Friday, May 28, 2010

Make New Friends... And Keep The Old...

In keeping with the spirit of the Girl Scout campfire song in the title, it was time to open or renew communications with a couple of governmental agencies charged with overseeing certain aspects of the seamy, steamy industry politely called catering.

Tax revenues are important for some reason to the State of California, and sales taxes from retail businesses are tracked pretty carefully. So I wrote to my new friends at the Board of Equalization.

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Board of Equalization
Disclosure Officer, MIC: 54
P.O. Box 942879
Sacramento, CA 94279

May 26, 2010

Re: Cancellation of Seller’s Permit

Dear Sir or Madam,

I am seeking to ascertain the date of discontinuance for the following business:

TLC Catering
810 Fishback Street
Manteca, CA 95337

Owners: Lynda Allen and Theresa Brassey.
No Fictitious Business Name statement filed in San Joaquin County since 1989.

Sometime in the middle of February, 2010, daily departures of catering trucks ceased and For Sale signs went up on the vehicles. Other business operations ceased on the property. Regulation 1699, section (f), requires surrender of the Seller’s Permit upon discontinuance of the business or transfer of the active business to another person.

Please respond with some sort of Board of Equalization documentation regarding the date of surrender of their Seller’s Permit.

Thank you for your attention to this matter.

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And renewing communications with the San Joaquin County Environmental Health Department (EHD)...

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Attn: Jeff Carruesco, Program Coordinator
600 E. Main Street
Stockton, CA 95202

May 26, 2010

Re: Superior Court Case # 3-2009-00212085-CU-OR-STK,
Behling v. Allen, Brassey, TLC Catering and Commissary

Dear Mr. Carruesco,

On March 18, 2010, I requested copies of the health permit cancellations for TLC Catering and other related correspondence between your office and the business owners.

The owners and operators, Lynda Allen and Theresa Brassey, have elected to cease business operations at 810 Fishback Street in Manteca, to include their last MFPU and the private commissary.

Please send my copies to the address on the letterhead.

Please send copies of these documents to my attorney...

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It was brought to my attention by someone more well-versed than I in the Manteca Municipal Code, that the city has fairly stringent provisions for the time-amortization, discontinuance, and removal of (legal) nonconforming buildings and uses. Title 17, Section 55 deals with these particulars. The Planning Commission only gets involved if an extension of the time-amortization period is requested. For everything else, administrative authority is vested in the Community Development Director to execute the section's provisions, which includes notifying violators to immediately discontinue and remove illegal nonconforming uses.

I won't bore the reader with more details - except to say, it feels as if I'm at the beginning of 2008 again! I may have to fight every single battle again with the city.

What is wrong with this $%&&* city?! Isn't there a single  #%%@&  oxymoronic  public servant who understands the zoning ordinance? Isn't there a single paid professional planner who can explain the ordinance clearly to a mere citizen upon his first question or complaint? Isn't there a single department director who can truly take proper action as authorized by the publicly adopted ordinance? Are all these city minions so oblivious to the law, lazy in its application, or fearful of taking 'uncomfortable' action that the abomination-upon-the-land, known as TLC Catering (even if it was legal, which it never was), wasn't  sent to hell  amortized within very few years of this code's adoption in 1992, rather than entrenching itself for over two decades from its spawning.

A precedent-setting court case for the elimination of nonconforming uses is Los Angeles v. Gage (1954) The second footnote quotes a legal authority:
"It has always been assumed that non-conforming uses would gradually eliminate themselves from the district in which they exist if they were not permitted to expand. Such has not proven to be the case. They not merely continue to exist, but to send down deeper roots. They become clear monopolies and special privileges. Their existence is a continual threat to the conservation of property values in the districts where they exist. The time has come when cognizance should be taken of this situation and provision made, probably in the state law, whereby nonconforming uses may be gradually eliminated under some equitable method of procedure." Bartholomew, The Zoning of Illinois Municipalities, 17 Ill.Munic.Rev. 221, 232. (emphasis added)
The court stated in its opinion:
"In essence there is no distinction between requiring the discontinuance of a nonconforming use within a reasonable period and {1} provisions which deny the right to add to or extend buildings devoted to an existing nonconforming use, {2} which deny the right to resume a nonconforming use after a period of nonuse, {3} which deny the right to extend or enlarge an existing nonconforming use, {4} which deny the right to substitute new buildings for those devoted to an existing nonconforming use — all of which {the latter 4} have been held to be valid exercises of the police power. (See County of Orange v. Goldring, 121 Cal. App.2d 442 [263 P.2d 321]; 58 Am.Jur. 1026, 1029, §§ 156, 158, 162; anno. 147 460*460 A.L.R. 167; 1 Yokley, Zoning Law and Practice, 2d ed., §§ 151-157.) (italic numbering added)
I wonder if all of our zoning, planning, and code enforcement employees slept through their "Law of Zoning" college class? Or, have not kept up their continuing education requirements?

It is pretty clear that our officials should have been able to do one of the following:
  • 1. Immediately abate TLC Catering's illegal use of property in 1987 when the warts first appeared;
  • 2. Immediately abate TLC Catering's illegal use of property in 1992 after new ordinance adoption; or,
  • 3. Put TLC Catering on amortization for abatement (incorrectly presuming legal nonconforming status) after the 1993 complaint.
 The #$%#%$ owners of this illegal business operation should not have had even one day of their nuisance operation on the property, and certainly no more than seven years after being turned in in 1993.

But no! Manteca officials let them go on and on and on... for twenty-three years! Tell me again, why does Manteca even have a municipal code?

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