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Full focus on Code Enforcement: Summerset showdown delayed to June

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The main event – City of Fresno vs. Chris Henry – is still on. But it turns out one side wants more training time.

The administration of Mayor Ashley Swearengin has asked for a postponement of Henry’s appeal hearing on nearly 1,500 alleged code violations at Summerset Village apartments in Central Fresno.

As of last Friday, the hearing was all set for May 24 at City Hall. It figured to be a brawl. Henry, Summerset’s owner, is accused of an inhumane disregard for proper property management.

The hearing still figures to be a doozy. But hearing officer Michael Flores on Monday told me that the administration now wants to hold the hearing in late June.

Flores said that’s fine with him. He said he’s thinking of convening everyone in the Council Chamber on June 27, a Monday. Actually, he’s setting aside June 27 through June 29 for public testimony, staff reports and the appellant’s rebuttal.

Mark Standriff, the city’s communications director, told me the request is no big deal.

“We want to make sure we have everything right,” he said.

Lawyers don’t often accompany appellants to City Hall code hearings. Henry will be represented by Stephanie Hamilton Borchers of the locally-based Dowling/Aaron law firm. Take a look a her resume on the firm’s website – she’s no rookie.

Swearengin is laboring mightily to get everything right with code enforcement. That’s a tall order. There’s a lot of code (i.e. municipal laws) out there. Everyone wants to have the city’s policing power at their disposal when their neighbor is being a pill. Everyone cries “Big Brother!” when they’re on the receiving end of such power.

It’s funny the way politics works. Swearengin is termed out in less than eight months. She’s had quite a ride as Fresno’s chief executive. Statecraft in the midst of economic calamity, a new general plan, a new development code, water security, Fulton Corridor – each, by itself, is something on which to build a mayoral legacy. Yet, the essential message of her administration has slipped from her control.

Why can’t she keep rodents out of every rental unit in town?

Of course, a critic could say: Everything’s connected!

So it is. But as economist Sam Peltzman likes to say, risk is always reallocated. Our insistence on perfect social justice all the time is tying City Hall into knots.

I give you two examples involving the madcap reform of Fresno’s code enforcement division.

I wrote last week about the code-enforcement appeal of a homeowner in Northeast Fresno. She had been cited for having a decorative plastic hedge in her front yard that was too high. The limit for such a hedge (considered to be a fence) is three feet.

The written decision from Ed Johnson (the city’s other hearing officer) didn’t give the offending hedge’s height. But such hedges on the retail market generally are in the four-foot range. The woman got nailed because her plastic hedge was a foot or two too high.

It was clear from Johnson’s decision that the homeowner and her neighbors had been at each other’s throats for some time. They don’t like each other. In the plastic-hedge case, Johnson wrote, the neighbors appeared to be using the city’s code enforcement division as a weapon in the ongoing fight.

And it was clear that code enforcement inspectors, bound by law to treat everyone the same, had done their duty. They had immersed themselves in the plastic-hedge case for at least three months prior to the April 27 appeal hearing.

The appellant was looking at a total of $700 in fines. In the end, Johnson upheld $200.

Why in heaven’s name did the code enforcement division spend so much time and effort on a plastic hedge that was a few inches higher than allowed by code? (We’ll set aside for the time being the wisdom of taxpayer-funded government worrying itself sick whether the height limit for plastic hedges throughout a city of 112 square miles should be 36 or 37 inches.)

Swearengin on May 24 is expected to publicly unveil her proposed budget for Fiscal Year 2016-17. The general fund figures to be in decent shape. Public safety, parks and infrastructure demands on the general fund figure to be enormous. But they pale in comparison to the pressure from housing advocates and the mainstream media to spend more on code enforcement.

We’re talking about code enforcement activities that, in theory, really count – slumlords, not plastic hedges.

Johnson sees all this and wonders: Why doesn’t City Hall start a dispute resolution program to settle (as much as possible) code enforcement’s small-potato conflicts at a level somewhat lower than a trained code enforcement inspector?

You don’t need to be a bureaucrat to see the value of at least exploring the idea.

Johnson, a veteran lawyer, has crafted such programs in other cities. He told me he’d be willing to do the same in Fresno. He said he’s floated the idea up the chain of command, but it met with indifference.

Assistant City Manager Renena Smith and Communications Director Standriff told me they have yet to see a formal written proposal from Johnson. In other words, how serious can Johnson be if he hasn’t taken the time to put something on paper?

My second example of City Hall’s struggle to keep everyone perfectly happy through code enforcement begins with parking.

Del Estabrooke is in charge of both code enforcement and parking. He is talented and dedicated, but code enforcement/parking is too much responsibility for one administrator. The public’s business suffers.

So, City Manager Bruce Rudd is looking for a new Parking Division manager. The monthly salary range is $7,074 to $8,834.

Rudd especially wants someone who can reform downtown parking. Most of the parking garages have structural issues. They’re dark and forbidding. On top of that, Rudd is not happy with the way City Hall prices long-term parking leases to well-heeled customers such as other government agencies. Rudd sees stalls going for one-third of their cost to the city (i.e. taxpayers).

I saw the ad for a parking manager and thought: Hmmm, wonder what’s going on?

Then I saw that Johnson in late April would hold a hearing for people appealing their parking citations. I thought: I’ll drop in on Johnson’s hearing before seeking an interview with Rudd on the search for a parking manager.

Glad I did.

The first appellant was Juanita Paez. She lives on Elizabeth Avenue in the Tower District. She had been cited for having expired vehicle tags on a truck parked on the street in front of her home.

“I don’t think it’s a fair citation,” Paez told Johnson on April 28.

Paez’s story was one of the unrelenting letter of the law colliding with a citizen’s best efforts to obey the law.

Paez said the Department of Motor Vehicles wanted her to smog her truck as part of the vehicle license (tags) renewal process. The truck was in the repair shop at the time.

Paez went to a DMV office and explained her dilemma. She said she was told to pay for her tags, then get the smog test when her truck was out of the shop.

This is what she did.

With a record of successful smog test in hand, Paez went to a DMV office and asked for her tags. She was told they’re in the mail. She asked: What do I do in the meantime? She said the DMV clerk gave her a paper explaining the situation. If she got stopped by a peace officer, Paez said, she was to present this paper.

Paez told Johnson that she didn’t feel comfortable with that arrangement. So, she parked the truck in front of her home until the tags arrived. She used a second vehicle to get to work.

Paez said new tags did arrive in the mail. She said they’re now on her truck.

But this happened after she got the ticket for expired tags.

Johnson reduced the $76 fine to $10 to cover administrative costs. He told Paez that vehicles without current tags aren’t supposed to be parked on a public street.

Paez thanked Johnson.

“I thought I was doing everything I was supposed to do,” Paez told me after the hearing.

I suggested that she had fought City Hall, and won.

“Hooray!” Paez said with a smile. “First time.”

Juanita Peaz’s story, by itself, isn’t big-time news. The mainstream media wouldn’t cover her appeal in a million years. I’m unemployed – I have the time.

But the true workings of our government occur not at the prearranged dog-and-pony shows so beloved by the mainstream media. They occur in the nooks and crannies of government actually exercising the power delegated to it by the sovereign people.

I thought as Paez left City Hall: How did she get the ticket in the first place?

The truck was parked on a quiet, shady street in a well-maintained neighborhood in the historic Tower District. It was my assumption that parking controllers (the proverbial “meter maids”) work only the Downtown environs where we have parking meters. And it was my assumption that Fresno’s sworn police officers, including Capt. Andy Hall’s traffic division, have more pressing duties than cruising through untroubled neighborhoods scouting for parked trucks with expired tags.

Paez couldn’t recall who had issued the ticket. Nor had she brought the ticket to the hearing.

It was my job to figure out what had happened.

The answer: Code enforcement in Fresno truly is Big Brother for the simple reason that it’s easy as pie.

And it’s lucrative. And it’s politically expedient.

My first step was to call the Police Department: Are patrol officers cruising the neighborhoods as glorified parking controllers?

No, for the most part.

Lt. Joe Gomez did some research for me. He said the traffic division is a stickler for illegal parking (red curbs, bus-parking only stalls) in school zones. Officers and police cadets also respond to specific calls for service involving parking.

For the most part, Gomez said, parking problems are left to the Parking Division.

My next step was a half-hour chat with City Manager Rudd and Communications Director Standriff at City Hall.

Our first topic was the refocus of Estabrooke’s duties. We’ve already gone over that. Code enforcement and the habitability of neighborhoods is now just about the only thing on City Hall’s plate. Rudd has great respect for Estabrooke. Rudd wants Estabrooke full time on code enforcement.

But this notion of neighborhood habitability is a tough nut. I told Rudd about Juanita Paez’s parking ticket appeal. I expressed my surprise that a functioning truck, parked in a residential neighborhood for a relatively short period and facing the correct direction, would get a ticket for tags that had expired only a few months ago.

The law is the law, I said. No one in our democracy disputes the importance of collective respect for the law. But there are a lot of laws on the books. Is City Hall aggressively hunting for every code violation it can find, as much for the money as the maintenance of civic order?

Our chat went in many directions. Here are Rudd’s key points:

1.) No, the city isn’t using the Parking Division as a citywide revenue generator.

2.) Yes, parking controllers are patrolling every corner of the city. Their charge: Root out parking violations.

3.) Parking controllers aren’t more aggressive than usual. They’ve always been aggressive.

4.) When you come right down to it, the Parking Division is a “component” of code enforcement.

5.) The city from August 2015 through April 2016 issued 11,709 tickets for vehicle tags that had expired or were absent altogether.

6.) FresnoGO is proof that Fresnans insist on City Hall’s aggressive enforcement of every municipal law at all times.

FresnoGo is the relatively new mobile phone app that enables anyone to snap a photo of a code violation and send it to City Hall.

“FresnoGO is a free, easy to use, real-time app for residents to report issues,” says a FresnoGO advertisement. “Report concerns, track requests, provide comments, and learn about city services. It’s easy!”

Rudd gave me printouts of FresnoGO statistics over the past year. There had been more than 20,000 reports from Fresnans. This figure doesn’t include calls to the city’s One Call Center or reports/tickets generated by parking controllers driving throughout the city.

And, of course, there are code enforcement inspectors working out of the soon-to-be-beefed-up Code Enforcement Division.

“Why did 11,709 owners think it was acceptable to let their tags expire?” Rudd said.

“True,” I said. “At the same time, what’s happening is sobering. With FresnoGO and the One Call Center, you have a force of 500,000 people making sure the neighborhoods stay on the straight and narrow. If not, these people have the full power of code enforcement and parking at their disposal.”

Rudd noted that one person cited for expired vehicle tags might be someone like Juanita Paez, while another person citied for expired tags might be someone with three cars sitting on blocks in the front yard, each having collected cobwebs for months if not years.

“How do you differentiate between the two?” Rudd said.

“You don’t,” I said. “You use the full weight of this organization to nail me.”

Rudd and I didn’t come close to reaching a conclusion. How do you reconcile individual liberty, prudence and community responsibility 100% of the time?

Yet it’s this mindset – government, if it’s to retain its political and moral legitimacy, must make everything statistically perfect – that has thoroughly intoxicated today’s Fresno.

I conclude with three quick thoughts.

First, what makes Orwell’s “1984” such a compelling story is that the reader comes to sense “Big Brother” doesn’t actually exist as a living human being. The oppressive tyranny comes from the people themselves.

“Want to see the hanging! Want to see the hanging!” says Mrs. Parsons’ little daughter to Winston Smith.

Second, FresnoGO turns out to be the answer to a problem that bedeviled City Hall several years ago.

As you may recall, City Attorney Doug Sloan at the City Council’s behest proposed a law that would have allowed any Fresnan to file a formal code enforcement complaint against any other Fresnan, be she resident or business owner.

The law was complex in structure. Bottom line, Sloan’s idea would have enabled a Fresnan to bypass the cumbersome Code Enforcement Division and take a dispute immediately to the appellate court manned by Ed Johnson (now with Michael Flores as a teammate).

Sloan, quite clearly, was acting on orders from the council.

The council at first embraced the law, then let it quietly die before the required second hearing. Oliver Baines was one of the few council members to express concerns from the get-go.

Baines’ district includes West Fresno, a historic part of town where many families have lived for generations. Baines didn’t like the idea of allowing an outsider to drive through West Fresno looking for code infractions that mandated City Hall action when the people living there were fine with a “live and let live” arrangement with their neighbors.

FresnGO has many features. I didn’t realize until my chat with Rudd that one of them is as an end-around of Baines’ worry.

Third, Fresno can look forward to years of mutual strife involving code enforcement. Individuals, nonprofits, politicians and the mainstream media see much good to come from a very public stigmatization of enemies of the people.

“Want to see the hanging! Want to see the hanging!”

That’s means a lot of work for code enforcement.

Johnson’s dispute resolution program is looking better all the time.

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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