Roses are red. Violets are blue. If you stucco your house an unapproved color in a historic district in Santa Fe, woe is to you.
Five years after denying Jimmy and Jennifer Day after-the-fact approval for the green-colored stucco on their east-side home, the city of Santa Fe has filed a lawsuit asking a state court to order the couple to comply with city code by changing the color.
"The City has exhausted all non-judicial attempts to enforce the City zoning regulations," assistant City Attorney Michael N. Prinz wrote in a complaint filed March 22 in state District Court.
Jennifer Day said Thursday she was "shocked" the city would file a lawsuit over the matter because she and her husband have been in communication with city staff who approved their new color choice for the home and were aware they've been out of town since late December dealing with a family tragedy.
And then there is the pandemic and the weather.
"In case the city didn't realize this, we have been under restrictions due to COVID," she said. "A lot of people haven't been working. It's now winter and nobody paints in winter, and we told the city we would certainly have the property painted by the spring. Our timeline is that it would be completed by the first of June."
The city's battle with the Days — who own several Santa Fe restaurants — began in late 2015 when the couple began applying green stucco to their home on Camino de Cruz Blanca, where city code dictates buildings "shall predominantly be brown, tan, or local earth tones." They also added a portal to the house without obtaining a permit for the work.
The city ordered them to stop the work and obtain proper approvals, the lawsuit says.
But the Days decided instead to ask the Historic Districts Review Board for an after-the-fact exception to the color requirement.
The board declined to grant forgiveness, so the couple appealed the decision to the City Council, which upheld the denial.
Not willing to take no for an answer, the Days appealed the city's decision to state District Court, which affirmed the city's decision.
Still not ready to say die, the couple filed a petition asking the state Court of Appeals to review the lower court's ruling.
The Days argued their home in the Wilderness Gate area near St. John's College is hardly visible from the road and their "forest green stucco" is an "earth tone" under the plain reading of the code.
"The use of the disjunctive 'or' means that the 'earth tones' described are colors that are not brown and are not tan and are some other color," their attorney wrote, "except of course, 'chocolate brown’ and 'white', which are specifically discussed."
The appellate court declined to get involved and denied the Days’ petition in September 2017, according to court records.
Nearly two years later, on June 25, 2019, the city's lawsuit says, the city notified the Days they were still in violation and gave them 30 days to come into compliance.
Attachments to the lawsuit show the Days' negotiations with the city continued for another year after that.
The couple obtained city approval to apply a stucco color called "Soapstone" to their home in January 2020, according to the documents, but they went back to the Land Use Department in August and got approval to change the color to a "dark brown," similar to colors called "Whitall Brown" and "Cliff," of which they submitted samples.
"The best way to describe it is ‘Tom Ford brown,’ ” Jennifer Day said Thursday, referring to the fashion designer, who successfully fought to be allowed to build a mansion atop Talaya Hill in 2006. "Tom Ford got approval to paint his property a color, and that's the color the city approved us to paint," she said.
But they haven't made the change yet, she said, because of delays caused by the pandemic, the weather and a family tragedy that has kept them out of town for most of the winter.
"I'm not sure why they decided to sue us now," Jennifer Day said. "They knew we were indisposed, and the weather was such that you couldn't do anything. So it's really puzzling why they decided they needed to do that."
In addition to asking the court to order the Days to change the color of their home, the city is asking that the couple be ordered to pay the city's legal costs associated with obtaining their compliance.
"Sounds to me like the city wants to make some money," Jennifer Day said.