The Eastern Neighborhoods Legitimization Program adopted by the Board of Supervisors in December 2008 required applications for legitimization to be submitted to the Planning Department no later than January 19, 2011. Proposed legislation is in the works to potentially extend the period for filing applications for an additional period of time, the length of which is yet to be determined. If such legislation is adopted, owners of property in the Eastern Neighborhoods who missed the original filing deadline would have another opportunity to participate in the program. We are hearing the program would be extended anywhere from three to six months.
Our office has successfully obtained permits to legitimize office uses in the Eastern Neighborhoods plan area that would not be permitted under the current zoning.
Generally, to be eligible for this program, a use to be legitimized must have been a permitted use under the old zoning (pre-April 17, 2008) when it was established and either:
- regularly operating on a continuous basis in the same location from at least January 19, 2007 to the present, or
- regularly operating on a continuous basis in the same location from at least April 17, 2008 to the present, and be associated with a business or enterprise which was also in the same location prior to January 19, 2007.
Up to a year of vacancy during this period will not disqualify the building or space from legitimization, so long as the building owner can provide evidence that the space was marketed for new tenants during that time. The Zoning Administrator makes the call on whether a property is eligible to participate in the program. If the legitimization application is accepted and approved, all current development fees must be paid as if the property was first entitled today (minus any housing and transit fees that were paid when the current use was established). The use would then become a legal non-conforming use within the new zoning district, and is for the most part allowed to continue indefinitely.
Based on our experience, the two scenarios that are the most likely to benefit from the legitimization program are:
(1) Buildings in former industrial districts (M) that are now zoned Production, Distribution and Repair (PDR); and
(2) Buildings originally permitted for non-office uses that now more closely resemble office uses.
We have spent many hours analyzing the legitimization program and discussing its implementation with Planning Department’s staff. We are available to determine your eligibility for the program and to guide you through the process if you could benefit from it. Please contact David Silverman if you would like to talk about whether this program may be right for you.
We will keep you posted as the proposed extension of time for filing legitimization applications proceeds through the legislative process.
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.
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