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HomeMy WebLinkAbout2006-09-06 PUBLIC COMMENT LAW OFCICES OF NIELSEN, MERK5AMER, PARRINELLO, MUELLER & NAYLOR, LLP MARIN COUNTY 1415 L STREET,SUITE 1200 SAN FRANCISCO 591 REDWOOD HIGHWAY,#4000 SACRAMENTO, CALIFORNIA 95814 225 8U5H STREET,16*�FLOOR MILL VALLEY,CALIFORNIA 94941 TELEPHONE (916) 446-6752 SAN FRANCISCO,CALIFORNIA 94104 TELEPHONE(415)389-6800 TELEPHONE(41S)399-6800 FAX(415)3U-6974 FAX (916) 446-6106 FAX(415)38E-5E74 August 23, 2006 RECEIVED AUG 2 8 ?nofi To: Californians Against the Taxpayer Trap From: Cathy A. Christian Richard D. Martland Re: Application of Proposition 90 to IIom o0vners'Associations You have asked whether homeowners' associations would be covered by the regulatory aspects of Proposition 90. Proposition 90 amends section 19 of California Constitution Article 1. Proposed section 19 subdivision(b)(8)provides in part: Except when taken to protect public health and safety, "damage" to private property includes government actions that result in substantial economic loss to private property. (Emphasis added) Proposed section 19, subdivision (b)(10)provides: For all provisions contained in this section [section 19], government shall be defined as the State of California, its political subdivisions, agencies, any public or private agent acting on their behalf,and any public or private entity that has the power of eminent domain. (Emphasis added.) A homeowners' association is neither a political subdivision nor an agency of the State of California nor does it have the power of eminent domain. The issue is whether a homeowners' association can be considered a"private agent'•acting on behalf of the State of California, its agencies or political subdivisions. Although the California Supreme Court has yet to be called on to set forth the nature of a homeowners' association,the appellate courts have characterized their function as "quasi- governmental and paralleling in almost every case the powers, duties and responsibilities of a municipal government." (Cohen v. Kite Fill Community Assn. (1983) 142 Cal.App.3d 642, 651; Californians Against the Taxpayer Trap August 23, 2006 Page 2 Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.AppAth 914, 922; Oakland Raiders v. National Football League (2005) 131 Cal,App.4" 621) In Cohen v. Kite Hill Community.Association, supra, 142 Cal.App.3d at p. 651 the court, quoted the following language from a Wake Forest Law Review Article: The other essential role directly relates to the association's regulatory powers; and upon analysis of the association's functions, one clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government.As a'mini-government,'the association provides to its members,in almost every case,utility services,road maintenance, street and common area lighting, and refuse removal.In many cases, it also provides security services and various forms of communication within the community. There is,moreover, a clear analogy to the municipal police and public safety functions.—All of these functions are financed through assessments or taxes levied upon members of the community,with powers vested in the board of directors,council of co-owners,board of managers, or other similar body clearly analogous to the governing body of a municipality. The issue is whether being a quasi-governmental entity"analogous to a municipality" brings homeowners'associations under the regulatory component of Proposition 90. There is a reasonable argument that relieving municipalities or counties from the direct regulation of property within the boundaries of a homeowners' association rises to a private agency acting on behalf of a political subdivision within the meaning of Section 19(b)(I0). As this is by no means a frivolous argument,there is a strong likelihood that if Proposition 90 passes, some disgruntled members of a homeowners' association who believe the value of their home has been adversely affected by some action of their homeowners' association will find a willing attorney to press their case. Such an action,it could be argued,is consistent with the findings in Proposition 90. Initiative section I(c) of Proposition 90 states: The courts have not required government to pay compensation to property owners when enacting statutes, charter provisions, ordinances,resolutions,laws, rule or regulations not related to public health or safety that reduce the value of property. (Emphasis added.) Californians Against the Taxpayer Trap August 23,2006 Page 3 Although homeowners' associations can argue that their rules and regulations are intended for the express purpose of maintaining the value of homes within the association,that will not dissuade the homeowner from asserting his or her properly, as well as other properties within the boundarics of the association, would be more valuable but for some rule or regulation. In summary, we believe the quasi-governmental nature of homeowners' associations arguably bring them within the ambit of the regulatory component of Proposition 90 and this issue will certainly be the subject of litigation should Proposition 90 pass. Californians Against the Taxpayer Trap Page 1 of 5 f lP t Who Opposes Proposition 90 Resour Public Safety Groups California Police Chiefs Association California Fire Chiefs Association California State Sheriffs'Association Windsor Fire Protection District Education Groups Join our Mai California School Boards Association Name Association of California School Administrators Coalition for Adequate School Housing (C.A S.H.) Email Small School Districts'Association Labor Groups California Labor Federation,AFL-CIO For more inf California State Council of Laborers State Building&Construction Trades Council of California California Teamsters Public Affairs Council California Apollo Alliance Business/Economic Interest Groups California Small Business Association Small Business Action Committee California Business Properties Association California Association of Realtors California Manufacturers&Technology Association California Association for Local Economic Development Hollywood Chamber of Commerce Ontario Chamber of Commerce Santa Rosa Chamber of Commerce Downtown San Diego Partnership Inland Empire Economic Partnership Los Angeles Business Council San Mateo County Association of Realtors Economic Development Corporation of San Benito County Taxpayer Groups California Tax Reform Association Ventura County Taxpayers Association http://www-noprop90.com/coalition/index.php 8/30/2006 Californians Against the Taxpayer Trap Page 2 of 5 Financial Services California Public Securities Association MuniFinancial Transportation Groups Transportation and Land Use Coalition Ethnic Groups National Coalition of Hispanic Organizations California Black Chamber of Commerce Los Angeles Metropolitan Hispanic Chamber of Commerce Senior Groups Gray Panthers California Agriculture Groups American Farmland Trust HomeownerlHousing Groups League of California Homeowners Housing California California Housing Consortium California Housing Partnership Corporation Golden State Manufactured-Home Owners League Golden State Manufactured-Home Owners League, Chapter 9$5 Golden State Manufactured-Home Owners League, Chapter 1420 Golden State Mobilehome Owners League California Coalition for Rural Housing Coalition for Economic Survival Orange County Community Housing Corporation Coalition of Mobilehome Owners—California Home Owners Acting Together Resident Owned Parks, Inc. San Diego Housing Federation San Francisco Tenants Union Oakland Tenants Union Santa Moniwns for Renters' Rights Consumer/Public Interest Groups League of Women Voters of California Western Center on Law&Poverty Consumers First Public Advocates, Inc. Center on Policy Initiatives Poverty Matters Community Groups San Francisco Human Services Network Santa Monica Coalition for a Livable City CHARO Community Development Corporation Environmental Groups The Nature Conservancy California League of Conservation Voters Audubon California The Ocean Conservancy National Wildlife Federation Natural Resources Defense Council Sierra Club California http://,N w.noprop90.cotnl/coalitiotVindex.php 8/30/2006 Californians Against the Taxpayer Trap Page 3 of 5 Center for Environmental Health California State Parks Foundation Defenders of Wildlife Environmental Defense California Oak Foundation Planning and Conservation League Greenbelt Alliance Endangered Habitats League California Council of Land Trusts Steven and Michele Kirsch Foundation Association of Environmental Professionals Sierra-Cascade Land Trust Council Bolsa Chica Land Trust Bay Area Alliance for Sustainable Communities Coastal Law Enforcement Action Network-CLEAN Orange County League of Conservation Voters ' League of Conservation Voters of San Diego Committee for Green Foothills Bay Area Open Space Council Preservation Groups National Trust for Historic Preservation Government Groups League of California Cities California State Association of Counties California Redevelopment Association California Special Districts Association California Contract Cities Association Regional Council of Rural Counties American Planning Association, California Chapter California Coastal Commission California Association of Sanitation Agencies Vandenberg Village Community Service District Water Groups Association of California Water Agencies Los Angeles&San Gabriel Rivers Watershed Council Orange County Water District North Marin Water District Castaic Lake Water Agency Individuals Steve Westly, California State Controller Patricia Wiggins, Former Assemblymember, 7th District Jane Bender, Mayor, City of Santa Rasa Deirdre Bennett,Mayor, City of Colton Bill Bogsard, Mayor, City of Pasadena Susan A. Bonilla, Mayor, City of Concord Richard Dixon, Mayor,City of Lake Forest Heather Fargo, Mayor, City of Sacramento Donald P. Frettas, Mayor,City of Antioch Woody Fridae,Mayor, City of Winters Bill Harris, Mayor, City of Marysville Jon Harrison, Mayor, City of Redlands Henry Heams, Mayor, City of Lancaster Kathy Hicks, Mayor, City of Walnut Creek Daryl Hofineyer, Mayor, City of Paramount Anthony J. Intintoli,Jr„ Mayor, City of Vallejo Bob Jehn, Mayor, City of Cloverdale http://www.noprop90.corn/coalitioii/index.php 8/30/2006 Californians Against the Taxpayer Trap Page 4 of 5 Marshall Kamena, Mayor, City of Livermore Linda Koelling, Mayor, City of Foster City Michael Machi, Mayor,City of Arcata Art Madrid, Mayor, City of La Mesa ' Barbara Pierce,Mayor, Redwood City Harry T. Price, Mayor,City of Fairfield Sedalia Sanders, Mayor, City of El Centro Ray Siner, Mayor, City of Shasta Lake ' Ray Smith, Mayor, City of Bellflower Tim Smith,Mayor,City of Rohnert Park Anne B.Solem, Mayor, City of Mill Valley Jill Techei, Mayor, City of Napa Dennis Washburn, Mayor, City of Calabasas ' Robert Wasserman,Mayor, City of Fremont Shelia Young,Mayor,City of San Leandro Steven B.Zuckerman, Mayor, City of Rolling Hills Estates Bea Cones, Mayor Pro Tem, City of Grand Terrace Dan Kuperberg, Mayor Pro Tem, City of Agoura Hills Laura Lee, Mayor Pro Tem, City of Cerritos Penny Lilburn, Mayor Pro Tem,City of Highland Mary Ann Lutz, Mayor Pro Tem,City of Monrovia Jeanne E. MacLeamy, Mayor Pro Tem, City of Novato Duke Martin,Mayor Pro Tem, City of Ridgecrest John Nunez, Mayor Pro Tem,City of Rosemead Susan Seamans, Mayor Pro Tem, City of Rolling Hills Estates Marty Simunoff, Mayor Pro Tem, City of Brea Jack Batson,Vice Mayor, City of Fairfield Leon Garcia,Vice Mayor, City of American Canyon Jack T.Gingles,Vice Mayor,City of Calistoga Bonnie Hurlhey,Vice Mayor, City of Shasta Lake Bonnie Lowenthal,Vice Mayor, City of Long Beach Paul V.Morris,Vice Mayor, City of San Pablo Kevin B.Sawkins,Vice Mayor, City of San Gabriel (Diane Dillon, Supervisor-District 3, Napa County Steve Wilensky,Supervisor-District 2, Calaveras County John C.Addleman, Councilmember, City of Rolling Hills Estates Jim Aldinger, Councilmember, City of Manhattan Beach Candace Andersen,Councilmember,Town of Danville Dennis J. Baxter, Councilmember,City of San Bernardino Anita BetanCOUM Councilmember, City of Reedley Merrilee Boyack, Councilmember, City of Poway Brian Calhoun, Councilmember, City of Fresno Robert W. Campbell,Councilmember,City of Vista Margaret Clark,Counodmember, City of Rosemead Norma Comnick, Councilmember, City of Anderson Susan Cullen, Councilmember, City of Bishop Gene Daniels, Councilmember, City of Paramount Lorraine Dietrich,Councilmember,City of Livermore John F. Dunbar, Councilmember, City of Yountville Carmen Durazo, Councilmember, City of Calexico James C. Edwards, Councilmember, City of Cerritos Pat Eklund, Councilmember, City of Novato Bob Emery, Councilmember, City of Poway Margaret Finlay,Councilmember, City of Duarte Alice Fredericks, Councilmember, City of Tiburon Pam Frisella, Councilmember, City of Foster City Rae Gabelieh, Councilmember, City of Long Beach Pat Gilardi, Councilmember, City of Cotati Dean Gockler, Councilmember, City of Shasta Lake Carole Groom, Councilmember, City of San Mateo http://www.noprop90.com/coalitioii/index.php 8/30/2006 Califomians Against the Taxpayer Trap Page 5 of 5 Carol Gross, Councilmember, City of Culver City Terry Henderson, Councilmember, City of La Quinta Peter Herzog, Councilmember, City of Lake Forest Kasie Hildenbrand, Councilmember, City of Dublin Kay Milard Hosmer, Councilmember, City of Colusa Teresa Jacobo, Councilmember, City of Bell Mike Jones, Councilmember, City of Eureka Gloria A- Kappe, Councilmember, City of Cerritos Joe Kellejian,Councilmember,City of Solana Beach William Koehler, Councilmember, City of Agoura Hills Jim Krider, Councilmember, City of Napa Patrick Kwok, Councilmember,City of Cupertino Jim Madaffer,Councilmember,City of San Diego Linda Maio,Councilmember,City of Berkeley John R. Mathena,Councilmember, City of Redding Larry McCallon, Councilmember, City of Highland Jere Melo, Councilmember, City of Fort Bragg Phil Monroe, Councilmember, City of Coronado Lisa A- Moore, Councilmember, City of Cotati Lynn Morehouse,Councilmember,Town of Windsor Steven P. Morgan, Councilmember, City of Ridgecrest Garry Nelson,Councilmember,City of Shafter Alex Padilla, Councilmember, City of Los Angeles Toni Parkins, Councilmember, City of Corning Elizabeth Patterson, Councilmember, City of Benicia Ana Ventura Phares, Councilmember, City of Watsonville Cathy L. Prout, Councilmember, City of Shafter Nancy Pyle, Councilmember, City of San Jose Janice Rutherford, Councilmember, City of Fontana Jody Scott, Councilmember, City of Highland Michael C. Smith, Councilmember, City of Dixon Cynthia Sterling, Councilmember, City of Fresno Mary Su,Councilmember,City of Walnut Jack Tanaka, Councilmember, City of Diamond Bar Jerry Thorne,Councilmember, City of Pleasanton Frank A.Tierney, Councilmember, City of Coronado Pamela Torliatt, Councilmember, City of Petaluma Steve Tye, Councilmember, City of Diamond Bar Miguel Ucovich, Councilmember,Town of Loomis Rita K.Vogler, Councilmember, City of Hesperia Mark E.Wheetley, Councilmember, City of Arcata George A.Zika, Councilmember,City of Dublin Todd Bray, Planning Commissioner, Pacifica Lynn Osborn,Planning Commissioner,Town of Danville . - http://www.noprop90.cotn/cMition/index.php 8/30/2006 'y Proposition 90 Official ballot title: GovetrtmentAcquisition, Regulation ofPrivate Property. Initiative ConstitutionaiArrtendment. This initiative, primarily known as "the Anderson Initiative" after its sponsor,Anita S. Anderson,deals with the use of eminent domain and regulatory takings, will appear on the November 2006 ballot. Indtfir dve Frets at Glance ■ Constitutional amendment would apply to all public agencies and utilities, and all state and local government property acquisitions. • Would impact a wide variety of public projects including schools, roads and highways, dams,levees,and affordable housing. •Would limit government's ability to adopt certain land use, housing, consumer, environmental and workplace laws and regulations, except when necessary to preserve public health or safety. • The State's Legislative Analyst says the measure would have the following fiscal impacts: ° Unknown, but potentially significant future costs for state and local governments to pay damages and/or modify regulatory or other policies to conform to the measure's • . provisions Unknown, but potentially significaut changes in governmental costs to acquire property for public purposes. If passed by voters, it could only be changed by another initiative. Ini6'aifve Proylsdans • Prohibits use of eminent domain unless the property acquired is owned and occupied by a governmental agency. • Redefines "just compensation"—Redefines "just compensation" as the sum of money necessary to place the property owner in the same position monetarily, as if the property had never been taken. It is unclear what would be included to make the property owner whole, but presumably things such as lost income, relocation costs, and more. Redefines "fair market value" as the highest and best use the property would bring on the open market. • Changes requirements for property valuation—If a property taken by the government is to be put to use at a higher value after acquisition, the property owner must be paid at the fair market value in accordance with the government's use.For example, if a city uses eminent domain to acquire agricultural land for a municipal airport(from which the city would receive revenues from commercial leases,for example), then the owner must be paid fair market value in accordance with the city's use. The owners would be paid this higher amount regardless of whether or not they could have achieved such a use under the applicable zoning, and regardless of whether other laws would have required them to dedicate a portion of the land. Distributed uy the California Redevelopment Association (More) IuitYrtivei"rovisious cupHpued r • ,Redefines"damage"to include many types of regulatory takings—Redefines "damage" to include government actions that result in economic loss to private property, including many zoning practices such as down zoning or height restrictions,environmental regulations, affordable housing covenants, etc. Requires compensatory payment of these damages by implementing agency. Requires blight determinations on a parcel-by-parcel basis—Would require that blight findings be made on a parcel-by-parcel basis. Current law requires that a project area be declared blighted before eminent domain can be used, but it does not require every parcel in the area to be blighted. i • Voids unpublished eminent domain court decisions--Would annul judgments in every eminent domain action that does not result in a published appellate opinion. Currently, most eminent domain decisions are not published because they are settled in Superior Courts,which never publish decisions. Only appellate decisions are published and even then they are not published in every case. • Pending eminent domain proceedings immediately subject to provisions— Provisions of this initiative would take effect the day following the election and would apply to any eminent domain proceedings in which no final court judgment has been obtained. It is unclear how the provisions relating to damages would apply to regulations in effect at the time of enactment. Distributed by the California Redevelopment Association