Thursday, October 30, 2008
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:
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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.
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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.
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.
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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.
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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!
Thursday, October 23, 2008
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.
Wednesday, October 22, 2008
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.
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:
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.
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.
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]
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[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.
Tuesday, October 21, 2008
Then an outsider appears who is able to succinctly finger the problem. A young woman from Wilton, probably of left-leaning attitudes, speaks up in a public hearing and receives the same treatment as all other loyal subjects of the fiefdom - all considerations other than those predetermined are swept aside and another motion carries 5-0. In the public comments at the end of the meeting, she returns to the podium to smack down the mayor, the councilmen, the administration, and the city attorney. Then she writes this letter to the Sun Post. (It is reprinted here because the Sun Post website is out of commission.)
Written by Sun Post Friday, 05 September 2008
No room for the “Good Old Boys Club”
I am writing in hopes that you will print a letter about the disappointing conduct of the Manteca City Council, mayor, city attorney and chief of police.
About two weeks ago, I initially voiced my concerns to the Manteca City Council regarding the illegalities of certain portions of the proposed pit bull spay-neuter ordinance. My hope from the outset was simply for the ordinance to be amended in order to, 1) put the city in compliance with state law, and 2) ensure the ordinance was fair.
I have had contact with and/or worked on various issues with the governor's office, the attorney general's office, state senators, assembly members, city councils, boards of supervisors, police departments, etc. Each of the aforementioned bodies of government, though I'm sure extremely busy, took the time to acknowledge, correspond and communicate in an effort to address whatever item of concern was at hand.
I cannot state the same for the City of Manteca. Just some of what I endured was: I sent letters to the entire council and mayor, and via certified mail, copies of Senator Jackie Speier's letter of intent regarding the state law, with no response. I asked each council member and the mayor via email the simple question of when the vote for this ordinance was set. No response.
After several days, I tried calling the clerk (who was very pleasant and helpful) and she gave me the date of the vote and let me speak with Police Chief Dave Bricker regarding the ordinance. I told Chief Bricker I had been trying but had been unable to find the actual ordinance language, and asked if he could email it to me. His response was to find it on their Web site. I had already checked there, but I checked again. It still wasn't on the Web site.
My friend emailed the city asking for the ordinance language. They sent her the incorrect document. I had another friend email the Manteca Bulletin writer who had quoted the ordinance in his article to ask him for a copy. Not even a response from him.
I tried to find contact information for the city attorney. He is not on the city Web site. I finally located his number and left a message asking the city attorney to call me back to discuss the ordinance language. Never a response from him either.
An attorney I know of also sent correspondence to the city letting them know that they were not in compliance with state law. They didn't even feel the need to reply to the attorney either.
I mentioned to my father one evening that dealing with Manteca reminded me of a 1950s town in the Deep South. Ironically, the very next day I was introduced to someone who had been a Manteca resident for 10 years who described the dynamics of Manteca's political scene as, quote, "Think American South circa 1950."
I fully realize that the nature of the beast is that we all do not always agree on all issues. However, in general, where governing bodies are concerned, lines of communication are opened with an eye toward coming to a resolution instead of the absolute dismissiveness exhibited by the City of Manteca officials.
I don't care how big of a city or how little of a town you live in, in the year 2008, there is no room for a “Good Old Boys Club” at the helm of any governing body. —Patty Letawsky, Wilton
Let me tell you, it was a standing ovation moment. I could have kissed her! (Patty, darling, call me?)
Two quick points:
1) I asked the city clerk about ordinance language not being on the website, when the Chief of Police said it was. I was told the "internal" system has all that stuff, but the public website does not. Get it straight, Chief, when talking to the public you are supposed to serve. (And, get IT out of the 20th century, already.)
2) The city attorney has been in his position almost as long as Jack Snyder has been in a council seat. He's a mystical, magical character, whose law firm has been sucking on Manteca's money teat for decades. There is no way any contact information about "the man behind the curtain" would ever be made available to a citizen because, you see, taxpayers buy his services to keep the city's butt out of the sling should a taxpayer ever sue the city. Brilliant!
Ten days ago the following article appeared in the local daily:
Time for a real sign from the Manteca council, published 10/11/2008 by Dennis Wyatt, Managing Editor, Manteca Bulletin
I could not pass up the opportunity to respond. It is unfortunate, perhaps cowardly, that the Manteca Bulletin chooses not to show responses publicly on the website. This is what I sent:
Dennis, I beg to differ with your view of Manteca’s anti-business stance. You use one example to illustrate your argument; I use one example to show the exact opposite.
Manteca loves one particular business which has been operating within city limits for twenty-two years, but the city has never issued permits for them to operate, nor collected a nickel in business license fees, nor exercised any oversight of its growth or expansion during that time. Neither has Manteca paid any attention to complaints from the neighbors of this business operation over the years.
In fact, quite the opposite. There is every appearance that the owners have one or more patrons within the city bureaucracy, who deflect criticism and squash every attempt to correct this situation. Whatever form this protection payoff takes, the result is that this business flourishes. The savings alone from not paying rent for commercial space has ensured its continuance and profitability.
The cost not accounted for is the heavy toll levied on the neighbors, who suffer day and night with this scabrous travesty of free enterprise – this municipal welfare of the worst kind. The owners scoff at laws and regulation; law/code enforcement officers scoff at any person with the temerity to suggest wrong is being done; enforcement action is out of the question.
Where is this business operating? On a residential property in the heart of a residential neighborhood.
Who are they and what do they do? Lynda Allen and Theresa Brassey own TLC Catering, and run “roach coaches” to Tracy. However, they also operate a full, on-site commissary, which use has never been issued permits by the city. The operation begins at midnight and includes commercial delivery trucks arriving and departing, and shuttling ice with plastic buckets and a wheelbarrow. Until recently the icemaker ran uncontrolled day and night. Abandoned or inoperable vehicles and commercial equipment litter the half-acre. Annual inspections by the county health department are not made on a surprise basis and appear to have little effect on the owners or the sanitary conditions they are supposed to maintain. Visits from Manteca code enforcement appear as a reception for high tea rather than obtaining and acting on real information.
I tell you, Manteca LOVES this business and treats T,L&C with TLC.
The Manteca Bulletin chose not to run it; I chose to post it here.
Rex Osborn, Code Enforcement Supervisor, Office of the Police Chief, treats these women with such kindness and affection, they are like his aged grandmothers. They adore him, listen to him, and do whatever he tells them. Such a sweet and cozy picture.
Sappy sweet. (Can anyone say "protection?")
Friday, October 17, 2008
Oh, but I so WANT to wring several necks, both across the fence and across town at city hall.
One piece of paper left behind when the research was mailed was this:
Acknowledgements and Apologies (almost in order of appearance):
Scotsman Corporation and Follett Corporation, for providing the damnably irritating icemaker, which day and night forces this chilling project forward.
Lantz Rey, City Planning Department, for steering me straight at the beginning - on a course that turned out to be circular.
Jeff Hooten, Manteca Police, for trying to make peace with a porcupine and get her to sing along with “The Sound of (Plywood) Physics.”
Rex Osborn, Code Enforcement, for his adept storytelling skills (Any ol’ permit will do…) and for continuously raising the hurdles (You want “Yes” as an answer?)
Greg Baird, Code Enforcement, for keeping me entertained with case-specific myth and conjecture - had it not been for his “over the top” comedy, I might have given up! (see below.)
Greg Olivera, Environmental Health Department, for explaining one-half of the problem – but without connecting it to the other half.
Vince Hernandez, City Councilman, for listening and rightly passing me back to staff.
John Nowak, Deputy City Manager, for his departure.
John Brinton, City Attorney, for make-believing we’re all in Oz. (“Pay no mind to the man behind the curtain!”)
David Bricker, Manteca Police Chief, for trusting his staff’s conclusions.
Alma Martinez, City Planning Department, for her cheerful attitude of service.
Joann Tilton, City Clerk, for easily keeping people and paper well organized.
Lois Sahyoun, Clerk of the Board of Supervisors, for county ordinance information.
Linda Lund, LAFCo Commission Clerk, for fast and accurate annexation information.
San Joaquin County, Environmental Health Department, for getting a tiny bit better at recordkeeping over the years, and dealing with some tough customers with TLC.
Benjamin Cantu, City Planning Department (retired), for doing his job correctly and providing the paper key to unlock this nutty case.
Sandy Dwyer, MUSD Facilities Planning Director, for providing Sierra High School as a “can’t miss” real property landmark.
Ben Marrone, Manteca Sun Post newspaper, for exposing the real meaning of TLC.
A very special acknowledgement is reserved for “Deep Throat,” who convinced T,L&C a few weeks ago to stage a strategic partial retreat (an evasive maneuver similar to the plywood caper and the “professional timer” claim) in an attempt to manipulate sympathies and fend off real action. Thank you, “Deep Throat,” for the quiet nights and the 6:00 a.m. wake-ups.
Examples of comic relief by Greg Baird:
City’s answer: Anyone can have a commercial icemaker in their backyard.
My answer (in the form of a question, please): For real? Who would want or need a machine that sucks up electricity to make upwards of 400 pounds of ice a day? A) a three-person household, or B) a catering business which uses trucks that require ice to maintain proper food storage temperatures? I have personally witnessed very minor household usage, with almost 100% of the ice going into the truck.
Here’s another great one
City’s answer: All that business activity on the other side of the fence is not a business.
My answer: (stunned silence… Did I miss something here?)
See? That wasn't too bad was it?
I really doubt I'm going to sell and buy houses on a regular basis. My first post introduced you to The Perfect Property.
After showing him THE letter and a few other key pieces of evidence of my neighbors' illegal business expansion, his advice was for me to take one more step. He said the first question a judge would ask is, "Did you exhaust all adminisrative remedies." So, he wanted me to see if I could get this item placed on a city council agenda.
Here's my request letter to the city manager:
September 2, 2008
Mr. Steve Pinkerton, Manteca City Manager
1001 West Center Street
Manteca, CA 95337
Dear Mr. Pinkerton,
I desire to have an item placed on a City Council meeting agenda within a month’s time. The item to be considered is: Abatement of Unlawful Business Use of Residential Property at 810 Fishback Street. Arthur Barnes, a Manteca attorney and my legal counsel, has advised me to make this one last administrative plea directly and publicly to the City.
What started out as a simple noise ordinance enforcement request last March 4th instantly turned into a massive game of “cat and mouse” between me and the City, and netted me nothing - except the necessity of personally doing the research that should have been done by City staff. I bring to your attention some old documentation, which you will find enclosed with this letter, and a refreshed view of a long-running and unmitigated nuisance. As the agenda item states, this is no longer a noise case, but a much broader land use violation of zoning laws.
The essential element of this case is that TLC Catering needs TWO sets of permission to operate their business on residential property: (1) the sanitation regulation provided by San Joaquin County, Environmental Health Department; and (2) the land use regulation provided by the County before 12/17/86, and by the City after that annexation date. Both sets of regulations must be satisfied; if either set is not satisfied, the project fails and proceeding with it is illegal. My document titled Timeline Regarding 810 Fishback Street is supported by source documents and my Review of EHD Public Records comments on those documents.
On 6/29/93, the City told TLC Catering that no land use permits would be forthcoming for expansion or enlargement of the business beyond what existed on the annexation date of 12/17/86. TLC Catering ignored that and beginning in September 1993, on the basis of an EHD permit application alone, developed a fully operational commissary on the property. They went beyond - way beyond - merely parking their vending vehicles on their property. It will be a difficult task to dismantle this entrenched commissary, from which TLC Catering has unlawfully profited for so long. My document, Commissary Operations Observed, is enclosed to aid in setting out the various elements of this task.
Was it a mistake for me (or anyone) to buy the property next door to this illegally enlarged home occupation? No. My mistakes were expecting law-abiding behavior from my scofflaw neighbors, and relying on City personnel to back up the City’s words with necessary action. Much blame is assigned to my neighbors for the nuisance, but the fact that this illegal operation has continued unabated for over fifteen years is a direct result of pure negligence on the part of the City. Lifeless surrender by current and former neighbors to this seemingly hopeless situation does not grant legal standing to the violation.
Mr. Pinkerton, I request that you have City staff bring forward all of their files relating to this property. I am making available to you all of the documentation supporting my report. Have your staff put their best research and analytical thinking into the abatement recommendations they must forward in a report to you for the City Council meeting. I have also enclosed my Abatement Options and Special Conditions for them to consider and use. I will be happy to meet with a small task force appointed for this purpose. Only thoroughly grounded research, publicly aired, will debunk the myths that have grown up around this property - and only real enforcement action will bring an end to a longstanding and flagrant violation of law and decency in my neighborhood and your City.
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.
The Timeline (research report), cover letter and other attachments totaled thirty-two pages. The request went Certified Mail with Return Receipts. Not content to let it go so easily, the following statement was made at the city council meeting that evening.
Public Statement - September 2, 2008
Mr. Mayor, City Council, and City Administration,
I agree with Mayor Weatherford; I vote for code enforcement [rather than a fire inspection position.]
Today I mailed to the City Manager a request to have an item placed on the City Council agenda within a month’s time. I mailed the request in order to obtain a signed Return Receipt from the post office - only one step away from a Proof of Service. I very much desire to hear how the Council will direct the City Manager to proceed with the item entitled, Abatement of Unlawful Business Use of Residential Property at 810 Fishback Street, a land use violation of zoning laws.
Why do I tell you this in advance? Because I do not want this matter to be disposed of quietly; I want the City Council to know of my request to the City administrator; I want my request and the City's response to be a matter of public record. What started out as a simple noise ordinance enforcement request last March 4th instantly turned into a massive game of “cat and mouse” between me and the City, and netted me nothing – that is, nothing except the necessity to personally do the primary research that should have been done by City staff. I discovered that, in 1993, City Hall's view of the situation and their instruction to TLC Catering was crystal clear. However, since 1993, TLC Catering has been building and operating an illegally located commissary for their catering business.
With the agenda item request, I enclosed copies of the source documents backing up my findings. My report will soon be in your hands. It will dispel the myths concerning TLC Catering as staff confirms my findings. (Hint: TLC does not stand for Tender Loving Care.) I expect to be consulted during the one-month window in which the staff report will be prepared; I also will be available at the City Council meeting during which I expect this matter to be finally settled.
Thank you for your attention to this matter.
Can you guess what kind of response I got?
This letter - from the city itself - is the keystone of my case against the city and my neighbor. Other documents, from the health department files and from other city and county sources, establish other aspects of the problem, but the letter makes sense of all of it.
I found this singular piece of evidence the day before my second attorney consultation. The city never did - and never would - issue a home occupation permit for this business use of the property. The commissary did not exist at the time of this letter.
In addition, the following email exchange shows that the county never issued any conditional use permit to that property or owners prior to annexation.
From: Richard Behling
Sent: Tuesday, August 05, 2008 3:50 PM
Subject: Request for copy of a specific home occupation permit
Dear Mr. Nelson,
I am directed to you - and I am sure you will direct this request to the very best person possible.
I am seeking copies of public documents, specifically the home occupation permit and its underlying application:
1. Issued by the County of San Joaquin (and grandfathered into Manteca),
2. In the name or names of: Lynda S Allen, Theresa A Brassey, and/or TLC Catering,
3. Located at 810 Fishback Street (or its earlier county address, 18594 South Fishback Road.)
Since City annexation of that parcel, all such requests of the county are directed back to Manteca offices. San Joaquin County has a longstanding reputation for requiring business licenses and home occupation permits for everything, so this should be fairly easy to determine if the home occupation permit ever was issued and still exists.
I would be pleased to pick these copies up in person as soon as they can be obtained by calling me. In the event this permit never was issued, please commit that result to writing and contact me as above.
Richard W. Behling
- - - - -
From: Martinez, Alma [email@example.com]
Sent: Thursday, August 14, 2008 5:03 PM
To: Richard Behling
Subject: FW: 18594 S. Fishback
Here is the email from the County Planning.
Community Development Center
- - - - -
From: Patrick Crosby [mailto:firstname.lastname@example.org]
Sent: Thursday, August 14, 2008 4:56 PM
To: Martinez, Alma
Subject: 18594 S. Fishback
I checked computer records, which go back to 1992, and our address files. I was unable to locate anything for that address. I also looked under the names Lynda S. Allen, Theresa Brassey and TLC Catering, in several variations. I was not able to locate any records for any of them.
San Joaquin County Community Development
1810 E. Hazelton Avenue
Stockton, CA 95205
209.468.3163 - Fax
For the entire run of their business, the owners of TLC Catering relied only on obtaining the sanitation permits required by the county health department, and never obtained permission to park their catering trucks or develop and run a full-service commissary on the property zoned as single-family residential.
All 22+ years...
Tuesday, October 14, 2008
What became clear to me within that hour was the lack of land use permits for the owners to operate their business on residential property. These permits are issued by the county or city zoning departments, and were formerly called conditional use permits, until 1992 when home occupation ordinances were adopted by both jurisdictions and the name was changed to Home Occupation permits. He assigned me to go back and find that permit for that property.
For months now, I had been assuming city personnel knew what they were talking about, even if the resulting situation was not right. See? To Ass-U-Me is to make an ass out of you and me.
My second pass of research turned up inconsistencies in the history I thought I knew. My originally assumed annexation date moved fifteen years earlier, the various ordinance adoption dates thus became very important, and new information and records were coming from many different sources - the whole project was becoming unwieldy without a framework.
A timeline structure evolved. Various documents could now be treated as attachments to a simple flow, keyed into the narrative with footnotes. Now the interplay of jurisdictions, ordinances, and dates could be easily seen. It was like putting many pieces of a jigsaw puzzle into place. Besides the exhiliration of the emerging picture, it was extremely irritating that I was doing the work I had several times asked the city staff and city attorney to do - detail out my neighbors' "grandfathering" claim.
Something had been tickling my brain for a long while - and it finally came out. My neighbors were constantly claiming "grandfathered" rights to run their business and had permits to prove their claim. The trouble was the permits were from the county health department, not from the county or city. They were relying exclusively on a county department I had not looked at to this point - a department with public records!
Ahhh, what a treasure trove awaited me! First, though, you have to sift a lot of dirt to find the gold nuggets.
The earliest health department records were scattered and indefinite, but sufficient to show the progression of the business. I'm sure the owners' penchant for sloppy correspondence and incomplete application forms, etc., made life difficult for the regulators charged with making inspections and issuing permits. Let's just politely say my neighbors gave the barest minimum of attention needed to keep the health department issuing them those sanitation permits.
And what to my wondering eyes should appear but a tiny red sleigh and eight tiny reindeer! (Oops... wrong poem) This is weird!? This letter is written on city letterhead, addressed to my neighbor, and filed with the health department? I read the few short lines, examined the date and the signature - and I knew my troubles were over!
I was in a funk from the repeated brush-offs by officious city stooges.
The effect known as "Drowning man grasps at straws" kicked in. I'll sue my neighbors for harassment! After all, I'd been told several times that there was nothing the city could do, and this was a private matter between two citizens. (A lie, oft repeated, acquires the patina of truth.) Just to make sure I learned the maximum from this experience, I eschewed legal counsel and attempted to file a civil harassment complaint on my own.
It is fortunate, indeed, that the court commissioner who reviewed the papers I filed rejected them immediately. Undoubtedly, my amateurish attempt at self-representation invoked feelings of sympathy in him. He kindly gave me the code section into which my filing did NOT fit. My filing fee check was returned paper-clipped to the papers. I felt very much like I did many decades ago in grade school when the teacher handed my work back with red pencil marks all over it.
All in all, it wasted another couple weeks, but got my feet firmly on the ground for the continuing journey. I was cured of the notion of taking the city to court without professional legal assistance.
On August 5th I consulted with an attorney.
Public statement at Council Meeting, City of Manteca, July 21, 2008
Mr. Mayor and Councilmen,
Seven invitations to a slumber party at my house were delivered today. Unfortunately, Mr. Nowak will not be joining us, but Mr. Pinkerton is welcome to an open invitation. Besides, each of you can also bring one or two of your closest coworkers. Our principal entertainment that night will be the Follett icemaker. Bring your own sound level meters - I’ve already got mine.
In the eighty-four (84) nights following an April 28th site visit by code enforcement personnel, there have been only fifteen (15) fully quiet nights. One full week of those was because the machine was broken, awaiting repair. Heaven (not Manteca!) intervened to remove the disturbance during the visit of my daughter, son-in-law, and two-year-old granddaughter last month.
Still, four times this last week I have again been forced to evacuate my bedroom and retreat to the living room to sleep. My neighbors continue to operate merrily along, just as they always have, disregarding neighbors, police visits, noise ordinance, and Manteca officials. I daresay no person at City Hall would put up with such insult and assault in their own home.
I understand there is a report being prepared regarding my public complaint. Is it confidential? May I obtain a copy of it?
California’s law prohibiting “annexation islands” hand TLC Catering a huge gift – jurisdictional uncertainty. Manteca is tip-toeing around TLC Catering as if it was a sacred cow wandering the streets of Delhi, India. Ignoring my right to at least ten hours of nighttime silence, you keep acquiescing to the “grandfathered from San Joaquin County” mantra of the owners as their defense. Fine! Using that same rulebook, look up San Joaquin County Code 9-839.5 (a), items 1 and 8, regarding Home Occupation Permits. The home occupation (read: icemaker) is not confined within a building (#8) and it emits sounds, noise, and vibrations (#1). Perhaps Manteca could pull their home occupation permit?
Get my drift? Manteca staffers should know these codes better than anyone. Figure it out – and quickly!
That last part – the suggestion that the city pull (void) the business owners' Home Occupation permit - was when I finally got on the right track, but I didn't realize it yet. After the meeting, the Police Chief verbally tossed me a few more tidbits of information (all red herrings) and suggested I sue my neighbors directly.
The public appearance – and another email reminder - prodded the Chief of Police to send ME a copy of his summary he sent earlier to the councilman. Still another email reminder went to the City Clerk, who had to track down that sorriest excuse of a “report” in order to send it to me.
Mistakenly believing the Police Chief and the futility of pursuing the city further, I made an abortive foray into the court system, which sidetracked me temporarily.
Free at last! Free at last! Lordy, Lordy, Free at last!
Saturday afternoon found me with shovel in hand in the yard, when I heard the most detestable and debilitating noise I could ever have heard - the ice maker had fired up again! I swung around to see a white-haired fixit guy standing on a stool in front of the infernal machine and coaxing it back to life. Talk about an emotional, freefalling, nausea in the pit of the stomach, elevator ride to Hell! Homicidal thoughts danced through my head - the repairman, the ice maker, the neighbors, anyone who got in the way. I put my shovel away and sat stunned, doing nothing, for the rest of the afternoon and evening. Nothing had been done, after all. The machine was merely broken, but repairable. Only divine intervention had silenced it during my daughter's visit.
Early Monday morning I retracted my "Thank You" email.
June 30, 2008
Mr. John Nowak, Deputy City Manager
1001 West Center Street
Manteca, CA 95337
Dear Mr. Nowak,
Were you puzzled by my correspondence thanking you for swift and sure action in enforcing the nighttime noise curfew on my neighbors? Well, let me tell you that after a week of vacation with pure silence, I was even more puzzled when the icemaking machinery came on again last Saturday afternoon. My disbelief quickly turned into overwhelming frustration while I watched a repairman bring it back to life. I was stunned by the hard truth that no action by City personnel had been taken after all - it was merely a random electrical or mechanical failure that silenced it for seven days. Not only is the machine running again, but it is also jury-rigged to run 24 hours, day and night! Now you can see why I must insist on the machines' removal from next to my house.
My patience is at the breaking point. On July 5th four months will have elapsed since I first requested immediate relief under the City's noise ordinance - yet, for the last two nights I have again been forced to evacuate my bedroom and retreat to the living room to sleep. My neighbors continue to operate merrily along, just as they always have, disregarding neighbors, police visits, noise ordinance, and Manteca officials. I daresay, no person at City Hall would put up with such insult and assault in their own home. Also, I dare anyone at City Hall to defend four months as "immediate."
I fear you are reversing the order of the three abatement steps I outlined earlier: FIRST- cite the business for noise curfew violations after their April 28th warning and issue an immediate cease and desist order to permanently shut off the machine in its present location; SECOND- find a location and/or solution acceptable to all parties; THIRD- research everything else. The only research needed immediately is to clearly understand the November 2007 noise ordinance, specifically Section 9.52.040, Subsection J. Also helpful is Subsection D.
Respectfully submitted by,
Richard W. Behling
cc: Mr. Hernandez
p.s. Did I mention immediate?
For the first time, on July 7th, I stood at the podium in the council chambers and addressed the council during the public comment portion of the meeting. In the allotted three minutes I recapped the case, demanded they get moving, and threatened them with...
Public statement at Council Meeting, City of Manteca, July 7, 2008
Mr. Mayor and Councilmen,
I bring before you a noisome problem, which often forces me to vacate my bedroom at some point during the night in order to get some sleep on the living room couch. The first part of the problem is an operating commercial icemaker on my neighbors’ property. In my opinion, it was wrongly placed. This multi-component machine is essentially right alongside my house, most particularly the two bedrooms’ windows. The machinery starts up at unpredictable times and runs for unpredictable durations, either making ice or keeping it frozen. During the quiet of the night, these jarring startups and cutoffs of electric compressors produce huge sound differences (read: sleep-disturbing). The owners’ scooping ice from the machine’s storage bin into several 5-gallon plastic buckets beginning at 3:30 in the morning is like icing on the cake. I lived - and suffered - with this for a year before saying anything.
Four months ago, in February, my neighbors dismissed my inquiries in a hostile fashion and adamantly refused to move the machine, alter their routine, spend any money to eliminate the noise, or discuss it further. During a code enforcement investigation two months later, the business owners lied to City officers about the existence or operation of automatic timer controls. For the last two months since they were warned, they continue to deliberately operate the machinery after 10:00 p.m. and before 8:00 a.m. Yes, it is a problem.
The second part of the problem is City officials’ refusal to cite the violations. Their interpretation of disruptive nighttime noise must derive from the old ordinance and be something akin to earsplitting or groundshaking. In stark contrast is the new ordinance’s wording of ”continuous, repeated or sustained” and “plainly audible.” The noise from these compressors certainly meets all of those criteria. Please notice - “loud” is not listed. My documentation of sleep loss is sufficient proof of the noise’s disruptive nature (prima facie evidence, I believe the lawyers call it.) Shame on my neighbors for nightly breaching the peace with their machines - and shame on Manteca for allowing it to continue, especially since it has been brought to the attention of several City personnel.
The so-called investigation took place on April 28th, at which time no “findings” of violations were made. In the seventy (70) nights following, there were forty-six (46) nights with observed violations of the curfew – and ten (10) other nights I was out of town.
I need immediate nighttime noise abatement (translation: Shut the machines OFF already!) Have code enforcement get that done first. After that I will entertain any long term solution that removes the icemaker machinery far away from its present location next to my house. Get moving on this - or the next document you see from me will be…
…an invitation to a slumber party at my house.
The public presentation did two things. First, it prompted the councilman to request a recap of the case from the chief of police.
From: Bricker, Dave [email@example.com]
Sent: Wednesday, July 23, 2008 2:25 PM
To: Richard Behling
Cc: Pinkerton, Steve
Subject: RE: Report on 810 Fishback Street property?
Below is a copy of a email I sent to Councilman Hernandez when he first enquired about your problem after the July 7th Council meeting. I hope this answers more of your questions. I will be happy to speak to you about this again if you have questions. My office number is 239-8425.
Just some background on this complaint. Code Enforcement has been dealing with this issue for several months. Mr. Behling recently bought a property on Fishback Rd. His next door neighbors have been at their property since before it was annexed into the City. They operate a taco truck in Tracy but not in Manteca. They have a Tracy business license but are not required to have one in Manteca. They do not prepare food or do business at the residence. The do have an out building with an industrial ice maker in it. They use the ice to keep items cool in the taco truck but do not sell ice so we cannot consider it a commodity for sale under our ordinances. The ice maker comes on at various times during the night and morning. The condenser for the unit is on the roof of the structure next to the property line in the direction of Mr. Behling's residence. While it is louder than I would like to have next to my house it did not meet the decibel level necessary to fall under the zoning ordinance as a violation and does not meet the definition under the new noise ordinance. The ice maker was at this location and operating when Mr. Behling bought his property. These are estate size lots and the neighbors were "grandfathered" into the City when their property was annexed. Code Enforcement, Building Inspection, and I believe Fire have all looked at the property and all agree that the owners are in compliance with the City Ordinances and State laws. We have suggested that Mr. Behling consult a civil attorney in an attempt to obtain a retraining order to compel the neighbor to move the ice maker or turn it off. He feels it is the government's responsibility to correct this problem. We have spent considerable amount of time trying to reach a middle ground between the two parties and have exhausted all of our alternatives.
Second, my presentation caused the deputy city manager to write his "report" of the case the very next day. I believe it was almost his last official act as an employee of the city before moving to a new job elsewhere. I was not the only one happy to see him go, especially after reading what he wrote.
All that time and energy wasted? For this? Man, I was going nowhere at all - and fast.
I prepared two binders of copies of all previous correspondence, refined and restated my case, and delivered the binders to city hall - one for the Police Chief and one for a city councilman - on the Tuesday after Memorial Day, May 27th.
Then I waited. One thing I became acutely aware of was that every time the case was given to another person, two or three weeks were automatically tacked onto any previously desired time frame.
When June 11th arrived, I could wait no longer and emailed this reminder:
Mr. Vince Hernandez, Councilman, City of Manteca
1001 West Center Street
Manteca, CA 95337
Dear Mr. Hernandez,
On May 27th I delivered a letter of request for your help in enforcing certain provisions of the November 2007 noise ordinance. All previous actions and correspondence regarding the matter were included in the binder. I believe “[doing] the right thing the first time” was not done in this case.
I need immediate and enforceable nighttime noise abatement. Because of four (4) more “all-nighters” in the last two weeks, I have had to vacate my bedroom at some point during the night in order to get some sleep.
The weather is heating up; we have already had a small taste of summer’s simmering temperatures; ice production is going up. In the eighteen days since my last tally there have been seven (7) more instances of uncontrolled nighttime operation, ten (10) more deliberate, manual startups between 5:45 and 6:15 a.m., and only one (1) more quiet night – for a 94% daily violation rate!
Get the immediate done first. After that – and based on my neighbors’ pattern of lies, manipulative actions, and stubborn refusals to comply with the simplest effective remedies - I will entertain any long term solution that removes the icemaker machinery from its present location next to my house.
Again, I would be pleased to meet with you at any time regarding this matter. As yet, not one City official, except Police Officer Hooten, has invited me to do so.
Respectfully submitted by,
Richard W. Behling
cc: Mr. David Bricker, Interim Chief of Police
A secretary called and an appointment with the councilman was set for June 16th, around lunch time, before the council meeting that night. He was pleasant, but noncommittal, and allowed thirty-five minutes for me to brief him. At the meeting that night, he transferred the binder of correspondence to the Deputy City Manager to "look into." At least its at a higher level than the boys down in code enforcement. But there goes another several weeks!
I tried to hurry the process along with a quick reminder and summary via email.
June 18, 2008
Mr. John Nowak, Deputy City Manager, City of Manteca
1001 West Center Street
Manteca, CA 95337
Dear Mr. Nowak,
I was pleased to meet you at the City Council meeting two nights ago. Mr. Hernandez and I had a 35-minute conversation earlier that day, and he passed on the letter and binder, submitted earlier, and five other pages, consisting of two maps, one spreadsheet, my proposed public statement, and a page titled “Order of Abatement.”
Unsure of what he passed on to you about my schedule, here it is again. I will be on vacation, out of town, starting this evening (Wednesday) and returning Saturday evening. A daughter, son-in-law, and a very young granddaughter will be staying with me until next Wednesday. It would be wonderful if we could have the machines silenced before we return.
If your concern is to again research everything and give my neighbors the benefit of “due process,” please be aware that that furrow has already been ploughed. On April 28th my neighbors were warned by code enforcement personnel and agreed to comply - due process has already been served. The first item on my “Order of Abatement” is a request to have the City issue a cease and desist order to my neighbors, again prohibiting operation of the icemaker within the 10 pm to 8 am curfew. Despite their stories and their promise, they have deliberately operated the icemaker more than forty nights since April 28th in willful violation of the noise ordinance. Make the noise stop.
After #1 is done, then we can move on to #2 and #3 of my “Order of Abatement.”
Respectfully submitted by,
Richard W. Behling
There were a couple surprises waiting for me.
For the second time, I requested information regarding "grandfathering" and its termination, in this case. For the second time, I addressed the "plywood caper" and dismissed it as a manipulation. And, with a few days of journaling the icemaker's operation, countered the lie of "a professional timing device." Then I answered his twice-asked question about involuntary compliance. (Dumb question from a police officer.)
From: Richard Behling [mailto:firstname.lastname@example.org]
Sent: Friday, May 02, 2008 2:26 PM
To: Osborn, Rex
Cc: Baird, Greg; Rey, Lantz; Bricker, Dave
Subject: RE: Response to your Code Enforcement Question
Dear Mr. Osborn,
The report of your investigation and findings heartened me. Your discussion on the various permits, etc., was informative and appreciated. I have a question regarding your statement that “there is no food preparation at this location.” Freezing water into ice that is sold or used in business for human consumption is viewed as food processing by the State of California, Department of Public Health, Food and Drug Branch. Besides the housing of the vending trucks, does the Cantina Permit issued by the County of San Joaquin include anything else, such as making ice?
I still need you to look into the questions posed in my letter of April 4th about “grandfathering” – How does it get documented? When and how does it terminate? The answers to these questions will, 1) Restore integrity, in this instance, to Manteca’s zoning and land use administration, and 2) Let me know when the defect against my property (living next to a business in a residential neighborhood) will be removed entirely.
As to the “changes made by the property owners” resolving and closing the noise case, no further comment about the plywood “barrier” needs be made than what I said about it in my last letter.
On the other change, you stated that “[t]he owners have placed the machine on a professional timing device that only allows the machine to operate during daytime hours.” What!? The compressors ran all Monday night / Tuesday morning after your visit!
Roof-mounted compressor Icemaker
10:00 p.m. to ?? 10:18 to 10:25 / 10:38 to 10:45
1:45 a.m. to 5:11 a.m. 4:01 to 4:08 / 4:22 to 4:30 / 5:05 to 5:11
6:45 a.m. to 6:57 a.m. 6:53 to 6:55 / 6:56 to 6:57 (“false starts”)
7:10 a.m. to 7:30 a.m. 7:27 (“false start”)
Wednesday morning the machines came on at 6:25 a.m.
Thursday morning they came on at 6:21 a.m. and Thursday night (last night) was an all-nighter.
Roof-mounted compressor Icemaker
Before 10:00 p.m. to 7:00 a.m. 9:50 to 10:05 / 10:20 to 10:27 / 10:41 (left for work) to 10:48 /
11:02 to 11:09 / 11:23 to 11:30 / 11:43 to 11:52 /
12:04 to 12:12 / 12:24 to 12:32 / 12:44 to 12:53 /
(Note: The outside lights were on and at least one owner was in the yard on and after 1:00 a.m. The compressors continued running.)
1:02 to 1:16 / 1:29 to 1:37 / 1:51 to 1:59 / …
(ceased recording specific times when I moved from bedroom to living room couch.)
The Municipal Code section ordinance prohibits, ”…continuous, repeated or sustained noise… between the hours of ten p.m. and eight a.m. that is plainly audible from the residential dwelling unit’s property line.”
Twice you have asked what I meant when I wrote: “I need verifiable assurances that the owners received such education and see (and hear!) evidence of real compliance, or I will pursue enforcement action toward involuntary compliance.” Again, you are referred back to my previous letter of April 4th, where I wrote: “…Police Officer Hooten informed me that my next noise complaint call to his department will require a citizen’s arrest warrant against my neighbors - I will have to take them to court and let a judge sort out the mess between me, my neighbors, and the City of Manteca.” Short answer – arrest and adjudication.
Case closed? Please reread my letters - don't shred, toss, delete, or dispose of them yet.
Richard Behling, a still hopeful citizen of Manteca
As usual, this code enforcement officer/public affairs spin doctor never answered MY twice-asked questions, but suggested I check myself into a mediation service with my neighbor (a known bloodless turnip, who dried up years before.)
From: Osborn, Rex [email@example.com]
Sent: Monday, May 05, 2008 8:20 AM
To: Richard Behling
Cc: Baird, Greg; Rey, Lantz; Bricker, Dave; Hooten, Jeffery
Subject: RE: Response to your Code Enforcement Question
This case is closed as far as the City of Manteca is concerned. If you feel the need to take civil action against your neighbors for the nuisance, that is within your rights. If you feel the need to take action as suggested by Officer Hooten, I caution you that if you take that route you accept all the liability for such an arrest, and without additional proof that arrest would be questionable from the police standpoint.
Based upon your comments and your diligence, connected with comments I gleaned from your neighbor, your situation very well could use a professional mediation service. San Joaquin County Mediation Service could provide if both parties agree a neutral mediator to help resolve your issues. This service does not investigate the nuisance as claimed by you, it only provides a means for neighbors like yourself to get along.
Richard, the City of Manteca with all of our resources have investigated this complaint, and we find no violation on the part of your neighbor.
Thank you for your patience during our investigation.
Rex Osborn, PAO
Supervisor Code Enforcement Officer
Office of the Chief of PoliceManteca Police Department
The concluding sentence, "We find no violation on the part of your neighbor," really rankled and I knew it was not true. But where do I go now and to whom?