A Shady Proposition

Last week, five San Francisco Supervisors submitted an initiative, the “Park Sunlight Protection Ordinance” (the “PSPO”), to the Department of Elections for the June ballot. Coming in at just under two pages, the deceptively short measure would significantly expand the City’s longstanding shadow regulations by:

– Eliminating the City’s discretion to approve projects that cast any new shade on certain parks

– Expanding shadow-protected open spaces to include Yerba Buena Center, Hallidie Plaza and UN Plaza

– Giving the Board of Supervisors power to unilaterally extend shadow protections without first consulting the Recreation and Parks Commission (“Rec/Park Commission”) or Planning Commission

– Lowering the height limit for exempt Projects

The PSPO has no phase-in provision, i.e., projects without an approved site-permit would be subject to the new regulations, even if it had already been reviewed by the Recreation & Park Commission and approved by the Planning Commission.

The net benefits of these changes would be minimal: shadows on parks are already strictly regulated by a longstanding voter-approved ordinance. However, the PSPO’s negative consequences will be far-reaching. These include new burdens on small builders, major impediments to transit-oriented development downtown, and threats to the City’s plans for new downtown parks and transit infrastructure.

Proposition K and Existing Shadow Budgets

At present, property under the jurisdiction of, or intended to be acquired by, the Recreation and Park Commission (“Rec/Park Land”) is protected by Section 295 of the Planning Code, which was enacted by voter initiative (Proposition K) in 1984. Proposition K prohibits new structures over forty-feet tall that would have adverse and significant shadow impacts on the use of Rec/Park Land. It charged the Planning Commission and Rec/Park Commission with jointly adopting standards for implementing shadow protections, including the criteria for determining whether potential shadows cast by a project should be considered significant and adverse. Proposition K itself exempts the extremely long shadows cast one hour after sunrise and one hour before sunset.

The Planning Commission and Rec/Park Commission responded by developing “shadow budgets” for all Rec/Park Land, which took into account the amount of existing shadow and park size, among other factors. The shadow budgets established an absolute cumulative limit for new shadows, with allowable increases ranging from zero net new shadow to a maximum of one percent. Rec/Park Land in Chinatown, the Financial District and Tenderloin tended to be among the most strictly regulated. Within these areas, Portsmouth Square, Maritime Plaza, St. Mary’s Square, and Boeddeker Park, among others, are allowed no new shadow. Union Square and Justin Herman Plaza are restricted to a maximum cumulative increase in shade of 0.1 percent.

In addition to the quantitative limits, the two commissions adopted qualitative criteria to determine whether shadows adversely impact the use of a park. These include evaluating the location, extent and duration of new shadows in relation to (a) the extent of existing shadows, (b) the times of day and year when a park is most active, and (c) the public good served by the building casting new shadow.

Proposition K’s Relief Valves

While the existing shadow controls have been strictly enforced, two important aspects have allowed them to coexist with the continued development of downtown. First, not all downtown public open spaces are administered by the Rec/Park Commission. The Redevelopment Agency, Port, and Transbay Joint Powers Authority each have jurisdiction over existing or planned open spaces. These spaces are currently exempt from Section 295. This has allowed the Redevelopment Agency in particular to create new parks at the center of high-density districts.

Yerba Buena Gardens is a prime example of the synergies between new parks and surrounding development. In Yerba Buena, the Redevelopment Agency strategically planned the location of private development to ensure ample sunlight would reach the park. The new private development in the surrounding area, in turn, both activated the park and generated tax increment revenue to defray the cost of building it. If shadow regulations had been applied to Yerba Buena Gardens, the SF MOMA, St. Regis, W Hotel, and Paramount would each be significantly shorter than they are today.

Second, where both the Planning Commission and Rec/Park Commission find that there is no adverse effect on the use of a park, minor new shading may be allowed. In rare instances, shadow budgets may be increased by a majority vote of both commissions. In practice, such actions are rare, involve minor increases in allowable shadow, and are granted where a project will have obvious and compelling public benefits. One example is Boeddeker Park. The area surrounding Boeddeker Park is the site of several affordable housing developments. Two recent projects, one built and the other approved, would increase shadows by approximately one-third of one percent and create nearly 250 units of affordable housing. The City chose to allow a minor increase in the shadow budget given the overwhelming need for low-income housing and the limited extent of new shadows.

Another example is the Asian Art Museum in Civic Center. The Civic Center Plaza’s cumulative shadow limit was raised from one percent to 1.12% in order to allow the adaptive reuse of the Old Main Library. Construction of the new Asian Art Museum entailed major seismic upgrades to, and rehabilitation of, the landmark building and brought an important cultural facility to the Civic Center.

The PSPO: A Defacto Downtown Downzone

The PSPO deprives the City of its discretion to make such reasonable tradeoffs between minor new shadow on public parks and major public benefits that can be created by new development. If passed, it would set in stone the existing shadow budgets for parks citywide, i.e., any future increase could only be approved by ballot initiative. This is especially problematic downtown where parks are closely spaced, buildings are tall, and many shadow budgets are set at zero.

The PSPO would also expand shadow restrictions to several new downtown open spaces. Unlike Section 295, which is limited to Rec/Park Land, the PSPO applies to anything classified as “Park Property” under Section 2.01 of the Park Code. “Park Property,” includes Yerba Buena Gardens (which is expansively defined to include all open space on the blocks bounded by Market, Folsom, Third and Fourth Streets), and Hallidie and UN Plazas.

These two changes will work in concert to downzone most, if not all, of downtown and undermine the City’s investments in transit infrastructure. Some adjustments to existing shadow budgets will be necessary in order to construct some of the taller buildings proposed in the Transit Center District Plan, including the Transit Tower. The impact fees and tax increment generated by these projects will directly fund a new five-acre park atop the Transbay Transit Center and are critical to the financial feasibility of bringing high-speed rail and the CalTrain Extension to the heart of downtown. Under the PSPO, the City could not make the modest adjustments to park shadow budgets necessary to facilitate these projects and the massive public benefits they would provide. Without funding from the Transit Tower and other Transit Center projects, it is unclear whether the Transit Center and its park can be built.

Further to the west, the designation of Yerba Buena Gardens and Hallidie Plaza could significantly affect plans for construction of the Mexican Museum and stymie plans to allow taller development on the 4th/5th Streets Corridor, where the City is investing $1.5 billion in the new Central Subway. Extending shadow protections to UN Plaza could similarly prevent many Mid-Market projects and thwart longstanding efforts at that area’s revitalization.

New Role for the Board of Supervisors: Designating New Parks and Approval Rights for Changes in Shadow Criteria

Today, Proposition K provides a very specific process to designate land for acquisition by the Rec/Park Commission and impose shadow regulations on surrounding development that could potentially shade it. The Planning Commission and Rec/Park Commission must hold a joint hearing, at which each Commission, with the concurrence of the Board of Supervisors, must vote to recommend the property for acquisition from the Open Space Acquisition and Park Renovation Fund and placement under the jurisdiction of the Rec/Park Commission.

This process ensures that new park designations are integrated with the Rec/Park Commission’s long-term capital plans and are consistent with the goals and policies expressed in the City’s General Plan. By contrast, the PSPO eliminates the requirement for a joint commission hearing prior to a property’s designation as Rec/Park Land. Rather, the Board of Supervisors may unilaterally amend the Park Code to define a property as “Park Property”.

In addition, the PSPO gives the Board of Supervisors the right to approve any modifications to the criteria used to evaluate shadow within existing shadow budgets. This change appears to be directed at recent efforts by the Planning Department to clarify ambiguities in the existing criteria and provide a clear and consistent methodology for the conduct of shadow studies. It is not clear how a lengthier and more political process will serve either goal.

A Little Something for Everyone: New Burdens on the Neighborhood Builder

Though the most dramatic effects of the PSPO would be felt downtown, it would nonetheless apply, and could have similarly irrational results, citywide. One change would be felt most acutely by the small projects that are the bread and butter of neighborhood builders.

At present, projects under 40 feet in height are exempt from shadow limits and do not need to file shadow study applications as part of their permit review. For the past 25 years, the Planning Department has used the Planning Code definition of “height” to determine whether a building falls under the 40-foot exemption. This excludes parapets, stair penthouses and other minor rooftop features. The PSPO will alter the longstanding-and well-defined-method of measuring height and instead will exempt only those structures that measure less than 40 feet to their highest point. For some projects close to parks, the end result may be one less story of allowable development or the inability to make even minor improvements, for example, adding a roof deck. Even for small projects nowhere near parks, a shadow study will be required, adding time and new fees to a permit review process that is already notoriously slow and expensive.

Next Steps

The PSPO was submitted to the Department of Elections and Clerk of the Board of Supervisors on January 19th -the last possible date to submit the ordinance and still meet the minimum hearing requirement. The PSPO is expected to be heard at the Rules Committee, on which Supervisors Campos, Alioto-Pier and Mar sit. A hearing date has not been announced, but the PSPO could be heard at the regularly scheduled Rules Committe hearings on February 4th or February 18th. February 18th is the last possible date on which a hearing can be held. This leaves little time for the public or city officials to review and comment on the sweeping changes this initiative would have on development in the City or on its economy as a whole.

As an initiative signed by four or more supervisors, the PSPO may not be amended in committee and does not require a vote of the full Board in order to appear on the ballot. The only actions that will prevent this misguided measure from appearing on the June ballot are the withdrawal of at least two of the five supervisors who signed it: Chiu, Maxwell, Mirkarimi, Mar or Campos.

It is essential that the Board of Supervisors hear that San Francisco does not need new regulations that will have no appreciable effect on the quality of its parks, especially when they are sure to dramatically reduce the City’s physical and economic development for years to come. We will announce the date of the public hearing at the earliest opportunity.

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