San Francisco Proposes New Roof Deck Policy: Drastic New Restrictions or Prudent Planning?


On August 30, 2018, the San Francisco Planning Commission received an informational debriefing from Planning Department Staff on a proposed new policy (Record No. 2018-005411CRV; the “Policy”) on construction of residential roof decks. The purpose of the Policy is to mitigate potential impacts to adjacent residents resulting from the addition of a roof deck, including, but not limited to, the quality of life from noise, diminishment of privacy, and reduction of light to adjacent properties. The Policy that Staff presented would impose restrictions on the construction of roof decks in residential districts, specifically, RH-1, RH-1(D), RH-2 and RH-3. The Policy would drastically restrict the ability to pull an over the counter permit for a roof deck.

Staff indicated that the Policy was the result of an increasing number of requests for the Discretionary Review of small-scale residential roof deck projects. The impacts referenced by Staff can result from the intensification of use of a building’s area not historically an active space, i.e., space not previously used, including additions of amenities such as outdoor kitchenettes or grills, hot tubs, televisions, and even putting greens.

Interestingly, at the hearing, Staff did not present data on the increased number of requests for Discretionary Review for roof decks as compared to other projects. The increase in requests could be the result of an uptick in requests made across the board generally and not just specific requests pertaining to roof deck additions. Meaning, the percentage of requests regarding roof deck additions could be static with respect to historical figures for discretionary review requests.

As currently proposed, the new Policy would impose the following construction restrictions on roof deck permit applications: (1) limit the size to no greater than one-third of the roof area; (2) 5-foot setback of guardrails except for rear building wall (also recommends 5-foot setback from shared side lot lines and from the edges of light wells); (3) internalized staircase or roof hatch only for single-family dwellings or one minimally sized stair penthouses for multi-unit buildings. Decks that comply with these requirements would still be eligible for an over the counter permit, but those that do not would be subject to more thorough design review.

In addition, Staff indicated that they are still considering the appropriateness of roof decks at the front of buildings. There is a belief that roof decks at the front would provide opportunities to increase eyes-on-the-street. With respect to access, Staff recommended creating a hierarchy of preferred means of access, prioritizing less obtrusive means, e.g., roof hatches and internalized staircases, over stair penthouses, to minimize impact.

While the details are still up for debate, the Planning Commissioners are generally supportive of some version of a streamlined roof deck policy. The Planning Commission indicated they believe that the Policy will lead to greater consistency in the review and approval of roof deck projects. The overarching concern the commissioners had was reciprocal privacy for both the roof-deck owner and adjacent neighbors.

The Planning Commission expressed apprehension to impose use restrictions on roof decks, e.g., no kitchenette, grills, or hot tubs—given that deck appliances and furniture are arguably outside the scope of the Planning Commission and such restrictions would be difficult to enforce. The Planning Commission, however, indicated physical restrictions, e.g., size and setback requirements, would be prudent planning. At this time, no definitive restriction of uses was requested to be added to the Policy by the Planning Commission.

It bears noting that Staff indicated there is a desire to develop similar guidelines, hopefully in a year, for roof decks on larger, multi-unit residential and mixed-use projects. Restriction of roof decks in larger projects could lead to development hurdles with respect to the provision of open space to a project’s future residents or privately-owned public open space required in the Downtown Plan Area. Staff indicated that low-density residential buildings were being targeted first because they are more manageable place to implement restrictions, at least initially.

Because this was an informational presentation, no action was taken on the Policy. The next steps will be for Planning Department Staff to prepare a resolution based on comments received for adoption by the Planning Commission.  Staff did not provide a timeline on when the resolution would be finalized. We will continue to monitor this Policy as it may have far-reaching impacts for all construction projects.

 

Authored by Reuben, Junius & Rose, LLP  Attorney, Justin Zucker

Photo from Curbed SF, available at: https://sf.curbed.com/2016/8/3/12371004/roof-deck-marina-rent-apartment

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.