HomeMy WebLinkAboutAgenda Packet 3.E 05/02/2011K FA
DATE: May 2, 20 1.1
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Bonne Gaebler, Housing Administrator
SUBJECT: (1) Resolution Supporting SB444 (Evans) Requiring A Mobile Home Park
Subdivider To Avoid The Economic Displacement Of Non - Purchasing Residents;
And (2) Resolution Supporting AB 579 ( Monning) Permitting The
Reimbursement Of Attorney Fees In Certain Actions By Mobile Home Park
Owners Challenging Rent Stabilization Ordinances.
RECOMMENDATION
It is recommended that the City Council adopt the attached Resolution Supporting SB444
(Evans) Requiring A Mobile Home Park Subdivider To Avoid The Economic Displacement Of
Non - Purchasing Residents; and the attached Resolution Supporting AB 579 (Morning)
Permitting The Reimbursement Of Attorney Fees In Certain Actions By Mobile Home Park
Owners Challenging Rent Stabilization Ordinances.
BACKGROUND
SB444. The Subdivision Map Act currently requires a subdivider to, at the time of filing a
tentative or parcel map for a subdivision to be created from the conversion of a rental
mobilehome park to resident ownership, avoid the displacement of all nonpurchasing residents
by following specified requirements relating to the conversion: These include: (1) the subdivider
must offer each resident an option to purchase its lot, (2) the subdivider must file a report on the
impact of the conversion on residents, (3) the subdivider must obtain a survey of support of the
residents; (4) the results of the survey must be submitted to the local agency, as specified for
consideration; and (5) the results of the survey must be considered by the legislative body at the
time it conducts a hearing on map approval. The scope of the legislative body's authority for a
conversion to resident ownership is limited to whether the park owner has complied with the
statutory requirements.
SB444 would clarify that the local agency is required to consider the results of the survey in
making its decision to approve, conditionally approve, or disapprove the map; that the agency is
authorized to disapprove the map if it finds that`the results of the survey have not demonstrated
adequate resident support; and that, with respect to mitigation of economic displacement of all
non - purchasing residents, the scope of the hearing is limited to compliance with these provisions
of the Map Act.
Agenda Review: 0 no
City Attome A Finance Director City Manager
AB579 Existing law permits a court to award attorney's fees to a successful plaintiff in certain
types of litigation against public agencies, including cities, but does, not generally provide for
attorney's fees awards to public entities that successfully defend many types of claims.
This bill would permit the award of attorney fees and, in some cases, other litigation expenses,.to
a local governmental entity in an action brought by the owner of a mobilehome park to challenge
the validity or application of a local ordinance, rule, regulation, or initiative measure that
regulates space rent or is intended to benefit or protect residents in a mobilehome park, when the
local governmental entity is determined to be the prevailing party.
DISCUSSION
It has been requested by a representative of the Golden State Mobilehome Owners' League that
the City Council support for these two pieces of legislation, which, are scheduled to be heard on
May 3 Following review of the legislation, staff recommends support of the two bills and, at
the direction of the Council, will draft letter of support for the Mayor's signature. Staff will
track the two bills through the legislative process and keep Council apprised of their progress.
FINANCIAL IMPACTS
There is no financial impact directly associated with the recommended action. If AB 579 becomes law,
and if the City is involved in future litigation challenging the City's Rent Control Ordinance, and if the
City prevails, then the City would be entitled to the cost of legal fees defending the City from that
challenge.
ATTACHMENTS
1. Resolution
2. Correspondence
3. Draft of AB 444
4. Draft of AB 579
Apri ll8mobilehome /s /housing
2
ATTACHMENT #I
Resolution No. N.C.S
Of the' City of Petaluma, California
RESOLUTION IN SUPPORT OF MOBILEHOME LEGISLATION SB 444 AND AB 579
WHEREAS the City of Petaluma has supported the mobilehome park residents since
1 when the City Council adopted aPetaluma Mobile Home Park Rent Stabilization
Ordinance; and
WHEREAS the City Council remains constantly vigilant in supporting legislation which
protects and enhances the quality of life of our mobile home park residents; and
WHEREAS SB444 would provide additional protections to home owners from forced
conversion of their parks to condominiums and provide homeowners with some certainty about
the future of their investments in their homes; and
WHEREAS AB 579 would allow local governments to recover some attorney's fees
when they have successfully defended their mobilehome rent stabilization ordinance;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma
does hereby reaffirm its continued support of our mobilehome park residents and supports SB
444 and AB 579.
3
ATTACHMENT 42
Sandalwood.Home Owner Association
GSMOh CH # 820 (Bill D.onahue,President)
28 Oakwood Dr.
Petaluma, Ca. 94954.
April 07,2011
Mayor David Glass
Petaluma City Council
11 English St
Petaluma, Ca. 94952
Subject Support of SB 444 (Evans) & AB 579 (Monning)
Honorable Mayor Glass & Members,of City Council:
As 1 presented to you during public comment at the city , council meeting of April 4th. "we the
mobilehome owners of Petaluma and members of GSMOL request the City of Petaluma to formerly
write letters of support of this,important pending: legislation". SB 444 -- would-provide additional
protections to homeowners from:forced conversion of their pafk to condomi And would restore
balance and faiiness, reduce litigation against,local, goyernments and provide homeowners with some
certainty about the fiiture of their'invesiments in their homes AB'579 helps ensure that park owners
cannot dismantle protections for homeowners —like rent control laws = justly running up legal fees,
and would allow local governments to recover attorney's fees when they have successfully defended
their mbilehome rent control ordinance.
Respectfully,
"William F. Donahue
ATTACHMENT #3
Bill. Text: CA 444 - 2011- 2012'RegWar Session I eLobbyist.
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Bill Text: CA Senate.B`ill 444 2011 -2012 Regular Session
California SB444
Rec.ommend
CA Led.,latureNase for S84-14 peers aUnk
Page 1 of 4
x mare eLo:l byist
public Commentary
S-unlnlary
Sponsors 'Texts votes
R'Esear&i Fflstori�'Lcaf
Corr hnftnts ¢0:)
Other Bill Drafts.
1mex duce-
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Bill Text: CA Senate.B`ill 444 2011 -2012 Regular Session
California SB444
Rec.ommend
CA Led.,latureNase for S84-14 peers aUnk
Page 1 of 4
x mare eLo:l byist
public Commentary
S-unlnlary
Sponsors 'Texts votes
R'Esear&i Fflstori�'Lcaf
Corr hnftnts ¢0:)
Other Bill Drafts.
1mex duce-
BILL NUMBER: SB 444 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Evans
(Principal coauthor: Assembly;Member. Williams)
(Coauthors: Assembly Members Allen and Furutani)
FEBRUARY 16, 2011
An act to amend Section 66A27.5 of the GovernmNnt'Code; relatiing
to land use.
LEGISLA'T'IVE COUNSEL DIGEST
SB 444 , :as introduced, Evans. Land use: subdivisions: rental °
mobi`Teh`ome park- conversion.
The Subdivision ,Map Act requires a subdivider„ at the time of
filing a tentative or parcel map for a subdivision to be created from
the conversion of a rental mob lehome park to resident ownership, to
avoid the economic d spi'acement of all nonpurchasing resident,-; by
following specified requirements relating to the conversion,
including the requirement that the subdivider obtain a survey of
support of residents of the mobilehome park for the proposed
conversion, bhe requirement that the results of the survey be
submitted to the local agency for consideration, as specified, and
G
Bill Text: CA Senate Bill 444 - 2011 -2012 Regular Session I &obbyist Page 2 of 4
the requirement that the subdivider be subject to a hearing by the
legi'sl'ative body or advisory agency that is authorized,to approve;
conditionally approve, or disapprove Cre map.
This bill would clarify that the local agency is required to
consider the results of the survey ; i,n.making its decision to approve,
conditionally approve; or- disapprove the map; that the, agency :CS
authorized to disapprove, the map if it finds that the results "of the'
survey have not demonstrated adequate resident support; and that,
with respect to mitigation of econtidmic displacement of all
nonpurchas,ing residents, :the scope of the hearing is limited t0-
compliance with these provis "ions of the act.
This bill would find and declare that the changes made by this act
do not constitute a change in, and are declaratory of., existing law,
and would state the Intent of the Legisfature to clarify the intent
of certain provisions of.'the subdivision map,.
Vote: majority. Appropriation: no,. •Fiscal committee: no.
State- mandated local.program: no.
'THE PEOPLE OF THE STATE OF' CALIFORNIA DU'.,ENACT AS FOLLOWS.:
SECTION 1. Section 66427.5 of the Government Code is amended to
read:
66427,.5. At the time of filing a tentative or parcel map for a
subdivision to be created from, the conversion of a rentil:imobilehome
park to resident ownership„ the subdivider shall avoid the economic
displacement of all nonpurc basing residents in the following manner:
(a) The ,subdivider shall offer ,each exrsfing`fenant an option to
either purchase his or her condominium or subdivided unit, which is
to be created by the conversion of the park to resident ownership, or
to continue residency as a tenant.
(b') The subdivide_ shall file a report on the impact of the
conversion upon residents�of the mobilehome park to be converted to
resident owned subdivided interest.
(c) The subdivider sha'- 11 'make a copy of the report available to
each resident of th'e'mobilehbme park at feast 15 days prior to the
hearing :on the map by' the ' advisory agency or., if there is no ,ad'rlsory
agency, by the legislative body.
(d) (1) The subdivider. sha.il obtain a survey of support of
residents of the mobilehome park for the proposed'conversi.on,
;2') The survey of support shall be conducted in accordance with an
agreement . .between the subdivider and a resident homeowners'
association, f` any, that its independent of the subdivider or
moblehome park, owner..
(3) The survey shall be obtained pursuant to a written ballot.
(4) The survey shall be conducted so that each - occupied mobi`lehome
space has one vote''.
0
Bill Text CA Senate Bill 444 - . 2011 -201'2 Regular-'Session I eLobbyist. Page 3 of 4
(5) The results oft I he. survey shall be subrriit,ted to the local
agencv_upon the filing of the tentative or pa rcel map, to be
considered
tam 'iot
(e) The subdivider. shall be subject to a hearing by a legislative
body or advisory agency tAti✓ii ;-a :is
authorized by local ordinabce.to approve, conditionally approve, or
disapprove the map. �te Ni? h reZpe::c C;o
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07 -mi C. ln.q
the scope of the he be limited to the issue of
compliance with this section; Nor?;i-IC . s 21 4a 1 - bc�
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'(f} the subdivider shall be required, to avoid the economic
displacement of all nonp9X,c"s1ng residents "in accordance wi , th: 7 the
following.:
(1) As to nonpurchasin,9 residents are not - lower income'
housebolds, as defined in.Sectiob 50079.5 of the Health and Safety
Code, the monthly re'ht, indluding'apy applicable.fees or charge's for
us - e of any preconversion amehfties, may increase Sfrom the
preconversion rent to market level.'s, as defin&d -in-an appra:isal,
conducted in accordance wYth nationa'1 recognized Sprofessi!ondl
appraisal standards, in equal annual increases over a four-year
period.
(2) As 'to n6hpufthas residents, who' are lower inccme.house
as defined in Section '50039.5 of the' Health and Safety Code, the
monthly rent, including any applicable fees or cbarges f6r of any
preconversion amenities, may.increase from the preconversion rent by
an amount equal to the average monthly increase in rent in the four
years immediately preceding the conversion, except Ehat.in no event
shall . the monthly rent be increased by an 'amount greater than the
average monthly perqe increase in the Con'sumer Price, Index. for
the most recently reported peri,
SrC. 2. (ai The Legislature finds and declares that the amendments
to Section 669 27 ":5 6 , 427;5 of the Goveznment Code made by this act do not
constitute a cp&n4e in, but rather are declaratory of, existing law.
(b) It 'is the intent of the Legislature to do both of the
fo,11owing:
(1) Clarify that the legislative intent underpinning paragraphs
(l') and (5) of subdivision (d) of Section 66427..5.of 'the Government
Code has bi-en, and,cont-ihues to be, to require a local agency to
consider, in making decision to approve, conditionally approve,
7
Bill Text: CA= Senate. Bill 444 - 2011 -2012 Regular Session I eLobbyist Page 4 of 4
or disapprove the t'entati've or parcel map, the level- of. resident
support .for the proposed conversion, and that those provisions
authorize the agency, at its discretion, to disapprove the map, if
finds that the results of -the survey have. not demonstrated adequate
resident support.
(2) Clarify that subdivision (e) of Section 66427.5 of the
Government Code is not.intended'to relieve the subdivider or 'the
local agency from the requirement. of complying with other applicable
state or local laws, including, but not limited to, Chapter. 4
(commencing with Section 66473) of Division 2 of Title 7`of the
Government Code
e ( bbyi5t i_lr is ain'impartial and legislative tracking, and re Choiting service ubl':zma GAITS and
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Contact Us via Mai: l or Phone 800.61 &.2750
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ATTACHMENT #4
Bill Text: CA Assembly BBi11:579 - 20 -2012 Regular Session eLobbyist
at
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Bill'Text: CA Assembly 'Bill 8.79 - 2011-2012 Regular Session
California AB579
0 Recommend
C::r1 teg sla;:i;re Page-for A?57.9 -- Perrnat:?nk
Sarnmary Soo •sors T6.Xts Tot °s Research Hist.oricai C(cn srients (0)
Other Bill Drafts: Wrocluceef
BILL NUMBER: AB 579 INTRODUCED
BILL TEXT
'INTRODUCED BY Assembly Member Monning
PEBRUARY.16, 20
An act to amend Sections 102 and 1036 of, and to add Section
925..20 to, the Code of Civil Procedure, and to amend Section 8'00' of.
the Government Code, relating to mobilehome parks.
LEGISLATIVE COUNSEL'S .DIGEST
AB 579, as introduced, Monning. Mobilehome parks: liability:
attorney's;. fees.
Exl.sting law permits a court to attorney's fees to a.
,successful party in An-action that has resulted in the enforcement -of
an 'important .right ; 'affecting public interest, but does not allow an
award of attorney's -fees in favor. of. ,public entities, except ,in
limite.d.cir;cumStances. Existing law.requires the .court to determine
and award . a successful,:p•la_intiff in an inverse condemnation
proceeding certain. costs; :disbursements, expenses,. and fees, as
pr:ovi:ded. Existing 'law permits a complainant to collect specified
attorney's fees in a ciV l to appeal or review an
administra.t.ve proeeeding the proceeding was the result of
Page 1 of 6
.hz re e u.bby'sR:
' u�tFs Lommentary
M
Bill Text: CA Assembly Bill 579 2011- 20.12 Regular Session I eLobbyist Page 2 of 6
arbitrary or gapricious ; action or conduct by the public entity or
officer..
This bill would permi -t the award of attorney's fees arid; in some
cases; other litigation expenses, t:c.a 1ocal,gover4imental entity in
an action .brought by the owner of a mobilehome park to challenge the
validity or application of a local ordinance, rule; regulation; or
initiative measure that regulates space rent or is-intended to
benefit or; protect residents in a mobilehome park, if the local
governmental entity is determined t be the 'prevailing party.
Existing law provides that a cause of - action against a person
arising from'the, person "s:right of petition or free speech is subject
to a special motion to strike;,, unless the court' determines *_here is
a probability that the'plaintiff.will prevail on the claim.
This bill. 'would also subject certain causes of action against a
local government regarding, parks to .a special . to
strike. The motion would apply to a cause of action that challenges
the val or application of a local ordi_nance, rule, regulation„
or initiative measure that regulates space rent, as specified; or-;a
cause of action that challenges a local government's applica,on
enforcement of any statute that is intended to benefit or protect
residents: in a mob . leiome park, unless the court determines that the
plaintiff has established :that there, is a probability that the
plaintiff will prevail on the claim.
Vote.: majority. Appropriation: no. Fisca'1 committee: no.
State- mandated focal program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature f nds.and declares all of the
following:
(a) Many focal jurisdictions, in an effort to preserve and support
affordable housing options, and to protect the investments of all
mobilehome owners - , have adopted .mob ilehome rent, ordinances to +•pro eci
mobilehome owners from excessive rent increases. Various state
statutes also reoui -re local j.prisdictions to review and rule upon
park owner applications to close or convert .rental mobilehcme: parks
and to ens.pre, that proper mitigation is provi,d.ed to all,moblehome
owners who may be displaced from their mobilehome parks due to its
2alosure or c0nversion
;b), Under current law, ''cities,:and counties that successfully
defend, their' mobilehome rent oi7dindnces, their administrative
decisions UTlder their ordinance's., and their clecisioni On park owner
closure and ccnversidh applications'inust bear the costs of their
legal: .defense, even if they win. On the other hand, pursuant to
several current state statutes that this bill amends, they must pay
the other''side's attorney's fees if they prevail under these statutes
Iff
Bill Text: CA Assembly Bill 579 - 201;1- 2012 Regular Session f eLobbyist Page 3 of 6
that allow them —to challenge mobilehome rent, ordinances, local
administrative decisions under; those ordinances, and local
administrative deci'iofis on park Yawner applications to close and
convert rental mobilehoue: parks
(c.) There has been. -a disturbing increase in lawsuits brought -
mobi.lehome park owners chall.eng';nq' the adoption and retention of
local mobilehome ordinance's., challenging local administrative
decisions under those'odinances, and ' challenging local decisions on
mobilehome park owner ,6ppli0atiohs to 'close and convert rental
mobil "ehome parks. These lawsuits often have little likelihood of
success, involve exces�-ivey
iinnecess'ary, 'and expensiveAfscovery
procedures and, in many instances„ cause local jurisdictions to
abandon the above protections.of :;mobil -ehome owners because of the
great expense of defending against these lawsuits regardless of the
local jurisdictions cfances of prevailing-.. These circumstances have
caused these lawsuits to- have'a chilling effect on local
jurisdictions' willingness aiid - ak l'ity to continue to preserve and
support affordable housing in mobilehome parks, and "to the
investments of all mobilehome 'owners, ,through the adoption and
retention of - mobilehome rent•ord nances and through the =proper
enforcement of both these, ordinances;,.and the, state statufes regarding
the closure and conversion of r.enta',,:mobilehome parks.
(d) It is in the public lntereSt t0 encourage t( continue
to adopt and retain these local ordinances and continue to properly
enforce both these mob 13'ehome park renIt . ordinances and state statutes
regulating the closure and conversi'on,of rental mobilehome parks. To
this end, the prov Sions ena C't,eCd !by th'i's measure shall be con`strLed
broadly.
SEC. 2. Section 425.20 "is added to the Code of Civil Procedure, to
read:
425.20. (a) (1) The €oll"owing:.causes of action shall be 'subject.
to a special motion to strYke, unless the court determines that the
plaintiff has established that there is a probability tnat the,
plaintiff will prevail on, the claim:
(R) F cause. :of action brought by, the owner of a mobilehome park°,
as defined in Section 798..A of the C:v:.l Code, to challenge the.
validity or application of an ,ordinance, rule, regulation, or
initiative measure adopted by any local, governmental entity that
regulates space .rent, or. 1'9 otherwise intended to benefit or protect
residents in the :park•.
(B) A cause of actaon_that challenges •a local government,'s
apprication.or enforcement of any state statute that is intended to
benefit of protect residents, in the ;mobilehome: park.
(2!) In making its 'deteriinat' ° ion, the court shall consider the
pleadings and supporting: -and opposing affidavits stating the facts
upon which the liability or •defense is based.
(3) If the court determines that the plaintiff has established a
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Bill Text: 'CA Assembly Bill 579-- 2011 =2012 Regular Session J eLobbyist Page 4 of 6
probability t�hat'he or she will'preva'il on the claim; :neither that
determination nor the fact of that determination sh "'dIrl !be %admissible
in evidence - 'at. any later stage of the case, or in any subsequent
'action, and no burden' of :proof or .degree. of proof otherwisee
applicable shall be affected by that. determination in any later stage .
of the case or in•any subsequent_ proceeding.
(b) In any action sub_ect'to subcdiv ision (a), a'prevai-ling
defendant on a special motion, :to strike shall be entitled to recover
his or her attorney's fees and costs. If the court finds that:,a
special motion .toy strike; is frivolou "s or its solely intended, ,to cause
unnecessary delay, the: court shall award'.costs. and -reasonable
attorney's fees -to a pla ntii`f prpvai`ing on the motion, pursuant to
Section 128_5
(c) The special motion may be filed within 60 days. of the service
of the compfai;nt or, zn E.he, co rt' % s di at :any, later time
upon terms it deems pr oper.. The .;mot,ion shall be'schedu ed`•by the,
clerk of the court for a,hearznq'.not.more than 30 days after the
service of the motion unless the:docket conditions of the court,
require a later hearing.
(,d) All, discovery proceedings fn the anion shall "be.stayed!'upon
the filing of a notice cif•inotion made pursuant to this sect cn. The
stay of discovery shall remain in ,effect .until notice of entry 'of the
order ruling on the motloli: The court_; on notided"motion and for
good cause shown', may order that - specified dis Eo4e;iy be conducted
notwithstanding this - subdivision,
(e) For purpose's of thi "i section, the followin apply,-
pply:.
(1) "Complaint" includes a cross = complaint or a petition.
(2) "Plaintiff" include s , a. ,cross complaindnt or petitioner - .
(3) "Defendant" includes a cross - defendant or a respondent.,.
(f) An order granting or special.mot on to.strike shall
be appealable under Section 9.04,.1.
SEC. 3. Section 1021.5 the Code of Civil Procedure is amended
to read:
1!021.5: s Upon motion, 'a court may award
: •_}C<7i" :'7:';' :'fees to a
successfui party - against one or more opposing partl_es in'any action
which has resulted in the enforcement of, an important right affecting .
the public, interest if-
significant benefit,,' whether :pecuniary or nonpecuniary, has been
conferred on the' .general public or- a, large class: of persons,
yi the nCicessity, and f'inancIia -1 burden of
private enrorcement, or of enforcement by one publ•rc..ehti'ty against
another public entity, are such as to make the'- award appropriate, and
;;e fees .sh'ould not in the
interest of justice be paid out of the recovery, if any,.
actfdns 'i nv,olvi ng publ. i�c entice -ie s, this section appl -ies to
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Bill Text: CA Assembly Bill 579 = 2011 -2012 Regular Session I eLobbyist Page 5 of 6
allowances agA nst,,' not in favor of, public entities, and no
claim shall be required to be filed therefor„ unless one or more
succes "sf'ul'part.ies and one or more opposing pasties are public
entities, iln which case no claim shall be .required to be filed
therefor under Part 3 (commencing with Section 900) of Division 3.6
of Title l of the Government Code.
i.f'i •, fees .awarded to a
public entity pursuant to this section shall not be increased 'or
decreased'by a multiplier based upon extrinsic,circumstances, as
discussed in. Serrano v. Priest, 20 Cal. 3d:25, 49.
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if
SFC. 4. Section 1036 of the Code of Civil Procedure is amended to
read:
1036. a! In any inverse condemnation
proceeding, the court rendering judgment for the plaintiff by'
awarding compensation, or the attorney representing the'Dubl "ic.enti-ty
who effects a settlement of that proceeding', shall determine'.and'
award or allow to the plaintiff, as:a part of that judgment or
settlement, a sum that`wi -11, in the opinion the court, reimburse
the plaintiff's reasonable costs, disbursements; and expenses,
including reasonable.at-tor.ney, appraisal, and engineering;f'ees,
actually incurred because of that proceeding in the trial court or in
any appellate proceeding in which the plaintiff prevails on any
i.ssue,in that proceeding.
C,,
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Bill Text: CA Assembly Bill 579 - .2011- 2012..Regular Session I eLobbyist Page 6 of 6
SEC. 5. Section 800 of the Government Code is amended to read:
800. (a') In any civil action to appeal or review the award,
finding, or other determination -of any administrative proceeding
under this code or under any other provision of state ,law, except
actions resulting from actions of the California Victim Compensation
and Government claims Board, . if it is shown that the award, finding,
or other determination of the proceeding was the result of arbitrary
or capricious action or :conduct by a public entity or.an 'of -ficer
thereof in his or her official: capacity-, the doimplairnanf if he or she
prevails in the civil action may collect from the . piu15ric .entity
reasonable attorney's 'fees, computed at. one hundred dollars ($1.00)
per hour, but not to exceed seven thousand five hundred do! lar.s
($7,500), if he or she is personally obligated 'to`pa.y the? ees in
addition to any other relief granted or other costs awarded.
(b) This section is ancillary only, and shall not.be construed to
create a new cause of action:
(c) The refusal by a,public entity or officer thereof to admit
liabil pursuant to:a contract of insurance shall not be considered
arbitrary or capricious action or conduct within the meaning of thi's
section..
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