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HomeMy WebLinkAboutCorrespondence - #26Alcala, Abigail From: Sue Loftin < Sent: Tuesday, October 17, 2023 10:42 AM To: eComment Cc: Assistant Subject: Hearing October 17, 2023, Agenda Items 26 & 27 Opposition Attachments: 2023.10.17 Items 26&27 Opp. Exh..pdf Dear Ms. Hall, City Clerk, The attached correspondence is offered in Opposition to agenda items 26 and 27. Thank you for your assistance with this matter. Sue Loftin, Esq. LOFTIN I BEDELL P.C. Carlsbad, CA 92009 Tel: Direct Tel: Fax: Email: Attention: This email has limited purposes. It may not contain the full extent of any conversation related to a specific topic and may not represent legal advice on a specific topic. Emails are abbreviated means of communication and as such cannot be relied upon for a full and complete response to any factual or legal issue. Privileged and Confidential Communication: This email message and its contents are legally privileged and confidential information that is intended solely for the use of the intended addressee. If the reader is not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of this message and its contents is strictly prohibited. If you have received this email message in error, please contact the sender by reply email immediately 2023.10.17 Items 26&27 Opp. Exh..pdf ATTORNEYS AT LAW Electronic Transmission (eComment@santa-ana-org) October 17, 2023 Honorable Mayor Valerie Amezcua, Mayor Pro Tem Jessie Lopez and Council Members Thai Viet Phan, Genjamin Vazquez, Phil Bacerra, Johnathan Ryan Hernandez and David Penaloza. City of Santa Ana c/o Office of the City Clerk 20 Civic Center Plaza M-30 Santa Ana, CA 92701 Re: Hearing Date: City Council Meeting, October 17, 2023 Agenda Items 26: Oppose and Request the Matter be Removed from Consent Calendar Agenda Item 27: Oppose Request the Measure proposed be denied. Request: Amend the Existing Ordinance No. 3027 to Comply with Existing State and Federal Statutory, Regulatory and Case Law and to Comply with 2023 approved State Statutory Changes. Dear Honorable Mayor Valerie Amezcua, Mayor Pro Tem Jessie Lopez, and Councilmembers Thai Viet Phan, Benjamin Vazquez, Phil Bacerra, Johnathan Ryan Hernandez and David Penaloza: This Firm represents Kingsley Management Corporation, and its affiliated companies, which manage, own, and operate, with care and concern for the Homeowners (residents) multiple mobilehome parks within in the City of Santa Ana. To reiterate what has been said in correspondence and litigation, this Firm and its Client never said the City could not pass rent control. In fact, has stated the opposite in court pleadings and to the City. The request has been to engage in consultation with all interested parties, not just renters, and to pass rent control that complies with State and Federal Laws including the related regulations and the cases arising from said statutes and regulations, specifically related to mobilehome owners/space renters and mobilehome park owners. Additionally, rental owners and organizations representing rental owners, including Kingsley Management Corporation, have requested to meet and discuss the issues to arrive at a fair, balanced, and legal program for all — renters and rental property owners. The staff report for these two agenda items 26 and 27 do not provide additional substantive factual or legal information to support the amendment to Ordinance No. 3027 to distinguish this Staff Report from the Staff Reports of October 3, 2023 and October 17, 2023; therefore, the Opposition to agenda items 26 and 27 include all Opposition submitted to the October 3, 2023 agenda item 16 • Carlsbad • California • 92009 T: • Direct: • www.loftinbedell.com • LOFTIN I BEDELL P.C. Santa Ana Mayor and Council Members c/o City Clerk October 17, 2023 Page 2 of 3 and October 17, 2023, agenda item 26 which are hereby incorporated as the Opposition to this Agenda Item. (October 3, 2023 Opposition to Agenda Item 16 is attached for your convenience) As further Opposition to this Agenda Item This Firm, on behalf of Kinsley Management Corporation and its affiliated companies, has noted in its correspondence to the City that commencing January 2, 2020, to the present, violations Government Code sections 54950 and 36934, and potential violation of Government Code section 84308 in communications, correspondences, and statements related to and presented to the City Council at various stages of the City Council's consideration and adoption of the various rent control and eviction protection ordinances and related policies. Such prior violations and deficiencies noted previously in the public record are incorporated herein as though set forth in full, however, were presented in the following public records: (i) City Council Hearings held on September 21, October 5 and November 19, 2021 ("2021 Record") for the adoption of Ordinance Nos. 3009 and 3010 ("2021 Ordinances"); (ii) City Council Hearings held on October 5, 2022 and October 18, 2022 ("2022 Record") for the adoption of Ordinance No. 3027. ("2022 Ordinance"); (iii) City Council Hearings August 29, 2023 and September 19, 2023 ("2023 1st Amendment Hearings") and the opposition orally and in writing, including the correspondences dated August 28, 2023 from Sue Loftin, LoftinjBedell P.C. and Terry Dowdall, Dowdall Law to the attempted modification of the Ordinance, see record for City Council Hearing September 29, 2023, (iii) adoption all regulations, policies, retention of third -party vendors/agents, including the adoption of all Resolutions from 2021 to current date including all oppositions related thereto ("2023 Resolutions"). The public records commencing approximately January 2, 2020 of the meetings, communications and hearings include all memorandums, electronic transmissions, letters between and among staff, consultants, and members of the public, excepting attorney -client privileged materials; and between any City staff person, consultant or elected or appointed official with any third party, and all opposition letters, emails and verbal presentations and the video recording of those hearings are hereby incorporated for the record in this matter. Additionally, the Pleadings for cases naming the City of Santa Ana as the defendant in the Federal District Court Cases Nos. 8:22-cv-00076-CJC-JDEx and 8:33-cv-00102-CJC-JDE and the Ninth Circuit Court of Appeal for Case No. 8:22-cv-00076-CJC (JDEx) are hereby incorporated into this record. The Staff Report as well as all others submitted related to Rent Control and Just Cause Eviction Ordinances and related matters do not disclose, include, reference or otherwise include in the Staff Report or at the Open Meeting Oppositions to the actions, including suggestions for amendments, among other factual and legal matters. The general public and those attending the hearing are generally unaware of the positions of those in opposition. Sincerely, LOFTIN I BEDEL�I., P.C. By: L. Sue Loftin' ,Nsq. LOFTIN I BEDELL P.C. Santa Ana Mayor and Council Members c/o City Clerk October 17, 2023 Page 3 of 3 cc: Client Encl: October 3, 2023 Opposition to Agenda Item 16. Electronic Transmission (eComment@santa-ana-org) October 3, 2023 Honorable Mayor Valerie Amezcua, Mayor Pro Tem Jessie Lopez and Council Members Thai Viet Phan, Genjamin Vazquez, Phil Bacerra, Johnathan Ryan Hernandez and David Penaloza. City of Santa Ana c/o Office of the City Clerk 20 Civic Center Plaza M-30 Santa Ana, CA 92701 Re: Hearing Date: City Council Meeting, October 3, 2023 Agenda Item 16: Support Option 1 Opposed to Proposed Options 2-5 Request: Do Nothing or Amend the Existing Ordinance No. 3027 to Comply with Existing State and Federal Statutory, Regulatory and Case Law and tc Comply with 2023 approved State Statutory Changes. Dear Honorable Mayor Valerie Amezcua, Mayor Pro Tem Jessie Lopez, and Councilmembers Thai Viet Phan, Benjamin Vazquez, Phil Bacerra, Johnathan Ryan Hernandez and David Penaloza: This Firm represents Kingsley Management Corporation, and its affiliated companies, which manage, own, and operate, with care and concern for the Homeowners (residents) multiple mobilehome parks within in the City of Santa Ana. SUPPORT OPTION 1 Take NO Action To reiterate what has been said in correspondence and litigation, this Firm and its Client never said the City could not pass rent control applicable to mobilehome parks. In fact, has stated the opposite in court pleadings and to the City in the numerous communications submitted over the last approximate two and one-half (2 1/2 ) years. Rather than restate two and one-half (2 1/2 ) of law and facts, and the objections to the Ordinances and related actions occurring during that time, the public record is hereby incorporated 1 The request has been to acknowledge the specific bodies of State and Federal law pertaining to mobilehome parks and the relationship between the owners of mobilehome parks and mobilehome owners who rent spaces in the Park ("Body of Law") and incorporate that Body of Law into the Footnote 3, sgLm. • Carlsbad California • 92009 T: • Direct: • www.loftinbedell.com • LOFTIN I BEDELL P.C. Santa Ana Mayor and Council Members c/o City Clerk October 3, 2023 Page 2 of 6 proposed Ordinances and related actions or create separate Ordinances applicable to that Body of Law. This body of law impacts both rent control and just cause eviction ordinances and is distinguishable from law applicable to other residential rental properties. Combining the two distinct bodies of law has created facial issues related to both types of housing rental properties. to engage Additionally, rental owners and organizations representing rental owners, including Kingsley Management Corporation, have requested to meet and discuss the issues to arrive at fair, balanced, and legal program for all — renters and rental property owners. To take the actions proposed under the four remaining Options based on the existing Ordinance No. 3027 ignores the fact the State legislature has passed statutes which will require Ordinance No. 3027 to comply with statutes approved by the Governor, who has approved some but has until October 14, 2023 to consider all of the legislative passed statutes. Approving Options 2, 3, 4, and 5 will have as the basis an Ordinance which has portions of it that conflict with State law. Based on the foregoing, the following objections to Options 2, 3, 4, and 5, and the incorporate record in this matter, please approve Option 1, which is to take no action. Please consider sending Ordinance 3027 to the City Attorney for either separating the two distinct rental property bodies of law or amending Ordinance 3027 to comply with both bodies of law. No comment or assertion contained herein or below is a waiver or amendment of the assertions, contentions and allegations presented in opposition contained in the incorporated Record of the related proceedings before the City or other actions by elected officials or staff and/or in court pleadings filed in the actions, as incorporated in footnote 3. Nothing said herein waives any legal or regulatory rights of Kingsley to oppose City actions related to the adoption of Resolutions, Ordinances, Measures, or regulations and policies related to the same. GENERAL OBJECTION TO ALL OPTIONS 2, 3, 4, and 5. 1. TIMING OF REQUEST FOR APPROVAL OF AN ORDINANCE CONFLICTING WITH 2O23 STATE STATUTES : There have been 2023 state legislative bills passed and signed by the Governor will be effective January 1, 2024 which statutes will amend the state statutory scheme related to the Ordinance. The Ordinance attached is in conflict with the new statutes and may be in conflict with the numerous other bills pending the Governors consideration no later than October 14, 2023. Therefore, the action taken at this time will require further amendment to the Ordinance to comply with 2023 State Statutes. The foregoing does not concede the Ordinance complies with current state or federal law. Therefore, all proposed Resolutions and attached proposed ordinances should be denied or referred back to the City Attorney for amendment to the Ordinance. 2. GOVERNMENT CODE sections 54950, 36934 and 84308. All prior objections to the adoption of the 2021, 2022 and attempted amendment in contravention of City Charter in KMC700426.CCH9.3.2023 LOFTIN I BEDELL P.C. Santa Ana Mayor and Council Members c/o City Clerk October 3, 2023 Page 3 of 6 2023 related to violations of the listed Government Code sections, except Government Code 84308 did not apply to the City Council until January 1, 2022. The City Attorney's blanket statement ("No") that Government Code section 84308 does not apply is not sufficient to support that conclusion and this correspondence is a rejection of that conclusion.2 3. INCORPORATION OF THE COMPLETE RECORD RELATED TO THE ADOPTION OF THE FIRST TWO ORDINANCES IN 2021 (Ordinance Nos. 3009 and 3010) THROUGH THE CURRENT DATE, (INCLUDING THE ADOPTION THE CURRENT ORDINANCE (Ordinance No. 3027 and all implementing Resolutions and/or Policies and Regulations prepared by City Staff and/or third Party Vendors on behalf of the City) AS SET FORTH IN THE FOOTNOTE BELOW.3 For purpose of reference, the materials referenced in Footnote 3 shall be known as the "Record". As stated, supra, the extensive law and facts presented in the incorporated record will not be reiterated herein but is incorporated as delineate below with a few exceptions as noted in this correspondence. STAFF RECOMMENDED ALTERNATIVE ACTIONS The Staff Report was organized with a numbering system of the Options which may be confusing. The following comments will be divided into "First Set of Options: Options 2 or 3, and Second Set of Options: 4 and/or 5 with the assumption the intent that either Options 2 or 3 and/or in addition Options 4 or 5 are subject for consideration by Council for approval. First Set of Options 2 See, San Diegans for Open Government v. City of Oceanside (2016) 4 Cal.App.51637, 643. 3 This Firm, on behalf of Kinsley Management Corporation and its affiliated companies, has noted, commencing January 2, 2020, to the present, violations Government Code sections 54950 and 36934, and potential violation of Government Code section 84308 in communications, correspondences, and statements related to and presented to the City Council at various stages of the City Council's consideration and adoption of the various rent control and eviction protection ordinances and related policies. Such prior violations and deficiencies noted previously in the public record are incorporated herein as though set forth in full, however, were presented in the following public records: (i) City Council Hearings held on September 21, October 5 and November 19, 2021 ("2021 Record") for the adoption of Ordinance Nos. 3009 and 3010 ("2021 Ordinances"); (ii) City Council Hearings held on October 5, 2022 and October 18, 2022 ("2022 Record") for the adoption of Ordinance No. 3027. ("2022 Ordinance"); (iii) City Council Hearings August 29, 2023 and September 19, 2023 ("2023 1st Amendment Hearings") and the opposition orally and in writing, including the correspondences dated August 28, 2023 from Sue Loftin, LoftinlBedell P.C. and Terry Dowdall, Dowdall Law to the attempted modification of the Ordinance, see record for City Council Hearing September 29, 2023, (iii) adoption all regulations, policies, retention of third -party vendors/agents, including the adoption of all Resolutions from 2021 to current date including all oppositions related thereto ("2023 Resolutions"). The public records commencing approximately January 2, 2020 of the meetings, communications and hearings include all memorandums, electronic transmissions, letters between and among staff, consultants, and members of the public, excepting attorney -client privileged materials; and between any City staff person, consultant or elected or appointed official with any third party, and all opposition letters, emails and verbal presentations and the video recording of those hearings are hereby incorporated for the record in this matter. Additionally, the Pleadings for cases naming the City of Santa Ana as the defendant in the Federal District Court Cases Nos. 8:22-cv- 00076-CJC-JDEx and 8:33-cv-00102-CJC-JDE and the Ninth Circuit Court of Appeal for Case No. 8:22-cv-00076-CJC (JDEx) are hereby incorporated into this record. KMC700426.CCH9.3.2023 LOFTIN I BEDELL P.C. Santa Ana Mayor and Council Members c/o City Clerk October 3, 2023 Page 4 of 6 These Options are presented in the Alternative: Either adopt Option 2 or Option 3. OPTION 2 Resolution Affirming Prior Adoption of Ordinance NS-3027 OPPOSITION: REQUEST TAKE NO ACTION The Option to approve the current version of the Ordinance is "presented by staff ...in order to affirm the former Council's action and cure against allegations concerning the validity of the adoption of the Ordinance. In summary, the goal is to affirm the actions of the prior council in the adoption of an Ordinance which remains in violation of the various State and Federal statutes including the implementing regulations and case law. The assumption is this is an effort to attempt a defense of "mootness" related to the pending litigation and among other allegations, the continuing violations of the Brown Act and the violations of Federal statutes constitutional issue. This proposed attempt to "cover" for prior actions of other city council persons and staff, by affirming their adoption of a defective Ordinance further enhances the challenges to the City's actions. This action does not correct the defects in the Ordinance highlighted at the City Council Hearing, October 4, 2022, the City Council disregarded the Judson, City Housing Division Manager, explanation that there was a lack of evidence in support of an imbalanced [rent] Boards, stating "Based on our research of other jurisdictions, there aren't other jurisdictions with an imbalanced board ... where there's either more tenants or more landlords. There is a reason for that. We found in our research that most boards are equitably balanced between tenants and landlords and that serves the best interest of tenants and landlords as they are following the due process rights under the law.4 The "affirmation" of this Ordinance likewise will not erase the violations of the Government Code sections enacted to protect the public. Therefore, affirming the existing Ordinance affirms its provisions contrary to law and endorses the actions exhibited at hearings and reasonably assumed behind the scenes of the enactment of this Ordinance and the other prior and continuing related Ordinances. Based on the Record of this matter and for the foregoing reasons, the request is to TAKE NO ACTION. OR OPTION 3 Adopt the Resolution Amending Ordinance NS-3027 OPPOSITION: REQUEST TAKE NO ACTION The amendment proposed is to require two-thirds (2/3) council members' approval for specific changes to Ordinance NS-3027. The detailed legal and factual Opposition to the amendment was presented to the council on August 29, 2023 and September 19, 2023 by among others, correspondence a Comments by Councilmember Pham and Judson Brown, City Council Meeting, Oct. 4, 2022, 5:48:35 to 5:51. W[� a;.w.UU kl'C ?C �Ju� u`�_UI!G w x �'h7— 01) 2. See, also Correspondence from LoftinlBedell P.C. dated October 13, 2022, in Opposition to Hearing, Oct. 18, 2022, Item 21; also, Correspondence from LoftinlBedell P.C. and Dowdall Law dated September 19 and August 29 in Opposition to City Council Hearing, Agenda Item 21, KMC700426.CCH9.3.2023 LOFTIN I BEDELL P.C. Santa Ana Mayor and Council Members c/o City Clerk October 3, 2023 Page 5 of 6 from LoftinlBedell dated August 28, 2023 and September 19, 2023, and from Terry Dowdall dated August 28, 2023. Rather than repeat the content of the referenced correspondence, the correspondence, including all other written, electronic and oral opposition positions presented are hereby specifically incorporated forming the legal and factual Opposition to this Option 3. Based on the Record in this matter and for the foregoing reasons, the request is to TAKE NO ACTION. Second Set of Options Options 4 and 5 are presented as "and/or". The assumption is the Counsel could pass Option 2 or 3 and pass one or both of Options 4 and 5. GENERAL OBJECTION TO BOTH OPTIONS 4 & 5: This set of Options relate to Option 3: "affirming Ordinance NS-3027 and Option 4: limiting the City Council members ability to amend Ordinance NS-3027 by changing the voting requirements in the City Charter for approval for the adoption or amendment of an Ordinance from approval by a majority to approval by a supermajority. The Proposition required under California Election Code section 9222 for Option 3 is Ordinance No. NS-3027 and for Option 4 the basis of the Proposition is Ordinance No.-3027 with the voting requirement amends. Therefore, both Ballot Measures depend upon the legal and factual validity of Ordinance NS-3027. The assumption appears to be that through this mechanism the City will be protected from litigation and the tenants will have long term ordinance protection. Unfortunately, a Ballot Measure with its Proposition invalid, if passed, does not protect a City from litigation challenging the Ordinance created by the Ballot Measure. The additional assumption appears to be that through this mechanism the actions and conduct by certain elected officials and City staff related to the adoption of the Ordinances since 2021 will be protected. The Ballot Measures proposed do not meet the requirements for a City directed Ballot Measure and the staff report presents essentially no factual or legal support for the Ballot Measures.6 OPTION 4 Resolution Giving Notice of a General Municipal Election Affirming Ordinance NS-3027 OPPOSITION: REQUEST TAKE NO ACTION This is a proposal to place Ordinance NS-3027 on the ballot to affirm the actions of the prior City Council actions and approve an Ordinance which currently is legally and factually defective. This is an attempt to circumvent the City Council process and obligation to all members of the public. The opposition to First Set of Options:2 and 3 form the factual and legal basis for the Opposition to this Second Set of Options: 3. The passage of "Measure" at an election will not protect the City from litigation based on the substance of the "Measure", an Ordinance which is defective both legally and 5 Ordinance Nos. 3009, 3010, 3027 and Long Term Implementation Plan, adopted September 6, 2022. 6 Both proposed "Measure Ballots" are incomplete and misleading; Section 20, a standard language provision, but does not protect the Ordinance; Evid.Code sec. 9222 et seq. KMC700426.CCH9.3.2023 LOFTIN I BEDELL P.C. Santa Ana Mayor and Council Members c/o City Clerk October 3, 2023 Page 6 of 6 factually, and will require amendments prior to implement the new State Statutes effective January 1, 2024. Based on the Record in this matter and for the foregoing reasons, the request is to TAKE NO ACTION. OPTION 5 Resolution Giving Notice of General Municipal Election to Amend Ordinance NS-3027 OPPOSITION: REQUEST TAKE NO ACTION This is a proposal to place Ordinance NS-3027 on the ballot as the Proposition for the Ballot Measure. The amendment proposed is to require two-thirds (2/3) council members' approval for specific changes to Ordinance NS-3027. The proposed Proposition and the Ballot Measure do not clearly disclose this action is also an amendment to the City Charter.' The detailed legal and factual Opposition to the amendment was presented to the council on August 29, 2023 and September 19, 2023 by among others, correspondence from Sue Loftin, LoftinjBedell P.C. dated August 28, 2023 and September 19, 2023, and from Terry Dowdall, Dowdall Law dated August 28, 2023. Rather than repeat the content of the referenced correspondence, the correspondence, including all other written, electronic and oral opposition positions presented are hereby specifically incorporated forming the legal and factual Opposition to this Option 4. Based on the Record in this matter and for the foregoing reasons, the request is to TAKE NO ACTION. Sincerely, LOFTIN I BEDELL P.C. By: L. Sue Loftin, Esq. cc: Client 7 Cal.Const.Art.11, § 11; Cal.Elea.Code § 9222; and case law thereunder related to the constitutionality and requirements related to Citydirected Measures, as to the Proposition (Ordinance 3027, "interpretation of a local ordinance is a legal issue: People ex rel. Feuer v. Nestdrop 2016) 245 Cal.App.4t', 664, 672; KMC700426.CCH9.3.2023 Alcala, Abigail From: Nathaniel Greensides < Sent: Tuesday, October 17, 2023 2:03 PM To: eComment Subject: Item 26 I write in support of this item. Sincerely, Nathaniel Greensides Ward 5 resident and volunteer with Tenants United Santa Ana Alcala, Abigail From: Michelle Gonzalez < Sent: Tuesday, October 17, 2023 3:41 PM To: eComment Subject: Item #26 (Super -Majority Vote) 10/17/2023 Hello, City Council Members of Santa Ana, My name is Michelle Gonzalez and I am here to give a voice to the mom-and-pop landlords that have been, and will continue to be, greatly affected by the Rent Stabilization Ordinance. My mom who has been a landlord for over 30 years, immigrated here to raise a family and pursue the American dream. She has valued long-standing tenants over price gouging, and has had 3 evictions in total. She has provided housing for her tenants from generation to generation and it is wrong to group her in the same category as a corporate landlord. She is being punished for doing all these years what you are trying to accomplish with this RSO and sadly enough, there hasn't been any attempt to correct the imperfections but rather, the focus is on a Super Majority Vote that will lock it into place. Currently, the allowable rent increase is 2.54 percent, which does not cover the cost of inflation with property tax, insurance, inspection fees, the cost of maintenance not to mention the utilities that are included in her rent. At this rate, it will take her over 30 years before her rents reach Fair Market Rent according to HUD for 2023 Small business owners are beginning to feel discouraged and are considering selling or doing a 1031 exchange to relocate their investment. Unfortunately, the ones who are interested in these building are corporate giants. The political drama occurring here in Santa Ana, has overshadowed the importance of protecting these mom-and-pop landlords during the rushed efforts to implement the RSO and enforce a Supermajority Vote. Also, it doesn't make sense for a Rental Registry Board that is made up of more tenants than landlords, to be making decisions for a business they may not have any experience in. Not to mention a Rental Registry that can be harmful to the residents of Santa Ana if made public. Take a look at Inglewood's RSO Section 8-128. They have taken the time to include provisions for the landlords Below Market Rent Inglewood is allowing them to increase their rents until it reaches 81 % of Fair Market Rent according to HUD. This is in addition to the Fair Return and Capitol Improvement Petition. So these provisions can be achieved and Inglewood is proof of that. The Fair Return and Capitol Improvement Petition should not be the only tools available for landlords in this complex situation. These petitions are difficult to navigate, time consuming, intrusive, cost money and hold much uncertainty. The RSO was initially created to protect from the uncertainty of COVID but it is far from perfect and we must recognize future unwanted consequences and focus on amending them before it is too late. If you believe the RSO is fair and just, there would not be the Urgency or Need to create a Supermajority Vote. I ask that you please vote no on item 426. Thank you, Michelle Gonzalez