Wednesday, December 31, 2008

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

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

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

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

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

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

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

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

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

- - - - - IF:

* Prior to December 17, 1986,

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

* It was doing so legally,

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

* The continued use of that property,

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

* By the current and subsequent property owners,

* Until the non-conforming use ceases.


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

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

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


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


Wednesday, December 24, 2008

Manteca Code Enforcement Takes Baby Steps

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

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

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

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

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


Tuesday, December 23, 2008

Fire Drill at the Health Department

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

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

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

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

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

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

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

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


Tuesday, December 16, 2008

Blind Men and Elephants

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

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

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

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

December 3, 2008

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

Dear Mr. Behling,

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

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

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

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


David H. Bricker
Chief of Police

CC: All Departments and Parties Involved

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

You want a Yes? vs Won’t take a No!

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

December 9, 2008

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

Re: No more complaints re: 810 Fishback Street

Dear Mr. Bricker,

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

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

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

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

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

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

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

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

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

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

Respectfully submitted by,

Richard W. Behling

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


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