Correspondence - #33 - Laserfiche WebLink

Home Browse Search

DOWDALL LAW OFFICES A PROFESSIONAL CORPORATION ATTO R N EYS AT LAW City Council of the City of Santa Ana City of Santa Ana September 16, 2021 Page 41 prepayment subject to HUD approval, which would be granted "`only if prepayment would not materially increase economic hardship for current tenants."' Id. Cienega Gardens explicitly addresses the question of whether adopting this legislation `went too far,' resulting in a "Penn Central" regulatory taking, by "show[ing] that the government has improperly shifted a public burden to a small class of private parties. Id. at 1328, quoting Armstrong v. United States, 364 U.S. 40,49 (1960). The Ninth Circuit reversed the decision of the trial court "because the conclusion that the housing program participants did not suffer a compensable taking was incorrect." Id. The Court applied the three factor Penn Central analysis to assess the taking claim. Id at 1337. In finding a taking, the Ninth Circuit focused on the character of the government action. Id. The Cienega Gardens court noted that the regulation curtailed the right of the property owners to exclude low rent tenants from their property, "by requiring Owners to continue to rent their properties at below market rents to government -approved low-income tenants." The result "eviscerated the Owners' right to exclude" which is "`one of the most essential sticks in the bundle of rights that are commonly characterized as property."' (Quoting Kaiser Aetna v. United States, 444 U.S. 164, 177 (1979)). The Court found a taking because: ... the statutes authorize the continuing physical occupation of particular developers' properties to address a societal shortage of low-income housing and that this is intrusive beyond the level of traditional governmental limits on land titles. Under Penn Central, "[a] `taking may more readily be found when the interference with property can be characterized as a physical invasion by the government ... than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." 438 U.S. at 124. The city of Santa Ana may well wish to serve a public purpose of helping provide affordable housing by not requiring old-fashioned and passe rent control. But the question to be addressed is whether that burden can be imposed on Park owners without causing a compensable taking by disallowing re -indexing to market at the end of the incumbent tenant's residency. Such a practice is a slap to affordable housing, and a nod to profiteering by a seller for whom the city has no further housing interest to protect. The sale of mobilehomes which include the underlying leasehold property value is no different than the illegal key money from improved premises in other states, where the practice is illegal. Selling rent control entitlements at value is no different from "key money,i16 or "side " Carl Mason and John M. Quigley (2006), The Curious Institution of Mobile Home Rent Control: An Analysis of Mobile Home Parks in California. UC Berkeley: Berkeley Program on Housing and Urban Policy. Retrieved from: http://www.escholarship.org/uc/item/44d7h9hs. -41-