On Monday this week (1/9/12), Mayor Ed Lee named Planning Commissioner Christina Olague to replace Ross Mirkarimi on the Board of Supervisors, who has moved on to become Sheriff. Ms. Olague’s seat was scheduled to expire on July 1st of this year, and will be filled by the Board of Supervisors. Two other Commissioners’ terms, Ron Miguel and Mike Antonini, are scheduled to expire this July 1st. Both Mr. Miguel and Mr. Antonini were appointed by the Mayor. We will continue to keep readers informed about all three of these appointments as information becomes available. At the Planning Commission today the Planning Department Staff is scheduled to present to the Commission a draft proposal for the Department’s work program priorities for the next two fiscal years (FY12-13 and FY13-14). According to the Department’s January 12 Staff Report for the Commission, the following activities are expected to be key components of the work program: In coordination with the Department of Building Inspection, the Planning Department is currently in the implementation phase of the new Permit and Project Tracking System (PPTS). The Department anticipates allocating 8.15 and 2.80 full-time equivalent positions of existing staff in FY12-13 and FY13-14, respectively, in order to ensure the PPTS system is designed, tested, and implemented effectively. Preservation staff will initiate new survey and community outreach work funded by a Certified Local Government (CLG) Grant, and will continue to provide review of historic survey work conducted by community groups. The Department will focus on strengthening the City’s neighborhoods through neighborhood improvement initiatives that are not expected to result in new area plans or zoning changes. The Better Neighborhoods Program: Strengthening Existing Neighborhoods proposes to initiate a dialogue with neighborhoods that are seeking to strengthen their communities through policy, public realm and economic development improvements. The Department will begin work on the EIR for the Transportation Sustainability Program (TSP), which will enable new development to alleviate its burden on citywide transit performance by funding categories of transportation projects shown to directly offset the impacts of growth from new development. According to the Staff Report, constrained resources mean that many of the City’s long-range planning needs cannot be addressed by this work program. Staffing to improve pedestrian quality and safety, through participation in the Pedestrian Master Plan and the Mayor’s pedestrian safety initiatives, is needed. Additional public realm projects would support pedestrian goals, particularly a public realm plan for the South of Market and Mission Bay neighborhoods and expanded funding to fully address public realm needs in the Civic Center Sustainable Resource District Plan. The City’s General Plan requires updating beyond individual elements, calling for a fresh look at how it is developed, used and applied. The growing demand for the City’s Pavement to Parks Program indicates the need for additional resources to expand open space opportunities. Additional resources allocated to long range planning would enable the Department to keep abreast of these growing areas of need. With respect to the Environmental Planning (EP) division, EP’s ongoing major EIRs include the Transit Center District Plan plus several associated private projects, the Central Subway Corridor Plan, CPMC’s five campuses, MTA’s Transit Effectiveness Project, Academy of Art, Mexican Museum, MOMA Expansion, Harrison Gardens, Natural Areas Management Plan, Bayview Transportation Improvement Project, and the Western SOMA Plan. Two high priority EIRs that are expected to begin in FY11-12, the Health Care Services Master Plan and Better Market Street Plan, will continue in FY12-13. Negative Declarations are expected to be completed for the following major public and private projects: Better Streets Plan, Alexandria Theatre retail and housing, Mission Streetscape Plan, Fisherman’s Wharf Plan, and the Recreational & Open Space Element (ROSE). Staff hopes to finalize the Department’s budget and work program, and have the Final Appropriation Ordinance adopted, by the end of July 2012. CORRECTION: The R&J Update of last week misspelled the Plaintiff and Appellant’s name in the case. The correct case name is Frittelli, Inc. v. 350 North Canon Drive, LP, et al. (2011 WL 6358528 (Cal.App. 2 Dist.)). Our apologies on the error. 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. Copyright 2012 Reuben & Junius, LLP. All rights reserved.    

Commercial landlords and tenants could be materially impacted by a case recently decided by the Court of Appeal. In Frattelli v. 350 North Canon Drive, LP, the Tenant (Frattelli) brought numerous claims against the Landlord (350 North Canon Drive LP) based on Frattelli’s allegations that the Landlord’s shopping center renovations made it impossible for Frattelli to operate its business in the leased premises. The Court of Appeal found for the Landlord and upheld the lower court decision that an exculpatory clause in a commercial lease protected the Landlord from liability even if the Landlord acted negligently under the lease. (2011 WL 6358528). Frattelli argued that Landlord failed to exercise reasonable care in remodeling the shopping center, which not only contravened the covenant of quiet enjoyment, but that such conduct was also grossly negligent and/or negligent. The lease at issue between Tenant and Landlord was a commercial “net” lease which had two clauses that the Court of Appeal rested its decision of finding for the Landlord in this case. One, and most importantly, an exculpatory provision providing that Landlord would not incur any liability due to a breach of lease or negligence (and Tenant’s sole remedy for any such damages was a claim through Tenant’s insurance), and two, a more specific provision which limited Landlord’s liability in the case of doing renovations at the building. A commercial lease may limit the covenant of quiet enjoyment, whether express or implied. However, an exculpatory clause which purports to shield a landlord from liability for negligence must be strictly construed. The Court reasoned that the plain language of the lease provided that Landlord had no liability under any circumstances and the provision effectively protected Landlord from any liability due to negligence or breach of the lease. This was further bolstered by the specific provision limiting Landlord’s liability due to renovations. Frattelli also alleged that the exculpatory clause was unenforceable because it was not sufficiently conspicuous within the lease as a whole, including the fact that it was printed in the same font size as the other provisions in the lease and not set off separately. Generally, when a party relies on an exculpatory clause which exempts itself from negligence, words clearly and explicitly expressing that intent of the parties are required. The Court held that there is a lower standard when finding a release valid in a commercial lease, especially a “net” lease which signals that it contains significant provisions regarding a tenant’s responsibilities. Therefore, in light of the lower standard, and since the exculpatory clause was not hidden or disguised, the release was enforceable against Tenant. Finally, Frattelli maintained that even if the exculpatory clause protected Landlord’s negligence, Landlord’s actions were grossly negligent. A landlord cannot exempt itself from its own gross negligence in a lease provision. To constitute “gross negligence”, misconduct must either demonstrate a “want of scant care” or “an extreme departure from the ordinary standard of conduct”. Here, Landlord met with the tenants prior to the remodeling project, made attempts to address their concerns throughout the process and abated their rent. Although Landlord’s work ultimately took one year rather than six months, the Court of Appeal found that the foregoing mitigating measures meant that their conduct did not rise to the level of gross negligence. The Frattelli decision is beneficial to commercial landlords as it shows that the courts will uphold provisions in commercial leases which limit landlord’s liability from negligence or breach of the lease, and covenants such as quiet enjoyment. This is especially true when the commercial lease is a “net” lease in which the Tenant takes on the major burdens of ownership of the property over the life of the lease. Finally, although an exculpatory provision would not absolve a Landlord for its gross negligence, this decision also highlights that if a landlord takes reasonable precautions, then gross negligence will be difficult to prove. 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. Copyright 2011 Reuben & Junius, LLP. All rights reserved.    

Back in July we reported that Governor Brown signed bills ABX1 26 and 27 into law, which required Redevelopment agencies to make “voluntary” contributions to the state or else be eliminated. The California Redevelopment Association (CRA) challenged, and the matter went to the California Supreme Court. For those that haven’t seen the news on the internet today (and that will be in tomorrow’s paper), in a devastating loss for state Redevelopment Agencies, the Supreme Court ruled that AB 26 is legal (i.e. the legislature can eliminate Redevelopment Agencies) and that AB 27 is illegal (i.e. legislation cannot take redevelopment for non-redevelopment purposes). The ruling that AB 27 is illegal is likely the end of the road for redevelopment agencies in California. The case is California Redevelopment Association vs. Ana Matosantos (S194861) and is available on the court’s website at http://www.courts.ca.gov/opinions-slip.htm. The court extended some of the deadlines set forth in AB 26 that deal with winding down Redevelopment Agency affairs. We will be updating you in the near future as to how local implementation of this ruling will be handled. 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. Copyright 2011 Reuben & Junius, LLP. All rights reserved.    

While most project sponsors breathe a sigh of relief after obtaining Planning Commission approval for their project and surviving any appeals, a recent project we entitled reminds us that such approval may be just one milestone in a longer fight. Recently a small historic renovation project on Russian Hill designed to rehabilitate and restore four small landmark cottages survived a challenge in Superior Court. The case was Friends of the Landmark Filbert Street Cottages, et al vs. City and County of San Francisco (Case No. CPF-11-511263). The case upheld several important legal determinations that many projects rely on every day in the City: that building permits issued pursuant to a Conditional Use authorization are not subject to appeal to the Board of Appeals and that categorical exemptions under the California Environmental Quality Act (“CEQA”) are legally sufficient and appropriate for many preservation cases. The project site, on Filbert Street between Polk and Larkin, contains four historic cottages that were built in 1907 and designated in 2001 as a San Francisco Landmark. The cottages have sat vacant for almost a decade and were in serious disrepair when the project sponsor purchased them and began what turned out to be a long and rigorous entitlement process. Over the next four years, the project sponsor and team worked through a myriad of complex preservation, environmental and planning issues in order to obtain entitlements in early 2010. These entitlements consisted of a Certificate of Appropriateness granted by the Historic Preservation Commission, a conditional use (“CU”) authorization granted by the Planning Commission, and a variance granted by the Zoning Administrator. There was virtually unanimous support for the project in the neighborhood (with of course one exception). As it seems with too many preservation projects, the adage “no good deed goes unpunished” certainly applies here. While the project was strongly supported by the community, including the Russian Hill Neighbors, all it takes is one holdout to cause significant delay and run up project costs. Even though none of the entitlements were ever challenged at the local level, a single project opponent hired an attorney a filed a lawsuit well after all the appeal periods and statutes of limitations had run. One of the more interesting elements of the challenge was an attempt by the opponent to appeal the building permits which had been issued by the Department of Building Inspection (“DBI”) after the Planning Commission, HPC and ZA had all approved the project. These permits, pursuant to San Francisco Charter Section 4.106 are not appealable to the Board of Appeals because the project had received a CU. For CU projects, opponents must appeal the CU; they cannot appeal the building permits. This seemingly clear rule was challenged and debated at length over two hearings at the Board of Appeals. The project opponent claimed that the CU did not consider the geotechnical and CEQA issues that were raised by the technical details of the building permits. The project opponent even had a geotechnical engineer produce a letter questioning the validity of the geotechnical report that was produced for the project (even though the project of course had a geotech report prepared that was never commented on during the process). Ultimately, the Board did find that the building permits issued by DBI did “match” the plans that were approved by the Planning Commission under the CU. The Superior Court agreed. The lawsuit also focused on a related CEQA issue: were there any changes in the project following the CU approval that were reflected in the building permits that would trigger new CEQA review? First, if there was a significant enough change between the CU authorization and the building permits, the building permits would not have been issued in the first place. The same logic holds true with CEQA: if there is a significant change in the project after it is approved, new CEQA review may be required. That is a well understood CEQA rule, and the determination by the local agency or the judge becomes a factual one. That was certainly not the case here. After comparing the plans approved by the Planning Commission with those approved by DBI, both the Board of Appeals and the Superior Court found that no changes had occurred that would trigger additional CEQA review. We were very pleased to have had the opportunity to represent the owners and project team of 1338 Filbert Street through this long and arduous process. This case is a good example of the fact that project sponsors facing any opposition need to be prepared for an entitlement process that includes a challenge in Superior Court. Even if the challenge is frivolous, this requires careful preparation of the case and attention to the administrative record to make sure that, in the event of a lawsuit, the project not only gets approved but can survive a legal challenge. The Update will be taking a holdiday break and will return the first week of January.  Happy Holidays.   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. Copyright 2011 Reuben & Junius, LLP. All rights reserved.  

As most developers and builders would agree, complying with the California Environmental Quality Act (CEQA) can be complicated. This Fall, Governor Brown has signed into law three pieces of legislation that attempt to reduce some of CEQA’s complexities and streamline the CEQA process. Many times, when the Legislature and Governor attempt to “simplify” and “streamline” CEQA, they end up achieving just the opposite. The goals of the new legislation signed into law this Fall certainly are laudable. Whether or not they achieve those goals, however, remains to be seen. SB 226 SB 226 (Simitian (D-Palo Alto)) seeks to streamline the CEQA process in several different ways. SB 226 provides that a project’s greenhouse gas emissions shall not, by themselves, cause a project to be ineligible for a categorical exemption from CEQA review. As readers may know, even though a project may meet the basic qualifications for a categorical exemption, the local agency still must evaluate the project to determine whether it might result in a significant environmental impact or a cumulatively considerable impact. It is possible that a project could meet the basic qualifications for a categorical exemption, yet CEQA review is nevertheless required. Under this new law, a project’s greenhouse gas emissions shall not, by themselves, be the cause for CEQA review where the project otherwise qualifies for a categorical exemption. The installation of a solar energy system on the roof of an existing building or at an existing parking lot under certain conditions is now statutorily exempt from CEQA review. This means that, unlike a categorical exemption, no CEQA review would be required under any circumstances. Under the new law, the Office of Planning and Research must, by July 1, 2012, develop CEQA guidelines that expedite environmental review of certain urban infill development projects by allowing that review to “tier” off of previous EIRs under certain conditions. Requires the Secretary of the Natural Resources Agency to certify and adopt the guidelines by January 1, 2013. AB 900 AB 900 (Buchanan (D-San Ramon) and Steinberg (D-Sacramento)) expedites the judicial review of projects designated by the Governor and the Legislature as “environmental leadership development projects,” if they are legally challenged. To qualify as an environmental leadership development project, the project must be large ($100 million investment upon completion of construction) and fall into one of three categories: (1) LEED silver or better “infill” projects (residential, commercial, sports, cultural, mixed use, etc.) that reduce vehicle trips by 10 percent as compared to similar existing projects; (2) Clean, renewable energy projects that generate electricity exclusively through wind or solar, but not including waste incineration or conversion; or (3) Clean energy manufacturing projects that manufacture products, equipment or components used for renewable energy generation, energy efficiency, or for the production of clean alternative fuel vehicles. Project applicants must undergo a certification process with the Governor and Legislature in order to qualify as an environmental leadership development project. The bill expedites judicial review by requiring any CEQA lawsuit challenging a public agency’s approval of an environmental leadership development project be filed directly in the applicable Court of Appeal, thereby skipping the local Superior Court. Moreover, the Court of Appeal must issue its decision in the case within 175 days of the filing of the lawsuit, unless the Court finds good cause for an extension (“good cause” is not defined). The Court may appoint a special master to assist the Court in managing and processing the case, and the project applicant is responsible for the costs of the special master. SB 292 SB 292 (Padilla (D-Pacoima)) streamlines the EIR preparation process, provides for expedited judicial review (similar to that of AB 900), and requires implementation of specific traffic and air quality mitigation measures for a proposed downtown Los Angles football stadium and convention center project. 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. Copyright 2011 Reuben & Junius, LLP. All rights reserved.    

Legitimization Application Deadline Approaching Soon As avid readers of our update know, the Eastern Neighborhoods (EN) Legitimization program provides “amnesty” for existing uses that were legal under the old pre-EN zoning but had no building permit or other authorization to back that up, and are no longer permitted uses under the EN zoning. The legitimization program was intended to only apply for a short time after the Eastern Neighborhoods Plan was enacted, and the Planning Department will no longer accept legitimization applications after January 18, 2012. There is still time to get a legitimization application on file. Legitmization can be especially important to properties that were rezoned from an M district to a PDR district, as the PDR district allows a very limited number of uses – and office use is generally prohibited. If you are interested in determining the eligibility of your property for legitimization, or want to take advantage of the legitimization program, contact our office at (415) 567-9000 for more information. 2012 Condo Conversion Lottery Tickets Now On Sale Ticket sales for the 2012 Condominium Conversion Lottery commenced on Monday, November 28th. Lottery tickets may be purchased at the Department of Public Works, Bureau of Street-Use and Mapping (BSM) at 875 Stevenson Street, Room 410. The ticket cost is $275 per application. The lottery application may be obtained at the BSM office indicated above, or online at www.sfgov.org/site/sfdpw. Ticket sales will end on Friday, January 20, 2012. No lottery application will be accepted after 4:45 pm on January 20, 2012. Multiple tickets may be available for applicants providing proof of previous unsuccessful participation in the condo conversion lottery. Note that only building owners or authorized agents bearing a letter of authorization from the building owners will be allowed to purchase lottery tickets. See the DPW website above for further information. The 2012 Condo Conversion Lottery drawing is scheduled to be held on Wednesday, February 1, 2012. The drawing will be held in Room 400, City Hall, 1 Dr. Carlton B. Goodlett Place. The condo conversion lottery consists of 200 units. A lottery winner’s list and standby list will be available from BSM 7 days after the drawing. Reuben & Junius, LLP has extensive experience processing condominium conversions, as well drafting condominium and homeowners association formation documents. For further information or assistance with the condo conversion lottery, please contact Jay Drake. 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. Copyright 2011 Reuben & Junius, LLP. All rights reserved.    

It has been eight years since the City created its last Historic District (now called “Landmark Districts”), that being the Dog Patch Landmark District, established in 2003. For those that don’t follow historic preservation issues and rules closely, a “Landmark District” is the highest level of protection that a group of buildings in the City can receive. Landmark Districts are reserved for the City’s most important historic areas and collections of intact historic buildings. In this case, the proposed Duboce Park Landmark District was identified and documented as eligible for the National Register back in 2008. The proposed district is composed of 89 residential buildings within the area bounded by Scott, Waller, and Steiner Streets. On December 7, 2011, the Planning Department is hosting a drop-in event at the Harvey Milk Center where Planning Department staffers will be ready to answer your questions and explain how the district works and what it means to property owners in terms of what they can do to the exterior of their building. For those that are interested, the Duboce Park packet for that Neighborhood Outreach Meeting can be found at this link. http://www.sf-planning.org/index.aspx?page=2849 If the district is ultimately created (which requires approval of an ordinance by the Board of Supervisors), many exterior alterations to the homes within the district would be required to go through a new permitting and entitling process and receive a “Certificate of Appropriateness.” In some cases (i.e. any exterior addition, for example), this new requirement will trigger a hearing at the Historic Preservation Commission (HPC). For certain work designated as “minor alterations”, the approval power can be delegated to the planning staff without a hearing. However, the staff’s approval of that “administrative” Certificate of Appropriateness without a hearing is subject to an appeal right, and any member of the public may appeal that administrative approval directly to the HPC (requiring a public hearing before the Certificate can be either approved or denied). The Department does point out that a Certificate of Appropriateness (CA) is not required for any interior alterations or seismic work or ordinary maintenance and repair. That said, owners within this proposed district should understand that many exterior changes to their home will likely be subject to this new process. In its materials, the Planning Department staff states that “Landmark District designation ensures that rehabilitation and new construction is compatible with the neighborhood’s historic character.” We respectfully disagree. There are already significant controls in place both under the California Environmental Quality Act and the existing (and well used) Residential Design Guidelines, and the Planning Department’s UDAT process. And of course any exterior alteration is already subject to Section 311 notice and possible Discretionary Review. In our opinion there are more than enough regulations in place to protect the historic fabric of this neighborhood. It is unfortunate that the City believes that yet another level of process (and more costs and fees) is necessary.  And speaking of costs, we think it would be appropriate as part of the outreach to notify residents within the proposed district about the new fees and costs that would be triggered by the CA process. That said, the materials prepared by the staff that inform the public of what types of changes to the exterior of each building façade will trigger what type of review is certainly helpful and should guide homeowners in decisions with respect to what things trigger what new process. Many of the standard repair and maintenance work appear to only require an administrative CA. Of course, any new construction in the district or exterior alterations not listed by the City or visible additions proposed for the historic structures will require a full Certificate of Appropriateness which means a hearing in front of the Historic Preservation Commission. 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. Copyright 2011 Reuben & Junius, LLP. All rights reserved.      

On November 10, 2011 the Planning Commission approved proposed Planning Code amendments regarding student housing and sent the proposed ordinance to the Board of Supervisors for further action. The next procedural step will be a hearing at the Board of Supervisors Land Use Committee, which should be scheduled within approximately thirty days. The proposed ordinance would amend the following sections of the Planning Code: Section 102.36 would create a city-wide land use definition of “Student Housing”. “Student Housing” must be owned, operated or controlled by an accredited post-secondary educational institution, and may take the form of dwelling units, group housing, or single room occupancy building (“SRO”). Student Housing will be permitted wherever a dwelling unit, group housing or SRO is permitted in the zoning district in which the property is located. Usable open space requirements will be reduced by 1/3 the amount normally required for a dwelling unit. The required minimum dwelling unit mix in Eastern Neighborhoods districts will not apply to Student Housing buildings. Conversion of existing residential units to Student Housing is strictly prohibited by Section 317. Conversions from Student Housing to any form of residential use that is permitted by the underlying zoning district would be approvable by the Zoning Administrator, provided that all Planning Code requirements have been met or appropriately modified for the form of residential unit desired.  Dwelling units that are less than 350 square feet plus a bathroom, including Student Housing, would have the same reduced open space requirements (1/3 that of regular dwelling units) as group housing and SROs, pursuant to proposed amendments to Section 135(b)(2).  A change in use to group housing within a Neighborhood Commercial District would require a neighborhood notice pursuant to Section 312. Section 401 would be amended to allow a Student Housing project to consist of all or part of a building.  Most Student Housing will be exempt from the Inclusionary Housing Program requirements pursuant to Planning Code Section 415.3(c)(5)(C)(iii). The purpose of the proposed ordinance is to encourage the production of new Student Housing, while prohibiting the conversion from any form of existing housing to Student Housing. The incentives provided in the ordinance to construct new Student Housing include the exemption from unit mix requirements within RTO, NCD, DTR, and Eastern Neighborhoods mixed-use districts. In addition, open space requirements for small dwelling units are reduced by 1/3, and an exception is provided from the Affordable Housing requirements. 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. Copyright 2011 Reuben & Junius, LLP. All rights reserved.    

While the final votes have just been tabulated, political consultants are looking ahead to local and statewide races in 2012. The 2011 elections will be remembered for the complexity, oddity, incomprehensible (choose your adjective) ranked choice voting for the Mayor, District Attorney and Sherriff’s City and County of San Francisco races and the widespread use of campaign contributions to independent expenditure committees. Independent expenditure committees After the United States Supreme Court in 2010 ruled in Citizens United vs. Federal Elections Commission that corporations, labor unions and individuals had in essence a First Amendment right to spend without restrictions in support of or to oppose candidates outside of campaign law restrictions, independent expenditure committees have been key contributors to federal, state and local races. The United States Supreme Court, in a 5-4 decision, held that the First Amendment prohibits government from censoring political broadcasts in candidate elections when those broadcasts are funded by unions or corporations. The decision struck down certain provisions of the McCain-Feingold Act that prohibited corporations and unions from broadcasting election communications. Justice Kennedy wrote for the majority: “If the First Amendment has any force it prohibits Congress from fining or jailing citizens or associations of citizens, for simply engaging in political speech”. The State of California’s Fair Political Practices Commission has acknowledged the increasing role of these committees and an effort is underway to make these committees accountable and require greater disclosure. Independent expenditure committees in the San Francisco’s mayoral race funded widely distributed paperback books and an MTV worthy music video, that has received more than 385,000 youtube hits. While President Obama was opposed to independent expenditure committees in his 2008 race, it is unclear what 2012 holds. It is estimated that independent expenditure committees are prepared to spend hundreds of millions of dollars in the 2012 congressional and presidential elections. California State Representative Bob Wieckowski will be introducing a resolution in the Assembly requesting that Congress draft a constitutional amendment that would overturn Citizens United. He is joined by other state legislatures and local governments that are introducing similar resolutions. State ballot propositions As of today’s date, there are 26 state initiatives circulating for signature and another 22 pending with the State of California Attorney General’s office for 2012 according to the Secretary of State. It is not expected that all of the pending and circulating propositions will qualify for the ballot on November 6, 2012. The proposals focus on: public employees’ ability to bargain collectively and limitations and reductions in retirement benefits; taxes on oil and gas extractions and dedicating that revenue toward education; restrictions on obtaining concealed weapon permits; “Amazon” sales tax; regulation of marijuana; ending the death penalty; foreclosure modifications and term limits. Requiring parental consent for teenage girls under 18 prior to receiving an abortion may also find its way onto the ballot. Governor Brown may introduce budget and tax related initiatives as well.. Three initiatives are already set for the November 6, 2012 election, including a tax on cigarettes to fund cancer research and an 11.1 billion dollar bond measure to upgrade California’s water supply. We will also have a chance to vote on an amendment to term limits-currently State senators are limited to 8 years in office and State assembly members are limited to 6 years, for a total of 14 years. The proposition will limit an office holder in the Assembly or Senate to a combined total of 12 years in either chamber. Ranked Choice Voting On Election Day, Supervisors Mark Farrell and Sean Elsbernd called for repealing ranked choice voting, and they hope to place a charter amendment on the ballot in June.  Farrell and Elsbernd will need the support of six members of the Board of Supervisors or sufficient signatures to qualify the initiative for the ballot. Supervisor and mayoral candidate John Avalos has promised to oppose the initiative and has requested that the City Attorney’s Office draft legislation to compete with Farrell and Elsbernd’s proposal. After redistributing second and third choice votes in eleven rounds of voting for the next Mayor of San Francisco, battle lines are quickly being drawn for 2012.   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. Copyright 2011 Reuben & Junius, LLP. All rights reserved.      

The Court of Appeal recently provided a reminder that the courts can and will use their powers of equity to fashion interests in land belonging to another. In Tashakori v. Lakis, the owners of a landlocked undeveloped lot brought an action for rights of ingress and egress over a shared driveway on their neighbor’s property so they could access their property from the street. (196 Cal.App.4th 1003). The Court of Appeal upheld the lower court’s decision to create an equitable easement across a portion of the Lakises property, in this case the “burdened owner”, on behalf of the Tashakoris, or the “benefitted owner”. The Test The court applied a three part “relative hardship” test to determine whether an equitable easement would be created in this instance, without the burdened owner’s approval: First, the benefitted owner must be innocent. More specifically, his or her encroachment must not be willful or negligent. Here, the benefitted owner made a diligent and good faith effort to determine whether their lot had an easement to access the street. The court determined that the benefitted owner reasonably relied on inaccurate representations by the real estate broker and prior owner that such an easement existed benefitting their property. Second, unless the rights of the public would be harmed, the court should enjoin the encroachment if the burdened owner would suffer irreparable injury regardless of the injury to the benefitted owner. Here, the burdened owner never used the shared driveway and did not pay for the upkeep of the driveway. Furthermore, the shared driveway was used for ingress and egress by two other single family residences. Therefore, the court said that use by one additional family (the benefitted owner) would not provide a significant burden on the land on which it was located. Third, the hardship to the benefitted owner must be greatly disproportionate to the hardship caused to the burdened owner by the continuance of the encroachment and this fact must be proved by the benefitted owner. In this case, the benefitted owner proved they would be irreparably harmed because their lot would essentially be unusable as they would not be able to legally walk onto their own land. No Damages? The burdened owner not only appealed the decision granting the easement itself, but also the lower court’s decision not to award any damages to the burdened owner for granting such a property right to the benefitted owner. The Court of Appeal acknowledged that typically when the court creates an easement, the burdened owner is normally entitled to damages. However, in this case the burdened owner did not demonstrate that their property would suffer any diminishment in value as a result of permitting the benefitted owner to use their shared driveway to access the benefitted owner’s property. The Holding The Tashakori decision highlights that the courts will use their equitable powers to create property rights in lands of another, by weighing the level of harm to the parties. Furthermore, the courts will not necessarily compensate the burdened owner, unless such party can demonstrate actual damages. As San Francisco properties can have easements burdening and benefitting them, or more often than not no easements in place but a clear need to have access to a neighbor’s property (for example to do repairs or maintenance on a property where there is no side yard and the building is built to the property line), this case makes it clear that if necessary courts are willing to impose burdens on properties over the objection of their owners. Art Update The Planning Commission voted unanimously last week to recommend approval of the Chiu/Lee ordinance with the changes recommended by staff. Staff recommendations included elimination of art commission review for art included in development projects. They also make clear that any in lieu fee is an option to be exercised by developers, i.e. not mandatory. The Mayor and Sup. Chiu agreed to the changes. Staff also recommended that the fee be expanded to commercial developments over 25,000 s.f. in the Eastern Neighborhoods and South of Market districts. Representatives of the Mayor, Sup. Chiu, and the Arts Commission said they wanted time for more outreach before moving forward with this component. The Commission did not formally recommend the wider fee be included, but “strongly recommended that the Board consider” including a citywide art requirement that would apply to both residential and commercial developments larger than 25000 sq. ft. 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. Copyright 2011 Reuben & Junius, LLP. All rights reserved.