DOWDALL LAW OFFICES
A P R O F E S S I O N A L C O R P O R A T I O N
A T T O R N E Y S A T L A W
284 NORTH GLASSELL STREET Area Code 714
Writer’s Direct Dial: FIRST FLOOR TELEPHONE 532.2222
ORANGE, CALIFORNIA 92866-1409 FACSIMILE 532.3238
ADMIN @DOWDALLLAW .COM
IN REPLY REFER TO:
Terry R. Dowdall, Esq.
(714) 532-2222
550
October 24, 2024
Original via First Class Mail
Jacqueline Paterno
Deputy City Attorney
LOUNSBERY FERGUSON ALTONA & PEAK, LLP
960 Canterbury Place, Suite 300
Escondido, California 92025-3870
RE: Lakeview Mobile Estates Rules and Regulations
Dear Ms. Paterno:
Thank you for your October 21, 2024 correspondence, to which I reply.
It appears that your inquiry is solely tied to a claim of municipal authority asserted, ostensibly, pursuant to the Housing for Older Persons Act (HOPA) 1, with specific reference to the Code of Federal Regulations promulgated by the Department of Housing and Urban Development (“HUD”).
After reversal of Chevron, U.S.A., Inc. v. Natural Res. Def Council, Inc., 467 U.S. 837 (1984), it is clear that HOPA will once again uniformly vest the park owner with the exclusive election to pursue the narrow exemption of “older persons” housing. E.g., U.S. v. Hayward (1992) 805 F.Supp. 810, Mobile Home Village Inc. v. Township of Jackson, No. 95-0004 (D.N.J. 6-14-95) P-H Prentice Hall Fair Housing Fair Lending Reporter [¶ 16,018] (“The language of § 3607 (b)(2) indicates that owners and managers are the only ones who can claim the exemption”), Cedar Hills Developers, Inc. v. Township of Wyckoff, Civil No. 89-5391, Fair Housing-Fair Lending (P-H) ¶ 15,675 (D.N.J. Dec. 11, 1990)( Judge Politan held that the Township of Wyckoff could not force a housing provider to meet the FHA's "housing for older persons" exemption). A more complete explanation of this issue is discussed in the article entitled “Chevron Tanked by Supreme Court” which appeared in the August, 2024 issue of the “WMA Reporter” (attached). This issue is of significant interest to the manufactured housing industry. Since Congress never empowered HUD to bestow local government (entities subject to compliance with FHAA 2 mandates) with the election to pursue “older persons” housing status, the 1999 Code of Federal Regulations is pro tanto void. Cities may not force owners to provide “older persons” housing. Indeed, litigation is pending in different areas of the state for 1 Section 1 of Pub.L. 104-76, Dec. 28, 1995, 109 Stat. 187, provides: “This Act [amending §3607 of this title] may be cited as the ‘Housing for Older Persons Act of 1995’” (“HOPA”). 2 Fair Housing Amendments Act of 1988, Pub.L. 100-430 (Sept. 13, 1988, 102 Stat. 1619) (“FHAA”).
DOWDALL LAW OFFICESA P R O F E S S I O N A L C O R P O R A T I O N
A T T O R N E Y S A T L A W
Jacqueline Paterno
LOUNSBERY FERGUSON ALTONA & PEAK, LLP
October 24, 2024
the purpose of re-establishing the original intent Congress ascribed to HOPA. 3 The authority of the park owner here, in respect to the Mobilehome Residency Law in all respects including its articulation of “older persons” housing (Civil Code §798.76) is manifestly clear. The power vested in the park owner pursuant to HOPA, as intended by Congress, is also clear.
May I inquire whether the city of San Marcos intends to continue to enforce the HUD regulations purporting to designate local government as a “housing provider” for purposes of compelling compliance with “older persons” housing?
May I inquire as to the authority under which you are acting on behalf of the city of San Marcos with respect to the demands made in your previous correspondence? Thank you for your attention to this matter and your anticipated cooperation.
Very Truly Yours,
/s/
Terry R. Dowdall
For
DOWDALL LAW OFFICES, A.P.C.LAKEVIEW_MMXXIV_23_OCT_V_1.wpd ENCL. WMA Reporter, August, 2024,” “Chevron tanked by Supreme Court” cc: Paul Beard, Esq.
WMA Committee to Save Property Rights
3 Among other things, when Congress replaced “owner or manager” with “housing facility or community,” it did not change the fact that the exemption can be invoked only by individuals or entities actually providing housing—not a government entity enacting zoning laws. A "housing facility,” for example, is simply "something that is built, installed, or established to serve” the purpose of housing. Merriam-Webster Dictionary. The 1995 amendments explicitly address the issue of intent, and specify that the relevant intent remains, as before, that of the on-site housing provider.
Only that party can publish and adhere to the on-site “policies and procedures” that Congress has tied to the intent rule ever since 1988. Governments do not write “policies and procedures” for private housing facilities and communities; private entities do. These and several other attributes of the legislative history prove the original intent excludes any notion of transference of power to a municipal entity to compel a housing provider to provide older persons housing or all age housing.
PROOF OF SERVICE
I am employed by the law firm of DOWDALL LAW OFFICES, A.P.C. located at 284 North Glassell Street, Orange, California 92866. I am over the age of 18 and not a party to this action.
I am readily familiar with DOWDALL LAW OFFICES' practice for collection and processing of documents for mailing with the United States Postal Service, and that practice is that the documents are deposited with the United States Postal Service the same day as the day of collection in the ordinary course of business.
On this date, October 25, 2024, I caused to be served the within: CORRESPONDENCE DATED OCTOBER 24, 2024, RE: LAKEVIEW MOBILE ESTATES RULES AND REGULATIONS on the interested parties in this action, delivering a true and correct copy to the following:
Jacqueline Paterno
Deputy City Attorney
LOUNSBERY FERGUSON ALTONA & PEAK, LLP
960 Canterbury Place, Suite 300
Escondido, California 92025-3870
[ X ] (By First Class Mail) I caused each sealed envelope with postage fully prepaid, to be placed in the United States Mail at Santa Ana, California to the address listed above.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this day, October 25, 2024, at Santa Ana, California. ______________________________
Ana M. Mondragon