COVID-19 Business Assistance and Eviction Moratorium

Covid-19

Local governments, the State of California, and the federal government have or will soon pass a number of measures meant to protect businesses from the economic effects of the coronavirus. This week, we summarize several business assistance programs and available funding sources, as well as San Francisco’s moratorium on commercial evictions. (San Francisco has also put in place residential eviction protections, which we do not address in this summary.)

Commercial Evictions

In response to the emerging COVID-19 pandemic, on March 16, California Governor Gavin Newsom took the extraordinary step of issuing Executive Order No. N-28-20, authorizing local governments to, in part, effectively halt monetary evictions for commercial tenants through May 31, 2020 unless extended. Two days later, San Francisco Mayor London Breed issued a Fourth Supplement to Mayoral Proclamation Declaring the Existence of a Local Emergency dated March 18, 2020, implementing a temporary local moratorium on the commercial evictions of qualifying tenants (the “Eviction Moratorium”).

The following provides a summary of key terms of the Eviction Moratorium and looks at other avenues of equitable relief that commercial tenants may also consider following its expiration or as a means to reduce rent.

Eviction Moratorium Rules and Duration

The Eviction Moratorium applies to commercial tenants with $25 million or less in combined worldwide gross receipts for the 2019 tax year (each, a “Qualifying Tenant”). This amount will be prorated for Qualifying Tenants that operated for only part of the year.

Commercial landlords may not recover possession of a Qualifying Tenant’s premises for non-payment of rent due on or after March 17 without first providing the Qualifying Tenant with proper notice and an opportunity to cure. This required notice must give Qualifying Tenants at least thirty days to cure from the date of receipt of the notice. During the cure period, Qualifying Tenants may either pay rent or provide documentation of its inability to do so due to the “financial impact” of COVID-19. Financial impact is defined as meaning a substantial decrease in business income due to illness, disruption, reduced hours or consumer demand, or temporary closure.

If a Qualifying Tenant provides the required documentation, the cure period is automatically extended by thirty days to allow for the parties to engage in the good faith negotiation of a payment plan. There is no guidance on what qualifies as sufficient documentation, creating what appears to be a low threshold for Qualifying Tenants to satisfy. If the parties are unable to agree on a payment plan, the cure period is extended for another thirty days, provided the Qualifying Tenant submits additional documentation of its inability to pay due to COVID. In total, the cure period may be extended in this manner for up to six months.

At the end of a Qualifying Tenant’s cure period, if it has not paid all outstanding rent the landlord may commence eviction proceedings. The Eviction Moratorium also does not relieve Qualifying Tenants of their underlying obligation to pay rent or restrict landlords’ ability to eventually recover rent that is otherwise due. Further, the Eviction Moratorium does not preclude landlords from seeking to recover rent through means “other than eviction for non-payment of rent”, which would seem to leave open the door for landlords to immediately seek monetary damages through civil litigation when rent becomes delinquent. However, due to court closures and delays in processing, this remedy is unlikely to be productive.

The Eviction Moratorium is effective until April 17 but may be extended an additional thirty days by Executive Order from Mayor Breed. The above-described cure period requirements survive expiration of the Eviction Moratorium.

San Francisco’s Office of Economic and Workforce Development has been tasked with developing implementation guidelines for the Eviction Moratorium and may also grant waivers for landlords who demonstrate that an inability to evict nonpaying Qualifying Tenants “would cause significant financial hardship (e.g. default on debt or similar enforceable obligation).” In negotiating payment plans with Qualifying Tenants, Landlords should anticipate the potential duration of cure periods for Qualifying Tenants they lease to and evaluate their own likelihood of being granted a waiver.

The Eviction Moratorium Expired – Now What?

As mentioned, the Eviction Moratorium does not mean Qualifying Tenants are now completely off the hook for paying rent while the Eviction Moratorium is in effect, as commercial landlords retain the right to collect all delinquent rent and may still seek non-eviction relief. Considering this eventuality, commercial tenants and landlords alike may wonder what other avenues of relief commercial tenants might seek on the basis of financial hardship from COVID-19.

These interested parties should first look to the language of their lease. While uncommon in commercial leases, the presence force majeure clauses should be considered.  Also, the legal theories of frustration of purpose, impossibility or inability to perform clauses in real estate contracts and agreements may be applicable. In eviction or other civil proceedings to recover rent that became due as early as March 2020, commercial tenants (whether Qualifying Tenants or not) should be expected to assert similar equitable defenses, while landlords will posit their own equitable arguments of fairness. It remains to be seen how the courts will handle and evaluate these claims.

Finally, given how quickly state and local governments have moved to place a moratorium on monetary evictions, it remains to be seen if similar executive orders or legislation will be enacted with respect to other commercial lease and/or contract provisions, non-monetary or otherwise.

Business Assistance Programs

Following is a summary of state and local assistance programs to aid business during the coronavirus emergency. The federal stimulus bill is still being drafted but it is expected to pass within days; we have sourced news articles for its business and employee protection measures.

SAN FRANCISCO

  • Deferred Business Taxes for Small Businesses: For businesses with up to $10 million or less in gross receipts, the City is deferring payment of quarterly business taxes—gross receipts, payroll, commercial rents, and homelessness gross receipts—by nine months, from April 30, 2020 to February 2021, with no interest or penalties. This will provide immediate cash-flow assistance to 8,050 small businesses. (https://sftreasurer.org/covid19)
  • Deferred Business License Fees: The Office of the Treasurer & Tax Collector collects annual license fees on behalf of the Department of Public Health, Fire Department, Police Department, Entertainment Commission and the Office of Cannabis. The due date for license fees, March 31, 2020, is extended to June 30, 2020. (https://sftreasurer.org/covid19)
  • COVID-19 Small Business Resiliency Fund: The City established a fund administered by OEWD to offer emergency grants up to $10,000 for employee salaries and rent for microbusinesses (up to 5 employees). Businesses must be able to show a recent loss in revenue of 25% or more, and have less than $2,500,000 in gross receipts. (https://oewd.org/covid-19-small-business-resiliency-fund)
  • SF Emerging Business Loan Fund: offers loans ranging from $50,000 to $250,000 to qualifying commercial projects. The purpose of the Emerging Business Loan Fund is to originate commercial loans that support high impact businesses and projects with the potential to increase economic activity in San Francisco as well as create jobs for low to moderate income individuals. (https://www.mainstreetlaunch.org/san-francisco-launch/ and https://oewd.org/grant-and-loan-programs)
  • Paid Sick Leave – Workers and Families First Program: The City will contribute $10 million dollars for private businesses to provide up to 40 hours (5 days) of additional paid sick leave time to employees beyond existing policies through this program. This new program provides financial assistance to businesses and nonprofits and may support over 16,000 additional weeks of sick leave pay and coverage for up to 25,000 San Francisco employees. All San Francisco businesses are eligible, with up to 20% of funds reserved for small businesses with 50 or fewer employees. The City will contribute up to one week (40 hours) at $15.59 per hour (minimum wage) per employee, or $623 per employee. The employer will pay the difference between the minimum wage and an employee’s full hourly wage. (https://sfmayor.org/article/mayor-breed-announces-plan-provide-paid-sick-leave-workers-impacted-coronavirus and https://sfgov.org/olse/san-francisco-paid-sick-leave-coronavirus)

STATE:

  • Employment Development Division (EDD) Extension: EDD is granting a 60-day extension to file state payroll reports and/or deposit state payroll taxes without penalty or interest for employers experiencing hardship from COVID-19. (ca.gov/pdf_pub_ctr/de231sed.pdf)
  • Work Sharing Program: Employers can apply for the program if they are looking for alternative to layoffs due to reduced production, services, or other conditions. This program helps employers keep their trained employees so that when business conditions improve, they can avoid the expense of recruiting, hiring, and training new employees, and save employees the hardship of becoming fully unemployed. (https://www.edd.ca.gov/unemployment/Work_Sharing_Program.htm)
  • Rapid Response Service for Businesses: Rapid Response teams will meet with businesses/employers to help avoid layoffs where possible and support employees through the process. Services can include upgrades to current worker skills, customized training, career counseling, job search assistance, help with filing unemployment insurance claims, and information about education and training opportunities. (https://www.edd.ca.gov/pdf_pub_ctr/de8714rrb.pdf)

FEDERAL STIMULUS PACKAGE (per New York Times):

  • Employee/unemployment benefits. Unemployment insurance will be extended by 13 weeks, and employee benefits will be enhanced for a period of four months. Workers will maintain their full salaries if forced out of work as a result of the pandemic. Freelances and gig workers will be offered these same benefits.
  • Small business loans with forgiveness for companies that keep employees. $350 billion in lending programs for small businesses that keep payrolls steady, and small businesses that pay their employees for duration of the crisis will have loans forgiven.
  • Federal Reserve loans. The Federal Reserve will leverage $425 billion for loans to help “broad groups of distressed companies.”

 

Authored by Reuben, Junius & Rose, LLP Attorneys Mark Loper and Michael Corbett

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

 

 

City Agencies During Shelter-in-Place

City Agencies and Shelter-in-place

We hope that everyone is staying healthy and safe.  Pursuant to the San Francisco and Bay Area Shelter-in-Place Orders, our physical offices are currently closed.  However, our attorneys and staff are all working remotely, and are connecting with clients and city staff members via email and phone.

In this week’s e-update, we wanted to summarize the status of public hearings for various San Francisco boards and commissions, and provide an update to the way in which public meetings are held by many other local jurisdictions in response to COVID-19.

San Francisco Public Meetings and City Departments

Board of Supervisors (BOS):  Both the full Board and Committee meetings will continue to be held.  Board President Yee has asked the Supervisors not to schedule non-essential legislation for hearings, instead allowing the Board to focus on matters that have statutory deadlines or are otherwise necessary.  Appeal deadlines and hearings before the BOS are continuing.  The Board members have an option to attend the meetings in person or via telephone, and member of the public are encouraged to submit comments in writing.  BOS Clerk’s Office remains open.

Planning Commission (PC):  PC hearings have been cancelled at least until April 9.  Those projects that were scheduled for any of the cancelled dates will need to be rescheduled.

Historic Preservation Commission (HPC):  HPC hearings have been cancelled at least until April 9.

Planning Department staff:  Most Planning staff members are working at reduced capacity remotely.  This means that project application processing, issuance of PPA (Preliminary Project Application) letters, environmental review, and other processes will continue, with the exception that no in person meetings will be arranged. Planning Department staff are scheduling telephone and videoconferences in lieu of in-person project review and other meetings.

Board of Appeals (BOA):  Appeal filing deadlines still apply, and since the Board office is closed any appeal must be filed by phone or email.  The March 18 hearing was cancelled, and the April 1 and April 8 hearings have also been cancelled.  The next regularly scheduled hearings on April 15, May 6 and May 27 are currently scheduled to proceed.  The parties to the appeals have been asked to submit their appeal briefs via email, and the original briefing schedules still apply even to appeals that are being rescheduled to a future date.

Zoning Administrator:  The March 25 hearing has been cancelled, and the next regularly scheduled hearing on April 22 is currently scheduled to proceed.

Department of Building Inspection (DBI):  DBI offices are closed until April 9.  It is our understanding that some emergency inspections are taking place, and the Mayor’s Office is working on a plan that will provide for continued permit review (by DBI and other applicable plan check agencies) for housing projects, which the Shelter-in-Place order allowed to proceed.

Other Bay Area Cities

Within the last week, Governor Newsom has issued two executive orders that address local municipalities ability to hold public meetings during the current pandemic.  Tuesday’s Executive Order No. N-29-20 provides further flexibility to Brown Act requirements, allowing cities and other governmental bodies to hold public meetings via teleconferencing without the need to also provide a physical location for the meeting.

Many cities around the Bay Area have cancelled various commission and committee meetings, however, most cities and counties must hold city council and county board of supervisors meetings for necessary actions.  Many cities have already held city council meetings via teleconference, and will likely continue to do so.  Pursuant to Gov. Newsom’s Exec. Order, public meetings still require advance noticing per normal requirements (i.e. 72 hours advance notice for regular meetings, and 24 hour notice for special meetings), and members of the public must still be provided an opportunity to provide public comment.  To the extent cities decide to hold public meetings entirely via teleconferencing, each jurisdiction may end up adopting slightly different methods on the way in which project sponsors can present a project that is being considered by the council, to the extent such items are still scheduled for the time being.

Many Bay Area jurisdictions have also declared local emergencies (in part in order to be sure that the local jurisdictions have the ability to obtain FEMA and other funding that may become available), and have closed their offices for all but essential services.

Looking Beyond – COVID-19’s Impact on Local Ballot Measures

COVID-19 is already shaping the November 2020 election, and it is expected to alter the content for the local November ballots.  One such example is the Faster Bay Area measure.  The March 2020 ballot contained two more localized transportation measures (the Sonoma-Marin Rail Transit Measure and Contra Costa Measure J), both of which failed.  The November 2020 ballot was anticipated to contain a regional, 9 county-wide one-cent sales tax measure that would have provided funding for transportation and transit projects for the greater Bay Area.  Per multiple newspaper articles this week, the proponents of the regional “Faster Bay Area” measure have decided to not move forward with the ballot measure in November due to COVID-19.

COVID-19 is also impacting the implementation of previously passed measures.  San Francisco’s Office of the Treasurer & Tax Collector announced last week that the estimated quarterly tax payments for the Gross Receipts Tax, Payroll Expense Tax, Commercial Rents Tax, and Homelessness Gross Receipts Tax, which would otherwise be due on April 30, 2020, are deferred for taxpayers that had combined San Francisco gross receipts in calendar year 2019 of $10M or less.  Instead, these quarterly estimated tax liabilities must be paid along with annual tax payments for tax year 2020, which will generally be due by March 1, 2021.

We are staying abreast of rapid changes that San Francisco, other cities, and the state continue to implement on an emergency basis. We’ll keep you posted in our weekly updates and will remain available to serve our clients for the duration.

 

Authored by Reuben, Junius & Rose, LLP Attorney Tuija Catalano

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Supervisor Ronen Proposes to Remove Most Office Uses in UMU Districts

Office Use

On Tuesday, February 11th, Supervisor Ronen introduced legislation that would greatly curtail the amount of office use that can go into buildings in Urban Mixed Use (“UMU”) Zoning Districts.  The legislation, available here, will prohibit all general office and allow “client-oriented” office uses at the ground floor with a Conditional Use Authorization.

UMU Districts were created through the Eastern Neighborhoods Area Plan, adopted by the Board of Supervisors in 2009.  The intent of the UMU Districts was to function as a buffer zone between the more restrictive residential and neighborhood commercial districts and the industrial PDR districts.  Uses such as light manufacturing, arts activities, laboratory, business service, and retail are encouraged. Housing is also permitted but is subject to higher affordability requirements.  UMU Districts are primarily located in Eastern Mission, Potrero Hill south of 16th Street, Showplace Square/West SoMa, and the Dogpatch neighborhoods. These areas have historically contained warehouse style buildings that contain a mix of uses interspersed with housing.

The intent in UMU Districts is to locate office use on the upper floors, keeping the ground floors available for more “public-facing” uses, such as traditional retail.  Only office uses that have a “client-oriented” business model, such as doctors offices, accountants, real estate brokers, and the like are permitted at the ground floor. General office use, such as an advertising agency and technology offices, are limited to the upper floors.

Currently, office uses are regulated in UMU Districts through “vertical controls” based on the height of a building.  A two-to-four story building can have 1 floor of office use; five-to-seven story building can have 2 floors of office use; and 8 or more story buildings can have 3 stories of office use.

Under Supervisor Ronen’s proposal office uses would be prohibited on the upper floors throughout UMU Districts.  Exceptions would still exist for qualifying landmark buildings.  The other notable change is that “client-oriented” office uses would be allowed at the ground floor but require a Conditional Use Authorization from the Planning Commission.  As proposed, there are no grandfathering provisions for projects currently under review.

Since the legislation was recently introduced, there are no Planning Department or Legislative Analyst reports or recommendations available.  The Planning Commission must review and make a recommendation on the proposed legislation within 90 days, after which it will return to the Board of Supervisors.  We will keep track of this legislation and provide updates when they become available.

 

 

Authored by Reuben, Junius & Rose, LLP Attorney Tara Sullivan

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivisions and condominium work.

 

A Carrot and a Stick for New Housing

New Housing

Last week, Mayor London Breed proposed an initiative that would exempt San Francisco housing projects that comply with zoning and volunteer additional on-site affordable units from the arduous and sometimes frustrating discretionary entitlement process. A few days later, Supervisor Hillary Ronen announced plans to further restrict office projects in the UMU zoning district, with the aim to encourage property owners into residential redevelopment instead of commercial. They show different approaches—a carrot and a stick, perhaps—to encourage the production of new housing.

According to a campaign website, Mayor Breed’s latest effort to provide more housing would amend the San Francisco Charter to provide a “streamlined” six-month approval process for all 100% affordable housing projects, and for any code-compliant mixed-income project that provided 15% more affordable housing units on-site than required by code.  In exchange, it would get approvals and start construction months if not years earlier.

The ballot measure is not yet publicly available, but a San Francisco Chronicle article suggested qualifying projects will not require any hearings at the Planning Commission. Other details to track in the initiative include AMI levels for the additional affordable units; the degree of design flexibility regarding certain Code requirements such as unit exposure and rear yard size; workforce and prevailing wage requirements; how the streamlined process will interface with the realities of each project’s CEQA processing; and the amount of design input afforded to City staff.

Supervisor Ronen’s proposed legislation—which is also not yet publicly available—would ban new upper-story office space in parts of the Mission District, Potrero Hill, and Dogpatch that are zoned UMU. Instead of upper floor office, the Supervisor hopes her legislation will spur property owners and project sponsors to consider residential developments instead.

UMU zoning is meant to encourage a mix of uses including but not limited to office, residential, light manufacturing, institutional, arts activities, and retail. Office use is already limited by building height in UMU. It generally cannot be located on the ground floor, promoting retail and other non-office uses in the pedestrian realm. Buildings with 2-4 stories are permitted one floor of above-ground office; 5-7 story buildings can have up to two; and buildings with 8 or more floors can have up to three. So under current zoning any property owner or project sponsor that builds to the height limit already cannot do a 100% office project.

Interestingly, Planning Department data shows that residential development in the Eastern Neighborhoods over the last 10 years outpaced what was anticipated, and less office and other commercial development occurred. If passed, Supervisor Ronen’s legislation could further that trend.

We will continue to track each piece of legislation. Check back for updates.

 

Authored by Reuben, Junius & Rose, LLP Attorney Mark Loper.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Updates to the Proposed Intermediate Length Rental Regulations

units and intermediate length rentals

Medium-term, furnished rentals have been a part of San Francisco’s housing stock for many years. According to the Corporate Housing Providers Association, roughly 3,000 dwelling units in San Francisco – less than one percent of the City’s total housing – are used as intermediate length rentals. These types of rentals serve workers in higher education, healthcare, theater, and other industries, who are in town too long to stay in a traditional hotel but don’t need a full one-year lease. They also provide housing for long-term family visitors – grandparents helping with a newborn or relatives caring for a sick family member.

However, many affordable housing advocates, who view these rentals as competing with long-term housing for San Francisco residents, lined up at the Planning Commission last fall to protest them. Shortly after, Supervisor Aaron Peskin introduced legislation targeted at  rental properties that require tenants to stay for at least 30 days in order to avoid short term rental regulations (See our prior coverage, New Legislation Aims to Limit “Intermediate Length” Rentals).

The legislation would amend the Planning Code to create a new Intermediate Length Occupancy (“ILO”) Residential Use Characteristic for dwelling units offered for occupancy of greater than 30 days but less than one year. It would also add a new Planning Code Section 202.10 to regulate those units. On January 14, 2020, substitute legislation was introduced which makes several changes to the original proposal. The substitute ordinance is available here.

While the original legislation allowed ILO units only in new construction of projects with at least 10 dwelling units, the substitute legislation would allow existing units to be eligible to be classified as ILO units unless the units are below market rate units built under the City’s Inclusionary Housing regulations or are subject to the Rent Control Ordinance. For buildings with nine or fewer units, requests to establish ILO use would be principally permitted so long as no more than 25% of the units in the building are classified as ILO. For buildings with 10 or more dwelling units, ILO units would require conditional use authorization, and no more than 20% of the units could be classified as ILO.

The substitute legislation further clarified that while ILO units could be offered for occupancy of one year or greater without losing the ILO use characteristic, ILO status would be considered abandoned if otherwise defined as abandoned under the Planning Code.

Finally, the revised legislation provides owners and operators of ILO units 24 months from the effective date of the ordinance to submit a complete application to establish the ILO use. The total number of ILO units Citywide would be capped at 1,000 – an increase above the 500-unit cap in the earlier legislation. While not labeled as interim controls, the intent of the legislation is to put in place a policy to regulate corporate housing while the data to be collected under the program is evaluated by the Controller’s Office. The legislation does not address grandfathering of existing ILO units, of which there are approximately 2,000 more than would be permitted by the 1,000 unit cap, but the 24 month compliance period established by the Ordinance indicates that existing units may not be grandfathered or exempt from the new ILO controls.”.

Residential hotels and student housing would still be exempt from Section 202.10 under the substitute legislation. Furthermore, the Rent Ordinance Amendments proposed in the original legislation would remain, except that the prohibition on non-tenant use, including use for a corporate entity’s own employees or licensees, and the requirement that online listings for units disclose that they are subject to the Rent Ordinance, would be effective April 1, 2020 instead of February 1, 2020.

The Planning Commission voted to recommend adoption of the substitute ordinance on January 30, 2020. We will continue to follow the evolution of these regulations as they move towards adoption by the Board of Supervisors and implementation by the Planning Department and Planning Commission.

 

Authored by Reuben, Junius & Rose, LLP Attorney Jody Knight.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Prop C – SF’s Early Care and Education Ordinance

Proposition C

Despite voter passage of Proposition C in 2018, and San Francisco’s resulting Early Care and Education Commercial Rents Tax Ordinance (the “Ordinance”) becoming operative January 1, 2019, questions still abound with respect to what is excepted/exempted from the Ordinance and what its impact is on a commercial landlord’s ability to pass-through certain operating costs. The following addresses these two areas of interest concerning the Ordinance, which is codified at Article 21 of the San Francisco Business and Tax Regulations Code (the “Tax Code”).

New Gross Receipts Tax Rates

The Ordinance creates a new gross receipts tax on rents collected from leases (including subleases) of 3.5% for most commercial spaces and 1.0% for rents from most warehouse spaces. These new taxes are in addition to all other taxes imposed by the City of San Francisco (the “City”), including the gross receipts tax presently imposed by Article 12-A-1 of the Tax Code.

Exemptions, Exclusions, and Credits

The following are either exempted or excluded from the additional gross receipts taxes imposed under the Ordinance:

  1. Certain nonprofits;
  2. Receipts from the leasing of commercial space to certain nonprofits, and to federal, state or local governments;
  3. Commercial landlords with less than $1,000,000 in gross receipts for the preceding year;
  4. Rents paid from Arts Activities, as defined in Section 102 of the Planning Code;
  5. Industrial Uses as defined in Section 102 of the Planning Code;
  6. Rents Paid from Retail Sales or Service Activities or Retail Sales or Service Establishments, as defined in Section 303.1(c) of the Planning Code;
  7. Any person who the City is “prohibited under the Constitution or laws of the State of California or the Constitution or laws of the United States” from imposing the gross receipts tax of under the Ordinance; and
  8. Gross receipts from the lease of most commercial space subject to the tax imposed under Articles 7 (Tax on Transient Occupancy of Hotel Rooms) or 9 (Tax on Occupancy of Parking Space in Parking Stations) of the Tax Code, or rent that is otherwise exempt from taxation under Articles 7 or  9.

Additionally, the Ordinance allows commercial landlords that lease or provide commercial space in the City for a Qualifying Child Care Facility[1] that operates for more than six months in a tax year to receive a credit against taxes under the Ordinance for that tax year. This credit expires by operation of law on December 31, 2023.

Impact on Pass-Through Expenses

A common question among commercial landlords in the City is what pass-throughs, if any, will be taxed as gross receipts under the Ordinance. The impact of the broad language in both the Ordinance and the applicable definition of “Gross Receipts” results in, with the exception of taxes, gross receipts encompassing essentially all pass-throughs, including those for ordinary operating expenses.

The Tax Code defines “Gross Receipts” as meaning, in part, the total amounts received or accrued by a taxpayer from “whatever source derived,” including, without limitation, rent. Gross receipts include all amounts constituting gross income for federal income tax purposes, as well as payment for any services that are part of the lease.  With respect to any lease or rental, gross receipts include payment for any services that are part of a lease or rental, whether received in money or otherwise, that is paid to, on behalf of, or for the benefit of, the lessor, and all receipts, cash, credits, property of any kind or character and the fair market value of services paid or rendered by the lessee.

It therefore appears that pass-throughs for operating expenses would be included in the determination of gross receipts.

Finally, Regulation 2019-1, adopted by the City in 2019 after the Ordinance became operative, resolved a conflict between the Ordinance and an earlier-proposed City regulation that would have sought to provide no exemption for local, state or federal taxes. Regulation 2019-1 resolved this discrepancy in favor of commercial owners, stating that no local, state or federal taxes would be exempt from gross receipts “to the extent the amount claimed as a reimbursement exceeds the actual amount of the tax paid or payable to the applicable local, state or federal housing authority.” In other words, actual taxes paid or payable are exempt.

It is therefore advisable to include clear language in commercial leases relating to the pass-through of gross receipts, including those for local, state and federal taxes.

References

[1] “Qualifying Child Care Facility” means a facility that is licensed by the California Department of Social Services, or any successor agency, to provide non-medical care to Infants, Toddlers, Preschool-Age Children, or any combination thereof in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual on less than a 24-hour basis in a group setting. (Tax Code, § 2106.1(c)(1))

 

Authored by Reuben, Junius & Rose, LLP Attorney Michael Corbett.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

California Tells Cities to “Approve Housing and Don’t Delay”

The Housing Crisis Act will dramatically reduce the ability of cities and counties across California to obstruct or deny housing by removing the main tools used by housing opponents – unpredictability, subjectivity and delay. To deny a housing project application, cities and counties will now have to make an objective determination and make it more quickly.

The Housing Accountability Act already limits a jurisdiction’s ability to disapprove or conditionally approve a residential housing project for lower and moderate-income residents (up to 120% of the area’s median income level) if the project is consistent with the local zoning and general plan and it meets objective standards.

The Housing Crisis Act of 2019, also known as SB 330, continues to move State housing law toward objectivity and predictability. It applies to urbanized jurisdictions as will be determined by the Department of Housing and Community Development by July 2020 based on US Census data. We expect urbanized jurisdictions to include San Francisco and much of the Bay Area, Los Angeles area, San Diego area, and the Highway 99 corridor through the Central Valley. The new law went into effect on January 1, 2020 and will sunset on January 1, 2025.

An urbanized jurisdiction may not rezone or “downzone” properties where housing was allowed in 2018 in a way that would discourage residential development without “upzoning” elsewhere within the jurisdiction. This includes changes in height, density, FAR, minimum lot size, minimum frontage, and moratoriums or caps on housing approvals. Similarly, an urbanized jurisdiction no longer can adopt subjective design standards or apply those adopted after January 1, 2020 to proposed housing projects.

In an urbanized jurisdiction, residential units cannot be removed from the market. Any project that proposes to demolish protected residential units, including below market rate, rent controlled, or Section 8 units, must replace those units at similar affordability levels. A project applicant must also provide relocation assistance and an opportunity for those tenants to rent the new units.

An applicant can lock the then-current land use controls in an urbanized jurisdiction by filing a preliminary application. A full application must be made within 180 days of the preliminary application and the applicant has 30 months to begin construction. This does not limit existing fees with automatic annual adjustments.

Local planning departments are going to have to plan their hearing calendar carefully for these housing projects. Once a housing development project application is deemed complete (for an entirely residential project or a mixed-use project on land zoned to require at least 2/3 residential), a jurisdiction may only hold five hearings on the project. Workshops and continuances count toward the five-hearing limit. An appeal hearing also appears to count toward the five-hearing total. The number of hearings may not be extended by the applicant. Permit Streamlining Act timelines limit a jurisdiction’s ability to delay the five hearings.

A project applicant, a qualified potential resident, or a housing organization may bring an action to compel an urbanized jurisdiction to comply with these requirements. A court must take action within 60 days and the burden of proof is on the local jurisdiction to show that they complied.

Cities like San Francisco are already taking seriously these new changes. Other jurisdictions are likely waiting for HCD’s official determination later this year. The determination could be a pivotal moment for communities that are on the cusp of urbanization and use discretionary tools to slowly kill housing projects. We will be watching closely.

Please keep in mind that there are many subtleties to both new and existing law. Please contact Reuben, Junius & Rose, LLP for more information.

 

Authored by Reuben, Junius & Rose, LLP Attorney Jonathan Kathrein.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

 

SB 50 Revamp: The More HOMES Act Amended

SB 50 Housing

SB 50, The More HOMES Act introduced by San Francisco State Senator Scott Wiener in December 2018 was reintroduced with amendments earlier this week. The reintroduction comes after SB 50 was held by the Appropriations Committee last spring by State Senator Anthony Portantino.

SB 50, which we have previously reported on, seeks to address California’s housing crisis by requiring cities to allow increased density for housing projects near “high-quality” transit stops or “jobs-rich areas.” In addition, SB 50 would streamline permitting for multifamily housing developments up to 4 residential dwelling units that are code complaint per the zoning requirements in place as they existed on July 1, 2019. For such projects, the bill would establish a streamlined ministerial approval process, thereby exempting them from the California Environmental Quality Act (“CEQA”) approval process. And SB 50 would prohibit a local agency from adopting any requirement that applies to a project solely or partially on the basis that the project receives ministerial or streamlined approval.  Not surprisingly, opponents of SB 50 continue to express concerns regarding its incentive program taking away local control and the likely displacement of locals through gentrification.

There is an estimated shortfall of 3.5 million units of housing in California that is the result of a decade of low housing production. SB 50 enables the production of more housing and requires larger projects to set aside 15% to 25% of homes to low-income residents. SB 50 aims to increase density in residential areas by making it legal to construct small apartments complexes, such as triplexes and fourplexes, in single-family neighborhoods and up to six-story buildings adjacent to “high-quality” transit.

In order to address the local push back, the following amendments have been added:

  • Gives local governments flexibility – local flexibility plans – for how they implement SB 50’s requirements;
  • A priority preference program for local low-income residents; and
  • Continues to provide a two-year implementation delay for “potentially sensitive communities” and five-year implementation delay for “sensitive communities.” These are generally defined as communities that are vulnerable to gentrification.

Local Flexibility Plans

In lieu of being subject to SB 50, local governments may submit a “local flexibility plan” that crafts their own housing plans. The local flexibility plan must create at least the same number of new units as would be allowed under SB 50.

By July 2, 2021, the Governor’s Office of Planning and Research shall publish rules, regulations, or guidelines for the submission and approval of a local flexibility plan. Local governments will have to submit their local flexibility plans to the Department of Housing and Community Development for review and approval. If the local flexibility plan is certified by the Department of Housing and Community Development, the local government would not be required to grant the incentives provided under SB 50.

To prevent a local government from concentrating new housing in certain areas, a local flexibility plan cannot result in increased vehicle miles traveled and must distribute new housing equally among both lower-income and more affluent areas. The goal being to add housing near jobs to reduce residents’ commutes, and in turn help the state reach its greenhouse gas reduction goals.

Priority Preference Program

In an effort to prevent displacement of low-income residents from their neighborhoods, individuals living within one-half mile of the housing development will receive priority for some of the project’s homes. Forty percent of a housing development’s affordable housing units are to be reserved for low income, very low income, and extremely low-income households living within one-half mile. Note, SB 50 does not include a provision for the creation of guidelines on implementation of the priority preference program.

Sensitive Communities

By July 1, 2023, “sensitive communities” in each county shall be identified by a working group comprised of residents of potentially sensitive communities within the county. The working group will develop a map of sensitive communities within the county to be adopted by the board of supervisors or council of governments, as applicable. And implementation of SB 50 would be delayed until January 1, 2026, for the identified “sensitive communities.” For “potentially sensitive communities,” implementation of SB 50 would be delayed until July 1, 2023.

Senator Wiener has indicated that housing is his top legislative priority this year. And he is likely to have a receptive ally from Governor Gavin Newsom who has pledged to have 3.5 million new homes built by 2025.

SB 50 has until January 31, 2020, to pass the State Senate otherwise the proposal officially dies in the legislature.

 

Authored by Reuben, Junius & Rose, LLP Attorney Justin A. Zucker

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full-service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Prop F – More Restrictions on Campaign Contributions and Advertisements

Prop F

In June 2019, District 4 Supervisor Gordon Mar introduced Proposition F, also known as the “sunlight on dark money” ballot initiative. The goal, according to Supervisor Mar, was to restrict “pay-to-play” donations and increase transparency in terms of who is contributing to candidates and their committees. However, what resulted was a ballot initiative—which was ultimately approved by approximately 77% of voters in the November election—that appears to only single out donations from the development community.

Campaign Contributions

Proposition F amended the San Francisco Campaign and Governmental Conduct Code by adding limited liability companies and limited liability partnerships, whether for-profit or nonprofit, to the business entities that are prohibited from directly contributing to candidate committees.

In addition, individuals, and any entities the individual controls or majority owns, are prohibited from contributing to the campaigns of candidates for mayor, Board of Supervisors, or city attorney if they have a pending land use matter before the City or a land use matter that was ruled on within the previous 12 months. The following would be prohibited from making these land use-related donations:

  • People who have an ownership interest of at least $5,000,000 in a land use project or property;
  • Individuals who hold a director or principal officer position in an entity with an ownership interest of at least $5,000,000 in a land use project or property; and
  • Developers of projects with an estimated construction cost of at least $5,000,000.

Note that the prohibition on land use contributions is not applicable to matters concerning an individual’s primary residence.

Finally, Proposition F prohibits current members, prospective candidates, or their election committees from accepting or soliciting prohibited contributions. However, the law interestingly includes a “safe harbor provision,” which states that if the political committee or candidate accepted a prohibited contribution after doing “due diligence,” they will not be penalized other than having to forfeit the contribution to the City’s General Fund.

One of the ways to satisfy the “due diligence” requirement of the safe harbor provision is if the person or entity making the contribution states under penalty of perjury that the contribution is not prohibited. In that case, even if the candidate or committee knows or has reason to know that the contribution is illegal, the donor’s statement that it is not prohibited will constitute a complete defense from enforcement against the candidate and/or their committee. The wording of this safe harbor provision is certainly strange – but this is what the current law says. And although provisions of the Campaign and Governmental Conduct Code can typically be amended or repealed by the Board of Supervisors, the section that prohibits land use-related contributions (including the safe harbor protection for candidates and committees) can only be amended or repealed by the voters.

Campaign Advertisements

Proposition F also made a number of changes to campaign advertising laws, including:

  • Lowering the threshold for qualifying as a top donor to political advertisements, which must be disclosed, from $10,000 to $5,000. If any of the top three major contributors is a committee, the disclaimer must also disclose both the name and the dollar amount contributed by each of the top two major contributors of $5,000 or more to that committee.
  • Increasing the minimum Political Reform Act disclaimer size from 12 point to 14 point bold font.
  • Requiring disclaimers in audio and video advertisements to be spoken at the beginning, rather than the end.
  • Requiring committees that file late independent expenditure reports and associated advertisements to also file  an itemized disclosure statement with the Ethics Commission for that advertisement(s)
  • Requiring committees making independent expenditures to pay for mass mailings to file a copy of the mailing and an itemized disclosure statement with the Ethics Commission within five days. However, if the mass mailing occurs within the final 16 days before an election, the copy of the mailing and itemized disclosure statement must be filed within 48 hours.

 

Authored by Reuben, Junius & Rose, LLP Attorney Tiffany Kats

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

 

 

New California ADU Laws Aim to Remove Barriers and Boost Development

While campaigning for Governor, Gavin Newsom pledged to build 3.5 million new units by 2025 to combat California’s housing crisis. One way to meet this ambitious goal is through the construction of accessory dwelling units (“ADUs”). Since 2017, California lawmakers have passed several bills to streamline the ADU approval process. However, exorbitant fees and strict local requirements in some cities have continued to hinder the development of new ADUs. In response, Governor Newsom recently signed into law five bills that aim to further remove local barriers to ADU development, as well as to incentivize owners of both single-family and multi-family homes to add much-needed additional units to their properties.

AB 68 & AB 881 – Streamlining ADU Approvals

AB 68 and AB 881, introduced by Assemblymembers Philip Ting and Richard Bloom, were consolidated and enacted as one bill because the fundamental goal of the two bills was essentially the same—to streamline and improve the ADU process in order to facilitate the development and construction of ADUs. Effective January 1, 2020 these bills will:

  • Require permits for ADUs and junior ADUs added to existing single-family and multi-family homes to be ministerially approved or denied within 60 days, rather than the 120 days allotted by existing law;
  • Allow the approval of ADUs in proposed housing to be delayed until the new construction is approved, but the ADU permit must still be issued ministerially;
  • Allow cities and counties to establish minimum and maximum ADU size requirements, provided that the maximum floor area is not less than 850 square feet or 1,000 square feet if the ADU has more than one bedroom;
  • Prohibit any lot coverage, floor area ratio, open space, and minimum lot size requirements that would impact or deny ADU production; and
  • Prohibit municipalities from requiring that existing nonconforming zoning conditions be corrected as a condition for ADU permit approval.

Perhaps most importantly, subject to certain requirements, the consolidated bill will require ministerial approval for projects in residential and mixed-use zoning districts that propose to create the following:

  • One ADU (attached or detached) and one junior ADU on a lot with either an existing or proposed single-family home;
  • Multiple ADUs within an existing multi-family building; or
  • Up to two detached ADUs on a lot with an existing multi-family building.

Note that if a garage is converted or demolished to construct a new ADU, the off-street parking spaces do not have to be replaced. Furthermore municipalities will be prohibited from enforcing parking standards for ADUs located within ½ mile of public transit.

SB 13 – Owner Occupancy and Fees

Similar to the consolidated bill made up of AB 68 and AB 881, SB 13 prohibits the enforcement of parking standards for ADUs within ½ mile of public transit, requires ministerial approval of ADU permits within 60 days, and allows the construction of ADUs in garages and detached accessory structures. However, SB 13, introduced by Senator Bob Wieckowski, goes a step further by tackling two key issues: (1) the owner-occupancy requirement and (2) expensive fees.

First, as a condition of approval, local agencies can currently require that an applicant for an ADU permit occupy either the primary residence or the proposed ADU. Until January 1, 2025, SB 13 will exempt all ADUs from such owner-occupancy requirements.

Second, one of the biggest barriers to constructing ADUs in California are the fees associated with getting them approved and developed. To further incentivize owners to construct ADUs, SB 13 will implement a tiered fee structure based on the ADU’s size and location. Specifically, no impact fees can be imposed on ADUs smaller than 750 square feet, and any impact fees assessed for larger ADUs must be proportional to the square footage of the primary residence.

AB 670 & AB 671 – HOA and General Plans

Finally, AB 670 prevents homeowners’ associations from banning or unreasonably restricting the construction of ADUs on single-family residential lots. Meanwhile, AB 671 will require local General Plan housing elements to incentivize and promote the construction of affordable ADUs that can be rented to very low, low, and moderate-income households. The California Department of Housing and Community Development must also draft a list of “existing state grants and financial incentives” for ADU owners and developers by December 31, 2020.

Together, this package of ADU laws hope to ease local restrictions in order to incentivize the development of “affordable by design” ADUs. In the midst of California’s housing shortage, it remains to be seen what impacts these bills will have on ADU construction when they take effect next year.

 

Authored by Reuben, Junius & Rose, LLP Attorney Tiffany Kats

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.