Making it easier to rebuild nonconforming uses
This week the Planning Commission is considering amendments to Planning Code Section 181(d), clarifying procedures that will apply to rebuilding of nonconforming uses destroyed by fire or other calamity. Generally speaking, nonconforming uses cannot be enlarged, intensified or relocated under longstanding provisions of the Planning Code. However, there has always been the recognition that nonconforming uses destroyed by fire or other calamity could be rebuilt to their existing size and nonconforming use, so long as the rebuilding started quickly. Current Planning Code Section 181(d) states that an owner may restore the former nonconforming use “provided that such restoration is permitted by the Building Code, and is started within one year and diligently prosecuted to completion.” It has never been very clear as to what “starting a project within one year” really means. These welcome amendments will provide some guidance and flexibility for owners placed in a difficult spot as a result of severe damage to their property.
If adopted, following a fire or other event that destroyed an owner’s nonconforming use, the owner will be able to continue the nonconforming use so long as within one year they either (1) file an application for a building permit for alteration, repair or replacement for the damaged or destroyed building, or (2) submit to the Planning Department evidence of a resolution with the owner’s insurance company accompanied by a schedule of payments to the owner and a commitment by the insurance company to pay, or (3) submit to the Planning Department plans and evidence of efforts to the owner to conduct pre-application review with the Department of Building Inspection or the Planning Department. This covers pretty much everything an owner would likely be doing if they were serious about re-building quickly, which is what the City wants.
For those unfortunate enough to be in the situation where they have been struck by a fire or other disaster that destroys their building, these provisions will make it much easier to preserve the nonconforming use going forward without the possible draconian cutoff of “starting a restoration within one year.” The Planning Department is recommending that the Commission support these changes and we hope they do.
Today the Historic Preservation Commission continues its review of changes to Articles 10 & 11 of the Planning Code. These portions of the Planning Code contain specific zoning provisions that apply to historic buildings throughout San Francisco. This effort ran aground several years ago after the passage of Proposition J which created the HPC. Since its creation, the HPC procedures have been somewhat in limbo pending the amendments to Articles 10 & 11. This time around, it looks like they might get it done. Review of Articles 10 & 11 by the Planning Commission will follow the HPC’s review. As we get closer to get final adoption, we will keep you informed of any major changes to Articles 10 & 11.
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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