Today the Planning Commission took up consideration of a policy related to the life of Planning Commission approvals. This has been an evolving area of San Francisco Planning policy over the last decade. While certainty surrounding the subject has generally improved over the years, there are still several areas where standardized Planning Commission motion language is confusing or conflicting. New proposed Planning Commission conditions relating to entitlement validity, expiration and renewal should improve clarity going forward. New performance conditions for future projects may also include a “law of the day” provision that would require the project to comply with all provisions of the Planning Code in place at the time the building or site permit for the approved project is issued. Finally, the proposed new policy includes a “stimulus program” that may help a number of projects delayed by the recession move forward more quickly.
We believe that the stimulus program may in fact provide some relief to a group of projects approved in the last eight years where building permits have not yet been issued and have either gone past their performance requirement or are in danger of doing so shortly. As for the new performance conditions, it will add some clarity to the status of entitlement following commission approval, but will not dramatically change the existing system. Projects will still be allowed to seek extensions from the Commission when they get near or past the three year entitlement performance period. Finally, the law of the day policy is one that should be looked at more closely in the future, possibly through legislation, so that the City can come up with a more formalized and certain vesting program that will give developers and property owners more certainty with respect to what rules apply when.
Past Projects ‘Opt-in’ Stimulus Program: Projects authorized in the last eight years will be able to ‘opt-in’ to the stimulus program. Enrolled projects’ authorizations would not need further extensions or consideration by the Planning before issuance of a building permit, on the condition that the sponsor secures a site or building permit within 18 months. These projects would have to comply with the “law of the day” policy described below.
Future Projects: Three-year implementation time frame. If period expires, sponsor can apply for extension. If sponsor declines, Planning Commission must hold public hearing to consider revocation of authorization.
Law of the Day: The sponsor would have to conform to all provisions of the Planning Code in effect at time of approval of the site or building permit.
The Commission is scheduled to have a second hearing, and possibly take action, at their April 4, 2013 meeting.
Approved But “Expired” Entitlements – The Opt-In Stimulus Program
The proposed policy opens a 60 day window during which projects approved between April 4, 2005, and October 4, 2011, but which have not yet received a building or site permit, would have an opportunity to ‘opt in’ for an extension. These projects would not need to seek a separate extension for re-approval or extension. The extension is conditional on the sponsor receiving a site or building permit no later than October 4, 2013 (18 months after the Resolution) and would have to comply with the law of the day.
Projects that do not receive a building or site permit within the 18-month period shall apply for an amended or a new authorization. If the sponsor chooses not to file such an application, the Commission shall hold a public hearing to consider revocation or extension of the authorization. Projects that choose not to enroll in the program will need to seek new authorization or extension from the Planning Commission on an individual basis.
The ‘opt-in’ program will only be available to projects that have not already received extensions of performance time periods, do not involve any wireless telecommunication facilities, and have an estimated construction cost of no less than $500,000.
Clarifying Performance Conditions For Future Projects
The new draft ordinance proposes to keep the three-year implementation policy and requires a project sponsor, where the three-year period has expired, to seek renewal of the authorization by filing an amendment or a new application with the Commission. If the project sponsor declines to file or withdraw the project, the Commission will hold a public hearing to consider revocation or extension of the approval.
These new policies would only apply to Conditional Use Authorizations, Downtown Project Authorizations, and Eastern Neighborhoods Large Projects Authorizations; they would not apply to Prop M controlled office projects or tower projects in Rincon Hill.
Re: “Law of the day”
Both proposed new policies would implement the “law of the day” rule. As such, a site or building permit would not be signed off on by the Planning Department unless the project complies with all provisions of the Planning Code in effect at the time of approval, regardless of whether such provisions were in effect at the time of the original authorization.
A special thanks to our law clerk Vadim Sidelnikov, who assisted in preparation of this update.
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.