Friday, August 28, 2009

I'm loving this guy's writing already...

Right on! Well said!

It seems Lexington, Kentucky and Manteca, California have two strong commonalities - brazen malefactors who flout zoning laws for personal gain at neighbors' expense, and an impotent city government whose posturing officials refuse to enforce the very same laws they voted into existence.

Here are my three favorite quotes from the post above. The first is (obviously) a parenthetical illustration of the point being made that it only takes one rotten apple to ruin the barrel. (Oops! another illustration...)

"(never mind that it just takes one Animal House out of ten—a 90:10 mix—on a street to push it to the point of no return if that house happens to be next door to you)"

The second is a footnote that describes my NFH's to a T. When I first read it, I thought, 'Has he met Allen & Brassey before, or did he just read about their grand acoustics engineering project of sound isolating an ice machine with 1/4" plywood?'

"3. Retrofitted by people who are uniquely unqualified to do so—unless you consider owning a circular saw and a nail gun, having an unnatural predilection for treated lumber and plastic siding, being completely unaware of the impact that one’s actions have on those around them, and possessing an unwavering commitment to doing things as cheaply as humanly possible in all cases—to be qualities that qualify an individual in these matters."

The third is a footnote disclaimer on the writer's approach and manner of communicating with opposing parties. I truly wish I could articulate my empathetic shortcomings as well as he.

"1. I will no doubt convey my thoughts on these matters in ways that are objectionable to the many good people who have invested where I have not, who have negotiated where I have railed, and who will likely take exception both to WHAT I say and HOW I say it—better known as a 'two-fer.'"

I may have to return to Lexington someday just to meet this guy and shake his hand.

Tuesday, August 25, 2009

Pigs In My Parlor Instead Of Their Own Barnyard

While looking into the City of Manteca's zoning code last year, my research branched out to include some case law on the subject. Early on, the 1926 U.S. Supreme Court decision in the case of Euclid v. Ambler came up because of its most famous phrase, "a pig in the parlor." In addition to the memorable writing, this often-quoted decision is the mother ship of all precedents relating to the legality of zoning ordinances in the newly developing suburbs of a rapidly developing America. Little did I know that I would be relying on this case in such a fashion a year later.

Here are some excerpts from that decision:
- - - - - - - - - - - - - - - - - -

272 U.S. 365


Reargued Oct. 12, 1926.

Decided Nov. 22, 1926.

"Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in (272 U.S. 365, 387) urban communities.

"The [zoning] ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It [the line] varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities.

"In solving doubts, the maxim 'sic utere tuo ut alienum non laedas,' [so use your own as not to injure another's property] which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining (272 U.S. 365, 388) the scope of the [zoning] power.

"Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. (Sturgis v. Bridgeman, L. R. 11 Ch. 852, 865.)

"A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard."

- - - - - - - - - - - - - - - - -

It is highly instructive that the 6-3 majority of the Court, in the opinion delivered by Mr. Justice Sutherland, used nuisance law as a foundation argument upholding the establishment of zoning ordinances. The Court also quoted from the Supreme Court of Illinois, in City of Aurora v. Burns, supra, pages 93-95 (149 N. E. 788):

"The establishment of such districts or zones may, among other things, prevent congestion of population, secure quiet residence districts, expedite local transportation, and facilitate the suppression of disorder, the extinguishment of fires, and the enforcement of traffic and sanitary regulations."

And, quoting from the Supreme Court of Louisiana, in State v. City of New Orleans, supra, pages 282, 283 (97 So. 444):

"Aside from considerations of economic administration, in the matter of police and fire protection, street paving, etc., any business establishment is likely to be a genuine nuisance in a neighborhood of residences. Places of business are noisy; they are apt to be disturbing at night; some of them are malodorous; some are unsightly; some are apt to breed rats, mice, roaches, flies, ants, etc."

An assumption is made in all of the Court's analysis that the businesses referred to were legal businesses and operating legally in all other respects. If such businesses were operating on their properties prior to the adoption of a zoning ordinance, they would be "grandfathered" and allowed to continue operating indefinitely, with restrictions on changing the business or expanding it.

These are the areas where Allen & Brassey and TLC Catering depart from the law of the land; and from California's Business and Professions Code; and from Manteca's zoning ordinance, which Manteca will not enforce. In addition, they are the poster children for noisy, disturbing nuisances, precisely BECAUSE they are in the wrong place.

Remember, the pig was a "right" thing; TLC Catering is a "wrong" thing AND in the wrong place.

Monday, August 17, 2009

What She SAYS - -vs- - What She DOES

Quote from Lynda Allen to City Council: "I have my refrigeration man [here] that can tell you about the ice machine... that's not really a problem... because it doesn't run all night."

- versus -

Recorded incidents of all-night icemaker operation:
Apr 08 - 7 nights
May 08 - 7 nights
Jun 08 - 9 nights
Jul 08 - 13 nights
Aug 08 - 2 nights
Sep 08 - 0
Oct 08 - 1 nights
Nov 08 - 0
Dec 08 - 1 nights
Jan 09 - 2 nights
Feb 09 - 1 nights
Mar 09 - 0 (City Council Meeting)
Apr 09 - 1 nights
May 09 - 1 nights
Jun 09 - 0
Jul 09 - 9 nights
Aug 09 - 15 nights (edited 8/31/09)

- - - - - - -
Actually, the ice machine does run all night much more often than she cares to remember or admit when not under oath. (Oh, by the way, congratulations to TLC Catering on setting a new record last month - almost 50% of all nights - 15 out of 31).
And don't forget the Ice Bucket Brigade - an integral part of the icemaker's operation. Every weekday morning from 3:00 a.m. to 4:00 a.m. my air is polluted with banging of empty 5-gallon plastic pails, the repetitive, clattering noise of shoveling ice into those pails, latching and slamming ice bin lids and doors, and other disturbances related to the illegal operation of TLC Catering.
And one of Snow White's dwarves whistles while she works... (Hi Ho, Hi Ho, We get to play with Snow...)
I truly DO understand that a business such as this requires preparations during early morning hours. That is EXACTLY why such businesses should not be located in residential zones.
Allen & Brassey's claim of grandfathered land use is FALSE - and TLC Catering should be MOVED elsewhere (... or shut down, if that is T, L, and C's choice.)

Thursday, August 13, 2009

Inconvenient Smog? Nuisance Noise?

A report published in 2007 titled, Noise Pollution: A Modern Plague, reviews much of the literature on the subject and abstracts the findings to date.

I really like this quote:

Former U.S. Surgeon General William H. Stewart said in 1978, “Calling noise a nuisance is like calling smog an inconvenience. Noise must be considered a hazard to the health of people everywhere.”

... and these paragraphs from the Background section:

"Because their wheels clattered on paving stones, chariots in ancient Rome were banned from the streets at night to prevent the noise that disrupted sleep and caused annoyance to the citizens. Centuries later, some cities in Medieval Europe either banned horse drawn carriages and horses from the streets at night or covered the stone streets with straw to reduce noise and to ensure peaceful sleep for the residents. In more recent times in Philadelphia, the framers of our Constitution covered nearby cobblestone streets with earth to prevent noise-induced interruptions in their important work. These examples pinpoint two major effects of noise from which men in all ages have sought relief: interruption of sleep and interference with work that requires concentration...."

"(M)odern technology produce(s) increasing levels of unwanted noise of varying types and intensities throughout the day and night that disturb sleep, concentration, and other functions. This noise affects us without our being consciously aware of it. Unlike our eyes, which we can shut to exclude unwanted visual input, we cannot voluntarily shut our ears to exclude unwanted auditory input. Our hearing mechanisms are always “on” even when we are asleep."

- - - - -

Adverse Health Effects of Noise are grouped into seven categories:

1. Hearing Impairment
2. Interference with Spoken Communication
3. Sleep Disturbances
4. Cardiovascular Disturbances
5. Disturbances in Mental Health
6. Impaired Task Performance
7. Negative Social Behavior and Annoyance Reactions:

- - - - -

Selected excerpts, with emphasis added:

3. Sleep Disturbances: Uninterrupted sleep is known to be a prerequisite for good physiologic and mental functioning in healthy individuals. Environmental noise is one of the major causes of disturbed sleep. When sleep disruption becomes chronic, the results are mood changes, decrements in performance, and other long-term effects on health and well-being.... It is known, for example, that continuous noise in excess of 30 dB disturbs sleep. For intermittent noise, the probability of being awakened increases with the number of noise events per night.

The primary sleep disturbances are difficulty falling asleep, frequent awakenings, waking too early, and alterations in sleep stages and depth, especially a reduction in REM sleep. Apart from various effects on sleep itself, noise during sleep causes increased blood pressure, increased heart rate, increased pulse amplitude, vasoconstriction, changes in respiration, cardiac arrhythmias, and increased body movement.... Secondary effects (so-called after effects) measured the following day include fatigue, depressed mood and well-being, and decreased performance.

Long-term psychosocial effects have been related to nocturnal noise. Noise annoyance during the night increases total noise annoyance for the following 24 hours.

Other factors that influence the problem of night-time noise include its occurrence in residential areas with low background noise levels and combinations of noise and vibration such as produced by trains or heavy trucks [or icemaker compressors!]. Low frequency sound is more disturbing, even at very low sound pressure levels; these low frequency components appear to have a significant detrimental effect on health.

4. Cardiovascular Disturbances: A growing body of evidence confirms that noise pollution has both temporary and permanent effects on humans (and other mammals) by way of the endocrine and autonomic nervous systems. It has been postulated that noise acts as a nonspecific biologic stressor eliciting reactions that prepare the body for a “fight or flight” response. For this reason, noise can trigger both endocrine and autonomic nervous system responses that affect the cardiovascular system and thus may be a risk factor for cardiovascular disease. These effects begin to be seen with long-term daily exposure to noise levels above 65 dB or with acute exposure to noise levels above 80 to 85 dB. Acute exposure to noise activates nervous and hormonal responses, leading to temporary increases in blood pressure, heart rate, and vasoconstriction. Studies of individuals exposed to occupational or environmental noise show that exposure of sufficient intensity and duration increases heart rate and peripheral resistance, increases blood pressure, increases blood viscosity and levels of blood lipids, causes shifts in electrolytes, and increases levels of epinephrine, norepinephrine, and cortisol. Sudden unexpected noise evokes reflex responses as well. Cardiovascular disturbances are independent of sleep disturbances; noise that does not interfere with the sleep of subjects may still provoke autonomic responses and secretion of epinephrine, norepinephrine, and cortisol. These responses suggest that one can never completely “get used to” nighttime noise.

Temporary noise exposure produces readily reversible physiologic changes. However, noise exposure of sufficient intensity, duration, and unpredictability provokes changes that may not be so readily reversible. The studies that have been done on the effects of environmental noise have shown an association between noise exposure and subsequent cardiovascular disease.

5. Disturbances in Mental Health: Noise pollution is not believed to be a cause of mental illness, but it is assumed to accelerate and intensify the development of latent mental disorders. Noise pollution may cause or contribute to the following adverse effects: anxiety, stress, nervousness, nausea, headache, emotional instability, argumentativeness, sexual impotence, changes in mood, increase in social conflicts, neurosis, hysteria, and psychosis. Population studies have suggested associations between noise and mental-health indicators, such as rating of well-being, symptom profiles, the use of psychoactive drugs and sleeping pills, and mental-hospital admission rates.

6. Impaired Task Performance: The effects of noise pollution on cognitive task performance have been well-studied. Noise pollution impairs task performance at school and at work, increases errors, and decreases motivation. Reading attention, problem solving, and memory are most strongly affected by noise. Two types of memory deficits have been identified under experimental conditions: recall of subject content and recall of incidental details. Both are adversely influenced by noise. Deficits in performance can lead to errors and accidents, both of which have health and economic consequences.

7. Negative Social Behavior and Annoyance Reactions: Annoyance is defined as a feeling of displeasure associated with any agent or condition believed by an individual to adversely affect him or her. Perhaps a better description of this response would be aversion or distress. Noise has been used as a noxious stimulus in a variety of studies because it produces the same kinds of effects as other stressors. Annoyance increases significantly when noise is accompanied by vibration or by low frequency components. The term annoyance does not begin to cover the wide range of negative reactions associated with noise pollution; these include anger, disappointment, dissatisfaction, withdrawal, helplessness, depression, anxiety, distraction, agitation, or exhaustion. Lack of perceived control over the noise intensifies these effects.

Social and behavioral effects of noise exposure are complex, subtle, and indirect. These effects include changes in everyday behavior (e.g., closing windows and doors to eliminate outside noises; avoiding the use of balconies, patios and yards [and bedrooms!]; and turning up the volume of radios and television sets); changes in social behavior (e.g., aggressiveness, unfriendliness, nonparticipation, or disengagement); and changes in social indicators (e.g., residential mobility, hospital admissions, drug consumption, and accident rates); and changes in mood (increased reports of depression).

Noise exposure per se is not believed to produce aggressive behavior. However, in combination with provocation, preexisting anger or hostility, alcohol or other psychoactive agents, noise may trigger aggressive behavior. Our news is filled with examples of this kind of behavior.

The degree of annoyance produced by noise may vary with the time of day, the unpleasant characteristics of the noise, the duration and intensity of the noise, the meaning associated with it, and the nature of the activity that the noise interrupted. Annoyance may be influenced by a variety of non-acoustical factors including individual sensitivity to noise. These include fear of the noise source, conviction that noise could be reduced by third parties, individual sensitivity, the degree to which an individual feels able to control the noise, and whether or not the noise originated from an important economic activity. Other less direct effects of annoyance are disruption of one’s peace of mind, the enjoyment of one’s property, and the enjoyment of solitude.

The results of annoyance are privately felt dissatisfaction, publicly expressed complaints to authorities (although underreporting is probably significant), and the adverse health effects already noted. Given that annoyance can connote more than slight irritation, it describes a significant degradation in the quality of life, which corresponds to degradation in health and well-being. In this regard, it is important to note that annoyance does not abate over time despite continuing exposure to noise.

Effects of Multiple Sources of Noise Pollution

Most environments contain a combination of sounds from more than one source (e.g., aircraft, motor vehicles, and trains). In urban environments, boom cars, car horns, car alarms, and public transit systems may be the offenders. In suburban areas, leaf blowers, other power equipment, and barking dogs may be the source. There is, as yet, no consensus on a model for measuring total annoyance from multiple noise sources. Adverse health effects appear to be related to total noise exposure from all sources rather than the noise from any single source.

The evidence related to low-frequency noise is sufficiently strong to warrant immediate concern. It is a special concern because of its pervasive nature, because it arises from multiple sources, and because of its efficient propagation, which is essentially unimpeded by conventional methods of either building or ear protection. Adverse health effects from low-frequency noise are thought to be more severe than from other forms of community noise. This form of noise is underestimated with the usual types of sound measuring equipment.

Conclusions and Recommendations

As a society, our history is filled with failures to recognize the agents that cause disease; once the causes have been recognized, we have responded reluctantly, slowly, and often inadequately. The case with tobacco is an instructive one. It took many years of lobbying by dedicated individuals before legislators and the general public recognized the links between the hazards of tobacco smoke and disease; as a result laws were finally enacted and behaviors changed accordingly.

Despite the evidence about the many medical, social, and economic effects of noise, as a society, we continue to suffer from the same inertia, the same reluctance to change, and the same denial of the obvious that the anti-tobacco lobby faced a couple of decades ago. This inertia and denial are similar to those that delayed appropriate action on lead, mercury, and asbestos. Now we seem unable to make the connection between noise and disease, despite the evidence, and despite the fact, which we all recognize, that our cities are becoming increasingly more polluted with noise.

Noise makers and the businesses that support them are as reluctant as smokers to give up their bad habits. Legislators at all levels should protect us from noise pollution the same way they protected us from tobacco smoke and other forms of pollution. It is clear that laws can change behaviors in ways that benefit society as a whole.

Noise represents an important public health problem that can lead to hearing loss, sleep disruption, cardiovascular disease, social handicaps, reduced productivity, impaired teaching and learning, absenteeism, increased drug use, and accidents. It can impair the ability to enjoy one’s property and leisure time and increases the frequency of antisocial behavior. Noise adversely affects general health and well-being in the same way as does chronic stress. It adversely affects future generations by degrading residential, social, and learning environments with corresponding economic losses. Local control of noise has not been successful in most places [especially Manteca!]. This points out the need for improved methods of local control that should include public education, enlightened legislation, and active enforcement of noise ordinances by local law enforcement officials. Part of the solution may require federal or state legislation aimed at supporting local efforts or the restoration of federal funding for the Office of Noise Abatement and Control.

Forty-six References are cited.

Wednesday, August 12, 2009

Keystones of the Quiet, the Hellishly Noisy, and Manteca

The folks over at the Noise Pollution Clearinghouse (NPC) have pulled together a wealth of information on noise -those who create it, those forced to listen to it, and the problems caused by it. They have been on this project for twelve years. The following excerpts were taken from the article, The Nature of Noise, found on page 4 of The Quiet Zone, Fall 2006, a newsletter published by the NPC.

- - - - -
“The noise polluter can be amazingly uncivil, waking people in the middle of the night, often repeatedly, or imposing noise on others without their consent.”

“Much of the noise pollution we experience results from individuals and businesses who believe that it is their right or freedom to make noise. The most common right claimed is a property right. They claim that they should be free to use their property as they see fit without interference from others. The second most common right cited is that of prior occupation. People often assume that if the noise source "was there" before the complainant, that the noise is permissible. Finally, some people claim that they should be free to act as they wish without interference from others or the state, or they claim specific rights such as the freedom of speech.”

“Noise becomes a problem when it flows onto another’s property without their consent.”

“If the noise is not reciprocal, if it primarily travels one way, then problems ensue. A lack of reciprocity is the defining characteristic of almost every major noise problem.”

“Building a good sense of community… may even be impossible if one is faced with an uncaring ‘neighbor from hell’...”

- - - - -

A book I'm eagerly anticipating is scheduled for release through within a few months. It is entitled, "Neighbors From Hell", written by Bob Borzotta. I found out about his writing project too late to submit my story for him to consider including in the book.

That's too bad because Allen & Brassey: TLC on Fishback Street - A documented account of the unlawful commencement, enlargement, and continued operation of TLC Catering at 810 Fishback Street, Manteca, CA is an epic spanning decades and includes the title confidence artists, City shills, a court Rasputin, bumbling bureaucrats, ridiculous Keystone Cops, impotent officials, blindly ambitious politicos, and other unsavory characters. It more than covers the failure of the City of Manteca to operate by the rule of law, opting instead for favors and feudalism. As yet unexplored are the money trails and the inbred sexual intrigues of the actors.

Monday, August 10, 2009

Ad Hominem Arguments Work on Sheople

How many humans fall into the category of "sheople," a term used on talk radio by Michael Savage?

A similar term, attributed much earlier to Lenin, is "useful idiots."

Both terms refer to the lack of critical thinking among very large segments of the population. Because of this deficiency, these benighted souls rely on past patterns of behavior to inform their actions. They are also easily swayed by group-think and the rhetoric of manipulators. Spin doctors know that these people are beyond reason and logic, and can very effectively control them by playing to their puerile desires.

Ad hominem arguments are personal attacks. It works by implying that the messenger is tainted, therefore the message is tainted and can be ignored. It is a smear tactic.

"An ad hominem argument, also known as argumentum ad hominem (Latin: "argument to the man" [or] "argument against the man") consists of replying to an argument or factual claim by attacking ... a characteristic or belief of the person making the argument or claim, rather than by addressing the substance of the argument or producing evidence against the claim.

"The process of proving or disproving the claim is thereby subverted, and the argumentum ad hominem works to change the subject."

(Wikipedia and other references here)

A perfect example of "ad hominem abusive" was perpetrated on me last March 3rd at the Manteca City Council meeting. During a review of that so-called hearing, a comment was made that after I finished presenting the documented evidence the entire public discussion shifted immediately "from facts to feelings.” Indeed, the O. Rex was on a mission to absolve the city from any of its responsibilities (such as enforcing its own ordinances) by smearing me with the broadest, blackest brush possible. My theatrical neighbor was given the floor for a little redneck standup comedy - again at my expense - without refuting a single charge against her. The entire charade comprised an astonishingly successful ad hominem attack.

In true committee fashion, the "useful idiots" occupying the council seats and the chairs where city department heads are supposed to sit, went along with the hijack. If any of them (especially the Director of Community Development) had a thought, it was only, "How do I keep my ass out of this sling?

Despite the oxymoronic ethics of attorneys, I am certainly expecting more attempts at character assassination from the defendants and opposing counsel.

I can only hope that a court of competent jurisdiction, as a "tryer of facts," does indeed examine and weigh the factual evidence and not rely on, or be swayed by, the ad hominem fallacy.