put on the agenda, but that won’t change the board’s ability to act on this item. [It will] only give the public the ability to be heard and for the board to respond back to questions.”
Osborn confesses that he’s at a loss to ascertain why Halsey has not personally addressed his charges to FPS’ president in order to seek direct answers. CCI’s director, however, is not receptive.
“Our effort no longer involves having FPS or Osborne [sic] provide additional excuses for what he and his company have done to private citizens. Our focus now is twofold: help Joseph save his property and convince the state legislature to amend PRC 4291 to ensure what has happened in San Diego County does not happen again. We have more than enough evidence that FPS has acted in predatory ways,” Halsey concludes.
Osborn says that he recognizes it’s an uphill battle in terms of public perception. “I don’t know if our side of the story sells.” He also criticizes Halsey for disseminating misinformation that has, in his opinion, contributed to a prevailingly negative slant in media coverage. Osborn also suggests that Halsey is engaging in self-promotion.
“Richard Halsey has constantly claimed that good science needs to be used regarding fire and brush,” Osborn proclaims. “I guess if he practiced what he preached, he would have asked us for our side of the story before appointing himself as the judge and jury of Fire Prevention Services, Inc.” Osborn says he’s ready to publicly address every allegation. In fact, he has volunteered his personal email address to anyone who may wish to contact him about FPS. It is email@example.com.
Viscerally, Osborn understands the public backlash. “No matter how I break out the costs, the total overhead and the profit margin…it still doesn’t change that taste in your mouth of 25 grand for a Vietnam vet. Unfortunately I’m not in a position where I can undo any of that.”
Nonetheless, he vigorously defends the legitimacy of his business practices. “Over the years, we have had 35, maybe 40 contracts. If you take the information that’s out there right now on face value—the criminal acts, fraud and everything else that we’ve been [reportedly] doing—how can you have 35 or 40 different city attorneys review 35 or 40 different contracts with 35 or 40 different codes representing those contracts all come back with the same conclusion that this is lawful to do? There are no illegalities about it.”
In the end, the man at the center of the controversy may be entitled to a final word. Diliberti poses a question that, to the best of his knowledge, has gone unanswered. No weed abatement has taken place on Diliberti’s property before or after 2004. “If my land was a fire hazard six years ago, shouldn’t it be one today?”