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' j ! ' s! ! i 1oi i 11 I I 13[ SUBSTITUTED FILE NO. 210699 10/05/2021 ORDINANCE NO. 208-21 [Planning, Administrative Codes - Accessory Dwelling Units] Ordinance amending the Planning Code to clarify the requirements for applications to construct Accessory Dwelling Units under the City's local Accessory Dwelling Unit approval process; amending the Administrative Code to clarify that landlords may not remove certain tenant housing services without just cause and that issuance of a building permit does not constitute just cause; making findings as required by the Tenant Protection Act of 2019; 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. NOTE: Unchanged Code text and uncodified text are in plain Arial font. Additions to Codes are in single-underline italics Times New Roman f'ont. Deletions to Codes are in strikethrough italics Times }few Roman font. Board amendment additions are in double-underlined Arial font. Board amendment deletions are in strikethrough /\rial 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) The Planning Department has determined that the actions contemplated in this ordinance comply with the California Environmental Quality Act (California Public Resources 21 I Code Sections 21000 et seq.). Said determination is on file with the Clerk of the Board of I Supervisors in File No. 210699 and is incorporated herein by reference. The Board affirms I this determination. I (b) On September 9, 2021, the Planning Commission, in Resolution No. 20986, 2sl adopted findings that the actions contemplated in this ordinance are consistent, on balance, I I Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 1 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. 210699, and is incorporated herein by reference. (c) This ordinance is intended in part to clarify the existing rules in the Rent Ordinance as to housing services. The term housing services refers to services provided by the landlord connected with the use or occupancy of a rental unit including, but not limited to, access to areas such as garages, driveways, storage spaces, laundry rooms, decks, patios, gardens on the same lot, and kitchen facilities or lobbies in single room occupancy (SRO) hotels. This ordinance clarifies that landlords may not sever, remove, or reduce housing services without 1 O just cause, and that this rule applies equally to landlords who intend to construct Accessory Dwelling Units. These landlords must comply with just cause rules, and being in possession of a building permit does not, in and of itself, confer just cause to sever a housing service. By clarifying that the just cause rules in the Rent Ordinance apply, this ordinance is more protective than the Tenant Protection Act of 2019 (Cal. Civ. Code § 1946.2), as the Rent Ordinance further limits the reasons for termination of a residential tenancy, provides for higher relocation assistance amounts, and provides additional tenant protections. Section 2. Article 2 of the Planning Code is hereby amended by revising Section 207, to read as follows: SEC. 207. DWELLING UNIT DENSITY LIMITS. * * * * (c) Exceptions to Dwelling Unit Density Limits. An exception to the calculations under this Section 207 shall be made in the following circumstances: * * * * Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 2 (4) Local Accessory Dwelling Unit Program: Accessory Dwelling Units in Multifamily Buildings; Accessory Dwelling Units in Single-Family Homes That Do Not Strictly Meet the Requirements in subsection (c)(6). * * * * (C) Controls on Construction. An Accessory Dwelling Unit regulated by this subsection (c)(4) is permitted to be constructed in an existing or proposed building under the following conditions: (i) For lots that have four existing Dwelling Units or fewer or where the zoning would permit the construction of four or fewer Dwelling Units, one ADU is permitted; for lots that have more than four existing Dwelling Units or are undergoing seismic retrofitting under subsection (c)(4)(F) below, or where the zoning would permit the construction of more than four Dwelling Units, there is no limit on the number of ADUs permitted,_; provided, however, that (jj)__It-he Department shall not approve an application for construction of an ADU where a tenant on the lot has been evicted pursuant to Administrative Code Sections 37.9(a)(9) through (a)(12) and 37.9(a)(14) under a notice of eviction served within 10 years prior to filing the application for a building permit to construct the ADU or where a tenant has been evicted pursuant to Administrative Code Section 37.9(a)(8) under a notice of eviction served within five years prior to filing the application for a building permit to construct the ADU. This provisionsubsection (c)(4)(C)(ii) shall not apply if the tenant was evicted under Section 37.9(a)(11) or 37.9(a)(14) and the applicant(s) either (A) have certified that the original tenant reoccupied the unit after the temporary eviction or (B) have submitted to the Department and to the Residential Rent Stabilization and Arbitration Board (Rent Board) a declaration from the property owner or the tenant certifying that the property owner notified the tenant of the tenant's right to reoccupy the unit and the tenant chose not to reoccupy it. Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 3 (iii) Prior to submitting an application to construct an ADU under this subsection (c){4), the property owner shall file with the Rent Board a written declaration, signed under penalty of perjury, demonstrating that the project will comply with the requirements of Administrative .Code Sections 37.2{r) and 37.9 relating to severance, substantial reduction, or removal ofa housing service. The Rent Board shall determine the form and content ofsaid declaration, which shall include the following information: (1) a description of any housing services supplied in connection with the use or occupancy of any units on the subject property that are located in the area of the property or building where the ADU would be constructed; (2) whether construction o(the ADU would result in the severance, substantial reduction, or removal of any such housing services,· and (3) whether any of the just causes for eviction under Administrative Code Section 37.9(a) would apply. The property owner shall also file a copy of the notice required under Section 207(c){4)(J) with the declaration. (iv) Tenants at the subject property may contest the information in the declaration required by subsection 207 (c){4){C){iii) by petitioning for a written determination from the Rent Board verifying the presence and defining characteristics of the housing service or services in question, and whether any such housing services would be severed, substantially reduced, or removed by the project as proposed. Petitions must be filed with the Rent Board within 30 calendar days af'ter the notice required under subsection 207(c){4)(J) has been provided. Jfno such petition is timely filed, the Rent Board shall promptly transmit the declaration to the Planning Department. If any such petition is timely filed, the Rent Board shall endeavor to transmit the declaration and its final written determination on the petition to the Planning Department within 90 calendar days of receipt of said petition. The Department shall not approve an application to construct an ADU under this subsection (c){4) unless (1) the Rent Board has transmitted the declaration and final written determination required by subsections (c){4){C)(iii) and (c){4){C)(iv), and (2) the materials transmitted by the Rent Board indicate that construction of the ADU would not result in the severance, substantial reduction, or removal without just cause of any tenant housing service set forth in Administrative Code Section Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 4 37.2(r) that is supplied in the area oft he property or building where the ADU would be constructed, unless the property owner demonstrates that the tenant supplied with that housing service has given their express written consent for the severance, substantial reduction, or removal ofthe housing service. (#y.) Except as provided in subsections (mvi) and (iVjj_) below, an Accessory Dwelling Unit shall be constructed entirely within the buildable area of an existing lot, provided that the ADU does not exceed the existing height of an existing building, or within the built envelope of an existing and authorized stand-alone garage, storage structure, or other auxiliary structure on the same lot, as the built envelope existed three years prior to the time the application was filed for a building permit to construct the ADU. For purposes of this provision subsection (c)(4)(C)(v), the "built envelope" shall include the open area under a cantilevered room or room built on columns; decks, except for decks that are supported by columns or walls other than the building wall to which they are attached and are multi-level or more than 10 feet above grade; and lightwell infills provided that the infill will be against a blank neighboring wall at the property line and not visible from any off-site location; as these spaces existed as of July 11, 2016. An ADU constructed entirely within the existing built envelope, as defined in this subsection-(H), along with permitted obstructions allowed in Section 136(c)(32), of an existing building or authorized auxiliary structure on the same lot, or where an existing stand-alone garage or storage structure has been expanded to add dormers, is exempt from the notification requirements of Section 311 of this Code unless the existing building or authorized auxiliary structure on the same lot is in an Article 10 or Article 11 DistrictL in which case the notification requirements will apply. If an ADU will be constructed under a cantilevered room or deck that encroaches into the required rear yard, a pre- application meeting between the applicant and adjacent neighbors for all the proposed work is required before the application may be submitted. Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 5 (i-ii:vi) When a stand-alone garage, storage, or other auxiliary structure is being converted to an ADU, an expansion to the envelope is allowed to add dormers even if the stand-alone garage, storage structure, or other auxiliary structure is in the required rear yard. (i:Vjj_) On a corner lot, a legal stand-alone nonconforming garage, storage structure, or other auxiliary structure may be expanded within its existing footprint by up to one additional story in order to create a consistent street wall and improve the continuity of buildings on the block. (viii) An Accessory Dwelling Unit shall not be constructed using space from an existing Dwelling Unit except that an ADU may expand into habitable space on the ground or basement floors provided that it does not exceed 25% of the gross square footage of such space. The Zoning Administrator may waive this 25% limitation if (el) the resulting space would not be usable or would be impractical to use for other reasonable uses included but not limited to storage or bicycle parking or(&£) waiving the limitation would help relieve any negative layout issues for the proposed ADU. ('vi,r) An existing building undergoing seismic retrofitting may be eligible for a height increase pursuant to subsection (c)(4)(F) below. (Wi:&) Notwithstanding any other provision of this Code, an Accessory Dwelling Unit authorized under this Section 207subsection (c)(4) may not be merged with an original unit(s). (Wiixi) An Accessory Dwelling Unit shall not be permitted in any building in a Neighborhood Commercial District or in the Chinatown Community Business or Visitor Retail Districts if it would eliminate or reduce a ground-story retail or commercial space, unless the Accessory Dwelling Unit is a Designated Child Care Unit, as defined in Section 102, and meets all applicable standards of Planning Code Section 414A.6(e). Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 6 * * * * {J) Notification. Prior to submitting an application to construct an ADU under this subsection (c)(4), the property owner shall cause a notice describing the proposed project to be posted in an accessible common area of the building for at least 15 calendar days prior to submitting an application to construct an ADU, and shall cause said notice to be mailed or delivered to each unit (including unauthorized units) at the subject property, also at least 15 calendar days prior to submitting the application. The property owner shall submit proof of these notices to the Planning Department as part of the application to construct an ADU These notices shall have a format and content determined by the Zoning Administrator, and shall generally describe the project, including the number and location o[the proposed ADU(s), and shall include a copy o[the written declaration required by subsection (c){4)(C)(iii). These notices shall also include instructions on how a tenant may petition the Rent Board for a written determination on the declaration as set forth in subsection (c)(4){C)(iii), including the deadline for filing such petition, which shall be 30 calendar days after the notice has been provided. These notices shall also describe how to obtain additional information regarding the project and shall provide contact information for the Planning Department that complies with the requirements of the Language Access Ordinance, Chapter 91 of the Administrative Code, to provide vital information about the Planning Department's services or programs in the languages spoken by a Substantial Number of Limited English Speaking Persons, as defined in Chapter 91. * * * * Section 3. Chapter 37 of the Administrative Code is hereby amended by revising Sections 37.2 and 37.9, to read as follows: SEC. 37.2. DEFINITIONS. * * * * Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 7 (r) Rental Units. All residential dwelling units in the City and County of San Francisco together with the land and appurtenant buildings thereto, and all housing services, privileges, furnishings, and facilities supplied in connection with the use or occupancy thereof, including garage and parking facilities. Garage facilities, parking facilities, driveways, storage spaces, laundry rooms, decks, patios, or gardens on the same lot, or kitchen facilities or lobbies in single room occupancy (SRO) hotels, supplied in connection with the use or occupancy of a unit, may not be severed from the tenancy by the landlord without just cause as required by Section 37.9(a). Any severance, substantial reduction or removal ofa housing service, even if permitted under this Section 37.2(r) Section 37.9(a), shall be offset by a corresponding reduction in rent. Either a landlord or a tenant may file a petition with the Rent Board to determine the amount of the rent reduction. In addition, a tenant may petition the Rent Board for a determination on whether an Accessory Dwelling Unit proposed to be constructed under Planning Code Section 207(c)(4) would sever, substantially reduce, or remove a housing service, pursuant to the procedures set {Orth in subsection 207(c){4){C){iii). The issuance ofa permit {Or construction of an Accessory Dwelling Unit does not, in and o[itsell constitute a ;ust cause {Or the purpose of severing a housing service. * * * * SEC. 37.9. EVICTIONS. Notwithstanding Section 37.3, this Section 37.9 shall apply as of August 24, 1980, to all landlords and tenants of rental units as defined in Section 37.2(r). * * * * (f) Whenever a landlord wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Sections 37.9 and/or 37.1 OA as enacted herein, or wrongfitlly endeavors to sever, substantially reduce, or remove, or actually severs, substantially reduces, or removes a housing service supplied in connection with the use or occupancy ofa rental unit Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 8 as set forth in Section 37.2(r), the tenant or Rent Board may institute a civil proceeding for injunctive relief, money damages of not less than three times actual damages (including damages for mental or emotional distress as specified below), and whatever other relief the court deems appropriate. If the landlord has recovered possession pursuant to Section 37.9(a)(8), such action shall be brought no later than five years after (1) the date the landlord files the first statement of occupancy with the Rent Board under Section 37.9(a)(8)(vii) or (2) three months after the landlord recovers possession, whichever is earlier. In the case of an award of damages for mental or emotional distress, said award shall only be trebled if the trier of fact finds that the landlord acted in knowing violation of or in reckless disregard of Section~ 37.9 or 37.1 OA herein. The prevailing party shall be entitled to reasonable attorney's fees and costs pursuant to order of the court. The remedy available under this Section 37.9(f) shall be in addition to any other existing remedies which may be available to the tenant or the Rent Board. * * * * 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 Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 9 additions, and Board amendment deletions in accordance with the "Note" that appears under the official title of the ordinance. APPROVED AS TO FORM: DENNIS J. HERRERA, City Attorney By: /s/ Peter R. Miljanich PETER R. MILJANICH Deputy City Attorney n:lleganalas202112100393101558796.docx Supervisors Mandelman; Ronen, Preston, Melgar, Peskin, Chan, Haney BOARD OF SUPERVISORS Page 10 City and County of San Francisco Tails Ordinance City Hall 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4689 File Number: 210699 Date Passed: November 02, 2021 Ordinance amending the Planning Code to clarify the requirements for applications to construct Accessory Dwelling Units under the City's local Accessory Dwelling Unit approval process; amending the Administrative Code to clarify that landlords may not remove certain tenant housing services without just cause and that issuance of a building permit does not constitute just cause; making findings as required by the Tenant Protection Act of 2019; 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. October 18, 2021 Land Use and Transportation Committee - RECOMMENDED October 26, 2021 Board of Supervisors - PASSED ON FIRST READING Ayes: 11 - Chan, Haney, Mandelman, Mar, Melgar, Peskin, Preston, Ronen, Safai, Stefani and Walton November 02, 2021 Board of Supervisors - Fl NALLY PASSED Ayes: 11 - Chan, Haney, Mandelman, Mar, Melgar, Peskin, Preston, Ronen, Safai, Stefani and Walton File No. 210699 London N. Breed Mayor City and County of San Francisco Page 1 I hereby certify that the foregoing Ordinance was FINALLY PASSED on 11/2/2021 by the Board of Supervisors of the City and County of San Francisco. Date Approved Printed at 3:06 pm on 1113121