This Week in Land Use – Sept. 20, 2013

​New in-lieu fee options and increased requirements for bicycle parking, and dwelling unit mergers are becoming even more difficult.

New Bicycle Parking Requirements

On July 23, 2013, the Board of Supervisors approved an ordinance amending bicycle parking requirements in the City.  In part, this ordinance establishes an in lieu-fee program that allows developers to pay $400 per space for up to 50 percent of the required Class Two parking spaces up to 20 spaces.  The ordinance also allows for waivers of Class Two parking requirements to be approved by the Zoning Administrator in certain circumstances.  In addition to these changes, the ordinance will increase bicycle parking requirements for individual uses. The new basic requirements for residential, office, and retail uses are as follows:

  • One Class One bicycle parking space for every dwelling unit, up to 100 units, and 1 Class One space for every four dwelling units over 100.   (Class One spaces are secure, weather-proof parking for long-term storage by employees and residents.)


  • One Class Two bicycle parking space for every 20 dwelling units.  (Class Two spaces are bicycle racks located in publicly-accessible, highly-visible locations and intended for short term use.)

Residential units that are also considered Student Housing will be required to provide 50% more spaces than would otherwise be required.


  • One Class One space for every 5,000 occupied square feet;


  • Minimum of two Class Two spaces for any office use greater than 5,000 gross square feet, and one Class Two space for each additional 50,000 occupied square feet.
  • One Class One space for every 7,500 square feet of occupied floor space


  • (minimum of two spaces) One Class Two space for every 2,500 square feet of occupied floor area.  For uses larger than 50,000 gross square feet, 10 Class Two spaces plus one Class Two space for every additional 10,000 occupied square feet.

The Administrative Approval for Dwelling Unit Mergers…Going, Going….Gone?

Removing dwelling units through demolition, merger, and conversion can be a very difficult process.  Partly because the Planning Department has a general policy against removal of dwelling units, and partly because there are different standards that apply to various neighborhoods around the City, found in Code sections spread throughout the Planning Code.   As David Silverman in our office wrote a few weeks ago, Supervisor Avalos introduced legislation that would streamline the definitions and requirements pertaining to the removal of dwelling units so that Section 317 would apply City-wide and offer universal definitions and standards for dwelling unit removal.  While this new legislation will simplify things, it will also make it a bit more difficult to get a merger approved due to new language and restrictions added to Section 317.

Because of the Planning Department’s policy against mergers, most people rely on qualifying for administrative approval of their merger, in order to avoid almost certain disapproval of their project at a Planning Commission hearing.  Currently, dwelling unit mergers can be administratively approved in one of two ways:

1. By proving that each of  the units merged is demonstrably “unaffordable”  (appraised at or above $1,342,000); or

2. By satisfying a supermajority (four out of five) of the existing criteria in Section 317(e):

(i)      Whether removal of the units would eliminate only owner occupied housing;

(ii)      Whether removal of the units and the merger is intended for owner occupancy;

(iii)     Whether removal of the units will bring the building closer into conformity with prevailing density;

(iv)     Whether removal of the units will bring the building closer into conformance with prescribed zoning; and

(v)      Whether removal of the units is necessary to correct a deficiency that cannot be corrected through interior alterations.

As proposed, the new legislation would remove criteria (iii) and (iv), and instead focus on whether the removal of the units would, (1) remove affordable housing, and (2) if so, whether replacement housing will be provided equal or greater in size, number of bedrooms, affordability, and suitability to households with children as the removed units.  In addition to these new criteria, the ordinance would amend Section 317 so that administrative approval for dwelling unit mergers that satisfy a supermajority of the criteria would no longer be allowed. With these new changes, all dwelling unit mergers would be subjected to a mandatory Discretionary Review hearing before the Planning Commission, unless the units being merged are demonstrably unaffordable.

In July, the Planning Commission recommended that the zoning and density considerations be maintained and the affordable housing criteria be added in addition to the existing criteria. It is unclear at this time what will happen, but either way it will be much more difficult to complete a dwelling unit merger in the City once this legislation passes.

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.