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Home My WebLink About04-18-2017 Items 9 and 10, JenkinsLaw Office of STEWART D. JENKINS Municipal Law, Estate Planning & Family Law San Luis Obispo, California April 17, 2017 Heidi Harmon City Hall, 990 Palm Street San Luis Obispo, CA 93401 — RFC EIVEi7 APR 17 2017 SLO CITY CLERK COUNCIL MEETING: "TE,v1 NO.: Re: SLO City Council Meeting of April 18, 2017; Agenda Items 9 and 10 — Initiative to repeal Chapter 15.10 of the SLOMC and to replace it with New Chapter 15.10 entitled NONDISCRIMINATION IN HOUSING. Mayor Mayor Harmon: Before urging you to fulfill the People's will by adopting the initiative measure on your Council Agenda Tuesday, the proponents thought you would appreciate receiving a short but detailed analysis of the points addressed in the "impact" report issued by Ms. Dietrick and Mr. Codron. Permit us to suggest at the outset that the 26 -page report obscures rather than explains the effect of adopting the initiative measure except in one respect. And that is that aspect appearing on page 3, ¶ 2, explaining that adoption of an initiative by the voters, or by the council in lieu of holding a special election, leaves the voters in control of whether ordinances repealed may be re -adopted, and whether ordinances adopted in the measure may be repealed. "The purpose of section 9217 is to protect the electorate's constitutional right to initiative by preventing successful initiatives from being undermined through amendment by hostile legislative bodies." MHC Financing Ltd. Partnership Two v City of Santee (2015) 125 CA4th 1372 (Citing De Vita v. County of Napa (1995) 9 Ca1.4th 763, 788. The reserved constitutional power of voters to repeal and to adopt an ordinance requires that before a city substantially repeals an initiative adopted law or readopts an initiative repealed law, the proposition must first be presented to the voters by the Council pursuant to Elections Code, Sections 9200 and 9222. See also Article II, immediately after the Declaration of Rights, of the California Constitution. This "lock box" for voter generated legislation does not just protect the electorate from a hostile city government; it protects Council Members from being misled into actions that are strenuously opposed by the City's residents. Now, permit us to provide you with a short inoculation against the vague and unjustified concerns raised in Ms. Dietrick's and Mr. Codron's 26 -page report. Inclusionary Housing Requirements of SLCMC § 17.91 applies to developers of new housing units. There is no discrimination inherent in the inclusionary housing program against those able to afford a home. To the extent that this compulsory program works, it compels deveIopens to plan into their projects some affordable homes, which the developer sells with the deed restrictions. The developer receives credits against other requirements, or pays the city so that it can build subsidized dwellings. To the extent that dc�)ers are required to price some of their new structures for the working poor, this program does not discriminate against those otherwise able to afford a home. Nor does it discriminate against those who are otherwise unable to afford a home. Mobile Home Stabilization Ordinance of SLCMC § 5.44 applies to owners of mobile home parks setting limits on the space rent underneath the mobile home generally owned by the resident. To the extent that a mobile home is classified as a "dwelling unit," rather than as a vehicle, there is no discrimination in this program against the residents of mobile homes based on their status as an owner or renter of the rdvi�elling. It is the ground space rent under the dwelling, which is owned by another person, that is limited to increase based on the cost of living index. This limitation on the space rent is uniform to all mobile home park owners and is unrelated to whether the owner of the park is a home owner or renter, aged, young, disabled, gay or straight or any of the other category of persons the initiative measure protects. Mobile Home Park Conversion Ordinance of SLCMC § 5.45 The same analysis applies here as to the mobile home stabilization ordinance because the compulsory duties apply to the park owner regardless of his/her/their status as an owner or renter, income, or other categories of persons protected by the initiative measure. Residential Rental Business License and associated Tax. New tax measures to collect revenue for the general fund must be put before the electors for approval by the voters. Proponents are aware that prior to adoption of the RHI ordinance Landlords were assessed and paying business license taxes. Had the Rental Housing Inspection ordinance levied a new tax, the City would have been required to submitted that tax to the voters for approval. The report states that: "Currently, the City collects ... $200,000 per year in business tax associated with residential rental properties." The City was presumably doing so under separate authority that existed prior to adoption of the Rental Housing Inspection ordinance in May of 2015 in order for that to be occurring "currently." This would be particularly true with suspension of the RHI ordinance in 2 February. It would be improper to secure a City revenue source using unconstitutional programs. Adoption of the initiative measure should have no effect on collection of an otherwise preexisting lawful business license tax. Page 11 of Ms. Dietrick's and Mr. Codron's report raises a perplexing suggestion that the City's collection of business license taxes from Landlords might be cut off by the non- discrimination language in the initiative. Given that business licenses are imposed on those running a business regardless of their ability to own or their inability to own a home; it is clear that this concern should be viewed as groundless. Homestay Regulations. Permit us to point out that the Section 17.08.140.E.6 is not a compulsory program requiring any home owner to seek to use any portion of their home as a temporary lodging (the technical term applied to hotel and motel businesses, defined separately in the Civil Code as different from rented "dwellings"). Moreover, in every rental agreement and lease agreement that the proponents have ever had the privilege to review, the Landlord seeks a covenant by the tenant not to sublet without advanced written approval of the Landlord. Accessory Dwelling Unit Regulations. All that is needed to pierce the obfuscation of this aspect covered in Ms. Dietrick's and Mr. Codron's report is to try to imagine a circumstance in which a Landlord would permit a renter to seek a permit to build a secondary unit on the Landlord's property, or what financial advantage the renter would gain building a structure that would benefit only the Landlord. The thought is too farfetched for sober consideration. Permit us to point out that Zoning Regulation 17.21.010.C.4 is not a compulsory program requiring owner -occupants or any home owner to seek permits to construct and permit occupancy of a secondary dwelling on their property. The inspection during and at the conclusion of construction is unrelated to any status of the owner, and the requirement that the owner occupies the property is unrelated to any status protected by the initiative measure. Potential City liability upon adopting the People's findings is a mirage. At the bottom of page 4 and top of page 5, Ms. Dietrick and Mr. Codron worry about the finding that the Rental Housing Inspection ordinance requiring "mandatory intrusive inspections inside homes in San Luis Obispo violating the privacy of City residents under the First, Fourth and Fifth Amendments of the U.S. Constitution." We hope that you will recall that the proponents of the initiative warned the City Council and the City Officers in early 2015 about those constitutional impairments inherent in the Rental Housing Inspection ordinance; and our prediction that litigation would be brought against the City because of its unconstitutional nature were borne out as soon as enforcement was conducted. We humbly advise, suggest and predict that the best way for 3 the City to insulate itself against further future litigation is to adopt the initiative measure on its own accord, rather than waiting for the voters to do. The City has just settled the litigation proponents had predicted. We understand that the San Luis Obispo Property and Business Owner's Association suit brought against the City on constitutional grounds has reached a settlement favorable that satisfied the plaintiffs, and potential liability is no longer a factor. Thank you for your attention to this brief note. Honor the will of the thousands of voters who signed the initiative petition. Please move forward on April 18, 2017, to adopt the measure's proposed ORDINANCE ... ABOLISHING CHAPTER 15.10 OF THE SAN LUIS OBISPO MUNICPAL CODE ENTITLED "RENTAL HOUSING INSPECTION" AND ADOPTING A NEW CHAPTER 15.10 ENTITLED "NON-DISCRIMINATION IN HOUSING." Proponents Jenkins Sincerely, Dan Carpenter Da zgllt C: Ms. Christine Dietrick, City Attorney Mr. Michael Codron, Community Development Director Ms. Carrie Gallagher, City Clerk Duplicate Originals delivered to the rest of Council 4