San Francisco Apartment Association
SFAA Magazine Archives

August 2004

Planning Ahead

Typical Planning Department Approvals

by M. Brett Gladstone

Adding Dwelling Units
You may add an additional dwelling unit to your building or on your property, if you meet the following criteria:

  • the additional unit is permitted under the density limitations of your Zoning Use District;
  • the height limitation for your Height and Bulk District is met;
  • the useable open space and rear-yard requirements are met;
  • any side-yard requirement for lots zoned RH-1(d) is met;
  • any front set-back requirement is satisfied; and
  • one additional off-street parking space is provided for each unit.

In addition to these Planning Code requirements, you should check with the Department of Building Inspection for other requirements, like sprinkler systems and fire escapes. All alterations or new construction require a building permit, which is reviewed by a planner for consistency with the Planning Code and General Plan.

You may receive waivers (variances) for all but the first two items listed above. The first two items require “zoning changes” as discussed below

Special Approvals and Situations
All of the following proceedings require significant additional effort and extra application fees beyond a building permit. There are no guarantees regarding the outcome since there is considerable discretion and public involvement with each process. You will find that an experienced land-use attorney is often necessary at this point. If you are successful in obtaining a special approval, you still need to obtain a building permit. Often owners go through the following processes before applying for a building permit in order not to waste time (and architectural and permit fees) on making a building permit application.

Variances
When your project fails to meet a quantitative standard of the Planning Code you may apply for a variance. You must complete an application form and pay an application fee based on the projected cost of your project. In completing the application, you must demonstrate that your project satisfies the five requirements set forth in Section 305 of the Planning Code. The Zoning Administrator will research the facts associated with your application, conduct a public hearing on the matter and issue a decision following the hearing. Decisions may be appealed to the Board of Appeals, but your appeal must be filed within 10 days of the written decision. As a practical matter, a variance is hard to obtain if there is much neighborhood opposition to it.

Conditional Uses
When your intended use does not fall within the principal uses established for the Zoning Use District that applies to your property, it may be permitted as a Conditional Use. You should study Articles 2, 7 and 8 of the Planning Code to determine whether your intended use could qualify for a conditional use permit. If you believe your use may qualify, you must prepare a conditional use application and pay the application fee. The city's Planning Department will research the facts and prepare a recommendation for action by the Planning Commission. The Commission will conduct a public hearing and reach a decision by majority vote. Frequently, the Commission attaches mandatory conditions to its approvals such as design changes or special provisions for parking. Commission decisions may be appealed to the Board of Supervisors, which may overrule with a two-thirds vote.

Zoning Changes
When your intended use does not fall within either the principal uses or the possible conditional uses for your Zoning Use District, you may apply for a zoning change. However, changes in zoning are very difficult to justify; they are expensive and few applications are approved. Either you or a member of the Board of Supervisors must submit your application to the Planning Department, which will research the effects and prepare a recommendation for action by the Planning Commission. A public hearing is conducted by the Commission, which reaches its decision by majority vote. When the Commission approves the proposed change, its decision is submitted to the Board of Supervisors for final action by majority vote. If the Planning Commission disapproves a proposed change, an appeal may be made to the Board of Supervisors, which can overrule with a two-thirds vote (when a property owner has initiated the zoning change).

Lot Splits
If you wish to divide your lot into multiple lots, you will be subject to the Subdivision Code that is administered by the Department of Public Works, Bureau of Street Use and Mapping. The Bureau refers the application to the Planning Department for its determination that the proposed lots conform to Planning Code standards such as lot size (generally, at least 1,750 to 2,500 square feet) and width (generally 25 feet), and conform to the General Plan.

Board of Appeals
After a building permit (or demolition permit) is approved or denied, any citizen may appeal the approval (or denial) to the Board of Appeals. Permits that are before the Planning Commission through the conditional use process, however, cannot be appealed to the Board of Appeals. This board may overrule the issuance or denial of any permit by a vote of four of its five members.

Landmarks and Historic Districts
Certain buildings can be architecturally and/or historically significant and have been designated as such. Similarly, certain parts of some neighborhoods in the city have been designated as historic districts. When changes are proposed to the exterior of landmarks or to buildings in historic districts, the proposals usually must be reviewed by the Landmarks Preservation Advisory Board, which advises both the Planning Department and the Planning Commission. Somewhere between 17,000 and 22,000 city buildings can be subject to review by the Landmarks Board.

Nonconforming Uses and Noncomplying Structures
A nonconforming use is a land use that was permitted under all codes in effect at the time the use was established but today would no longer be permitted. For instance assume an apartment building with two flats was built in 1907, prior to the adoption of zoning controls. Today the lot may be zoned RH-1, which would only permit one unit per lot, but because the building was constructed legally in 1907, it remains legal today. Many commercial nonconforming uses in residential districts are assigned termination dates, after which time the uses must be replaced with uses permitted today. For instance, a hotel or retail use in a residential zoning district might have been assigned a termination date of 1998. By 1998, the property would have had to become a use permitted within the zoning district. Nonconforming uses in residential districts generally cannot be expanded in either the area or in the intensity of use.

A noncomplying structure is a structure that was built in a way that was permitted under the codes in effect at the time of construction but would not be permitted today. For example, assume that a cottage was built in the back of a lot in 1910, before there were any zoning controls. Today, this property is zoned RH-1, where all new buildings must leave room for at least a 25 percent rear yard. This existing cottage is a noncomplying structure because it covers the rear yard. The noncomplying portions of structures cannot be enlarged. If noncomplying structures or nonconforming uses are destroyed by an act of God, they can be rebuilt and reestablished if work is started within a year after destruction. If they are demolished or abandoned voluntarily by the owner or tenant, they can only be rebuilt and reused in ways that conform to today’s zoning rules.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature and should not be used in place of advice on specific code requirements. The author does not intend the text of this article to provide legal advice to the reader who should seek the advice of professionals regarding the specifics of their project. M. Brett Gladstone is a partner in the San Francisco real-estate law firm of Gladstone & Associates, a firm that works exclusively in the areas of real estate and land-use law. The author can be reached at 415-434-9500. Copyright © 2004 by the San Francisco Apartment Magazine. All Rights Reserved.