HomeMy WebLinkAboutCC Resolution 13236 (Contempo Marin HOA Appeal)RESOLUTION NO. 13236
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN
RAFAEL GRANTING IN PART AND DENYING IN PART THE APPEAL
OF THE CONTEMPO MARIN HOMEOWNERS' ASSOCIATION FROM
THE ARBITRATION AWARDS ON PETITIONS FILED BETWEEN 2006
AND 2010 BY EQUITY LIFESTYLE PROPERTIES, INC., FOR RENT
INCREASES AT CONTEMPO MARIN MOBILEHOME PARK, AND
MODIFYING THE AWARDS OF THE ARBITRATORS
WHEREAS, Equity LifeStyle Properties, Inc. ("ELS") is the owner and operator of the
Contempo Marin Mobilehome Park (`Park") in San Rafael; and
WHEREAS, San Rafael Municipal Code Title 20, known as the Mobilehome Rent
Stabilization Ordinance ("Ordinance"), regulates the rents charged to tenants at the Park; and
WHEREAS, pursuant to San Rafael Municipal Code section 20.12.050, ELS filed
petitions in 2006, 2007, 2008, 2009, and 2010, each of which requested approval of a one-time
rent increase to pass through to the Park tenants costs claimed to have been incurred by ELS in
making "capital improvements" and "capital replacements," as defined by the Ordinance, at the
Park; and
WHEREAS, the Ordinance provides that rent increase petitions shall be subject to
hearing by a neutral arbitrator, who may consider evidence presented by both the owner and the
tenants of the mobilehome park; and
WHEREAS, arbitration hearings were conducted as to each of ELS's petitions as
follows:
Petition Date Arbitrator Arbitration Date
October 9, 2006 Lynda Millspaugh February 16, 2007
October 4, 2007 Betsy Strauss June 24-25, 2010
October 3, 2008 Betsy Strauss June 24-25, 2010
October 9, 2009 Betsy Strauss June 24-25, 2010
October 8. 2010 Betsv Strauss March 11, 2011
Decision Date
April 4, 2007
October 15, 2010
October 15, 2010
October 15, 2010
May 14, 2011
WHEREAS, the arbitrators awarded rent increases on ELS's respective petitions as
follows:
Year of Total Requested Arbitrator Awarded
Petition Rent Increase Rent Increase
2006 $90,047.33 $68,965.12
2007 $35,000.00 $37,170.00 (inc. interest)
2008 $89,440.65 $55,684.81 (inc. interest)
2009 $89,314.82 $81,120.84 (inc. interest)
2010 $30,791.58 $26,669.14 (inc. interest)
Arbitrator Awarded
Increase per Space
$174.15 = $14.51 x 12 mos.
$ 93.86 = $ 7.82 x 12 mos.
$140.61 = $11.72 x 12 mos.
$204.85 = $17.07 x 12 mos.
$ 67.35 = $ 5.61 x 12 mos.
WHEREAS, both ELS and the Contempo Marin Homeowners' Association
("CMHOA"), representing the Park tenants, appealed the April 4, 2007, the October 15, 2010
and the May 14, 2011 arbitration decisions to the City Council; and
WHEREAS, on September 6, 2011, the City Council held a hearing on the combined
appeals of ELS and the CMHOA concerning the 2006-2010 rent increase petitions; and
WHEREAS, prior to the City Council's hearing, the attorneys for ELS advised the City
that EL,S would not be pursuing the issues raised in ELS's appeals, and those appeals are
therefore moot; and
WHEREAS, during argument at the September 6, 2011 hearing, the attorney for the
CMHOA represented to the Council that the CMHOA was withdrawing its challenge to the
arbitrator's award of $13,295 requested in the 2006 petition as a pass-through of costs for
sidewalk work that the arbitrator determined qualified as a capital replacement; and
WHEREAS, the Council has considered the record of proceedings before the respective
arbitrators, and has received and considered written and oral arguments presented by the
attorneys for ELS and the CMHOA; and
WHEREAS, the City Council makes the following findings as to the remaining factual
issues on appeal, based upon the evidence set forth in the record of proceedings herein:
1. The arbitrator erred in determining on the 2009 petition that the expenditure of
$24,721.80 by ELS for sewer system improvements and/or repairs performed by Pump Repair
Service Co. should be treated as a "capital replacement" expenditure merely on the basis of the
amount of the expenditure, since the finding was not supported by the arbitrator's analysis of the
evidence presented at the arbitration. Specifically:
A. The Council finds that the arbitrator, describing this work as "repair of
sewer pump, replacement of a defective flanged flap valve," determined that this work appeared
to constitute "maintenance and operation costs" under the Ordinance, (See. 9/6111 City Council
Agenda Report, Attachment 3, Statement of Decision dated October 15, 2010, at p. 13.) but that
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the arbitrator nevertheless found that this expenditure should be allowed as a "capital
replacement," on the ground that:
the City Council has taken into consideration the amount of the invoice when
determining whether to treat an expenditure as "capital replacement" or
"maintenance and operation" (Resolution No. 12014).
(See, 9/6/11 City Council Agenda Report, Attachment 3, Statement of Decision, dated October
15, 2010, at p. 14.)
B. The Council finds that the finding in Resolution No. 12014 referred to by
the arbitrator was made in the context of analysis of a specific factual issue in a prior and
unrelated rent increase petition appeal for the Park heard and decided in 2006; and that such
finding was not intended by the Council to be applied indiscriminately in unrelated rent increase
petition appeals unless it was determined to be appropriate after consideration of the specific
facts of that appeal.
C. The Council finds that there is substantial evidence in the record to
support the arbitrator's determination that the work could appropriately be described as
"maintenance and operation costs," defined in the Ordinance as including "maintenance" of
facilities and "refuse removal" (See, 9/6/11 City Council Agenda Report, Attachment 1, Section
20.04.020(G); Admin. Record, Vol. 3 of 4, Petitioner's Exhibit L [Invoice description of work to
``remove, repair, reinstall ... pump,...replace bowl, repair spare ... motor, dive team to remove
debris from sump"]); and that although there was evidence that ELS treated the expenditure as a
capital expenditure, it is apparent that the arbitrator would not have concluded that this
expenditure was a "capital replacement" but for her erroneous belief that she was bound by the
Council's factual finding in Resolution No. 12014. Therefore, the Council finds that the
arbitrator erred in concluding that this expenditure qualified as a "capital replacement" when she
was persuaded to the contrary by the evidence.
2. The arbitrator did not err in determining on the 2006 petition that the expenditure
of $2,807.25 by ELS for replacement of a hot tub heater was a "capital replacement"
expenditure, as there was substantial evidence in the record to support that finding. Specifically:
A. The record shows that the arbitrator considered this expenditure to have
been made as part of a single larger project to replace the pool and hot tub heaters at the Park
Clubhouse. (See, 9/6/11 City Council Agenda Report, Attachment 3, Statement of Decision
dated August 4, 2007, at p. 6: lines 22-24, p. 8: lines 24-26.)
B. The Council finds that the replacement of the hot tub heater occurred in
February 2006, and that the replacement of the pool heater occurred in early May 2006 (See,
CMIIOA Brief on Appeal, Exhibits C and D), and that it was reasonable for the arbitrator to
determine that these two services were part of a larger project to prepare the pool and spa
complex for the summer swim season. Therefore, the Council finds that the arbitrator did not err
in finding that this expenditure qualified as a "capital replacement."
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3. The arbitrator did not err in determining on the 2008 petition that the expenditure
of $4,800 by ELS for the installation of new check valves for sewer system pumps located at the
tennis court and at spaces 15 and 97, and $1,456.71 for the installation of new sewer lift station
controls for the pumps at spaces 15 and 97 were "capital replacement" expenditures, as there was
substantial evidence in the record to support that finding. Specifically:
A. The record shows that the arbitrator considered these expenditures, along
with the upgrading of four lift station autodialers, to have been made as part of a single larger
project to upgrade or install new components of the Park's sewer pump stations. (See, 9/6/11
City Council Agenda Report, Attachment 3, Statement of Decision dated October 15, 2010, at p.
12: lines 6-14.).
B. The Council finds that there is substantial evidence in the record that all of
the specified replacements were components essential to the operation of the Park's three sewer
pump and lift stations (plus an additional autodialer for the Park lagoon), which themselves are
integral parts of the Park's sewer system. (See, CMHOA Brief on Appeal, Exhibits E, F, G; ELS
Opening Brief on Appeal, Exhibit B, Reporter's Transcript of June 24, 2010 hearing, at pp. 38-
49.), and that this evidence supports the arbitrator's finding that these expenditures were part of
one project. Therefore, the Council finds that the arbitrator did not err in concluding that these
expenditures qualified as a "capital replacement."
4. The arbitrator did not err in determining on the 2009 petition that the expenditure
of $4,295 by ELS to Herb's Pool Service for removal and replacement of the pool heater's
leaking heater exchanger and installation of new hot surface igniter and related parts, was a
"capital replacement" expenditure, as there was substantial evidence in the record to support that
finding. Specifically:
A. The record shows that the arbitrator considered this expenditure to have
been made as part of a single larger project to make necessary pool improvements. (See, 9/6/11
City Council Agenda Report, Attachment 3, Statement of Decision dated October 15, 2010, at p.
13: lines 24-25, p. 14: lines 5-7.)
B. Although it is not clear from the record when the Burketts Pool Plastering
and Herb's Pool Service improvements were actually installed, the record shows that Burketts
Pool Plastering, Inc. submitted an estimate of $5,100 on February 27, 2009 for installation of
new pool and spa drain covers to comply with the Virginia Graham Baker Act, and Herb's Pool
Service submitted an estimate of $4,295 on April 14, 2009 for removal of the pool heater's
leaking heater exchanger and installation of a new exchanger, new exchanger gaskets, and a new
hot surface igniter. (See, Admin. Record Vol. 3, Petitioner's Exhibit H.) The Council finds that
it was reasonable for the arbitrator to determine based upon this evidence that the replacement of
the pool's heater exchanger and the installation of drain covers were both part of a larger project
to ensure that the pool and spa continued to be legally and functionally sufficient for use by the
Park tenants during the summer swim season. Therefore, the Council finds that the arbitrator did
not err in finding that the expenditure to Herb's Pool Service qualified as a "capital
replacement."
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WHEREAS, the Council has considered the request of the CMHOA to review and reject
the 2006 City Council's interpretation of the Ordinance as allowing a pass-through to Park
tenants of expenditures found to qualify as "capital improvements" or "capital replacements"
under the Ordinance, without requiring that ELS prove that the pass-through is reasonable and
necessary to obtain a fair and reasonable return under the reasonableness standards of Section
20.12.110 of the Ordinance; and the Council declines to discard that interpretation, for the
following reasons:
1. The Council finds that the requirement in Section 20.04.020(M) of the Ordinance
to distinguish rent increases for capital improvements and capital replacements from ordinary
rent increases, indicates an intention to review such rent increases under differing standards. The
Council finds that counsel for ELS correctly stated that there would be no reason to require
capital rent increases to be separately stated by the Park owner if the intention of the Ordinance
was to require a fair -return hearing for any and all rent increases, therefore the Council also
agrees with the interpretation of the 2006 City Council that the Ordinance does not require that
the Park owner meet the fair and reasonable return test under the reasonableness standards in
Section 20.12.110 of the Ordinance.
2. The Council finds that, as so interpreted, the Ordinance advances its primary
purpose, which is to protect mobilehome park tenants from arbitrary, capricious or unreasonable
rent increases while insuring that the park owner obtains a fair and reasonable return on its
investment, since:
A. As so interpreted, the Ordinance encourages a mobilehome park owner to
maintain the quality and standards of the infrastructure of the park, which provides an immediate
and material benefit to the park tenants.
B. The definition of "capital improvements" in Section 20.04.020(B) contains
its own standard of reasonableness, in that it requires a showing that the expenditures "directly
and primarily benefit and serve the existing mobilehome park homeowners by materially adding
to the value of the mobilehome park;" and the definition of "capital replacement" in Section
20.04.020(C) contains its own standard of reasonableness, in that it requires a showing that the
expenditure "materially benefits and adds value to the mobilehome park." These definitions
provide protections to the tenants from unreasonable expenditures on capital improvements or
capital replacements that do not primarily benefit the tenants or materially increase the value and
useful life of the park.
WHEREAS, the City Council finds that in keeping with the Ordinance's purpose to
protect mobilehome park tenants from unreasonable rent increases, and in view of the fact that
the present appeals cover improvements made over five years, it is appropriate to require that the
allowed rent increases on EI.,S's 2006 through 2010 petitions be assessed over a period of 24
months.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of San Rafael
that the combined appeals of the CMIJOA from the arbitration decisions on ELS's rent increase
petitions filed in 2006, 2007, 2008, 2009, and 2010 are hereby granted in part and denied in part,
and the arbitrators" awards are modified as follows:
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The CMHOA appeals from the arbitrators' awards as to the 2006 and 2008
petitions are hereby denied, and the arbitrators' awards as to those petitions are
hereby confirmed.
2. The CMHOA appeal from the arbitrator's award as to the 2009 petition is hereby
granted as to the expenditure of $24,721.80 for sewer pump repairs and debris
removal, and is hereby denied as to the arbitrator's award of $4,295.00 for work
on the pool heater.
As adjusted for the above rulings, ELS is hereby authorized to pass through to the
Park tenants 100% of the costs of all expenditures found to be capital
improvements or capital replacements, including interest on unsecured borrowing
for one year as awarded by the arbitrator and not appealed by the parties, in a
modified total amount of $244,542.00, or $617.53 per space, detailed as follows:
■ Amount awarded by arbitrator on 2006
rent increase petition: $ 68,965.12/396 sp.= $174.15 per sp.
■ Amount awarded by arbitrator on 2007
rent increase petition, including one year
interest of 6.2% on unsecured borrowing: $ 37,170.00 / 396 sp = $ 93.86 per sp.
■ Amount awarded by arbitrator on 2008
rent increase petition, including one year
interest of 4.9% on unsecured borrowing: $ 55,684.81 / 396 sp.= $140.62 per sp.
■ Amount awarded by arbitrator on 2009
rent increase petition, including one year
interest of 1.4% on unsecured borrowing:
Less cost of sewer pump repair:
Less one year interest of 1.4% on
Sewer pump repair:
$ 81,120.84
-$ 24,721.80
-$ 346.11
$ 56,052.93 / 396 sp. = $141.55 per sp.
■ Amount awarded by arbitrator on 2010
rent increase petition, including one year
interest of 1.4% on unsecured borrowing: $ 26,669.14 / 396 sp.= $ 67.35 per sp.
BE IT FURTHER RESOLVED that the arbitrators' decisions to award the increased
rents over a 12 -month period. to ensure that the Park tenants will not suffer an unreasonable
hardship, are hereby modified to require that the total combined adjusted rent increases shall be
assessed over 24 months, at the rate of $25.73 per month per space.
BE IT FURTHER RESOLVED that because the adjusted arbitration award is less than
80% of the rent increase requested, ELS shall not be permitted to pass through the costs of the
arbitrations herein to the Park tenants pursuant to Section 20.12.100.
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BE IT FURTHER RESOLVED that, pursuant to section 20.08.010 of the Ordinance,
the rent increases awarded herein shall not be included in the base rent or in the calculation of
annual CPI rent adjustments.
BE IT FURTHER RESOLVED that this decision is final upon the Council's adoption
of this Resolution and that the time within which to seek judicial review of this decision is
governed by the provisions of California Code of Civil Procedure section 1094.6.
1, ESTHER BEIRNE, Clerk of the City of San Rafael, hereby certify that the
foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the
Council of said City on September 19, 2011, by the following vote, to wit:
AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Levine & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
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ESTHER BEIRNE, City Clerk
ROUTING SLIP FOR APPROVAL OF
CONTRACTS / AGREEMENTS / ORDINANCES / RESOLUTIONS
INSTRUCTIONS: USE THIS FORM WITH EACH SUBMITTAL OF ORIGINAL
CONTRACT / AGREEMENT / ORDINANCE / RESOLUTION
BEFORE APPROVAL BY COUNCIL / AGENCY.
SRRA / SRCC AGENDA ITEM NO:
DATE OF MEETING: September 19, 2011
FROM: Lisa A. Goldfien, Deputy City Attorney II
DATE: September 14, 2011
ORIGINATING DEPARTMENT: City Attorney
TITLE OF DOCUMENT:
ACTION ON RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
GRANTING IN PART AND DENYING IN PART THE APPEAL OF THE CONTEMPO
MARIN HOMEOWNERS' ASSOCIATION FROM THE ARBITRATION AWARDS ON
PE'T'ITIONS FILED BETWEEN 2006 AND 2010 BY EQUITY LIFESTYLE PROPERTIES,
INC., FOR RENT INCREASES AT CONTEMPO MARIN MOBILEHOME PARK, AND
MODIFYING THE AWARDS OF THE ARBITRATORS.
Robert F. Epstein
City Attorney
(LOWER HALF OF FORM FOR APPROVALS ONLY)
Reviewed by City Manager 1 Executive Director APPROVED AS TO FORM:
i
Approved as Council / Agency Agenda Item City Attorney (Signature) F
❑ NOT APPROVED
REMARKS: