Residential Builders Face New Permitting Hurdles

City residents who live in Mixed Use (Commercial – Residential) Zoning Districts have long battled music venues, night clubs and other places of entertainment (“POE”) over noise issues, which are currently regulated primarily by a noise limitation in the Police Code.  Under existing law, neither the Building Code nor the Planning Code specifically addresses conflicts related to noise between POEs and nearby residents.

The Board of Supervisors has stepped in on behalf of the POEs by adopting an ordinance which amends the Building, Administrative, Planning, and Police Codes to protect the POEs against complaints by residential neighbors.

The Ordinance, adopted by the full Board on May 12, 2015, found that POEs are a major source of employment, economic activity, and tax revenue for San Francisco, and would benefit from protection against noise and nuisance complaints.  Subsequent amendments during the Board hearings expanded the reach of the Ordinance to additional noise producing uses and areas of the City.

New residential construction in proximity to noise producing areas, including night time entertainment venues, industrial areas, highways, and rapid transit lines, where noise levels exceed 60 decibels, must be designed to prevent the intrusion of exterior noises beyond levels prescribed by the Municipal Code.  Proper design to accomplish this includes appropriate orientation of the residential structure, setbacks, shielding, and sound insulation of the building such that habitable rooms shall be subject to a maximum day – night average of 45 decibels.  All residential structures in noise producing areas shall require an acoustical analysis showing that the proposed design will limit exterior noise intrusion to the prescribed level.  The Planning Department will produce a map of noise producing areas of the City where the Ordinance will apply, in addition to POE areas.

The Ordinance directs the Planning Commission and Planning Department to take all reasonably available means through the City’s design review and approval processes to ensure that the design of new residential buildings takes into account the needs and interests of both the POEs and the future residents.

Significantly, no POE establishment that has held a permit to operate as a place of entertainment within 300 feet of a building for which construction or conversion for residential use was completed on or after January 1, 2005, shall be or become a public or private nuisance on the basis of noise disturbance for a resident of that building, if the place of entertainment operates in compliance with the municipal code and the terms of its permits.  This section of the Ordinance is an effort to prevent lawsuits against places of entertainment based on neighbor complaints of excessive noise.

Residential builders seeking entitlements for new projects in close proximity to POEs shall be required to notify the Entertainment Commission of its intent to submit such application and provide materials describing the proposed project.  The Entertainment Commission shall determine whether to hold a public hearing on noise issues related to the proposed project and any POE within 300 feet of the proposed project.  The project sponsor will be required to attend a public hearing at the Entertainment Commission and present evidence regarding current noise in the area of the proposed project, including an acoustical analysis; the project’s proposed noise attenuation features; the projected level of interior noise for residential units in the project; and the project sponsor’s engagement or plans for engagement with the POEs.  The Entertainment Commission shall provide written comments and recommendations pertaining to noise issues related to the proposed project to the Planning Department and the Department of Building Inspection for their consideration during the permit process.

Sellers and Landlords of residential property within noise producing areas shall be required to provide a disclosure notice in a prescribed form to all potential purchasers and tenants.  The disclosure includes the following statement:  “If you live near a place of entertainment, you should be prepared to accept such inconveniences or discomforts as a normal and necessary aspect of living in a neighborhood with mixed commercial and residential uses.”  For the full text of the required disclosure, please see Board of Supervisors Ordinance No. 141298.

At the time a residential project is approved, a Notice of Special Restrictions must be recorded with the Assessor – Recorder that states all of the restrictions that are included in the required disclosure, and any other conditions that the Planning Commission or Planning Department places on the property.

The Ordinance will apply to all projects for which a building permit has not been issued, or in the case of a site permit, for which a first addendum has not been issued.  The Ordinance, which passed by a unanimous vote of the Board of Supervisors, will now proceed to the Mayor for signature. 

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.