This Thursday the Planning Department will make an informational presentation to the Commission on a proposal to nix the “Tantamount to Demolition” standard that regulates the scope of residential remodels that require mandatory Commission review in RH Districts, and approve a new form-based Residential Expansion Threshold policy.
Under current Planning Code Section 317, Planning Commission review is required for almost any project that would demolish an existing dwelling unit. The goal of this legislation was to preserve existing housing stock, especially existing affordable housing.
Under existing rules, even residential remodels that don’t require a demolition permit from the Building Department can trigger mandatory Commission review if they meet the following criteria, resulting in a project that’s considered “Tantamount to Demolition”:
- a major alteration of a residential building, removing more than 50% of the front and rear façade and 65% of all exterior walls measured in lineal feet at the foundation level; or
- a major alteration of a residential building removing more than 50% of the Vertical Envelope Elements (defined as all exterior walls that provide weather and thermal barriers between the interior and exterior of the building, or that provide structural support to other elements of the building envelope) and more than 50% of the Horizontal Elements (defined as all roof areas and all floor plates, except floor plates at or below grade) of the existing building, as measured in gross square feet of actual surface area.
Ten years after this standard was adopted, the Department is less than impressed it with its impact, and concerned that it has created an almost unworkable system by incentivizing owners to design remodels just short of the threshold, resulting in awkward/inferior design proposals that skate too close to (and occasionally slipping over) the edge to full demo during construction. The Department’s take is that the current standard is confusing and simply doesn’t work as a tool to preserve affordable housing, promote neighborhood character, or reduce the frequency of Discretionary Review hearings. And any objective person taking a first look at this would immediately agree the system is overly complex.
On Thursday, the Department will discuss its vision to nix the Tantamount to Demolition standard and adopt a new “Residential Expansion Threshold” based on the size of a proposed project rather than its impact on what’s already built on the site. In essence, the new proposal would bring all “large” residential expansions in RH Districts to the Planning Commission for review.
The Residential Expansion Threshold would use Floor Area Ratio (the ratio of a building’s total floor area to the size of the lot on which it’s constructed) to determine which remodel projects trigger mandatory Commission review. If a proposed project is below the adopted FAR thresholds and meets the unit size minimum for a multi-unit proposal, then it will be subject to a staff-level review and neighborhood notification with no mandatory Commission hearing. Projects exceeding the FAR thresholds would trigger a Planning Commission hearing and the need for approval of a new “Large Home Authorization,” regardless of whether an alteration or demolition permit is sought.
Existing rules requiring a Conditional Use hearing for the elimination of rent-controlled units would remain in place, and the new policy would have no effect on the Department’s existing design or historic resource review procedures. However, the new standard would eliminate the existing hearing exemptions for demolition of demonstrably unaffordable or structurally unsound single family dwellings in RH Districts.
As of October 2017, the proposed FAR thresholds were as follows:
| Zoning | FAR Trigger/Unit Count |
| RH-1(D) | 1.2 |
| RH-1 | 1.4 |
| RH-2 | 1.0 (1-unit project)
1.8 (2-unit project) |
| RH-3 | 0.9 (1-unit project)
1.3 (2-unit project) 2.6 (3-unit project) |
Planning’s goal is to incentivize increased density by allowing multi-unit projects where permitted by underlying zoning to include more square footage without triggering a mandatory hearing. Multi-unit projects in the RH-2 and RH-3 Districts would also be subject to a minimum use-size threshold equivalent to 1/3 of the total building square footage – a standard intended to promote proportionality of new units.
If a Commission hearing is triggered, the Commission would be asked consider specific design criteria for larger residential development, such as whether high-quality design; use of contextual and compatible building siting, orientation, massing, fenestration pattern, an scale; relationship to surrounding residential density; provision of family-friendly units; and whether the project would remove an existing full-floor flat. Their determination could then be appealed to the Board of Permit Appeals.
Further, the Department has proposed allowing administrative review for some minor (up to 10%) expansions to units in existing buildings that exceed the FAR thresholds, and similar administrative processing for additions of Accessory Dwelling Units. No word yet on whether grandfathering for pipeline projects will be proposed.
While the new policy may provide clearer standards for whether a residential remodel in the RH Districts will trigger a mandatory hearing, the jury’s still out on whether it will streamline the approval process or provide more certainty for property owners, since even projects meeting the prescribed thresholds would remain subject to neighborhood notice and potential Discretionary Review actions.
Following Thursday’s informational hearing, the Department is targeting a January 11th Planning Commission hearing to initiate new legislation and a February 15th Commission hearing for recommendation of the proposed legislation to the Board of Supervisors.
Authored by Reuben, Junius & Rose, LLP Attorney, Melinda Sarjapur
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.
