San Francisco Expands ADUs and Electronic Permitting

| Jody Knight
ADUs

State Law Changes to ADUs Incorporated into Planning Code

Early this year, state law changed to allow additional flexibility in adding Accessory Dwelling Units (“ADUs”) to existing and proposed housing. In May, some of those changes were incorporated into Planning Code Section 207. Additional changes to align the Planning Code with state law are expected soon.

The changes to the ADU program include an allowance for construction of ADUs in single family homes or detached auxiliary structures on the same lot. The Code changes allow for single-family “no waiver” ADUs under Section 207(c)(6), but limit expansion of the envelope of the single-family home or auxiliary structure for the ADU to 1,200 square-feet. State law also allows a Junior ADU (“JADU”) of no greater than 500 square-feet to be developed within the existing or proposed primary residence in addition to an ADU. Therefore, under the new state law, every lot can have at least three units. Single-family ADUs will require posted notice at the site, even if the ADU is built entirely within the envelope of an existing building.

“Waiver” ADUs for single family homes and ADUs in multifamily buildings are regulated by Section 207(c)(4). For lots that have four or fewer existing dwelling units or where the zoning would permit the construction of four or fewer dwelling units, one ADU is permitted. For lots that have more than four existing dwelling units or are undergoing seismic retrofitting, or where the zoning would permit the construction of more than four dwelling units, there is no limit on the number of total ADUs permitted, subject to restrictions for prior evictions. No minimum lot size is required for construction of an ADU.

Under Section 207, ADUs may be constructed in the buildable area of a lot, be converted from auxiliary structures, or be built within the envelope of an existing residential building. For auxiliary structures, dormers may be added even if the structure is within the required rear yard. The new state law also allows construction of a new detached unit, not otherwise subject to local development standards, if it is not more than 800 square feet, no more than 16 feet in height, and provides four-foot side and rear setbacks. In San Francisco, ADUs are not to be constructed from space within an existing dwelling unit, except that an ADU may expand into habitable space on the ground or basement floors if it does not exceed 25% of the gross square footage of the space. This limitation may be waived by the Zoning Administrator if waiver helps with the layout of the proposed ADU.

In an effort to incentivize creation of new units, ADUs of up to 750 square feet are now exempt from impact fees by state law. ADUs of 750 square feet or larger are only subject to impact fees proportional to the size relationship of the ADU to the primary dwelling. In addition, ADUs are not required to be sprinklered where the main unit is not required to be sprinklered.

Finally, state law now requires processing of ADU applications within 60 days. However, many property owners have experienced delay based on when the City deems a project application “complete.” The Planning Department continues to refine its procedures for ADUs, and we hope that property owners will encounter less red tape than they did in the past.

DBI (Department of Building Inspection) Implements Electronic Processing and Over-the-Counter Permits

COVID-19 has pushed DBI to implement its long-planned transition to electronic processing of permits. Electronic Plan Review (“EPR”) has a new online portal for building permit submittals that allows EPR through Bluebeam. For permits previously started in paper, DBI is evaluating the need to convert to EPR on a permit-by-permit basis. Conversion to EPR has resulted in delays as electronic submittals are processed, but should allow more efficient simultaneous review once permits move forward.

DBI has also restarted processing Over-the-Counter (“OTC”) permits. On June 24, DBI began offering OTC curbside services in coordination with its permitting agency partners (Public Works, Planning, Fire, and the Public Utilities Commission). Curbside services are offered from 7:30 a.m. to 4:30 p.m. Monday through Friday, including the following:

• Drop-in service for OTC without plans for up to two permits is available for up to 30 people per day between 7:30 a.m. and 9:30 a.m. Starting at noon on Fridays, Eventbrite tickets are available for the following week’s slots.
• Previously submitted electronic OTC permits with plans are being processed by appointment between 9:30 a.m. and 3:30 p.m., with appointments prioritized by length of time in the queue. Currently, DBI is processing permits submitted electronically between 6/1/2020 and 6/14/2020; new applications for OTC permits with plans are to be submitted electronically and added to the queue.
• Drop-in permit pick-up will be available throughout the day after DBI alerts a customer that a permit is ready. To use these OTC services, customers must arrive with forms complete and must wear face masks and stay six feet apart.

The following types of permits may be processed OTC:

Over-the-Counter without Plans

• Re-roofing
• Repair decks and stairs (less than 50%)
• Replacement windows (same size and same locations)
• Replacement garage doors
• Minor dry rot repairs
• Exterior siding repairs or replacement
• In-kind kitchen remodel (no changes to floor plan or walls)
• In-kind bathroom remodel (no changes to floor plan or walls)

Over-the-Counter with Plans

• Kitchen remodel (changing floor plans/walls)
• Bathroom remodel (changing floor plans/walls)
• Residential interior remodel (changing floor plans/walls)
• New windows and exterior doors
• Decks less than 10 feet above grade that meet Planning Code setbacks
• Sign permits
• Commercial tenant improvement projects
• Office or other B occupancy remodels
• Power door operators
• Permits to comply with the Accessible Business Entrance (“ABE”) program
• Voluntary seismic upgrades
• Disability access barrier removal
• Projects that do not require Planning Department neighborhood notification

Expect delays. DBI is currently processing permits submitted more than a month ago and will be closed to OTC permit processing for several days during the next few weeks while it moves its offices. Also, this is a pilot program that is subject to change as DBI continues to adapt to electronic filing and limited in-person services in the COVID-19 era. Check DBI’s website for the latest information about OTC processing.

 

Authored by Reuben, Junius & Rose, LLP Attorney Jody Knight.

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.

Senator Wiener Takes Aim at Single-Family Zoning

| Sabrina Eshaghi
ousing

After SB 50 failed to pass earlier this year, Senator Scott Wiener introduced a new housing bill that aims to increase density across the state and provide cities a streamlined process for upzoning certain areas of their communities. Although more modest than the sweeping overhaul that was proposed under SB 50, this bill would effectively eliminate single-family zoning statewide by allowing two to four units per lot depending on the size of the city. In response to concerns that SB 50 interfered with local decision-making, this bill takes a more tempered approach by reducing obstacles to upzoning transit-oriented and job-rich infill areas to allow up to 10 units without prescriptively requiring cities do so.

This is consistent with a larger movement to eliminate single-family zoning across the country. In 2018, Minneapolis became the first major city to vote to eliminate single-family zoning policies citywide. Last year, Oregon approved a bill allowing duplexes in all cities with at least 10,000 people and up to four units in larger cities. Austin has eased restrictions that would allow greater density in single-family zoning districts. Seattle was able to ban single-family zoning, but only in about 6% of the city. Most recently, a bill was introduced in Washington state that would eliminate single-family zoning in most cities. Even the United Nations has warned of the social and environmental impacts of single-family zoning. It’s clearly becoming more and more recognized that there are significant drawbacks to single-family zoning districts that outweigh their justification as “preserving neighborhood character.”

SB 902 would extend this movement to California by authorizing multifamily housing “by right” on all properties zoned for residential use, with few exceptions. Ministerial approval under the legislation would exempt such projects from CEQA. The number of units permitted per lot depends on the city’s population, as follows:

  • Two units in unincorporated areas and cities with up to 10,000 people;
  • Three units in cities with between 10,000 and 50,000 people; and
  • Four units in cities with more than 50,000 people.

Although the bill would allow for increased density, projects would still need to meet local height and setback limits, which would ensure compatibility with the existing scale of development. Projects would also need to meet local demolition standards. The legislation would not apply in very high fire hazard severity zones or where the project would involve the demolition of affordable housing, rent controlled units, housing that has been rented out in the past seven years, or buildings listed in a national or state historic register.

Aside from eliminating single-family zoning statewide, the legislation would also ease some of the difficulties associated with rezoning parcels to allow greater density. The legislation would allow cities to rezone parcels for up to 10 units in transit-rich and jobs-rich areas, as well as on urban infill sites. Such rezoning ordinances would not be subject to CEQA, which would significantly streamline the legislative process. This provides cities with a flexible tool they can use to allow higher density projects where appropriate.

SB 902 was originally scheduled for the Senate Housing Committee hearing on March 31st, but it was postponed when the legislative session was suspended due to COVID-19. The Senate is currently set to reconvene on May 4th, although that date is subject to change. The path ahead for SB 902 and other housing bills is unclear, as the legislature will undoubtedly be focused on COVID-19 related legislation once they are back in session. Stay tuned.

Notable Upcoming Virtual Events:

  • DBI Bluebeam Applicant Training – Tuesday, April 21, 1-3pm – A two-hour virtual training of the electronic plan review process using Bluebeam Studio Projects and Sessions
  • DBI Customer Update and Q&A – Friday, April 24, 11-12pm – A discussion regarding the transition to digital permitting with Patrick O’Riordan, DBI Interim Director, and Melissa Whitehouse, Permit Center Director in the City Administrator’s Office

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

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.

 

Updated City Agency Operations and Procedures During Shelter in Place

| Thomas Tunny
City Agencies

San Francisco Boards, Commissions, and Departments have begun to adapt their operations and procedures in response to the Shelter in Place restrictions, and for land use practitioners, this means project processing activity is on the rise.

By contrast, on March 31 the Department of Public Health issued an Order that further restricted allowed construction to the following: healthcare projects directly related to addressing the COVID-19 pandemic; housing and mixed use projects that include at least 10% affordable housing (the City Attorney has interpreted this to mean on-site affordable housing); projects that provide services to vulnerable populations; projects required to maintain safety, sanitation, and habitability of residences and commercial buildings; and construction necessary to secure an existing construction site that must shut down.

The March 31 Order also extended the deadline of the Shelter in Place Order from April 6, 2020 to May 3, 2020.

Board and Commission Hearings

Board of Supervisors:  The Board of Supervisors and Board Committees continue to hold their regular meetings by videoconference.  Board and Committee agendas are being limited to urgent matters, matters subject to statutory deadlines, and matters related to essential services and COVID-19 policies.

Planning Commission:  The Planning Commission held its first hearing by videoconference yesterday, April 9.  Hearings are expected to continue on a regular weekly basis every Thursday.  Agendas for now generally are limited to projects concerning essential services and multi-unit residential projects.

Historic Preservation Commission:  The Historic Preservation Commission will begin to hold hearings by videoconference April 15.

Variance Hearings:  The Planning Department has indicated that the Zoning Administrator intends to hold the April 22 Variance hearing by videoconference, but this has not been confirmed yet.

Board of Appeals:  The Board of Appeals has canceled its April 8 and April 15 hearings.  All briefing deadlines still are in effect even if the hearing has been canceled.

Planning Department Noticing Procedures and Reinstatement of Enforcement Actions 

Planning Code Section 311 Notices Mailed Prior to the Shelter in Place Order

(‘Clock’ starts April 7, 2020) All building permit neighborhood notifications (known as “311s”) that had already been issued were placed on hold, and no new notifications were issued, as of March 17 when the Shelter in Place Order first took effect.  On April 7, the Department will resume the ‘clock’ for all neighborhood notifications that were previously issued.  If a project’s Section 311 notification period began prior to the Shelter in Place Order, the Project Sponsor must put a note on the 311 poster(s), or add an additional poster stating that the 311 notice period will be extended by the number of days such notice fell within the original Shelter in Place Order. For example, if a 311 notice started on March 1 and was set to expire on March 31, that notice would continue for another 15 days once the clock restarts on April 7. Project Sponsors should also communicate this extension to any parties that contact them regarding information about the project.

Planning Code Section 311 Notices Mailed After the Shelter in Place Order

On April 7, 2020, the Department will begin issuing new Building Permit neighborhood notifications (known as “311s”) for essential projects only.

Pre-Application Meetings Noticed Prior to the Shelter in Place Order

If a project’s Pre-Application meeting is scheduled to take place during the Shelter in Place Order, the project sponsor must post a notice at the site on the meeting date that says the meeting was canceled, but that anyone who wants to discuss the project can contact the project sponsor, along with accurate contact information during the Shelter in Place Order.  This will still allow interested parties to stay aware of a project and engage with the project sponsor going forward.

Pre-Application Meetings for Which Notice is Provided During the Shelter in Place Order

Project Sponsors should use the standard form, process, and 14-day notice period.  However, they must also include a copy of the project plans in the mailing. They must also e-mail applicable registered neighborhood organizations.  If there is no email address provided on the Department’s list, standard mail is acceptable.  No in-person meetings should be conducted during the Shelter in Place Order. The notice template should indicate a day and time period during which the Project Sponsor will be available to take phone calls from interested parties or host a video meeting.  The applicant should offer both options on the notice.

Planning Code Enforcement Notices Mailed Prior to the Shelter in Place Order

If a Notice of Violation or Notice of Penalty was issued prior to the Shelter in Place Order, any deadlines to respond to the Planning Department will be paused during the period of the Shelter in Place Order (i.e., March 17 through May 3). All such enforcement deadlines will be reinstated on May 4 and extended by the number of days that fell within the Order.

Planning Code Enforcement Notices Mailed During the Shelter in Place Order

A Notice of Violation issued during the Shelter in Place Order will not require action to abate the violation until 1) the Shelter in Place Order expires, and 2) all relevant City agencies are operating at a level necessary to abate the violation.

Department of Building Inspection (DBI) Permit Processing

For essential projects only, DBI began accepting addenda and revised plans for existing building permit applications electronically on April 1, and started working to convert some previously submitted projects from paper to digital files.  DBI is accepting and processing building permit applications where the construction addresses urgent habitability needs.

Starting April 9, applicants can submit online for the following expanded list:

  1. Completing the permit process for essential and nonessential previously submitted projects (e.g., send addenda, revisions, and requests to convert previously submitted paper plans to electronic plans)
  2. Submitting a new permit for the following:
    • Essential construction projects
    • Accessory Dwelling Units
    • Permits or scope that only need Fire plan/life safety review

DBI hopes to expand new project and permit intake to a larger universe of both essential and nonessential projects by the end of April.

 

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

Geotech Peer Review: Start Early or Face Delays

| Gillian Allen
Geotech review

At the outset of any new construction, addition, alteration or retrofit of an existing structure, the design team should identify whether the project is in soft soil and/or liquefaction zones, as defined by the California Seismic Hazard Zone Map; or in another zone requiring additional review such as the Slope Protection Zone or Maher Zone. These projects can be subject to “peer review” even when the project is designed to the prescriptive provisions of the San Francisco Building Code (SFBC). Review may include one or more of the following disciplines: Structural Engineering; Geotechnical Engineering; Site-Specific Seismic Hazard Assessment; Earthquake Ground Motion Selection and Scaling.

For a Project incorporating exceptions to the prescriptive provisions of the SFBC, the review also includes advising the plan check Supervisor whether the design aspects in the scope of the review satisfy the requirements of SFBC 2016 Section 104.11 (“Alternative materials, design and methods”) or other requirements or criteria identified in the scope of the review.

Each third party reviewer shall be selected by SFDBI based on their qualifications as applicable to the project and considering availability relative to the project schedule. SFDBI may consult with the Project Sponsor, the Engineer of Record, or others before selecting the reviewer(s), however the final selection is from a pre-approved list and is the sole discretion of SFDBI.  Thus it is critical that the engineering team schedule a pre-application meeting as early in the design process as possible specifically to discuss and identify who the Department will select as the reviewer; and for how many disciplines. 

When the process is running smoothly, contracts take two – three months to be issued so that review can begin; currently the annual budget for this program has been exceeded, thus the City finance department is experiencing an additional unanticipated delay in issuing new contracts until the City works through the process of allocating funding to the budget for this program. Although the cost is ultimately handled as a pass through to the project sponsor, the finance department is unable to issue a contract until the budget allocation (currently under review by the Union and City Attorney) is approved. 

For more in-depth details on this program and the project characteristics considered by SFDBI for determination of whether a review is required, please review AB-082 Guidelines and Procedures for Structural, Geotechnical, and Seismic Hazard Engineering Design Review; as well as AB-083 which outlines the Requirements and Guidelines for the Seismic Design of New Tall Buildings using Non-Prescriptive Seismic-Design Procedures. These administrative bulletins can be found at https://sfdbi.org/ADMINISTrATIVE-BULLETINS.

Authored by Reuben, Junius & Rose, LLP  Permit Consulting Manager, Gillian Allen

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.

Streamlining Construction Permits

| Gillian Allen

Meeting the needs of commercial projects after entitlement can be difficult when City agencies are tasked with solving a housing crisis. The Small Business Permit Streamlining Ordinance seeks to update several areas of code that affect various agency processes and may contribute to an elegant solution for commercial property owners exploring options with tenants for shared space.

The ordinance proposes to align regulation of restaurant enclosures for outdoor food service and restroom requirements with state standards; amend the Planning Code to clarify that a Type 23 liquor license may be used in conjunction with a Bar or Restaurant use;  amend the definition of a Bar to provide for consistent treatment of Type 64 liquor licenses; to reduce the distance measured for Retail Sales and Services uses in Neighborhood Commercial zoning districts to any neighborhood commercial district; to reduce the distance measured for nonconforming uses in RH (Residential, House), RM (Residential, Mixed), and RTO (Residential, Transit-Oriented) districts to any neighborhood commercial district; and importantly, to allow Limited Restaurant use as an Accessory Use which would enable more flex use spaces in neighborhoods who want to encourage and maximize a thriving local scene. For more information on this, read the legislation here:  File No. 181211.

These are times that keep the City focused on a healthy socio-economic future requiring balance between housing and the associated commercial infrastructure needed to sustain the inhabitants, pursue cultural growth and allow neighborhood flavor to emerge in partnership with neighborhood community groups questing to influence use of their local spaces.

Commercial property owners may also be interested in following the crafting of recently proposed legislation which would amend the Building Code to require the assessment of a fee within the first 30 days of vacancy for any storefront that is not tenanted regardless of whether it is offered for rent or lease; and require annual safety inspections within sixty days of the annual registration renewal and the issuance of a Notice of Violation with a penalty of four times the registration fee for failure to register within thirty days. If passed without reform, this legislation has the potential to over-burden the property owner and require them to navigate substantively bureaucratic code enforcement issues especially if their potential tenants meet with delay working through after entitlement permitting for their tenant improvements. For more information on this, read the legislation here: File No. 181213.

The Small Business Permit Streamlining Ordinance may offer some relief, but it does not provide additional staff to assist with the increased review times for commercial projects due to ADU and housing being given priority. In a City that lacks housing, prioritizing these projects without increasing staff or allocating paid overtime for in-house review can critically impact commercial alteration projects and contribute to costly and seemingly ever moving targets for start of construction.

San Francisco entitlement and permitting processes offer unique challenges to estimating project timelines. Stakeholders need to more carefully assess what to include in the initial permit set being supplied for Planning review when construction timelines, which are dependent on the after entitlement issuance of building permits, are a factor. The Planning Department can review an architectural set – best known as a “Site” permit set for entitlement; however that same permit set does not and cannot be converted to a “Full” building permit set automatically after planning review.  Filing with a design plan as a Site permit locks the project sponsor into a two-phase review process and may contribute to a property owner realizing excessive, financial impact, if the afore-mentioned vacant storefront legislation does not include a provision giving deferral for fees, enforcement and penalties while a tenant improvement is under permit review. The Land Use Committee should be encouraged to expand the vacant storefront legislation to include alternative paths for property owners who can demonstrate that a potential tenant is in process of entitlement and subsequent permitting.

While projects requiring more than an hour of review, do not qualify for over the counter processing at the building department, in house review of a full permit can cut permitting time in half and is one way design professionals and property owners can help guide a prospective tenant toward a more rapid occupancy of their buildings.

 

Authored by Reuben, Junius & Rose, LLP  Permit Consulting Manager Gillian Allen

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.