Around City Hall: A Winter Update on Appeals and New Land Use Related Programs


​This week’s email provides a bit of color on two land use related topics that have made their way to City Hall in the past few weeks. We analyze if the Board of Supervisors actually “overturned” the approvals for 1515 South Van Ness or just kicked the can down the road a few months, and discuss the Transportation Demand Management program’s second hearing at the Board’s Land Use Committee.

1515 S. Van Ness

One of the more under-reported angles of the Board of Supervisors’ action on the project at 1515 South Van Ness is what exactly the Board voted to do. Some articles implied that the Board rejected the 1515 South Van Ness project outright, tossing out its CEQA review and sending that sponsor back to square one. While undoubtedly a surprising blow to the project, the Board’s decision was actually a bit more nuanced.

This project received a Community Plan Exemption under CEQA, which entails a detailed analysis comparing the project against the Eastern Neighborhoods EIR, and usually includes a number of project-specific background technical environmental studies. It is a common misconception that projects which receive a “CPE” did not undergo any environmental review; that couldn’t be further from the truth, as many sponsors know all too well. In fact, this project’s environmental review began in late 2014, more than a year and a half before its CPE was issued.

In any event, the Planning Department’s determination was appealed to the Board of Supervisors, which initially adopted a motion reversing the Planning Department’s CPE determination. But crucially, the Board clarified in a subsequent motion adopted three weeks later that it did not intend to overturn the CPE itself, but instead to direct that further study be undertaken to determine if the project would result in social or economic change that could lead to physical impacts on the environment “with regard to traffic or air quality” within the Calle 24 Latino Cultural District. The Board formally rescinded its initial motion, and directed Planning Department staff to provide additional information and analysis on this topic before the Board would render a final decision.

So the project is still pending and requires one more study before it can get back to the Board. Traffic and air quality are both topics that needed to be studied in the project’s original CPE, so it will be interesting to track what kind of new information and analysis is prepared on this issue.

A pro-mixed income housing optimist would point to the significant negotiations that went on before the Project’s initial approvals which led to a robust affordable housing component, and unfortunately heated public comment language on the heels of a profoundly disappointing election, and conclude that the project should move forward—pending, of course, the results of the study.

The TDM Program Stalls at Land Use

This past Monday marked the second hearing for the Transportation Demand Management (“TDM”) Program at the Board of Supervisors’ Land Use Committee, and for a second time Land Use did not forward it on to the full Board for final authorization. A little background: the Planning Department has been working on the TDM Program for a few years, and the Planning Commission recommended approval to the Board in early August. Supervisor John Avalos became the ordinance’s sponsor late in the fall, presumably intending to get the ordinance passed before he is termed out in January.

As we detailed in our email alert last week, the TDM Program is ambitious in its scope and fairly complicated in its implementation. There was agreement among the Land Use Committee members that the ultimate policy goals of the Program—weaning San Francisco’s residents and people working in the city from dependence on private cars—were commendable. And to Planning Department staff’s credit, it has worked very diligently in the last few weeks to refine the program and engage with all interested parties, including updating methodology leading to increased neighborhood parking rates and phasing in implementation of the Program for projects in the pipeline.

But the feedback from a wide range of interest groups, including non-profits and community housing organizations as well as the development community, gave the Supervisors pause. Ultimately, the Committee directed Planning Department staff to continue the hard work of refining the Program to make sure it addressed a few different categories of concerns, and to come back in late January with a refined program. Areas for further study included application to smaller residential projects; the proportional impact on very large projects; refining some of the existing Program measures; and considering adopting new measures to increase the utility of the Program and feasibility of compliance.

The most interesting aspect of the TDM Program is its flexibility, and ultimately that may have been one reason it is still at Land Use. The Planning Commission will have discretion to change the details of the Program by motion without returning to the Board of Supervisors as it sees fit. On the one hand, providing flexibility to ensure that the Program can be successfully implemented by the wide range of projects that will be subject to it is vital to its ongoing utility over time. But Supervisors heard testimony that compliance may indirectly hinder a diverse range of projects from moving forward, or at least create an uncomfortable degree of uncertainty. Despite staff’s assurances that it could incorporate changes addressing these concerns after the Board approved the Program, the Land Use Committee members ultimately decided they wanted to see as close to a final product as possible before passing it on.

We’ll provide an update on TDM in late January.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.