Monday, March 9, 2009

Sun Post Reports Mantca City Council's Indecision

Another terrific report by Cheryl Winkelman of the Sun Post, this one appearing in the March 6, 2009 issue. (If only they'd get their website back up...)

page 10

I need to refrain from commenting on the situation for now...


(except to say, Well played, Rex.)


Wednesday, March 4, 2009

Forty Minutes at Manteca City Council

Transcript of the Manteca City Council Meeting of March 3, 2009
Regarding Agenda Item F.1.
(Approximately forty minutes, starting at 9:20 p.m.)

Karen McLaughlin, Assistant City Manager: Item F.1. is to receive a report on complaints filed by Richard Behling regarding property at 810 Fishback Road, review the actions taken by various city departments, and consider providing direction to staff as appropriate. Mr. Behling had approached the Council at the last meeting and Mr. DeBrum asked that this item be brought forward.

Mayor Willie Weatherford: Mr. DeBrum do you have anything to add before we invite...

Councilman DeBrum: No, sir.

Mayor Weatherford: Mr. Behling, would you please come forward... and [???] ... This is really not a public hearing, this is an opportunity to hear your complaint officially, as before when you came forward as you know it was not on the agenda [???] speaking to the public, so hopefully the council can make a decision one way or the other on this tonight.. so, please...

Mr. Behling: I appreciate that.

Honorable Mayor, Councilwoman, and Councilmen,

The report that's provided in your packet by the Chief of Police, David Bricker, serves the purpose of bringing us up to date as of December 3rd. The report I delivered to you two weeks ago was begun then. I am here tonight to discuss that report.

By the time I received Mr. Bricker's letter, I was already beginning to suspect Allen & Brassey's claim about being a "legally grandfathered business." This concept was first committed to writing on June 29, 1993 in a letter from the City of Manteca to my neighbors. I unearthed that letter last August, but not in City files (it's in your report as Exhibit Y.) After the Chief's rejection letter, my next step was to extend my research timeline from 1993, that letter, back to the 1986 annexation and examine that claim so tightly held by neighbors and City.

Over the course of about six weeks, I discovered the documents you have in front of you. They show that the former owners, Lewis and Anne Mego, lived on the property for three-and-one-half months after the annexation date, and didn’t sell the property to Allen & Brassey until November, eleven months after annexation. A few simple keystrokes at the official County website ( will prove that. This is not nuclear science or nuclear physics - that was Lewis Mego's profession. Further, the property had no lawfully established nonresidential land use attached to it.

Allen & Brassey's claim of "legal nonconforming" is now proved false, which pulls the rug out from under every argument the City has used to defend them over all these years - especially this last one. They set up shop illegally and hid behind this lie for twenty-two years - until now - protected at every turn by City staff members who never verified their claim of legality. Instead of "legal nonconforming," this case should have been declared Noncompliant, the city-speak word for ILLEGAL.

This City Council can, with full confidence, take clear action on my report's two recommendations and direct the City Manger to carry them out with all diligence and haste. They are, first, the City of Manteca must correct and re-issue the June 29, 1993 letter, reclassifying the property as fully subject to Manteca ordinances and the nonresidential use as noncompliant. Upon such a finding, the municipal code calls for immediate cessation of the noncompliant use until code compliance is achieved. At the same time the letter is delivered to Allen & Brassey, I request a copy be sent to my post office box, listed on the title page of my report.

Second, because the present use cannot conform to current code, the City must follow through with the process of getting the property owners to completely rehabilitate the property to its residential-only use, through removal of all present and former business equipment and structures. Any expenses they incur to accomplish this should be viewed merely as penalty for their lawlessness, it being an insignificant reduction of the two decades of unfair profits from their illegally home-based operation. I have the Home Occupation checklist of sixteen items and Allen & Brassey fail at least eight - a whopping 50% failure rate for a home occupation!

There is one very specific recommendation I ask of you on this one-year anniversary of my initial request - and please make this the very first property rehab item. As quickly as humanly and legally possible, require removal of all the body parts of The Abominable Icemaker - the roof-mounted condenser unit, the main compressor unit, and the storage/dispenser unit; [three minute timer interruption]

Mayor Weatherford: Without council objection, we'll give him a couple more minutes.

Mr. Behling : I only require a few more seconds.

Mayor Weatherford: We'll give you a couple more minutes and see where you're at.

Mr. Behling: Thank you. ... the three units comprising the icemaker. After that, removal of all other unattended, powered appliances in that (soon-to-be former) business operations center right across the fence; Demolition of the sound-enhancing plywood box; and, Cut back coverings and concrete from the required lot line setbacks from the fence. Again, I ask the City copy me on all written instructions, timetables and deadlines to Allen & Brassey as they pertain to this property rehabilitation.

As a closing quote, I would like to read for you something I came across in my research. It speaks very much to this case. This is from a lawyer back in Jacksonville, Florida who was helping a news team pursue a public records request. After many years of litigation, they finally got them. His quote, "Although the law is pretty clear, our laws in this country are not self-executing and too often it takes someone with fortitude, resources and connections to make the government do right." That's my plea tonight, that the City of Manteca recognize this research as being legitimate. I hope it has been verified by those who are in a position to verify such information. As I said, it takes a few simple keystrokes on the County website.

Please accept my heartfelt thanks for giving me this opportunity to bring this matter before you. I sincerely hope my recommendations meet with your approval and, with your action, restore this beautiful corner of Manteca to its proper, peaceful use.

* * * * *

Mayor Weatherford: Thank you. Mr. Harris.

(Mr. Harris defers to public comments first.)

Mayor Weatherford: (to Ms. McLaughlin) Do we have any public comments?

Ms. McLaughlin: I don't have any speaker slips.

Mayor Weatherford: Mr. Harris.

Councilman Harris: I have a couple of questions, either of Mr. Brinton, Mr. Nelson, or acting Chief (of Police). Mr. Behling mentioned one key phrase and... Is the research legitimate... on all his points?

City Attorney, Mr. Brinton: You're looking to me and so I'll respond...

Mr. Harris: I don't know.

Mr. Brinton: First of all, the Police Department and Community Development have looked at the various information. It's the City Attorney's responsibility to use whatever information is provided to do any enforcement actions. As we in our office and our staff have reviewed the reports from the various entities there is not information such that we would be able to do any criminal or civil prosecution. It's our opinion that this is really a civil matter between neighbors, which really is a private enforcement, and not a public enforcement issue. It's really the neighbors that have this issue. This is not uncommon in other areas in town, where you have one or more neighbors who have private nuisance issues. All of the research that I've done from the staff reports that I have is that staff has attempted to assist in this as they have been able to. Some has been, reportedly, cooperative, some of it hasn't, but there is nothing for our office to do at this time.

Mr. Harris: Mr. Nelson, I don't know if you can answer this question. What decibel level would have to be reached in order for this icemaking machine to be a public nuisance?

(Mr. Osborn approaches the podium to answer the question.)

Public Affairs Officer, Mr. Osborn: The standard is not established, like saying it can only be this level or this level. It has to be a community tolerance level for it. We don't know without a doubt what the decibel level is there. When we made attempts to go find a reading to find out what the decibel level would be, we were not allowed on his property to put it on the property line as required by the rules. It is from the property line that we measure from either side. So we can't answer your question as to whether or not... what is an acceptable decibel level. What's acceptable to you and acceptable to him or someone in the community has to be determined once we have that level. So it's really kind of a "chicken and an egg" kind of thing. We don't set up a standard.

Mr. Harris: Wasn't there an issue with noise at the skating rink on North Main? A decibel machine was taken up there one evening about eleven or twelve o'clock?

Mr. Osborn: I didn't take it there. I know that we've used them before.

Mr. Harris: Ben Cantu did.

Mr. Osborn: Yeah, Ben did. A little clarification on that. We felt it was important to try to mitigate this circumstance between the neighbors and this gentleman because we've never had a complaint prior from anybody in the neighborhood or from any other neighbor that lived there prior. In order to do that, the City went to the expense to purchase a recordable decibel meter so we could do it for three days so we could neutrally say, Yup, it's pretty loud, or, no, it is not. So we can't answer that today. We have to assume at this point that since no other complaints, other than the immediate neighbor, it's an acceptable level.

Acting Police Chief: Mr. Harris, to answer your question, there is a decibel level established in the City ordinance for residential neighborhoods. I don't have that with me now, I could get it, but part of the ordinance requires us to measure that with a decibel meter. Like Mr. Osborn was saying, that was why we were requesting permission to place it on his property to ascertain the level to see whether or not it fell in line with the residential area.

Mr. Harris: And that request was made since the last council meeting?

Mr. Osborn: No. This was done prior when we were trying to investigate the actual complaint. This whole thing started with Mr. Behling getting hold of the City of Manteca saying that the ice machine that was adjacent to his property was too loud. Not an uncommon complaint that we get for other noises and things like that. We try to mitigate it out and figure out what the best interest is for both parties. He has asked for it; he asked for us to read it. He indicated in one of his blog notes that he has a decibel reader. Maybe he knows what the level is, but we don't… we can't verify that at this point.
This started out as a noise abatement and when we told him the reality was we couldn't do anything about it because, the property itself, she's allowed to have the ice machine there. You're allowed to have one in your house. It may be a commercial level ice machine but you can still have it, just like people have commercial stoves in their houses. It's not just for commercial use. So he didn't like that answer, so now he has gone into further items.
You had asked about verification of some of his documentation. It could be somewhat selective about what's in there. We can go on some of the things. One, a criminal court hasn't ever looked at the property lines; there's been no reason to do it, to see whether it's in the City or not, or was it legal nonconforming. A civil court did, against the City of Manteca, when we tried to collect garbage fees from them. We were told, no, they were here before, they could continue with their existing garbage usage. So the courts have seen that she is legal nonconforming. Actually, I didn't know that until he pointed it out. So that's good that we have seen that. So there's some elements to it.
We don't know when she took possession of the property. You know, some people will live someplace before they buy it. When it was registered versus when she moved in there, I don't know. Wasn't something I needed to check.

Mr. Harris: Do you know if Mr. Behling has ever talked to the neighbors?

Mr. Osborn: I think he has, based upon conversations with the neighbors and with him, and reading, again, his notes and stuff he's provided you and in his other notes that he's made public. I think he's made an attempt. We suggested early on that he use the San Joaquin Mediation Service because this is truly just two neighbors that don't like each other. Really, one that just wants to exist and one that wants them to go away. We, as a police department, we can only do so many things to make it go away. The City cannot make people move. They are not a business in Manteca. I mean, he's established that for us. He's actually done... - and I've even complimented him on his research skills - he did a great job. What information he hasn't put in and what he has, I don't know. We have not spent the time that he has. We don't have that ability to do that - sit there twenty-four hours a day and watch trucks come and go.

Mr. Harris: Mr. Osborn, you just mentioned something I've never heard of before. We should learn something new every day.

Mr. Osborn: What's that?

Mr. Harris: San Joaquin Mediation Department?

Mr. Osborn: Yes, sir. I do mediations all over the City of Manteca - several dozens a year - between neighbors who just don't get along. I sit down with them, we find out what the root of the problem is, and we try to mitigate what it is. Simplest form is to figure out what the original rock was that caused the problem. In this particular case, I think it's the ice machine. These people went ahead and hired someone to put a timer on it. Whether or not that timer's still functional, I think they can answer that for you. They put up plywood, not necessarily to the standards he would like, to try to stop the sound. He was able to climb a utility pole and take pictures. Well, we're not allowed to go do that; we can't do that. But it's a very clean place. It's a nice place to look at from that point of view. So, we really have to go back to the original reason. What caused this? It's because one neighbor doesn't like another neighbor, and now they're going to use that as a circumstance to involve all of us to resolve it.

Mr. Harris: Who conducts the San Joaquin Mediation?

Mr. Osborn: San Joaquin Mediation Service is conducted by the County by volunteers, costs $25 that has to be paid by the individuals, they agree to sit down... it's almost like a court mediation... it's not legally binding until they agree in writing that I'll do this and you do that. If they agree to that, and then they don't complete the process, they can take that to court and say, your honor, we tried administrative remedies, we tried local remedies, and it didn't work. I mean, some things just don't work out. Then, as we've told him, it's time to use the civil process and let the civil courts decide, because it's not our job. Civil courts decide is this nuisance to the point where it should be removed. And the courts have done that. They sometimes decide dogs, all kinds of things, are nuisances.

Mr. Harris: So, to the best of your knowledge there has been, allegedly, some conversation between the two neighbors?

Mr. Osborn: Yeah, not positive, but has been.

Mr. Harris: I can remember last year my neighbor came to me and complained about some very tall oleanders. I was unaware that it was causing a problem. I went next door, saw it. She was right. Went out and [...]

Mr. Osborn: I think that the approach probably... it's kinda one of those things where it's gone on long enough now where it make take the civil process versus that of two people sitting down and talking because they both hate each to the point where they don't want to live next to each other.

Mr. Harris: Well, my neighbor and I are not like that.

Mr. Osborn: I think that's my point. It's unfortunate that we don't have a magic wand to go over and say take this down or make it go away. We don't have that, as a group. We can sit with them and talk but that has not been an option that either wants to take.

Mr. Harris: So, if they go to this mediation service, that's not binding, it could end up in civil court.

Mr. Osborn: Absolutely. Everything can go to civil court.

Mr. Harris: Thank you.

Mayor:Weatherford: Mr. Hernandez.

Councilman Hernandez: How many attempts were made to take the reading

Mr. Osborn: Well, we can only do one attempt. When we had first discussed that we were going to do a decibel reading, we didn't have the equipment that would be appropriate for this. The Ben Cantu's, as you talked about. So we ordered one to come here. We rented it - the City of Manteca did - for a period of time, which would have been three days would have been recordable. And it could have been interpreted by any independent person, so it would remove any of the conflict that he perceives and the other people perceive we have as a city government. We didn't get to do that.

Mr. Hernandez: Did you indicate that Mr. Behling had a recording of the decibels that were coming through?

Mr. Osborn: He indicates in his writings that he has recordings, an MP3-type recording, whatever, but again the reason we do an independent is we don't know what level he set it up, what day and time. It's unfortunate, but in our world, we always like to look for the neutral.

Mr. Hernandez: And have you spoke with both neighbors about this issue?

Mr. Osborn: I've only spoken with him over the phone, through the City Manager's office, and I spoke with the neighbors with the code enforcement officer. There was a period of time when I wouldn't let the code enforcement officer go by himself out to the property, primarily for verification and also there were some writings that indicate there were some threats to the individuals that would inspect.

Mr. Hernandez: Thank you.

Mayor Weatherford: Mr. DeBrum.

Mr. DeBrum: Thank you, Mr. Mayor. Two weeks ago, when this issue came before the council, and I made the comment that I thought it was important and I said I would sponsor the issue. Simply, it's an issue not whether Mr. Behling is correct or whether he's wrong, but I believe the important thing here today is the fact that we're looking - and it's in the report - that the first time of communication was 3/4/08. Tomorrow it will be one year. So I think it's important that we get it out on the table, whatever the decision is made by this council, or any other body, to get us off the dime, get us so the problem is somehow rectified, whatever the case might be.
I know that in looking at everything through the report... first of all, I applaud you because you've got this much information. Three visits to the County, I'm aware of. My communications with them today, giving me the necessary information that I was looking for, is something that is important. Your communication with the Police Department, your communication with Community Development, and of course the administration, and we're sitting here one year later with still no answer.
In reading the report, going back as you indicated, whether it is a conforming use, nonconforming use, it all began back in 1986 through the information that came back, and then again the letter in 1993 from Mr. Cantu to inform the litigants [owners] that it was a legal nonconforming use, legal because of its existence prior to annexation, and then I noticed you had a notation on there that indicated that it was incorrect. As I read the report, the one sentence that I will pull out of here is that, "without fail, my neighbors commercial icemaker runs all night and ruins my sleep. That infernal machine always renews my resolve to see this thing through." In my conversation with the County today trying to get the information from their standpoint, what we were looking at, the direction that we were going, the view that I understand from them, that they're saying this is a grandfathered issue. It goes back to that point in time. The one thing that they did comment on was the fact that the facility itself, the commissary facility, is probably not the basic situation that you would see today because today you would be looking at a paid facility, a wash down facility, and everything else that kinda goes along with it. But we're talking about what you had back when the process began.
I put a note here this afternoon and my note says, nuisance issue between neighbors. That was my opinion. As I looked at it, it's a situation that needs to be brought to the table. It needs to be finalized, I think. Through this whole process, and as I read the information, I know Mr. Harris asked the question about whether or not we had the necessary information on our side to say OK, this is the decibel readings of the equipment that is a concern. I must admit with you, because when I look at a couple other things besides that unit that would probably bother me, Mr. Behling, is when I hear the Darling truck at 3:00 o'clock in the morning pumping grease out. That's my opinion. And I think that those are things, whether the bread trucks are coming in... and I know they all have their delivery schedules and everything, and everyone has to meet this situation. But how do we arrive at a decision in order to make this whole thing work? The way I look at it, unless we can get someone to be the intermediary in order to get the job done, then probably one point that I see is civil action because that's what I'd look at. There are opportunities that may exist out there, however we can make it happen. Everybody that I have talked to, essentially... whether I've talked to attorneys, whether I've talked to County, whether I've talked to the Police Department, they're all telling me the same thing. And, I guess, that what I kind of look at.

Mr. Behling: Do I get a response or a rebuttal here?

Mayor Weatherford: At the end.

Mr. DeBrum: No further questions. No further comment.

(Councilwoman Debby Moorehead declines the floor.)

Mayor Weatherford: You can sit down, Rex. For sure, what was the date that this came into the City?

Mr. Behling: March 4th, last year.

Mr. Osborn: I think he means the property came into the City?

Mr. Behling: December 17, 1986.

Mayor Weatherford: Does anyone challenge that?

Mr. Osborn: You know, the property owners are here and I don't know if they understood the process that they could speak or not, Mr. Mayor. I don't know if they have any information they want to share...

Mayor Weatherford: Let me ask them. Who's the property owner? Please come forward. I want to ask you when you got the property? (Lynda Allen moves to podium) What year did you buy the property?

Lynda Allen, owner of 810 Fishback Street and TLC Catering: '87.

Mayor Weatherford: Did you come in at the same time, or were you the original owner when it was annexed to the City?

Ms. Allen: It wasn't in the City yet. In fact, when they started talking about the City coming in, or whatever, they brought... they had somebody come out and talk to us, saying they wanted to bring in a school and whatnot. We also had the City people out there to make sure everything was o.k. when we came in. I've been there twenty-five years. I haven't had any problems. I have city people from Tracy here that... I give good service. It's not that we don't get along, we just don't talk. Like, this is the second book.

Mayor Weatherford: How big is your property?

Ms. Allen: A half-acre.

Mayor Weatherford: When you bought the property, did you have an intention to use it in a certain way?

Ms. Allen: Yes, it was all laid out. Yes... It was coming in... from the Bay Area, I lived in the Bay Area, work in Tracy, just come out here, bought some country property. Have the Health Department in... for twenty-five years they come in every year, every December. I've had Clark Pest Control since the day I moved in. I have my refrigeration man that can tell you about the ice machine that's not really a problem because it doesn't run all night. I go to bed at seven, shut it off, I leave at four in the morning. My other neighbors I've been with for well over twenty-five... Costa's been there twenty years. They said I could use their phone numbers or whatever, that they have no problems with me, we all buddy up. When we first got started out here, he actually... you know, we meet and say hello, how are you doing? at the mailbox...

Mayor Weatherford: When did you guys first meet?

Ms. Allen: After he moved in.

Mayor Weatherford: What year was that?

Ms. Allen: Not... a little over a year ago.

Mr. Behling: Exactly two years ago.

Ms. Allen: Anyway, he also knew what was going on when he moved in. I've been there so long and actually I took care of the... the owners of that house we took care of 'til they passed away. And then the daughter come in, and somehow they...

Mayor Weatherford: I think Mr. DeBrum said that you currently don't have City garbage.

Ms. Allen: No. I do go to the dumps because the City took me in there (Small Claims)... and I've always gone to the dumps myself. Since, at the time, I was country so we didn't get pickups. So I've constantly taken my garbage this entire time to...

Mayor Weatherford: Do you have City water?

Ms. Allen: Well.

Mayor Weatherford: You have a septic?

Ms. Allen: Yes.

Mayor Weatherford: So you have no City services. So you are existing based as a legal nonconforming use.

Ms. Allen: I was paying water and garbage for a long time 'til times got tough. Got hit by a car, got outta work for over a year, and then I couldn't pay for them, and then the City took me in (Small Claims) and... The judge, just so happens, him and his four kids circled my house every day and he was able to see what a nice yard I do have. And in the pictures, you can also see, my yard is picked up. There's not anything. You know, I go to bed by seven, leave the yard by four, I'm not even much of a neighbor. I mean, we don't even see each other.

Mayor Weatherford: How many days a week do you work?

Ms. Allen: Monday through Friday, now. That's all I can take. Earlier, younger, it was seven days, now it's Monday through Friday. I'm fifty-six. I only have a couple years left.

Mayor Weatherford: I don't have any other questions. I'm going to...

Ms. Allen: I only have a couple years left in my business... if I make it. We don't talk. It's not that we need a mediator. He has nothing else to do or he would not have written those two big books.

Mayor Weatherford: I don't think we want to get into the personal issues here.

Ms. Allen: Well, I try not to do that, but I'm just saying that somebody has a little extra time on their hands. (audience laughs)


Mayor Weatherford: I don't really have any more questions of you, so you can go ahead and sit down, unless one of the other councilpeople have questions.

Ms. Allen: Just one last thing? I'm not here to cause any problems with him. I just thought... it obviously didn't... I didn't think anything was gonna come to this because I just kept overlooking him... uh, just thinking it would go away, because I don't cause any problems, I don't give any problems.

Mayor Weatherford: Thank you.

Ms. Allen: All right. O.K. I was just getting wound up. (audience laughs)

Mayor Weatherford: I guess my position is I'd like to be able to help everybody, but I don't really think the City can. I think this is going to have to go through a court and the court is going to make the decision as to whether they're existing as a legal nonconforming or not. If they're not, then it's easy for the City to correct it. If they are... (to Mr. Behling) Did you have a comment you want to close with before we decide what we're going to do?

Mr. Behling: I just wanted to reiterate the main point of this whole thick book. The whole main point is the research in the County Recorder's office involving the land deeds and laid out pretty specifically that there are really only three key dates. (to Ms. McLaughlin) Would you mind picking one of those things (handouts) up? Or, I guess you could pass them out to the council as well, there's enough of them I think.
There's only three key dates involved here, or two key dates actually. The first key date is the annexation of that area of the City into the City, and this book has the filings by LAFCO where they finalize the date of December 17, 1986. Is that open to question? Is that date open to question? Is that the annexation date of those parcels, or is it not? According to my research, my parcel and her parcel were annexed on December 17, 1986. There is no question. It's true that City people would have come out there, maybe County people would have come out there. There are letters in here communicating with the Mego's about the address change.
The second key date is when they (Allen & Brassey) bought the property from the Mego's. That key date is November 10, 1987. Is that before or is that after annexation? It's after annexation. Therefore, if they didn't even get on the property until after annexation, that nonconforming use of the property she keeps referring to didn't even exist at the time of annexation on that property, and is therefore not grandfathered. There is no grandfather protection for that business use of that residential property.
All that means - all those words - all that means is that they are fully subject to Manteca's ordinances - the new noise ordinance, the home occupation ordinance, garbage pickup ordinance, any other ordinance that Manteca has in place to regulate residential use, and its nonresidential uses through the permitting process, they are fully subject to. The City has every right, and every obligation, to hold them to current City ordinances, or the City is not doing it's job. It has nothing to do with the courts - it's either you regulate the City's occupants, or you don't regulate the City's occupants. It's a very simple, clear case, not nearly as complex as Rex made it out to be last April. In his very first communication to me he said, "This is a complex case. We're trying to please you, while protecting the rights of your neighbors." That's exactly backwards. They're the lawbreakers, they have the illegal use of the property. I don't care whether they were operating there when I brought my property, or not. Whatever...What can I say?...

Mayor Weatherford: Thank you.

Mayor Weatherford: (to the City Attorney) I have one question. The City has the legal obligation if these dates are correct?

Mr. Brinton: The City Attorney's office does not see it... that bright line.

Mayor Weatherford: Based on that it just keeps the water muddy, quite frankly, because those dates will be the issue that whoever, whatever judge hears this, will determine whether it's a legal nonconforming, or not.

Mr. Brinton: That's correct. And reasonable people differ and to bring a criminal prosecution, you have to prove things beyond a reasonable doubt.

Mayor Weatherford: Do you know, Mr. Osborn, if during the course of the last twenty years, you ever had a noise complaint over there... before the new resident moved in?

Mr. Osborn: No.

Mayor Weatherford: Thank you. Mr. Hernandez, do you have anything?

Mr. Hernandez: Thank you, Mayor. Ms. McLaughlin, with these dates, has the City been able to verify these, three critical dates that Mr. Behling has brought forward?

Ms.McLaughlin: I personally haven't been involved in this project. I don't know. All I can tell you is Police staff and Community Development staff have been closely involved with this project and have spoken with, in one way or another, Mr. Behling, as well as conferred with the City Attorney's office. So, I don't know if they've verified those dates or not. All I've been told in the meetings, where there has been general discussion about this, is that the City Attorney's office is not convinced there is any criminal activity [... ].

Mr. Hernandez: As the Mayor had mentioned, with these three dates, they 're critical. And with those dates... as with the audible measurements, which weren't able to be taken... we have these dates to verify, and I think it behooves us to verify them.

Ms.McLaughlin: I think what Mr. Brinton was saying was even if those dates were verifiable, it's not just a question of those dates controlling the conforming or nonconforming aspect. So even if those dates are verified as accurate, I don't think the City Attorney's office's opinion would change at all.

Mr. Hernandez: Mr. Brinton, is that the case?

Mr. Brinton: That is the case.

Mr. Hernandez: Thank you.

Mayor Weatherford: Any other comments or questions? Mr. Harris, you have one?

Mr. Harris: Yes. This is kind of unfortunate, but to use an old movie line - What we have here is a failure to communicate. It's unfortunate that we can't have two neighbors sit down and talk with one another. As I mentioned, my neighbor had a problem with my oleanders, we sat down... we stood up… and talked about it. The conversation lasted about five minutes, I complied with her wishes because those wishes were... I could see why they were causing a problem. The question I've got to ask is... The City Attorney didn't give me anything to hang my hat on, there was no decibel reading to hang my hat on. Mr. Osborn, would you be amenable to mediating with the pair, or would you recommend that they go to the San Joaquin mediation?

Mr. Osborn: I would recommend they use San Joaquin Mediation Service, but I could help facilitate getting that done... I mean, getting both parties - and it does take both, one can't do it. So if you are making a recommendation, hopefully they will listen to that.

Mr. Harris: In order for them to arrive at that point they would have to agree to it.

Mr. Osborn: Yes.

Mr. Harris: And what happens if they don't agree to it? Civil court?

Mr. Osborn: It is. One of the things that should probably be mentioned again, in some stuff you don't have, is that Mr. Behling has seen an attorney, I think he said three times, and each time the attorneys have listened to what he has said, and all of them have said, You have to make sure you exhaust all your administrative remedies, and I believe this is probably that final step toward that exhausting it, I'm guessing.

Mr. Harris: Get your ducks in a row.

Mr. Osborn: I think so. He's very smart and he's got very good documentation. On the dates, I would venture that they are accurate because they are from the County, but it's like you had said earlier, the direction it goes in... we don't know the process that took place twenty-some years ago. I think none of us are old enough to remember that far back. [...] (audience laughs)

Mr. Harris: So, San Joaquin Mediation or civil court. Thank you.

Mayor Weatherford: Any other comments or questions? Seeing none, I would ask the council to make a decision as to whether we uphold Mr. Behling's complaint. I would move that we not grant him his appeal to seek a remedy that [...] this issue.

Mr. Harris: Second.

Mayor Weatherford: Any other comments or questions? All those in favor say, aye. (Ayes) Those opposed... Motion carries 5-0. I would hope everybody the best of luck in this... Somebody's going to lose.