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.

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.

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.

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.

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.