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For the City Council of Concord

December 1, 2008
Relative to:
Second Reading of the Proposed Ordinance 08-7

The purpose of the protocol of a second reading of Ordinances is so that City Councils
and the citizens can on occasion be stopped from an enactment of a flawed Ordinance. I
believe that the current Ordinance rises to that occasion.

The Ordinance is
1. Ill Advised and miss presented to the City and Council
2. Ill constructed and overly broad
3. It has major provisions that appear indefensible under state case law
4. It is discriminatory and internally contradictory
5. It violates the principle of grandfathering in
6. It exposes the city to lawsuits as unintended consequences of an ill-advised approach
to an esthetics fight that does not belong in city code.

In detail:
I. Ill Advised and Miss-presented
The Council voted on this ordinance, as it was a ‘compromise’ as stated in the comments
of all 4 of the yes votes in Council. The nature of a compromise is that when one or more
of the components are violated the entire package is negated.

Under the votes taken in the Community Recreational Vehicle Code Task Force final
report of April 14 2008 it was Unanimously voted by them that there should be any
number of items allowed behind a fence as long as it was not visible. This has not been
incorporated and has been violated.

Under the numerous notices to the citizens the issue was wrapped as being concerned
with over sized vehicles called RV’s in common usage. However, like the Trojan Horse
of old days, the ordinance as presented has been given a seriously different twist to
include all off the road motorcycles, camping equipment, camping supplies and PARTS
of a general and not detailed matter and in a great display of the application of a
‘Common Sense Approach’ heard in this Council hall, the ordinance now specifies under
its RV ordinance ‘Airplanes’ ((Definitions 1b page 2 line 8)).
By the way interestingly enough under the Trojan Horse example once the Trojan’s
wheeled it into their city behind their ‘fence’ it would be legal under this provisions
providing nothing else was there.

II. Provisions are Overly Broad


Aside from the above-mentioned inclusions, the city is taking a restrictive posture on
items, which are not visible from the street. The city is attempting to create a safety-
health-aesthetics criteria mix where there is no compelling support for it. A non-
registered off the road or street motorcycle or camper shell provides no reasonable
danger.
There is also the issue that to effect enforcement and monitoring would require the
imposition on the citizens of what traditionally is called ‘unreasonable search’. Does
anyone here think that a Federal judge is going to issue a search warrant to check
someone’s back yard for a non registered, non visible off the road or road vehicle?

III. Provisions are indefensible in case law


There appears to be no case law that supports the restriction that non-DMV registered
motorcycles, recreational equipment, campers, boats etc. must be mounted on trailers as
required by this agreement.

An initial search, though it needs to be expanded, does not show support for the
restriction on parking left or right on ones own driveway.

There is no case law that requires that there be direct access to your own garage as
provided here, and that you cannot park your pick up truck,
Sports utility vehicle on your own driveway.

There is no case law that shows that a city can restrict ownership to items under its very
broad definition of what is an RV, remember that it now includes motorcycles, parts,
camping gear and of course airplanes.

IV. The ordinance is discriminatory and internally contradictory


By discriminatory I do not mean that it is racist, though given the broad concept of RV
and aesthetics it would not surprise me to learn that they have slipped in a provision that
Black and Silver RV’s are OK but Red and Gold are banned. Being a 49ner fan I guess I
am on the wrong side of that fight.
The city makes its case for regulating the parking in one’s own driveway on the basis of
safety. Drawing all these lines of sight and the like. However it is both discriminatory
and contradictory to at the one hand say it is not OK to park in your driveway because it
unsafe, but it is OK to park for 3 days on street.
It is additionally discriminatory to make the case for visibility blockages as a safety
issue and apply it to your broad perverse definition of an RV but somehow when it comes
to Sport Utility Vehicles such as an Escalade or the new line of super extended cab pick
up trucks there is no safety issue.

V. There is a distortion of the concept of Grandfathering In.


The very basis of grandfathering in is to protect those whose conditions were suddenly
adversely affected by a new ordinance. It is not the concept that those suddenly
disenfranchised by any council’s action should be financially penalized in effect
retroactive because of the actions of the council. The application of an 80 dollar ‘permit
fee’ is just such a retroactive penalty on this City’s citizens and while it is most likely to
be overturned in any court review, it will also most likely be over turned by political
action at the next election and all funds collected returned.

VI. The ordinance exposes the city to a series of potentially financially disastrous
lawsuits as a result of unintended consequences of its ill designed construction.

I bring you back to the issue of the city entering the arena of where and how a person
may park in their own driveway and their justification on the basis of safety/view.

A quick review of the dark side of the personal injury and car accident practices indicates
that if this ordinance goes forward as written then suddenly the potential involvement of
the City in injuries in the residential areas will skyrocket as the city will be held
responsible to mitigate the ‘dangerous’ conditions which the city identifies in this
ordinance and thus become a potentially far greater named party in accidents on our
streets than if we leave the responsibility of people’s parking to themselves and the deep
pockets of their homeowners insurance rather than inject our own budget to the avarice of
the legal profession.

I am more than willing to attempt to rewrite the code along the lines of addressing the
REAL push button issues that turned this can of worms into a can of Whoppass on
ourselves.

The provisions of that rewrite should be

1. Focus only on OVERSIZED Vehicles 20’ long by 8’ high and wide excluding racks
and mirrors.
2. Remove all aspects relating to non-visible items in ones back yard
3. Remove the aspect of where and how someone can park in his or her own driveway
4. Address the occupancy and the blight conditions in the existing city code and tinker
with it there
5. Deal with aesthetic complaints by having a 100 dollar fine and a requirement to
address the problem, HOWEVER if there is no sustaining of the aesthetic complaint then
the party making the complaint is charged with a 100 dollar administrative processing
fee.

In summary then this ordinance should be sent back to staff for a rewrite as it is
Ill Presented
Ill Advised
Ill Constructed
Ill Focused
Unfair
Exposes the city to excessive financial danger

Not to mention just down right rude.

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