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Victor Aiuto et al v. City and County of San Francisco

December 15, 2011

VICTOR AIUTO ET AL., PLAINTIFFS AND RESPONDENTS,
v.
CITY AND COUNTY OF SAN FRANCISCO, DEFENDANTS AND APPELLANTS. CITY AND COUNTY OF SAN FRANCISCO, PETITIONER,
v.
THE SUPERIOR COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT; VICTOR AIUTO ET AL., REAL PARTIES IN INTEREST.



Trial Court: San Francisco Superior Court Trial Judge: Hon. Richard A. Kramer (San Francisco City & County Super. Ct. No. CGC-10-502358)

The opinion of the court was delivered by: Ruvolo, P. J.

CERTIFIED FOR PUBLICATION

(San Francisco City & County Super. Ct. No. CGC-10-502358)

I.

INTRODUCTION

Plaintiffs are owners of condominium units that are designated "Below Market Rate" (BMR units), and thus subject to restrictions imposed by the Below Market Rate Condominium Conversion Program (BMR Program) created by the City and County of San Francisco (the City), under authority of the state Subdivision Map Act (Gov. Code, §§ 66410 et seq.) (SMA).*fn1 Plaintiffs filed this lawsuit against the City*fn2 challenging Ordinance No. 320-08 (the Ordinance) adopted by the City in December 2008 as part of its BMR Program. In their facial challenge, plaintiffs claim the Ordinance, which amended existing ordinances governing the BMR Program and added new provisions, constituted a regulatory taking, was preempted by state law, and violated their civil rights under 42 U.S.C. section 1983.

In this interlocutory appeal, the City claims the court erred in issuing a preliminary injunction to maintain the status quo while plaintiffs' claims were being litigated. Among other arguments, the City claims that plaintiffs did not have a reasonable probability of prevailing at the trial--one of the requirements for issuing a preliminary injunction--because all of plaintiffs' causes of action were time-barred. We agree with the City that section 66499.37, the statute of limitations governing any subdivision-related decision under the SMA, required plaintiffs' facial challenge to the Ordinance to be filed within 90 days of the enactment of the Ordinance. Because plaintiffs' claims were not filed within the 90-day timeframe, plaintiffs have not shown a likelihood of success on the merits. For this reason, we reverse the preliminary injunction, and remand the case to the trial court for further proceedings.

II.

Facts and Procedural History

The SMA is "the primary regulatory control" governing the subdivision of real property in California. (Hill v. City of Clovis (2000) 80 Cal.App.4th 438, 445.) Condominium projects are expressly defined as subdivisions within the meaning of the SMA. (§ 66424.) The SMA vests the "[r]egulation and control of the design and improvement of subdivisions" in the legislative bodies of local governments which must promulgate ordinances on the subject. (§ 66411.) Under the SMA, local governments possess the powers necessary to set condominium conversion restrictions. (See Soderling v. City of Santa Monica (1983) 142 Cal.App.3d 501, 507-508.)

Pursuant to the City's authority under the SMA, the City established its BMR Program in 1979 to expand "opportunities for homeownership while preserving and expanding the supply of low- and moderate-income housing." (S.F. Subd. Code, § 1344(b)(3).) The City created the BMR Program by adopting sections 1341 and 1385 of the City's Subdivision Code, which, among other things, required property owners seeking to convert their apartments into condominiums to set aside a certain number of their units for the BMR program. The purpose of conditioning approval of subdivision maps in this way was to restrict the sales and rental prices of each affected unit to ensure the affected units would remain available for purchase by low- to moderate-income households. The affordable housing restrictions were then reflected as conditions set forth in the San Francisco Planning Commission's subdivision map approvals. The program restrictions were, in turn, reflected on each property's subdivision map.

In 2008, a dispute arose between the City and several owners of BMR units regarding the terms of the BMR Program, including whether the Program's restrictions lasted in perpetuity, or for only 20 years. In response, on December 19, 2008, the City adopted the Ordinance at the center of this controversy, which amended sections 1341 and 1385 and added a new section 1344 to the City's Subdivision Code.

New section 1344 of the City's Subdivision Code states that it applies to "BMR Units purchased or acquired on or after the effective date of this ordinance," and retroactively to "BMR Units purchased or acquired before the effective date of this ordinance." (S.F. Subd. Code, § 1344(a)(1), (a)(2).) The amendment clarifies the City's intent that the requirements of the BMR Program apply in perpetuity.

In addition, the Ordinance: (1) sets out procedures for calculating the sale price for BMR units and the procedures unit owners must follow to sell their units (S.F. Subd. Code, ยง 1344(c), (e)); (2) specifies how the City adds costs for capital improvements to the base resale price of the units (id. at (d)); (3) establishes rental restrictions (id. at (f)); and (4) allows certain unit owners to pay a fee to have their units released from the BMR Program, so long as they make such election "24 months from the effective date of this legislation" (id. at (i)). Section 1344(i)(a) of the City's Subdivision Code also requires that in order to have a unit released ...


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