Three Year Amnesty for Illegal Uses Ends January 19, 2012
Dec 12, 2011
REZONING OF LOTS IN EASTERN NEIGHBORHOODS HAS MADE ILLEGAL AT LEAST A THOUSAND RESIDENTIAL, OFFICE AND RETAIL SPACES.
LEGALIZATION APPLICATIONS MUST BE IN SOON.
Until the middle of January 2012, there is an opportunity to legalize uses being conducted without benefit of permits. After this time, Planning Department enforcement will begin.
Two and a half years ago, over 1,000 lots on the eastern side of th City, which allowed a wide assortment of uses including residential, office and retail, were rezoned to industrial only (PDR).
WHAT ARE DEEMED ILLEGAL USES THAT HAVE TO TERMINATE?
The rezoning has made existing uses (office, retail or residential uses) in PDR districts into either "legal" nonconforming ones or "illegal" non-conforming ones. Illegal ones are those without permits which explicitly call out the use as office (and can show a "change of use" from industrial to office approved by Planning Department). This article deals with the office uses created without permits, but the rules apply to retail, residential, and other uses.
Those uses that are legal may continue indefinitely as long as (1) the alteration permits by which they moved in indicate on them that the proposed use is "office" (2) there is no physical expansion or intensity of use, (3) there is no period of office vacancy for three or more years, and (4) there is no change of office use to a PDR use in the future.
WHY LEGALIZE AT ALL?
Many owner and tenant alteration permits may be challenged by those political groups who want the Eastern Neighborhoods to become mostly industrial, and revert from "illegal" office use to indistrial use. Many owners and tenants left the submittal of alteration permits to contractors, who may have filled in the "proposed use" box in an alteration permit in a wrong way. Also, in the dot-com boom, the immediate needs for office space were so intense that owners may have placed tenants in spaces without going through the lengthy San Francisco permit approval processes. If selling or refinancing without this problem solved, there could be problems; and those buildings which legitimize will increase in value more than those which do not.
Any City determination to allow legalization (or not) can be appealed to the Board of Appeals.
The legitimization procedure can be used to legalize office, retail or residential space in new industrial only (PDR) areas that no longer allow such uses. The only thing you cannot legalize is live work space without benefit of permits.
SINCE LEGALIZATION IS EXPENSIVE, IS THERE AN ALTERNATIVE?
One can ask one's experienced land use advisor to prepare a Request for Letter of Determination requesting that the Zoning Administrator concede that some permits which do not explicitly call out a use as office in fact created a legal office use nonetheless. These Requests (which ask the City to determine that legalization (and its fees) is not needed) should be submitted as soon as possible, since a negative response coming from the Zoning Administrator which arrives too late can cause one to miss the legalization application deadline of January 19, 2012.
WHAT IF LEGALIZATION IS IMPOSSIBLE?
If for certain reasons a particular space cannot be legalized (for example, the user of the space has moved in after 2007 or 2008), there is another possibility for either a brand new user or tenant, or an existing one. If one has a combination of PDR space and office space (even where the office space is as much as 2/3 of the space), one can seek approval as an Integrated PDR Space ("IPDR Space"). The City has decided to allow this for only certain kinds of older buildings, and may extend it to other buildings once the City determines the success of this.
Should you have any questions on this, please feel free to contact Brett Gladstone Esq. or Susanne Kelly Esq. at (415) 434-9500 or by email to: firstname.lastname@example.org
M. Brett Gladstone
B.A. 1980 Harvard University, Magna Cum Laude
J.D. 1983, Duke University
Member, Lambda Alpha Society
Disclaimer: This newsletter is not a substitute for legal advice and, since the facts of all matters differ, readers are cautioned not to take actions without seeking the advice of a real estate attorney. The issues discussed in this newsletter are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein.
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Written by: M. Brett Gladstone
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This is a periodic newsletter from the law firm of Gladstone &
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providing commentary on new land use trends in San Francisco. www.gladstoneassociates.com