Monday, October 13, 2008

Think positive!

Closing my case without notifying me appeared rather dismissive and unprofessional. Little did I know what was to come later. But, I could not - must not - let this pursuit fail. The only way to keep moving along was to ignore the "Case Closed" message and press my case.

My letter of April 4th is a masterpiece, even if I say so myself. It outlined for the city my immediate, short term, and long term goals in this case. Priority #1: Turn off the icemaker. After that we can talk about the rest.

April 4, 2008

City of Manteca, Community Development Department
Attn: Lantz Rey
1001 W Center St
Manteca, CA 95337

Re: Complaint of noise from 810 Fishback Street and TLC Catering, property and business owned by Lynda S Allen and Theresa A Brassey.

Dear Mr. Rey,

I am happy to report that some relief has been obtained in the matter of noise from my neighbors’ business. There is still quite a ways to go, but by filing the complaint in March, it was my hope that the City of Manteca and its various departments would assist in getting various issues sorted out before another hot summer rolls in on us.

My aims are threefold. (1) The immediate need is nighttime noise cessation. (2) The next goal, in the short term, is to have the City of Manteca spell out for me and my neighbors the legal responsibilities (and necessary formal variances!) this business has in a residential neighborhood. (3) My long term goal (and the Planning Department’s goal?) is to have the business assets and operations removed from the property (perhaps to a commercial zone?)

If these three aims can be accomplished without undue burden on the owners of TLC Catering, then I say, “Wonderful!” If it costs them some money or other resources, I say, “So be it. They have profited for a long time without accounting for the costs imposed on their neighbors.” If the business is moved to another more suitable location – or ceases entirely – all I can say is, “Times change. Government changes. They had a good run here.”

Nighttime noise cessation

On 3/16/08, the weekend after Officer Hooten’s visit, my neighbors took two steps relative to noise abatement. First, they put up a totally comical and ineffective sound barrier (one piece of plywood! – and out of position, too) directly in front of the icemaker. More importantly, they implemented a non-operation time schedule for the compressors. The machines now usually turn off at 10:45 p.m., somewhat past the 10:00 p.m. mandated in the Code (Chapter 9.52.040, Specific prohibited noises, paragraph J.) and start up again around 6:15 a.m., well ahead of the specified 8:00 a.m.

At last! Blessed relief! Partial success! But it won’t last… As soon as the spring and summer daytime temperatures soar, and nighttime temperatures remain high, I have absolutely no doubt the owners will return the compressors to 24-hour operation to prevent food loss and ensure adequate ice production.

Their shut-off system must be manually initiated – and last night (4/3/08) they “forgot” to set it. One compressor came on at 9:50 p.m. and ran continuously until 1:05 a.m. The other one, the icemaker, cycled on four times during that period, 11:15 p.m., 11:41 p.m., 12:30 a.m., and 12:59 a.m. Both ceased operating at 1:05 a.m. when the business’ exterior lights came on.

Legal responsibilities and formal variances

Unless the City of Manteca helps settle certain issues to my satisfaction via its established civil procedures, 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.

Is the “grandfathering” process a decision in the public record, such as minutes of any City department or council, and backed up with correspondence? Or, is it a default decision made by doing nothing?

What I want is City decision makers to go through essentially the same review process to grant a new business license – zoning compatibility, physical and financial impacts on neighboring properties by this particular home occupation, issuing valid licenses and permits (or waivers of such), other ordinance compliance (such as noise abatement), etc., and remediate the problems created by “grandfathering” this type of business in a residential area.

What I want is some proactive compliance education of these business owners – something similar to,

“Welcome to the City of Manteca by virtue of your property being annexed. Because the City is granting waivers for you to continue running your business in this location, there are some specific things you need to do differently to comply with other City ordinances. Here is all the informational material we give new licensees, and we expect you to follow these same requirements. If you do not, licenses and/or waivers will be revoked.”

Do it right, or don’t do it at all. What could be more simple and straightforward?

Removal of business from the property

Thinking long term, I’m sure the Planning Department has some directive to prohibit and dislodge non-conforming uses of property in order to keep Manteca a nice place to live. My third aim is to gain legally enforceable assurance that in the event the neighboring parcel and/or business ever be conveyed to anyone other than the original two owners, that the business assets and operations are removed from the property (ie., the “grandfathering” ends.)

A quality of life issue and a financial concern drive this goal. My enjoyment of my property is impaired by the existence of the business next door and the incident, constant onslaught of daytime and nighttime noises that is directed onto my property. The financial impairment is a loss of property value due to the same reasons.

I hope that this “road map” is still in use - and has not been downgraded to a simple domestic disturbance warranting only a police call. If this correspondence needs to be directed to other departments, or shared with them, feel free to do so. If I need to reopen the first complaint, or open a new one, please let me know.

Thank you for you attention to this.

Richard W. Behling

Needless to say, that letter disappeared into a black hole somewhere at City Hall... a black hole known as Code Enforcement. After waiting twelve days for a response - any response - I finally tracked down the letter on April 16th and sent a reminder. Surprise! That same day I got a response. True, it was a plea for more time, but hey...

From: Richard Behling []
Sent: Wednesday, April 16, 2008 10:46 AM
To: Baird, Greg
Subject: Followup to case # 127445 (Noise complaint)

Dear Mr. Baird,

I have met great resistance from my neighbors to alter their current business operations in any fashion or degree to abate the noise generated on my property line. My initial letter of March 5th, addressed to Mr. Lantz Rey, became the basis for the noise complaint case #127445. Twelve days ago Mr. Rey forwarded to you or your department my second letter of April 4th.

My desire is to meet with you and plan out the actions necessary to bring my neighbor's business noise into compliance with the City's noise ordinance. I want to have these business owners educated fully by City personnel on the requirements and allow them a period of time - a relatively short period - to voluntarily comply.

The City inherited this problem and must take a hand in resolving it. Hot summertime temperatures are approaching fast, and they only make the problem worse. 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.

If you need copies of previous correspondence, I'll happily supply them.

Richard Behling

And the answer:

From: Osborn, Rex
Sent: Wednesday, April 16, 2008 3:49 PM
To: ''
Cc: Baird, Greg; Rey, Lantz; Osborn, Rex
Subject: Response to your Code Enforcement Question

Mr. Behling:

At this point I have an appointment with the Chief of Police this week, to discuss what we as an agency can do to help resolve this issue. It is complex and it is our goal to resolve it in everyone's best interest. If we determine a plan of action that provides resolve we will take action as soon as allowed by law. We have met with the City Attorney, County Officials and we have just a few places left to check regarding the business aspect of this land use. Until then we will not be taking additional action and I realize based upon your many letters and emails that you are frustrated over this issue, and possibly with the city. Within the next week we should be able to give you a definite answer and action will be started if allowed by law.

You have asked to meet with the code enforcement officer and that meeting could take place after we determine what action can take place on the part of the city if any. I don't know what you mean by action towards involuntary compliance, but I might suggest you wait to hear our final answer.

To conclude, we are trying to please you, and still not interfere with the rights of your neighbor.


Rex Osborn, PAO
Office of the Chief of Police

The issue is complex? They'll meet with me AFTER they decide what to do? The answer also contains the first of many totally asinine comments I collected over the course of this odessey. Here it is, in all of its bass-ackwards glory: "To conclude, we are trying to please you, and still not interfere with the rights of your neighbor." To this day I still cannot read that without my blood boiling. Since when did lawbreakers have rights which must be protected, while the one pointing out the lawbreaking - the one whose more basic rights are being trampled - gets short shrift from law enforcement?

I know... Think Positive... Think Positive...

No comments: