Lowbrow Art: Part 2: Ana Bagayan: Delayed Development

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Delayed Development Plagues Puerile Players

"Impossible-To-Silence Lambie"

The Loud-Mouth's junior high yearbook picture.
(source)

Queen of Kitchenware

contemplates slicing and dicing her future as
Sous-Chef de Roach Coach(es)
(source)

Southern belle

playing with large, squishy, smelly things shaped like dog turds.
(source)

We Be Grandfathered, {Dummies}

Consumate illusionist and her puppet, "Raggedy Ann," put on a
soporific ventriloquist act for dummies City of Manteca officials.
(source)



Concocting Conjuring up Developing a business plan

Pullulating* with vitiated** fecundity***, the trio gathers under a gazebo
to foster their lie , using an ouija board and Mary Jane.
(source)

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* pullulate (intr v) teem, swarm, breed rapidly or abundantly [from Latin pullulāre to sprout, from pullulus a baby animal, from pullus young animal]

** vi-ti-ate (verb used with object) 1. to impair the quality of; make faulty; spoil; 2. to debase; corrupt; pervert; 3. to make legally defective or invalid; invalidate: to vitiate a claim.

*** fecundity (n) productivity, readiness to bear

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Lawsuit-Propelled Sliding Numbers Puzzle

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I had one - or several - of these when I was a mere wee lad. They were really fun.

Now I have a super-duper, lawsuit-propelled, animated model(s) next door to keep me entertained. It is even more fun than the little plastic toy puzzles, because this one incorporates elements of a closed system rat maze.

A loose legend for the diagram below:

• Red blocks - mostly permanent vehicles.
• Red outlines - approximate count of cars, trucks and vans (they come, they go, mysteriously increase in number, and rearrange themselves continuously.)
• Red X's - structures demolished.
• Blue X's - structures to be demolished.
• Green circles and numbered arrows - Raiders football play notation for the movement of "stuff" from one place to another for the last couple months.

If they keep up the good work of demolition and remediation at this pace, in no time at all they will be ready to pick up their loaded containers, pile all their household items onto the old trash truck, strap Granny and Auntie and a couple dogs on top of the teetering load and, like modern-day Joads*, hit the road to go Californicate** Oregon. Now that would call for a HUGE Good Riddance celebration!

You see, I used to feel trapped in the illegal business/noise maze, but now it appears that the Barefoot Dirty Girls (Mellow Yellow, Ravaged Red, and Guts[y] Green) are running around like headless chickens (and still shoeless?) in this maze of their own making. The infield play is complicated by the handyman workers that come over virtually every day, parking their trucks on the lot and either demolishing or building or pulling wires or endless other tasks. Of course, the BDGs are painting or doing some other light work between toke breaks ('cause, you know, Mellow Yellow has the qualifying "debilitating pain" necessary for "treatment" with homegrown marijuana.)

Perhaps they are consolidating their "good shit" and preparing to hold a gigantic fund-raiser garage sale for the rest of it to fund their impending relocation. Perhaps that's why the two never-before-seen cars appeared from under the shed that was torn down by the east fence. Hmmm... where'd the ol' John Deere go?

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* ref. The Grapes of Wrath, by John Steinbeck

** californicate (v) 1. The act of migration from California to other states in search of cheaper housing, better morals, and lack of gangs, drugs, prostitution, etc. Instead, they drive up house prices whereever they move to, and bring their low morals, gangs, drugs, and prostitution to the other states; 2. To fuck up or make like California. Many years ago there was a bumper sticker reading, "DON'T CALIFORNICATE COLORADO!" Oregonians for a long time held such sentiments against immigrants from California, but now seem to welcome every liberal, white trash, low life scofflaw. Such is the proof of California's malady.

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Business Activity Constitutes a Business Use (duh!)

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C'mon, Manteca - even Florida gets the concept of illegal business use! It is unacceptable to have Manteca's code enforcement group, the planning department, a P/R hack, a fuzzy-line city attorney, and all five city council buffoons* remain blind to common - and legal - definitions of business use.

credit: Chuck Pefley

In an appeals case decided last month, and described on the Law of the Land blog, the City of Miami charged Flava Works Inc with illegally operating a business within a residential zone (at least, generating the "raw" material - same as Allen & Brassey's operation?) Flava Works Inc claimed no business transactions took place at the location and, therefore, was exempt from the city's business ordinance. The City of Miami lost in trial court, but won on appeal, in Flava Works, Inc v. City of Miami (pdf).

I have taken the liberty of replacing names and pertinent phrases in the final portions of the issued opinion. The decision of the appellate court applies their legal logic, which logic happens to be the same as mine, but is systemically** missing in Manteca's leadership.

Flava Works [Manteca] argues that no business was being conducted at the 27th [810 Fishback] Street residence because no goods were bought or sold and nothing was manufactured on the premises. However, it can be reasonably asserted that raw video images [food inventories], which were later sold over the internet [off the catering trucks], were [delivered to and ice] created at the 27th [Fishback] Street residence. While t [T]hese images are not tangible goods, they have a commercial value and enable Flava Works [TLC Catering] to earn a profit. This seems to comport with the common definition of a business, which is "[a] commercial enterprise carried on for profit." Black's Law Dictionary 211 (8th ed. 2004).

The activities taking place at the 27th [Fishback] Street residence are part and parcel to Flava Work’s [TLC Catering's] business operations. The fact that certain aspects of the business are performed at other locations does not alter this analysis. Business objectives are the sole reason individuals are paid to live and engage in sexual [such] activities at the 27th [Fishback] Street residence. Flava Works [TLC Catering] would be unable to deliver content [retail product] to its subscribers [customers] without these endeavors. The activities taking place at the 27th [Fishback] Street residence are a clear violation of the prohibition against operating a business in a residential zone.

IV. CONCLUSION

For the foregoing reasons, we reverse the district court’s [Manteca City Council's] grant of summary judgment to Flava Works denial of summary judgment to the City of Miami [Mr. Behling]. In reviewing this matter and hearing the arguments of counsel, the court considered simply holding that the district court [city council] erred in applying the law and remanding for further consideration. However, because there is no dispute in the facts, and in the interest of judicial economy, we have ruled as a matter of law that the City of Miami Code Enforcement Board's Final Administrative Order [Mr. Behling's finding] is due to be reinstated as to that part of the order holding that there was a violation of zoning ordinance 1572 [MMC 17.25] Illegally operating a business in a residential zone. Consequently, we REVERSE AND RENDER PARTIAL JUDGMENT in favor of the City of Miami [Mr. Behling] on the state law claim that Flava Works was [Manteca erred in allowing TLC Catering's] operating a business at the residence[.] , and REMAND for further proceedings on the constitutional claims.

Gee, does any of this sound at all familiar, Manteca City Hall? These three re-written paragraphs are merely advance copy of the judgment I expect to win against the City of Manteca in the near future.

_ _ _ _ _ _ _ _ _ _ _ _ _ _
* buffoon (n) clown: a rude or vulgar fool; a person who amuses others by ridiculous behavior. A jester, joker, jokester, fool, wit-cracker, prankster or buffoon was a person employed to tell jokes and provide general entertainment, typically by a European monarch. (Surely, the voters of Manteca can do better than this.)

** systemic (adj) affecting an entire system; embedded within, spread throughout, and affecting an entire group, system, body, economy, market, society [or a whole city's leadership]; examples: "a systemic poison," or "Everyone front and center in the city council chambers is systemically infected with incurable buffoonery - or worse!"
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Mealy-Mouthing in Lexington and Manteca

Dennis Duross holds the Lexington, KY, city council and administration in as high regard as I do the Manteca, CA, city council and administration. On his blog, Pigs in the Parlor, he reports on the November 24th Lexington planning commission meeting in which the item of rental licensing and housing code enforcement is briefly discussed and happily deep-sixed by a quorum (after taking a couple passes at the proper rules of order.)

Here is Lexington's administration's squirrely assessment of their code enforcement limitations. Note their craven excuses and the simpering, insouciant, quibbling that citizens aren't following the laws the council adopted for them. After avowing that pro-active enforcement is impossible, they proceed to impeach their own fall back "Plan B."

"Selective Enforcement:
Because our inspections are carried out by a limited number of inspectors and without charge, there’s no way for enforcement efforts to grow as problems grow."

"Voluntary Compliance:
... our safety [ed. or zoning] laws may as well not exist at all. In other words, our laws can be subverted by the very people that those laws intend to hold accountable..."

Duh! Does any of this sound familiar? These self-condemning words are almost verbatim those that have issued from spokesmouths and meetings in the City of Manteca. As the Lexington observer put it, "Who writes this crap in the first place? Do we or do we not have a Law Department in this city? Ditto Planning?"

A paraphrase befitting Manteca would read, "Do we, or do we not, have a competent City Attorney? Ditto a potent Director of Community Development with cease and desist powers for unpermitted land uses? And what of those *&&#077$ in code enforcement?!"

I believe, sadly, that incompetence and impotence inundate Manteca's police, code enforcement, community development, and legal departments.

What Do Pit Bulls, Used Cars, Annexations & Code Enforcement Have in Common?

City of Manteca senior staff are schizophrenic. Of course, its a "trickle down" effect because our Glorious City Council enables them to pursue their pet projects with a free hand, while totally ignoring the festering boils infecting various neighborhoods.


This explains why an unenforceable pit bull ordinance gets adopted 5-0 over the objections of some who have state law backing them up. (Can anyone say, arrogant?)


This explains why code enforcement and planning force a used car dealer to put in "beautifying" downtown landscaping, while ugly, illegal uses of many residential properties - and much illegal business - runs rampant throughout the city, even after code enforcement and planning/zoning are handed the evidence on a silver platter. (Hmm... kinda like "whitewashing the sepulchre.")


This explains why the whole MUSD property must be annexed - along with taking away the protest rights from the East Louise/Airport Way residents - in order to clear a path to the future annexation of a large industrial park. (Restated: My public legacy - your private expense.)


This explains the campaign rhetoric of one councilman, Steve DeBrum, "We must continue to augment an aggressive code enforcement program with a complaint-driven system in order to ... [blah, blah, blah]" and the emphatic public statement of the Director of Community Development, Mark Nelson, "It is not my job to perpetuate the mistakes of the past!" versus the whining, handwringing refrain from code enforcement, "There is nothing we can do."



See the advantages of a huge "committee" run by politicians? They can lay claim to all the credit on one hand and deny any blame or culpability (or responsibility) on the other.





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

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



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






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


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



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



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



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



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



- - - - - IF:



* Prior to December 17, 1986,

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

* It was doing so legally,



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



* The continued use of that property,

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

* By the current and subsequent property owners,

* Until the non-conforming use ceases.



JACKPOT!

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

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

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

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

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K.I.S.S. (for Manteca City Hall)

Well, THAT election is over. The radio pundits said, "We have to educate the voters!" My observation is that educating voters is virtually identical to graduating seniors from high school.

The candidates I voted for did not win. {~sigh~} One incumbent is returning to the Manteca City Council. The other may or may not, depending on the final count, because there was only a seven-vote spread last night between second and third. The official canvasse will take a few days.


Back to "educating" Manteca city managers again, I took up the pen (or, keyboard) and sent a letter to the Director of Community Development (a.k.a., Planning Director.) This is the guy who is supposed to be in charge of everything zoning related, including home occupation permits. After meeting with two of his guys last week and leaving only three documents with them, I now included an entire copy of my report and the report of last week's meeting.

November 5, 2008

Mr. Mark Nelson
Director of Community Development
1001 West Center Street
Manteca, CA 95337

Dear Mr. Nelson,

I am requesting a home occupation review by the Director of Community Development, under authority granted him by the Manteca Municipal Code, Section 17.25.020, regarding the following illegal home occupation expansion:

While still part of unincorporated County of San Joaquin, Lynda Allen and Theresa Brassey, owners of TLC Catering, began parking one or two catering trucks on their residential property at 18594 South Fishback Road. From the beginning they operated with only two permits: 1) a business license from the City of Tracy, and 2) a Health Department permit for each truck from the County of San Joaquin, Environmental Health Department (EHD). For whatever reason, the County of San Joaquin allowed that use of residential property, but never issued any Conditional Use permit.

On December 17, 1986, the property was annexed into the City of Manteca and the address was changed to 810 Fishback Street. The city "grandfathered" the existing business use (that is, the parking of trucks); the city did not "grandfather" the business as a whole.

In 1991, a TLC application to EHD indicated they were still using outside commissaries to re-supply the catering trucks.

In 1992, the City of Manteca adopted its Home Occupation Permit ordinance.

Sometime in early 1993, a complaint was lodged against TLC Catering and City personnel responded with some type of enforcement action. This incident caused TLC to request a determination of legal status from Manteca's Planning Department. The City's letter was issued on June 29, 1993, and clearly explained the doctrine of "grandfathering"; that is, TLC could continue to park their trucks on the property, but no more than existed in 1986, and no other business use of the property would be permitted.

(The content of the complaint, the resolution, and the file copy of the determination letter were requested months ago, but the City files have not yet been produced.)

On September 17, 1993 - only eighty days after the letter - TLC made a very risky business decision. Against the instruction they just received, they decided to increase the number of trucks and to build a commissary for all those trucks and to do all this on-site, on their residential property, to avoid renting commercial space elsewhere.

This business enlargement is illegal because of the "grandfather" restriction on business use expansion AND because this 1993-94 commissary project is subject to Manteca's 1992 Home Occupation ordinance. Lynda Allen, Theresa Brassey, or TLC Catering did not even bother to apply for a home occupation permit.

Manteca Planning Department and Code Enforcement were A.W.O.L. while TLC Commissary was born. On July 13, 1994, EHD issued a Commissary Permit to TLC Catering, after much of the following was accomplished.

• A portable building (with building permit?) was brought onto the property to serve as the dry commissary.
  


• A metal walk-in freezer and a full size steel shipping container (building permits?), with roof-mounted compressors, were installed to store frozen products.
  


• Various refrigerators to hold perishable ingredients for use in the mobile food preparation units (catering trucks).
  


• Commercial delivery trucks from Crystal Dairy, Hostess Cakes, and Oroweat make regular deliveries to the property at 3:00 a.m., 6:00 a.m., 12:00 noon, and other times.
  


• The crowning achievement was to acquire an antique commercial icemaker to produce up to 400 pounds of ice a day for use on the ice-cooled trucks. (Not rated for household use and wrongly located, all the noise goes to the neighbors!)
  


• In addition to all the commercial equipment, sheds, porches, and coverings (more building permits?) were constructed all around the property to protect their investments from the elements.
  


• Plugging in the trucks at night, floodlights, strings of yard lights, and all the commercial appliances draw power... LOTS of power. Seven massive solar panel units were installed and wired into the property grid.
  


• Solid wastes from the catering trucks were (and are) stored on-site in an open pickup truck until taken off-site to the refuse transfer station.
  


• Liquid wastes from the catering trucks were (and are) stored on-site in barrels until taken off-site by a pumper truck.
  
  
  Please correct this unconscionable situation. This is a power assigned to the Planning Director by city law. I am not seeking the closure of the commissary, merely its relocation to a properly zoned location. This is not code enforcement's call; they will be obligated to carry out the decision, but they do not make the decision.
  
  Enclosed you will find a copy of the report, with footnoted attachments and other enclosures, received by Mr. Pinkerton on September 3rd. In addition are my notes of my October 29th meeting at City Hall with Mr. Meissner and Mr. Rey.
  
  
  Respectfully submitted by,
  
  _____________________
  Richard W. Behling
  
  
  Enclosures: Timeline Regarding 810 Fishback Street, with footnotes and attachments.
  Review of EHD Public Records.
  Commissary Operations Observed.
  Abatement Options and Special Conditions.
  Notes on Meeting with Mr. Meissner.

Let's see how much more time Mr. Nelson needs to wrap his head around the facts.

Actually, Mr. Nelson was just appointed as a big cheese with the Redevelopment Agency (RDA.) Since my neighborhood is blighted by an operating business, with business noise and abandoned business equipment littering one particular parcel, perhaps the RDA could redevelop that parcel back into a residence? Hmmm... our tax dollars at work.

(I hope he gets it done before the infamous O. Rex [spawn of the insatiable T. Rex] trundles himself down the hallway at the smell of new blood.)