You could say our real problem is that we have it too good in the Bay Area. Our lifestyle, weather, geography and environment have made it so desirable to live here that the mere number of people hampers our ability to move about in cars during peak driving times. Currently, one million daily trips are made into the downtown, SoMa and Civic Center areas of San Francisco, half of which are by car. As a result, 60% of surface streets in downtown have average car speeds of less than 10 miles per hour during peak times. Traffic is manageable at best right now, but with 150,000 more residents and 230,000 more jobs expected in the city in the next 25 years, serious planning will be needed to avoid total gridlock. To see an extreme example of what happens when cities don’t plan for future traffic growth, see this recent New Yorker article and accompanying video on traffic in Moscow, where bread lines have been replaced by traffic lines: “http://mytinyurl.com/tf27fvyckg”. Congestion and traffic is a growing threat to cities and communities throughout the country. As of 2005, the Federal Highway Administration calculates that roughly 2.9 billion gallons of fuel are wasted and 4.2 billion hours of time is lost by American commuters each year due to congestion and traffic. As a result, the FHWA has been dangling millions in study grants and hundreds of millions in implementation dollars to cities throughout the country, enticing them to implement strategies to reduce congestion. The most publicized of these strategies is called “congestion pricing.” Simply put, congestion pricing charges cars and trucks a fee for crossing into a heavily trafficked business district of a city during peak drive hours. Normally, the charge is collected through an automatic and electronic system similar to FasTrak. Instead of attacking traffic on the supply side, by constructing new lanes and roads, congestion pricing attempts to alter the demand side of traffic, by reducing the number of vehicles driven. Successes Abroad, an Attempt at Home While congestion pricing isn’t new (it was first established in Singapore in 1975), it has been gaining momentum over the first decade of the century. Probably the most well-known example is London, which in 2003 established a congestion pricing system that charged drivers $16 a day to enter into a central city zone. The program resulted in a decrease in travel delays of 30%, an increase of average automobile speed from 5 to 10 miles per hour and reduced CO2 emissions by 16% without significant displacement of traffic onto local roads outside the central zone. Another recent example comes from Stockholm, where drivers are charged between $1.50 to $3 to cross into or out of the City Center zone. This has reduced Stockholm’s traffic by 22% and reduced CO2 emissions by 10%. While business owners within City Center feared the effect of the congestion program on their bottom lines, studies have shown that sales at businesses within the zone actually increased by 5% since the program’s enactment. In 2008, the City of New York came very close to enacting a congestion pricing program proposed by Mayor Bloomberg in Manhattan south of 60th Street. Cars would have been charged $8 and trucks $21 to enter into this zone during weekdays from 6 a.m. to 6 p.m. With the support of numerous business, environmental, labor and public health organizations (and the majority of votes in favor coming from the other boroughs) New York’s City Council passed the measure. The New York State Legislature, however, failed to even bring it up for a vote, thereby killing the measure due to lost federal funding. A Future in San Francisco? The federal government has awarded San Francisco’s transportation authority a grant of $1 million to study the feasibility of a congestion pricing program in the city. The study is nearing completion and several public workshops have been held this summer leading up to the planned publication of the final study this fall. Preliminary study results have been provided at these workshops. Specifically, the study suggests a “cordon” zone that is bounded by Laguna Street, 18th Street and the Bay to the north and the east. A smaller zone more narrowly focused on the Central Business District is also put forward in the study. Crossing into or out of the zone during the hours of 6 a.m. to 9 a.m. and 3 p.m. to 7 p.m. would cost drivers $3, with a maximum of $6 a day. Certain exemptions and reductions for emergency vehicles, low-income and disabled drivers, and cordon zone residents would apply. In the cordon zone, the city expects the program to reduce automobile trips by 12%, reduce total delay times by 21%, reduce CO2 emissions by 16%, reduce collisions by 12%, increase the ride/bike share of transportation by 5% and increase the public transit share of transportation by 7%. Fees are estimated to total up to $80 million a year, which would be used to fund traffic improvements and upgrade public transportation. Several limited pilot programs are also promoted as ways to test the program before fully implementing it. Will congestion pricing work, or is it needed, in San Francisco? While the vastly-larger London is not a good comparison, Stockholm has roughly the same population as San Francisco. However, peak drive time commuters already pay a $6 toll to cross the Bay Bridge and a $5 toll to cross the others, and pay up to $30 a day to park downtown. Will a congestion pricing program that charges $6 a day to commuters that enter and leave the downtown area during peak times really discourage drivers that are paying up to $36 a day to drive there already? Congestion pricing won’t be established in San Francisco overnight. Approval by the Board of Supervisors and the state of California and local and federal environmental clearance will be necessary before the program takes effect. To learn more, go to the San Francisco County Transportation Authority’s website at “http://www.sfcta.org/content/view/302/148”.

Ballot Measure to Tax Commercial Property Doesn’t Make the Cut – But Two Tax Measures Head to Voters With the 2011 budget hole plugged, the Board of Supervisors already have an eye on next year’s inevitable budget deficit. The Board contemplated sending three new tax measures to the ballot this November. One measure, pushed by Supervisor Chiu, would have established a progressive payroll expense tax (thereby reducing the tax some employers would pay) in conjunction with imposing a gross receipts tax on the rental of commercial real estate. Another measure, pushed by Supervisor Mirkarimi, would have increased the tax on commercial parking garages to 35% and imposed a new tax on valet parking services. Finally, an increase of the real property transfer tax on sales of property valued at $5 million or more – specifically, the tax on sales of property valued at $5 million to $10 million would increase from 1.5% to 2% and the tax on sales of property valued at greater than $10 million would increase from 1.5% to 2.5%. Likely recognizing that a full slate of new tax measures may doom each individual one, the Supervisors agreed to send only the transfer tax increase to voters in November. In addition, enough signatures were gathered to place the Hotel Fairness Initiative on the ballot this November, which would increase the hotel tax for tourists by 2%. Both measures are expected to bring in upwards of $36 million each into city coffers. New Planning Fees Go Into Effect August 9 – With Increases Across the Board The Planning Department has issued its 2010-2011 fee schedule that will go into effect August 9. As is expected, all fees have been increased modestly. One new fee stands out, though: A Class 32 categorical exemption from CEQA is now subject to a separate sliding scale fee. The previous fee was a $5,444 fixed fee. It will now be at least $10,375, and likely much higher, as it will be based on construction cost of the project. You can find the new fee schedule here: “http://mytinyurl.com/5681rgz3sp” First Fee Deferral Monthly Surcharge Rate Released This week, the Department of Building Inspection released the first monthly surcharge rate for the fee deferral program. The July rate is 1.84%. In other fee deferral news, both the Public Utilities Commission and the San Francisco Unified School District have yet to agree to make the development fees they charge eligible for the fee deferral program. The PUC is expected to take this up at its next meeting, but there’s no word yet when the School District may consider the issue. Project sponsors will not be able to defer the fees charged by these two entities until they agree to participate in the program. We’ll keep you posted. Zoning Administrator Position Posted; Planning Commission Seats Will Soon Be Vacant Earlier this month, the city’s Department of Human Resources posted the job opening for the Planning Department’s Zoning Administrator position. Scott Sanchez is the interim Zoning Administrator. The “ZA” is a Charter position whose responsibilities include interpreting the Planning Code, advising the Planning Director and Planning Commission, managing the code enforcement unit, conducting variance hearings, among other things. Applications are being accepted through August 6. If you are curious, check out the job listing at “http://mytinyurl.com/k28q58xxy8.” Planning Commissioners Bill Lee and Gwyneth Borden’s terms recently expired.  The Mayor has yet to nominate Lee or Borden or anyone else for these two important Commission seats.  As a result, on September 1, these seats will be vacant, and the Commission will be operating with just five Commissioners. SoMa Leadership Council Goes on Hiatus Last week, Jim Meko, chair of the SoMa Leadership Council, announced that the group would be going on hiatus, citing a lack of participation in its management. The Council was integral in the formation of the Western SoMa Citizens Planning Task Force, a city body that is guiding and consulting the planning initiative that will ultimately result in the rezoning of the West SoMa neighborhood. While the task force continues on without the Council, it is unclear what effects this development will have on the planning initiative. The Environmental Impact Report covering the rezoning is expected to be published early in 2011. And Finally, a Race to Be Green How quickly can buildings go green? That is the question the US Environmental Protection Agency was trying to solve when it established a green building “race” last year. The EPA estimates that, on average, 30 percent of the energy used in commercial buildings is wasted – a great motivator to the “racers.” Office buildings, dormitories, elementary schools, hotels, retail buildings, convention centers, airports, malls and other buildings originally applied to the contest, believing they could reduce their energy use intensity the most in one year. EUI of a building is calculated by dividing the total energy consumed by the building in one year by its floorspace. A pool of 200 applicants was recently whittled down to 14 finalists. Unfortunately, none are located in San Francisco or the Bay Area. San Francisco International Airport was one of the original applicants. Final results will be announced October 26. You can read more and follow each finalist here: ” http://mytinyurl.com/fqp94ycm2d” 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. Copyright 2010 Reuben & Junius, LLP. All rights reserved.    

Don’t look now, but the newspaper might not be your only reading source that is fighting for its life against new technology. Amazon.com reports that, in the past three month period, it has sold more e-books than print books – 143 e-books for every 100 print copies. While this has huge implications for the publishing industry, the tech industry, and the literary industry, it also affects real estate and land use decisions. As demand for physical books declines, some believe that large book retailers like Barnes & Noble and Borders could soon be vacating an enormous retail space near you, leaving a difficult-to-fill retail hole. Stories of Barnes & Noble’s and Border’s jump into the e-reader market, and the battle between Barnes &Noble’s Nook, Borders’ Kobo, Amazon’s Kindle, Sony’s E-Reader and the IPad for dominance of that market further illustrate the evolution of the publishing industry towards a digital future. Add to that a digital transformation of these large booksellers’ other major sales item – music – and you have a recipe for brick and mortar bookstore troubles. Some are already discussing what developments to expect in the near future. In their July 9, 2010 SCT Week on-line newsletter, The International Council of Shopping Centers (ICSC) wrote that many of these large stores – averaging about 25,000 square feet and maxing out around 60,000 square feet – will soon shrink or shut down. These are some of the largest and most unique retail spaces around and may be difficult to re-lease. The report suggests that many of these spaces will be forced to divide into 5,000 to 10,000 square foot segments. All is not lost yet, notes the author, citing the fact that bookstore chains still make up 27 percent of the book market, compared to the 20 percent online share of the market. The North Bay Business Journal has reported on the creative uses that are beginning to fill the vacant big box stores in Sonoma, Marin and Napa counties. Examples of adaptive uses include indoor cart racing in an old Linens ‘n’ Things, an ethnic grocer in an old Circuit City, a Trader Joe’s in an old Barnes & Noble. Some creative short-term uses have been employed, like a short term car dealership lot, but many aren’t worth the hassle of preparing the space, getting special insurance, and cleaning up that go along with them. You can find the article at: “http://mytinyurl.com/mmpccwtyzv.” Big booksellers in San Francisco appear to be weathering the storm so far. Currently, there are four Borders and one Barnes & Noble in the City. Three are in downtown/SoMa, one is in Fisherman’s Wharf and one is at the Stonestown Galleria Mall. To date, they continue in business with no obvious signs of being negatively affected by the e-reader explosion. In fact, the Borders at the Westfield San Francisco Centre on Market Street opened just back in 2006. Oakland, however, has not been so lucky. The Barnes &Noble in Jack London Square closed this past January, leaving a gaping whole in a neighborhood that appeared to be making a comeback. What’s happening with the space now? An “art salon” there a couple of weeks ago featured various still and moving image exhibits and a rock band made up of three girls that couldn’t have been older than 16 years old. A creative idea, but clearly not the highest and best use of the space. However, the Oakland Tribune’s Tammerlin Drummond has reported that there are rumors a Trader Joe’s could be moving into the space – one of the few retailers that could use a retail space that size. White knight tenants like this, though, can’t be expected to plug all of these holes. Back in San Francisco, it doesn’t seem likely that any new big bookstores will be built any time soon. The fragile retail market and the burdened of the City’s conditional use requirement for chain stores in most parts of the City means new stores are unlikely, even in vacant spaces. Hopefully San Francisco will be able to avoid a loss of any of its big box bookstores. Anyone who has been to the Borders by the ballpark recently would have no reason to think these businesses might be in trouble. However, as Amazon.com’s news reminds us, the bookstore market is anything but predictable right now. One thing is for sure: if one of these bookstores does go out of business, filling the space will take some creativity. 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. Copyright 2010 Reuben & Junius, LLP. All rights reserved.    

As we recently reported (6/17/10 update: “Landmark New CEQA Guidelines For Greenhouse Gas and Particulate Matter”) the Bay Area Air Quality Management District (“BAAQMD”) adopted new CEQA Guidelines (“Guidelines”) at the beginning of June. By lowering the threshold of significance for air quality impacts, especially on construction-related emissions, the Guidelines and related regulations will significantly increase the burden of CEQA compliance on many San Francisco projects. Even relatively small projects will have to complete expensive air quality analyses and health risk assessments related to construction. Depending on the results, many would have to prepare Negative Declarations or EIRs simply to analyze these construction-related emissions. Our previous update gave an overview of the BAAQMD Guidelines, including new standards for operational emissions of greenhouse gases emissions and toxic air contaminants. This week, we specifically focus on the Guidelines’ treatment of construction-related emissions and the implications for new development in San Francisco. Overview The Guidelines establish new and lower thresholds of significance for toxic air contaminants (TACs), a category which includes fine particulate matter (PM2.5), diesel particulate matter (DPM), and a number of other criteria pollutants that have deleterious effects on human health. The thresholds apply to all potential pollution sources associated with a project, including pollution generated by construction delivery vehicles and equipment used on site. Impact Thresholds For individual projects, construction activities cause a significant impact requiring preparation of an EIR or Negative Declaration where TAC emissions are expected to exceed threshold amounts (air quality impact) or where emissions create a risk to human health (health risk impact). Air quality impacts occur where emissions of ROGs (reactive organic gases), NOX (nitrogen oxide), or PM10 (fine particulate with a diameter of 2.5 micrometers or less) are expected to exceed 54 pounds per day, or where PM10 (respirable particulate matter with a diameter of 10 micrometers or less). Health risk impacts occur where a project is expected to cause (a) an excess cancer risk level of more than 10 in one million, (b) a non-cancer hazard index greater than 1.0; or (c) an incremental increase of more than 0.3 micrograms per cubic meter of annual average PM2.5. Evaluating Impacts The Guidelines call for a two-step process to evaluate both air quality and health risk impacts. First, a project is compared to BAAQMD’s screening criteria. The screening criteria provide a quick and standardized method for determining whether a project could have a significant environmental impact due to construction air quality. In order for air quality impacts to be treated as less than significant under the screening criteria, projects must: Be under a certain size, which varies according to the type of project. In general, commercial projects cannot be larger than 277,000 sq. ft. and residential projects must contain 240 or fewer dwelling units. Not involve demolition, “extensive” material transport or site preparation, or simultaneous occurrence of more than two construction phases (e.g. paving and building construction) would not meet the screening criteria. With the exception of high-density infill development, not include simultaneous construction of more than one land use type. In addition, projects must comply with BAAQMD’s “Basic Construction Mitigation Measures”, which largely duplicate existing laws restricting idling vehicles and mandating dust control measures. To meet the screening criteria for health risk impacts, projects must be a certain distance from “sensitive receptors.” Sensitive receptors include residential units, schools and other facilities used by persons especially sensitive to pollution, like children, the elderly and people with illnesses. The minimum distance varies according the type of project and size of the site. However, even the smallest residential project must be at least 311 feet from the nearest sensitive receptor to meet the screening criteria. Small commercial and industrial projects must be at least 328 feet away from sensitive receptors. Projects meeting the above screening criteria have a less than significant impact and do not require a detailed air quality or health impact assessment. Unfortunately, the screening criteria are conservative and penalize development in dense, mixed-use settings like San Francisco. Many infill projects involve demolition of existing buildings and there are relatively few development sites in San Francisco that are less than 300 feet from a residence, school, medical facility or other “sensitive receptor.” Thus, many projects will now be required to conduct an air quality analysis and health risk assessment. A project-specific air quality analysis and health risk assessment is an opportunity-albeit an expensive one-to more accurately estimate a project’s impacts. It can be conducted in one of two ways. It can use generic assumptions about construction emissions based on the type of project proposed. However, many of these assumptions are based on suburban development models and do not account for the lesser impacts of infill projects. Alternatively, if more detailed information can be provided by a project sponsor or contractor, the analysis can more accurately compare project-specific impacts to the significance thresholds. Experience with the new Guidelines is limited. However, it is our understanding that many mid-sized projects will exceed the significance criteria if default assumptions are used in the air quality analysis and health risk assessment. For these projects, the ability to provide detailed information about construction plans and equipment may be critical to avoiding overstating environmental impacts and needlessly preparing EIRs. For other projects, it may be possible to mitigate impacts by committing to the use of state-of-the-art construction equipment that meets or exceeds the latest air quality standards. In either case, it will be key to have early input from a contractor about construction plans or the cost and feasibility of mitigation-an option that may not be available to all sponsors. Is Relief on the Way? During the comment period on the Guidelines, several governmental agencies-including the San Francisco and Oakland Planning Departments and the Association of Bay Area Government-raised concerns that the new rules could stifle infill development by adding new cost and complexity to the CEQA process. In San Francisco, the new regulations could undermine efforts to expand the use of Community Plan Exemptions for projects in areas like

Fee Deferral Program Implementation Begins At long last, the fee deferral program became effective on July 1, giving project sponsors a new tool to kick start projects and vastly reshaping the way fees are collected in the city. As is to be expected, we will be learning the details about how the new program will be implemented over the next few weeks. First up, the Department of Building Inspection has posted a new city-wide fee register, listing all current development fees from all relevant agencies applicable to projects located in the city. The fee register can be found at: “http://sfdbi.org/Modules/ShowDocument.aspx?documentid=419”. DBI will also begin issuing fee reports for each project that is subject to city development fees. The report will contain all fees that apply to a project and will also include the staff contact in charge of calculating each applicable fee. The fee report will be issued prior to the issuance of the first site or building permit for a project, and can be appealed to the Board of Appeals. DBI has made some administrative changes in response to the program as well. Most important is a new policy, effective July 1, changing the date for determining a project’s compliance with the San Francisco Building Code. Previously, the rule was that the filing date of a site permit was the date of determining building code compliance. Now, the rule is that the filing date of the first site permit addenda is the date of determining building code compliance. Effectively, any changes in the building code between these two dates would now apply to a project. In addition, a site permit addenda now cannot be filed until after the site permit has been issued. Another new rule is that projects that are subject to impact fees must now submit eight copies of building plans, instead of two. The interest rate for project sponsors that defer fees has yet to be established yet, but is expected within the next few weeks. We’ll keep you posted. Northeast Embarcadero Study Released Its hard to fathom the changes that the stretch of the Embarcadero from North Point to Washington Street has undergone in the past century. During World War II, the waterfront was used as a military logistics center. The infamous Embarcadero expressway was completed in the 1960’s, which led to an all-out revolt against new freeways in the city. Unsurprisingly, the elevated freeway drastically reduced the desirability and usability of the area by separating the waterfront from the local neighborhoods. In fact, Steve McQueen’s safehouse in the movie Bullitt was located just a few blocks south of here, enshrining it as a location to be avoided. After the Loma Prieta earthquake, the freeway came down and the Ferry Building was restored, paving the way for a rejuvenated northeast waterfront. This being San Francisco, many people have different feelings about how this area should be rejuvenated. Everyone appears to agree that Port’s parking lots along the west side of the Embarcadero have to go. Existing residents see these parcels as future public open spaces, while housing advocates see new infill development opportunities. To help in guiding the transition of this area, Supervisor David Chiu requested that the Planning Department conduct a study, focusing on creating a unique waterfront experience while ensuring strong connections between the neighborhoods to the west of the Embarcadero and the Bay. That report was released recently, and the Planning Commission held a public hearing earlier today. In general, the study envisions a west side of the Embarcadero with retail businesses along the ground floor, limited parking and automobile access, with residential uses above to enliven the area with new residents. New open space would be reserved amongst these developments. Density limits would be eliminated and height limits would be increased on a handful of parcels near the southern, more heavily developed end of the area. The study does a good job at analyzing and illustrating its recommendations for each one of the existing parking lots. While not legally binding like the Planning Code, the study outlines the Planning Department’s recommendations for the area and would serve as a guideline for future development. The Northeast Embarcadero Study can be found at: “http://www.sf-planning.org/index.aspx?page=1662”. 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. Copyright 2010 Reuben & Junius, LLP. All rights reserved.    

Board of Supervisors President David Chiu wants to put a commercial rent tax for voter approval on the November ballot. The proposition also would revise the payroll expense tax to establish a progressive rate structure and reduce selected payroll expense tax rates. Proponents of the proposed commercial rent tax claim that this tax will create substantial revenue for San Francisco, approximately $24,500,000 in the first year, and that any additional costs to commercial landlords could be passed through to their tenants. Proponents also look to recover taxes from banks and insurance companies since they are exempt from the payroll tax. Those opposed to the commercial rent tax argue that it imposes an additional economic burden on businesses and hinders job growth. San Francisco Mayor, Gavin Newsom, who is against the proposed tax, maintains that its passage would stunt the nascent economic recovery. The proposed tax will be heard at a Rules Committee hearing at the Board of Supervisors on July 15, 2010. The legislation would tax all “gross receipts” received by commercial landlords. “Gross receipts” would be defined as (1) cash, credit, property or other consideration from the rental of commercial property and (2) all payments made to a person subject to the tax, and/or paid to third parties on behalf of a person subject to the tax as part of a rental agreement, including insurance proceeds, mortgage payments, taxes, expenses and cash value of services to or on behalf of the landlord in lieu of rental payments. (The ordinance does not explain how a landlord would “receive” mortgage payments.) The schedule of percentage tax imposed on the total “gross receipts” would be as follows: 2011: 0.632% 2012: 1.263% 2013 and subsequent years: 1.895% For example, if a landlord received $1,000,000 in gross receipts for the 2013 tax year, the tax due for that year would be $18,950. Residential and small commercial landlords whose gross receipts do not exceed $200,000 per tax year would be exempt from the tax. The timing of the tax payments would depend on the amount owed by the taxpayer. For any amounts between $2,500 and $50,000, the tax would be paid in two installments, one in August and one in February. If the amount of tax is in excess of $50,000 then the tax would be paid in four installments. Proponents of the tax have argued that it will have a limited impact on commercial owners since the owners can simply pass the additional costs through to its tenants. However, this ignores the fact that many existing leases, especially those negotiated in a more “tenant friendly” environment, do not include landlord favorable provisions that allow the landlord to pass through new taxes or fees. Many leases do not address this issue at all, which could lead to disputes and possible litigation, further depressing productivity. Even if the taxes are passed through, commercial tenants, including many small businesses, would then bear the burden of this new expense. Either way, the cost of doing business will increase – again. In a recent editorial, Supervisor Chiu pointed out that many other California cities have imposed a commercial rent tax. While this may be true, it does not take into consideration all of the other regulatory costs of doing business in San Francisco. Owners are justifiably concerned that yet another expense will hinder the anticipated recovery of the San Francisco real estate market. The San Francisco Controller – Office of Economic Analysis estimated in its June 28, 2010 report that the commercial rent tax will cause approximately 600 – 700 job losses per year, but that this would be offset by the changes to the payroll tax that are part of the proposed ballot measure. However, the complete offset is not expected to occur for 15 years. The Controller anticipates that higher government spending will save about 200 jobs per year in the public and private sectors. We will keep you updated once the Board of Supervisors makes their decision. We expect the ordinance to reach the ballot.  Please contact Kevin Rose or Lindsay Petrone if you would like a copy of the proposed ordinance or if you have any questions. 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. Copyright 2010 Reuben & Junius, LLP. All rights reserved.        

The San Francisco Planning and Urban Research Center held a forum this week on smart growth over the next 30 years, which provided us with plenty to consider as we look to the future. We all know San Francisco’s population is growing and will continue to grow. Association of Bay Area Government’s Ken Kirkey actually quantified this trend: ABAG has set a target of 65,000 new housing units to be built in the City by 2035. Providing this amount of housing is supposed to be the goal of the 2009 Housing Element update, so does the latest version move us any closer? Unfortunately, the latest version veers off in the wrong direction. As explained in an earlier update, the Housing Element is part of a city’s General Plan, which is the document that lays the policy groundwork for future land use planning. Originally, the Housing Element included policies that would allow the City to provide housing for the expected influx of new residents in the next 30 years, including: • Policy 1.3: Continue using community planning to plan for housing growth. • Policy 1.4: Through community planning processes, establish land use controls that support efficient use of land. • Policy 1.5: Support new housing projects on sites that are located along major transit lines. • Policy 10.2: Reduce the need for discretionary review processes such as conditional use approval. As you can probably guess, none of these policies made it through to the next version. In addition, the following policies were added: • Ensure growth is accommodated without significantly impacting existing residential neighborhood character. • Maintain allowable densities in established residential areas at levels which promote compatibility with prevailing neighborhood character. Let’s start with the elimination of the policies related to community planning. The last decade has seen the City adopt an unprecedented number of new plans, including the Rincon Hill Plan, the Market-Octavia Plan, and the Eastern Neighborhood Plan. These plans are not perfect, but they were visionary in that they very carefully analyzed the need for new housing in the City and carefully (maybe too carefully) planned for that growth. “Community Planning” has its problems. Its’ unfortunate need for across-the-board consensus building means that the development and adoption of a plan can drag out for years. The plans become extraordinarily expensive, stakeholders become frustrated, and it seems like everybody is exhausted at the end of the process. But in each of the cases described above, real, forward-thinking plans were produced, and have already benefited the City’s housing production. What will replace community planning in the future? Neither the draft Housing Element or the Planning Department has said yet. But community planning has worked and should not be discarded by the Housing Element. The loss of proposed Policy No. 1.5 (support new housing projects on sites that are located along major transit lines) is a significant blow to smart growth and green development. We all know that the right place to put new housing development is along existing major transit lines like Geary Boulevard. This policy recognized this fact. Its removal goes in the wrong direction if the City really is serious about being green. I guess we shouldn’t be surprised at the elimination of Policy 10.2. San Francisco’s land use decisions have become marathons of process at virtually every level. Whether you are trying to add a third story to your home in the Sunset, or trying to get entitlements for a large new retail development downtown, there’s a very good chance you will be taken on a long, protracted, expensive, difficult, process-driven journey. Virtually any time someone tries to raise their hand and suggest a means of simplifying the process, they are met with howls of protest (see the recently abandoned discretionary review reform). This proposed policy that was specifically intended to allow for a slightly easier permitting process for housing projects over 40 feet in certain limited zoning districts, apparently is meeting a similar fate. These two new draft policies will certainly be used by many no-growth activists to make developing any level of density in the western part of town (or virtually anyplace else) that much more difficult. At the beginning we saw a Housing Element document with some hopeful signs and the beginnings of a blueprint for a vibrant and growing City. It’s looking more and more like the Housing Element could become just another tool for anti-density, no-growth proponents in San Francisco. 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. Copyright 2010 Reuben & Junius, LLP. All rights reserved.    

On June 2, 2010, the Bay Area Air Quality Management District (BAAQMD) adopted stringent and landmark guidelines for mitigating greenhouse gas (GHG) emissions and particulate matter (PM 2.5) from land use projects. The new guidelines may have a major impact on the California Environmental Quality Act (CEQA) process for these projects. There is also speculation that the Guidelines adopted by BAAQMD, which is the air regulator for the nine-county Bay Area region, may be adopted by other air districts in the State or used by environmentalists to challenge land use projects in other air districts that would rise above the Guidelines’ thresholds of significance. The new Guidelines are among the most restrictive of California’s 35 air districts, and of any air regulator across the country. GHG Thresholds The Guidelines provide GHG thresholds of significance for a variety of land use project types. For instance, single-family housing projects of 56 dwelling units or greater; hotels with 83 hotel rooms or greater; or general office buildings with 53,000 square feet or greater; would all be considered to have a significant impact on GHG emissions under CEQA. That could prevent such projects from receiving categorical exemptions or other forms of streamlined review, and require mitigation measures that may not otherwise be required by the local jurisdiction in which the project is built. The Guidelines also encourage local governments to adopt a qualified GHG Reduction Strategy, which would substantially lesson the analytical burden imposed by the Guidelines. Once a local government adopts a GHG Reduction Strategy, GHG impacts from projects or plans that are consistent with the Strategy will be considered less than significant. This would streamline CEQA review by: not requiring mitigation beyond that required in the local government’s GHG Reduction Strategy; not requiring an Environmental Impact Report solely for purposes of GHG analysis; and not requiring Statement of Overriding Considerations with regard to GHG analysis. In San Francisco, the City is already working to have a GHG Reduction Strategy approved by BAAQMD. The GHG Reduction Strategy is likely to include compliance with already established policies of the City, such as the green building ordinance. Thus, for most projects in San Francisco, the new BAAQMD CEQA Guidelines will not result in too much of a change from business as usual, presuming the City is able to obtain approval of its existing policies as a qualified GHG Reduction Strategy. Some San Francisco projects, most likely large projects or those with unusual mixes of uses, may still need to conduct GHG analysis. For projects not in jurisdictions with detailed climate change policies, such as those in San Francisco, the new BAAQMD GHG Guidelines could prove especially controversial and difficult to address in the near future. PM 2.5 Thresholds BAAQMD’s new CEQA Guidelines do not only address GHG emissions, but fully replace the agency’s previous 1999 Guidelines for evaluating air quality. Another notable change, among many in the new Guidelines, is new thresholds for PM 2.5, or extremely fine particulate matter. These regulations set a numerical screening criteria and threshold for PM 2.5. If a project falls above those thresholds, data must be modeled for the project to determine if the project will result in a significant impact and mitigations that may be required. There is concern among many, however, that these new PM 2.5 regulations are set too low for urban areas, and will discourage in-fill projects and transit-oriented development that the GHG thresholds are meant to promote. Further, some developers and cities have argued that the new PM 2.5 regulations could well add unnecessary and exorbitant costs to urban projects, and perhaps even jeopardize the region’s efforts to comply with SB 375, the state’s 2008 law that incentivizes compact development. Conclusion The new BAAQMD CEQA regulations are a significant local, and perhaps even national, model for addressing GHG emissions from land use projects. For projects in cities such as San Francisco, which is likely to offer a qualified GHG Reduction Strategy in the near term, project sponsors will not see a substantial change in environmental review, but rather will be required to follow the City’s climate change initiatives, such as the City’s green building ordinance, as a condition of project approval. On the other hand, projects in jurisdictions without qualified GHG Reduction Strategies, will likely see streamlined forms of CEQA review disappear until those jurisdictions approve such strategies. Will the increased costs of compliance with the new PM 2.5 regulations stymie urban infill projects? That remains an open question. These regulations will, undoubtedly, create one more hurdle for urban projects at a time when the State is otherwise trying to encourage such projects.  Please let us know if you would like a copy of the regulations. 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. Copyright 2010 Reuben & Junius, LLP. All rights reserved.      

Four Planning Commissioner Terms Expire July 1 The terms of Planning Commissioners Gwyneth Borden, William Lee, Kathrin Moore and Hisashi Sugaya will expire on July 1. Board of Supervisors President David Chiu has already re-nominated Moore and Sugaya for another 4 year term each. The Mayor has yet to submit nomination (or re-nomination) papers for the seats currently held by Borden and Lee. The City Charter allows Planning Commissioners to continue to serve as holdovers for up to 60 days after their terms expire. The Mayor has the authority to nominate 4 Commissioners and the Board of Supervisors President 3, all subject to the approval by the full Board of Supervisors. Michael Antonini and Ron Miguel were appointed by the Mayor and Christina Olague was appointed by the previous Board of Supervisors President. All three serve terms will expire in two years. We’ll keep you posted on the potential changes at the Planning Commission. Planning Commission Approves Prioritization of Office Allocation for Candlestick Point – Hunters Point Shipyard Area Last week, the Planning Commission and Redevelopment Agency held a joint hearing to consider the certification of the Environmental Impact Report and approval of the redevelopment of the Candlestick Point – Hunters Point Shipyard Area. Demonstrating the controversy surrounding the plan, the hearing lasted over 12 hours and did not adjourn until after 1 a.m. the next day. Numerous aspects of the plan were discussed. Of note, the Commission prioritization of 800,000 square feet of office space for future office allocation approval. Proposition M, passed by voters in 1986, set a limit on the amount of office space that could be approved by the Planning Commission each year. Any office space within this “cap” that is not allocated to a specific project carries over into subsequent years. When the pool gets low, office projects are forced to compete for this limited office space allocation in a given year must go through a “beauty contest,” where the projects are compared by the Planning Commission and the project with the best design and greatest amount of public benefits is awarded the limited amount of office space allocation. The Planning Commission’s action on the redevelopment of Candlestick Point – Hunters Point Shipyard allows for up to 5 million square feet of office space in the plan area, 800,000 square feet of which would be prioritized over proposed office projects outside of the area in any future beauty contest. Considering that the office allocation cap currently consists of upwards of 2.9 million square feet, this probably won’t have an affect on office development outside the plan area in the near future. But when the next market cycle begins, and the demand for office space allocations grows again, it could be a factor. And, Finally, the Whole Story on the Mayor’s Fee Deferment Program in One Place We’ve received a lot of questions in the past few weeks regarding the specifics of the fee deferment program. For all of you out there wanting to get the basics quick, here you go: Beginning July 1, the Fee Deferral Program would make all development fees (impact fees and in-lieu 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 first certificate of occupancy, not prior to getting your building permit. The relief is that project sponsors will be able to defer 80 or 85 percent of a project’s development fees until the first certificate of occupancy is issued. If a project is located within one of the city’s area plans (such as Eastern Neighborhoods, Market and Octavia or Balboa Park) 80 percent of fees can be deferred. If located outside these areas 85 percent of fees can be deferred. The remaining 15 or 20 percent is required to be paid at the time the first building or site permit is issued. Project sponsors will have to pay a development fee deferral surcharge that accrues during the deferral period. Call or email if you would like to learn more about the surcharge…it’s complicated. 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. Copyright 2010 Reuben & Junius, LLP. All rights reserved.    

Between 1979 and 1988, building owners who converted their properties from apartments to condominiums were required to include BMR Units in their project. These Condominium Conversion Program BMR Units are price-restricted under San Francisco Subdivision Code Sections 1341 and 1385 for households of low or moderate income, depending on how the property was originally designated. Ordinance No. 320-08 (the Ordinance) passed last year, amended the San Francisco Subdivision Code related to the Condominium Conversion BMR Program (the Program). The Ordinance was intended to clarify the rules applicable to existing BMR Units in the Program, and to provide updated standards for BMR units purchased on or after the effective date of the Ordinance. The Ordinance also provides a way for BMR Units in certain older conversion projects to be released from the Program, so that the unit becomes a market rate unit. This article will focus on the rules applicable to existing BMR Units in the Program, and the options for release from the Program. The Ordinance is administered by MOH, and much of the information in this Update is taken from their website (“http://www.sfgov.org/site/moh_page.asp?id=117961”). The Ordinance provides that current owners of individual BMR Units may elect to stay in the current Program under the rules for pre-legislation owners, or may select one of the options listed in the Ordinance, including release from the Program. Original Subdividers have two exclusive options under the Ordinance. The various options are summarized below. Owner Categories The Ordinance divides owners into four categories: pre-affidavit owners, pre-legislation owners, post-legislation owners and original subdividers. The definitions of each owner category are summarized below. Pre-Affidavit Owners. Owners who purchased or acquired their BMR unit before December 1, 1992 are called “Pre-Affidavit Owners.” Pre-Legislation Owners. Owners who purchased or acquired their BMR unit before January 18, 2009 (the effective date of the Ordinance) are called “Pre-Legislation Owners.” Post-Legislation Owners. Owners who purchased or acquired their BMR unit on or after January 18, 2009 (the effective date of the Ordinance) are called “Post-Legislation Owners.” Owners in this category will be automatically enrolled in the updated Condo Conversion BMR Program and are subject to the requirements for Post-Legislation Owners. The options below do not apply to Post-Legislation Owners. Original Subdividers. Owners, or their successors in interest, who owned an apartment building at the time of conversion to condominiums and have continued to rent their units under Subdivision Code Section 1341 are called “Original Subdividers.” Available Options under the Ordinance A. Pre-Affidavit and Pre-Legislation Owners Option 1: Continue to be Governed as a Pre-Legislation Owner (Stay on the Current Program) Only Pre-Affidavit Owners and Pre-Legislation Owners are eligible for this option. If an owner chooses to stay on the current Condo Conversion BMR Program, the BMR Unit will continue to be regulated by the provisions in the Ordinance that relate to units acquired prior to the effective date of the Ordinance. An owner does not need to do anything to remain in the current Condo Conversion BMR Program. Any BMR Unit for which the City and owner have not finalized an agreement under one of the other options by January 18, 2011 will automatically remain part of the current Condo Conversion BMR Program and subject to the provisions in the Ordinance for pre-legislation owners. Option 2: Agree to be Governed as a Post-Legislation Owner (Opt Into the Updated Program) Only Pre-Affidavit Owners and Pre-Legislation Owners are eligible for this option. If an owner chooses to opt into the updated Condo Conversion BMR Program, the unit will be subject to all of the requirements applicable to post-legislation owners If an owner opts into the updated Condo Conversion BMR Program, the base price of the BMR Unit will be increased one time to the value printed in the Ordinance. This may enable the owner to sell the unit at a higher price. However, the BMR Unit will become subject to restrictions of the Program, including rental, resale and other restrictions. Option 3: Pay a Fee and be Released from the Program Only Pre-Affidavit Owners are eligible for this option. If an owner chooses to pay the fee, the unit will be permanently released from the Program. The fee is determined as the lesser of: 1) the fee printed in the Ordinance, or 2) 50% of the difference between the fair market value and the BMR price at the time of repayment. If an owner is unable to pay the fee immediately, a loan may be available from the City in the form of a City Lien. Call or email us if you need more information on this Option. B. Original Subdividers Option 1: Demonstrate a 20-year Affordable Rental History and be Released from the Program Only Original Subdividers are eligible for this option. If an owner chooses to demonstrate that any or all of that owner’s BMR units have been rented within the Program’s guidelines for 20 years, those units will be permanently released from the Program. An owner must follow required procedures to demonstrate that the owner has complied with the affordable rental requirements. A rental history must be compiled for each BMR Unit the owner wishes to have released from the Program. Option 2: Pay a Fee and be Released from the Program Only Original Subdividers are eligible for this option. If an owner chooses to pay the fee for any or all of the BMR units, those units will be permanently released from the Program. The details are similar to the fee payment discussed above. Note that there will be one Fee and Release Option Agreement to cover all of an owner’s BMR units. If an owner selects the lien option for some or all of that owner’s units, the owner will be required to record a separate Promissory Note and Deed of Trust for each unit. Conclusion The Mayor’s Office of Housing (MOH) implements the Program, and reviews and processes all applications under the Program. To select any of the options described in this article, written requests must be