Code Enforcement: Slack or Overbearing?

Once again the author of the blog, Pigs in the Parlor, seems to be writing in a universe where Lexington, Kentucky's woes exactly parallel those of Manteca, California.

"Lexington’s record on intelligently addressing and abating the adverse effects of the intensive, business-oriented use of residential properties is dismal at best. Not only can’t the city mitigate problems created by those that already exist — it can’t seem to identify them in the first place, hidden as they are behind the fig-leaf assertion that they are not what they most certainly and self-evidently are."

Both cities have a distinct problem enforcing longstanding zoning codes because city leaders charged with upholding quality of life goals are wholly inadequate to the task. Their policies and procedures manuals must say, "Close your eyes and maybe the property owners will magically obey the laws. ("If the law [or its agent] supposes that, then the law [or its agent] is a ass, a idiot! Dickens, Oliver Twist.)

Risking going overboard the other direction, the first commenter to this Code Attorney blog post says the "City of Fort Wayne... now use[s] administrative hearings where civil penalties are attached as a special tax assessment." Hey, good idea! The Code Attorney is jealous of her inspector colleagues in Indiana... and Minnesota.

You know, that's what City of Manteca [in California] is going to do, too. By passing Ordinance 1457, Administrative Enforcement Provisions, at tonight's City Council meeting, code enforcement will theoretically have the means to remedy an identified violation. That's the rub, though... it has to be an identified violation. It falls to the various department heads to:

• 1) have a possible violation somehow randomly impinge upon their consciousness,
• 2) think to themselves, 'Gee, this might be a violation?'
• 3) circulate the reporting party's name in-house to see if he or she is only a crackpot who can be safely ignored,
• 4) figure out if the violator is somebody important who can make personal trouble for the department head in the event of enforcement action, or is a campaign contributor, or a developer, or a friend, relative, neighbor, priest/pastor, or a [ fill in the special interest ],
• 5) try to hand off the problem to another department,
• 6) check to see if it's lunchtime yet,
• 7) while eating, have a lackey do a cursory check by making a couple phone calls to other bureaucrats,
• 8) run the situation past other department heads, city manager, mayor and council, and the city attorney to see if any closets containing political skeletons might inadvertently be opened,
• 9) have a lackey call the reporting party to say, "There's nothing we can do / will do / want to do,"
• 10) if the reporting party throws a hissy fit, have a lackey visit the violator and write down on the courtesy notice whatever the violator says. (This is also known as an "inspection" in Manteca.)

This is how violations get "identified" under the current system - and that won't change! As you can see, by the time the newly-identified violation makes it to an administrative hearing contemplated under this new ordinance, the custodians of Sim City have already decided the outcome of the process. (This is also known as "due process" in Manteca.)

Of course, Manteca could go whole hog - do a 180° turnabout - and become one of those cities vilified by the bloggers at F.A.C.E.OFF. (Fight Aggressive Code Enforcement Office). This new blog features the anti-gum'int passions of those dispossessed by code enforcement crackdowns. (Think Sheriff Joe Arpaio of Maricopa County, Arizona type passions on one side and zealousness on the other.) City of Downey, City of Madera (particularly its Redevelopment Agency), and County of Contra Costa have been "written up" so far.

Closer to home is the code enforcement debacle in Stockton, next town north. Even now Stockton responds to the Grand Jury that the city does not need policies and procedures in the area of identifying and documenting violations because they belong to the California Association of Code Enforcement Officers and have two-way communication with cities throughout California.

I still think the City of Austin, Texas, has the best idea. They operate their Code Compliance department within their Solid Waste Services. What better way to get "eyes on the street" continually than to have ride-alongs on the garbage trucks that criss-cross the city every week, beginning in the wee hours of the morning.

How to balance code enforcement? The administrative hearings ordinance will have NO EFFECT so long as fair identification and proper investigation of violations remains an undocumented whim, a caprice. So many variables...

A county district attorney in Texas last year said, "The most perfect law in the world could be sullied by the individuals carrying it out. It goes to the integrity of the people enforcing the law."

Hey, Mike... Happy Valentine's Day!

Nice lady, that Lynda, so gentle and kind. All sweetness and smiles and cooperation this Sunday morning...

...after I again called you out to witness our ongoing dispute. Yessir, she's a peach, that one... One weekend running ice cold and telling you not to return, ever. Last weekend she claimed that Manteca's noise ordinance gave her the right to play her music beginning at 7:00 o'clock in the morning. Pursuant to that bit of misinformation, made up in her own or her friends' empty heads, sure enough at 06:57 a.m. on Saturday and at 06:52 a.m. on Sunday, she turned on her stereo with the all-weather, outdoor speaker pointed at my bedroom window. Well, at least your visit last week bought an hour of quiet from 6 o'clock to 7 o'clock.

This weekend Lynda turned on all the ingratiating* "charm" she is capable of mustering when someone she perceives as more powerful is around. She agreed to "take care" of something worked out between her and you and, in starkly vivid contrast to her usual parting shots, hollered out for the entire neighborhood, "Hey, Mike... Happy Valentine's Day!" How thoughtful of her.

Or masterful manipulation? (I find it intensely rude when a child presumes to address an adult by his first name without leave.) Her true colors were on display last week when she was caught off-guard. I am still convinced that had anyone else purchased my house, they would be Lynda's enemy - more especially if anything concerning TLC's illegal operation came up. On the other hand, her face changes for Rex Osborn and code enforcement officers. She wears the same mask for city council. But her double face was revealed to you, officer, between last weekend and this weekend. (I'm guessing her roach coach customers only see her "smiley" face and put up with her snake oil banter while forking over their money.)

Let's hope your second visit, on consecutive weekends, buys another hour of quiet - until 8:00 a.m. - which is what Ordinance 1374 really says. (Of course, Lynda's never met a law she didn't think didn't apply to her.)

So, officer, I'm sorry about giving you such a crappy Valentine this beautiful Sunday morning, with smiles on the outside and #### on the inside. You see, her affected smile vanished when you left.

Later in the day, while I was out spraying weeds in my back yard, she peeped through the lattice - she's the one who put it up on top the fence! - and commented, "Hey, freak! Better get those weeds up... or maybe the fire department will cite you." Do you suppose she was still thinking of this morning's visit? I certainly hope so!

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* ingratiating: intended or adopted in order to gain favor: flattering

Another Deposition Delay...

Well, tomorrow's opportunity to defend my case in deposition has been postponed by a back field hand off at Farmers' Group. I am mildly curious as to the reason(s) for this delay and will follow future developments to determine what happened. So far, I can speculate three scenarios:

1. The insurance company believes my neighbors have a miniscule chance to win the case and reassigned it to a legal "shark" to vigorously defend. (Good, maybe we can get defense counsel to Authentication of Documents before the second serving of identical papers disintegrates into a pulpy mass suitable only for mouse nests.)

2. The insurance company believes my neighbors have absolutely no chance of prevailing, recalculated the likely settlement and stipulations (oh wait, they don't care about non-monetary stipulations), and reassigned it to a newly minted lawyer to shepherd its demise.

3. Business is so bad for the insurance company (therefore "good", or billable, for the symbiotic legal firm) that Mr. McFadden, Esq. had to offload some of the work - and this case, with its yokel policyholders and mountains of bothersome (ie., unopposable) documentation, was a prime choice for delay... oops... reassignment not likely to produce judicial sanctions.

Oh, well, it's supposed to be sunny tomorrow...

A Dr. Demento Super Bowl

Super Bowl Sunday, February 7, 2010

Shaving Cream

{Cue the / Oom, Pah, Pah / Oom, Pah, Pah / polka music.}

The running back takes a hand off from the quarterback...
He gets a block - ohhhhhh, what a hit!
He's out in the clear. He's going all the way!
But he steps in a big pile of shhh...

{refrain}

...aving cream.
Be nice and clean.
Shave every day
And you'll always look keen.

(Shaving Cream, third verse. Dr. Demento with the Benny Bell Orchestra; Benny Bell estate.)

Pretty cool way to introduce the events of the day's dawn, eh? The lyrics tie in both the Super Bowl game and what Lynda Allen had for breakfast - her foot that had stepped in a big pile of shh... aving cream.

In the darkness of 06:06 this Sunday morning, I am awakened by and treated to a Mega 100.1 radio program from across the neighbors' fence discussing professional barbershop music. By the time I stumbled outside a few minutes later - in the cold and dark, in my robe and slippers - the man, who obviously sung baritone or bass, was joined by the rest of his group for a little musical demo. The digital video clip of the outdoor speaker is too dark to see anything, but the audio comes out just fine. (Really, who wouldn't trade away some sleepytime for some barbershop harmonization at six o'clock on a Sunday morning?) Anyway, the date and timestamps on the video clip and the flash pictures of the speaker tell the necessary story.

After documenting the disturbance, I called the Manteca Police Department at 0618 hrs and requested a report be made. With two consecutive pre-dawn violations by Theresa, Lynda and/or Corky, I wanted to nip this whole new level of retaliation in the bud. (In television's "Criminal Minds" vernacular, "This serial killer is devolving quickly!") MPD Dispatch offered an officer response and I accepted. When the officer arrived, his first disarming comment was, "I know better than to ask how you are doing." We covered the recent history and pattern of temporal encroachment (time slippage). He said he would speak with the neighbors and asked their names. I replied that the short one, who will insist on doing all the talking, is Lynda Allen.

The high point of my day occurred when the officer returned in a couple minutes and began with a slight head shake, saying, "I feel sorry for you... living next door to them..." That comment alone was a game-winning two point conversion, a huge success. He proceeded to recount the front porch interview, which was hilariously entertaining in its content, if not in its original delivery by our neighborhood actress. (She really needs to watch more TV, particularly "Are You Smarter Than a Fifth-Grader?") I indicated that all I needed was a police report and I could take it from there - inside the existing noise nuisance lawsuit.

- - - - - -

I obtained the police report. Here is the note made by the officer:

02/07/2010 07:55:30 Officer xxxxxx Narrative: RP [reporting party] SHOWED ME AN OUTDOOR SPEAKER WHICH WAS PLAYING MUSIC MOUNTED ABOUT 15 TO 20 FEET AWAY FROM HIS HOME. RP STATES THE MUSIC HAS BEEN COMING ON IN EARLY MORNING HOURS WHICH WAKES HIM, TODAY AT 5:30AM. RP BELIEVES MUSIC IS RETALATORY FOR CIVIL LAWSUIT THAT HAS BEEN FILED. I MET WITH NEIGHBOR IN HER SLIPPERS AND ROBE WHO TOLD ME SHE WAS LEGAL SINCE IT WAS AFTER 7 AM AND SHE WAS GOING OUTSIDE TO DO YARD WORK AND LIKES TO LISTEN TO MUSIC WHILE SHE WAS OUTSIDE. THEN SHE TOLD ME THAT I NEEDED TO STOP COMING TO HER HOME BECAUSE THE NEIGHBOR CALLS. DOCUMENTATION REQUESTED ON THIS CALL

- - - - - - - -

Comments on certain aspects, supplemented by my conversation with the officer:

1. Lynda answered the door at 0745 hrs in a house robe and slippers. When asked why she had the radio on so early, she first tried a noise ordinance defense? She doesn't know her xxx from her elbow. The mere suggestion to her in March of 2008 that there was a noise ordinance, she took to be a threat and tried verbally to rip my head off. Now two years later she is pretending to know what the ordinance says. (It's 8:00 a.m., honey bunch... and even then subject to "disturbing the peace" common law provisions.) See the MPD website for a discussion of disturbing the peace and its remedies.

2. Lynda, in her robe, claimed she was going outside to do yardwork. Of course, by this time the radio had been on for one hour, forty minutes already - since before it was light outside - and even earlier, at 0552 hrs, yesterday morning. (She must really like working in her yard - in the cold and dark - in her bathrobe.  ;-) )

3. The officer didn't buy her story and asked again why the radio was on when it was still dark. Lynda wasn't able to bullshit her way out of this lie. Caught red-handed, she still wasn't about to admit the radio speaker was solely to harrass her neighbor and she lost her cool. She "lit into" the officer and called her neighbor a liar, among other things.

4. The officer told her she was not helping her case at all by this rant. She told him not to visit anymore and terminated the interview.

5. The time was now close to 0800 hrs and the radio remained on for the rest of the day, or at least until 1500 hrs when I left for the Super Bowl game at friends, returning at 1900 hrs to a quiet yard.

6. Question: If Lynda likes to listen to music while she is outside, why did she mount the speaker in an unused corner of her yard and point the speaker AWAY from where they do "yardwork", a euphemism for servicing their catering trucks? Answer: Lynda's intent to harrass is unmistakeable in the timing, placement, positioning, and constant operation of this outdoor radio speaker. This is what I see when I look over the fence.

- - - - - - - -

They're Coming To Take Me Away, HA-HAAA!

{accompaniment - ka-Thump, ka-Thump, ka-Thump, ka-Thumop foot stomping and tambourine}

{first refrain}

They're coming to take me away, Ha-haaa!
They're coming to take me away, Ho-ho! He-he! Ha-haaa!
To the funny farm, where life is beautiful all the time,
And I'll be happy to see those nice young men in their clean white coats,
And they're coming to take me away, Ha-haaa!

(Napolean XIV, aka Jerry Samuels; Music Sales Corp. Included on The Best of Dr. Demento CD.)

A 0552 Hrs Emotional Ejaculation

Saturday, February 6, 2010

Tsk, tsk, T, L & C! To take something so private and make it so public... Your neighbor doesn't know which one had her fingers on the pleasure button this morning, but her emotional ejaculation must have been overwhelmingly intense. After all, who doesn't understand the mounting urges arising from WEEKS of icemaker abstinence? He was so proud of you for making the effort, nonetheless, and had high hopes for your success in driving that demon, ICE, from your life.

Ahh, you flash back to those good old days... For six euphoric months you could run both the icemaker AND the outdoor radio for your selfish, guilty pleasures. Then someone, somehow, penetrated the impenetrable and you were forcibly persuaded to shut off the icemaker. Arrgh! For the past few weeks you demanded relief from the inassuagable* upwellings of emotions and cravings. You wanted it - you needed it - and, by God, you were going to get it!

And the backup plan was in place, wasn't it? If you couldn't screw that neighbor frontally then, by God, you'd assault him with your back door!

In the forward thinking of your agile mind, last June you strategically placed an outdoor stereo speaker near the fence and pointed it at his house. Were you not justified in this retaliation because he had served a noise nuisance lawsuit on you? (“Absolutely!” says you.) So, on holidays and weekends, when you are stuck in your business yard and cannot drive off in your fairy princess roach coach, leaving a raise-the-dead wake of noise and clatter, further promulgated* by your left-behind accomplice... at such powerless times, you crank up the radio instead - and your hormonal fix flows through your veins. ("Take that, you effing bastard!")

But like other illegal drugs and businesses, you need MORE - and you snort it earlier and earlier. First you started the radio up at 8:00 a.m. Then you moved it up to 7:00. Christmas morning was greeted with public serenade at 6:15 a.m.

But the pressure keeps mounting, doesn't it? That idiot neighbor sends interrogatories that you and your friends and your "free" insurance company lawyer have to figure out how to avoid answering. Then the bugger sends admissions that you and your accomplices have no intention of admitting - unless you think he has pictures of you doing it. Finally, the asshole sends documents over in October that no one knows what the hell they mean, so your insurance company's attorney ignores them for three months - until the second submission of those same documents arrives in January.

What you think: 'This guy is beginning to chap my hide! He can't call us xxxxbubbles* and get away with it!'

What you say to your friends: {censored}

Your performance for the public: "{sob} Why doesn't he just leave us poor little old ladies alone? {sniff} We never make no trouble for nobody {dab tear from eye}."

Saturday morning you woke up all warm and tingly because, at long last, in five days you get to confront that prick. In your competing erotic dreams your knight in shining Farmers' Group armor tears the Lilliputian* tormentor limb from limb, then blinds him and guts him and feeds him to your five dogs. Even his children don't recognize him when you're done with him! Or, maybe you're just overly anticipating tomorrow's Super Bowl.

Whoa, a two-fer! What a surge! Fondle that rheostat! Crank 'er up! You NEED to get off on some LOUD radio. To hell with it being 5:52 a.m.!

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* Damn! I keep forgetting to use 5-cent and 10-cent words for this particular audience.

Cities, Lawyers, Neighbors From Hell, and Courts

My friend over at Manteca Live! is having difficulty wrapping his head around the authority/legality/whatever-you-want-to-call-it that the City of Manteca has to promulgate rules for all of us to live by... or, more precisely, the question of whether city hall is arrogating too much authority to itself and its agents. What he doesn't know would scare him even more...

Local governance is more of a crap-shoot than anyone can even dream possible. To make the point, here is a post by an attorney who trains code enforcement officers and building and fire inspectors. In this example, she refers to at least FOUR commonly used codes (IBC, IFC, IRC, and IPMC) that apparently overlap but each reaches into areas not covered by the others.

So the first question is, Which code, if any, is being used to justify a violation? The second question becomes, What administrative process does one endure (or undergo) in order to obtain vindication (or conviction.)

(For all the lip service about due process, city ordinances are often merely window dressing, here day-before-yesterday, gone the next day, and back today in ogre form. City attorneys, with limited experience in anything other than rubber-stamping documents churned out by the city machinery, are part of the problem. Manteca's has been feeding at the same table since before 1986 - more akin to a catfish than a shark.)

After treading the shifting sands of local politics and their shifty rules, and after all hopes for humane treatment from politicians have been dashed, one can always turn to the courts. This author's post generalizes the decision made in this New Hampshire court decision. A property buyer wants to fix transmissions on his residential property and tries to resurrect a land use variance abandoned by the prior owner. The city, however, repeals the zoning ordinance, but issues an agreement letter for the mechanic to continue the iffy land use pending final decision by the zoning board. Surprise! They turn him down and he sues the board and the city. In the end, the court decides in the city's favor.

Notice anything? The grease monkey tries to do exactly what my stirred-and-fried neighbors have gotten away with for twenty-three years on their residential property... and on our city attorney's watch! I don't know which one is the worse public nuisance.

Anyway, Joe, keep up the fight. You fight from the outside and I'll fight from the inside. If we give up, we are giving up either to totalitarianism or to anarchy.

Constitutionality of "Police Powers"

The hard truths about laws are that they limit the absolute "freedom" of an individual do do as he pleases, and the laws carry with them the implied power to enforce compliance. Those are the reasons why laws must be adjudged as constitutional - or congruent with natural law. For believers, man's laws should be congruent with the laws of their God.

Last night's city council meeting got a little testy, with the mayor demeaning a citizen's qualifications to question constitutional issues of a proposed code enforcement hearings ordinance on the agenda and pulling the city attorney into the fray. The hard words compelled the citizen to speak out of order and prompted a short recess. In addition to pulling the item off the Consent Agenda for separate discussion, the short display of civil disobedience (ie., contravening Robert's Rules of Order) was probably the most effective way to give the item the public scrutiny it needs. (See Manteca Live! for Joe's posts.)

We were told that Manteca City Council meetings are now streamed to the WWW - the first time being last night's meeting. They can be found here.

Herewith are some discussion and references regarding the constitutionality of "police powers" as established by the people of California and the United States.

In 1917, the legislature of the State of California adopted an Enabling Act based on the California Constitution authorizing municipalities to establish - and enforce - zoning codes. In 1925, constitutional challenges brought the matter to the California Supreme Court in Miller v. Board of Public Works, 195 Cal. 477 (1925); 234 Pac.Rep. 881. The opinion lays out the court's interpretation of "police powers" within California's Constitution and a brief review of other states' supreme courts.  An excerpt is found below and more excerpts in this post. For the truly curious, the full opinion is available for free at this website. Just accept the terms, then type "195", "Cal." and "477" into the citation search boxes.

The very next year, in 1926, The US Supreme Court addressed these and other issues in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). Excerpts from that decision can be found in this post. For the truly curious, the full opinion is available for free at this URL.

Without doubt there exists the municipal power to enforce municipal codes. The only question is, Does this proposed ordinance, at its first reading, contain the necessary safeguards of Manteca's citizens' constitutional due process rights versus the power of the state, or, the City of Manteca, in this case.

City staff and the city attorney bear the burden of answering as many of those constitutional questions as possible. Also before adopting the ordinance, they must re-edit the processes outlined to delete duplications and provide for as much internal consistency and effectiveness as possible. Remember, these are "man made" laws - and made by men and women such as we have employeed at Manteca's City Hall.

God help us.

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Excerpts from Miller (1925):

". . . the power to do so is conferred upon municipalities in California by the fundamental law of the state and by a legislative [p.483] enabling act, entitled: An act to provide for the establishment within municipalities of districts or zones within which the use of property, height of improvements and required open spaces for light and ventilation of such buildings, may be regulated by ordinance. (Stats. 1917, p. 1419.)"

"The constitutional grant of power to the municipalities is to be found in section 11 of article XI of the constitution, which provides that:"

"Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws."

"The Enabling Act of 1917 declares that:"

"For the public interest, health, comfort, convenience, preservation of the public peace, safety, morals, order and the public welfare, the city council, board of trustees or other legislative body of any incorporated city and town of California, hereinafter referred to as the council, may by ordinance create or divide the city into districts within some of which it shall be unlawful to erect, construct, alter or maintain certain buildings, or to carry on certain trades or callings or within which the height and bulk of future buildings shall be limited. The council may by ordinance regulate, restrict and segregate the location of industries, the several classes of business, trades or callings, the location of apartment or tenement houses, club-houses, group residences, two-family dwellings, single family dwellings and several classes of public and semi-public buildings, and the location of buildings or property designed for specified uses, and may divide the city into districts of such number, shape and area as the council may deem best suited to carry out the purposes of this act. . . . For each such district regulations may be imposed designating the class of use that shall be excluded or subjected to special regulations and designating the uses for which buildings may not be erected or altered, or designating the class of use which only shall be permitted. . . . (Stats. 1917, p. 1419.)" (internal quotation marks removed)