As the state’s Metropolitan Planning Organizations (MPO) begin to roll out their Sustainable Communities Strategies (SCS) pursuant to SB 375, the first agency to actually adopt an SCS has stumbled out of the gate. On Dec. 3, 2012, Judge Timothy Taylor of the San Diego Superior Court has struck down the EIR for the SCS adopted by the San Diego Association of Governments (SANDAG).
The Legislature adopted SB 375 in 2008 as part of the implementation of Governor Schwarzenegger’s AB 32, which requires the State of California to reduce its greenhouse gas (GHG) emissions to 1990 levels by 2020. SCS’s are the cornerstone of SB 375. The purpose of the SCS is to use land use and transportation planning strategies to help the region meet its mandated GHG emissions reduction targets. These new planning strategies could have a dramatic effect on metropolitan development patterns in the years to come.
The state Air Resources Board (ARB) has issued regulations for each MPO pursuant to AB 32 that set specific GHG emissions reduction targets by the years 2020 and 2035. However, prior to AB 32, Governor Schwarzenegger issued Executive Order S-03-05, which calls for an 80 percent reduction in GHG emissions statewide by 2050. Until the SANDAG decision, Executive Order S-03-05 had been largely forgotten. ARB has set no target for 2050, nor did AB 32.
The petitioners in the SANDAG case successfully exploited this inconsistency among target years. Like many MPO’s across the state, SANDAG’s SCS was combined with its regional transportation plan (RTP). While the SCS projected out to 2050, the RTP projected out only to 2035. Because the RTP projected out to only 2035, SANDAG’s EIR did not fully study the environmental impacts of the combined SCS/RTP out to 2050. Judge Taylor concluded that this inadequacy violated CEQA. He criticized the EIR for failing to recognize that “Executive Order S-03-05 is an official policy of the State of California,” and chastised SANDAG for analysis that did no more than “‘kick the can down the road’ and defer to ‘local jurisdictions.’”
The SANDAG decision is important because it puts other MPO’s around the state on notice. The Bay Area’s SCS, being drafted by ABAG, currently projects emissions levels out to 2040. Their EIR is scheduled for release this Spring, with certification and adoption of the SCS scheduled for Summer. ABAG now must decide whether to wait and see what happens with the expected appeal of the SANDAG decision, go ahead and revise the SCS and EIR, or assume the risk and proceed as is. We will continue to inform readers of developments in the case and ABAG’s adoption of its SCS.
The petitioners in the case were Cleveland National Forest Foundation and the Center for Biological Diversity, and they were joined by the state Attorney General after the lawsuit had been filed. Cleveland Nat’l Forest Foundation, et al., v. San Diego Ass’n of Governments, San Diego Superior Court Case No. 2011-00101593.
SAN FRANCISCO CONSIDERS ALLOWING PAYMENT OF IMPACT FEE TO AVOID 2014 CONDO CONVERSION LOTTERY
Currently in San Francisco, the conversion of a building with more than six (6) apartment or tenancy-in-common units to condominium subdivisions is limited to 200 units annually, which are selected in a condominium lottery. To participate in the lottery, a specified number of building owners must continuously occupy a unit(s) in the building for at least three years in advance of the lottery. The selection process is based, in part, on seniority of participation in past lotteries.
Supervisors Mark Farrell and Scott Wiener have introduced an ordinance that would allow any building that participated in the 2013 condo conversion lottery but was not selected, or could have participated in the 2013 condo conversion lottery but chose not to, to avoid the 2014 lottery and qualify for a subdivision conversion by paying an impact fee of $20,000 per unit. As currently written, the ordinance affects only the 2014 lottery. The ordinance is scheduled to go before the Land Use and Economic Development Committee on Monday, January 28.
Additional ordinance details are as follows:
- The fee is reduced based on the number of the years a building has participated in the lottery. A building can receive a fee reduction of up to 80 percent per unit after 5 years or more of participation.
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To participate, applicants must pay the full fee for the entire building no later than Jan. 24, 2014.
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DPW will determine whether the condo conversion subdivision application is complete no later than July 24, 2014.
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The applicant will obtain the final and effective tentative approval of the condo subdivision or parcel map no later than December 31, 2014. This time can be extended to July 24, 2015 by DPW.
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Those participating in the fee conversion program must provide lifetime lease options for non-purchasing tenants.
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A subdivider or subsequent condominium owner may not refuse to renew or extend a lease or rental agreement to any non-purchasing tenant at the time of final map or parcel map approval.
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Fee reductions are available in exchange for the lifetime lease requirement.
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, 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.
