1 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE
Transcription
1 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA 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 RENEWABLE ENERGY PARTNERS, LLC APPLICATION FOR REHEARING OF DECISION 15-01-027 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 1 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 2 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. 3 In addition, the Commission also should be guided by Public Utilities Code Section 2852, which states that low-income residential housing includes: (B) 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 applies: (i) 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 dictate. 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. 4 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. 5 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. 1 Deed Restrictions and /or Regulatory Agreements must comply with all requirements specified in PUC 2852 and not be contingent on CSI incentives 6 Dated: February 6, 2015 Respectfully submitted, ____________/s/__________________ 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. 7