Mobile loopholes? Part 2
[Continued from yesterday's in Part 1.]
When last we left our heroine, she and her fellow mobile home owners were frantically thumbing through the
Can any of you sharp-dressing smiling legislators help me?
They had just come upon a right to receive relocation payments, but what about if the original developer sells?
3. Right-to-match sales to converters. In addition to tying the hands of government agencies, the law also gives the residents a chance to buy out the underlying land, but only (a) if the owner has decided to sell, and (b) at a market-determined price. Here’s the actual language, starting with the simple case where the owner wants to sell:
2. a. If a private residential leasehold community landowner offers private residential leasehold community land for sale, he shall notify the board of directors of the homeowners’ association created pursuant to this act of his offer, stating the price and the terms and conditions of sale.
The affected homeowners, by and through an association duly formed in accordance with section 6 of this act, shall have the right to purchase such land, provided two-thirds of the unit owners in the private residential leasehold community have approved the purchase, and further provided that the homeowners meet the price and terms and conditions of the private residential leasehold community landowner by executing a contract with the landowner within 45 days.
So the landowner sets a price and terms, the homeowners’ association has 45 days to match it. (If there’s no homeowners association, they are allotted a brief interval to form one and then 60 days after that.)
By itself the preceding provision is incomplete, for it covers only the owner’s initiating a sale. What about responding to an offer? That’s covered too:
3. a. If a private residential leasehold community landowner receives a bona fide offer to purchase the land that he intends to consider or make a counter-offer to, he shall notify the directors ….
That triggers the landowner’s duty to disclose the offer terms, and gives the homeowners thirty days to match.
Why should I disclose my hole cards to you?
Having to show his hole cards does not penalize the land owner in this game of multi-player buyer’s poker, for the homeowners’ association is legally obligated to keep information confidential, and nothing in this homeowners’ right-to-match precludes the owner from doing everything he can to maximize the price, including negotiating with others:
d. During the period provided for negotiations and for consideration by the association’s board of directors or trustees under subsection c. of this section the landowner shall not conclude any agreement for sale of the private residential leasehold community land to any other party, but may negotiate with any other party as to terms and conditions of such an agreement, contingent upon the failure or refusal of the homeowners to exercise their prior right of purchase under this act.
Our administrative staff work carefully
If clumsily written, procedural rights of first refusal (or rights to match, which this is) can chill sales without requiring the putative buyers to demonstrate any good faith of financial credibility, but observe how the New Jersey NHP Law threads the needle of giving homeowners real protection without taking the owner’s property rights, through what is effectively a private auction:
· The landowner is entirely free to sell his property, but when he has decided to sell, in effect he’s converted all his economic and intangible ownership standing into a price — so many dollars. If the owner wants to sell, he gets his price, either from the market or from the residents.
· The residents get fair standing to try to match the price, they can buy their own ground. But they are blocked from using the process solely as an obstruction — they can neither slow down the owner’s activity, nor quell all negotiation, nor force sale at a formula price that could be below market.
Some legislative folks some years back did nice thoughtful work fitting those pieces together.
How does Section 46:8C-12 apply to 46:8C-2?
Finally, if the sale simply swaps one land owner for another and does nothing to disturb the residents’ occupancy status, neither notice nor right to match is involved:
4. The provisions of sections 2 and 3 of this act shall not apply to:
a. Any sale or transfer of the property of a private residential leasehold community which is not made in contemplation of changing that property to a use or uses other than as a private residential leasehold community.
Found the loophole yet?
Allow Ms. Dibble and the Paradise Park Homeowners Association to tell us, from their May 12 press release (all quotes from the press release and not independently verified):
The Highlands Planning Board voted last night (Thursday May, 11th) to approve the proposed rezoning of the
A variance from existing zoning requires a finding of relocation; a rezoning does not. Said metaphorically, drilling a hole through a fence invokes compensation, whereas dissolving the fence does not.
That, dear readers, is a loophole.
Desperate developer on the hot spot, with the wrong case, and only one way out!
I say this because the same relocation protection is available in
Governmental action affecting removal of mobile home owners:
No agency of municipal, local, county, or state government shall approve any application for rezoning, or take any other official action, which would result in the removal or relocation of mobile home owners residing in a mobile home park without first determining that adequate mobile home parks or other suitable facilities exist for the relocation of the mobile home owners.
According to William H. Eaton, attorney for the Paradise Park Homeowners Association, by rezoning the property, instead of making Mr. Bollerman obtain a variance, the redeveloper of the park and the Borough do not have to provide for relocation of the homeowners. [ … ]
Mayor Richard O’Neil [noted] that the master plan process took almost two years of the planning board’s time. “We did everything right,” he said. “We placed legal ads in the newspapers, posted notices in borough hall, and held public hearing where no one showed up. Now they find out they are going to lose their homes, they are all upset. Well, it’s too bad. They are too late. They should have spoken up when they had the chance. They didn’t.”
“You didn’t see all the angles.”
Did the homeowners have the chance to speak up? They are on record as opposing the rezoning when it was first proposed six months ago. Additionally, the master plan to which the mayor alluded may not have highlighted this change until the very end:
Association attorney Eaton reminded the board that the two years of master plan work was finished in early November, 2004. It was only in September, 2004, just two months before the adoption of the plan, that there is any evidence in any file about the proposed MXD [mixed use -- Ed.] zone which would not permit mobile homes on the park property. “Where did this come from, anyway?” he asked. “It was never mentioned in 2002, in the December, 2003 Master Plan draft, the April, 2004 interim report, or in the June, 2004 public hearing.”
Whatever its legalities, estoppel resulting from acquiescence inferred from silence seems to me flimsy public policy justification, for it is so hard to prove knowing indifference.
“You never objected until you saw the train coming!”
Here, in fact, the residents may have been entirely unaware of the possibility of a change in use:
The mixed use (MXD) zone first surfaces in the borough records with the testimony of Mr. Bollerman, then the contract purchaser of the park, who asked for rezoning of the property for townhouse and condominium use. As the owner of the Sandy Hook Marina, Mr. Bollerman was identified by the borough’s licensed professional planner, Paul Ricci, as a stakeholder worthy of a personal invitation to participate in the planning process.
I came on the issue only a month ago, so I have no back story whatsoever, but with Ms. Dibble’s help, I tracked down the Master Plan, including its Land Use Element (link in .pdf), dated October 2004. It states the following (pages 12-13):
As part of the Borough’s vision, the creation of a mixed use development is planned, which permits a mix of commercial and residential uses near the county park (in Atlantic Highlands), the Sandy Hook Bay Marina and the waterfront.
The existing Mobile Home (MH) district permits mobile homes as the only permitted use within the MH district. This Plan acknowledges the trend for mobile home parks to evolve into uses that are more consistent with surrounding land use patterns. To permit the evolution of mobile home parks in the Borough, this Plan recommends expanding the types of permitted uses in the MH district to include townhouses and single-family residential homes.
Evolution … sounds friendly and progressive, doesn’t it? Far less intimidating than the harsh nasty ‘eviction’.
The plan also features two terrific maps, first an aerial map showing existing land uses:
To find Paradise Park, look in the upper left, due east of the words “Atlantic Highlands” (the adjacent borough), and find the blue-and-yellow sliver that is zoned for Mobile Home Parks. Immediately adjacent to it is a “riparian lot” that is zoned Wc-2 (page 10 of the report), which is a marina designation.
And then a satellite photo showing proposed redevelopment areas:
Thus the October 2004 Land Use Element drew a bulls-eye on
Zeroing in on our target.
In view of that record — an apparent eleventh-hour amendment that suddenly makes explicit a targeting of their property for redevelopment — the residents’ request for a thorough rehearing seems very well taken:
Eaton urged the planning board and the borough to table this ordinance until the matter with Bollerman had been resolved. “This rezoning is not an emergency for the borough. It is an emergency for Mr. Bollerman. [ …] Everyone else has to go for a variance. He should too.”
In an emergency, you have no time to read the manual.
Without in any way impugning the motives or capabilities of the borough council and mayor, one may ask whether, having had a loophole now presented to them, they may wish to revisit their previous approval of a mixed-use rezoning. That approval, if sustained, would certainly have the effect of nullifying rights that I believe the
How will the council see it?
Will the city council dance around the issue?
We’ll know soon:
I’ll post an update after the hearing.