Legislative Update November 2021
Wednesday, November 24, 2021
by: Craig Benedetto & Marshall Anderson, Legislative Advocates
Section: Government Affairs
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Legislative Update
November 2021
By Craig Benedetto & Marshall Anderson, Legislative Advocates
 
CITY OF SAN DIEGO DEVELOPMENT FEES TO INCREASE
The City of San Diego previewed earlier this month that notice will go out on December 1st for an across-the-board fee increase of 6.1%, effective January 1st, 2022.  The fee increase is intended to cover the costs of the city council approved budget changes for the Development Services Department, which included money for more staff, as well as augmentation to bring salaries up to levels consistent with the positions available in other jurisdictions. The justification is to attract and keep talent to help better process applications and permits. This increase is in addition to another increase of 5% that was previously approved which will go into effect for the 2023 fiscal year.
 
NATIONAL VACCINE MANDATE FOR COMPANIES WITH 100 OR MORE EMPLOYEES
 
Following the President’s executive order for companies with 100 or more employees to require COVID-19 vaccinations or conduct regular testing, OSHA has released additional details governing implementation called the Emergency Temporary Standard on Vaccination and Testing (ETS).
 
All large businesses, defined as those with 100 or more employees, must require vaccines or subject unvaccinated employees to weekly testing and requiring those unvaccinated employees to wear masks indoors. While implementation dates were given (below) there is no known sunset date for the temporary standard. OSHA will provide a change in measures when it determines grave danger from the virus no longer exists. The Wall Street Journal is reporting the ETS can stay in place for six months before it would need to be codified as a permanent standard that requires rule making. It should be noted that there are numerous legal challenges to this mandate and BOMA will keep you posted on the status of it relative to any court action that might alter implementation.
 
In the meantime, please find the ETS requirements, below or click HERE for the full text and fact sheets:
 
  • Determining employee count: Use total employees nationwide. Temporary AND part time employees are also counted toward the total. Unionized workplaces are also covered by the rule. Independent contractors, those who exclusively telework from home, and those that work exclusively outdoors do not count.
  • Implementing a policy: Businesses must write and implement a policy on vaccination, requiring vaccination of all employees. One’s policy can treat different groups of employees differently, for example if some of the workforce reports to the office and some solely telework, the employer’s policy can only require vaccines for those physically reporting to the office. Exceptions to the policy include the following:
    • Those who cannot get the vaccine or must delay for medical reasons
    • Sincerely held religious beliefs
    • Disability
  • Policy inclusion: The employer’s policy should clearly call out the requirement for the vaccine; who can be excluded; how the vaccination status will be determined (see below); how the information on vaccine status will be collected and maintained; paid time and sick leave for vaccine purposes; how positive COVID tests will be notified and what removal policies will be; and any disciplinary actions for employees who refuse to comply. A policy “may” be requested by the Assistant Labor Secretary, in which case employers must submit it in writing within four business hours.
  • How to determine vaccination status: Employers are expected to obtain proof of vaccination status (e.g. viewing or copying physical vaccination card, copied version, or photo of the card). These documents are to be considered medical records and should be maintained as such. Booster shots are not included in the definition of fully vaccinated. Previous COVID infections are not included in the definition of fully vaccinated and has no effect on this requirement. If an employee loses their card, and cannot receive any other documentation after contacting their vaccine provider, they can provide a signed and dated statement that attests to their vaccination status, using the following:
    • “I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
    • They should, to the best of their knowledge, include the type of vaccine administered, the dates administered, and who administered it.
  • Supporting employee vaccines: Employers must provide employees reasonable time during work hours to get their primary vaccine doses. If an employee experiences side effects and has accrued sick time, the employer can require that the employee use that time to recover. An employer cannot require an employee to end up in the negative if they need additional time to recover but do not have accrued paid time off.
  • Testing unvaccinated employees: For those who report in a generally regular work schedule, testing every seven days is required; however, an employee who goes into the office once a month has to test within seven days before returning to the workplace. Employees who are not tested may not come to the workplace even if they wear a face covering and are isolated. If an employee contracts COVID, they do not need to undergo weekly testing for 90 days following the positive test. Employers must require copies of every test result and treat them as medical records.
  • Employer costs for testing: Nationally, employers are not required to pay for costs of testing; however, in California they may.
  • Face coverings: Depending on one’s workplace policy, only employees who are unvaccinated and undergo weekly testing need to wear face coverings. Employers cannot prohibit employees from wearing face coverings, regardless of vaccination status.
  • Effective dates:
Establish policy on vaccination December 5, 2021
Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status December 5, 2021
Provide support for employee vaccination December 5, 2021
Ensure employees who are not fully vaccinated are tested for COVID-19 at least  (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer) January 4, 2022
Require employees to promptly provide notice of positive COVID-19 test or diagnosis December 5, 2021
Remove any employees who received positive COVID-19 test or diagnosis December 5, 2021
Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes December 5, 2021
Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation December 5, 2021
Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours December 5, 2021
Make certain records available December 5, 2021
 
INPUT NEEDED: CITY OF SAN DIEGO CLIMATE ACTION PLAN RELEASED
City of San Diego Mayor Todd Gloria recently released a new 288-page blueprint aimed at achieving net zero emissions by 2035. The plan, which will require City Council approval, would overhaul the City’s previous Climate Action Plan adopted in 2015. It calls for the phasing out of natural gas in homes and businesses, including the electrification of water heaters and stoves in new building construction. The plan also calls for increasing access to clean and renewable energy sources, decarbonization of the built environment, and other mobility and land use measures. The full plan can be found HERE. The City will hold public forums online December 2nd, 6:00pm, and December 4th, 9:00am. You can submit online comments HERE. To read the San Diego Union Tribune’s write up, click HERE.
 
INPUT NEEDED: CITY OF SAN DIEGO CLIMATE RESILIENCY PLAN
The City of San Diego is asking for feedback on its recently released Climate Resilient SD plan. Not to be confused with the City’s Climate Action Plan, which is focused on mitigating climate change as a whole (see above) the ‘Climate Resilient SD’ plan is intended to prepare and respond to hazards induced by climate change, such as wildfires, extreme heat and drought, coastal erosion, and flooding. The development of a climate resiliency plan is also mandated by California Senate Bill 379, requiring local agencies to conduct a vulnerability assessment and develop a set of goals and feasible implementation measures.
 
The plan includes the following goals:
  1. Ensure communities are connected and informed to be best prepared for climate change (p. 48). Measures focus on ways to better communicate with the public, including communication methods and community partnerships.
  2. Plan for and build a resilient and equitable City (p. 51). Measures include increasing access to healthy food markets in low-income areas, ‘cool roof’ incentives, and the development of additional cool zones and shade corridors. 
  3. Safeguard, preserve and protect historic and tribal cultural resources from the effects of climate change (p. 55). Measures are aimed at preserving these resources from the impact of climate change and call for increased coordination with tribal groups.
  4. Support and prioritize thriving natural environments and enhance adaptability (p. 57). Measures include wetland, open space, and kelp forest preservation, brush management, stormwater infrastructure resilience, site-specific green infrastructure at watershed scale, updating the Local Coastal Program, rolling easements to establish a development boundary that moves inward as sea level rises along the shoreline (for City-owned properties), and increases to the urban tree canopy.
  5. Maintain and ensure minimal disruption to all critical City services in the face of climate change hazards (p. 62). Measures include the creation of emergency transportation alternatives and detours for vulnerable (evacuation) routes, water supply diversification, updates to City irrigation systems, City cooling system upgrades, flood protection for critical infrastructure, development of backup resources to support critical operations in an emergency event, and energy storage/microgrid installations.
Feedback can be provided directly to JTMoore@sandiego.gov. BOMA will be working through the plan and determine comments, as well.
 
REGIONAL DECARBONIZATION FRAMEWORK DISCUSSED AT THE COUNTY, NO ACTION YET…
The County of San Diego’s Draft Regional Decarbonization Framework (Framework) was heard earlier this month by the Board of Supervisors, which, if adopted, targets net zero carbon emissions by 2035. The “Regional Framework”, which will be developed in conjunction with cities, school districts, and other local agencies, aims to “fundamentally reimagine” how San Diego makes decisions concerning transportation, energy generation, and land use. In addition to expanding solar power and electric vehicle use, the report calls for the electrification of new development. The framework is not expected to return to the Board of Supervisors for approval until February 2022. The full draft Framework can be found HERE. To learn more, click HERE.
 
CITY OF SAN DIEGO “CONTRACTOR TRANSPARENCY” ORDINANCE ON THE HORIZON
San Diego Mayor Todd Gloria is drafting a contractor transparency ordinance for the Council’s consideration sometime early next year.  The ordinance is similar to San Diego County’s proposal, which would require that all subcontractors working on a project be identified, along with information for those subcontractors like their state contractor’s license, workers compensation insurance and other items to “create transparency” for the public on who is working on projects in the City and to allow the city to enforce, when necessary, against those sub-contractors, the general contractor and ultimately the owner who violate labor and safety standards.  BOMA has met with the Mayor’s office to discuss the proposal and provide feedback.  More information, including the specific details of the proposal will be made available in the future.
 
CITY OF SAN DIEGO ELIMINATES PARKING MINIMUMS FOR NON-RESIDENTIAL DEVELOPMENT, BUSINESSES NEAR TRANSIT
San Diego’s City Council voted unanimously last month to eliminate parking requirements for commercial developments and businesses located in transit priority areas. New businesses are no longer required to provide parking for customers and staff. Additionally, existing businesses can transform their parking into outdoor dining or retail space. The policy does not contain any parking maximums or fines. BOMA supported this effort for market-based flexibility, along with the Chamber of Commerce and Circulate San Diego.  It was noted at the hearing that most businesses will opt to provide the level of parking they deem necessary.  To learn more, click HERE.
 
BOMA-OPPOSED DRIVE-THROUGH BAN REMOVED FROM CITY OF SAN DIEGO CODE UPDATE
Thanks to BOMA’s advocacy and that of our coalition partners, including the California Restaurant Association, the SD Regional Chamber of Commerce, the Asian Business Association, the San Ysidro Chamber of Commerce and the Building Industry Association, the City of San Diego’s proposal to eliminate future drive-throughs from transit priority areas was unanimously recommended for removal by the San Diego City Council’s Land Use and Housing Committee from the draft 2021 Land Development Code Update. The Committee unanimously voted to strike the provision citing concerns over a lack of outreach to impacted stakeholders. Staff will consider next steps and the coalition will continue to engage, including if the draft LDC Update goes to the full city council with the ban still included.  That hearing is expected to occur in December.  The recommendation by the LU&H Committee follows the same unanimous recommendation by the City’s Planning Commission a week earlier, as well as a similar recommendation from the City’s Community Planners Committee.  For more information, please CLICK HERE.
 
PARCEL TAX CAMPAIGN GOES PUBLIC AS SIGNATURE GATHERING EFFORT KICKS OFF
The campaign to raise $250 million in park and library upgrades for the City of San Diego has officially launched. The citizens’ initiative is being led by the San Diego Parks Foundation, Library Foundation, and Municipal Employees Association, and aims to gather 82,000 signatures in order to qualify for the November 2022, ballot. The tax would apply a two cent per square foot levy up to a maximum of one acre on both residential and commercial properties (which would roughly be about $800/year). The levy would be subject to a 2% annual adjustment. BOMA is continuing to review the proposal and discuss next steps.  You can read more, HERE.
  
CITY OF SAN DIEGO DEVELOPMENT SERVICES DEPARTMENT UPDATING ONLINE PERMIT PROCESS
In December, the Development Services Department will upgrade the online permit process for all discretionary permit application types, replacing the current online “hybrid submittal process.” DSD will host three webinars to familiarize customers with the new online format and program features. For a list of webinar dates/times and Zoom information click HERE.
 
SOLANA BEACH APPROVES REACH CODES
The Solana Beach City Council has adopted a new ordinance which includes requirements for on-site solar in new commercial properties, electric-only space conditioning, water heating, and the electrification of nonelectric appliances for new construction. The new rules would not apply to the use of natural gas for indoor or outdoor cooking, or fireplaces. Solana Beach’s action follows the City of Encinitas who adopted a similar “reach code” last month.  To learn more, click HERE.
 
CALIFORNIA WATER USE DOWN BUT FAR FROM CONSERVATION GOALS, NO MANDATES YET
Statewide water use decreased by 3.9% in September, when compared to use in 2020. However, much of the state lags behind the 15% voluntary cut requested by the Governor. In California’s second-driest year on record, the San Diego County Water Authority recently voted unanimously to enter level one (out of six) of its Drought Action Plan. The trigger does not result in immediate water restrictions or mandates, but it does give San Diego’s 24 individual water agencies (e.g. San Diego Public Utilities Department) the ability to conduct their own water saving initiatives. This includes turf rebates, water-efficiency promotions, and other voluntary measures. If the drought worsens, level two would result in 20% mandatory water restrictions. BOMA will continue to monitor the situation, noting that San Diego County is in a better position given water resiliency and diversification planning.  This includes the BOMA supported “Pure Water” program the city is developing to recycle and reuse wastewater in the city’s potable water system.  The full Drought Action Plan can be found HERE.
 
CITY OF SAN DIEGO PLANNING DIRECTOR STEPPING DOWN
Mike Hansen, Director of Planning for the City of San Diego, announced his resignation earlier this month. A land use attorney and former Director of Policy for Mayor Kevin Faulconer, Hansen led several landmark development policies, including Complete Communities and accessory dwelling units reform. His department also led the charge on numerous and important community plan updates that BOMA supported, including the Misson Valley and Kearny Mesa Community Plans.  Hansen will remain with the City until the end of the year while a national search for his replacement is conducted. Heidi Von Blum, the Planning Department’s Deputy Director, will step in as Interim Director upon Hansen’s departure.  To learn more, click HERE.
 
$1 TRILLION INFRASTRUCTURE BILL SIGNED
After weeks of negotiations, the US Congress has passed and the President has signed the bipartisan bill that will devote $1 trillion to an array of road, rail, broadband, and other infrastructure upgrades. Here’s a breakdown of the bill:
  • Roads and bridges: $110 billion to repair highways, bridges, and roads.
  • Public transit: $39 billion to expand transportation systems, repair aging bus, rail car, and transit stations, and provide local governments funding to purchase zero and low-emission buses.
  • Rail: $66 billion to improve passenger and freight rail routes.
  • Electric vehicles: $7.5 billion to increase the supply of EV charging stations and $5 billion to purchase electric school buses.
  • Broadband: $65 billion to improve internet services for rural areas, areas of concern, and tribal communities.
  • Electrical grid: $65 billion to modernize the power grid.
  • Airports: $25 billion to enhance runways, gates, and airport terminals.
  • Water and wastewater: $55 billion to improve aging water and wastewater infrastructure, including the replacement of lead pipes.
The majority of the plan will be paid for using unspent COVID-19 relief funds, unutilized unemployment insurance aid, and other smaller funding sources. To read more, click HERE.
 
HATE SPEECH, HOSTILE BEHAVIOR PROMPTS CHANGES TO COUNTY OF SAN DIEGO PUBLIC TESTIMONY RULES
Following a slew of hostile comments and racial slurs targeting Public Health Official, Dr. Wilma Wooten this past month at a public hearing, the San Diego County Board of Supervisors approved a new measure that alters how public comment is solicited at county board meetings. The public’s speaking time will now be reduced and the utterance of loud or threatening language, whistling, clapping, or actions that may disrupt the orderly conduct of a meeting will be banned. The new rule also limits group presentations to land-use decisions and appeals only, unless otherwise authorized by the Chair. Consent items may now only be removed by a Supervisor or the County Chief Administrative Officer. You can learn more, HERE.
 
CITY OF POWAY APPROVES WATER RATE INCREASE
A four-year water rate increase was approved unanimously by the Poway City Council, despite concerns penned by over 1,000 Poway residents. The rate hikes are to be implemented each January, beginning with a 10% increase in 2022, before rising by 9% in 2023, and 8% in 2024 and 2025. The funds will be used to cover water importation and other capital and operational expenses. To learn more, click HERE.
  
POTENTIAL PER-MILE FEE AND TAX MEASURE FLOATED TO PAY FOR TRANSPORTATION PLAN
The San Diego Association of Governments (SANDAG) Board debated a $160 billion transportation blueprint that would revamp how San Diegans commute. The most controversial piece surrounds a proposed fee that would tax drivers for every mile driven. The plan is expected to be approved by the board in December, yet the funding component remains to be seen. In addition to the per-mile fee, a separate group of labor leaders and environmental groups are pushing to collect signatures for a sales tax increase that would appear on the 2022 November ballot. By collecting signatures, the measure would only need a simple majority to pass, unlike the last measure, which needed 2/3rds and failed.  To learn more click HERE and HERE.
 
CITY OF SAN DIEGO SPACES AS PLACES PROGRAM APPROVED
“Spaces as Places”, which will employ more stringent safety measures and standardized designs for parklets and outdoor dining setups in the City of San Diego, was approved 6-2 by the City Council. The vote makes the temporary outdoor dining pilot permanent, allowing restaurant owners to extend outdoor seating to unmetered parking spaces and sidewalks pursuant to a fee. The program will go into effect July 2022, when the current program expires. Two dissenting votes were cast as councilmembers La Cava and Elo-Rivera wanted to place a speed limit cap of 25 mph around outdoor dining setups. For a write-up of the newly-adopted regulations, click HERE.
 
ANNUAL STREET WORK HOLIDAY RESTRICTIONS – WHAT TO KNOW
Construction work on City of San Diego public streets in the downtown area and all other streets adjacent to major retail shopping areas will be restricted during the “holiday shopping season” from November 25, 2021 – January 1, 2022. Ongoing permitted construction work will not be impacted; however, new construction in the right of way will be limited. This includes: mobilizing and staging heavy equipment (tow cranes and trucks); street, sidewalk, and walkway work; and trenchwork and dumpster placement. For more information and a map of the impacted area, click HERE, or contact Mike Inerowicz at (619) 446-5002 or minerowicz@sandiego.gov
 
ESCONDIDO EVALUATES SALES TAX
With a projected deficit of $150 million over the next 20 years, Escondido faces the challenge of maintaining basic civic resources, such as 911 response, park maintenance, and street repair. While the City has updated fees, reduced its workforce, and instituted policies like pension reform, an analysis of city finances paints a dyer picture. Mayor Paul McNamara and Councilmember Mike Morasco were tasked with studying whether a sales tax increase on the November 2022 ballot is needed to stabilize the City’s finances. You can read more, HERE.
 
THE LATEST ON COVID-19: CA CASES HIT 5 MILLION, SCHOOL MASK MANDATE CASE DISMISSED, BOOSTER ELIGIBILITY UPDATES, ANTIVIRAL PILLS COMING SOON
California’s coronavirus case total has reached 5 million, while the daily number of newly infected individuals has declined in recent weeks. Health officials are warning of an uptick as we enter the winter months. A suit challenging school mask mandates was dismissed last week after a San Diego County judge declared that Governor Newsom has the legal authority to enforce masking. After some confusion following the CDC’s guidance around booster shots, California health officials updated the state’s guidelines recommending all adults receive an additional vaccination. The Biden administration plans to stockpile enough Pfizer COVID-19 pills to provide treatment to 10 million Americans. The pill is still awaiting federal authorization to deploy the pill on an emergency basis. To learn more about booster eligibility and vaccination locations, click HERE.