Order Instituting Rulemaking Regarding Policies,
Procedures, and Rules for the California Solar
Initiative, the Self-Generation Incentive Program
and Other Distributed Generation Issues
R. 12-11-005
Edward G. Poole
Anderson & Poole
601 California Street, Suite 1300
San Francisco, CA 94108
(415) 956-6413 – Telephone
(415) 956-6416 – Facsimile
[email protected]
February 6, 2015
Pursuant to Rule 16.1 of the Rules of Practice and Procedure of the California
Public Utilities Commission (“Commission”), Renewable Energy Partners, LLC (“REP”)
hereby files this Application for Rehearing of Decision 15-01-027 (“Decision”) that was
mailed on January 29, 2015. REP seeks rehearing to allow the Commission to correct
legal errors that were the result of fatally flawed procedural missteps and a denial of
substantive due process and equal protection under both the state and federal
Constitutions. The issuance of the Decision also clearly violated well established
Commission protocols and rules, for the reasons specified in the Motion to Strike filed
by REP. If the relief requested herein is granted, REP will provide facts and arguments
from which the Commission will benefit, and will be facts and arguments not previously
provided because of the flawed procedural manner in which the Decision was issued.
A. The Decision Is Inconsistent With State Policy For Affordable Housing.
The changes in the Peevey PD issued on December 15, 2014 and the Picker
PD issued one day before the Commission meeting on January 28, 2015, are
substantial with respect to eligibility for affordable housing. The Picker PD, which was
essentially adopted by the Commission that resulted in the Decision, essentially strips
from an entire affordable housing segment (manufactured housing/mobile homes). The
opportunity to participate in the MASH rebate program, for the first time, now requires
as an eligibility requirement for participation the existence of an "affordability" deed
restriction or regulatory agreement for a period of six months preceding acceptance into
the mash program and inclusion on the "wait list". Decision at 56. There are many
mobilehome park owners with current reservations on the waitlist whose positions will
be usurped. Because of the limited funding of the program, the result is that this entire
housing segment will be excluded from participation impacting both property owners
and the tenants residing in these affordable housing locations. This is directly contrary
to Health & Safety Codes Sections 50003, 50007.5 and 50010 (b)(1), that address the
shortage of Affordable Housing in the state and specifically mention MHPs as an
important segment of affordable housing that needs to be preserved and supported. No
clearer statement to this effect can be found that the one stated in Health and Safety
Code Section 50007.5:
50007.5. The Legislature finds and declares that
manufactured housing, by virtue of its production costs and
sales prices can provide a source of decent, safe, and
affordable shelter for persons and families of low and
moderate income. The Legislature finds and declares that
the availability of manufactured housing has been limited by
inadequate sites for such manufactured housing and by the
costs of financing the purchase of such housing. The
Legislature finds and declares that, if California is to
effectively meet the housing needs of persons and families
of low and moderate income, it must encourage increased
manufactured housing production, new manufactured
housing developments, and the purchase of new
manufactured housing by persons and families of low and
moderate income. Therefore, it is the intent of the
Legislature that the Department of Housing and Community
Development and the California Housing Finance Agency, in
implementing the programs established by this division, as
amended by the Manufactured Housing Assistance Act of
1980, shall encourage increased availability and affordability
of manufactured housing for persons and families of low and
moderate income.
The Decision is directly contrary to this state law.
In addition, the Commission also should be guided by Public Utilities Code
Section 2852, which states that low-income residential housing includes:
A multifamily residential complex in which at
least 20 percent of the total housing units are sold or rented
to lower income households and either of the following
The rental housing units targeted for lower income
households are subject to a deed restriction or
affordability covenant with a public entity or
nonprofit housing provider organized under Section
501(c)(3) of the Internal Revenue Code that has as
its stated purpose in its articles of incorporation on
file with the office of the Secretary of State to
provide affordable housing to lower income
households that ensures that the units will be
available at an affordable rent for a period of at least
30 years.
The Decision as amended by Commissioner Picker is inconsistent with this Legislative
The Peevey PD decision held the promise of creating thousands of new deed
restricted affordable units in this state which now will never be created. The Picker PD,
which also placed the proceeding on the consent calendar, and the allegedly minor
modifications made at the 11th hour by Commissioner Picker's office effectively
reserves access to the rebate funds for existing, entrenched, already deed restricted
affordable housing. While it certainly is appropriate to "support existing affordable
housing "through MASH rebate program,” (Decision at 54), a far more valuable and
important utilization of these rebate funds lies in the creation of thousands of
incremental affordable deed restricted manufactured housing units in existing mobile
home parks, where present play no such deed restricted housing exists.
B. Procedural Due Process Was Not Followed.
As noted by the Application for Rehearing of Shorebreak Energy
Developers, LLC, dated February 4, 2015, the Picker PD should have been should have
been issued as an Alternative PD and the parties should have been afforded an
opportunity to comment on the Picker PD. As noted by Public Utilities Code Section
311(s), an alternate decision is a “substantive revision to a proposed decision that
materially changes the resolution of a contested issue.” In this case, the elimination of
an entire class of low-income applicants is a material change: over 100 applications on
the collective waitlists are all mobilehome parks, and the 180 day requirement
essentially renders all 100 ineligible and ultimately cancelled in the next 90 days or so
because they cannot go back retroactively and record the required deed restrictions.
REP agrees with Shorebreak that the Commission cannot subvert the
requirements of notice and an opportunity to comment on alternate decisions by citing
comments that the Commission had assured would be accorded “minimal weight”
(Decision at 54), and are unsupported by the record in this case.
Accordingly, the Decision should be stayed and rehearing granted to consider
comments on the Picker PD as an alternate proposed decision.
C. Requested Relief.
As noted above, the issuance and consideration of the Picker PD did not
meet the Commission’s procedural rule or the law. As noted by Shorebreak, it would be
unfair to remove applicants from the waitlist that met all other criteria but did not have a
deed restriction recorded prior to filing a MASH application, especially when the
Commission’s staff had reviewed and confirmed the deed restrictions in place.
REP agrees with Shorebreak that the Commission grandfather the
projects on the waitlist and allow for applicants currently on the waitlist to obtain
appropriate regulatory agreements or deed restrictions during the 30 days from the date
requested by the Program Administrator to provide documentation of meeting the
program requirements. In the alternative, the Commission should order that those on
the waitlist be given 180 days to obtain the necessary deed restrictions and recorded for
MASH incented projects.1
D. Request for Stay.
Like Shorebreak, REP requests that the Commission stay the
effectiveness of the Decision pending resolution of the Applications for Rehearing. As
the Commission’s decision was made effective immediately, Rule 16.1 of the
Commission’s Rules of Practice and Procedure does not automatically stay the effective
date of the Decision. Accordingly, REP request the Commission stay the Decision, or at
least that portion that concerns this issue.
E. Conclusion.
The procedure that led to the issuance of the Decision was rife with
irregularities and the Commission’s rush to a produce a decision consistent with one
parties’ urging. Rehearing is therefore appropriate to revise the decision so that it is
consistent with the law and facts of this proceeding.
Deed Restrictions and /or Regulatory Agreements must comply with all requirements specified in PUC 2852 and
not be contingent on CSI incentives
Dated: February 6, 2015
Respectfully submitted,
Edward G. Poole
Anderson & Poole
601 California Street, Suite 1300
San Francisco, CA 94108-2818
(415) 956-6413 – Telephone
(415) 956-6416 – Facsimile
[email protected]
Counsel for Renewable Energy Partners, LLC.