City Beat

City Beat: Thoughts on Fresno code enforcement and the drought

Forget Measure W. The single most interesting item on the Fresno City Council’s July 31 agenda is (to use the new identifying code) ID#14-183.

The topic: Code Enforcement Free-For-All.

I exaggerate, but only a little.

Here’s the context.

Fresno’s got the new 2035 general plan coming down the pike real soon. This plan is the mother of all dream lists.

It’s going to mandate much higher residential densities. People will no longer move to single-family houses on 10,000-square-foot lots in suburbia. People who want a single-family house will get one on a lot a quarter or a third that size in inner-city Fresno.

Ideally, people will live multi-family projects, the better to get 15 or 20 or 25 housing units per acre.

This high-density living will, like the tumbling of a line of dominoes, lead step-by-step to a dramatically different life in Fresno. Everyone will finish school. Anyone who wants a job will get one, and it’ll pay well. Social pathologies will disappear. Fresno society will be the envy of America.

I hope it all happens as advertised.

But, as city officials acknowledge, it won’t happen overnight. Many neighborhoods across the 112 square miles of Fresno are less than pleasant places to live.

It might be because they’re victims of the city’s growth to the north, west and southeast. Those who live in such places are not to be held responsible.

It might be because some neighborhood residents don’t understand the standards of personal behavior necessary to maintain a thriving community.

It might be because some neighborhood residents purposely reject productive behavior.

It might be some other reason. It might be a combination of reasons.

City Hall’s challenge is to get all neighborhoods to buy into a proper and common standard of productive behavior. Absent that, the 2035 general plan is doomed. Nobody in their right mind will want to live in a part of Fresno where the residents already there can’t find it within themselves (or with the help of sympathetic supporters) to produce a clean, safe, orderly, industrious, self-reliant, friendly neighborhood.

In other words, a neighborhood of Victorian sensibility rather than mindless individualism and moral relativism.

“Code enforcement” is City Hall shorthand for the regulatory mechanism to produce good neighborhoods. The council codifies all sorts of rules for correct behavior in a Fresnan’s living arrangements. If these rules are followed to the letter by everyone, then the logic of scientific government says the result is a worthy neighborhood. If these rules aren’t followed, the result is chaos, a lowered quality of life and the unacceptable inequity of failed neighborhoods.

The solution sounds easy, and at times has been presented as such to the City Council.

The city posts the rules in the form of code. The city authorizes a stiff fine for each code violation. The city hires a bunch of code enforcement officers. The city gives each code enforcement officer a thick book of blank citation forms. Each code enforcement officer patrols Fresno’s 112 square miles. Each code enforcement officer issues citation after citation. The city enforces the collection of each fine. The fines pay for the code enforcement officers. Word gets out to all Fresnans — follow the code or pay. The people respond positively. Neighborhoods are transformed. Every corner of Fresno blossoms. The 2035 general plan with its high-density living comes true in every way. City Hall doesn’t wither away, but it’s close.

You, dear reader, would be stunned at how often these thoughts and concepts and dreams come up at City Council meetings. Money makes politics go ‘round. Code enforcement has the same level of influence on political morality. Regardless of the issue before the council, if the chatter goes on long enough the debate arrives at the ethics of code enforcement.

Take, for example, Mark Scott. Scott was city manager before Bruce Rudd. City Hall was really broke during the Scott era, so Scott had to double as director of the city’s Development and Resource Management Department (what used to be called planning). Whether it was as city manager or as DARM director, code enforcement was part of Scott’s watch.

As happens periodically, there was a push by some on the council a few years ago to stiffen the spines of code enforcement officers. These officers should be more aggressive in handing out citations, some council members said.

Wait a minute, Scott said from the dais. Maybe the best approach to code violators is sustained empathy and education, he said. Financial penalties can come when that fails, he said.

Scott’s thinking was obvious: Yes, it would be nice if each Fresno neighborhood was like the Garden of Eden. But to get there through heavy and persistent fines in a poor city life Fresno is sure to weaken the city’s social bonds.

Scott said as much, but in more diplomatic language. Scott’s attitude prevailed for the most part.

Yet, there’s that 2035 general plan just over the horizon with its lofty high-density goals.

Not long after Scott’s warning, some code enforcement officers and the administration of Mayor Ashley Swearengin got in a fight. The city budget was cratering. Scott left for Southern California and Jennifer Clark had yet to arrive at City Hall to bring order to DARM. Code enforcement ranks were thinned. Code enforcement policy drifted.

Then came the July 31 City Council agenda and ID#14-183.

What we’ve got is the introduction of a new ordinance. The staff report comes from the City Attorney’s Office, not City Manager Rudd or DARM Director Clark.

That tells me the proposal is generated by the City Council (which hires and fires the city attorney) and not anyone connected to Swearengin.

Here’s how the City Attorney’s Office identifies the subject: “BILL — (For introduction) — Amending the Fresno Municipal Code to add Article 6.5 of Chapter 10, authorizing citizens to file Administrative Complaints for Municipal Code violations involving public nuisances.”

The staff report adds:

“This ordinance provides an alternative method of enforcing Municipal Code violations. (By) Establishing a program allowing private citizens to file administrative complaints for certain enumerated public nuisances (it) will enhance compliance with code regulations to protect the public’s health, safety, and quality of life.

“This program will be voluntary, and does not take the place of existing methods for enforcement of violations of the Municipal Code. The adoption of this ordinance will simply give private citizens an opportunity to combat code violations as an alternative to the existing method of code enforcement by the Community Revitalization (Division).”

That sounded both vague and potentially interesting to me. After all, citizens can already call 621-CITY and leave a complaint about a neighbor doing something annoying like piling trash in their front yard.

I needed to know more, so I walked to City Hall today (Wednesday) and talked to city officials.

If you call 621-CITY and make a code-enforcement complaint, your beef may get the full weight of City Hall behind it or it may not.

If the proposed ordinance becomes law, your complaint is guaranteed to get the full weight of City Hall behind it.

You may not win. You’ll have to do a lot of investigative work. It may cost you a fair-sized chunk of money. But, and it’s a significant but, you’ll most definitely get your day in court.

A day in court, I might add, in which your neighbor is your adversary and both of you have dropped any pretense of cordiality.

The ordinance would apply to 14 types of public nuisance. They are:

1.) Rubbish or junk.

2.) Weeds.

3.) Dead, decayed, or hazardous trees, residue from a fire or demolition.

4.) Any attractive nuisance that violates city code.

5.) Obstructions upon any public sidewalk, median island, street, alley, or public easement.

6.) Yard landscaping creating a fire hazard, obstruction to traffic, or otherwise a blight to the neighborhood.

7.) Keeping wild animals and/or bees in violation of city code.

8.) Parking or storing any operable vehicle upon an unpaved surface.

9.) A residential vacant building that violates city code.

10.) A residential blighted building that violates city code.

11.) A residential building or structure erected, constructed, enlarged, altered, repaired, moved, improved, removed, converted, or demolished without first obtaining all required permits.

12.) Loud, unnecessary or unusual noise, including but not limited to animals or fowl creating, generating, or emitting any cry or behavioral sound as described in city code.

13.) The unlawful discharging of a firearm or brandishing of a weapon in violation of city code.

14.) Temporary and portable signs in violation of city code.

Let’s say you live in a house. John Doe lives next door to you.

Doe parks his Dodge on his front lawn. It drives you nuts. You tell him to park his car in the driveway. He ignores you.

The proposed ordinance would allow you to serve Doe with a “Notice to Cure Public Nuisance.” This is a letter, delivered by first class mail, from you to Doe. In that letter, you tell Doe what you want him to do with his Dodge.

Doe has 30 days to get his Dodge off his front lawn.

If Doe doesn’t do as you’ve ordered, you file an “Administrative Complaint” with DARM Director Clark. An administrative complaint, according to the proposed ordinance, is “a pleading in a form approved by the City Manager and City Attorney alleging a public nuisance....”

The administrative complaint must contain Doe’s name, address, the code section being violated, a copy of the Notice to Cure the Public Nuisance that you mailed to Doe and the date you mailed it, a statement from you explaining in detail what Doe is doing wrong, and your signature.

When you file the administrative complaint with Clark, you also pay a fee. We’ll get to more on the fee in a bit.

Once you’ve paid the fee, you send a copy of the administrative complaint to Doe. You do this by first class mail. The official “date of service” is deemed to be three days after you drop the letter in the mail box.

This “date of service” is important because you’ve got to file a “Proof of Service” notice (under penalty of perjury) with Clark that you actually mailed the administrative complaint to Doe.

This “proof of service” notice has to get to Clark within 20 days from the date you filed the administrative complaint with Clark. If you miss this deadline, Clark will dismiss your administrative complaint and you’ll be out your filing fee.

In other words, you’ve got to act with some degree of consistent speed if you want City Hall to get involved in your beef with Doe.

But if you do all these steps correctly, and Doe still has his Dodge parked on his front lawn, you’re sitting pretty as far as getting someone with authority to listen to you.

The proposed ordinance requires a city hearing officer to set a date for a hearing no later than 60 days from the date when you filed your “proof of service” notice with Clark.

What happens next?

Well, Doe may decide not to attend the hearing. If so, the hearing officer can fine Doe and tell him to his Dodge off the front lawn. The hearing officer can also add your fee to any penalty imposed on Doe, then return the fee to you. It’s a win-win-win for you — Doe gets a public spanking, the Dodge is removed and you get your money back.

Or Doe may decided to duke it out (verbally) with you in front of the hearing officer. Doe also must jump through procedural hoops such as filing a letter with his side of the story before the hearing is held. Doe also must pay a fee, money that he gets back if he wins at the hearing (in which case you wouldn’t get your money back).

(I forgot to ask at City Hall what happens if Doe fixes the problem between the time you paid your fee and the date of the hearing. Seems to me you should get your money back if the hearing never took place and the problem got fixed. If that isn’t the case, then the ordinance would come to be worthless — the John Does of Fresno would simply wait until you paid your fee, then fix the problem, knowing that word would soon get around that is the perfect way to temporarily flaunt city code and shaft the do-gooder neighbor at the same time).

The proposed ordinance discusses the option of mediation and how the hearing is to be conducted.

City officials on Wednesday said they didn’t know the size of the fee. They said the fee is designed to recoup the city’s costs — mainly for the hearing officer but maybe a bit for staff time in the City Attorney’s Office. The fee might be in the $150 range.

The City Attorney’s Office could step at any time and kill the process if it feels the ordinance is being abused.

The administrative complaint process can be started by anyone; it doesn’t have to be neighbor against neighbor. City Hall can waive the filing fee for one or both parties if they’re found to be too poor to pay.

City officials told me the proposed ordinance is similar to small claims court.

But, I thought, small claims court involves two specific people and a specific financial transaction. This ordinance would authorize anyone to get the correct form at the City Hall, fill it out knowing the form is backed by the full weight of the city, and mail the form to anyone within the city deemed to be violating one of the listed city codes for proper behavior. From there, the recipient of the letter must bow to the demand of the person sending the form or prepare for a long and potentially costly fight at (and with) City Hall.

City officials told me the proposed ordinance is the perfect way to enhance code enforcement at a time when City Hall doesn’t have many code enforcement officers.

Maybe the ordinance will work as planned. Maybe this is the key to making the 2035 general plan work as promised. I don’t know.

But I’m guessing we’re in for a whole new Fresno when anyone can send a “Notice to Cure Public Nuisance” to a resident and know it has considerably more legal authority than just an afternoon shout between neighbors to get that trash out of the front yard.

One final point. I noted to city officials that the proposed ordinance doesn’t list the outlandish waste of water as one of the offenses subject to “Notice to Cure Public Nuisance” and “Administrative Complaint.”

That seems most odd to me.

No one likes to live next door to someone who parks his Dodge on his front lawn. But Fresno as a functioning society won’t collapse because of it.

City officials are always saying Fresno could collapse if we don’t get a handle on our water consumption. Make every water molecule count, City Hall says.

Just imagine this situation:

John Doe parks his Dodge on his front lawn. He also excessively waters his front lawn on days that violate the city’s new watering restrictions.

Doe could get hauled into an administrative hearing (which essentially is a court of law), forced to fork over $150 to be heard, then lose the money and be threatened with stiffer penalties if he doesn’t rush home and remove his Dodge from his front lawn.

And as he’s doing that, water could be gushing like the Mississippi River off his lawn and into the gutter on a non-watering day. A paid City of Fresno water cop would drive up, give him a warning citation and ask Doe to please not do it again. And if it happened a second time, Doe would face only a $45 fine (and even that’s not a sure thing).

City officials said they were thinking about adding water-wasters to the proposed code-enforcement ordinance, then decided to consider the matter at some future date. No need to rush, they said.

Makes me think we don’t have much of a water crisis after all.

City officials better not tell all this to Doug Vagim.