The Mayor’s Stimulus Plan – which we first reported on in our October 2nd R&J update – was introduced to the Board of Supervisors on October 27th and November 3rd.

Development Fee Simplification and Deferral

The first part of the Plan simplifies the administration of development fees and allows for their deferral. A Development Fee Collection Unit would be established at the Department of Building Inspection that would administer all fees – including those charged by the Planning Department, DBI, the MTA (i.e., the transit fee, or TIDF), the San Francisco Unified School District, and the San Francisco Public Utilities Commission. All of these city agencies would have to agree to participate once the Plan is enacted.

The Collection Unit will publish an annual Citywide Development Fee Register, which will combine all current development fees charged by all the various city agencies in one place. In addition, the Collection Unit will issue a fee report for each individual project, itemizing the various fees charged to the project. If a project sponsor disputes any of the fees in this report, they can appeal it to the Board of Appeals.

Most significantly, the Plan would make all development fees due prior to issuance of the first construction document – normally a building permit or site permit addendum. Demolition permits or other site preparation permits would not trigger the fee payment. This at first seems like it is going in the wrong direction, as some of the fees (TIDF, school fee) are currently due at the end of the project, not prior to getting your building permit. The relief is that a project sponsor could defer the payment of all development fees until the issuance of the first certificate of occupancy (temporary or final). An annual deferral fee would be charged that would be equal to the City’s cost of funds. Specifically, this fee is “calculated monthly by the San Francisco Treasurer’s Office as 60% of the Two-Year U.S. FNMA Sovereign Agency Note Yield-to-Maturity and 40% of the Current Two-Year U.S. Treasury Note Yield-to-Maturity as quoted from the close of business on the last open market day of the month previous to the date when a project sponsor elects to defer the development fees owed on a development project.”

Affordable Housing Transfer Fee Restriction Alternative

The Plan would also allow project sponsors to defer 33% of their upfront inclusionary housing (below market-rate) requirements (for residential projects) or Jobs Housing Linkage Fee requirements (for office projects) requirements. The trade off is that the owner must record a Notice of Special Restrictions on the development property that requires a fee equal to 1% of the value of the property be paid on all future transfers of the property. If no transfer is made within the first 10 years of the issuance of the first certificate of occupancy, a one-time 1% of value fee must be paid; however, the transfer fee will continue to apply to all future transfers. The fee may be paid by the buyer or seller as negotiated by the parties. So in essence, the “deferral” is permanent, as portion of this major fee would be paid over time through property transfers rather than as one lump sum up front.

A transfer would include a subdivision and sale of a condo unit (including the first sale by the developer), as well as a ground lease lasting more than 35 years. There are a number of transfers that are exempt from the transfer fee. Once the transfer fee restriction is recorded on the development property, it can be lifted at any future date if the “present value of the restriction to the city” is paid.

The Transfer Fee Restriction alternative is not available to project sponsors who wish to fulfill their BMR obligations through land dedication.

Schedule of Public Hearings

Tentatively, the Stimulus Plan will be discussed at the following public hearings:

December 3 – Planning Commission
December 19 – Building Inspection Commission
January – Board of Supervisors Land Use and Economic Development Committee

For those of you who would like to see these measures enacted, or would like to comment on them as to their potential effectiveness, we urge you to attend one or more of these hearings and make yourself heard.

Email John Kevlin at “jkevlin@reubenlaw.com” if you would like the text of any of the ordinances.

 

Be on Alert for Bogus Business Solicitations

The California Secretary of State has issued a warning regarding misleading solicitations sent to many business owners. These letters encourage business owners to comply with their California Corporations Code filing obligations by submitting fees and documents to a third party such as the “Business Filing Division” or “Corporate Compliance Center” rather than by filing directly to the Secretary of State’s office. These bogus solicitations appear similar to a Secretary of State Statement of Information form, quote specific statues and even contain an official-looking seal. They imply that failing to return the form and pay the requested fee may place the business in legal jeopardy. These companies have no affiliation with the Secretary of State, and charge much higher fees than required by the Secretary of State. Be advised that no business is required to go through another company in order to file its documents with the Secretary of State’s office.

If you have made a payment in response to one of these solicitations, you should confirm that your business is in compliance with its filing obligations. If you have any concern that a form regarding your corporation or limited liability company (LLC) may be a bogus solicitation, you should contact your corporate attorney or Jay Drake at Reuben & Junius, LLP.

Suspicious solicitations may also be reported to the California Attorney General’s office, Public Inquiry Unit, P.O. Box 944255, Sacramento, California 94244-2550. A complaint form, which can be completed online and printed to mail, is available on the California Attorney General’s website at www.ag.ca.gov/consumers/general.php

California State Agency Issues New CEQA Regulations Regarding Greenhouse Gas Emissions…

On October 23, the California Natural Resources Agency issued new CEQA regulations on greenhouse gas (“GHG”) emissions that have made it through one round of public comment and revision. This rulemaking process was initiated by the passage of SB 97 in 2007, guiding how GHG emissions would be analyzed by CEQA. The most recent revisions include requiring a lead agency’s GHG emission analysis be based on “scientific and factual data” as opposed to just “available information” and requiring that any GHG mitigation must be supported with substantial evidence and be subject to monitoring. There is the potential that these new regulations may impose considerable new entitlement burdens on even small projects.

The comment period on this new round of proposed regulations runs through November 10. For a copy of the latest version of the regulations and other related information, go to http://ceres.ca.gov/ceqa/guidelines/.

…And The First Court Opinion on CEQA Energy Analysis is Handed Down

The Third District Court of Appeal has ruled that a city can determine that a project does not have a significant impact on energy consumption when it surpasses the California Building Energy Efficiency Standards. The project at issue was a proposed grocery store in Tracy. Opponents argued that the city could not rely on the state standards for the purposes of CEQA. The Court stated that an Environmental Impact Report did not have to discuss every factor listed in CEQA Appendix F, which contains energy use and conservation measures.

The case is Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912. Email John Kevlin if you’d like a copy of the decision.

Inching Towards a Constitutional Convention

From the budget crisis in February…to the budget crisis of June…to the water legislation crisis of September…there’s been a lot of talk of throwing out the whole State Constitution and starting anew in California. Now the Bay Area Council – a business-sponsored public policy organization – has taken the first of many steps towards accomplishing the rewrite.

On October 28, the Council submitted paperwork with the Secretary of State to put two initiatives on the ballot next November. The first would amend the current State Constitution to allow citizens of the state to call a constitutional convention through the initiative process with a majority vote. The second actually lays out the specifics for the convention. The convention would be limited to revising the following areas of the Constitution: government effectiveness, elections and reduction of special interest influence, spending and budgeting, and governance. Any revisions approved by the convention would have to approved by another statewide initiative vote.

240 delegates would be selected at random, more than 200 would be selected by county political officials, and 4 will be selected by the federally-recognized Indian tribes in the state.

Backers of the initiatives still need to collect enough signatures to qualify it for the November 2010 ballot.

Go to http://www.sos.ca.gov/elections/elections_j.htm or email John Kevlin if you’d like a copy of the initiatives.

Reuben & Junius, 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 leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Earlier this year, the California Court of Appeal in Palmer vs. City of Los Angeles (2009) 175 Cal.App.4th 1396 (“Palmer“) issued a ruling that could have a major impact on how local inclusionary housing rules are applied to rental projects. Last week the California Supreme Court decided not to take the case up and therefore the Palmer decision stands. Below we discuss the case and what it might mean for the future of rental inclusionary rules

Facts. A Los Angeles developer obtained approval in 2006 for a mixed-use residential project that included 350 residential units. The Planning Commission approved the project subject to the local inclusionary affordable housing rule, which required that the developer provide 60 replacement low-income dwelling units, either on-site, or pay an in-lieu fee, and execute an agreement with the City to maintain the rental restrictions for a period of 30 years after the Certificate of Occupancy was issued. The developer had requested waivers and otherwise exhausted his administrative remedies to avoid the fee.

The Decision. The Superior Court held that the City’s affordable housing requirement, which required the building of on-site affordable housing, was pre-empted by the vacancy de-control provisions of the Costa Hawkins Rental Housing Act (Civil Code §§ 1954.50 et. seq.) (“Costa Hawkins”). The court also held that the ordinance’s in-lieu fee provision was preempted by Costa Hawkins and not severable from the invalid portions of the affordable housing requirements. The City then appealed from the judgment, which the Second Circuit Court of Appeal affirmed in its July 22, 2009 decision.

Costa Hawkins, enacted in 1995, created what is commonly referred to as “vacancy de-control”: when a rental unit becomes vacant, the owner may establish whatever rent they choose at the commencement of the next tenancy. (See Palmer, 175 Cal.App.4th at 1405.) Costa Hawkins provides without ambiguity that “notwithstanding any other provision of law” all residential landlords may, except in specified situations, “establish the initial rental rate for a dwelling or unit.” (Civil Code § 1954.53(a)). Courts have consistently held that the effect of this provision was to permit landlords “to impose whatever rent they choose at the commencement of a tenancy.” (Cobb vs. San Francisco Residential Rent Stabilization and Arbitration Board (2002) 98 Cal.App.4th 345, 351; see also Action Apartment Association, Inc. vs. City of Santa Monica (2007) 41 Cal.4th 1232.)

As Los Angeles’ affordable housing ordinance established the residential rental rate at the outset of the tenancy, it deprived the owner of the property of the right to set the rental rate at the outset of the tenancy as provided under Costa Hawkins, and thus was preempted by Costa Hawkins. (Palmer, 175 Cal.App.4th at 1411.)

Applicability of Palmer. Palmer only applies to the rental component of inclusionary housing requirements; for sale units are not affected by Costa Hawkins, and therefore are outside of the reach of Palmer. (Id. at 1410-1412.)

Costa Hawkins also does not apply to a project “where the owner has otherwise agreed by contract with a public entity in consideration for a direct financial contribution or any other forms of assistance.” (Civil Code § 1954.52(b); Palmer, 175 Cal.App.4th at 1402.) Therefore, if such financial assistance is taken, the City could impose the inclusionary housing requirements.

While we believe that Palmer has broad applicability, those seeking to limit the application of Palmer have noted that it does have some facts particular to its situation, including: the fee was calculated based on the cost of subsidizing the City’s entire regional housing need, not just the affordable housing that would otherwise have been included in the project; and the court did not address the relation of the ordinance to impact fees. We believe that the preemption holding of the Palmer court rises above these limiting factors of circumstance; however, a sympathetic court could use such facts to try and limit Palmer‘s application.

We believe the Los Angeles inclusionary requirements are very similar to those of San Francisco. However, San Francisco has done a nexus study to support its requirement, and Los Angeles had not.  This may be a distinguishing factor if San Francisco’s ordinance were challenged.

If you would like to learn more about Palmer, let us know.

Reuben & Junius, 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 leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

 

 

Planning Commissioners Open to Entitlement Extensions, Looking for Affirmative Steps Taken by Developers

Last Thursday, the Planning Commission held an informational hearing to discuss the Zoning Administrator’s consideration of an entitlement extension for an 88-unit project in Rincon Hill that was approved back in 2005. The entitlement expired in 2008. The Planning Commission ultimately signaled to the Zoning Administrator their support to extend the entitlement, but after some revealing discussion.

Commissioners mainly expressed their desire to see developers affirmatively and voluntarily taking steps to beautify their vacant buildings and lots as much as possible. Specific suggestions included installing artistic fencing around lots, maintaining vegetation, “greening” project sites with aesthetically pleasing plants, and keeping sites clear of garbage and other debris. It appears the Commissioners will look more favorably upon extension requestors that have taken a proactive approach to at least keep their site clean and in good order.

Also, Commissioners expressed their distress over projects whose entitlements have expired long ago are just now coming around to requesting extensions. The lesson: if your entitlement is approaching expiration, be sure to apply for an extension before the performance condition runs. California case law does not allow development entitlements to expire automatically at a certain time, but the Planning Commission can always revoke one. The Commission has yet to deny a request for an entitlement extension or discourage the Zoning Administrator from doing the same in 2009. But that doesn’t mean they can’t.

Sign Company Brings Lawsuit Against City’s Sign Ordinance

After its unique advertising program came under attack by the Planning Department, Contest Promotions LLC brought a federal challenge to San Francisco’s Sign Ordinance. The company’s program consisted of attracting shoppers to a store with an on-site sign promoting prize contests in which one must enter the store to fill out an entry form. The sign would also include an advertisement for a product that was not sold in the store, but was associated with the contest.

The Planning Department began citing Contest Promotions, claiming its signs are violating the city-wide general advertising ban.

In the lawsuit, the company asserts that the Sign Ordinance is unconstitutionally vague, as well as a deprivation of advertisers first amendment free speech rights. If the case proceeds to trial, it should provide some rare judicial comment on the City’s very strict signage rules.

If you would like an electronic copy of the federal complaint, just email us.

 

On October 11, 2009, Governor Schwarzenegger signed into law AB 531, which amends Public Resources Code section 25402.10 (also known as AB 1103). AB 1103 was enacted in 2007 and requires that beginning January 1, 2009, electric and gas utilities maintain records of the energy consumption data of all nonresidential buildings to which they provide service. The utilities are to maintain the data in a format compatible for uploading to the United States Environmental Protection Agency’s ENERGY STAR Portfolio Manager, for at least the most recent 12 months.

Prior to the recent amendment, AB 1103 additionally provided that beginning January 1, 2010, an owner or operator of a nonresidential building must disclose the United States Environmental Protection Agency’s ENERGY STAR Portfolio Manager benchmarking data and ratings for the most recent 12-month period to a prospective buyer, lessee of the entire building, or lender providing financing to the entire building. While the substantive disclosure requirements of AB 1103 remain unchanged, AB 531 amends the timing of the owner/operator disclosure requirements. The details of this change are discussed below.

Purpose of the Legislation

The purpose of AB 1103 is to “track and compare the energy use of commercial buildings by comparing the energy consumption per square foot of floor space. It is a tool for assessing the relative energy efficiency of buildings to better inform investment decisions made by building operators, owners and prospective owners.” (AB 531 Bill Analysis, Chuck Nicol, Assembly Committee on Appropriations.)

The California Energy Commission reports that commercial buildings account for 36% of the state’s electricity, which it says is the most of any sector. The Commission maintains, “benchmarking [] allow[s] building owners and managers to compare their buildings’ energy efficiency performance in two ways: against the performance of similar buildings, and as a baseline to demonstrate changes in building performance over time. This tool will not reduce energy use; its purpose is to inform building managers about energy performance and to motivate them to make their buildings more energy efficient. It can also help establish investment priorities to take advantage of energy efficiency opportunities.”

Details of the Amended Law

Under the new amendment, Public Resources Code section 25402.10 no longer provides for owner/operator disclosure of benchmarking data and ratings to begin on January 1, 2010, but instead provides for the owner/operator disclosure requirements to be “based on a schedule developed by the California Energy Commission.” The purpose of the amendment is to allow “the [California Energy Commission] to develop an implementation schedule in order to ensure that the goals of AB 1103 are met without harming potential building transactions.” (AB 531 Bill Analysis, Chuck Nicol, Assembly Committee on Appropriations.)

Although not yet adopted, the California Energy Commission has created “Draft Regulations Implementing AB 1103” which would amend California Code of Regulations. Under the Commission’s current draft regulations, California Code of Regulations section 1685 would provide an implementation schedule for owner/operator disclosures to begin on July 1, 2010, July 1, 2011, or July 1, 2012 depending on building size and type.

During the worst recession since the great depression, the legislature has responded to building owner/operator concerns that AB 1103 would have a chilling effect on sales and leasing. Whether this relatively simple disclosure requirement would have such an impact remains to be seen as, for example, many “green” leases already promote or require energy disclosures between an owner/operator and a prospective tenant in the leasing process. Thus, even if the state were not imposing disclosure requirements, a savvy prospective tenant may ask for the kinds of disclosures contemplated by AB 1103, as most “green” lease due diligence checklists instruct tenants to ask for energy disclosures.

In addition, where an owner is seeking LEED Existing Buildings: Operations & Maintenance (EBOM) certification, it may already be making AB 1103 disclosures because, through these disclosures, the owner is able to receive credit toward the necessary requirements to receive LEED EBOM certification.

Reuben & Junius, 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 leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

 

 

 

 

 

Local Stimulus Plan

Yesterday, the Mayor’s Office of Economic and Workforce Development yesterday sent a memorandum of its “development stimulus package” to the Board of Supervisors. If passed, the Legislation will:

Change the timing of impact and in-lieu fee collection. All impact fees would be due at issuance of the first “construction-ready building permit”, e.g. site permit addendum. If a “deferral fee” is paid, fees could be deferred until issuance of the first certificate of occupancy. It consolidates all development and impact fees into Art. 4 of the Planning Code and provides for a single appeal process to the Board of Permit Appeals.

Create an opportunity for a citywide Mello-Roos District to finance infrastructure-related development fees. This would provide low-cost financing for fees, which could ultimately be passed along to the buyers of a project. Unfortunately, state law limits the use of M-R funds to infrastructure only, i.e. affordable housing fees can’t be financed. Note, the mayor’s proposal would provide Board of Supervisors approval for the M-R district, but actual formation of the district requires $250K in funding. The City is looking for a private party to cover these costs.

Reduce affordable housing fees for some projects. Allows a 33% reduction in affordable housing fees if developers record an NSR (deed restriction) subjecting all future sales to a 1% transfer fee that would be dedicated to an affordable housing trust fund.

We will be tracking this proposal as it makes its way through the process. Please email us if you would like a copy of the full text of the OEWD memo.

Signs, Signs, Everywhere Signs (At Least On Two Blocks of Mid-Market…)

We all know about the problems that the mid-Market Street area is facing, and the numerous attempts to restore the area so that our marquee thoroughfare is something we can be proud of. Well the latest plan to improve mid-Market is picking up steam.

Picture New York’s Broadway or London’s Piccadilly Circus along the two blocks of Market Street from 5th to 7th Street. Proposition D will be on the ballot this November, and, if passed by voters, will permit new general advertising signs, wind signs, video signs and signs with moving parts along this portion of Market Street. Twenty or forty percent of the revenues of these new signs, depending on whether the building they are located on are devoted to an arts activity, will be deposited in a local district benefit fund, to be put towards a new youth arts education program and a new arts ticket booth at Hallidie Plaza.

While attempts to ease restrictions on signs in San Francisco normally go nowhere, Prop D has picked up support from six supervisors so far. The City Democratic Party and key activists are also supporting the measure.

The San Francisco Chronicle has a longer article at “http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/09/29/MNHB19S8JA.DTL” and if you are interested in reading the text of Prop D, just email us.

Owners of Vacant Properties: Put Up or Pay Up!

A city ordinance that would place substantial requirements on owners of vacant properties was enacted by the Board of Supervisors this summer. The ordinance requires an owner of such a property to register it with the Department of Building Inspection, pay an approximate annual fee of $765, maintain the property’s exterior and interior, secure the property, and potentially pay insurance on the property. Vacant properties are only exempt from the new ordinance if (1) the owners are pursuing repairs, rehabilitation or construction under a valid building permit or (2) if it meets all current codes and is being actively marketed for sale or rent.

You can find a copy of ordinance 194-09 at “http://www.sfgov.org/site/bdsupvrs_index.asp?id=97091.”

Reuben & Junius, 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 leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

 

Reuben & Junius is sponsoring Constructing Green Building’s Legal Foundation: Regulatory Approaches and Practical Solutions for a Sustainable Future to be held Wednesday, September 23, 8:00 am – 11:00 am, UC Hastings Law, 200 McAllister, Alumni Reception Center.

Almost overnight, green building has gone from a fringe movement to the center of the development world. Nationally, 14% of U.S. cities with populations of more than 50,000 have green building programs, and the number of counties with green building programs has grown nearly fourfold since 2003. But what are the legal implications of this rapid rise of green building regulations? And what are the risks for those in the development community who are forging ahead in new directions? This conference seeks to sort through these questions in a meaningful and practical way. For more information: “http://www.uchastings.edu/event/2009/09/green-building-conference.html.”

The conference is free to all. An RSVP to “info@reubenlaw.com” is requested, though not required.

 

 

Zoning Administrator Issues First Determination of Eligibility Under the Eastern Neighborhoods “Legitimization” Program

As we have discussed in previous updates, the Eastern Neighborhoods (EN) plan created a new “legitimization” program that allows for land uses that were permitted prior to the EN rezoning but did not have the proper permits, and that are now not permitted due to EN rezoning, to be “legitimized” to receive the proper permits. Each legitimization applicant must obtain a determination of eligibility for the program from the Zoning Administrator (ZA), and the first one was issued this week.

The ZA issued a determination of eligibility for an office use at a property in a newly-zoned Urban Mixed Use zoning district (UMU). The property was formerly located in an M-1 zoning district, which permitted office without restrictions, and was rezoned to the UMU zoning district, which limits the property to a single floor of office space. The applicant provided a business registration, lease agreement and a former Planning Commission approval to support its case for eligibility.

This first determination letter provides a good example of a situation where it may be valuable to a property owner or tenant to lock in an office use that does not have proper permits and is no longer permitted under EN rezoning.

Green Building Insurance for Architects & Engineers Arrives

The insurance world is catching up to architects and engineers engaged in green building. Argo Insurance Group, based in San Francisco, has started offering liability insurance, underwritten by Lloyd’s of London, for architects and engineers covering both traditional and also “green” designs. Highlights of the coverage include: an exclusive green design endorsement; full retroactive coverage for past acts; computer aided drafting; mold and pollution; and punitive damages. Will other insurers follow suit? You can learn more about the policy at: “http://www.argoinsurance.com/page.php?p=architects_and_engineers”

Trial Run of Market Street Traffic Restrictions Set to Go Into Effect September 29

The Chronicle reports this week that much-anticipated traffic restrictions on Market Street will go into effect on September 29. The six week trial will consist of banning eastbound traffic on Market Street, beginning at Sixth Street. Drivers will be encouraged to take a right at Tenth Street, and will be forced to turn at Eighth Street. Eastbound drivers entering at Seventh Street will be forced to turn at Sixth Street. Up next: public art displays in storefronts, and concerts and outdoor seating in the closed-off streets.
Read more at: “http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/09/10/MNNI19KOK8.DTL”

San Francisco Housing Action Coalition (SFHAC) Housing Hero Awards

SFHAC’s 7th annual Housing Hero Awards ceremony is at the Yerba Buena East Gardens on Wednesday, September 23 from 5-7 pm. Join SFHAC as they honor Planning Commission President Ron Miguel, Christina Olague and the rest of the 2009 SF Planning Commission.
Every year SFHAC recognizes exceptional individuals in the City with the Housing Hero Award for their commitment to helping build and promote housing solutions for ALL San Franciscans.

For more information: “http://archive.constantcontact.com/fs095/1102573120180/archive/1102676936847.html”

To register:
“http://www.sfhac.org/housinghero2009.php” or contact Kate Lefkowitz at “kate@sfhac.org.”

 

 

Reuben & Junius, LLP is pleased to invite you to Constructing Green Building’s Legal Foundation: Regulatory Approaches and Practical Solutions for a Sustainable Future, a conference to be held at UC Hastings College of Law on Wednesday, September 23 from 8 – 11 am. The conference has been organized by Reuben & Junius attorney Stephen R. Miller and is sponsored by the firm.

What are the legal implications of green building’s rapid rise?

Almost overnight, green building has gone from a fringe movement to the center of the development world. Nationally, 14% of U.S. cities with populations of more than 50,000 have green building programs, and the number of counties with green building programs has grown nearly fourfold since 2003. In California, at least 18 local governments have implemented green building ordinances in addition to State green building guidelines. This change has good reason: the Air Resources Board estimates that 22% of California’s greenhouse gas emissions are from buildings, and thus reducing the State’s carbon footprint will rely heavily on changing the way buildings are built, as well as how they are operated. The development community is showing a clear interest in rising to the challenge, with over 101,000 persons worldwide certified as LEED Accredited Professionals and almost 15,000 in California alone.

But what are the legal implications of this rapid rise of green building regulations? How does green building fit into California’s other environmental laws? And what are the risks for those in the development community who are forging ahead in new directions? This conference seeks to sort through these questions in a meaningful and practical way useful to attorneys, but also architects, contractors, designers, and all others in the development and regulatory communities.

The first one-hour panel will focus on questions of how green building relates to other environmental laws and goals. Key issues here may include the use of third-party rating systems (such as LEED and GreenPoints) by local governments; whether green building plays a role in the California Environmental Quality Act; preemption and non-delegation issues with regard to federal and state statutes; and how green building regulations will relate to California’s global warming mandates, such as AB32, and existing energy regulations in Title 24.

The second one-hour panel will focus on how developers, architects, and contractors integrate the changing realities of green building into the development and ownership process. This includes allocation and mitigation of risk, as well as allocating the costs of green building in contracting, leasing, and other aspects of the development cycle.

MCLE credits available

The event is free and open to all. Two MCLE credits will be provided for attorneys. Please let us know you will attend by responding to “info@reubenlaw.com”, and also noting whether you will request MCLE credit.

Conference schedule

8:00 – 8:15 – Breakfast / registration
8:15 – 8:30 – Introductory remarks
8:30 – 9:30 – Panel 1 – Regulatory Approaches to Green Building
9:30 – 9:45 – Break
9:45 – 10:45 – Panel 2 – Real World Legal Issues of Green Building
10:45 – 11:00 – Concluding remarks

When and Where

Wednesday, September 23
8 to 11 am
UC Hastings Law
Alumni Reception Center
200 McAllister Street

Panel Speakers

Regulatory Approaches to Green Building

Verne Ball, Bingham McCutchen. Mr. Ball is an associate with Bingham McCutchen. He advises clients on matters related to land use, environmental compliance and litigation.

Thomas A. Enslow, Adams Broadwell Joseph & Cardozo. Mr. Enslow is a 1995 graduate of U.C. Berkeley School of Law (Boalt Hall). His practice focuses primarily on California Building Standards Law, the California Environmental Quality Act and government agency law. Mr. Enslow’s clients include IAPMO (publisher of the Uniform Plumbing Code, the Uniform Mechanical Code and the forthcoming Green Plumbing and Mechanical Code), the Coalition for Safe Building Materials, the California State Pipe Trades Council, Sierra Club California, the Consumers Federation of California and the Grassland Water District. Mr. Enslow was one of the lead attorneys for Amici Curiae in the case Plastic Pipe and Fittings Assn. v. California Building Standards Commission (2004) 124 Cal.App.4th 1390, in which the Court held that CEQA applies to the approval of building standards regulations that may impact the environment.

Sandra Goldberg, California Attorney General’s Office. Ms. Goldberg is a 1988 graduate of UCLA School of Law. She worked at the California Attorney General’s Office, Environment Section, for 9 years, handling hazardous waste penalty cases, Superfund litigation and other environmental matters. She then worked as Staff Counsel for the California Coastal Commission for 6 years. In 2006, Ms. Goldberg returned to the Attorney General’s Office, Environment Section, where she now works on climate change, renewable energy, and hazardous waste matters.

Moderator: Stephen R. Miller, LEED AP, Reuben & Junius. Mr. Miller is a 2006 graduate of UC Hastings College of Law, and also holds a Master in City Planning from UC Berkeley. He practices environmental and land use law, and regularly advises clients on green building matters. He recently published an article, “Enforcement of Local Green Building Ordinances Integrating Third-Party Rating Systems” in the California Real Property Law Journal (July 2009).

Real World Legal Issues of Green Building

Nicholas Merrell, LEED AP, Watt, Tieder, Hoffar & Fitzgerald. Mr. Merrell is a 2005 graduate of George Washington University Law School. He represents general contractors, designers, sureties, and owners on a wide variety of disputes, such as terminations for default, preparation of delay and disruption claims, fraudulent billing cases, advising government contractors on ethics compliance programs, licensure issues for both contractors and engineers, claims under prompt payment statutes and labor compliance disputes, as well as green building issues.

Aleka Skouras Eisentraut, LEED AP, Wendel Rosen Black & Dean. Ms. Eisentraut is a real estate and business attorney whose practice includes transactional and land use matters with a focus on green leasing, LEED certification and climate change policy. She recently completed the CEB Green Leasing chapter (co-authored with her colleagues Dan Myers and Gregg Ankenman), was a green leasing panelist at the State Bar Conference, has served as a judge for the San Francisco Business Times Green Business Awards for the past 2 years, and is a frequent speaker and author on green leasing and climate change.

Mark Goodman, Solo Practioner. Mr. Goodman is a Certified Green Building Professional and green building legal consultant. He spent 14 years working in the construction industry before becoming an attorney whose practice areas have included construction defect litigation and the representation of construction service providers and homeowners. He has taught construction law and is presently an adjunct professor teaching environmental law and regulation primarily related to green building.

Kevin Rose, Reuben & Junius. Mr. Rose is the managing partner of Reuben & Junius, LLP. Kevin has practiced real estate law for 14 years, and specializes in transactional matters. He has represented many commercial property owners, as well as tenants, in San Francisco and the greater Bay Area.

 

 

 

The Opportunity

In these challenging economic times, real estate owners are looking for creative ways to cut operating expenses. Reducing real estate taxes is one means to do so. Every year, property owners have the opportunity to appeal the taxable value of their real property, a process commonly known as a “Proposition 8 Appeal”, named after the California statewide proposition. This law, codified in Section 51 of the California Revenue and Tax Code, provides for the right to request a temporary reduction in the taxable value of the property due to economic conditions, damage, or other factors. For each reduction in value of $100,000, the property owner could save between $1,000 and $2,000 for that tax year, depending on the tax rate for the applicable county. Since many property values have experienced steep declines, the savings could be significant.

The Process

In San Francisco, the tax appeal process is started by filing an Application for Changed Assessment, in the form provided by the Assessment Appeals Board. There is a filing fee of $30 per application. Once the application is filed, the Assessment Appeals Board will set the case for a hearing, usually 6-9 months after the application is filed. In some cases, the property owner will be able to work out an agreement with the Assessor’s office before proceeding to the hearing. Other counties have similar procedures.

If the appeal is successful, or a settlement is reached, then the property value for the tax year that was appealed is reduced. The owner would then receive a refund for any property taxes that were paid based on the previously assessed value. (Unfortunately, the taxpayer must pay the taxes at the old rate in order to avoid interest and penalties.) This new value would only be good for the tax year that was appealed. The following year, the property value automatically increases to the original base year value, plus the permitted inflation factor (no more than 2%). The owner must file a new appeal every year to take advantage of the property’s decline in value.

Deadlines

The Proposition 8 appeals must be timely filed, or the opportunity is lost. The deadline for San Francisco properties is September 15, 2009. Other bay area counties have the following deadlines:

Alameda: September 15, 2009
Contra Costa: November 30, 2009
Marin: September 15, 2009
Sacramento: November 30, 2009
Santa Clara: September 15, 2009
Sonoma: November 30, 2009

Reuben & Junius, 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 leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.