HomeMy WebLinkAboutAdministrative Order No. 01 (2023 Series) Temporary suspension of enforcement of Chaper 8.11 (All-Electric New Buildings)
ADMINISTRATIVE ORDER NO. 01 (2023 SERIES)
AN ADMINSTRATIVE ORDER OF THE COMMUNITY
DEVLEOPMENT DIRECTOR TEMPORARILY SUSPENDING
ENFORCEMENT OF CITY OF SAN LUIS OBISPO MUNICIPAL CODE
CHAPTER 8.11
WHEREAS, on July 19, 2022, the San Luis Obispo City Council adopted Ordinance 1717
(2022 Series) now codified as City of San Luis Obispo Municipal Code Chapter 8.11 (All-Electric
New Buildings); and
WHEREAS, on April 17, 2023 a three-judge panel of the Ninth Circuit Court of Appeals
issued a decision holding that the City of Berkeley’s ordinance that prohibits natural gas piping in
new buildings is preempted and prohibited by the federal Energy Policy and Conservation Act
(California Restaurant Association v. City of Berkeley (9th Cir. 2023) 65 F.4th 1045)(the
“Ruling”)); and
WHEREAS, the City of San Luis Obispo’s All-Electric New Buildings ordinance is
substantially similar to the invalidated Berkeley ordinance, in that it is a non-Building Code ban
on natural gas infrastructure, with limited exemptions, including for newly constructed commercial
kitchens and other specified facilities, as well as a general public interest exemption; and
WHEREAS, the City of Berkeley timely filed a petition for rehearing of the Ruling by a
panel of eleven Ninth Circuit judges on May 31, 2023;
WHEREAS, it is the City of San Luis Obispo’s position that, while repealing Chapter 8.11
outright would be premature prior to final resolution of the Ruling, temporarily staying
enforcement of Chapter 8.11 is the appropriate action pending final resolution; and
WHEREAS, on April 18, 2023, the City Council authorized the City Manager and the
Community Development Director to suspend enforcement of Chapter 8.11, consistent with, and
only as required by, the Ninth Circuit Court of Appeal’s Ruling in California Restaurant
Association v. City of Berkeley and any subsequent judicial proceeding and/or order of the Court
related to the timing and application of the Ruling (Resolution No. 11414 (2023 Series)) and has
been operating in accordance with City Council’s action since that time.
NOW, THEREFORE, BE IT ORDERED by the Community Development Director of
the City of San Luis Obispo that:
SECTION 1. Enforcement of San Luis Obispo Municipal Code Chapter 8.11 (All-
Electric New Buildings) shall remain temporarily paused pending final resolution of the California
Restaurant Association v. City of Berkeley Ruling.
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Administrative Order of the Community Development Director No. 1 (2023 Series)
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SECTION 2. Effective Immediately Upon Notice of this Order and Until Rescinded:
A. Applications for newly constructed buildings, as defined in Section 8.11.030 of the San
Luis Obispo Municipal Code, that include use of natural gas infrastructure, as defined,
shall not be denied solely on that basis.
B. Given the known potential for this Order to be lifted, and enforcement of Chapter 8.11
to resume if the Ruling is vacated, applicants for building permits subject to Section 2,
Subdivision A of this Order will be required to execute an agreement in the form
attached hereto as Exhibit A upon submission of the building permit application,
acknowledging that the City may, as allowed under current or subsequently decided
law, at any time prior to the time at which an applicant has both been issued a building
permit and performed substantial work and incurred substantial liabilities in good faith
reliance on the issued permit, or at such other time prior to development rights lawfully
vesting, require applicant to modify their building plans or construction to bring
development into compliance with Chapter 8.11.
SECTION 3: Nothing in this Order modifies the City’s otherwise applicable rights and
obligations regarding the issuance of building permits, including the allowable time for the City to
complete its review of submitted applications.
SECTION 4: Nothing in this Order modifies or limits the City’s right to negotiate and
execute Development Agreements pursuant to San Luis Obispo Municipal Code Chapter 17.128
that require all-electric buildings.
SECTION 5. Nothing in this Order modifies the City Council’s policies preferring that
all new buildings within the City should be all-electric and that there shall be no net new building
emissions from onsite energy use by 2020 (Resolution No. 11133 (2020 Series); Resolution No.
11159 (2020 Series)). The City remains committed to implementation of the Climate Action Plan
for Community Recovery and the associated goal of communitywide carbon neutrality by 2035
consistent with the limitations, if any, imposed by the final resolution of California Restaurant
Association v. City of Berkeley.
SECTION 6: This Order is automatically rescinded upon any judicial decision which
overturns or otherwise vacates the Ruling.
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Administrative Order of the Community Development Director No. 1 (2023 Series)
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SECTION 7. A copy of this Order shall be made publicly available for review and posted
on the City’s website and shall also be provided to affected development applicants in the City at
the time of application, or as otherwise necessary to provide direct notice to applicants regarding
the impacts of such actions on the processing of their applications.
The foregoing Administrative Order of the Community Development Director No. 1 (2023 Series)
was approved this _____ day of June 2023.
____________________________________
Derek Johnson, City Manager
____________________________________
Michael Codron, Community Development Director
ATTEST:
____________________________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
_____________________________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo, California, on ______________________________.
______________________________
Teresa Purrington
City Clerk
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Building & Safety Division Clean Energy Program for New Buildings
Community Development Temporary Suspension Acknowledgement Form
919 Palm Street, San Luis Obispo, CA 93401-3218. T: 805.781.7180 F: 805.781.7182
Page 1 of 2
Exhibit A
ALL-ELECTRIC NEW BUILDINGS
TEMPORARY SUSPENSION ACKNOWLEDGEMENT FORM
EFFECTIVE DATE: June [X], 2023
APPLICABLE PROJECTS: All Newly Constructed Buildings (SLMC § 8.11.030(I))
APPLICABLE CODES: 2022 CEnC, CEC, CBC, and SLOMC Chapter 8.11
All newly constructed buildings, as defined in San Luis Obispo Municipal Code Section 8.11.030, including residential
and nonresidential buildings, submitting for building permit on or after June [X], 2023, shall carefully read the
following information and acknowledge your understanding by signing this form.
On July 19, 2022, City Council adopted Ordinance No. 1717 (2022 Series) updating the Clean Energy Program
for New Buildings to protect public health and safety by requiring all new buildings to be all -electric, banning
gas infrastructure with limited exceptions, in Title 8 (Health and Safety) of the Municipal Code. The ordinance
went into effect on January 1, 2023.
On June [X], 2023, pursuant to Resolution No. 11414 (2023 Series), the Community Development Director
Issued Administrative Order No. 01 (2023 Series) (the “Order”) temporarily suspending enforcement of
Chapter 8.11 (All-Electric New Buildings) pending final resolution of California Restaurant Association v. City of
Berkeley (9th Cir. (2023) 65 F.4th 1045) (the “Ruling”), which held that a similar ordinance adopted by
Berkeley was pre-empted by federal law and, therefore, could not be enforced.
The suspension of enforcement of Chapter 8.11 allow s permit applications for newly constructed mixed-fuel
buildings to start the building permit review process. However, should the Ruling be vacated, the City will
immediately reinstate enforcement of Chapter 8.11. Consistent with applicable law, building permits will be
processed based on ordinances, standards, and regulations in place at the time of building permit issuance
and the permit holder’s demonstration that it has performed substantial work and incurred substantial
liabilities in good faith reliance on such permit, or at such other time development rights may vest according
to law. Absent such showing of good faith reliance on a building permit issued during the suspension of
enforcement of Chapter 8.11, the City may require applicant to modify their building plans or construction to
bring development into compliance with Chapter 8.11, should enforcement resume.
By signing this form, you acknowledge that you have read, understood, and agree to the following:
a. The City of San Luis Obispo has temporarily paused enforcement of San Luis Obispo Municipal Code
Chapter 8.11 via Administrative Order No. 01 (2023 Series) and will not deny a building permit
application or otherwise require compliance with Chapter 8.11 as allowed under applicable law until
such time the Order is rescinded and enforcement resumes.
b. Any actions taken, or decisions made during this temporary enforcement pause are undertaken at your
own risk, and the City disclaims any liability for any future enforcement of Chapter 8.11 as allowed by
law and any resulting consequences, including but not limited to costs associated with potential re -
design or any other related expenses.
DocuSign Envelope ID: 5DCEC053-92DE-4CE8-A00F-8E04979EEA6E
Building & Safety Division Clean Energy Program for New Buildings
Community Development Temporary Suspension Acknowledgement Form
919 Palm Street, San Luis Obispo, CA 93401-3218. T: 805.781.7180 F: 805.781.7182
2
Failure or refusal of applicant to sign this Acknowledgement in no way modifies or limits the City’s rights,
consistent with applicable law, set forth herein.
Acknowledgement:
__________________
Applicant
__________________
Owner
__________________
Signature
__________________
Signature
__________________
Phone
__________________
Phone
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