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Law OFFICES GILCHRIST RUTTER PROFESSIONAL CORPORATION Jennifer Pearce, Chairperson Arne Olson, Vice Chairman Commissioner Philip Blank Commissioner Anne Fox Commissioner Kathy Narum Commissioner Gregory M. O'Connor, Alternate Pleasanton Planning Commission January 22, 2009 Page 2 As the Assembly Bill analysis to AB 930, which added the survey of support, explains: The results of the survey would not affect the duty of the local agency to consider the request to subdivide pursuant to Section 66427.5 but merely provide additional information. It is foreseeable that the results of this survey could be used to argue to a court that the conversion is a sham and that the rent formulas in Section 66427.5 should not be applied. The fact that a majority of residents do not support the conversion is not however an appropriate means for determining the legitimacy of the conversion. The law is not intended to allow park residents to block a request to subdivide. Instead, the law is intended to provide some measure of fiscal protection to nonpurchasing residents. (Emphasis added.) However, despite the clear language of Section 66427.5 and El Dorado, we are aware of at least two cities that, bending to political pressure rather than following the clear mandate of the law, denied Conversion applications on the putative basis of the results of the survey of resident support. In both of those cases, it became necessary for this firm to seek and obtain writs of mandate against those cities. In Carson Harbor Village, Ltd v. City of Carson, Los Angeles Superior Court Case No. BS 112239, the Honorable James C. Chalfant held, The City argues that section 66427.5(d)(5) provides that the results of the survey "shall be considered" as part of the subdivision compliance hearing. How can the City consider the "Survey of Support" if it can not use the results? The answer is that the City is to consider the Survey of Support to ensure it has been prepared as required. It may not use the results to deny the Application based on lack of a bona fide conversion. That is an issue for presentation in court. In Palm Springs Investment, Inc. v. City of Palm Springs, Riverside Superior Court Case No. INC070631, the Honorable James A. Cox, held, The language in El Dorado at pages 1165 -66, states that the determination of whether an application for a map is a "sham is a decision to be made by the courts and not a local agency. This holding in El Dorado appears to have been left unaltered by the AB 930 amendments. Accordingly, the City's finding of a non -bona fide application does not provide a defense to the requested writ.