Zoning Along Van Ness Avenue Getting Attention from Planning Commission and Board of Supervisors

Two ordinances are making their way through the legislative process this month that would change the way commercial uses are regulated along Van Ness Avenue.

The first, introduced by Supervisor Alioto-Pier, would require that neighborhood notice be provided for most new entertainment uses established along Van Ness between Broadway and Golden Gate Avenue. The notice would give neighbors the opportunity to request that the Planning Commission review the proposed use before it is established. The Supervisor introduced this legislation in response to concerns surrounding “The Heights” nightclub, which she reports has generated 42 calls to the Police Department recently, including one for a gun issue. The club had opened without any notice to the neighborhood.

As originally proposed the ordinance would have required conditional use approval by the Planning Commission for all new entertainment uses. However, in response to Planning Commissioner comments and others in the arts and entertainment community, the CU requirement was removed and replaced with a less onerous process.

The second ordinance would change how commercial uses are controlled in RC districts. RC zoning is the underlying zoning district for the majority of Van Ness Avenue. The existing use controls in RC districts are a bit of a mess. Currently, uses that are principally permitted in the nearest Neighborhood Commercial (NC) district are principally permitted on the ground floor and permitted with conditional use approval on the upper floors (don’t worry, we can barely understand it either). This has led to unexpected results on the Van Ness Avenue corridor, with the Polk Street NC district as its closest neighbor. For example, because new full service restaurants are only permitted with conditional use approval in the Polk NC district, they are not permitted in most parts of the Van Ness corridor. This type of restriction simply makes no sense along a corridor that is expected to grow into its own new neighborhood in the years ahead.

Yesterday, the Planning Commission approved changes that would apply NCT-3 district controls on commercial uses in RC districts, including along Van Ness Avenue. This is a huge improvement. The NCT-3 district permits a broad array of commercial uses, and will make it much easier to establish new commercial uses along the Van Ness corridor. The ordinance will now go to the Board of Supervisors Land Use Committee on Monday.

Affordable Housing Program Amendments Expected to Pass on Tuesday

Two amendments to the city’s Affordable Housing Program are expected to be finally passed by the Board of Supervisors next Tuesday. The first, a major overhaul of the program in response to the Palmer state court decision, would largely make permanent the interim controls that have been in place since early this year. Those controls set the default option for complying with the program as the payment of an affordable housing fee, in most cases calculated based on 20% of the number of units proposed in a housing project. A project sponsor can also choose to provide for-sale below market rate units on-site or off-site, which in most cases must make up at least 15% and 20% of the total units proposed, respectively. A project sponsor can choose to provide rental below market rate units on-site or off-site only under certain circumstances, such as when the project receives public assistance or the project sponsor enters into a development agreement with the city.

The overhaul also provides some flexibility in the program so that the Planning Commission can approve future modifications to the administration of below market rate units that are unable to resell, due to current market conditions.

The second amendment to the Affordable Housing Program provides an exemption for student housing projects. If passed, the amendment would exempt qualified student housing projects from the requirement that a certain number of the new units be provided at below market rates. The amendment should pave the way for future student housing in the city, desperately needed in response to the new or expanded university campuses proposed by UCSF, San Francisco State, and UC Hastings. Thanks again to SFHAC for their leadership on this important change in law.

November Election Results Certified; Transfer Tax Increase to go into Effect

This Tuesday, the Board of Supervisors certified the local results of the November 2010 elections. The results provided no last minute surprises. However, the certification was relevant with regard to the effective dates of passed propositions, which go into effect 10 days after the Board certifies the election.

As a result, the transfer tax increase on real property sales of $5 million or more will go into effect on December 17.

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, 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.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.

Student Housing Reform Nears The Finish Line….

After being approved by the Planning Commission and the Board of Supervisors Land Use Committee, student housing reform legislation just needs a vote at the full Board and a signature by the Mayor. As we’ve reported before, the reform legislation would recognize “student housing” projects and would exempt them from the Planning Code’s affordable housing requirements. The current policy of applying affordable housing requirements on student housing projects has come under scrutiny lately, due to the fact that student housing is inherently different than traditional housing, and that student housing in many cases is already affordable, due to student financial aid and other factors.

The Housing Action Coalition has been a key force behind this important legislation. Its passage would mean that student housing would be easier to build in the city – and more affordable.

City to Develop Standards for New Medical Use Development

Last Tuesday, the Board of Supervisors passed on second reading an ordinance that seeks to guide future medical use development in the City. As has been reported in the press recently, the may become a major additional hurdle for the proposed CMPC campus. The ordinance directs the Planning Department and the Department of Public Health to develop a Health Care Services Master Plan over the next year. The plan must analyze a number of aspects of medical services in the City, including the capacity of existing health care providers, the geographical distribution of those providers and the difficulty of access to health care services from different areas of the City. The plan will also make recommendations to promote the equitable and efficient distribution of health care services in the City.

Once the Health Care Master Plan is adopted, future projects consisting of changes of use to medical use occupying at least 10,000 square feet and expansions of existing medical uses of at least 5,000 square feet would be required to file an application with the Planning Department to confirm consistency with the plan. The Planning Department would administratively issue a determination of consistency or inconsistency. If a determination of inconsistency is issued, or a determination of consistency is issued and appealed within 15 days, the Health Commission will hold an informational public hearing and the Planning Commission will hold a public hearing where it must hold a vote on whether to approve or disapprove a determination.

During the legislative process, the applicability of the consistency requirement was narrowed from all medical institutions seeking land use approvals to projects meeting the thresholds discussed above. The ordinance leaves broad discretion to the Planning Department to apply these new requirements. It is unclear at this point how much information a health care provider would need to provide in its application for consistency. In addition, it is unclear if “expansion” includes only physical expansions of existing buildings, or if it also includes an expansion of an existing health care provider to a different building in the City.

Consistency determinations will not be required until January 2, 2013 at the earliest. The Mayor still may veto the ordinance by next Monday. We’ll let you know if he does.

New Legislation Would Create Annual Energy Audit Requirement for Non-Residential Buildings

Under legislation that was introduced at the Board of Supervisors last week by the Mayor and Supervisor Bevan Dufty, non-residential buildings of at least 10,000 square feet would be required to conduct a comprehensive energy efficiency audit at least once every five years. In addition, owners of these properties would also have to file an annual report with the City’s Department of the Environment, detailing certain energy benchmark information for the past year. Under the legislation, the Department of the Environment would also be required to publish an annual report, that would include, among other things, information provided in the annual energy reports of individual buildings.

If enacted, the legislation would require buildings of greater than 50,000 square feet of non-residential use to submit their first report by October 2011, buildings with 25,000 to 49,999 square feet of non-residential use to submit their first report by April 2012, and buildings with 10,000 to 24,999 square feet of non-residential use to submit their first report by April 2013. Some buildings would be exempted from the energy audit and reporting requirements, including buildings less than five years old, buildings receiving the EPA ENERGY STAR label from the US Environmental Protection Agency and buildings that are LEED certified under the Existing Buildings Operation and Maintenance system.

The legislation is at the Land Use Committee now, and will likely not be considered before the new year. Email us if you’d like a copy of the legislation.

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, 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.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.

Well, it’s not officially over yet, as the Department of Elections has not certified the results, and the Board of Supervisors has not acknowledged the certification. But for all practical purposes, the votes have been counted and these final two extremely tight races have drawn to a close.

A couple of weeks ago, we provided you with the bios of the winners in District 6 and District 8, Jane Kim and Scott Wiener. Today, we do the same for Mark Farrell and Malia Cohen.

Mark Farrell – District 2

This race was the closest of all, with a mere 270 votes separating Janet Riley and Mark out of a total 27,989 ballots cast. That puts Mark at 50.62% of the total after just two rounds of Ranked Choice Voting, enough to be the next Supervisor for D-2.

Mark Farrell was born and raised in the City, going to school at Stuart Hall and then Saint Ignatius. After graduating from both Loyola Marymount and the University of Pennsylvania Law School, he returned to San Francisco.

Mark has been an attorney for three years, and an investment banker for five years.  As an attorney he represented pro bono clients, assisting both 501(c)(3) non-profit organizations as well as representing political asylum applicants in front of the Department of Homeland Security. As an investment banker, he founded his firm’s first internship program for inner-city high school students. He is involved with the Jordan Park Improvement Association and serves on the Board of Directors at San Francisco SAFE and Plan C. Mark also serves on the Advisory Board of the Marina Earthquake Monument.

Malia Cohen – District 10

This was by far the most wide open race, with 21 candidates participating, and 19 (yes 19…) rounds of RCV before Malia Cohen rose to the top with 52.6% of the vote. Out of more than 19,669 ballots cast, 4,173 was all Malia needed to break the 50% barrier. Such is the strangeness that is ranked choice voting. The runner up was Tony Kelly with 3761 votes.

Malia Cohen is a former member of the Corporate Strategy and Communications team for the Federal Reserve Bank of San Francisco. Currently, Malia is a Managing Partner with Power Forward Consulting, a public affairs, media and policy consulting firm. Power Forward helps businesses and nonprofits create public policy. Prior to establishing Power Forward Consulting, Malia served as Chief Legislative Aide to a member of the San Mateo County Board of Supervisors (her website does not indicate which Supervisor).  She served two years with the executive staff of San Francisco City Hall. Malia held key posts including: Executive Assistant to the Mayor, Executive Assistant to the Mayor’s Chief of Staff, and Policy Analyst for the U.S. Department of Transportation.

She has also served as Assistant Executive Director of the Hunters Point Youth Park Foundation. Recently, Malia ended a two-year term as a delegate to the California State Democratic Party Convention. She serves on the Board of Directors for Emerge CA, New Leaders Council, SF Conservation Corp and The Community Leadership Academy & Emergency Response Project.

Malia earned a Bachelor’s in Political Science, with honors from Fisk University, and was awarded a Coro Fellowship in 2001. She earned a Master of Science in Public Policy and Management from Carnegie Mellon University.

We Finally Have a Seventh Commissioner

Any concerns some Supervisors may have had over the nomination of Rodney Fong to the vacant Planning Commission seat seem to have faded before the Board of Supervisors hearing this afternoon. By a unanimous vote, the Board confirmed his nomination to the Planning Commission. Fong is expected to sit at the next Planning Commission hearing, on December 2. The Planning Commission has been operating with only 6 members since August.

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, 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.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.

Transfer Taxes Increase Again

Despite the sluggish real estate market, on November 2 the voters enacted another real estate transfer tax increase by approving Measure N. This increase was limited to transactions that involve a purchase price of $5,000,000 or more. Below is a summary of the existing and new transfer tax rates. The increases will be effective 10 days after the Board of Supervisors certifies the November election, which is expected to occur in early December 2010.

Sales price     Old rate     Current rate      New rate

< $250k            0.50%      0.50%              0.50%

$250k – $1M      0.68%       0.68%              0.68%
$1M – $5M         0.75%       0.75%              0.75%
$5M – $10M       0.75%       1.50%              2.00%
$10M+              0.75%       1.50%              2.50%

As a reminder, transfer taxes also apply to long term leases (35 years or more). There are exceptions for foreclosures and transactions that do not involve a change of beneficial ownership. Please contact Kevin Rose if you have questions about transfer taxes.

Planning Commission Nominee Fong Faces Questions, Support at Board Subcommittee

Yesterday, the Board of Supervisors Rules Committee held a public hearing on Port Commission President Rodney Fong’s nomination to fill the vacant seat on the Planning Commission. The hearing began with several minutes of questioning by Supervisor Campos. The Supervisor’s main concern was that Mr. Fong’s competence and leadership would be sorely missed on the Port Commission at a time when a number of important projects, including the possible hosting of the America’s Cup, are being implemented. Campos questioned Mr. Fong on whether his background made him a good fit for the Planning Commission. Mr. Fong responded to many of these questions by citing his experience in the real estate industry and on the Port Commission. Specifically, Mr. Fong cited his work on the Fisherman’s Wharf Public Realm plan, currently working its way through the Planning Department.

In response to a question from Mr. Campos on whether he would have to recuse himself on any cases that may be before the Planning Commission, Mr. Fong said he may only have to do so on less than “two handfuls” of cases. Local ethics law requires Planning Commissioners to recuse themselves from cases involving property within 500 feet of a property they have some economic interest in.

A number of members of the public spoke effusively in support of Mr. Fong’s nomination, including Planning Commission President Ron Miguel, Redevelopment Commission President Rick Swig, San Francisco Bicycle Coalition Acting Director Renee Rivera, San Francisco Housing Action Coalition Director Tim Colen, San Francisco Convention and Visitors Bureau President Joe D’Alessandro, and San Francisco Chamber of Commerce Senior Vice President Jim Lazarus. Port Director Monique Moyer testified that she would only be happy if Mr. Fong went to one of two places: the Planning Commission or the Board of Supervisors.

In the end, Supervisor Alioto-Pier made a motion to recommend approval of Mr. Fong’s nomination to the full Board of Supervisors. While saying he was “still open to this nomination,” Supervisor Campos was not yet ready to vote to recommend the nomination. Since there were only two members of the Committee present, Alito-Pier and Campos agreed to send Mr. Fong’s nomination to the full Board without a recommendation in support or in opposition.

Mr. Fong’s nomination is scheduled to be heard at the Board of Supervisors’ hearing next Tuesday, November 23.

Short Sale Protections Confirmed for Home Owners

A new bill signed by the Governor in September makes state law consistent with most people’s expectations when they dispose of their home by a “short sale.” A short sale occurs when a homeowner sells his or her property for less than the amount owed on the existing deed of trust, with the lender’s consent. Previously, there was no law that prevented the lender from pursuing the balance of the loan, since the lender had not initiated a foreclosure. Although such lawsuits were rare, the risk of liability remained. New Code of Civil Procedure Section 580e now specifically precludes such lawsuits by the first lender, so long as (1) the property is a dwelling of not more than four units, and (2) the lender’s written consent was given. The statute specifically reserves the lender’s right to pursue an action for fraud or waste by the borrower, and does not preclude lawsuits by secondary lenders.

Borrowers should be aware of the income tax consequences of a short sale. While most residential short sales or foreclosures are excluded from the typical state and federal income tax rules that make forgiven debt taxable, there are limitations. For example, the foreclosed property must be the taxpayer’s principle residence, the debt must be for the acquisition (not a refinance), and the dollar amount of the exclusion is limited. Qualified tax professionals should be consulted before finalizing a short sale or using a foreclosure as a business strategy.

Please contact Kevin Rose if you have questions about this amendment for short sales or any other foreclosure related matters.

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, 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.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.

More than a week after election-day, and they are still counting ballots down at City Hall. Four new supervisors will be seated in January (incumbent Carmen Chu ran unopposed and will return as District 4 Supervisor). The Board of Supervisors makes many critical land use decisions, both on major policy matters and on individual projects, which is our reason for keeping you up to date on who the future occupants of these important seats at City Hall.

Two of the Races, in District 6 and District 8 appear to be over, with both Jane Kim and Scott Wiener having large enough leads that the remaining ballots are not likely to change the outcome. The races in D2 and D10 are nail-biters. For those of you who don’t know either Ms. Kim or Mr. Wiener, below is a short bio for each to get you up to speed.

Jane Kim – District 6

Jane Kim is currently the President of the San Francisco Board of Education and a civil rights attorney at Lawyers Committee for Civil Rights of the San Francisco Bay Area. Prior to serving on the Board of Education, Jane was a fellow at The Greenlining Institute, where she developed economic development policies and advocated for increased consumer protections for communities of color. In 2001, she moved to the Chinatown Community Development Center in San Francisco, where she worked as a Senior Community Organizer. For the next six years, Jane Kim worked as a community advocate with CCDC.

In 2005, Jane was elected to serve as President of the San Francisco People’s Organization, an advocacy coalition that included over forty community organizations and labor unions working together to map a progressive agenda for San Francisco through legislating and organizing.  Jane is a co-founder and co-director of Locus Arts in the North Mission and SOMA, a performance venue that showcased over 400 local emerging artists. Jane also served on the Board of Directors for the Asian American Theater Company from 2002-2004, and helped in the fight to save the popular SOMA Filipino community arts space, Bindlestiff Studios.

Jane received her undergraduate degree from Stanford University, where she studied Political Science and Asian American Studies. She went on to receive her law degree from U.C. Berkeley School of Law, Boalt Hall. Jane is also a black belt in Tae Kwon Do, plays the electric bass guitar and continues to serve on the juror committee for Youth Speaks’ nationally recognized annual Hip-Hop Slam.

Scott Wiener – District 8

Scott has lived in San Francisco’s Castro neighborhood since 1997. He is a Deputy City Attorney in the San Francisco City Attorney’s Office where he is a litigator and represents San Francisco in court. Scott has litigated from the state and federal trial courts up to the U.S. Supreme Court and has handled numerous jury trials.
He served as President of the Eureka Valley Promotion Association, the neighborhood association for the Castro/Upper Market. He co-founded Castro Community on Patrol, a neighborhood walking patrol comprised of volunteers dedicated to making the Castro and Duboce Triangle a safer place. Scott was a member of Mayor Newsom’s citywide Community Policing Advisory Committee.

He served as chairman of the San Francisco Democratic Party and co-chaired the Alice B. Toklas Lesbian, Gay, Bisexual, Transgender (LGBT) Democratic Club. He is currently an elected member of the San Francisco Democratic County Central Committee and continues to serve on the Alice B. Toklas board of directors. He served as treasurer and then co-chair of the board of directors of the San Francisco LGBT Community Center.

He served for four years on the board of directors of Bay Area Lawyers for Individual Freedom (BALIF), which is the Bay Area’s LGBT bar association, and co-chaired the organization. He has served on the national board of directors of the Human Rights Campaign, the nation’s largest LGBT advocacy organization.

Scott was born in Philadelphia and attended college at Duke University and Harvard Law School. After law school, Scott served as a law clerk on the Supreme Court of New Jersey. Before joining the City Attorney’s Office, he spent five years as an attorney with Heller Ehrman White & McAuliffe. While at Heller Ehrman, Scott worked on pro bono matters, including representing low-income tenants facing eviction and asylum-seekers from Latina America and China.

D2 and D10….430 Votes Are The Difference

District 2 is a nail biter. After the first RCV tally on November 5, Farrell had a mere 97 votes ahead of Janet Riley out of a total 20,565 ballots cast. Putting Mark at 50.30% of the total. As of November 9 tallies, this race still looks like the closest of all, although Farrell is now pulled ahead by 214 votes.

District 10 was by far the most wide open race, with 21 candidates participating. The November 5 vote tallies needed 19 (yes 19…) rounds of RCV before Malia Cohen rose to the top with 51.34% of the vote. Out of more than 13,000 ballots cast, 2,878 was all Malia needed to break the 50% barrier. Such is the strangeness that is ranked choice voting. But according to the November 9 tallies, Cohen is holding onto her lead at 51.54% (216 votes ahead of Tony Kelly).

And finally: we thought California was tough on business….

The International Council of Shopping Centers (ICSC) reported in their November 5 weekly news letter that Voters in Florida shot down “Amendment 4” overwhelmingly on election night. The measure, which would have given the public the ability to veto local-government-approved changes to land-use plans, was opposed by ICSC, business interests and the vast majority of Florida’s 479 municipal and county governments.

Amendment 4 would have led to “frequent, chaotic elections and would slow down any local development,” Eric May, commissioner for the city of High Springs, told the press. The proposal needed to pass by a 60 percent majority to be absorbed into the state Constitution but was defeated nearly 2 to 1.

Reuben & Junius, 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.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.

New Planning Code Amendments Would Exempt Student Housing from Affordable Housing Requirements

Tomorrow, the Planning Commission will consider proposed amendments to the Planning Code that would recognize “student housing” projects and would exempt them from the Planning Code’s affordable housing requirements. Currently, all new residential projects, including student housing, containing 5 or more units must pay a fee or construct affordable units on- or off-site. However, these requirements are less justified when applied to student housing: many students receive need-based assistance from a school, government or other source that already reduces the cost of housing. In a sense, student housing is inherently affordable housing, and it accommodates students that would otherwise occupy generally-available lower-cost housing.

The amendments would create several definitions to recognize qualified student housing projects. “Qualified students” are those students receiving or eligible for need-based financial assistance. “Qualified student housing” is student housing that a post-secondary educational institution owns or holds under a master lease of at least 20 years in which at least 30% of the rooms or beds are occupied by qualified students. Qualified student housing would be exempted from the Planning Code’s affordable housing requirements so long as the project does not convert existing rental housing. Schools must also file an institutional master plan with the Planning Department making certain findings and an annual report with the Mayor’s Office of Housing.

The San Francisco Housing Action Coalition has been the driving force behind these amendments, first by identifying the issue and then working with the student housing community to draft the amendments. You can show your support for this HAC initiative at the Planning Commission hearing tomorrow at City Hall, Room 400, at 1:30 p.m.

North Beach Library Preservation Controversy Continues

Preserve or replace? Ultimately it will be the Board of Supervisors that will decide the fate of the North Beach library. And this week, we finally got to see where some of them stand on the issue. At the Board’s Land Use and Economic Development Committee on Monday, Supervisors Chiu, Maxwell and Mar all voted against making the library a city landmark. If made a landmark, it would be all but impossible to demolish and replace the library. The ordinance that would landmark the North Beach library will now go to the full Board of Supervisors with a recommendation that the Board not adopt it.

A Draft Environmental Impact Report analyzing the demolition of the existing library to be replaced with a new one has been published and will soon be heard by the Historic Preservation Commission and Planning Commission.

Update on Bus Rapid Transit Along Van Ness and Geary: Don’t Hold Your Breath

Bus Rapid Transit (BRT), a public transit system more efficient than typical busing with lower costs than rail, is currently being studied along the Van Ness Avenue and Geary Boulevard corridors. BRT dedicates one or more lanes of traffic to bus use only, making buses faster and more efficient since it is less impacted by traffic. After a number of years of studying BRT’s potential in San Francisco, draft environmental impact reports will be published in 2011 for the system along Van Ness and Geary. Staff at the San Francisco Municipal Transportation Agency reported to the agency’s Board on Tuesday that, while the completion of environmental analysis for the projects was nearing, groundbreaking is not expected to begin until 2013 for Van Ness and 2014 for Geary. And that’s only if the projects are approved by the city, an unsure bet considering the strong opposition posed by business owners along the corridors who fear construction will hurt their businesses. Add to that a funding gap of $130 -$235 million, and the outlook for BRT is pretty hazy.

For a copy of the slide show presented to the Agency Board, go to “http://mytinyurl.com/9r5zfxkjkv”.  To learn more about BRT, go to “http://mytinyurl.com/671yw8qk3v” and click on “Geary Corridor Bus Rapid Transit” or “Van Ness Avenue Bus Rapid Transit.”

Planning Code Amendments Would Increase Affordable Housing Requirements in the SoMa Youth and Family Special Use District

Another set of amendments to the Planning Code that would increase affordable housing requirements in the SoMa Youth and Family Special Use District will also be considered by the Planning Commission tomorrow. The district, generally bounded by Natoma, Langton, Harrison, and 4th Streets, was established by the Eastern Neighborhoods Plan to expand affordable housing and restrict uses to promote an environment especially favorable to children and families. Currently, residential projects which contain 5 or more units, are greater than 40 feet in height, and are not adjacent to major streets in the district are subject to the highest affordable housing requirements: 22% for on-site units and 27% for off-site units or the affordable housing fee. Elsewhere in the district, the city-wide affordable housing requirement of 15% and 20% apply.

Proposed by Supervisor Daly, the amendments would apply the heightened affordable housing requirements everywhere in the district for projects that contain 5 or more units and are taller than 40 feet. The Planning Department is recommending disapproval by the Planning Commission, citing that it is too early to adjust the balance between development and community benefits created by the Eastern Neighborhoods Plan.

Reuben & Junius, 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.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.

Scott Sanchez Named New Zoning Administrator

This week, after a months-long search, the Planning Department announced Scott Sanchez’s promotion to be the permanent zoning administrator (ZA). Mr. Sanchez had been acting ZA since June 7. Mr. Sanchez received a BA from Berkeley with a major in geography and a minor in city and regional planning and received an MSA in international relations from the Australian National University. He has been with the Planning Department since 2006. We wish Scott the best of luck in his new role at the Department.

SoMa Historic Resource Survey Results Posted

This week, the Planning Department posted on its website the results of a South of Market Historic Resource Survey that it has been conducting since 2007. The survey was conducted to analyze existing properties in the South of Market area to identify those buildings that are historic resources and would be eligible for listing on the California Register of Historical Resources. Three new historic districts were identified and the expansion of the existing South End Historic District is supported by the survey. 2,142 properties were analyzed in all.

The Planning Department is holding a community workshop on the SoMa survey on Wednesday, November 17, and the Historic Preservation Commission is currently scheduled to hold a public hearing on the survey on December 1. The survey, and its findings, will not go into effect until adopted by the Board of Supervisors. Once the survey is adopted, individual historic resources and properties that contribute to a historic district will require heightened environmental analysis for proposed alterations or demolition. Go to “somasurvey.sfplanning.org” for more information.

Park Shadow Task Force Steps into the Light

The Planning Department has announced the formation of a Park Shadow Task Force to examine the City’s codes and policies that restrict shadows cast on parks by new development. The task force is the result of an effort earlier this year by Supervisor Chiu to place a proposition on the ballot to remove all discretion the City has to approve development projects that cast any new shadows on parks under the jurisdiction of the Recreation and Parks Commission. Seeing that most downtown development, including projects considered in the Transit Center District Plan, would effectively be killed by the measure, the development and land use policy communities organized a strong opposition to putting it on the ballot. Ultimately, the measure was not placed on the ballot, and a task force was formed to discuss the issue further.

Those interested in receiving updates about future meetings of the Park Shadow Task Force should call Kevin Guy at the Planning Department at (415) 558-6163.

Governor Signs Modest CEQA Amendments into Law

In state lawmaking news, Governor Schwarzenegger recently signed into law two bills amending the state’s CEQA law. The key word here is “modest”- most of the changes tighten up language regarding tiered EIRs, mediation, expedited litigation and standing for organizations formed after a project subject to CEQA is approved. There is at least one substantive improvement though: a newly-added provision authorizes sanctions to be imposed against a CEQA litigant for bringing a frivolous claim. The Governor aptly summed up the new amendments by saying “[t]hese bills are 99 percent garbage.”

The bills, SB 1456 and AB 231, can be found at “http://www.leginfo.ca.gov/bilinfo.html”.

Impact Fee Cleanup, Transferable Development Rights Amendments Passed by Board

On Tuesday, the Board of Supervisors passed on final reading the impact fee cleanup legislation and the TDR amendments that we have discussed in several recent updates. The ordinances now go the Mayor for final approval.

Reuben & Junius, 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 leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.

Market Octavia Plan Area May Grow Soon

In late September, the Planning Commission initiated a process to amend the Planning Code that would effectively expand the boundaries of the Market Octavia area plan to include both sides of Market Street between 16th Street and 17th Street. The expanded area will also include the northwest corner of Castro Street and 17th Street and the northwest and southeast corners of Noe Street and 16th Street. Currently, the plan area extends down Market Street and ends at 16th Street.

The parcels proposed to be included within the plan area are currently the only parcels zoned within the Upper Market Street Neighborhood Commercial district in the city, and are not proposed for rezoning. Instead, the Planning Code amendments would subject these parcels to specific regulations and fees that are otherwise applicable to properties along Market Street within the Market Octavia plan area. The changes include:

• Rear yards would now be required at the ground story;
• Commercial ground floor uses would now be required;
• Parking spaces would no longer be required, but instead permitted up to a certain limit;
• New curb cuts for driveways and loading access would not be permitted along this portion of Market Street;
• Dwelling unit divisions would be restricted;
• The Market Octavia Plan Community Benefits Fee would apply to the new block (as written, the Market Octavia affordable housing fee would not apply);

The draft amendments are the outcome of a planning process that was conducted between the Planning Department and neighborhood groups. The Planning Commission will hold a public hearing on the amendments on or after November 4, where changes to the amendments can be made. For a copy of the proposed amendments, go to “http://mytinyurl.com/5294jv6mdv”.

Regulations on Historic Properties May Change Soon

In other Planning Code amendment news, the Planning Commission and Historic Preservation Commission will hold a joint hearing this Thursday to discuss proposed revisions to the articles of the Planning Code that regulate historic properties. An attempt to significantly amend Articles 10 and 11 was made soon after voters approved Prop J and created the Historic Preservation Commission. Many problems with those amendments were identified and the process stalled for a bit. Recently, a new set of amendments were proposed by the Planning Department that started with a modest set of updates that incorporate the Historic Preservation Commission’s duties and authority in place of the former Landmark Preservation Advisory Board.

The amendments must be approved by the HPC and the Planning Commission before they head to the Board of Supervisors for final consideration. The contents of the amendments are still in flux (the HPC held a hearing last Wednesday and Friday and will hold another hearing this Wednesday before the joint hearing with the Planning Commission). We will continue to update you on the progress of the amendments as their substance becomes clearer. The most recent version of the amendments can be found here: “http://mytinyurl.com/v9kb7db0ch”.

Are you Launching or Running a Small Law Firm?

The Solo and Small Firm Committee of the Bar Association of San Francisco will be holding a one-day informational seminar called “Strategies for Launching or Running a Small Law Firm” this Saturday, October 23 from 8 a.m. to 2 p.m. at 301 Battery Street. Topics include employment issues, public relations, accounting, ethics and choosing a traditional or home office. Tickets are $95 for members, $115 for non-members. 2.25 hours of MCLE credit is available, including .75 hours in legal ethics. For more information or to sign up for the event, please contact Kevin Rose in our office.

Reuben & Junius, 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 leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.

TDR Legislation Moving Forward

The Board of Supervisors Land Use and Economic Development Committee finally passed amendments to the TDR program after changes were made to the original proposal. Originally, the amendments required the proceeds of all future sales of TDRs to be first spent on the preservation, rehabilitation and ongoing maintenance of the building transferring the rights. The modified amendments require a preservation, rehabilitation and maintenance plan be submitted for approval with any application for a statement of eligibility for TDR. (A statement of eligibility officially identifying the amount of TDR available must be issued by the Planning Department before TDR may be sold.) Once a preservation/maintenance plan is approved, the property will be subject to the plan and the owner of the property must submit a status report within one year of the issuance of the statement of eligibility showing compliance with the plan.

The TDR amendments will be before the full Board in two weeks. No further modifications are expected before its final passage. Contact us for a copy of the latest version of the amendments.

Commissioner Gwyneth Borden Confirmed for a New 4 Year Term

By a unanimous vote on Tuesday, the Board of Supervisors confirmed the Mayor’s reappointment of Gwyneth Borden for a new four year term to the Planning Commission. Commissioner Borden’s term ended in July of this year and she continued to sit at the Commission during a holdover period that ended in early September. The seat has been vacant since that time, and Commissioner Borden was reseated at the Commission at yesterday’s Commission meeting. We congratulate Commissioner Borden and wish her luck in her new term. The Commission is now almost back to full strength, with 6 of 7 seats occupied. We hope nominee Rodney Fong is confirmed soon, which would complete this latest round of appointments.

Zoning Administrator Pick Expected Soon

The pool of applicants seeking to be the next permanent Zoning Administrator has been whittled down to three. It is now in the hands of Planning Director John Rahaim. We will update you as soon as this very important position has been officially filled.

North Beach Library Update: Historic Designation, Study of Demolition, Move Forward

In the continuing battle over the future of the North Beach Library, two conflicting processes are moving forward concurrently. On September 1, the Historic Preservation Commission voted 4-3 to designate the library a city landmark, which would effectively block any plan to demolish and replace the 51 year old structure. The landmark designation ordinance was introduced at the Board of Supervisors this week, which will be heard by the Land Use Committee before heading to the full board. On Wednesday and Thursday of this week, however, the HPC and Planning Commission held hearings on the Draft Environmental Impact Report being prepared that studies the demolition of the library to pave the way for construction of a new one. This fight has been brewing for over a year, and there are still no clear signs of an ultimate decision. Keep you eyes out for the landmark designation ordinance, as the fate of that will likely determine the fate of the library…and remember a new Board of Supervisors will be seated in January.

Reuben & Junius, 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 leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.

We update you this week on the results of the Board of Supervisors Land Use and Economic Development Committee’s packed hearing this past Monday:

Transferable Development Rights (TDR) Ordinance To Be Amended to Require Maintenance Plan, Remove Use of Proceeds Requirement

First up, the proposed TDR amendments that were sent back from the full Board were modified by the Land Use committee. Instead of requiring that the proceeds of all future sales of TDRs must first be spent on the preservation, rehabilitation and ongoing maintenance, the ordinance would now require a preservation, rehabilitation and maintenance plan be submitted for approval with any application for a statement of eligibility for TDR. (A statement of eligibility officially identifying the amount of TDR available must be issued by the Planning Department before TDR may be sold.) Once a preservation/maintenance plan is approved, the property will be subject to the plan and the owner of the property must submit a status report within one year of the issuance of the statement of eligibility showing compliance with the plan.

On one hand, the changes are an improvement on the original legislation, as there is no express requirement that proceeds of a TDR sale be spent on the preservation or maintenance of a building. On the other hand, the preservation/maintenance plan will almost certainly require money to be spent, and there are still no clear standards for what must be included in a plan set by the legislation.

The Old Saint Mary’s rezoning was “split” from the ordinance and was passed on first reading at the full Board hearing last Tuesday; but note that all the original language is still in that ordinance, and will be passed, and will still need to be amended later. That amendment process will continue on this coming Monday’s Land Use committee hearing, with an expectation that the good changes discussed above will be made, and that package will be before the full Board two Tuesdays from now for final votes. The process inches forward.

CEQA Reform

Early signs of opposition to the CEQA reform ordinance were present on Monday, with a handful of individuals opposing what they characterized as the “streamlining” or the “weakening” of the local CEQA environmental review process. To review, the major purpose of the CEQA reform ordinance is to establish a clear, 20 day period after Planning Department issuance of a categorical exemption or Planning Commission adoption of a negative declaration when an appeal of these documents may be filed with the Board of Supervisors. Currently, Planning Commission adoption of Environmental Impact Reports is already subject to a 20 day appeal period. While many comments were made by those attending the hearing that this would “pro-developer,” the ordinance simply balances the fairness of San Francisco’s environmental review process. Currently, categorical exemptions and are subjected to an open ended process where any one person in the city can appeal the environmental review up through all consideration and appeals of the project itself. There is no reason why appeals of environmental review documents should not be considered at the same time any appeals to a project are made. The current situation gives project opponents two bites at the apple: one on a project’s appeal, and then one on the environmental document appeal.

The ordinance was continued to October 25, to provide more time for discussion of the issue and so its sponsor, Supervisor Alioto-Pier, could be present at the hearing.

Impact Fee Clarifications

The ordinance clarifying impact fees was presented at the Land Use committee hearing, but was continued for a week to October 4, in order for amendments to be made by the Planning Department.

Commissioner Update – Borden Clears Rules Committee

Yesterday, the Rules Committe of the Board recommended reappointment of Gwyneth Borden to the Planning Commission.  This comming Tuesday, the full Board will vote on Borden’s reappointment.

Changes to Green Building Standards on the Way

In other news, San Francisco is preparing to adopt new green building regulations as part of the larger process of adopting the 2010 California Building Code. Legislation to do so was introduced at the Board of Supervisors a few weeks ago, and will soon be heard by the Land Use committee. It is expected that building types currently covered by San Francisco’s existing green building regulations will not see much of a change in the new regulations; however, those building types and projects not currently covered by the San Francisco-specific rules will likely be covered by the State’s new CalGreen green building code, which will become effective on January 1, 2011. We will take a closer look at the details in an upcoming update as the regulations make their way through the Board of Supervisors.

For those looking to understand the differences between CalGreen and the other green building rating systems used in San Francisco’s code, which are LEED and Build It Green, a detailed comparison of the codes was just released and is available at the USGBC-NCC’s website: “http://mytinyurl.com/qt6qgh5t1c.”

Reuben & Junius, 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 leases, purchase and sale agreements, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Copyright 2010 Reuben & Junius, LLP. All rights reserved.