Petition for Writ of Certiorari — Carson Harbor Village, Ltd. v. City of Carson

upreme Court, U.S.

rin EO

()

Q4 115 JUL 20 2004

No. __ OFFICE OF THE CLERK

In the

Supreme Court of the United States

+

CARSON HARBOR VILLAGE, LTD.,

a Limited Partnership, dba Carson Harbor

Village Mobile Home Park,

Petitioner,

V.

CITY OF CARSON, a Municipal Corporation;

CARSON CITY MOBILEHOME PARK

RENTAL REVIEW BOARD; and CARSON HARBOR

VILLAGE MOBILEHOME PARK HOMEOWNERS

ASSOCIATION, Real Party in Interest,

Respondents.

4-

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

+

PETITION FOR WRIT OF CERTIORARI

+

DAVID SPANGENBERG R. S. RADFORD

Of Counsel Counsel of Record

Law Office of David Spangenberg _ Pacific Legal Foundation

420 Hudson Street, Suite A 3900 Lennane Drive, Suite 200

Healdsburg, California 95448 Sacramento, California 95834

Telephone: (707) 473-4340 Telephone: (916) 419-7111

Facsimile: (707) 473-0656 Facsimile: (916) 419-7747

Counsel for Petitioner

a

i

QUESTIONS PRESENTED

This case involves a regulatory takings claim brought

under the Fifth Amendment and 42 U.S.C. § 1983. The Ninth

Circuit Court of Appeals ruled that the claim was not ripe for

federal adjudication because Petitioner had not attempted to

obtain just compensation through state procedures, as required

by Williamson County Regional Planning Commission vy.

Hamilton Bank of Johnson City. The questions presented are:

1. Whether the court of appeals erred in holding—

contrary to the rule of the Fourth, Fifth, Seventh, and Eleventh

Circuits—that Petitioner must ripen its Fifth Amendment

takings claim by first pursuing just compensation in the

California state courts, when the courts of that state have

previously denied compensation in factually indistinguishable

cases, and the state’s supreme court has held that inverse

condemnation is not available for this class of takings claims?

2. Whether the court below erred in holding that

Williamson County requires Petitioner to ripen its Fifth

Amendment takings claim by pursuing state procedures that

cannot lead to payment of just compensation by the

government, but hold out the untested prospect of obtaining

offsetting revenues from private third parties who were in no

way responsible for the government’s confiscatory actions?

ii

TABLE OF CONTENTS

(HUES LEUNG PUREED 6 vic ce dkaecec case ewsceaeteen

TAB GP AUT HASEEE 6 has cae e see u eens ad ennne sca i

PETITION FOR WRIT OF CERTIORARI ...............

Soi 6 kt. Serre rer errr tere Perey eee a

io tt eer rr rr ork rrr es ret ee

CONSTITUTIONAL PROVISIONS AT ISSUE ............

STATEMENT GO Bee GAB oia5 kiss Cea en enc sk wens ise

REASONS WHY THE PETITION

SESULPULAD Sees GRAIG EEE ogo be wee oxen nea eae Hee

I. THIS COURT’S WILLIAMSON COUNTY

DECISION SHOULD NOT BE INTERPRETED

TO BAR FEDERAL TAKINGS CLAIMANTS

FROM ACCESS TO FEDERAL COURTS

WHEN, AS IN THIS CASE, THE STATE

COURTS DO NOT PROVIDE AN INVERSE

CONDEMNATION REMMBOIS occ ceaccesvcasccnnes

Il. THIS COURT MUST RESOLVE A CONFLICT

AMONG THE CIRCUIT COURTS OF APPEALS

AS TO WHETHER WILLIAMSON COUNTY

REQUIRES A FEDERAL TAKINGS CLAIMANT

TO SUBMIT TO ADJUDICATION BY STATE

COURTS THAT HAVE HELD THAT

COMPENSATION IS NOT AVAILABLE

UNDER THE FACTS OF THE CASE .............

ill

TABLE OF CONTENTS—Continued

Page

Ill. CERTIORARI SHOULD BE GRANTED

TO RESOLVE AN IMPORTANT QUESTION

LEFT UNANSWERED IN SUITUM V. TAHOE

REGIONAL PLANNING AGENCY—WHETHER

THE FIFTH AMENDMENT’S MANDATE OF

JUST COMPENSATION CAN BE SATISFIED

BY PROCEDURES THAT HOLD OUT THE

PROSPECT OF RECOVERY NOT FROM

THE GOVERNMENT, BUT FROM

THIRD PARTIES WHO BEAR NO

RESPONSIBILITY FOR THE TAKING ............ 15

woe epeapeayns Eee ETE Eee ee eee eee 18

iV

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon,

ae oe Ee ee er Perr rr rrr 5

Brown v. Board of Education,

ge | Se re ye errr eT Tee 6

Carson Harbor Village, Ltd. v. City of Carson,

SoS FOB SIG CU AE BO oc vs on tees nscaws vas 1

Coniston Corp. v. Village of Hoffman Estates,

ot ae, Ce | re ree nee e es 13

Corn vy. City of Lauderdale Lakes,

i bw Bee Lm a, :: ree arene 13

Felder v. Casey, 487 U.S. 131 (1988) ................ 1]

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

gee eee re eee rrr Te Tr ee 6-7

Galland v. City of Clovis,

LR Fe ee es Eo al nek ewe da eawseas 10-11

Hensler v. City of Glendale,

pie Fok se | ere rr rrr ere 6

Kavanau v. Santa Monica Rent Control

Board, 941 P.2d 851 (Cal. 1997) ........... 3, 5, 3,90,

Lucas v. South Carolina Coastal Council,

Se Ue CEE i G55 Kaa eae rca eaewanaens 7

Mola Development Corp. v. City of Seal Beach,

57 Cal. App. 4th 405, 67 Cal. Rptr. 2d 103,

ee Roe Gs Pree ery ee ree 9

SS ee eee

Vv

TABLE OF AUTHORITIES—Continued

Page

Montclair Parkowners Association v. City of Montclair,

76 Cal. App. 4th 784, 90 Cal. Rptr. 2d 598

(Cal. 4th Dist. Ct. App. 1999) .......0............ 14

Naegele Outdoor Advertising, Inc. v. City of Durham,

803 F. Supp. 1068, (M.D.N.C. 1992),

aff'd, 19 F.3d 11 (4th Cir. 1994), cert. denied,

ee 13

Rolf v. City of San Antonio,

77 F.3d 823 (Sth Cir. 1996) .......... ree ey 13

Samaad v. City of Dallas,

ee kh Oe | 13

Suitum v. Tahoe Regional Planning Agency,

ER Ree Ts) Sen ma ene ete 3, 15, 16

United States v. Dickinson,

152 F.2d 865 (4th Cir. 1946) .................... 17

Williamson County Planning Commission v.

Hamilton Bank of Johnson City,

OFe Wis BP COO a oo ds bd ca WRK eh wae Rs 2-4, 7

Yee v. Mobilehome Park Rental Review Board,

62 Cal. App. 4th 1409, 73 Cal. Rptr. 2d 227

a an See Maas ns ak yA PN Ina Se PAIR DO Deel cell Se hone whalers

(Cal. 4th Dist. Ct. App. 1998) .....0.............. 4

Statutes

a ek ROR eee ARS a NP EAL teens en os ]

le Mrs es x vd os wea wo ew eons i

Codes

Cal. Code of Civ. Proc. § 1094.5(b) ......-..-....--.. 7

Carson Municipal Code, Ch.7..............000000-0. l

vi

TABLE OF AUTHORITIES—Continued

Supreme Court Rules

BR eee eer ey ees er ee eee re |

Miscellaneous

Breemer, J. David, Overcoming Williamson

County’s Troubling State Procedures Rule:

How the England Reservation, Issue Preclusion

Exceptions, and the Inadequacy Exception Open the

Federal Courthouse Door to Ripe Takings Claims,

18 J. Land Use & Envtl. L. 209, (2003) .......... 7, 12

Browne, Sharon L., Administrative Mandamus

as a Prerequisite to Inverse Condemnation:

“Healing” California’s Confused Takings Law,

yee GS A i Qe eee TTT eee oe 7,9

Roberts, Thomas E., Fifth Amendment Takings

Claims in Federal Court: The State Compensation

Requirement and Principles of Res Judicata,

24 Unb, Low. GTP Coie 6 xcs che hac enavasaaes 12-13

Salzberg, Kenneth, “7akings” as Due Process,

or Due Process as “Takings’’?,

36 Val. U. 1. Bay. 473 GRD ksh kas cin naee keen 17

nA anoens «abe

RR ie BENE te Neg 5 .

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Carson Harbor Village, Ltd. (CHV), respectfully

prays that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Ninth

Circuit, entered in the above-entitled proceeding on January 2,

2004. -

OPINIONS BELOW

The decision of the United States Court of Appeals for the

Ninth Circuit is reported as Carson Harbor Village, Ltd. v. City

of Carson, 353 F.3d 824 (9th Cir. 2004), and is reproduced as

Appendix (App.) A. The Order of the court of appeals denying

CHV’s petition for rehearing and for rehearing en banc is

unreported and is reproduced as Appendix C. The Order of the

United States District Court for the Central District of

California is unreported and is reproduced as Appendix B.

JURISDICTION

The opinion of the Ninth Circuit Court of Appeals which

is the subject of this petition was filed and entered on January

2, 2004. App. A. The order of the Ninth Circuit denying

CHV’s petition for rehearing was entered on March 22, 2004.

App. C. A 30-day extension of time to file this petition was

granted by this Court on May 17, 2004. This petition for writ

of certiorari has been timely filed in accordance with Rule 13.1

of the Rules of this Court. This Court has jurisdiction over this

matter pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AT ISSUE

The Fifth Amendment to the United States Constitution

provides in pertinent part, “private property [shall not] be taken

for public use, without just compensation.”

The City of Carson’s Mobilehome Space Rent Control

Ordinance, as codified at Chapter 7 of the Carson Municipal

Code, is reproduced as Appendix D.

2

STATEMENT OF THE CASE

~ Under Williamson County Planning Commission v. Hamilton

Bank of Johnson City, 473 U.S. 172 (1985), plaintiffs who have

suffered an uncompensated taking of property may not assert

their Fifth Amendment rights in federal court until they have

pursued just compensation through state procedures —provided

that such procedures are available and adequate. Id. at 194-95

(emphasis added). This case presents the issue of state

compensation procedures so attenuated and roundabout that

they cannot in good conscience be deemed an adequate remedy

for a taking within the meaning of Williamson County, if indeed

such procedures can be construed to make a compensation

remedy available at all.

CHV owns and operates the Carson Harbor Village

Mobile Home Park in the City of Carson (City). The City’s

Mobilehome Space Rent Control Ordinance (Ordinance)

restricts the rent CHV may charge tenants for occupying spaces

in its park. The Ordinance initially fixed rents in the park in

1979, and does not provide for automatic rent increases to

account for inflation.

In June, 2000, CHV applied to the City’s Mobilehome

Park Rental Review Board (Rent Board) for rent adjustments

sufficient to return the park to a fair rate of return, measured by

the pre-rent-control return adjusted for inflation. App. A-5. In

response, the Rent Board adopted a final determination

approving adjustments totaling approximately six percent of

those CHV had requested. Jd. Consequently, CHV filed the

present action in federal district court under 42 U.S.C. § 1983,

alleging, inter alia, that the Rent Board had denied CHV a fair

return on its investment, depriving CHV of its reasonable,

investment-backed expectations and thereby infringing the

Takings Clause of the Fifth Amendment. /d.

Because the district court was under the mistaken belief

that CHV could have sought just compensation by filing an

a as

nr eceaci

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inverse condemnation claim in state court, CHV’s federal

takings claim was dismissed as unripe under Williamson

County. App. B-11-B-13.

On appeal, the Ninth Circuit affirmed the dismissal of

CHV’s takings claim on ripeness grounds. The appellate panel

correctly recognized that inverse condemnation is no longer

available to takings claimants in CHV’s position. App. A-8.

Instead, in Kavanau v. Santa Monica Rent Control Board, 941

P.2d 851 (Cal. 1997), the California Supreme Court limited

plaintiffs who allege a taking by operation of confiscatory rent

regulations to a due process remedy of a writ of mandate,

followed by a return to the Rent Board to request another rent

adjustment. App. A-8-A-9. Although the Ninth Circuit

correctly characterized the question of whether just

compensation could ever actually be obtained via~ these

procedures as “highly speculative,” App. A-13, the appellate

panel nevertheless held that scheme affords a reasonable,

certain, and adequate means of securing just compensation, as

required by Williamson County, 473 U.S. at 194.

CHV now petitions this Court to resolve a conflict among

the circuit courts of appeals on whether Williamson County bars

federal takings claimants from access to federal courts when the

state courts have previously held that compensation is not

available in such cases. Certiorari is also required to determine

whether the Ninth Circuit correctly interpreted Williamson

County as relegating federal takings claimants to state court

even when the state’s highest court has held that no inverse

condemnation claim may be stated for Petitioner’s taking.

Finally, CHV petitions this Ccurt to revisit an important

constitutional question left open in Suitum v. Tahoe Regional

Planning Agency, 520 U.S. 725 (1997): whether the Fifth

Amendment’s mandate of just compensation is satisfied by

procedures that cannot result in the payment of compensation

by the government, but conceivably might generate revenues

4

from private third parties to partially offset the financial impact

of the taking.

REASONS WHY THE PETITION

SHOULD BE GRANTED

I

THIS COURT’S WILLIAMSON COUNTY DECISION

SHOULD NOT BE INTERPRETED TO BAR

FEDERAL TAKINGS CLAIMANTS FROM ACCESS

TO FEDERAL COURTS WHEN, AS IN THIS CASE,

THE STATE COURTS DO NOT PROVIDE AN

INVERSE CONDEMNATION REMEDY

In Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 172, this Court set

out two requirements to “ripen” a regulatory takings claim for

adjudication in federal court. First, the plaintiff must have

received “a final decision regarding the application of the

regulations to the property at issue,” id. at 186; and second, the

plaintiff must have sought “compensation through the

procedures the State has provided for doing so.” Jd. at 194.

But the latter, “state procedures” prong of Williamson County

applies only when the state makes available “reasonable,

certain, and adequate” procedures for obtaining just

compensation for a taking. /d. (emphasis added). In

Williamson County itself, the Court’s finding that the plaintiff's

takings claim was unripe rested upon the immediate availability

of inverse condemnation proceedings in the Tennessee courts

“under certain circumstances”—specifically including the

circumstances presented by the facts of that case. Jd. at 196-97.

In the case at bar, it is undisputed that CHV has obtained

a final determination within the meaning of Williamson County.

App. A=7. Under California law, however, CHV is barred from

filing an inverse condemnation claim for just compensation.

Instead, rental property owners like CHV, with a fully ripe

takings claim under the first prong of Williamson County, are

oO nk Mian MMe anata concn

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AO lO ANAT A Rat Hai Has Aces PN

5

limited to a due process remedy of administrative mandamus,

followed (if mandamus is granted) by a return to the offending

State agency to seek a second final determination of the same

administrative application the agency has already considered

and denied. Rejecting CHV’s argument that resort to such

measures cannot be required under Williamson County, the

Ninth Circuit held that CHV is required to seek compensation

under the procedures established by the California Supreme

Court in Kavanau v. Santa Monica Rent Control Board, 941

P.2d 851 (Cal. 1997). App. A-12-A-14.

In Kavanau, the California Supreme Court foreclosed

payment of just compensation by the government as a remedy

for a plaintiff in CHV’s position, who alleges a regulatory

taking effected by the deprivation of a fair return on rental

property by the final determination of a local rent board. As

acknowledged by the court below, the only remedy available

under Kavanau is to “challenge the board’s actions by applying

for a writ of administrative mandate in state court,” followed (if

the writ is granted) by a return to the Rent Board and the re-

filing of the same petition for a rent adjustment that was already

denied.' App. A-9. Contrary to the appellate panel’s

interpretation, however, the Kavanau procedures were never

intended as, nor do they provide, a means for securing just

compensation for a taking.

To understand the present status of Fifth Amendment

takings claims in the California courts, it is helpful to review

the state’s historical approach to regulatory takings law. In

Agins v. City of Tiburon, 598 P.2d 25 (Cal. 1979), the

California Supreme Court expressly formulated a doctrine that

the state’s property owners had already learned: no

' Since CHV’s original petition sought only to return the park toa

fair rate of return—the minimum standard necessary to avoid a

taking—any hypothetical second petition would necessarily seek an

identical adjustment.

6

compensation remedy existed in that state for regulatory

takings. Jd. at 30-31. Owners whose property was confiscated

by excessive regulation were limited to a due process remedy

of invalidation of the offending statute or regulation. Jd.

This Court directly confronted and overruled Agins in

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987). Squarely

rejecting the California Supreme Court’s rule that takings

claimants could be limited to a due process remedy, this Court

stated:

[G]overnment action that works a taking of

property rights necessarily implicates the

constitutional obligation to pay just

compensation.

First English, 482 U.S. at 315. Accordingly, the California

Supreme Court doctrine espoused in Agins was overruled as

“inconsistent[] with the requirements of the Fifth Amendment.”

Jd. at 311.

However, as this Court had previously learned with Brown

v. Board of Education, 347 U.S. 483 (1954), it is one thing to

instruct the state courts on the requirements of the Constitution,

but it can be quite another matter to obtain compliance with

those instructions. In response to First English, the California

: Supreme Court created a stringent new procedural rule which

had the effect of dramatically limiting claims for regulatory

takings. Under .Yensler v. City of Glendale, 876 P.2d 1043

(Cal. 1994), regulatory takings claims must still proceed by way

of administrative mandamus or declaratory relief. Jd. at 1056-

60. Only ifa takings claimant first has the offending regulation

invalidated via these procedures may he then seek

compensation.

Obviously, mandamus is not an appropriate remedy for a

taking. Indeed, such a proceeding has been expressly

a

:

recognized as inadequate for this purpose. See First English,

482 U.S. at 317 (disapproving as inadequate the California

Supreme Court’s doctrine of allowing only mandamus or

declaratory relief as remedies for a taking); Williamson County,

473 U.S. at 197. A petition for administrative mandate seeks to

invalidate the application of a regulation or ordinance as an

abuse of discretion (Cal. Code of Civ. Proc. § 1094.5(b))—a

result that is “universally recognized as a due process remedy.”

J. David Breemer, Overcoming Williamson County’s Troubling

State Procedures Rule: How the England Reservation, Issue

Preclusion Exceptions, and the Inadequacy Exception Open the

Federal Courthouse Door to Ripe Takings Claims, 18 J. Land

Use & Envtl. L. 209, 261 n.285 (2003). Invalidation of the

government's action is simply irrelevant to a Fifth Amendment

takings claim, in which the plaintiff may readily acknowledge

that the taking was accomplished through an otherwise

legitimate exercise of state authority. See Sharon L. Browne,

Administrative Mandamus as a Prerequisite to Inverse

Condemnation: ~ “Healing” California’s Confused Takings

Law, 22 Pepp. L. Rev. 99, 125 (1994):

[It is unclear] why injured property owners should be

forced to seek an invalidation remedy . . . when the

legitimacy of the regulation may be conceded by the

owner from the outset .... Until now, it had not

been suggested that a writ of administrative

mandamus is required to remedy permissible

governmental actions.

See also Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1009 (1992) (Lucas “did not take issue with the validity

of the Act”).

Thus, the initial response of the California Supreme Court

to First English was to establish that regulatory takings

plaintiffs must effectively pursue a due process remedy before

compensation under the Fifth Amendment will even be

8

considered. Only three years later, in Kavanau v. Santa Monica

Rent Control Board, 941 P.2d 851, the state’s high court went

further and established that—at least where a taking is alleged

through the confiscatory effects of rent regulations—the due

process remedy mandated by Hens/er altogether forecloses an

inverse condemnation remedy.

In Kavanau, the plaintiff complied to the letter with

Hensler’s rigorous procedural demands. His administrative

mandamus petition was filed within the fleeting 90-day statute

of limitations and, remarkably, Kavanau obtained a judgment

from the state appellate court finding that the rent board’s

application of its regulations were unconstitutionally

confiscatory. /d. at 855. Still complying with the procedures

specified in Hensler, Kavanau then filed a timely inverse

condemnation action seeking compensation for the period

during which the rent board had wrongfully deprived him of a

fair return. Jd.

- Atthis point the California Supreme Court, faced with the

prospect of actually subjecting an entity of California

government to the requirements of the Takings Clause, created

a new doctrine by which it could avoid doing so. Having

already established (in Hensler) that obtaining a due process

remedy was a prerequisite to seeking just compensation for a

taking, the Kavanau court went on to rule that the due process

remedy was also, at least in this class of cases, a substitute for

compensation. According to the court’s reasoning, because

Kavanau could return to the rent board and go through the

petitioning process anew (to once more seek the rent increases

that had previously been denied), this in itself was an adequate

remedy for the taking:

[A] remedy for [a] due process violation, if

available and adequate, obviates a finding of a

taking.

Kavanau, 941 P.2d at 865 (emphasis added).

:

|

I

9

Because every takings claimant is required, under

California’s procedural scheme, to obtain a due process remedy

as a prerequisite to pursuing inverse condemnation, and a due

process remedy obviates the finding of a taking (and therefore

moots any inverse condemnation claim), the California

Supreme Court has effectively foreclosed inverse condemnation

as a remedy in all cases such as the one at bar. Notwithstanding

this Court’s pronouncement in First English overruling the

1979 Agins doctrine, the California Supreme Court has in fact

retained the Agins rule: inverse condemnation is not

recognized as a remedy for the sort of taking alleged in this

case, as a matter of law.

Even if CHV, like Earl Kavanau, should prevail at a

constitutionally inadequate mandamus hearing,’ the most it

could obtain would be an order compelling the Commission to

set aside its final determination and open a new hearing on

CHV’s rent-increase petition. Cal. Code of Civ. Proc.

§ 1094.5(b). Just compensation from the City for its already

completed violation of the Fifth Amendment would still not be

available under Kavanau. This highlights the Ninth Circuit’s

erroneous belief that “inverse condemnation and section 1983

> Mandamus hearings normally review only the record compiled by

the defendant agency—whose proceedings do not include such

fundamental safeguards as formal evidentiary rules, the right to

cross-examine witnesses, or the ability to compel attendance or

testimony. Worse, this constitutionally inadequate record is

reviewed under a deferential, “substantial evidence” standard, the

results of which will be res judicata for purposes of any subsequent

litigation. See Sharon L. Browne, 22 Pepp. L. Rev. at 125; Mola

Development Corp. v. City of Seal Beach, 57 Cal. App. 4th 405, 410-

411, 67 Cal. Rptr. 2d 103, 107 (Cal. 4th Dist. Ct. App. 1997) (failure

to pursue mandamus hearing is res judicata, and inverse

condemnation deemed waived, even though the administrative

decision was reached without affording plaintiff the right to

subpoena or cross-examine witnesses, and owner asserted violation

of federal rights under Section 1983).

nee

10

damages remedies appear to remain available if the

mandamus/Kavanau adjustment remedy proves inadequate.”

App. A-12. Far from holding out any reasonable expectation of

a subsequent inverse condemnation claim, the Kavanau court

pointedly evaded this issue, declaring that it would not “decide

what alternative remedy might be appropriate if a landlord can

establish that the remedy of future rent adjustments is for some

reason unavailable.” 941 P.2d at 867. The California court did

not even mention inverse condemnation as being among the

hypothetical remedies which it “might” deem appropriate in a

second takings action. The hypothetical availability of a

remedy so speculative that it has never been described with

specificity, much less awarded, cannot constitute a “reasonable,

certain, and adequate” method for obtaining just compensation,

as required by the Supreme Court in Williamson County.

This is why the California Supreme Court itself has never

characterized the Kavanau procedures as a compensation

remedy for a regulatory taking within the meaning of

Williamson County. Instead, the Kavanau court expressly

fashioned a due process remedy, which that court found would

“obviate” a finding of takings liability for plaintiffs in the

position of CHV. See Kavanau, 941 P.2d at 865. The state’s

high court was quite clear in ruling that an aggrieved property

owner in CHV’s position “is not entitled to maintain an

inverse condemnation action.” Id. at 854 (emphasis added).

Again, a rental property owner who has been deprived of a fair

return “has not stated a viable inverse condemnation claim.”

Id. at 867 (emphasis added). As Justice Baxter stated in

dissent, the Kavanau majority held “that a compensable taking

cannot occur” under the facts of that case or the case at bar. Jd.

at 872 (Baxter, J., dissenting) (emphasis added). Accord

Galland v. City of Clovis, 16 P.3d 130, 134 (Cal. 2001)

(Kavanau “precluded a claim for inverse condemnation’)

(emphasis added).

11

By limiting the remedy available to plaintiffs who assert

civil rights violations under 42 U.S.C. § 1983 to a return to the

very state officials charged with violating their rights, the

California courts have placed themselves at odds with the

fundamental purpose and function of Section 1983. As Justice

Brown stated in dissent in Galland v. City of Clovis, 16 P.3d at

161 (Brown, J., dissenting):

The thrust of [the Supreme Court’s section 1983]

decisions is that, far from relegating plaintiffs to the

same corrupt system that inflicted their injury,

section 1983 exists to give plaintiffs an adjudicative

alternative that will ensure protection of their rights.

Therefore, as the high court stated in [Felder v.

Casey, 487 U.S. 131, 147 (1988)], “there is simply

no reason to suppose that Congress . .. contemplated

that those who sought to vindicate their federal rights

. . could be required to seek redress in the first

instance from the very state officials whose hostility

to those rights precipitated their injuries.”

By holding such a procedure to be an adequate means of

securing compensation under Williamson County, the Ninth

Circuit has effectively deprived California takings claimants of

a forum to assert their Fifth Amendment rights. Intervention by

this Court is the last hope for California property owners, who

seek nothing more than an adequate forum in which to pursue

their right to just compensation, as guaranteed by the Takings

Clause of the Fifth Amendment.

12

Il

THIS COURT MUST RESOLVE A CONFLICT

AMONG THE CIRCUIT COURTS OF APPEALS AS

TO WHETHER WILLIAMSON COUNTY REQUIRES

A FEDERAL TAKINGS CLAIMANT TO SUBMIT

TO ADJUDICATION BY STATE COURTS THAT

HAVE HELD THAT COMPENSATION IS NOT

AVAILABLE UNDER THE FACTS OF THE CASE

Notwithstanding Williamson County, a regulatory takings

claim is ripe for federal adjudication if the state courts have

consistently denied compensation for claims of the same type.

Such a situation is uniformly regarded as confirmation that the

state’s procedures for securing just compensation are

inadequate, within the meaning of Williamson County.

The difficult question is when the inadequacy

_exception should apply. Several courts have

indicated that it is relevant where there is a high

degree of certainty that state courts will refuse to

award just compensation and that it definitely

applies where the takings claim is on all fours with

previous state decisions that deny compensation. A

logical generalization from these decisions is that the

exception should at least apply where the claimant

shows, through an analysis of state law and judicial

outcomes, that a resort to state procedures is highly

likely to be futile; i.e., where courts construct takings

law to virtually foreclose vindication of a particular

takings claim and where it is empirically clear that

the state process rarely, if ever, results in an award of

damages.

J. David Breemer, 18 J. Land Use & Envtl. L. at 258-59

(emphasis added; footnotes deleted). See also Thomas E.

Roberts, Fifth Amendment Takings Claims in Federal Court:

ee — Se

13

The State Compensation Requirement and Principles of Res

Judicata, 24 Urb. Law. 479, 497 (1992) (if state courts have

already denied compensation for same type of claim, the case

is ripe for federal adjudication).

This interpretation of Williamson County is settled law in

the courts of the Fourth Circuit. See Naegele Outdoor

Advertising, Inc. v. City of Durham, 803 F. Supp. 1068, 1072-

73 (M.D.N.C. 1992), aff'd, 19 F.3d 11 (4th Cir. 1994), cert.

denied, 513 U.S. 928 (1994) (holding a Fifth Amendment

takings challenge was ripe for federal adjudication because the

State courts had already rejected compensation in identical

circumstances). The Fifth Circuit applies the same rule. In

Samaad vy. City of Dallas, 940 F.2d 925 (5th Cir. 1991), that

court of appeals found Williamson County to carry an

implication that “the mere existence of some compensation

mechanism does not necessarily render those procedures

adequate.” Jd. at 934. The Samaad court went on to survey

cases establishing that “ ‘inadequate’ procedures are those that

almost certainly will not justly compensate the claimant.” See

also Rolf v. City of San Antonio, 77 F.3d 823, 826 (Sth Cir.

1996) (state procedures under Williamson County “are

inadequate when they ‘almost certainly will not justly

compensate the claimant””) (quoting Samaad, 940 F.2d at 934).

The Seventh Circuit came to the same conclusion in Coniston

Corp. v. Village of Hoffman Estates, 844 F.2d 461, 463 (7th

Cir. 1988) (a takings claim is ripe for federal adjudication when

“it is apparent that the state does not intend to pay

compensation”); as did the Eleventh Circuit in Corn v. City of

Lauderdale Lakes, 816 F.2d 1514, 1516-17 (11th Cir. 1987)

(holding a takings claim arising from application of zoning was

ripe for federal adjudication because the Florida Supreme Court

did not recognize a compensation claim for confiscatory

zoning).

In California, no published decision of the state courts has

ever awarded or upheld an award of just compensation for a

14

taking that did not entail a physical invasion or occupation of

property. More specifically, the state courts have repeatedly

and uniformly denied compensation in cases arising from the

same legal and factual milieu as the case at bar, involving

takings challenges triggered by the confiscatory impact of

mobile home rent control ordinances. See, e.g., Yee v.

Mobilehome Park Rental Review Board, 62 Cal. App. 4th

1409, 73 Cal. Rptr. 2d 227, 235-37 (Cal. 4th Dist. Ct.

App.1998) (describing park owner’s Fifth Amendment takings

suit as “an often rejected claim,” and denying compensation on

ground.that availability of a due process remedy “is a valuable

benefit that satisfies the takings clause”); Montclair

Parkowners Association v. City of Montclair, 76 Cal. App. 4th

784, 90 Cal. Rptr. 2d 598, 603-05 (Cal. 4th Dist. Ct. App. 1999)

(denying takings claim and expressly rejecting federal

precedent that would have mandated award of compensation).

Given California’s unequivocal record of rejecting

compensation claims on all fours with the one at bar, CHV’s

claim would have been deemed ripe for adjudication in federal

-court under the precedent of the Fourth, Fifth, Seventh, or

Eleventh Circuit. By denying Petitioner’s access to federal

court despite California’s clear rejection of substantially

identical takings claims, the Ninth Circuit has created a conflict

that can only be resolved by this Court.

The Ninth Circuit has left CHV no alternative but to

litigate before a state judiciary that has already ruled that

compensation is not available for claims of this type, and does

not even offer an inverse condemnation remedy—in the guise

of “ripening” its federal Fifth Amendment takings claim. This

absurd result cannot be what this Court intended in Williamson

County. Nevertheless, unless certiorari is granted for purposes

of ordering the Ninth Circuit to exercise its rightful jurisdiction,

property owners like CHV will continue to suffer deprivations

of rights supposedly guaranteed under the United States

Constitution, yet be denied the opportunity to defend those

OO

15

rights in federal court. Worse, the availability of a federal

forum to address violations of the Fifth Amendment will

depend entirely on the circuit in which the alleged violation

occurs.

IIl

CERTIORARI SHOULD BE GRANTED TO

RESOLVE AN IMPORTANT QUESTION LEFT

UNANSWERED IN SUITUM V. TAHOE REGIONAL

PLANNING AGENCY —WHETHER THE FIFTH

AMENDMENT’S MANDATE OF JUST

COMPENSATION CAN BE SATISFIED BY

PROCEDURES THAT HOLD OUT THE PROSPECT

OF RECOVERY NOT FROM THE GOVERNMENT,

BUT FROM THIRD PARTIES WHO BEAR NO

RESPONSIBILITY FOR THE TAKING

In Suitum v. Tahoe Regional Planning Agency, 520 U.S.

725, this Court vacated a Ninth Circuit decision that implicated

important issues raised by the case at bar. In Suitum, the

defendant agency had allegedly deprived the plaintiff of all

economically viable use of her land, but the Ninth Circuit found

the takings claim was not ripe under Williamson County. Id. at

733. The court of appeals held that Suitum’s claim could not

be litigated until she attempted to utilize the agency’s “transfer

of development rights” program—a scheme that held out the

(untested) possibility that Suitum could receive payments from

third-party property owners in the region, thereby offsetting the

financial impact of the regulations. Jd.

Because the Ninth Circuit had found Suitum’s claim

unripe under Williamson County’s first prong, this Court

expressly declined to decide whether such third-party offsets

could qualify as an adequate means of providing just

compensation within the meaning of Williamson County’s

second prong. Jd. at 728. However, Justice Scalia’s

concurrence, joined by Justices O’Connor and Thomas, drew

attention to “[t]he cleverness of the scheme” the agency had

16

devised, which “causes the payment to come, not from the

government, but from third parties.” Id. at 748 (Scalia, J.,

concurring in part and concurring in the judgment) (emphasis

in original).

In the present case, as in Suitum, the Ninth Circuit has

found a takings claim unripe because CHV has not pursued

similarly untested procedures which could never result in the

payment of compensation by the government, but nevertheless

might generate offsetting revenues from third parties via higher

future rents. Although CHV is barred from pursuing

compensation via inverse condemnation, the California courts

hold out the tenuous prospect that if CHV can prevail at a

constitutionally inadequate mandamus hearing and have the

Rent Board’s determination invalidated, and if CHV can then

succeed in prevailing upon the same Rent Board to grant

adjustments to offset the damages created by its prior

unconstitutional actions, then CHV can attempt to impose those

adjustments on future tenants—who may be a completely

different population from those who benefitted from the Rent

Board’s past infractions, and who may or may not be willing

and able to pay amounts sufficient to offset CHV’s losses. The

troubling aspects of regarding such a remedy as satisfying the

Fifth Amendment’s mandate of just compensation were

highlighted by Judge O’Scannlain in his special concurrence

below.

The Fifth Amendment requires that private property not be

taken for public use “without payment of just compensation.”

Since the sole function of the Constitution is to constrain

government action, it would have been redundant to insert the

words “by the government” at the end of the clause. That the

government may not evade the compensation requirement by

dragooning innocent third parties and forcing them to pay its

debts should be implicit in our understanding of the

Constitution and its function. Yet as Judge O’Scannlain noted

below, under California’s Kavanau procedures, even if a

17

property owner should succeed in obtaining the remedy the

state holds out, “the burden of compensation falls not on the

government as the representative of the benefitting general

public, but on a select group of future tenants.” App. A-14.

Judge O’Scannlain continues:

[T]he clear import . . . of the language of the Fifth

Amendment itself, is that those whose property has

been taken for public use must be compensated by

the general public through the government. The

Fifth Amendment is therefore violated when

government attempts to lay the general public’s

burden of just compensation on third parties.

Id. A-15. Not only has the Supreme Court “invariably operated

under the assumption that the government is the entity charged

with paying just compensation,” id., this assumption also

permeates lower court opinions and the legal literature on Fifth

Amendment takings. See, e.g., United States v. Dickinson, 152

F.2d 865, 868 (4th Cir. 1946) (“compensation must be paid by

the government under the rules established by the decisions”)

(citing to six decisions of the Supreme Court; emphasis added);

Kenneth Salzberg, “Takings” as Due Process, or Due Process

as “Takings”’?, 36 Val. U. L. Rev. 413, 420 n.42 (2002) (“plain

meaning of the Takings Clause . . . provides that just

compensation must be paid by the government to the affected

property owner’’) (emphasis added)).

Judge O’Scannlain’s conclusion, that a plaintiff must

actually utilize California’s Kavanau procedures before

complaining that they are constitutionally inadequate, sets

uneasily with his recognition that these procedures could never

result in an award of just compensation from the City. App. A-

16. Whether such procedures can be deemed adequate within

the meaning of Williamson County requires resolution of the

question this Court left unresolved in Suitum: whether the Fifth

Amendment requires just compensation to be paid by the

18

government agency responsible for the taking, or whether that

liability can be passed on to private third parties who bear no

responsibility for the government’s confiscatory actions.

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be granted.

DATED: July, 2004.

Respectfully submitted,

DAVID SPANGENBERG R.S. RADFORD

Of Counsel Counsel of Record

Law Office of David Spangenberg Pacific Legal Foundation

420 Hudson Street, Suite A 3900 Lennane Drive, Suite 200

Healdsburg, California 95448 Sacramento, California 95834

Telephone: (707) 473-4340 Telephone: (916) 419-7111

Facsimile: (707) 473-0656 Facsimile: (916) 419-7747

Counsel for Petitioner

Appendix A

Appendix B

Appendix C

Appendix D

INDEX

Opinion of the Ninth Circuit Court

of Appeals, filed January 2, 2004.

Order of the United States District

Court for the Central District of

California, filed June 11, 2002.

Order of the Ninth Circuit Court of

Appeals, filed March 22, 2004.

City of Carson’s Mobilehome

Space Rent Control Ordinance.

Appendix A-1

No. 02-56213

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

CARSON HARBOR VILLAGE, LTD., ) Argued and

a Limited Partnership dba Carson ) Submitted

HarborVillage Mobile Home Park, ) June 3, 2003

)

Plaintiff-Appellant, ) Filed

Vv. ) Jan. 2, 2004

- )

CITY OF CARSON, a Municipal )

Corporation; Carson City Mobilehome )

Park Rental Review, Board, )

)

Defendants-Appellees, )

and )

)

Carson Harbor Village Mobilehome )

Park Homeowners Association, Real )

Party in Interest, )

)

Defendant. )

)

*REKY*

Background: Owner of mobile home park brought suit

under § 1983 against city and city rental review board alleging

that mobile home rent control laws violated of the Takings

Clause of the Fifth Amendment. The United States District

Court for the Central District of California, Robert J. Kelleher,

J., dismissed the claims as unripe and owner appealed.

Appendix A-2

Holding: The Court of Appeals, Fisher, Circuit Judge,

held that claim was not ripe for adjudication in federal court.

Affirmed.

O’Scannlain, Circuit Judge, concurred specially and filed

opinion.

David Spangenberg, Healdsburg, California, for the

plaintiff-appellant.

Rochelle Browne, Peter M. Thorson, Richards Watson &

Gershon, Los Angeles, California, for the defendants-appellees

City of Carson and City of Carson Mobilehome Park Rental

Review Board.

Appeal from the United States District Court for the Central

District of California, Robert J. Kelleher, District Judge,

Presiding. D.C. No. CV-01- 04799-RJK.

Before: REINHARDT, O’SCANNLAIN and FISHER, Circuit

Judges. é

FISHER, Circuit Judge.

“We are called upon to consider, yet again, a takings

challenge to mobile home rent control laws.” Levald, Inc. v.

City of Palm Desert, 998 F.2d 680, 683 (9th Cir.1993). Carson

Harbor Village, Ltd. (“Carson Harbor’) is a large mobile home

park located in the City of Carson (“City”). This case arises out

of the City’s handling of Carson Harbor’s June 2000 and April

2001 applications for rent increases. In June 2000, Carson

Harbor applied for monthly rent increases ranging from

approximately $223 to $241 per mobile home space, but the

City’s Mobilehome Park Rental Review Board (“Board”)

a eee

Appendix A-3

approved an increase of only $14.29 per space.' Thereafter,

Carson Harbor sued in federal district court under 42 U.S.C. §

1983 claiming a violation of the Fifth Amendment’s Takings

Clause. The district court dismissed Carson Harbor’s

regulatory takings claims as unripe under Rule 12(b)(1) of the

Federal Rules of Civil Procedure. Carson Harbor now appeals.”

We agree that this regulatory takings claim is unripe.

Carson Harbor has failed to avail itself of state procedures for

seeking just compensation, as required by Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), and

has failed to show that these procedures are inadequate.

' In April 2001, Carson Harbor filed an application for $295,657 in

regulatory lag rents, attorney’s fees and costs incurred in obtaining

the $14.29 rent increase, but the City allegedly refused to process the

application.

? As a preliminary matter, we will not consider Carson Harbor’s

second regulatory takings claim, challenging the City’s alleged

refusal to process the April 2001 regulatory lag rent application.

Carson Harbor does not address the dismissal of this claim in its

appellate brief and has therefore waived this issue on appeal. See

Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 511 (9th Cir.2002):

Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir.1996). Therefore, the

only claim we address in this opinion is Carson Harbor’s regulatory

takings claim challenging the Board’s partial denial of Carson

Harbor’s June 2000 rent increase application.

In addition to the regulatory takings claims, Carson Harbor also

brought substantive due process, procedural due process and equal

protection claims challenging the City’s handling of the June 2000

and April 2001 rent increase applications. We address these claims

in a separate memorandum disposition filed contemporaneously with

this opinion.

~

Appendix A-4

Accordingly, we affirm the district court’s dismissal of Carson

Harbor’s regulatory takings claim.

FACTUAL AND PROCEDURAL BACKGROUND’

Carson Harbor is a 420 space, 70 acre mobile home park

located in the City of Carson, California and accounts for

approximately 17 percent of the City’s mobile home rental

housing. In 1979, the City enacted the Mobilehome Space Rent

Control Ordinance (“Ordinance”), which places a ceiling on

rent levels for mobile home spaces. See Carson Municipal

Code (“CMC”), Art. IV, Ch. 7, §§ 4700 et seg. The purpose of

the Ordinance was to prevent mobile home park owners from

exploiting a perceived shortage in mobile home spaces by

charging high rents. When the Ordinance was enacted, Carson

Harbor was newly opened and was offering below-market rents

in an effort to attract tenants. The Ordinance froze those

below-market rents in place and required Carson Harbor to

secure the Board’s approval before instituting any rent

increases.

The Ordinance does not provide for automatic rent

increases for inflation or changed circumstances such as

increased costs of operation or capital investments. Instead, a

mobile home park owner seeking a rent adjustment above the

ceiling must submit a rent increase application to the Board.

CMC §§ 4703, 4704. The Board must then hold a public

hearing,- at which the mobile home park owner, affected

residents and other interested persons may offer testimony. Jd.

> This factual background is based on the complaint. Because

this case was dismissed for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1), the facts alleged in the complaint .

must be accepted as true. Winn v. Killian, 307 F.3d 1011, 1014

n. 1 (9th Cir.2002).

SS lllltttts—i—s

Appendix A-5

§ 4704(e)(f). After a hearing on a proposed rent increase, the

Board “may approve the rent increase requested, approve a

modified rent increase or deny the application pursuant to the

standards established by subsection[ ](g)[ ] of this Section.” Jd.

§ 4704(f)(3). Subsection (g) in turn provides that the Board

“shall grant such rent increases as it determines to be fair, just

and reasonable. A rent increase is fair, just and reasonable if it

protects Homeowners from excessive rent increases and allows

a fair return on investment to the Park Owner.” Jd. § 4704(g).

The Board must consider 11 enumerated but nonexclusive

factors when making its determination. Jd. These include

changes in the Consumer Price Index, capital improvements to

mobile home spaces and changes in reasonable operating and

maintenance expenses. /d.

This case arises out of the City’s handling of Carson

Harbor’s June 2000 application for a rent increase. On June 28,

2000, Carson Harbor applied for monthly rent increases ranging

from $222.65 to $240.73 for 407 of its 420 mobile home

spaces. Carson Harbor claims that it sought the increases “so

that the fair rate of return in 1999 would equal the fair rate of

return at the inception of rent control in constant dollars.” The

Board held a hearing on the proposed increases on February 29,

2001, and subsequently approved a monthly rent increase of

only $14.29 per space. Carson Harbor alleges that the Board

“arbitrarily excluded hundreds of thousands of dollars in

legitimately incurred operating expenses” in determining the

size of the rent increase and that the Ordinance, “as applied,

totally destroyed Plaintiff's reasonable investment-backed

expectations.”

On May 29, 2001, Carson Harbor filed a complaint in

federal district court under 42 U.S.C. § 1983 alleging that the

Board’s partial denial of its June 2000 rent increase application

constituted a regulatory taking of property in violation of the

Fifth Amendment’s Taking Clause, made applicable to the

Appendix A-6

states through the Fourteenth Amendment. The defendants

subsequently moved to dismiss Carson Harbor’s regulatory

takings claim for lack of subject matter jurisdiction under Rule

12(b)(1) of the Federal Rules of Civil Procedure. The district

court granted the motion, holding that Carson Harbor’s

regulatory takings claim was unripe because Carson Harbor had

failed to pursue state remedies for just compensation as

required by Williamson.

STANDARD OF REVIEW

We review de novo a district court’s dismissal of a

complaint for lack of subject matter jurisdiction under Rule

12(b)(1). Nurse v. United States, 226 F.3d 996, 1000 (9th

Cir.2000). In reviewing the Rule 12(b)(1) dismissal, we must

accept all factual allegations in the complaint as true. Jd.

DISCUSSION

Under Williamson, an as-applied takings claim is ripe only

if the plaintiff can establish that (1) “the government entity

charged with implementing the regulations has reached a final

decision regarding the application of the regulations to the

property at issue,” and (2) the claimant has sought

“compensation through the procedures the State has provided -

for doing so.” 473 U.S. at 186, 194, 105 S.Ct. 3108; see also

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733-34,

117 S.Ct. 1659, 137 L.Ed.2d 980 (1997). The first ripeness

requirement embodies “the important principle that a landowner

may not establish a taking before a land-use authority has the

opportunity, using its own reasonable procedures, to decide and

explain the reach of a challenged regulation.” Palazzolo v.

Rhode Island, 533 U.S. 606, 620, 121 S.Ct. 2448, 150 L.Ed.2d

592 (2001). As a general rule, until the landowner has

“followed reasonable and necessary steps to allow regulatory

agencies to exercise their full discretion in considering [whether

‘

Appendix A-7

to grant the landowner’s request], including the opportunity to

grant any variances or waivers allowed by law[,]... the extent

of the restriction on property is not known and a regulatory

taking has not yet been established.” Jd. at 620-21. 121 S.Ct.

2448. “The second [ripeness requirement] stems from the Fifth

Amendment’s proviso that only takings without “just

compensation’ infringe that Amendment; ‘ifa State provides an

adequate procedure for seeking just compensation, the property

owner cannot claim a violation of the Just Compensation

Clause until it has used the procedure and been denied just

compensation.” Suitum, 520 U.S. at 734, 117 S.Ct. 1659

(quoting Williamson, 473 U.S. at 195, 105 S.Ct. 3108).

We think it beyond question—and the City does not

dispute—that Carson Harbor’s regulatory takings claim satisfies

the first (finality) prong of the Williamson ripeness test. Carson

Harbor made a meaningful application for a variance from the

rent control law by submitting an application for a rent increase

in June 2000, which the Board partially granted and partially

denied on February 28, 2001. See Carson Harbor Village Ltd.

v. City of Carson, 37 F.3d 468, 475(9th Cir.1994) (holding than

an earlier regulatory takings claim satisfied the first prong of

Williamson because Carson Harbor had applied for a rent

increase, which was partially granted and partially denied),

overruled in part on other grounds by WMX Techs. v. Miller.

104 F.3d 1133, 1136 (9th Cir.1997) (en banc); see also

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1232 (9th

Cir.1994).

The disputed question on appeal is whether Carson Harbor

has satisfied the second (exhaustion) prong of Williamson.

Carson Harbor admits that it has failed to seek state remedies

for the alleged taking, but argues that it is not required to do so

because those remedies are inadequate. Williamson itself held

that a plaintiff may be excused from exhausting state remedies

if the plaintiff demonstrates that the remedies are “unavailable

Appendix A-8

or inadequate.” 473 U.S. at 197, 105 S.Ct. 3108; see also

Wash, Legal Found. v. Legal Found. of Wash., 271 F.3d 835,

851 (9th Cir.2001) (en banc), aff'd by Brown v. Legal Found.

of Wash., 538 U.S. 216, 123 S.Ct. 1406, 155 L.Ed.2d 376

(2003). ““A landowner who seeks to sue in federal court before

seeking compensation from the state ‘bears the burden of

establishing that state remedies are inadequate.’” Del Monte

Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496,

1506-07 (9th Cir.1990) (quoting Austin v. City & County of

Honolulu, 840 F.2d 678, 680 (9th Cir.1988)). “A landowner

fails to discharge this burden by showing that state procedures

are untested or uncertain.” Jd. at 1507; see also Bateson v.

Geisse, 857 F.2d 1300, 1306 (9th Cir.1988); Austin, 840 F.2d

~ at 681.

The question, then, is whether Carson Harbor has shown

that California’s procedures for seeking just compensation are

inadequate. Until the California Supreme Court decided

Kavanau v. Santa Monica Rent Control Board, 16 Cal.4th 761

66 Cal.Rptr.2d 672, 941 P.2d 851 (1997), the state procedure

for obtaining just compensation for a takings claim was to bring

an inverse condemnation action in state court. If that had

remained the procedure when the taking allegedly occurred in

this case, there would be no question that California’s

compensation remedies were adequate and that Carson Harbor’s

takings claim would be unripe. We have “expressly held that,

post 1987, California’s inverse condemnation procedures are

adequate to address a regulatory takings claim.” San Remo

Hotel y. City & County of San Francisco, 145 F:3d 1095, 1102

(9th Cir.1998) (citing Christensen v. Yolo County Bd. of

Supervisors, 995 F.2d 161, 164 (9th Cir.1993):; Schnuck v. City

of Santa Monica, 935 F.2d 171, 174 (9th Cir.1991)).

Kavanau and, subsequently, Galland v. City of Clovis, 24

Cal.4th 1003, 103 Cal.Rptr.2d 711, 16 P.3d 130 (2001),

however, have modified California’s procedure for seeking just

Appendix A-9

compensation in a takings case. In Kavanau, the court held that

“a landlord may not obtain inverse condemnation damages

against a government agency for temporarily imposing rent

ceilings . . . so as long as the landlord was able to obtain an

adequate adjustment of prospective rents that would

compensate for past losses.” Galland, 103 Cal.Rptr.2d 711, 16

P.3d_at_143 (interpreting Kavanau); see Kavanau, 66

Cal.Rptr.2d 672, 941 P.2d at 854 (“[W]e conclude Kavanau is

not entitled to maintain an inverse condemnation action,

because he may obtain a full and adequate remedy for any

interim loss flowing from the due process violation through an

adjustment of future rents under the rent regulation process.”).

Before an owner of rental property can bring a state inverse

condemnation proceeding against a rental review board, the

owner must first challenge the board’s actions by applying for

a writ of administrative mandate in state court. See Galland

103 Cal.Rptr.2d 711, 16 P.3d at 143. Once the writ has been

granted, the property owner must then seek an adjustment of

future rents from the rental review board. Such an adjustment

is also referred to as a “Kavanau adjustment.” See id. at 145.

In Galland, the court considered the further question

whether a property owner could seek section 1983 damages in

state court for a violation of substantive due process before

seeking a writ of mandate and a Kavanau adjustment. The

court answered this question in the negative: “[WJhen

landlords seek section 1983 damages from allegedly

confiscatory rent regulation, we hold that they must show (1)

3 that a confiscatory rent ceiling or other rent regulation was

imposed and (2) that relief via a writ of mandate and a Kavanau

adjustment is inadequate.” Jd. at 145. Under Kavanau and

Galland, then, it appears that a landowner must seek a writ of

mandate and Kavanau adjustment before bringing an inverse

condemnation or section 1983 action in state court. Kavanau

Appendix A-10

and Galland thus mark a significant change in California’s state

law remedies for excessive rent control.4

* The district court and the defendants try to distinguish

Kavanau on the ground that the Kavanau court did not reach

the question whether a taking had occurred. That distinction

misses the point. The Kavanau court concluded that there was

no need to decide whether the rent regulation constituted a

taking, because even if it did, the mandamus/Kayvanau

adjustment process provided an adequate remedy. Kavanau, 66

Cal. Rptr.2d 672, 941 P.2d at 865. The district court and the

defendants also try to distinguish Galland on the ground that it

dealt with a substantive due process challenge, not a takings

challenge. This, too, is an irrelevant distinction because the

Galland court expressly recognized takings and substantive due

process claims as interchangeable:

To be sure, Kavanau involved a takings claim, and this case is

concerned with what is labeled substantive due process. But we

have recognized that a price regulation that causes confiscation

may be designated interchangeably as either a taking of property

under the Fifth and Fourteenth Amendments of the United

States Constitution or a violation of due process. It would be

incongruous for us to conclude, on the one hand, as we did in

Kavanau, that a landlord permitted adequate rent adjustments

had not suffered a constitutional injury under the takings clause,

but, on the other hand, that he or she has suffered such an injury

under the due process clause.

Galland, 103 Cal.Rptr.2d 711, 16 P.3d at 144 (citations

omitted). We do not here consider the accuracy of the court’s

characterization of federal law. As a matter of state law,

however, the court’s treatment of takings and substantive due

process claims as interchangeable indicates that regardless of

which claim the property owner asserts, the landlord must first

pursue the mandamus/Kavanau process before bringing an

(continued...)

fia.

ah AG tree

Appendix A-11

Carson Harbor argues that Kavanau and Galland have

rendered California’s compensation scheme inadequate. In

Hacienda Valley Mobile Estates v. City of Morgan Hill, 353

F.3d 651, No. 02-15986, 2003 WL 22961340 (9th Cir. Dec.17,

2003), we recently concluded that the mobile home park owner

failed to show that California’s state remedies are inadequate.

Id. at 659, 2003 WL 22961340 at *6. Carson Harbor contends,

however, that Kavanau and Galland have effectively deprived

rent-controlled property owners of the ability to bring inverse

condemnation or section 1983 damages actions, which places

them in the very position the Supreme Court declared

unconstitutional in First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct.

2378, 96 L.Ed.2d 250 (1987). Before First English was

decided, a landowner could not maintain an inverse

condemnation proceeding in California state court based on a

regulatory taking. See Agins v. City of Tiburon, 24 Cal.3d 266,

157 Cal.Rptr. 372, 598 P.2d 25, 29- 31 (1979), aff'd on other

grounds, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980).

Under Agins, the landowner’s sole remedy was to bring an

action for a writ of mandate. Even if the writ were granted, the

landowner could not receive compensation for damages

incurred before issuance of the writ; rather, the landowner could

only receive compensation for damages incurred after the writ

was issued, if the government persisted in enforcing the

invalidated regulation. In First English, the United States

Supreme Court abrogated the Agins rule, holding that

California’s writ of mandate was an inadequate remedy for a

regulatory taking of property. 482 U.S. at 321, 107 S.Ct. 2378.

Carson Harbor argues that Kavanau and Galland have in effect

restored the Agins rule, and that First English therefore requires

us to declare California’s compensation scheme inadequate.

* (...continued)

inverse condemnation action or section 1983 action for

damages in state court.

Appendix A-12

We do not read Kavanau and Galland as reinstating the

Agins rule: First, the mandamus/Kavanau adjustment remedy

does—at least in principle—allow a landowner to recover for

damages incurred prior to issuance of the writ of mandate: the

Kavanau adjustment is supposed to compensate for past losses.

Second, inverse condemnation and section 1983 damages

remedies appear to remain available if the mandamus/Kavanau

adjustment remedy proves inadequate. In Kavanau, the court

stated that it did not need to:

decide what alternative remedy might be appropriate

if a landlord can establish that the remedy of future

rent adjustments is for some reason unavailable. But

before Kavanau can allege the unavailability of future

rent adjustments, he must petition for those

adjustments, the Rent Board must determine, subject

to judicial review, their appropriate amount, and he

must attempt to impose them.

66 Cal.Rptr.2d 672, 941 P.2d at 867.

In Galland, the court went further and held that a landlord can

seek section 1983 damages if he can “show (1) that a

confiscatory rent ceiling or other rent regulation was imposed

and (2) that relief via a writ of mandate and a Kavanau

adjustment is inadequate.” 103 Cal.Rptr.2d 711, 16 P.3d at

145.

Carson Harbor further contends that a writ of mandate and

Kavanau adjustment will not provide adequate compensation

because the superior court issuing the writ must remand the

case to the municipal rental review board to determine the

increase in future rents necessary to compensate the plaintiff for

past losses. See Kavanau, 66 Cal.Rptr.2d 672, 941

According to Carson Harbor, the rental review board is unlikely

to grant an adequate rent increase because it was unwilling to

et as irk ented

Cee ae ee

Appendix A-13

grant an adequate rent increase in the first place, and

consequently California’s new compensation scheme will

“result in a string of writ of mandate challenges, and a string of

remand hearings, the costs of litigation ever increasing, until

one party or another, the city or the park owner, gives up in

exhaustion.”

We acknowledge that Carson Harbor raises serious

concerns about the adequacy of the new compensation

procedures established in Kavanau and Galland. Nevertheless,

the alleged inadequacy of the procedurés remains highly

speculative. Carson Harbor has not sought a writ of mandate

and Kavanau adjustment, nor has Carson Harbor identified any

landowner who has sought and failed to receive adequate

compensation through these procedures. At best, Carson

Harbor has merely alleged that the new compensation

procedures are “untested or uncertain.” Del Monte Dunes, 920

F.2d at 1507. Under our precedents, that is not enough to

qualify for an exemption from Williamson’s second ripeness

requirement. /d. It may turn out that the mandamus/ Kavanau

process proves to be futile. We will not, however, assume the

accuracy of this prediction. See Hacienda Valley, 353 F.3d at

659, 2003 WL 22961340, at *6.° Accordingly, we affirm the

* Carson Harbor also claims that the mandamus/Kavanau

adjustment remedy is inadequate because it requires the

landlord to recover compensation from tenants rather than from

the municipality. According to Carson Harbor, the “tenants

may have moved, died or simply be unable to afford increases

intended to make up for the government’s past confiscatory

rates.” Regardless of the merits of this argument, it is also

speculative at this stage and thus not ripe for decision. Carson

Harbor has not shown that it would be precluded from obtaining

damages from the municipality in the event that the

mandamus/Kavanau adjustment remedy does prove to be

(continued...)

Appendix A-14

dismissal of Carson Harbor’s regulatory takings claim as

unripe.°

AFFIRMED.

O’SCANNLAIN, Circuit Judge, concurring specially.

Because Carson Harbor has made no effort to seek

compensation for an alleged taking through a writ of mandamus

and Kavanau adjustment, I agree that its regulatory takings

claim must be dismissed as unripe. Any analysis of the

California procedures in this case would necessarily be

speculative. But I write separately to express my concern that

California’s procedures may not provide “just compensation”

because the burden of compensation falls not on the

government as the representative of the benefitting general

public, but on a select group of future tenants.

The Supreme Court has repeatedly explained the central

purpose of the Takings Clause: “The Fifth Amendment’s

guarantee that private property shall not be taken for a public

use without just compensation was designed to bar Government

from forcing some people alone to bear public burdens which,

in all fairness and justice, should be borne by the public as a

whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct.

1563, 4 L.Ed.2d 1554 (1960); see also Palazzolo v. Rhode

Island, 533 U.S. 606, 618-19, 121 S.Ct. 2448, 150 L.Ed.2d 592

> (...continued)

inadequate. See Kavanau, 66 Cal.Rptr.2d 672, 941 P.2d at 867;

Galland, 103 Cal.Rptr.2d 711, 16 P.3d at 145.

* Because we affirm the dismissal of Carson Harbor’s

regulatory takings claim on ripeness grounds, we need not

address the City’s alternative argument that res judicata also

justifies the dismissal.

Appendix A-15

(2001) (citing Armstrong to illustrate “the purpose of the

Takings Clause”); Eastern Enters, v. Apfel, 524 U.S. 498, 522,

118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (plurality op.) (citing

Armstrong as expressing “the aim of the [Just Compensation]

Clause”); First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304, 315, 107

S.Ct. 2378, 96 L.Ed.2d 250 (1987) (citing Armstrong for “[t}his

basic understanding of the [Fifth] Amendment”); Penn. Cent.

Transp. Co, v. City of New York, 438 U.S. 104, 123-24. 98

S.Ct. 2646, 57 L.Ed.2d 631 (1978) (citing Armstrong in

discussing the “factors that have shaped the jurisprudence of the

Fifth Amendment”). The clear import of this central principle

of takings law, and of the language of the Fifth Amendment

itself, is that those whose property has been taken for public use

must be compensated by the general public through the

government. The Fifth Amendment is therefore violated when

government attempts to lay the general public’s burden of just

compensation on third parties.

Although the Court has wrestled with many issues in its

extensive takings jurisprudence—most notably, the intricate

question of regulatory takings—it has invariably operated under

the assumption that the government is the entity charged with

paying just compensation. See, e.g., Tahoe-Sierra Pres.

Council v. Tahoe Reg’! Planning Agency, 535 U.S. 302, 322.

122 S. Ct. 1465, 152 L. Ed.2d 517 (2002) (‘“‘When the

government physically takes possession of an interest in

property for some public purpose, it has a categorical duty to

compensate the former owner[.]”) (citation omitted); First

English, 482 U.S. at 319, 107 S. Ct. 2378 (“Where this burden

results from governmental action that amounted to a taking, the

Just Compensation Clause of the Fifth Amendment requires

that the government pay the landowner for the value of the use

of the land during this period.”); id. at 321, 107 S. Ct. 2378

([N]o subsequent action by the government can relieve it of the

duty to provide compensation for the period during which the

Appendix A-16

taking was effective.”); Kaiser Aetna v. United States, 444 U.S.

164, 180, 100 S. Ct. 383, 62 L. Ed.2d 332 (1979) (“And even

if the Government physically invades only an easement in

property, it must nonetheless pay compensation.”). Together,

these cases stand for a clear proposition: once the government

executes a taking, the Constitution does not permit it to shift the

public’s burden of just compensation to third parties. When

property is taken for public use under the Fifth Amendment, the

public—and not specific individuals or groups at the order of

the government—must pay.

If Carson Harbor were to establish that it had suffered a

regulatory taking, a Kavanau adjustment would provide that

future renters alone compensate Carson Harbor in the form of

increased rents. Thus, future tenants—some of whom may not

have even received the benefit of the earlier confiscatory

rates—would be forced to pay for the rental review board’s

taking of property for public use. I seriously doubt that such

outcome would amount to the “just compensation” demanded

by the Fifth Amendment, for it violates the principle that

compensation must be just both to the deprived property owner

and the taking public. See United States v. Commodities

Trading Corp., 339 U.S. 121, 125, 70S. Ct. 547, 94 L. Ed. 707

(1950) (“[T]he dominant consideration always remains the

same: What compensation is ‘just’ both to an owner whose

property is taken and to the public that must pay the bill?’)

(emphasis added).

Because California’s recently altered procedures were not

tested in this case, however, consideration of such a weighty but

hitherto unexplored issue must be deferred to another occasion,

when it is squarely presented for our review.

Appendix B-1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 01-4799 RJK

CARSON HARBOR )

VILLAGE, LTD., a California )

Limited Partnership dba Carson )

Harbor Village Mobilehome

Park,

Plaintiff

v.

municipal corporation; THE

CITY OF CARSON

MOBILEHOME PARK

RENTAL REVIEW BOARD,

)

)

)

)

)

)

)

CITY OF CARSON, a )

)

)

)

)

)

Defendants. )

)

ORDER RE

DEFENDANTS’

MOTION TO DISMISS

COMPLAINT

PURSUANT TO RULE

12(b) OF THE FEDERAL

RULES OF CIVIL

PROCEDURE OR IN

THE ALTERNATIVE

FOR ABSTENTION

Filed June 11, 2002

Entered June 12, 2002

—

After the hearing on January 14, 2002, the Court took

under submission the Motion to Dismiss Complaint Pursuant to

Rule 12(b) of the Federal Rules of Civil Procedure or in the

Alternative, for Abstention filed by Defendants City of Carson

(the “City”) and City of Carson Mobilehome Park Rental

Review Board (the “Board”) (collectively, “Defendants”).

After considering the papers filed by the parties, the case file

and argument of counsel, the Court GRANTS the motion to

dismiss.

Appendix B-2

I. BACKGROUND

This dispute concerns the application of the City’s rent

control laws to a mobilehome park. Plaintiff Carson Harbor

Village, Ltd. owns a 420-space, 70-acre_resort-style

mobilehome park (the “Park”) in the City. (Compl., 49.) The

Park represents approximately 17 percent of the total

mobilehome rental housing in the City. (Id., 11.)

Pursuant to the City’s Mobilehome Space Rent Control

Ordinance (the “Ordinance”) and related guidelines,

mobilehome park spaces are subject to a ceiling on rent levels.

(See id., 4] 12, 54, 55.) The Ordinance does not provide for

automatic rent increases for changed circumstance such as

increased costs of operation. (Id., 4 12.) Nor does the

Ordinance provide for an automatic rent increase to account for

inflation. (Id.) Instead, a property owner seeking a rent

adjustment above the ceiling must submit a rent increase

application to the Board. (Id., 4 14.)' The Ordinance requires

the Board to consider a list of eleven enumerated but non-

exclusive factors when reviewing rent increase applications and

grant “‘such rent increase as it determines to be just, fair and

reasonable.’” (Id., 57.) Those factors include changes in the

Consumer Price Index, the rent lawfully charged for

comparable mobilehome spaces in the City, length of time since

the last rent increase, relevant capital improvements, changes in

property taxes, and changes in reasonable operating expenses.

(See Defendants’ Req. for Judicial Notice, Ex. A [the

Ordinance], § 4704(g).)

The parties here have a long and tortuous history. Over the

past twenty years, the parties have litigated both the facial

constitutionality of the Ordinance and various as-applied

' The Board members are appointed by the elected members of the

City Council. (Id., ¥ 10.)

Appendix B-3

challenges raised by Plaintiff in state and federal courts. See,

e.g., Carson Mobilehome Park Owner’s Ass’n v. City of

Carson, 35 Cal.3d 184 (1983); Carson Harbor Village v. City of

Carson, 37 F.3d 468 (9th Cir. 1994); August 1, 2000 Order

Granting Defendants’ Motion for Judgment on the Pleadings in

Carson Harbor Village Mobilehome Park v. City of Carson,

Case No. 99-12530-DDP (C.D. Cal.).2 All of those lawsuits

have resulted in final judgments adverse to Plaintiff.

The claims in this case arise out of Defendants’ treatment

of Plaintiff's applications for rent increases submitted in June

2000 and April 2001. In June 2000, Plaintiff filed an

application seeking rent increases ranging from $222.65 to

$240.73 per month for 407 of the 420 spaces in the Park.

(Defendants’ Req. for Judicial Notice, Ex. L at 1.). The

application is based on the Park’s 1999 operating expenses and

income. (Id. at 3; see Compl., 417.) Plaintiff alleges that it

sought the increase “‘so that the fair rate of return in 1999 would

equal the fair rate of return at the inception of rent control in

constant dollars.” (Compl., 417.) After a hearing on February

29, 2001, the Board granted, in part, Plaintiff s application (the

“February 2001 decision”). (Id., 99 19-20.) The Board

approved a $14.29 per space per month rent increase. (See id.,

{| 20-21.)

Plaintiff alleges that the Board misinterpreted, misapplied

and otherwise failed to follow the Ordinance in approving only

a $14.29 increase per space. (Id., J 20, 51.) Plaintiff asserts

that the Board’s improper application disallowed hundreds of

thousands of dollars of the Park’s legitimately incurred

operating expenses. (Id.) As a result, Plaintiff alleges, the

Board inflated Plaintiff's 1999 net operating income, the net

> Pursuant to Federal Rule of Evidence 201 , the Court takes judicial

notice of these orders and all other documents attached to

Defendants’ Request for Judicial Notice filed on July 25, 2001.

Appendix B-4

effect of which “is that Plaintiff's fair rate of return in constant

dollars is materially and substantially below the fair rate of

return at the inception of [the] Ordinance.” (Id., ¥J 20, 21.)

Thus, Plaintiff claims that the Ordinance, “as applied, totally

destroyed Plaintiff's reasonable investment-backed

expectations.” (Id.)

In April, 2001, Plaintiff submitted a second application

seeking a rent increase (or surcharge) to address the “regulatory

lag” in obtaining the $14.29 rent increase. (Id. at 23.) Due to

state law notice requirements, Plaintiffs could not impose the

$14.29 rent increase until June 1, 2001. (Id.) Plaintiff claims

that it is entitled to receive, at a minimum, “the City-

determined fair rate of return from the date the City determined

Plaintiff was entitled to it in January 1999 through June 1,

2001.” (Id.) Specifically, the April 2001 application sought

$295,657.01 in regulatory lag rents, attorney’s fees and costs

incurred in obtaining the City’s approval of the rent increase.

(Id.) Plaintiff alleges that the City Attorney, operating on

behalf of the City, improperly refused to process this

application. (Id.)

On May 29, 2001, Plaintiff filed a complaint asserting

eight counts.? The federal counts are: (1) deprivation of

Plaintiffs constitutional rights in violation of 42 U.S.C. § 1983;

(2) as-applied regulatory taking of property by way of the

February 2001 decision; (3) as-applied substantive due process

violation by way of the February 2001 decision; (4) as-applied

procedural due process violation by way of the February 2001

decision; (5) as-applied procedural due process violation by

way of the City’s refusal to process and hear the April 2001

application; (6) as-applied regulatory taking by way of the

City’s refusal to process and hear the April 2001 application;

> The complaint uses the word “count” in lieu of “claim.” The Court

shall use “count” and “claim” interchangeably.

Appendix B-5

and (7) as-applied equal protection violation by way of the

February 2001 decision. Plaintiff's single state count seeks a

writ of administrative mandamus pursuant to California Code

of Civil Procedure section 1094.5.

On July 25, 2001, Defendants filed their motion to dismiss

for lack of subject matter jurisdiction or failure to state a claim.

In the alternative, Defendants move for abstention. Plaintiff

filed an opposition on October 5, 2001, and Defendants filed

their reply on October 22, 2001. Defendants’ motion was heard

on January 14, 2002.

II. DISCUSSION |

A. Applicable Legal Standards

1. Motion to Dismiss for Lack of

Subject Matter Jurisdiction

A motion to dismiss pursuant to Federal Rule of Civil

Procedure (“Rule”) 12(b)(1) for lack of subject matter

jurisdiction must be considered before other challenges because

the federal court must find jurisdiction before considering the

merits of the case. 2 James Wm. Moore, et al., Moore’s Federal

Practice § 12.30[1]. The burden of proof on a Rule 12(b)(1)

motion is on the party asserting jurisdiction. See Sopcak v.

Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.

1995).

A Rule 12(b)(1) motion may be used to challenge two

different types of defects: defects in pleading (or “facial

attacks”) and defects in fact. Moore’s Federal Practice

§ 12.30[4]. When reviewing a facial attack, the Court accepts

the allegations in the complaint as true and examines only

whether the allegations are sufficient to show that the federal

court has jurisdiction over the matter of the case. See id. On

———————

Appendix B-6

the other hand, when reviewing a factual challenge, the

allegations of the complaint are not presumed to be truthful, and

the Court is not restricted to the face of the pleadings. See id.,

McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

The Court may review any evidence, such as declarations,

documents and testimony, to resolve any factual disputes

concerning jurisdiction. See id.

2. Motion to Dismiss for Failure to State a Claim

A motion to dismiss pursuant to Rule 12(b)(6) tests only

the legal sufficiency of the claims asserted in the complaint.

See Fed. R. Civ. P. 12(b)(6). The court must accept as true all

material allegations in the complaint, as well as reasonable

inferences to be drawn from them. NL Industries, Inc. v.

Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). However, the court

need not accept as true unreasonable inferences, unwarranted

deductions of fact, or conclusory legal allegations cast in the

form of factual aliegations. Western Mining Council v. Watt,

643 F.2d 618, 624 (9th Circ. 1981).

In ruling on a Rule 12(b)(6) motion, the court generally

cannot consider material outside the complaint (e.g., facts

presented in briefs, affidavits, or discovery materials). Branch

v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may,

however, consider exhibits submitted with the complaint and

documents “whose contents are alleged in [the] complaint and

whose authenticity no party questions.” Id. at 453-54. The

court may also consider matters subject to judicial notice

pursuant to Federal Rule of Evidence 201. Mir, M.D. v. Little

Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988).

Appendix B-7

B. Analysis

1. Count Three: Substantive Due Process Violation

Plaintiff alleges that the Ordinance as applied “violates.

Plaintiff's substantive due process rights by being an arbitrary,

capricious and unreasonable exercise of Defendants’ police

powers.” (Compl., § 32.) Defendants argue=tr=ander

Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc)

and its progeny, Plaintiff is barred from bringing a substantive

due process claim because the underlying allegations implicate

the Fifth Amendment’s Takings Clause. The Court agrees.

“Where an Amendment provides an explicit textual source

of constitutional protection against a particular sort of

government behavior, that Amendment, not the more

generalized notion of substantive due process, must be the

guide for analyzing these claims.” Albright v. Oliver, 510 U.S.

266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395

(1989)) (internal quotations omitted); accord United States v.

Lanier, 520 U.S. 259, 272 n.7 (“Graham .. . requires that if a

constitutional claim is covered by a specific constitutional

provision . . . the claim must be analyzed under the standard

appropriate to that specific provision not under the rubric of

substantive due process”). Thus, where the challenged

governmental conduct is regulated by the Fifth Amendment’s

Takings Clause, the conduct must be analyzed under the

Takings Clause and the substantive due process claim is barred.

Armendariz, 75 F.3d at 1319-24 (holding that the Graham rule

precludes plaintiffs’ substantive due process claim where that

claim challenges the same conduct as any potential takings

claim); Buckles v. King County, 191 F.3d 1127, 1117 (9th Cir.

1999) (affirming dismissal of the plaintiffs’ substantive due

process claim challenging the county’s land use decision under

Armendariz); Marci v. King County, 126 F.3d 1125, 1128

(affirming dismissal of substantive due process claim where the

Appendix B-8

alleged injury sounds like a takings claim). This rule reflects

the principal that “the substantive due process clause must be

expanded only with the greatest care and that its protection is

primarily reserved for liberties deeply rooted in this Nation’s

history and tradition.” Macri, 126 F.3d at 1128 (internal

quotations omitted). It was precisely for this reason that this

Court previously precluded Plaintiff from proceeding on a

substantive due process claim in a prior action against

Defendants. (See Defendants’ Req. for Judicial Notice, Ex. J

[August 1, 2000 Order by Hon. Dean D. Pregerson)] at 5-7.)

Plaintiff now attempts to distinguish Armendariz by

arguing that the current substantive due process claim is “a

claim that the City abused its power by exerting grave

unfairness in the discharge of its duties to administer the rent

control regulation.” (Opp. at 23.) Plaintiff contends that such

a claim is “separate from a claim that fair return has been

confiscated.” (Id.) Plaintiff cites Sierra Lake Reserve v. City

of Rocklin, 938 F.2d 951 (9th Cir. 1991), vacated in part on

other grounds, 987 F.2d 662 (9th Cir. 1993), and Galland v.

City of Clovis, 23 Cal. 4th 1003 (2001), in support of its

argument. Plaintiff's argument is unavailing.

The Ninth Circuit has rejected similar substantive due

process claims based on allegations that the government abused

its power in the discharge of its duty to administer various land

control regulations. See, e.g., Armendariz, 75 F.3d at 1319-20

(not allowing substantive due process claim premised on

allegation that the defendants conducted sweeps of the

plaintiffs’ low-income housing units and closed the plaintiffs’

properties for no legitimate governmental purpose); Buckles,

191 F.3d at 1137-38 (not allowing substantive due process

claim premised on allegation that the plaintiffs were victims of

an arbitrary and unreasonable zoning change whereby their

property was singled out and zoned for a use classification

totally different and incompatible with the classification of

Appendix B-9

surrounding land). The Court sees no distinction between such

claims and a claim that “fair return has been confiscated” under

Armendariz.

Moreover, the heart of Plaintiff's substantive due process

claim lies in Plaintiffs allegation that “the City in an arbitrary,

capricious and unreasonable exercise of it’s police power

excluded from legitimate operating expenses of the Park

hundreds of thousands of dollars in operating expenses,” which

resulted in an “increase on paper [to] Plaintiff s ‘perceived’ fair

rate of return” and caused Plaintiff to receive less of a rent

increase than that to which it was entitled. (Comp., ff] 34-35.)*

Plaintiff's substantive due process claim is substantively

indistinguishable from Plaintiff's regulatory takings claim,

which expressly challenges Defendants’ application of the

Ordinance. Plaintiff “cannot sidestep Armendariz by re-

characterizing their claim as lying . . . in substantive due

process.” Macni, 126 F.3d at 1129.

Plaintiffs reliance on Sierra Lake and Galland is

misplaced. First, Sierra Lake, to the extent that it permitted a

substantive due process claim under the facts of that case, is no

longer good law after Armendariz. Indeed, Armendariz

expressly overrules Sinaloa Lake Owners Ass’n v. Simi Valley,

882 F.2d 1398 (9th Cir. 1989) (as amended),’ the authority

* The remaining allegations purport to identify the facts that support

Plaintiffs claim that the City’s February 2001 decision was arbitrary,

capricious and unreasonable. (See id.) To the extent that Plaintiffs

claim rests in part on allegations that implicate procedural due

process considerations (e.g., complaint that Plaintiff was unable to

confront witnesses), the claim must be analyzed as a procedural due

process claim rather than a substantive due process claim.

* In Sinaloa Lake, property owners sued the municipal defendants

under 42 U.S.C. § 1983, alleging that the defendants’ actions in

(continued...)

Appendix B-10

upon which the Sierra Lake court relied in permitting the

substantive due process claim. Armendariz, 75 F.3d at 1235-

36; see Sierra Lake, 938 F.2d at 957-58 (quoting Sinoloa Lake,

882 F.2d at 1407).

Second, the Court declines to follow the California

Supreme Court’s recent decision in Galland to the extent that it

purportedly supports Plaintiff's argument that the substantive

due process claim should survive.° The Galland court failed to

address whether the challenged actions were covered by a

specific constitutional provision before reaching the conclusion

that they implicated the more generalized notion of substantive

* (...continued)

breaching the owners’ dam and draining their lake amounted to a

taking of their property without just compensation, as well as a

violation of their substantive and procedural due process rights. 882

F.2d at 1401, 1404, 1407. The court rejected the takings claim due

to the plaintiffs’ failure to exhaust their state remedies (id. at 1401-

04) and held that the Fourth Amendment claim was “in fact, a taking

claim which [was] property asserted under the fifth amendment” and,

therefore, was also unripe (id. at 1411). With respect to the

substantive due process claim, the court concluded that the plaintiffs

had properly stated a claim upon which relief may be granted. Id. at

1410 (the “allegations paint a picture of government officials bent on

destroying the dam for no legitimate reason and determined to

conceal that decision until the last possible moment to prevent

plaintiffs from taking advantage of available legal processes”).

° In Galland, the plaintiffs alleged, inter alia, that they were

“damaged in the amount of $247,885 for costs incurred as a result of

the arbitrary and unreasonable administrative proceedings.” 24 Cal.

4th at 1030. The California Supreme Court determined that this

claim should be characterized as “a substantive, rather than... a

procedural, due process claim because “the source of their injury was

... the fact that [the city] made demands on them as a condition of

obtaining a rent increase that, in addition to being costly, were

intrinsically arbitrary and irrational.” Id.

Appendix B-11

due process. See 24 Cal. 4th at 1030-40. Indeed, the lengthy

opinion makes no reference to the principle espoused in

Graham. Moreover, the court relied solely on either state cases,

post-Graham cases from other circuits or pre-Armendariz cases

from the Ninth Circuit to support its conclusion that the

municipal defendants’ egregious conduct in a land use

regulatory dispute amounting to a “deliberate flouting of the

law” violated the plaintiff's right to substantive due process.

See id. at 1035-36.

In sum, the Court holds that Plaintiff is precluded from

asserting a substantive due process claim in this case.

Accordingly, the Court grants Defendants’ motion to dismiss

the substantive due process claim.

2. Counts Two & Six: Regulatory Takings

Plaintiff alleges that the Ordinance, as applied to Plaintiff

by way of the February 2001 decision and the subsequent

refusal to hear the April 2001 “regulatory lag” application,

results in impermissible takings. (Compl., 9] 27, 44.)

Defendants argue that the Court lacks subject matter

jurisdiction over the takings claims on the ground that they are

not ripe.

It is well established that a regulatory takings claim is not

ripe for adjudication until the two prong test set forth in

Williamso ounty Regional Planning Commission _v.

Hamilton Bank, 473 U.S. 172, 186 (1986), has been satisfied.

First, the plaintiff must obtain a “final decision” regarding the

application of the challenged government regulation to the

plaintiff's property. Williamson, 473 U.S. at 186, 194-95,

Second, the plaintiff must pursue state remedies for just

compensation, it adequate state procedures are available. Id.;

see Macri, 126 F.3d at 1129. Defendants do not challenge

Plaintiff's allegation that the “final decision” prong has been

Appendix B-12

satisfied. At issue is whether Plaintiff has satisfied the second

prong of the test. Defendants argue that Plaintiff failed to

utilize available state compensation remedies before filing this

lawsuit.

A landowner may seek just compensation for an as-applied

regulatory taking of property by bringing an “inverse

condemnation” action in state court. See Levald, Inc. v. City of

Palm Desert, 998 F.2d 680, 689 (9th Cir. 1993). Plaintiff

concedes that it did not bring such an action in state court

before filing this action. However, Plaintiff argues that it need

not and could not bring such an action because at the time

Defendants rendered their final decisions, California did not

provide a remedy of just compensation for regulatory takings in

the rent control context. Plaintiff relies again on Galland and

another California Supreme Court decision, Kavanau v. Santa

Monica Rent Control Board, 16 Cal. 4th 761 (1997), in support

of its assertion that “a landlord may not obtain inverse

condemnation damages against a government agency for

imposing confiscatory rent ceilings on the landlord.” (Opp. at

15-16; see Compl., 4] 30 (alleging that the state courts “do not

provide an inverse condemnation damages remedy” for the

challenged decisions in this case because under Kavanau and

Galland, California “preclude[s] a claim for inverse

condemnation damages and claims under 42 U.S.C. § 1983 due

to the operation of rent control”).) Plaintiffurges that under the

circumstances, the Court should follow Hoehne v. County of

San Benito, 870 F.2d 529 (9th Cir. 1989) (holding that property

owners’ action was ripe for decision where California law

provided no remedy for inverse condemnation at time of alleged

taking), and similarly conclude that the regulatory takings

claims here are ripe for adjudication.

Plaintiff's reliance on Kavanau and Galland is misplaced.

Plaintiff either misreads or mis-characterizes the holdings of the

two cases. “California [courts] ha[ve] recognized inverse

Appendix B-13

condemnation claims based on as-applied regulatory takings

since the Supreme Court decided First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304

(1987) (holding that California’s denial of compensation for

inverse condemnation claims based on regulatory takings was

unconstitutional).” Levald, Inc. v. City of Palm Desert, 998

F.2d 680, 686 (9th Cir. 1993) (parenthetical in the original);

accord Hoehne, 879 F.2d at 533-34. Prior to that time, a

landowner was limited to seeking declaratory relief or

mandamus to invalidate the offending regulation. See Hoehne,

879 F.2d at 533-34 (discussing California law before First

English because “the appropriate point for determining the

adequacy of state compensation procedures is at the time the

alleged taking occurs”). Contrary to Plaintiff's assertion,

neither Kavanau nor Galland purports to change over a decade

of jurisprudence by holding state law no longer provides a

compensation remedy for a landlord in Plaintiff's position. The

Court finds nothing in the language of those decisions to

support Plaintiff's interpretation.’ Cf. Santa Monica Beach

Ltd. v. Superior Court, 19 Cal. 4th 952 (1999) (post Kavanau

decision addressing the merits of the rent controlled property

owner’s inverse condemnation claim; no suggestion that state

” The Kavanau court merely held that no actionable takings occurred

under the facts of that case. See 16 Cal. 4th at 783-786 (dismissing

the inverse condemnation claim for failure to state a claim and

concluding that where, as here, a due process violation “is the sole

basis” for a potential takings clause violation, and a remedy for the

due process violation (via future rent adjustments) is available and

adequate, that remedy provides sufficient compensation to satisfy the

takings clause). And the Clovis court did not even address a takings

claim. The appeal concerned only the landowner’s § 1983 claim

premised on due process violations. See 24 Cal. 4th at 1019, 1023

(noting that the trial court dismissed the inverse condemnation claim

but awarded damages to the plaintiffs on their § 1983 claim, the court

of appeals affirmed and the defendant appealed).

Appendix B-14

law no longer permits the recovery of compensation for a

regulatory taking).

In sum, state court compensation remedies are available,

but Plaintiff did not pursue such remedies before filing this

action. Because Plaintiffs as-applied regulatory takings claims

are not ripe, the Court lacks subject matter jurisdiction to hear

these claims.

3. Counts Four and Five:

Procedural Due Process Violations

in Count Four, Plaintiff alleges that the procedure by which

the Board reached its February 2001 decision constitutes a

violation of Plaintiff's mght to procedural due process as

guaranteed by the Fourteenth Amendment. (See Compl., {J 36-

38.) In Count Five, Plaintiff alleges that Detendants’ refusal to

process Plaintiff's April 2001 application violates Plaintiff's

right to procedural due process. (See id., §{] 39-42.)

Defendants raise several arguments in support of their motion

to dismiss these claims. The Court addresses only the relevant

arguments below.

Preliminarily, the Court rejects Defendants’ argument that

Armendariz, Macri and Buckles require the Court to disregard

the “procedural due process label” (as it must disregard the

“substantive due process” label) and treat these claims as

takings claims. (Motion at 10-11.)* Macri and Buckles only

rejected the property owners’ attempt to escape the application

of Armendariz by re-characterizing their takings claims as

substantive due process claims. See Macri 126 F.3d at 1129;

Buckles, 191 F.3d at 1137. The Ninth Circuit has not extended

* Defendants raise the same argument with respect to Plaintiffs

equal protection claim. For the same reason stated herein, the Court

rejects that argument.

Appendix B-15

this analysis to all constitutional claims that arise out of the

application of a land use regulation. Cf. Armendariz, 75 F.3d

at 1316 (en banc court noting that it does not revisit the three-

judge panel’s ruling that the plaintiffs have stated a claim for

procedural due process violations and affirming the district

court’s denial of the defendants’ motions for summary

judgment on the plaintiffs’ equal protection claim).

Next, Defendants argue that Plaintiff has failed to state a

claim for a procedural due process violation because Plaintiff

does not have a protected property interest in the requested rent ~

increase. The Court agrees.

: To prevail on a procedural due process claim, a plaintiff

; must satisfy a two part test. The plaintiff must first establish

that “the asserted individual interests are encompassed within

the Fourteenth Amendment’s protection of ‘life, liberty or

property.” Ingraham v. Wright, 430 U.S. 641, 673 (1977).

“[I]f protected interests are implicated,” the plaintiff must then

show that the state deprived her of that interest without “due

process of law.” Id. Here, Plaintiff has failed to meet the first

part of the test.”

The party claiming a property interest under the Fourteenth

Amendment “must have more than a unilateral expectation of

it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564,

577 (1972) (emphasis added). He must have “a legitimate

claim of entitlement to it.” Id.; accord Bateson v. Geisse, 857

F.2d 1300, 1305 (9th Cir. 1988). Property iziterests “are not

created by the Constitution.” Roth, 408 U.S. at 577. Instead,

property interests are “created and their dimensions are defined

by existing rules or understandings that stem from an

independent source such as state law—rules or understandings

that secure certain benefits and that support claims of

° Therefore, the Court need not reach the second part of the test.

Appendix B-16

entitlement to those benefits.” Id. Thus, for example, the Ninth

Circuit in Bateson v. Geiss examined the applicable municipal

ordinance to determine whether it created an entitlement to

approval of the proposed minor plat (and issuance of a building

permit) when evaluating the property owner’s procedural due

process ciaim against city and city council members who had

refused to approve his minor plat. 857 F.2d at 1305. Because |

the ordinance at issue failed to set “any significant substantive

restrictions on the City Council’s powers” to approve or

disapprove minor plat applications, the Bateson court concluded

that the property owner did not have a legitimate claim of

entitlement to approval of his proposed minor plat application.

Id.

In this case, Plaintiff has failed to identify any source of

law that purports to support Plaintiff's claim of entitlement to

the requested rent increases. Indeed, Plaintiff’ s opposition does

not even address this argument. (See Opp. at 21-22.)

Nevertheless, the Court examines the Ordinance to determine

whether it gives rise to a protected property interest. Like the

ordinance in Bateson, the Ordinance does not set any significant

substantive restrictions on the Board’s powers to approve,

conditionally approve or reject a rent control application. (See

Defendants’ Req. for Judicial Notice, Ex. A.) Whether a rent

application should be approved or rejected is left to the broad

discretion of the Board. (See id. at § 4704(f)(3) (“The Board

may approve the rent increase requested, approve a modified

rent increase or deny the application pursuant to the standards

established by subsections (g) and (h) of this section . . .”);

§ 4704(g) (“The Board shall grant such increases as it

determines to be fair, just and reasonable” after considering

certain non-exhaustive factors) (emphasis added).)

Consequently, the Court concludes that Plaintiff does not

have a legitimate claim of entitlement to approval of its two

rent adjustment applications. Because Plaintiff does not have

Appendix B-17

a protected property interest in the requested rent increases,

Plaintiff's procedural due process claims fail.

4. Count Seven: Equal Protection Violation

Plaintiff alleges that “[o]ther regulated businesses in the

City are authorized and allowed to adjust costs and returns by

the effects of inflation” whereas the Ordinance as applied

“arbitrarily imposes a restrictive formula that penalizes Plaintiff

for the effects of inflation.” (Comp., | 46.) Plaintiff asserts

that “[t]here is no rational basis for distinguishing between

those two classes of regulated businesses and such a

classification is not rationally related to furthering” the

Ordinance’s “purported public purpose.” (Id.) As a result,

Plaintiff alleges that the Ordinance, as applied to Plaintiff,

violated Plaintiff s constitutional right to equal protection. (Id.)

Defendants argue, inter alia, that Plaintiff has failed to state a

claim upon which relief may be granted.

The Fourteenth Amendment guarantees that “‘no State

shall “deny to any person within its jurisdiction the equal

protection of the laws,” which is essentially a direction that all

persons similarly situated should be treated alike.’” Lee v. City

of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

“[S]tate action that does not implicate a fundamental right or a

suspect classification passes constitutional muster under the

equal protection clause so long as it bears a rational relation to

a legitimate state interest.” Armendariz, 75 F.3d at 1326. The

“rational relation test will not sustain conduct by state officials

that is malicious, irrational or plainly arbitrary.’” Id. (quoting

Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir. 1990) (as

amended)).

Accepting as true all material allegations in the complaint,

as well as reasonable inferences to be drawn from them, the

Appendix B-18

Court concludes that Plaintiff's equal protection claim fails to

state a claim upon which relief may be granted. The complaint

alleges in a conclusory fashion that “[o]ther regulated

businesses in the City” are allowed “to adjust costs and returns

by the effects of inflation” when Plaintiff was not. (Compl., §

46.) The complaint fails to identify the “other” businesses and

alleges no facts which, if true, supports this conclusory

allegation. See Western Mining Council v. Watt, 643 F.2d at

624 (on a Rule 12(b)(6) motion, the court need not accept as

true unreasonable inferences, unwarranted deductions of fact,

or conclusory legal allegations cast in the form of factual

allegations); see also Sherman v. Yakahi, 549 F.2d 1287, 1289-

90 (9th Cir. 1977) (holding a pleading fails to state a claim

under the Civil Rights Act if the allegations are mere

conclusions). The complaint also fails to allege that the

unnamed “other regulated businesses” are similarly situated,

i.e., businesses also subject to the Ordinance or, at a minimum,

some other rent or price control regulation. That persons

similarly situated received different treatment is a requisite

element of a constitutional equal protection claim. See Lee,

250 F.3d at 686; see also Village of Willowbrook v. Olech, 528

U.S. 562, 563, 565 (2000) (holding the plaintiff could assert an

equal protection claim where the complaint alleges that the

Village intentionally demanded a 33-foot easement from the

plaintiff as a condition of connecting her property to the

municipal water supply when the Village required only a 15-

foot easement from other “similarly situated property owners,”

i.e. owners seeking access to the same water supply). Because

Plaintiffhas failed to allege sufficient facts, the equal protection

claim fails.

5. Count One: Violation of 42 U.S.C. § 1983

Plaintiffs § 1983 claim is premised upon the alleged

deprivation of constitutional rights as set forth in Counts Two

through Seven. In light of the Court’s conclusions above,

ees Se <

Appendix B-19

Plaintiff does not have a viable § 1983 claim. Therefore, the

Court grants Defendants’ motion to dismiss this claim.

6. Count Eight: Supplemental State Petition

for Writ of Administrative Mandamus

In Count Eight, Plaintiff seeks a writ of mandate under

California Code of Civil Procedure section 1094.5 directing the

Board to vacate its February 2001 decision and issue a different

decision granting a $52.63 per space per month. (See Compl.

at 25 [prayer for relief].) Having concluded herein that

dismissal of all federal claims is warranted, the Court declines

to exercise supplemental jurisdiction over the remaining state

claim. See 28 U.S.C. § 1367(c)(3) (the district court “may

decline to exercise supplemental jurisdiction over a

[supplemental state] claim” if “the district court has dismissed

all claims over which it has original jurisdiction”).

Ill. DISPOSITION

For the foregoing reasons, the Court GRANTS Defendants’

motion to dismiss.'° The Court hereby DISMISSES Plaintiffs

substantive due process claim (Count Three), procedural due

process claims (Counts Four and Five), equal-protection claim

(Count Seven) and § 1983 claim (Count One) pursuant to

Federal Rule of Civil Procedure 12(b)(6). The Court

DISMISSES Plaintiff's regulatory takings claims (Counts Two

and Six) pursuant to Federal Rule of Civil Procedure 12(b)(1).

The Court declines to exercise subject matter jurisdiction over

'° Plaintiff did not seek leave to amend the complaint in the event

Defendants’ motion was granted.

Appendix B-20

the supplemental state claim (Count Eight) and DISMISSES

this claim pursuant to 28 U.S.C. § 1367(c)(3). The Court need

not reach Defendants’ alternative motion for abstention.

IT IS SO ORDERED.

DATED: June 11, 2002

/s/

ROBERT J. KELLEHER

United States District Judge

Appendix C-1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARSON HARBOR VILLAGE, ) No. 02-56213

LTD., a Limited Partnership dba _ )

Carson Harbor Village Mobile ) D.C. No. CV-01-04799-

Home Park, RJK

Plaintiff-Appellant, ORDER

V. Filed Mar 22, 2004

CITY OF CARSON, a Municipal

Corporation; CARSON CITY

MOBILEHOME PARK

RENTALREVIEW BOARD,

Defendants-Appellees,

and,

CARSON HARBOR VILLAGE

MOBILEHOME PARK

HOMEOWNERS

ASSOCIATION, Real Party in

Interest,

Defendant.

Nee eee ele eee eee ewe ow GS

BEFORE: REINHARDT; O’SCANNLAIN and FISHER,

Circuit Judges.

Appendix C-2

The panel judges have voted to deny appellant’s petition

for panel rehearing. Judges Reinhardt and Fisher have voted to

deny the petition for rehearing en banc. Judge O’Scannlain

voted to grant the petition for rehearing en banc.

The full court has been advised of the petition for rehearing

en banc and no judge has requested a vote on whether to rehear

the matter en banc. Fed. R. App. P- 35.

Appellant’s petition for panel rehearing and for rehearing

en banc, filed February 17, 2004, is DENIED.

Appendix D-1

CHAPTER 7

MOBILEHOME SPACE RENT CONTROL

§ 4700 Short Title.

Chapter 7 of Article IV of the Carson Municipal Code may be

cited as the “Mobilehome Space Rent Control Ordinance” of

the City of Carson. (Ord. 79-485U)

§ 4701 Definitions.

For the purposes of this Chapter, the following words, terms ~

and phrases shall be defined as follows:

(a) “Board” shall mean the Mobilehome Park Rental Review

Board of the City of Carson.

(b) “Camping trailer” shall mean a vehicular portable unit

mounted on wheels and constructed with collapsible partial

sidewalls which fold for towing by another vehicle and unfold

for occupancy, and designed for human habitation for

recreational or emergency occupancy.

(c) “Capital improvement” shall mean improvements to a park,

major refurbishment of a park and rehabilitation of a park

which involve more than ordinary maintenance.

(d) “Department” shall mean the Community Development

Department of the City of Carson.

(e) “Homeowner” shall mean an owner of a mobilehome in a

mobilehome park in the City.

(f) “Mobilehome” shall mean a vehicle, designed or used for

human habitation, including a camping trailer, travel trailer,

motor home and slide-in camper, when used as the principal

place of habitation for the occupants thereof.

(g) “Mobilehome space” shall mean the site within a

mobilehome park intended, designed, or used for the location

or accomodation of a mobilehome and any accessory structures

Or appurtenances attached thereto or used in conjunction

therewith.

(h) “Motorhome” shall mean a vehicular unit built on or

permanently attached to a self-propeiled motor vehicle chassis,

Appendix D-2

chassis cab or van, which becomes an integral part of the

completed vehicle, designed for human _ habitation for

recreational or emergency occupancy.

(i) “Park Owner” shall mean an owner or operator of a

mobilehome park or a person authorized to act on the owner's

behalf in operating the park.

(j) “Rehabilitation” work shall mean any renovation or repair

work completed on or in a mobilehome park which was

performed in order to comply with the direction or order of a

public agency, or to repair damage resulting from fire,

earthquake, or other casualty.

(k) “Rent” shall mean the consideration paid for the use or

occupancy of a mobilehome space.

(1) “Slide-in camper” shall mean a portable unit, consisting of

a roof, floor and sides, designed to be loaded onto and unloaded

from the bed of a pickup truck, and designed for human

habitation for recreational or emergency occupancy and shall

include a truck camper.

(m) “Tenancy” shall mean the right of a Homeowner to use or

occupy a mobilehome space in a park in the City.

(n) “Resident Homeowner” shall mean a Homeowner who has

a tenancy in the park and resides in the mobilehome in the park.

(o) “Travel trailer” shall mean a portable unit, mounted on

wheels, of such size and weight as not to require special

highway movement permits when drawn by a motor vehicle,

and for human habitation for recreational or emergency

occupancy. (Ord. 79-485U; Ord. 83-659; Ord. 86-768, § 1;

Ord. 98-1130, § 2)

$4702 Mobilehome Park Rental Review Board. (section

amended)

(a) The Mobilehome Park Rental Review Board is hereby

established and shall consist of seven (7) members. In order to

provide vaned and balanced backgrounds, two (2) members

shall be Resident Homeowners, two (2) members shall be Park

Owners and three (3) members shall be At Large Members and

Appendix D-3

shal! be residents of the City who are not Homeowners, Park

Owners, landlords, property managers or tenants in multifamily

housing. There shall also be three (3) Alternate Members; one

(1) Alternate shall be a Resident Homeowner, one (1) Alternate

shall be a Park Owner and one (1) Alternate shall be At Large.

The terms of the Board Members shall be two (2) years and a

Board Member shall continue to serve until a successor has

been appointed. The terms of Board Members appointed

following adoption of this Ordinance shall expire on March 31,

1999.

Each City Councilmember shall appoint one (1) of the Resident

Homeowner or Park Owner Members and lots shall be drawn

to determine whether a Councilmember appoints a Resident

Homeowner or Park Owner Member, provided that no

Councilmember shall appoint a Resident Homeowner Member

or Park Owner Member in consecutive terms and a

Councilmember shall appoint a Resident Homeowner Member

if his or her previous appointment was a Park Owner and vice

versa. The At Large Members shall be appointed by the

Resident Homeowner and Park Owner Members. The Park

Owner and Resident Homeowner Members shall hold a duly

noticed meeting no later than twenty (20) days after their

appointment to nominate and consider selection of the At Large

Members. If the Park Owner and Resident Homeowner

Members are unable by majority vote to agree on the

appointment of the At Large Members at that meeting, then at

that meeting, the two (2) Resident Homeowner Members shall

nominate two (2) At Large candidates, the two (2) Park Owner

Members shall nominate two (2) At Large Candidates and the

three (3) At Large Members shall be chosen by lot from among

the four (4) nominated At Large Candidates.

The alternate Resident Homeowner Member and alternate Park

Owner Member shall be appointed by the Mayor, subject to the

approval of the City Council. The At Large Alternate shall be

chosen by the Resident Homeowner and Park Owner Members

by the same procedure as set forth above for selecting At Large

Appendix D-4

Members, except that if they are unable to agree by majority

vote on the At Large Alternate, the Resident Homeowner

Members shall nominate only one (1) candidate and the Park

Owner Members shall nominate only one (1) candidate;

provided however that if the At Large Members were chosen by

lot, then the At Large Alternate shall be the fourth candidate

nominated for an At Large Alternate position who was not

selected by lot.

If a vacancy occurs in a Resident Homeowner or Park Owner

position the Councilmember who appointed that Board

Member, or the Mayor if it is an alternate Resident Homeowner

or Park Owner position, shall make an appointment to fill the

vacancy. Ifa vacancy occurs in the At Large Alternate position,

it shall be filled by the procedure set forth above for appointing

At Large Alternates. If a vacancy should occur in the office of

a Councilmember or Mayor, the tenure of the Board Member or

Alternate appointed by such Councilmember or Mayor shall

expire when the vacancy on the City Council or in the Mayor’s

ottice has been filled, at which time the successor

Councilmember or Mayor shall make the appointment to that

position. All appointments to the Board shall be made in an

open session of the City Council or an open meeting of the

Board.

An Alternate shall serve on the Board in the absence of a

member of the Board. The Alternate to be called first, if

available, shall have the same qualification as to home

ownership or park ownership as the absent Board Member. If

the Alternate Member with the same qualification as the absent

Member should be unavailable, the At Large Alternate shall be

called on to serve in place of the absent Member. A resident

Homeowner Alternate shall not serve in place of a Park Owner

Member and a Park Owner Alternate shall not serve in place of

a Resident Homeowner Member.

(b) Ifa member of the Board is absent from three (3) successive

regular meetings without being excused by the Board, or is

absent for any reason for more than six (6) regular meetings in

Appendix D-5

any twelve (12) month period, the office of such member shall

be vacated and the Chair shall immediately notify the City

Manager, who shall notify the City Council that said office is

vacant. Upon such notification, a successor for the remainder

of the term of such member shall be appointed by the

appointing authority for the member whose position is vacated.

(c) The Board shall establish the time of any hearings or

meetings held pursuant to this Chapter and such hearings or

meetings shall be held in the City Hall as often as the Board

determines to be necessary to discharge its duties hereunder.

(d) The Board shall elect one (1) of its members as the Chair

and said election shall be held as soon as practicable after each

new term commences or new appointments are made to the

majority of the Park Owner, Resident Homeowners and At

Large Members. Four (4) Board Members, counting any

Alternate serving in the absence of a Board Member, shall

constitute a quorum. The decisions of the Board shall be made

by a majority vote, provided however, that if the Board

Members and any Alternates constituting the quorum do not

include an equal number of Resident Homeowner and Park

Owner Members and the Resident Homeowner and Park Owner

Members present and voting are not outnumbered by At Large

Members, including the At Large Alternate, then four (4)

affirmative votes shall be required to reach a decision on a rent

adjustment application.

(e) The duties and responsibilities of the Board shall include the

following:

(1) The Board shall make any recommendations to the City

Council the Board deems appropriate regarding the

implementation and enforcement of the provisions of this

Chapter.

(2) The Board shall hear rent adjustment applications and

determine whether to approve, modify, or disapprove a rent

adjustment pursuant to the procedures set forth in CMC 4704.

(3) The compensation of Board members, alternates and

mediator shall be determined by the City Council. (Ord. 79-

Appendix D-6

485U; Ord. 80-519, § 1; Ord. 81-582, § 1; Ord. 82-614,

§ 1;Ord. 88-847, § 1; Ord. 92-983, § 2; Ord. 92-988U, § § 1, 3;

Ord. 92-994U, § 1; Ord. 97-1113, § 1; Ord. 97-1127U, § 1;

Ord. 98-1130, § § 3-5)

§ 4703 Base Rent.

Except as hereinafter provided, a Park Owner shall not demand,

accept, or retain rent for a mobilehome space exceeding the rent

in effect for said space on May 1, 1979. Ifa previously rented

mobilehome space was not rented on May 1, 1979, the Park

Owner shall not demand, accept, or retain rent for said space

exceeding the rent in effect during the last month the space was

rented prior to May 1, 1979. If a mobilehome space is rented

for the first time after May 1, 1979, the Park Owner shall not

demand, accept or retain rent for said space exceeding the rent

first charged for the space. No Park Owner shall send a notice

containing the specific amount of a proposed rental increase

prior to receiving approval of a rent increase from the Board.

Except as herein provided, a Park Owner shall not demand,

accept or retain rent exceeding the rent in effect on June 1,

1983, for a mobilehome space that was not regulated by this

Section prior to the amendment of this Section on June 20,

1983. If such a mobilehome space was not rented on June 1,

1983, the Park Owner shall not demand, accept or retain rent

for said space exceeding the rent in effect during the last month

the space was rented prior to June 1, 1983. (Ord. 79-485U;

Ord. 80-504U; Ord. 83-695U, § 2; Ord. 98-1130, § 6)

§ 4704 Permitted Rent Increases Based

Upon Application Approved by the Board.

(a) A Park Owner may file with the Department a rent increase

application for one(1) or more mobilehome spaces for approval

by the Board. A Park Owner, a Resident Homeowner or the

Department may file an application for a rent adjustment for

one (1) or more spaces pursuant to CMC 4704(h).

Appendix D-7

(b) An application for arent adjustment pursuant to this Section

shall be filed upon a form prescribed by the Department and

shall be accompanied by the payment of a fee to be established

by resolution of the City Council. The application shall specify

the address of the mobilehome park, the space number or

numbers for which rent is requested to be increased, the amount

of the requested rent increase, the facts supporting the

application. Supporting documentation shall be filed with the

application and the applicant shall produce at the request of the

Department any records, receipts, reports, or other documents

that the Department may deem necessary for the Board to make

its determination concerning the application. The application

shall be made under penalty of perjury and supporting

documents shall be certified or verified as requested by the

Department.

(c) A rent increase application accompanied by the required fee

shall be accepted and lodged by the Department but shall not be

filed until it is substantially complete and the time periods

provided by this Chapter for processing the application shall not

begin to run until an application is substantially complete and

filed. The Department shall determine within thirty (30) days

after the lodging of an application whether said application is

complete. If the Department determines that an application is

not complete, it shall so notify the applicant in writing and the

notice shall state what additional information is required to

complete the application. An application which is substantially

complete but lacks documentation to support certain claims can

be processed for hearing, but any claimed expenses lacking

adequate documentation shall not be allowed as operating

expenses. Any application which has not been substantially

completed within six (6) months of its submission to the

Department shall be returned to the applicant. Thereafter, a

new application and fee shall be required if the applicant wishes

to apply for a rent increase.

(d) Upon receipt of a rent increase application, the Department

shall mail a notice to the affected Homeowners informing them

Appendix D-8

that an application has been lodged and is being reviewed for

completeness. The notice shall also state the amount of the

increase being sought. Homeowners may review the

application in the Department and may also obtain copies of the

application upon payment of the City’s copying costs. Upon

determining that the application is substantially complete, the

Department shall mail a notice to the applicant stating that the

application is substantially complete and has been filed. At the

same time, the Department shall mail a notice to the affected

Homeowners stating that the application is substantially

complete and informing them of the amount of the rent increase

sought and that they have thirty (30) days from the date of the

notice in which to submit written statements, photographs,

documents, or other evidence relating to the application, to the

Department. No written statements, photographs, documents,

or other evidence relating to the application may be filed later

than ten (10) days before the hearing on the application. All

materials submitted by a Park Owner, Homeowner or any other

interested party are public records, may be inspected and may

be copied upon payment of the City’s copying costs.

(e) The Board shall hold a public hearing on an application

within sixty (60) days of the date that the application is

determined to be substantially complete, except as provided in

subsection (j) of this Section. Notice of the time, date and place

of the hearing shall be mailed to the applicant and affected

Homeowners at least fifteen (15) days prior to the hearing date.

The Staff report on an application shall be provided to Board

Members, and made available to the applicant, the Homeowners

and their designated representatives, if any, at least five (5) days

prior to the hearing.

(f) (1) At the public hearing, the applicant, affected

Homeowners, their representatives and any interested person

may offer any testimony that is relevant to the application.

They may offer documents, written declarations, photographs

or other wntten or documentary evidence for the first time at

the hearing only if good cause is shown why such evidence

Appendix D-9

could not, with reasonable diligence, have been filed with the

Department ten (10) days prior to the hearing and that the

material was filed with the Department as soon as possible.

Board Members and Alternates may testify at a hearing on a

rent increase application only when they have recused

themselves and the application involves a park in which they

reside, have a financial interest or manage, or in which a parent,

grandparent or siblings of the Board Member or Alternate

resides.

(2) All persons testifying at the hearing shall be sworn under

penalty of perjury. Formal rules of evidence shall not be

applicable to the hearing.

(3) The Board may approve the rent increase requested, approve

a modified rent increase or deny the application pursuant to the

standards established by subsections (g) and (h) of this Section

and shall adopt a written resolution setting forth its findings and

decision no later than seventy-five (75) days after the

application was deemed substantially complete.

(g) The Board shall grant such rent increases as it determines to

be fair, just and reasonable. A rent increase is fair, just and

reasonable if it protects Homeowners from excessive rent

increases and allows a fair return on investment to the Park

Owner. The Board shall consider the following factors and any

Guidelines adopted by the City Council, as well as any other

relevant factors, in making its determination and no one (1)

factor shall be determinative.

(1) Changes in the Consumer Price Index for All Urban

Consumers in the Los Angeles-Anaheim-Riverside Area

published by the Bureau of Labor Statistics. If the Bureau of

Labor Statistics subsequently changes the geographic reporting

area in which the City is located, the Board shall use the most

current applicable reporting area established by the Bureau.

(2) The rent lawfully charged for comparable mobilehome

spaces in the City of Carson.

(3) The length of time since either the last hearing and final

determination by the Board on a rent increase application or the

Appendix D-10

last rent increase if no previous rent increase application has

been made.

(4) The completion of any capital improvements related to the

mobilehome space or spaces in the rent increase application,

including such items of cost as materials, labor, interest, permit

fees and other items as established by evidence and deemed

relevant by the Board.

(5) Changes in property taxes or other taxes related to the

subject mobilehome park.

(6) Changes in the rent paid by the applicant for the lease of the

land on which the subject mobilehome park is located.

(7) Changes in the utility charges for the subject Mobilehome

park paid by the applicant and the extent, if any, of

reimbursement from the tenants.

(8) Changes in reasonable operating and maintenance expenses.

(9) The need for repairs caused by circumstances other than

ordinary wear and tear.

(10) The amount and quality of services provided by the

applicant to the affected tenant.

(11) Any existing written lease lawfully entered into between

the applicant and the affected tenant.

(h) (1) The Board may provide that an increase in rent, or a

portion of an increase in rent, granted by the Board be limited

to the length of time necessary to allow the Park Owner to

reasonably amortize the cost of a capital improvement,

including interest and any costs necessary to the capital

improvement, excluding attorneys’ fees. Such increases shall

not continue beyond the time necessary for reasonable

amortization of the cost of such improvement and shall be listed

separately from the base rent for a space on the monthly rent

statement, invoice or bill provided to the Homeowners. When

calculating general rent increases, any capital improvement rent

increase shall not be included in the existing rent.

(2) If the cost of a capital improvement for which an increase

was granted under this subsection is later recovered by the Park

Owner from a third party before the expiration of the

Appendix D-11

amortization period approved by the Board, the Park Owner,

any affected Homeowner or the Director of the Department or

his designee, may file an application with the Department for

the termination of the capital improvement rent increase on the

ground that the Park Owner has recovered the cost of the

improvement through insurance, litigation or other right of

indemnity. The capital improvement rent increase shall be

suspended pending determination of the application and if the

application is denied the amortization period during which the

increase may be collected shall be extended as necessary to

allow the full amortization period originally allowed by the

Board.

(3) Upon receipt of an application to terminate a capital

improvement rent increase, and upon satisfactory proof of

recovery of the cost of the improvement, such as, but not

limited to, a court judgment or insurer’s acknowledgment of

coverage, the Director of the Department shall give notice of

the application to the Park Owner and affected Homeowners

and the capital improvement rent increase shall be terminated

within fifteen (15) days unless within ten (10) days of the notice

it is protested by the Park Owner on the ground that he or she

has not in fact recovered the cost of the improvement. If

satisfactory proof of recovery of the cost of the improvement is

not submitted with the application, the Department shall give

notice of that determination to the applicant, the affected

Homeowners and the Park owner and the Director’s decision

shall become final within fifteen (15) days of the notice unless

protested by the applicant or an affected Homeowner within

fifteen (15) days of the notice. If a protest is filed by an

affected Homeowner or the Park Owner, mailed notice shall be

given to the affected Homeowners and Park Owner that the

protest will be heard by the Board on a date not later than thirty

(30) days after the filing of the protest. The notice shall be

maiied no later than fifteen (15) days prior to the hearing and

the Board shall make its decision by written resolution setting

Appendix D-12

forth its findings within forty-five (45) days after the filing of

the protest. (Ord. 80-544, § 1; Ord. No. 83-655, § 1)

(i) Notice of the Board’s determination on an application shall

be mailed to the applicant, the Park Owner and all affected

Homeowners at the mobilehome spaces designated in the

application. The determination of the Board shall be final.

(j) The time in which the Board must open the hearing on an

application and the time in which the Board must make any

final decision may be extended with the consent of the applicant

or Park Owner and may be extended without the consent of the

applicant or Park Owner if the need for the extension is caused

by the conduct of the applicant or the Park Owner. In the event

the Board is unable to make its decision within the time limits

set forth in this Chapter, including any extensions of time

consented to by the applicant, the Board’s inability to make a

timely decision is not due to the conduct of the applicant or the

Park Owner, or some cause beyond the Board’s control, such

as, but not limited to, fire, earthquake or flood, the Board shall

at the time it grants any rent increase based on subsections (g)

and (h) of this Section grant a temporary additional rent

increase to the applicant to compensate the applicant for the

difference between the rental income received between the time

when an increase should have been granted pursuant to the time

limits set forth in this Chapter and the rental income that would

have been received if the increase had been timely granted.

(k) Deleted by Ord. 98-1130. (Ord. 79-485U; Ord. 80-544, § 1;

Ord. 82-624, § § 1-4; Ord. 98-1130, § § 8-15)

§ 4705 Maximum Allowable Rent.

The maximum allowable rent (“MAR”) for any mobilehome

Space in a park in the City is the last rent approved by the

Board. Any park which has not sought approval of a rent

increase from the Board by July 31, 1997 Ordinance (No. 98-

1136) shall register, on a form provided by the Department, the

rent for each space in the park on July 31, 1997, and the

amenities and services provided to the Homeowners in the park

Appendix D-13

on that date without any charge beyond the rent in effect on that

date, within thirty (30) days of the date this Ordinance (No. 98-

1136) becomes effective. The rent so registered for each space

shall become the MAR for that space unless that rent is

challenged by a Resident Homeowner in the park within thirty

(30) days after notice is sent by the Department to each

Homegwner showing the rent that has been registered for each

space. The challenge must be based on evidence showing that

the rent registered exceeds that in effect in May of 1979 plus

fifty (50) percent of the increase in the CPI since that date or

exceeds the rent charged to the Resident Homeowner on July

31, 1997. Any challenge shall be submitted in writing to the

Department. Upon receipt of the challenge, the Department

shall notify the Park Owner that he or she has thirty (30) days

in which to provide any information relevant to determining the

MAR for the space or spaces for which the challenge has been

filed. The Department shall set a public hearing to determine

the MAR for each space for which a challenge has been filed no

later than thirty (30) days after the expiration of the Park

Owner’s time to respond. Notice of the time, date and place of

the hearing shall be mailed to the Park Owner and affected

Homeowners no later than fifteen (15) days prior to the public

hearing and no written or documentary evidence may be

submitted later than ten (10) days prior to the hearing date. The

hearing shall be held according to the provisions governing

hearings on rent increase applications. The Board shall adopt

a written resolution setting forth its findings and the MAR for

the spaces for which a challenge was filed within fifteen (15)

days after the date on which the public hearing is opened. No

fee shall be charged for registering rents under this subsection

or for filing a challenge to a rent or rents challenged pursuant to

this subsection. (Ord. 98-1130, § 16)

Appendix D-14

§ 4706 Tenancies Not Governed by the

Mobilehome Residency Law.

(a) A Resident Homeowner whose tenancy is not regulated by

the provisions of the Mobilehome Residency Law (Civil Code

Sections 798 through 799.6) shall not be charged a fee for

anything other than rent or utilities with the exception of

incidental reasonable charges for services actually rendered.

(b) A tenancy which is not subject to the provisions of the

Mobilehome Residency Law (Civil Code Sections 798 through

799.6) shall not be terminated nor shall its renewal be refused,

except for one (1) or more of the following reasons:

(1) Failure of the Homeowner to comply with a local ordinance

or State law or regulation relating to mobilehomes within a

reasonable time after the Homeowner receives a notice of

noncompliance from the appropriate governmental agency.

(2) Conduct by the Homeowner, upon the mobilehome park

premises, which constitutes a substantial annoyance to other

Homeowners.

(3) Failure of the Homeowner to comply with reasonable rule

or regulation of the mobilehome park. No act or omission of

the Homeowner shall constitute such a failure to comply unless

and until the Park Owner has given the Homeowner written

notice of the alleged rule or regulation violation and the

Homeowner has failed to adhere to the rule or regulation within

seven (7) days.

(4) Nonpayment of rent, utility charges, or reasonable incidental

service charges.

(5) Condemnation of the mobilehome park.

(6) Change of use of the mobilehome park, provided that:

(A) The Park Owner has complied with the provisions of

Section 798.56 of the California Civil Code, Government Code

Sections 65863.7 and 65863.8 and CMC 9128.21.

(B) The Park Owner gives the Homeowner written notice of the

proposed change twelve (12) months or more before the date of

the proposed change.

Appendix D-15

(C) The Park Owner gives each proposed Homeowner whose

tenancy will commence within twelve (12) months of the

proposed change, written notice thereof prior to the inception of

his tenancy.

(c) Notice of termination or refusal to renew must be given in

writing in the manner prescribed by Section 1162 of the Code

of Civil Procedure at least sixty (60) days prior to the

termination date of the tenancy. Said notice shall state the date

the tenancy terminates, the reason for the termination or refusal

to renew, and the specific facts upon which the Park Owner is

relying. (Ord. 79-485U; Ord. 92-965, § 11; Ord. 98-1130,

§ § 16, 17)

§ 4707 Refusal of Homeowner to Pay Illegal Rent.

A Homeowner may refuse to pay any rent in excess of the

maximum allowable rent (“MAR”) permitted by this Chapter.

The fact that such unpaid rent is in excess of the MAR shall be

a defense in any action brought to recover possession of a

mobilehome space far nonpayment of rent or to collect the

illegal rent. (Ord. 79-485U; Ord. 98-1130, § 18)

§ 4708 Remedies.

(a) Any person who demands, accepts or retains any payment of

rent in violation of the provisions of this Chapter shall be liable

in a civil action to the person from whom such payment is

demanded, accepted or retained for damages in the sum of three

(3) times the amount by which the payment or payments

demanded, accepted, or retained exceed the maximum rent

which could lawtully be demanded, accepted or retained

together with reasonable attorneys’ fees and costs as determined

by the court. |

(b) Any person violating any of the provisions of this Chapter

shall be guilty of a misdemeanor and shall be punishable in the

manner provided by CMC 1200.

(c) Code of Civil Procedure Section 1094.6 is applicable to

decisions of the Mobilehome Park Rental Review Board

Appendix D-16

granting or denying rent increase applications and no legal

challenge to any such decision of the Board may be brought

unless it is filed within ninety (90) days of the Board’s final

decision, as set forth in its written resolution making findings.

The Board’s resolution granting or denying the increase shall

state that the time within which judicial review must be sought

is governed by Code of Civil Procedure Section 1094.6 and a

copy of the resolution, including a certificate of mailing, shall

be sent to the applicant, and to a representative of the residents

of the affected mobilehome park, if one has been designated, by

first class mail. (Ord. 79-485U; Ord. 94-1031, § 1)

§ 4709 City Council Review of This Chapter.

The City Council shall review the provisions of this Chapter six

- (6) months after the date of adoption thereof, and at any other

time deemed appropriate, in order to consider the following:

(a) Whether mobilehome space rent control continues to be

necessary to protect the public health, safety and welfare;

(b) Whether the implementation of the provisions of this

Chapter have been adequate; and

(c) Whether the provisions of this Chapter should be amended

to provide more effective regulations or to avoid unnecessary

hardship. (Ord. 79-485U)

§ 4710 Lease Regulations.

No Park Owner may require, directly or indirectly, that any

Homeowner or prospective Homeowner sign a lease or rental

agreement that provides that it shall be exempt from local rent

control or provides for space rent in excess of that permitted by

this Chapter as a condition of tenancy in the park and no Park

Owner may deny a tenancy to a prospective purchaser of a

mobilehome in the park on the ground that the prospective

purchaser will not sign such a lease or rental agreement. (Ord.

91-941U, § 1; Ord. 91-941, § 1; Ord. 92-970U, § 2; Ord. 92-

970, § 2; Ord. 98-1130, § 19)

Appendix D-17

§ 4711 Utility Fees - Registration and Posting.

(a) Not less than ninety (90) days prior to imposing a separate

charge for a utility service previously included in the rent

pursuant to Civil Code Section 798.41, a Park Owner shall file

notice thereof with the Department on a form provided by the

City, which specifies the current rent for each space, the new

charge to be imposed, the duration and expiration date of the

separate charge if it has a limited duration or is amortized for a

specified period, the rent reduction to be made simultaneously

with imposition of the charge, the calculation of the new charge

and rent reduction and the new MAR for each space.

(b) Not less than ninety (90) days prior to imposing, increasing,

decreasing or eliminating a charge separately billed pursuant to

Civil Code Section 798.49, a Park Owner shall file a notice

with the Department on a form provided with the City which

specifies for each space the current rent, the amount of the new

charge or charge eliminated or the amount of any increase or

decrease in an existing charge, the fee or assessment on which

the charge or change therein is based, the basis for the amount

of the charge or any change therein and the duration and

expiration date of the charge if it has a limited duration or is

amortized for a specified period.

(c) Within ten (10) days of executing any rental agreement or

lease which is exempt from this Chapter pursuant to Civil Code

Section 798.17, a Park Owner shall register that lease with the

Department on a form provided by the City, which specifies the

beginning and ending date of the lease and the rental rate(s)

applicable during the duration of the lease, and shall attach

thereto a copy of the lease.

(d) Every Park Owner shall post a copy of this Chapter in the

park office or manager’s office and in any clubhouse, recreation

building or room, auditorium or assembly room, shall give each

prospective Homeowner and Resident a copy of this Chapter

before the prospective Homeowner executes any lease or rental

agreement with the park and shall file a signed receipt from

each new Homeowner acknowledging receipt of a copy of this

Appendix D-18

Chapter prior to execution of any lease or rental agreement with

the Department within five (5) days of execution of the lease or

rental agreement. (Ord. 92-970U, § 1; Ord. 92-970, § 1; Ord.

93-1000U, § 1; Ord. 93-1000, § 1; Ord. 98-1130, § 20)

CHAPTER 8

SALE AND DISPLAY OF NARCOTIC

AND OTHER PARAPHERNALIA

§ 4800 Minors.

No owner, manager or proprietor in charge of any room in any

place of business selling, or displaying for the purpose of sale,

any device, contrivance, instrument or paraphernalia for

smoking or injecting or consuming marijuana, hashish, PCP, or

any controlled substance, as defined in the Health and Safety

Code of the State of California (other than prescription drugs

and devices to ingest or inject prescription drugs), roach clips,

cigarette papers and rollers designed for the smoking of the

foregoing, shall allow or permit any person under the age of

eighteen (18) years to be, remain in, enter or visit such room

unless such minor person is accompanied by one (1) of his or

her parents, or by his or her legal guardian. (Ord. 81-578, § 1)

§ 4801 Minors - Excluded.

A person under the age of eighteen (18) years shall not be,

remain in, enter or visit any room in any place used for the sale,

or displaying for sale, devices, contrivances, instruments or

paraphernalia for smoking or injecting marijuana, hashish, PCP,

or any controlled substance (other than prescription drugs and

devices to ingest or inject prescription drugs), including roach

clips, and cigarette papers and rollers designed and used for

smoking the foregoing, unless such person is accompanied by

one (1) of his or her parents, or his or her legal guardian. (Ord.

81-578, § 1)