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APPEAL from a judgment of the Superior Court of Los Angeles County. James Chalfant, Judge. Reversed and remanded. Aleshire & Wynder, William W. Wynder, Sunny K. Soltani and Jeff M. Malawy, for Defendant and Appellant. Gilchrist & Rutter, Richard H. Close, Thomas W. Casparian, and Yen N. Hope; The Loftin Firm and L. Sue Loftin, for Plaintiff and Respondent. Bien & Summers, Elliot L. Bien, for Amicus Curiae, Western Manufactured Housing Communities Association. The City of Carson appeals from the trial court’s judgment granting the petition of Carson Harbor Village, Ltd. for a writ of administrative mandamus. By the writ, the court directed the city to approve a tentative tract map for the conversion of Carson Harbor Village’s mobilehome park to a resident owned facility. We reverse the trial court’s judgment and remand for further proceedings. Respondent Carson Harbor Village, Ltd. owns Carson Harbor Village Mobile Home Park, a 420 unit mobilehome park in the City of Carson. In 2002, respondent decided to convert the park’s legal structure. Up to that time, residents of the mobilehome park leased the spaces on which they placed their mobilehome coaches. The proposed conversion would subdivide the park into a collection of separate plots owned individually by each park resident, something akin to a condominium arrangement including common space. In December 2002, respondent submitted its application to the City of Carson for the conversion’s tentative tract map. Government Code section 66427.5 of the Subdivision Map Act applied to the conversion. The statute required, among other things, that respondent file with its application a survey of the park’s residents documenting their level of support, if any, for the conversion.[1] (§ 66427.5, subd. (d); (2002) 96 Cal.App.4th 1153, 1181-1182 ( owner must conduct survey].) Over the next two years, the city requested and received from respondent additional information about the proposed conversion. In 2005, respondent submitted its residents’ survey showing only 11 percent of residents voted for the conversion (the rest were against it or did not vote) and, in September 2006, city staff deemed the application to be complete. (See §§ 65941, 65943.) Proceedings Before the Planning Commission Upon completion of the application, section 66427.5 obligated the city to hold a hearing on whether the application complied with the statute’s multiple requirements. ( required].) Accordingly, the city’s planning commission convened a series of public hearings. The hearings addressed statutory requirements for the conversion, such as respondent’s preparation of a tenant impact report and whether the conversion was a subterfuge by respondent to escape the city’s local rent control laws. ( park’s deteriorating physical condition and whether the conversion furthered the city’s general development plan of preserving open space and low and moderate income housing. Following multiple hearings, the planning commission disapproved the application in March 2007 on several grounds. First, the planning commission found the conversion was inconsistent with provisions in the city’s general plan to preserve affordable housing and open space. Second, the commission concluded the statutorily required tenant impact report lacked sufficient information about the conversion’s effects on the park’s residents and wetlands. Finally, the commission also denied the conversion because the survey of residents did not comply with subdivision (d) of section 66427.5. The planning commission “determine[d] . . . that the applicant has failed to demonstrate that a survey of support was conducted in conformance with Government Code § 66427.5.” The commission’s resolution denying the application stated: “There is no evidence in the record that the survey of support was conducted in accordance with an agreement between the applicant and a resident homeowners association that is independent of the applicant or the mobilehome park owner as required by Government Code § 66427.5(d)(2).” (Italics added.) b. Appeal to the City Council Respondent appealed the planning commission’s denial to the Carson City Council. While the appeal was pending, respondent offered incentives to park residents hoping to win their support for the conversion. The purported enticements included upgrades and improvements to the park at respondent’s expense, discounted prices for mobilehome spaces, and an extended phasing out of rent control for residents who opted to remain renters instead of buying their spaces after the conversion. Against the backdrop of the promised enticements, respondent conducted a second survey of residents in July 2007 to measure tenant support for the conversion. Three hundred fifty-six of the park’s 418 residents voted, with 65 percent remaining opposed to the conversion. In September and October 2007, the city council held a series of meetings to hear respondent’s appeal from the planning commission’s denial of respondent’s application. To prepare council members for the hearings, city staff gave the council a written report that summarized the planning commission’s proceedings and findings. After hearing respondent’s appeal, the council affirmed the planning commission’s decision. Among the council’s reasons for affirming was the council’s finding that the 2005 survey of support submitted to the planning commission with the application did not satisfy section 66427.5’s requirements. The council found: “There is no evidence in the record that the survey of support was conducted in accordance with an agreement between the applicant and a resident homeowners association that is independent of the applicant or the mobilehome park owner as required by Government Code § 66427.5(d)(2).” (The City Council did not consider the 2007 survey that had been conducted after the planning commission had denied respondent’s application.) The council also rejected respondent’s appeal on other grounds, including the purported inadequacy of the tenant impact report and the conversion’s inconsistency with the city’s general plan. c. Petition for Writ of Mandate Respondent filed in the trial court a petition for writ of mandate. The petition asserted section 66427.5 preempted the city’s attempt to dictate terms for the conversion, such as adhering to the city’s general plan, which went beyond those required by the statute. According to respondent, the city’s review of the application was limited to assessing respondent’s compliance with section 66427.5, leaving the city no discretion to deny the application for any reason other than noncompliance with the statute. Asserting it had complied with the statute, respondent asked the court to order the city to approve respondent’s application for a tentative tract map to convert the park to resident ownership. The trial court issued a writ in respondent’s favor. In its minute order, the court agreed with respondent that section 66427.5 prohibited the city from imposing any conditions on the city’s approval of the conversion beyond ensuring respondent’s application complied with the statute. (See (2009) 176 Cal.App.4th 1270, 1275 (Sequoia) [section 66427.5 preempts local regulation of mobilehome park conversion]; El Dorado, supra, 96 Cal.App.4th at pp. 1163-1164 [same].)[2] Hence, the court found the city erred in disapproving the application on the grounds the conversion conflicted with the city’s general plan to maintain affordable housing and open space. Additionally, the court found the city was time-barred from seeking additional information in the statutorily required tenant impact report about the conversion’s effect on tenant displacement and nearby wetlands. Addressing specifically the statute’s requirement of a resident survey, the court described as “flimsy” respondent’s evidence that the 2005 survey submitted with its application complied with the statutory requirement of being conducted in agreement with an independent association of residents. The court found, on the other hand, the second survey undertaken in July 2007 was a survey under section 66427.5, conducted pursuant to such an agreement. Although the second survey was too late for the planning commission’s consideration, the trial court held the city had waived the survey’s tardiness because the city council did not reject respondent’s application on that ground. Rather, the city had concluded – wrongly, in the court’s estimation – that respondent had not conducted the 2007 survey in agreement with the residents. (In fact, as we will explain, the court misstated the city’s assessment of the survey’s legal adequacy, and this misreading by the court of the administrative record will figure in our analysis of the significance of the two surveys.) Thus, the court concluded, the city abused its discretion in finding respondent had not submitted a survey that satisfied section 66427.5. Based on its findings, the court issued a writ directing the city to vacate its resolution denying respondent’s application, and to reconsider the application in light of the court’s findings. The city’s appeal followed. 1. City’s Contentions on Appeal This appeal turns on several contentions involving the city’s disapproval of the conversion application. First, the city contends respondent’s survey of residents, which the city may use to consider the “bona fides” of the conversion, was legally inadequate. Second, the city contends it lawfully denied the conversion for its inconsistency with the city’s general plan for maintaining affordable housing and open space. And third, the city contends the statutorily required tenant impact report failed to include adequate information about the conversion’s effect on nearby wetlands and tenant displacement. Introduction and Substantial Evidence Standard of Review Section 66427.5 obligates a local government to designate a local authority to hear a mobilehome park owner’s application for a tentative tract map for conversion of a mobilehome park. ( legislative body or advisory agency, which is authorized by local ordinance to approve, conditionally approve, or disapprove the map.”].) In the City of Carson, that authority is the planning commission. A party adversely affected by the planning commission’s decision may appeal the decision to the city council.[3] We review the city’s denial of respondent’s application for substantial evidence; we do not review, nor are we bound by, the superior court’s factual findings or legal conclusions. “The scope of our review of the subject administrative agency action in this case is identical with that of the superior court. The same substantial evidence standard applies, and the issue is whether the findings of the [public agency] were based on substantial evidence in light of the entire administrative record. [Citations.] . . . [W]e must examine the findings made by the [agency] itself to determine whether they were supported by substantial evidence, rather than limiting ourselves to a review of the findings made by the trial court. [Citations.] ( 21 Cal.App.4th 330, 334-335; see also American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062, 1070.) 3. Although other authorities are helpful to our analysis, the case ultimately turns on the meaning of one statute, section 66427.5. Accordingly, we set out the entire statute before we begin our substantive discussion: “At the time of filing a tentative or parcel map for a subdivision to be created from the conversion of a rental mobilehome park to resident ownership, the subdivider shall avoid the economic displacement of all nonpurchasing residents in the following manner: (a) The subdivider shall offer each existing tenant an option to either purchase his or her condominium or subdivided unit, which is to be created by the conversion of the park to resident ownership, or to continue residency as a tenant. (b) The subdivider shall file a report on the impact of the conversion upon residents of the mobilehome park to be converted to resident owned subdivided interest. (c) The subdivider shall make a copy of the report available to each resident of the mobilehome park at least 15 days prior to the hearing on the map by the advisory agency or, if there is no advisory agency, by the legislative body. (d)(1) The subdivider shall obtain a survey of support of residents of the mobilehome park for the proposed conversion. (2) The survey of support shall be conducted in accordance with an agreement between the subdivider and a resident homeowners' association, if any, that is independent of the subdivider or mobilehome park owner. (3) The survey shall be obtained pursuant to a written ballot. (4) The survey shall be conducted so that each occupied mobilehome space has one vote. (5) The results of the survey shall be submitted to the local agency upon the filing of the tentative or parcel map, to be considered as part of the subdivision map hearing prescribed by subdivision (e). (e) The subdivider shall be subject to a hearing by a legislative body or advisory agency, which is authorized by local ordinance to approve, conditionally approve, or disapprove the map. The scope of the hearing shall be limited to the issue of compliance with this section. (f) The subdivider shall be required to avoid the economic displacement of all nonpurchasing residents in accordance with the following: (1) As to nonpurchasing residents who are not lower income households, as defined in Section 50079.5 of the Health and Safety Code, the monthly rent, including any applicable fees or charges for use of any preconversion amenities, may increase from the preconversion rent to market levels, as defined in an appraisal conducted in accordance with nationally recognized professional appraisal standards, in equal annual increases over a four-year period. (2) As to nonpurchasing residents who are lower income households, as defined in Section 50079.5 of the Health and Safety Code, the monthly rent, including any applicable fees or charges for use of any preconversion amenities, may increase from the preconversion rent by an amount equal to the average monthly increase in rent in the four years immediately preceding the conversion, except that in no event shall the monthly rent be increased by an amount greater than the average monthly percentage increase in the Consumer Price Index for the most recently reported period.” 4. The city’s first contention on appeal is that respondent failed to comply with subdivision (d) of the statute because it did not obtain “a survey of support from residents of the mobilehome park for the proposed conversion.” (§ 66427.5, subd. (d)(1).) Before the hearing, the park owner must file with its application the results of the resident survey. The survey must be conducted pursuant to an agreement between the subdivider and an independent homeowners association, it must be by written ballot, and each occupied mobilehome space is entitled to have one vote. (§ 66427.5, subd. (d)(2)(3)(4).) “The results of the survey shall be submitted to the local agency upon the filing of the tentative or parcel map, to be considered as part of the subdivision map hearing prescribed by subdivision (e).” (§ 66427, subd. (d)(5).) As we have observed, the city empowered its planning commission initially to grant or deny respondent’s application for a tentative tract map. The administrative record compiled by the planning commission contains substantial evidence that respondent’s 2005 survey filed with its application did not comply with statutory requirements because respondent did not conduct the survey in “agreement” with a residents’ homeowners association.[4] The president of the homeowners’ association and its lawyer each testified no agreement existed. Consistent with their testimony, it was counsel for respondent who conducted the survey with little, if any, visible involvement by a residents’ association, sending out the survey under counsel’s letterhead and asking that residents return the ballots to counsel. At best, respondent conducted the survey, which was prepared by its attorney, “in conjunction with” (counsel’s words) the association.[5] Against that somewhat vague description of involvement, the city heard testimony that the residents’ association told residents not to answer respondent’s survey, testimony from which we (and the trial court) drew the inference that no agreement existed with the association. Respondent counters that the trial court said during the hearing on respondent’s petition that if the court “was going to change the tentative at all it would be to say that the initial survey was adequate.” But the court’s rumination does not help respondent because the court did not change its tentative – indeed, the court finished its thought by saying “I guess I’ll leave it the way it is.” In any case, we review the city’s decision for substantial evidence, and we affirm so long as substantial evidence supports the city’s findings. (Desmond v. County of Contra Costa, supra, 21 Cal.App.4th at pp. 334-335; Responsible Growth v. City of American Canyon, supra, 145 Cal.App.4th at p. 1070.) Because substantial evidence supported the finding that the 2005 survey had not been conducted “in accordance with an agreement” between respondent and the residents, the planning commission and the city council could have denied the application on that ground. b. The 2007 Survey The 2005 survey submitted to the planning commission was not, however, the end of the story. In July 2007, while its appeal from the planning commission to the city council was pending, respondent conducted a second survey in coordination with the city and the residents’ homeowner’s association, and presented the survey’s results to the city council. The trial court interpreted subdivision (d) as allowing respondent to file its survey upon its appeal to the city council, an interpretation the city partly conceded at oral argument on appeal when it acknowledged the city’s planning authority included both the planning commission and – in appellate counsel’s words – the city council “by extension by right of appeal.” Working from its premise that respondent could submit the results of its survey up to the time of its appeal to the city council, the trial court found the city waived the untimeliness of the second survey because “the City Council did not purport to deny the Application based on a failure to timely present the second Survey of Support.” We review for substantial evidence whether waiver occurred. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 983.) The city council’s resolution affirming the planning commission discussed the particulars of only the 2005 survey. Although at one point its resolution did ambiguously refer to the “survey” without elaboration, elsewhere the resolution’s description of the survey’s vote tally made clear, however, that it was contemplating only the 2005 survey when it stated respondent “has failed to demonstrate that a survey of support was conducted in conformance with Government Code § 66427.5.” The city council, to be sure, was aware of the second survey’s results, but the council was assessing survey compliance based on the administrative record before it. That was the administrative record from the hearings before the planning commission that did not contain the 2007 survey. (The planning commission did not receive the results of the 2007 survey because the commission had denied respondent’s application before respondent undertook the second survey.) The city council did not formally find the second survey was untimely; the council just ignored it in its resolution denying the application. We disagree with the trial court when it drew an inference of untimeliness of a survey that the council had not considered. Waiver of the time deadlines could only have occurred if the city council had taken the second survey into account in reaching its decision, and then affirmatively found the survey noncompliant, because, for example, of a deficiency in the agreement between the homeowners and respondent. We agree with the trial court, though for slightly different reasons, that the city council was required to take into account the second survey. The 2007 survey was a coordinated undertaking in which the city participated. Indeed, the city clerk counted the ballots and certified the vote tally, and the trial court expressly found “there is overwhelming evidence that a second Survey of Support was performed in July 2007 . . . through an agreement between [respondent] and the [residents’ homeowners association].” The city assisted the survey because it sought an outcome for the mobilehome park that all stakeholders – respondent, the residents, and the city – could support. Having at the very least implicitly encouraged respondent’s undertaking of a second survey, the city is estopped from ignoring it. Estoppel against a public agency is available when under the special facts of the case, the interests of justice require it. ( 3 Cal.3d 462, 493-495.) As part of the process that produced the 2007 survey, respondent and the homeowners negotiated a Memorandum of Understanding (MOU) that significantly benefited the homeowners. The MOU included, among other things, upgrades and improvements to the park at respondent’s expense, discounted prices for mobilehome spaces, and an extended phasing out of rent control for residents who opted to remain renters instead of buying their spaces after the conversion. As part of this process, the city assisted in the creation of a new survey with the understanding that the second survey might avoid the deficiencies of the 2005 survey. Under those circumstances, the city may not turn around and act as if the survey had never taken place. (See § 66427.5, subd. (d)(5) [survey results “to be considered as part of the subdivision map hearing”].) In directing the city to consider the 2007 survey, we express no view about whether the survey satisfies the statutory requirements for a survey of residents. Our direction is limited to precluding the city from rejecting the survey as untimely. If the city finds in the first instance that the survey is statutorily adequate, then the city must find respondent complied with section 66427.5, subdivision (d), and, as we discuss next, the city may consider the survey’s results in its assessment of whether the conversion is bona fide. The Bona Fides of the Conversion. The city denied map approval in part based on its finding that the conversion was not bona fide. The trial court concluded the city did not have authority under the statute to determine the bona fides of a mobile park conversion. As we explain, we disagree that a local agency is prohibited from determining whether a conversion is bona fide. We do find, however, that the city’s view of its authority in this area went too far in the other direction by being overbroad. We remand to the city for it to redetermine the issue in light of its statutory obligation to consider the legal adequacy of the 2007 survey as guided by a correct understanding of its statutory authority. The notion that a city may not consider the bona fides of a conversion appears to have emerged from that a city’s review of a mobilehome park conversion was limited to confirming the park owner had complied with the conversion statute. (See El Dorado, supra, 96 Cal.App.4th at pp. 1163-1164.) From that holding sprang the idea that the city’s review was so narrowly circumscribed that it could not even consider the bona fides of a conversion. (See fn. 6.) Our examination of that a local agency may, within strict confines, determine the bona fides of a conversion. 66427.5 did not expressly permit local agencies to deny a conversion to a “developer who was engaged in a sham or fraudulent transaction which was intended to avoid the rent control ordinance.” (El Dorado, p. 1165.)[6] The court expressed concern about the problem but found the solution rested with the Legislature. “Although the lack of such authority may be a legislative oversight, and although it might be desirable for the Legislature to broaden the City’s authority, it has not done so.” (Ibid.) Only the courts, not local agencies, could address sham conversions. ( The opinion in 2002. Later that same year, the Legislature took up the court’s invitation and amended section 66427.5. As part of this process, the Legislature acknowledged the deficiency in the act identified by the court in agencies from preventing “nonbona fide conversions.” (Stats. 2002, ch. 1143, § 2, A.B. 930.) Expressly in response to El Dorado for the first time required the applicant to “obtain a survey of support of residents of the mobilehome park.” (§ 66427.5, subd. (a)(1).[7] In doing so, the Legislature identified the newly enacted survey requirements as a device to assist the local agency in approving only bona fide conversions. (See Sequoia, p. 1296 [the limited nature of the amendment meant the Legislature deemed the survey sufficient to address the bona fide conversion problem].) The Legislature explained its intent that local government determine the bona fides of a conversion in the uncodified portion of the 2002 amendments: “This bill seeks to |
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