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ORDINANCE NO.
MC" RfiS
AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER
8.90 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO MOBILE HOME
PARK RENT STABILIZATION.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
SECTION 1.
Chapter 8.90 of the San Bernardino Municipal
Code is hereby amended to read as follows:
"8.90.010. Title.
This Chapter may be cited as the Mobile Home Park Rent
stabilization Ordinance of the City of San Bernardino, California.
8.90.020. statement of purpose.
A. Mobile home owners have a substantial investment
in their residences and appurtenances for which space is rented or
leased.
Al ternate sites for relocation of mobile homes are
difficul t to find due to the shortage of vacant spaces, the
restrictions of age, size, or style of mobile homes permitted in
many parks, and related to the installation of mobile homes,
including permits, landscaping and site preparation. Additionally,
the cost of moving a mobile home is substantial, and the risk of
damage in moving is significant.
The result of these conditions is the creation of a
captive market of mobile home owners and tenants.
This
immobili ty, in turn, contributes to the creation of a great
imbalance in the bargaining relationship between park owners and
mobile home park tenants in favor of the park owners.
B. Because mobile homes are often occupied by senior
citizens, persons on fixed income aad persons of low or moderate
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income, exorbitant rent adjustments fall upon these individuals
with particular harshness. The continuing possibility of
unreasonable space rental adjustments in mobile home parks
threatens to diminish the value of the investment of the mobile
home owners. Further, existing state law permits mobile home park
owners to require mobile home owners to make modifications to
their homes for reasons of aesthetics or conformity to park
standards that amount to capital improvements which would accrue
to the benefit of the park owner by potentially increasing the
market value of the park itself.
C. This Council finds and declares it necessary to
facili tate and encourage fair bargaining between mobile home
owners and park owners in order to achieve mutually satisfactory
agreements regarding space rental rates in mobile home parks.
Absent such agreements, this Council further finds and declares it
necessary to protect the owners and residents of mobile homes from
unreasonable space rental adjustments while simultaneously
recognizing and providing for the need of park owners to receive
a just and reasonable return on their property.
D. Administration of this Chapter shall be under the
general direction of the San Bernardino Mobile Home Board.
8.90.030. Application.
The provisions of this Chapter shall apply to all
mobile home residential rental spaces located within the City of
San Bernardino except if otherwise exempt from the provisions of
this title, as such exemptions are provided for hereinafter.
Nothing in this chapter shall be deemed to supersede any provision
of California Civil Code Section 798.15 et seq.
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8.90.040. Definitions.
In construing the provisions of this Chapter, the
following definitions shall apply:
A. "Landlord" means any owner, lessor, operator or
manager of a mobile home park.
B. "Rent" means the consideration, including any
bonus, benefit or gratuity, demanded or received by a landlord for
the use and occupancy, including services and amenities, of a
residential rental space.
C. "Residential rental space" means any mobile home
space occupied by any person other than the owner of the park for
payment of rent pursuant to an oral or written lease, or other
form of rental agreement.
D. "Tenant" means any person entitled to or proposing
to occupy such mobile home space pursuant to an oral or written
lease with the owner thereof, or pursuant to some other rental
agreement with the owner, lessor, operator or manager thereof.
E. "Consumer Price Index" or "C.P.I." means the Index
known as the "Consumer Price Index for all Urban Wage Consumers:
for the Los Angeles - Long Beach - Anaheim Area," (base year,
1967), and if published for the San Bernardino - Riverside _
Ontario Area for the year 1984, and thereafter. These documents
are published by the United States Department of Labor Bureau of
Labor Statistics.
F. "Mobile Home" 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. Except as provided
in Civil Code Section 799.48, mobile home does not include
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"recreational vehicle" as defined in Section 799.24 of the Civil
Code or a "commercial coach" as defined in Section 18218 of the
Health and Safety Code.
G. "Mobile Home Owner" or "Resident" means any person
entitled to occupy a mobile home dwelling space pursuant to
ownership thereof or a rental or lease agreement with the owner
thereof.
H. "Mobile Home Park Owner" or "Park Owner" means the
owner, lessor, operator, manager or designated agent thereof of a
mobile home park; sometimes referred to as "owner."
1. "Mobile Home Space or Space" means the site within
a mobile home park intended, designed, or used for the location or
accommodation of a mobile home and any accessory structures or
appurtenances attached thereto or used in conjunction therewith.
J. "Rent Adjustments" means any rent increase or
decrease demanded of or paid by a tenant, including any reduction
in housing services without a corresponding reduction in the
monies demanded or paid for rent.
K. "Rental Agreement" means an agreement between a
mobile home park owner and tenant establishing the terms and
condi tions of a tenancy in a mobile home park. A lease is a
rental agreement.
L. "Space Rent" means the consideration, including
any bonuses, benefits, or gratuities demanded or received for and
in connection with the use or occupancy of a mobile home space
within a mobile home park, or for housing services provided and
security deposits, but exclusive of any amounts paid for the use
of the mobile home as a dwelling unit. The use or occupancy of a
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mobile home space shall include the exercise of all rights and
privileges and the use of facilities, services and amenities
accruing to the residents thereof. "Space Rent" shall not include
any separately billed utility fees and charges for natural gas or
liquid propane gas, electricity, water, cable television, garbage
or refuse service and sewer service.
M. "Tenancy" means the right of a tenant to the use
of a mobile home site wi thin a mobile home park on which to
locate, maintain, and occupy a mobile home, site improvements and
accessory structures; for human habitation, including the use of
the services and facilities of the mobile home park.
N. "Vacancy" means the condition deemed to have
occurred upon the removal of any mobile home from a mobile home
park.
8.90.050. Exemptions from coverage.
The provisions of this Ordinance shall not apply to the
following:
A. New Space or First Time Space Exemption - Space
rent or space rent adjustments for new mobile home spaces whether
in newly constructed parks or such spaces first rented after the
effective date of this Chapter shall be exempt from the provisions
of this Chapter to the extent that those rents would have been
controlled had the spaces been previously occupied. There shall
be no prospective exemption in such circumstances, however, as to
rents that may be adjusted annually under this Chapter after a
space is first rented. In such cases, the base date for purposes
of determining permissible future rent adjustments shall be the
date of first rental or conveyance.
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B. Vacancies
1. If the mobile home space is voluntarily
vacated by the tenant, or vacated pursuant to California Civil
Code Section 798.56, the landlord may adjust the rental rate to
any amount as provided in Subsection A of this Section 8.90.050.
2. Subject to the provisions of Civil Code
Section 798.17, if the mobile home is sold and is to remain on
site, the landlord may only increase the rental rate to the new
owner by the amount which would have been allowed pursuant to this
Chapter if the mobile home had not been sold.
3. Upon the re-renting of a rental space which
has not been voluntarily vacated by the previous tenant, the base
rent and the base rent month shall remain unchanged, and the
maximum rent which may be charged shall be the same as if the
vacancy had not occurred.
4. A vacancy is voluntary if, the tenant
voluntarily and without coercion by the landlord vacates the
rental space or, if the tenant dies and there is no surviving
cohabitant.
5. All other vacancies are involuntary. When a
rental space which has been involuntarily vacated is re-rented,
the landlord shall, not more than ten (10) days after such re-
renting, give written notice to the new tenant of the base rent
and the base rent date of the previous tenant and that said base
rent and base rent date are applicable to the new tenant.
C. Space Rent Agreement Exemption Any rental
agreement in excess of twelve-months duration which also meets all
criteria specified by Section 798.15 and Section 798.17 of the
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California Civil Code, including, but not limited to, the tenant
notification requirement within the first paragraph of such rental
agreement, shall be exempt from the space rent ceiling provisions
of this Chapter, but only during the term of such rental agreement
or one or more uninterrupted, continuous extensions thereof. If
such rental agreement is not extended and no new rental agreement
in excess of twelve-months duration is
entered into, then the last rental agreement shall be the base
rent for purposes of this Chapter.
D. Lease Agreement Exemption - Section 8.90.080 of
this Chapter does not apply to any residential rental space for
the rental of which the mobile home park owner and the tenants
have mutually agreed to enter into a lease which conforms to the
provisions of California Civil Codp~Section 798.15 et seq.
E. Before any rental agreement or lease agreement in
excess of 12 months is executed by an existing or prospective
tenant the landlord must (1) offer the tenant the option of a
rental agreement for a term of 12 months or less, (2) provide the
tenant with a copy of the Mobile Home Park Rent Stabilization
Ordinance, and (3) inform the tenant both orally and in writing
that if the tenant signs a lease agreement or rental agreement
with a term in excess of 12 months, the lease agreement or rental
agreement may not be subject to the terms and protections of the
Mobile Home Park Rent Stabilization Ordinance.
F. Violation - It is hereby made a violation of law,
punishable as a misdemeanor, for any person to perform any act of
duress, menace, or undue influence with the intent of thereby
obtaining the consent of any other person to enter into any lease
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for the occupancy of a residential rental space.
8.90.060. Registration
Wi thin sixty (60) calendar days after the effective
date of this Chapter, mobile home park owners are required to
register all mobile home parks and mobile home rental spaces
within such parks with the Board.
The initial registration shall include: the name(s),
business address(es), business telephone number(s) of each person
or legal entity possessing an ownership interest in the park and
the nature of such interest; the number of mobile home rental
spaces within the park; a rent schedule reflecting space rents
within the park on the effective date of this Chapter; a listing
of all other charges, including utilities not included in space
rent, paid by mobile home residents wi thin the park and the
approximate amount of each such charge; and the name and address
to which all required notices and correspondence may be sent.
The Board is hereby empowered to establish procedures
for requiring such re-registration as it deems necessary.
No park owner shall be eligible to receive any rent
ceiling adjustment as provided for under the provisions of this
Chapter unless such current registration as may then be required
for the mobile home park is on file with the Board at the time the
petition for the rent ceiling adjustment is filed.
The registration and re-registration requirements
provided for in this section, or which may be hereafter
established by the Board, shall apply to all mobile home parks
including those exempt from the space rent ceiling limitation by
reason of the existence of a valid space rent agreement.
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8.90.080.
Space rent ceiling or maximum allowable
space rent.
Beginning the first month which commences following the
day after the effective date of this Chapter, no mobile home park
owner shall charge space rent for any mobile home space in an
amount greater than the space rent in effect on December 31, 1988.
The space rent in effect on that date shall be known as the "space
rent ceiling."
If there was no space rent in effect on December 31,
1988, the space rent ceiling shall be the space rent that was
charged on the first date that space rent was charged after
December 31, 1988.
If a mobile home park is exempted from the application
of this Chapter by reason of the existence of a space rent
agreement and this agreement expires, the space rent ceiling for
that park shall be the space rent in effect on the date the
agreement expires.
8.90.90.
Space Rent ceiling adjustment
initial
adjustment.
A. No adjustment in space rent ceilings shall be
permitted except as provided for herein.
B. Permissive Adjustment - A park owner shall be
entitled to an initial permissive adjustment gross space rental
income equal to eighty percent (80%) of the percentage increase in
the Consumer Price Index (CPI) from the end of the base year
(1988) to the date of application for the adjustment.
The percentage adjustment in the CPI shall be
calculated by subtracting the cpr reported for December, 1989,
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from the most recently reported monthly CPI preceding the
application and then dividing this remainder by the December,
1989, CPI.
8.90.100.
Space rent ceiling adjustment
annual
adjustments.
Commencing in calendar year 1990, park owners shall be
entitled to the following annual adjustments.
A. permissive Adjustment - A park owner shall be
entitled to an annual permissive adjustment of gross space rental
income equal to eighty percent (80%) of the percentage adjustment
in the CPI from the date of the most recent initial or annual
adjustment to the date of application for the proposed adjustment.
B. Net Operating Income Adjustment
1. In the event a park owner believes he or she
does not receive a just and reasonable return on park property
after receiving the maximum permissive adjustment provided for
above, said park owner may upon payment of a filing fee
established by resolution of the Mayor and Common Council, file an
application with the Board for an adjustment of the space rent
ceiling, providing adequate justification for the proposed
increase.
2. If the Board shall designate a form for the
filing of such petition, such petition shall be filed upon such
form. If no such form shall be designated, such petition shall be
in writing verified by the applicant, and shall contain the names,
address and telephone number of the applicant, the name and
address of the tenant of each rental space which would be affected
if the petition were granted, a statement of the facts giving rise
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to the petition for an NOI adjustment in sufficient detail that,
if established, such facts would demonstrate the existence of a
decrease in the NOI warranting such NOI adj ustment. Wi thin thirty
(30) working days after the petition has been submitted to the
Board for filing, petitioner shall be given notice of the time and
place of the hearing, which notice together with a copy of the
petition shall be served upon or mailed to each tenant of a rental
space which would be affected by the NOI adjustment if granted.
When a declaration of service has been submitted to the Board, the
petition for an NOI adjustment shall be deemed filed.
3. A park owner shall be entitled to an
adjustment of the space rent ceiling so as to enable the park
owner's Net Operating Income (NOI) for the subsequent year to be
increased by a rate which, when added to the maximum permissible
adjustment provided for above will give the park owner a just and
reasonable return on park property.
C. No annual adjustment shall become effective if a
previous annual adjustment became effective within the previous
twelve (12) months unless approved by the Board pursuant to
Section 8.90.100 B.
8.90.105 Required Certification on Rental Adjustment
Notice.
The Board shall have the right to deny any rent
adjustments under this Chapter if the owner:
A. Has failed to comply with any provisions of this
Chapter and/or regulations issued thereunder by the Board or the
Mayor and Common Councilor any other federal, state or City law,
ordinance or regulation concerning mobile home parks.
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B. Has failed to comply substantially with any
applicable state or local housing, health or safety law.
8.90.110. Mobile Home Rent Board establishment and
powers.
A. Establishment - The Mobile Home Board of the City
of San Bernardino is hereby established.
B. Composition - The Board shall consist of five (5)
regular members and two (2) alternate members. One regular member
shall be a space tenant who resides in the City of San Bernardino;
one member shall be a mobile home park owner, operator, manager or
designated agent of a mobile home park located in the City of San
Bernardino. The two alternate members shall be a space tenant
from a different mobile home park other than the regular space
tenant member and an owner, operator, manager or designated agent
from a different mobile home park than the regular owner member.
The remaining three (3) members shall be residents of the City of
San Bernardino who are not elected officials, or employees,
relatives of elected officials of t~e City of San Bernardino, and
who are neither tenants, owners, operators, managers or designated
agents of mobile home parks and who have no conflicts of interests
due to relationship with same. Candidates for membership of the
Board shall submit a verified statement listing all interests in
any real property or mobile home as defined in Section 798.3 of
the California Civil Code, including ownership, individually,
jointly, legal or equitable, and all sales of such property, or
instruments secured by such property, within thirty (30) days of
seeking appointment to the Board.
III
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C. Nomination and Appointment - The regular space
tenant member and his or her respective alternate members shall be
selected by the Mayor and Common Council from a list of
nominations, if any, for the Board submitted by mobile home
residents. The regular mobile home park owner member and his or
her respective alternate member shall be selected by the Mayor and
Common Council from a list of nominations, if any, supplied by a
general association on behalf of the various mobile home park
owners associations. The Mayor and Common Council shall nominate
and appoint the three remaining regular Board members. All
members of the Board shall be selected in accordance with
applicable City procedures.
D. Term - Each regular member of the Board shall
serve for a term of two years except as otherwise provided herein.
For the first Board, the one (1) space tenant member and the one
(1) owner member and three (3) at-large resident members shall be
appointed for three (3)-year terms. Thereafter, the successors
shall be appointed for terms of two (2) years. Each regular
member shall hold office until a new member has been duly
appointed. Each alternate member of the Board shall serve for a
term of two (2) years except as provided herein. Each alternate
member shall hold office until a new alternate member has been
duly appointed. If a vacancy occurs or an office becomes vacant
other than by expiration of a term, it shall be filled by
appointment as previously prescribed herein for the unexpired
portion of such member's term. Notwithstanding the above
provisions of this paragraph, a member may be removed, at any
time, with cause, by a majority vote of the Mayor and Common
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Council. Further notwithstanding the above provisions of this
paragraph, any member who is absent without sufficient cause from
three (3) consecutive meetings of the Board which such member was
required to attend shall be deemed to have vacated his office.
E. Meetings - To fulfill its function, the Board
shall meet as often as it deems necessary, but at least one
regularly scheduled public meeting shall be held every ninety (90)
days; or, except as otherwise set forth herein, within thirty (30)
days of any request for hearing or arbitration held hereunder,
whichever is earlier. All members of the Board, whether regulars
or alternates, shall be required to attend all Board meetings and
hearings unless such member has been disqualified from
participation. All meetings of the Board shall be conducted in
accordance with the provisions of the Ralph M. Brown Act.
(Government Code ~54950 et seq.)
F. Voting - The affirmative vote of three (3) members
of the Board is required for a decision, including all motions,
regulations, and orders of the Board. Alternate members may also
participate in the Board proceedings but shall have voting
privileges only when acting in the stead of an absent regular
member.
G. Quorum - Three (3) Board members shall constitute
a quorum.
H. Powers and Duties of Board - The Board shall
undertake and have the following duties, responsibilities, and
functions, together with all powers reasonably incidental thereto:
1. Adoption of Rules and Regulations. Subject
to the approval of the Mayor and Common Council the Board may make
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and adopt its own administrative rules and regulations as may be
necessary to effectuate the purposes and policies of this Chapter
and to enable the Board to carry out its powers and duties
thereunder, so long as such rules and regulations are consistent
with the laws of the State, this Chapter, and any guidelines
adopted by the Mayor and Common Council. Any such rules and
regulations shall be reduced to writing and be on file with the
Director of the Board at all times.
2. Director. The Mayor with the approval of the
Common Council shall appoint a Mobile Home Board Director,
hereinafter referred to as "The Director", to administer and carry
out to the fullest extent possible the expressed intent and
purposes of this Chapter. The Director shall be a full-time
employee of the City of San Bernardino and shall be a Division
Head of the City Administrator's Office. The Director shall be
responsible for the day-to-day operations of the Board.
In the alternative the City may contract with the
Economic Development Agency of the City of San Bernardino to
provide a director. If so, the director shall be a full-time
employee of the Agency, and shall be a division head under the
Agency Administrator of the Economic Development Agency.
It shall also be the Director's responsibility to
provide Board members with copies of all current federal, state,
and city, laws, codes, ordinances and regulations referred to in
this Chapter.
3. Maintenance of Records. The Director shall
keep a record of the proceedings of the Board, which shall be open
for inspection by any member of the public.
DAB/ses/Mobile-5.ord 15 November 9, 1992
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4. Appointment of Committees, Mediators or
Hearing Officers. The Board may appoint committees, mediators
and hearing officers to hear matters on which testimony may be
taken, which committees, mediators and hearing officers shall
report to the Board the findings and results of any such hearing
on a matter referred to such committee or person upon request.
5. Conduct Studies and Investigations. The
Board shall have the power to make such studies, surveys, and
investigations, conduct such hearings, and obtain such information
as is necessary to carry out its powers and duties, and may
authorize individual members to do so.
6. Require Registration. The Board shall
require such registration of mobile home parks as the Board may
deem necessary to enable it to carry out its duties.
7. Approve Rent Adj ustments. The Board may
approve such adjustments in rent ceilings as provided for in this
Chapter.
8. Evaluation. The Board shall render at least
semi-annually a comprehensive written report to the Mayor and
Common Council concerning the Board's activities, hOldings,
actions, results of hearings, and all other matters pertinent to
this Chapter.
9. Related Duties. The Board shall undertake
such other related duties as may be assigned by the Mayor and
Common Council.
I. Compensation - Each member of the Board shall be
enti tled to such compensation as may be set by the Mayor and
Common Council, including reimbursement for reasonable expenses
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incurred in the performance of their official duties. The Board
shall not have any authority to expend or authorize the
expenditures of any public funds, except with the prior express
approval of the Mayor and Common Council.
J. Staff - The City Administrator shall provide all
administrative staff necessary to serve the Board. The City
Administrator shall provide a secretary to serve as secretary of
the Director and shall be responsible for the maintenance of all
records of the Board. The City Attorney or his/her designee shall
act as legal counsel to the Board.
8.90.120. Petition by tenant.
A. Any tenant of a mobile home rental space affected
by this Chapter, upon payment of such fling fee as shall be duly
established, may petition the Board for a determination whether a
proposed or actual action by the landlord of such tenant is legal,
valid, and within the terms of this Chapter. If the Board shall
establish forms for such petitions, the petition shall be prepared
and submitted upon such form. In the absence of such designated
form, the petition shall contain the name, address and telephone
number, if known, of the landlord, owner, manager, or other person
authorized to represent the owner of the mobile home park, a brief
statement of the facts giving rise to the request for
interpretation or determination, and a statement that a copy of
the petition has been personally served or mailed to the owner,
manager or other person authorized to accept and receive notices
to the landlord.
B. In the event that a petition by tenant(s) results
in a downward adjustment in the space rent, the park owner shall
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not be obligated to adjust any rent except the rent of those
tenant(s) who signed the petition and paid the established filing
fee.
8.90.130. Petition by landlord.
Any landlord of a mobile home park affected by this
Chapter may, upon payment of such filing fee as shall be duly
established, petition the Board for a determination whether a
particular course of action by said landlord is allowable, valid
and in conformity with this Chapter. The Board may designate
forms for the filing of such petitions. In the event that no such
form has been designated, the petition shall be in writing, and
shall contain the name, address and telephone number, if any, of
the person requesting the interpretation or opinion, the name and
address of each tenant of a rental unit owned or managed by the
person requesting the interpretation or opinion, if it is intended
that such interpretation or opinion affects such rental unit, a
brief statement of the facts giving rise to the request for
interpretation or opinion, and a statement that a copy of such
petition has been personally served upon or mailed to each such
tenant who might be affected thereby.
8.90.150. Conduct of Board proceedings.
A. Each party to a hearing may have assistance in
presenting evidence or in setting forth by argument his position,
from an attorney or such other person as may be designated by said
party.
B. Formal rules of evidence shall not apply in Board
proceedings; however, all oral testimony offered as evidence shall
be under oath.
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C. In the event that any party shall fail to appear
at the time and place set for hearing of a petition, the Board may
hear and review such evidence as may be presented, and may make
such findings and decisions as shall be supported by the evidence
presented.
D. The Board shall base its decision on evidence
presented at the hearing and may consider any evidence resulting
from independent investigations of the Board or its members
pursuant to ~8.90.110.H.5 of this Chapter, where such evidence has
been disclosed to the parties.
E. The Board, shall make findings based on the
evidence as to each fact relevant to the Board's decision on the
peti tion. The decision of the Board shall be based upon the
findings, and shall:
1. Determine whether the action or proposed
action of a landlord is valid, permitted, and in conformity with
this Chapter; and/or
2. Determine whether an adj ustment is necessary,
and if so, the nature and amount of relief to be granted or
authorized to the landlord or homeowner.
E. The Board or its Director shall meet to consider
the evidence and arguments of the parties no later than thirty
(30) days after the matter has been submitted for decision and
shall make its final decision at the conclusion of its
deliberations. No rent adjustment will be authorized unless
supported by the evidence. A notice of the Board's decision shall
be sent to each party to a proceeding. Unless good cause to the
contrary shall appear, each decision of the Board shall apply on
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a space by space basis, taking into account the possibility of
differences in base rent, services provided, and other facts
differentiating rental spaces.
F. Nothing in this Chapter, or in any decision of the
Board, shall require any landlord to raise rents or charges to
tenants. If an adjustment in the maximum permissible rent is
authorized, a landlord may raise rents or charges by a lesser
amount, or for a lesser time than is authorized by the decision of
the Board.
G. The findings and decisions of the Board shall be
a final administrative action. There shall be no right of appeal
to the Mayor and Common Council. Such findings and decisions
shall be public records, and may be certified by the secretary of
the Board, if any, or by the City Clerk. Each decision shall
set forth a notice as required by California Government Code
Section 1094.6. The decision shall become effective upon mailing
to the party unless otherwise indicated at the hearing. This
section supersedes Chapter 2.64 of the San Bernardino Municipal
Code.
8.90.160. Priorities.
All petitions for hearings shall be heard in order of
date filed.
8.90.170. Rent adjustment regulations.
For purposes of determining allowable rent adjustments,
the rules and regulations set forth in this section shall be used.
In authorizing individual adjustments of the rent ceilings, the
Board, its hearing officers and the Director shall consider the
purposes of this Chapter and the requirements of law. The Board
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may consider all relevant factors including: increases or
decreases in operating and maintenance expenses, the extent and
cost of utili ties paid by the owner, necessary and reasonable
capi tal improvements of the park as distinguished from normal
repair, replacement and maintenance, increases or decreases in
ameni ties, equipment, insurance or services, substantial
deterioration of the park other than as a result of ordinary wear
and tear, failure on the part of the owner to provide adequate
repair, housing services or failure on the part of the owner to
comply with applicable housing, health and safety codes, federal
and state income tax benefits, the speculative nature of the
investment, whether or not the property as acquired or is held as
a long term or short term investment, the owner's rate of return
on investment, the owner's current and base year Net Operating
Income and any other factors deemed relevant by the Board, its
Director, or its hearing officer in providing the owner a fair
return. A sale of a mobile home park by the owner, subsequent to
June 3, 1991, which results in a Proposition 13 tax increase,
cannot be a factor to be considered in a request for a rent
adjustment by the new owners.
8.90.180. Net operating income.
Net Operating Income (NOI) shall be gross income less
allowable operating expenses.
8.90.190. Gross income.
Gross Income equals:
A. Gross rents, computed as gross rental income at
100% paid occupancy, plus
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B. Interest from rental deposits, unless directly
paid by the landlord to the tenants.
C. Income from miscellaneous sources, including, but
not limited to, laundry facilities, vending machines, amusement
devices, cleaning fees or services, garage and parking fees, plus
D. All other income or consideration received or
receivable for or in connection with the use or occupancy of
rental units,
E.
debts to the
control.
Minus uncollected rents due to vacancy and bad
extent that the same are beyond the landlord's
8.90.200. Allowable Operating Expenses.
Operating expenses shall include the following:
A. Real property taxes,
B. Utility costs,
C. Management fees actually paid if management
services are contracted for. If all or a portion of management
services are performed by landlord, management fees shall include
the reasonable value for such landlord performed services.
Management fees greater than five percent (5%) of gross income are
presumed to be unreasonable. Such presumption may be rebutted.
D. Other reasonable management expenses, including,
but not limited to, necessary and reasonable advertising,
accounting and insurance.
E. Normal repair and maintenance expenses, including,
but not limited to, painting, normal cleaning, fumigation,
landscaping, and repair of all standard services, including
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electrical, plumbing, carpentry, furnished appliances, drapes,
carpets, and furniture.
F. Owner-performed labor, which shall be compensated
at the following hourly rates upon documentation of the date,
time, and nature of the work performed:
1. At the general prevailing rate of per diem
wages for the San Bernardino area, for the specific type of work
performed, as determined and published by the Director of the
Department of Industrial Relations of the State of California
pursuant to Section 1770 et seq of the Labor Code of the State of
California.
2. If no such general prevailing rate has been
determined and published, then a cost per hour for general
maintenance and a cost per hour for skilled labor as established
by resolution of the Mayor and Common Council.
Notwithstanding the above, a landlord may receive
greater or lesser compensation fer self-labor if the landlord
proves by clear and convincing evidence that the amounts set forth
above are substantially unfair in a given case.
Owner performed labor in excess of 5% of Gross
Income shall not be allowed unless the landlord proves by clear
and convincing evidence that such excess labor expenses resulted
in proportionately greater services for the benefit of tenants.
G. License and registration fees required by law to
the extent same are not otherwise paid by tenants.
H. The yearly amortized portion of capital expenses
including financing costs, computed in accordance with any useful
life table utilized by the Internal Revenue Service.
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I. Reasonable attorneys fees and costs incurred as
normal and reasonable costs of doing business, including, but not
limited to, good faith attempts to recover rents owing and good
faith unlawful detainer actions not in derogation of applicable
law, to the extent same are not recovered from tenants.
8.90.210. Operating expenses not allowable.
Operating expenses shall not include the following:
A. Avoidable and unreasonable or unnecessary
expenses;
B. Mortgage principal and interest payments;
C. Lease purchase payments and rent or lease payments
to landlord's lessor;
D. Penalties, fees or interest assessed or awarded
for violation of this or any other statute;
E. Attorneys fees and other costs incurred for
proceedings before the Board or in preparation for such
proceedings, or in connection with any civil actions or
proceedings against the Board, or a decision, ruling, or order of
the Board;
F. Depreciation of the real property;
G. Any expenses for which the landlord has been
reimbursed by any security deposit, insurance settlement, judgment
for damages, settlement, or any other method.
8.90.220. Presumption of fair base year net operating
income.
Except as provided in Section 8.90.230, it shall be
presumed that the Net Operating Income produced by a park owner
during the base year, provided a fair return on property. Owners
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shall be entitled to maintain and increase their Net Operating
Income from year to year in accordance with Sections 8.90.080. and
8.90.100.B.
8.90.230. Rebutting the presumption.
It may be determined that the base year net operating
income yielded other than a fair return on property, in which
case, the base year Net Operating Income may be adjusted
accordingly. In order to make such a determination, the Board or
its designee must make at least one of the following findings:
A. The owner's operating and maintenance expenses in
the base year were unusually high or low in comparison to other
years. In such instances, adjustments may be made in calculating
such expenses so the base year operating expenses reflect average
expenses for the property over a reasonable period of time. The
hearing officer shall consider the following factors:
1. The owners made substantial capital
improvements during 1988 which were not reflected in the rent
levels on the base date.
2. Substantial repairs were made due to damage
caused by natural disaster or vandalism which management has taken
appropriate action to reduce.
3. Maintenance and repair were below accepted
standards so as to cause significant deterioration in the quality
of housing services.
4. Other expenses were unreasonably high or low
notwithstanding the following of prudent business measures.
B. The rental rates on the base date
disproportionate due to enumerated factors below. In
were
such
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instances, adjustments may be made in calculating gross rents
consistent with the purpose of this Chapter.
1. The rental rates on the base date were
substantially higher or lower than in preceding months by reason
of premiums being charged or rebates being given for reasons
unique to particular units or limited to the period determining
the base rent.
2. The rent on the base date was substantially
higher or lower than at other times of the year by reason of
seasonal demand or seasonal variations in rent.
3. The rental rates on the base date were
exceptionally high or low due to other factors which would cause
the application of the base year net operating income to result in
gross inequity to either the owner or tenant.
8.90.240. Determination of base year net operating
income.
A. To determine the Net Operating Income during the
base year, there shall be deducted from the annualized gross
income being realized in 1988, a sum equal to the actual operating
expenses for calendar year 1988, unless the owner demonstrates to
the satisfaction of the Board or its designee that the use of some
other consecutive 12-month period is justified by reasons
consistent with the purposes of this section.
B. In the event the owner did not own the subj ect
property during the base year, the operating expenses for 1988
shall be determined by one of the following methods, whichever the
Board or its designee determines to be more reliable in the
particular case:
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1.
The previous owner's
in Section 8.90.200 if
actual operating
such figures were
expenses as defined
available, or
2. Actual operating expenses for the first
calendar year of ownership, discounted to 1988 by the schedule.
8.90.250. Determination of current year net operating
income.
To determine the current year net operating income,
there shall be deducted from the annualized gross income,
determined by analyzing the monthly rents in effect at the time of
filing of a petition, a sum equal to the actual operating expenses
for the last calendar year (unless the owner demonstrates to the
satisfaction of the Board or its designee that the use of some
other consecutive 12-month period is justified by reasons
consistent with the purposes of this section).
8.90.260. Schedule of increases in operating expenses.
Where scheduling of rental increases, or other
calculations, require projections of income and expenses, it shall
be assumed that operating expenses, exclusive of property taxes,
and management expenses, increases at 5% per year, that property
taxes increase at 2% per year, and that management expenses
constitute 5% of gross income, provided, however, that if actual
increases are greater or less than those listed in this section,
the actual increases shown according to proof shall be the
increases applicable.
8.90.270. Allowable rent adjustments.
The Board, a hearing officer or the Director may permit
rent adjustments, unless otherwise prescribed by law, such that
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the owner's net operating income will be adjusted at the rate as
specified in Section 8.90.100 B.2.
8.90.280. Discretionary considerations.
While the Net Operating Income formula should operate
to guarantee a park owner a fair return on investment, the
Director or hearing officer considering a request for rent
increases shall consider all relevant factors presented in making
a determination, as set forth in this Chapter.
8.90.290. Limi t on increases pending hearing or
litigation.
Notwithstanding any other provisions of this Chapter,
no adjustment in rents in a mobile home park shall be valid during
the time that any hearing or proceeding is being conducted
pursuant to this Chapter, nor shall such increase be valid during
the period in which the Board's decision for that park is being
reviewed by a Court of competent jurisdiction, except those the
tenants shall be required to pay as the Permissible Adjustment as
provided for under Section 8.90.090 B.
8.90.300. Rent adjustments for reduction in services.
A. No owner shall reduce the level or kind of
services provided to tenants as of the date of adoption of this
Chapter or take any other punitive action in retaliation for the
exercise by tenants of any of the rights granted by this Chapter.
B. If a mobile home park provides in the rent,
without separate charge, utilities or similar services (including,
but not limited to, natural gas, electricity, water, sewer, trash,
and cable television) and converts to separate charge for such
service by separate metering, separate charge or other lawful
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means of transferring to the tenant the obligation for payment for
such services, the cost savings shall be passed through to tenants
by a rent adjustment equal to the actual cost to the park of such
transferred utility or similar service (less common area usage)
based on costs for the twelve (12) months period prior to notice
to the tenants of the change. Provided compliance with this
section occurs, provisions for mediation andlor hearing shall not
apply. It is the intent of this Section for those rental
agreements entered into on or after January 1, 1991, to be
consistent with the provisions of Civil Code Section 798.41 as
adopted by Chapter 1013, Section 2 of the Statutes of 1990.
C. For purposes of Section 8.90.300 A. above, in
determining cost savings to be passed on to tenants in the form of
decreased rent, the cost of installation of separate utility
meters, or similar costs incurred by the owner to shift the
obligation for payment of utility costs to the tenants shall not
be considered. However, this shall not be construed to prohibit
or prevent the consideration of inclusion of such costs as an
increased operating expense at mediation or arbitration.
D. If a service other than a utility or similar
service per subsection (A) above is reduced or eliminated, or if
a utility or similar service is reduced or eliminated without a
concomi tant decrease in rent, the provisions of this Chapter
regarding petition andlor hearing shall apply subject to the
following conditions. Any petition initiating mediation or
hearing must be filed within twelve (12) months of the date on
which the service was reduced or eliminated, and the reduction or
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elimination in services must continue to exist at the time of the
hearing. Rent adjustments shall only be granted prospectively.
8.90.310. Quantum of proof and burden of proof.
The decision of the Board, its Director, or hearing
officer must be supported by the evidence submitted at the
hearing. The petitioning party shall have the burden of proof in
such proceedings.
8.90.320. Appeal.
Any party to a hearing shall be entitled to appeal the
decision of the Director or the hearing officer to the Board.
8.90.330. Filing of appeal.
Any party seeking to appeal the decision of the
Director or the hearing officer must file such written appeal
within fifteen (15) days of the date of notice of the decision and
must post a deposit of an amount sufficient to cover the cost of
preparing the Hearing Record.
8.90.340. Appeal heariafl.
Upon the request of any party filing an appeal and
deposi ting the sums required in Section 8. 90.330 hereof, the Board
shall schedule a hearing to be held within thirty (30) days of the
filing of appeal and shall direct the Director to notify the
parties of such hearing date.
8.90.350. Appellate review.
The Board shall review the Hearing Record and hear the
arguments of the parties at the appeal hearing, but shall limit
its review to facts presented at the hearing before the hearing
officer.
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8.90.360. Time for appellate decision.
The Board shall make a decision no later than five (5)
days following the appeal hearing and notify the parties within
ten (10) days following the Board's decision.
8.90.370. Finality of decision.
The decision of the Board on appeal shall be final and
binding. This section specifically supercedes Municipal Code
Chapter 2.64.
8.90.380. Judicial review.
An owner or tenant aggrieved by any action of the Board
may seek judicial review by appealing to the appropriate Court
within the jurisdiction. Sections 1094.5 and 1094.6 of the Code
of Civil Procedure are applicable.
8.90.390. Termination of tenancy.
A tenancy which is not held pursuant to a written
rental agreement that conforms to the provisions of Section 798.15
et seq. of the California Civil Code shall be terminated only
pursuant to Section 798.55 et seq. of the California Civil Code.
8.90.400. Remedies for violation.
A. Civil Remedies - Any person who demands, accepts,
or retains any payment in violation of any provision of this
Chapter shall be liable in a civil action to the person from whom
such payment is demanded, accepted, or retained for damages in the
sum of three (3) times the amount by which the payment or payments
demanded, accepted or retained exceed the maximum rent which could
lawfully be demanded, accepted, or retained, together with
reasonable attorney's fees and costs as determined by the Court.
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B. Criminal Remedies - It shall be unlawful for any
owner to adjust any rent in an amount in excess of that allowed
under this Chapter or by order of the Board. Any owner who
willfully and knowingly violates any of the provisions of this
Chapter or the orders of the Board shall be guilty of a
misdemeanor.
C. Injunctive and Other Civil Relief - The Board, the
Director, the City, and the tenants and owners may seek relief
from the appropriate Court within the jurisdiction within which
the rental unit is located to enforce any provision of this
Chapter or its implementing regulations or to restrain or enjoin
any violation of this Chapter and of the rules, regulations,
orders and decisions of the Board.
D. Non-waiver of Rights - Any waiver or purported
waiver by a tenant of rights granted under this Chapter prior to
the time when such rights may be exercised, whether oral or
written, shall be void as contrary to public pOlicy.
8.90.410. Period review of Chapter.
A. The Mayor and Common Council shall review the
provisions of the Chapter one year fOllowing the date of adoption
thereof, and at any other time deemed appropriate, in order to
consider the fOllowing:
1. Whether this Chapter continues to be
necessary to protect the public health, safety, and welfare.
2. Whether the implementation of the provisions
of this Chapter have been adequate; and
3. Whether the provisions of this Chapter should
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be amended to provide more effective regulations or to avoid
unnecessary hardship.
8.90.420. Severability.
If any provision( s) of this Chapter or application
thereof to any person or circumstances is held invalid, this
invalidity shall not affect other applications of this ordinance
which can be given effect without the invalid provision or
application, and to this end, the provisions of this Chapter are
declared to be severable.
8.90.430. Chapter to be liberally construed.
Chapter shall be liberally construed to achieve
this Chapter and to preserve its validity.
This
the purposes of
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" ,
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, .
1 AN ORDINANCE...AMENDING CHAPTER 8.90 OF THE SAN BERNARDINO
2 MUNICIPAL CODE RELATING TO MOBILE HOME PARK RENT STABILIZATION.
3
I HEREBY CERTIFY that the foregoing ordinance was duly
4 adopted by the Mayor and Common Council of the City of San
5 Bernardino at an adjourned regula-meeting thereof, held on the 22nd
of
f"/
The foregoing ordinance is hereby approved tly(s 29'.hL day
~jfoa,./':L, 1993.
Approved as to form
and legal content:
JAMES F. PENMAN,
City Attorney
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