Mission Viejo couple sue Santa Fe to stop demolition of part of house

Apr. 1—Two residents of the Mission Viejo subdivision in southeastern Santa Fe have sued the city over its attempt to force them to demolish a part of their home that intrudes into open space in the development.

In a civil complaint filed in February in the state's First Judicial District, Ronald and Nina Sebesta argue the city doesn't have the jurisdiction to enforce the private covenants of their homeowners association — which they say waived the setback rules for their home and permitted its encroachment into open space.

The city, meanwhile, contends the couple violated the building permit for their house and didn't get a permit to build a fence on their property.

The city issued a land use citation in November 2022 against the Sebestas, saying fences and walls on their property in the 3400 block of Calle Viejo weren't built according to the approved plans.

"Constructed residence and yard walls that encroach into open space, (Easement) location of building was altered without approval, fences and walls are also in violation and not constructed per approved plans," the citation states. "If approval cannot be met the yard [walls] and section of [the] building will need to be removed."

Ronald Sebesta declined to comment on the pending lawsuit or the city's Municipal Court case. He said he did not want to antagonize any of the parties involved because he believed they were close to reaching a resolution.

Ronald VanAmberg, an attorney representing the Sebestas in the civil case, said his clients decided to file the lawsuit to resolve whether the city has the authority to cite them over the alleged violation.

"We decided to file suit so we could resolve the issue as to whether the city has the authority to enforce private covenants," VanAmberg said.

The city's action against the couple involves other issues, he said, "but that issue of the encroachment should be resolved one way or another by the District Court."

The Sebestas say in their complaint they built their home several years ago.

The open space in question is part of the Mission Viejo Subdivision Plat, which was dedicated to the Mission Viejo Homeowners Association and is therefore subject to private covenants that aren't under the city's jurisdiction, the complaint states.

"Mr. Sebesta, out of caution, obtained approval from the Mission Viejo Homeowners Association to intrude into the covenant open area," the complaint states. It also says setback restrictions do not apply to their property under the covenants because it was designated as one of the affordable lots.

A 2018 letter from the association president and vice president, attached to the complaint, states the board had approved a waiver to the 25-foot setback requirement for the Sebestas' property.

The complaint, which says the city "has no jurisdiction or standing to enforce private covenants [or] turn private covenants into criminal offenses," asks the state District Court to prohibit the city from trying to remove the portion of the Sebestas' residence that encroaches on open space.

The couple also asked a judge to place a stay on the city's ongoing Municipal Court case against them. The motion was granted in mid-March.

The city's response to the civil complaint argues the Sebestas' allegations misrepresent the citation regarding the property, and that the basis for requiring removal of part of the home is the lack of approval for its location.

"The City's actions were lawful and taken in good faith and in compliance with the Santa Fe City Code and all other applicable laws and regulations," Assistant City Attorney Kyle Hibner wrote in the response. "The City is not seeking to enforce private covenants, but rather the Santa Fe City Code."

In a recent email, Hibner said the city does not enforce private covenants.

The city's code enforcement division "cited the property owner and filed the case in Municipal Court because the property owner built a residence contrary to the City-issued building permit and built a fence without obtaining a building permit," Hibner wrote. "The City wants the property owner to come into compliance."