EERO

Update on Emergency Escape for R-3 Occupancies

| Gillian Allen

The Department of Building Inspection and the San Francisco Fire Department have drafted a new Information Sheet EG-02, which provides guidelines for R-3 projects that are unable to meet the Building and Fire Code (SFBC) Section 1030, which requires emergency escape and rescue openings (EEROs) to open directly into a public way or to a yard or court that opens to a public way. The draft language below has been approved by the Code Advisory Council and has been submitted to the Building Inspection Commission for final approval. “SFBC Section 1030 requires emergency escape and rescue openings (EEROs) to open directly into a public way or to a yard or court that opens to a public way. In addition, on December 3, 2018, the California State Fire Marshal issued a Code Interpretation that EEROs in Group R occupancies are required to be accessible to emergency rescue personnel using ground ladders. This information sheet addresses the condition where the EEROs open to a yard or court that does not open to a public way for R-3 occupancies and thus inhibits the ability for ground ladder access to the EEROs for rescue. The intent of the code is that windows required by SFBC Section 1030 be available so that occupants may self-rescue and escape from a sleeping area from the EERO to the exterior of the building without having to travel through the building itself. Additionally, the EERO is available for the Fire Department to enter sleeping areas to rescue occupants. If the EEROs open to a yard or court that has no access to a public way, they will not meet the requirements of the code where both escape and rescue can be accomplished. Trigger: SFBC Section 1030 identifies when EERO requirements are applicable. In addition, any project where proposed scope of work further restricts access for the Fire Department to perform rescue at the EEROs will be subjected to SFBC Section 1030 review. Projects may request for approval of local equivalency where both of the following conditions are met: The escape criteria for the EERO may be accomplished where the EERO opens into a yard with a minimum of 25 feet depth. The rescue criteria for the EERO at a yard or court that has no access to the public way shall be proposed by the project sponsor and evaluated at the time of submittal on a case-by-case bases by the Supervisor or Manager. All other conditions will also be evaluated on a case-by-case basis by the Supervisor or Manager. A pre-application meeting and/or approval of AB-005 is required. ACCEPTABLE LOCAL EQUIVALENCIES: In the event that EEROs open to a yard or court that does not open to a public way for R-3 occupancies, the following are four local equivalencies acceptable by the Department of Building Inspection and the Fire Department. Request to use the following local equivalencies shall be accompanied by a request for approval of AB-005 and will be reviewed on a case-by-case basis. These requirements do not alleviate and shall not diminish any other code requirements established in the SFBC and SFFC. Alternative 1 – Fire Department Ground Ladder Access: The escape criteria for the EERO may be accomplished where the EERO opens into a yard with a minimum of 25 feet depth. The rescue criteria for the EERO at a yard or court that has no access to the public way shall be accomplished with a minimum 3 feet wide continuous pathway that can accommodate a 22-foot straight ladder from the Public Right of Way to the yard or court shall be provided. A path of travel diagram shall be provided showing the ability for a 22-foot ladder’s ability to navigate from the public way to the yard or court where the EERO faces. Commentary 1: The Fire Department uses a 22-foot straight ladder or a 35-foot extension ladder to reach EERO’s on the 2nd and 3rd floors. Thus, the Fire Department needs a minimum clear 3 feet wide pathway to carry the 22-foot straight ladder and 35 foot extension ladder (21 feet unextended) from the street, through a building, to the ground below the EERO. Alternative 2 – Increased Fire Protection: For existing buildings only, increased fire-rated construction shall be provided throughout the building along with a fire sprinkler system throughout. Commentary 2: SFBC Section 1030 exception allows higher occupancy of R1 and R2 classifications with type A construction equipped throughout with an approved automatic sprinkler system to be exempt from requirements of Section 1030. Similarly, for existing buildings only, where the existing building envelope spans such that the EEROs open to a yard or court that does not open to the public way, increased fire protection for SFBC Section 1030 exception will be acceptable since R3 occupancy pose a less hazardous occupancy than R1 or R2 occupancy in which this exception applies. However, alternative 2 will not be acceptable for new R3 buildings since SFBC Section 1030 shall be accomplished. Alternative 3 – Roof Access for Rescue: The escape criteria for the EERO may be accomplished where the EERO opens into a yard with a minimum of 25 feet depth. The rescue criteria propose rescue access from the roof level into EERO’s where EERO’s open to a yard or court that has no access to the public way. The roof slope shall be limited to not more than 4:12 pitch at any location along the roof access route to the yard or court. The vertical access component with the following requirements is required between the roof level and the level of each EERO: Stairs compliant with CBC Section 1011 with the exception that spiral stairways and alternating tread devices are not permitted. Alternate stair design shall have a maximum stair incline of 72 degrees from horizontal. A balcony, deck, or landing is required directly outside of each EERO: Minimum 3 feet wide in the direction perpendicular to the EERO. Minimum length shall be the width of the EERO opening. Any intermediate landings or

housing fees

State Takes Aim at Housing Fees and Permit Delays

| Sabrina Eshaghi

After a productive legislative year in 2021, the state legislature is continuing to tackle California’s ongoing challenges related to the housing crisis and lengthy processing times. Two bills would aim to minimize some of the roadblocks facing housing projects by bringing down both direct costs and holding costs. First, AB 2063 proposes to codify the state’s often disregarded stance that affordable housing fees do not apply to density bonus units. This would eliminate a significant cost for density bonus projects, which play a vital role in increasing housing production across the state. Second, AB 2234 proposes to enact time limits on processing and approving post-entitlement permits to create a more efficient and consistent process.  Both of these bills would help address some of the root causes of the high cost of building housing, including increasing impact fees and long-term holding costs associated with permitting. AB 2063 This bill would update the State Density Bonus Law to clarify that affordable housing fees cannot be applied to density bonus units, except in limited circumstances. Although this is a relatively simple bill, its impact would be huge for housing projects in jurisdictions that have been requiring hundreds of thousands, and sometimes millions, in affordable housing fees on top of the on-site affordable housing units needed to qualify for the density bonus. The Attorney General issued an opinion in 2019 that this practice of applying impact fees on density bonus units was not permitted under the State Density Bonus Law. The Attorney General’s reasoning was that the imposition of these fees on density bonus units disincentivizes what the legislature clearly wished to incentivize—the construction of affordable housing. Despite the Attorney General’s opinion, some cities continue to apply affordable housing fees on density bonus units. This bill would codify the Attorney General’s opinion, putting this practice to rest. The bill was introduced on February 14, 2022 by Assembly Member Berman and is sponsored by the Housing Action Coalition, a nonprofit that advocates for building more housing for California residents of all income levels. It was unanimously passed by the Assembly Housing and Community Development Committee on April 5th and the Assembly Local Government Committee on April 20th. It is now under review by the Appropriations Committee. AB 2234 The Permit Streamlining Act sets time limits for the review and approval of entitlements. Its impact has been limited since its time limits run from completion of CEQA review, which is typically the main driver of entitlement schedules. This bill aims to put a similar, but more effective, framework in place for post-entitlement approvals. Due to challenges associated with staffing, permitting backlogs have long been a problem, especially in large cities with high volumes of construction. These delays increase holding costs and slow overall housing production. Given today’s inflationary environment, delays are even more problematic. The bill would apply limits on the review process for all nondiscretionary permits for projects that are at least two-thirds residential. This would apply to building permits and permits for off-site improvements, demolition, excavation, and grading. Failure to meet any of the time limits would be treated as a violation of the Housing Accountability Act. Specifically, the bill would require local jurisdictions to: Publish an online checklist of requirements for applications to be deemed complete along with an example of an ideal application that developers can use as a reference. Cities with a population of at least 250,000 will also be required to accept and update the status of applications online, including noting whether anything is required from the applicant. Provide written notice regarding whether the application is complete within 15 days. If a local agency does not make a timely determination, the application will be deemed complete. Approve or deny a post-entitlement permit within 30 days of deeming the application complete for projects with up to 25 units, or within 60 days for projects with 26 or more units. This would not apply if the city makes a written finding that the permit may have a specific adverse impact on public health or safety and additional time is necessary to process the application. Provide a process for applicants to appeal an incomplete determination and denial of a complete application within 60 days for projects with up to 25 units, or 90 days for projects with at least 26 units. The bill was introduced by Assembly Members Rivas and Grayson on February 15, 2022 and is cosponsored by the Housing Action Coalition and Silicon Valley Leadership Group. It is scheduled to be heard by the Assembly Local Government Committee today. We will continue to monitor these bills and keep you updated as they move through the legislative process.   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.

fourplex

To Fourplex or Not to Fourplex

| Thomas P. Tunny

Senate Bill 9 (SB 9), which took effect January 1, 2022, enables property owners to split their single-family residential lot into two separate lots and build up to two new housing units on each lot.  A key component of SB 9 is that it requires ministerial approval of such projects.  In San Francisco (the “City”), that means no discretionary review process and other opportunities for project opposition.  The City’s policymakers and housing advocates were influential in the adoption of SB 9.  And yet, now that it’s here, the City’s lawmakers can’t seem to decide if they like SB 9. Housing advocates hailed SB 9 for facilitating the construction of new, smaller dwelling units throughout the City.  Everyone can agree that the City needs housing.  However, the City’s new housing production in recent years has been heavily concentrated in the eastern and southeastern parts of the City, with 90% of all new housing produced in just ten eastside and central neighborhoods.  Development in these neighborhoods has at times been subject to significant conflicts and prevented from moving forward.  At the same time, roughly 60% of the City’s developable land area is in residential zoning districts, concentrated primarily on the City’s west side, with 38% of the City’s developable land area zoned exclusively for single-family homes.  Just 3% of housing built since 2005 was added in areas that allow one to two units (only 6% of affordable housing when ADUs are counted).  SB 9 presents a fresh approach. When Supervisor Rafael Mandelman proposed his “fourplex” legislation last summer, allowing any single-family home to be turned into a fourplex, and corner lots to have six units, it seemed SB 9 would be embraced, and that some of the City’s more vexing housing challenges would be addressed.  It wasn’t that easy. Last Monday (April 11), the Board of Supervisors’ Land Use Committee considered Supervisor Mandelman’s fourplex legislation.  Supervisor Mandelman, facing significant political push-back, had amended his legislation to upzone all single-family residential districts (RH-1 and RH-1(D)) in the City to two-family density (RH-2 and RH-2(D)).  The elimination of single-family zoning is a means of ensuring the approval of new fourplexes and six-unit projects would not be ministerial, and that discretionary review of these projects would continue.  This is because the ministerial provisions of SB 9 apply only to single-family residential districts. Advocates of preserving the discretionary review process cite the need for the City to maintain design review control over new housing.  But discretionary review is not about design review.  Discretionary review has become a process that project opponents manipulate to stop new development.  It adds significant time, cost, and risk to the production of housing, thereby discouraging new units.  If design review is the concern, there are better ways to accomplish that without leaving it to discretionary review. Other related issues addressed by Supervisor Mandelman’s legislation include residency and tenancy controls, measures to prevent demolition, condominium conversion and subdivision controls, and rent protections. In the end, at the Land Use Committee on Monday, the Committee approved certain amendments proposed by Supervisor Melgar that sought to encourage larger units, incentivize marginalized homeowners to create more units, and waive the application fees for Historic Resource Assessments,  and then voted to continue its consideration of the legislation to the April 25 meeting.   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.

DBL

Density Bonus Law & CEQA Tiering Upheld

| Mark Loper

This winter, two California Courts of Appeal issued decisions that reaffirm some of the positive aspects of state laws related to housing production, from both a CEQA perspective and via the State Density Bonus Law (“DBL”). In the first case, out of East Bay city Newark, the First District Court of Appeal upheld a tiered CEQA review for a 469-lot subdivision based on a program-level EIR prepared for a Specific Plan. About a week later, the Fourth Appellate District upheld San Diego’s approval of a 20-story residential tower, relying heavily on the protections afforded to mixed-income residential projects under the DBL. We discuss each below. In Newark, the City approved a specific plan in 2010 for up to 1,260 units, as well as a golf course and related facilities, relying on an EIR. The EIR specifically noted that Newark would proceed under CEQA Guidelines Section 15168 for specific development proposals and “tier” off of the EIR to the extent applicable. In 2019, the applicants submitted a subdivision map proposing 469 residential lots, but no golf course. Other changes from the development analyzed in the EIR included filling and elevating only certain areas on the site (the project site is located next to the San Francisco Bay) and locating the filled and elevated areas directly next to wetlands, with riprap along the western banks. The City prepared an exemption checklist comparing the EIR to the subdivision’s impacts and conducted background technical studies, including an updated sea level rise analysis. The checklist found that the subdivision would be consistent with the specific plan, and that there were no changed circumstances or new information that might trigger the need for more CEQA review than what was done for the EIR. It was a classic example of CEQA “tiering.” The Court of Appeal upheld the City’s use of the checklist. First, it rejected an argument that the project changes made tiering inappropriate. The Court helpfully pointed out that changes in and of themselves do not eliminate the ability to tier off an EIR; instead, the environmental consequences resulting from those changes must be new, greater, or substantially different than what was analyzed in the EIR. Here, they were not. The Court also rejected the appellant’s claim that the amount and rate of sea level rise was different enough to require a new EIR, finding that the EIR’s unambiguous finding of a significant impact due to sea level rise was adequate, as was some language in the EIR noting that the rate of sea level rise was uncertain and might be accelerating. Finally, the Court determined that adaptive management plans for sea level rise do not improperly defer consideration of mitigation measures. Taking a refreshingly common-sense approach to climate change and CEQA, the Court would not fault Newark for acknowledging in the EIR that adaptive management would be required. “The City’s potential responses to environmental conditions between 50 and 80 years from now cannot be considered part of the project,” it concluded. “Because the City currently can only dimly guess what measures will be needed to respond to conditions several generations from now, the City was not required to analyze the impacts of the adaptive pathways” as part of the project. The Court of Appeal’s opinion in San Diego generated more buzz, particularly among the pro-housing groups that have done yeoman’s work in recent years to strengthen California’s housing protections. The case was originally not certified for publication, in part because San Diego’s City Attorney was reluctant to have a published case that so clearly spelled out the limits of the City’s discretion to deny or downsize density bonus projects. Nevertheless, after receiving petitions to publish it, the Court did. It is helpful in several ways, reaffirming the City’s evidentiary burden to deny waivers or concessions; harmonizing General Plan consistency findings with the DBL; and applying the conclusion the First District Court of Appeal reached in Wollmer v. City of Berkeley that a density bonus project can be approved with residential amenities such as a courtyard. The Project—a 20-story, 204-unit mixed use tower at 6th Avenue and Olive Street across from Balboa Park—faced pushback from neighbors, at least some of whom the Court implied would lose their view of the park. Somewhat surprisingly, instead of arguing that the project would have an unmitigable health and safety impact on the adjacent park, the neighbors argued administratively, at the trial court, and at the Court of Appeal that the project should be denied because it did not comply with several General Plan and Community Plan guidelines that call for contextual development and massing moderation of tall towers. They also argued that the City should not approve waivers that contradicted the guidelines, and that the City should have approved a shorter and squatter development that had the same number of units but a smaller courtyard. The Court began its analysis by noting that the neighbors had “sidestepped” the implications of the DBL, not discussing it at all in its opening brief and then dismissively claiming the DBL is not a “free pass.” The Court identified the narrow grounds by which a City can shrink or deny a DBL project and pointed out that the neighbors simply failed to make any arguments about that point. It then went on to explain that the developer specifically requested concessions under the DBL that were germane to each of the General Plan and Community Plan guidelines the neighbors claimed the project did not comply with. The City Council expressly made a finding that there was no evidence to support the denial of the requested incentive, which the Court found to be determinative—acknowledging that the burden on this issue has now shifted to cities if they attempt to deny a project, not the developer proposing an incentive. It also concluded that the project’s waivers were correctly layered on top of the project with requested concessions, meaning a project qualifies for waivers based on its form with both the density bonus and the

EV

Planning Commission Considering EV Charging Regulations

| Chloe Angelis

This Thursday, the San Francisco Planning Commission will consider an ordinance that would amend the Planning Code to address electric vehicle (“EV”) charging uses. The Planning Code does not contemplate EV charging currently—leaving operators to work with the Planning Department on a case-by-case basis to determine the permissibility and approval path for any new EV charging site. As summarized in the Planning Commission Staff Report, 2022-000549PCA (“Staff Report”), for the legislation, the City’s climate action targets include the following transportation goals: By 2030, 80% of trips taken by low-carbon modes such as walking, biking, transit, and shared EVs. By 2030, increase vehicle electrification to at least 25% of all registered private vehicles, and, by 2040, to 100% of all such vehicles. The International Council on Clean Transportation (ICCT) predicts that in order to serve the 170,000 light duty EVs predicted to be registered in San Francisco by 2030, “the number of publicly accessible charging stations in San Francisco needs to increase from about 800 in 2019 to 2,000 by 2025, and over 5,000 by 2030.” (See Staff Report.) The proposed ordinance aims to create a regulatory framework to guide the slew of EV charging projects that the City expects to see over the next several years in response to that demand. As currently drafted, the legislation would create two new Planning Code use categories, both under the umbrella of “Automotive Use.” The new “Electric Vehicle Charging Location” use would cover public-facing charging locations and “Fleet Charging” would cover EV charging facilities that are dedicated to a private entity and not available to the general public. For reference, the proposed amended definition of an Automotive Use would read as follows: A Commercial Use category that includes Automotive Repair, Ambulance Services, Automobile Sale or Rental, Automotive Service Station, Automotive Wash, Electric Vehicle Charging Location, Fleet Charging, Gas Station, Parcel Delivery Service, Private Parking Garage, Private Parking Lot, Public Parking Garage, Public Parking Lot, Vehicle Storage Garage, Vehicle Storage Lot, and Motor Vehicle Tow Service. All Automotive Uses that have Vehicular Use Areas defined in this Section of the Code shall meet the screening requirements for vehicular use areas in Section 142. If the legislation is enacted as drafted, Fleet Charging uses would require Conditional Use Authorization in most zoning districts except for in PDR-1-D, PDR-1-G, and PDR-2 districts. Fleet Charging would be prohibited in the Neighborhood Commercial Districts. Electric Vehicle Charging Locations would be more widely permitted, and would be principally permitted in most districts where the existing use is already some type of Automotive Use. Such conversions from an existing Automotive Use to an Electric Vehicle Charging Location would also be exempt from the Section 311 building permit review and noticing requirements—meaning those projects would not be subject to the City’s often costly and time-consuming discretionary review process. While most Fleet Charging projects will require Conditional Use approval under the new rules, the legislation does allow some limited Fleet Charging as an accessory use to public charging, with Fleet Charging limited to a maximum of 1/3 of the total charging stations. Planning Staff has recommended the following two changes to the legislation: Require Conditional Use Authorization in all C-3 Districts for Electric Vehicle Charging Locations and change the code to make Gas Stations a Conditional Use in the two C-3 districts where they are currently principally permitted. Exempt the conversion of existing automotive uses to EV Charging from Section 142 Screening requirements. After the Planning Commission hears the legislation on Thursday, it will then go to the Land Use and Transportation Committee before being heard by the full Board of Supervisors. You can track the ordinance’s progress here.   Authored by Reuben, Junius & Rose, LLP Attorney Chloe Angelis. 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.

Code

Berkeley Adopts New Zoning Ordinance

| Tara Sullivan

On December 1, 2021, the City of Berkeley adopted a new Zoning Ordinance (Title 23 of the Berkeley Municipal Code), the first major revision of the City’s Zoning Ordinance since 1999. The revision process originated from a 2016 City Council referral which asked the Planning Department to undertake structural revisions to the Zoning Ordinance. As with many zoning codes, Berkeley’s Zoning Ordinance was needlessly long and repetitive, had inconsistent formatting and definitions, and outdated policies and practices. Each of the 25 zoning districts in the city had its own land use table that listed permitted uses and permit requirements, resulting in different lists of uses and disparate treatment of similar uses across zoning districts. There were no area/geographic maps and there were few figures to illustrate concepts and regulations. This led to inaccurate interpretations, inconsistent applications, and anger towards city planners. It was not a “user-friendly” zoning code. Berkeley undertook a two-phase approach to its Zoning Ordinance: this first update – Phase 1 – improves the formatting, language, and organization of the current code. It is easier to read, understand and administer.  Phase 2 will undertake substantive changes to zoning regulations and processes. The new Zoning Ordinance provides the following improvements: New format and Writing Style. The entire ordinance was re-formatted, with new numbering and titles. A new style guide was created, laying out specific word choices (ex: “addition” should be called “expansion”; a “lot” is now called a “parcel”), grammatical and spelling rules, and establishes Plain English Guidelines as the new writing style. Consolidated Land Use Tables. Former chapters and sections were combined. There are now three Land Use Tables – Residential, Commercial, and Industrial, consolidating all 25 districts. For example, all 10 commercial districts are under a single chapter. This will help remove inconsistencies in application and allow easy comparison among districts. New Maps and Figures. The old ordinance relied on narrative descriptions of geographic areas and subzones. There were few illustrations. The new Zoning Ordinance has maps of each area, eliminating long narrative descriptions, and includes updated figures and diagrams to illustrate items such as Floor Area Ratio and measurement methods. Eliminates Repetitive Language. In addition to eliminating repetitive land use controls, administrative procedures have been consolidated. This removed discrepancies and technical errors due to punctuation or word choice. Introduces a List of “Consent Changes”. Minor but non-substantive changes were included in this update. Clarification of ambiguous terms, updated legal requirements, and codification of existing interpretations and practice were made, resulting in a clearer more comprehensive document. The new Zoning Ordinance took effect on December 1, 2021. Pending projects that have been deemed complete or received Zoning approval on or before November 30th will be reviewed using the “legacy” Zoning Ordinance. Pending projects or those that were deemed incomplete as of December 1st will be reviewed under the new Zoning Ordinance. Berkeley is currently working on updates to their Housing Element and developing Objective Design Standards, both of which were identified as needing updating during the Phase 1 analysis. These efforts are ongoing.  RJR will continue to track these efforts and provide updates.   Authored by Reuben, Junius & Rose, LLP Attorney Tara Sullivan. 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.

Group Housing

Planning Commission Considers Changes to Group Housing

| Melinda Sarjapur

On February 10th, the San Francisco Planning Commission voted unanimously to recommend its approval (with modifications) of two proposed ordinances that could bring big changes for Group Housing citywide. In mid-December 2021, Supervisor Peskin introduced two ordinances at the Board of Supervisors.  The first (Board File No. 211299, “Planning Code – Group Housing Definition”), which is co-sponsored by Supervisors Walton and Mandelman, proposes to amend the definition of Group Housing under the San Francisco Planning Code (the “Planning Code”). Under the current Zoning provision of the Planning Code (and pursuant to a previous Zoning Administrator interpretation), Group Housing rooms can include a limited cooking facility, which is defined as having a small counter space, a small under-counter refrigerator, a small sink, a microwave, and a two-ring burner.  Further, Group Housing rooms must be rented out for a minimum of seven days, and Group Housing developments do not have minimum square footage requirements for building common spaces and amenities.  On-site below-market-rate/inclusionary Group Housing rooms can be offered as either rental or ownership tenure. However, Supervisor Peskin’s legislation proposes the following changes to the Group Housing definition: Individual and limited cooking facilities would no longer be allowed in Group Housing rooms. Group Housing rooms would need to be rented out for at least 30 days, rather than 7. Group Housing would require at least 0.25 square feet of common space for every square foot of private space (including bedrooms and individual bathrooms). At least half of the required common space would need to be devoted to a communal kitchen, with one kitchen for every 20 Group Housing rooms. Student housing and 100% affordable housing would have an exception to this requirement. On-site inclusionary Group Housing rooms would no longer be permitted as ownership units. The second ordinance (Board File No. 211300, “Planning Code, Zoning Map – Group Housing Special Use District”), proposes to create a new Group Housing Special Use District, generally covering the Chinatown and Tenderloin neighborhoods, within which new Group Housing rooms would be prohibited. After three hours of hearing and deliberations, the Planning Commission voted unanimously to recommend approval of both ordinances to the Board of Supervisors, with the following proposed modifications: To the Group Housing Definition Legislation: Increase the common space requirement for Group Housing to 0.5 square feet of common space for every square foot of private space (instead of the proposed 0.25 sf); Require at least 1 kitchen within 15% of the common space (instead of the proposed 50%); Revise the minimum number of kitchens to be at least 1 communal kitchen for every 15 Group Housing rooms (instead of the proposed 20); In addition to Student Housing and 100% Affordable Housing, also exempt units protected under Section 41.3 of the Hotel Conversion Ordinance from common space requirements; Exempt organizations such as Family House from the common space requirements; Allow academic institutions to provide limited cooking facilities in Group Housing rooms; Define the metrics for communal kitchen requirements; Exclude the single-room occupancy (“SRO”) aspect from this specific legislation with the intent to continue discussions on SRO controls in the future; and For the Planning Department to consider establishing a Working Group to further discuss Group Housing intent, best practices, and future legislation. To the Group Housing SUD Legislation: Revise the proposed SUD to exempt Student Housing and 100% Affordable Housing projects; and Exclude the SRO aspect from this specific legislation with the intent to continue discussions in the future. It remains to be seen which, if any, of the Commission’s proposed modifications will be incorporated into these ordinances, which will come before the Board’s Land Use and Transportation Committee at an unknown future date.   Authored by Reuben, Junius & Rose, LLP Attorney Melinda Sarjapur. 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.

Large Residence

San Francisco’s New Large Residence Legislation Unveiled

| Kaitlin Sheber

This past Monday, the Land Use and Transportation Committee unanimously voted to recommend a new scaled-back version of Supervisor Mandelman’s proposed Large Residence Legislation (the “Legislation”) that could greatly affect a large number of homeowners in central San Francisco neighborhoods. As we reported in prior updates on October 4th, July 29th, and March 31st of last year, the original form of the controversial legislation was introduced to discourage a growing trend of large homes. However, after the Planning Commission disapproved the original form of the legislation, a new version has been introduced with significant changes: Central Neighborhood SUD: The proposed new Legislation creates a Central Neighborhoods Special Use District (“Central Neighborhoods SUD”) which includes the Duboce Park, Castro, Noe Valley, and Diamond Heights neighborhoods. The Legislation only affects dwelling units on lots zoned RH and within the Central Neighborhoods. The Legislation does not affect units within the Corona Heights Large Residence Special Use District. Prohibited Dwelling Units: The Legislation would prohibit residential development or expansion that would result in a dwelling unit with over 4,000 square feet of Gross Floor Area (“GFA”). Under the Legislation, accessory parking counts towards the GFA of a dwelling unit. Construction of a home over 4,000 square feet where the Legislation applies would require a variance. Dwelling Units that require Conditional Use Authorization: The Legislation would require Conditional Use Authorization where residential development or expansion of residential buildings would result in a dwelling unit with either a GFA with over a 1:1.2 Floor Area Ratio or over 3,000 square feet of GFA. In granting Conditional Use Authorization, the Planning Commission must consider the following new criteria: The proposed project in context with its neighborhood Whether rental units are removed Whether the number of dwelling units are increased The size of a dwelling unit compared with the largest dwelling unit in a building The property’s historic preservation status Exceptions: The new Legislation does not apply to expansions that result in less than a 15% increase in GFA. The Legislation would apply to development applications submitted on or after January 1, 2022, and does not affect expansions where building permits were issued before January 1, 2022 As noted above, the Legislation was unanimously recommended to the full board on February 14, 2022. Notably, during the hearing, Supervisor Mandelman discussed the potential for expansion of the Central Neighborhoods SUD in the future. Public comment was generally supportive of the Legislation, and the Planning Commission waived its option to hear the Legislation again. The Legislation will next be heard at a Board of Supervisors Full Board meeting, but no date has been set yet.   Authored by Reuben, Junius & Rose, LLP Attorney Kaitlin Sheber. 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.

safety

San Francisco Façade Safety Requirements

| Jody Knight

In 2016, the San Francisco Building Code (“Code”) was amended to require that the façades of certain buildings of five or more stories be inspected periodically by a licensed architect or engineer and that a Façade Inspection and Maintenance Report (“Report”) be submitted to the owner and the Department of Building Inspection (“DBI”). The Code requires the maintenance of façades in accordance with an Administrative Bulletin based on a national standard. The intent of the program is to identify current unsafe conditions that could jeopardize public safety if façade elements fall onto streets and sidewalks below. It is also intended to identify conditions that could deteriorate into unsafe conditions before the next inspection. The requirements apply to Type I, II, III, and IV buildings. Buildings of other construction types and fewer than five stories may voluntarily comply. For inspection of buildings considered to be historic resources, the qualified professional must have expertise in structural inspection and maintenance of historic resources. Reports are to be submitted based on the schedule below, and then at least every 10 years thereafter. Reports for inspections and maintenance work conducted within 10 years of the deadline satisfy the reporting requirement. Buildings constructed under a permit submitted after January 1, 1998 are exempt from having to conduct an initial inspection, but are required to begin periodic inspections 30 years from the issuance of the Certificate of Final Completion for the building. Where a building experiences significant damage due to earthquake, weather, or the passage of time, an inspection must be done within 60 days of discovery of the damage, in addition to immediate action to address the damage. Significant damage includes items that have fallen from a building or items that have cracked or dislodged to become potential falling hazards. It is important to note that buildings built before 1910 were required to submit Reports by December 31, 2021. DBI has alerted the public that in order to avoid penalties, property owners should get started with Reports right away. The next deadlines are as follows: Buildings built between 1910 and 1925: December 31, 2023 Buildings built between 1926 and 1970: December 31, 2025 Buildings built after 1970: December 31, 2027 Reports may be submitted by email to dbi.facade@sfgov.org, or to DBI in person or by mail at 49 South Van Ness Avenue, Suite 500, San Francisco, CA 94103. DBI is to respond to the Reports within 60 days to confirm whether additional information is required and to confirm dates for additional inspections and reports. Once a Report is approved, the owner/owner’s representative will be contacted to pick up the acceptance letter and pay the associated fees. Reports are not deemed complete until all associated fees have been paid. For more about this program, property owners can visit DBI’s Façade inspection and maintenance program page.   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.

construction

The Basics: Construction Logistics Agreements

| Corie A. Edwards

Real estate developers often require agreements from neighboring property owners to coordinate logistical issues during construction. This is particularly true for infill projects in dense urban neighborhoods, where structures are frequently built to the property line and adjacent to existing buildings.  Developers are well-served by considering the logistical needs of their projects during the entitlement period, so that they may begin negotiations with adjacent property owners.  Doing so provides the opportunity to adjust their projects and/or budgets if it appears that obtaining necessary agreements may prove difficult or financially burdensome. Several topics immediately come to mind when considering what kinds of agreements may be required from neighboring property owners: Excavation Whenever a property owner intends to undertake excavation on its property, it is required to provide notice to neighboring property owners that states (a) the depth of the planned excavation, and (b) the date when excavation will begin.  When “excavation is to be of a greater depth than are the walls or foundations of any adjoining building or other structure, and is to be so close as to endanger the building or other structure in any way,” the adjacent property owner must be provided at least 30 days’ notice to protect its property from damage, and it must be given a reasonable license to enter onto the property where excavation will occur in order to do so.  Cal. Civ. Code § 832(3). The tables turn, however, when the “excavation is intended to be or is deeper than the standard depth of foundations, which depth is defined to be a depth of nine feet below the adjacent curb level. . . .”  Cal. Civ. Code § 832(3).  In that case, the excavating owner has the burden to protect the adjacent structure(s) without cost to the adjacent property owner, provided that the adjacent owner provides a license for the excavating owner to do so.  If damage occurs to the adjacent building during the excavation, the excavating owner may be liable for such damage, except for minor settlement cracks. When a project requires a deep excavation, the developer’s engineering team typically prepares a shoring plan.  Tiebacks are often used to support the shoring system, as an alternative to internal bracing.  When tiebacks will be placed under the land of an adjacent property owner, the developer must obtain the adjacent property owner’s agreement to the installation.  An agreement is also required if the tiebacks will remain in place after construction. The form of the negotiated agreement – license or recorded easement – is largely determined by what will happen to the tiebacks after the completion of construction.  If title to the tiebacks will remain with the developer, a recorded easement will be required.  If such title will pass to the adjacent owner, a license agreement may be sufficient.  In either event, the developer should consider how removal of the tiebacks will be handled in the event that below-grade construction on the adjacent property later occurs.  If the tiebacks will be removed, the developer may want to retain control over the removal process, and have an opportunity to repair any damage to waterproofing or other building systems when removal occurs.  It is advisable to consider such issues when the tieback agreement is negotiated. Pre-Construction Inspection Given that a developer may be liable for damage caused to an adjacent structure during excavation, it should document the pre-construction condition of the interior and exterior of the building.  Developers should request the right to conduct such an inspection during initial negotiations with the adjacent property owner.  If there is a dispute later, the pre-construction survey provides the best evidence of the condition of the adjacent building before construction activities commenced. Settlement Monitoring We recommend that excavating developers monitor whether settlement is occurring on adjacent properties during the course of its excavation and other construction activities.  The developer should negotiate the right to establish survey measurements on the exterior elevation of neighboring buildings, and should periodically determine if settlement has occurred.  Consultation with experts will help determine what level of settlement is acceptable, and at what threshold work should stop so that the impact of any settlement may be evaluated. Crane Installation and Operation A mobile crane may be sufficient to facilitate the construction of smaller projects.  In those cases, developers should consider where the mobile crane will be placed and for what period(s) of time.  It may be necessary to negotiate with an adjacent property owner to allow the crane to be temporarily placed on the adjacent property.  Developers should be mindful that some jurisdictions require a neighbor agreement for issuance of a street space permit if the mobile crane will be placed in the adjacent right of way. Most larger projects require the use of a tower crane.  Generally speaking, an agreement from a neighboring property owner is not required if a tower crane will merely weathervane over an adjacent property, and will not carry live loads over neighboring land.  However, when other negotiations are being undertaken, it is advisable to incorporate a crane swing agreement when a tower crane will be used. Scaffolding When a developer’s construction will require the installation of ground-supported scaffolding over the boundary line with an adjacent property, it is necessary to secure consent from the adjacent property owner.  If cantilevered scaffolding will be installed as vertical construction progresses, or if a swing stage may be used during construction, it is recommended that an agreement be negotiated notwithstanding legal authorities concerning the use of airspace over adjacent land. Flashing/Waterproofing In circumstances where a new building will abut an adjacent building, the developer often wants to install flashing or other waterproofing between the buildings.  Where the installation will require access to the adjacent building or the flashing assembly will cross the boundary line between the properties, an agreement should be negotiated.  It is advisable for developers to conduct that negotiation during the pre-construction negotiations of other agreements, rather than undertaking such negotiations near the end of the construction process. Developers should also consider post-installation maintenance when negotiating

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