The landlords’ one-two punch

Contrary to what you may have heard or read, Alameda landlords and their allies actually are mounting a two-pronged campaign to overturn Council’s recent 3-2 decision to prohibit so-called “no-cause” evictions.

One is a referendum; the other is an initiative.

Both measures, if successful, would restore a landlord’s right to terminate a tenancy by serving a 30-day or 60-day notice to vacate.  At the same time, both would preserve all of the tenant protections – i.e., RRAC review of rent increases; limitations on grounds for eviction; and payment of relocation fees – that exist under current law.

But there are two key differences, one procedural and one substantive, between the two measures:

  • To qualify the referendum for the ballot, the sponsors must collect signatures from 10 percent of Alameda registered voters within 30 days; to qualify the initiative, they have 180 days in which to collect signatures from 15 percent of the registered voters; and
  • If the referendum passes, the ban on no-cause evictions included in the ordinance passed by the Council majority on June 6 will be repealed – but Council can reenact it; if the initiative passes, the June 6 ordinance will be void and the ban can’t be re-imposed without a vote of the people.

Confused?

Hang on and we’ll explain.

First, the background.  In March 2016, Council passed Ordinance No. 3148, which, among other things, required landlords of covered properties to submit proposed rent increases of more than five percent to the Rent Review Advisory Committee; specified the grounds on which evictions are permitted; and required payment of relocation fees in some circumstances.  The ordinance allowed no-cause evictions, but it limited the number of units in any given building for which this procedure could be used, and capped the amount of rent that could be charged to a new tenant.  It also required payment of a relocation fee to the former tenant.

The rent stabilization ordinance was codified as Article XV of Chapter VI of the Municipal Code.  Council decided to ask for “voter confirmation” of the ordinance by putting it on the November 2016 ballot as Measure L1.  The measure passed with 56 per cent of the vote.  (A competing measure, M1, which would have prohibited no-cause evictions, was soundly defeated.)

This April, staff presented its recommendations for fine-tuning the new law.  But then Councilwoman Marilyn Ezzy Ashcraft, who had voted for the ordinance passed in March 2016 and even signed a ballot argument in favor of Measure L1, pulled a fast one.  She proposed that Council now adopt the ban on no-cause evictions that the prior Council had rejected when it enacted the ordinance, and the voters had rejected when they turned down Measure M1.

Never one to let the leftist train leave her behind, Vice Mayor Malia Vella quickly jumped on board, and, after enduring two days of obloquy for having asked for evidence to justify a ban, Councilman Jim Oddie did so, too.  (Mr. Oddie also had voted for the rent stabilization ordinance and signed the ballot argument.)  On June 6, Ms. Ashcraft, Ms. Vella and Mr. Oddie supplied the votes necessary to pass Ordinance No. 3180, which amended Article XV by, among other things, deleting the section permitting no-cause evictions.

The landlord groups were outraged – and understandably so.  They had gone along with the provision of Measure L1 allowing Council to amend the rent stabilization ordinance “in response to changing conditions and concerns” without another vote of the people.  But they expected that the elected officials wouldn’t make any material changes as long as the new law appeared to be working as intended.  Little did they imagine that the “changing conditions and concerns” that would prompt a re-write included the leftward shift in Council that occurred after Ms. Vella replaced Tony Daysog and Ms. Ashcraft and Mr. Oddie began to position themselves for the 2018 election.  When that shift resulted in Ordinance No. 3180, the landlords and their allies leapt into action.

The referendum came first.

As the League of California Cities has explained, “the local referendum power is the means by which the voters can choose to adopt or reject legislation that has already been enacted by the city council.”  Under the Elections Code, an ordinance does not take effect for 30 days after it is adopted.  If, within that period, 10 percent of the registered voters sign a petition protesting the ordinance, its effective date is suspended and the legislative body must either repeal it entirely or submit it for voter approval.

A group calling itself “Alamedans in Charge – A Coalition of Rental Property Owners, Businesses, and Tenants for Fair and Affordable Housing” (the coalition organizers really ought to find a better branding consultant) began circulating referendum petitions on
June 9.  By signing the petition, a voter “protest[ed]” the adoption of Ordinance No. 3180 and requested that Council either repeal it or submit it to a popular vote.  The signed petition must be submitted by July 6, but the sponsors intend to file it Monday.

If the referendum petition is deemed valid, the immediate effect will be to put the ordinance that includes the ban on no-cause evictions on hold.  Since it is virtually impossible that Council will repeal Ordinance No. 3180 – although, who knows, Mr. Oddie always has his eye on the ballot box, and he has demonstrated his vulnerability to threats of retribution – the next step will be to hold an election at which voters will decide whether the ordinance stays or goes.

If a majority fails to say yes, Ordinance No. 3180 never makes it into the books.  The rent stabilization ordinance passed in March 2016, as codified in Article XV, remains exactly as it is, and neither the elimination of the no-cause provision nor any of the other changes made by the Council majority on June 6 becomes part of the Municipal Code.  As a result, all of the tenant protections now found in Article XV – RRAC review of rent increases, limitations on evictions, and payment of relocation fees – continue in their original form.

Now we come to the initiative.

Again, from the League of California Cities:  The distinction between an initiative and a referendum is “more than semantic; each term has separate legal significance.”  The process for a voter-sponsored initiative begins with filing with the city clerk a “notice of intention to circulate petition,” together with the text of the proposed measure and a request for a ballot title and summary.  The City Attorney must prepare the title and summary within 15 days.  For a charter amendment, the sponsor then has 180 days to obtain signatures from 15 percent of the registered voters.

The “Alamedans in Charge” group filed its “notice of intent” with the City Clerk on June 14.  According to the notice, the purpose of the initiative is to amend the City Charter “in connection with rent stabilization.”  Attached was the text of the proposed Charter amendment, which is identical to that of Measure L1 (which itself had incorporated the text of the rent stabilization ordinance passed in March 2016) in all respects but two:  The amendment would delete both the “sunset clause” under which the rent stabilization law would expire of its own accord on December 31, 2019, unless Council voted to retain it; and the provision allowing Council to amend or repeal the ordinance without a vote of the people.  As the notice explained, “Passing a Charter Amendment will prevent the City Council from changing the law, if they are politically pressured to do so in the future.”

If the initiative petition is deemed valid, the proposed Charter amendment will qualify for the ballot.  According to Greg McConnell, the Oakland-based consultant working with Alameda landlords, the sponsors would like to have the referendum and the initiative presented to the voters at the same election.

Which then sets up the following scenarios:

  • The referendum fails and the initiative fails. In this case, all of the revisions to the rent stabilization law made by the Council majority on June 6 – including the ban on no-cause evictions – take effect.  No change is made to the City Charter, and Council can amend any other provision of the law by majority vote.
  • The referendum fails and the initiative passes. In this case, the June 6 ordinance is not formally repealed, but the Charter is amended.  Since an ordinance is invalid if it conflicts with the city charter, the ban on no-cause evictions no longer has any effect, and such evictions are permitted subject to the existing limitations on number of units and amount of rent and the duty to pay relocation fees.  Moreover, the ban cannot be revived by a Council vote; it will take a subsequent vote of the people to add it to the Charter.  All of the other currently established tenant protections become part of the Charter and continue to apply – but they, too, cannot be changed by a Council vote.
  • The referendum passes and the initiative fails. In this case, the June 6 ordinance is repealed, but the Charter is not amended.  The ban on no-cause evictions goes away for now, but Council is free to pass another ordinance reinstating it (if, that is, the politicians choose to ignore the results of the referendum).  Likewise, any of the other currently established tenant protections can be changed by a Council vote.
  • The referendum passes and the initiative passes. In this case, the June 6 ordinance is repealed, and the original rent stabilization ordinance passed by Council and ratified by the voters becomes part of the Charter.  The currently established tenant protections are preserved, and no-cause evictions are permitted under the same conditions as under existing law.  Neither can be changed without another vote of the people.

The landlords’ strategy in pursuing both a referendum and an initiative isn’t hard to figure out:  If “Alamedans in Charge” collects the required number of signatures on the referendum petition, the ordinance that includes the ban on no-cause evictions will get shelved for the time being.  (An initiative petition alone has no similar effect.)  Moreover, as the scenarios just discussed show, by invoking both the referendum and the initiative process, the group increases the odds of getting rid of the no-cause ban from 50 percent to 75 percent.  (Before the landlords are accused of overreaching, it should be emphasized that, in every one of the scenarios, the currently established tenant protections remain in effect.)  Finally, regardless of the vote on the referendum, if the Charter amendment initiative passes, Council won’t be able to put the ban back on the books on its own.

Whether you praise or condemn this strategy depends, of course, on how you feel about no-cause evictions.  But we think even the landlords’ most determined detractors would have to agree on one point:  These guys ain’t dumb.

Sources:

Alameda Municipal Code, Ch. VI, Art. XV: ARTICLE_XV.___RENT_STABILIZATION_AND_LIMITATIONS_ON_EVICTIONS_ORDINANCE

Measure L1: alameda_rent_stablization_act_-_full_text

Referendum petition: AlamedaReferendumPetition

Initiative petition: No Fault Petition

League of California Cities, “Initiatives/Referendums”: CLC, 5-2015-Spring-Craig-Steele-Initiatives_Referendums

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in City Council, Housing and tagged , , , , , , . Bookmark the permalink.

5 Responses to The landlords’ one-two punch

  1. Steve Gerstle says:

    I find it ironic that while the city has prohibited no-cause evictions, it is evicting those living on its property.
    https://seeclickfix.com/issues/3506459-recreation-parks-parks-maintenance

  2. MP says:

    This from my favorite bedtime reading, California Jurisprudence 3d, to complete the scenarios in which the Council either repeals the ordinance (unlikely) or it is submits it to a popular vote: If the legislative body “repeals a protested ordinance, or submits it to a referendum in which it is defeated, the legislative body may not again enact the ordinance for a period of one year after the date of its repeal by the legislative body or disapproval by the voters. However, this statute does not apply unless the second enactment is essentially the same as the prior one. The legislative body may continue to deal with the subject matter of the ordinance by enacting an ordinance that is essentially different from that protested against. The new ordinance must avoid the objections made to the first ordinance in good faith and with no intent to evade the effect of the referendum petition. Prior to this statutory provision, courts had already reached essentially the same conclusions.”

  3. MP says:

    CORRECTED
    This from my favorite bedtime reading, California Jurisprudence 3d, to complete the scenarios in which the Council either repeals the ordinance (unlikely) or submits it to a popular vote: If the legislative body “repeals a protested ordinance, or submits it to a referendum in which it is defeated, the legislative body may not again enact the ordinance for a period of one year after the date of its repeal by the legislative body or disapproval by the voters. However, this statute does not apply unless the second enactment is essentially the same as the prior one. The legislative body may continue to deal with the subject matter of the ordinance by enacting an ordinance that is essentially different from that protested against. The new ordinance must avoid the objections made to the first ordinance in good faith and with no intent to evade the effect of the referendum petition. Prior to this statutory provision, courts had already reached essentially the same conclusions.”

  4. TG says:

    I’m sorry to see the subtle sarcasm in your inset box, “Mr. Oddie’s angst.” When a politician changes his position on a subject, it is so easy to come up with the knee-jerk response that he /she is doing it for political reasons, because an election is coming up. That may be true in some cases, but can’t it also be true that a thoughtful lawmaker will consider new evidence, new debate, and new input from his constituency and possibly be persuaded to change his position ? Isn’t that what we, the citizens, hope for when we write letters, send emails, speak at City Council, etc., to try to influence our representatives ? There are many instances in our political history when notable politicians changed their position on important issues, and were actually admired for it.

    • RJS says:

      Not in this case. It was pretty obvious to me, at least, that Mr. Oddie (whose boss, by the way is Rob Bonta) was realizing that he made a political misstep, and simple corrected it in front of the audience containing those who he had irritated, and who were there to make sure he corrected his actions. This is a pretty clear case of political expediency, not principle.

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