Colony Cove Properties, LLC v. City of Carson (2010), Cal.App.4th
[No.
B219352. Second Dist., Div. Four. Aug. 31, 2010.]
COLONY
COVE PROPERTIES, LLC, Plaintiff and Respondent, v. CITY OF CARSON, Defendant and Appellant.
(Superior
Court of Los Angeles County, No. BS114932, James Chalfant, Judge.)
(Opinion
by Manella, J., with Epstein, P. J., and Willhite, J., concurring.)
COUNSEL
Aleshire
& Wynder, William W. Wynder, Sunny K. Soltani and Jeff M. Malawy for Defendant and Appellant.
Gilchrist
& Rutter, Richard H. Close, Thomas W. Casparian and Yen N. Hope for Plaintiff and Respondent. {Slip Opn.
Page 2}
OPINION
MANELLA,
J.-
Government
Code section 66427.5 contains state-mandated procedures for converting a mobilehome park from landlord
ownership to resident ownership. fn. 1 It requires, among
other things, that parties seeking conversion to resident ownership obtain a "survey of support of residents
of the mobilehome park" and submit the results of the survey to the local entity or agency "to be considered
as part of the subdivision map hearing . . . ." (§ 66427.5, subd. (d)(1) and (5).) The statute also provides
that the subdivision map hearing "shall be limited to the issue of compliance with this section."
(Id., subd. (e).) Respondent Colony Cove Properties, LLC (Colony Cove), the owner of the Colony Cove
Mobilehome Park located within the boundaries of appellant City of Carson (City), challenged an ordinance
enacted by the City which specified that if the survey of support indicated 50 percent or more of the park
residents supported the conversion, it would be presumed bona fide; if the survey indicated resident support
of 35 percent or less, the conversion would be presumed not bona fide; and if resident support fell between
35 and 50 percent, the owner would be required to demonstrate a plan to convey the majority of the lots to
current residents within a reasonable period of time.
In
a lengthy order, the trial court concluded, inter alia, that under section 66427.5 the City's
responsibilities when faced with a mobilehome park conversion application were essentially ministerial --
that the City was merely to determine whether the survey had been received and filed in accordance with the
statute, not to evaluate its contents. The court issued a writ directing the City to vacate the ordinance in
its entirety and, in addition, to vacate an ordinance which imposed a moratorium (expired by the time of the
hearing) on mobilehome park conversions {Slip Opn. Page 3} while the City studied the issue. We reject the
trial court's conclusion that the City's role under section 66427.5 is purely ministerial, but nonetheless
conclude that the ordinance at issue conflicted with section 66427.5 and is therefore invalid. In addition,
we conclude that the issue of the validity of the moratorium was moot at the time the writ was granted. We
therefore reverse in part and affirm in part.
FACTUAL
AND PROCEDURAL BACKGROUND
A.
May 2008 Petition
On
May 19, 2008, Colony Cove filed a verified writ petition stating that it wished to convert the mobilehome
park it owned from rental-only status to condominium style, in which at least some of the residents would
own the land underneath their units and also own an undivided interest in the park's common areas. It
submitted an application to the City for a tentative map, which would allow Colony Cove to subdivide the
property and sell individual interests. fn. 2 According to the
petition, Colony Cove's application "d[id] not contemplate any new building or development; it merely
subdivide[d] the property lines to allow for resident ownership of lots in the Park."
The
petition further alleged that in February 2008, the City introduced Ordinance No. 08-1401. As enacted,
Ordinance No. 08-1401 provided that "[a] survey of residential support" must be conducted "in compliance
with [section 66427.5, subdivision (d)]" and that "[f]or purposes of determining whether a proposed
conversion is a bona-fide resident conversion, the following criteria shall be used": (1) "[w]here the
survey of resident support . . . shows that more than 50% of resident households support[] the conversion to
resident ownership, the {Slip Opn. Page 4} conversion shall be presumed to be a bona-fide resident
conversion"; (2) "[w]here the survey of resident support . . . shows that at least 35% but not more than 50%
of residents support the conversion to resident ownership, the subdivider shall have the burden of
demonstrating that the proposed conversion is a bona-fide resident conversion. In such cases, the subdivider
shall demonstrate, at a minimum, that a viable plan, with a reasonable likelihood of success as determined
by the decision-maker, is in place to convey the majority of the lots to current residents of the park
within a reasonable period of time"; (3) "[w]here the survey of resident support . . . shows that less than
35% of residents support the conversion [to] ownership, the conversion shall be presumed not to be a
bona-fide resident conversion." fn. 3 (Italics omitted.)
The
petition sought a writ of mandate directing the City to vacate Ordinance No. 08-1401.
B.
June 2008 Petition
On
June 13, 2008, Colony Cove filed a second verified petition for writ of mandate. The facts alleged
concerning Colony Cove's desire to convert its mobilehome park and its application to the City for the
approval necessary to subdivide the property and sell individual units were essentially the same as those
alleged in the May 2008 petition. However, in the June petition, Colony Cove additionally alleged that in
March 2007, the City adopted an ordinance imposing a 45-day moratorium on converting mobilehome parks to
resident ownership. The moratorium ordinance prohibited consideration and approval of any mobilehome {Slip
Opn. Page 5} park conversion application if such application had not been deemed substantially complete by
City staff prior to the effective date of the ordinance. In May 2007, the City adopted an ordinance
extending the original moratorium for ten months and fifteen days. Finally, in March 2008, shortly after
adopting Ordinance No. 08-1401 (the subject of the May 2008 petition), the City adopted Ordinance No.
08-1402U, extending the moratorium an additional year.
The
June 2008 petition sought a writ of mandate vacating Ordinance No. 08-1402U, the last extension moratorium
resolution, which at the time had approximately nine months to run. Colony Cove's May 2008 petition and June
2008 petition were consolidated prior to the hearing.
C.
Evidence in Support of Petitions
Prior
to the hearing on the petitions, Colony Cove submitted three declarations executed by its counsel, Thomas W.
Casparian, who had been involved in the conversion of approximately 25 mobilehome parks to resident
ownership since 1998. fn. 4 In the declaration in
support of the May 2008 petition, Casparian stated that when park owners attempt to survey residents
regarding support for a proposed conversion, "[t]ypically, . . . fewer than fifty percent (50%) of residents
even respond to the Survey." Even when a higher percentage of residents respond, Casparian declared, many
fail to state whether they support or oppose conversion. fn. 5 Accordingly, Casparian
averred, the City's requirement that {Slip Opn. Page 6} 50 percent of residents indicate support was a
"practical impossibility." Casparian further stated that the City's requirement that in the absence of such
support, the owner demonstrate a viable plan to convey the majority of lots to current residents did not
take account of an alternative likely scenario: a large number of low-income residents would be unable to
purchase but, at the same time, would be entitled under state law to lifetime residence at controlled rents;
sale of those spaces could not take place until those residents left or died.
In
the declaration in support of the June 2008 petition, Casparian stated that Colony Cove's application was
initially submitted to the City in November 2006. In December 2006, City staff notified Colony Cove that
additional information was needed to complete the application. Colony Cove submitted the information
requested in October 2007 and was informed by City staff that the then-existing moratorium precluded
consideration of the application. In November 2007, City staff advised Colony Cove that the City would begin
processing the application, but thereafter informed Colony Cove that its application was still incomplete.
In February 2008, the City stated that the existence of a moratorium again precluded consideration of the
application.
In
a supplemental declaration, Casparian stated that in April 2009, the City notified Colony Cove that its
application had been deemed incomplete because it did not demonstrate that the proposed conversion was bona
fide. The City noted that according to the survey of support submitted in conjunction with the application,
less than 35 percent of the park's residents supported the conversion.
D.
Evidence in Opposition to Petitions
The
City submitted the declaration of Sheri Repp-Loadsman, its Planning Manager. Repp-Loadsman stated that in
January 2007, the City had applications pending for the conversion of two separate mobilehome parks to
resident {Slip Opn. Page 7} ownership. In addition, the owner of a third mobilehome park had approached the
City about conversion. The third park was located on the site of a former landfill. Concerned about a number
of matters, including the possibility that park residents were unprepared to take on the cost of property
maintenance and management or the liability for ownership of contaminated land, the City adopted the
moratorium and its extensions to enable it to study the issue. During the moratorium, the Planning
Department undertook and completed a study of the impact of mobilehome park conversions by identifying and
visiting all the mobilehome parks located within the City, identifying health and safety issues within each
park, and holding discussions with residents, managers and owners. Ordinance No. 08-1401, the ordinance
challenged in the May 2008 petition, was one result of this process. Repp-Loadsman's declaration indicated
the City was contemplating additional regulation in other areas, including park maintenance, parking, open
space and fire lanes.
E.
Order Granting Petitions
At
the June 19, 2009 hearing, the court granted the petitions. fn. 6 With respect to the
survey ordinance, the trial court stated: "At the hearing on a conversion application, [City] has only the
limited power to decide whether the applicant has complied with section 66427.5. [Citation.] This is a
ministerial duty to decide whether the requirements of section 66427.5 have been met; City has no discretion
to exercise with respect to the tenant survey. Specifically, City decides that the {Slip Opn. Page 8} tenant
survey has been performed, but does not evaluate its contents for purposes of deciding whether to permit the
conversion. Whether a conversion application is bona fide is an issue for a court to decide, and the tenant
survey may be evidence in that decision." (Italics omitted.) The court concluded that "[t]he Survey
Ordinance . . . conflicts with section 66427.5 as City attempts to impose additional conditions in order to
control the conversion process."
With
respect to the moratorium, the trial court recognized that section 65858 authorizes a city to adopt
emergency zoning ordinances for up to two years to protect the public safety, health and welfare, and that
the purpose of the provision "is to allow [a] local legislative body to adopt ordinances prohibiting land
uses that may conflict with contemplated general plan amendment[s] or another land use proposal which [the]
legislative body is studying or intends to study within [a] reasonable period of time." The court concluded,
however, that the City could not "enact a moratorium on conversions for the purpose of studying their impact
on affordable housing" because section 66427.5 limited the City "to . . . determining if Colony Cove's
application meets its requirements." The court found that the moratorium ordinance had the effect of
"frustrat[ing] mobilehome park conversions in contravention of section 66427.5."
Judgments
were entered on the petitions. The City's appeal followed. fn. 7 {Slip Opn. Page 9}
DISCUSSION
A.
Standard of Review
"A
city or county may make and enforce within its limits all local, police, sanitary, and other ordinances and
regulations that do not conflict with general law. (Cal. Const., art. XI, § 7.) If local legislation
conflicts with state law, it is preempted by the state law and is void. [Citation.] A conflict exists when
the local legislation contradicts state law. Local legislation contradicts state law when it is inimical to
it. [Citations.]" (Reidy v. City and County of San Francisco (2004) 123
Cal.App.4th 580,
587.) In granting the petition for writ of mandate, the trial court ruled as a matter of law that the
ordinances at issue conflicted with section 66427.5. We review such determinations de novo. (Johnson v.
City and County of San Francisco (2006) 137
Cal.App.4th 7,
12; Tom v. City and County of San Francisco (2004) 120
Cal.App.4th 674,
678-679.)
B.
Survey Ordinance
For
some time, section 66427.5 has required that at the time of filing a tentative or parcel map, the owner or
"subdivider" seeking conversion of a mobilehome park to resident ownership must offer each existing tenant
an option to purchase his or her unit or to continue residency as a tenant, file a report on the impact of
the conversion upon residents of the mobilehome park, make a copy of the report available to each resident,
and comply with rent control provisions contained in the statute. In addition, since 1995 the statute has
also provided that the scope of the subdivision map hearing is "limited to the issue of compliance with
[section 66427.5]." (§ 66427.5, subd. (e).) The statute was amended in 2002 to require subdividers to obtain
a "survey of support of residents of the mobilehome park," and to submit the results of the survey to the
local agency authorized to approve, conditionally approve, or disapprove the map. (§ 66427.5, {Slip Opn.
Page 10} subd. (d)(1), (5).) The survey results are required "to be considered as part of the subdivision
map hearing . . . ." (Id., subd. (d)(5).) fn. 8 Ordinance No. 08-1401
mandates a specific level of resident support (50 percent) for a conversion to be presumed bona fide,
provides that a low level of resident support (less than 35 percent) will result in the conversion being
presumed not bona fide, and requires owners with moderate levels of support (between 35 and 50 percent) to
demonstrate that "a viable plan, with a reasonable likelihood of success as determined by the
decision-maker, is in place to convey the majority of the lots to current residents of the park within a
reasonable period of time."
Pointing
to the language in section 66427.5 requiring it to "consider" the survey of support at the subdivision map
hearing, the City contends Ordinance No. 18-401 represents its attempt to "appropriately implement the
requirements of section 66427.5" and "imposes no conditions outside those already contained in section
66427.5." fn.
9 In the sole published opinion to have interpreted section 66427.5 in its present form,
Sequoia Park Associates v. County of Sonoma (2009) 176
Cal.App.4th 1270 (
Sequoia Park), the court held that a county ordinance similar to the City's, requiring a survey showing a
particular level of resident support for a mobilehome park conversion to be presumed bona fide, conflicted with
section 66427.5 because it deviated from the state-mandated criteria for {Slip Opn. Page 11} approving a
conversion application and added to the exclusive statutory requirements. (176 Cal.App.4th at pp. 1298-1299.)
We find no material difference in the provisions of the survey ordinance here and the ordinance the Sequoia
Park court found incompatible with the language of subdivision (e) of section 66427.5. Like the ordinance
invalidated in Sequoia Park, the provisions of the City's survey ordinance impose additional
requirements in connection with obtaining tentative map approval not expressly authorized by section 66427.5
and prohibited by subdivision (e) of that section. We conclude, therefore, as did the trial court, that
Ordinance No. 08-1401 is invalid. Where we part ways with the opinion in Sequoia Park and the ruling of
the trial court is in their conclusions that all local regulation is preempted and, in the case of the trial
court, that the City's responsibilities with respect to applications for mobilehome park conversions are purely
ministerial.
1.
Background
a.
Section 66427.5 As Originally Enacted
Our
understanding of section 66427.5 and the limits it places on local power is derived from comparing its
earlier provisions and the leading authority interpreting them with the current statute. Section 66427.5 is
part of the Subdivision Map Act (§ 66410 et seq. (SMA)). "The [SMA] is 'the primary regulatory control'
governing the subdivision of real property in California." (Gardner v. County of Sonoma (2003)
29
Cal.4th 990,
996-997, quoting Hill v. City of Clovis (2000) 80
Cal.App.4th 438,
445.) "The [SMA] vests the '[r]egulation and control of the design and improvement of subdivisions' in the
{Slip Opn. Page 12} legislative bodies of local agencies, which must promulgate ordinances on the subject.
(§ 66411.) The [SMA] generally requires all subdividers of property to design their subdivisions in
conformity with applicable general and specific plans and to comply with all of the conditions of applicable
local ordinances." (Gardner v. County of Sonoma, supra, at p. 997, fn. omitted.) "As used in
the [SMA], 'subdivision' means 'the division, by any subdivider, of any unit or units of improved or
unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or
as contiguous units, for the purpose of sale, lease or financing, whether immediate or future.' (§ 66424.)
Ordinarily, subdivision under the [SMA] may be lawfully accomplished only by obtaining local approval and
recordation of a tentative and final map pursuant to section 66426, when five or more parcels are involved,
or a parcel map pursuant to section 66428 when four or fewer parcels are involved." (Id. at p. 997.)
"[T]he [SMA] seeks 'to encourage and facilitate orderly community development, coordinate planning with the
community pattern established by local authorities, and assure proper improvements are made, so that the
area does not become an undue burden on the taxpayer.'" (Gardner v. County of Sonoma, supra,
at pp. 997-998, quoting Gomes v. County of Mendocino (1995) 37
Cal.App.4th 977,
985.)
In
1991, when the Legislature added section 66427.5 to the SMA, it was applicable only to "filing a tentative
or parcel map for a subdivision to be created using financing or funds provided pursuant to chapter 11
(commencing with Section 50780) of Part 2 of Division 31 of the Health and Safety Code)." fn.
10 It {Slip Opn. Page 13} required the subdivider to "avoid the economic displacement of
all nonpurchasing residents" by ensuring that statutorily defined low-income residents who decided not to
purchase would be protected by section 66427.5's mandated rent control as long as they resided at the park,
and that non low-income residents who decided not to purchase would be protected by a phased out limitation
on raising rents to market level. fn. 11 (Stats. 1991, ch.
745, § 2, p. 3324.) Conversions that did not require the use of public financing under Health and Safety
Code section 50780 were governed by section 66427.4, which required the subdivider to apply to the city,
county or local agency empowered to approve subdivision maps, and which permitted the entity or agency to
"require the subdivider to take steps to mitigate any adverse impact of the conversion on the ability of
displaced mobilehome park residents to find adequate space in a mobilehome park." (Stats. 1991,
supra, § 1, pp. 3323-3324.) Subdivision (d) of section 66427.4 made clear that its provisions
"establishe[d] a minimum standard for local regulation of conversions of mobilehome parks into other uses"
and did not "prevent a local agency from enacting more stringent measures." (Stats. 1991, p. 3324.) fn.
12 {Slip Opn. Page 14}
b.
1995 Overhaul
In
1995, the Legislature amended sections 66427.4 and 66427.5 to widen the applicability of the latter and
limit the applicability of the former. The amendment to section 66427.4 provided in relevant part: "This
section shall not be applicable to a subdivision which is created from the conversion of a rental mobilehome
park to resident ownership." (Stats. 1995, ch. 256, § 4, p. 883.) The reference to "a subdivision to be
created using financing or funds provided pursuant to [the Health and Safety Code]" was deleted from section
66427.5, so that the provision applied generally to "a subdivision to be created from the conversion of a
rental mobilehome park to resident ownership." (Stats. 1995, supra, § 5, p. 883.) The 1995 version of
section 66427.5 limited post-conversion rent increases in the same manner as the original version of the
statute, affording greater protection to low-income than non low-income residents. In addition, it added
provisions intended to "avoid the economic displacement of all nonpurchasing residents" by requiring
subdividers to: (1) offer all residents the option to purchase their units or to continue residency as a
tenant, and (2) file a report on the impact of the conversion and make a copy of the report available to
each resident. (Stats. 1995, p. 883.) New language placed in what was then subdivision (d) provided: "The
subdivider shall be subject to a hearing by a legislative body or advisory agency, which is authorized by
local ordinance to approve, conditionally approve, or disapprove the {Slip Opn. Page 15} map. The scope of
the hearing shall be limited to the issue of compliance with this section." (Stats. 1995, p. 883.)
c.
The Holding in El Dorado
In
El Dorado Palm Springs, Ltd. v. City of Palm Springs (2002) 96
Cal.App.4th 1153 (
El Dorado), the court held that the 1995 amendments strictly limited the power of cities, counties and
local agencies to impose conditions during the subdivision map approval process. The City of Palm Springs,
purporting to rely on the language in section 66427.4 permitting local authorities to "enact[] more stringent
measures," sought to impose three conditions on a mobilehome park owner seeking conversion: (1) that the sale
price for the lots be determined by a specified appraisal firm; (2) that the owner provide financial assistance
to residents of the park to facilitate their purchase of lots; and (3) that local rent control provisions
continue to apply until a specified number of lots were sold. (96 Cal.App.4th at pp. 1161, fn. 5, 1163.) The
court concluded that Palm Springs could not rely on section 66427.4 to justify its imposition of the conditions
because by its terms, that statute applied only when a mobilehome park was converted to uses other than as a
mobilehome park. (96 Cal.App.4th at pp. 1161-1162.) Nor, the court held, could Palm Springs rely on section
66427.5 -- which after 1995 applied to all mobilehome park conversions to resident ownership, whether initiated
by the residents or the owner -- to support imposition of the proposed conditions. The court concluded that the
language of the subdivision limiting the scope of the hearing before the local entity or agency to "the issue
of compliance with this section" meant that "the City Council, in acting on [the owner's] application for
approval of the tentative subdivision map, only had the power to determine if [the owner] had complied with the
requirements of [section 66427.5]." (96 Cal.App.4th at pp. 1163-1164.) Examining the legislative history of the
1995 {Slip Opn. Page 16} amendments, the court further concluded that by including this language, the
Legislature intended that no entity or agency be permitted to enact more stringent measures pertaining to the
conversion of mobilehome parks to residential ownership than those specified in the statute. (96 Cal.App.4th at
pp. 1170-1171.)
Palm
Springs, joined by the residents' homeowners association, argued that owners of mobilehome parks would use
section 66427.5 to circumvent local rent control provisions by obtaining a subdivision map for a conversion
and thereafter continuing to rent out the spaces, selling no lots or only a few lots. fn.
13 While sympathetic to the city's concerns, the court concluded that the language of
section 66427.5 limiting the scope of the hearing "to the issue of compliance with this section" deprived
Palm Springs of authority to "impose additional conditions to prevent sham or fraudulent transactions at the
time it approves the tentative or parcel map." (96 Cal.App.4th at p. 1165.) Acknowledging the possibility of
"legislative oversight" and recognizing that "it might be desirable for the Legislature to broaden the
City's authority," the court declared the matter "a legislative issue, not a legal one." (Ibid.)
fn.
14 The trial court ruling was reversed and {Slip Opn. Page 17} remanded with directions
requiring the Palm Springs City Council to "to promptly determine the sole issue . . . whether [the owner's]
application for approval of a tentative parcel map complie[d] with section 66427.5" and "[i]f so, [to]
approve the application." (Id. at p. 1182.) {Slip Opn. Page 18}
d.
The 2002 Amendments
Not
long after the decision in El Dorado, the Legislature enacted the current version of section 66427.5,
amending the statute by adding a new subdivision (d), containing the following language: "(1) The subdivider
shall obtain a survey of support of residents of the mobilehome park for the proposed conversion. [¶] (2)
The survey of support shall be conducted in accordance with an agreement between the subdivider and a
resident homeowners' association, if any, that is independent of the subdivider or mobilehome park owner.
[¶] (3) The survey shall be obtained pursuant to a written ballot. [¶] (4) The survey shall be conducted so
that each occupied mobilehome space has one vote. [¶] (5) The results of the survey shall be submitted to
the local agency upon the filing of the tentative or parcel map, to be considered as part of the subdivision
map hearing prescribed by subdivision (e)." The Legislature moved former subdivision (d) to subdivision (e),
which continued to provide: "The subdivider shall be subject to a hearing by a legislative body or advisory
agency, which is authorized by local ordinance to approve, conditionally approve, or disapprove the map. The
scope of the hearing shall be limited to the issue of compliance with this section." (§ 66427.5, subd. (e).)
When
enacting the 2002 amendments, the Legislature provided the following explanation for the changes: "It is the
intent of the Legislature to address the conversion of a mobilehome park to resident ownership that is not a
bona fide resident conversion, as described by the Court of Appeal in [El Dorado,
supra,] 96
Cal.App.4th 1153.
The court in [El Dorado] concluded that the subdivision map approval process specified in [section
66427.5] may not provide local agencies with the authority to prevent non[-]bona fide resident conversions.
The court explained how a conversion of a mobilehome park to resident ownership could occur without the
support of the residents and result in economic {Slip Opn. Page 19} displacement. It is, therefore, the
intent of the Legislature in enacting this act to ensure that conversions pursuant to Section 66427.5 of the
Government Code are bona fide resident conversions." fn. 15 (Stats. 2002, ch.
1143, § 2, p. 5704.)
During
the amendment process, the Legislature considered and rejected a proposal that would have changed the
language of former subdivision (d) (now subdivision (e)) to provide: "The subdivider shall be subject to a
hearing by a legislative body or advisory agency, which is authorized by local ordinance to approve,
conditionally approve, or disapprove the map. The scope of the hearing shall be limited to the issue of
compliance with this section and any additional conditions of approval that the local legislative body or
advisory agency determines are necessary to preserve affordability or to protect nonpurchasing residents
from economic displacement." (Sen. Amends. to Assem. Bill No. 930 (2001-2002 Reg. Sess.), June 26, 2002,
and Aug. 13, 2002, § 1.) The Assembly Floor Analysis of the final version of the 2002 bill stated that
"[t]he fact that a majority of the residents do not support the conversion is not . . . an appropriate means
for determining the legitimacy of a conversion. The law is not intended to allow park residents to block a
request to subdivide." (Sen. Amends. to Assem. Bill No. 930 (2001-2002 Reg. Sess.), Aug. 30, 2002, p. 5.)
e.
The Holding in Sequoia Park {Slip Opn. Page 20}
In
Sequoia Park, supra, 176
Cal.App.4th 1270,
the court reviewed an ordinance enacted by the County of Sonoma. The professed aim of the ordinance was to
"'implement[]'" revised section 66427.5 and "'[t]o ensure that conversions of mobile home parks to resident
ownership are bona fide resident conversions in accordance with state law.'" (176 Cal.App.4th at pp. 1274,
1288.) It required, inter alia, that any conversion be "'a bona fide resident conversion'" and set forth
criteria for determining whether an application was bona fide: where more than 50 percent of residents
supported the conversion, it would be presumed bona fide; where less than 20 percent of residents supported
the conversion, it would be presumed not to be bona fide; and where between 20 and 50 percent of residents
supported the conversion, the subdivider would be required to demonstrate the conversion was bona fide by
presenting a viable plan to convey the majority of the lots to current residents. (Id. at pp.
1291-1292.)
The
operator of a mobilehome park who sought to convert it to resident ownership petitioned for a writ of
mandate to halt enforcement of the ordinance on the ground it was preempted by section 66427.5. The trial
court denied the petition, finding the ordinance merely gave effect to the requirements set forth in section
66427.5.
The
Court of Appeal reversed, finding that the ordinance was expressly and impliedly preempted because it
entered an area fully occupied by state law. (Sequoia Park, supra, 176 Cal.App.4th at pp.
1277-1279, 1292-1298.) The court further held that the ordinance conflicted with section 66427.5 because it
"deviat[ed] from the state-mandated criteria for approving a mobilehome park conversion application" and set
forth "improper additions to the exclusive statutory requirements of section 66427.5." (176 Cal.App.4th at
p. 1299.)
In
reaching its conclusion, the court undertook an exhaustive review of the statutory provisions in the area of
mobilehome park regulation, including the {Slip Opn. Page 21} Mobilehome Residency Law (Civ. Code, §§
798-799.10), the Mobilehome Parks Act (Health & Saf. Code, §§ 18200-18700), and the Manufactured Housing
Act of 1980 (Health & Saf. Code, §§ 18000-18153). Notwithstanding the presumption against preemption,
the court's analysis persuaded it that "the state has taken for itself the commanding voice in mobilehome
regulation," leaving localities "little scope to improvise or deviate from the Legislature's script."
(Sequoia Park, supra, 176 Cal.App.4th at pp. 1279-1281, 1293.)
The
court noted that in revising section 66427.5, the Legislature did not disturb the language of former
subdivision (d), now subdivision (e), which continued to state that "the scope of the hearing shall be
limited to the issue of compliance with this section." Referring to this language, the court stated: "[W]hen
[the Legislature] amended section 66427.5, [it] did nothing to overturn the El Dorado court's reading
of the extent of local power to step beyond the four corners of that statute." (Sequoia Park, supra,
176 Cal.App.4th at p. 1297.) Noting that the ordinance imposed requirements in addition to those listed in
section 66427.5, including the requirement that the conversion application be shown to be bona fide "as
measured against the percentage-based presumptions" set forth in the ordinance, the court concluded that the
ordinance directly conflicted with the statutory language. (176 Cal.App.4th at p. 1299.)
Notably,
the court did not address what meaning should be ascribed to the language of subdivision (d) requiring that
"'[t]he results of the survey . . . be considered as part of the subdivision map hearing prescribed by
subdivision (e).'" Rather, it concluded that because the ordinance imposed conditions that clearly went
beyond those set forth in section 66427.5, it violated subdivision (e)'s requirement that the scope of the
hearing "be limited to the issue of compliance with this section." (Sequoia Park, supra, 176
Cal.App.4th at pp. 1283, 1293, 1296-1297.) {Slip Opn. Page 22}
2.
Validity of the City's Survey Ordinance
Determining
the validity of the City's survey ordinance turns on a proper construction of section 66427.5. In
interpreting a statute, "we must look first to [its] language." (Diamond Multimedia Systems, Inc. v.
Superior Court (1999) 19
Cal.4th 1036,
1047.) "If it is clear and unambiguous our inquiry ends. There is no need for judicial construction and a
court may not indulge in it." (Ibid.) The rules of statutory interpretation also require that we, "if
possible, . . . give effect and significance to every word and phrase of a statute." (Garcia v.
McCutchen (1997) 16
Cal.4th 469,
476.) When two provisions touch upon a common subject, "we must construe them 'in reference to each other,
so as to "harmonize the two in such a way that no part of either becomes surplusage." [Citations.]'"
(Ibid., quoting DeVita v. County of Napa (1995) 9
Cal.4th 763,
778-779.) "We must presume that the Legislature intended 'every word, phrase and provision . . . in a
statute . . . to have meaning and to perform a useful function.'" (Garcia v. McCutchen, supra,
at p. 476, quoting Clements v. T. R. Bechtel Co. (1954) 43
Cal.2d 227,
233.) When the language of a provision is ambiguous and susceptible to more than one reasonable meaning, we
may turn to extrinsic aides such as the legislative history of the measure. (Diamond Multimedia Systems,
Inc. v. Superior Court, supra, at p. 1055.) In addition, "'when the Legislature amends a statute without
altering portions of the provision that have previously been judicially construed, the Legislature is
presumed to have been aware of and to have acquiesced in the previous judicial construction. Accordingly,
reenacted portions of the statute are given the same construction they received before the amendment.'"
(Harris v. Capital Growth Investors XIV (1991) 52
Cal.3d 1142,
1156.)
Colony
Cove urges that we follow the example of Sequoia Park by holding that the state fully occupies the
area of mobilehome park conversion and that local {Slip Opn. Page 23} regulation is wholly preempted. That
construction would, as the trial court ruled, preclude the City from considering the contents of the survey
of support during the subdivision map hearing process and limit it to purely ministerial duties --
determining whether the survey had been prepared and filed in accordance with section 66427.5. The problem
with this approach is that it fails to satisfactorily reconcile the language of the 2002 amendments with the
stated intent of the Legislature. We instead begin our analysis of the ordinance's validity with the
language of the statute itself and, in particular, the 2002 amendments.
When
the Legislature amended section 66427.5 in 2002, it did not change the language now contained in subdivision
(e), which continues to state that "the scope of the [subdivision map] hearing shall be limited to the issue
of compliance with this section." However, the phrase "limited to the issue of compliance with this section"
must be interpreted in light of the new language of the preceding subdivision (d). That subdivision requires
applicants to obtain a survey of support of the residents of the mobilehome park, conducted in accordance
with specific procedures, and to submit "[t]he results" to the entity or agency "authorized by local
ordinance to approve, conditionally approve, or disapprove the [subdivision] map." This language alone
suggests that the contents of the survey, as opposed to its mere existence, are relevant to the approval
process. By thereafter specifically stating that the results are "to be considered as part of the
subdivision map hearing prescribed by subdivision (e)," the Legislature made that intention explicit.
Construing the statute to eliminate the power of local entities and agencies to consider the results of the
survey when processing a conversion application would consign the "to be considered" language of subdivision
(d)(5) to surplusage.
Nonetheless,
we agree with Sequoia Park's specific holding that an ordinance such as the one here conflicts with
section 66427.5 by "deviating from the state-mandated criteria" and adding to the "exclusive statutory
requirements of {Slip Opn. Page 24} section 66427.5." (Sequoia Park, supra, 176 Cal.App.4th at p.
1299.) When it overhauled sections 66427.4 and 66427.5 in 1995, the Legislature deprived local entities and
agencies of the authority to "enact[] more stringent measures" regulating conversions of mobilehome parks to
resident ownership, thereby conveying its intent to prevent localities from unduly impeding resident
conversions. (See El Dorado, supra, 96 Cal.App.4th at pp. 1161-1163.) The Legislature conveyed
the same intent when it enacted the 2002 amendments, rejecting a proposal that would have granted local
agencies the authority to impose "any additional conditions of approval that the local legislative body or
advisory agency determines are necessary to preserve affordability or to protect nonpurchasing residents
from economic displacement." fn. 16 (Sen. Amends. to
Assem. Bill No. 930 (2001-2002 Reg. Sess.), June 26, 2002, Aug. 13, 2002, § 1.) The Legislature's decision
to reject this proposal demonstrates that it continues to oppose local deviation from or addition to the
statutory criteria. As the court in Sequoia Park stated, when the Legislature enacted the 2002
amendments, it "did nothing to overturn the El Dorado court's reading of the extent of local power to
step beyond the four corners of [section 66427.5]." (Sequoia Park, supra, at p. 1297.) By the same
token, by adding the provisions requiring the subdivider to obtain and submit a survey of resident support,
the Legislature expressly expanded the statutory factors to be considered at the subdivision map hearing to
include the results of the survey. {Slip Opn. Page 25}
The
City contends that its ordinance differs from that invalidated in Sequoia Park because the former
does not expressly require that a conversion be bona fide in order to be approved. The City does not
suggest, however, that it would ever approve a conversion application it found not to be bona fide. On the
contrary, one of the stated purposes of the ordinance is "to ensure that conversions of mobilehome parks to
resident ownership are bona fide resident conversions in accordance with state law." (Italics omitted.)
The
City further contends the ordinance does not step beyond the four corners of the statute -- that it
implements section 66427.5 without imposing additional conditions. The City's contention is not borne out by
a comparison of the statutory provisions with the ordinance itself. The statute specifies the ways in which
the subdivision must "avoid the economic displacement of all nonpurchasing residents." First, the subdivider
must give each resident the option to purchase his or her unit or to continue residency at the park. (§
66427.5, subd. (a).) Second, the subdivider must file a report on the impact of the conversion on the
residents of the mobilehome park and make a copy of the report available to each resident. (Id.,
subds. (b) and (c).) Third, the subdivider must obtain and submit the survey of support. (Id., subd.
(d).) Finally, the subdivider must limit post-conversion increases in rents. (Id., subd. (f).)
The
survey ordinance gives residents additional rights not afforded by the statute. It essentially gives them
veto power over the conversion by creating a presumption that the conversion is not bona fide if fewer than
35 percent of residents support it. This provision cannot be reconciled with the Assembly Floor's final
analysis of the 2002 amendments, which specifically stated that "[t]he fact that a majority of the residents
do not support the conversion is not . . . an appropriate means for determining the legitimacy of a
conversion," and that "[t]he law is not intended to allow park residents to block a request to subdivide."
(Sen. {Slip Opn. Page 26} Amends. to Assem. Bill 930 (2001-2002 Reg. Sess.), August 30, 2002, p. 5; see also
El Dorado, supra, 96 Cal.App.4th at p. 1182 ["The legislative intent to encourage conversion
of mobilehome parks to resident ownership would not be served by a requirement that a conversion could only
be made with resident consent."].) fn. 17 The ordinance also
greatly increases the owner's burden if fewer than 50 percent of residents support it, requiring preparation
of a "viable plan" to sell the majority of units to current residents. Moreover, to the extent the
requirement of demonstrating a plan to sell to current residents could require the subdivider to offer
current residents financial inducements to buy, it potentially provides residents additional financial
benefits not conferred by the statute. We thus conclude that Ordinance No. 08-1401, like the similar
ordinance invalidated in Sequoia Park, is an "improper addition[] to the exclusive statutory
requirements of {Slip Opn. Page 27} section 66427.5." (Sequoia Park, supra, 176 Cal.App.4th at pp.
1291-1292, 1298-1299.) fn. 18
3.
Collateral Estoppel
Prior
to Colony Cove's application for conversion, the City had been involved in litigation over the conversion of
another mobilehome park. fn. 19 Division Eight of
this District, in an unpublished opinion, concluded that the City had not properly considered a resident
survey completed after park owner's original application for conversion was submitted. The court reversed
and remanded with directions that the City review the application. Neither of the ordinances before us was
at issue in the Carson Harbor case.
Each
party contends that the other is estopped from making certain arguments by the decision of the appellate
court in Carson Harbor. As we decline {Slip Opn. Page 28} to take judicial notice of documents
through which the City sought to establish that Colony Cove was in privity with Carson Harbor Village,
Colony Cove cannot be estopped from advancing its arguments to this court. (See Lynch v. Glass
(1975) 44
Cal.App.3d 943,
947 ["A party cannot assert a prior adjudication against another who was not a party or in privity with a
party to the prior action."].) As for Colony Cove's request, we find nothing in the Carson Harbor
decision to estop the City from arguing that section 66427.5 permits it to consider the resident survey
results at the subdivision map hearing.
C.
Moratorium
Lastly,
we consider the City's contention that the validity of the moratorium ordinance was moot by the time Colony
Cove's June 2008 petition was heard by the trial court. The duty of the court "'"is to decide actual
controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue
in the case before it."' [Citation.]" (Eye Dog Foundation v. State Board of Guide Dogs for the Blind
(1967) 67
Cal.2d 536,
541.) "'[A]lthough a case may originally present an existing controversy, if before decision it has, through
act of the parties or other cause, occurring after the commencement of the action, lost that essential
character, it becomes a moot case or question which will not be considered by the court.'" (Wilson v.
L.A. County Civil Service Com. (1952) 112
Cal.App.2d 450,
453; see Bravo Vending v. City of Rancho Mirage (1993) 16
Cal.App.4th 383,
393 [case may be rendered moot "by an amendment which either repeals or significantly modifies the portion
of the ordinance to which the challenge is directed."]; Native Village of Noatak v. Blatchford (9th
Cir. 1994) 38 F.3d 1505, 1510 ["As a general rule, if a challenged law is repealed or expires, the case
becomes moot."].) {Slip Opn. Page 29}
The
ordinance imposing a moratorium on consideration of conversion applications expired several months before
the hearing on the writ petitions, after having been in existence for two years. According to the evidence
presented, the City completed its study of all the mobilehome parks within its boundaries and the mobilehome
park conversion issue during the moratorium. There was no evidence that further studies or moratoriums were
planned. The statute on which the City relied -- section 65858 -- permits a moratorium to run for a maximum
of two years (§ 65858, subd. (a)) and permits the legislative body to adopt another interim ordinance only
where the new interim ordinance arises from "an event, occurrence, or set of circumstances different from
the event, occurrence, or set of circumstances that led to the adoption of the prior interim ordinance."
(Id., subd. (f).) At the time of the hearing, the moratorium had expired and could not be renewed.
Accordingly, Colony Cove's challenge to the moratorium ordinance was moot. {Slip Opn. Page 30}
DISPOSITION
The
judgment directing the City to vacate Ordinance No. 08-1401 is affirmed. The judgment directing the City to
vacate Ordinance No. 08-1402U is reversed. The matter is remanded to the trial court with directions to
dismiss the petition filed June 13, 2008 as moot. Colony Cove is awarded its costs on appeal.
Epstein,
P. J., and Willhite, J., concurred.
FN 1. Unless
otherwise indicated, statutory references are to the Government Code.
FN 2. The
petition did not state the date the application was submitted.
FN 3. The
petition stated that the relevant percentage was 20 percent, apparently based on a draft proposal. The parties
are in agreement that the determinative percentage in the final ordinance was 35 percent.
FN 4. The
court also took judicial notice, at Colony Cove's request, of certain items in the legislative history of
section 66427.5.
FN 5. According
to an exemplar offered into evidence, residents are given the option of responding "decline to state" when
surveyed concerning whether they support or oppose the proposed conversion.
FN 6. The
court subsequently entered separate judgments for each petition. The first ordered issuance of a peremptory
writ of mandate directing the City to vacate Ordinance No. 08-1401, the survey ordinance. The second ordered
issuance of a peremptory writ of mandate directing the City to vacate Ordinance No. 08-1402U (the most recent
extension of the moratorium) and, in the alternative, deemed the June 2008 petition an action for declaratory
relief and declared Ordinance No. 08-1402U invalid.
FN 7. In
its reply brief, the City states it has approved the conversion of the Colony Cove park. At oral argument, the
parties discussed whether this rendered the appeal from the trial court's decision on the survey ordinance
moot. Because Colony Cove mounted a facial challenge to the ordinance itself, rather than an appeal from a
denial of its conversion application, the City's approval of the conversion application does not render Colony
Cove's challenge to the survey ordinance moot.
FN 8. Other
subsections of subdivision (d) of section 66427.5 specify the manner in which the survey must be conducted,
requiring, inter alia, that it be conducted in accordance with an agreement between the subdivider and any
resident homeowners' association (subd. (d)(2)), that it be obtained pursuant to a written ballot (subd.
(d)(3)), and that it be conducted so as to provide one vote for each mobilehome space (subd. (d)(4)).
FN 9. The
City does not claim that it is attempting to implement a different state statute which, by its terms, applies
to conversion of mobilehome parks. Thus, this case does not present the issue raised in Pacific Palisades
Bowl Mobile Estates, LLC v. City of Los Angeles (August 31, 2010, B216515) __ Cal.App.4th __.
FN 10. Health
and Safety Code section 50780, enacted in 1984, states that "it is the intent of the Legislature, in enacting
this chapter, to encourage and facilitate the conversion of mobilehome parks to resident ownership or ownership
by qualified nonprofit housing sponsors or by local public entities. . . ." (Health & Saf. Code, § 50780,
subd. (b).)
FN 11. In
the case of non low-income residents who chose not to purchase, the statute provided that "the monthly rent . .
. may increase from the preconversion rent to market levels, as defined in an appraisal conducted in accordance
with nationally recognized professional appraisal standards, in equal annual increases over a four-year
period." (Stats. 1991, ch. 745, § 2, p. 3324.) In the case of low-income residents who chose not to purchase,
"the monthly rent . . . may increase from the preconversion rent by an amount equal to the average monthly
increase in rent in the four years immediately preceding the conversion, except that in no event shall the
monthly rent be increased by an amount greater than the average monthly percentage increase in the Consumer
Price Index for the most recently reported period." (Ibid.) These provisions remain in the current
statute. (See § 66427.5, subd. (f)(1) and (2).)
FN 12. The
1991 act also provided a simplified method for gaining approval of a proposed conversion where "at least
two-thirds of the owners of mobilehomes who are tenants in the mobilehome park sign a petition indicting their
intent to purchase the mobilehome park for purposes of converting it to resident ownership." It did so by
adding section 66428.1, permitting a conversion to resident ownership without obtaining approval of a parcel,
tentative or final map unless there were "design or improvement requirements necessitated by significant health
or safety concerns," an exterior boundary discrepancy required "recordation of a new parcel or tentative and
final map," the existing parcels "were not created by a recorded parcel or final map," or the conversion would
result in more units than existed prior to the conversion. (Stats. 1991, supra, § 4, pp. 3325-3326.)
Section 66428.1 has remained unchanged since its enactment.
FN 13. This
had occurred in Donahue v. Santa Paula West Mobile Home Park (1996) 47
Cal.App.4th 1168 (
Donahue). There, residents had initiated the filing of a tentative map, but no lots were ever sold because
the residents could not obtain the financing to purchase the park. The court held that the rent control
provision of section 66427.5 did not supersede local rent control ordinances where the attempt to convert
failed, and that "conversion" meant more than filing the tentative map. (47 Cal.App.4th at pp. 1174-1176.) The
court in El Dorado concluded that under the holding in Donahue, section 66427.5 did not preempt
or supersede a local rent control ordinance "if the conversion is unsuccessful," but that section 66427.5's
rent control provisions became applicable to nonpurchasing residents "as soon as the first unit is sold."
(El Dorado, supra, 96 Cal.App.4th at p. 1166.)
FN 14. The
court further noted that residents resisting a fraudulent conversion were not without recourse, as under
Donahue, "courts will not apply section 66427.5 to sham or failed transactions, or to avoid a local rent
control ordinance." (El Dorado, supra, 96 Cal.App.4th at p. 1165.)
FN 15. The
quoted provision is known as a "'plus section.'" (People v. Allen (1999) 21
Cal.4th 846,
858, fn. 13.) "A 'plus section' is a provision of a bill that is not intended to be a substantive part of the
code section or general law that the bill enacts, but to express the Legislature's view on some aspect of the
operation or effect of the bill." (Ibid.; see People v. Canty (2004) 32
Cal.4th 1266,
1280 [legislative statements in uncodified section of statute "do not confer power, determine rights, or
enlarge the scope of a measure," but "properly may be utilized as an aid in construing [the] statute"].)
FN 16. (See
Central Delta Water Agency v. State Water Resources Control Bd. (1993) 17
Cal.App.4th 621,
634 ["The fact that the Legislature chose to omit a provision from the final version of a statute which was
included in an earlier version constitutes strong evidence that the act as adopted should not be construed to
incorporate the original provision."]; accord, Carter v. California Dept. of Veterans Affairs
(2006) 38
Cal.4th 914,
927.)
FN 17. A
similar issue arose in El Dorado, where the homeowners' association contended that section 66427.5
applied only to conversions to a "resident-owned" park, defined as a park in which residents held the majority
of lots. The court stated: "The Association's interpretation would conflict with the legislative intent to
encourage such conversions. Indeed, even the City notes that 'such an onerous condition of approval would
effectively give the mobile home park homeowners' association the ability to unilaterally block the proposed
park conversion unless the landlord would otherwise set his purchase price at an amount acceptable to the
homeowners.' Giving the homeowners this power would conflict with the legislative intent 'to encourage and
facilitate the conversion of mobilehome parks to resident ownership.'" (El Dorado, supra, 96
Cal.App.4th at pp. 1172, 1174.) The court further noted that the Legislature provided for conversion by
resident consent in section 66428.1, which eliminates the tentative map requirement if two-thirds of the
residents commit to purchase their units upon conversion. "Thus, if there is the requisite [resident] consent,
there is no need to file a tentative map application at all. The absence of such consent does not mean that no
conversion is possible; it only means that the filing requirement is not waived. The owner can still subdivide
his property by following the statutory procedures, including the economic displacement mitigation measures
specified in section 66427.5." (96 Cal.App.4th at p. 1182.)
FN 18. We
recognize that our conclusion -- that section 66427.5 permits consideration of the results of the survey of
support but not the promulgation of an ordinance requiring specific levels of resident support -- does not
resolve the manner in which the City and other local agencies are to approach conversion applications. The
uncertainty derives from the statute itself, which requires local agencies to consider resident survey results
but provides no guidance as to how the results may be used. It is our hope that the Legislature will recognize
the dilemma faced by local agencies illustrated by this case and another case decided today, Pacific
Palisades Bowl Mobile Estates LLC v. City of Los Angeles, supra, [__ Cal.App.4th __], and act to
clarify the scope of their authority and responsibilities.
FN 19. Colony
Cove asked that we take judicial notice of the appellate proceedings in that case, Carson Harbor Village,
Ltd. v. City of Carson, case no. B211777 (Carson Harbor). We granted the request. The City asked
that we take judicial notice that Goldstein Properties, LLC is the general partner of both the Carson Harbor
Village and the El Dorado Palm Springs mobilehome parks, and that El Dorado Palm Springs is the manager of
Colony Cove. We decline to do so. (See Brosterhous v. State Bar (1995) 12
Cal.4th 315,
325 [reviewing court need not take judicial notice of matters not before the trial court].)