Your Land Is My Land

The howling and shrieking that have become a prerequisite for nearly every controversy involving land use in California reached a new volume in recent weeks, as state court dockets considered land use-related cases ranging from speech prohibitions to old-fashioned bloody murder.

Up at the high end, the California Supreme Court found it necessary, thanks to a case that may well end up at the U.S. Supreme Court, to spend a day trying to figure out how to resolve a land use dispute that had somehow blossomed into a case of constitutionally protected free speech vs. the legal right to protection from repeated slander.

It all began simply enough when the Balboa Island Village Inn, a restaurant and bar in the formerly informal but now highly pricey Newport Beach, applied for a permit to expand its entertainment offerings.

The tavern already featured live music Thursdays through Sundays and "an exquisite Sunday brunch," notes the local visitors bureau, boasting of "smoked bacon and crab meat Benedict with bottomless champagne." But the bar's owner, Aric Toll, apparently wanted to expand its license.

Not so fast, said nearby neighbor Anne Lemen, 58, a nurse and Christian evangelist. Already energized by an ongoing feud with the Inn's previous owner, she took to the sidewalks and collected some 400 petition signatures demanding that the permit be denied. The petition drive failed to convince the reviewing body. The nurse ratcheted up her campaign.

"Lemen took flash photographs of customers through the windows and doors of the Village Inn every Thursday and Saturday night for a year, and, on three occasions, photographed an employee changing his clothes," say the appeals court records. In addition, at more intimate range, "Lemen confronted customers and employees entering or leaving the Village Inn and called them off-color names," including satans and whores, in part for spending money in a restaurant she alleged was filled with rats.

But those were just the appetizers. Lemen soon introduced a video camera to tape the Inn's departing customers, adding live-action footage to her original obscene spoken soundtrack. And she further sonically pressed her point by ritually blasting her car horn at the Inn for half an hour at a time, nonstop, during open hours.

When even that didn't discourage the tavern's fans, nurse Lemen spread charges, by word and pamphlet, that the Inn--and here we quote the Los Angeles Times--"serves tainted food, has Mafia connections, produces child pornography, encourages lesbian activities, distributes illegal drugs [and] participates in prostitution."

Toll, the 41-year-old Balboa Island Village Inn's chef-owner, made many attempts to protect his 1930s landmark that had begun operation even before Anne Lemen's birth. Determined to guard the one-time haunt of James Cagney, Humphrey Bogart and Bing Crosby, Aric Toll finally turned to a lawyer. They went to court demanding a permanent cessation of the slander and defamation. They won. The case was appealed. And appealed again.

And now it has reached the highest court in the state, and the question has become whether the original lower court's order, prohibiting nurse Lemen from ever saying those same things again, is constitutional, or comprises constitutionally questionable prior restraint. Perhaps the most telling moment at the hearing was that in which one California Supreme Court justice--Carlos R. Moreno--asked whether the lower court's order would keep Lemen from making the same false charges "to anyone, anywhere in the world." Yes, it would, an attorney responded. Well then, asked Justice Ming W. Chin, "isn't it overly broad?"

The court will rule by May.

Meanwhile, a parallel land use dispute was developing toward a far more tragic outcome--two deaths by bullet and a possible future state-sanctioned execution--here in the Monterey Bay.

Melvin and Elizabeth Grimes had, until Jan. 30, lived for 17 years on Hitchcock Canyon Road in Carmel Valley, a rural, leafy area of older but high-priced homes. He, a criminal defense attorney, surfed and liked jazz and blues well enough to serve on the board of the Monterey Blues Festival; she was a nurse at Community Hospital of the Monterey Peninsula.

The Grimeses apparently felt their territory to be a bit larger than their 1.8-acre property lines would indicate. While professional colleagues unanimously remember the Grimeses as "warm and kind," neighbors saw an imperialist side. Nearby resident Stephan Young complained to officials of having been "verbally harassed" by Elizabeth Grimes. Neighbor Catherine Hudson told local media that the Grimeses "intimidated" anyone who ventured closer than "what they would consider their privacy," which "did go beyond the borders of their home," which would later prove a problem, because their property shared a length of common driveway with the property next door, so little privacy or border exactitude was to be had.

It all seemed to balance out, though, until around the year 2000, when an apparently far wealthier, older and similarly intimidating neighbor, John Franklin Kenney, moved next door. An owner of other homes, including houses in France and Texas, Kenney brought to his new Carmel Valley circumstances both wealth and the ability to focus, which he had developed as a physicist and oil exploration specialist.

Soon, like many such newcomers, Kenney was at least shin-deep in local land use politics, opposing new bed and breakfast facilities and the like nearby.

Then--and here the stream of events grows toxic and murky, and Nūz 's rendering is at best a small and reconstructed sample--Kenney, in his quest to remake his new town in his own image, apparently discovered the power of that double-edged sword known as "code enforcement," which, as its wielders know, can be used with equal facility to protect the poor from exploitation and to mercilessly attack nonconformists. All it takes to employ this potent weapon is a tolerance for continued conflict.

And that tolerance is one thing Kenney certainly had. Within a few seasons he began regularly charging the Grimeses with code violations. They had built a garage whose location violated zoning laws. They trespassed on his land to get to and from it. They had built illegal structures on their property: an expanded deck, a new carport, a retaining wall, an art studio. Zoning officials found many of the charges true, and issued fines.

Melvin and Elizabeth Grimes responded by charging Kenney with spying on them and poisoning their pets. Complaints by one against the other multiplied: Disorderly conduct. Harassment. The dumping of garbage and the deliberate rattling of windows. An alleged 2004 theft of $34,000 in cash from the Grimeses' personal home "stash," and Melvin Grimes' truck "mysteriously" rolling down a hill and smashing into a tree.

Both parties eventually sought court-issued restraining orders, and the judges, horrified enough by the escalation, granted them.

But soon thereafter an incident occurred in which John Kenney was either carrying or not carrying a camera, Elizabeth Grimes may or may or not have approached and ripped the camera from his neck and, further, slammed his head against a car door during said rippage. Regardless, Kenney sued for $1 million in medical costs, property damage, emotional distress and lost earnings. And for dessert he gave himself permission to installed metal poles and various large rocks to block in the Grimeses' vehicles. The Grimes removed them. And so it continued.

On Monday, Jan. 30, John Franklin Kenney and Melvin and Elizabeth Grimes fought for the last time. Kenney had ordered yet another, grander blockage--a 1-ton boulder--and called police to supervise his placing it safely (they left at the delivery drivers' assurance). The Grimeses arrived soon thereafter, allegedly attacked the boulder with a sledgehammer, and Kenny allegedly got an unpermitted gun from his home.

Two virtually simultaneous frantic 911 calls followed--one from Elizabeth Grimes claiming that Kenney was attacking her, and one from John Kenney claiming Grimes was assaulting him. By the time police arrived, Melvin Grimes was dead and Elizabeth Grimes, lying in a drainage gutter, named Kenney as her attacker, and survived long enough to board a medical helicopter bound for San Jose, during which trip she expired.

John Franklin Kenney, 72, is now in prison awaiting a hearing on charges of double murder with special circumstances, charges that permit consideration of the death penalty.

Hitchcock Canyon Road , on the other hand, has become a considerably more peaceful place, at least temporarily

Nūz just loves juicy tips about Santa Cruz County politics.

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