On June 18, 2009, San Francisco Planning Commission approved a resolution supporting an overhaul of the Planning Department’s Discretionary Review (“DR”) procedures. The DR process essentially allows any person to “appeal” a project to the Planning Commission while the building permit is still at the Planning Department for review (i.e. before the permit is even issued). Many building permits in residential and neighborhood commercial districts are subject to DR, even if the proposal is small (i.e. a small addition to the rear of a home) and code compliant. The current DR process has been found by many to result in arbitrary and inconsistent outcomes, and many property owners feel the process is regularly abused. DRs also take significant amount of time at each Commission meeting, time that could be used by the Commission on policy-related matters and other projects with greater City-wide impacts.
The new resolution will result in some minor changes that are effective immediately. More importantly, the resolution recommends that the Board of Supervisors (“BOS”) approve legislation that would result in more significant amendments to the current DR process. The DR reform, as currently proposed, is an encouraging attempt to improve the DR process for all parties. The BOS is expected to hear the item within the next 2-3 months.
Improved Consistency and Efficiency
Defined DR Standard: The Planning Commission’s proposal creates, for the first time, a definition for “exceptional and extraordinary circumstances” that must exist before the Planning Commission can take DR and disapprove or modify a project. The definition proposed by Department staff and approved by the Commission is as follows: “Exceptional and extraordinary circumstances occur where the standard application of adopted design standards to a project does not enhance or conserve neighborhood character, or balance the right to develop the property with impacts on nearby properties or occupants. These circumstances may arise due to complex topography, irregular lot configuration, unusual context, or other conditions not addressed in the design standards.”
Elimination of Automatic DR hearings before the Commission: As of today, all DR applications are entitled to a hearing and a decision by the Planning Commission. With the proposed legislative changes, if adopted by the BOS, after a DR application is filed, an internal Planning Department Residential Design Team (“RDT”) would review the project and determine whether the DR application would meet the “exceptional and extraordinary circumstances” threshold. If the RDT determines that the DR application presents exceptional and extraordinary circumstances, a hearing before the Commission would be scheduled. However, if in the RDT’s judgment the standard is not met, there will be no PC hearing, although the DR applicant could appeal the RDT determination to the Board of Appeals.
Establishment of DR Process Schedule: The DR reform creates deadlines for the processing of a DR application to minimize delays caused by DR filings. First, the RDT must act within 30 days of the filing of a DR application. Second, within 2 weeks thereafter, the RDT must provide the DR applicant a letter indicating whether or not the application meets the exceptional and extraordinary circumstance standard and whether a Commission hearing is warranted. If the RDT determines that a hearing before the Commission is appropriate, the hearing must occur within 90 days of the DR filing (including any continuances).
Improvement of Department’s Internal Review Process: At the heart of the DR reform, the Department has committed to several procedural changes to insure uniform application of the regulations and guidelines to all DR cases. Among these measures, the RDT will use a uniform “checklist” to determine whether exceptional and extraordinary circumstances exist. Generally speaking, if a project conforms with design and code standards, there would be no exceptional or extraordinary circumstances present.
Phased Implementation
The proposed DR reform would be implemented in three distinct phases. The first, interim, phase became effective immediately and remains in place until the BOS approves the proposed legislative changes. During this interim period, each DR application will continue to be heard by the Commission. However, before the Commission will hear a DR case, the RDT will have evaluated and processed each application pursuant to the procedures proposed in the DR reform, and the Department’s staff report to the Commission will include a section indicating whether the DR would meet the newly-defined exceptional or extraordinary circumstance standard. The Department staff will also start using a standardized DR packet, will focus on improving its internal review policies in line with the proposed changes, will adhere to the DR processing schedules, will start using Commission decisions as precedent setting, and will track all RDT decisions against the Commission decisions to ensure consistency.
Phase I of the DR reform would commence after the legislative changes have been approved by the BOS (estimated to occur approximately in September 2009), and will consist of a 24-month period. Phase I will incorporate all changes from the interim period. In addition and most significantly, Phase I eliminates automatic Commission hearings so that only those DR applications that, in the RDT’s judgment, meet the “exceptional and extraordinary circumstances” standard will be scheduled for a hearing before the Commission.
Phase II of the DR reform consists of additional changes that have not yet been finalized. As currently proposed, at the conclusion of the 24-month Phase I, the Planning Commission would provide the BOS with a report indicating findings from Phase I, and the BOS could either do nothing (in which case Phase I would continue), or could elect to modify or eliminate the program. Phase II will be elaborated at a later time based on findings from Phase I, however, it could include delegation of the DR hearing authority to a Hearing Officer instead of the Commission, codification of the DR process, and adoption of a policy to require story poles on certain projects that propose an addition. We will keep you posted on the status of DR reform as events warrant.
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.
