HomeMy WebLinkAboutMobile Home park Conversion Ordiance • LAW OFFICES OF
BEST BEST & KRIEGEF _P
May 7, 1998
MEMORANDUM
TO: Mayor Benson and Members of the City Council
City of Palm Desert
FROM: Dave Erwin, City Attorney,,
RE: Proposed Mobile Home Park Conversion Ordinance
Mayor Benson and Members of the City Council:
I agree with the previous Staff recommendation that Staff be directed to prepare
and submit to the Council an ordinance pertaining to the procedural aspects of conversion of
mobile home parks.
The Staff report sets forth the reasons and analysis and I believe it appropriate,
under the existing laws of the State, that the City Council should consider the creation and
adoption of an ordinance dealing with the procedural aspects of the conversion of mobile home
parks to a different use. I do not necessarily believe that the Westminster ordinance is the one to
be used but, between myself and the Staff, we would recommend the Council's consideration of
an ordinance covering the procedural aspects.
DJE/vcd
cc: Ray Diaz, City Manager
Sheila Gilligan, City Clerk
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PALM DESERT REDEVELOPMENT AGENCY n
INTEROFFICE MEMORANDUM I
DATE: APRIL 9, 1998
TO: CITY MANAGER, HONORABLE MAYOR AND MEMBERS OF THE
CITY COUNCIL
FROM: TERESA LA ROCCA, HOUSING PROGRAMS COORDINATOR
SUBJECT: PROPOSED MOBILE HOME PARK CONVERSION ORDINANC
RECOMMENDATION:
That the Council, by minute motion, direct staff to proceed with the preparation of
an ordinance pertaining to the conversion of mobile home parks.
BACKGROUND
The Housing Advisory Committee received a request from the Silver Spur Mobile
Home Park Association regarding a request for consideration of recommending the
adoption of an ordinance by the City Council pertaining to conversion of mobile
home parks similar to one adopted by the City of Westminster. As a result and at the
request of the Housing Advisory Committee, staff forwarded the Westminster
Ordinance to the City's legal counsel for review and advice as to legal liability to the
City, and the validity of the ordinance if adopted.
Helen Dreyer of Best, Best and Krieger prepared an analysis of the ordinance and
concluded that the City should consider the creation and adoption of an ordinance
similar to that of Westminster to enable the City to carry out the requirements of
Government Code Section §65863.7 and §65863.8 which requires the following:
"(a)... prior to closure of a mobile home park or cessation of use of the land as
a mobile home park, the person or entity proposing the change in use shall file a
report on the impact of the conversion...upon the displaced residents of the park
{park)...the report shall address the availability of adequate replacement housing in
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MEMORANDUM TO: CITY MANAGER, HONORABLE MAYOR AND MEMBERS OF
THE CITY COUNCIL
SUBJECT: PROPOSED MOBILE HOME PARK CONVERSION ORDINANCE
March 12, 1998
"(e) The legislative body or its delegated advisory agency, shall review the report,
prior to any change of use, and may require as a condition of the change, the person
or entity to take steps to mitigate any adverse impact of the conversion... on the
ability of displaced mobile home park residents to find adequate housing in a
mobile home park. The steps required to be taken to mitigate shall not exceed the
reasonable costs of relocation." {emphasis added.}
Hence, in order for the City to respond to the submittal of an Impact Report by a
developer or park owner, there needs to be a process in place to review and respond
to the report. Based on this, it is legal counsel's recommendation that an ordinance
be prepared and presented for adoption in response to the above cited government
code section.
REVIEWED AND CONCUR
C----- ,
_ W
TERESA L. LA ROCCA Executive Director, RDA
Housing Programs Coordinator ,,?
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City anager
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• BEST BEST & KRIEGER LLP
January 20, 1998
MEMORANDUM
TO: Teresa La Rocca, Housing Programs Coordinator
FROM: Helene P. Dreyer, Deputy City Attorney
RE: Request for review - Proposed Mobilehome Park Conversion
Ordinance
You have asked for our review and comment upon City of
Westminster Ordinance No. 2222 ("the Westminster Ordinance" ) which
was brought to the attention of the Housing Advisory Committee by
residents of the Silver Spur Mobile Home Park Association via
Councilwoman Jean Benson. You have also requested our
consideration of the probable effect if a similar ordinance were
adopted in the City of Palm Desert; and our review of the Palm
Desert Redevelopment Agency's current Policies and Procedures
regarding the conversion of mobile home parks.
Mobilehome conversion is an area of law that is highly
regulated by the State. In many respects, that regulation amounts
to preemption. However, there is some latitude for local
regulation and, with respect to relocation impacts, local agency
review is mandated. Therefore, at a minimum, an enabling ordinance
needs to be adopted to provide a procedure for the required review.
In adopting such an ordinance, however, we cannot recommend
verbatim adoption of the Westminster Ordinance for the reasons
outlined below. However, the Westminster Ordinance can be used as
a "starting point" for developing a conversion ordinance for use in
the City of Palm Desert .
I. EXISTING LOCAL REGULATION.
The City of Palm Desert Municipal Code currently regulates
mobilehome parks via Chapter 9 .50 [Mobile Home Park Rent Review]
and Chapter 25.22 ER-1-M Single-Family/Mobile Home Residential
District) . Except for the limitations upon conversion to other
uses which zoning may present and/or limitations of rent control,
neither of these Chapters significantly impacts the actual
conversion process or scheme.1/
1/ In adopting a new ordinance, care must be taken not to use the
definitional scheme of Chapter 9.25 - which applies only to rent
control vis a vis the park owner as lessor and the owner of the
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You have also requested our "review of the current policies
and procedures regarding conversion of mobilehome parks. " The only
such document you have submitted to us is the Redevelopment
Agency' s "Policies and Procedures Regarding the Conversion of
Mobile Home Parks to Resident Ownership" ("the RDA Policies" . )
The RDA Policies govern the provision of financial aid where
a conversion to resident ownership is sought. On the whole, the
policies are not objectionable./ They establish guidelines for
the conditions upon which financial aid might be granted and
further a stated goal to encourage conversion to resident ownership
in order to increase affordable housing.
In relation to the Westminster Ordinance and/or the issue of
ordinance adoption in the City of Palm Desert, however, it musL be
noted that the RDA Policies apply only to conversion of mobilehome
parks to resident ownership and only to standards governing
financial aid. They do not set forth a process for conversion to
residential ownership and do not apply to conversion of parks to
any other use. Therefore, the RDA Policies would be largely
unaffected by the adoption of an ordinance similar to the
Westminster Ordinance unless specifically incorporated therein.
(If there are additional policies applying to such alternate
conversions, please submit them for review prior to adoption of any
ordinance. )
II. THE WESTMINSTER ORDINANCE.
The Westminster Ordinance is not directed at issues of zoning
or rent control . Rather, it concerns itself with the conversion of
existing mobilehome parks "to any other use of land. . . or a change
in the form of ownership of all or any portion" of the park.
(Westmin. 17 . 59.10 (H) [defining "Mobilehome Park Conversion"] . )
Essentially, it provides a scheme whereby notice must be given of
intent to convert, an impact report prepared, public hearing, and
relocation reimbursement imposed upon the "owner and/or applicant"
prior to approval of a conversion permit .
Our review of this ordinance has revealed several areas of
significant concern and/or inconsistency.
mobilehome as lessee. Thus, for example, "tenant" is defined in
the rent control regulation as "an owner of a mobile home, " (P.D.
Munic. C. 9 .50. 20 (J) ) , whereas (as discussed below) a distinction
must be made in a conversion ordinance between "owners" and
"residents" of those mobi_lehomes.
.! Please note that the final section of the RDA Policies contains
several type-o' s which you may wish to correct when you have the
opportunity, particularly in the bolded paragraph beginning with
"It shall further be the policy. . . " , as well as subparagraph (3)
thereunder.
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A. SEVERAL DEFINITIONS ARE TOO BROAD OR AMBIGUOUS.
1. •Applicant• .
Section 17.59 .010 (A) defines "Applicant" for a conversion
permit as any "person(s) , firm(s) , entity(ies) or corporation(e)
applying for a conversion permit for the purpose of converting,3
changing to another use, closing or ceasing to use land as a
mobilehome park. "
By this broad definition, any resident of a mobilehome park
could initiate a conversion application process and that process
could arguably be completed without any consent of the park owner.
(Note also the distinction later made that the "park owner and/or
applicant" is responsible for paying relocation costs (sec.
17. 59.50) . )
This is admittedly an extreme example. However, consider that
a mobilehome park resident has submitted the Westminster Ordinance
in hopes of its adoption. Whether that resident' s motivation was
the desire to see a notice and relocation provision adopted, or the
mistaken belief that such an ordinance would enable residents to
force a conversion against the wishes of the park owner, is not
clear.
Furthermore, it is a problem easily avoidable by fine tuning
the definition of "applicant" in any statute adopted. A
Westminster Deputy City Attorney closely involved with the adoption
of the Ordinance has indicated that this provision was worded
broadly with the intent of including prospective park
purchasers/developers in the group of those authorized to commence
a conversion application. Changing the wording used by Westminster
to "park owner, or any person with the written consent of the park
owner" would both alleviate our concerns and avoid misleading
residents, whi]e also meeting the developer/purchaser objective.
2 . "Comparable Mobilehome Park' .
Under the Westminster Ordinance, consideration must be given
to the existence and availability of "comparable mobilehome parks"
to which residents may be relocated and for which relocation an
"owner and/or applicant" may be held to pay relocation expenses.
However, "comparable mobilehome park" is defined (sec.
17. 59. 010 (C) ) with reference to parks "within a 50 mile radius" .
Given the geographic limitations of the Coachella Valley, this
distance is probably too large to be considered "comparable. "
3/ Pursuant to section 17. 59.10 (H) , "conversion" includes, but is
not limited to, closing or changing the use or ownership of a park.
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3. "Conversion Permit" .
Section 17 .59 .010 (E) defines "conversion permit" as that
issued "to the park owner" authorizing "the park owner" to
discontinue the use, while subsection (A) [discussed above) permits
any "person(s) " to apply for the permit . If the intent is to
permit developers and/or purchasers to initiate a conversion
process, consideration should be given to whether final approval
may tentatively issue before that applicant is the actual "owner. "
Conversely, if the permit may only issue to the "owner, " then the
broad definition of subsection A (virtually "any person" can apply)
makes no sense.
4. "Mobilehome Owner"
'Non-resident Mobilehome Owner"
"Resident"
Here is where the definitional scheme of the Westminster
Ordinance really begins to fall apart .
"Mobile home owner" is defined as the registered owner of a
mobilehome (sec. 17.59.010 (G) ) , and "Non-resident Mobile Home
Owner" as an owner that does not reside in the park. (Sec.
17.59 . 010 (p . )
However, the Ordinance also uses the terms "resident, "
"occupant" and "tenant" without defining or distinguishing those
terms, and no definitional provision has been made for "residents"
who are not "home owners. " Furthermore, the term "resident" is
not used in sections where logic dictates that "residents" should
have been included. The result of these inconsistencies may leave
"residents" who are not also "home owners" unprotected under the
Ordinance.
For example :
* Section 17.59 .025 prohibits the sending of any notices or
correspondence to "residents" concerning conversion,
except as required by the Ordinance, but then the
Ordinance never "requires" any notices to "residents" ;
* Many of the notices required need only be given to "home
owners" but not likewise to "residents" - even though
conversion impact upon the residents is a vital issue to
be considered in impact reports and at public hearing
(sec. 17.59.025) ;
* The Conversion Impact Report must contain "Occupant"
information; the names/addresses of persons "owning or
occupying" ; the total number of "residents" ; whether the
"residents" are "owners" or "tenants" ; and the length of
occupancy of the "current occupant" (sec. 17. 59. 030
(C) (1) , (2) ) ;
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* If the "residents" fail to cooperate in providing the
information required for the Impact Report, the City may
waive the requirement. No similar exemption is provided
for lack of cooperation from "home owners" , "occupants" ,
"tenants" or "current occupants", as distinguished from
"residents" . (Sec. 17 . 59 . 030 (C) (2) ) ;
* The Impact Report must also include a relocation
compensation plan, including plans to accommodate the
"home owners" of unrelocatable homes and the specific
benefits and options available to "home owners" , but
apparently not similar information as to the impact on
"residents" or "occupants" . (Sec. 17 .59 .030 (C) (4) ;
* The applicant or park owner is required to mitigate the
effects of the conversion on "displaced home owners" by
providing relocation compensation (sec. 17 .59 . 050 . )
These include not only the expense of relocating the
actual home, but also the cost of moving personal
belongings and a daily living allowance. (Sec .
17. 59. 050 (D) , (E) . )
However, expenses for moving personal belongings are
limited to the personal effects of the "home owner" - not
the "resident" . Furthermore, the daily living allowance
is calculated via consideration of the number of
"residents" or "persons residing" in the home, but
additional funds are provided for each person
"permanently residing" in the home; the allowances apply
only for each day "a home owner and cohabitants" are
without a home; and it the "home owner, " not the
"resident, " who is designated to actually receive the
daily living allowance and/or apply for an additional
allowance. (Id. )
Having thus so limited relocation compensation
entitlement to "home owners, " subsection 17 . 59. 050 (I)
then provides that a "non-resident homeowner" is not
eligible for any relocation compensation other than for
moving the actual home;
* Only "home owners" are entitled to receive a rent
differential on the basis of age or low income
(subsection (H) ) ; and
* Any notice to a "mobile home owner or resident" required
by the Ordinance is considered given so long as it is
provided to "one such owner" in the case of multiple
"owners. " It ignores "multiple residents" and implies
that one notice to one "home owner" is sufficient
regardless of the existence or number of "residents" .
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Likewise, any compensation expense payable to a "mobile
home owner" is deemed paid to all such "owners" when
given in full to one "owner. " (Sec. 17. 59. 010 (G) . )
Though not fatal, in many instances this lack of clarity
leaves the Ordinance difficult to understand and implement
correctly. By separately defining "non-resident home owner" , the
term "home owner" is probably intended to be limited to "resident
homeowners. "' However, even that distinction becomes clouded
when considering who is a "registered owner" ; who is an "occupant"
vs. a "resident" ; whether a "resident, " "occupant" or "homeowner"
is also a "permanent resident" ; and what to do with "residents" who
are not also "home owners" , regardless whether those "residents"
are thereby "tenants" or mere "occupants. " There is also the use
of the phrase "mobile home owners residing in their parks" in the
section on notification of rights (sec. 17.59. 090) , which negates
an interpretation that "mobile home owner" automatically means
"resident mobile home owner. "5'
In adopting any ordinance for the City of Palm Desert, careful
consideration must be given to developing clear definitions and an
unambiguous description of the rights to notice and reimbursement
of all such persons.
B. THE ORDINANCE IMPERMISSIBLY RESTRICTS FREEDOM OF SPEECH.
Section 17. 59.025 provides:
"With the exception of the notices required by this
ordinance and correspondence directly related to the
preparation of the Conversion Impact Report (CIR) , the
applicant shall not issue any arbitrary notices or letter
to the residents concerning the intention to convert or
close the Park. Such actions shall be considered
arbitrary if no application for conversion is filed with
the City within 30 calendar days thereafter. In the case
of such arbitrary action, the City shall notify the
applicant that a fine of $200 per day shall be
imposed. . , . "
See also City of Westminster Ordinance 2227 [establishing
Mobilehome Commission] which defines, for that purpose, "mobile
home tenant" , "tenant" and "resident" to mean "any person entitled
to occupy a mobile home dwelling unit pursuant to ownership thereof
or a rental or lease agreement with the owner thereof. (Sec.
2.61. 010 (D) .
V See, e.g. , Civil Code sec. 798.11 [mobilehome residency law]
defining "homeowner" as "p9.rson who has a tenancy in a mobilehome
park" ; and "resident" as ,shomeowner or other person who lawfully
occupies a mobilehome. %:
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As noted, above, "applicant" means "person(s) , firm(s) ,
entity(ies) or corporation(8) applying for a conversion permit . "
(Sec. 17. 59.010 (A) . ) All "applicants" are prohibited from issuing
any "notice or letter" that is "concerning the intention to convert
or close the Park" unless they also actually file an application
for conversion within 30 days. Violation results in the imposition
of a daily fine of $200 per day. This is clearly an impermissible
prior restraint upon the freedom of speech and would not survive a
Constitutional challenge.
Additionally, imposing such a restraint is unreasonably
impractical. The restraint essentially means that a developer
cannot investigate the willingness of park residents to permit
conversion without objection; strips any applicant of the
opportunity to investigate and attempt to address objections in
advance of application; prohibits homeowner associations from
canvassing the residents with respect to proposals for a buyout of
the park owner and conversion to residential ownership; restricts
the applicant' s ability to obtain an informed estimate of the
ultimate cost of conversion betore beginning the application
process; and essentially prohibits any advocation for or against
conversion unless and until the filing of an application will be
made within 30 days or never made. Thus, even if not
Constitutionally invalid, the restriction impedes efforts to effect
park conversion - including conversion to residential ownership -
and could result in needless initiations of the permitting process
(and waste of City resources) by persons undecided as to
conversion, but trying to avoid the running of the 30 days.
When questioned regarding this "no speech" provision, the
Deputy City Attorney for the City of Westminster indicated that the
provision was included to make clear exactly when the conversion
application process began and to avoid creating the impression
among residents that an application had been submitted.
Apparently, there had been many "false alarms" in the community.
However admirable Westminster' s goals, we do not believe their
solution withstands Constitutional scrutiny. Nor would altering
the provision to require that any communications indicate whether
an application has been filed likely be permissible. Instead, of
either option, we recommend establishment of a clearly defined
commencement indicator, such as the filing of a particular form.
In that way, both the public and staff may readily ascertain
whether an application has been commenced without impermissibly
restraining the free speech rights of park owners or others who may
wish to communicate with residents on the topic of conversion.
While that may result in a few "false alarm" calls to City Hall,
that is far less problematic than a constitutional challenge. (Nor
is the problem likely to be as widespread as that encountered in
Westminster, where mobilehome parks are apparently far more
prevalent. )
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C. THE ORDINANCE LEAVES MATERIAL ISSUES UNADDRESSED.
In addition to the definition/terminology inadequacies, the
Westminster Ordinance does not specifically address issues and/or
is otherwise problematic in the following respects;
* Does not address situation where all existing fixed-term
leases have expired and the applicant is seeking to
convert an unoccupied mobilehome park;
* Does not address the confidentiality and/or public
records accessibility of resident name/address
information. (See, e.q. , Govt. C. sec. 7060.4
[notification to public entity of intent to withdraw
accommodations subject to rent control, information
respecting tenant names/addresses to remain
confidential] ) ;
* The relocation compensation does not include
consideration of the value of loss of the leasehold (if
you prefer to include it) ;
* Where a home is determined to be "unmovable, " the
applicant and/or park owner is required to compensate the
home owner for the "appraised value" of the home.
However, to the extent the Ordinance empowers the park
owner to compel a premature end to the tenancy of a
homeowner/resident with an unexpired, fixed-term lease,
the city may be at risk of suit based upon allegations of
actual or inverse condemnation.
* The "daily living allowance" rates and the schedule for
advance payment of expenses may be unreasonable.
* The Ordinance requires park owners to give notice to all
"mobile home owners residing" in the park - yet another
use of undefined terminology that appears to conflict
with, or mean something different than, "resident",
"tenant" , "homeowner, " etc.
III. EXISTING STATE LAW REGULATION OF MOBILEHOME PARK CONVERSION.
Under the Westminster Ordinance, a "conversion permit" must be
obtained for any change of use or change in form of ownership for
a mobilehome park - in addition to any other required "change of
use" permits. (Sec. 17. 59 .020. ) The "change of use" includes
conversion to vacant land (non-use) and conversion to commercial
(non-residential) use.
The Westminster Ordinance is probably valid to the extent it
imposes a permitting requirement and imposes an obligation for
payment of relocation compensation regardless of the financial
circumstances of the persons being relocated (sec. 17.59 . 050) .
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However, its imposition of a one year waiting period (sec.
17. 59. 045 (6) ) following a denied application probably violated the
Ellis Act (discussed below. )
A. THE ELLIS ACT.
Ordinarily, an owner of residential real property has a near
absolute right to "go out of business" - that is, to discontinue
offering the property for residential tenancy - free from local
regulation designed to prohibit or restrict that. right. (Govt . C.
sec. 7060 et. seq. "Ellis Act" . )
The Ellis Act is preemptive in nature and was intended to
address "the plight of the landlord. " (Civil C. sec. 7060; Los
Angeles Lincoln Place Investors, Ltd. v. City_of Los Angeles (1997)
54 Cal.App.4th 53, 61 [legislative history of Act demonstrates
purpose to allow landlords to go out of residential rental business
by evicting tenants and withdrawing all units from market] . )
This right to "go out of business" applies even with respect
to rent controlled units, most residential hotels, rental of
historic landmarks, and local regulation designed to maintain
affordable and/or available housing levels . (See, e .g. , First
Presbyterian Church of Berkeley v. City of Berkeley 1997 WL 763210
(Cal .App. 1 Dist December 1997) ; Los Angeles Lincoln Place
Investors, Ltd. v. City of Los Angeles (1997) 54 Cal .App.4th 53;
Bullock v. City and County of San Francisco (1990) 221 Cal .App. 3d
1072; Channinq Properties v. City of Berkeley (1992) 11 Cal .App.4th
88; Javidzad v. City of Santa Monica (1988) 204 Cal .App. 3d 524; and
City of Santa Monica v. Yarmark (1988) 203 Cal.App. 3d 153 . )
However, the Ellis Act expressly states that it is not the
intent of the legislature to "alter in any way either [Govt. C. )
section 65863 .7 [Planning and Zoning] relating to the withdrawal of
'accommodations which comprise a mobilehome park from rent or lease
or [Civil Code sec. 798 .56 (g) ] relating to a change of use of a
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mobilehome park. "J [These statutes are together herein referred
to as the "mobilehome conversion statutes" . ]
The mobilehome conversion statutes, especially Civil C. sec.
798 .56, are intended to protect mobilehome tenants from arbitrary
eviction in recognition of the extreme cost and low practicality of
relocating mobilehomes. Thus, while the Ellis Act is directed
toward the plight of the landlord, the mobilehome conversion
statutes focus upon the plight of the tenant. (See, Keh v. Walters
[1997) 55 Cal .App.4th 1522, 1534 . )
B. MOBXLEHOME CONVERSION
[Govt. C. sec. 65863.7, 65863 .8]
Section 65863 .7 is applicable to charter cities (sub. (h) ) and
mandates that :
" (a) . . . prior to closure of a mobilehome park or
cessation of use of the land as a mobilehome park, the
person or entity proposing the change in use shall tile
a report on the impact of the conversion. . . upon the
displaced residents of the [park] . . . the report shall
address the availability of adequate replacement housing
in mobilehome parks and relocation costs. "
" (e) The legislative body, or its delegated advisory
agency, shall review the report, prior to any change of
use, and may require, as a condition of the change, the
person or entity to take steps to mitigate any adverse
impact of the conversion. . . on the ability of displaced
mobilehome park residents to find adequate housing in a
mobilehome park. The steps required to be taken to
mitigate shall not exceed the reasonable costs of
relocation. " [Emphasis added. ]
6/ Likewise, though preemptive to the extent it confers a right to
go out of business, the Ellis Act leaves some leeway for local
regulation: If property is subject to rent control, a public
entity may provide by ordinance (or by resolution subject to voter
referendum) that withdrawn accommodations later again offered for
accommodation shall be subject to rates and controls as if never
withdrawn and, if again offered within one year, subject to
additional tenant compensation and/or punitive damages. (Civil
Code sec. 7060 .2) ; if property subject to rent control, public
entity may require by ordinance (or by resolution subject to voter
referendum) that the owner notify the entity of intention to
withdraw accommodations (or intention to again offer) from rent or
lease and may require that notice contain statements under penalty
of perjury providing information on dumber, and names/addresses of
persons being displaced and applicable level of rent . (Civil Code
sec. 7060 .4 . )
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A public hearing concerning the impact report must be held if
requested by either the applicant or a tenant or homeowner. (Sec.
65863 .7 (d) . )
The local agency must provide the applicant, in writing,
notice of the provisions of Civil Code sec. 798 . 56 and any local
regulation affecting notices that must be given by the applicant to
tenants and mobilehome owners. A hearing on the impact report may
not be held until the applicant has submitted verification (in a
form specified by the local agency) that the residents and
mobilehome owners have been notified as required by law. (Sec.
65863 .8. )
C. MOBILEHOME RESIDENCY LAW
[Civil C. sec. 798.56]
Civil Code sec. 798.56 (g) is a portion of the Mobilehome
Residency Law and addresses change of use or discontinuance of a
mobilehome park via termination of tenancy. The Mobilehome
Residency Law is preemptive and also applies to long term leases,
which are exempt from local rent control regulation. (Civil C.
sec. 798.17 (b) ; Lake Cadena v. City of Colton (1998) 98 Daily
Journal D.A.R. 472, 473 . )
Some portions of the Mobilehome Residency Law apply only to
longterm leases. (See, e.g. , sec. 798 . 17 (b) ["rental agreements
subject to this section . . . (1) shall be in excess of 12 months'
duration. . . . "] . ) However, section 798 .56 appears to apply to all
types of "tenancies" in a mobilehome park, defined as "the right of
a homeowner to the use of a site within the park. . . . " (Sec.
798 . 12. )
Section 798 .56 (g) provides that a park owner may terminate or
refuse to renew tenancy based upon planned change of use provided,
inter alia, that :
1. Homeowners are given at least 15 days notice of
public hearing requesting permits for change of use and
provided a copy of the report required by Govt. C. sec.
65863 .7 [relocation impact report] ;
2 . Homeowners are provided 6 months notice of
termination of tenancy after all required permits are obtained
for change of use; or 12 months notice if no local change of
use regulation applicable;
3 . Notice of the proposed change (or of plans to apply
for a change) are provided to proposed homeowners.
In Keh v . Walters (1997) 55 Cal.App.4th 1522, 1535, the court
held that Civil Code sec. 798.56 and Government Code sections
65863 .7 and 65863 . 8 "were clearly intended to function together as
an integrated scheme . " Furthermore, the requirements of sec.
65863 . 7 "were not made dependent upon the enactment of a local
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ordinance and are not excused by the fact that the local ordinance
did not describe a particular filing and review process. . . . "
Regardless of the existence of an enabling ordinance, the person or
entity proposing the change cannot proceed until the local agency
has reviewed the impact report . (Id. at 1538.)
D. ABSENT FURTHER LEGISLATION OR COURT DECISION, THE
RESTRICTIVE MOBILEHOME CONVERSION STATUTES PREVAIL OVER
THE ELLIS ACT.
In Yee v. Escondido (1992) 503 U.S. 519, 112 S.Ct. 1522, 1528
- 1529, the U.S. Supreme Court held that the 1992 version of
California' s various statutes governing mobilehome park rent
increase and removal restrictions did not constitute a physical
taking because "the decision to use property as mobilehome park in
first instance was voluntary. " Commentators have maligned this
conclusion, as well as California' s regulatory scheme, stating, for
example, that:
"changes in [mobilehome park] land use just don't happen
in California. An elaborate zoning and regulatory
process must be negotiated. . . [and] in effect, the
[Mobilehome Residency Law] and rent control laws do not
' require' landowners to keep their land in the same use.
They 'only' say that you must pay a prohibitive tariff to
shift land use. " (R. Epstein, Yee v. City of Escondido:
The Supreme Court Strikes Out Again (1992) 26
Loy.L.A.L.Rev. 3, 18. )
In Channing Properties v. City of Berkeley (1988) 11
Ca1.App.4th 88, 100, the court determined that requiring a
landowner to pay relocation expenses for all displaced residential
property tenants (in this case, $148, 500 for 33 units) regardless
of the tenants' income status violated the Ellis Act by imposing "a
prohibitive price on the exercise of the right under the Act . "
The mobilehome conversion statutes likewise pose a high risk of
imposing a "prohibitive tariff" upon discontinuance as a mobilehome
park.
However, Charming did not involve a mobilehome park and few
cases have expressly addressed the interplay between the Ellis Act
(which is intended to favor the landlord) and the Mobilehome
Residency Law (Civil C. sec. 798.56) and mobilehome park
conversion/zoning regulations (Govt . C. 65863 ,7) , intended to favor
tenants and to consider the high cost of relocating mobilehornes.
According to Witkin:
"Unless there is an express provision to the contrary, it
must be conclusively presumed that the statute which is
enacted last or has the highest chapter number prevails
over a conflicting statute that was adopted earlier or
has a lower chapter number. (Govt . C. sec. 9605; see In
re Thierry S. (1977) 19 Ca1 .3d 727, 745, fn. 17 [highest
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chapter number rule manifests Legislature' s intent and
must be followed] . ) Witkin, Summary of Calif. Law,
Constitutional Law sec. 94 (c) ( ed. 199 . )
In this instance, the Ellis Act was enacted in 1985 via Senate
Bill 505, Chapter 1509. The language in Govt . C. sec. 65863 . 7
making it applicable to "closure of a mobilehome park or cessation
of use of the land as a mobilehome park" was also enacted in 1985,
but via Senate Bill 316, Chapter 1260 .
Thus, by virtue of the highest chapter number rule, ordinarily
the Ellis Act would prevail over the mobilehome conversion
statutes. However, as noted above, sec. 7060.7 (5) of the Ellis Act
expressly provides that it is not intended "to alter in any way"
either Govt . C. sec. 65863 .7 or Civil C. sec. 798.56 as they
pertain to withdraw of mobilehome park accommodations and changes
of use. Therefore, it cannot be "conclusively presumed" that the
Ellis Act prevails over the conversion statutes.
In June 1997, a California appellate court finally addressed
(albeit briefly) the interplay between the Ellis Act and the
mobilehome conversion statutes, concluding that the Ellis Act is
not controlling based upon section 7060.7. (Keh v. Walters (1997)
55 Cal.App.4th 1522, 1533. In so doing, the court stated:
"We agree with respondent that a park owner is entitled
to convert property used as a mobilehome park to another
use, or even to hold it as vacant land. And we are not
unsympathetic to the plight of the mobilehome park owner,
whose property rights are impacted by the various laws
and regulations affecting mobilehome parks. Regardless
of our views, however, our task as an intermediate court
of appeal is limited to interpreting and applying
existing law. " (Id. at 1533 . )
In sum, therefore, the Ellis Act does not invalidate the
(sometimes onerous) requirements of the mobilehome conversion
statutes. However, that does not mean that the Ellis Act is wholly
inapplicable. The one year waiting period imposed by the
Westminster Ordinance upon denial of an application, for example,
is probably still an impermissible prohibition/regulation by virtue
of the Ellis Act.
IV. CONSIDERATION OF THE WESTMINSTER ORDINANCE IN _ LIGHT OF
EXISTING STATE LAW.
A. THE WORDING OF THE ORDINANCE RESPECTING PAYMENT OF
RELOCATION EXPENSES SOMEWHAT IMPLIES AN AUTOMATIC
OBLIGATION TO PAY.
The Westminster Ordinance does properly state that ;
"The Planning Commission shall require (as a condition of
approval of the proposed conversion) that the park owner
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and/or applicant shall take all reasonable measures to
mitigate the adverse effects created by the change in
use. These measures shall be based on the ability of the
displaced home owners to find adequate replacement space
in another comparable mobile home park. [P] The
mitigation measures shall be limited to the payment of
relocation compensation as established herein. . . . " (Sec .
17.59 .50 . )
This language tracks the requirements of Govt. C. sec. 65863 .7
and, upon careful reading, is probably adequate. Nevertheless, it
is our opinion that the Ordinance lacks clarity in that, due to its
length and the overwhelming procedural detail contained in therein,
if a similar ordinance is adopted then Lhis section should be
amended to add an unequivocal statement making clear that
entitlement to reimbursement compensation is not automatic and that
the reason for the public hearing will be for the review of the
impact statement and the determination of precisely who will be
entitled to what amount.
B. DOES THE CITY OF PALM DESERT "NEED" A MOBIL,EHOME
CONVERSION ORDINANCE?
Yee. The City must enact an enabling ordinance to carry out
the requirements of Govt. C. section 658G3 .7 and 65863 .8 (review of
relocation impact report) .
The City may also wish to include a requirement for obtaining
a "conversion permit" (similar to the Westminster approach) . If
the park owner/developer does not need to obtain any "local
governmental permits" for a change of use of the park, then Civil
C. sec. 798.56 requires that the converting party provide
tenant/residents 12 months notice in advance of the conversion. If
local government permits are required, the notice period is
shortened to 6 months but begins to run after all required permits
have been approved. Without a conversion permitting requirement,
some conversions may not require an adds tional permit under current
City ordinances . (Discontinuance of the park for mobilehome
residency and reversion to vacant land, for example. )
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. PAIX DESERT CITY HALL / /./�ICIL ATTN; JEAN BENSON AND OTR OF THE BOARD
FAX NUMBER : 3 f o�. 5/ y_
SILVER SPUD IIp oW1 ETIS1 .ASSOCIATION r
INCoPOxEI
CI TAMER 824 or THE GOLDEN STATE MolUu uOMr_ OWNER'S LEAGUE, TNCORronATI
50-001 111GnIWAY 74, PALM DiSERI•, CALIFORNIA 92260
MAILING AnnRl5s: P.O. 13ox 4341, 1'AlM D1:SE•.irr, V;A 92261
' IMPORTANT
- MEETING: MAY 14 , 1998 BETWEEN 4: 00 - 5:00 P.M.
,I, ' .SORRY WE CANNOT BE MOPE DEFINITE AS TO THE TIME ! '
WNC:• CITY OF PALM DESERT- CITY COUNCIL
WHERE: CITY HALL CHAMBERS
WHY: CITY COUNCIL CONSIDERS (sometime between 4 & 6)
AN ORDINANCE SIMILAR TO ONE ADOPTED BY THE CITY
OF WESTMINISTER TO PROTECT THE RIGHTS OF MOBILE
PARK RESIDENTS TO MAINTAIN THEIR AREA AS A MOBILE
PARK. ,
WE HOPE TO, HAVE A GOOD TURNOUT TO SHOW OUR INTEREST! 1c u:
-t
REMEMBER THE DATE: MAY 14, 1998 BETWEEN 4 :00 & 6: 00 g�M,c
m ~' r-i
• m f'' (-)
SEE YOU THERE! m
cn <
c m
c
-n N
SILVER SPUR HOMEOWNERS' BOARD
.,....X._ . ____ _ _ _. __. ., . . _ , , .._ . ._ , . . ,_. _ _ . _ . , _ ___ . . .
m c
.....-->I1
JEAN BENSON, MAYOR CITY OP PALM DESERT CA.
*** PLEASE BE ADVISED THAT I AM PERSONALLY FOR ANYTHING THAT WOULD CHANGE THE
•
POSITION OF THIS PARK FROM BEING - CONTI3 I}ALI,Y IN ONE LAWSUIT AFTER ANOTHER, THE
CONTINUED BATTLES BETWEEN THE YOUNGER OWNERS AND THE ONES WHO HAVE LIVED IN THIS
PARK FOR YEARS. THIS PARK WAS ORIGINALLY ONE FOR ADULTS ONLY, THE PARK MANAGEMENT
CHANGED ALL OF THIS AND WE NOW CONTINUALLY HAVE POLICE PATROLLING THIS PARK AT ALL
HOURS OF THE DAY & NIGBT. WE HAVE DRUG DEALERS LIVING IN THIS PARK THAT THE MANAGEMENT
CANNOT SEEM TO PUT A STOP TO. WE HAVE CHILDREN WHO HAVE NO PLACE TO PLAY AND THE
OWNERS REFUSE TO PROVIDE ANY PLAY EQUIPTMENT FOR THEM SO THEY ARE •ON BUSY STREETS WITHIN
THIS PARK. • WE HAVE A TERRIBLE SEWAGE PROBLEM WITH OVERFLOWS WITHIN OUR MOBILS, WHICH
AGAIN THE OWNER REFUSES TO ADDRESS. WE HAVE RAW SEWAGE RUNNING DOWN OUR STREETS WE
HAVE.OVERFLOW SEWAGE AT THE BASE OF OUR MOBILS AND under SAME CAUSING HEALTH PROBLEMS.
WE HAVE ONE SET OF MANAGEMENT TEAMS AFTER ANOTHER AND THE RULES CHANGE WITH EACH, THERE
IS WIDE SPREAD DISCRIMINATION WITHIN THE PARK AGAINS SINGLE WOMEN OR THOSE THE PARK
NA,NAGERS DO NOT LIKE. SO I FOR ONE AM FOR A CHANGE IN THIS ORDINANCE TO LET THE
OWNERS OF "BIGHORN" BUY US OUT AND I CAN GET ON WOTH MY LIFE. THIS PARK IS AFFORDABLE
BUT IS TERRIBLY R1N DOWN IN ALL SECTIONS AND NOTHING IS DONE TO CORRECT THIS
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DOGS TVO TO THREE IN A MOI BARKING DAY AND NIGHT, PARK MA :BLS.CANT ADDRESS THIS.
WE HAVE POOL SHUT DOWN CONTINUALLY DO TO HEALTH DEPT \YOLATIONS;
MOBLLS;::;NEED PAINING AND THE PARK OWNER CONTINUALLY TAKES OVER MOBILS BY ABANDOMENT
AND.DUE TO.THE ELDERLY OWNERS THEY HAVE NO CHOICE BUT TO SIGN OVER THESE MOBILS JUST
TO GET OUT OF BACK STORAGE CHARGES .
I OWN A MOBILE A 1/ 7 BOX "C" DRIVE AND' I AM FOR A CHANGE IN THIS ORDINACE AND
HOPE THE COUNCIL WILL PUT A END TO LAWSUITS THAT HAVE COST THE PEOPLE OF THIS
PARK IN EXCESS OF $95,000.00 TO DATE AND THE AMOUNT GOES UP BY THE MONTH.
THERE ARE SO MANY MOBILS FOR SALE IN THIS PARK HOW COULD ANY ONE BE AGAINST A
CHANGE THAT WOULD GET US OUT OF HERE WITH SAME MONEY AND LOOK TO ANOTHER PLACE
TO LIVE AND RAISE OUR CHILDREN, THEY CERTAINLY ARE NOT WELCOME IN THIS BARK.
THIS PARK IS RUN DOWN, THE MOBILS ARE FALLING DOWN AND NO ONE CARES ABOUT THIS.
FEW OWNERS TAKE CARE OF THE YARDS, AND E DOES NOTE Y AFTER YEAR.
JEFF & GUY CINBEY (Brothers) Owners
/f 7 BOX "C" DRIVE/ PALM DESERT, CA 92260