Housing developers in San Francisco no doubt recognize this entitlement moment of disbelief: after a grueling, years-long process of working with staff, neighbors, and policy-makers, with numerous concessions made to address the potential impacts of their proposed project, the project finally receives its entitlement from the Planning Commission (a recent study found that a multifamily housing project takes 627 days on average to obtain a building permit) when lo and behold, the Board of Appeals sends notice that the project’s site permit has been appealed; and/or the demolition permit is appealed; and/or the grading permit; and/or the tree planting permit…
Fueling the disbelief even further is that the appeal isn’t based on anything new. The project has already gone through exhaustive review and revisions. The permit appeal process simply gives project opponents one more “bite of the apple”, an opportunity to cause delay and gain leverage for further negotiations and concessions. The standard of review for the Board of Appeals is merely whether the permit was issued in error. And four out of five votes are needed to overturn the permit. All of this highlights the City’s recognition that these appeals are superfluous; and yet, they remain allowed.
Assembly Member Matt Haney seeks to change that. This month he introduced AB 1114, a new bill that recognizes the absurdity (and steep costs to housing) of these appeals, and would eliminate them. The bill would bar cities from allowing building-permit appeals after an applicant has navigated the long and winding road to entitlement. Although the legislation would apply to all cities and counties in California, San Francisco is the only jurisdiction in the state that allows such appeals of entitled projects. Hence, only San Francisco would be affected by the new law. Only permits for projects that are at least 2/3 residential would be protected by the legislation.
One potential hurdle for the legislation is the City’s Charter. Arguably, this proposed change requires an amendment of the City’s Charter, which can be done only by San Francisco voters. But Haney is seeking to bypass that requirement, relying on the state’s vested interest for all California jurisdictions to build more housing.
The bill was introduced February 15 and is scheduled tentatively for a committee hearing on March 18. State Senator Scott Wiener supports the bill, and the Housing Action Coalition was instrumental in its drafting.
Authored by Reuben, Junius & Rose, LLP Attorney Thomas P. Tunny.
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.
