In last week’s update, Daniel Frattin described the new preliminary project application (“PPA”) process and described what many believe is a fundamental problem with the new system: it simply adds more process without solving underlying problems. There is no question that most people that deal with the Planning process on a regular basis would agree that the Planning process in San Francisco (a) is too complex; (b) takes too long; and (c) is too uncertain. And of course all these factors add to the unfortunate reality that the process is too costly. It is possible that establishing the PPA process will make things more time consuming and more costly. However, there is a chance that the process will actually help. Following last week’s update, several of our readers commented both in agreement with Mr. Frattin, as well as in support of the PPA process. Today we look at some possible benefits.
The Planning process in San Francisco is very complex. Over the past decade, the Planning Code has grown substantially as an extremely active Board of Supervisors, and well-organized neighborhood groups and constituencies have driven forward all manner of new regulations. A new Charter commission has also been created (the Historic Preservation Commission). Today, the Planning Code consists of three volumes and is more than 2,000 pages. When any land use project, large or small, comes forward, it must clear this thicket of rules prior to getting building permits. Providing answers to questions from owners and developers about how the Code is applied, and how it will be interpreted given specific facts, is what many of the Planning Department staff do on a daily basis. But up until now, there really hasn’t been a formal process for planners to bring that expertise to bear by providing reliable and early advice.
For many years the Planning Department has relied on two basic processes to review projects and answer questions posed by owners and developers: the project review meeting, and the Zoning Administrator Determination Letter.
The Project Review Meeting…Past Its Prime
The project review meeting has been a mainstay of the Department for many years. A short application is filled out, a fee is paid, and an appointment made with the planners. At the project review meeting, the property owner or developer gets about an hour of face-time from two or more planners to discuss a project, ask questions and generally try to suss-out all of the major and many of the minor questions or challenges of the project. These meetings can be helpful. However, as the complexity of the Code has grown, fewer and fewer easy or reliable answers come out of these meetings. The best an owner or developer can get these days is general buy-in on the most basic zoning provisions, and then typically ends up with a “we’ll have to get back to you” message from the planners. This is again not surprising and by no means a knock on the planners: the Code is extremely complex as are the Planning Department’s policies in implementing them. It is simply impossible for a small group of planners to sit down, take a quick look at a project and give reliable, detailed and nuanced advice. So the project review meeting can only go so far. There is also no formalized process for follow up questions; it is left to the individuals on both sides after the meeting to try and get issues resolved informally, if at all. But often, the owner/developer is left with having to file an application to get any further attention from the staff and start dealing with issues directly.
The PPA tries to do what the project review meeting can’t do: provide reliable written comments from all divisions of the Planning Department and direction on a specific project after the staff has had time to review the proposal in detail. The project review meeting by design doesn’t result in any written direction from the staff. Often owner/developers follow up meetings with “minutes” they prepare to memorialize what was discussed, but because the meetings don’t ever result in final decisions, these documents are not very valuable going forward. The PPA letter could be a significant step forward. By creating a formalized process where the Planning Department takes a longer time to mull things over (60-days is a long time in the life span of a developer and a project…), the PPA letter should be able to provide clear direction and certainty for a project’s entire entitlement process where none existed before.
The ZA Written Determination – Perfect Tool For Narrow Code Questions
Another less used but important tool of the Planning Department is the Zoning Administrator Determination Letter. Planning Code Section 307(a) provides that the “Zoning Administrator shall respond to all written requests for determination regarding the classification of uses and the interpretation and applicability of the provisions of this Code.” This can be an extremely important tool in complex situations. However, it is a bit cumbersome in that it requires the owner/developer to prepare a detailed written request posing a question to the Zoning Administrator, which the ZA ultimately answers in the form of a letter. Three important things to keep in mind about the determination letter: first, it acts as kind of a precedent, is made available to the public, and therefore requires careful consideration by the Zoning Administrator and the staff before coming to any final conclusions. This can take time. Equally as important and cumbersome is that the letters are appealable to the Board of Appeals. This can pose a serious problem for a developer of a controversial project, as he is put in a position of choosing between the need for clear answers from the Zoning Administrator, and the risk of the answers themselves becoming a controversial issue and opening up an entire new front of process and complication. The determination letters also deal primarily with code issues, not Department policy or CEQA review, so they are not used to get design feedback or other non-technical project related answers.
The PPA process should provide the staff with the opportunity to answer any unclear code questions without having to initiate an entire appeal process. This brings us back to the question raised last week by Mr. Frattin: will someone try and appeal a PPA letter they don’t like? Maybe, but there should be a clear distinction between a letter that comments on a broad variety of project related issues and gives process guidance, and a narrowly crafted ZA letter designed to answer a specific code question presented by a property owner or developer. The ZA letter will still be available to resolve any specific Code interpretation issues early in the entitlement process.
Conclusion
The project review meeting and the Zoning Administrator Determination Letter will continue to have their respective places and functions as part of the new PPA process. However, neither provides a thorough overview of the entitlements a project will need, the issues likely to come up on the way, or the procedures that will apply. The project review meeting provides general verbal advice, but is informal and typically does not result in clear answers to complex questions. On the other hand, the ZA Determination gives specific advice about narrow Code questions, but generally does not give comprehensive guidance or address questions related to environmental review. The new PPA process offers at least the hope of an owner or developer getting useful, reliable, and comprehensive advice from the Department at the front end of a project proposal. Though this will not solve every problem sponsors face, it is at least a good start.
SFHAC Hosts Fifth Annual Housing Summit May 4
Well folks, it’s that time of year again. The San Francisco Housing Action Coalition is holding its annual housing summit, on Wednesday, May 4 from 7:30 a.m. to 10 a.m. at the PG&E Auditorium at 77 Beale Street in San Francisco. This year’s topic: “After the Fall: Stimulating New Housing Production.”
For more information on the event, go to http://sfhac.org/events or contact Julia Sullivan at Julia@sfhac.org or (415) 541-9001.
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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