Proposition H and New Processing for ADUs

Save Our Small Businesses Initiative

Proposition H Adopted by Voters

Proposition H was adopted by the voters at this November’s election.  Titled, “Save Our Small Businesses Initiative”, the initiative ordinance gives existing businesses more flexibility in their operations and speeds approvals for new businesses in the City’s Neighborhood Commercial (“NC”) Zoning Districts.  The initiative reduces the approval requirement for many uses from a conditional use authorization from the Planning Commission to an over-the-counter administrative approval.  Restrictions on office uses are relaxed.  The initiative eliminates neighborhood notification for changes to a principally permitted use and provides existing businesses with greater flexibility to adapt their operations in response to the COVID-19 pandemic and shifting retail landscape.  The initiative calls upon the City to streamline the approval for small businesses to 30 days.

In particular, the initiative provides as follows:

Neighborhood Notification

  • Eliminates neighborhood notification for new principally permitted uses in Neighborhood Commercial Districts, for Limited Commercial Uses, and for Limited Corner Commercial Uses. These change of use permits can now be approved over-the-counter.

Permitted Uses

  • In all NC Districts except for the Mission Street NC, 24th Street-Mission NC, and SOMA NC, more principally permitted and conditionally permitted uses are now allowed:
    • Non-Retail Sales and Services (e.g., office uses) are principally permitted on upper floors and permitted with a conditional use authorization on the ground floor.
    • General Entertainment, Movie Theaters, Community Facilities, Restaurants, Limited Restaurants, Animal Hospitals, and Retail Professional Services (e.g., realtors, accountants, insurance agents) are now principally permitted where currently permitted with a conditional use authorization, and conditionally permitted where currently not permitted. Restaurant controls were not changed in the North Beach Special Use District, where a conditional use authorization is required and any new restaurant may only occupy a space where the last use was a restaurant.
    • Arts Activities and Social Service or Philanthropic Facilities are now principally permitted on all floors.
    • Formula retail controls (conditional use authorization required) were not changed by the initiative.

Approval Process

  • Requires the creation of a streamlined review and inspection process for principally permitted storefront uses in NC Districts with a target approval in 30 days or less. The City is in the process of implementing these new procedures;
  • Requires that in cases of City error, permits to remedy that error be prioritized and have fees waived;
  • Establishes policy to allow restaurant table service within parklets in addition to the existing use of parklets by any member of the public; and
  • Locks-in the initiative’s provisions for 3 years from passage, except to further relax restrictions.

Processing ADU Applications Moves to Planning

In an effort to ease the administrative burden on DBI and hasten the approval of ADUs, the City has shifted the intake and processing of ADU applications from DBI to the Planning Department.  This includes new applications for ADUs and work related to ADU construction, such as expansions required for an ADU, excavations required for an ADU, new construction for a detached ADU, and interior remodel work to create independent access to the ADU.

Applications consist of the standard Planning Department Project Application, the ADU checklist form, the ADU screening form, a fixture count form for the PUC, and a pdf of the project plans.  Applications are submitted online at a new, easy-to-use website just for ADUs.  The application can be a full building permit or a site permit with addenda.

Once the application is submitted, Planning will send the applicant a confirmation email with the planning application number.  Planning’s Property Information Map (PIM) will provide updates about the application.  It will take one day for the record to appear in the PIM.  A planner will email the applicant about next steps within 14 business days.  The application still will be routed as before to other City agencies having jurisdiction over the proposed work for review, including DBI.

Once the permit is approved, Planning will coordinate with the applicant to verify their licensed contractor information and pay the fees.  Planning will email the job card to start construction.

For questions or assistance, email the Planning Department.

 

 

Authored by Reuben, Junius & Rose, LLP Attorney Thomas P. Tunny.

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.

California Increases Density Bonus to 50%

density bonus

Starting in 2021, residential projects in California with on-site affordable housing can get a density bonus of up to 50%.  Currently, under Government Code Section 65915—commonly known as the Density Bonus Law—the maximum bonus is 35%.  It is available for projects that include 11% very low income below market rate (“BMR”) units, 20% low income BMRs, or 40% moderate income BMRs.  Under a new law that flew somewhat under the radar during the last legislative session in Sacramento, a 50% bonus is available with increased affordability.  Specifically, 15% very low income, 24% low income, or 44% moderate income allow the full 50% bonus.

The new state law, AB 2345, requires cities and counties to comply even if they have not yet updated local implementing ordinances.  This means starting January 1, 2021, all jurisdictions in California are required to process projects proposing up to 50% additional density as long as those projects provide the additional BMRs in the “base” portion of the project, unless the locality already allows a bonus above 35%.

AB 2345 also lowered the BMR thresholds for concessions and incentives for projects with low income BMRs.  For background, in addition to waivers from development controls that preclude a project from achieving the density bonus it is guaranteed (with some narrow exceptions) in exchange for on-site BMRs, the Density Bonus Law allows sponsors to ask for “concessions and incentives” from zoning and development regulations that would make the project more expensive to construct.  Starting in 2021, projects with 17% low income BMRs can qualify for two concessions or incentives, and projects with 24% low income BMRs can qualify for three.

Finally, density bonus projects within one-half mile of a major transit stop and with direct access to the stop may be able to avoid minimum parking requirements.

All-Electric New Construction in San Francisco Starting in June 2021

On Tuesday, the San Francisco Board of Supervisors passed a law mandating new construction projects be all-electric.  The building or project will need to use a permanent supply of electricity as the source of energy for all space conditioning including heating and cooling, water heating, pools and spas, cooking appliances, and clothes drying appliances.  Gas or propane piping systems are not permitted from the point of delivery at the gas meter.

The all-electric requirement takes effect on June 1, 2021.  Starting then, all new building or site permit applications will need to comply.  Sponsors should keep in mind there is currently a multi-month delay to file permits at the Department of Building Inspection (“DBI”), and should not wait until the last minute to get their building or site permits on file.

There are two minor exceptions.  If it would be physically or technically infeasible to construct an all-electric building, DBI can grant modifications, but only to those portions of the building where infeasibility can be demonstrated, and the alternative design provides equivalent health, safety, and fire protection.  Importantly, financial considerations cannot be used to show infeasibility.

Also, a restaurant is allowed to have gas facilities used exclusively for cooking equipment.  For permits filed through December 31, 2021, permits identifying a restaurant use will be allowed to have gas facilities.  After 2021, the exception is narrowed and DBI has to determine that the gas system is necessary for the specific restaurant using the space.  Identifying a specific restaurant tenant that early in the process will likely be a challenge for many new construction projects.

 

Authored by Reuben, Junius & Rose, LLP Attorney Mark Loper.

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.

DBI Changes to Permit Submittals and Process

online permits

The Department of Building Inspection (DBI) and the Permit Center are temporarily limiting the types of permits that may be submitted online through the digital permit submission process to new 100% affordable housing projects, new permits for Development Agreement projects, and addenda and revisions for already submitted digital in-house review permits.

They are working to retool the digital system and make workflow and process improvements to increase efficiency and integrate the system with DBI’s Permit Tracking System (PTS).  Trades permits will still be offered online—see details below.

While they are improving the digital permitting system, DBI will continue to offer limited in-person services for paper applications and will continue to process digital permit applications that have already been submitted online.  If you submitted a permit application online, you will remain in the queue for permit processing or be asked to resubmit your permit application in paper.  Below are details on how they are handling specific permits.

Over-the-Counter Permits

Starting on Monday, August 17, 2020, DBI will no longer offer online permit submission for Over-the-Counter (OTC) projects.  All OTC projects will be processed in paper.  Below is a breakdown of how to submit in accordance with the type of project:

  • OTC without plans: Starting August 17, 2020, they will no longer accept online permit applications for OTC without plans permits.  Customers can register through Eventbrite for drop-in permit services Monday through Friday from 7:30 a.m. to 9:30 a.m.  DBI currently offers 40 tickets per day for customers to drop in to get an OTC permit without plans.  This service is limited to two permits per customer per day.
  • OTC with plans previously submitted online: Starting August 17, 2020, DBI will no longer accept online permit applications for OTC with plans permits.  Many customers have already applied online for an OTC permit with plans.  If you applied online for an OTC with plans permit, the Permit Center will contact you next week to offer you an appointment to submit your permit application in paper.  Appointments to drop off OTC with plans permit applications in paper are scheduled Monday through Friday from 9:30 a.m. and 3:30 p.m.  This service is limited to two permits per customer per appointment.
  • Submitting new OTC with plans: If you have a new permit application for an OTC with plans permit, you will have the opportunity to make an appointment to drop off your permit application.  Calendar the appointment here.

In-House Review Permits

Larger and more complicated projects that are not eligible for OTC review are brought in house for review.

  • If you previously submitted an in-house review permit application online, you will remain in the queue for permit processing.
  • New 100% affordable housing projects, new permits for Development Agreement projects, and addenda and revisions for existing digital in-house permits can be submitted online here.
  • Commercial projects: If you have a new permit application for an in-house review project, please email dbicustomerservice@sfgov.org with the following information about your project:
    1. Contact Information (applicant name, phone number and email)
    2. Property Address (block and lot or Assessor’s Parcel Number)
    3. Short description of the scope of work

DBI will contact customers to begin the pre-screening process in the order received.  Note that DBI has received a large number of in-house review permit applications, so the queue for this is several weeks.

Fire-Only Permits

Starting August 17, 2020, DBI will no longer accept online permit applications for OTC fire-only permits.  If you are applying for a permit that requires Fire Department review only, you can drop off your fire-only permit application (Form 3 or 8) Monday through Friday from 7:30 a.m. to 9:30 a.m.  Customers can register through Eventbrite for fire-only permit drop-off.  SFFD/DBI currently offer 40 tickets per day for customers to drop in to get an OTC permit without plans or to drop off a fire-only permit application.

  • Fire-Only Permits previously submitted on-line: If you submitted online for a fire-only permit prior to August 17, 2020, the Permit Center should have contacted you to offer you an appointment to submit your permit application in paper.

Other Emergency Projects

DBI will continue to accept permit applications for emergency projects.  Examples of emergency projects include damage to a building from a fire or flooding, compromised gas lines or sewers, foundation or structural issues or other serious issues affecting the habitability of a building.  If the permit you’re filing is in response to an emergency event at your property, please contact DBI at dbi.emergencyresponse@sfgov.org for assistance.

Permit Pick-Up and Issuance

Customers can drop in between 9:30 a.m. and 3:30 p.m. to pick up permits after DBI contacts you that your permit is ready for pick-up.  To complete the permit issuance process, payment is required and can be made online or you can forward a check to DBI.  When your permit is ready for issuance, you will receive an email invoice with information on how to pay online.  If you have questions or need help, please contact dbicustomerservice@sfgov.org for assistance.

Trades Permits

Trades permits (electrical, plumbing, mechanical and boiler-to-operate) are offered online using a contractor account or by emailing dbi.iprrequest@sfgov.org and are not available during drop-in times.

  • If you have a DBI contractor account online, visit here to start the online permit process.
  • If you don’t have an online contractors account, you can email DBI staff to file your trades permit. B license contractors filing trades permits and homeowners needing to file a permit can also email
  • If you are a licensed contractor qualifying for online permit submission and would like to set up an online account, visit here to start the registration process.
  • Trades Permits Forms:
    1. Permit to Operate Boiler Application
    2. Electrical Application
    3. Mechanical Application

The Post Entitlement Team with RJR is available to answer any questions or help facilitate the steps above for your projects.

 

Authored by Reuben, Junius & Rose, LLP Manager – Permit Consulting Division Gillian Allen.

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.

San Francisco Expands ADUs and Electronic Permitting

ADUs

State Law Changes to ADUs Incorporated into Planning Code

Early this year, state law changed to allow additional flexibility in adding Accessory Dwelling Units (“ADUs”) to existing and proposed housing. In May, some of those changes were incorporated into Planning Code Section 207. Additional changes to align the Planning Code with state law are expected soon.

The changes to the ADU program include an allowance for construction of ADUs in single family homes or detached auxiliary structures on the same lot. The Code changes allow for single-family “no waiver” ADUs under Section 207(c)(6), but limit expansion of the envelope of the single-family home or auxiliary structure for the ADU to 1,200 square-feet. State law also allows a Junior ADU (“JADU”) of no greater than 500 square-feet to be developed within the existing or proposed primary residence in addition to an ADU. Therefore, under the new state law, every lot can have at least three units. Single-family ADUs will require posted notice at the site, even if the ADU is built entirely within the envelope of an existing building.

“Waiver” ADUs for single family homes and ADUs in multifamily buildings are regulated by Section 207(c)(4). For lots that have four or fewer existing dwelling units or where the zoning would permit the construction of four or fewer dwelling units, one ADU is permitted. For lots that have more than four existing dwelling units or are undergoing seismic retrofitting, or where the zoning would permit the construction of more than four dwelling units, there is no limit on the number of total ADUs permitted, subject to restrictions for prior evictions. No minimum lot size is required for construction of an ADU.

Under Section 207, ADUs may be constructed in the buildable area of a lot, be converted from auxiliary structures, or be built within the envelope of an existing residential building. For auxiliary structures, dormers may be added even if the structure is within the required rear yard. The new state law also allows construction of a new detached unit, not otherwise subject to local development standards, if it is not more than 800 square feet, no more than 16 feet in height, and provides four-foot side and rear setbacks. In San Francisco, ADUs are not to be constructed from space within an existing dwelling unit, except that an ADU may expand into habitable space on the ground or basement floors if it does not exceed 25% of the gross square footage of the space. This limitation may be waived by the Zoning Administrator if waiver helps with the layout of the proposed ADU.

In an effort to incentivize creation of new units, ADUs of up to 750 square feet are now exempt from impact fees by state law. ADUs of 750 square feet or larger are only subject to impact fees proportional to the size relationship of the ADU to the primary dwelling. In addition, ADUs are not required to be sprinklered where the main unit is not required to be sprinklered.

Finally, state law now requires processing of ADU applications within 60 days. However, many property owners have experienced delay based on when the City deems a project application “complete.” The Planning Department continues to refine its procedures for ADUs, and we hope that property owners will encounter less red tape than they did in the past.

DBI (Department of Building Inspection) Implements Electronic Processing and Over-the-Counter Permits

COVID-19 has pushed DBI to implement its long-planned transition to electronic processing of permits. Electronic Plan Review (“EPR”) has a new online portal for building permit submittals that allows EPR through Bluebeam. For permits previously started in paper, DBI is evaluating the need to convert to EPR on a permit-by-permit basis. Conversion to EPR has resulted in delays as electronic submittals are processed, but should allow more efficient simultaneous review once permits move forward.

DBI has also restarted processing Over-the-Counter (“OTC”) permits. On June 24, DBI began offering OTC curbside services in coordination with its permitting agency partners (Public Works, Planning, Fire, and the Public Utilities Commission). Curbside services are offered from 7:30 a.m. to 4:30 p.m. Monday through Friday, including the following:

• Drop-in service for OTC without plans for up to two permits is available for up to 30 people per day between 7:30 a.m. and 9:30 a.m. Starting at noon on Fridays, Eventbrite tickets are available for the following week’s slots.
• Previously submitted electronic OTC permits with plans are being processed by appointment between 9:30 a.m. and 3:30 p.m., with appointments prioritized by length of time in the queue. Currently, DBI is processing permits submitted electronically between 6/1/2020 and 6/14/2020; new applications for OTC permits with plans are to be submitted electronically and added to the queue.
• Drop-in permit pick-up will be available throughout the day after DBI alerts a customer that a permit is ready. To use these OTC services, customers must arrive with forms complete and must wear face masks and stay six feet apart.

The following types of permits may be processed OTC:

Over-the-Counter without Plans

• Re-roofing
• Repair decks and stairs (less than 50%)
• Replacement windows (same size and same locations)
• Replacement garage doors
• Minor dry rot repairs
• Exterior siding repairs or replacement
• In-kind kitchen remodel (no changes to floor plan or walls)
• In-kind bathroom remodel (no changes to floor plan or walls)

Over-the-Counter with Plans

• Kitchen remodel (changing floor plans/walls)
• Bathroom remodel (changing floor plans/walls)
• Residential interior remodel (changing floor plans/walls)
• New windows and exterior doors
• Decks less than 10 feet above grade that meet Planning Code setbacks
• Sign permits
• Commercial tenant improvement projects
• Office or other B occupancy remodels
• Power door operators
• Permits to comply with the Accessible Business Entrance (“ABE”) program
• Voluntary seismic upgrades
• Disability access barrier removal
• Projects that do not require Planning Department neighborhood notification

Expect delays. DBI is currently processing permits submitted more than a month ago and will be closed to OTC permit processing for several days during the next few weeks while it moves its offices. Also, this is a pilot program that is subject to change as DBI continues to adapt to electronic filing and limited in-person services in the COVID-19 era. Check DBI’s website for the latest information about OTC processing.

 

Authored by Reuben, Junius & Rose, LLP Attorney Jody Knight.

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.