On December 11, 2018, the San Francisco Board of Supervisors introduced legislation that would significantly impact the demolition and modification of residential units (BOS File No. 181216). The Planning Code requires most “demolitions” of residential units to obtain Conditional Use (“CU”) approval after a hearing by the Planning Commission, whether or not the unit is legal. Demolitions include not only the full elimination of a unit, but also renovations that remove a certain percentage of an existing structure. Therefore, changes to what is considered a demolition could dramatically increase the number of projects required to seek CU approval. In addition, the legislation would require CU approval for many residential additions.
As introduced, the legislation would do the following:
- require CU approval for most “major expansions” of residential buildings, defined as a 10% increase in square footage through vertical addition or 20% through horizontal addition, with exceptions for limited additions of one or two stories in the rear yard and Accessory Dwelling Units, and possible waiver of the CU requirement by the Zoning Administrator;
- remove the existing exception that allows demolition without CU approval of single-family homes in the RH-1 and RH-1(D) Districts that are demonstrably not affordable;
- provide new standards for what residential renovation projects constitute a “demolition” – removal of more than 50% of the sum of all existing above-grade external elements, removal of more than 25% of the surface of all external walls facing a public street, or removal of more than 25% of the building’s internal structural framework, bearing elements or floor plates, including all work permitted for the property within the prior five years;
- change the Building Code definition of demolition to align with the Planning Code and require submission of a report to DBI by a structural engineer;
- require the assigned planner to review demolition calculations, including the percentage of the interior and exterior elements of the existing structure to b removed and confirm the accuracy and completeness of plans for all projects, including conducting a site visit if necessary;
- impose a more restrictive standard on projects shifting square footage from one unit to another, requiring CU approval where a project reduces the square footage of a unit by more than 10% (currently 25%), and prohibiting merger of units resulting in any unit larger than 1,200 square feet; and,
- increase penalties for violation of demolition, merger and conversion restrictions, including both monetary penalties and the requirement that the original structure be rebuilt.
Projects that have received final approval from the Planning Department or Planning Commission prior to the effective date of the legislation would not be subject to the new rules unless the scope of work increases.
One interesting aspect of these changes is the interplay between demolition requirements and the Discretionary Review (“DR“) process, under which neighbors can challenge projects that propose an expansion of the existing envelope and have that challenge heard by the Planning Commission. If a project will be heard by the Planning Commission whether or not a DR is filed, there is less incentive for property owners to compromise with neighbors to avoid a Planning Commission hearing. Therefore, we would expect both a greater number of hearings, and more contentious battles at the Planning Commission.
The legislation is currently scheduled to be heard by the Planning Commission on March 7. It could be amended before Planning Commission hearing or after it returns to the Land Use and Transportation Committee of the Board of Supervisors, which is chaired by the primary sponsor of the legislation, Supervisor Aaron Peskin. Given the number of projects impacted, City agencies and numerous property owners will be voicing their opinions about this legislation. Stay tuned for updates.
Authored by Reuben, Junius & Rose, LLP Partner, Jody Knight
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.