Palo Alto scores victory in federal ruling on Buena Vista

Judge dismisses lawsuit by owners of mobile-home park, which challenged 'relocation assistance' conditions

The owner of Palo Alto's sole mobile-home park suffered a defeat in federal court Friday when a judge dismissed his lawsuit against the City, deeming it "not ripe for adjudication."

The Jisser family, which owns the Buena Vista Mobile Home Park, contended in a lawsuit filed in November that Palo Alto acted in an unconstitutional manner when it approved a closure application for Buena Vista Mobile Home Park that requires the family to pay approximately $8 million in relocation assistance to the roughly 400 low-income residents who would be displaced.

The family has been trying to close the park since the fall of 2012. The relocation payments, which it included in its closure application, include the costs of the each mobile home, moving costs, start-up costs for new housing and rent subsidies (the difference between their rents at Buena Vista and at their new locations).

In the lawsuit filed in the United States District Court, the family contended that these requirements are "oppressive and unreasonable" and claimed that the city's ordinance for the closure of the mobile-home park "forces the Jisser family to either bear the unconstitutional conditions imposed on them ... or to suffer the permanent physical occupation of their property by tenants that they now want to exclude from the land."

"In effect, the Jisser Family has been told that they must choose between an unconstitutional taking of their money and an unconstitutional taking of their land," the brief filed by the Pacific Legal Foundation, which represents the Jisser family, stated.

But in reviewing the claim, Judge Edward J. Davila sided with the city's position that the suit's challenge to the mobile-home ordinance was "not ripe for adjudication" because the ordinance was adopted in 2001. This makes the challenge to the ordinance "time barred" pursuant to the statute of limitations.

Nor was Davila convinced by the Jisser family's criticisms about how the ordinance was applied. The Jissers' claims on this matter were also deemed "unripe" because the family did not seek a judgment from a state court before filing its challenge in a federal one. As Davila note in his ruling: "Failure to exhaust an as-applied takings challenge in state court is grounds for dismissal in federal court."

"It is undisputed that Plaintiffs did not pursue any remedy through the state procedures," Davila wrote.

The decision hands the City a decisive victory in one of two legal challenges it is facing as a result of the pending closure of Buena Vista, a tendentious process that began more than three years ago and that reached a milestone in May 2015, when the City Council approved the Jisser family's closure application.

In addition to the challenge from the Jisser family, Palo Alto is also facing a lawsuit in the Santa Clara County Superior Court from the Buena Vista Residents Association, which is challenging the City Council's approval of the closure application.

While Davila's decision affirms the legality of the council-approved closure application, the issue could turn out to be moot thanks to the latest effort by city and county officials to preserve Buena Vista and its 117 units of low-income housing. Earlier this month, Santa Clara County Supervisor Joe Simitian announced a partnership between the county, the city and Housing Authority of Santa Clara County to purchase Buena Vista from the Jisser family, with the city and the county each paying $14.5 million and the Housing Authority paying the balance.

The purchase, which could be compelled by eminent domain, would render moot the relocation assistance because, under the terms of the partnership, displacement of current residents "shall be avoided to the maximum extent allowed by law," according to the memorandum of understanding between the three agencies. The county Board of Supervisors unanimously approved the partnership last week.

The City Council is scheduled to adopt it on Monday, June 27, while the Housing Authority's board is set to vote on it on Tuesday, June 28.

The Weekly has compiled an archive of news coverage capturing the many voices of the people involved in the fight over Buena Vista.


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20 people like this
Posted by Nader
a resident of Barron Park
on Jun 25, 2016 at 5:03 pm

3. 2. 1. Just as you hear the cheers from the residents someone will need to point out two issues.

First, this is just the idea that the city's decision is upheld. That would mean that the owner can still close. The city gave him a permit.

Second, democratic judges in California is not where PLF wanted to fight this anyway. The city's motion to dismiss was a blessing to the Jisser family. Call it a fast pass to the 9th district court. Much more conservative. This will be appealed before the last comment is posted

14 people like this
Posted by Greenacres
a resident of Green Acres
on Jun 25, 2016 at 8:58 pm

If you think this is a conservative issue, think again. The money that has gone into developing the whole legal area of Exhaustion of Administrative Remedies was conservative and such a bigger area of our economy than this. No way are conservative judges going to in any way weaken that precedent. I only wish they would, but there has been so much legal power put to establishing that precedent, I think that's a pipe dream to think anyone would weaken it now. If insurance lawyers even think anyone is taking a case that might weaken Exhaustion of Administrative Remedies precedent into higher courts, there will be serious moneyed legal firepower up against this. No, I don't think Jissers should count on political ideology of higher courts on this issue.

The whole area of law was developed to basically screw all the Medicare patients and 8 million federal employees if they needed to appeal medical coverage decisions or sue for malpractice. If you have a $20 or $2000 claim the insurance won't cover, you have to go through a long administrative appeals process. If the decision is denied, you have to follow every other administrative remedy available to you before you go to federal court. If you make it, you can't even ask for other damages or costs, you can only get the government to make the insurer pay what they were supposed to in the first place. State insurance laws never apply, you can never sue the insurer for Bad Faith. Not surprisingly, the typical number of cases that make it to federal court in a year of millions and millions of policyholders is fewer than you can count on one hand, if any. I have seen Washington DC law firm websites bragging about how they developed that whole area of law for their big insurance company clients.

There are too many cases of precedent in that area of law, too vigorously pursued by conservative moneyed interests, even where people had clearly legitimate claims that they filed in federal court, and the courts acknowledged the legitimacy of their claims while denying their cases because of the exhaustion of administrative remedies issue.

The Exhaustion of Administrative Remedies issue is so clear in this case, I'm frankly surprised PLF even pursued it. I think unless people have been personally faced with the serious unfairness of having no ultimate recourse to enforce justice in an insurance claim, they probably would never suspect. People may take one ideological stance or another on this case, but it doesn't matter when the owner has no cause to take the case to federal court because of so clearly failing to follow the rules to get there. I am not surprised by this decision. Be very surprised if anyone gets away with weakening exhaustion of administrative remedies.

I read that Jisser has all along said that the eviction was only so he could sell, they just wanted to sell. I think now is a good time to negotiate something that benefits everyone, because avoiding eminent domain is worth something to the public entities as well as to the owner who will save more millions in court costs and have use of his money much sooner.

8 people like this
Posted by link?
a resident of College Terrace
on Jun 25, 2016 at 9:13 pm

Greenacres, this is a very interesting take on Exhaustion of Administrative Remedies. Do you have a link supporting your assertion? I haven't been able to locate one via a Google search.

6 people like this
Posted by Curmudgeon
a resident of Downtown North
on Jun 25, 2016 at 11:16 pm

Silly Libertarion "reasoning" slapped down. The Jissers need to hire a real lawyer if they are serious.

6 people like this
Posted by Greenacres
a resident of Green Acres
on Jun 25, 2016 at 11:53 pm

If you want to find out more about exhaustion of administrative remedies and legal precedents, you may need to go to a legal database. You might also try searching on the term "lawsuit" and insurance terms like "blue shield" or "blue cross" etc. Another important related term is "FEDERAL PREEMPTION". (Or search "federal pre-emption" "health insurance" and "exhaustion of administrative remedies" together.)

As to the link to the bragging DC lawfirm, no way am I going to do anything to get them to take that down - I"ve screenshotted it, shared it with policymakers and other interested persons, but as I've checked it over the years, they've left it up but occasionally I couldn't find it. It's not on their home page, that's a hint.

Relative to what happened with insurance law, you might find this an interesting place to start:
Web Link
"The doctrine of exhaustion of administrative remedies provides that `no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.'" Kobleur v. Group Hospitalization & Med. Servs., Inc., 954 F.2d 705, 709 (11th Cir.1992) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S. Ct. 459, 82 L. Ed. 638 (1938)). "
"In 1992, Kobleur became the first Court of Appeals decision to conclude that § 890.105 required an appeal to OPM before a lawsuit could be maintained, despite the fact that the version of the regulation in effect at the time did not contain an express exhaustion requirement.["

The doctrine of federal preemption has been pushed pretty hard for the same reasons, so that state insurance laws, which are stronger (or exist at all compared to nothing at the federal level) don't apply to millions of patients with federal coverage.

If the Jisser family thought the 2001 ordinance by the City (which the city was allowed to make pursuant to state law) was unreasonable, they needed to challenge it under statute in state court. They had the opportunity to do this. They clearly have no trouble getting legal representation. They did not. They cannot take the case right to federal court any time they want, especially not years later. If you read the Weekly article, the decision is completely consistent with the way courts have been deciding this same circumstance in so many other legal areas.

According to the Weekly article on the case:
"As Davila note in his ruling: "Failure to exhaust an as-applied takings challenge in state court is grounds for dismissal in federal court."
"It is undisputed that Plaintiffs did not pursue any remedy through the state procedures," Davila wrote."

8 people like this
Posted by Midtown
a resident of Midtown
on Jun 26, 2016 at 1:48 pm

Now I know why I didn't want to go to law school.

15 people like this
Posted by resident
a resident of Old Palo Alto
on Jun 27, 2016 at 11:51 am

We live in Old Palo Alto. (a snob name, of course) and have since the early 1960's. The owner of the park only wants to sell what he owns. But somehow it turns out that is not his right...go figure.

Has the question ever come up in Palo Alto where a family wanted to sell their home and four years later and the answer is still no? Someone please try to find the answer to my question. Most homes in this own sell quickly and have for years.

When will it end?

Like this comment
Posted by midtown resident
a resident of Midtown
on Jun 27, 2016 at 12:55 pm

If the city wants the residents to be compensated, let the city pay for it via a parcel tax. Why ask only the property owner to pay for it? All of us should.

I bet people who support the city will quickly change their mind when the money has to come from their pocket.

18 people like this
Posted by Peter Carpenter
a resident of Atherton
on Jun 27, 2016 at 1:16 pm

Peter Carpenter is a registered user.

"I bet people who support the city will quickly change their mind when the money has to come from their pocket."

If this property is purchased by the City/County/Housing Authority consortium it will be purchased with public funds - it makes no difference if the funds came from property taxes, parcel taxes or fees/taxes imposed on developers.

And then that same consortium will be on the hook for the significant relocation costs required to reduce BV occupancy to its legal limits and for infrastructure improvements. And even then the consortium will no own a single one of the residences in BV.

What would the consortium be buying - the right to own a nonconforming trailer park and all the obligation of being a trailer park landlord.

In my opinion this would be a very poor investment of public funds.

5 people like this
Posted by member
a resident of Greenmeadow
on Jun 27, 2016 at 1:41 pm

Down the road, the Pacific Legal Foundation takes on cases they usually win. I bet the City of Palo Alto loses on appeal. The Judge really didn't give a legal reason for his decision. This is a real stretch on eminent domain. I get the impression the city and county are trying to intimidate the owners.

10 people like this
Posted by joe
a resident of Barron Park
on Jun 27, 2016 at 1:42 pm

The most interesting fact that is overlooked in the BV saga and the final threat of eminent domain being but the the table is our constitution. The government has the right to use eminent domain with two conditions

1. has to be used for public use/public benefit and 2. owner has to be paid highest value for the property.

first, the housing authority, will have to find a story why this is a public benefit, when from the beginning they are saying to preserve the park for the existing tenants. Second, the will have the prove how this is for the public benefit. wouldn't the public benefit be greater with a new property tax bill. I looked it up. current the tax is about $60 a year. After development it could be close to $800K a year. Technically, eminent domain being used here is actually NOT in the interest of the public.

Second if the value is $50 million, give or take even a few million $47-$53 million. plus, per the counties own admission another $10-$12 to preserve the park, the housing authority is going to have to justify the these 104 trailers.

my guess is all of this smoke that is being blown by the elected officials will end up at a dead end when the feasibility study shows this is not a viable option for the housing authority.

5 people like this
Posted by Bill
a resident of College Terrace
on Jun 27, 2016 at 2:09 pm

Update: The Pacific Legal Foundation has already filed an appeal of this ruling with the US Court of Appeals.

Eminent Domain: Based on their blog post, PLF will likely fight any eminent domain action based on changes made to the California Constitution under Proposition 99. This was approved by voters in 2008 based on US Supreme Court's Kelo decision.

10 people like this
Posted by But, If Only....
a resident of Midtown
on Jun 27, 2016 at 2:15 pm

But, If Only.... is a registered user.

So the residents will be let down again, thinking they have been rescued, only to find they are back at square one.

Should have taken the money first offered and resettled somewhere cleaner and nicer.

2 people like this
Posted by ndn
a resident of Downtown North
on Jun 27, 2016 at 2:50 pm

If you look up "eminent domain and SCOTUS" you will find the the Supreme Court ruling on this issue makes very clear that Palo Alto can effectively apply eminent domain doctrine to the BV property. It would be good if people in their haste to stop something don't like out of anxiety) happening start seemingly absurd legal arguments for which they don't have any foundation for.

5 people like this
Posted by Be Positive
a resident of Leland Manor/Garland Drive
on Jun 27, 2016 at 3:10 pm

Be Positive is a registered user.

@ndn - Per your advice, I looked up "eminent domain and SCOTUS" and what I found was that in Kelo v. City of New London SCOTUS found that eminent domain could be used to take private property for "an economic project will create new jobs, increase tax and other city revenues, and revitalize a depressed urban area". Taking BV fits none of those.

7 people like this
Posted by Bill
a resident of College Terrace
on Jun 27, 2016 at 3:11 pm

> start seemingly absurd legal arguments for which they don't have any foundation for

No, what Kelo says is that states are free to define restrictions on eminent domain. California had several propositions restricting the use of eminent domain, and Proposition 99 passed. The governing law will likely be the California Constitution and in particular Section 19 of Article I. See: Web Link

The unique nature of mobile home parks (owner occupied residences on rented land) makes the acquisition of Buena Vista an interesting sideways twist to otherwise weak eminent domain protection in California.

2 people like this
Posted by Hmm
a resident of Crescent Park
on Jun 27, 2016 at 3:31 pm

Do the residents own their trailers/mobile homes?
If not, why is all this going on? For an example, If I were renting an apartment and the building owner wanted to tear it down, myself and everyone else would get a 30 day notice to leave! And, leave with no financial relocation compensation!
Could someone clarify.

7 people like this
Posted by Supply & Demand
a resident of Green Acres
on Jun 27, 2016 at 3:53 pm

Use the public money/resources to Palo Alto Housing Corporation wisely build affordable apartments for teachers, fire fighters, policemen and hospital workers.

Build something that will benefit this community and reduce traffic congestion not creating an unwanted legacy.

Like this comment
Posted by Be Positive
a resident of Leland Manor/Garland Drive
on Jun 27, 2016 at 4:15 pm

Be Positive is a registered user.

@hmm - most of the mobile homes/RV's are owned by the residents.

Like this comment
Posted by george drysdale
a resident of Professorville
on Jun 27, 2016 at 4:36 pm

The has been no "big victory" for the Palo Alto city council. If their ignorance is not overthrown California will be deprived of thousands of new needed apartment houses. San Jose, etc. The power of having renters fill the city council chambers is overwhelming. This is happened thousands of times before and always gets corrected. It's amazing that this could happen in Palo Alto. But I predicted this would happen years ago on the Palo Alto online. Go to the internet.
George Drysdale

4 people like this
Posted by Curmudgeon
a resident of Downtown North
on Jun 28, 2016 at 12:26 pm

"If I were renting an apartment and the building owner wanted to tear it down, myself and everyone else would get a 30 day notice to leave! And, leave with no financial relocation compensation! Could someone clarify."

It is much simpler to move clothing, a bed, etc., to another location than a "mobile" home.

Sorry, but further commenting on this topic has been closed.

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