Board of Supervisors on the Brink of Groundbreaking Discretionary Review Reform

After a year and a half of research, analysis, community outreach and drafting, the Board of Supervisors’ Land Use and Economic Development Committee may be on the verge of approving true Discretionary Review (DR) reform.

Supervisor Eric Mar introduced a package of amendments at the Land Use Committee’s hearing on February 22 which were developed by a group of stakeholders and generally are intended to allay the concerns of neighborhood groups of losing their right to have a hearing before the Planning Commission for DR cases that they file.

Currently, anyone can file a DR application for any building permit that doesn’t otherwise require Planning Commission approval, and get an automatic hearing. One of the most important aspects of DR Reform would empower a DR review team composed of Planning Department planners to review DR filings and their associated building permits to determine whether the case is “exceptional and extraordinary.” If they are, they will be heard by the Planning Commission, if not, they will not be heard. The proposal would give DR filers that were not approved for a hearing the ability to have the Planning Department reconsider its decision, and if that results in the same outcome, to appeal the decision to the Board of Permit Appeals. The reform would also require that all DR cases that justify a hearing before the Planning Commission have that hearing within 90 days of the DR filing.

The Mar amendments would add several protections for neighborhood groups, including:

• Maintaining the status quo for neighborhood groups, meaning DR cases that they file are entitled to an automatic hearing before the Planning Commission;
• Individual DR filers, who would be required to gain approval from the DR review team to get a hearing before the Planning Commission, can still obtain a hearing before the Planning Commission with the support of two Planning Commissioners;
• Individual DR filers are assured a hearing before the Planning Commission if their DR case is related to a policy or emerging planning issue that the Planning Code and Residential Design Standards do not address.

In our view these are reasonable changes that still leave the bulk of the proposed DR reform in place. First, DR cases filed by neighborhood groups make up a small percentage of the total number of DR cases filed. Limiting automatic DR hearings to neighborhood groups should significantly reduce the number of inappropriate DR filings, where a single neighbor is using DR to block, delay or otherwise oppose reasonable projects that the Planning staff finds consistent with both the Code and the Residential Design Standards. However, the Planning Department needs to develop guidelines to ensure that neighborhood groups are legitimate, in order to protect from groups being formed solely for the purpose of opposing a single project or from individual members of established groups acting on their own.

Second, allowing individual DR filers to get a Planning Commission hearing with the support of two Planning Commissioners even after being denied by the DR review team would still protect against frivolous DR cases. Most DR cases are decided by unanimous or close to unanimous decisions of the Planning Commission, so a frivolous DR case would likely not be able to garner the two signatures. There is some discussion of reducing the number of Planning Commissioners who could initiate an individual DR hearing to one. This is simply not good policy. If an individual DR filer does not have the approval of the DR review team and can’t garner the support of two out of seven Planning Commissioners, it likely has no merit.

Finally, DR filings related to new or emerging policies and land use issues should go to the Planning Commission, which is the policy-making body of the Planning Department.

We also support the Planning Department’s position that no extra time should be given to individuals who file DRs on behalf of neighborhood groups to get the backing of the neighborhood group. One of the core aspects of DR reform is to get a project sponsor a hearing at the Planning Commission within 90 days from the date of the DR filing. The legitimacy of a DR filing on behalf of a neighborhood group can generally be determined through an affidavit requirement and individual planners’ attention to this issue.

The Mar amendments to the DR reform package represent a reasonable compromise in a city that is woefully short on compromise these days. They would make the DR process more efficient while simultaneously reducing DR abuse and protecting legitimate DR rights. We commend Supervisor Mar and his office for putting in the difficult work to craft this amendment package, but also encourage him and other results-oriented Supervisors to take this ball and run with it. DR reform is a hot-button issue that will never get 100% support from all interested parties. These Supervisors should enact this compromise and set an example of how good city government works.

Another hearing will be held at the Land Use Committee on Monday, March 8, and a final vote is expected at the committee within a few weeks after. As always, we will keep you posted of future developments of DR reform.

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