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HomeMy WebLinkAboutORDINANCES - 06271995 - 95-31 f . C. ao f ORDINANCE NO. 95-31 MOBILEHOME SPACE RENT STABILIZATION ORDINANCE The Board of Supervisors of the County of Contra Costa ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION 1. This ordinance adds Division 540 to the County Ordinance Code, to regulate mobilehome park space rents in specified mobilehome parks. SECTION II. Division 540 is added to the County Ordinance Code, to read: DIVISION 540 MOBILEHOME PARKS Chapter 540-2 Mobilehome Space Rent Stabilization Article 540-2.2 General, Definitions 540-2.202 Findings and purpose. (a) The State of California has recognized, by the adoption of special legislation regulating tenancies of mobilehome owners in mobilehome parks, that there is a significant distinction between the tenants (mobilehome owners) of mobilehome parks and other dwelling units, and the County of Contra Costa likewise recognizes that tenants of mobilehome parks, unlike apartment tenants or residents of other rental housing, are in the unique position of having made a substantial investment in a residence, the space for which (mobilehome space) is rented or leased as distinguished from owned. (b) There is presently within the unincorporated area of the County and surrounding areas a shortage of developed spaces, especially spaces of suitable sizes, for the location of mobilehomes, and because of this shortage of developed mobilehome spaces there is a low vacancy rate in mobile home parks which rent mobilehome spaces to mobile homeowners. (c) Mobilehome owners, unlike apartment tenants or residents of other rental units, are in the unique position of having made a substantial investment in a residence for which space is rented or leased. Alternative sites for the relocation of June 20, 1995 i mobilehomes are difficult to find due to the shortage of vacant mobilehome spaces, and restrictions on the age, size, or style of mobilehomes permitted in many mobilehome parks. Additionally, the cost of moving a mobilehome is substantial due to requirements related to the installation of mobilehomes, including permits, landscaping, and site preparation, and the risk of damage in moving is significant. (d) A substantial number of persons in the unincorporated area of the County who reside in mobilehome parks are persons on fixed incomes, including senior citizens, and persons of lower income. (e) Recently, the Board of Supervisors and individual supervisors have. received public testimony and written and oral complaints that some parks within the unincorporated area have been and are charging increased rental amounts without service improvements. In some cases, the testimony has been that service levels have actually decreased in the parks charging the high rents. (f) Such rental increases, especially when coupled with a lack of service or other justifying factor, create hardships on mobilehome park residents, and may cause the displacement of park residents. Such displacements would be detrimental to the public health, safety and welfare by adversely affecting the lives of a substantial number of unincorporated area residents who reside in these mobilehomes. (g) Further, as a practical matter, because of the high cost of moving mobilehomes, including the loss of substantial improvements to the mobilehome made by the mobilehome owner, mobilehomes are generally sold in place. -Unreasonably high space rent may erode any reasonable equity a homeowner has in a mobilehome,at the time of sale by affecting the sale price of the mobilehome. (h) For the above reasons, it is necessary and in the public interest to protect mobilehome owners from unreasonable rental increases. At the same time, it is necessary to recognize park owners' need to have rental increases sufficient to cover increased costs of operation and maintenance as well as protect the park owner's right to a fair and reasonable return on the park owner's investment. (i) This ordinance provides that the rental rate for mobilehome spaces subject to the provisions of this ordinance may be adjusted annually by not less than sixty percent (60 %) of the San Francisco-Oakland-San Jose Consumer Price Index. In part, the Board determines that sixty percent of CPI is fair because comparable Bay Area communities, including but not limited to the City of Concord in Contra Costa County provide for similar adjustments based upon sixty percent of CPI. Q) For the reasons set forth above, the Board of Supervisors find that adoption ORD. 95-31 June 20, 1995 -2- t i of this chapter is necessary and in the best interest.of the public. (Ord. 95-31, § 2.) 540-2.204 Definitions. As used in this chapter, the following words and phrases shall have the meanings set forth herein unless it is apparent from the context that a different meaning is intended. (a) "Affected mobilehome owners" means all mobilehome owners in a mobilehome park who have been notified by the park owner that a rent increase is to become effective on the same date, or who have been otherwise made aware, in the absence of such notification, that a rent increase (including a reduction in housing service) has or is to become effective on the same date. (b) "Base rent" means the space rent charged and allowed by County ordinance on September 20, 1994, plus any rent increase allowed thereafter pursuant to this chapter unless otherwise provided. The base rent for any mobilehome space that was not occupied on September 20, 1994 shall be the highest space rent charged by the park owner for a comparable space in the park on September 20, 1994, plus any rent increases allowed thereafter pursuant to this chapter unless otherwise provided. (c) "Capital improvements" means those expenditures at a mobilehome park that may be characterized as capital improvements for federal income tax purposes. (d) "Consumer Price Index" means the Consumer Price Index for all Urban Consumers, San Francisco-Oakland-San Jose Area (or, if the area designation is revised, for the area which encompasses the County of Contra Costa), published by the U.S. Department of Labor, Bureau of Labor Statistics. (e) "Hearing Officer" means a person designated by the Rent Review Officer to hear a petition pursuant to this chapter who is neither a mobilehome owner nor who has an interest in a mobilehome park of a nature that would required disqualification under the provisions of the Political Reform Act if the person is an elected state official. (f) "Housing service" means a service provided by the park owner related to the use or occupancy of a mobilehome space, including but not limited to maintenance of the common area of the mobilehome park, for which the park owner expends money or other quantifiable consideration. For purposes of this ordinance housing services do not include intangibles or other benefits associated with living at the property for which the park owner does not expend money or other quantifiable consideration. ORD. 95-31 June 20, 1995 -3- (g) "Mobilehome" means a structure designed for human habitation and for being moved on a street or highway under permit pursuant to section 35790 of the Vehicle Code. "Mobilehome" includes manufactured home, as defined in the Health and Safety Code, but does not include a recreational vehicle, as defined in section 799.29 of the Civil Code, or a commercial coach, as defined in section 18001.8 of the Health and Safety Code, or factory-built housing as defined in section 19971 of the Health and Safety Code. (h) "Mobilehome owner" means a person who has a tenancy in a mobilehome park under a rental agreement, having the right to the use of a mobilehome space on which to locate, maintain and occupy a mobilehome, site improvements, and accessory structures for human habitation, including the use of the services and facilities of the mobilehome park. "Mobilehome owner" does not include a person who is a resident in a mobilehome but who does not have a tenancy. (i) "Mobilehome park" means any area or tract of land within the county where two or more mobilehome spaces are rented, or held out for rent, to accommodate mobilehomes. (j) "Mobilehome space" means the site within a mobilehome park intended, designed, or used for the location or accommodation of a mobilehome and any accessory structures or appurtenances attached thereto or used in conjunction therewith. "Mobilehome space" does not include any newly constructed space initially held out for rent after January 1, 1990, or a space occupied by a recreational vehicle. (k) "Park Owner means a person or entity that owns or operates a mobilehome park business in the unincorporated territory of the County. (1) "Percent change in Consumer Price Index" means the annual percent change in the Consumer Price Index, calculated to the nearest tenth, published for the month of May, issued in the month of June. In the event that an index is not published for the month of May that is issued in the month of June, the closest preceding month for which an index is published shall be used. (m) "Rental agreement" means an agreement between the park owner and the mobilehome owner for the use and occupancy of a mobilehome space establishing the terms and conditions of mobilehome park tenancy. A lease is a rental agreement. (n) "Rent increase" means any additional space rent demanded of or paid by a mobilehome owner for a mobilehome space, including any reduction in housing ORD. 95-31 June 20, 1995 -4- 1 services without a corresponding decrease in the amount demanded or paid for space rent. (o) "Rent Review Officer" means the person or persons designated by the County Administrator to administer and enforce the provisions of this ordinance. (p) "Service reduction" means any reduction in housing service below the level of service existing on or after September 20, 1994, which results in a cost savings to the park owner without a corresponding decrease in rent. The reduction or deferment of maintenance below the level existing on or after September 20, 1994 may constitute a service reduction. However, normal wear and tear or the common area and/or mobilehome space does not constitute a service reduction. (q) "Space rent" means the money demanded and received by a park owner for the use or occupancy of a mobilehome space and the non-exclusive use of the common area facilities, but excluding separately billed utilities or reasonable charges for services actually rendered. Nothing in this chapter shall be deemed to regulate rent charged for mobilehomes, as opposed to mobilehome spaces. (r) "Substantial rehabilitation" means that work done by a park owner to a mobilehome space, housing services, or to the common area of the mobilehome park, exclusive of a capital improvement, the value of which exceeds two hundred dollars and which is performed either to secure compliance with any state or local law or to repair damage resulting from fire, earthquake, or other casualty or natural disaster, to the extent the cost of such work is not reimbursed by insurance, security deposit proceeds, or any other source. (Ord. 95-31, § 2.) 540-2.206 Applicability; exemptions. (a) The space rent increase limitation provisions of this chapter shall apply to all mobilehome spaces in mobilehome parks in the unincorporated area of this County not otherwise exempt from said requirements, either by this section, chapter, or any applicable State or federal law. (b) Exemptions. The space rent increase limitation provisions of this chapter shall not apply to the following: (1) Mobilehome spaces covered by rental agreements subject to Civil Code section 798.17(a) and (b), to newly constructed mobilehome spaces pursuant to Civil Code section 798.45, or to utilities billed separately pursuant to Civil Code section 798.41. (2) Mobilehome spaces for which the space rent is less than $350.00 ORD. 95-31 June 20, 1995 -5- per month, adjusted annually by 100 percent of the percent change in the Consumer Price Index. (3) Mobilehome spaces in mobilehome parks in which the highest space rent charged is less than the median space rent charged for mobilehome spaces in comparable mobilehome parks upon the adoption by the Board of Supervisors of a program to determine median mobilehome space rents. A program to establish median mobilehome space rents shall provide for the establishment of median space rents for comparable mobilehome parks by resolution of the Board of Supervisors. The determination of the Board of Supervisors of median space rent in comparable mobilehome parks shall be subject to the reasonable discretion of the Board of Supervisors, taking into consideration at least the following: location of the park and housing services provided by the park owner. (Ord. 95-31, § 2.) 540-2.208 Notices. Rent increases pursuant to this chapter shall not be effective and shall not be demanded, accepted, received or retained until the park owner has given all notices required by state law. Notices required by state law may , be given concurrently with proceedings under this chapter. It is understood that the park owner may give notice required by state law before any hearing, decision, or other final action under this chapter. (Ord. 95-31, § 2.) Article 540-2.4 Space Rent Increase Limitations 540-2.402 Mobilehome space rent increase limitations. The maximum space rent chargeable for a mobilehome space subject to the provisions of this chapter shall be the base rent. Increases in the base rent shall be allowed only pursuant to the provisions of this chapter. (Ord. 95-31, § 2.) 540-2.404 "Standard" Annual Rent Increases. Except as provided in section 540-2.406, 540-2.408 and 540-2.410, the space rent payable for use or occupancy of any mobilehome space shall not be increased by a park owner within any twelve-month period more than the greater of: (1) Three percent; or (2) Sixty percent (60 %) of the percent change in the Consumer Price Index, provided that no rent increase of more than six percent may be imposed pursuant to this section. ORD. 95-31 June 20, 1995 -6- All standard rent increases shall become a part of the base rent upon which future rent increases are based. The initial standard rent increase shall be allowed on or after ninety (90) days after the effective date (July 27, 1995) of this ordinance provided all required notices have been given. (Ord. 95-31, § 2.) 540-2.406 Administration Fee Rent Increases. In addition to the standard rent increase, a park owner may increase the space rent payable for a mobilehome space within any twelve-month period, in order to apportion and pass through on a pro-rata basis, to each mobilehome space subject to the provisions of this chapter, the allowable percentage of County administration fees pursuant to section 540- 2.1`602. The administrative fee shall be noticed and implemented at the same time as any standard rent increase provided the park owner has been given adequate notice of the amount of the administrative fee. The administrative fee rent increase shall not be included as part of the base rent upon which future rent increases are based and shall be deleted from the space rent once the mobilehome owner's pro-rata share of said administrative fee rent increase has been collected. (Ord. 95-31, § 2.) 540-2.408 Capital Improvement Rent Increases. A park owner may increase a mobilehome owner's space rent based on the mobilehome owner's pro- rata share of capital improvement expenditures in the park.' The purpose of this section is to provide the park owner a streamlined procedure for recovering capital improvement dollars invested in the mobilehome park. Any such rent increase shall be amortized over the useful life of the capital improvement, using the table of capital improvement set forth in section 540-2.1210. If the table of capital improvement life expectancies in section 540-2.1210 is not applicable, the park owner shall use the "Class Life Asset Depreciation Range System" ("ADR System"). Interest may be imputed on any such rent increases using the prime rate in effect thirty (30) days prior to the date of the application, plus two percent (2 %). However, in no event may any single rent increase, or any cumulative rent increases under this subsection exceed five percent (5 %) of the mobilehome owner's then existing rent. Any rent increase implemented under this section based on the cost of capital improvement shall not be included as part of the base rent upon which future rent increases under this chapter are based and shall be deleted from the space rent once the mobilehome owner's pro-rata share of the capital improvement rent increase has been recovered. ORD. 95-31 June 20, 1995 -7- Nothing in this section shall preclude a park owner from foregoing the right to seek a rent increase under this section and instead applying for a major rent increase, including applying for a major increase based on capital improvement expenditures that would otherwise result in a rent increase in excess of five percent (5 %) of the mobilehome owner's then existing rent. (Ord. 95-31, § 2.) 540-2.410 Major Rent Increases. An increase in the space rent payable for any mobilehome space within any twelve-month period more than the amounts permitted in sections 540-2.404, 540-2.406, 540-2.408 and/or a reduction in a housing service(s) without a concurrent decrease in space rent shall be considered a major rent increase and is subject to the provisions set forth in articles 540-2.6 and- 540-2.10 and other provisions of this chapter. All major rent increases shall become a part of the base rent upon which future rent increases are based. (Ord. 95-31, § 2.) Article 540-2.6 Rent Increase - Notice, Meeting 540-4.602 Notice and Meeting. (a) Notice. Before instituting a rent increase and/or decreasing a housing service, a park owner shall serve a written notice by personal delivery or U.S. mail, first class postage prepaid, of the proposed action, to all affected mobilehome owners and the Rent Review Officer, which notice shall also provide all of the following information: (1) A time and place for an,informal meeting to be scheduled at a time or times convenient for as many affected mobilehome owners as practicable and held on the premises of the mobilehome park, giving affected mobilehome owners at least ten (10) calendar days' notice, at which time the park owner will be available to meet with the affected mobilehome owners to explain and answer questions related to the proposed action; (2) Standard and/or administrative rent increase. For rent increases pursuant to subsection (a) and/or (b) of sections 540-2.404 and/or 540-2.406, the amount of the rent increase both in dollars and as a percentage of existing space rent and either one or both of the following: (A) A statement that the park owner considers the rent increase consistent with the standard rent increase limitations of section 540-2.404 and/or ORD. 95-31 June 20, 1995 -8- t _ (B) A statement that the proposed rent increase is to recover the cost of rent stabilization administration fees pursuant to section 540-2.406. The notice shall include information supporting the increase, including calculations used by the park owner to apportion the cost of the administrative fee among the affected mobilehome owners; (3) Reduction in housing service. For a reduction in a housing service with or without a decrease in space rent, the specific housing service or services to be reduced and the decrease in space rent to be effectuated, if any. The park owner shall also provide any explanation or justification for the proposed action; (4) Capital Improvement Increase. For a capital improvement increase, the amount of the rent increase both in dollars and as a percentage of existing rent, the duration of the rent increase, facts explaining and supporting the increase, including calculations used to determine how the amount of the increase was determined and apportioned; (5) Major rent increase. For a major rent increase other than a reduction in housing service without a concurrent decrease in space rent, the amount of the rent increase both in dollars and as a percentage of existing space rent and facts supporting the increase. (b) Informal meeting. The informal meeting to be held pursuant to subsection (a) shall be conducted for the purpose of providing the park owner an opportunity to further explain the proposed rent increase, including providing any documentation, and allowing both the park owner and affected mobilehome owners the opportunity to resolve any questions or differences they may have concerning the proposed rent increase. The informal meeting, once begun, may be continued by the park owner to another date or time. (Ord. 95-31, § 2.) 540-2.604 Failure to comply. Any rent increase, other than a reduction in housing service without a concurrent decrease in space rent, imposed by the park owner without providing notice that substantially complies with the requirements of section 540-2.602 or without holding a meeting shall be void and invalid, and such failure to comply by the park owner shall be a defense in any action brought by the park owner to recover possession of the mobilehome space or to collect any rent increase that should have been covered by such notice and meeting. (Ord. 95-31, § 2.) 540-2.606 Rent increase. Following the provision of notice that substantially complies with the requirements of section 540-2.602 and the holding of a meeting, and the provision of all notices required by state law, the rent increase may be ORD. 95-31 June 20, 1995 -9- implemented unless a timely petition substantially meeting the requirements of section 540-2.804 has been filed, in which case collection of the increased rent shall be stayed upon the filing of a qualifying petition pending review of the rent increase. (Ord. 95-31, § 2.) Article 540-2.8 Rent Increase Review 540-2.802 Rent increases - Petition Required. Any rent increase, including a reduction in service without a concurrent decrease in space rent, proposed by a park owner, may be reviewed pursuant to the provisions of this article. (Ord. 95-31, § 2.) 540-2.804 Petition. (a) The Rent Review Officer shall review a rent increase upon the filing of a petition in the Office of the Clerk of the Board of Supervisors. The petition shall be signed by more than fifty percent of the mobilehome owners affected by the rent increase. For purposes of determining the sufficiency of the petition, only one homeowner per occupied space shall be counted. The petition shall include a brief summary of the amount of disputed space rent increase or reduction in service without concurrent decrease in space rent, and shall designate the name and address of the mobilehome owners' representative, the name and address of the mobilehome park, and the name and address of the park representative if known to the homeowners. (b) The petition shall be filed within thirty days of the effective date of the rent increase, except that for a reduction in housing service without a concurrent reduction in space rent for which notice and a meeting was not provided, a petition may be filed within sixty (60) days of discovery of the alleged rent increase. With respect to major rent increases effective before the effective date of this chapter but after September 20, 1994, the petition shall be filed within 30 days after the effective date (July 27, 1995) of this chapter. No petition may be filed to review rent increases effective on or before September 20, 1994. (c) The petition shall be accompanied by any filing fee imposed by the Board of Supervisors to defray the cost to the County of processing the petition and conducting the major rent increase review. (d) Upon the filing of the petition, the Clerk of the Board of Supervisors will forthwith forward the petition to the Rent Review Officer. (Ord. 95-31, § 2.) ORD. 95-31 June 20, 1995 -10- 540-2.806 Verification of petition. Within sixteen (16) days of the filing of the petition with the Clerk of the Board, the Rent Review Officer shall verify that the petition has been signed by the requisite number of homeowners, and may require the park owner to provide such verifiable information as is necessary to determine what constitutes a requisite number of homeowners.' The Rent Review Officer may deem a petition sufficient if the Rent Review Officer is not provided or is unable to obtain verifiable information regarding the adequacy of the petition. (Ord. 95-31, § 2.) 540-2.808 Mediation. Upon verifying that the petition has been signed by the requisite number of homeowners, the Rent Review Officer shall promptly notify the park owner and the homeowners' representatives that the petition has been received and found to be sufficient. Within ten (10) days of verifying a petition as sufficient, the Rent Review Officer shall convene a meeting with the park owner and the homeowners' representative for the purpose of mediating the rent dispute. In mediating the dispute, the Rent Review Officer may require both sides to submit any information and/or documentation reasonably necessary to resolve the dispute, including the information set forth in sections 540-2.1002 and/or 540-2.1204 and 540-2.1206, as may be appropriate. If the dispute is not resolved within 40 days of petition verification, the Rent Review Officer shall terminate mediation efforts and, within ten (10) days of such termination, prepare a record of findings, including findings regarding the parties' participation and cooperation in the mediation efforts, and transmit said findings to the Hearing Officer, which findings may be considered by the Hearing Officer. The 40-day period for resolving disputes may be continued by agreement of the parties. (Ord. 95-31, § 2.) 540-2.810 Hearing. If no satisfactory resolution of the dispute is reached within 40 days of petition verification, or such longer period of time as the parties may agree, the Rent Review Officer shall appoint a Hearing Officer who shall schedule a hearing on the disputed rent increase. The hearing shall be on a date no sooner than 30 days, nor later than 60 days from the termination of the mediation efforts. The Rent Review Officer shall provide mailed notice, first class mail postage prepaid, to the park owner and the mobilehome owners' representative. The notice shall inform the parties of the date, time and location of the hearing, and that the park owner shall file with the Hearing Officer, two sets of any information necessary to review the rent increase, including any information requested by the Hearing Officer. For major rent increases, the information required by section 540-2.1002 shall be provided. For capital improvement rent increases, the information required by section 540-2.1204 and 540-2.1206 shall be provided. The information shall be provided no later than ten days before the hearing, one set to be provided to the homeowners' representative by the Rent Review Officer. If the park owner is unable to provide the information in a timely manner, the Hearing Officer shall grant a continuance no longer than ten days after the two sets of the required information is submitted by the ORD. 95-31 June 20, 1995 -11- park owner. (Ord, 95-31, § 2.) 540-2.812 Hearing Fee. Any hearing fee established by the Board of Supervisors shall be paid by the park owner concurrently with the filing of the required information. The fee shall be used to pay costs of the County incurred in holding the hearing, including, without limitation, Hearing Officer costs, County staff time, noticing, audit costs, accountant costs and postage. (Ord. 95-31, § 2.) 540-2.814 Hearings. (a) General. Hearings to review a rent increases shall be conducted pursuant to the procedures prescribed in this section. (b) Conduct of Hearing. The park owner and affected mobilehome owners may appear at the hearing and offer oral and documentary evidence. The Hearing Officer shall have such authority and may make such orders as necessary to assure that the hearing is conducted in a timely manner and a decision rendered within the time limits set forth in this section. The hearing Officer shall exercise discretion in the determination of facts. The hearing officer need not require that formal rules of evidence be observed, provided that constitutional rights for a fair hearing are protected. The hearing Officer may grant not more than two continuances of the hearing for not more than ten (10) working days each, except that the Hearing Officer may grant additional continuances upon the park owner's request provided the homeowners' representative is provided a reasonable amount of time to review any additional evidence submitted by the park owner. (c) Representation of Parties. The parties in a hearing are entitled to be represented by a person or persons of the party's choosing. The representative need not be an attorney. The written designation of a representative(s) shall be filed with the Hearing Officer at or prior to the time of representation. (d) Hearing Findings and Determination. The Hearing Officer shall, within fifteen (15) working days of the conclusion of the hearing, submit a written statement of decision and the reasons for the decision by mail to the park owner, the homeowners' representative, and the Rent Review Officer. The Hearing Officer may allow the parties to submit briefs or additional information; however, any such submittal shall not prolong the decision except upon the written waiver of the park owner. The Hearing Officer's decision shall determine the amount of rent increase, if any, and the effective date of the rent increase consistent with providing a fair and reasonable return on the involved park owner's investment. (e) Burden of Proof. The burden of proving the reasonableness of a proposed major rent increase for a fair and reasonable return on investment, other ORD. 95-31 June 20, 1995 -12- than a reduction in service without a concurrent decrease in space rent, shall be on the park owner. The burden of proof shall be upon the affected mobilehome owners for a housing service reduction without a concurrent space rent decrease. (f) Attorneys Fees. This chapter makes no provision for attorneys fees and costs as between park owners and mobilehome owners with respect to any administrative proceeding regarding this chapter, including any appeal of any administrative decision made pursuant to this chapter. Except as expressly provided herein, under no circumstances shall any provision in this chapter be construed to allow either party to apply for or recover attorneys fees from the other in proceedings under this chapter. (g) Decision Final!. The decision of the Hearing Officer is final and binding upon the park owner and all affected mobilehome owners, regardless of whether any affected mobilehome owner signed the petition for a hearing or was present or represented at the hearing. The decision of the Hearing Officer shall be subject to judicial review pursuant to section 1094.5 of the Code of Civil Procedure. The parties to the hearing may enter an agreement, which shall be signed by the Hearing Officer, that the decision of the Hearing Officer shall be final and binding upon all parties on the same basis as an arbitrator's decision subject to confirmation, correction or vacation, pursuant to section 1285 et seq. of the Code of Civil Procedure. (h) No decision. If the Hearing Officer does not render and mail a decision within twenty (20) working days of the conclusion of the hearing, the requested rent increase shall be deemed granted for the period commencing the day after said 20th working day. (Ord. 95-31, § 2.) 540-2.816 Subpoenas. (a) Affidavit. Upon the filing of an affidavit or a declaration under penalty of perjury showing good cause by any party, the hearing Officer may, at the hearing Officer's discretion, issue a subpoena requiring a person or entity to attend at a particular time and place to testify as a witness and/or to produce records, documents, or things. Subpoenas shall be issued and attested to by the Hearing Officer in the name of the County. The affidavit or declaration shall specify the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the proceeding, and stating that the witness has the desired matters or things in the witness' possession or under the witness' control, and a copy of such affidavit shall be served with the subpoena. Subpoenas shall designate the business records, documents, and tangible things to be produced either by specifically describing each individual item or by reasonably ORD. 95-31 June 20, 1995 -13- particularizing each category of item. (b) Service of Subpoenas. Any subpoena requiring that a witness personally appear to give testimony at a petition hearing shall be served in person at least five (5) calendar days before the witness' attendance is commanded. Any subpoena duces tecum requiring production of business documents only may be served by first- class mail, and must be served at least twenty (20) calendar days before the date set forth on the face of the subpoena. Upon good cause being shown, such time limits may be shortened as is reasonable and necessary. Any subpoena or subpoena duces tecum issued pursuant to the provisions of this section shall be deemed issued by and in the name of the County. (c) Payment of Costs for Subpoenas Duces Tecum. All reasonable costs incurred by any witness not a party to the hearing pursuant to a subpoena duces tecum may be charged against the party serving the subpoena duces tecum. "Reasonable cost," as used in this section shall include, but not be limited to, the following specific costs: ten cents per page for standard reproduction of documents of a size eight and one-half by fourteen inches or less; twenty cents per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents requiring special processing; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of sixteen dollars per hour per person, computed on the basis of four dollars per quarter hour or fraction thereof; actual postage charges; and actual costs, if any, charged to the witness by a third person for the retrieval and return of records held by that third person. The requesting party shall not be required to pay those costs or any estimate thereof prior to the time the records are available for delivery pursuant to the subpoena, but the witness may demand payment of costs pursuant to this section simultaneously with actual delivery of the subpoenaed records, and until such time as payment is made, is under no obligation to deliver the records. If a subpoena is served to compel the production of business records and is subsequently withdrawn or modified, the witness shall be entitled to reimbursement for all costs incurred in compliance with the subpoena to the time that the requesting party has notified the witness that the subpoena has been withdrawn or modified. Where the records are delivered to the attorney or the attorney's representative for inspection or photocopying at the witness' place of business, the fee for complying with the subpoena shall not exceed fifteen dollars, plus actual costs, if any, charged to the witness by a third person for retrieval and return of records held off-site by a third person. If the records are retrieved from microfilm the reasonable cost, as defined above, shall also apply. (d) Payment of Costs for Subpoenas Requiring Personal Attendance. When the personal attendance of the custodian of a record or other qualified witness not a party to the hearing is required, said witness shall be entitled to witness fees for ORD. 95-31 June 20, 1995 -14- each day's actual attendance in the amount of thirty-five dollars a day plus twenty cents per mile actually traveled, both ways, or such other fee as is provided by statute for the attendance of that witness in courts of the State of California. The fee for one day's attendance and mileage must be delivered to the witness at the same time the subpoena is served upon said witness, if demanded by him or her. (e) Exclusive Means of Discovery. Other than the subpoenas described in subdivision (a) above, there shall be no additional discovery in proceedings before the Hearing Officer. (Ord. 95-31, § 2.) 540-2.818 Withdrawal of Petition. Nothing in this ordinance shall preclude or invalidate an agreement between the park owner and the affected mobilehome owners which results in the mobilehome owners withdrawing a petition, either before or after the Hearing Officer's decision or the decision of a court, provided that the agreement contains no provision by which the mobilehome owners waive rights under this chapter. Any such waiver shall be deemed contrary to public policy and void and unenforceable. (Ord. 95-31, § 2.) Article 540-2.10 Manor Rent Increase 540-2.1002 Required information - Major rent increase. If*a hearing on a proposed major rent increase is scheduled, the park owner shall, under penalty of perjury, submit any and all information reasonably required by the Rent Review Officer, including, but not limited to the following: (a) The address of the mobilehome park; (b) The space number of each mobilehome space for which a rent increase is requested; (c) The current and proposed rent schedules for each mobilehome space in the mobilehome park, including the amount of the requested rent increase for each mobilehome space; (d) The facts supporting the requested rent increase, including supporting documentation; (e) The actual income and operating expenses by category for the mobilehome park for each year of a two year period ending no more than six months ORD. 95-31 June 20, 1995 -15- before the proposed effective date of the rent increase; (f) A schedule of other anticipated fees and income from the mobilehome park; (g) The vacancy rates in the mobilehome park during the preceding two year period; (h) A list of any current leases for mobilehome spaces unaffected by the proposed rent increase extending beyond the effective, date of the rent increase, showing the date that each lease expires and the amount and date of change in the space rent for such lease; (i) Any other information affecting the need for the proposed rent increase which is required by the Rent Review Officer; and Q) Any other information which the park owner deems relevant. (Ord. 95-31, § 2.) 540-2.1004 Standards of review for major rent increase. (a) Factors. Factors to be considered in evaluating a major rent increase proposed by the park owner include: (1) Unavoidable increases in maintenance and operating expenses, including but not limited to the reasonable value of the park owner's labor and any increased costs for services provided by a public agency, public utility, or quasi-public agency or utility. (2) The substantial rehabilitation or the addition of capital improvements by the park owner seeking the major rent increase, including the reasonable.value of the park owner's labor, as long as such rehabilitation or improvement has been completed and is: (A) Distinguished from ordinary repair or maintenance; (B) For the primary benefit, use, and enjoyment of the affected mobilehome owners; (C) Permanently fixed in place or relatively immobile and appropriated to the use of the mobilehome park; (D) Not coin-operated nor one for which a "use fee" or other charge is ORD. 95-31 June 20, 1995 -16- imposed on affected mobilehome owners for their use; and (E) Cost-factored and amortized over the remaining useful life of the rehabilitation or improvement. (3) The rental history of the affected mobilehome spaces and the mobilehome park, for the immediately preceding thirty-six months, including: (A) The presence or absence of past rent increases; (B) The frequency of past rent increases; and (C) The occupancy rate of the mobilehome park in comparison to comparable mobilehome parks in the same general area. (4) The physical condition of the affected mobilehome spaces and mobilehome park, including the quantity and quality of maintenance and repairs performed during the preceding twelve months, as well as the long term patterns of operating, maintenance, and capital improvement expenditures. (5) Any increase or reduction of housing services since the last rent increase. (6) Existing space rents for comparable mobilehome spaces in other comparable mobilehome parks. (7) A decrease in net operating income as provided in section 540- 2.1006. (8) A fair return on the property prorated among the mobilehome spaces of the mobilehome park. (9) Other financial information which the mobilehome park owner provides. (10) Whether income or expenses in a base or comparison year are unreasonably high or low. If so, the Rent Review Officer may make an appropriate adjustment. (b) No cap shall be placed on rent increases pursuant to this section. It is understood that a park owner is entitled to, and this chapter shall be construed and implemented to afford a park owner a fair and reasonable return on investment. (Ord. 95-31, § 2.) 540-2.1006 Net operating income evaluation for major rent increases. In ORD. 95-31 June 20, 1995 -17- evaluating a major rent increase proposed to maintain the park owner's net operating income from the mobilehome park, the following definitions and provisions shall apply: (a) Net operating income of a mobilehome park means the gross income of the mobilehome park less the operating expenses of the mobilehome park. (b) Gross income means gross income from the operation of the mobilehome park business, including the sum of the following: (1) Gross space rents received, provided that uncollected space rents in excess of one percent of gross space rent shall be presumed to be unreasonable and shall be computed as income. The park owner may rebut the presumption by demonstrating that reasonable efforts to collect said uncollected rents, in conformance with industry standards have been made; plus (2) All other income or consideration received from operation of the mobilehome park business, and/or in connection with use or occupancy of a mobilehome space and related service, including, but not limited to interest paid by the mobilehome owners to the park owner. (c) Operating expenses means actual expenditures in operating the mobilehome park business, including the sum of the following: (1) Real property taxes and assessments. (2) Utility costs to the extent that they are included in space rent. (3) Management expenses, including the compensation of administrative personnel (including the value of any such services), reasonable and necessary advertising to ensure occupancy only, legal and accounting services as permitted herein, and other managerial expenses. Management expenses are presumed to be not more than five percent of gross income, unless greater management expenses can be documented. (4) Normal repair and maintenance expenses for the grounds and common facilities of the mobilehome park, including but not limited to landscaping, cleaning, and repair of equipment and facilities. (5) Park owner-performed labor in operating or maintaining the park. In addition to the management expenses listed in paragraph (3), where the park owner ORD. 95-31 June 20, 1995 -18- performs managerial or maintenance services which are uncompensated, the park owner may include the reasonable value of such services. Park-owner-performed labor shall be limited to five percent of gross income unless the Hearing Officer finds that such limitation would be unfair in a given case. No credit for such services shall be authorized unless the park owner documents the hours utilized in performing such services and the nature of the services provided. (6) Operating supplies such as janitorial supplies, gardening supplies, stationery, and so forth. (7) Insurance premiums prorated over the life of the policy. (8) Other taxes, fees, and permits, except administration fees assessed or paid pursuant to section 540- 540-2.1602 that are passed through to mobilehome owners. (9) Reserves for replacement of long-term improvements or facilities, provided that accumulated reserves shall not exceed five percent of gross income. (10) Capital improvement costs, to the extent said capital improvement costs are not passed through in the form of a rent increase pursuant to section 540- 2.408. (A) To be included as an operating expense, a capital improvement expense shall be amortized over the reasonable like of the improvement or such other period as may be deemed reasonable under the circumstances when considered in light of existing IRS standards, using the "Class Life Asset Depreciation Range System" ("ADR System"). (B) In the event that the capital improvement expenditure is necessitated as a result of accident, disaster, or other event for which the park owner receives insurance benefits, only those capital improvement costs otherwise allowable exceeding the insurance benefits may be calculated as operating expenses. (11) Involuntary refinancing of mortgage or debt principal. The park owner may include certain debt services costs as an operating expense. Such costs are limited to increases in interest payments from those interest payments made during 1994 which result from one of the following situations or the equivalent thereof: (A) Refinancing of the outstanding principal owed for the acquisition of the mobilehome park where such refinancing is mandated by the terms of a financing transaction entered into prior to the effective date of this ordinance (e.g.) for termination of a loan with a balloon payment. ORD. 95-31 June 20, 1995 -19- (B) Increased interest costs incurred as a result of a variable interest rate loan used to finance the acquisition of the mobilehome park and entered into prior to the effective date of this ordinance. .In refinancing, increased interest shall be permitted to be considered as an operating expense only where the park owner can show that the terms of the refinancing were reasonable and consistent with prudent business practices under the circumstances. (d) Operating expenses shall not include the following: (1) Avoidable and unnecessary expense increases since the base year. (2) Debt service expenses, except as provided in subsection (c)(11). (3) Depreciation. (4) Any expense for which the park owner has been or will be reimbursed by any security deposit, insurance payment, judgment for damages, settlement, or any other method. (5) Legal or attorney's fees or costs incurred or related to proceedings under this chapter. (6) Any damages, penalties, fees, or interest assessed or awarded for violation of any provision of this ordinance or of any other provision of law. (7) Reserve accounts except as set forth in subdivision (c)(9) of this section. (8) Expenses unrelated to the operation of the mobilehome park. (9) Expenses clearly excessive in relation to the industry standard for the same item. (10) Expenses related to the sale or conversion of the mobilehome park. (11) The costs of capital improvements associated with the purchase and/or installation of meters or other similar devices used for the separate billing of utilities, unless the park owner can demonstrate said capital improvement benefits the mobilehome owners. ORD. 95-31 June 20, 1995 -20- (e) All operating expenses must be reasonable. Whenever a particular expense exceeds the normal industry or other comparable standard, the park owner shall bear the burden of proving the reasonableness of the expense. To the extent that the Hearing Officer finds any such.expense to be unreasonable, the Hearing Officer shall adjust the expense to reflect the normal industry or other comparable standard. (f) Base year operating expenses and gross income for purposes of this ordinance shall mean operating expenses and gross income in calendar year 1994. (g) Notwithstanding any other provision of this chapter, in evaluating a major, rent increase proposed on the ground that the park owner is not receiving a fair and reasonable return on investment, the Hearing Officer shall consider all relevant factors, without limitation, including actual income and actual expenditures associated with operation of the mobilehome park business to determine that return. (Ord. 95-31, § 2.) Article 540-2.12 Capital Improvement Rent Increases 540-2.1202 Capital improvement rent increases. In order to provide an incentive to park owners to improve their properties and guaranteeing a fair and reasonable rate of return for such improvements, while at the same time protecting mobilehome owners from excessive rent increases, capital improvement rent increases shall be granted in accordance with the requirements of this article. Further, in order to promote advance fiscal planning, park owners shall have the option of obtaining approval for capital improvements before performing the work. In the alternative, park owners may commence rent increase procedures after the work is completed. (Ord. 95-31, § 2.) 540-2.1204 Requirements. (a) Criteria. Costs of capital improvements may be approved where the following criteria are met: (1) The capital improve Iments were completed or are to be completed on or after September 20, 1994; (2) The park owner has not yet increased the rent or rents to reflect the cost of the work; (3) The park owner has not been or will not be compensated for the ORD. 95-31 June 20, 1995 -21- work by insurance proceeds; (4) The park owner seeks a rent increase pursuant to section 540-2.408 no later than twenty-four months after the work has been completed; (5) The costs are capital improvements as opposed to routine repair; (6) The costs of the capital improvement are not associated with the purchase or installation of meters or other similar devices used for the separate billing of utilities; (7) The individual mobilehome owner's pro-rata share of the capital improvement costs, or the cumulative capital improvement costs assessed if one or more capital improvement rent increases have been imposed and are still being charged, will not exceed five percent (5%) of the then existing base rent; (8) The capital improvement is not coin-operated nor one for which a "use fee" or other charge is imposed on affected mobilehome owners for their use. (b) Cost Allocation. The cost of capital improvements shall be allocated on a pro-rata basis to affected mobilehome owners. (c) Declaration Re: Tax Treatment of Capital Improvement. At the time the park owner notices a capital improvement rent increase, the park owner shall submit to the Rent Review Officer a declaration under penalty of perjury stating that the park owner has, or will, treat the capital improvement as a capital improvement for federal income tax purposes. Once each year during the amortization period for the capital improvement the Rent Review Officer may request the park owner to provide an updated declaration stating under penalty of perjury that the park owner treated the capital improvement as a capital improvement for federal income tax purposes on the park owner's most recent tax return. In the event the park owner does not provide the Rent Review Officer with such a declaration within 60 days of the Rent Review Officer's request, the Rent Review Officer may appoint a Hearing Officer to conduct hearings in order to recalculate the amount of the capital improvement rent increase. The hearing and recalculation shall proceed on the presumption that the park owner received a tax deduction for all of the previously non-amortized portion of the capital improvement expenditure during the year immediately following the last year for which the park owner submitted a declaration stating that he was amortizing the capital improvement in accordance with federal law. The sole purpose of the hearing shall be to adjust the amount of the capital improvement rent increase to disallow any excess income the park owner may receive by expensing all of the previously non-amortized portion of the capital improvement in the year immediately following the park owner's most recent ORD. 95-31 June 20, 1995 -22- f . declaration on the subject, rather than continuing to amortize the capital improvement. The park owner shall not be required to submit such a declaration and no such recalculation shall occur if federal law has been changed so that the capital improvement may no longer be amortized, or if the park is sold, in which case the new owner shall not be able to amortize any capital improvement expenditure made by the previous owner. (Ord. 95-31, § 2.) 540-2.1206 Required Information. If a hearing on a proposed capital improvement rent increase is scheduled, the park owner shall, under penalty of perjury, submit any and all information reasonably required by the Rent Review Officer, including, but not limited to the following: (a) a description of the improvement; (b) contracts documents (including receipts, cancelled checks etc.) or bid documents showing the cost or estimated cost of the proposed improvement; (c) the amortization period to be used; (d) the interest rate to be used or obtained; (e) the formula used to calculate the pro-rata share of each resident; (f) the monthly cost to each resident in dollars; (g) a statement that the cumulative cost of all capital improvement rent increases in effect and to be approved will not exceed five percent (5 %) of the then existing base rent of each tenant. (Ord. 95-31, § 2.) 540-2.1208 Effect of prior approval. Where a park owner obtains prior approval for a capital improvement rent increase pursuant to a hearing, the park owner may make the improvements and is entitled to recover the pre-approved rent increase as set forth in this section. Upon the completion of the improvement the park owner shall submit to the Rent Review Officer, documentation of the actual cost of the capital improvement, and the Rent Increase Notice to be sent to the affected mobilehome residents. If the actual cost is less than the estimated cost, only the amounts actually incurred may be passed through to the mobilehome owners in their proportionate share. ORD. 95-31 June 20, 1995 -23- If the actual cost of the capital improvement is more than estimated, the park owner may waive the excess amount and collect only the pre-approved amount, or, the park owner may provide a second notice of capital improvement rent increase for the full amount incurred. In the event that the park owner notices an increase for the full amount, affected mobilehome owners will be entitled to only that portion of the increase which exceeds the pre-approved amount. (Ord. 95-31, § 2.) 540-2.1210 Review of Capital Improvement Rent Increases. (a) Park owner's Initial Burden of Proof. The burden shall initially be on the park owner to establish that the required information regarding the capital improvement in the park owner's rent increase notice is accurate, including (1) The cost of the capital improvement project. (2) The.interest rate used by the park owner. (3) The amortization period used by the park owner. (4) The formula used to calculate the pro-rata share of each mobilehome owner. (5) The cumulative capital improvement rent increases will not exceed five percent (5%) of the then existing base rent. (b) Mobilehome Owner's Burden of Proof to Rebut. Once the park owner establishes that,the required information regarding the park owner's capital improvement proposed rent increase is accurate, the burden shall shift to the mobilehome owners' representative to show that the rent increase is unwarranted or excessive based upon any and only on the following four alternative grounds: (1) The cost of the capital improvement project was clearly excessive given industry standards. (2) The capital improvement was necessitated due to the elimination, reduction, or deferment of maintenance below the level existing on or after September 20, 1994, thereby requiring replacement of the pre-existing improvement prior to the expiration of its normal expected life, as adjusted pursuant to this article. (3) That the interest rate charged is greater than financing reasonably available to the park owner in an arm's length transaction with a private lending institution. ORD. 95-31 June 20, 1995 -24- (4) That the improvement was not reasonably related to the operation of the mobilehome park business. (c) Remedy if Burden of Proof Met By Mobilehome Owners. The purpose of the provisions in this chapter providing for contesting capital improvement rent increases is to ensure the good faith of park owners, including but not limited to ensuring that park owners do not engage in nepotism, kick backs and/or deferred maintenance, or make improvements which are unnecessary to the operation of the mobilehome park business. If the Hearing Officer determines that the mobilehome owners have satisfied their burden of proof with respect to all or any part of the cost of a capital improvement expenditure, the Hearing Officer may reduce the amount of the rent increase by a corresponding amount, but not more, subject to the limitations set forth in this article and chapter. In the event the Hearing Officer determines that the park owner has engaged in perjury, fraud, nepotism, or kick- backs with respect to a capital improvement rent increase, the Hearing Officer may reduce the amount of the rent increase to the level the Hearing Officer deems appropriate under the circumstances consistent with providing a fair and reasonable return on investment. (d) Limitations On Grounds For Contesting Rent Increase. In determining the normal expected life of a capital improvement the Hearing Officer shall look first to the amortization table in this section or, if not applicable, the ADR System and/or the regulations, guidelines and amortization tables established by the internal Revenue Service for capital improvements. It is recognized that the normal expected life of a capital improvement is based on averages and that the actual life may fall short of the normal expected life, for reasons other than deferred maintenance. In the event the normal expected life of a capital improvement is less than five years, the "adjusted expected life" of the capital improvement shall be 90% of its normal expected life. In the event the normal expected life of a capital improvement is five years or more, the "adjusted expected life" of the capital improvement shall be 80% of its normal expected life. Where a petition is filed challenging a capital improvement rent increase, the Hearing Officer may not reduce the amount of the rent increase by an amount in excess of the difference between the actual life of the capital improvement and its "adjusted expected life." For example, if the mobilehome owners establish that as a result of deferred maintenance a pre- existing capital improvement with an expected life of 10 years and an "adjusted expected life" of 8 years, in fact only lasted 7 years, the Hearing Officer may reduce the amount of the requested rent increase by 10%, but no more. In no event may the Hearing Officer reduce the amount of a capital improvement rent increase based on alleged deferred maintenance where the capital improvement rent increase is necessitated by a catastrophe, act of God, or other uncontrollable circumstance, including earthquakes, landslides, earth movement, fire or flood. ORD. 95-31 June 20, 1995 -25- (e) Schedule of Amortization of Capital Expenditures for. mobilehome Parks. The following amortization schedule shall be used for the amortization of capital improvements unless the parties present clear and convincing evidence to the contrary. Item Asset Life in Years Air conditioning units 17 Air ducts Galvanized steel 20 Aluminum 25 Plastic 30 Air duct insulation 15 Appliances 5 Dishwasher 2 Garbage disposal 5 Refrigerator 5 Stove 5 Water heater 5 Boilers 15 Fans and ancillary items Fans and motors 12 Electric controls 10 Pneumatic controls 12 Heating and cooling coils 12 Humidifiers and air washers 10 Land improvements, such as sidewalks, roads 20 canals, waterways, drainage facilities, sewers, bridges, fences, landscaping, shrubbery Laundry equipment 10 Lights 10 Painting ORD. 95-31 June 20, 1995 -26- Exterior 5 Interior 5 Paving Reslurry 4 Resurfacing 8 Pipe Galvanized 12 Copper 25 Pipe valves and special items 12 Plastering 10 Plumbing Fixtures 10 Pipes 10 Pumps Pool 5 Sump 10 Recreation Equipment 10 Refrigeration machines Reciprocating 15 Rotary 20 Roofing 15 Sauna 25 Security entry telephone intercom 10 Stokers and burners 12 Stucco 15 Swimming pools 25 Tennis courts 25 ORD. 95-31 June 20, 1995 -27- Therapy pools 25 Water cooling towers 15 Water evaporative condensers 20 Windows Awnings 5 Drapes 5 Screens 5 Shades 5 (Ord. 95-31, §.2.) Article 540-2.14 Rights and Obligations 540-2.1402 Obligation of the parties. (a) If the final decision by the hearing Officer finds that the rent increase, or any portion thereof, is justified, each affected mobilehome owner shall pay, to the extent such payment has not already been made by the mobilehome owner, the amount found justified to be paid to the park owner, within thirty (34) calendar days after the decision is made. Payment for pre-approved capital improvement rent increases shall commence after the improvements are completed and 90 days' notice of the rent increase is given. (b) If the final decision by the hearing Officer finds that the rent increase, or any portion thereof, is not justified, the park owner shall refund any amount found to be unjustified, to the extent such amount has already been paid by the affected mobilehome owner, to each affected mobilehome owner within thirty days after the decision is made. If such refund is not made within thirty (30) calendar days, the affected mobilehome owner may, to the extent allowed by law, withhold the amount from the next space rent payment, or payments until the full amount of the refund has been made. (c) Any sum of money that under the provisions of this section is the obligation of the park owner or an affected mobilehome owner, as the case may be, shall constitute a debt and, subject to the foregoing provisions of this section, may be collected in any manner provided by law for the civil collection of debts by private parties. (Ord. 95-31, § 2.) ORD. 95-31 June 20, 1995 -28- 540-2.1404 Mobile home owner's right of refusal to pay. To the extent allowed by law, an affected mobilehome owner may refuse to pay any rent increase which is in violation of this chapter provided the affected mobilehome owners have filed with the clerk of the board of supervisors, a petition representing more than 50 percent of the affected mobilehome owners. Such refusal to pay shall, to the extent allowed by law, be a defense in any action brought to recover possession of a mobilehome space or to collect the rent increase, which action is attributed to the refusal to pay. (Ord. 95-31, § 2.) 540-2.1406 Retaliation; mobilehome owners' right to organize. (a) No park owner, manager, or agent thereof may retaliate against a mobilehome owner for the mobilehome owner's assertion or exercise of rights under this ordinance, in any manner, including but not limited to: improperly threatening to bring or bringing an action to recover possession of a mobilehome space, engaging in any form of harassment; improperly decreasing housing services; improperly increasing the space rent; or improperly imposing a security deposit or any other charge payable by a mobilehome owner. (b) In an action by or against a mobilehome owner, evidence of the assertion or exercise by the mobilehome owner of rights under this chapter or other activity in furtherance of mobilehome owners' rights and organizations within six months prior to the alleged act of retaliation shall create a presumption affecting the burden of producing evidence that the park owner's conduct was in retaliation for the mobilehome owner's assertion or exercise of rights under this ordinance. (c) To the extent allowed by law, any mobilehome owner whose rights under this chapter are violated may bring a civil action for declaratory, and/or injunction relief, and/or for damages. To the extent allowed by law, any park owner who retaliates in violation of . subsection (a) shall be liable to the affected mobile home owner in a civil action for the actual damages sustained, plus reasonable attorney's fees and costs. Although a park owners agent may be sued for declaratory and/or injunctive relief under this section, in no event may a mobilehome owner bring an action for damages against a park owner's agent or recover attorneys fees from the park owner's agent. (Ord. 95-31, § 2.) 540-2.1408 Mobilehome owner's right to agree to term of lease. (a) Every mobilehome owner and prospective mobilehome owner shall have the option to reject an offered rental agreement and accept a rental agreement for a term of 12 ORD. 95-31 June 20, 1995 -29- months or less, including a month-to-month agreement. (b) Before any rental agreement or lease in excess of 12 months is executed by the mobilehome owner or prospective mobilehome owner, the park owner must (1) offer the mobilehome owner or prospective mobilehome owner the option of a rental agreement for a term of 12 months or less, (2) provide the mobilehome owner or prospective mobilehome owner with a copy of this ordinance, and (3) inform the mobilehome owner or prospective mobilehome owner in writing that if he or she signs a lease or rental agreement with a term in excess of 12 months, the lease or rental agreement may not be subject to the terms and protection of this ordinance. (c) A notice, which conforms to the following language and printed in bold letters of the same type size as the largest type size used in the rental agreement, shall be presented to the mobilehome owner or prospective mobilehome owner at the time of presentation of a rental agreement creating a tenancy with a term greater than twelve (12) months: "IMPORTANT NOTICE TO MOBILEHOME OWNER REGARDING THE PROPOSED RENTAL AGREEMENT FOR MOBILEHOME PARK: PLEASE TAKE NOTICE THAT THIS RENTAL AGREEMENT CREATES A TENANCY WITH A TERM IN EXCESS OF TWELVE (12) MONTHS. BY SIGNING THIS RENTAL AGREEMENT, YOU ARE EXEMPTING THIS MOBILEHOME SPACE FROM THE PROVISIONS OF THE COUNTY OF CONTRA COSTA MOBILEHOME SPACE RENT STABILIZATION ORDINANCE FOR THE TERM OF THIS RENTAL AGREEMENT. THIS ORDINANCE AND THE STATE MOBILEHOME RESIDENCY LAW (CALIFORNIA.CIVIL CODE SEC. 798 et seq.) GIVE YOU CERTAIN RIGHTS. BEFORE SIGNING THIS RENTAL AGREEMENT, YOU MAY CHOOSE TO SEE A LAWYER. UNDER THE PROVISIONS OF STATE LAW, YOU HAVE A RIGHT TO BE OFFERED A RENTAL AGREEMENT FOR (1) A TERM OF TWELVE (12) MONTHS, OR (2) A LESSER PERIOD AS YOU MAY REQUEST, OR (3) A LONGER PERIOD AS YOU AND THE MOBILEHOME PARK MANAGEMENT AGREE. YOU HAVE A RIGHT TO REVIEW THIS AGREEMENT FOR THIRTY (30) DAYS BEFORE ACCEPTING OR REJECTING IT. 1F YOU SIGN THE RENTAL AGREEMENT YOU MAY CANCEL THE RENTAL AGREEMENT BY NOTIFYING THE PARK MANAGEMENT IN WRITING OF THE CANCELLATION WITHIN SEVENTY-TWO (72) HOURS OF YOUR EXECUTION OF THAT AGREEMENT. IT IS UNLAWFUL FOR A MOBILE HOME PARK OWNER OR ANY AGENT OR REPRESENTATIVE OF THE OWNER TO DISCRIMINATE OR RETALIATE AGAINST YOU BECAUSE OF THE EXERCISE OF ANY ORD. 95-31 June 20, 1995 -30- 1! RIGHTS YOU MAY HAVE UNDER THE COUNTY MOBILEHOME ORDINANCE, OR BECAUSE OF YOUR CHOICE TO ENTER INTO A RENTAL AGREEMENT WHICH IS SUBJECT TO THE PROVISIONS OF THAT ORDINANCE." (d) The notice described in the previous subsection shall contain a place for the mobilehome owner or prospective mobilehome owner to acknowledge receipt of the notice and shall also contain an acknowledgement signed under penalty of perjury by the park owner or manager that the notice has been given to the mobilehome owner or prospective mobilehome owner in accordance with the previous subsection. A copy of the notice executed by the park owner or manager shall be provided to the mobilehome owner or prospective mobilehome owner. (e) Pursuant to Civil Code section 798.17, the provisions of this article regulating the amount of space rent which a park owner may charge for a mobilehome space shall not apply to any tenancy created by a rental agreement which is in excess of 12 months in duration. If a rental agreement subject to Civil Code section 798.17 expires or is terminated and a new agreement is not entered, the last space rent charged under the provisions of the previous rental agreement shall be space rent charged for the mobilehome space, and the space rent for that mobilehome space may be increased only in accordance with the provisions of this chapter. (Ord. 95-31, § 2.) Article 540-2.16 Administration and Enforcement 540-2.1602 Administration fee. (a) Imposition. A rent stabilization administrative fee shall be imposed upon each mobilehome space subject to the rent stabilization requirements of this chapter. Said fee is imposed for the purpose of funding or defraying all costs of administering and enforcing the requirements of this chapter, and may include fees paid for hearings and other proceedings under this chapter unless otherwise collected. (b) Amount. The County Administrator shall report to the Board of Supervisors not less than once each fiscal year, his recommendation regarding the amount of the fee necessary to pay the costs of administering this chapter. The amount of the fee shall be as determined by resolution of the Board of Supervisors. The fee shall not exceed the amount reasonably necessary to administer and enforce the requirements of this chapter. (c) Payment. The park owner shall pay the fee for all of the mobilehome ORD. 95-31 .lune 20, 1995 -31- spaces in a park upon which the fee is levied within forty-five days of mailing of the billing. (d) Proration. The County Administrator may allow the payment of prorated fees if a mobilehome space is subject to the rent stabilization requirements of this ordinance for a period of nine months or less of the year for which the fee is levied. (e) Payment by mobilehome owners. A park owner may pass through thirty-five percent of the administration fees assessed against the mobilehome spaces in the park to mobilehome owners. The portion of the fee to be passed through shall be apportioned equally among the affected mobilehome spaces. Sixty-five percent of the fee must be borne by the park owners and may not be passed through in any manner to the mobilehome owners. (f) Required information. The Rent Review Officer may require a park owner to provide any and all information reasonably required by the Rent Review Officer to determine and verify the amount of the administrative costs chargeable to a park owner. Upon ten (10) days' written request by the Rent Review Officer, the park owner shall provide any and all information reasonably required by the Rent Review Officer to determine and verify the amount of the administrative costs chargeable to a park owner. (Ord. 95-31, § 2; Civ.Code, § 798.49.) 540-2.1604 Regulations. The Rent Review Officer may adopt rules and regulations consistent with the provisions of this chapter as necessary or convenient for the interpretation, administration and proper implementation of its requirements. (Ord. 95-31, § 2.) 540-2.1606 No waiver. Any provision, whether oral or written, in or pertaining to a rental agreement whereby any provision of this chapter is waived or modified, is against public policy and void. (Ord. 95-31, § 2.) 540-2.1608 Remedies and penalties. In addition to those remedies and penalties set forth elsewhere in this chapter, the following remedies and penalties shall apply: (a) Award by Rent Review Officer. When a Rent Review Officer finds that a park owner has demanded, received, or retained space rent from any mobilehome owner to which the park owner is not entitled, the Rent Review Officer to the extent allowed by law may award any actual monetary damages and costs incurred by the ORD. 95-31 June 20, 1995 -32- mobilehome owners as a result of the space rent demanded, received, or retained by the park owner. In no event shall a Hearing Officer or court award damages where a park owner has cured an alleged mistake within fifteen (15) days of notice of the alleged mistake from the Rent Review Officer. (b) Court decision. When a court in reviewing a decision of the hearing Officer finds that a park owner has demanded, received, or retained space rent to which the park owner is not entitled, the court may, to the extent allowed by law, award costs and reasonable attorney's fees to the mobilehome owner as a result of space rent demanded, received, or retained, by the park owner. (Ord. 95-31, § 2.) 540-2.1610 Review of ordinance by Board of Supervisors. If a park owner reports in writing to the Director of Community Development the occurrence of a vacancy rate of five percent among the mobilehome spaces in the mobilehome park owned by such park owner in the preceding calendar month, the Director of Community Development shall track the vacancy rate for each and all mobilehome parks for the next six months, and if the vacancy rate for all mobilehome spaces in all the mobilehome parks in the unincorporated area exceeds five percent for each of the six months, the Director of Community Development shall promptly report such occurrence to the County Administrator who shall schedule the report for consideration by the Board of Supervisors at a regular or special meeting called for such purpose. Upon receipt of the report the Board shall review the report and the effectiveness of this Chapter in addressing the problems giving rise to its enactment and take appropriate legislative action thereon. Notice of the time and place of Board of Supervisors review shall be published a least ten days prior to said date in a newspaper of general circulation in the County. In addition, notice shall be posted in a public place within each mobilehome park. (Ord. 95-31, § 2.) SECTION III. SEVERABILITY. This ordinance shall be liberally construed to achieve its purposes and preserve its validity. If any provision or clause of this ordinance or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are declared to be severable and are intended to have independent validity. SECTION IV. PREEMPTION. Nothing in this ordinance is intended, and should not ORD. 95-31 .lune 20, 1995 -33- r be deemed, to excuse or prevent compliance with any State or federal law. If any provision of this ordinance is found by a court of competent jurisdiction to be preempted by any applicable State or federal law, the Board of Supervisors declares that its intent is for such provision to be severable from the remainder of the ordinance, and the remainder of the ordinance is to be given effect in accordance with the provisions of Section III of this ordinance. In particular, should the measure known as the "Mobilehome Rent Assistance, Mobilehome Rent Control Restrictions, Initiative Statute" be adopted at a statewide election in 1996, the measure's mandated rent increase and rent reduction limitations (Measure's proposed Civil Code section 798.46.2) shall be utilized to allow the continued administration and implementation of this ordinance in lieu of conflicting provisions contained herein. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days of passage shall be published once with the names of the Supervisors voting for and against it in the CONTRA COSTA TIMES , a newspaper published in this County. PASSED on June 27, 1995 , by the following vote. AYES: Supervisors Rogers , Smith, DeSaulnier, Torlakson and Bishop NOES: None ABSENT: None ABSTAIN: None ATTEST: Phil Batchelor, Clerk, of the Board of Supervisors and County Adminis for By: � D uty oard hair [SEAL] LTF.19AAord620.95 ORD. 95-31 ,lune 20, 1995 -34-