Matt Haney Seeks To Eliminate Only-in-San Francisco Appeals

| Thomas P. Tunny
appeals

Housing developers in San Francisco no doubt recognize this entitlement moment of disbelief:  after a grueling, years-long process of working with staff, neighbors, and policy-makers, with numerous concessions made to address the potential impacts of their proposed project, the project finally receives its entitlement from the Planning Commission (a recent study found that a multifamily housing project takes 627 days on average to obtain a building permit) when lo and behold, the Board of Appeals sends notice that the project’s site permit has been appealed; and/or the demolition permit is appealed; and/or the grading permit; and/or the tree planting permit…

Fueling the disbelief even further is that the appeal isn’t based on anything new.  The project has already gone through exhaustive review and revisions.  The permit appeal process simply gives project opponents one more “bite of the apple”, an opportunity to cause delay and gain leverage for further negotiations and concessions.  The standard of review for the Board of Appeals is merely whether the permit was issued in error.  And four out of five votes are needed to overturn the permit.  All of this highlights the City’s recognition that these appeals are superfluous; and yet, they remain allowed.

Assembly Member Matt Haney seeks to change that.  This month he introduced AB 1114, a new bill that recognizes the absurdity (and steep costs to housing) of these appeals, and would eliminate them.  The bill would bar cities from allowing building-permit appeals after an applicant has navigated the long and winding road to entitlement.  Although the legislation would apply to all cities and counties in California, San Francisco is the only jurisdiction in the state that allows such appeals of entitled projects.  Hence, only San Francisco would be affected by the new law.  Only permits for projects that are at least 2/3 residential would be protected by the legislation.

One potential hurdle for the legislation is the City’s Charter.  Arguably, this proposed change requires an amendment of the City’s Charter, which can be done only by San Francisco voters.  But Haney is seeking to bypass that requirement, relying on the state’s vested interest for all California jurisdictions to build more housing.

The bill was introduced February 15 and is scheduled tentatively for a committee hearing on March 18.  State Senator Scott Wiener supports the bill, and the Housing Action Coalition was instrumental in its drafting.

 

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.

Building Department Update

| Gillian Allen
DBI

The San Francisco Department of Building Inspection (“DBI”) is working hard to improve on permit review and processing times. They launched a program called “Enhanced In-House Review Permit Application Process” on July 1, 2022, which should streamline the review and issuance of small and medium sized projects, and there are many new faces at the over-the-counter shifts which inevitably gives more seasoned staff time to work through their backlog.

The Enhanced In-House Review program incorporates suggestions from stakeholders and internal staff and creates new plan check categories. Until recently, DBI had only two options for plan review—Over-the-Counter and In-House review. For a project to qualify for Over-the-Counter review, the plan review needed to be an hour or less at each plan review station. Under their new Pre-Plan Check system launched on July 1, they added two new plan check categories for small to medium-sized projects that don’t qualify for Over-the-Counter review, but could be reviewed in one day after their assignment to a reviewer. Projects are now pre-screened per the criteria below:

Plan Check Category OTC Level 1 In-House Level 2 In-House Level 3 In-House Level 4
Time for plan review <1 hour 1-4 hours 4-8 hours >8 hours

New Central Queue

The new system also changes the way DBI assigns projects to plan reviewers. Previously, they assigned projects to plan reviewers as they came in—so if a plan reviewer had a large workload or went on vacation, customers waited longer for plan review. Under the new system, projects now go into a central queue and will be assigned to plan reviewers on a weekly basis. For customers, it means that once your project is assigned to a plan reviewer, you can expect DBI to begin review on your project in the next few business days. Over the past three weeks, the new process has effectively increased the quality of plan submissions and is helping DBI manage its workload better.

DBI’s next step is to remove projects from individual plan checker’s queues and to move all the existing in-house review project submissions into one queue and then begin assigning them to plan reviewers on a weekly basis.

The program has been in action for about two months, and according to the August update, DBI is pleased with the progress on the transition to the new process. About 68% of new applications have been accepted as complete and all of the older priority projects, such as affordable housing and Accessible Dwelling Units, have been assigned to a plan reviewer.

The new system also establishes a minimum 20 business days and maximum 40 business days target for DBI to respond to the application with comments for the applicant to clarify or address. Other agencies will attempt to match these turnaround thresholds but may have exceptions.

To ensure clear communication and to keep projects moving, DBI staff comments that cannot be or are not addressed with two resubmittals (ie: resubmitting revised plans), will be automatically escalated to a DBI plan check supervisor. Should a project have unresolved comments after four resubmittals, the project will automatically be escalated to the Deputy Director of Permit Services.

DBI plans to start posting updates to their website in September to let you know the date range of projects being assigned to DBI staff every week and appreciates your support as they move from the old system to a new system that will serve you better. Learn more here.

 

Authored by Reuben, Junius & Rose, LLP Manager, Post Entitlement 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 Shared Spaces Program Permanent

| Sabrina Eshaghi
shared spaces

Mayor London Breed recently signed legislation that will make the Shared Spaces Program a permanent feature in San Francisco. The temporary Shared Spaces Program allowed more flexible use of sidewalks, streets, and other public spaces for neighborhood businesses and was implemented through a mayoral proclamation tied to the declaration of a state of emergency due to COVID-19. According to the Mayor’s Office, more than 2,100 curbside and sidewalk Shared Spaces permits have been issued by the City since June 2020. Given the success of the program, the Mayor proposed legislation to make the program permanent in March of this year. Due to the number of City agencies involved and the complex issues this legislation raises, it took months of debate and countless amendments to ultimately gain unanimous approval by the Board of Supervisors and the Mayor’s signature.

The permanent legislation will continue to allow the same types of shared spaces that have been permitted under the temporary program, including on sidewalks, curbside lanes, and roadways, but with an updated approval process and a new set of operating requirements that are meant to address some concerns with the existing program. The permits will be available for commercial and noncommercial activities, including retail uses, cultural events, arts activities, general recreation, and entertainment uses. Generally, the permits will allow the temporary and reversible installation of physical improvements.

Approval Process

All permits will be routed through the Planning Department to the appropriate agency with authority to approve the permit. Depending on the type of permit and the specific uses proposed, the agencies with jurisdiction over the permit will include the Department of Public Works, Interdepartmental Staff Committee on Traffic and Transportation (ISCOTT), Municipal Transportation Agency Board of Directors (SFMTA Board of Directors), Entertainment Commission, and/or Real Estate Division. Additional coordination or approval by other agencies may also be required. According to the Mayor’s Office, the City will require streamlined approval of the permits within 30 days of submittal of the application, in alignment with the requirements of Proposition H, which was passed by the voters in November 2020 (discussed in a previous update). The curbside and sidewalk permits will be effective for up to one year and can be renewed annually. Roadway permits will have a maximum initial term of two years and can be renewed for up to two years at a time. Any person can appeal the decision to approve or deny a Shared Spaces permit.

The permits will generally be subject to fees, except small businesses may be eligible for reduced fees in certain circumstances.

Conversion of Existing Permits

Given the significant number of existing Shared Spaces permits, the legislation allows existing Shared Spaces to continue operating based on the terms of the specific permit. Prior to the expiration of the existing permit, the permittee can apply to convert to a new Shared Spaces permit based on the requirements of the legislation.

Existing permitholders that apply for new curbside permits will be eligible for fee waivers and deferrals. However, the fee waiver and deferral will not apply to formula retail uses.

Enforcement

The 311 system will be utilized to receive complaints, route them to the appropriate agency, and provide complainants updates on the status of the complaint including how the issue was abated or why the complaint was closed. In addition, at least every other month, the City will be required to conduct rolling audits of Shared Spaces in commercial corridors to confirm compliance and take any necessary enforcement actions.

Accessibility

Accessibility was a major topic of discussion during the legislative process. Ultimately, the legislation requires each agency to provide regulations that account for disability and access needs. In addition, sidewalk permits will generally be required to provide an 8-foot wide unimpeded path of travel.

In terms of public accessibility, the legislation limits the number of restricted access events to eight single-day events per year. Parklets in curbside lanes or any other permit that exclusively allows private dining will be required to provide one public bench or another type of seating arrangement that will be accessible to non-patrons for every 20 feet of Shared Space. Although there was some discussion about leaving the parklets open after business hours, the final legislation allows permittees to secure curbside Shared Spaces from midnight to 7am.

Outreach and Notice Requirements

As part of the initial application, the legislation requires documentation of community outreach and support as well as documentation showing that all property owners of any building fronting a proposed sidewalk or curbside Shared Space have been notified of the application. The legislation also mandates a public notice and comment period following submittal of applications for sidewalk and curbside permits.

Annual Reporting

The Board of Supervisors included requirements for a number of annual reports regarding various issues related to the Shared Spaces Program, including:

  • Revocations of permits in order to comply with the City’s Vision Zero, Better Streets, and Transit First Policies, including for purposes of restoring transit lines, to maintain safe access to public rights of way for seniors and people with disabilities, and to facilitate pedestrian safety;
  • Opportunity sites for sidewalk extensions on blocks with many sidewalk or curbside Shared Spaces and commercial or mixed-use corridors with narrow sidewalks;
  • Impacts on small businesses without Shared Spaces permits, including businesses that rely on consumer vehicle loading and unloading, and recommendations for how to mitigate any negative impact of the Shared Spaces Program on those businesses; and
  • Impacts on street cleaning operations and recommendations for how to accommodate any decrease in such services.

We may continue to see the Shared Spaces Program evolve based on the recommendations and findings of these reports.

 

Authored by Reuben, Junius & Rose, LLP Attorney Sabrina Eshaghi.

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.

Appellate Court Clarifies Permit Streamlining Act’s Noticing Requirements

| Mark Loper
PSA's

On the heels of the Berkeley Shellmound SB 35 decision in favor of streamlined housing, another recent Court of Appeal decision rejected a public agency’s attempts to delay a housing project under the Permit Streamlining Act (“PSA”), and clarified that a jurisdiction with permitting authority must take action within the PSA’s time limits even if the project’s public hearing notice did not specifically discuss the PSA’s “deemed approved” provision.

Overturning a 2006 decision about the level of detail necessary to trigger the PSA’s “deemed approved” requirement when a City fails to render a decision on a project within a specified time period, the Court of Appeal in late June determined that a public agency’s hearing notice did not need to specifically include a reference to the deemed approved outcome (Linovitz Capo Shores LLC et al v. California Coastal Commission, No. G058331 (Cal. Ct. App. June 25, 2021)). Instead, the Court found that the California Coastal Commission (“Coastal Commission”) failed to properly make a decision on the merits of a mobilehome housing project within the PSA’s time limits, and under the PSA the project was approved. While the fact pattern for the case is somewhat unique, it provides a lesson for local and state permitting agencies, and project sponsors dealing with jurisdictions hostile to new housing.

Owners of beachfront mobilehomes in San Clemente, Orange County, filed permits with the Coastal Commission and other permitting agencies to renovate their mobilehome park. After several years, the Coastal Commission issued individual public hearing notices for each application. The notice included a project description, the date, time, and location of the hearing, hearing procedures, and ways the public could participate. Notably, the hearing notice did not specify the deadline for the Coastal Commission to render a decision on the permits under the PSA. However, the staff report provided in bold lettering that the Coastal Commission was required to make a decision at the hearing in order to comply with the PSA, and the Commission’s legal counsel discussed the “deemed approved” deadline at the hearing itself.

At the project hearing, the sponsors agreed in principle to withdraw and re-file their applications with an amended scope, but asked the Coastal Commission to waive resubmittal fees and a resubmittal waiting period. The Commission waived the waiting period, but not the resubmittal fees, and the meeting recessed without any further comment from the project sponsors. The Commission did not take any formal action on the pending applications. The sponsors then sued the Commission, claiming in part that the projects had been deemed approved under the PSA.

Unsurprisingly, the Coastal Commission claimed that the projects were not approved for several reasons. Relevant to the PSA, according to the Commission, the requisite public notice under the PSA was never given. It claimed the hearing notice needed to include a statement that the projects would be “deemed approved” if the Commission did not act within 60 days. The Court of Appeal disagreed, interpreting the PSA to require such a statement only when an applicant itself is providing notice of a hearing under the PSA. When the permitting agency provides notice, the PSA’s time limitations can apply even if the notice does not discuss the PSA.

The Court of Appeal’s decision overturns a 2006 decision reaching the opposite conclusion. The Court did not promulgate a list of information that must be included in a public notice to trigger the PSA’s deemed approved deadlines, instead reaching a narrower conclusion that the notice provided in this case—as discussed above—complied with statutory law and constitutional due process principles.

Interestingly, the Court noted that even though the Coastal Commission did not have a legal obligation to notify the public of the upcoming PSA deadline, it did just that, both through the project’s staff report and its legal counsel’s advice to the Commission that the PSA deadline was approaching. The Court also went out of its way to note near-unanimous public support for the project, which arguably made its decision easier. Implied in the Court’s opinion is that the Commission made a simple mistake of parliamentary procedure by not taking an official action on the pending applications in front of it.

The Court did not opine on whether the Commission could legally keep the hearing open and continue it to a future date past the PSA deadline date, or adopt a motion of intent to disapprove and continue it. Both are common actions taken by permitting authorities that pro-housing activists have long claimed circumvent the intent of the PSA and cause delay to housing projects.

Increasingly, California courts are being asked to enforce the pro-housing laws passed in Sacramento in recent years, such as SB 330, the PSA, and SB 35. For example, two trial courts recently rejected anti-housing voter initiatives on the grounds they violated SB 330, either one of which could be appealed and become binding case law. We will continue to keep you up to date on major housing-related legal developments.

 

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.