Third District Court of Appeal Finds that Lay Opinion on Aesthetics Can Support A CEQA “Fair Argument”

On December 17, 2018, California’s Third District Court of Appeal affirmed a judgment setting aside El Dorado County’s approval of a proposed Dollar General store in Georgetown with a mitigated negative declaration.  The Court held that while aesthetics are subjective, “lay opinions can provide substantial evidence to support a fair argument that a project may have a significant aesthetic impact on the environment, triggering the need to prepare an environmental impact report (EIR) pursuant to the California Environmental Quality Act (“CEQA”).”  The Court also held that a planning or zoning finding conducted outside the requirements of CEQA (here, compliance with design guidelines), did not provide a substitute for CEQA review. The case in Georgetown Preservation Society vs. County of El Dorado et al. ((2018) 30 Cal. App.5th 358, filed Dec. 17, 2018), involved a proposed Dollar General store on the main strip of Georgetown, a state Historical Landmark known for its association with the California Gold Rush.  Described as a “quaint” town, it is characterized by older structures from the era.  The developer SimonCRE Abbie, LLC proposed a 9,100 square foot store with a 12,400 square foot parking lot to be constructed on three lots on Main Street.   From the start, the proposed project met resistance from the community, who felt that the building was too large and would not fit in visually or functionally with the surrounding context.  Throughout the approval process, numerous members of the public spoke in opposition of the project, including a licensed architect, professional engineer, and city planner.  The majority of the commenters were residents of Georgetown and felt that the project was “severely mismatched with the adjacent historic buildings.” The project was approved by the Planning Commission and appealed to the Board of Supervisors, who found that the project complied with the County Zoning Ordinance, “substantially conformed to the El Dorado County Historic Design Guideline(s)” and that it would not substantially detract from Georgetown’s historic commercial district.  The County relied on the mitigated negative declaration, which was tiered off the County’s 2004 General Plan EIR.  The County’s CEQA analysis found that the project incorporated architectural features and styling, materials, and colors, consistent with the Historic Design Guide for the area.  As such, the “impacts would be less than significant”. Both the trial court and District Court of appeal disagreed.  “A public agency’s own design review is not a substitute for CEQA review” – and that conformity with a general plan does not insulate a project from EIR review where it can be fairly argued that the project will generate significant environmental effects (known as the ‘fair argument’ standard). The District Court found that the public testimony – lay opinion – was sufficient to qualify as substantial evidence to support a fair argument that there would be a significant aesthetic impact by the project.  As such, the County had to conduct an EIR to evaluate the potential impacts.  Importantly, the court found that lay commentary on nontechnical matters is admissible and probative, so that lay testimony can satisfy the fair argument test.  “Personal observation on [these] nontechnical issues can constitute substantial evidence” (citing Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 399).  In this case, a large number of interested people believed the project would have a significant and negative effects on aesthetics.  Their comments that the project was too big or boxy to blend in so that the final building would “damage the look and feel of the historic center of Georgetown” was “enough to trigger an EIR.”  Despite the subjective nature of aesthetic concerns, it “is clear that the project may have a significant adverse environmental impact.  Whether it will or will not have such an impact is a question that an EIR is designed to answer.” While a few stray comments may not be enough, “the evidence here goes beyond a few people expressing concern about the aesthetics of the project.”  The court also held that County’s failure to make explicit findings in the record on the credibility of the public comments precluded its “manufacturing after-the-fact findings” to justify its dismissal of the public comments on the ground that they did not constitute “substantial evidence.” Both CEQA practitioners and project proponents have long been frustrated by the lack of definitive ‘bright line’ standards for evaluating a projects’ aesthetic impacts.  What is important is that context is important, and this case highlights how projects within designated historic areas cannot solely rely on design guidelines to satisfy CEQA review.   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.

SF Planning Commission Considers Proposed Statewide Housing Bill

Last Thursday, the City’s Planning Commission held a lengthy informational hearing on SB 50 – proposed statewide legislation intended to spur housing development in transit and job-rich areas. SB 50 was introduced by Senator Weiner on December 3, 2018.  It is essentially a revised version of last year’s failed SB 827, reformulated to expand its area of impact and to address some critics’ concerns about the potential for tenant displacement. The bill would apply to residential projects on sites zoned to allow housing and located within either a “jobs rich” area (which is not well-defined but would likely cover much of San Francisco) or in proximity to public transit (within ½ mile of an existing rail transit station or ferry terminal, or ¼ mile of a “high quality bus corridor”).  Qualifying projects must also designate at least 2/3 of their total area for residential development and meet a minimum on-site inclusionary housing requirement.  The inclusionary amount is not set, but Planning staff anticipates this criteria would be met through compliance with the City’s local program. As written, SB 50 would provide the following incentives: Projects located within ¼ mile of a rail transit station or ferry terminal would have a minimum height limit of 55 feet; minimum Floor Area Ratio (FAR) of 3.25; and would be exempt from minimum parking requirements and residential density limits. Projects located between ¼ and ½ mile of a rail transit station or ferry terminal would have a minimum height limit of 45 feet; minimum FAR of 2.5; and would be exempt from minimum parking and residential density requirements. Projects located within ¼ mile of a “high quality bus corridor” or within a “jobs-rich” area would be able to waive minimum parking requirements up to 0.5 spaces per unit and would be exempt from residential density requirements. Qualifying projects could also request up to three “incentives or concessions,” which are identical to those under State Density Bonus Law.  This could include exceptions or reductions to local zoning standards for rear yard setback, unit exposure, open space, etc.   These requests could only be denied if they would either (1) not result in an actual cost reductions for the project; or (2) result in a specific adverse impact on public health and safety, or an historic property listed on the California Register. SB 50 would not eliminate local design standards or approval processes, so qualifying projects would still need to obtain all applicable discretionary approvals (i.e. Conditional Use Authorizations) and undergo CEQA review. Planning staff also interprets the language of SB 50 to allow layering of its density bonus and zoning incentives with those provided under State Density Bonus Law.  This could potentially allow qualifying projects to achieve an additional state density bonus of up to 35% on top of increased development capacity under SB 50, and to request up to a total of 6 concessions and incentives. Although staff anticipates SB 50 could potentially result in some up-zoning throughout most of San Francisco, the bill includes some significant exemptions intended to minimize tenant displacement.  SB 50 would not apply to any property where there has been a rental tenant in the past 7 years, or where a rental unit has been removed from the market through an Ellis Act eviction in the past 15 years.  The City does not currently maintain a registry of rental properties, but that according to a 2017 American Community Survey, roughly 63% of San Francisco’s occupied housing units are occupied by renters. The bill would also provide a temporary 5-year exemption for “sensitive communities,” which are defined as areas vulnerable to displacement pressures.  These communities have not yet been identified, but staff anticipates they would include the areas identified as part of the recent Committee to House the Bay Area (CASA) process.  In these areas, local governments would be given up to 5 years to adopt local re-zoning that encourages development of multi-family housing near transit and meets the same overall residential capacity and affordability standards provided by SB 50.  If that is not done by January 1, 2025, SB 50 would take effect in those areas. Planning staff also noted that the practical effect of SB 50 would be lessened by the fact that many San Francisco neighborhoods that have been rezoned in connection with Area Plans already de-control density and have height limits set above the minimum thresholds in SB 50.   The properties anticipated to experience the greatest change if the bill passes as-written would be single-family and owner-occupied duplex properties in the City’s lowest-density (RH-1 and RH-2) zoning districts. Thursday’s hearing included nearly three hours of public comment, after which Commissioners weighed-in with their initial thoughts on the legislation.  Commissioner comments varied, from support for the bill as a necessary measure to correct years of housing under-production to strongly-voiced concerns that it will undermine local zoning discretion and misses the mark on providing adequate tenant protections. SB 50 is currently winding its way through the legislative review process, and is anticipated for vote in the Senate Transportation and Housing Committee at some point in the coming weeks.  Amendments and modifications to the current language are to be expected as part of the legislative review process.   Additional information from Planning staff on SB 50 and its potential impacts on local development is available at: http://commissions.sfplanning.org/cpcpackets/SB%2050_Memo.pdf   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.

New State Condo Law Protects HOAs from Financial Fraud and Embezzlement

Responding to reported cases of fraud and embezzlement against homeowners associations (“HOAs”), the California Legislature enacted Assembly Bill 2912 (“AB 2912”), which became effective on January 1, 2019.  AB 2912 amends the Davis-Stirling Common Interest Development Act by adding safeguards to protect HOAs for common interest developments by increasing HOA board of directors (“Board”) oversight over the HOA’s financial accounts, establishing tighter control over monetary transfers, and generally protecting HOAs from financial fraud. The key provisions of AB 2912 are summarized below: Civil Code Section 5380 has been amended to prohibit an HOA’s managing agent from making transfers of greater than Ten Thousand Dollars ($10,000) or five percent (5%) of an HOA’s total combined reserve and operating account deposits, whichever is lower, without prior written approval of the Board. Civil Code Section 5500 now requires an HOA Board to review the HOA’s financial statements monthly (rather than quarterly under the prior law).  The Board’s review must now include more complete financial statements and HOA account records. Civil Code Section 5806 requires that HOAs maintain fidelity bond insurance providing coverage for dishonest acts, including computer fraud and funds transfer fraud, by an HOA’s managing agent and their employees, in addition to the HOAs’ directors, officers and employees.  The coverage must be in an amount equal to or more than the combined amount of the reserves of the HOA and the total assessments of the HOA for three (3) months. HOA Boards and managers should review their procedures to make sure they comply with the new legal requirements.  While AB 2912 may increase the burden on HOA Boards and HOA managers, the new rules will help to ensure that HOAs maintain control over their finances and protect the investments of home owners.   Authored by Reuben, Junius & Rose, LLP  Attorney Jay Drake 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.

Employee Cafeterias and New Construction ADUs – A Legislative Update

Tomorrow, the San Francisco Planning Commission will consider two interesting legislative proposals on hot-button land use topics in the city. One would restrict—but not prohibit—new employee cafeterias in office developments, modifying a proposal from last year to ban them outright. The other would authorize accessory dwelling units in new construction. Conditional Use for New Employee Cafeterias The employee cafeteria proposal, introduced at the Board of Supervisors last summer, initially prohibited all new cafeterias. Finding an outright prohibition a bridge too far, the Planning Commission passed a motion disapproving the ordinance. In December 2018, the legislation was amended at the Board of Supervisors’ Land Use Committee to require a conditional use approval instead. That retooled proposal is back in front of the Planning Commission tomorrow. The updated legislation proposes a number of factors for the Planning Commission to weigh when deciding on a cafeteria project. Some factors include: the cafeteria’s size; if it would be open to the public; its “impact” on existing businesses in the neighborhood; if meals would be free or heavily subsidized; if employers will also subsidize or pay for meals outside the cafeteria; the ability of existing restaurants to “absorb” increased demand that the office project would bring; the impact of cafeteria employees on demand for housing, public health, and social services; and if the cafeteria is open to all employees and contractors, such as janitors, servers, and security guards. It appears the Planning Department recommends only including some of these factors, specifically cafeteria size; if it will be open to the public; impact on neighboring business; and if any subsidies or vouchers will be offered. Staff also recommends adding a factor about promoting economic opportunities for local residents and businesses through OEWD’s workforce system and First Source Hiring program. At least a few of these factors may prove hard for project sponsors to demonstrate, including impact on existing businesses and those businesses’ ability to absorb increased demand, as well as the  cafeteria employees’ demand for housing, public health, and other social services throughout the city. Additionally, many criteria are specific to employers themselves and not to project sponsors or developers, potentially causing uncertainty about when an employee cafeteria could or should be proposed. Notably, the Planning Department also recommends cafeterias be exempt from the CU requirement if they are located on the ground floor, open to the public, and employers either only subsidize 50% of meals or provide vouchers for use outside the cafeteria. ADUs in New Construction Recognizing that accessory dwelling units—historically called in-law units and now more commonly referred to as ADUs—can provide much-needed affordable by design housing, California lawmakers in recent years passed a series of amendments to streamline ADU production. San Francisco policymakers and elected officials have in large part worked quickly to implement state law. In particular, the Planning Department and the Mayor’s Office have consistently proposed ways to cut through red tape, while still maintaining certain development requirements. This most recent ADU ordinance continues that trend by addressing a simple way to add more housing: permitting ADUs in new construction, consistent with a new state law, and further streamlining some of these units that are the least likely to raise neighborhood concerns. The Planning Department proposed a few interesting features for new construction ADUs. First, Planning staff recommends a 1,200 square foot cap on ADUs that can be approved ministerially. Larger ADUs can still be approved, but they would receive more input from staff and likely take longer to get through the permitting process. Staff also suggests reducing the amount of open space required for ADUs in RH zoning districts, recognizing that larger open space requirements for ADUs could lower the appetite of a property owner in these districts to pursue an ADU. Because the RH zoning districts cover a significant portion of San Francisco’s west side, this change could incentivize new housing in parts of the city with fewer residential projects. On a macro level, being able to add ADUs into new construction projects is a helpful and logical next step to streamline production and get people living in those units. Currently, property owners in San Francisco can only process ADU permits after projects are constructed. While the Planning Department has implemented a number of best practices to streamline ADU permitting, eliminating the need to go through the building permit process twice is a common-sense solution. We will continue to track these proposals as they make their way through the legislative process.   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.

SB 330 Takes Aim at the Housing Crisis

Last week, Senator Nancy Skinner (D-Berkeley) introduced SB 330—the Housing Crisis Act of 2019. Unlike other housing-related bills introduced this legislative session, this bill would declare a statewide housing emergency. Through January 2030, the proposed legislation’s multipronged approach would streamline project approvals, freeze zoning controls once an application is deemed complete, restrict the assessment of fees to 2018 levels, limit new legislation that would impede residential development, suspend the applicability of certain development standards, and create new minimum standards for occupied substandard buildings. Most of these provisions would only apply in cities and counties with high rents and low vacancies, although the specific thresholds have not been defined yet. The legislation attempts to streamline project approvals by limiting the number of “de novo” public hearings and requiring that a decision on the project be made at one of up to three hearings. This 3-hearing limit would eliminate the possibility of endless hearings and continuances, thereby reducing some of the risk associated with bringing a large and controversial housing development before the Planning Commission. Although it is unclear whether or not the 3-hearing limit also includes appeals, if it does, then this provision could have an even more profound effect on the approval process, especially in cities like San Francisco where there are multiple avenues for appealing a project. To keep cities from delaying the third and final hearing, another streamlining provision would require cities to act on an application within 1 year after it is deemed complete. Although this may be a helpful provision to point to if it looks like the review process will exceed 1 year, it is unclear how effective it would be without a corresponding change under CEQA, which tends to drive the overall approval timeline. The legislation’s proposed vesting of zoning controls is arguably the most aggressive provision. It prohibits any city or county from enforcing any changes in the zoning controls or the general plan after an application is deemed complete. This is much sooner than most other methods of establishing vested rights, which usually occur after project approval with a vesting tentative map or development agreement, or after construction begins for projects without those entitlements. This would also have the benefit of simplifying grandfathering issues. Aside from the streamlining and vesting provisions, the legislation also: Freezes fees and exactions at the rates applied as of January 1, 2018; Eliminates any fees assessed against units that are affordable to households with incomes at or below 80% AMI; Requires cities to make a determination about the historic status of the site when the application is deemed complete; Prohibits the enforcement of parking requirements; Prohibits changes to the zoning or general plan classifications that would reduce the intensity of residential development permitted, including height, density, FAR, and open space; Prohibits design standards that would be more costly than those in effect as of January 1, 2018; Prohibits development moratoriums and caps on the number of discretionary permits for housing; and Requires the State to develop minimum health and safety building standards that would allow occupied substandard buildings to be deemed complaint with the Building Code for 7 years. In an effort to avoid displacement, the bill would place an outright ban on the demolition of rent control units or Section 8 housing, while prohibiting the demolition of affordable housing units unless tenants are offered relocation benefits and the right of first refusal for units in the new development. In introducing the legislation, Senator Skinner pointed out that California is ranked 49th out of the 50 states in terms of housing units per capita, and that the housing crisis is costing the State an estimated $140 billion a year in lost economic output. Just to keep up with current population growth, California needs an estimated 180,000 additional units of housing each year. And according to the California Department of Housing and Community Development, production has fallen far short, with an average of less than 80,000 new housing units being developed annually over the last 10 years. Although SB 330 would address some of the issues that are fueling the housing crisis, it may not go far enough.   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.

Easement Limitations – Recent Clarifications

What happens when an easement agreement does not specifically state all of the purposes for which it may be used?  How do we know what the parties intended?  If not specifically stated, is the scope of the easement based upon its historical use or a reasonable use?  A recent case of Zissler v. Saville addressed these issues and confirmed what a “bona fide purchaser” may be subject to due to a course of conduct by the parties.  (29 Cal.App.5th 630 (2018)). In Zissler, two neighbors brought actions against the other to confirm the scope of a recorded easement affecting both of their properties.  The easement provided “Grantee access, ingress and egress to vehicles and pedestrians over Grantor’s real property to Grantee’s real property.”  The easement further specified the exact dimensions of the easement area for which such use rights existed.  The owner of the property burdened by the easement (Zissler) alleged that the easement was always used solely for landscaping purposes regardless of the language of the easement and should be limited to such use on an ongoing basis.  The new owner of the property which benefited from the easement (Saville) argued that the easement clearly provided for access, ingress and egress and Saville had purchased the property relying on such right for construction of his home.  Since he had recently purchased the property, Saville did not have a reason to know of this landscaping use limitation based upon the plain language of the easement. The Court held that an easement for a broad grant of right of way use is limited only by its reasonable use based upon the scope set forth in the written agreement and not its historical use through the parties’ course of conduct.  They found that the easement was specific enough in stating the particular uses and the particular area burdened.  The Court noted that if the easement had been more general without the specifications of particular uses and a set easement area then the scope of the easement could have been limited to its historical use and not what may be reasonable based upon the plain language.  In its analysis the Court considered evidence from the prior owner of the benefited property (Saville’s Property) stating that the parties intended the easement only for landscaping purposes.  The Court found, however, that the relevant intent of the parties is evidenced by the written words of the parties and not either party’s subjective intent. This case also discusses the issue of easement analysis in the context of a “bona fide purchaser” since Saville was a recent purchaser of the benefited property.   A “bona fide purchaser” is one who makes a payment of value for property, in good faith and without actual or constructive notice of another’s rights to that property.  The Court found Saville met the first two requirements and inquired as to whether he had actual or constructive notice of the landscaping limitation of the easement scope based on the fact that Saville had been notified by the seller of the benefited property that the easement had been used for gardening.  The Court found that such statement was not, on its own, knowledge of any limitation since the prior owner did not state that landscaping was the only permissible use of the easement, only that it had been used that way in the past.  Without any further knowledge of the limitation, the Court found the easement language to be express and unambiguous for which Saville, as a “bona fide purchaser”, could reasonably rely. The Zissler case highlights that although historical use can be an important factor in cases with general easements, the relevant analysis with express and unambiguous easement agreements is the reasonable use based upon the plain language.  If an easement document is not explicit with regard to scope, the court may look to the parties’ historical course of conduct to further define and possibly limit its permitted uses.  It seems an additional factor considered here in finding for reasonable use rather than historical use is because a “bona fide purchaser” was involved in the dispute.  The Court found that as long as such agreement is fairly express and unambiguous in its terms, if a party purchases a property without specific knowledge of easement limitations attributable to historical course of conduct by the parties, the purchaser can reasonably rely on the plain language of the easement for its scope.  This implies that if this dispute was between the original parties to the easement, the Court may have considered historical use in its analysis of scope, although the case was silent on that issue.   Authored by Reuben, Junius & Rose, LLP  Attorney Lindsay Petrone 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.

Is the San Francisco Condo Lottery Dead?

Prior to 2013, the City of San Francisco (“City”) implemented an annual condo conversion lottery system for 2-6 unit residential and mixed-use properties. But with the lottery resulting in a backlog of applications extending well over a decade, the Board of Supervisors passed Ordinance No. 117-13, ushering in changes to Article 9 of the City’s Subdivision Code (San Francisco Subdivision Code, § 1300, et seq.) and temporarily supplanting the lottery system with an “Expedited Conversion” program (the “ECP”). The following summarizes the scope of the ECP, its current status, and what property owners hoping to accomplish a condo conversion should be prepared for in the coming years. The ECP halted the conversion lottery program for a minimum of 10 years, and was intended to allow properties stuck in lottery purgatory to convert to condos over the course of a 7-year period. Under the ECP, the Department of Public Works was required to stop accepting and processing new condo conversion applications for properties that would otherwise be subject to the lottery. (Subdivision Code § 1396.5) Controversially, the ECP also required applicants to offer binding, lifetime leases to all tenants who do not own the property in which they reside (“Tenants”), and included a poison pill that would essentially suspend the ECP in the event litigation were filed challenging the legality of the ECP. (Subdivision Code §§ 1396.4, 1396.5) In light of the lifetime lease provision, such a legal challenge was considered at the time to be a fait accompli. Sure enough, in June 2017, a federal lawsuit was filed by San Francisco property owners against the City in the Northern District of California. The lawsuit, which challenges the constitutionality of the ECP’s lifetime lease provision, brought the vast majority of the ECP to an abrupt halt. This matter is now at the court of appeals, with no timeline for resolution. As outlined by the Department of Public Works, the impacts of the ECP’s suspension for various categories of ECP applications are as follows: Notably, 2-unit, owner-occupied residential buildings are not subject to the ECP and may bypass the lottery system altogether. With regard to such properties, when the separate owners of each unit have occupied the building for at least 1 year they may submit an application for condo conversion. More information for 2-unit, owner-occupied condo conversions can be found at the Department of Public Works’s website (Residential Condominium Conversion Application Materials & Two Unit Owner Occupied Conversions). Barring further changes approved by the Board of Supervisors or court action, the Department of Public Works will not begin accepting new condo conversion applications, nor conduct a condo conversion lottery, until at least 2024. Yet again, local property owners are left to the mercy of the City and court system to determine their property rights.   Authored by Reuben, Junius & Rose, LLP  Attorney Michael Corbett 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 Eliminates Parking Requirements Citywide

On December 11, 2018, the Board of Supervisors passed an ordinance (the “Ordinance”) eliminating required parking minimums citywide for all uses. The vote was 7-4, with Supervisors Cohen, Safai, Stefani, and Yee voting against it. Mayor Breed signed the Ordinance on December 21 and it went into effect on January 21. Those in favor of the measure called it a forward-thinking policy that brings the Planning Code in line with the City’s Transit-First Policy. Proponents also argued that parking increases the cost to build housing and takes up space that could otherwise be devoted to walk-up residences, retail spaces, or landscaped areas. Those against the change expressed concern that it would hurt seniors and those in parts of the city where public transit options are lacking. To that point, Supervisor Cohen at one point asked that District 10 be carved out from the Ordinance, citing the lack of reliable transit in the area. She later withdrew that request. In reality, the Planning Department and Commissioners have long been pushing back against proposals that include large amounts of parking, and developers looking to build less than the required amount could already circumvent the minimums by providing increased bike parking instead. The elimination of the parking requirements was initially recommended by the Planning Commission as part of legislation to amend Better Streets Plan improvement requirements and curb cut restrictions. That legislation aimed to modify the triggers that would require project sponsors to construct streetscape improvements and to expand curb cut restrictions for off-street parking and loading to most zoning districts and certain designated streets, including those on the Citywide Transit Network and any officially adopted bicycle routes or lanes. The substance of that ordinance (BOS File No. 180914) was approved by the mayor on November 20, 2018, and the elimination of parking requirements was pulled out as a separate piece of legislation. Historically, new residential projects in R districts were generally required to provide one parking space for each dwelling unit. Required parking minimums also applied to most non-residential uses, depending on the specific use type and zoning district. With the enactment of the new changes, parking will not be required for any use type anywhere in the city.  Accessory parking is still allowed, up to a maximum amount. Previously, a use that triggered a minimum parking requirement could typically include accessory parking up to an amount not exceeding 150% the required number of spaces. Now, there is no minimum number of spaces that must be provided, and most use types may provide up to 1.5 spaces for each one space that was required under the old rules. You can review the maximum parking ratios for each use established by the new ordinance here. The Ordinance does not amend Section 151.1, which regulates permissible off-street parking in the following districts: NCT, RC, RCD, RTO, Mixed Use, M-1, PDR-1-D, PDR-1-G, and C-3 Districts, and to the Broadway, Excelsior Outer Mission Street, Japantown, North Beach, Polk, and Pacific Avenue Neighborhood Commercial Districts. As always, parking in excess of the maximum accessory amounts may be permitted only as a separate use, where the zoning controls for the particular district allow. Notably, the Ordinance includes a grandfathering provision which carves out any project that submitted an environmental or development application prior to the effective date of the Ordinance. Which means that if you already have an application on file, the old rules will continue to apply.   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.

Streamlining Construction Permits

Meeting the needs of commercial projects after entitlement can be difficult when City agencies are tasked with solving a housing crisis. The Small Business Permit Streamlining Ordinance seeks to update several areas of code that affect various agency processes and may contribute to an elegant solution for commercial property owners exploring options with tenants for shared space. The ordinance proposes to align regulation of restaurant enclosures for outdoor food service and restroom requirements with state standards; amend the Planning Code to clarify that a Type 23 liquor license may be used in conjunction with a Bar or Restaurant use;  amend the definition of a Bar to provide for consistent treatment of Type 64 liquor licenses; to reduce the distance measured for Retail Sales and Services uses in Neighborhood Commercial zoning districts to any neighborhood commercial district; to reduce the distance measured for nonconforming uses in RH (Residential, House), RM (Residential, Mixed), and RTO (Residential, Transit-Oriented) districts to any neighborhood commercial district; and importantly, to allow Limited Restaurant use as an Accessory Use which would enable more flex use spaces in neighborhoods who want to encourage and maximize a thriving local scene. For more information on this, read the legislation here:  File No. 181211. These are times that keep the City focused on a healthy socio-economic future requiring balance between housing and the associated commercial infrastructure needed to sustain the inhabitants, pursue cultural growth and allow neighborhood flavor to emerge in partnership with neighborhood community groups questing to influence use of their local spaces. Commercial property owners may also be interested in following the crafting of recently proposed legislation which would amend the Building Code to require the assessment of a fee within the first 30 days of vacancy for any storefront that is not tenanted regardless of whether it is offered for rent or lease; and require annual safety inspections within sixty days of the annual registration renewal and the issuance of a Notice of Violation with a penalty of four times the registration fee for failure to register within thirty days. If passed without reform, this legislation has the potential to over-burden the property owner and require them to navigate substantively bureaucratic code enforcement issues especially if their potential tenants meet with delay working through after entitlement permitting for their tenant improvements. For more information on this, read the legislation here: File No. 181213. The Small Business Permit Streamlining Ordinance may offer some relief, but it does not provide additional staff to assist with the increased review times for commercial projects due to ADU and housing being given priority. In a City that lacks housing, prioritizing these projects without increasing staff or allocating paid overtime for in-house review can critically impact commercial alteration projects and contribute to costly and seemingly ever moving targets for start of construction. San Francisco entitlement and permitting processes offer unique challenges to estimating project timelines. Stakeholders need to more carefully assess what to include in the initial permit set being supplied for Planning review when construction timelines, which are dependent on the after entitlement issuance of building permits, are a factor. The Planning Department can review an architectural set – best known as a “Site” permit set for entitlement; however that same permit set does not and cannot be converted to a “Full” building permit set automatically after planning review.  Filing with a design plan as a Site permit locks the project sponsor into a two-phase review process and may contribute to a property owner realizing excessive, financial impact, if the afore-mentioned vacant storefront legislation does not include a provision giving deferral for fees, enforcement and penalties while a tenant improvement is under permit review. The Land Use Committee should be encouraged to expand the vacant storefront legislation to include alternative paths for property owners who can demonstrate that a potential tenant is in process of entitlement and subsequent permitting. While projects requiring more than an hour of review, do not qualify for over the counter processing at the building department, in house review of a full permit can cut permitting time in half and is one way design professionals and property owners can help guide a prospective tenant toward a more rapid occupancy of their buildings.   Authored by Reuben, Junius & Rose, LLP  Permit Consulting Manager 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.

Think residential projects in San Francisco could not get more complicated? Think again.

On December 11, 2018, the San Francisco Board of Supervisors introduced legislation that would significantly impact the demolition and modification of residential units (BOS File No. 181216). The Planning Code requires most “demolitions” of residential units to obtain Conditional Use (“CU”) approval after a hearing by the Planning Commission, whether or not the unit is legal. Demolitions include not only the full elimination of a unit, but also renovations that remove a certain percentage of an existing structure. Therefore, changes to what is considered a demolition could dramatically increase the number of projects required to seek CU approval. In addition, the legislation would require CU approval for many residential additions. As introduced, the legislation would do the following: require CU approval for most “major expansions” of residential buildings, defined as a 10% increase in square footage through vertical addition or 20% through horizontal addition, with exceptions for limited additions of one or two stories in the rear yard and Accessory Dwelling Units, and possible waiver of the CU requirement by the Zoning Administrator; remove the existing exception that allows demolition without CU approval of single-family homes in the RH-1 and RH-1(D) Districts that are demonstrably not affordable; provide new standards for what residential renovation projects constitute a “demolition” – removal of more than 50% of the sum of all existing above-grade external elements, removal of more than 25% of the surface of all external walls facing a public street, or removal of more than 25% of the building’s internal structural framework, bearing elements or floor plates, including all work permitted for the property within the prior five years; change the Building Code definition of demolition to align with the Planning Code and require submission of a report to DBI by a structural engineer; require the assigned planner to review demolition calculations, including the percentage of the interior and exterior elements of the existing structure to b removed and confirm the accuracy and completeness of plans for all projects, including conducting a site visit if necessary; impose a more restrictive standard on projects shifting square footage from one unit to another, requiring CU approval where a project reduces the square footage of a unit by more than 10% (currently 25%), and prohibiting merger of units resulting in any unit larger than 1,200 square feet; and, increase penalties for violation of demolition, merger and conversion restrictions, including both monetary penalties and the requirement that the original structure be rebuilt. Projects that have received final approval from the Planning Department or Planning Commission prior to the effective date of the legislation would not be subject to the new rules unless the scope of work increases. One interesting aspect of these changes is the interplay between demolition requirements and the Discretionary Review (“DR“) process, under which neighbors can challenge projects that propose an expansion of the existing envelope and have that challenge heard by the Planning Commission. If a project will be heard by the Planning Commission whether or not a DR is filed, there is less incentive for property owners to compromise with neighbors to avoid a Planning Commission hearing.  Therefore, we would expect both a greater number of hearings, and more contentious battles at the Planning Commission. The legislation is currently scheduled to be heard by the Planning Commission on March 7. It could be amended before Planning Commission hearing or after it returns to the Land Use and Transportation Committee of the Board of Supervisors, which is chaired by the primary sponsor of the legislation, Supervisor Aaron Peskin. Given the number of projects impacted, City agencies and numerous property owners will be voicing their opinions about this legislation. Stay tuned for updates.   Authored by Reuben, Junius & Rose, LLP  Partner, 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.

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