Tuesday, October 14, 2008

Shell game

After a weekend reunion away, a daughter, her husband, and a granddaughter came to stay with me for several days. The reminder to Manteca's Deputy City Manager must have worked because the ice maker didn't come on the entire four days of the visit. I was so impressed with the efficiency of the man, I sent him a profusely thankful email late in the week. The silence was blissful, the problem was solved, the ice maker was put down, the world was right. Coworkers commented that my demeanor improved considerably.

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
Mr. Bricker

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 [dbricker@ci.manteca.ca.us]
Sent: Wednesday, July 23, 2008 2:25 PM
To: Richard Behling
Cc: Pinkerton, Steve
Subject: RE: Report on 810 Fishback Street property?

Mr. Behling,
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.
Dave Bricker

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.

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