Planning Ahead

Anticipate Disapprovals When Altering Old Buildings

by M. Brett Gladstone

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 would not be permitted today. 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; however, 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 be assigned a termination date of 1998. By 1998, the property would have had to be torn down or altered to conform to a use permitted in the zoning district. If this was not desirable, an owner needed to petition the Planning Department for a permit to continue in its present use. Nonconforming uses in residential districts generally cannot be expanded in area or in 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, and all new buildings in such a zone 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.

Landmarks and Historic Districts
Certain buildings that are architecturally and/or historically significant have been designated as landmarks, the highest status. Many more (about 20,000) are designated architecturally significant. Similarly, certain parts of some neighborhoods in the city have been designated as historic districts. Somewhere between 17,000 and 22,000 city buildings can be subject to design change review by the Planning Department staff and sometimes by the Landmarks Advisory Board, if they received a high rating on the city’s 1976 Windshield Survey. This refers to a very informal rating that the Planning Department staff gave to almost 20,000 buildings (without notifying property owners) by driving around the city in 1976 and observing what certain planners thought were noteworthy buildings. Most owners do not even know that their buildings have been given such status. Recently, even changing exterior windows is subject to the approval of the Planning Department staff. To find out how your building is rated, you may call the Planning Department at 415-558-6377 or visit their first floor counter at 1660 Mission Street.

The Landmarks Preservation Advisory Board, which advises the Planning Department, reviews all proposed changes to the exterior of landmarks and many architecturally significant buildings. The Landmarks Board also sometimes reviews proposed exterior changes to buildings that have not been officially identified as architecturally or historically significant. The decision of the Landmarks Board is not final, but the decision of the Planning Commission is final without an appeal made to the Board of Supervisors or the Board of Appeals.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of 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.