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Nuisance law fix or not, rebuilding good neighborhoods is more fundamental

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Momentum in politics as well as sports is a funny thing. It can switch sides in a hurry.

That appears to be happening in what’s supposed to be the most serious policy and humanitarian crisis in Fresno since the town was incorporated 131 years ago – the regulation of all things housing.

To spend Thursday at City Hall was to sense an unmistakable shift in messaging impact.

I did spend Thursday at City Hall. My duty began with a remarkable code enforcement decision from an administrative hearing officer. It continued with a stunning City Council hearing on an amended nuisance law. It included a brief but intense chat with one of the city’s most powerful housing advocates. And it concluded with memories of an instructive walk through one of Fresno’s most challenged neighborhoods.

I’d be plum tuckered out if Thursday hadn’t been so much fun.

Can’t hurt to begin at the beginning.

I headed in the late morning to the City Hall office of administrative hearing officer Michael Flores. We talked about upcoming appeal hearings tied to the new Blighted Vacant Building Ordinance.

Flores has at least seven on his plate over the next month.

The office of Ed Johnson, the city’s other hearing officer, is right across the hall from Flores’ digs. I poked my head into Johnson’s office, as well.

Glad I did because Johnson gave me a copy of his May 5 decision involving a homeowner and her front-yard landscaping. What’s the big deal? Well, this was the first appeal involving what city officials last month pitched as a new and historic way of using the law to beat “slumlords.”

Let’s look at Johnson’s decision.

The appeal was heard April 27 at City Hall. Danny Smith appeared for the city. Rosemary Martinez-Alvarez and Ann Marie Velazquez were the appellants. For the sake of brevity, I’ll refer to Martinez-Alvarez and Velazquez together as the appellant.

According to Johnson’s five-page decision, the appellant lives at 2658 E. Kelso Avenue. This is a very nice neighborhood near the corner of Shepherd and Chestnut avenues in Northeast Fresno.

City code inspectors on Feb. 1, 2016 sent an official notice to the appellant. The appellant had a decorative plastic hedge in the front yard that was more than three feet high.

Turns out such a decorative plastic hedge is considered by the municipal code to be a fence. Such a hedge/fence by law can’t be more than three feet high.

Johnson’s decision doesn’t give the hedge’s actual height. My brief exploration on the Internet suggests plastic hedges generally are three to four feet high.

The notice told the appellant to fix the hedge. The city returned a couple of weeks later and found the hedge unchanged. On Feb. 22, the city issued a citation.

The city gave the appellant some time to fix things, then returned for a second inspection. The hedge on March 8 was again found to be illegal.

The appellant filed an appeal of the initial citation on March 10.

On March 11, the city issued a second citation based on the March 8 inspection.

The appellant filed an appeal of the second citation on March 25.

I know – that’s a lot of dates. But the sequence of events is important to understanding Johnson’s decision and its potential impact on city policy.

The city had submitted photos of the hedge. As far as Johnson was concerned, that settled one issue – the hedge definitely was taller than three feet.

Johnson wrote that the appellant “claimed they were being subjected to complaints by disgruntled neighbors, who were using City code enforcement staff to harass them. Appellant argued that the hedge replaced a much taller tree that was removed and the hedge was necessary to replace the privacy previously provided by the tree.

“Appellant presented photos showing other nearby properties where fences exceeded the height limit, and complained that they were being targeted by neighbors, and should not have to comply while so many others were out of compliance.”

We’ve all used that one. Motorist: “Officer, look at all those other cars going faster than me.” Officer: “Yeah, but I stopped you.”

That’s essentially what Johnson told the appellant.

In the old days, the hearing officer would have upheld the citation in an open-and-shut case, then yelled “Next!” Getting the homeowner to bring the hedge into compliance and collecting the fine would have been between citizen and City Hall.

That might work great. Or it might take months, the code violation all the while festering in the neighborhood.

But these aren’t the old days. Neighborhood revitalization and the restoration of public decorum are the highest priority for Mayor Ashley Swearengin in her final months in office. The code enforcement division is at the center of a multitude of complex housing and public nuisance challenges connected to this priority.

Swearengin on April 21 figured she had found a way to advance her grand strategy. She pitched to the City Council some amendments to two code enforcement-type laws. The two laws would essentially be transformed into brand new social-engineering tools.

We’ll get to the second law in a bit – it definitely played a big role in making my Thursday so memorable.

I wrote about the first law last month. I called it the “Hearing Officer Law.”

The amended law would require a hearing officer like Johnson to compel an unsuccessful appellant/landlord/homeowner to fix the code violations on her property. The hearing officer would say to the appellant: “You’ve got 30 days – get moving!”

The hearing officer would convene another hearing after those 30 days. If the homeowner still hadn’t fixed things, then the hearing officer must order additional fines, which may be doubled.

That’s not all. A homeowner who willfully thumbs her nose at the hearing officer’s orders shall be deemed guilty of a criminal violation. She may be prosecuted in superior court. She may be subject to imprisonment.

Ah, Fresno. We’ve got gun-happy gang-bangers on every street corner. But put a 39-inch high plastic hedge in your front yard and we’ll send you to the pokey.

Swearengin’s Hearing Officer Law was considered so important to the safety of Fresno that it was pushed through the council as an emergency ordinance. That meant it took effect as soon as it got council approval. Which is what happened.

Rosemary Martinez-Alvarez and Ann Marie Velazquez were the first Fresnans to get the new and rougher treatment.

But Johnson was in no mood to give it to them.

Referring to the Hearing Officer Law, Johnson in his decision said he “has a number of constitutional due process concerns with the application of this law.”

For starters, Johnson said, the city did a terrible job in giving the appellant proper notice of the charges.

The initial notice saying the appellant had done something wrong with their plastic hedge had come on Feb. 1. City Hall gave the appellant no hint at that time that they might soon be subject to new and more severe punishment if they didn’t comply with the order to fix the hedge, Johnson said.

Then came a hectic week in late April, with the council’s passage of the emergency law and the appellant’s appeal hearing. Blindsiding the appellant with the new penalties isn’t fair, Johnson said.

“Notice of the heightened penalties, especially given the new criminal liability, should be given at the earliest stage of the violation,” Johnson said.

Then there’s the potential effect of the “Hearing Officer Law” on the operation of the appeal process, in essence City Hall’s courtroom.

Johnson in his decision said he’s conducted more than 200 code enforcement appeals since he came to City Hall in late 2013. He said appellants “rarely, if ever, achieve compliance by the appeal hearing. The very reason for their appeal is that they believe they are not in violation in the first place, and they usually do not change what they believe to be lawful conditions before their hearing.”

Why is a hearing officer’s workload so important to fighting blight and ensuring quality housing for everyone?

To answer that, let’s go back to that long sequence of dates connected to the Martinez-Alvarez/Velazquez plastic hedge.

The appellant had filed their appeal of the first citation on March 10, one day before the city issued the second citation.

Johnson in his decision quoted city code as to what happens when an appeal is filed: “… the filing of an appeal shall stay all proceedings in furtherance of the order, citation, decision, or determination appealed from until the determination of the appeal.”

That means the second citation, issued March 11, came too late to count for anything. Code enforcement action concerning the plastic hedge came to a stop on March 10 until the appeal was settled (unless the city could make the case that the plastic hedge was a threat to the public’s life and limb).

Johnson looked at his past workload; took a gander at City Hall’s new found passion for handing out code citations; recognized the natural habit of aggrieved homeowners to think there’s nothing wrong with their plastic hedges; chewed on the implications of the Hearing Officer Law’s new 30-day mandate to compel a homeowner’s corrective action and the additional hearing this requires; pondered how the execution of the Hearing Officer Law affects the Constitutionally-mandated swift movement of the wheels of justice; and came to a Johnsonian conclusion.

The hearing officer, even if there are two of them, will get crushed with work. And that will result in a bitter irony for all those Fresnans who want the merciless hammer of government to batter slumlords.

“Since all proceedings in furtherance of enforcement are stayed pending an appeal,” Johnson said in his decision, “delayed appeal hearings will also delay ultimate code compliance underlying the appealed citations while the appeal hearing backlog mounts, undermining the goals of the emergency ordinance to hasten compliance.”

Justice delayed is justice denied.

But Johnson wasn’t through. He said he didn’t like being treated as if he were merely a bully for City Hall, a thug paid to hide behind the law while doing the city’s bidding in fights against private citizens.

Johnson said the Hearing Officer Law “compromises the independence of the Independent Administrative Hearing Officer by requiring the Hearing Officer to become an advocate for code enforcement, effectively changing the focus from a neutral fact-finder into a City enforcer.”

As if he hadn’t already burned every bridge to the Administration, Johnson added: “The emergency ordinance deems any failure to comply with the Hearing Officer’s Order to be a criminal violation, which begs the question of whether disobedience of an Order to city staff related to compliance issues and procedures should also be considered a criminal violation.”

In the end, Johnson said the Hearing Officer Law doesn’t apply to the Martinez-Alvarez/Velazquez appeal for due process reasons. Johnson upheld the first citation ($200) and dismissed the second citation.

So, it turns out code enforcement when the media spotlight shines bright and dramatic music plays in the background is one thing, but it’s something entirely different when it collides in an obscure corner of City Hall with the Constitutional rights of individuals and the grit of a truly independent officer of the court.

I walked out of Johnson’s office at noon. Time to eat my peanut butter sandwich.

I was heading to my pickup when I bumped into Andy Levine on City Hall’s front steps.

Levine, executive director of the nonprofit Faith In Community, is an advocate for safe, high-quality and affordable housing in Fresno. I think most Fresnans fall into that camp. Levine is among those relatively few Fresnans who devote their working lives to such ends.

Levine also likes a good debate on policy and politics. We both were hungry, so our usual give-and-take was brief.

The topic: District 2 City Council Member Steve Brandau and the council’s upcoming afternoon debate on the second of two laws pitched last month by Swearengin.

We’ve already looked at what I called the “Hearing Officer Law.” I came to call the second law the “Nuisance Law.”

The Nuisance Law was passed by the council on April 28. But this law wasn’t deemed an emergency. That mean the council’s April 28 action was merely the introduction of the law. The council on Thursday had to take the necessary second vote to adopt the law.

Levine told me that he and some of his fellow housing advocates would be in the council chamber in the afternoon. He said in the preceding two weeks they’d come to have concerns about the Nuisance Law.

The Nuisance Law is a complex piece of legislation. It’s been on the books for some 20 years. My nickname for the law is apt, for it deals with a long list of human-created nuisances that drive other people nuts. Neighborhoods don’t stand a chance if a critical mass of public nuisances is the 24/7 norm.

The Nuisance Law applies to landlords and tenants. The Swearengin amendments of April 28 expanded the list of nuisances and responsible parties.

The Nuisance Law is yet another factor in the growing tension over who is primarily responsible for bad housing and chaotic neighborhoods.

Are greedy slumlords the culprit? Would not dangerous and decaying neighborhoods quickly blossom into greatness if only their housing stock were as good as, say, the houses you find on Kelso Avenue in Northeast Fresno?

Or are the day-by-day actions of the residents themselves largely responsible for culture that turns a neighborhood into a living nightmare? Would Fresno’s inner-city neighborhoods, regardless of the quality of their housing stock, really be such a bad place to live if all of their poor were the genteel poor of Victorian-era literature?

Well, the trend so far in Fresno is to blame the slumlords. Brandau, never one to mince words or shy away from controversy, again finds himself in hot water for saying tenants are part of the problem, as well. He’s gone so far as to be scientific about it, using percentages (pulled out of the air) to gauge the tenants’ level of responsibility.

All this was percolating beneath the surface as Levine and I tried to handicap the significance of the afternoon hearing on the Nuisance Law.

Levine said he’s grateful to the media, in particular The Bee, for highlighting the misery of Fresnans living in squalor. This main part of the educational campaign is a mere 96 hours old.

I predicted that Thursday’s hearing would mark a radical and permanent shift in that narrative, and Brandau would be the critical change agent. I said the regulation of housing is leaving the world of drama and entering the world of scientific management.

I said statistics will rule the day and direct the actions of reporters as if they were so many of Pavlov’s dogs. I said these ever-growing mountains of statistics will apply to the regulated behavior of landlords/slumlords. I said these mountains of statistics will apply to regulated behavior of tenants.

Big Data is coming to Fresno housing policy, and therefore to journalism.

You watch, I said to Levine. It’s going to be Brandau the Scientist this afternoon.

Levine smiled. We’ll see, he said.

The council dais in the afternoon did feature a scientist. But his name was Oliver Baines from District 3.

In a nutshell, Baines proposed about 10 changes to the amended Nuisance Law introduced by the council on April 28.

The proposed changes were enough to convince City Attorney Doug Sloan to declare that the Nuisance Law would, for the second time in two weeks, become an entirely different law. In other words, if the council on Thursday embraced Baines’ proposals, then the vote would be considered another introduction of the law, not an adoption. The second vote, the adoption, would come later.

The council on Thursday did embrace Baines’ proposals. The amended-amended-Nuisance law was successfully introduced (again) on a 7-0 vote.

Confused? Well, Baines said he pitched his amendments because the Nuisance Law debate of the preceding two-three weeks was confusing people all over Fresno.

His amendments, Baines said, are all about clarifying what the law is and isn’t.

This is where we return to that fundamental tension: Who is to blame for abysmal housing and dysfunctional neighborhoods, irresponsible landlords or irresponsible tenants?

Levine and his allies want the focus strictly on landlords. Brandau and landlord associations don’t want tenants to get a free pass.

The Nuisance Ordinance with Baines’ amendments runs to 12 pages. The bottom line is that the law for 20 years has held both landlords and tenants responsible for things like loud parties and criminal acts. That list has been expanded.

This is why I said the blight/nuisance issue is headed for the land of Big Data. Policy-makers and reporters from this day forward will demand to know (quarterly, if not monthly) a statistical breakdown of all nuisance code enforcement activities. The Fresno Police Department has gone through something similar for years. The Fresno Code Enforcement Division is entering the same world of accountability.

Baines added property management companies and homeowners associations to the list of parties who would be financially liable for tenant violations.

This did not sit well with Council Member Lee Brand, who runs a property-management company. Brand sounded a lot like Hearing Officer Johnson when he talked about the challenges of holding property managers accountable for the behavior of property-owners and tenants over whom the property managers have no control.

I thought to myself as the council concluded its vote: This amended-amended Nuisance Law is such a mess. I’ll bet it gets introduced a third time because the council isn’t done tweaking it.

And just think – we haven’t even gotten to the Code Enforcement Task Force’s phase two recommendation, which most likely will involve some sort of mandatory government-run interior inspection of rental units.

As of Thursday, high emotion and loud self-righteousness have run their course as drivers of Fresno’s housing debate. The future is all about the hard slog of compromise, policy and punishment.

You know what I don’t understand about all this code enforcement stuff? I don’t understand why government bureaucrats and media pundits insist the answer to all of Fresno’s problems lies in administrative process. These bureaucrats and pundits are materialists through and through. They see the masses (but not themselves, not the “vanguard”) as things easily manipulated by material influences.

It’s the house that makes the person, not the person that makes the house.

Everyone gets it – we all deserve a safe, clean, high-quality, affordable place to live.

But doesn’t free will also have something to do with good neighborhoods?

I headed home on Thursday thinking about my walk through the Lowell Neighborhood the previous day.

I had left City Hall about 2 p.m. on Wednesday. I walked north on P Street, headed up Abby to Illinois, cut over to Blackstone, then made a left on McKenzie.

I was headed to the Swearengin/Housing Authority news conference at an apartment complex on Calaveras undergoing a complete rehabilitation. The speakers, one after the other, talked about how the complex in the old days had been the source of so much neighborhood grief, but a new era was coming in which the modernized complex would produce nothing but hope.

The apartment complex itself caused everything, good or bad.

I left the news conference before it was over. I retraced my steps.
I made a right on McKenzie. I had a short walk to get to Blackstone. In that short stretch of McKenzie I came across a pile of litter on the sidewalk. I had passed the litter on my way to the news conference, but didn’t think much about it. The speeches changed my tune.

I looked at the litter. There was a fair amount of stuff – mostly old food. It looked as if someone had emptied a small garbage pail.

The litter was in front of a house. I know people were inside because someone turned down the loud music as I looked at the mess.

BeforeAfter

The litter also was next to a City of Fresno truck. I’m pretty sure the litter was there when the driver got out of the truck – the shriveled peppers had been there long enough to stick to the sidewalk.

The people in the house hadn’t seen a reason to pick up the litter. The driver of the city truck hadn’t seen a reason to pick up the litter.

I picked up the litter, taking before and after photos.

It was easy.

Truth be known, so, too, is a good neighborhood.

George Hostetter
George Hostetter is The Sun’s Fresno Civic contributor – covering the City of Fresno, County of Fresno, and Fresno Council of Governments.

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