My partner and I paid a huge $1279. fine for our “plant blight” violation on a California bungalow rental property. We were targeted by an angry neighbor enlisting a Public Works Dept. employee as inside advocate. But, to quote the old cliché about lemonade out of lemons, our shakedown has been the spur for a morbidly fascinating study of the dark side of the community and Economic Development agency (CEDA) Building Services Dept. This department makes up and applies its own rules, levies stiff fines, fees, and liens as it sees fit, and then forgives and removes same for those with the right juice. Moreover, their in-house “appeal process” is a bogus kangaroo court.
Building Services has a huge purview: enforcement of the blight ordinance and building permit inspections. It generates millions of dollars in revenue for a nearly broke city. It shouldn’t be a surprise that such an agency might go rogue and abuse its powers. As collateral damage: the corrosive effect a rogue operations can have on other departments and elected officials.
We made a public records request to the City Attorney’s office on our case, as we’ve often done on more portentous matters. But our seemingly small record was stonewalled by Building Services and CEDA staff. When we uncovered documents we were told didn’t exist, and walked them into the City Attorney’s office, they remained mute (except to ask where and when we got them). The Sunshine Ordinance and handling of Public Records requests were among the exemplary aspects of Oakland government. No longer.
Further, Council members and their staff must either keep a blind eye on abuse or play the role of fixers, intervening--or not--between their constituents and CEDA’s Building Services. Council aides told us of the numerous angry constituents, caught up in vendetta complaints by neighbors.
The nothingugly.com blog April 16, 2010 post details the writer’s long-running problems with Building Services. He forfeited a $2000 bond demanded of him by Building Services on a house he was buying in West Oakland, entangled in liens. An inspector suggested he pass on the property. Unsurprisingly, he wasn’t able to make the required repairs under the timetable established by CEDA. He reports two councilmembers told him they get more complaints about CEDA Building Services than even about parking tickets.
Feds and State Attorney General Looking at Building Services?
Sanjiv Handa (firstname.lastname@example.org) broke the story Jan .13 about subpoenas served and files and computers removed for analysis by the U.S. Dept. of Justice and the California Attorney General’s office. Others have confirmed the probes, focusing on CEDA’s Building Services and building inspectors in particular. It’s rumored the probes involve liens and fees placed on properties, perhaps in efforts to tip them into foreclosure or make them unaffordable for ordinary investors, where they are nabbed by a small group of well-connected interests, who then get the liens forgiven. The abrupt departure of the highly-placed Antoinette Renwick, Inspection Services Manager, after complaints to the City’s Ethics Commission, is noteworthy.
For many more details about blight ordinance abuse and pending litigation, check out auditOaklandceda.com, established by other blight victims. Tellingly, both nothingugly.com and auditoaklandceda.com are by West Oakland urban homesteaders, who ought to be encouraged for putting down roots in dicey neighborhoods, not vulnerable targets of a predatory, fee-hungry bureaucracy.
IT COULD HAPPEN TO YOU!:
CEDA’s colorful blight ordinance brochure, “A Guide for Residential Property Owners” for “Improving the Appearance of Our Neighborhoods and Community” seems innocuous enough, with its emphasis upon “debris, litter, dirt and garbage,” prohibitions about “... storing or placing sofas, appliances, etc. on your front porch or yard”, and requiring storage of inoperable or unlicensed vehicles in a fully enclosed building such as a garage.“ Also: “Do not hang laundry in your front yard, porch, or balcony facing the street.” A stern guide for Ma and Pa Kettle in the Big City?
But, apart from micromanaging duration of garbage cans remaining at the curb and clotheslines (sounds green to me!), the “Assessments $ $ $” section is the height of vagueness and deception:
“Complying with the Legislation. Assessments $$$. If you receive a notice for violating these laws and do not comply within the time stated, you will be assessed a re-inspection and enforcement fee not less than $2,000. If fees are not paid within 30 days, a lien will be placed against the property and collected with the owner’s property taxes. Additional assessments of at least $500.000 will be made each time the unpaid fees are liened and recorded against the property.”
In our case, according to the e-mails we were provided, a good two weeks before we met with the inspector to discuss our plant blight, the die was already cast. Walter Cohen, the head of CEDA whose boss is longtime City Administrator Dan Lindheim (Berkeley resident and de facto Mayor under nominal Mayor Ron Dellums), met with his deputy, Building Services head Ray Derania, and decided to throw the book at us. Derania advised: “If transgressors are turned back to us, it’s surprising how quickly they see-the-light and get with the program (even if it costs them some money sometimes).” Cohen assented with the hearty ”Well..if you insist...meddling can be such fun.”
After our initial, alarming talk with field inspector William Patchen, we called his Inspector Supervisor Rich Fielding, who said we had the right to appeal our plant blight fine of $1279. In our case, a neighbor frustrated by our aloe blossoms overhanging the sidewalk had convinced Fred Loeser who handles right of way issues in Public Works to lodge a complaint with the above-mentioned Antoinette Renwick in Building Services. That first complaint supposedly led to the second “violation” and the draconian fine, even though the first inspector was so unfazed by our “blight” that he subsequently deleted the file, never met with us but simply did a drive-by inspection, and encouraged us to appeal our fine. Nor did he mention about the penalties of “repeat violations.”
In previous postings, I called the blight ordinance a “two strike law.” In truth, the ordinance is as elastic as Building Services wants to make it. Section 8.24.080 of the Oakland Municipal code, the pretext for our being “...immediately charged fees at a minimum of $1,089...because you engaged in the same or similar violation within 24 months of another violation” is not what that section of the code states, except for the open-ended “the Building Official may establish time durations for abating blighting conditions...”
Thanks to auditOaklandceda.com, we learned Building Services has complete leeway over how many strikes, if any, are required to trigger fines and routinely refund fines totaling thousands of dollars as, for example, the $6351 fine levied against Carlos Plazola, former chief of staff toIgnacio de La Funete and now head of Terra Linda Development and founder of the Oakland Builder Alliance lobby. Auditoaklandceda.com reports this refund, dated 7/8/09, was approved by Derania and Cohen.
There’s a porous line between favoritism, retribution and corruption.
Fielding told us we could file an appeal and a billing dispute form, but warned we would be fined an additional $113 for each denial, if that happened. We did not yet know our house had already been liened for “not less than $1000” as of Nov. 17. We also didn’t know the “billing dispute route” is a sham that doesn’t exist in the City’s codes. We soon learned why most citizens don’t appeal--we were initially turned down at the Building Services counter, later another employee accepted and stamped the appeal. Our $1279 payment, however, was received happily at the cashier’s window!
Not surprisingly, we soon got a one page form letter, with the “denied” box checked and no names attached of officials who’d made the call, and on what basis. We’d written a 17 page letter, with attachments, in our defense. We learned latter, by circuitous means, that Patchen and Fielding, as judge and jury, were the authors of the denial. In a recent deposition, Fielding says the appeal process can be an “office meeting.”
Broken Public Records Process:
Nothing illustrates the breakdown of the public records process at the moment, in our admittedly “minor” case, than our attempt to obtain the “finding” explaining that denial. We knew it must exist, and--to paraphrase Reagan’s “I paid for the microphone” line--felt we’d earned it.
In our experience, the public records requests have generally worked, after a fashion. Generally, you’d give the department a couple of days notice you wanted to come in and look at the files. The files would be put out for you to review and flag documents you wanted copies of. No muss, no fuss. Even the most reluctant bureaucrat would allow access to files (except documents relating to personnel and legal matters, a gray area).
In this case, Building Services is the outlier. They stalled, never allowed us to see originals, released a paltry amount of e-mails in dribbles so as to handicap our appeal or other forms of redress, and, finally, was caught red-handed in a lie that seemingly has no consequences. We put up with additional delays caused by redacting e-mails and i-phone messages from the angry neighbor to hide his identity (not a secret anyway), nor did we mind sitting in an office with someone in attendance as we looked though our file, an option not allowed us.
We repeatedly asked for the “finding letter.” Our Dec. 21 e-mail: “We have not been provided anything related to our appeal, dated Dec. 3, nor the denial, dated Dec. 9. There will have been staff discussions, including e-mails, relating to these...” On Dec. 22, Arlette Flores-Medina, who handled the request in the City attorney’s office, wrote back: “You have in your possession all documentation provided by Building Services in regards to the file case...to respond to the public records request you submitted to me on Nov. 19, 2010.“ An unambiguous response.
Subsequently, we obtained the 3 page Fielding/Patchen denial finding. We walked it into the City Attorney’s office, leaving it for Mark Morodomi, the city attorney handling public records. Later we got a call from Flores- Medina asking for the source, and when we got it. She asked if the letter was obtained after the (specious) Building Service’s claim. I said yes, but declined to divulge the source. There has been no other follow-up, although we suggested that there are other missing documents as well. Despite our media outreach, CEDA would have you believe nothing has been discussed internally, because nothing after Cohen’s Nov. 16 “fun” remark has been turned over. Circle the wagons!
Be Very Afraid!
The “secret” finding is relevant and scary because it directly contradicts an e-mail Fielding was only too happy to provide, which he wrote himself. After our phone encounter with the inspector, we set up an onsite inspection. No one appeared on the day we thought we’d arranged--the inspectors, we were told, were at a meeting. I then called Cohen’s office. His helpful executive assistant volunteered Fielding’s cell phone. Fielding, reached on his cell, was LIVID. In the e-mail he wrote the assistant the same day, he explained: “My conversation with Mr. Brokhl (sic) ended cordially.” Not!
Fielding also claimed: “”His interpretation of what is required from his discussion with Patchen would appear to be a significant exaggeration. He is not being asked to make any major changes at his property. Just a maintenance issue on site to clear the guardrails (barriers to side of stairs) that serve as his entry stairs, and a clearing of the right of way. He believes that there is a measurement for passage at the sidewalk and a limit to how much the right of way needs to be cleared. We need it from property line to face of curb per OMC 12.04.070. There may be an issue regarding his foliage blocking the required light and ventilation at his windows (this would be a safety issue related to the CBC)...” (emphasis added.)
The “secret” finding of Fielding and Patchen contradicts his e-mail. The finding, with it’s misspellings (“vegetaion, Brokhl”), does indeed cite us for all of the above. And, as in all propaganda, only the neutral/pejorative word “vegetation” is used, never landscaping, plantings, decorative shrubs, street trees, flowers, natives. Or else, inspectors don’t have the training to identify landscaping, so the generic “vegetation” suffices.
How You’re Affected:
*In the inspectors’ view, none of your property is “private.” Not side yards, back yards, or yards behind fences and gates. We were cited for bird of paradise leaves overhanging the ample and original stucco balustrades, and fortnight lilies growing along the “private” sidewalk to the front entrance.
Patchen photographed the rear (tenant’s private space) yard through a crack between gate boards. His opening remark to us was that he “wasn’t going to complain about the problems with that yard.”
*Right-of-way” and “non-constricted” sidewalks mean whatever the inspector and his supervisor want it to mean--from the 36” required by our Inspector #1 to “2 people walking abreast” when we passed our second inspection. Fielding and Patchen demand 6’8” straight up from the edge of the sidewalk, but that is nowhere in the regulations and not even a standard for official street tree trimming (whenever that happens). OMC 12.04.070 refers to “weeds” and “grass”--never even mentions landscaping.
*Do not assume you can have plants in front of windows or too close to doors. Do not assume you know how close is too close. Do not assume your plants are “grandfathered in.”
*Do not assume you will ever find out who your accuser was. Do assume, since the complaint was anonymous and there is not minimum threshold of seriousness, the source was anyone or no one.
*If you do manage to get your appeal “accepted,” don’t expect to find out why you were turned down.
*If you were tagged once, expect to be tagged again.
*No “offense” is too minor. According to a 2008 Contra Costa Times article, an Oakland resident was fined $951 for leaving on vacation for 3 days and not taking her garbage cans inside.
We have a hearing in Small Claims court, May 6. Dept. 14, 9 a.m. Superior Court, 1221 Oak St. We intend to raise the issues of widely varying interpretation, lack of records, misinterpretation of the ordinance, and a totally flawed process, made up on the spot and out of thin air that punishes, rewards, and forgives, depending on the inspector and the “violators.”
Mayor Quan has called for citizens to suspend their “cynicism,” volunteer and shop Oakland.
But who will restore confidence in the public records process? How can you remove the tarnish from City Council members that have been hearing for years about blight ordinance enforcement abuse and done nothing (because of the revenue stream?), or found fixes for their friends and supporters? How can one assume Lindheim and his appointee Walter Cohen are not aware of the abuse, even corruption, and have turned a blind eye?
Tunisia, Egypt, CEDA?