In January the Board of Supervisors passed interim zoning controls for parcels in RC, RM, and RTO (excluding RTO-M) zoning districts. The controls require Conditional Use Authorization (“CU”) for most new construction or alterations that do not maximize residential density. Sponsored by Supervisor Peskin, the interim zoning controls became effective on January 21st and are in place for 18 months, until July 2022. They apply to all projects—even ones currently under review by the Planning Commission—where a final site or building permit has not been issued (i.e., any project currently on file with the City).
The controls aim to disincentivize low-density projects, restrict the construction of large residences, and prevent the loss or conversion of rent-stabilized housing units. The zoning districts cited allow for a higher density (i.e., more units at a smaller size), but often are developed with larger units that are more suitable to higher-income families (i.e., less units at larger sizes).
The controls apply to any (i) new construction of a residential building or (ii) a proposed alteration that would result in the expansion of the building. A CU from the Planning Commission will be required if the residential building does not maximize the principally permitted residential density while meeting minimum unit size requirements. The following minimum unit sizes must be used in density studies under the interim controls: 450 sf for 1-bedrooms, 700 sf for 2-bedrooms, 900 sf for 3-bedrooms, and 1,100 sf for 4-bedroom units.
There are exceptions to the Conditional Use requirement where site constraints prevent a project from maximizing density or for certain minor expansions. To fall under the site constraints exception, a project must meet the following criteria:
- Existing lot conditions or form-based restrictions on development (e.g., height, bulk, rear yard requirements) prevent a project from maximizing density without seeking a variance or subdividing units (while adhering to the minimum unit sizes in the Planning Code);
- The proposed project increases density on a subject lot; and
- No unit is greater than 2,000 square feet in size.
Expansions of existing residential buildings are permitted without a CU if the proposed expansion is 25% or less of the existing residential building and:
- Does not increase the size of any units that is already larger than 2,000 square feet in size;
- Does not create a new unit larger than 2,000 square feet, or
- Cause an existing unit less than 2,000 square feet in size to exceed 2,000 square feet.
It is unclear how many projects the interim zoning controls will impact, or whether it will result in changes to proposed development. Until the Planning Department or Planning Commission adopt clear guidelines for implementing the controls, including standards for density studies, the impact of the interim zoning controls remains uncertain. Reuben, Junius & Rose LLP will continue to monitor the implementation of the interim controls.
Authored by Reuben, Junius & Rose, LLP Attorney Tara Sullivan.
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.