Having purchased resale restricted BMR condominiums in San Francisco at below market rates, a group of BMR owners filed suit against the City in May 2009 claiming the right to resell their units at market rates and challenging a December 2008 ordinance which clarified “the City’s intent that the requirements of the BMR Program apply in perpetuity” versus for only 20 years.
The December 2008 ordinance also provided owners of BMR units a two-year window in which to buy their way out of the program if they wished.
Earlier this year it appeared as though the plaintiffs might actually prevail, but last week the First District Court of Appeal overturned an injunction which had suspended the aforementioned two-year window to exit the program.
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…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.
We’ll keep you posted and plugged-in.
∙ Aiuto v. City and County of San Francisco Appellate Opinion [ca.gov]