Planning Ahead
by M. Brett Gladstone
Both the San Francisco Planning Code and the San Francisco Building Code have been amended to take into account the events of the Loma Prieta earthquake of 1989. The planning code contains two provisions that allowed buildings damaged during that earthquake to be rebuilt more efficiently and waived certain planning code provisions. One section of the code (Section 181(d)) is specific to that earthquake and is now outdated and not useable. However, Section 181(e) of today’s code does give a break to unreinforced masonry (brick) buildings (UMBs) that do not meet the 1992 UMB Seismic Retrofit Ordinance.
Section 181(e) deals with nonconforming uses (not nonconforming structures) and states that buildings containing nonconforming uses (uses that were allowed on the lot at the time the building was built but no longer allowed if the building were built or rebuilt today) can be rebuilt for their current use, with two caveats. Those caveats are: the restoration or reconstruction of the building must be started within one year after razing or other demolition work on the structure and diligently prosecuted to completion; and current requirements of the building and housing codes must be met.
Starting at the time of the Loma Prieta earthquake, the condominium subdivision group at the Department of Public Works has been allowing certain rental buildings that were destroyed in a fire or earthquake to be rebuilt as condominiums (even those that could not have converted to condominiums through a condo conversion since they are over six units). However, this conversion is only allowed when there is a ruling from the Department of Building Inspection that states the building has been so substantially destroyed that the rebuilt structure is the equivalent of a new building.
Some advocacy groups believe that Planning Code Section 315’s requirement of a percentage of affordable units for buildings of over 10 units may apply to this rebuilding, even though that code provision only applies to buildings called “new structures” under the building code. They also believe that under the city’s Rent Control Ordinance tenants have a right to return to such a substantially damaged building as renters at the same rents prior to the catastrophe, whether units have become condominiums or not. We expect that the city’s Superior Court will be asked to clarify this in the next year or two. This is an important issue that needs clarification because the cost to build units in an almost totally destroyed building, whether rentals or condominiums, is so large that the income stream from renting rebuilt units will not be enough to attract investors or banks to a project. The result could be that mostly destroyed buildings will continue to blight our city.
The only permanent change to the San Francisco Building Code after the Loma Prieta earthquake was the creation of local code Section 3403, which covers a subject formerly dealt with in Code Section 104(f). This new section requires a seismic upgrade when more than 20% of a building’s seismic safety systems are damaged. This 20% rule has been acknowledged by the local engineering community as problematic to enforce, and the Community Action Plan for Seismic Safety (funded by the San Francisco Building Department) currently proposes that this section of the code should be rewritten. This change would be a great benefit for property owners because enforcement is difficult in terms of determining what 20% means in the context of a wood-framed building.
This is an important revision for San Francisco property owners to support. If you would like to express support, or if you have questions about CAPSS in general, contact Chief Inspector Laurence Kornfield at the building department at 415-558-6244. Kornfield has studied some of the worst Japanese earthquakes and is knowledgeable about seismic issues pertaining to our local building code. Hopefully, with enough support, he can help us rewrite this ambiguous code.
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. Consult the advice of an attorney for any specific problem. Over the past decade, Gladstone & Associates (www.gladstoneassociates.com) has carved out an authoritative niche in San Francisco’s land-use policy. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.