This Week in Land Use – Legislative Update

Fire and Air

Typically, passage of a Fire Code update (generally done every three years or so) would not attract much attention.  But the 2013 Fire Code is different, and recently, Committee rooms and City Hall corridors have been buzzing.  The issue is firefighter air replenishment (or “air rescue”) systems.  Simply described, a firefighter air rescue system is a column of open space constructed into a building’s core that can be accessed by firefighters on upper floors to replenish their oxygen tanks while fighting a fire.  This spares them from having to travel all the way to the ground floor to replenish their oxygen.  The systems were created after 9/11 and other high-profile, high-rise fires.

San Francisco adopted legislation in 2004 requiring new buildings over 75 feet tall to install the air rescue systems.  The systems are manufactured largely by one company, RescueAir, of San Carlos.  Although the systems had been installed in a number of buildings, the S.F. Fire Department has never used them and doesn’t even train with them.  The Department relies on other methods for firefighters to replenish their tanks.  Building owners prefer other methods for air replenishment because the air columns are expensive and take up valuable floor area.

Last week, the Board of Supervisors adopted new legislation allowing high-rise buildings to choose not to provide an air rescue system, if the building instead provides a Code-compliant fire service access elevator (which can be used to shuttle air canisters up and down the building during a fire).  The new legislation was supported by the S.F. Fire Department, which prefers using the fire service elevators for air replenishment.  The Mayor is expected to sign the legislation into law this week, and it would take effect in 30 days.

Mr. Taxman

The Board of Supervisors recently adopted numerous technical, but potentially important, business and parking tax changes to the Business & Tax Regulations Code.  These changes include the following:

  1. Requiring monthly installment payments rather than prepayments of hotel and parking taxes; eliminating the annual parking tax bond renewal    requirement; excluding penalties from calculation of interest on tax determinations (chalk one up for the taxpayer); adding an underreporting penalty for failure to file a return when tax liability exceeds $5,000 (chalk one up for the taxman); and changing the penalty for failure to register or update a registration, making misstatements in a registration, failure to allow inspection or production of records, and failure to file a return.

  2. Eliminating the prepayment Revenue Control Equipment certification for parking taxes.

  3. As to Payroll Expense Taxes, providing that interest applies to unpaid penalties but not unpaid fees and interest (another positive change); changing the date that businesses must file an affidavit with the Office of Economic and Workforce Development claiming the Central Market Street and Tenderloin Area Payroll Expense Tax Exclusion.

  4. Specifying the date the Revenue Control Equipment Compliance Fee is due.  

Warriors’ Ball Keeps On Rolling

Last week, the Governor signed into law legislation that helps the Warriors clear a hurdle in developing their new arena project on Piers 30-32.  The challenge facing the project was that the common law Public Trust Doctrine, as interpreted by the U.S. Supreme Court, places limitations on the ability to use “public trust” lands for nontrust purposes.  The San Francisco Bay shoreline is considered public trust land.  A basketball arena is not a traditional public trust use – it does not involve water related commerce, navigation, or fishing.  The new legislation, AB 1273, authorizes the State Lands Commission to find that the arena project meets the definition of a public trust use and approve the project, if certain conditions are met.  

Among those conditions are requirements that the project attract people to the waterfront, increase public enjoyment of the San Francisco Bay, encourage public trust activities, and enhance public use of trust assets and resources on the waterfront.  Another major condition requires the project to include a significant and appropriate maritime program, which may include a city fire station and berthing facilities for city fire boats; facilities that can accommodate periodic use by cruise or other deep draft vessels; facilities that enable direct public access to the water by human-powered vessels or swimmers; and water-transit docking or berthing facilities for water taxis, ferries, or both.  

CEQA Is Now Reformed

As reported in previous updates, the Board of Supervisors recently approved legislation that provided significant and much-needed clarity and certainty to the CEQA appeals process in San Francisco.  The legislation provided that its provisions would not become legally operative until the later of September 1, 2013 or five business days after the Secretary of the Planning Commission provided a memo to the Clerk of the Board of Supervisors advising that the Commission had held a public hearing at which the Planning Department demonstrated to the Commission that it had updated its website to provide up-to-date information to the public about each CEQA exemption determination.  The Planning Department now has done so, and the Secretary of the Planning Commission sent the memo to the Clerk of the Board on September 20.  The legislation became legally operative September 25.




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.