A tremendous amount of research and analysis went into this Project.

The following in depth memo was submitted in support of the entitlement applications for this Project.

Attachment in Support of Entitlement Applications - 4300 17th Street / Pluta

I. Background

1. Site Description

2. Project Description

3. Surrounding Neighborhood & Properties

4. Community Outreach

II. Application of the Planning Code

1. Planning Code Compliance

Application of the Conditional Use Authorization Requirements

1. San Francisco General Plan

2. Planning Code Section 303 Criteria

3. Planning Code Section 101.1(b) Priorities

The Special Use District and Ordinance

1. Corona Heights Large Residence Special Use District

2. Application of the Special Use Ordinance

Analysis of Section 305(c) Variance Criteria

1. Authority

2. Analysis of the Zoning Administrator’s Application of Section 305(c) Criteria

3. Examples of the Most Factually Relevant Precedent

Application of Section 305(c)’s Variance Criteria 

1. Application of Section 305(c)

I. BACKGROUND

Site Description.  4300 17th Street (the “Property” or “Subject Lot”) is a 2,916 square feet (“sqft”) corner lot (2626/014A) zoned multi-unit residential (RH-2).  Built in 1953 and vertically expanded in 1960, an existing two-unit residential building (the “Existing Building”) currently occupies the eastern half of the Subject Lot.  The Existing Building has 2,544 sqft of living space across three floors; a rent-controlled dwelling on each of the top two floors and a ground floor with garage, utility, and storage space.

The Property is located on the northwest corner of the intersection of 17th Street and Ord Street in the Corona Heights neighborhood of San Francisco, District 8. 

The western half and backyard of the Subject Lot is sloped, fenced in, vacant land.  The Property is unique in that it contains a large, undeveloped section of land adjacent to the public right of way in a transit-rich part of San Francisco.  

Project Description. The main purpose of this project is to build Below Market Rate (“BMR”) affordable housing rental units in the Corona Heights neighborhood of San Francisco.  In order to do so, Applicant is seeking variance from Sections 121 (lot size), 134 (rear yard setback), and 135 (usable open space) of the Planning Code in order to subdivide the Subject Lot into two legally-distinct lots (the “Proposed Lots”) and a Conditional Use Authorization as necessitated by Planning Code Sections 249.77(d)(1) (gross floor area exceeding 3,000 square­ feet) and 249.77(d)(4) (less than 45% rear yard depth), both conditions within the Corona Heights Large Residence Special Use District (“Special Use District” or “Special Use Ordinance”).  Approvals would allow the Applicant to construct:

New Building.  A new two regulation-unit plus accessory dwelling unit (“ADU”) building (the “New Building”) on the western, now-vacant half of the Subject Lot.  The New Building would have approximately 3,099 sqft of living space across three units and four levels (plus a 235 sqft ground floor garage with one-vehicle and three Class 1 bicycle parking spaces).  Individually, the New Building would contain: 

• ADU.  A ground floor ADU-studio apartment with 473 sqft of living space and an independent entryway with direct access to 17th Street. 

• Middle Unit.  A second floor two-bedroom apartment with 972 sqft of living space.

• Upper Unit. A third- and fourth-floor, three-bedroom apartment with 1,419 sqft of living space.

ADU in Existing Building.  A new one-bedroom ADU would be constructed within the ground floor of the Existing Building.  The ADU would have ~607 sqft of living space, access to one-vehicle and three Class 1 bicycle parking spaces, and an independent entryway with direct access to the street.

Surrounding Neighborhood and Properties. The surrounding neighborhood consists of a diverse mixture of residential buildings representing a wide variety of architectural styles and features.  West and upslope on 17th Street (adjacent to Applicant’s backyard), is a three-story, two-unit condominium (4302-4304 17th St.), a five-story, two-unit condominium (4306-4308 17th St.), and a two-building, three-unit dwelling (4310 17th St.), respectively. 

North and upslope on Ord Street is a three-story, single-unit dwelling (90 Ord St.), a four-story, two-unit dwelling (84-86 Ord St.), and a two-story, single-unit dwelling (80 Ord St.), respectively.   

Applicant’s downslope and across-the-street neighbors represent a similarly diverse mix of styles, features, densities, and sizes.

Community Outreach.  Applicant lives in the Existing Building.  His goal is to build the first ever BMR affordable housing in Corona Heights.  From the very inception of the Project, Applicant has been as open, transparent, and communicative as possible with his neighbors, the surrounding community, and the local neighborhood associations.  Applicant’s outreach efforts began in the spring of 2019 with handwritten cards and letters to his 30 closest neighbors, introducing himself, and offering an introductory meeting (and coffee).  Throughout 2019 there were countless one-on-one briefings, phone calls, emails, sidewalk chats, and other interactions with his neighbors about the Project.  Applicant is a dues paying member of both neighborhood associations, has attended quarterly member meetings for both, and committed to both that he will attend each and every membership meeting to be available to answer questions and receive feedback.  Contemporaneous with filing this application in December 2019 Applicant distributed flyers to his closest ~150 neighbors and posted on NextDoor.com introducing himself, sharing details of the Project, and offered to meet and add any interested neighbor to a listserv Applicant created to provide updates on the status of the Project going forward.  The onset of the Coronavirus pandemic made continued in-person engagement with the neighbors impossible.  To overcome this challenge, in the month before Applicant’s Planning Commission hearing date, Applicant intends to host several Zoom conference calls to further discuss  the Project and answer questions from his neighbors.  Applicant has also announced his intention to run for a seat on the Board of the one remaining Neighborhood Association on a platform focused on encouraging the addition of affordable housing in Corona Heights.

Applicant has also focused on engaging with the Existing Building’s Tenant every step of the way.  Tenant has provided invaluable feedback that materially changed and improved the Project; including a range of planned improvements to Tenant’s rent-controlled apartment as well as steps to minimize any disruption related to future construction activity.

III. APPLICATION OF THE CONDITIONAL USE AUTHORIZATION REQUIREMENTS

San Francisco General Plan.  Planning Code Section 303 establishes criteria for the Planning Commission to consider when reviewing applications for Conditional Use Authorization approval.  One of Section 303’s criterion specifically evaluates consistency with the Objectives and Policies of the San Francisco General Plan.  Applicant’s Project is not only consistent with but advances at least 22 important Objectives and Policies of the General Plan; the elements of which fall broadly into the following categories: (1) Housing, (2) Transportation, (3) Environment, and (4) Design.

Housing. The introduction to the General Plan’s Housing Objective notes succinctly: “[a]ffordable housing is the most salient housing issue in San Francisco and the Bay Area”  Consistent with this statement, Applicant's Project will add the first and only BMR affordable rental housing in the Corona Heights neighborhood.  To achieve these policy ends, the General Plan encourages and highlights (c) flexibility in the City’s zoning and entitlement process, and (d) the essential role private capital plays in the development of housing in San Francisco.

Applicant's Project Will Add Affordable Rental Housing

Policy 1.1 - Plan for the full range of housing needs in the City and County of San Francisco, especially affordable housing. San Francisco’s housing policies and programs should provide strategies that promote housing at each income level, and furthermore identify sub-groups, such as middle income and extremely low income households that require specific housing policy.  Policy 8.1 - Support the production and management of permanently affordable housing.  Policy 1.5 - Consider secondary units in community planning processes where there is neighborhood support and when other neighborhood goals can be achieved, especially if that housing is made permanently affordable to lower-income households.  Secondary units (“in-law” or “granny units”) are smaller dwelling units within a structure containing another much larger unit(s), frequently in basements, using space that is surplus to the primary dwelling.  Secondary units represent a simple and cost-effective method of expanding the housing supply. Such units could be developed to meet the needs of seniors, people with disabilities and others who, because of modest incomes or lifestyles, prefer or need small units at relatively low rents. Policy 4.1 - Develop new housing, and encourage the remodeling of existing housing, for families with children. Much of the new housing constructed in the last decade was smaller studios and one-bedroom units.  Policy 4.4 - Encourage sufficient and suitable rental housing opportunities, emphasizing permanently affordable rental units wherever possible. The City should make a concerted effort to do what is within its control to encourage the continued development of rental housing throughout the city, including market-rate rentals that can address moderate and middle income needs.  Sixty-two percent of San Francisco’s residents are renters. In the interest of the long term health and diversity of the housing stock the City should work to preserve this approximate ratio of rental units. Policy 4.5 - Ensure that new permanently affordable housing is located in all of the city’s neighborhoods, and encourage integrated neighborhoods, with a diversity of unit types provided at a range of income levels. While San Francisco’s neighborhoods are more economically integrated than their suburban counterparts, concentrations of low-income households still exist. Special efforts should be made to expand housing opportunities for households of lower-income levels in other areas of the city, and community planning efforts should include policies and programs that foster a diverse, integrated housing stock. These planning efforts should also include protections against the displacement of existing low- and moderate-income households by higher income groups.  Construction of new affordable housing projects should likewise be distributed throughout the city, to ensure equitable neighborhoods as well as equal access to residents living in different parts of San Francisco.

The very first policy of the first element in the very first section of the General Plan is Policy 1.1, entitled “Plan for the full range of housing needs in the City and County of San Francisco, especially affordable housing.”  The Project’s diverse distribution of dwelling unit types and sizes is consistent with Policy 1.1 as well as 4.5 and 8.1 of the General Plan; the creation of housing, especially affordable housing, across multiple “sub-groups” including middle income and low income households.  Consistent with these Policies two of the four proposed dwellings units would be BMR affordable housing units and therefore “permanently affordable to lower-income households.”  

All four new dwelling units would add directly to the City’s rental housing inventory, consistent with Policies 3.1 and 4.4.  This fact is positively unique among recent one- and two-unit new residential development in San Francisco.  In 2018, eight two-unit buildings were completed, seven were condominiums and only the eighth added a single rental unit to the City’s inventory.  In 2018, 29 single family homes were completed, and none appear to have been made available for rent.  

Policy 4.5 seeks to ensure that “new permanently affordable housing is located in all of the city’s neighborhoods.”   The Mayor’s Office of Housing and Community Development (“MOHCD”) currently manages approximately 22,797 affordable housing units across 376 locations throughout San Francisco.  However, not a single affordable housing unit or location exists within the Corona Heights neighborhood.

With respect to ADUs, since the inception of the program in 2014, of the ~150 “naturally affordable” ADUs completed in San Francisco to date, only one ADU has been completed in the Corona Heights Special Use District and none of the ~150 ADUs are BMR affordable units.  Applicant’s Project would add two BMR affordable housing ADUs and advance Policy 4.5’s goal of inclusive housing in a neighborhood that has never had any affordable housing.  

Applicant’s Project Will Add Rent-Controlled Housing

Policy 3.1 Preserve rental units, especially rent controlled units, to meet the City’s affordable housing needs.   Sixty-two percent of San Francisco’s residents are renters. In the interest of the long term health and diversity of the housing stock the City should work to preserve this approximate ratio of rental units. The City should pay particular attention to rent control units which contribute to the long term existence and affordability of the city’s rental housing stock without requiring public subsidy, by continuing their protection and supporting tenant’s rights laws. Efforts to preserve rental units from physical deterioration include programs that support landlord’s efforts to maintain rental housing such as: maintenance assistance programs, programs to support and enhance property management capacity, especially for larger companies, and programs to provide financial advice to landlords.

Approval of the Project would also ensure that the Existing Building remained rent-controlled rental housing into the future.  Between 2007 and 2013 alone, 2,718 rent-controlled units in two-unit buildings were converted into condominiums in San Francisco.  Five of Applicant’s most immediate seven neighbors on 17th Street previously took advantage of the condominium conversion process (4302-4304, 4306-4308, 4318 #1/#2, 4322 A/B, 4328-4328a 17th Street), removing rent-controlled units from the City’s rental inventory.  If the Project is approved, Applicant would not pursue the condominium conversion process in either the Existing or New Buildings nor in any other way remove rent-controlled housing from the City’s inventory

Flexibility and Accommodations

Policy 7.5 - Encourage the production of affordable housing through process and zoning accommodations, and prioritize affordable housing in the review and approval processes.  Local planning, zoning, and building codes should be applied to all new development, however when quality of life and life safety standards can be maintained zoning accommodations should be made for permanently affordable housing. For example exceptions to specific requirements including open space requirements, exposure requirements, or density limits, where they do not affect neighborhood quality and meet with applicable design standards, including neighborhood specific design guideline, can facilitate the development of affordable housing.  Policy 10.1 - Create certainty in the development entitlement process, by providing clear community parameters for development and consistent application of these regulations.  The ultimate goal of a ‘certain’ development entitlement process is to create greater transparency and accountability in the process for all parties, empowering both the public and developers.

Policy 7.5 of the General Plan encourages “the production of affordable housing through process and zoning accommodations.”  Applicant’s Project would add two new affordable housing units.  These additions are wholly contingent upon the outcome of the Conditional Use Authorization and variance applications.  Entitlements are exceptional privileges given by the City that, under the circumstances, would be consistent with and in furtherance of Policy 7.5 of the General Plan. 

Policy 10.1 encourages certainty in the development entitlement process.  Before undertaking this project, Applicant performed a substantial amount of research and reviewed, among other things, all lot subdivision-related variance decisions from January 2000 through May 2019 [and subsequently extended through June 2020].  During this time period, 111 unique variance applications were heard by the Zoning Administrator.  Of those, 92 (or 82.9%) were granted outright and 19 were denied.  Of the 19 that were denied, 10 were appealed, two were upheld, one was withdrawn, and seven were overturned (and granted) on appeal. Including successful appeals, therefore, 99 of 111 (or 89.2%) variance applications were eventually granted.  Among the 12 applications that were denied, nine were largely due to the loss of affordable housing generally and rent-controlled housing specifically, one involved illegal housing, and two proposed lot patterns drastically inconsistent with the surrounding areas.  Applicant also reviewed the six Conditional Use Authorization applications filed pursuant to the Special Use Ordinance.  Thus far all have been approved by the City.  Applicant compared the facts of his Project with previously successful entitlement applications, concluded that his Project fit squarely within those precedents, and only then decided to move forward with this Project.

Where Policy 10.1 promotes certainty in the development entitlement process, nothing could provide more certainty than consistency and predictability in entitlement administration.

Private Sector Participation

Policy 7.7 - Support housing for middle income households, especially through programs that do not require a direct public subsidy.  The City should support innovative market-based programs and practices that enable middle income housing opportunities. Creating smaller and less expensive unit types that are “affordable by design” can assist in providing units to households falling in this gap.  Policy 2.4 - Promote improvements and continued maintenance to existing units to ensure long term habitation and safety. As the city’s housing stock ages, maintenance becomes increasingly important. The majority of San Francisco housing is more than 60 years old. Property owners should be encouraged and supported in efforts to maintain and improve the physical condition of housing units.  Policy 3.1 Preserve rental units, especially rent controlled units, to meet the City’s affordable housing needs.  Efforts to preserve rental units from physical deterioration include programs that support landlord’s efforts to maintain rental housing such as: maintenance assistance programs, programs to support and enhance property management capacity, especially for larger companies, and programs to provide financial advice to landlords.”

Policy 7.7 of the General Plan encourages market-based programs to help address the City’s housing crisis.  The typical affordable housing development in San Francisco is a combination of market-rate and affordable housing units, where in part the market-rate units subsidize the affordable housing units.  Applicant’s Project is no different; the ability to bundle BMR affordable housing with market rate housing is absolutely essential to the economic viability of the overall Project.

Consistent with Policies 2.4 and 3.1 of the General Plan, approval of the Project would allow for the improvement and continued maintenance of the Existing Building and the rent-controlled units therein.  As stated in the General Plan, “[i]n order to successfully deliver affordable housing the City and private sector must have the tools they need to develop and rehabilitate affordable housing. It is in the interest of the City to ensure that both public and private entities that participate in the delivery and maintenance of affordable housing have resources and materials, in addition to funding that are necessary to deliver affordable housing.”

The upper- and middle- market rate units in the New Building are required to subsidize, not only the addition of the two BMR affordable housing units, but also to address significant deferred maintenance and upgrades in the rent-controlled Existing Building.  The Existing Building was built in 1953 and a third floor was added in 1960.  Since then few if any improvements or upgrades were made to the two existing rent-controlled units.  Applicant’s Project would include among other maintenance projects and upgrades: repair an unsafe balcony and roof; renovation of the kitchens and bathrooms; upgrading windows on the second and third floors; adding ceiling fans; in-unit washer and dryer units on the second and third floors, wood flooring on the third floor, new heating and air conditioning systems, and a wide range of additional fire and earthquake safety features including a sprinkler system and seismic retrofit.  

Transportation

Policy 1.10 - Support new housing projects, especially affordable housing, where households can easily rely on public transportation, walking and bicycling for the majority of daily trips.  Infill housing in transit-rich areas can provide lower income households, affordable unsubsidized housing opportunities. Housing with easy access to transit facilitates the City’s efforts to implement the City’s Transit First policy. Additionally, housing near transit can provide site efficient and cost effective housing. In reviewing reliance on public transportation, it is important to distinguish areas that are “transit-rich,” and located along major transit lines, from those that are simply served by transit. Policy 13.1 Support “smart” regional growth that locates new housing close to jobs and Transit. In San Francisco, and in many of the other job centers in the Bay Area, workers struggle to find housing they can afford. At the same time, employers have difficulty recruiting employees, because of the lack of affordable options near their locations. These trends exacerbate long-distance commuting, one of the primary sources of greenhouse gas emissions; they also negatively impact the working families struggling with such commutes by demanding more travel time and higher travel costs. The City should support efforts to construct more housing near jobs, and near transit. Policy 12.2 - Consider the proximity of quality of life elements, such as open space, child care, and neighborhood services, when developing new housing units.  These elements enable residents to continue to live in their neighborhood as their needs change, and encourage neighborhood relationships. Access to these amenities and services at a neighborhood level enables residents to make many trips on foot or public transportation. Policy 13.3 Promote sustainable land use patterns that integrate housing with transportation in order to increase transit, pedestrian, and bicycle mode share. Sustainable land use patterns include those located close to jobs and transit, as noted above. But they also include easy access to, and multiple travel modes between, other services, shopping and daily needs. This could mean all services needed are located within an easy walk of the nearby housing; it could also mean that such services are available by bike or transit, or in the best cases, by all modes. The common factor in sustainable land use patterns is that the need for a private car is limited. Policy 12.1 - Encourage new housing that relies on transit use and environmentally sustainable patterns of movement. To the extent possible these trips should be easily accommodated on the existing transportation network with increased services. To that end the city should promote housing development in areas that are well served with transportation infrastructure including BART trains, and Muni light rail trains.  Additionally, bicycle amenities can and should be an integral component to housing and supporting the City’s Transit First policy. 

Applicant is proposing to build new affordable and market rate housing in an area well-served by the City's public transit system. The Property is located a mere 0.3 miles, or a five minute walk, from the Castro neighborhood mass transportation hub which includes a Muni Metro Rail station (KT, L, M, S lines), Muni Bus lines (24, 35, 37), and a Historic Streetcar line (F).  Redfin.com describes the Corona Heights neighborhood as “a walker's paradise — daily errands do not require a car. It's a rider's paradise, with world-class public transportation.”

“Infill housing in transit-rich areas can provide lower income households, affordable unsubsidized housing opportunities” (Policy 1.10); exactly the type of opportunity envisioned by this Project’s two BMR affordable housing units.  San Franciscians living in the New and Existing Buildings would “easily rely on public transportation, walking and bicycling for the majority of daily trips” (Policy 1.10), be located “close to jobs and Transit” (Policy 13.1), be proximate to “quality of life elements” (Policy 12.2), and a range of multimodal, environmentally sustainable, transportation options (Policies 13.3 and 12.1).

Environment

Environmental Protection: Objective 13 - Enhance the Energy Efficiency of Housing in San Francisco.  Actions taken to increase the efficient use of energy may raise initial housing costs for private owners in some cases. These actions will, however, promote affordable housing in the long run by reducing annual utility expenses. San Francisco residents can save substantial sums of money and energy by undertaking an aggressive energy management program that includes community education and promotion, regulation, creative financing, and some capital investment. Special emphasis should be devoted to programs that benefit the city's renter and elderly residents, since this portion of the population pays a higher proportion of their income on energy bills.  Policy 13.4 - Promote the highest feasible level of “green” development in both private and municipally-supported housing.   Green development specifically relates to the environmental implications of development. Green building integrates the built environment with natural systems, using site orientation, local sources, sustainable material selection and window placement to reduce energy demand and greenhouse gas emissions.  Policy 4.7 - Consider environmental justice issues when planning for new housing, especially affordable housing.   The City should promote new, and rehabilitated, low-income housing on sites that do not have negative health impacts, near services and supplies so that residents have access to transit and healthy fresh food, jobs, child care and youth programs.

Consistent with Objective 13 and Policy 13.4, the Existing and New Buildings seek to achieve the highest feasible levels of green development and operation.  

As a greenfield opportunity, the New Building would provide an opportunity for a wide range of potential green building elements including but not limited to use of fly ash and otherwise recycled concrete aggregate, reclaimed bricks from demolished buildings, reused and recycled mortar mix, metal BONE Structure® framing (made from recycled steel and laser cut to eliminate waste), above-code insulation including closed cell green foam and other low embodied energy insulation, sustainable gypsum wall board throughout, Forest Stewardship Council (“FSC”) certified wood (for any rough framing infill and exterior finish wood details), low volatile organic compound finish and FSC certified carcass material cabinetry and casework, an environmentally conscious flat roof membrane, stormwater harvesting and use system, a passive and active solar energy system, Energy Star® appliances, windows, and lighting, and maximum use of passive and natural ventilation systems (rather than mechanical).  

Consistent with Policy 4.7, the Existing Building would be retrofitted with a number of energy-saving and efficient features including a new heating and air conditioning systems, additional insulation, and window upgrades to help minimize the rent-controlled tenants’ electric bills and environmental footprints.

Design

Policy 11.1 - Promote the construction and rehabilitation of well-designed housing that emphasizes beauty, flexibility, and innovative design, and respects existing neighborhood character. The General Plan notes that, San Francisco has a long standing history of beautiful and innovative architecture that builds on appreciation for beauty and innovative design. Residents of San Francisco should be able to live in well-designed housing suited to their specific needs. The City should ensure that housing provides quality living environments and complements the character of the surrounding neighborhood, while striving to achieve beautiful and innovative design that provides a flexible living environment for the variety of San Francisco’s household needs.” and “The City should also seek out creative ways to promote design excellence.  Policy 11.9 Foster development that strengthens local culture sense of place and history. Elements of community heritage can include the public realm, including open space and streets; and the built environment, institutions, markets, businesses that serve local needs, and special sites. Other, non-physical aspects can include ethnicity, language, and local traditions. Development of new housing should consider all of these factors, and how they can aide in connecting to them. Housing types that relate to the community served, particularly the income, household and tenure type of the community, can help to address negative changes in socioeconomic conditions, and reduce displacement. Constructing housing that includes community components that build upon this sense of place, such as public plazas, libraries, community facilities, public art, and open spaces, can build a stronger sense of community heritage. And the development of neighborhood-specific design guidelines, as discussed above, should review local neighborhood characteristics that contribute to and define its character beyond the physical. 

Consistent with Policy 11.1, the New Building perfectly threads the needle between blending into existing neighborhood character and innovative design.  

Existing Neighborhood and Building Style.  With respect to the existing neighborhood, the Historic Context Statement observed broadly that:

The buildings of Corbett Heights are not generally distinguishable in their physical characteristics from buildings of the same periods in other San Francisco neighborhoods. The structural systems and materials, styles, forms and features, and siting of these buildings are associated with historic contexts that could be written for the entire city.

***

Most buildings in the neighborhood might be defined as “vernacular” in the sense that they were not designed by trained architects. However, in this report vernacular refers to those buildings characterized by an absence or near absence of decorative details for which the overall form is the most noticeable feature.  Buildings classified as vernacular from [1945-1973] may be simple rectangular boxes in form with channel rustic siding, gable roofs, double-hung windows, and paneled doors.

The Existing Building is a prime example of this vernacular style; and specifically Contractor Modern: 

Contractor Modern, occasionally referred to as Vernacular Modern, is not a style per se; rather it denotes the absence of style.  The term is used to identify buildings that selectively borrow from the basic design tenets of Modern design, particularly the lack of exterior ornament, in the pursuit of inexpensive construction costs. Simple box‐like forms, flat exterior surfaces, and inexpensive construction materials typify Contractor Modern buildings. 

New Building’s Style.  Without a distinct neighborhood style to adopt, Applicant modeled the New Building’s design after that of the neighboring buildings, i.e., a general lack of exterior ornament, bay windows, and a simple box‐like form.  From there, the New Buiding’s design pulls in stylistic elements from other contemporaneously-built homes and related styles in the neighborhood, e.g., Streamline Moderne (flat roof, wraparound windows at the corners, glass block windows, and stainless steel windows), International Style (exterior walls of brick, flat roof, strong right angles and simple cubic forms, walls of glass, open interior floor plans, square and rectangular building footprints, stress on volume rather than mass), Second Bay Tradition (plain, simple, or vernacular appearance, emphasis on volume rather than ornament, open floor plan), and Midcentury Modern  (large steel‐framed windows, strong right angles and simple cubic forms, integrated planters).

New Building’s Form and Scale.  The form and scale of the New Building mimics that found in the neighborhood during the most recent period of development (“1945 – 1973 and beyond”), i.e., easily graded, accessible sites, rectangular lot, rectangular core with some combination of projections at front and rear, walkable bay windows, flat roof, and built-in garage.  The New Building also borrows and abstracts from the “early suburban tract homes” built throughout San Francisco and the neighborhood during the first half of the 20th Century.  These building typologies were characterized broadly by a built-in garage on an asymmetrical first floor, popped-out subsequent floors for living space, and recessed side entry access.  The New Building has a built in garage on the first floor with an ADU front door and single window, bay windows in the front, and side entry access.

New Building’s Framing and Cladding.  While period-respectful on the outside, on the inside the framing of the New Building would utilize an ultra modern steel construction farming system, allowing for the most structurally sound, energy efficient, open floor plan possible.  The New Building’s stucco cladding would be both aesthetically-neighborhood-harmonious and also consistent with Policy 11.9’s goal of “strengthen[ing] local culture and sense of place and history.”  

Planning Code Section 303, in addition to consistency with the General Plan, lays out additional criteria for the Planning Commission to consider when reviewing applications for Conditional Use Authorization approval.  The Project complies with said criteria in that:

The proposed use or feature, at the size and intensity contemplated and at the proposed location, will provide a development that is necessary or desirable for, and compatible with, the neighborhood or the community.

• Necessary.  San Francisco is experiencing an acute housing crisis.  And this nation, state, and city are also in the throes of a long overdue reckoning on social and racial justice inexorably connected to our housing crisis.  The situation in Corona Heights is representative of both of these issues.

  • Affordable Housing. 

    • Not a single unit of the City’s 22,797 affordable housing units is located in the SUD. 

    • The SUD is becoming less affordable over time for the market rate housing that is there; in May 2010 the average home price was $846k and in March 2020 it was $1.81m (a 114% increase).  

    • Since 2010, only two new homes have been constructed within the Special Use District.  In fact, the number of “housing units” in the SUD actually declined overall by 23 units from 2010 (4,249) to 2017 (4,226). 

  • Diversity

    • The SUD lacks diversity.  Corona Heights is overwhelmingly white (84%), male (61%), childless (92%), and wealthy (62% higher than median household income in San Francisco).  

    • These numbers are trending more, not less, homogeneous over time; for example since 2010 the already very low percentage of African Americans living in Corona Heights dropped by half (to 3%) and the Hispanic-Latino population dropped by a quarter (to 6%).

    • The fact is that this lack of diversity is no accident; but instead the natural and too often intentional consequence of among other forces, long, medium, and short term institutional racism and exclusion.

  This Project is necessary to counter an acute lack of housing and as importantly a lack of diversity in the area.  Applicant’s Project represents an infill housing opportunity in a transit-rich area that would turn a vacant ground floor and unused vacant land into four much-needed dwelling units, including two BMR affordable housing units that almost certainly will add much needed diversity to the Corona Heights Special Use District. 

  Specifically the average occupant in the Mayor’s Inclusionary Housing Program for BMR Rentals is radically more diverse in the following ways:

  • Of the 382 BMR applicants granted BMR housing in FY 2018-2019, a full 90% were non-white, people of color versus the current 16% non-white, people of color.  

  • 58% were women versus the current 39%.  

  • Applicant was unable to obtain the following data from the CIty, however, it is unquestionably true that affordable housing households have higher percentages of children present (only 8% in Corona Heights) and much lower median household incomes ($174,166 in Corona Heights).

    It is a near statistical certainty that this Project would add much needed diversity to the SUD.

Desirable. The Project is desirable in that it adds new and potentially diverse tax-paying neighbors in new and affordable BMR housing units within an architecturally significant home on an unused piece of vacant land in a transit-rich area. 

1. Compatible. The size and height contemplated is wholly compatible with the neighborhood:

   1. Area. The New Building would include two regulation dwelling units (2,391 sqft combined) and one BMR ADU (473 sqft), totalling 3,099 sqft of living space.  The average living area per unit for the New Building is 955 sqft/unit across all three units, 1,196 sqft/unit if limited to the two regulation units.  These averages would place the New Building in the 16th and 28th percentile, respectively, for sqft/unit among the 991 properties in the Special Use District.  The New Building’s units are therefore wholly compatible with the neighborhood.

   2. Height.  The Existing Building is at its foundation and roofline the lowest of all 85 homes on both the 17th and Ord Street Assessor Blocks.  As such, when evaluating height compatibility it is relevant to also consider the topography and relative elevation of neighboring buildings.  As the following table illustrates, the New Building is wholly compatible with the neighborhood in both proposed building height and height relative to topographical elevation.

      [insert height table]

The New Building’s height would be wholly compatible with the neighborhood and surrounding buildings.  The fit will become even more compatible if and more likely when over time the adjacent neighbors (the yellow, gray, and white homes above) expand vertically to their zoning height limits.

Such use or feature as proposed will not be detrimental to the health, safety, convenience or general welfare of persons residing or working in the vicinity, or injurious to property, improvements or potential development in the vicinity, with respect to aspects including but not limited to the following:

Nature of proposed site, including its size and shape, and the proposed size, shape and arrangement of structures

1. Size and Shape of Lots.  The Proposed Lots would not be detrimental to property, improvements, or potential development in the vicinity: 

• Consistent in Lot Size. 

  • The Proposed Lots are wholly consistent with comparable lots in the immediate area.  Corner and corner adjacent lots, as Section 121(e) recognizes, are typically much smaller than their mid-block cousins (1,750 vs. 2,500 sqft).  For example, the blocks to the immediate south and east of the Subject Lot both have small non-conforming corner adjacent lots; on the south side of 17th Street, a mere 63 feet from the Subject Lot is a 832 sqft lot (2652/031), and 128 feet east on 17th Street is a lot that is 1,210 sqft (2625/023).  The Proposed Lots would be 1,458 sqft each.  Within 1,200 feet there are a total of 27 lots that are smaller than the Proposed Lots, and hundreds that are the same or slightly larger in size.  

  • In terms of conformity with Planning Code requirements, among the 14 closest Assessor Blocks (~564 Lots) along the 17th Street Corridor over half are non-conforming lots sizes.  Of the 87 lots in the two contiguous Assessor Blocks (2626/2646) that the Subject Lot is part of, 58 (or 67%) are non-conforming lot sizes.

  • Examining the proposed lot sizes that have been granted variances since January 2000 (179 lots with data) , Applicant’s Proposed Lots (1,458 sqft) would be in the 81st percentile if compared to the smaller-of-the-two-lots created by subdivision (91) and in the 65th percentile overall when compared to the entire cohort of subdivided lots (all 179).  In other words, the Proposed Lots would be well above average in terms of lot size conformity with respect to previously granted variances. 

  • Lastly, the amount that the Proposed Lots deviate from Section 121(e)’s 1,750 sqft requirement is relatively small (17%) and as the Board of Appeals has noted, “[t]he code has in the past permitted lots as small as 1,437.5 square feet to be developed as legal lots of record,” and “[t]he code currently allows the City Planning Commission under Section 121(f) to authorize new lots with an area as low as 1,500 square feet with widths less than 25 feet.”  The Proposed Lots would deviate a mere 42 sqft (or 3%) from the authority granted the Commission outright in Section 121(f).  

• Consistent in Lot Shape.  The Proposed Lots would be similar in shape and pattern to other development in the area.  Applicant was able to identify at least 25 substantially similar corner lots within a half mile of the Subject Lot with a similar pattern of use and intensity - subdivided corner lots with buildings on each - including an example on the same block (2626) and two examples on adjacent blocks.

2. Proposed size, shape, and arrangement of structures.  Neither the New Building’s size (Section III.B.1(c)(i)-(ii)), shape (Section III.A.4), nor arrangement (not applicable), would be detrimental to property in the vicinity. 

The accessibility and traffic patterns for persons and vehicles, the type and volume of such traffic, and the adequacy of proposed off-street parking and loading

• The New Building would provide one-vehicle and three Class 1 bicycle parking spaces.  The Existing Building would continue to provide a single-vehicle parking space and would add three Class 1 bicycle parking spaces.  Otherwise, this relatively small residential project will not have significant impacts on area traffic.

The safeguards afforded to prevent noxious or offensive emissions such as noise, glare, dust and odor

• The Project will comply with all applicable regulations relating to construction noise and dust. It will not produce, nor include any permanent uses that generate substantial levels of noxious or offensive emissions, such as noise, dust, glare, or odor.

Treatment given, as appropriate, to such aspects as landscaping, screening, open spaces, parking and loading areas, service areas, lighting and signs

• The proposal does not include loading or services areas, nor will it include atypical lighting or signage.  The New Building’s east-side egress will be screened appropriately by a gate. 

• To honor the loss of the Property’s backyard:

  • The Project includes planting additional and replacement street trees and the installation of sidewalk planters in all existing and new street tree installations.  

  • The Project would install trellises and green ivy on both the east and west side of the New Building as well as planters along the fourth floor setback.

Such use or feature as proposed will comply with the applicable provisions of this Code and will not adversely affect the General Plan

The Project complies with nearly all applicable requirements and standards of the Planning Code, with three exceptions, Sections 121, 134 and 135.  Please see Section V-VI, below, for a detailed treatment of these exceptions.

And as detailed in Section III.A., above, the Project is wholly consistent with and advances the Objectives and Policies of the General Plan.

Such use or feature as proposed will provide development that is in conformity with the stated purpose of the applicable Use District

The Project is consistent with the stated purpose of a RH-2 District. The New Building is compatible with the height and size of development expected in this District, and is within the permitted density.

Planning Code Section 101.1(b) Priorities

Proposition M was adopted by the voters on November 4, 1986. It requires that the City shall find that proposed alterations and demolitions are consistent with eight priority policies set forth in Section 101.1 of the Planning Code. The Project is wholly consistent with the eight priority-planning policies memorialized in Planning Code Section 101.1(b):

That existing neighborhood-serving retail uses be preserved and enhanced and future opportunities for resident employment in and ownership of such businesses enhanced.

•  The Project will not affect existing neighborhood-serving retail uses.

That existing housing and neighborhood character be conserved and protected in order to preserve the cultural and economic diversity of our neighborhoods;

• The Project is consistent with this policy, as detailed in Section III.A.4, above. 

That the City’s supply of affordable housing be preserved and enhanced;

• The Project does not propose to remove any affordable housing units; in fact it would add two BMR affordable housing units to the City’s housing stock.

That commuter traffic not impede Muni transit service or overburden our streets or neighborhood parking;

• The Project is located in an area well-served by the City's public transit systems, proposes an additional off­ street parking space (plus one existing) and provides six new Class 1 bicycle parking spaces (three in each of the New and Existing Buildings). The Castro MUNI Rail Station and several MUNI bus lines are in close proximity to the subject property (0.3 miles), therefore the Project will not overburden streets or neighborhood parking. 

That a diverse economic base be maintained by protecting our industrial and service sectors from displacement due to commercial office development, and that future opportunities for resident employment and ownership in these sectors be enhanced;

• This policy does not apply to the Project, as it does not include commercial office development and will not displace industrial or service sector uses.

That the City achieve the greatest possible preparedness to protect against injury and loss of life in an earthquake;

• The New Building is designed to conform to the structural and seismic safety requirements of the City Building Code.  The Existing Building would receive a seismic retrofit, and several fire-related upgrades.

That landmarks and historic buildings be preserved; and

• The Project will not adversely affect any landmarks or historic buildings.

That our parks and open space and their access to sunlight and vistas be protected from development.

• The Project will not affect any City parks, open space, nor their access to sunlight or vistas.

IV. THE SPECIAL USE DISTRICT AND ORDINANCE

Corona Heights Large Residence Special Use District

The Special Use Ordinance

The Project is located within the boundaries of the Special Use District and is subject to the conditions in the Special Use Ordinance.  The Ordinance was adopted “to protect and enhance existing neighborhood character, encourage new infill housing at compatible densities and scale, and provide for thorough assessment of proposed large-scale residences that could adversely impact the area and affordable housing opportunities.”  To meet these goals, the Ordinance requires Conditional Use Authorization for four types of development, two of which are triggered by Applicant’s Project:

• Section 249.77(d)(1) (“for residential development of vacant property that will result in total gross floor area exceeding 3,000 sqft”); and

• Section 249.77(d)(4)(“for residential development that results in less than 45% rear yard depth”). 

Applicant’s Decision to Seek a Conditional Use Authorization

The triggering language of the Special Use District Ordinance is quite broad.  Even so, the Applicant could propose a much narrower course of development that would likely avoid the Special Use Ordinance altogether.  Given the greatly increased costs in terms of time, money, and overall project risk that a Conditional Use Authorization and corresponding Planning Commission review entails, this was a very tempting path.  However, any project that would avoid the Special Use Ordinance would result in the loss of two and likely three of the proposed four additional dwelling units including both BMR affordable housing units.

After weighing the various pros and cons of each course of action, the Applicant remains committed to building new and affordable housing in San Francisco, and thus ultimately decided to pursue this Conditional Use Authorization.  

Applicant’s Project is Consistent with the Spirit of the Special Use District

It bears repeating that the language of the Special Use District Ordinance is quite broad.  So much so that the vast majority of existing homes in the Special Use District would require Conditional Use Authorization to be built today.  For example, Section 249.77(d)(4) requires no “less than 45% rear yard depth”.  There are approximately 1,003 lots in the Special Use District.  While the City does not maintain property-level data on rear yard setbacks, accurate measurement and analysis is possible using tools available in Google Maps and Google Earth.  Based on a random sample of 100 homes in the Special Use District, 74% of homes have “less than 45% rear yard depth.”  The requirement that homes be no more than 3,000 sqft of total gross floor area produces similar results; conservative analysis suggests that more than one third of homes in the Special Use District have more than 3,000 sqft of total gross floor area.  

Much like the vast majority of existing homes in the Special Use District, Applicant’s Project is consistent with the spirit, even if not the letter, of the Special Use Ordinance.  Specific to the two requirements triggered by the Project:

• 3,000 sqft of Gross Floor Area.  The total gross floor area of the New Building is 4,196.  While technically this amount exceeds the 3,000 sqft limit in the Special Use Ordinance, no single dwelling unit (2,029, 1,355, and 812 sqft) individually exceeds 3,000 sqft and the average is a mere 1,692 sqft (including all three units, 1,399 sqft excluding the ADU).  As stated above, the Project could conceivably be scaled down to below 3,000 sqft of “gross floor area”, however, that would require removing two of the three proposed dwelling units in the New Building including the BMR affordable housing unit.  This outcome would run counter to at least part of the stated purpose of the Special Use Ordinance to “encourage new infill housing,” and not “adversely impact...affordable housing opportunities.”

• 45% rear yard depth.  The language of Section 249.77(d)(4) in the Special Use Ordinance mirrors [and significantly narrows] Planning Code Section 134(a)(2) which states that “[t]he minimum rear yard depth shall be equal to 45 percent of the total depth of the lot on which the building is situated, except [under certain circumstances] a depth equal to 25 percent...or to less than 15 feet, whichever is greater.”   The City has stated repeatedly that “[t]he intent of the rear yard requirement [in Section 134] is to preserve mid-block open areas.”  This is relevant because the Subject Lot is completely cut off from the mid-block space, and thus any rear yard setback would be totally divorced from the legislative purpose of the underlying requirement.  

[insert mid block space graphic]

Application of the Special Use Ordinance

According to the text of the Special Use District: “[i]n acting on any application for Conditional Use authorization within the Corona Heights Large Residence Special Use District, the Commission shall consider the Conditional Use authorization requirements set forth in subsection 303(c) and, in addition, shall consider whether facts are presented to establish, based on the record before the Commission, one or more of the following:”

The Proposed Project Promotes Housing Affordability By Increasing Housing Supply

The Project promotes housing affordability (1) by increasing housing supply and (2) by specifically building new BMR affordable housing.  As detailed above, the Project would lead directly to the addition of four new dwelling units in San Francisco.  Two of the four new units would be BMR affordable housing ADUs and all four new units would be rental units.  

The Proposed Project Maintains Affordability of Any Existing Housing Unit; or

The Existing Building has two rent-controlled units.  The middle unit has been occupied for 16 years by the Tenant.  The affordability of this unit will continue apace with San Francisco’s rent control program.  In fact Tenant’s middle unit will become at least in part more affordable with a reduction in his utility bills.  Nothing in the Project would diminish the affordability of any existing housing units.

The Proposed Project is Compatible With Existing Development

The Project would be wholly compatible with existing development in the area: 

• Compatible Lot.  As discussed above, the Proposed Lots would be compatible with existing lots in the area in terms of size and shape (Section III.B.2(a)(i)). 

• Compatible New Building.  As discussed above, the New Building would be compatible with existing development in area (Section III.B.1(c)(i)), height (Section III.B.1(c)(ii)), and all character defining features (Section III.A.4).

V. ANALYSIS OF SECTION 305(C) VARIANCE CRITERIA

Authority

Per the San Francisco Department of Planning website:  

Under the City Charter (Section 4.105), the Zoning Administrator has the power to grant only those variances that are consistent with the general purpose and the intent of the Planning Code. The power to grant a variance shall be applied only when the plain and literal interpretation and enforcement of the Code would “result in practical difficulties, unnecessary hardships, or where the results would be inconsistent with the general purpose of the [Code].” Planning Code Section 305(c) outlines the five criteria that must be met in order for the Zoning Administrator to grant a variance. 

The Section 305(c) criteria are as follows: 

That there are exceptional or extraordinary circumstances applying to the property involved or to the intended use of the property that do not apply generally to other property or uses in the same class of district; 

That owing to such exceptional or extraordinary circumstances the literal enforcement of specified provisions of this Code would result in practical difficulty or unnecessary hardship not created by or attributable to the applicant or the owner of the property; 

That such variance is necessary for the preservation and enjoyment of a substantial property right of the subject property, possessed by other property in the same class of district; 

That the granting of such variance will not be materially detrimental to the public welfare or materially injurious to the property or improvements in the vicinity; and 

That the granting of such variance will be in harmony with the general purpose and intent of this Code and will not adversely affect the Master Plan. 

Analysis of the Zoning Administrator’s Application of Section 305(c) Criteria

Aside from the plain text of the above criteria, Applicant was unable to locate much in the public domain to help guide responses to the variance application.  In an effort to better understand how to complete a successful application, as detailed in Section III.A.1(c), above, Applicant reviewed and analyzed all 111 lot subdivision-related variance decisions and listened to every available lot subdivision-related variance hearing from January 2000 through June 2020.  In reviewing the 20-year cohort of previous variance decisions, a handful of high-level themes emerged.

The most important factor in evaluating an application was how consistent (or inconsistent) the facts and measures of a given project were with the relevant surrounding area. 

Consistency

The predominant theme that emerged from analyzing previous variance decisions was that of consistency. Over and over, the actual language that appeared in decisions was some form of the question: whether or not a given project was consistent with the:

• neighborhood pattern

• neighborhood character

• pattern of development

• existing building pattern within the neighborhood

• prevailing pattern of development on the block

• existing housing and neighborhood character

• similar development pattern

• residential pattern

• existing housing and neighborhood character

• predominant pattern of residential development in the surrounding vicinity

• existing character and development pattern of the neighborhood

• character with the size of lots in the vicinity and prevailing lot size pattern

• manner consistent with the surrounding land uses

Across 20 years and 111 variance decisions, seven particularly probative characteristics and measures relevant to evaluating the consistency of a given project emerged.  A non-exhaustive list included:

• Lot Frontage (or width). Length, in feet, of the side of the lot directly adjacent to the [usually] public right of way.

• Lot Depth (or length). Length, in feet, of the side(s) of the lot [usually] perpendicular to the frontage/right of way.

• Lot Size. The total area of a lot in sqft.

• Lot Shape. The geometric shape of the lot; usually a four-sided rectangle, but occasionally ranging from a triangle to a multi-sided irregular polygon.

• Lot Position on the Block. The position of the lot relative to the typical layout of a block of lots.  There were essentially four lot positions: (1) through lots (bisecting a block with frontage on two right of ways), (2) corner lots, (3) mid-block lots (a lot adjacent to only one right of way), and (4) other (e.g., narrow triangle corner lots or oversized irregular shapes). 

• Other Relevant Variances Granted in the Area. Whether or not and what type of variances had previously been granted in the area.

• Conforming or Non-conforming to Code. The degree to which other lots in the area did or did not conform to the relevant sections of the Planning Code. 

Important Secondary Themes

In addition to evaluating a project’s consistency, important secondary themes emerged that were relied upon to help supplement the decision whether to grant or deny a given application:

• Effect on the City’s Housing Stock.  It was widely acknowledged that San Francisco is and was experiencing a housing crisis.  Therefore, whether or not a given project added (or subtracted) dwelling units from the city’s housing stock was a material factor in evaluating variance applications.  Indeed, this factor - additional housing - was the only one that across 111 decisions appeared in all five Section 305 criteria responses.  

• Effect on Existing Rent-Controlled Housing.  Any removal of rent-controlled housing was perceived as a material obstacle to granting any variance.  This included even the possibility that a variance may put an applicant in a position to more easily remove rent-controlled housing later on, e.g., where but for lot subdivision a property was ineligible for condo conversion (which can lead to the elimination of rent controlled housing). 

• Condo Conversion. Tangentially related to the above, a material factor weighing against several recent variance applications was a perception that applicants were pursuing a lot subdivision in lieu of the statutory condo conversion process.  Indeed, the most recently denied applications cited the potential availability of the condo conversion process (or the ability to otherwise build additional units as a matter of right within the existing lot) as the principal factor weighing against those applications.  

• Neighborhood Support or Opposition.  Whether neighbors or tenants were in favor, neutral, or opposed to a given project was occasionally a supplemental factor in the City’s analysis of a given application. Where opposition did exist, whether or not the applicant actively communicated and engaged with neighbors, tenants, and Department of Planning staff seemed to be the deciding factor in the analysis. 

• Existing Non-compliance and Intensification of Non-compliance.  Parallel to Section 188 of the Code, the “intensification” of an existing non-conformity weighed against granting a variance. 

Themes from Denied Variance Decisions

Of the 111 variance decisions that were analyzed, 12 (or 10.8%) were ultimately not granted.  Individual examination of those decisions revealed four key themes that were particularly decisive to their outcome:

1. Availability of an Alternative Procedure.  Five of the 12 denials were principally focused on the ability of the applicant to potentially achieve their purpose through alternative means, either constructing one or more additional units on the existing lot or taking advantage of the condo conversion process.  

2. Loss of or Potential Loss of Rent-Controlled Housing.  Four of the 12 denials were principally focused on the actual or potential loss of rent-controlled housing if the variance were granted. 

3. Illegal Housing as Bad Precedent.  One decision involved an applicant that had constructed an illegal ground floor dwelling and through the subdivision process was seeking in part to legalize that dwelling.  The Zoning Administrator pointed out that “rewarding” a property owner who has already shown “disregard for the Planning Code” by adding an illegal dwelling unit would set a bad precedent.

4. Inconsistent Lot Patterns.  The remaining two denials were broadly focused on the gross inconsistency that would have been created by granting a variance for lot subdivision.  In one case, the applicant was seeking to create the two smallest lots (~1,600 sqft each) on a block where the typical lot size was 3,000+ sqft.  In the other decision, the standard development pattern was single family homes on ~2,500 sqft lots, whereas the applicant was seeking to create one lot as small at 1,390 sqft. 

Once again underlining the importance of housing, nine of the 12 (or 75%) denied variance decisions were largely based on the loss of affordable housing generally and rent-controlled housing specifically. 

Examples of the Most Factually Relevant Precedent

As detailed further below, Applicant’s Project is wholly consistent with the subset of successful variance applications in the aggregate.  The following represents a small subset of particularly noteworthy relevant precedent:

• 699 Paris Street (2000.870V) was granted a variance from Sections 121(e) (minimum lot area), 132(d)(2) (special lot situations), and 134 (rear yard setback) of the Code to subdivide a 3,150 sqft corner lot for the purpose of building a single family home on the newly created 1,260 sqft lot.  The new buildable lot in question was a vacant side yard adjacent to the public right of way. 

• 1316 Bowdoin Street (2004.0426V) was granted a variance from Sections 121(d) (minimum lot width) and 121(e) (minimum lot area) of the Code to subdivide a 3,150 sqft lot for the purpose of building a single family home on the newly created 1,330 sqft lot.  The Zoning Administrator granted the variance, noting among other things: (1) “[t]he subject property is exceptionally large with an area of 3,150 square feet and a width of 45 feet..[t]his lot size does not apply generally to other properties in the same class of district, which more typically have lot sizes ranging from 1,750 to 2,500 square feet”, and (2) “subdivision of an oversized lot [would allow] for the development of a new single-family dwelling on what is a visually and functionally distinct portion of the property.”

• 1299 Quesada Avenue (2000.1201V) was granted a variance from Section 121 (minimum lot area) of the Code to subdivide a vacant 5,000 sqft corner lot into three 1,667 sqft lots for the purpose of building new single family homes on each.  A variance was granted on appeal, the Board noting among other things that: (1) “[t]here is a pattern of similarly sized and oriented lots in corner lot situations in this neighborhood and in the immediate vicinity”, (2) wider lots “promote a more efficient and livable floor plan”, and (3) “the site is available for new infill housing at a time when all policy makers have concluded that a critical housing shortage exists in the City”. 

• 1806-1810 8th Avenue (2019-006762VAR) was granted a variance from Section 121 (minimum lot area) of the Code to subdivide a vacant 2,945 sqft midblock lot into two lots (1,490 and 1,455) or only ~60% of that required by the Planning Code.  The Zoning Administrator noted that the subject lot had “50 feet of frontage, which is double the typical 25 feet of frontage for residential lots in the City,” and therefore had “sufficient street frontage to accommodate two single-family structures.”

• 2255-2257 Pine Street (2005.1128V) was granted a variance from Sections 121(e) (minimum lot area), 134 (rear yard setback), and 159(a) (off-street parking) of the Code to subdivide a 3,188 sqft lot for the purpose of building a single family home on a newly created 1,169 sqft lot.  The original lot featured an existing duplex and was zoned RH-2; the addition of a new single family home on a newly created lot therefore effectively allowing densification of the original property. 

• 690A Arkansas Street (2009.0803V) was granted a variance from Sections 121(d) (minimum lot width), 121(e) (minimum lot area), and 132 (minimum front setback) of the Code to subdivide a 2,800 sqft lot for the purpose of building a new single family home on the newly created 900 sqft lot.  The Zoning Administration noted that “[l]iteral enforcement of the lot area requirements in this case would require that a functionally separate unit of property remain a part of a larger lot in a situation where there is no public benefit to be gained by such a requirement.”  

• 70 Douglass Street & 67 Ord Street (2008.1233V) was granted a variance from Sections 121(e) (minimum lot area) and 134 (rear yard setback) of the Code to subdivide a 3,690 sqft lot for the purpose of building a new single family home on a 1,267 sqft lot.  Notably, the property in question is only 137 feet from the Subject Lot.

• 653-655 Fell Street (2013.0712V) was granted a variance from Sections 121(e) (minimum lot area), 134 (rear yard setback), and 135 (open space) of the Code to subdivide a code-compliant 3,240 sqft lot in order to demolish a garage and construct a new residential building.

VI. APPLICATION OF SECTION 305(C)’S VARIANCE CRITERIA

Application of Section 305(c)

Applicant has made every effort to match, criteria-by-criteria, the reasoning applied in previous variance decisions to this Project.  As such, any and all citations within a given numbered criterion come directly from the same in a previous variance decision (or appeal).

1. That there are exceptional or extraordinary circumstances applying to the property involved or to the intended use of the property that do not apply generally to other property or uses in the same class of district.

Based on a review of past variance decisions, the Subject Lot has numerous exceptional and extraordinary circumstances that do not apply generally to other properties in the same class of district.  Among these circumstances are the many ways in which the Subject Lot is currently inconsistent with the surrounding area:

• Break in Block Face.  The Subject Lot is one of 29 lots that make up the 17th Street block face between Ord Street and Temple Street.  The Subject Lot’s vacant backyard is the only material break in the entire length of the block face.  This is true for at least a quarter mile in both directions on the north side of 17th Street, and in fact, almost every other building on 17th Street is in direct physical contact with their neighbors.  

• Inconsistent in Lot Frontage. The Subject Lot has substantially more width and street frontage - 81 feet - than almost any other lot in the neighborhood.  Examining the 14 closest Assessor Blocks (and 564 lots) along the 17th Street Corridor, the Subject Lot is in the 97th percentile in terms of frontage, 2.6x (81 ft/31 ft) the average lot frontage, and 3.2x (81 ft/25 ft) median lot frontage. 

• Inconsistent with Existing Lot Patterns.  50% of the Subject Lot is vacant and is adjacent to the public right of way.  This fact makes it exceptionally unique to the area.  Applicant was unable to locate a single half-vacant-corner-lot-adjacent-to-the-public-right-of-way within at least a half mile of the Subject Lot.

• Inconsistent in Lot Size. The Subject Lot is materially larger than other lots in the area.  The Subject Lot is 2,916 sqft; which is 30% larger than the median lot size in the neighborhood.  And as the Planning Code envisions corner lots being smaller on average than their mid-block cousins (minimum lot size requirements of 1,750 and 2,500 sqft, respectively), the oversized nature of the Subject Lot is even more striking.  

• Corner Lot. The Property is on a block corner, situated at the northwest intersection of 17th Street and Ord Street.  While not per se extraordinary, corner lots do receive unique treatment in the Planning Code and variance administration, coloring relevant analysis, and informing the appropriate cohort for what is considered “consistent” in a given area, e.g., lot pattern and configuration. 

While the Subject Lot is inconsistent in many ways with the surrounding lots, the Proposed Lots on the other hand would be wholly consistent with other lots in the neighborhood in a number of important ways:

• More Consistent Lot Frontage. The street frontage of the Proposed Lots would be much more in line with the other lots in the neighborhood; 40.5 feet (down from 81 feet) versus the neighborhood median of 25 feet.  Furthermore, the proposed newly created vacant lot would retain the relatively wider-than-deep ratio which according to the Board of Appeals provides “more efficient and livable floor plans” than narrow lots.

• Consistent with Existing Lot Patterns and Previous Lot Splits. “The proposed lot split would not alter the pattern of use” for the surrounding area and would be similar to previous lot splits in the area.  Applicant was able to identify at least 25 substantially similar corner lots within a half mile of the Subject Lot with a similar pattern of proposed use - subdivided corner lots with buildings on each - including one example on the same block and two examples on adjacent blocks.

• Consistent with Previous Variances.  Applicant was able to identify at least 14 examples of variance-related lot subdivisions within a half mile of the Subject Lot, including one a mere 137 feet away and another 239 feet away.  Expanding the analysis to all types of variances and narrowing to the 14 closest Assessor Blocks (and 564 lots) along the 17th Street corridor, at least 61 (or 11% of homes) variances were recently granted.

• Consistent in Lot Size. The Proposed Lots (1,458 sqft each) would have similarly sized comparables in the neighborhood.  Corner and corner adjacent lots, as Section 121(e) recognizes, are typically much smaller than mid-block lots (1,750 vs. 2,500 sqft).  For example, the blocks to the immediate south and east of the Subject Lot both have small non-conforming corner adjacent lots; on the south side of 17th Street, a mere 63 feet from the Subject Lot is a 832 sqft lot (2652/031), and 128 feet east on 17th Street is a lot that is 1,210 sqft (2625/023).  Within 1,200 feet there are a total of 27 lots that are smaller than the Proposed Lots, and hundreds that are the same or slightly larger in size.  Furthermore, the amount that the Proposed Lots deviate from Section 121(e)’s 1,750 sqft requirement is relatively small (83%) and as the Board of Appeals has noted, “[t]he code has in the past permitted lots as small as 1,437.5 square feet to be developed as legal lots of record,” and “[t]he code currently allows the City Planning Commission under Section 121(f) to authorize new lots with an area as low as 1,500 square feet with widths less than 25 feet.”  The Proposed Lots would deviate a mere 42 sqft (or 3%) from the authority granted the Commission outright in Section 121(f).

The Subject Lot is materially inconsistent with other lots in the area (and the Proposed Lots would be materially more consistent).  Exceptional and extraordinary circumstances that apply to the Subject Lot do not apply to other lots in the same class of district.  

In addition to the question of consistency (and inconsistency) detailed above, previous variance decisions have also evaluated the impact on the mid-block space and housing stock.

• Mid-block Space. According to the text of several decisions, one of the “principal purposes” of Section 134’s rear yard requirement is the maintenance of a given block’s mid-block space.  It is noteworthy therefore that the Subject Lot is completely cut off from the Subject Lot’s mid-block space.  As such, the proposed lot subdivision and subsequent new home construction would have no effect whatsoever on the mid-block open space and thus any rear yard setback would be totally divorced from the legislative purpose of the underlying requirement.

• Additional Housing Stock. “Although the granting of the subject variance will create lots that do not have the minimum lot size required by the Planning Code, this is necessary to maintain the City policy of encouraging infill residential units and the project does not seem to have any adverse effect on the City.”  Of the 99 variance applications that were granted - and data was available (96) - the amount of proposed housing varied: 64 (or 67%) proposed no additional housing, 20 (or 21%) planned to add one unit, four projects (4%) planned to add two additional units, four projects (4%) planned to add three units, three applications planned to add four units, and one actually removed a unit of housing.  Granting this variance application and related Conditional Use Authorization would lead directly to the addition of four incremental dwelling units to San Francisco’s housing stock.  Not a single variance granted by the City in 20 years has added a single BMR affordable housing unit to the City’s housing stock.

2. That owing to such exceptional or extraordinary circumstances the literal enforcement of specified provisions of this Code would result in practical difficulty or unnecessary hardship not created by or attributable to the applicant or the owner of the property.

Based on a review of past variance decisions, the test for the second criterion appears to be that, “[l]iteral enforcement of the Planning Code requirements for lot area imposes undue hardship on the applicant/owner without any compensating public benefit since there are other parcels” in the area that are smaller, developed similarly, or both and that “[d]isapproving the variance would deny the owners parity of treatment.”

• Smaller Existing Lots.  The Proposed Lots would be 1,458 sqft each.  In an analysis of the surrounding neighborhood, as noted above, there would be at least 27 smaller lots in terms in absolute square footage nearby, and several substantially smaller lots (680, 832, 1,210, 1,260, 1,267, 1,213, and 1,211 sqft) all within a few hundred feet of the Subject Lot. 

• Similar Development. At least 25 lots in the area have similar corner lot patterns and there are no examples of other half-vacant corner lots adjacent to the right of way in the area.  

• Similar Variances. At least 14 lots within a half mile of the Subject Lot “have enjoyed lot splits creating substandard lots.”  Numerous variances unrelated to lot splits have also been granted in the area, e.g., neighbors two (84-86 Ord St.) and three (80 Ord St.) doors down from Applicant received variances from rear yard setback requirements.

The Proposed Lots would be wholly in line with the current pattern and development of the area.  The Project would also provide: 

• Additional Housing Stock.  Previous variance decisions and appeals consistently held that the denial of a variance application with one (let alone four) additional units of housing was itself an unnecessary hardship without “compensating public benefit” and therefore weighed heavily in favor of granting a variance.  

3. That such variance is necessary for the preservation and enjoyment of a substantial property right of the subject property, possessed by other property in the same class of district. 

Based on a review of past variance decisions, it is considered a substantial property right to develop property consistent with similarly situated properties in the area; “[t]he granting of this variance is the only feasible manner by which the applicant/owner can enjoy the same full use of his property that similarly situated property owners enjoy.”  Past variance decisions have focused analysis for this criterion on the existence of similarly small lots, similar subdivisions, and similarly non-conforming lots.

As detailed previously, there are abundant examples of similarly small lots and similar subdivisions in the area.  It is also the case that there are numerous examples of similarly non-conforming lots in the area:

• Non-conforming Lot Sizes. Of the 87 lots in the two contiguous Assessor Blocks that the Subject Lot is part of, 58 (or 67%) are non-conforming based on lot size. The most common lot size (42 of the 87 lots are 25 ft x 87.5 ft = 2,188 sqft) is 88% in compliance with minimum lot size requirements.  The Proposed Lots would be approximately 83% (1,458/1,750) compliant with their minimum lot size requirement.  In other words, the Proposed Lots would be substantially in line with the average conformity of the other lots in the neighborhood.  Examining the proposed lot sizes that have been granted variances (179 lots with data), Applicant’s proposed lot sizes (1,458 sqft) would be in the 81st percentile if compared to the smaller-of-the-two-lots created by subdivision (91) and in the 65th percentile overall when compared to the entire cohort of subdivided lots (179).  In other words, the proposed lots would be well above average in terms of size and conformity with respect to past variance decisions.   

• Non-conforming Rear Yards. The archetypical lot size in San Francisco is 2,500 sqft (25’ x 100’).  As noted above, however, the predominant lot depth on 17th Street (Block 2646, the closest mid-block space) is only 87.5 feet.  As detailed above, the surrounding lots are smaller than typical, which naturally diminished rear yard setbacks in the area.  While the City does not maintain data on actual rear yard setback measurements for the surrounding area, a visual inspection via Google Maps suggests that the vast majority of area lots are non-conforming.

• Additional Housing Stock. And as with all other Section 305 criteria, the need for incremental housing stock was an important factor weighing in favor of successful applications; “[g]iven the corner lot site and the housing needed to satisfy the jobs housing nexus for the City, this owner should be granted the right granted other similar properties.”

The consistent administration of variance applications creates substantial property rights for property owners.  Sections III-V, above, detail the consistency of the Applicant’s Project with the 99 successful variance applications (and dissimilarity with the 12 that have been denied).  The following additional data analysis strengthens this point.    

• Approval by These Planning Code Sections. Of the 99 applications that were granted variance from Code Sections 121 (lot size) and 134 (rear yard setback), and 135 (open space), 30 of 35 (or 86%) were granted.  

• Incidence and Approval by Lot Type. Of the 99 applications that were granted, 44 were through lots but most (56%) were not; 24 were corner lots, 25 mid-block rectangles, 3 L-shaped lots, and 3 mid-block polygons.  And 75% (24/32) of all corner lot applications were successful. 

• Approval by Housing Added. Of the 99 applications that were granted, a full 67% (66/99) did not add a single unit of housing to the San Francisco housing stock.  20% added one unit, 4% added two units, 5% added three units, and 3% added four units of housing.  Of the eight applications that sought to add three or more units of housing 100% were granted.  Of the 99 applications that were granted, not a single one added a unit of affordable housing.

• Approval by Rear Yard Setback. 92% (121 of 131) had non conforming rear yard setbacks, 50% (65/131) were 33% or less conforming, and 23% (30 of 131) had no rear yard setback at all.  

To deny the variances being sought would be to deny Applicant’s established substantial property right to “enjoy the same full use of his property that similarly situated property owners enjoy.”

4. That the granting of such variance will not be materially detrimental to the public welfare or materially injurious to the property or improvements in the vicinity.

Based on a review of past variance decisions, if the proposed development is “consistent with other properties” in the area, it was per se not materially detrimental or injurious to the property in the vicinity.  As detailed in the previous Sections, the Project is wholly consistent with what exists and has been permitted in the area by the City.   

Potential Neighborhood Support or Opposition.  As of the date of this submission, it is unclear whether on balance Applicant’s neighbors will be supportive, neutral, or opposed the Project.  Previous variance decisions held, however, that neighborhood opposition could be addressed if the Applicant actively communicated and engaged with neighbors, any tenants, and City staff.

Additional Housing Stock.  As with all other criteria, past variance applications have noted the material benefits of additional housing; “[g]ranting the variances would add one new residence to the City’s housing stock and would not be materially detrimental to the public welfare or materially injurious to the neighboring properties.” 

5. That the granting of such variance will be in harmony with the general purpose and intent of this Code and will not adversely affect the Master Plan.

Based on a review of past variance decisions, the fifth and last criterion weighs whether “[t]he proposal is in harmony with the generally stated intent and purpose of the Planning Code to promote orderly and beneficial development.”  Variance decisions often cited housing-related policies from the San Francisco General Plan which “encourage[s] residential development when it preserves or improves the quality of life for residents of the City.”  Applicant’s Project is not only consistent with but advances at least 22 important Objectives and Policies of the General Plan (see Section III.A., above).

The last criterion also often discussed:  

Parking. The provision of off street parking was occasionally cited as an important factor in some variance decisions.  Here, “[n]eighborhood parking would not be impacted because the Applicant has agreed to provide two off-street parking spaces with any proposed building for the property” and will replace any lost vehicle parking in the Existing Building with Class 1 Bicycle Parking spaces.

Additional Housing Stock.  Applicant is proposing the addition of four additional units of housing, two of which are considered affordable options, and one would be rent-controlled.  Overall, “[g]ranting this variance will add to the quality of the City’s housing stock by helping to retain the existing supply of housing while preserving the aesthetics and functionality of the subject property” and “improve the supply of affordable housing.”

And in all variance decisions, the “eight priority-planning policies” codified in Planning Code Section 101.1 were relied upon when evaluating this criterion (in Section III). 

Exhibit List

• Exhibit A (Accessor Blocks 2626 and 2646)

• Exhibit B (Photographs of the Property and Surrounding Area)

• Exhibit C (Map and Addresses of Corner Lot Examples)

• Exhibit D (List of Sample Properties and Map)

• Exhibit E (Aerial View of Property Relative to the Midblock Space) 

• Exhibit F (Panoramic of 17th Street Block Face)

• Exhibit G (Map of 14 Accessor Blocks Along 17th Street Corridor)

• Exhibit H (Maps and Addresses of Other Variance Examples)

[insert exhibits as pictures with Captions as Exhibit Numbers]