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AMENDED IN COMMITTEE 12/11/2023 FILE NO. 230706 ORDINANCE NO. 003-24 [Planning Code - Eliminating Revising Public Art Relocation and Removal Requirement,§, for Existing 100% Affordable Housing Projects] Ordinance amending the Planning Code to eliminate the public art requirement for 100% affordable housing projects and provide for the relocation or removal of existing artwork at St:IGh 100% affordable housing projects subject to certain conditions; affirming the Planning Commission's determination under the California Environmental Quality Act; and making findings, including findings of consistency with the General Plan and the eight priority policies of Planning Code Section 101.1. NOTE: Unchanged Code text and uncodified text are in plain Arial font. Additions to Codes are in single-underline italics Times New Roman font. Deletions to Codes are in strikethrough italics Times New Romtmfimt. Board amendment additions are in double-underlined Arial font. Board amendment deletions are in strikethrough Arial font. Asterisks(* * * *) indicate the omission of unchanged Code subsections or parts of tables. Be it ordained by the People of the City and County of San Francisco: Section 1. Findings. (a) On November 16, 2023, the Planning Commission, in Resolution No. 21446, determined that the actions contemplated in this ordinance comply with the California Environmental Quality Act (California Public Resources Code Sections 21000 et seq.). Said Resolution is on file with the Clerk of the Board of Supervisors in File No. 230706 and is incorporated herein by reference. The Board affirms this determination. (b) The Planning Commission, in Resolution No. 21446, also adopted findings that the actions contemplated in this ordinance are consistent, on balance, with the City's General Plan and eight priority policies of Planning Code Section 101.1. The Planning Commission Supervisor Dorsey BOARD OF SUPERVISORS Page 1 also adopted findings of public necessity under Planning Code Section 302. The Board adopts these findings as its own. (c) The Board of Supervisors is proceeding with this action to remove a financial obstacle in the creation of affordable housing and in furtherance of policy 8.6.5 in the recently enacted Housing Element that states: "[r]emove Planning Code Section 429 Public Art requirements for 100% affordable housing projects." Section 2. The Planning Code is hereby amended by revising Sections 429.1, 429.2, and 429.4, to read as follows: [PUBLIC ART FEE] * * * * SEC. 429.1. DEFINITIONS. In addition to the definitions set forth in Section 401 of this Article, the following definitions shall govern interpretation of Section 429.1 et seq.: "100% Affordable Housing Proiect" means a proiect that meets the applicability requirements for a(fprdable housingproiects set forth in Section 315(b) o(this Code. "Conservation" shall mean the profession devoted to the preservation of cultural property for the future. * * * * SEC. 429.2. APPLICATION. This section shall apply to: (a) all projects that involve construction of a new building or addition of floor area in excess of 25,000 square feet to an existing building in a C-3 District, except for existing 100% Affordable Housing Projects; and Supervisor Dorsey BOARD OF SUPERVISORS Page 2 (b) all non-residential projects that involve construction of a new building or addition of floor area in excess of 25,000 square feet and that have submitted their first complete Development Application on or after January 1, 2013 on the following parcels: (1) all parcels in RH-DTR, TB-DTR, SB-DTR, UMU, WMUG, WMUO and SALi Districts; (2) properties that are zoned MUG, CMUO, or MUO or MUR and that are north of Division/Duboce/13th Streets; and (3) all parcels zoned C-2 except for those on Blocks 4991 (Executive Park) and 7295 (Stonestown Galleria Mall). For the purposes of this Section, a "Development Application" shall mean any application for a building permit, site permit, environmental review, Preliminary Project Assessment (PPA), Conditional Use, or Variance. SEC. 429.4. COMPLIANCE BY PROVIDING ON-SITE PUBLIC ARTWORK. (a) Installation. The project sponsor must install the public art in compliance with this Section 429.4~ (1) in areas on the site of the building or addition so that the public art is clearly visible from the public sidewalk or the open-space feature required by Section 138, or (2) on the site of the open-space feature provided pursuant to Section 138, or (3) in a publicly accessible lobby area of a Hotel ("On-Site Public Artwork"). Said On-Site Public Artwork shall be installed prior to issuance of the first certificate of occupancy; provided, however, that if the Zoning Administrator concludes that it is not feasible to install the Artwork within that time and that adequate assurance is provided that the Artwork will be installed in a timely manner, the Zoning Administrator may extend the time for installation for a period of not more than 12 months. Said works of art may include sculpture, bas-relief, murals, mosaics, decorative water features, tapestries or other artworks permanently affixed to the building or its grounds, or a Supervisor Dorsey BOARD OF SUPERVISORS Page 3 combination thereof, but may not include architectural features of the building, nor artwork designed by the architect, except as permitted with respect to the in lieu contribution regarding publicly owned buildings meeting the criteria described above. Artworks shall be displayed in a manner that will enhance their enjoyment by the general public. The type and location of Artwork, but not the artistic merits of the specific artwork proposed, shall be approved by the Zoning Administrator in accordance with the provisions of Section 309 of this Code. (b) Recognition of Artists. An ADA compliant plaque identifying the creator, name (if any), and installation date of the On-Site Public Artwork required by subsection (a) above shall be placed at a publicly conspicuous location within view of the On-Site Public Artwork at the same time the Artwork is installed. (c) Removal, Relocation, or Alteration of Artwork. Once the project sponsor has installed and completed the final Artwork, the project sponsor, building owner and any third party may not remove, relocate or alter the Artwork without notifying and consulting with the Planning Department at least 120 days prior to the proposed removal, relocation or alteration. A proiect sponsor's or building owner's notice o{intent to the Planning Department to remove, relocate, or alter Artwork shall include written approval of the proposed removal, relocation, or alteration from the artist or artist's estate, if applicable, under the federal Visual Artists Rights Act (17 USC. §§106A and 113(d))("VARA "), the California Art Preservation Act (Cal. Civil Code §'§987 et seq.)("CAPA "), or any successor laws protecting the integrity of Artwork, or a written waiver from the artist expressly waiving their rights, if any, under VARA and CAPA. The Planning Department shall not approve any removal, relocation, or alteration unless it finds any removed Artwork will be replaced with Artwork of equal or greater value or that any relocation or alteration is only a minor modification. If a project sponsor does remove, relocate, or alter the Artwork without notification and approval of the Planning Department, the Planning Department is authorized to pursue enforcement of this Section under Section 176 or 176.1 of this Code or to pursue Supervisor Dorsey BOARD OF SUPERVISORS Page4 any other remedy permitted by law. (d) Removal, Relocation, or Alteration o{Artwork for Existing 100% Affordable Housing Proiects. Notwithstanding the requirements of subsection (c) of this Section 429.4. 100% Affordable Housing Proiects for which public art has already been installed as of the effective date of the ordinance in Board of Supervisors File No. 230706, including a 100% a{fprdable residential building built to satisfv affordable housing requirements of market rate proiects, may remove, relocate, or alter Artwork ifthe Artwork has been vandalized or severely compromised such that it cannot be restored to its original condition without significant financial expenditures. A proiect sponsor's or building owner's notice o[intent to the Zoning Administrator to remove, relocate, or alter Artwork shall include:(]) documentation of vandalism or severely compromised conditions and (2) written approval of the proposed removal, relocation, or alteration from the artist or artist's estate, if applicable, under the federal Visual Artists Rights Act (17 USC. §'§106A and 113(d))("VARA "), the California Art Preservation Act (Cal. Civil Code §§987 et seq.)("CAPA "), or any successor laws protecting the integrity of Artwork. or a written waiver from the artist expressly waiving their rights, if any, under VARA and CAPA. The Zoning Administrator. after a duly noticed public hearing, may approve, conditionally approve, or deny removal. relocation, or alteration of the Artwork. The Zoning Administrator shall take into account the financial burden of repair and the extent of the vandalism, including past history of repeat vandalism, and likelihood that the Artwork may be vandalized again. For cases proposing removal under this subsection (d), the Zoning Administrator shall consider the viability of relocating the Artwork elsewhere on the property. In regard to relocation or alteration, including relocation of the Artwork elsewhere on the property, if the Zoning Administrator determines that relocation or alteration is a minor modification of the Artwork, then no hearing is required. Notice of the Zoning Administrator's hearing shall be sent to property owners within a 300 foot radius of the subiect site at least seven days Supervisor Dorsey BOARD OF SUPERVISORS Page 5 before the hearing. Enforcement of this subsection (d) shall be in accordance with Section 74 9.4 (c)429.4(c). Section 3. Effective Date. This ordinance shall become effective 30 days after enactment. Enactment occurs when the Mayor signs the ordinance, the Mayor returns the ordinance unsigned or does not sign the ordinance within ten days of receiving it, or the Board of Supervisors overrides the Mayor's veto of the ordinance. Section 4. Scope of Ordinance. In enacting this ordinance, the Board of Supervisors intends to amend only those words, phrases, paragraphs, subsections, sections, articles, numbers, punctuation marks, charts, diagrams, or any other constituent parts of the Municipal Code that are explicitly shown in this ordinance as additions, deletions, Board amendment additions, and Board amendment deletions in accordance with the "Note" that appears under the official title of the ordinance. APPROVED AS TO FORM: DAVID CHIU, City Attorney By: /s/ JOHN D. MALAMUT JOHN D. MALAMUT Deputy City Attorney n:\legana\as2023\2300308\01721365.docx Supervisor Dorsey BOARD OF SUPERVISORS Page 6 City and County of San Francisco Tails Ordinance City Hall I Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4689 File Number: 230706 Date Passed: January 09, 2024 Ordinance amending the Planning Code to provide for the relocation or removal of existing artwork at 100% affordable housing projects subject to certain conditions; affirming the Planning Commission's determination under the California Environmental Quality Act; and making findings, including findings of consistency with the General Plan and the eight priority policies of Planning Code Section 101.1. December 11, 2023 Land Use and Transportation Committee - DUPLICATED December 11, 2023 Land Use and Transportation Committee - AMENDED, AN AMENDMENT OF THE WHOLE BEARING NEW TITLE December 11, 2023 Land Use and Transportation Committee - RECOMMENDED AS AMENDED AS A COMMITTEE REPORT December 12, 2023 Board of Supervisors - PASSED ON FIRST READING Ayes: 11 - Chan, Dorsey, Engardio, Mandelman, Melgar, Peskin, Preston, Ronen, Safai, Stefani and Walton January 09, 2024 Board of Supervisors - Fl NALLY PASSED City and County of San Francisco Ayes: 11 - Chan, Dorsey, Engardio, Mandelman, Melgar, Peskin, Preston, Ronen, Safai, Stefani and Walton Page 1 Printed at 9:52 am on 1/10/24 File No. 230706 London N. Breed Mayor City a11d Cou11ty of Sa11 Fra11cisco \ Page2 I hereby certify that the foregoing Ordinance was Fl NALLY PASSED on 1/9/2024 by the Board of Supervisors of the City and County of San Francisco. Clerk of the Board Date Approved Pri11ted at 9: 52 am 011 1/10/24