• Summer Summary: Recent Changes in Local Law

    This summer, the San Francisco Board of Supervisors approved legislation that increased the Transportation Sustainability Fee (TSF) for large non-residential projects, amended the HOME-SF (Housing Opportunities Mean Equity-San Francisco) Program to temporarily (through 2019) reduce Program requirements, and created a new administrative approval process for 100% Affordable Housing Bonus Program projects.

    TSF Increase for Large Non-Residential Projects

    In June 2018, the San Francisco Board of Supervisors approved a Transportation Sustainability Fee (TSF) increase for large non-residential projects (over 99,999 gross square feet (gsf)) citywide, with certain exceptions.  This increase follows a major overhaul of transportation fee requirements in 2015, which imposed higher transportation fees citywide for most projects.  The legislation characterizes the increase as $5.00 per gsf (based on the 2015 original TSF rate); however, according to the current Development Impact Fee Register, due to interim increases based on indexing, as of January 1, 2018, the TSF was $21.14, and the actual fee increase is $2.90 per gsf.

    There are certain exemptions and exceptions to the fee increase.  For example, for most large non-residential projects in the Central SoMa Plan Area, the fee will be $21.04 upon the effective date of the Central SoMa Plan Area rezoning and associated Planning Code amendments under Board of Supervisors File No. 180184.  The fee increase also does not apply to projects with a Development Agreement approved prior to June 5, 2018.

    The TSF for residential, hospital, health services, PDR, and other smaller non-residential projects (under 99,999 gsf) is not affected by the legislation and there are no changes to existing grandfathering clauses and exemptions.

    Amendments to HOME-SF Density Bonus Program

    In July 2018, the San Francisco Board of Supervisors approved legislation to temporarily reduce HOME-SF Program requirements.

    As explained in more detail in our prior blog post, the HOME-SF Program seeks to increase affordable housing production, particularly housing affordable to middle income households, by encouraging project sponsors to provide additional on-site units as affordable.  Certain Planning Code modifications and density bonuses may be granted by the Planning Commission for qualifying projects, including up to 20 feet of additional building height without the need for a Height Map amendment. Previously, in order to qualify for the Program, at least 30% of on-site units were required to be designated as affordable, as compared to the lower percentages (18 to 20% for rental and ownership projects, respectively) otherwise required under the San Francisco Inclusionary Housing Ordinance.

    The recent legislation reduces HOME-SF Program requirements for projects with a complete Environmental Evaluation (EE) application on file before January 1, 2020.  For qualifying projects with 25 or more total units, the 30% requirement is reduced to 23% or 25% for a height bonus of up to five and ten feet, respectively.  For projects seeking a height bonus between eleven and 20 feet, the 30% requirement still applies.  For smaller projects only seeking a height bonus of up to five feet, the 30% requirement is reduced to 20%, which, again, is the same as the current on-site Inclusionary Housing Ordinance requirement for ownership (i.e., condo) projects.

    Although the required AMI spread for affordable ownership units (80%, 105% and 130% of AMI) and affordable rental units (55%, 80% and 110% of AMI) remains the same, changes were made to the percentage of affordable units required at those AMI levels.  For example, although a qualified HOME-SF Program project seeking 20 feet of additional building height would still be required to designate at least 30% of on-site units as affordable, more of those units could be rented at 80% and 110% of AMI. See Planning Code Section 206.3(f) for more information.

    The recent amendments also require the Planning Commission to approve or deny a HOME-SF Program project within 180 days of submittal of a complete application, unless an EIR is required for the project. See Planning Code Section 328 for more information about the Planning Commission review process.

    New Administrative Approval Process for 100% Affordable Housing Bonus Program Projects

    The July 2018 legislation referenced above also created a new administrative review and approval process under Planning Code Section 315.1 for 100% Affordable Housing Bonus projects, as defined under Planning Code Section 206.4.

    These projects will now be reviewed and approved administratively by the Planning Department, notwithstanding any otherwise applicable Conditional Use (CU) authorization requirement related to a specific land use or use size limit.  The Planning Director may also grant “minor exceptions” to Planning Code requirements (in addition to  Planning Code Section 206.4 modifications), including exceptions from residential usable open space, loading, rear yard, dwelling unit exposure and parking requirements, and modifications of other Planning Code requirements that could otherwise be modified through the Planned Unit Development (PUD) process, regardless of the zoning district. These exceptions are similar to what is currently available by Planning Commission authorization for downtown projects and projects in the Eastern Neighborhoods under Planning Code Sections 309 and 329, respectively.  Even though these modifications are substantially broader than those otherwise permitted under Section 206.4, they are available  in limited circumstances (i.e., to “appropriately shift” building mass to respond to the surrounding context and only if such modifications “do not substantially reduce or increase the overall building envelope permitted under Section 206.4.”).

    The Planning Department’s determination will be appealable to the Board of Appeals through the  building permit process, but any requests for Discretionary Review (DR) by the Planning Commission will be denied if and when the Commission delegates its DR authority to the Department for 100% Affordable Housing Bonus projects, as contemplated by the legislation.  The CEQA determination for a project will be separately appealable to the Board of Supervisors, unless the project qualifies for ministerial approval under Senate Bill (SB) 35, as locally implemented pursuant to Planning Director Bulletin No. 5 (which should be amended to account for new Section 315.1). See our prior blog posts for more information about SB 35 and the local implementation of SB 35.

  • California Voters Poised to Weigh in on Major Changes to Rent Control Law

    California voters will consider a November ballot initiative (Proposition 10) that would repeal the 1995 California Costa-Hawkins Rental Housing Act (“Costa-Hawkins”). Costa-Hawkins generally limits rent controls that may be imposed by local jurisdictions on housing units in buildings with a certificate of occupancy issued after February 1995, prohibits local jurisdictions from expanding rent control to include “vacancy control,” and exempts single-family homes and condominiums from rent controls, with limited exceptions.

    In San Francisco and Los Angeles, Costa-Hawkins prohibits rent control for housing units in buildings with a certificate of occupancy issued after June 1979 and October 1978, respectively, because of the local rent control ordinances that were in effect in those cities when Costa-Hawkins was adopted. In other words, in San Francisco, rent control only applies to tenants in buildings built before June 1979, meaning that generally, owners of buildings built after that date can increase rental rates at any time (subject to required notice) to reflect market conditions.

    Proposition 10 is not the only attempt to repeal Costa-Hawkins in the recent past. In 2017, Assembly Members Chiu, Bloom and Bonta introduced AB 1506 to repeal Costa-Hawkins, which was rejected by the Assembly Housing and Community Development Committee, in part because two Democrats abstained from voting.

    If passed by California voters, the ballot initiative would allow—but not require—local jurisdictions to adopt rent control laws without any state-imposed limitations related to the type of housing or the date that a certificate of occupancy was issued for a building (see above). If Proposition 10 were to pass, the San Francisco Board of Supervisors could vote to impose rent control on units in buildings built after June 1979, including new construction. Earlier this month, the San Francisco Board of Supervisors voted on a resolution to support Proposition 10. That resolution failed, with “no” votes from Supervisors Cohen, Safaí, Stefani and Tang.

    The Coalition for Affordable Housing is leading the campaign in support of the initiative and the California Apartment and Rental Housing Associations are leading the opposition, with major donations from the real estate investment and development communities. A myriad of elected officials, businesses, organizations, labor unions representing the construction trades, and some affordable housing developers and advocates are also in opposition. Opponents generally argue that Proposition 10 would worsen the existing housing crisis because it would discourage investment in housing. Supporters, including the California Democratic Party and the California ACLU, generally argue that Proposition 10 is necessary to protect residents from being displaced due to skyrocketing rent increases.

  • Cracking the Code: Three Simple Steps To Break Through the Legalese of the California Rules of Court and Local Rules When Filing with the Court

    How do we, the legal paraprofessionals, build a consistent, reliable bridge between the attorney and the clerk, while delivering our pleadings through the Court’s gatekeepers?

    Whether we are Legal Secretaries, Paralegals or Legal Assistants, we need to ensure that our pleadings are successfully filed without being rejected by the clerk. When filing, we need to comply with both the California Rules of the Court (“CRC”) as well as the local rules of each court. Many of us did not go to law school, so how do we understand the legalese when reading these rules? Even attorneys with decades of legal practice experience may encounter obstacles when their best attempts at compliance with the California and local rules do not satisfy the clerk.

    Here are three simple steps that can help overcome those obstacles:

    1. Locate the applicable rules
    2. Understand those rules
    3. Clarify any remaining ambiguity with the clerk

    1. Locating the Rules

    Since the diminutive, spiral-bound desk books we once received annually have now become obsolete, the best modern day reference is to go straight to the source – the California Rules of Court website, where you can find the CRC’s. Each county’s local rules can be found at http://www.courts.ca.gov/find-my-court.htm, where you can find not only the links, locations, and contacts, but also the proper District for the Court of Appeal for each county.

    2. Comprehending the Rules

    Foundationally, we must understand the relationship between the Local Rules of the Court and the California Rules of the Court (hereinafter “CRC”). The California Rules of Court (“California Rules” or “CRC”) are rules that govern all the state Courts in California – that is, they apply statewide. They are administered, managed and updated by the Judicial Council of California (“The Judicial Council”), which is a body of highly qualified people employed by the State of California and under the leadership of the Chief Justice of the California Supreme Court, the highest court in our state judicial system. Local Rules cannot supersede the California Rules of the Court. CRC. 3.20.

    However, at times, the California Rules often give the “green light” to the Local Rules, providing there is no conflict with higher authority. For example, to open a case, CRC Rule 2.220(a) requires, “The first paper filed in an action or proceeding must be accompanied by a case cover sheet” and that cover sheet “must be on a form prescribed by the Judicial Council and must be filed in addition to any cover sheet required by local court rule.” For example, the Los Angeles Superior Court includes within its Local Rules, LR 2.3(a)(1)(E), which instructs us that a Civil Case Cover Sheet Addendum is required for all new civil case filings in “addition to the Civil Case Cover Sheet required by the California Rules of the Court.” This Civil Case Cover Sheet Addendum is a locally approved form (LACIV109), which can be found on that court’s website. Therefore, to successfully file a first paper and open a new case in the Los Angeles Superior Court, this Civil Case Cover Sheet Addendum must also be filed in addition to documents required by the California Rules, the Complaint and Case Cover Sheet. If this local rule is not followed, your filing may be rejected or sent back asking for that form in order to open your case.

    The second most basic rule is to learn to have patience in understanding the grueling legalese in so many of our rules. One way of breaking through the Court’s language as swiftly as possible is to take time in advance.

    Here are two ways to get started. Let’s consider how the following two rules work: CRC Rule 1.5 and CRC Rule 1.6.

    CRC Rule 1.5, “Construction of Rules and Standards” sets forth a series of requirements that require special attention. In this section, you should notice the mandatory words such as “must,” which are required, as compared to words such as “should,” which are simply strong suggestions. This will help you look out for and locate the words that flag a rule that unquestionably needs to be followed, versus words that may make your life easier if you follow them, but are not mandated.

    Second, take a careful look at the definitions set forth in CRC Rule 1.6, “Definitions and Use of Terms.” The context of these rules is not the same in the everyday English we speak. For example, in Rule 1.6 (14), the word “Person” is not just a “natural person” but this word also includes a “corporation.” Who would have ever thought that a corporation would be considered a person when speaking everyday English? It is important to recognize when a term is specifically defined for the Court, and demands certain rules are followed, and when a term is free to be used on Friday night (such as ‘party’).

    3. Contacting the Court Clerk

    For many of us, the all-important interaction with the Clerk may be the most challenging task of all. As a general rule, it is always best to learn how the Clerk prefers to be contacted, by telephone or email, and then proceed from there. Some courts have designated phone hours. Other courts prefer contact by email. All of this vital information can usually be found on each individual court’s website.

    Our communication with the Court will likely be much smoother if we have all the information available: case number, type of hearing, date and question. Just remember to keep your eye on the ball, and that ball is getting the document successfully filed without any delay. Don’t be intimidated by the comportment of the Clerk; these folks are constantly dealing with the public, and often are happy to help a legal professional. Think of yourself and the Clerk working together for a successful filing and representation of your client and strive to do your job in a kind and professional manner. As your career develops, a friendly Clerk who recalls your professionalism and good cheer will almost certainly prove to be one of your most trusted professional contacts.

    So, to wrap this up, remember three simple steps: first, locate the applicable rules; second, understand those rules, and third, clarify any remaining ambiguity with the clerk. You got this!

    Francie Skaggs is a legal assistant at Coblentz Patch Duffy & Bass LLP. She is the Educational Chair for the San Francisco Legal Professionals Association.

    Posted on: September 20, 2018 Tags: Categories: Publications

  • Pacific Council GTMO Special Report: A Matter of Time

    Coblentz Patch Duffy & Bass LLP partner Paul Tauber is a member of the Pacific Council on International Policy Guantánamo Bay (GTMO) Task Force. On September 11, 2018, the 17th anniversary of the 9/11 attacks on the United States, the Pacific Counsel’s GTMO Task Force released its second report, A Matter of Time, to renew the call for federal judges to preside over military trials at Guantánamo.

    The report builds on recommendations made in 2016, several of which were adopted in the National Defense Authorization Act for Fiscal Year 2018.

    Following up to the GTMO Task Force’s 2016 report, Up to Speed, the task force now calls for equipping judges with expanded powers to enforce deadlines, levy consequences, and propel these cases toward fair and final conclusions.

    Read the Task Force’s report here.

    In 2013, the Pacific Council was granted official NGO observer status at Guantanamo Bay, Cuba (GTMO) by the Office of Military Commissions, joining a group of organizations, including the American Bar Association and the New York City Bar Association, that have the privilege of sending a representative to observe proceedings at GTMO.

    Paul traveled to GTMO in February 2015 and again in 2016 as a civilian observer on behalf of the Pacific Council to observe a week of hearings in the matter of US v. Khalid Shaikh Mohammed. Khalid Shaikh Mohammed is the alleged mastermind of the September 11th attacks on the World Trade Center and stands trial along with four others.

    Since 2013, 50 members of the nonpartisan Pacific Council have spent a collective 255 days at Camp Justice as observers of the Guantánamo proceedings.

    Paul’s GTMO assignment follows the lead of the late William (Bill) Coblentz, who was also appointed as an observer by the American Bar Association in 1989 when he traveled to Singapore on behalf of the ABA to observe the trials of four Singaporean lawyers accused of conspiring to undermine the government.

    Posted on: Tags: Categories: News

  • RM-3 Passed – What Happens Next?

    Earlier this summer, Bay Area voters passed Regional Measure 3 with 54% of the vote, authorizing $4.5 billion of transportation improvements throughout the region. Commuters will pay a $1 toll hike on seven Bay Area bridges, excluding only the Golden Gate Bridge, beginning on January 1, 2019. Our original article summarizing RM-3 lays out the planned improvements. 

    San Francisco commuters may have already noticed new Muni railcars on the N-Judah line, added in late June 2018 with money from other sources. With RM-3 funding on its way, Muni officials estimate that 68 new cars – featuring automated stop announcements and new seating configurations – will go into service by the end of next year.

    RM-3 requires the Bay Area Toll Authority (BATA), a joint-powers agency with the Metropolitan Transportation Commission (MTC), to establish an independent oversight committee to manage the allocation of funds throughout the nine Bay Area counties. The committee would submit an annual report to the State Legislature, detailing the status of the projects in the Measure’s operating and capital expenditure plans.

    The construction schedule for RM-3 projects is not expected to be determined until next year, pending the resolution of a taxpayers’ lawsuit seeking to invalidate the Measure.  The lawsuit claims that the toll hikes are a tax requiring a two-thirds vote of the Legislature to qualify for the ballot.

    We expect more information about the RM-3 improvements beginning in January of 2019, when the Measure is scheduled to take effect, and we will continue to provide updates.

     

  • Coblentz Hosts Eighth Women in Conversation Program with Nell Scovell

    On Thursday, September 13, 2018, Coblentz hosted its eighth Women in Conversation program. This year’s event featured Nell Scovell, television and magazine writer, producer, director and collaborator on the #1 New York Times bestseller Lean In: Women, Work, and the Will to Lead, in conversation with Coblentz partner Charmaine Yu. Nell is the creator of the television series Sabrina the Teenage Witch, and her TV writing credits include The Simpsons, Coach, Monk, Murphy Brown, Charmed, and NCIS. She was one of only a handful of women in late-night comedy as the second female writer ever hired for Late Night with David Letterman. She has contributed to Vanity Fair, Vogue, Rolling Stone, The Washington Post and The New York Times.

    Coblentz’s women attorneys created Women in Conversation in 2009 as an event to bring together talented, inspiring, and influential women leaders in business, science, the arts, sports, politics, and the community. Women in Conversation allows us to share the stories of celebrated women with our firm clients, colleagues, and friends – women who are themselves at the highest levels in their own fields – in a conversational format.

    Our past speakers include President of the National Academy of Sciences Marcia McNutt; President of the University of California system Janet Napolitano; legendary artist Linda Ronstadt; ODC Founder and Artistic Director Brenda Way; Olympic athlete and sports broadcaster Jessica Mendoza; entrepreneur and philanthropist Elinor “Nell” Newman; and film and theater actor Patricia Clarkson.

    Posted on: September 13, 2018 Tags: Categories: Events