March
21 , 2022
Mayor Sam Liccardo and San José City Council
200 E. Santa Clara Street
San Jose, CA 95111
RE: Agenda 8.2
-
Report on the Status of California’s COVID
-
19 Recovery Act, State’s
COVID
-
19 Rental Assistance Program
, and Implementation of Local Eviction Diversion
and Settlement Program.
Dear Mayor and City Councilmembers:
We write to urge that the City Council take action to reinstate the City’s eviction moratorium for a limited time period while nearly
⅔ of San
José residents are still
awaiting rent assistance
.
State protections
(AB 832) that prevented evictions for tenants who
applied for emergency rent assistance (ERAP) are set to expire on March 31, 2022 with no recourse for tenants who are still awaiting re
nt assistance.
The state has not taken any action
to protect tenants who are awaiting rent assistance.
We urge the City to take similar steps as
Los Angeles, San Francisco, and Alameda County, and rein s
tate tenant protections for those
with pending rent a
ssistance applications.
Nothing in the state law preempts
the City from
enacting a moratoriu
m that would protect tenants start on April 1, 2022.
While we support the Housing Department’s implementation of an eviction diversion program to provide rent assistance to tenants with pending ERAP applications, without a moratorium prohibiting landlords from evicting those tenant
s many residents will continue to be evicted.
In
fact, the Law Foundation has unfortunately witnessed
many landlords who received rent
assistance continue to try to evict those tenants.
We are concerned that eviction diversion
without a supporting morat
orium will lead to landlords being compensated, while tenants get evicted and lose their housing.
As a result, we are asking that the City reinstate a 6
-
month
moratorium that does the following:
1. Reinstate San José’s eviction moratorium for six months, t o apply to after the state
moratorium ends starting April 1, 2022, through October 2022 rent.
The ordinance
would prohibit a landlord from evicting a tenant with a COVID -
19 related impact, signs a
declaration affirming the impact, and applies for rent ass istance either through the state
or a local program.
Nothing would prevent a landlord from collecting rent debt, including by filing a small claims court action.
2. Any notice to pay rent or quit must include information about how a tenant can apply for rent assistance as well as any information about the City’s eviction diversion program.
That information must be provided with any notice to pay rent or quit.
A
lan
dlord must apply to for rent assistance either through the state or a local program prior to serving a notice to pay rent or quit. A copy of the notice must be provided to the City so that the City can reach out to the tenant to connect them to rent assist ance
A recent study by the National Equity Analysis found that only 34% of renters who have applied for rent assistance in Santa Clara County through the statewide program have actually received rent assistance.
(Study available here:
https://nationalequityatlas.org/CARentalAssistance
)
Of
the 23,299 households that have applied for rent relief in Santa Clara County, just 7,872 or 34% have received assistance, according to state data. Th
ese tenants could face eviction as early as
April 1, unless a moratorium is passed.
These tenants should not face homelessness as a
result of the state’s failure to process rent applications before the pending March 31, 2022 deadline.
San José should be
proud to be one of the first cities in the nation to enact an eviction moratorium.
The moratoriums, while not perfect, have worked.
During the moratorium period,
the Law Foundation, one of the lead legal service agencies serving tenants has seen a 70% r
eduction in evictions as during the time that the moratorium enacted.
Additionally, nearly every
tenant whom the Law Foundation has assisted in a non
-
payment of rent case since September
has remained housed, and their landlord was compensated with ERAP fu nds.
As we are
getting close to coming out of the pandemic, we cannot afford to have additional San José residents fall into homelessness because they were waiting for rent assistance.
We urge the City Council to pass an emergency measure protecting ten ants facing eviction.
Sincerely,
Nadia Aziz, Directing Attorney
Law Foundation of Silicon Valley
Gisela B. Bushey, Chief Executive Officer
Loaves & Fishes Family Kitchen
Maria Noel Fernandez, Campaign Director
Silicon Valley Rising Action
Poncho Guevara, Executive Director
Sacred Heart Community Services
Elizabeth Gonzalez
Silicon Valley De
-
Bug
Greg Kepferle,
Chief Executive Officer
Catholic Charities of Santa Clara County
Nick Kuwada, Policy Director
Silicon Valley Council of Nonprofits
Maritza Maldonado, Executive Director
Amigos De Guadalupe for Justice and Empowerment
Derecka Mehrens, Executive Director
Working Partnerships USA
Mayra Pelagio
-
Munoz, Executive Director,
Latinos United for a New America
Sandy Perry
Affordable Housing Network
Andrea Portillo
, Organizing and Policy Manager
SOMOS Mayfair
Ruth Silver
-
Taube
Santa Clara County Wage Theft Coalition
Regina
Celestin Williams, Ex
ecutive Director
Silicon Valley At Home
4 North Second Street, Suite
1300 | San Jose, CA 95113
Phone: 408-293-4790 | Fax: 408-293-0106 | lawfoundation.org | Tax ID 52-1014754 Advancing Just
ice
Housing | Health | Children & Youth
March 2
2, 2022
Mayor Sam Liccardo and San José City Council
200 E. Santa Clara Street
San Jose, CA 95111
RE: Agenda 8.2 - Report on the Status of California’s COVID-19 Recovery Act, State’s COVID-19 Rental Assistance Program, and Implementation of Local Eviction Diversion and Settlement Program.
Dear Mayor and City Councilmembers:
The Law Foundation of Silicon Valley writes to provide legal authority to support the City’s powers to enact an eviction moratorium to protect tenants.
1. The City is only preempted from enacting provisions until March 31, 2022.
AB 832 which enacted a state moratorium and limited evictions for non-payment of rent when a tenant applied for rent assistance specifically preempts a City from enacting protections only until March 31, 2022. Code of Civil Procedure section 1179.05, et. seq. Other cities such as San Francisco, Los Angeles, and Alameda County have either reenacted moratoriums or have had moratoriums in place that will continue after April 1, 2022. The City can and should reinstate a moratorium starting April 1, 2022.
2. The City has broad powers to regular substantive process of eviction cases, including reinstating an eviction moratorium.
Under the California Constitution, “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Cal.
Const. at XI, section 7. Cities have broad police powers to protect the public health, safety, and welfare of their residents. See Berman v. Parker (1954) 348 U.S. 26, 32-33. Those powers extend to the regulation of “the development and use of real property within its jurisdiction,” for which local governments have “broad authority.” California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 455; Cal. Const., art. XI, § 7. “As a general matter, so long as a land use restriction or regulation bears a reasonable relationship to the public welfare, the restriction or regulation is constitutionally permissible.” City of San Jose, 61 Cal. 4th at 455.
Law Foundation of Silicon Valley | 4 North Second Street, Suite 1300 | San Jose, CA 95113 A local
eviction moratorium does not risk preemption by state law, as long it does not attempt to modify the eviction process. Preemption occurs when the local ordinance “duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.” See Viacom Outdoor Inc. v. City of Arcata (2006) 140 Cal.App.4th 230, 236. It is well-established that local governments in California are free to regulate the grounds for eviction without any preemption by state laws. Birkenfeld v. City of Berkeley (1976) 17 Cal. 3d. 129; Fisher v. City of Berkeley (1984) 37 Cal. 3d 644. For example, local governments may ban certain types of eviction that are allowed under state law, such as no-fault evictions. See City of Oakland , 171 Cal. App. 4th at 764.
Alternatively, local governments can permit eviction only for specific reasons, as both general law cities, such as East Palo Alto, and charter cities, such as San Jose, have done. Only laws that attempt to modify the eviction process are preempted by state law. See generally Birkenfeld and Fisher.
Additionally, under a proclaimed local emergency such as the one that exists now, the local governing body may promulgate orders and regulations necessary to provide for the protection of life and property. Cal. Gov. Code § 8634.
1 Oftentimes, this
means enacting measures that would
exceed the local government’s powers without the existence of an emergency and local declaration.
Likewise, San Jose’s compelling interest in community safety justifies the extension of the eviction moratorium to prevent widespread residential displacement.
3. The City has power to create notice requirements that a Landlord must follow including requiring a tenant to be notified of rent assistance.
The City Council can put requirements on the notice that Landlords serve, including requiring that they advise tenants about rent assistance, and apply for rent assistance. There is a strong presumption that legislative enactments must be upheld absent a clear indication of preemptive intent by the legislature. Rental Housing Association of Northern Alameda County v.
Oakland 171 Cal. App 4
th 741, 754 (2009).
Courts have found that local limitations on substantive grounds for eviction are not preempted by state law, while procedural barriers “between the landlord and the judicial proceeding” are. Birkenfield at 135, 151.
Courts have upheld local ordinances that contained specific requirements that a landlord needed to fulfill before serving an eviction notice. In Rental Housing, the Court of Appeal considered whether the state unlawful detainer statute (Code Civ. Proc. § 1161) preempted a provision of an Oakland ordinance that required landlords to provide tenants with written notice and an opportunity to cure alleged offensive conduct before resorting to eviction based on specified tenant conduct. 171 Cal. App 4th at 762. Following Birkenfeld, the court upheld the notice requirements, holding that they constituted “the substantive grounds for eviction, rather than the procedural remedy available to the landlord once grounds for eviction have been established.”
1 The Californ
ia Attorney General has confirmed that this statute permits counties to issue emergency rules and regulations that apply countywide, including within the incorporated areas of the county. See 62 Ops. Cal. Atty. Gen. 701 (1979).