o0155-22

FILE NO. 220262 ORDINANCE NO. 155-22 [Planning, Administrative Codes - Affordable Housing Code Enforcement] Ordinance amending the Planning Code to permit the Mayor's Office of Housing and Community Development to enforce, and collect fines and penalties for violations of, Planning Code provisions governing affordable housing; amending the Administrative Code to allow the Mayor's Office of Housing and Community Development (MOHCD) to use the proceeds in the Affordable Housing Enforcement Fund for all Planning Code enforcement activities by MOHCD relating to affordable housing; affirming the Planning Department's determination under the California Environmental Quality Act; and making findings of consistency with the General Plan, and the eight priority policies of Planning Code, Section 101.1, and findings of public necessity, convenience, and welfare under Planning Code, Section 302. 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 #Blics Times Ne-w Rr:n1ut11 fant . 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. Environmental and Land Use Findings. (a) The Planning Department has determined that the actions contemplated in this ordinance comply with the California Environmental Quality Act (California Public Resources Code Sections 21000 et seq.). Said determination is on file with the Clerk of the Board of Supervisors in File No. 220262 and is incorporated herein by reference. The Board affirms this determination. Mayor Breed BOARD OF SUPERVISORS Page (b) On May 26, 2022, the Planning Commission, in Resolution No. 21122, 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 Board adopts these findings as its own. A copy of said Resolution is on file with the Clerk of the Board of Supervisors in File No. 220262, and is incorporated herein by reference. (c) Pursuant to Planning Code Section 302, the Board of Supervisors finds that this ordinance will serve the public necessity, convenience, and welfare for the reasons set forth in Planning Commission Resolution No. 21122, and incorporates such reasons by this reference thereto. A copy of said resolution is on file with the Clerk of the Board of Supervisors in File No. 220262. Section 2. The Planning Code is hereby amended by revising Sections 176, 350, and 415.9, to read as follows: SEC. 176. ENFORCEMENT AGAINST VIOLATIONS. (a) Violations Unlawful. Any use, structure, lot, featureL or condition in violation of this Code is hereby found and declared to be unlawful and a public nuisance. Should any permit or license have been issued that was not then in conformity with the provisions of this Code, such permit or license shall be null and void. (b) Methods of Enforcement. The Zoning Administrator shall have authority to enforce this Code against violations thereof by any of the following actions: (1) Serving notice requiring the cessation, removalL or correction of any violation of this Code upon the owner, agenl or tenant of the property that is the subject of th violation, or upon the architect, builder, contractorL or other person who commits or assists in such violation; Mayor Breed BOARD OF SUPERVISORS Page (2) Calling upon the City Attorney to maintain an action for injunction to restrain or abatement to cause the correction or removal of any such violation, and for assessment and recovery of a civil penalty for such violation as well as any attorneys' fees or costs, including but not limited to expert witness fees, incurred in maintaining such an action; (3) Calling upon the District Attorney to institute criminal proceedings in enforcement of this Code against any such violation; end (4) Calling upon the Chief of Police and authorized agents to assist in the enforcement of this Cod&.-; and (5) Calling upon the }.;favor s Office o[Housing and Community Development (MOHCD) to enforce Planning Code requirements relating to affordable housing. The Department and MOHCD shall enter into a memorandum of understanding to identi'(y the types of enforcement cases LO be delegated to _AlfOHCD. (c) Penalties. (1) Administrative Penalties. In the notice requiring the cessation, removal,_ or correction of any violation of this Code, the Zoning Administrator may assess upon the responsible party an administrative penalty for each violation in an amount up to $250:-00 for each day the violation continues unabated. The "responsible party" is the owner(s) of the real property on which the code violation is located, as listed in the records of the San Francisco Assessor, and the current leaseholder if different from the current owner(s) of the real property. The responsible party may request a Zoning Administrator's hearing in order to show cause why the notice requiring the cessation, removalL or correction of the violation and any assessment of administrative penalties is in error and should be rescinded. The Zoning Administrator may designate a member of Department staff to act as the hearing officer in hffl eF-heF the Zoning Administrator 's place. The Department shall send a notice of the date, hour, Mayor Breed BOARD OF SUPERVISORS Page and place of the hearing to the responsible party at the address specified in the request for hearing and to any member of the public who has expressed an interest in the matter. The responsible party may also request that the Zoning Administrator terminate abatement proceedings under Section 176 and refer the matter to the Director for enforcement action under the process set forth in Section 176.1 afthis Cede. If the Zoning Administrator determines that the enforcement case will proceed under Section 176, that determination shall be made as part of the final written decision and is not appealable separately from the decision on the merits. The responsible party may waive the right to a Zoning Administrator's hearing and proceed directly to an appeal to the Board of Appeals under Section 308.2 £>}this Cede. Administrative penalties shall not accrue during the period of time that the matter is pending before the Zoning Administrator on a request for hearing or before the Board of Appeals on appeal. If the responsible party elects to request a Zoning Administrator's hearing, the request for hearing must be in writing and submitted to the Zoning Administrator prior to the expiration date of the Notice of Violation and Penalty. If a request for a Zoning Administrator's hearing is timely filed, any appeal to the Board of Appeals shall be from the decision of the Zoning Administrator rendered after the hearing. The Zoning Administrator or the Zoning Administrator's designee, after a full and fair consideration of the evidence and testimony received at the hearing, shall render within fhit,ty30 days following the conclusion of the hearing a written decision that either rescinds the notice of violation and dismisses the proceedings, upholds the original decision, or modifies the original decision. In rendering a decision, the Zoning Administrator or the Zoning Administrator's designee shall consider: (A) whether the responsible party was properly identified; Mayor Breed BOARD OF SUPERVISORS Page (8) whether the accrual dates for the administrative penalties are accurate; (C) the amount of documented staff time spent in order to secure abatement of the violation; (D) the nature of the violation; (E) the duration of the violation; (F) efforts made by the responsible party to correct the violation; (G) the impact of the violation upon the community; (H) any instance in which the responsible party has been in violation of the same or similar laws at the same or other locations in the City and County of San Francisco; (I) the responsible party's good faith efforts to comply; (J) whether the violation is easy to correct; and (K) such other factors as the Zoning Administrator or his or her the Zonin Adminish-ator's designee may consider relevant. In hearing any appeal of the Zoning Administrator's determination, the Board of Appeals shall consider the above factors. If the Board upholds the Zoning Administrator's decision in whole or in part but reduces the amount of the penalty, it may not reduce the amount of the penalty below $100:-00 for each day that the violation exists, excluding the period of time that the matter has been pending either before the Zoning Administrator on a request for hearing or before the Board of Appeals on appeal. In addition to any administrative penalties imposed under this subsection (c)(1), the Zoning Administrator may recover any attorneys~ fees and costs, including but not limited to expert witness fees, incurred by the City in pursuing administrative remedies. The provision Mayor Breed BOARD OF SUPERVISORS Page of administrative penalties is not intended to be punitive in nature but is intended to secure compliance with the Planning Code and to compensate the City for its costs of enforcement. (2) Civil Penalties. Any individual, firm, partnership, corporation, company, association, society, groupL or other person or legal entity that violates any provision of this Code shall be liable for the City's costs of enforcement and a civil penalty, of not less than $200:-00 for each day such violation is committed or permitted to continue, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the City and County of San Francisco by the City Attorney in any court of competent jurisdiction. The City Attorney may seek recovery of any attorneys' fees and costs, including but not limited to expert witness fees, incurred by the City in bringing such civil action. For civil actions to enforce Municipal Code provisions related to general advertising signs, the penalties, attorneys' feesL and costs set forth in this Section 176 shall be in addition to those authorized by Section 610 of this Code. (3) Criminal Penalties. Any individual, firm, partnership, corporation, company, association, society, groupL or other person or legal entity that violates any provision of this Code shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in an amount not less than $200:-00 or be imprisoned for a period not exceeding six months or b both so fined and imprisoned. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder. (4) Planning Code Enforcement Fund. Any fees and penalties collected pursuant to this Section 176 except those collected pursuant to subsection (b)(5) shall be deposited in the Planning Code Enforcement Fund established by Administrative Code Section 10.100-166. The Planning Department, through the Planning Code Enforcement Fund, shall reimburse City departments and agencies, including the City Attorney's Office, for all costs and fees incurred in the enforcement of this Section 176. Mayor Breed BOARD OF SUPERVISORS Page , (5) Affordable Housing Enforcement Fund. Any fees and penalties described in subsection (c)(2) that are collected as a result o(the enforcement efforts ofMOHCD as provided in subsection (b)(5), shall be deposited in the Affordable Housing Enforcement Fund established by Administrative Code Section 10.100-10. MOHCD shall reimburse Citv departments and agencies. including the Citv Attornev's Office, for all costs and fees incurred in the enforcement o{this Section 176, ·from the Affordable Housing Enforcement Fund * * * * SEC. 350. FEES. * * * * (g) Time and Materials. The Planning Department shall charge the applicant for any time and materials cost incurred in excess of the initial fee charged if required to recover the Department's costs for providing services. (1) The Department shall charge time and materials to recover the cost of correcting code violations and violations of Planning Commission and Department conditions of approval of use if such costs are not covered by the monitoring fee for conditions of approval specified in the Planning Department Fee Schedule. (2) Where a different limitation on time and material~ charges is set forth elsewhere in this Article 3.5, that limitation shall prevail. (3) The Planning Department may also charge the applicant for anv time and materials costs incurred b1 another department or agencv of the City and County of San Francisco. or mqy authorize such other departments or agencies ofthe City and County to charge directly for any time and material~ costs incurred by the respective department or agency to recover the cost of correcting code violations, violations of Planning Commission and Department conditions of approval.other departments or ageneies efthe City and Co'ti.rfty ef&m F;,:tmeiseo. Mayor Breed BOARD OF SUPERVISORS Page (4) Any balance of time and materials costs for active and open projects must be paid in full one week in advance of a scheduled public hearing before the Planning Commission to consider the project or before issuance of the first site permit if no hearing is required. * * * * SEC. 415.9. ENFORCEMENT PROVISIONS AND MONITORING OF PROGRAM. (a) A first construction document or first Certificate of Occupancy, whichever applies, shall not be issued by the Director of DBI to any unit in the Principal Project until all of the affordable housing requirements of Sections 415. l_et seq. are satisfied. (b) If, after issuance of the first Certificate of Occupancy, the Commission or Department determines that a project sponsor has failed to comply with any requirement in Section 415. l_et seq. or any reporting requirements detailed in the Procedures Manual, or has violated the Notice of Special Restrictions, the Commission, Department, or DBI may, until th violation is cured, (1) revoke the Certificate of Occupancy for the Principal Project or required Affordable Units, (2) impose a penalty on the project pursuant to Section 176(c) of this Code, and/or (3) the Zoning Administrator or MOHCD may enforce the provisions of Section 415.1_et seq. through any means provided for in Section 176 of this Code. (c) The Department shall notify MOHCD of any housing project subject to the requirements of Section 415.1_et seq., including the name of the project sponsor and the number and location of the Affordable Units, within 30 days of the Department's approval of a building, or site permit for the project. MOHCD shall provide all project sponsors with information concerning the City's first time homebuyer assistance programs and any other related programs MOHCD shall deem relevant to the lnclusionary Affordable Housing Program. Mayor Breed BOARD OF SUPERVISORS Page (d) The Department shall, as part of the annual Housing Inventory, report to the Board of Supervisors on the results of Section 415.1_et seq. including, but not limited to, a report on the following items: (1) The number of, location of, and project applicant for, housing projects which came before the Commission for a Conditional Use Authorization or Planned Unit Development, and the number of, location of, and project applicant for,. housing projects which were subject to the requirements of Section 415.1_et seq.; (2) The number of, location of, and project sponsor for, housing projects which applied for a waiver, adjustment, or reduction from the requirements of Section 415.1_et seq. pursuant to Section 406 of this Article, and the number of, location of, and project sponsor for housing projects which were granted such a waiver, adjustment, or reduction and, if a reduction, to what percentage; and (3) The number of, location of, and project sponsor for, every housing project t which Section 415. l_et seq. applied and the number of market rate units and the number of affordable on- and off-site units provided, including the location of all of the affordable units. * * * * Section 3. The Administrative Code is hereby amended by adding Section 10.100-10, to read as follows: SEC. 10.100-10. AFFORDABLE HOUSING ENFORCEMENT FUND. (a) Establishment o(Fund. The Affordable Housing Enforcement Fund is established as a category four fimd to receive funds collected for penalties and fees assessed under Planning Code Section 1 6(c) for iolations of Planning Code requirements and regulations relating to affordable housing. (b) Use of F1111d. Proceeds in the timd are to be expended as follov. s: (1) administration and enforcement of the Planning Code 's requirements and regulations relating to affordable housing. Mayor Breed BOARD OF SUPERVISORS Page including but not limited to funding MOHCD personnel and the services o(the CityAttorney, in the administration and enforcement of Planning Code requirements and regu.lations relating to affordable housing; (2) enforcement o{any housing contract or agreement administered by lv[OHCD,· and (3) to the extent authorLed by state la11. penalties and fees collected bi the City Attornev in anv action to abate violations o(the Planning Code's requirements and regulations relating to affordable housing shall be used to fund administration and enforcement o(the requirements and regulations, including the services ofthe City Attorney. Section 4. 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 5. 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/ .......,K..,,,..R ..... IS ..... T .... E ..... N,......A,...... . .....,.J.,,,..EN--S=-E--N Deputy City Attorney n:\legana\as2022\2200147\01583051 .docx Mayor Breed BOARD OF SUPERVISORS Page 1 ,. City and County of San Francisco Tails Ordinance City Hall I Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4689 File Number: 220262 Date Passed: July 12, 2022 Ordinance amending the Planning Code to permit the Mayor's Office of Housing and Community Development to enforce, and collect fines and penalties for violations of, Planning Code provisions governing affordable housing; amending the Administrative Code to allow the Mayor's Office of Housing and Community Development (MOHCD) to use the proceeds in the Affordable Housing Enforcement Fund for all Planning Code enforcement activities by MOHCD relating to affordable housing; affirming the Planning Department's determination under the California Environmental Quality Act; and making findings of consistency with the General Plan, and the eight priority policies of Planning Code, Section 101.1, and findings of public necessity, convenience, and welfare under Planning Code, Section 302. June 13, 2022 Land Use and Transportation Committee - RECOMMENDED June 28, 2022 Board of Supervisors - PASSED ON FIRST READING Ayes: 10 - Dorsey, Mandelman, Mar, Melgar, Peskin, Preston, Ronen, Safai, Stefani and Walton Excused: 1 - Chan July 12, 2022 Board of Supervisors - Fl NALLY PASSED Ayes: 11 - Chan, Dorsey, Mandelman, Mar, Melgar, Peskin, Preston, Ronen, Safai, Stefani and Walton File No. 220262 London N. Breed Mayor City and County of San Francisco Pagel I hereby certify that the foregoing Ordinance was FINALLY PASSED on 7/12/2022 by the Board of Supervisors of the City and County of San Francisco. ' Angela Calvillo Clerk of the Board Date Approved Printed at 10:50 am on 7113/12