Legislative Analysis Archives

Supervisor Mandelman’s Fourplex Legislation Clears Planning Commission

November 24, 2021November 24, 2021 | Mark Loper

On Thursday, November 18, 2021, the San Francisco Planning Commission unanimously recommended that the Board of Supervisors approve legislation proposed by Supervisor Rafael Mandelman to allow four units on any residential lot, as well as up to six units on corner lots, in “RH” zones.

Supervisor Mandelman’s proposal—actually two pieces of legislation—only proposes minor changes to the Planning Code itself, and is quite simple in its effect: (1) up to four dwelling units per lot would be allowed either on every corner lot or on every lot in an “RH” zoning district, and (2) those sites would be subject to the development controls of the RH-3 zoning district. All other aspects of the SF Planning Code would continue to apply. That includes height, rear yard, setback, and open space requirements, as well as the standard entitlement and environmental review process. The Planning Commission also recommended the Planning Department’s proposed modifications, including that the Board of Supervisors allow six units on corner lots.

Supervisor Mandelman has been pushing for this legislation for nearly a year. He expanded the reach of the ordinance after the state passed SB 10, which allowed moderate upzoning near transit without a cumbersome and years-long CEQA review process that ordinarily would be required (not to mention that each project utilizing the increased density would undergo its own CEQA review). In spite of well publicized denials of major housing projects by the Board of Supervisors, Supervisor Mandelman proposed legislation that can become a key solution to San Francisco’s housing crisis. This is not an easy time to propose pro-housing laws in San Francisco, much less expanding its scope when presented with the opportunity.

The Planning Department’s staff report contains an insightful point that seems to get lost in the debate over adding new units in formerly single-family housing districts. 12,568 residential buildings in San Francisco have more units than would be allowed under current zoning. That represents about 31% of all homes in the city. As the Planning Department’s staff report notes, Supervisor Mandelman’s proposal rectifies policy decisions made in the 1970s which effectively downzoned large swaths of western and southern San Francisco. Multifamily buildings coexist with single-family homes currently and can in the future.

The Planning Department’s recommendations included an increase on corner lot density to six units, amending the residential design guidelines to add objective standards, eliminating the RH-1 zoning district and adopting a local alternative to SB-9, increasing funding for supportive housing programs, and establishing an impact fee on homes over 4,000 square feet. Ensuring all San Franciscans have access to capital in order to benefit from the legislation will be crucial to create new fourplex housing. Development impact fees have become a primary cost consideration for development projects; taxing housing instead of looking for a more generalized funding source might not prove successful. Also, establishing objective residential design guidelines will be critical to ensuring that fourplex projects can actually be approved, and in an orderly fashion without overburdening Planning Department staff or dissuading San Franciscans wary of an overly complicated set of guidelines or process. For example, in spite of the RH-4 zoning, the Residential Design Guidelines could effectively limit some sites to a lower density.

As noted above, Supervisor Mandelman’s ordinances as currently proposed are straightforward and clear to understand and execute. They now move to the Board of Supervisors, which will be able to add the Planning Commission and Planning Department’s suggestions and make proposals of their own. It remains to be seen what final form the legislation could take.

Finally, this update includes two maps from the Planning Department’s staff report. The first shows the areas in San Francisco that are currently zoned RH, where the proposed legislation would allow fourplexes. The second shows where new housing has been built in San Francisco since 2005. The maps generally do not overlap.

Authored by Reuben, Junius & Rose, LLP Attorney Mark Loper.

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.

Mayor Proposes Increased Density on Auto-Focused Lots

November 3, 2021November 3, 2021 | Chloe Angelis

Mayor London Breed’s “Cars to Casas” ordinance, introduced on October 19, 2021, would eliminate the Conditional Use requirement for the conversion of an Automotive Service Station and would create a new residential density exception for housing projects on sites previously used for auto-oriented uses.

The ordinance cites a wide-reaching set of policy goals: “missing middle” housing production, cutting auto emissions, and traffic safety consistent with the City’s Vision Zero policy. By encouraging the elimination of auto-oriented uses and reducing the amount of property in the city dedicated to cars, the ordinance seeks to decrease auto travel. And in increasing density and streamlining the approval process for eligible residential projects, the legislation hopes to chip away at the housing crisis and incentivize the construction of new apartment buildings—with a focus on small and medium sized projects with at least four units.

For starters, the legislation eliminates the Conditional Use Authorization requirement to convert an existing Automotive Service Station to some other use. This change applies regardless of whether the Auto Service Station would be converted to residential use or to some other non-residential use.

The ordinance zeros in on properties currently used for “Auto-Oriented Uses,” defined as those parcels with an accessory parking lot or garage, or any use defined as an Automotive Use. Planning Code Section 102 defines Automotive Use as follows:

“A Commercial Use category that includes Automotive Repair, Ambulance Services, Automobile Sale or Rental, Automotive Service Station, Automotive Wash, Gas Station, Parcel Delivery Service, Private Parking Garage, Private Parking Lot, Public Parking Garage, Public Parking Lot, Vehicle Storage Garage, Vehicle Storage Lot, and Motor Vehicle Tow Service.”

The legislation would not change this definition.

The Mayor’s proposed density exceptions would apply to all sites with an Auto-Oriented Use where residential use is permitted, except that sites with an existing residential use and those that have had a Legacy Business at any point during the 10 years prior to application submittal would not be eligible. As of today, the Legacy Business Registry lists seven automotive/motorcycle businesses as Legacy Businesses.

On eligible sites, the legislation would principally permit up to four dwelling units per lot within RH zoning districts. In other zoning districts, the legislation would eliminate dwelling unit maximums and would instead regulate the size of residential projects based on the applicable form-based controls (i.e., height, bulk, setbacks, exposure, and open space).

The legislation also proposes to limit the parking maximums that would apply to residential projects approved under the new density exception. Up to 0.25 spaces per unit would be principally permitted and up to 0.5 spaces per unit would be allowed with Conditional Use Authorization. Parking in excess of 0.5 spaces per unit and parking for non-residential components of projects utilizing the new density exception would be prohibited. Permitted parking varies by zoning district, but in most cases, the parking maximums proposed by the legislation represent a decrease from what is currently allowed.

So as to balance the current demand for new housing against the need to retain some of the city’s existing Auto-Oriented Uses—and likely in an effort to temper potential opposition—the legislation includes a sunset provision: once the Planning Department has approved a total of 5,000 units pursuant to the proposed density exception, the exception will expire.

Authored by Reuben, Junius & Rose, LLP Attorney Chloe Angelis.

Summary of New State Condo Laws

November 1, 2021October 29, 2021 | Jay Drake

The California state legislature recently passed a number of new laws pertaining to California common interest developments and homeowners associations. Below is a brief summary of a few of the new laws.

SB 432 – This is a follow-up to our Update on July 9, 2021, which described proposed SB 432. This bill has now been approved and will become effective January 1, 2022. The law makes several changes to HOA election procedures, including HOA director qualifications and term limits, retention of election materials and election notice requirements.

AB 1101 – This bill was approved on September 23, 2021, and makes changes aimed at preventing fraud and financial malfeasance in HOAs, and furthers the changes made by AB 2912 in 2018 which implemented basic protections for HOA finances. This bill requires (i) HOAs’ accounts to be in financial institutions insured by the FDIC, National Credit Union Administration Insurance Fund, or a guaranty corporation, (ii) imposes requirements on HOAs to obtain fidelity bond insurance covering acts by HOA directors, officers and managing agents, (iii) requires written HOA board approval for withdrawals of specified large amounts from HOA accounts, and (iv) prohibits HOA managing agents from comingling funds of the HOA with the managing agent’s own funds.

AB 1584 – This is a follow-up to our Update on March 11, 2021 regarding AB 3182 which added new Civil Code 4741 that limits rental restrictions in condo projects. That bill required HOAs to amend their governing documents to comply with Civil Code 4741 by December 31, 2021. AB 1584, approved on September 28, 2021, modifies Civil Code 4741 by (i) allowing the HOA board of directors to unilaterally amend the HOA’s governing documents to comply with Civil Code 4741, without the approval of the HOA members, and (ii) gives the board of directors until July 1, 2022, to complete such amendment.

Authored by Reuben, Junius & Rose, LLP Attorney Jay Drake.

California Enacts Bills Aimed to Increase Housing

October 6, 2021 | Melinda Sarjapur

Last month, Governor Newsom signed three complimentary bills taking aim at the housing crisis in California: SB-8, SB-9, and SB-10. Together, the bills are intended to promote denser housing, streamline housing permitting, and boost housing production in California. The practical effects of the bills, however, are yet to be seen.

SB-9

SB-9 requires local agencies to ministerially approve the following in single-family zoning districts: (a) subdivision of existing lots into two parcels; and (b) development of up to two units per lot. Ministerial approvals require no environmental review, discretionary review, or public hearing process.

While opponents have painted SB-9 as a death knoll for single-family zoning, in reality the legislation comes with slew of caveats and conditions that limit its practical application.

To qualify for ministerial approval of a lot split under SB-9, all of the following must be met:

Site is located in a single-family residential zoning district;
Site is located in an urbanized area or urban cluster, or within a city that has an urbanized area or urban cluster, as designated by the US Census Bureau (which covers most urban and suburban cities in the state);
Subdivision creates no more than two new parcels of approximately equal lot area, provided that one parcel may not be smaller than 40% of the lot area of the original parcel proposed for subdivision;
Both newly created parcels must be no smaller than 1,200 square feet, unless the local jurisdiction adopts an ordinance allowing for smaller lot sizes with ministerial approval;
Site is not located on property that is prime farmland or farmland of statewide importance; wetlands; in a very high fire hazard severity zone; a hazardous waste site; in a delineated earthquake fault zone; in a special flood hazard area; in a regulatory floodway; identified for conservation in an adopted natural community conservation plan; a habitat for a protected species; or subject to a conservation easement;
Subdivision would not require demolition or alteration of housing subject to rent control; designated affordable housing; housing that has been removed from the rental market through Ellis Act eviction in the last 15 years; or housing that has been occupied by a tenant (market rate or affordable) in the past 3 years;
Site is not an historic landmark, and is not located within an historic district;
Site was not created through a prior SB-9 subdivision; and
Neither the owner of the parcel being subdivided or any person acting in concert with the owner has previously used SB-9 to subdivide an adjacent parcel.

To qualify for ministerial approval to develop up to 2 units per lot under SB-9, the locational and tenant-history criteria are similar. In addition, applicants will need to show that the project won’t demolish more than 25% of the existing exterior structural walls, unless either a local agency passes legislation allowing otherwise, or the site has not been occupied by a tenant in the last 3 years.

SB-9 also contains an owner-occupancy condition which limits its utility for development entities. Applicant-owners will be required to sign an affidavit stating their intent to occupy one of the resulting housing units as the owner’s principal residence for at least three years following the lot split. However, community land trusts and qualified nonprofit corporations are exempt, and local agencies cannot impose any other owner-occupancy requirements.

And while SB-9 will allow for ministerial approval of qualifying projects, local agencies can still require all of the following:

Lots resulting from ministerial subdivision be limited to residential use;
No short term rental of units resulting from ministerial approval;
Project compliance with all objective zoning, subdivision, and design review standards applicable to the parcel that do not have the effect of physically precluding construction of two units on either resulting parcel or result in a unit size of less than 800 sf;
That new structures provide setbacks of up to 4 feet form side and rear lot lines;
For residential units connected to an onsite wastewater treatment system, a percolation test completed within the last 5 years, or, if the percolation test has been recertified, within the last 10 years.
Projects provide easements for provision of public services and utilities;
All resulting parcels maintain access to or adjoin the public right of way;
Projects to provide parking of up to 1 space per resulting unit, unless the site is located within ½ mile of a high-quality transit corridor or major transit stop, or there is a car share vehicle located within 1 block of the site.

Finally, on lots that are both created by an SB-9 lot split and developed with two units under SB-9, a local agency is not required to permit ADUs or JADUs.

SB-8

SB-8 primarily extends the Housing Crisis Act of 2019 (SB-330) another five years until 2030 and clarifies some of the text of the previous measure. Among other things, SB-330 expedites the permitting process for housing developments; protects existing housing inventory; allows housing developments to file preliminary applications that provide grandfathering protection against zoning changes enacted during the discretionary review process; and limits the ability of local agencies to downzone areas unless they upzone an equivalent amount elsewhere within their boundaries.

SB-10

SB-10 authorizes local governments, at their election, to adopt an ordinance to zone any parcel for up to 10 residential units in transit-rich areas or urban infill sites. That would apply to most properties located along established bus lines, within half a mile of a major transit stop, or in residential/mixed use areas of most California cities. Ordinances or resolutions adopted by local agencies under SB-10 are exempt from environmental review, would require a 2/3 vote in favor from the local legislative body to adopt, and could not be used to reduce density otherwise permitted on any parcel subject to the ordinance. SB-10 would further prohibit a residential or mixed-use project with 10 or more units that is located on a parcel zoned pursuant to an SB-10 ordinance from being approved ministerially or by right, or from being exempt from environmental review.

Authored by Reuben, Junius & Rose, LLP Attorney Melinda Sarjapur.

Planning Commission Recommends Big Changes for Large Residence Legislation

October 4, 2021October 4, 2021 | Kaitlin Sheber

On September 23, 2021, the Planning Commission unanimously voted to disapprove Supervisor Mandelman’s updated proposed large residence legislation after a robust conversation on the potential sweeping effects it could have on homeowners throughout San Francisco. As we have discussed in prior updates on July 29th and March 31st of this year, the large residence legislation was originally introduced to discourage large residential homes over 2,500 square feet by generally requiring a conditional use authorization for any such new home, with some exceptions. The Planning Commission, in its disapproval, provided seven recommendations to significantly change the legislation ahead of its move to the Board of Supervisors.

The seven recommendations and some of the reasoning discussed by commissioners include:

The legislation should focus on Noe Valley only. The legislation was designed with three particular neighborhoods in mind that are disproportionately affected by construction of large homes: Noe Valley, Dolores Heights, and Glen Park. As the legislation stands, the Planning Commission viewed the scope too broad with massive potential unforeseen effects if enacted citywide as proposed. The Planning Commission was supportive of testing modified regulations in Noe Valley before enacting broader legislation.
Much more community outreach and input is needed in the particular areas of concern that would be affected by the legislation. Given the potential broad effects of the legislation, the City needs to make sure that it creates opportunities and spaces to hear from affected homeowners or future homeowners.
The effective date of the legislation should be changed to the date of enactment with no grandfathering. Though the legislation has yet to take a clear form, the effective date of the current legislation is the date it was introduced, with only people who submitted applications earlier this year grandfathered from the effects.
Appropriate limitations for home sizes should be form based rather than formula based. The formulas created to measure whether a home qualifies as a “monster home” seem arbitrary. Commissioners discussed alternatives, such as height limits, that have effectively limited home sizes.
Tenant issues should be explored to ensure no tenants will be displaced or negatively affected by the legislation.
The legislation should be crafted to ensure that areas within an existing home can be finished without running afoul of the legislation. As the legislation stands, a person could violate the legislation simply by making an area within the home’s existing envelope livable space. Commissioners were concerned with the legislation’s potential unintended effect of discouraging homeowners from making use of unfinished space within homes that are not considered “monster homes.”
The legislation should find ways to encourage density. The current legislation discourages large homes through adding process. However, adding provisions to encourage density would help the City achieve more housing.

In addition to the seven recommendations, commissioners also noted several additional concerns including: life safety issues, lack of demolition discussion in the legislation, large ADU sizing requirements in the legislation, lack of design standards, and what should qualify as a monster home. Ultimately, some Planning Commissioners expressed hope, that with much more work, the legislation could be a starting point for future housing regulation in the City.

Authored by Reuben, Junius & Rose, LLP Attorney Kaitlin Sheber.

Condo Owners Exempt from HOA Rental Prohibitions Adopted After Purchase, Court Rules

September 9, 2021September 9, 2021 | Michael Corbett

The 4^th District Court of Appeals has resolved an ambiguity in the intent and enforceability of Civil Code Section 4740, a statute within the Davis-Stirling Act (“Act”) placing limitations on rental prohibitions within common interest developments (“CID”) in California. The court’s ruling is a victory for owners of residential condominiums currently renting units in a manner that their homeowners association (“HOA”) seeks to prohibit through proposed changes to the CC&Rs, bylaws, rules, or related documents (collectively, the “Governing Documents”) of the HOA.

In Brown v. Montage at Mission Hills, Inc. (21 C.D.O.S. 8590), certified for publication on August 20, 2021, the court held that, pursuant to Section 4740(a), an HOA’s amendment to its Governing Documents prohibiting short-term rentals of less than 30 days (“STRs”) was unenforceable against an owner that had been using her unit for STRs the previous 16 years.

Civil Code section 4740(a) states that an owner of a property in a CID shall not be subject to a provision in its regulations “that prohibits the rental or leasing of any of the separate interests in that common interest development” unless that provision “was effective prior to the date the owner acquired title to their separate interest.”

The trial court agreed with the HOA that Section 4740 precluded CIDs from imposing complete bans on renting, and that its prohibition on STRs was merely a restriction on renting. The Court of Appeal reversed that ruling, finding the meaning of section 4740 to be unclear, ambiguous, and in need of closer scrutiny.

The ambiguity lied in two reasonable, but conflicting, interpretations of the statute’s meaning: on the one hand, if a regulation forbids a specific category of rentals, such as STRs, that regulation “prohibits” that type of rental, even if it does not prohibit all forms of rentals; on the other hand, Section 4740(a) could be read to forbid only outright “prohibitions” on leasing, but not “restrictions” on leasing that fall short of a complete ban on all leasing.

To resolve these conflicting interpretations, the court considered both the legislative history of Section 4740, as well as other provisions within the Act’s statutory scheme that imposed restrictions and/or prohibitions of certain actions or conduct.

While the court acknowledged that some statutes within the Act expressly created distinctions between “restrictions” and “prohibitions”, it also found that the legislative history of section 4740 indicated that the Legislature intended broad protection for owners against restrictions on renting, including restrictions against STRs. Further, the legislative history indicated that the Legislature’s intention was to ensure that unit owners within CIDs maintained all of the rental rights they had at the time they purchased their unit.

In seeking guidance from both the entire statutory scheme of the Act and the legislative intent behind Section 4740, the court was required to “choose the construction that comports most closely with the Legislature’s apparent intent.” (Smith v. Superior Court (2006) 39 Cal.4th 77, 88) With this directive, the court determined the goal of Section 4740 is to exempt CID unit owners from any kind of rental prohibition or restriction that did not exist when the owner acquired title to the unit.

Notably, the court cited the opinion of the Legislative Counsel regarding section 4740’s effect on rental prohibitions in CIDs, including prohibitions against STRs, at the time of the statute’s enactment in 2012. The Legislative Counsel opined that a unit owner within a CID is subject to a provision of, or amendment to, Governing Documents that prohibits an owner from renting out their unit only if either (1) the prohibition took effect before the owner acquired title to his or her separate interest in that CID, or (2) the owner consented to the Governing Documents or amendment containing that provision.

In Brown, HOA respondent Montage nonetheless argued its STR prohibition was permissible due to “public policy considerations.” Montage observed that individual property owner’s rights must sometimes give way to the public interest and the right of CIDs to decide their rules and restrictions. However, relying on the public policy considerations given priority by the Legislature when it adopted Section 4740, the court found the statute to have been enacted to protect “the rights of CID owners to rent or lease their properties, as the rights existed at the time they acquired them,” and that its goal was to ensure that “the right of an owner to rent or lease his or her separate interest [in a CID] shall be the same as when the owner purchased his or her separate interest throughout the life of ownership.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 150 (2011-2012 Reg. Sess.) as amended Apr. 25, 2011.) (Italics added.)

In other words, a residential condominium owner will not be subject to amendments to Governing Documents prohibiting a specific form of leasing – including without limitation STRs – otherwise allowed at the time such owner first purchased their unit. An owner who acquired title prior to the HOA’s adoption of such a rental prohibition would be exempt from the same unless the owner waived this right by formally voting in favor of the proposed prohibition.

The Brown appeal was pending while the Legislature enacted Civil Code Section 4741, a statute that was the subject of an e-update by this firm earlier in the year. Section 4741 allows an HOA to adopt and enforce a provision in its Governing Documents that prohibits transient or STRs of units within its CID for a period of 30 days or less. (Civ. Code, § 4741, subd. (c)). However, as pointed out by the Brown ruling, Section 4741 expressly provides that, in accordance with Section 4740, Section 4741 does not change the right of an owner of a separate interest who acquired title to their separate interest before the effective date of this section to rent or lease their property. (Civ. Code, § 4741, subd. (h)).

Authored by Reuben, Junius & Rose, LLP Attorney Michael Corbett.

Eliminating Single Family Zoning is OK, but Don’t Eliminate Parking

August 31, 2021 | Matthew Visick

SB 9 Makes it Through the Assembly but AB 1401 Dies in the Senate

Two bills that would limit local control over housing issues met very different fates this past Thursday in the California Legislature. Both were vehemently opposed by cities and groups that favor local control over land use decision making. One was opposed by housing equity groups.

Senate Bill 9

Senate Bill 9 (“SB 9”) would, among other things, require a city or county to ministerially approve (1) a two-unit housing project in a single-family zone, (2) the subdivision of a parcel zoned for residential use into two parcels, or (3) both.

SB 9 could unlock substantial housing production in single-family neighborhoods, where opposition to multi-family housing projects is typically greatest. Many of the lots in these districts include only a single-family home and maybe an Accessory Dwelling Unit (which cannot be separately sold). SB 9 would allow each existing single-family lot to be ministerially subdivided into two lots, and require ministerial approval of a duplex on each of the lots.

According to the Terner Center for Housing Innovation at UC Berkeley, SB 9 has the potential to allow for the development of nearly 6 million new housing units statewide.

Assembly Bill 1401

Assembly Bill 1401 (“AB 1401”) would limit minimum off-street parking requirements for projects located near a “major transit stop” (generally a train station or bus station with high frequency headways).

AB 1401 is hardly radical legislation. When first introduced by Assembly Member Friedman in February 2021, the bill prohibited public entities (cities and counties) from imposing or enforcing minimum parking requirements on residential, commercial, or other development that is located within one-half mile walking distance of a “major transit stop” (generally a rail stop or a bus stop with frequent headways). As last amended on July 5, 2021, the bill eased the prohibition for smaller cities. A city with a population of 75,000 or more that is located in a county with a population of less than 600,000 was only prohibited from imposing the parking minimums on projects located within one-quarter mile of a major transit stop, and a city with a population of less than 75,000 was not subject to any prohibition.

Studies show that eliminating minimum parking requirements for projects located near transit routes supports the state’s housing goals by reducing the cost to deliver housing and allowing more dwelling units on a development site. Eliminating parking requirements near transit also advances the state’s environmental goals by reducing emissions from cars.

Wait, the Parking Bill is the One That Died?

Both SB 9 and AB 1401 sailed through their respective policy committees in both the Assembly and the Senate with large vote margins in support. Both were vehemently opposed throughout by local governments and groups that advocate for “local control” over land use decision making. Yet AB 1401 was referred to the “suspense file” in the Appropriations Committee, where ambitious legislation often goes to die, while SB 9 was not.

It is hard to know exactly why bills are referred to the “suspense file.” The “suspense file” is intended to be a place to evaluate whether to advance a bill that could have a significant fiscal impact. But committee analyses of both SB 9 and AB 1401 show that both bills were anticipated to have the same annual impact on the budget (SB 9: $89,000 and AB 1401: $97,000).

A more plausible explanation emerges when one considers the groups opposed to the changes the bills would bring. It is not surprising that numerous suburban cities and local government groups opposed both bills (SB 9 faced even greater opposition from these groups than AB 1401). However, the opposition to AB 1401 was more diverse. Affordable housing advocates argued that eliminating parking minimums for market rate development would reduce incentives for developers to create the affordable dwelling units required to reduce parking requirements using the Density Bonus Law. In addition, environmental groups objected to the reduction of parking near transit as inconsistent with equity goals.

Decline in Value Real Estate Tax Appeals Due September 15

The deadline to appeal the valuation of property for real estate tax purposes is September 15 for both San Francisco and Alameda Counties. Such an appeal would be appropriate due to a decline in property value because of the impact of Covid-19 and the related business shutdowns. If you need more information, please contact Kevin Rose at krose@reubenlaw.com (415.567.9000). Other counties may have different deadlines, so you should check with your local County appeals board to confirm the deadlines.

Authored by Reuben, Junius & Rose, LLP Attorney Matthew Visick.

Legislation Seeks Water Conservation in New Buildings

August 19, 2021August 19, 2021 | Justin A. Zucker

To conserve water in the midst of another extreme drought, Supervisors Rafael Mandelman (District 8), Gordon Mar (District 4), and Myrna Melgar (District 7) proposed legislation (“Legislation”) to strengthen the 2012 Non-potable Water Ordinance (Article 12C of the San Francisco Health Code). The Legislation’s goal is to preserve the City’s water supply by requiring the use of non-potable water, which is water not suitable for drinking, for other productive uses such as toilet flushing, irrigation, decorative fountains, dust control and cooling applications. Across the nation, non-potable water is used to reduce pressure on natural water resources, and the use of onsite non-potable water may also reduce flows into the sewer, reducing strain on the City’s sewer system.

Effective since 2015, most new projects of 40,000 square feet or more are required to utilize the San Francisco Public Utilities Commission’s (“SFPUC”) Water Budget Calculator to assess the available supply of onsite alternate water sources and determine the demand for toilet and urinal flushing and irrigation. Large new projects of 250,000 square feet or more of gross floor area are required to construct, operate, and maintain an onsite non-potable water system to treat and reuse the identified available sources of rainwater, graywater, and foundation drainage to meet the planned demand for non-potable water uses.

In the Legislation introduced on June 29, 2021, the threshold for new projects that must construct, operate, and maintain an onsite non-potable system to treat and reuse available sources of water is reduced to 100,000 gross square feet for projects receiving a site permit after January 1, 2022. The systems required and sources of water to be used are also expanded and will be determined based on building type. For commercial buildings, most available sources, such as rainwater, graywater, blackwater, and foundation drainage, must be used if needed to satisfy as much toilet and urinal flushing and irrigation as possible. For systems providing water to residential and mixed-use projects, available sources of rainwater, greywater, and foundation drainage must be used for toilets, irrigation, and other end uses like clothes washing.

In analyzing the Legislation’s impact on pipeline projects, SFPUC staff determined that the lower threshold would result in a 20,000 gallons per day of potable water savings. This represents just 2% of the total savings anticipated by the Legislation. However, the cost burdens are not linear. For example, the SFPUC’s analysis found that the cost of a graywater system would only be 15% less for a 100,000 square foot building than a 250,000 square foot building. The SFPUC found that there is not sufficient data at this time to say conclusively whether the Legislation would be a net benefit or cost to smaller buildings. Additional cost-benefit analysis by SFPUC staff is expect before the next hearing.

Appreciating the costs for installation of onsite water reuse systems, the SFPUC has in place an Onsite Water Reuse Grant Program to encourage water users to voluntarily reduce SFPUC water supply usage through use of alternate water sources for non-potable application. To incentivize building owners to install alternate water source systems, SFPUC recently lowered the threshold of eligibility for the grant program.

The Legislation has been continued to the call of the Board of Supervisors’ chair and no hearing date has been set for consideration by the Board of Supervisors Public Safety and Neighborhood Services Committee. We will continue to monitor and keep readers updated.

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

San Francisco Shared Spaces Program Permanent

August 5, 2021August 6, 2021 | Sabrina Eshaghi

Mayor London Breed recently signed legislation that will make the Shared Spaces Program a permanent feature in San Francisco. The temporary Shared Spaces Program allowed more flexible use of sidewalks, streets, and other public spaces for neighborhood businesses and was implemented through a mayoral proclamation tied to the declaration of a state of emergency due to COVID-19. According to the Mayor’s Office, more than 2,100 curbside and sidewalk Shared Spaces permits have been issued by the City since June 2020. Given the success of the program, the Mayor proposed legislation to make the program permanent in March of this year. Due to the number of City agencies involved and the complex issues this legislation raises, it took months of debate and countless amendments to ultimately gain unanimous approval by the Board of Supervisors and the Mayor’s signature.

The permanent legislation will continue to allow the same types of shared spaces that have been permitted under the temporary program, including on sidewalks, curbside lanes, and roadways, but with an updated approval process and a new set of operating requirements that are meant to address some concerns with the existing program. The permits will be available for commercial and noncommercial activities, including retail uses, cultural events, arts activities, general recreation, and entertainment uses. Generally, the permits will allow the temporary and reversible installation of physical improvements.

Approval Process

All permits will be routed through the Planning Department to the appropriate agency with authority to approve the permit. Depending on the type of permit and the specific uses proposed, the agencies with jurisdiction over the permit will include the Department of Public Works, Interdepartmental Staff Committee on Traffic and Transportation (ISCOTT), Municipal Transportation Agency Board of Directors (SFMTA Board of Directors), Entertainment Commission, and/or Real Estate Division. Additional coordination or approval by other agencies may also be required. According to the Mayor’s Office, the City will require streamlined approval of the permits within 30 days of submittal of the application, in alignment with the requirements of Proposition H, which was passed by the voters in November 2020 (discussed in a previous update). The curbside and sidewalk permits will be effective for up to one year and can be renewed annually. Roadway permits will have a maximum initial term of two years and can be renewed for up to two years at a time. Any person can appeal the decision to approve or deny a Shared Spaces permit.

The permits will generally be subject to fees, except small businesses may be eligible for reduced fees in certain circumstances.

Conversion of Existing Permits

Given the significant number of existing Shared Spaces permits, the legislation allows existing Shared Spaces to continue operating based on the terms of the specific permit. Prior to the expiration of the existing permit, the permittee can apply to convert to a new Shared Spaces permit based on the requirements of the legislation.

Existing permitholders that apply for new curbside permits will be eligible for fee waivers and deferrals. However, the fee waiver and deferral will not apply to formula retail uses.

Enforcement

The 311 system will be utilized to receive complaints, route them to the appropriate agency, and provide complainants updates on the status of the complaint including how the issue was abated or why the complaint was closed. In addition, at least every other month, the City will be required to conduct rolling audits of Shared Spaces in commercial corridors to confirm compliance and take any necessary enforcement actions.

Accessibility

Accessibility was a major topic of discussion during the legislative process. Ultimately, the legislation requires each agency to provide regulations that account for disability and access needs. In addition, sidewalk permits will generally be required to provide an 8-foot wide unimpeded path of travel.

In terms of public accessibility, the legislation limits the number of restricted access events to eight single-day events per year. Parklets in curbside lanes or any other permit that exclusively allows private dining will be required to provide one public bench or another type of seating arrangement that will be accessible to non-patrons for every 20 feet of Shared Space. Although there was some discussion about leaving the parklets open after business hours, the final legislation allows permittees to secure curbside Shared Spaces from midnight to 7am.

Outreach and Notice Requirements

As part of the initial application, the legislation requires documentation of community outreach and support as well as documentation showing that all property owners of any building fronting a proposed sidewalk or curbside Shared Space have been notified of the application. The legislation also mandates a public notice and comment period following submittal of applications for sidewalk and curbside permits.

Annual Reporting

The Board of Supervisors included requirements for a number of annual reports regarding various issues related to the Shared Spaces Program, including:

Revocations of permits in order to comply with the City’s Vision Zero, Better Streets, and Transit First Policies, including for purposes of restoring transit lines, to maintain safe access to public rights of way for seniors and people with disabilities, and to facilitate pedestrian safety;
Opportunity sites for sidewalk extensions on blocks with many sidewalk or curbside Shared Spaces and commercial or mixed-use corridors with narrow sidewalks;
Impacts on small businesses without Shared Spaces permits, including businesses that rely on consumer vehicle loading and unloading, and recommendations for how to mitigate any negative impact of the Shared Spaces Program on those businesses; and
Impacts on street cleaning operations and recommendations for how to accommodate any decrease in such services.

We may continue to see the Shared Spaces Program evolve based on the recommendations and findings of these reports.

Authored by Reuben, Junius & Rose, LLP Attorney Sabrina Eshaghi.

Planning Commission Considers Two New Pieces of Legislation

July 29, 2021 | Thomas P. Tunny

The Planning Commission considered two pieces of proposed legislation at its regular meeting last week. One was the elimination of the Life Science and Medical Special Use District (to which staff added a proposal to eliminate the Industrial Protection Zone (IPZ) Special Use District), and the second was Supervisor Mandelman’s so-called “Large Residence” legislation (which we have discussed in a previous update).

Life Science and Medical and IPZ Special Use Districts

The Life Science and Medical Special Use District (SUD) is generally bounded by Mariposa Street to the north, 3^rd Street to the east, 23^rd Street to the south, and Iowa Street to the west. The SUD was adopted as part of the Central Waterfront Plan in 2009, and was established in the northern part of the Plan Area to support the creation and expansion of life science and medical uses, given the proximity to the UCSF campus at Mission Bay. The Dogpatch Historic District and Neighborhood Commercial District are generally excluded from the boundaries of the SUD. Almost all parcels in the SUD are classified as Urban Mixed Use (UMU) zoning.

The SUD principally permits medical services, life science offices, and life science laboratories. Among other controls facilitating the development of these uses in the SUD, the uses are exempt from PDR replacement requirements. The Planning Department’s broader concern with the loss of PDR uses was one of the reasons driving the elimination of the SUD.

The other reasons behind the legislation are the Planning Department’s view that the City has enough supply of life science and laboratory space (including projects at Pier 70, Potrero Power Station, Mission Rock, and in SoMa, Central SoMa, and Mission Bay), and concerns with some of the ambiguities in the Planning Code concerning life science and laboratory uses. These ambiguities have contributed to uncertainty for project sponsors, an increased need for letters of determination, and the departure of businesses. The Department is studying a more comprehensive code update to clarify controls related to laboratory uses.

The IPZ SUD consists of a large area in the Bayshore and Bayview neighborhoods now classified as PDR-2. Staff recommended eliminating the IPZ SUD to close what it considered a loophole allowing self-storage, big box retail, and heavy industrial uses in PDR neighborhoods.

The Commission voted unanimously to recommend to the Board of Supervisors that both SUD’s be eliminated, with a grandfathering clause for the Life Science and Medical SUD that exempted any projects with submitted applications as of July 22, 2021.

Large Residence Legislation

As we have reported previously, Supervisor Mandelman’s proposed large residence legislation would discourage residential units over 2,500 square feet by requiring, with some limited exceptions, a conditional use for them in RH zoning districts. Last week, the Planning Commission had a lengthy discussion of the merits of the legislation, before voting to continue the matter until September 23, 2021.

Ranging from some support to some pointed concerns, here are the highlights of the discussion:

There was some consensus that the legislation, while perhaps identifying a problem for Supervisor Mandelman’s District 8, was not appropriate as a City-wide control where other areas might not have the same issues.
More than one Commissioner questioned the 2,500 square-foot number, calling it arbitrary. The Commissioners discussed FAR as a more accurate measure, but identified concerns with that approach as well.
At least one Commissioner questioned the lack of data concerning how many projects this was designed to address, and the lack of research supporting the legislation generally.
One Commissioner questioned the wisdom of telling homeowners how big their bedrooms and other rooms should be, and how many bedrooms they should have.
Commissioners also expressed some support for the intent of the legislation, due to ongoing concerns with the lack of affordable and moderately-priced housing. One Commissioner suggested that the proposed controls should not be enforced as a conditional use authorization, but rather as legislated Planning Code controls, from which property owners could seek variances.

Following the discussion, the Commissioners agreed there were too many unresolved issues and voted to continue the matter until September 23, 2021. They wanted to consider it at the same time as Supervisor’s Mandelman’s proposed “fourplex” legislation for corner lots in RH districts (which we have discussed in a previous update). The Commission also discussed possibly delaying the legislation so it could be considered with the planned Housing Element update.

Authored by Reuben, Junius & Rose, LLP Attorney Thomas P. Tunny.