Safe Space served a Notice of Code Violation for their operation at 7-11 downtown.

The claim a "use by right" but the City does not agree

The Chico ER has a first-page story about this in this morning's paper. https://www.chicoer.com/2023/12/19/safe-space-receives-notice-of-code-violation-for-intake-center/

Let me fill in some details.

The 7-11 building was sold to a development LLC out of Newport Beach, an entity of the Theide Family Trust.  This is the same LLC that owns Stoble Coffee Roasters, the coffee shop across the street from the Plaza. I first got a taste of their politics when they refused to host a “Coffee with a Cop” event in their store, citing that their customers and employees would be uncomfortable with that.  It’s their business, but I stopped going there after that.

Each year, the City of Chico pays Safe Space $50,000 to operate warming and cooling centers. You may remember the disastrous attempts by the city to operate a warming tent in Depot Park.  They eventually moved it to Comanche Creek, and it turned into a drug shoot house, made famous by the OD death of 22-year-old Audrey Parker in May of 2022.

After that, Safe Space was contracted to operate it or something similar, and they seemed to do a better job than the city did.

Regarding the announcement of the code violation, Safe Space Executive Director Hilary Crosby says she consulted with experts in land use, one of whom I had exchanges with on Chico First, and they were advised their organization had an entitlement to a “use by right” under the Temporary Use Ordinance in the Chico Muni Code. (https://codelibrary.amlegal.com/codes/chico/latest/chico_ca/0-0-0-15234#JD_Chapter19.22)

The abuse of that code has a long history, but let me begin with the “legitimate” use of it by Safe Space.

For those of you who may not know, Safe Space operates a winter shelter program. They rely on the charity of local churches, who agree to host Safe Space for a short period (not more than 27 days in any one location.)  This is legit because every church is a fully compliant “meeting hall” and is permitted for gatherings in their facility.  As long Safe Space keeps to the rules of the ordinance, it is within the right of the Church to permit them temporary use of their facilities.

But that same statute has a long history of abuse.  Let me remind you of a couple.

Remember Orange Street Shelter?  That is a vacant commercial building next to the train depot near Depot Park.  After the Camp Fire, Walmart “donated” $1M to the Jesus Center to open a shelter, so that the encampment that had grown up in their parking lot could be cleared.  I was opposed to that location, as were many of the business and apartment owners nearby. 

I learned that they were working with our planning department to designate this project as a “temporary use” and permit significant remodeling and a permanent operation to exist under the misuse of this ordinance. The purpose of the ordinance, for example, is to allow a high-school girls’ volleyball team to hold a car wash in a parking lot.

I was working with landlords who were planning to sue the city if they issued a permit (or determined the operators had a “use by right” so no permit was required).  As luck would have it, Gail Hutchinson, then President of CSUC, wrote a letter in opposition, and I guess it just became too steep of a hill to climb, and the project was abandoned.

But that wasn’t the last of it.  You may remember a project proposal called Simplicity Village.  It was a CHAT project that proposed placing a bunch of “tiny homes” on a commercial property on Notre Dame, across from Payless Lumber and other businesses.  You may recall this property as one of the first out-of-control homeless camps, deceptively run by a tenant, Joel Castle, who leased the property to raise goats or something and turned it into an illicit squatter settlement.  Because it was private land, and the landlord was reluctant to intervene, at least at first, it took the city about a year to get it cleared out.

CHAT took a lease option on the same property from the same owner, Ted Ball, to build Simplicity Village.  Because my client was suing CHAT and the City to stop it, I learned quite a lot about how this city operates, sometimes.  Mark Orme, our then City Manager, was apparently a proponent of the project behind the scenes, and directed Chris Constantine, the Assistant City Manager, and Branden Vieg, the Community Development Director, to “find a way” to make this project work.

First, they tried to apply the Shelter Crisis statute, already in place at the time, to private land in which the City had no controlling interest. City control is a hard-line requirement of any project under the Shelter Crisis law.  In discovery during the lawsuit, we found an email from Chris to CHAT saying that he had “found a way” to make the project work.  Was he functioning as a project manager for CHAT with City resources?  The solution was tapping the Temporary Use Ordinance. By doing so, no permits, pubic notice, CEQA compliance, and all the other trappings of any other project would be required.  The city was even kicking in sewer fees and other costs for free (to CHAT).

Brandon Vieg issued a Director’s finding, concluding that the project was a “similar use” under the statute, and permanent roads, water, power, a permanent building on a foundation, and several “tiny homes,” 44 I believe, all qualified as a “temporary use.”

The city was sued.  Before it went to trial, but after CHAT graded the project site without a permit and was cited for that and destroying Federally protected Elderberry bushes, the city settled and withdrew the project.

This latest episode with the 7-11 building is the latest gambit to use the car wash ordinance to bypass all regulations for land use, including the requirement for notice and public hearings, as is standard for any other project.  TC Chico Developments, LLC in Newport Beach, the current owners of the 7-11 building, knows this full well. I understand they have plans to demolish the 7-11 building and put something new in that location.  I wonder what it will be? We are required to be notified in advance.

The building is in the Downtown North district, a special land use zone encompassing the downtown business district.  As far as a vision for downtown goes, I doubt that a processing, storage, and transportation hub for a shelter operation is on the table.  Certainly, it is not a car wash for a softball team.

For the legally inclined.

While I’m at it, let me deal with the one part of the temporary use ordinance that causes the most problems. The first part lists activities allowed as “use by right,” meaning no permit is required.  Paragraph D reads:

“D. Emergency Shelters. Temporary emergency shelters shall be permitted in any zoning district for a maximum of 27 days in any 90-day period, provided that the facilities are approved by the City Building Official and Fire Marshal prior to use, and provided that no other emergency shelter is operated within 500 feet during the same 90-day period.”

Call me a stickler for details, but the word “emergency” is not there just for window dressing. If you take that word out of the ordinance, then any shelter, like Safe Space operates, qualifies.  So, the legal interpretation of the “use by right” turns on what is meant by “emergency,” which appears three times in the paragraph.

Consulting the American Heritage Dictionary, we find that an emergency is “a serious situation or occurrence that happens unexpectedly and demands immediate action.” The Camp Fire of 2018 seems to qualify.  Even so, we see that emergencies may come, but they also go.  An emergency is a catastrophic event, not something that persists over years and years.

Now the homeless advocate community, and certainly the principles of Safe Space, would argue that living on the streets is an emergency that requires immediate action.  Is that true?  If it were true, how could anyone persist in living on the streets?  If they are not sheltered immediately, what happens?  What happens to those who do not seek or do not qualify for Safe Space?  Acceptable casualties of a failed emergency response?  Does the condition of homelessness, as we witness it every day, gradually disappear, or does it persist over time, year after year?  If homelessness is an emergency, why doesn’t it ever end?

While it is true that individuals living on the streets can constitute an emergency, we keep our paramedics pretty busy responding to those calls for service.  They are called “emergency first responders” for a reason.  An acute, life-threatening condition requires an emergency response.  Even there, the emergency eventually ends one way or another.

Shelter is better for any person than no shelter. Agreed.  But as the old joke goes, a Rabi was given a wish by God, and the Rabi said he wanted to win the lottery. Several weeks pass by without winning. The Rabi appeals to God, “You Promised!” God speaks to him from the heavens: “Rabi, help me out. Buy a ticked.”

While people tend to be compassionate and empathetic to the suffering of others, to at least some extent, responsibilities cut both ways.

Not to be crass, but just to illustrate a point, how many parents out there have ever had your toddler just go limp as a protest to you making them do something or go somewhere they didn’t want to?  There you are, holding a tiny hand firmly enough to drag them along, a whining, squirming 30-pound lump, as you try to work your way through the mall. What kind of parent lets their child win that contest?

Have you ever heard the advice that if your child threatens to hold their breath until they turn blue, let them?  It is not an emergency.  To all those I have just offended, it’s just an analogy.  Relax.

We sometimes go along with things because we don’t know how to say no.  And if your child is not used to you saying “no,” when you do, all hell breaks out.

My commentary here is not aimed directly at the so-called “homeless” situation, though I’m certainly prepared to go there.  I am just using this little story to point out for the umpteenth time, we have a right to have nice things.  To have nice things, sometimes you have to say no to things that aren’t nice, aren’t fair, or aren’t proper.  If there is such a thing as “morally right and wrong,” then there is something called “moral courage,” the willingness to stand up for what is right. 

We don’t have to accept or act upon every argument, appeal to compassion, virtue signal, or sad story we are told.  Something can be both sad and wrong.  Is it so difficult to know the difference?