§ 317.

LOSS OF DWELLING UNITS THROUGH DEMOLITION, MERGER AND CONVERSION

a.

Findings. San Francisco faces a continuing shortage of affordable housing. There is a high ratio of rental to ownership tenure among the City’s residents. The General Plan recognizes that existing housing is the greatest stock of rental and financially accessible residential units, and is a resource in need of protection. Therefore, a public hearing will be held prior to approval of any permit that would remove existing housing, with certain exceptions, as described below. The Planning Commission shall develop a Code Implementation Document setting forth procedures and regulations for the implementation of this Section 317 as provided further below. The Zoning Administrator shall modify economic criteria related to property values and construction costs in the Implementation Document as warranted by changing economic conditions to meet the intent of this Section.

b.

Definitions. For the purposes of this Section 317, the terms below shall be defined as follows:

1.

“Residential Conversion” shall mean the removal of cooking facilities in a Residential Unit or the change of occupancy (as defined and regulated by the Building Code), or the change of use (as defined and regulated by the Planning Code), of any Residential Use or Live-Work Unit to a non-residential use. The change of occupancy from a dwelling unit, group housing, or SRO to Student Housing is also considered a conversion of a Residential Unit. Notwithstanding the foregoing, the change of use or occupancy of a dwelling unit, group housing, or SRO to Student Housing is not considered a conversion of a Residential Unit if the dwelling unit, group housing or SRO will be Student Housing owned, operated or otherwise controlled by a not for profit post-secondary Educational Institution and

A.

it was built by the post-secondary Educational Institution;

B.

it is in a convent, monastery, or similar religious order facility;

C.

it is on an adjoining lot (i.e., sharing the same lot line) to the post-secondary Educational Institution, so long as the lot has been owned by the post-secondary Educational Institution for at least ten years as of the effective date of Ordinance 188-12; or

D.

as of August 10, 2010, it was owned, operated or otherwise controlled by a post-secondary Educational Institution that had an Institutional Master Plan on file with the Planning Commission, and where the occupancy by those other than students at that date was less than 20% of the total occupants. For purposes of determining occupancy, the post-secondary Educational Institution shall present to the Planning Department verified information regarding its rental or lease of units as of that date.

2.

“Residential Demolition” shall mean any of the following:

A.

Any work on a Residential Building for which the Department of Building Inspection determines that an application for a demolition permit is required, or

B.

A major alteration of a Residential Building that proposes the Removal of more than 50% of the sum of the Front Facade and Rear Facade and also proposes the Removal of more than 65% of the sum of all exterior walls, measured in lineal feet at the foundation level, or

C.

A major alteration of a Residential Building that proposes the Removal of more than 50% of the Vertical Envelope Elements and more than 50% of the Horizontal Elements of the existing building, as measured in square feet of actual surface area.

D.

The Planning Commission may reduce the above numerical elements of the criteria in Subsections (b)(2)(B) and (b)(2)(C), by up to 20% of their values should it deem that adjustment is necessary to implement the intent of this Section 317, to conserve existing sound housing and preserve affordable housing.

3.

“Facade” shall mean an entire exterior wall assembly, including but not limited to all finishes and siding, fenestration, doors, recesses, openings, bays, parapets, sheathing and framing.

4.

“Front Facade” shall mean the portion of the Facade fronting a right-of-way, or the portion of the Facade most closely complying with that definition, as in the case of a flag lot. Where a lot has more than one frontage on rights-of-way. all such frontages shall be considered Front Facades except where a facade meets the definition of “Rear Facade.”

5.

“Horizontal Elements” shall mean all roof areas and all floor plates, except floor plates at or below grade.

6.

“Mandatory Discretionary Review” shall mean a hearing before the Planning Commission that is required by this Section 317 at which the Commission will determine whether to approve, modify or disapprove a permit application.

7.

“Residential Merger” shall mean the combining of two or more legal Residential Units, resulting in a decrease in the number of Residential Units within a building, or the enlargement of one or more existing units while substantially reducing the size of others by more than 25% of their original floor area, even if the number of units is not reduced. The Planning Commission may reduce the numerical element of this criterion by up to 20% of its value should it deem that adjustment is necessary to implement the intent of this Section 317, to conserve existing housing and preserve affordable housing.

8.

“Rear Facade” shall mean that portion of the Facade facing the part of a lot that most closely complies with the applicable Planning Code rear yard requirements.

9.

“Removal” shall mean, with reference to a wall, roof or floor structure, its dismantling, its relocation or its alteration of the exterior function by construction of a new building element exterior to it. Where a portion of an exterior wall is removed, any remaining wall with a height less than the Building Code requirement for legal head room shall be considered demolished. Where exterior elements of a building are removed and replaced for repair or maintenance, in like materials, with no increase in the extent of the element or volume of the building, such replacement shall not be considered Removal for the purposes of this Section. The foregoing does not supersede any requirements for or restrictions on noncomplying structures and their reconstruction as governed by Article 1.7 of this Code.

10.

“Removal” shall mean, with reference to a Residential Unit, its Conversion, Demolition, or Merger.

11.

“Residential Building” shall be mean any structure containing one or more Residential Uses or Live-Work Units as a principal use, regardless of any other uses present in the building.

12.

“Residential Unit” shall mean a legal conforming or nonconforming dwelling unit as defined in Planning Code Section 102.7, or a legal nonconforming Live/Work Unit as defined in Planning Code Section 102.13, or Group Housing as defined in Planning Code Section 209.2(a), (b), and (c); provided, however, this definition shall not include a Residential Unit in a Residential Hotel, as defined and regulated by Chapter 41 of the San Francisco Administrative Code.

13.

“Vertical Envelope Elements” shall mean all exterior walls that provide weather and thermal barriers between the interior and exterior of the building, or that provide structural support to other elements of the building envelope.

c.

Applicability. An application for a permit that would result in the loss of one or more Residential Units is required to obtain Conditional Use authorization in the RTO, RTO-M, NCT, and Upper Market NCD Zoning Districts, as well as the loss of any residential unit abovee the ground floor in the C-3 Zoning District. The application for a replacement building or alteration permit shall also be subject to Conditional Use requirements. When considering whether to grant Conditional Use authorization for the loss of dwelling unit(s) in the C-3 districts, in lieu of the criteria set forth in Planning Code Section 303, consideration shall be given to the adverse impact on the public health, safety, and general welfare of the loss of housing stock in the district and to any unreasonable hardship to the applicant if the permit is denied. Any application for a permit that would result in the loss or Removal of three or more Residential Units, notwithstanding any other sections of this Code, shall require a Conditional Use authorization for the Removal and replacement of the units. Approval of any other application that would result in the loss or Removal of up to two Residential Units is prohibited unless the Planning Commission approves such permit application and the replacement structure permit application at a Mandatory Discretionary Review hearing, with certain exceptions specified below.

d.

Demolition.

1.

No permit to Demolish a Residential Building in any zoning district shall be issued until a building permit for the replacement structure is finally approved, unless the building is determined to pose a serious and imminent hazard as defined in the Building Code. A building permit is finally approved if the Board of Appeals has taken final action for approval on an appeal of the issuance or denial of the permit or if the permit has been issued and the time for filing an appeal with the Board of Appeals has lapsed with no appeal filed.

2.

If Conditional Use authorization is required for approval of the permit for Residential Demolition by other sections of this Code, the Commission shall consider the replacement structure as part of its decision on the Conditional Use application. If Conditional Use authorization is required for the replacement structure by other sections of this Code, the Commission shall consider the demolition as part of its decision on the Conditional Use application. In either case, Mandatory Discretionary Review is not required, although the Commission shall apply appropriate criteria adopted under this Section 317 in addition to the criteria in Section 303 of the Planning Code in its consideration of Conditional Use authorization. If neither permit application is subject to Conditional Use authorization, then separate Mandatory Discretion Review cases shall be heard to consider the permit applications for the demolition and the replacement structure.

3.

For those applications for a Residential Demolition in districts that require Mandatory Discretionary Review, administrative review criteria shall ensure that only applications to demolish Single-Family Residential Buildings that are demonstrably not affordable or financially accessible housing, or Residential Buildings of two units or fewer that are found to be unsound housing, are exempt from Mandatory Discretionary Review hearings. Specific numerical criteria for such analyses shall be adopted by the Planning Commission in the Code Implementation Document, in accordance with this Section 317, and shall be adjusted periodically by the Zoning Administrator based on established economic real estate and construction indicators.

A.

The Planning Commission shall determine a level of affordability or financial accessibility, such that Single-Family Residential Buildings on sites in RH-1 and RH-1(D) Districts that are demonstrably not affordable or financially accessible, that is, housing that has a value greater than at least 80% of the combined land and structure values of single-family homes in San Francisco as determined by a credible appraisal, made within six months of the application to demolish, are not subject to a Mandatory Discretionary Review hearing. The demolition and replacement building applications shall undergo notification as required by other sections of this Code. The Planning Commission, in the Code Implementation Document, may increase the numerical criterion in this subsection by up to 10% of its value should it deem that adjustment is necessary to implement the intent of this Section 317, to conserve existing housing and preserve affordable housing.

B.

The Planning Commission, in the Code Implementation Document, shall adopt criteria and procedures for determining the soundness of a structure proposed for demolition, where “soundness” is an economic measure of the feasibility of upgrading a residence that is deficient with respect to habitability and Housing Code requirements, due to its original construction. The “soundness factor” for a structure shall be the ratio of a construction upgrade cost (i.e., an estimate of the cost to repair specific habitability deficiencies) to the replacement cost (i.e., an estimate of the current cost of building a structure the same size as the existing building proposed for demolition), expressed as a percent. A building is unsound if its soundness factor exceeds 50%. A Residential Building that is unsound may be approved for demolition.

C.

The Planning Commission shall consider the following additional criteria in the review of applications for Residential Demolition:

i.

whether the property is free of a history of serious, continuing Code violations;

ii.

whether the housing has been maintained in a decent, safe, and sanitary condition;

iii.

whether the property is an “historical resource” under CEQA;

iv.

whether the removal of the resource will have a substantial adverse impact under CEQA;

v.

whether the project converts rental housing to other forms of tenure or occupancy;

vi.

whether the project removes rental units subject to the Rent Stabilization and Arbitration Ordinance or affordable housing;

vii.

whether the project conserves existing housing to preserve cultural and economic neighborhood diversity;

(viii) whether the project conserves neighborhood character to preserve neighborhood cultural and economic diversity;

ix.

whether the project protects the relative affordability of existing housing;

x.

whether the project increases the number of permanently affordable units as governed by Section 415;

xi.

whether the project locates in-fill housing on appropriate sites in established neighborhoods;

xii.

whether the project increases the number of family-sized units on-site;

(xiii) whether the project creates new supportive housing;

xiv.

whether the project is of superb architectural and urban design, meeting all relevant design guidelines, to enhance existing neighborhood character;

xv.

whether the project increases the number of on-site dwelling units;

xvi.

whether the project increases the number of on-site bedrooms.

4.

Nothing in this Section is intended to permit Residential Demolition in those areas of the City where other sections of this Code prohibit such demolition or replacement structure.

5.

Nothing in this Section is intended to exempt buildings or sites where demolition is proposed from undergoing review with respect to Articles 10 and 11 of the Code, where the requirements of those articles apply. Notwithstanding the definition of “Residential Demolition” in this section and as further described in the Code Implementation Document with regard to Residential Demolition, the criteria of Section 1005 shall apply to projects subject to review under the requirements of Article 10 with regard to the structure itself.

e.

Residential Merger.

1.

The Merger of Residential Units not otherwise subject to Conditional Use authorization by this Code, shall be prohibited, unless the Planning Commission approves the building permit application at a Mandatory Discretionary Review hearing, applying the criteria in subsection (2) below, or the project qualifies for administrative approval and the Planning Department approves the project administratively in accordance with subsection (3) below.

2.

The Planning Commission shall consider the following criteria in the review of applications to merge Residential Units:

A.

whether removal of the unit(s) would eliminate only owner occupied housing, and if so, for how long the unit(s) proposed to be removed have been owner occupied;

B.

whether removal of the unit(s) and the merger with another is intended for owner occupancy;

C.

whether the removal of the unit(s) will remove an affordable housing unit as defined in Section 415 of this Code or housing subject to the Rent Stabilization and Arbitration Ordinance;

D.

whether removal of the unit(s) will bring the building closer into conformance with prescribed zoning;

E.

if removal of the unit(s) removes an affordable housing unit as defined in Section 401 of this Code or units subject to the Rent Stabilization and Arbitration Ordinance, whether replacement housing will be provided which is equal or greater in size, number of bedrooms, affordability, and suitability to households with children to the units being removed;

F.

whether the number of bedrooms provided in the merged unit will be equal to or greater than the number of bedrooms in the separate units;

G.

whether removal of the unit(s) is necessary to correct design or functional deficiencies that cannot be corrected through interior alterations.

3.

Administrative review criteria shall ensure that only those Residential Units proposed for Merger that are demonstrably not affordable or financially accessible housing are exempt from Mandatory Discretionary Review hearings. Applications for which the least expensive unit proposed for merger has a value greater than at least 80% of the combined land and structure values of single-family homes in San Francisco, as determined by a credible appraisal, made within six months of the application to merge, are not subject to a Mandatory Discretionary Review hearing. The Planning Commission, in the Code Implementation Document, may increase the numerical criterion in this subsection by up to 10% of its value should it deem that adjustment is necessary to implement the intent of this Section 317, to conserve existing housing and preserve affordable housing.

4.

The Planning Commission shall not approve an application for merger if any tenant has been evicted pursuant to Administrative Code Sections 37.9(a)(9) through 37.9(a)(14) where the tenant was served with a notice of eviction after December 10, 2013 if the notice was served within ten (10) years prior to filing the application for merger. Additionally, the Planning Commission shall not approve an application for merger if any tenant has been evicted pursuant to Administrative Code Section 37.9(a)(8) where the tenant was served with a notice of eviction after December 10, 2013 if the notice was served within five (5) years prior to filing the application for merger. This Subsection (e)(4) shall not apply if the tenant was evicted under Section 37.9(a)(11) or 37.9(a)(14) and the applicant(s) either (A) have certified that the original tenant reoccupied the unit after the temporary eviction or (B) have submitted to the Planning Commission a declaration from the property owner or the tenant certifying that the property owner or the Rent Board notified the tenant of the tenant’s right to reoccupy the unit after the temporary eviction and that the tenant chose not to reoccupy it.

f.

Residential Conversion.

1.

Residential Conversion not otherwise prohibited or subject to Conditional Use authorization by this Code, shall be prohibited, unless the Planning Commission approves the building permit application at a Mandatory Discretionary Review hearing. The conversion of Residential Units to Student Housing is prohibited. For the purposes of this subsection, Residential Units that have been defined as such by the time a First Certificate of Occupancy has been issued by the Department of Building Inspection for new construction shall not be converted to Student Housing.

2.

The Planning Commission shall consider the following criteria in the review of applications for Residential Conversation;

A.

whether conversion of the unit(s) would eliminate only owner occupied housing, and if so, for how long the unit(s) proposed to be removed were owner occupied;

B.

whether Residential Conversation would provide desirable new non-residential use(s) appropriate for the neighborhood and adjoining district(s);

C.

in districts where Residential Uses are not permitted, whether Residential Conversion will bring the building closer into conformance with the uses permitted in the zoning district;

D.

whether conversion of the unit(s) will be detrimental to the City’s housing stock;

E.

whether conversion of the unit(s) is necessary to eliminate design, functional, or habitability deficiencies that cannot otherwise be corrected;

F.

whether the Residential Conversion will remove Affordable Housing, or units subject to the Rent Stabilization and Arbitration Ordinance.

g.

Exemptions. This Section 317 shall not apply to property:

1.

Owned by the United States or any of its agencies;

2.

Owned by the State of California or any of its agencies, with the exception of such property not used exclusively for a governmental purpose;

3.

Under the jurisdiction of the Port of San Francisco or the Successor Agency to the Redevelopment Agency of the City and County of 1 where the application of this Section is prohibited by State or local law; or

4.

Where demolition of the building or Removal of a Residential Unit is necessary to comply with a court order or City order that directs the owner to demolish the building or remove the unit, due to conditions that present an imminent threat to life safety.

AMENDMENT HISTORY

CODIFICATION NOTE

1. So in Ord. 287-13 .

History

(Added by Ord. 69-08, File No. 080210, App. 4/17/2008; amended by Ord. 140-11, File No. 110482, App. 7/5/2011, Eff. 8/4/2011; Ord. 188-12 , File No. 111374, App. 9/11/2012, Eff. 10/11/2012; Ord. 62-13 , File No. 121162, App. 4/10/2013, Eff. 5/10/2013; Ord. 287-13 , File No. 130041, App. 12/26/2013, Eff. 1/25/2014)

Division (e)(1) amended; Ord. 140-11, Eff. 8/4/2011. Divisions (b)(1) and (f)(1) amended; Ord. 188-12 , Eff. 10/11/2012. Division (d)(3)(C)(x) reference corrected; Ord. 62-13 , Eff. 5/10/2013. Section header and division (b)(1) amended; former divisions (b)(1)(i) through (iv) redesignated as (b)(1)(A) through (D); divisions (b)(2), (b)(7), (b)(11), (b)(12), (c), (d), (d)(2), (d)(3), (d)(3)(A), (d)(3)(C), (d)(3)(C)(vi), (d)(3)(C)(xii), (d)(3)(C)(xiv), (d)(4), (d)(5), (e), (e)(1), and (e)(2) amended; former divisions (e)(2)(i) and (ii) redesignated as (e)(2)(A) and (B); former division (e)(2)(iii) redesignated as (e)(2)(C) and amended; former divisions (e)(2)(iv) and (v) redesignated as (e)(2)(D) and (G) respectively; divisions (e)(2)(E) and (F) added; divisions (e)(4), (f), (f)(1) and (f)(2) amended; former division (f)(2)(i) redesignated as (f)(2)(A); former divisions (f)(2)(ii) and (iii) redesignated as (f)(2)(B) and (C) and amended; former divisions (f)(2)(iv) and (v) redesignated as (f)(2)(D) and (E); division (f)(2)(F) added; divisions (g) and (g)(3) amended; Ord. 287-13 , Eff. 1/25/2014.

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