Green-home fight before Appeals Court

Owner of Wilderness Gate residence continues to appeal rejections

A Santa Fe woman who was denied an after-the-fact exception to the city code that would have allowed her to keep green-colored stucco on her and her husband’s home on the historic east side is refusing to take no for an answer.

In 2015, when the stucco started falling off their home, nestled in the trees in the Wilderness Gate subdivision above St. John’s College, Jimmy and Jennifer Day decided to ask forgiveness instead of permission. They restuccoed their house a deep forest-green color and added a portal without obtaining a city construction permit for the work. Under city code, houses in historic districts must be finished in “brown, tan or local earth tones.”

In early 2016, the couple sought a retroactive code exception from the City Council that would legitimize the changes they’d made. But the council rejected that request.

Jennifer Day appealed the decision to the state’s First District Court, where Judge Francis Mathew ruled in February in the city’s favor. Earlier this month, Day appealed Mathew’s ruling to the state Court of Appeals, arguing that the green home doesn’t violate city code because it isn’t visible from a public right of way and its hue is a “commonly accepted earth tone.”

Attempts to reach Day through her lawyer were unsuccessful.

City spokesman Matt Ross said the city does not comment on pending litigation.

The city’s Historic Districts Review Board rejected the Days’ application for a code exception, and the City Coun-

cil upheld the board’s ruling in February 2016, telling the Days to go back and restucco their house a color that complies with building codes for historic districts.

The Days “did not even attempt to contact City staff about Code requirements,” Assistant City Attorney Theresa Gheen wrote in a memo to the mayor and city councilors on the issue. “They simply started the work. … And given that [the Days] own three residences in historic districts and used to own a third structure on Camino [de] Cruz Blanca, it is reasonable to infer that Applicants knew about the historic district requirements, or should have known.”

After the council vote on their request last year, Jennifer Day, an interior designer, said, “Everybody is just mad that we didn’t get permission to stucco the house.”

She told The New Mexican there were already several green homes in the area — so many that she thought it was an approved color.

In a writ seeking the appellate court’s review of Day’s case, her lawyer argues two main points.

One, that her home is technically not visible from “public” view, as described in the city code, because even though it is visible from St. John’s College, the school is not a public venue.

Her second argument is that the color green is, in fact, an “earth tone.”

“Undefined phrases like ‘earth tones’ in a statute or ordinance are interpreted according to their generally accepted meaning,” Day’s attorney, Mark Basham, writes in the writ. “Any local paint store with an earth tone swatch will include a variation of green; green is a commonly accepted earth tone. Because the ordinary meaning of earth tone includes green it is contrary to law to conclude that only shades of brown stucco are permissible.”