JACKPOT! (Ka-ching... ka-ching... ka-ching...)

Nothing is sweeter than revising assumptions and revisiting unchallenged claims - and blowing those claims to hell!



Here I recap my progression from naïveté to hardened cynicism...






1. I originally assumed TLC Catering was a legal business, with law-abiding owners who had the necessary neighborliness to mitigate any noise or other nuisance their business might generate in a residential area. My neighbor, Lynda Allen, immediately gutted that assumption with her caustic and intimidating communication tactics. She stridently chanted her mantra, "I have a legally grandfathered business," while clutching and waving some yellowed papers in her ancient fingers. The City of Manteca had apparently given her some reason to believe that. Who was I to argue with both neighbor and City Hall?


2. I assumed a "legal business" would be subject to a City of Manteca noise ordinance. After suffering an insufferable summer of sleep deprivation caused by an equally ancient Scotsman commercial icemaker, improperly installed outdoors and too close to my fence line and house, I was driven to file a series of written complaints outlining the depth, breadth, and seriousness of the problem. The city ignored my initial letters and public statements at city council meetings. This led me to stumble upon the fact that this was a "new" noise ordinance, and never would apply to a grandfathered business. My research began in earnest. For many months - and until it was too late - the city did not even try to measure the noise nor to enforce the "old" ordinance.



3. I assumed a "legal business" would be subject to a City of Manteca business permit. Manteca personnel dispatched that thought with the simplistic argument that the "activity next door was not a business" and did not need a business permit because TLC Catering did not transact any retail sales in Manteca's city limits. The city has NEVER issued TLC Catering a Business Permit for Revenue, and still refuses to acknowledge all of the non-retail activities of an actively operating business by requiring a Business Permit for Regulation Only.



4. I assumed a "legal business" would be subject to a City of Manteca permit for a Home Occupation because business or non-business activity of a non-residential character in a residential zone requires one (also known as a Conditional Use Permit prior to 1992.) TLC Catering has NEVER had such a permit. Code enforcement officers, Manteca Chief of Police, Manteca planning (zoning) personnel, and the Manteca Director of Community Development have all waffled so badly with mealy-mouthed answers to this one that I am still unsure if they know what Municipal Code sections apply.



5. My research turned up a 1993 letter from the City wherein TLC Catering's operations were declared a "legal but non-conforming use" of property. (This must be where Lynda Allen's mantra came from.) I assumed that the TLC Catering commissary business expansion, which occurred in 1994, would be restricted from grandfathering according to the letter's explanation, or at least be subject to Manteca's 1992 Home Occupation ordinance. That supposition was blasted when a code enforcement officer took it upon himself to misinterpret common law and write, "I am not necessarily in agreement..." (I know where this one is going...)



Finally, I revisited the original assumption - grandfathering at annexation.



- - - - - IF:



* Prior to December 17, 1986,

* A catering truck business was operating on that property, and

* It was doing so legally,



- - - - - THEN, it would be grandfathered for:



* The continued use of that property,

* At no greater than existing level and scope of business use,

* By the current and subsequent property owners,

* Until the non-conforming use ceases.



JACKPOT!

Until now, I have never argued that TLC Catering was an illegal business; only that its use of residential property was illegal. I have questioned the legality of the business expansion resulting in a full commissary on the property. But now it appears that the entire business - all operations, assets, equipment (especially the icemaker), and large and small business jetsam - is illegally occupying a residential property.

The only question remaining is: Did Lewis Mego and Anne Mego, the former property owners, operate a legal catering truck business on the property on December 17, 1986, and until they sold the property to Lynda Allen and Theresa Brassey eleven months later, on November 10, 1987?

If the Mego's had a catering truck business AND a legal land use permit from San Joaquin County, then that business use would be grandfathered. However, all indications so far are that my neighbors purchased the property from the Mego's and THEN began to establish an unpermitted and illegal business operation on residential property within Manteca city limits.

.

Stay tuned for the next episode of this long-running soap opera...

.

Manteca Code Enforcement Takes Baby Steps

Just yesterday my (street) mailbox contained some of the records I requested from the City of Manteca pertaining to the business/property next door. Most of it was the three case files from my complaints logged on the City's Government Outreach system this year, but the expanded version with case notes - finally! A couple new items of interest also popped up and lead into my "next steps" mentioned in yesterday's post.

(Other items I expected were not included. This may launch a side investigation into the policies and procedures of the City's code enforcement, which should be fairly easy since those documents were briefly reviewed by a grand jury two years ago.)

The case file notes allow me to follow the developmental thought processes of City personnel. They appear to be coming along - slowly and with hesitating step - but still need my guidance in where to search next and how to interpret the things they find. These same people who dismissed my noise complaint months ago because the case was very "complex" are still resisting the rigorous analysis (missing when needed about 15-22 years ago) necessary to sort out the complexities of the governing common law of grandfathering and the applications of zoning ordinances of both the County of San Joaquin and the City of Manteca. These "discoveries" strengthen my resolve to pursue this ancient case to conclusion.

Because I can do code enforcement's work only on a part time basis (as they appear to do also), it will take a bit of time to factor this information into my case notes.


(I'm still standing - and looking forward to the next round.)

.

Fire Drill at the Health Department

Following up on my second public records request to the Environmental Health Department (EHD), the program coordinator and I played “telephone/vacation tag” for a few weeks before we spoke.

My intent with this visit was to copy the entire contents of the five file folders (three inactive trucks, one active truck, and one active commissary) and review everything at home.

At 10:00 a.m. on the morning of December 10th I was at the EHD copier. At 10:05 a.m. the fire alarm went off and all employees and visitors had to evacuate the building and walk three or four blocks to the designated assembly site at a parking lot under the cross-town freeway. It was NOT a drill because a fire truck responded to the alarm. The story I heard was that someone had burned something in the break room microwave. Of course, out in the cold, I had to give the program coordinator a ribbing by accusing him of doing anything to avoid giving me access to the records. I did finish copying the files after the all clear was given.

That night I went through each page, individually, and teased its story out and into my notes. I was heartened to find that the pages I obtained last August to create the “Timeline” were sufficient to prove my “expansion” argument, but more pleased with creating a chart, with ALL the intervening data, that made for a compelling visual.




The chart depicts the three critical dates in 1993 and 1994 that prove TLC Catering both enlarged AND expanded its business use of the property AFTER being explicitly told the prohibition against enlargement or expansion in the Cantu letter. The result was well worth the second visit to EHD (even with parking fees, copying fees, fire drill, etc.) and the night of analysis and charting. Now, when the right time comes to present the case, I won't have to "spell it out" because I've "drawn them a picture."

My problems are: 1) I have been crediting City of Manteca officials with far too much ability to understand law and read written words; 2) expecting the City of Manteca to know what's in their files, or even to locate them, and to be even remotely helpful in aiding a thorough investigation; 3) the EHD (the grandmother) and the City of Manteca (the grandfather) do not combine their separate dealings with TLC Catering (the spoiled, manipulative child) in order to operate from "the big picture."

Anyway, next steps involve receiving the last-requested public records from Manteca, interleaving already received building permit information into my "Timeline," requesting DMV records for license plates on certain catering trucks and the commissary trailer, and searching within Manteca's 1986 annexation records to verify any "grandfathered" levels of legal but non-conforming use.


(Damn! I'll miss that icemaker when it's gone!...)


(NOT!...)

Blind Men and Elephants

In the realms of the brain-dead, the half-wit is king!

Manteca’s Police Chief, David Bricker, sent me a letter telling me (again!) that my case is dead and closed - never to be re-opened - don’t contact us again – call an attorney – have a nice life. He was sounding very much like he had been promoted to City Manager, having the authority to direct and speak for all city departments. While suffering through a Pavlovian rush of endocrine secretions (adrenaline, testosterone, etc.), my mind dissected the idiotic letter and its status quo non-solution. Innumerable mental, verbal, and physical responses to the letter spun in a whirlwind (most were illegal, of course.)

(Because I cannot get the thumbnail/expansion thing to work, a transcript of the letter is below.)

Manteca Police Department
1001 W. Center Street, Manteca, CA 95337 (209) 239-8401

December 3, 2008

Mr. Richard Behling
786 Fishback Ln.
Manteca, CA 95337

Dear Mr. Behling,

This letter is to serve as a closing document regarding our investigation into the matters you have brought to the attention of the City of Manteca. Your concerns have been thoroughly investigated by the various City departments having jurisdiction over the issues.

The property you brought to our attention is, in our opinion, a “legal non-conforming” property and the City of Manteca has no intention of changing that designation. Regarding the complaint that the current owner of the property is producing excessive noise, we also find that there is no violation. Regarding the complaint that the owners constructed an alternative power source illegally has been investigated and they are in compliance. Regarding the complaint of abandoned or inoperable vehicles on the property, all the vehicles were found to be functional though not regularly used and parked entirely on private property.

With regard to your currents complaints, we will not conduct any additional investigation regarding this property, nor will we accept any additional complaints from you regarding this property as to its proper use or noise.

As a result of our review of available information, our conclusion is that the City of Manteca needs to take no action regarding this property. This closure applies to all departments within the City of Manteca. There may be other civil remedies available to you. I would recommend that you consult an attorney for advice in this area.

Sincerely,

//s
David H. Bricker
Chief of Police

CC: All Departments and Parties Involved


Beginning to calm down, I recalled the ancient fable of several blind men encountering an elephant; whereupon, each man described the animal in wildly different terms based on feeling only one body part, such as trunk, ear, leg, or tail. I realized that Manteca’s current code enforcement minions are blinded by the orthodoxy of the myths surrounding TLC Catering, and their responses have all been to piecemeal the problem - each standalone piece being technically legal - and to ignore “the elephant in the room,” or the totality of the illegal commissary. It occurred to me that I am one step closer to “exhausting my administrative remedies,” a phrase my attorney said is necessary before suing.


You want a Yes? vs Won’t take a No!

Happily, I repaired to the keyboard to create this written response:

December 9, 2008

Mr. David Bricker,
Manteca Chief of Police
1001 West Center Street
Manteca, CA 95337

Re: No more complaints re: 810 Fishback Street

Dear Mr. Bricker,

You have finally convinced me of the City's inability or deliberate refusal to comprehend the terms of "grandfathering" in this case. You quoted the "legal, but non-conforming" clause in the second paragraph of Mr. Cantu's letter of June 29, 1993 - a designation I did not ask you to change. However, my neighbors and all City departments completely ignore the restriction found in the third paragraph, namely, "The use may remain, but may not be expanded or enlarged." It is this illegal business expansion I have referred to repeatedly since last August. All additional equipment and processes after annexation are restricted from "grandfathering" and are subject to a Conditional Use permit (pre-1992) or a Home Occupation permit (1992 ordinance), which the owners never obtained - and, likely, could never qualify.

But, I am a reasonable man and I will acquiesce to your dictum by no longer filing complaints in this matter with the City.

From now on I will only make demands for public records under California's version of the federal government's Freedom of Information Act. Indeed, I have already done that on November 14th when I requested nine specific items from the City Clerk, who is the custodian of the City's public records. While walk-in freezers, additional vehicles, a solar power system, an excessively noisy icemaker, and the comings and goings of commercial suppliers delivering food products to the property at all hours - taken individually - may or may not be illegal, when the dates and circumstances of their acquisition are combined with County Health Department's permit and inspection records, the unassailable conclusion is that my neighbors consciously and deliberately made the decision to illegally "expand AND enlarge" the business use of their property. On November 17th I made a public records request for four specific groups of records from the Director of the Environmental Health Department to augment the records I obtained last August from that agency.

Because you mentioned several investigations in your "closing document," I now make a further public records request (this letter is copied to the City Clerk).

The subjects and scope of the requested files and records are:

810 Fishback Street,
Lynda S Allen and/or Theresa A Brassey (810 Fishback property/business owners), and/or
TLC Catering (business name),
From annexation to present.

This records request covers all City Departments, including City Council and City Attorney, and is for:

All correspondence (in whatever media), all business records, all applications submitted (including drawings or diagrams), all permits issued or denied (reason for denial), waivers issued (such as refuse pickup or liquid waste storage), complaints lodged by or against the property or owners (especially the 1992 complaint), investigations made and enforcement actions taken or denied (reason for denial), and all other relevant documents, relating to the property, its owners, the business use, and their neighbors. Specific communications subject to rapid destruction (internal emails, telephone and voice mail messages, memos, meeting notes, etc.) must be immediately protected in order to be made available.

(Joann, duplicates in this request of the items requested previously will not be necessary.)

Mr. Bricker, I have already taken your suggestion and consulted an attorney on three occasions. I have again visited the Environmental Health Department and will obtain copies of their entire files on the illegal growth of this operation. Following a City Council meeting many months ago, you offered the City's resources to assist in prosecuting this matter. I am now calling that marker due. Please furnish any and all documents relating to the subjects above.

Respectfully submitted by,


________________________
Richard W. Behling

cc: Joann Tilton, City Clerk (and please cc: All Departments and Parties Involved, as noted on Mr. Bricker's letter, enclosed.)

enclosure:



(Stay tuned for our next episode, “Fire Drill at the Health Department.”)

Freedom of Information and Public Records

And I thought I had it bad! For a real horror story, read this account of a long and costly wrangle to get public records from Jacksonville, Florida. As published in Folio Weekly on 10/07/2008, all reporter Marvin Edwards wanted was public records held by the city which documented millions of tax dollars channeled to developers and other "connected" individuals to build a sports stadium. Starting to sound familiar?

If you really want to scare the crap out of yourself, here's a fun exercise. All you have to do is make a few word substitutions while reading.

Wherever it says: . . . . . . . . . . . . . . . . . Substitute:

Jacksonville, Florida . . . . . . . . . . . . . . Manteca, California

Gator Bowl/Alltel Stadium . . . . . . . . . Big League Dreams Sports Complex

Florida developer . . . . . . . . . . . . . . . . . Local developer

Jaguar owners . . . . . . . . . . . . . . . . . . . BLD operations leaseholders

Super Bowl Host Committee . . . . . . . . Manteca Convention & Visitors Bureau

other Florida "insiders" . . . . . . . . . . . . other Manteca "insiders"

See what I mean? These things go on all over - not only in Jacksonville, Florida. The reason for my attraction to this article (and my dismay regarding it) is summed up in these two quotes:

Plaintiff: Although the law is pretty clear, ... "our laws in this country are not self-executing and too often it takes someone with fortitude, resources and connections to make the government do right." [emphasis added]

Plaintiff's view regarding Defendant: As [was] made abundantly clear, the Host Committee -- and its city lapdogs -- are perfectly willing to endure "months, if not years of litigation," in order to keep their secrets secret.

.

(Hey, waterboy! We need water over here!)

Can Whales Vomit?

Gotta love Manteca City Hall's technological progressiveness. Quoting the Chief of Police, "While we have initiated an on-line reporting system through the Department's web page that allows victims of an incident to create their own report, during the past year we have received only 486 of our 10,803 reports via the on-line system." That means 95.5% of reports are taken are on-scene, or on the telephone, or when someone sends a letter or shows up at City Hall in person.

Yeah, these are the same tech folks who have TWO systems - the internal one where drafts of proposed ordinances for City Council consideration are found, and the external web-based site which just has city propoganda and the above-mentioned "reporting solution" - and the two systems do not talk to each other.

Anyway, my recent attempts to file reports in the 4.5% group (on-line) resulted in brush-offs marked by brevity of words and devoid of actions. Here is code enforcement's anonymous response to the last request:

-----Original Message-----From: Manteca Help Line [mailto:manteca@user.govoutreach.com] Sent: Wednesday, November 19, 2008 8:13 AMTo: Richard BehlingSubject: Manteca-CRM: Closed Request # 198750 [3437656466356137]

Dear Richard,

Your request # 198750 has been resolved with the resolution:

This is a duplicate request and the issue has been looked into.


Realizing that ALL of my requests directed to code enforcement will be deep-sixed, I returned to each of the three case closures and completed the satisfaction surveys, on the hope that someone else in system followup reads them.


Satisfaction Survey - Request #: 197457 [Abandoned structures/walk-in freezers]

I expect a code enforcement officer to actually know and apply Manteca's Municipal Code. To say, "I have been told by planning...", simply does not make the cut.

I believe a non-compliant situation still exists. The intent for which these codes are adopted is nullified when complaints are handled so sloppily.

Other than that, Why does the complainant have to be fully identified, while the respondent city employee hides behind the anonymity of a computerized system and does not sign the response?



Satisfaction Survey - Request #: 197462 [Abandoned vehicles]

The response does not appear to reference the relevant code sections and a non-compliant situation still exists.


Satisfaction Survey - Request #: 198750 [Abandoned vehicles]

This closed request was an expansion of an earlier request closed too hastily without appropriate action. The statement that "...the issue has been looked into" is a euphemism for "I made it LOOK like I did something." The non-compliant situation still exists.



It totally escapes me what codes these do-nothings are so busy enforcing (or willing to enforce) that they give a pass to the illegal business still operated by TLC Catering, along with its accumulation of castoff and abandoned equipment and vehicles.

And the city wonders why only 4.5% of complaints/reports/and such come through their wonderful new system. Have they considered the "human element" of their system? Maybe the whales are still grazing the greenbacks (you know, "lettuce", "vigorish", etc.)

May they swallow more than they can stomach.

Chumming for Whales

This script is so predictable it does not take a mentalist to recite the lines before the (very bad) actor speaks them.

• Months ago, a code enforcement officer said to me, "Anyone can have a commercial icemaker on their property."
• During the same conversation he said, "The activity going on next door is not a business."
• Last week, a code enforcement supervisor tells me, in essence, "Anyone can have several giant metal freezer boxes on their property."
• And I am now informed (below), "Anyone can collect abandoned catering trucks on their property."

These are the "quality of life" issues as determined by code enforcement officers of the City of Manteca.

This latest exchange took place over a "Papa Bear" sized catering truck, a "Mama Bear" sized vending vehicle, and a "Baby Bear" sized Buick Regal, all parked along one edge of the property next door. All have "For Sale" signs in the front windshields, but nobody can see them because they are totally faded, scootched down sideways behind the windshields, the windshields so dirty it's hard to see them, and they cannot be made out from the sidewalk in any event. Just giant metal boxes on wheels, no longer used in the unlawful TLC Catering business.

The City of Manteca has an on-line program for communications from the citizenry. At city council meetings, the administration simply cannot figure out why so few complaints come through the system versus people calling the police department. Well, here's an example of the shallow and specious responses one gets from the one in charge of code enforcement.

-----Original Message-----From: Manteca Help Line [mailto:manteca@user.govoutreach.com]Sent: Wednesday, November 12, 2008 2:43 PMTo: Richard BehlingSubject: Manteca-CRM: New Request # 197462 [3132316139643362]

Dear Richard,

Thank you for contacting the City of Manteca. We appreciate the opportunity to assist you and assure you a positive experience with us.

The Problem you submitted was:

Request type: Inoperable Vehicle on Private Property

Description:

1. Abandoned mobile food preparation unit (catering truck).

CA license # 4A09350, no current tag. Cast-off from unlawful business operation. Permanently located alongside parking spot of remaining operational truck and used as unauthorized storage unit.

2. Abandoned mobile food vending truck.

CA license # 3V60905, no current tag. Cast-off from unlawful business operation.

3. Abandoned automobile – Regal.

CA license # 732PGK, no current tag.

When a person signs up and logs in, the messages are tagged with all that indentifying information. But the city employee who responds to it is anonymous unless he/she signs the response. In this case - nothing - and this message was irresistable to one who speaks with a mellifluous voice like unto God.

-----Original Message-----From: Manteca Help Line [mailto:manteca@user.govoutreach.com]Sent: Monday, November 17, 2008 2:44 PMTo: Richard BehlingSubject: Manteca-CRM: Closed Request # 197462 [3132316139643362]

Dear Richard,

Your request # 197462 has been resolved with the resolution:

All vehicles on the property are whole and complete and are operable. Current registration is not required unless a vehicle is to be operated upon a public roadway.

How disingenuous is that answer? Any moron, myself included, knows he can't drive without tags! The whole point of the complaint is to get an officer, well-versed in the Municipal Code and its intent, to apply such code to the situation at hand. An even larger issue is this: Equipment formerly used in the unlawful business cannot be "legalized" merely by abandonment, because it then becomes "abandoned." Duh... like, do I have to explain the code to him?

(Of course, this anonymous soul seems to need all the help he/she can get.)

-----Original Message-----From: Manteca Help Line [mailto:manteca@user.govoutreach.com]Sent: Monday, November 17, 2008 6:14 PMTo: Richard BehlingSubject: Manteca-CRM: New Request # 198750 [3437656466356137]

Dear Richard,

Thank you for contacting the City of Manteca. We appreciate the opportunity to assist you and assure you a positive experience with us.

The Complaint you submitted was:

Request type: Abandoned Vehicle

Description:

See Request # 197462, closed prematurely.

Thank you for verifying the operating condition and registration status of the three vehicles listed in the complaint. However, your report does not answer to the definitions spelled out in Manteca’s Municipal Code, Section 8.20.010, A. and D., for abandoned and inoperative vehicles.

These three vehicles are not registered, appear by sight to have been left to the elements, and cannot be lawfully operated upon any highway. Section 8.20.020 recounts the city council making the finding that since the 1980’s the accumulation of abandoned or inoperative vehicles on private property (three’s a crowd!) tends to reduce the value of private property and to promote blight and deterioration and declaring such storage a public nuisance.

The one possible exemption is if “A vehicle” [singular] is completely enclosed within a building in a lawful manner where it is not visible from the street or other public or private property. That would apply threefold to this accumulated fleet, yet the subject property has no such structure or facility.

For the twenty-two months I have been personally aware of these vehicles, there has never been any apparent good faith effort to dispose of them. Indeed, the sun-faded and obscured “For Sale” signs in the windows are truly only diversionary window dressing.

Quit dithering around and issue the "ten-day notice of intention to abate and remove the vehicles."

From my experience with the "Make-The-Citizens-Think-We're-Listening" reporting system, I would strongly discourage anyone from routing any messages to code enforcement for the present... unless you like chumming... and get a nibble like I did.

EHD - Enablng Hardcore Dereliction

Somehow, TLC Catering has managed to stay in business. After seeing some of the shoddy, half-completed Environmental Health Department applications they have submitted over the years, I don't know how they do it, but at least they keep their EHD permits up. Perhaps they make EHD clerks and inspectors go blind by using the same magical fairy dust they sprinkle on Manteca city employees.

Following up on the property's building permits requested last week from the City of Manteca, below is a letter to the EHD seeking a corresponding history of program permits and health inspections. A copy of this letter is also going to the same City of Manteca official in charge of building permits and home occupation permits so he can see what TLC Catering was doing without the city's permission.


November 17, 2008

Donna Heran, Director
Environmental Health Department
600 East Main Street
Stockton, CA 95202

Re: Public records request

Dear Ms. Heran,
I visited your offices in Stockton on August 20th and reviewed the TLC Catering files you provided at my request. Your staff was helpful and the review productive.

Some needed items, however, were not found in those files:
1. The number and type of permits (program elements) existing on December 17, 1986.

2. A year-by-year history of the number and type of permits (program elements) issued from December 17, 1986 to now.

3. Records of the “Program 1680 Plan Check,” referred to on the attached Account Statement. The four hours billed between 6/1/94 and 6/9/94 I assume represent checklists of equipment, diagrams of placement, narratives of commissary processes, and reports of visual inspections prior to issuing the commissary permit on 7/13/94.

4. Annual commissary inspection reports from 7/13/94 to the first one in the commissary file, 12/9/02.

The subjects of the requested files and records are:

810 Fishback Street (Manteca after 12/17/86), or
18594 S Fishback Rd (SJCo before 12/17/86), and
Lynda S Allen and/or Theresa A Brassey (property/business owners), and
TLC Catering (business name).


Ms. Heran, I would be pleased to receive a written response as to when such records will be made available.

Respectfully submitted by,

________________________
Richard W. Behling



cc: Mark Nelson, Manteca Community Development Director


All of this effort is necessary because Manteca's code enforcement still spreads the patently absurd story that TLC Catering's operation is like that of a tradesman parking the company truck in the driveway at home for the night. (News flash! There is no company re-supply depot in the tradesman's garage!)

The owners of TLC Catering apparently don't know a grandfather from a grandmother, and have risked their entire operation on their deliberately ignoring Manteca's zoning laws.

Unfortunately, all the county and city officials, who have had to suffer the insufferable, got magical TLC fairy dust in their eyes.

Manteca City Hall - Black Hole of the Delta

All my communications go in and nothing comes out. O.K., a few weak signals are detected infrequently, but even those are so garbled that nothing intelligent can be made out. Since I am the only person to believe a Home Occupation violation of felony proportions exists, it follows that I should have to do my own research of primary documents held by the City of Manteca.

Here is my first request for public records, held by Manteca, which directly prove the unlawful expansion of TLC Catering, and will bear directly on its relocation - or its demise.


November 14, 2008

Joann Tilton,
Manteca City Clerk
1001 West Center Street
Manteca, CA 95337

Re: Public records request

Dear Ms. Tilton,
The need exists to establish the level of non-compliant business use of a certain residential property at the time of annexation into the City of Manteca on December 17, 1986. More importantly, in exceeding “grandfather” provisions and in the absence of a home occupation permit, the need exists to document the illegal expansion and enlargement of the non-compliant business use in order to properly abate it from the residential property. Therefore, I require certain files and records from the City.

The subjects of the requested files and records are:

810 Fishback Street,
Lynda S Allen (property/business owner),
Theresa A Brassey (property/business owner), and/or
TLC Catering (business name).

I am requesting building permit applications and final inspections for the siting, construction, roofing, wiring, and/or plumbing for the following listed projects. Most of these records were likely generated in the time period of 1992 through 2002; some, of course, may be earlier or later.

1. Portable building, California license plate # FQ1259, used as dry commissary and electrical feed station for catering trucks.
2. Attached covered porch on the west side of portable building in #1, above.
3. Attached covered patio on the northerly east side of portable building in #1, above.
4. Trailmobile full size shipping container, with two roof-mounted refrigeration compressors with electrical feed, on the southerly east side of the portable building in #1, above.
5. Walk-in freezer, with roof-mounted refrigeration compressor and electrical feed, on the north property line.
6. Scotsman commercial icemaker, with remote condenser unit roof-mounted on previously existing outbuilding, with electrical feed, plumbing for water feed and drainage, and refrigerant plumbing, on the north property line.
7. Attached covered patio on the north side of previously existing outbuilding on the north property line. (Support posts and corrugated fiberglass roofing material do not meet required setback from property line.)
8. Seven solar panel arrays, with any storage batteries and control units, in the northerly and easterly portion of yard.

And, one other small thing from either Finance or Solid Waste Division:
Is 810 Fishback Street exempt from curbside refuse pickup? If so, I need evidence of when and how that waiver was determined.

Joann, I would be pleased to receive a written response as to when such records, in whole or a schedule of parts, will be made available.

Respectfully submitted by,

________________________
Richard W. Behling

cc: Mark Nelson, Community Development Director


These are some of the records a competent official would use in verifying the facts I laid out in my November 5th letter. The O. Rex has already risen well past his "Peter Principle" limit, so my hopes are pinned on a new guy to see a real problem, and on an internationally acclaimed city clerk who may know where the records are buried (not just the skeletons.)

Double Talk by the Double Dipper

Now this is a true multitasker! Even while the inventive O. Rex lamely attempts to distance himself from the freshly unearthed last-minute campaign contribution subterfuge by claiming, "I don't mix church and state" (What did he say???), he spins around and reinvents the ongoing illegalities of TLC Catering and its owners. In response to my posting a complaint of two big pieces of abandoned commercial equipment, comes this unsigned answer, hot off the Government Outreach website (aka, "Make-the-Citizens-Think-We're-Listening" system.)



Dear Richard,

Your request # 197457 has been resolved with the resolution:


After recently checking into a similar situation regarding PODS, I have been told by planning that there is no specific prohibition of a shipping container on residential property. There is also nothing that requires that the "walk-in refrigerator/freezer" actually be used for any specific purpose, and therefore, is not illegal.

(Hah! thinks he. City-2, Whiner-0!)

Wow! From what evolutionary epoch does this lethargic, reptilian thinking spring? The fact that the period of time when these freezers WERE used for their specifically designed and intended purpose was an illegal business use, is somehow forgotten and forgiven when the freezers are abandoned and, therefore, now being "legal" need not be removed? What is the intent of Chapter 17.53, Property Maintenance, and why does our twice-paid code guru not understand it and dismiss complaints so lightly? Just because some dillweed debutantes "convert" business assets to personal use (ie., abandonment), the relics no longer contribute to property degradation, or present a public nuisance? Perhaps it is just another ordinary case of Manteca's resident psychotics collecting giant metal boxes with compressors on top for no purpose except to enhance the aesthetics of their back yard?

Go ahead, Mantecans, hang your (clean) laundry out to dry in your front yard and see what happens.

Hauling Out the Trailer Trash - One Piece at a Time

O.K., folks, it's time to clean up for the annual health department inspection of the commissary operation. Of course, we don't have to worry about the really big ticket items because the county's Environmental Health Department only checks food temperatures, hot water, washing hands, and whether the ice scoop is clean (more on that last one later.)


Anyway, five (5) pieces of trailer trash are hidden in plain sight, among all the other building code violations and affronts to common sense and decency. Can you spot them?





The first two fall under something called "Property Maintenance" in Manteca's Municipal Code (Chapter 17.53.) Freezers are specifically mentioned in both the "Unlawful Residential Property Nuisance" section and the "Unlawful Nonresidential Property Nuisance" section - so the code boys from city hall can take their pick (they seem to be confused whether this is a business or not.)

These two big metal boxes with compressors on top were apparently used during TLC Catering's heyday (circa 1999, four EHD truck licenses and the EHD commissary license.) Now they are used for storing junk and harboring vermin and feral cats. Don't believe me? See for yourself.

Abandoned Trailmobile full size shipping container.

Located along east property line, behind the commissary trailer. Cast-off from unlawful business operation. Unused for at least two years, probably more. Formerly used as walk-in refrigerator/freezer with two roof-mounted compressors.


Abandoned metal insulated walk-in refrigerator/freezer.

Located along north property line, in vicinity of commercial icemaker and several refrigerators. Cast-off from unlawful business operation. Unused for at least two years, probably more.

Abandoned vehicles

The three vehicles are under a different part of the Municipal Code, in Chapter 8.20, Abandoned Vehicles. The city council found that: "The accumulation and storage of abandoned, wrecked, dismantled or inoperative vehicles or parts thereof on private or public property not including highways is found to create a condition tending to reduce the value of private property, to promote blight and deterioration, ..." Yup, I agree with that.

Unlicensed and inoperative vehicles can only be stored on residential property if they are enclosed in a building and not visible from the street or other public or private property. The interesting thing about all three vehicles is the For Sale sign inside each windshield, as if the owners are pretending to dispose of them. This car and these trucks "appear by sight to have been left to the elements" and the California Highway Patrol confirms their unlicensed and inoperative status.

It's bad enough that Manteca allows (even protects) an illegal business to operate on this property. Worse, still is the official denial of its existence and operation. Now, we get to watch the business jetsam turn to detritus...

Two complaints were entered into the city's "government out-of-reach" website, one for the two freezers and one for the three vehicles. However, the two "pigeon hole" classifications for the complaints were both assigned to code enforcement, so I estimate the liklihood of real resolution to be zero (0.00%).

We will watch to see which gets the cast offs first - rust or city enforcement people. (No bets taken - that's illegal, you know.)

K.I.S.S. (for Manteca City Hall)

Well, THAT election is over. The radio pundits said, "We have to educate the voters!" My observation is that educating voters is virtually identical to graduating seniors from high school.

The candidates I voted for did not win. {~sigh~} One incumbent is returning to the Manteca City Council. The other may or may not, depending on the final count, because there was only a seven-vote spread last night between second and third. The official canvasse will take a few days.


Back to "educating" Manteca city managers again, I took up the pen (or, keyboard) and sent a letter to the Director of Community Development (a.k.a., Planning Director.) This is the guy who is supposed to be in charge of everything zoning related, including home occupation permits. After meeting with two of his guys last week and leaving only three documents with them, I now included an entire copy of my report and the report of last week's meeting.

November 5, 2008

Mr. Mark Nelson
Director of Community Development
1001 West Center Street
Manteca, CA 95337

Dear Mr. Nelson,

I am requesting a home occupation review by the Director of Community Development, under authority granted him by the Manteca Municipal Code, Section 17.25.020, regarding the following illegal home occupation expansion:

While still part of unincorporated County of San Joaquin, Lynda Allen and Theresa Brassey, owners of TLC Catering, began parking one or two catering trucks on their residential property at 18594 South Fishback Road. From the beginning they operated with only two permits: 1) a business license from the City of Tracy, and 2) a Health Department permit for each truck from the County of San Joaquin, Environmental Health Department (EHD). For whatever reason, the County of San Joaquin allowed that use of residential property, but never issued any Conditional Use permit.

On December 17, 1986, the property was annexed into the City of Manteca and the address was changed to 810 Fishback Street. The city "grandfathered" the existing business use (that is, the parking of trucks); the city did not "grandfather" the business as a whole.

In 1991, a TLC application to EHD indicated they were still using outside commissaries to re-supply the catering trucks.

In 1992, the City of Manteca adopted its Home Occupation Permit ordinance.

Sometime in early 1993, a complaint was lodged against TLC Catering and City personnel responded with some type of enforcement action. This incident caused TLC to request a determination of legal status from Manteca's Planning Department. The City's letter was issued on June 29, 1993, and clearly explained the doctrine of "grandfathering"; that is, TLC could continue to park their trucks on the property, but no more than existed in 1986, and no other business use of the property would be permitted.

(The content of the complaint, the resolution, and the file copy of the determination letter were requested months ago, but the City files have not yet been produced.)

On September 17, 1993 - only eighty days after the letter - TLC made a very risky business decision. Against the instruction they just received, they decided to increase the number of trucks and to build a commissary for all those trucks and to do all this on-site, on their residential property, to avoid renting commercial space elsewhere.

This business enlargement is illegal because of the "grandfather" restriction on business use expansion AND because this 1993-94 commissary project is subject to Manteca's 1992 Home Occupation ordinance. Lynda Allen, Theresa Brassey, or TLC Catering did not even bother to apply for a home occupation permit.

Manteca Planning Department and Code Enforcement were A.W.O.L. while TLC Commissary was born. On July 13, 1994, EHD issued a Commissary Permit to TLC Catering, after much of the following was accomplished.

• A portable building (with building permit?) was brought onto the property to serve as the dry commissary.
  


• A metal walk-in freezer and a full size steel shipping container (building permits?), with roof-mounted compressors, were installed to store frozen products.
  


• Various refrigerators to hold perishable ingredients for use in the mobile food preparation units (catering trucks).
  


• Commercial delivery trucks from Crystal Dairy, Hostess Cakes, and Oroweat make regular deliveries to the property at 3:00 a.m., 6:00 a.m., 12:00 noon, and other times.
  


• The crowning achievement was to acquire an antique commercial icemaker to produce up to 400 pounds of ice a day for use on the ice-cooled trucks. (Not rated for household use and wrongly located, all the noise goes to the neighbors!)
  


• In addition to all the commercial equipment, sheds, porches, and coverings (more building permits?) were constructed all around the property to protect their investments from the elements.
  


• Plugging in the trucks at night, floodlights, strings of yard lights, and all the commercial appliances draw power... LOTS of power. Seven massive solar panel units were installed and wired into the property grid.
  


• Solid wastes from the catering trucks were (and are) stored on-site in an open pickup truck until taken off-site to the refuse transfer station.
  


• Liquid wastes from the catering trucks were (and are) stored on-site in barrels until taken off-site by a pumper truck.
  
  
  Please correct this unconscionable situation. This is a power assigned to the Planning Director by city law. I am not seeking the closure of the commissary, merely its relocation to a properly zoned location. This is not code enforcement's call; they will be obligated to carry out the decision, but they do not make the decision.
  
  Enclosed you will find a copy of the report, with footnoted attachments and other enclosures, received by Mr. Pinkerton on September 3rd. In addition are my notes of my October 29th meeting at City Hall with Mr. Meissner and Mr. Rey.
  
  
  Respectfully submitted by,
  
  _____________________
  Richard W. Behling
  
  
  Enclosures: Timeline Regarding 810 Fishback Street, with footnotes and attachments.
  Review of EHD Public Records.
  Commissary Operations Observed.
  Abatement Options and Special Conditions.
  Notes on Meeting with Mr. Meissner.

Let's see how much more time Mr. Nelson needs to wrap his head around the facts.

Actually, Mr. Nelson was just appointed as a big cheese with the Redevelopment Agency (RDA.) Since my neighborhood is blighted by an operating business, with business noise and abandoned business equipment littering one particular parcel, perhaps the RDA could redevelop that parcel back into a residence? Hmmm... our tax dollars at work.

(I hope he gets it done before the infamous O. Rex [spawn of the insatiable T. Rex] trundles himself down the hallway at the smell of new blood.)

Manteca Trick or Treat

O.K., back to a more-or-less recounting of my prodding the City of Manteca to enforce codes they adopted…

After sending my research report to Mr. Steve Pinkerton, city manager, on September 2nd I waited for the City Council meeting on October 6th.

When Friday morning, October 3rd rolled around, I downloaded the city council agenda for Monday’s meeting. The item I requested was nowhere to be found, so I emailed Mr. Pinkerton and asked about it.

Surprise! I got a return telephone call, after which I wrote up these notes:

- - - - - - - - - -
Notes from October 3, 2008 - Rex Osborne called at 1:15 p.m. in response to my mid-morning email reminder to Steve Pinkerton.

1. He offered me a researching job (in partial jest?) in light of my letter and report of September 3rd.

2. The city manager, department heads, and code enforcement, (but not the city attorney,) had met about my complaint. (By deduction, just prior to the meeting in #3, below.)

3. The city has met with TLC regarding moving or enclosing the ice machine. (From tracking my neighbor’s icemaker operation, the meeting took place toward the end of July.)

4. The city is bringing in an acoustics firm to measure the sound levels and timing of the ice machine.

5. It is possible that “sunset” dates may apply to the grandfathered conditional use of the property.

6. It’s not likely that my item will ever make it to the City Council agenda, but will be handled administratively.

7. The city will assist if I go to court to obtain an enforceable order against my neighbors. City attempts to maintain “neutrality.”

8. My inquiry about a definite time frame (end of year? or, next summer?) was given an indefinite answer.

I changed the conversation focus, and asked about abating the entire commissary, including the ice machine, which was the major finding of my research submitted to the city manager on September 3rd.

9. The letter from Ben Cantu to TLC is not in the city files - it was prepared at TLC’s request for TLC to show or to give to EHD only.

10. The city attorney has not reviewed the Timeline of business expansion yet. He also was not at the (July) meeting.
- - - - - - - - - -


On Monday morning I again emailed Steve Pinkerton and included my notes from Rex’s phone call. In it I rejected the city’s illegal “offer” and outlined my “deal” to abate the commissary, including the icemaker.


October 6, 2008

Mr. Steve Pinkerton, Manteca City Manager
1001 West Center Street
Manteca, CA 95337

Dear Mr. Pinkerton,

I appreciated your follow up to my inquiry last Friday. For your information, below are my notes from the conversation I had with Rex Osborne.

Rex’s news was “old news.” He appeared to be offering me a deal whereby TLC Catering could continue to operate its illegally established commissary in exchange for building a sound containment structure around the ice machine. I will not agree to this arrangement, because it does not remove this business blight against my residential property. Further, it does not meet the city’s own home occupation or conditional use codes, and any attempt on the part of the city to issue such permits at this late date will be challenged.

More importantly, why haven’t my report findings been reviewed during the last month? Is the City Attorney not available? I allowed you a month of review time in order to synchronize with the city council meeting schedule, yet almost five weeks have been wasted before I’m told nothing has been reviewed and you will not take up this item in public.

Here’s my deal. (Option #1) If you will go public, I will allow you another two or three more meeting cycles. Merely specify the meeting date chosen to me by this Friday, October 10, 2008. (Option #2) If you elect to retain exclusive administrative control, I can only allow you two more weeks (Friday, October 17, 2008) before again retaining legal counsel of my own – and we will go public anyway. Under either option, either confirm my findings and take action to remove the illegal commissary operations, or refute my findings with contemporaneous documentation from your own files or from the business owners.

It is a sorry state of affairs should I have to pay for legal counsel to prosecute, and should taxpayers (myself included) have to pay legal fees for a City Attorney to defend, in the same action. I, the victim of the city’s negligence, am being “double-dipped” and the city cannot remain neutral.


Respectfully submitted by,

_____________________
Richard W. Behling



Another telephone message from Rex Osborn in the afternoon. He said he had read what I sent Steve Pinkerton and appeared most anxious to make corrections to my notes. (It’s too bad, though, that Rex relies on his superior verbal skills rather than putting anything in writing.) He again referred to something about a sound meter. Just prior to leaving for the city council meeting, I emailed the following to both Pinkerton and Osborn:


Mr. Pinkerton and Mr. Osborn,

Thank you, Rex, for your return phone message at 1:22 today.

Two quick points (please, pardon the bluntness):

Rex, forget the noise meter. The ice machine will go away with the other commissary equipment.

Steve, whether you and/or John Brinton review my report or not, if your chosen Friday deadline is missed, we’re off to court.


Richard Behling


Both Friday deadlines (October 10th and 17th) passed with nary a peep, so on Monday, October 20th I consulted with my attorney for a third time. He lectured me about not getting on the agenda. We called the City Clerk’s office and learned that a councilman needs to sponsor an agenda item.

(Oddly, the very next day, TLC Construction Company sprang into action and hammered up their Cheap Trailer Trash Sound-Enhancing Plywood Edifice.)


It was still my turn in this chess game.

- - - - - - - -
Notes on meeting with Mark Meissner, Planning Manager, and Lantz Rey, Associate Planner.
Wednesday, October 29, 2008, 1:15–2:00 p.m., Planning Department Conference Room at city hall.

I went to the Planning Department in order to schedule a short personal appointment with Mark Nelson, Director of Community Development. When asked the purpose of the meeting, I gave my name, the topic of an unpermitted business, and three documents - the 1993 Cantu letter, the 1993 EHD statement, and the email from San Joaquin County planning. After many minutes, I was allowed to meet with the two listed above instead of the director.

The meeting started with Mark and Lantz rehashing the “noise problem” and how I was not cooperative with the code enforcement attempt to use a $400 rental sound meter. Mr. Meissner said my actions made no sense.

My response: Manteca code enforcement, Rex Osborn, knew of the need in April, but wrote, "...case and complaint closed with no further action." Several plywood sheets were hammered up by the neighbors, serving as the only communication with me. Such inaction forced me to continue researching and consulting with an attorney. On August 20th I had already found documented evidence of TLC's illegal business expansion. Therefore, when Rex made his “offer” of icemaker noise abatement in October, I rejected it in favor of commissary business abatement, icemaker included.

Mr. Rey mentioned the icemaker would probably stay, even if the commissary operations ceased. I told him the icemaker was an integral part of the operation; of all equipment to be removed from the property, that one topped the list.

The email from the county, saying a search turned up no land use permits, was dismissed by Mr. Rey as possibly not comprehensive. I told him my August inquiries established a base from which he could use his official access to corroborate my work. The validity of the 1993 Cantu letter was undisputed, but they did not understand the significance of the 1993 EHD statement. (This is exactly why I asked for a face to face meeting.) I pointed out that the dates and entries meant the commissary expansion occurred the year AFTER Manteca adopted its Home Occupation Permit ordinance, and this business expansion clearly qualified as requiring a permit. I had to explain the health department’s policy of “non-involvement” with applicant’s dealings with other regulatory bodies; EHD assumes all other necessary permits are in place.

These three documents are copies of attachments included in my report to Steve Pinkerton, City Manager. They claimed they already had a communication from the City Attorney about the lack of standing about the “noise problem” but, when pressed, they admitted no communication regarding the absence of a Home Occupation Permit. (Meaning: my report still has not been reviewed. Hmmm… September 2nd to October 29th is… 57 days!) They made the excuse my complaint was not the only work they had to do; they admitted that the city files had not been located, nor even looked for.

All in all, they kept parroting the “Rex Osborn Orthodoxy” of noise, noise, noise. Several times they accused me of “jumping around” from department to department. They called me uncooperative with their efforts to solve the noise problem. My neighbors have been visited several times, but never has anyone called me for a visit or a meeting. Several times throughout the meeting, I had to redirect them to the root cause of the problem – an illegal business expansion, icemaker included. No more commissary; no more icemaker; problem solved.

They accused me of trying to put these women out of business. I told them my very first letter of March 5th stated my wish for no noise; my second letter of April 4th outlined my aim of having the business moved, not shut down. I have now given them proof that the commissary should not be on that residential property.

- - - - - - - -


This meeting was a primo demonstration of mental gridlock at the top levels of Manteca city government. Niccolo di Bernardo dei Machiavelli, the enunciator of antique and modern political machinations, would be so proud of their brush-off performance (much, much too little, and very, very late.)

Here we go again… more months wasted by our public indentured servants, who are hired for their brains and talents at salaries higher than most people, yet still cannot seem to keep up with anything more complex than… uh…uhn… Trick or Treat!

Pay the Piper How Much?!

A disturbing dream haunts my fractured sleep. A group of demons straight out of C. S. Lewis' book, The Screwtape Letters, are gathered in a ring surrounding a large, complicated rat maze topped with glass. Their faces light up in glee each time the rat takes a different path, though they never provide the animal any assistance or direction. As the rat reaches the utmost point and casts about in confusion and anger, the demons erupt into a hysteria of guffaws and backslapping. The source of their glee is because they know EVERY path is a dead end.








My deadlines for the city manager to respond to my September 2nd letter passed with no response, not even the slightest glimmer of acknowledgement, meaning... they lived up to my expectations. Our city officers have every power and obligation, right now, to enforce the ordinances on the books, and a taxpayer-provided city attorney to help them get it right. Yet, even with a clear understanding of my case, they willfully and stubbornly refuse to perform their duties - and the taxpayer-provided city attorney is party to it.

I tried to lighten up my public comment in a city council meeting, while maintaining the deadly serious nature of my intent, by reading stanzas 4-7 of the following ditty:

Code Enforcement: Proactive, by Complaint, or Highest Bid?

'Twas three hours after midnight and all through the house,
Every creature was sleeping, but the neighboring mouse,
When outside my window there arose such a clatter
I was forced from my bed to take care of the matter.

I slammed shut my windows and yanked down the blinds,
But the assault continued 'til three fifty-nine.
The ice into buckets repeatedly poured
And I thought it would never stop - more, more, and more...

We live in a town, you see, ruled by committee,
Who's idea of action is to preen and look pretty.
Their minions - no better - can spin many words,
But their twittering sounds just like so many birds.

Just three days ago, one man called to say
He’d worked out an armistice. Did I want to play?
I looked at the calendar and shook my head. Why?
Why am I in October and your deal from July?

The Three Beaches business is still running anon
Although the zone’s ordinance says they are wrong.
We’re far beyond icemaker - I’m way down the tracks
Where Crystal and Oroweat and Hostess attacks.

Do you really expect me to give up my rights
To a quiet R-1 neighborhood and e’en quieter nights?
It appears city minions are shirking their duties
When they ignore the scofflaws and don't kick their booties.

I've given you evidence from the beginning of time,
Which shows unmistakably damn near a crime.
You can read it all now, or you will look at it later
When fines pile up because TLC tries to Cater.

Please stop the dawdling and self-serving maneuvers
And become this town's straight-shootin’ shakers and movers.
In just four short weeks, voters will have their 'druthers -
So, farewell to some and hello to the others.


(apologies to Clement Moore and Dr. Theodor Geisel [Dr. Seuss])

I consulted with my attorney a third time on October 20th. He tells me my case looks sound, but I still have no public forum in which to argue it. My choices appear to be 1) fork over $8,000 to $10,000 for his legal assistance in county court, or 2) lobby each (and possibly every) council member for one to sponsor a public hearing item on a city council meeting agenda, in order to consider the matter and give direction to city staff to do the job they already have an obligation to do. (Hint: that obligation is usually called a job description, and most people who can't, won't, or don't do their job get fired.)

I'm following this city council election very, very closely.

The Never-Ending Machiavellian Comedy

This one has to be a pictorial. My neighbors' completely juvenile behavior could never be explained properly without these images.

Last April 28th was the first time the city's public affairs officer, who is also the code enforcement supervisor, stood around next door and seconded a police officer's earlier suggestion that a sound barrier be installed. Of course, he left it entirely up to the owners, and the first picture shows what resulted.

A single sheet of 1/4-inch plywood was screwed to the 4x4's in front of the noisy icemaker! The little hens go, "Cheap, cheap, cheap." Absolutely no noise reduction was accomplished. However, they played it up big time, as true devotees of Machiavellianism, using the same guiding principles as our city government officials.

After my exclamation of protest and dismay was put in writing, another visit was made somewhere around July 22nd. The neighbors were strongly advised to curtail nighttime operation. After that date the machines, compressor and condenser, were turned off around 7:30 each evening. (But they are still manually started up at approx. 6:00 a.m. every morning.

Even if it's only a 30-second self-check, it still wakes me up.

My guess is they were visited again in mid-October because, on October 21st, a little bit of hammering was heard. This is now the view from my bedroom window. I call it Cheap Trailer Trash architecture. But it's eco-friendly what with the piece of recycled siding sticking up over the plywood. Does anyone believe it meets building code?

Would a REAL code enforcement officer go for this evasion of reality? A REAL code enforcement officer would have required a permit (because it's being attached to an existing building), proper engineering, proper materials, and a competent contractor to construct something with such a specific use as noise attenuation. And it does nothing to address the noise from the condenser on the roof - a commercial unit, not rated for household use. It is unlike any standard air conditioner or heat pump. Such is the sorry state of code enforcement in Manteca.

This is looking over the fence and to the east.

This is looking over the fence and to the west.

Do these poor saps - next door and downtown - really think I'm going to negotiate away my right to abate this illegal operation for a few sheets of plywood?

The curtain has not yet rung down on this tragic play.

Detailing the Commissary Operations

These are the two other items referenced in the cover letter to the city manager and included in the package.


Commissary operations observed

12:00 midnight – yard lights come on. MFPU is opened and powered up. Refrigerators in icemaker area are accessed. MFPU is cleaned, sanitized, and restocked with dry, refrigerated, and frozen inventory.

3:00 a.m. Monday’s – Crystal Dairy refrigerated commercial truck arrives for deliveries, 10-15 minutes.

3:00 a.m. to 4:00 a.m. Mon-Fri – Ice shuttled from icemaker to truck in successive rounds. Ice is scooped into 5-gallon plastic buckets and transported to the catering vehicle with a wheelbarrow. (1st time of the day.)

4:00 to 4:10 a.m. – MFPU starts up and idles until departure for Tracy with two attendants - one driving, one slicing and dicing.

6:00 a.m. – One day each week, Hostess Cakes commercial truck arrives for deliveries.

6:00 a.m. Mon-Fri – Scotsman/Follett icemaker manually started up, if not already running from the nighttime, after which the third resident departs for work in Stockton.

Depending on daytime temperatures, icemaker may run all day.

12:00 noon – One day each week, Oroweat commercial truck arrives for unattended deliveries. Driver accesses property through locked gates.

1:00 p.m. – MFPU returns from Tracy.

1:00 p.m. to 2:00 p.m. Mon-Fri – Ice shuttled from icemaker to truck in successive rounds with 5-gallon plastic buckets and a wheelbarrow. (2nd time of the day.)

(Unobserved, but likely, during the afternoon: solid waste offloaded and stored; liquid waste tanks emptied and waste stored in barrels; water tanks drained and readied for refilling.)

Owners routinely buy and store dry goods in on-site inventories. A portable structure was brought on-site to serve as the commissary, but storage occurs in other places, such as the refrigerators in the same area as the icemaker.

Before early bedtime - Ice shuttled from icemaker to truck in successive rounds with 5-gallon plastic buckets and a wheelbarrow. (3rd time of the day.)

Depending on nighttime temperatures, icemaker may run all night.

As needed, a septage pumper truck arrives to collect stored liquid wastes. (Once observed at 10:30 p.m. to 11:30 p.m.)

A special note on utilities: Solid waste disposal and electrical usage appear to be commingled with household uses.

As needed, an old pickup truck hauls stored solid wastes to transfer station. Business wastes are commingled with household waste and property’s yard waste. Residents do not set out Manteca Solid Waste Division Toters for Friday morning pickup, as do neighbors on both north and south sides.

The solar panel arrays are wired to an unknown central location, and the location of the solar power storage batteries is undetermined.

Electricity used by the business:

The MFPU’s are electrically powered while parked and/or being serviced each morning and afternoon.
Long strings of yard lights are turned on every morning from 12:00 midnight to 4:15 a.m.
Floodlights in icemaker/refrigerator area turned on and off frequently each morning as the area is utilized.

Other electrical business appliances specifically mentioned in EHD inspection reports:

Scotsman/Follett icemaker,
Walk-in freezer (0°),
Vering refrigerator (40°),
Pepsi refrigerator (35°), and
Hot water source for the commissary bathroom (unknown if electric or gas heater.)

The secondhand Scotsman/Follett icemaker was acquired and improperly installed, so as to create a noise nuisance. Very minor household usage is noticed; nevertheless, almost all of the ice goes into the catering truck. (Note: A sound recording in .mp3 stereo format is available. It was recorded [in sound activation mode] on Monday, August 11, 2008, covering midnight to 6:30 a.m. While the focus of the recording is the icemaker and its usage, a few other sounds from the yard were picked up. The 5½ -hour file is indexed for the major event sounds.)



I have lived and breathed this violation ever since moving in. Of course I have suggestions for getting rid of it!


Abatement options and special conditions

There is no intention, nor ever has been, to put TLC Catering out of business. That is a choice entirely up to the owners. These options are strictly suggestions to bring about compliance (or, legal, nonconforming status) with zoning codes. All options exclude the parking of the “grandfathered” allowable number of MFPU’s on the property.

1. Attain lawful status. Obtain proper permits by full and rapid compliance with current home occupation requirements in Manteca's Municipal Code. (Probably not possible, which means everything has to be removed or shut down.)

2. Timely removal of commissary business. Relocate all business assets, operations, and uses to a suitable commercial district. (Perhaps they could become a commissary business for other caterers.)

3. Sell the commissary business and assets. Buyers to relocate all business assets, operations, and uses to a suitable commercial district.

4. Immediate closure. Cease all commissary business uses of the property. All commissary assets and operations are to be discontinued, disabled, abandoned or disposed.


Special conditions:


The icemaker (condenser, compressor, and bin) must be completely disabled or removed under any option or action.

(Meant for the commingled electrical system and fence line appliances, but applies generally.) Conversion of any business assets to personal use, and remaining on the property, must be approved by an abatement officer on an item-by-item basis to prevent circumvention of abatement orders. All conversions remaining on the property shall be re-evaluated in light of current regulations before approval.

Because of the owners' record of ignoring and evading lawful regulation, special probationary inspections of the property should be conducted for a period of time to ensure compliance with the abatement orders.


I gave the city manager and minions about five weeks to revew the whole package and get back to me.

Did anyone respond? No.

Patty Letawsky called it perfectly - the whole of the city machinery is ABSOLUTELY DISMISSIVE.

The Timeline of TLC's Illegal Business Expansion

Today I climbed the pole for my yard light in order to take aerial pictures for a later project. It is an old wooden pole and, beginning about twelve feet up, has those climbing lag screws that linemen used to use before lift baskets. I hope the light bulb never burns out, but I will have to rewire the light someday.


This picture is an overview of the neighbors business yard, in the back of their half-acre lot.




Back to the very core of my complaint to (and about) the city.

Immediately following the cover letter to the city manager were these two inclusions - the footnoted research report and the discussion regarding the health department source. You'll see that fifteen years ago code enforcement fell asleep, like Rip Van Winkle, but I'm still trying to wake him up.


Timeline Regarding 810 Fishback Street

December 17, 1986 - the City of Manteca annexed the area including 18954 S. Fishback Road [A] and re-numbered the property as 810 Fishback Street. The existing business use was noncompliant with City zoning ordinances for an R-1 district, and was “grandfathered” or allowed, but limited to current level of business use at date of annexation. [B]

March 15, 1989 - Fictitious Business Name was recorded for TLC Catering. [C] It is unknown whether previous filings were made, but no subsequent filings are in the Grantor/Grantee Index of the Recorder's Office after the five-year expiration date.

March 7, 1991 – TLC Catering application letter to EHD listing the four external commissaries utilized by TLC Catering at that time. [D] All of the commissaries listed were away from the property, the main one being a Save Mart supermarket in Tracy. All of these commissaries are businesses, as are the pre-approved commissaries listed on EHD's website. [E]

1992 - The City of Manteca adopted into its Municipal Code, Section 17.25 Home Occupation Permit, with which TLC Catering was noncompliant to an even larger degree than before.

June 29, 1993 – Legal status and limitation letter from Manteca Planning Department to TLC Catering, at the business' request. [F]

September 17, 1993 - The owners of TLC Catering made application payment to EHD to establish and operate a catering truck commissary, naming their property at 810 Fishback Street as the location. [G]

July 13, 1994 - EHD issued commissary permit to the owners of TLC Catering. [H]

July 1, 1994 through June 30, 1995 - EHD permits allow three MFPU’s, and one new commissary. [I]

January 1, 1999 through December 31, 1999 - EHD permits allow three MFPU’s, one Limited Food Prep Vehicle, and one commissary. [J] [K] This is the highest number found for permits issued in a given year.

December 9, 2002 - First commissary inspection on record in EHD files, even though the commissary permit was issued July 13, 1994. [L]

November 18, 2003 – Permit renewal invoice for 2004 reduced to two MFPU’s and one commissary. [M]

December 9, 2003 - First commissary inspection reference to ice - "Ice for cooling only." [N] Sometime prior to that inspection a secondhand Scotsman/Follett icemaker was acquired for commissary use, and improperly located and installed so as to create a noise nuisance for neighbor.

Between September 2002 and May 2004 – According to aerial photos, sometime within those twenty months, seven massive solar panel arrays were acquired and installed to handle the electrical needs of the commissary business, the MFPU business, and all personal household uses. [O] [P]

Commissary inspections - December 21, 2004, January 31, 2006, February 20, 2007, January 29, 2008. [Q]

August 18, 2008 – Current EHD listing shows only one MFPU and one commissary now active. [R]

- - - - - - - - - -
Endnotes:

[A] Linda Lund, Commission Clerk, LAFCO. Email of August 22, 2008. (Manteca annexation #106, 1984-4, Brocchini – Pacific Road, Resolution R-7838.)

[B] Benjamin Cantu, Senior Planner, City of Manteca. Letter of June 29, 1993.

[C] County Recorder, Grantor/Grantee Index.

[D] Theresa Brassey, one owner of TLC Catering. Letter to Dan Guerra, of San Joaquin County, Environmental Health Department.

[E] EHD website, Program Forms.

[F] Ben Cantu, ibid. (See document B.)

[G] EHD statement of 8/15/94, invoice #004168, dated 9/24/93, payment of $234.00 posted on 9/17/93.

[H] EHD statement of 8/15/94, invoice #013551, dated 7/13/94. (See document G.)

[I] EHD permit letter, issued 10/5/94.

[J] EHD Invoice #051871, dated 11/16/98, in the amount of $700.00.

[K] EHD permit letter, issued 1/19/99.

[L] Entire Commissary File copies. (See document L-7.)

[M] EHD invoice #IN0113520, dated 11/18/03.

[N] (See document L-6.)

[O] San Joaquin County, G.I.S. aerial photo, September 2002.

[P] San Joaquin County, G.I.S. aerial photo, May 2004.

[Q] (See documents L-5, L-4, L-3, and L-2.)

[R] EHD Facility Ownership Information File. (See document L-1.)

(Referenced documents to be edited in when - or if - I get around to them.)



Immediately following the researched timeline was this discussion regarding the significance of the files held by the County's Environmental Health Department.


Review of EHD Public Records for TLC Catering

August 20, 2008 – Research visit to San Joaquin County, Environmental Health Department (EHD) offices, to review the public records for TLC Catering. Copies of certain items pertaining to this matter were obtained. References to EHD permits and inspections are used to establish operating business timelines.

One particular document has singular and stunning relevance. This letter was written in 1993 by Benjamin Cantu, in his capacity as Senior Planner, City of Manteca Planning Department, to Lynda Allen, one of two TLC Catering business owners, and is highly significant for three reasons. First, its mere existence indicates that Manteca City Planning undoubtedly has certain files which apply directly to this matter. These files could help establish the pre-annexation level of business use (ie., the number of catering trucks being parked on the property.)

Second, the letter creates an indisputable benchmark as to when and how much the owners of TLC Catering knew concerning their rights, obligations, status, and restrictions under the City's zoning ordinance for home occupations (nonconforming since the 1986 annexation, doubly nonconforming after the 1992 home occupation ordinance was adopted.) Correspon­dence with Mr. Cantu on August 22, 2008 indicates that the owners’ request for the letter of clarification of legal status was prompted by a complaint, investigation, and action taken against the owners of TLC Catering.

Third, the letter was hole-punched and filed in the Environmental Health Department files for TLC Catering, showing that EHD was definitely in the communication loop, but still issued an increasing number of health permits, including a new on-site commissary. Why this particular letter was in EHD files is a puzzle, but EHD’s actions are consistent with its mission.

EHD permits have no bearing on zoning or home occupation permit decisions made by city or county jurisdictions. However, it is obvious that the business owners relied on them as authority to expand their business on their property, even after being explicitly told by the City of Manteca on June 29th, 1993, that they could not do so. Just two and one-half months later they applied to EHD for a health permit to operate a home-based commissary, had it permitted by July, 1994 (see EHD statement and 94-95 permit), and subsequent EHD inspection reports verify its operation.

The two conclusions I have reached from my research are: First, the business use of 810 Fishback Street is “grandfathered” only to the extent of its use at the time of annexation to the City on December 17, 1986. According to what I found in the EHD files, that use consisted only of overnight parking of MFPU’s (also known as, Mobile Food Preparation Units.) The number of units in 1986 is unclear, but reached the number of four valid MFPU permits issued in 1994.

Bear in mind that an EHD MFPU permit only grants authority to operate a unit in a sanitary manner. An EHD permit does not grant authority to park a unit on any given property, even though an address is specified for inspection purposes. Local zoning laws control the land use (R-1 residential, in this case.)

Second conclusion: Because nonconforming uses are prohibited from expanding, it follows that the substantial enlargement of scope, business assets and operations since annexation, resulting in a fully operational on-site commissary, is illegal and must be abated. The deliberate and contrary decision by the owners to develop a commissary on their property came almost immediately after a City Planning Department letter of legal status and restrictions was delivered to them. In fact, the most damning aspect of this violation is that the letter had been prepared at one of the owners’ request and they still went against the instruction.

Again, bear in mind that an EHD commissary permit only grants authority to operate such a service business in a sanitary manner. This EHD permit does not grant authority to operate this service business on any given property, even though an address is specified for inspection purposes. Local zoning laws control the land use, both generally and more particularly by the Home Occupation ordinance adopted by the City in 1992 (Municipal Code 17.25), the year prior to the owners’ EHD commissary application.


This research proves that my neighbors and certain city personnel are guilty of rather serious errors, omissions, and misinterpretations. There is also the possibility of "protection" being afforded by patrons of TLC in the city's bureaucracy, as well.