Thursday, October 30, 2008

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:

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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.

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.

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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, " 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!

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