Exhibit N – Letter from Applicant/Appellant
to Planning Commission [12/28/2023]
BRADLEY K. BOULDEN
Attorney at Law
355 E. Avante Avenue
Fresno, CA 93720
Ph: (559) 425-6330
Fax: (559) 553-6220
Writer’s E-Mail: [email protected]
File No. 9800.02
December 28, 2023
Via Email To Phillip Siegrist
Planning Commission
2600 Fresno Street, 2nd Floor
Fresno, CA 93721
Re: Planning Commission Appeal Number P23-03471; Supplement Communication.
Dear Planning Commission:
This Summary Supplemental Communication relates to Bauer’s Auto Wrecking and Towing’s (“Bauer’s”) Fresno Planning Commission ( the “Commission”) Appeal submitted October 10, 2023 (“PC Appeal”) to the City Planning Department’s (“ Planning Department”) September 26, 2023 Zoning Inquiry decision letter deciding Zoning Inquiry Application No. P23- 02357 (“ZI Decision” or “Zoning Inquiry Confirmation”) filed on or about July 6, 2023 (“Zoning Inquiry”). This Appeal concerns Bauer’s real property located at 317 West Voorman Avenue, Assessor’s Parcel No. 458-040-22 (hereinafter “Bauer’s Property”).
PLANNING COMMISSION APPEAL REQUESTS FOR RELIEF
While this matter comes to your Commission after some previous protracted proceedings (which are summarized for context below) the action you are being asked to take is simple: Modify the Confirmations issued by the City Planning Department provided in response to Zoning Inquiry No. P23- 02357 (the “Confirmation”), to revise the last sentence of Paragraph 7 to provide as follows: “Based on the record of proceedings in this matter, the Planning Commission confirms that the Site in conformance with the standards and requirements outlined under Policy and Procedure No. C-002 dated June 14, 2011.”
Detailed below is important context concerning the requested relief, which concerns:
1) Actions by the City of Fresno Police Department (“FPD”) that terminated the Applicant’s rights to be included in the FPD’s Tow Service Agreement (“TSA”);
2) Determinations by the City of Fresno Independent Hearing Officer that overturned (in two instances), the FPD actions that terminated and denied Appellant rights to be included on the TSA;
Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
3) Evaluations and decisions by the Planning Department that frustrated the Applicant’s ability to enforce compliance by the FPD of the orders of the City of Fresno hearing officer, by incorrectly issuing a determination that Applicant’s property fails to satisfies applicable standards and r equirements that govern maintenance of tow yards in the City of Fresno, as established in Policy and Procedure No. C-002 dated June 14, 2011;
4) Applicant’s efforts, through this A ppeal of the Confirmations issued by the Planning Department, to confirm that Bauer’s Property is in fact, for the reasons detailed in the record of these proceedings, in compliance with applicable standards and requirements that govern maintenance of tow yards in the City of Fresno, as established in the City’s Development and Resource Management Department's Policy and Procedure C-002 (“C-002”) dated June 14, 2011.
BRIEF APPEALS HISTORY
Bauer’s towed for the FPD and was a participant on the FPD’s Tow Service Agreement (“TSA”) continuously over thirty-two (32) years since 1987 until it was wrongfully terminated in early 2021. Bauer’s won two appeals in front of the City’s Independent Hearing Officer, Honorable Michael Flores, winning substantial attorney’s fees and costs in both appeals and was ordered to be reinstated on the TSA in March 2023. The FPD refused to comply with Honorable Flores’ order based on the FPD ’s determination that Bauer ’s did not comply with City’s Development and Resource Management Department's Policy and Procedure C-002 (“C-002”), an opinion which the FPD then provided to the Planning Department to review and also conclude that Bauer’s Property does not comply with its C-002. C-002 concerns standards that apply to tow yard vehicle storage lots, and its standards must be satisfied to be included on the TSA. This determination by the Planning Department is incorrect because Bauer’s was confirmed to have satisfied those standards by authorized City officials in 2011, and therefore satisfies all conditions for reinstatement to the TSA, which the Planning Department and FPD wrongfully withhold.
PLANNING DEPARTMENT THURSDAY, 12/28/23 REPORT TO PLAN NING
COMMISSION
As is evidenced in Exhibit A hereto, the FPD facsimile transmitted to Bauer’s informing it that Bauer’s cannot receive FPD TSA tows (e.g., effectively be “reinstated” on the TSA) as of October 2, 2023 and through the present, because Bauer’s does not comply with C-002. Thus, the Planning Department’s argument today in its Report to Planning Commission that C -002 is not applicable misses the boat. It also see ms like a continu ation of animus and unfair treatme nt of Bauer’s by the FPD and Planning Department.
Bauer’s does respectfully need and request that the Planning Commission revise Par. 7 of the Planning Department’s Confirmation to read that: “Based on the record of proceedings in Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
this matter, the Planning Commission confirms that the Site in conformance with the standards and requirements outlined under Policy and Procedure No. C-002 dated June 14, 2011.” This need is due to the FPD ’s position herein, as well as for Bauer’s dealings with the City’s Independent Hearing Officer appeals, which are ongoing into the new year.
PLANNING COMMISSION APPEAL REQUESTS FOR RELIEF
Bauer’s July 6, 2023 Zoning Inquiry asked the Planning Department:
1) For confirmation that its Property was in compliance with C-002 based on the Planning Department’s prior approval of Bauer’s in the Planning Department’s response letter to Bauer’s Zoning Inquiry Application Q -11-035 (“2011 Zoning Inquiry”), dated August 5, 2011 (“2011” OR “C -002” “Approval Letter”) wherein the Planning Department refers to its own August 5, 2011 communication as an “Approval Letter” on Exhibit A-1 thereto (please see Exhibit B attached hereto, which is the Declaration of Michael Sanchez including his C-002 Approval Letter included therein) and Captain Andy Hall of the FPD Tow Unit was carbon copied thereon; and
2) To take into account the Declaration of former Fresno Planning Manager, Mike Sanchez, submitted to the Planning Department on or about May 12, 2023, wherein Mr. Sanchez testified that the Planning Department C -002 approved Bauer’s in its August 5, 2011 Approval Letter (also signed by Mr. Sanchez) concerning Bauer’s 2011 Zoning Inquiry Q -11-035 (please see Exhibit B attached hereto, the Declaration of Mike Sanchez). It should also be noted that Mr. Sanchez signed C -002 on behalf of Planning Department, and he was charged with approving (or not) all FPD TSA towers in 2011 under C-002—well over 35 towing companies—prior to any towing companies signing the 2011 FPD TSA. (Please see C-002 attached hereto as Exhibit C.)
The Planning Department, despite receiving Mr. Sanchez’s Declaration, failed to acknowledge it, comment about it, or explain it in its recent Zoning Inquiry Decision. This is troublesome given that Mr. Phillip Siegrist, the current Planning Manager, informed Bauer’s and its counsel in an in-person meeting on May 10, 2023, that Mr. Sanchez then (just like Mr. Siegrist currently) had the authority to approve Bauer’s under C-002 in 2011. Phillip claimed the hang-up in approving Bauer’s in 2023 was the fact tha t the Planning Department was not sure if Mr.
Sanchez approved Bauer’s due to the Planning Department’s alleged “confusing” language in the Planning Department 2011 Approval Letter, allegedly (per the Planning Department) requiring it to be “paved.” Thus, Mr. Siegrist claimed at the May 10 meeting that since the Planning Department was not sure if Bauer’s was approved in 2011, it would likely be determined that Bauer’s fails C-002. Two days later, Bauer’s contacted and provided the Planning Department/Mr.
Siegrist with Mr. Sanchez’s Declaration confirming Bauer’s passed C -002 in 2011. ( Please see Declaration of Bradley K. Boulden, Par. 3 attached hereto as Exhibit D attaching a true and correct copy of the May 12, 2023 email to Phillip Siegrist.)
Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
PLANNING DEPARTMENT’S WRONGFUL INTERPRETATION OF AUGUST 5, 2011
APPROVAL LETTER
Despite Mr. Siegrist’s comment at the May 10, 2023 Meeting and Mr. Sanchez’s subsequent declaration, the Planning Department wrongfully determined in its Zoning Inquiry Confirmation that the Approval Letter found that: “. . . the subject site, specifically the areas where cars or vehicles are stored and vehicles drive, is not paved nor constructed to Public Works Standard P -21 as required in accordance with policy item 3- iii-a.” (Emphasis added.) (Please see Zoning Inquiry Confirmation, Pg. 5 attached hereto as Exhibit E). This determination wrongfully interprets the Planning Department’s/Mr. Sanchez’s Approval Letter and Exhibit A -1 thereto. (Please see highlighted por tions of email attached to Exhibit D .) The Planning Department purposefully confused the C-002 Approval Letter’s recitation of C-002’s requirement that a stored vehicle area be “paved”—(the first sentence of Section 6.a.) as evidence to conclude that Bauer’s was not paved. This is a misinterpretation of that Approval Letter. That sentence, and its immediately preceding sentence, state as follows: “All existing tow yards shall comply with the following minimum conditions: a. The areas where cars or vehicle parts are stored and vehicles drive must be paved.” These sentences are simply a statement of the requirements that must be satisfied by all existing tow yards. The second sentence if Section 6.a., discussed below, concerns a specific requirement of the Applicant, which was satisfied.
The second sentence of Section 6.a. of the August 5, 2011 Approval Letter references the applicant (Bauer’s) (not the general principles of C -002 set forth in the first part of subsection a. requiring paving). It provides that, “The applicant shall maintain a paved surface pursuant to the attached Exhibit A-1,” and further that, “The applicant shall also apply an additional layer of base rock, as necessary, within six months of the date of [August 5, 2011], to those areas where towed vehicles will be stored.”
The first sentence in the C-002 Approval Letter in 6.a. is word-for-word the exact language of C-002, Section 3.i.—both of which provide: “The areas where cars or vehicle parts are stored and vehicles drive must be paved.” (See Sections 6.a. in Exhibit A and 3.i. in Exhibit B verifying exact language.) It is clear that the same sentence from 3.i. and 6.a. was not a command to Bauer’s or something it failed to do, but merely copied from C -002 to announce the topic of “pavement” in the TSA towing company storage yards. Clearly, as shown above, when the word “ applicant” is mentioned thereafter, it directly relates to Bauer’s and what it needs to do to its storage yard— as it existed that day.
Moreover, Exhibit A-1 attached to the 2011 C -002 Approval Letter clearly identifies the storage yard area of Bauer’s lot. There is paving in this lot (and greater than 5,000 sq ft and more than enough to store over 20 vehicles as indicated in Director’s Classification No. 208 referenced on Pg. 3 of Planning Department’s Z I Decision Letter). Moreover, Mr. Sanchez’s handwritten notes on Exhibit A -1, instructed Bauer’s: 1) to “ Apply Condition 6a per the 8/5/11 Approval Letter”; 2) defined the storage lot by outlining the area on the illustration; and 3) referred to the “Front Portion of Yard For towed Vehicles.” (Please see Exhibit B, Approval Letter attached Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
thereto.) The front portion of Bauer’s lot, extending all the way to the South of Bauer’s storage lot, is paved. Please also see Aerial Images section below.
Exhibit A-1 with the language of the August 5, 2011 Letter clearly indicates that Bauer’s satisfied C-002, as Mr. Sanchez called the August 5, 2011 communication an “Approval Letter” in Exhibit A -1 thereto. Moreover, Bauer’s was paved or had an otherwise approved surface and was to “Apply Condition 6a”, which was to add “an additional layer of base rock.” You don’t pave a surface and then add base rock to it. Bauer’s explained this to the Planning Department and FPD numerous times, so the Planning Department’s claim that Bauer’s Property does not comply with C-002 (on the basis that it was not paved) is untenable given the facts and based in animus and disparate treatment arising from the proceedings conducted against the FPD before the City’s Hearing Officer.
Additionally, the “front portion of the yard”, as indicated in Exhibit A-1 where the towed vehicles were stored, was identified. This was where the additional base rock was to be added — to the already “paved” area of Bauer’s storage yard.
Finally, page 2 of C-002 under Procedures, provides as follows:
“For staff: Number 3 under the Policy section of the document is not a procedure for a special permit. Rather, it is a process to verify that the use existed prior to the existence of Directo Classification No. 208. The request for verification will be entered into Navaline (THE) as a Zoning Inquiry. The fee of $510 for staff time will have to be entered into the system manually. The applicant will be given a letter (after all documentation is submitted and staff is able to verify compliance) that indicates that the subject tow yard is legally in operation.”
(See Exhibit C attached hereto.)
As was pointed out in the ZI Decision, Bauer’s existed as a tow yard towing under the FPD TSA since well before 2006. Further, evidence that Bauer’s submitted all necessary documents for the Zoning Inquiry is also established, as well as Bauer’s paying the $510 fee for staff time.
Bauer’s was given the 2011 Approval Letter and Bauer’s was provided “legal” non- conforming use. Thus, C-002 by itself clarifies that the C -002 Approval Letter was part and parcel evidence that Bauer’s passed C-002.
AERIAL IMAGES INDICATGE BAUER’S HAS PAVING IN ITS C-002 STORAGE LOT
Aerial images of Bauer’s Property taken on or about November 28, 2023, demonstrate a “paved” area of Bauer’s vehicle storage yard. Base rock that was previously applied per the requirements of the Planning Department’s August 5, 2011 Approval Letter was moved, thereby clearly showing a “paved” surface that existed long prior to 2006. (Please see Declaratio n of Edward Mason attached hereto as Exhibit E , Par. 3 including three (3) photographs of Bauer’s Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
subject tow storage lot, including images of “paved” area and estimated square feet thereof.) Thus, Bauer’s complied with C-002, as it has a “paved” surface. Moreover, this paved area further assists in explaining the August 5, 2011 Approval Letter ( add base rock, which you don’t do if you are first requiring Bauer’s storage lot to first be paved), as well as dovetails with Bauer’s explanation of Mr. Sanchez’s written approval letter. Exhibit E, Par. 3 also clearly indicates that Bauer ’s storage lot has at least between 5,700 and 6,800 square feet of a “paved” area.
Exhibit E images can be contrasted with aerial views from current Google Earth ™ images in Exhibit F hereto. The image in Exhibit F was likely captured much earlier than Novemb er 5, 2023, but are dated as of No vember 5, 2023. These are likely what the Planning Department improperly relied upon to wrongfully concluded in its September 26, 2023 ZI Decision Letter that Bauer’s did not comply with C-002. Exhibit F looks like Bauer’s storage yard could be all dirt or gravel, but Exhibit E clearly shows “paved” surface once the base rock was removed. The FPD and Planning Department wrongfully concluded that Bauer’s yard was not paved and declined to physically inspect Bauer’s yard. The paved surface therein is much greater than 5,000 square feet. (See Declaration of Ed Mason attached hereto as Exhibit E, Par. 3.)
The only reason for the FPD’s (and now Planning Department’s) continued failure to comply with the City of Fresno’s Independent Hearing Officer’s March 30, 2023 Decision and Order to reinstate Bauer’s on the FPD TSA is the FPD’s animus and the Planning Department’s willingness to “go along” with the FPD’s refusal to allow Bauer’s to be placed back on the TSA.
The FPD’s and Planning Department’s failure to physically and personally inspect Bauer’s Property—despite requests by Bauer’s to the Fresno City Attorney’s Office (“CAO”) and Planning Department to personally inspect the property for compliance, clearly evidences animus . Instead, the Planning Department decided to rely on the FPD’s wrongful conclusions and Google Earth or other simple visual, not physical or personal, inspection to continue wrongfully failing to recognize Bauer’s 2011 C-002 approval.
BAUER’S REQUESTED REDRESS
As such, Bauer’s respectfully requests that the Commission reach the following decision(s):
Modify the Confirmations issued by the City Planning Department provided in response to Zoning Inquiry No. P23- 02357 to revise the last sentence of Paragraph 7 to provide as follows: “Based on the record of proceedings in this matter, the Planning Commissi on confirms that the Site in conformance with the standards and requirements outlined under Policy and Procedure No. C-002 dated June 14, 2011.”
ADDITIONAL BACKGROUND
To further understand this matter and why Bauer’s should further prevail at this A ppeal, the following more detailed summary is included, including more background as to the underlying appeal in this matter, as well as evidence of the underlying FPD animus and disparate and unfair Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
treatment towards Bauer’s compared to other FPD TSA towing companies , ultimately leading to this Appeal.
I. Underlying Appeal.
After Bauer’s was wrongfully terminated from the F PD’s TSA on or about January 13, 2021, the FPD refused to meet with Bauer’s or its counsel to discuss this matter, despite numerous written requests. Due to COVID delays and delays by the FPD, Bauer’s was found on or around May 20, 2022 by the Honorable IH Officer, Michael Flores, to be wrongfully terminated from the FPD (“First IH Officer Appeal”) and awarded substantial attorneys’ fees and costs —over fifteen (15) months after it filed the appeal.
The FPD, with animus and in contradiction to the decision in the First IH Officer Appeal, claimed that the 2018 TSA expired and although all its terms were extended by a one (1)-page extension, the FPD claimed it did not have to invite Bauer’s to continue to participate in the extended 2018 TSA, which the FPD claimed was expiring sometime shortly after the First IH Officer Appeal.
II. Second Underlying Appeal.
Bauer’s prevailed at the second appeal also before the Honorable Flores and again w on substantial attorneys’ fees and costs from the City , as the IH Officer held in his March 30, 2023 Decision and Order (“Recent D&O”) that language of the “extended” 2018 TSA did not preclude Bauer’s from being reinstated to a subsequent TSA if an appeal was not concluded prior to a new or extended TSA taking effect—that the language of the 2018 TSA did not preclude Bauer’s from being placed on a subsequent TSA following a victori ous appeal . Bauer’s was ordered to be “reinstated” (not apply as a new towing company) to the TSA (and an upcoming TSA) within fourteen (14) days.
The FPD, however, again failed to comply with Honorable Flores’ R ecent D&O , now claiming that the Recent D&O required that Bauer’s had to “re -comply” with or now meet 2018 TSA terms Bauer’s already met and complied with in 2018 (and back to the 2011 and 2014 TSAs) when it signed such TSAs, as Bauer’s was a TSA tower on prior (and the 2018 TSA) when it was first wrongfully terminated.
a. Hearing Officer’s March 30, 2023 Decision And Order.
Evidence of the Honorable Flores’ holding from page 51 of the March 30, 2023 D&O, Paragraph 2.) therein, provided as follows:
“For the reasons provided in Section IV, "Issues on Appeal", Subsection F(1) of this "Decision and Order", and Section 34 of the "Tow Services Agreement" fully executed by both parties on April 26, 2018, Appellant is Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
to be reinstated to the current "Tow Services Agreement" and related "Rotational Tow List" within 14 calendar days of the date of the issuance of this "Decision and Order" . The Fresno Police Department Tow Unit will utilize the 14 -day period to confirm with Appellant that his towing operation, doing business as "Bauer's Auto Wrecking and Towing" meets all standards and other requirements pursuant to the current Tow Services Agreement and all applicable Fresno Municipal Code, State, and Federal laws, and for both parties to fully execute all necessary documents to carry out this order. Further, Appellant shall be included in the Tow Services Agreement presently being prepared for review, approval by the City Council, and execution by the Fresno Police Department, participating Tow Operators, and the City.” (Emphasis added.)
(Please see Paragraph 5 of the Declaration of Edward Mason attached hereto as Exhibit F)
b. 2018 and 2011 TSA C-002 Compliance Requirement
Section 8 entitled Size And Location Of Storage Facility , page 12 of the Attachment A Scope of Work to the 2018 FPD TSA, provided:
“. . . All current tow yards contracted with the City of Fresno shall be in compliance with the current Development and Resource Management Department's Policy and Procedure C-002. Any new tow yards would follow FMC 15- 2765 Land Use Regulations, Towing and Impound, Vehicle Impound Yard and Transit Storage requirements. . .” (Emphasis added.)
(Please see Paragraph 6 of the Declaration of Edward Mason attached hereto as Exhibit F, which includes the relevant pages of the terms of the 2018 TSA.)
Moreover, the 2011 TSA also required strict adherence to the requir ement that all FPD TSA towing companies comply with C -002. Section 8 entitled Size And Location Of Storage Facility, page 11 of the Attachment A Scope of Work to the 2011 FPD TSA, provided:
“. . .A minimum of 5,000 square foot or room for 20 vehicles shall be provided. All tow yards located with[in] the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow current Development and Resource Management Department’s Policy and Procedure C-002. (Emphasis added.)
(Please see Paragraph 7 of the Declaration of Edward Mason attached hereto as Exhibit F, therein, which includes the relevant pages of the terms of the 2011 TSA.)
Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
Accordingly, given the language in the 2011 and 2018 TSA ’s (and in the 2014 TSA), as well as Exhibit H attached hereto , it is clear that Bauer ’s had to pass C -002 or it could not have received, si gned, or become a TSA towing company on any of the TSA ’s since 2011. Thus, Bauer’s unequivocally passed C-002 in 2011, and the Planning Department and FPD have known that since 2011.
Additionally, The Planning Department’s ZI Decision Letter provides that C-002 was last amended in June 14, 2011 (see Pg. 4 of Exhibit E attached hereto)—two months before Bauer’s received the C -002 Approval Letter (August 5, 2011) . T wo more months later, Bauer’s was provided and signed the 2011 TSA (October 2011)—the very TSA requiring approval of C -002 set forth above. TSA tow operators were also notified before being presented with the 2011 TSA that non- compliance with C -002 would lead to TSA towing companies to not being able to participate in the 2011 TSA. (See Exhibit G, which included a facsimile transmission from FPD Tow Officer Dalan Richards to “All Tow Operators” of an email from Capt. An dy Hall to Mr.
Richards and Planning Manager Mike Sanchez concerning Capt. Hall’s conversation with Mike Sanchez notifying tow operators that they were required to comply with C-002 or they would not be able to participate in the 2011 TSA.)
Additionally, the 2018 TSA provided that Bauer’s had to be in compliance with the “current” C-002, which Bauer’s passed and C-002 has not changed since 2011. (Exhibit F.) The FPD claimed that language in the Recent D&O (see above) allowed the FPD to make Bauer’s again pass C-002 based on the TSA term under Section 8 cited above—despite the fact that Bauer’s passed C-002 in 2011. It should be noted that the C-002 Approval Letter also provided that Bauer’s would maintain its approval provided that Bauer’s did not expand or extend its business in any way, change its approved for use, or abandon its use. (See Pars. 7 and 8 of the C -002 Approval Letter attached hereto in Exhibit B.)
Moreover, Bauer’s was provided and signed the 2011, 2014 and 2018 TSA’s (thereby serving as de facto evidence that the FPD and Planning Department recognized Bauer’s 2011 C - 002 compliance. Bauer’s served as a TSA towing company on the 2018 TSA until it was wrongfully terminated in early 2021. Bauer’s was never provided any prior notice that it did not comply with C-002; but, all of a sudden, the FPD (and now Planning Department), with animus and bias against Bauer’s in violation of the California Constitution’s and the United States Constitution’s Equal Protection Class of One Jurisprudence standards, found Bauer’s is not in compliance with C-002, despite the fact that Bauer’s was, in 2011, approved and unfairly required Bauer’s to again comply with C-002. Bauer’s is informed and believes the FPD knew and knows that other towing companies were otherwise approved and failed to have “paved” storage yards as the FPD/Planning Department alleged against Bauer’s. Those towing companies were treated differently and were and are allowed to continue to tow on the TSA at all times relevant herein .
Bauer’s raises these issues, not to get other towing companies in trouble, but to prove animus and disparate treatment against Bauer’s.
Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
There was no reason for the FPD or the Planning Department to require Bauer’s to be C - 002 reinspected. It was the FPD’s attempt, with animus and bias against Bauer’s, to stick it to Bauer’s and again try and avoid complying with the IH Officer’s Recent D&O. After the FPD alleged Bauer’s was not in compliance with C -002, and after counsel for Bauer’s notif ied Dan Casas and Jennifer Nguyen-Bui of the Office of Fresno City Attorneys Office (“CAO”) that other towing companies on the TSA rotation were in violati on of C-002 because they have dirt storage yards). the CAO requested that Tow Unit Officer, Dalan Richards inspect all TSA towing companies for C-002 compliance. We are informed and believe that since on or about late 2011, none of the TSA towing companies were C-002 inspected, because they were deemed to have passed C-002, as Bauer’s did.
This was evidenced in a meeting between the CAO, Honorable Flores, and Bauer’s counsel on or about June 7, 2023, wherein Deputy City Attorney, Dan Casas, when asked, stated that he had recently instructed Officer Richards to inspect every TSA towing company for C -002 compliance due to the fact that Bauer’s counsel recently intimated that if Bauer’s was not in C - 002 compliance, other towing companies were also not and that Bauer’s was being treated disparately. Mr. Casas intimated at the June 7 meeting that the FPD recently inspected all other TSA tow companies and found that they all were in compliance with C -002 prior to the June 7, 2023 meeting. Honorable Flores asked the CAO to have the Planning Department inspect Bauer’s yard after discussion that Bauer’ s storage yard had a “paved” area therein. Counsel for Bauer’s agreed with such inspection, however the Planning Department did not physically set foot on Bauer’s yard. (See Pars. 4 and 5 to the Declaration of Bradley K. Boulden attached heret o as Exhibit D.)
Bauer’s has evidence that other FPD TSA towing companies who were approved under C- 002 in 2011 (based on a grandfathered status). and who are on the FPD TSA, would not pass C - 002 without that grandfathering. That grandfathered status is confirmed by Section 1 of the Policies C-002, which benefit all tow companies (including Bauer’s) who have been established prior to January 24, 2006. The FPD/Planning Department now intends to hol d Bauer’s to a different standard than it applies to all other TSA towing companies regarding C -002 approval and “re - inspections.” Shockingly, the FPD continues to allow such towing companies to remain on the TSA and be invited to a new TSA —demonstrating the disparate treatment that violates relevant Equal Protection Class of One standards.
The FPD, with animus and bias against Bauer’s, only inspected Bauer’s for the purpose of C-002 compliance to “reinstate” it, despite the fact that Bauer’s is informed and believes that the FPD (as of the time the FPD claimed Bauer’s did not comply with C-002) had not C-002 inspected any other TSA towing companies, including Bauer’s, for the 2014 TSA, 2018 TSA, or any of the extensions thereto through 2023 until as provided herein.
RELEVANT UNDERLYING FACTS GIVING RISE TO ADMINISTRATIVE HEARING
OFFICER APPEAL
Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
1) Bauer’s has been owned and operated by Ed and Sharon Mason (Ed’s wife) as a towing company since on or in 1984, and Bauer’s has participated in the FPD’s TSA continuously as an approved towing company for FPD vehicles since at least 1987—over 33 years prior to the instance giving rise to this appeal.
2) Around 6:00 am or so early morning on December 28, 2020, Ed and Sharon’s son, Grant Mason, who lives on the adjacent property owned by Grant’s grandmother (Sharon’s mother) and separated by a greater than six-foot fence to the West of Bauer’s FPD towing yard, called his father Ed and said that he heard someone inside Bauer’s yard. Ed gave permission to Grant to jump the yard fence—because Grant had no key to the property and was not an employee or allowed to be on the property without Ed’s permission—to fl ush a trespasser from the South to the North, towards Ed at the fence on the Northwest part of the storage yard. The FPD was called and the goal was to have the assailant arrested.
3) The trespasser jumped the fence and started a physical altercation with Ed, who was trying to contain him until the FPD arrived to arrest the trespasser. Grant, a prior felony in felon, and unbeknownst to Ed or Sharon, had a .22 rifle that he fired at the trespasser. The trespasser fled and was never caught. The FPD crime unit commenced an investigation.
4) It should be noted that all possible charges against Grant for this underlying matter (felon in possession of a firearm) were dropped, and Grant’s actions were ruled justified defense of another ( his father). Grant was also already in the process of having his prior felony expunged as it occurred almost ten (1 0) years prior in 2021. Grant’s felony record has since been expunged.
5) The FPD Tow Unit suspended Bauer’s over two weeks after the incident on January 13, 2021, and the FPD Tow Unit terminated Bauer’s on February 3, 2021, over one month after the incident. The reason for the termination was that the FPD Tow Unit alleged that Grant Mason was an “employee” of Bauer’s and not approved to work for Bauer’s per the TSA requirements. The Tow Unit wrongfully concluded this, however, without interviewing Bauer’s and after refusing to meet with Bauer’s despite Ed’s letters to the FPD requesting a meeting to discuss the fact that Grant was not in any way affiliated with, or an employee of, Bauer’s. Bauer’s counsel also requested meetings with the FPD Tow Unit and CAO after Bauer’s was terminated, but the FPD refused. Bauer’s appealed this matter in or around February 19, 2021 (“First Appeal”).
6) There were many delays in this matter , consisting of the FPD’s alleged continued crime unit police investigation (not the Tow Unit’s) that in fact concluded within two weeks of the incident (not months as was alleged by the Tow Unit), COVID preventing an in-person appeal, a back -log of cases before the IHO, and the FPD Tow Unit terminating the first appeal hearing on March 10, 2021, due to the fact that it was not ready to proceed and would not stipulate to facts already in evidence (therefore requiring a continued hearing 20 days later).
Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
7) At the end of the hearing for the first appeal in this matter on or about March 29, 2022, the FPD and City Attorneys stated that a required 2022 one (1)-page extension to the expiring 2018 TSA, would not be offered to Bauer’s in April 2022, even if it prevailed in the First Appeal.
8) Bauer’s won the first appeal, as well as an award for attorneys’ fees and costs against the City of Fresno in the IHO’s May 24, 2021 Decision and Order (“First D&O”) . Grant Mason was found not to be a Bauer’s employee. There was in fact testimony through the declarations of three (3) separate business employees how Grant Mason had informally (and without compensation) served as a watchdog. His attentiveness to potential criminal conduct benefitted T-Mobile, PG&E, and Party Rentals, in addition to Bauer’s, as persons at each facility testified via a declaration how Grant called the police and /or called these employees if/when he heard or saw persons break into their respective businesses.
9) The statement in paragraph 7 above laid the groundwork, however, as t he FPD—rather than comply with the First D&O, and with a continued bias and animus against Bauer’s, failed to offer the extended 2018 TSA to Bauer’s after Bauer’s prevailed at the Second Hearing Officer Appeal. This was despite the fact that the FPD promised to and did offer its TSA and extensions to every company on rotation at the end of every year to the next through prior TSA’s.
10) This gave rise to Bauer’s filing a second appeal, which was also concluded by the IHO in Bauer’s favor on or about March 30, 2023, another ten (10) months after the First Appeal.
The IHO again awarded Bauer’s attorneys’ fees and costs against the City and found that Bauer’s was required to be “REINSTATED” to the current and future TSA within fourteen (14) days, as set forth above.
11) Bauer’s passed every hurdle placed in front of it by the FPD. One issue remained according the FPD—whether or not Bauer’s passed the C -002, which Bauer’s passed in 2011 and should not have been revisited given that Bauer’s remained towing vehicles, even for law enforcement agencies such as the California Highway Patrol (“CHP”), during all times since it was suspended and terminated in January 2021. And, the FPD was aware that Bauer’s continued to operate for the CHP and other law enforcement during this time.
12) This should never have come to pass, as the FPD Tow Unit and Planning Department both knew that Bauer’s passed C-002 in 2011, as witnessed by the facts previously established above.
VIOLATIONS OF EQUAL PROTECTIONS CLAUSE OF US CONSTITUTION
13) The FPD and the Planning Department have violated equal protection clause claim brought by a “class of one ” (Bauer ’s) of the US Constitution (and California constitution) by Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
intentionally treating Bauer ’s differently than other FPD TSA towing companies by applying the standards of C-002 in an arbitrary and unequal fashion—with no rational basis for the treatment. Although “class of one” claims do not require proof of animus, the FPD has demonstrated clear animus against Bauer’s and attempted to dig in its heals to prevent Bauer’s from returning to the TSA —despite twice losing attorneys’ fees and costs to Bauer’s of at least $77,000.00, and continuing to operate in violation of Honorable Flores’ March 30 D&O wherein the FPD was ordered to reinstate Bauer’s within fourteen (14) days.
14) Proof of violating the Equal Protection Clause can be brought by a “class of one” (Bauer’s) because the facts demonstrably show that the FPD and Planning Department have intentionally treated Bauer’s differently than other towing companies similarly situated and participating on the FPD’s TSA—and that there is no rational basis to do so, thus proving even animus and bias against Bauer’s.
BIAS AGAINST BAUER’S AND EVIDENCE OF INTENTIONAL LY TREATING BAUER’S DISPARATELY, THEREBY EVIDENCING VIOLATIONS OF U.S.
CONSTITUTION EQUAL PROTECTIONS CLAUSE PROTECTIONS OF A “CLASS OF ONE”
The following towing businesses have been on the FPD TSA as rotational tow list towers since prior to 2011 and through present, just as Bauer’s was prior to the time it was terminated.
Bauer’s is informed and believe that none of these towing yards were investigated for C -002 compliance since they passed C -002 in 2011 until sometime in or about May or June 2023, after Bauer’s counsel informed the City Attorneys Office and the IH Officer that TSA FPD towing companies similarly situated as Bauer’s with regarding to passing C -002 by the City and having tow yards with the same issue Bauer’s allegedly had according to the Planning Department.
I believe that the FPD ’s animus and unfair application of C -002 towards Bauer ’s is a violation of constitutional Equal Protection Clause claims that can be brought by a “class of one” (Bauer’s) due to passing the following companies and allowing them to remain at all times C-002 compliant while Bauer’s allegedly failed C-002 according to the Planning Department and FPD .
Bauer’s asserts the companies below are preferred and /or treated differently and/or have had C- 002 applied differently by the FPD/ Planning Department —not to show that these companies violate C-002.
The companies below also were “grandfathered” in , like Bauer ’s, in 2011. The FPD continues to allow these companies to remain on the TSA and tow for the FPD when the Planning Department and FPD: 1) denied Bauer’s reinstatement due to Bauer’s lot allegedly being not being “paved”, and these overflow lots below are also, Bauer’s is believed and informed, not “paved”; and 2) allegedly had the FPD inspect lots for C-002 approval after March 30, 2023:
Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
1. Romo’s Towing. I am in formed and believe that this FPD TS A towing company, which has been towing on the FPD TSA since at least 2010 to the present, has a primary lot and an overflow lot where it stores FPD tows. I am informed and believe, after driving by and looking at the property, as well as revi ewing the Google Earth images from November 5, 2023, that the image with the “O/F” drawn to illustrates an overflow dirt lot that Bauer ’s believe doe s not pass C -002. (See Exhibit F , Declaration of Edward Mason, Par. 8.)
2. Ray’s Towing. I am in formed and believe that this FPD TS A towing company, which has been towing on the FPD TSA since at least 2010 to the present, has a primary lot and an overflow lot where it stores FPD tows. I believe, after driving by and looking at the property, as well as reviewing the Google Earth images from November 5, 2023, that the image with the “overflow” drawn to it illustrates an overflow dirt lot that Bauer’s believe also does not pass C-002. A second image is also included that Bauer’s captured showing that Ray’s Towing does have the required “slats” or fence coverings required by C-002, paragraph 3.b.—the same requirement that the FPD made Bauer ’s comply with after March 30, 2023 (See Exhibit F, Declaration of Edward Mason, Par.
9.)
3. D & K Towing. I am in formed and believe that this FPD TS A towing company, which has been towing on the FPD TSA since at least 2010 to the present, has a primary lot and an overflow lot where it stores FPD tows. I believe, after driving by and looking at the property, as well as reviewing the Google Earth images from November 5, 2023, that the image with the “overflow” drawn to it illustrates an overflow dirt lot that Bauer’s believe also does not pass C -002. (See Exhibit F , Declaration of Edward Mason, also Par. 9.)
4. Reyna Towing. I am in formed and believe that this FPD TS A towing company, which has been towing on the FPD TSA since at least 2010 to the present, has a primary lot and an overflow lot where it stores FPD tows. I believe, after driving by and looking at the property, as well as reviewing the Google Earth images from November 5, 2023, that the image with the “overflow” drawn to it illustrates an overflow dirt lot that Bauer’s believe also does not pass C -002. (See Exhibit F , Declaration of Edward Mason, also Par. 10.)
5. Nelly’s Towing. I am in formed and believe that this FPD TS A towing company, which has been towing on the FPD TSA since at least 201 0 to the present, as per the image provided, shows that Nelly’s Towing does have the required “slats ” or fence coverings required by C -002, paragraph 3.b. (See Exhibit F, Declaration of Edward Mason, Par. 11.)
6. Kevins Towing. I am in formed and believe that this FPD TS A towing company, which has been towing on the FPD TSA since at least 2010 to the present, has a primary Douglas T. Sloan
City Attorney
Fresno City Hall
February 12, 2023
lot and an overflow lot where it stores FPD tows. I believe, after driving by and looking at the property, as well as reviewing the Google Earth images from November 5, 2023, that the image with the “overflow” drawn to it illustrates an overflow dirt lot that Bauer’s believe also does not pass C -002. (See Exhibit F , Declaration of Edward Mason, also Par. 12.)
Bauer’s is informed and believe there are other companies that also were in existence towing prior to 2010 for the FPD TSA that were/are in violation of C -002 at all relevant times herein, however, due to time constraints and Mr. Mason struggling to care for his sick wife, only the above-mentioned are set forth herein.
THE CITY OF FRESNO HAS WAIVED ITS RIGHT TO CLAIM BAUER ’S DID NOT PASS C-002, AND FRESNO MUNICIPAL CODE SECTION 15-5010A, AS WELL AS THE C-002 APPROVAL LETTER DEMONSTRATE THAT BAUER’S PASSED C-002 IN 2011 AND THEREFORE BAUER’S C-002 PASSING SHOULD NOT BE DISTURBED.
Bauer’s again asserts all such claims alleged in this Appeal, related to “waiver ” claims, equitable claims such as latches and the l ike, and those in t he Fresno Municipal Code, including those in Sections 15-5010 A.
CONCLUSION
Bauer’s based its appeal and requests the redress sought herein based upon the Appeal, underlying Zoning Inquiry, and the entire file submitted herein, which includes the entire file submitted to the Planning Department , Planning Commission, and the entire file from the underlying Administrative Hearing appeals , which although are not necessary to conclude this matter by the Planning Commission, could be necessary to Bauer’s should a writ of administrative mandate or other civil action necessitate filing following this matter. This file will be provided as a jump drive due to the size of the documents.
Sincerely,
Bradley K. Boulden
BKB:ivs
EXHIBIT “A”
EXHIBIT “B”
EXHIBIT “C”
EXHIBIT “D”
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
DECLARATION OF BRADLEY K. BOULDEN
IN SUPPORT OF BAUER’S AUTO WRECKING
AND TOWING’S PLANNING COMMISSION APPEAL,
APPEAL NUMBER P23-03471
I, BRADLEY K. BOULDEN, declare as follows:
1. I am over the age of 18 and a resident of California. I have personal knowledge of the following facts and could testify competently to them if called to do so. The facts set forth herein are personally known to me and, unless otherwise noted, are based on my firsthand knowledge and/or observation.
2. I am an attorney licensed to practice law in the State of California and counsel for Bauer’s Auto Wrecking and Towing (“Bauer’s”).
3. Attached hereto as “Attachment 1” is a true and correct copy of the email I sent to Phillip Siegrist of the Planning Depar tment on or about May 12, 2023. The entire email is relevant to t his Appeal , and the highlighted portions there specifically relevant to the issues discussed in Bauer ’s Supplemental Communi cation to the Planning Commission, Appeal Number P23-03471. Mr. Siegrist did in fact intimate the comments highlighted therein at a May 10, 2023 meeting between Mr. Siegrist, Mr. Ed Mason, and Bauer’s counsel.
4. On or about June 7, 2023, a meeting between the CAO, Honorable Flores, and Bauer’s counsel occurred. Deputy City Attorney, Dan Casas, when asked by Honorable Flores, stated that he had recently instructed Officer Richards to inspect every TSA towing company for C-002 compliance due to the fact that Bauer’s counsel recently intimated that if Bauer’s was not in C-002 compliance, other towing companies were also not and that Bauer’s was being treated disparately. Mr. Casas intimated at the June 7 meeting that Dalan Richards from t he FPD recently inspected all other TSA tow companies and found that they all were in compliance with C-002 prior to the June 7, 2023 meeting.
5. Additionally at the June 7, 2023 meeting, Honorable Flores inquired with the City Attorneys to have the Planning Department inspect Bauer’s yard after discussion that Bauer’s storage yard had a “paved” area therein. Counsel for Bauer’s agreed with such inspection
ATTACHMENT “1”
EXHIBIT “E”
EXHIBIT “F”
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
DECLARATION OF ED MASON
IN SUPPORT OF BAUER’S AUTO WRECKING
AND TOWING’S PLANNING COMMISSION APPEAL,
APPEAL NUMBER P23-03471
I, EDWARD MASON, declare as follows:
1. I am over the age of 18 and a resident of California. I have personal knowledge of the following facts and could testify competently to them if called to do so. The facts set forth herein are personally known to me and, unless otherwise noted, are based on my firsthand knowledge and/or observation.
2. I am an owner of Bauer’s Auto Wrecking & Towing (“Bauer’s).
3. Attached hereto as Attachment 1, are three (3) true and correct cop ies of aerial images I had taken of Bauer ’s subject vehicle storage lot on or about November 28, 2023. These images show Bauer’s lot—with base rock removed—clearly indicate a “paved” area compared to an image set forth in Paragraph 4 below. T he other images in Attachment 1 show the “paved” portion of Bauer’s lot is at least 5,000 square feet (5,700 square feet and up to and possibly larger than 6,800 square feet).
4. Attached hereto as Attachment 2, is a Google Earth photograph of Bauer’s subject vehicle storage lot dated November 5, 2023, wherein this image seems to not delineate a “paved” area, and may appear as if the entire subject storage lot is a dirt or base rock-laden lot. This is because I added base rock to the storage yard area where I was instructed to do so by Planning Manager Michael Sanchez, as needed, after August 5, 2011.
5. Attached hereto as Attachment 3 is a true and correct copy of the relevant pages of Honorable Independent Hearing Officer’s Decision and Order dated March 30, 2023
6. Attached hereto as Attachment 4 is a true and correct copy of the relevant pages of the 2018 FPD Tow Service Agreement.
7. Attached hereto as Attachment 5 is a true and correct copy of the relevant pages of the 2011 FPD Tow Service Agreement.
8. Attached hereto as Attachment 6 are a true and correct copy of a Goo gle Earth image and personal photograph I took of R omo’s Towing. Romo’s Towing is an FPD TSA tow 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
company dating back to at least 2010. I am informe d and believe that t hese photogr aphs illustrate that R omo’s has an overflow lot that seems to be dirt and/or out of C -002 compliance as indicated by the “O/F” mark thereon.
9. Attached hereto as Attachment 7 are a true and correct copy of a Googl e Earth image and personal photograph I took of Ray’ s Towing (2 photographs total). Ray’s Towing is an FPD TSA tow company dating back to at least 2010. These photographs illustrate that Ray’s not only has an overflow lot that seems to be out of C -002 compliance (dirt and not paved), but also fails to have required fencing “ slats” or the like to hide the FPD towed vehicles from view required in C-002, paragraph 3.b. therein. Photograph 2 of Attachment 7 also illustrates that D & K Towing has the same issue as Ray’s Towing—an overflow lot that seems to be out of C- 002 compliance (dirt and not paved).
10. Attached hereto as Attachment 8 is a true and correct copy of a Googl e Earth image dated November 5, 2023 of Reyna Towing. Reyna Towing is an FPD TSA tow company dating back to at least 2010. I am informe d and believe that these photographs illustrate that Reyna’s has an overflow lot that seems to be dirt and/or out of C-002 compliance as indicated by the “O/F” mark thereon.
11. Attached hereto as Attachment 9 is a photograph I took of Nelly’s Towing on or around November 5, 2023. Nelly’s Towing is an FPD TSA tow company dating back to at least 2010. Like R ay’s Towing, as of th e date of this photograph, Nelly’s was not forced to comply with C-002, paragraph 3.b., requiring its fence and the vehicles therein to be covered from the public’s view.
12. Attached hereto as Attachment 10 a true and correct copy of a Google Earth image dated November 5, 2023 of Kevin’s T owing. Kevin’s Towing is an FPD TSA tow company dating back to at least 2010. Like Ray’s Towing, as of the date of this photograph, Kevin’s was not forced to comply with C-002, paragraph 3.b., requiring its fence and the vehicles therein to be covered from the public’s view.
/ / /
/ / /
AT
TACHMENT “1”
ATTACHMENT “2”
ATTACHMENT “3”
ATTACHMENT “4”
ATTACHMENT “5”
ATTACHMENT “6”
ATTACHMENT “7”
ATTACHMENT “8”
ATTACHMENT “9”
ATTACHMENT “10”
EXHIBIT “G”