SEC. 415.3. APPLICATION.
New Ordinance Notice
Publisher's Note: This section has been AMENDED by new legislation (Ord. 187-23 , approved 9/14/2023, effective 10/15/2023, oper. 11/21/2026). The text of the amendment will be incorporated under the
new section number when the amending legislation is effective.
New Ordinance Notice
Publisher's Note: This section has been AMENDED by new legislation (Ord. 201-23 , approved 10/12/2023, effective 11/12/2023, oper. 11/21/2026). The text of the amendment will be incorporated under the
new section number when the amending legislation is effective.
(a) Notwithstanding any other provision to the contrary in this Code, Section 415.1 et seq. shall apply to any housing project that consists of 10 or more units where an individual project
or a phased project is to be undertaken and where the total undertaking comprises a project with 10 or more units, even if the development is on separate but adjacent lots. This provision
also applies to housing projects that requires Commission approval of replacement housing destroyed by earthquake, fire or natural disaster only where the destroyed housing included units
restricted under the Inclusionary Affordable Housing Program or the City's predecessor inclusionary housing policy, condominium conversion requirements, or other affordable housing
program.
(b) Except as provided in subsection (3) below, any development project that has submitted a complete Environmental Evaluation application prior to January 12, 2016 shall comply with
the Affordable Housing Fee requirements, the on-site affordable housing requirements or the off-site affordable housing requirements, and all other provisions of Section 415.1 et seq., as
applicable, in effect on January 12, 2016. For development projects that have submitted a complete Environmental Evaluation application on or after January 1, 2013, the requirements set
forth in Planning Code Sections 415.5, 415.6, and 415.7 shall apply to certain development projects consisting of 25 dwelling units or more during a limited period of time as follows.
(1) If a development project is eligible and elects to provide on-site affordable housing, the development project shall provide the following amounts of on-site affordable housing.
(A) Any development project that has submitted a complete Environmental Evaluation application prior to January 1, 2014 shall provide affordable units in the amount of 13% of the
number of units constructed on-site.
(B) Any development project that has submitted a complete Environmental Evaluation application prior to January 1, 2015 shall provide affordable units in the amount of 13.5% of
the number of units constructed on-site.
(C) Any development project that has submitted a complete Environmental Evaluation application on or prior to January 12, 2016 shall provide affordable units in the amount of
14.5% of the number of units constructed on-site.
(D) Any development project that submits an Environmental Evaluation application after January 12, 2016, shall comply with the requirements set forth in Planning Code Sections
415.5, 415.6 and 415.7, as applicable.
(E) Notwithstanding the provisions set forth in subsections (b)(1)(A), (B) and (C) of this Section 415.3, if a development project is located in a UMU Zoning District or in the South
of Market Youth and Family Zoning District, and is eligible and elects to provide on-site units pursuant to Section 415.5(g), such development project shall comply with the on-site
requirements applicable within such Zoning Districts, as they existed on January 12, 2016, plus the following additional amounts of on-site affordable units: (i) if the development project
has submitted a complete Environmental Evaluation application prior to January 1, 2014, the Project Sponsor shall provide additional affordable units in the amount of 1% of the number of
units constructed on-site; (ii) if the development project has submitted a complete Environmental Evaluation application prior to January 1, 2015, the Project Sponsor shall provide
additional affordable units in the amount of 1.5% of the number of units constructed on-site; or (iii) if the development project has submitted a complete Environmental Evaluation
application on or prior to January 12, 2016, the Project Sponsor shall provide additional affordable units in the amount of 2% of the number of units constructed on-site.
(F) Any development project that has submitted a complete Environmental Evaluation application on or before January 12, 2016 and seeks to utilize a density bonus under State Law
shall use its best efforts to provide on-site affordable units in the amount of 25% of the number of units constructed on-site and shall consult with the Planning Department about how to
achieve this amount of inclusionary affordable housing. An applicant seeking a density bonus under the provisions of State Law shall provide reasonable documentation to establish
eligibility for a requested density bonus, incentives or concessions, and waivers or reductions of development standards.
(2) If a development project pays the Affordable Housing Fee or elects to provide off-site affordable housing, the development project shall provide the following fee amount or
amounts of off-site affordable housing during the limited periods of time set forth below.
(A) Any development project that has submitted a complete Environmental Evaluation application prior to January 1, 2014, shall pay a fee or provide off-site housing in an amount
equivalent to 25% of the number of units constructed on-site.
(B) Any development project that has submitted a complete Environmental Evaluation application prior to January 1, 2015, shall pay a fee or provide off-site housing in an amount
equivalent to 27.5% of the number of units constructed on-site.
(C) Any development project that has submitted a complete Environmental Evaluation application on or prior to January 12, 2016 shall pay a fee or provide off-site housing in an
amount equivalent to 30% of the number of units constructed on-site.
(D) Any development project that submits an Environmental Evaluation application after January 12, 2016 shall comply with the requirements set forth in Sections 415.5, 415.6, and
415.7, as applicable.
(E) Notwithstanding the provisions set forth in subsections (b)(2)(A), (B) and (C) of this Section 415.3, for development projects proposing buildings over 120 feet in height, as
measured under the requirements set forth in the Planning Code, except for buildings up to 130 feet in height located both within a special use district and within a height and bulk district
that allows a maximum building height of 130 feet, such development projects shall pay a fee or provide off-site housing in an amount equivalent to 30% of the number of units constructed
on-site. Any buildings up to 130 feet in height located both within a special use district and within a height and bulk district that allows a maximum building height of 130 feet shall comply
with the provisions of subsections (b)(2)(A), (B) and (C) of this Section 415.3 during the limited periods of time set forth therein.
(F) Notwithstanding the provisions set forth in subsections (b)(2)(A), (B) and (C) of this Section 415.3, if a development project is located in a UMU Zoning District or in the South
of Market Youth and Family Zoning District, and pays the Affordable Housing Fee or elects to provide off-site affordable housing pursuant to Section 415.5(g), or elects to comply with a
Land Dedication Alternative, such development project shall comply with the fee, off-site or land dedication requirements applicable within such Zoning Districts, as they existed on
January 12, 2016, plus the following additional amounts for the Affordable Housing Fee or for land dedication or off-site affordable units: (i) if the development project has submitted a
complete Environmental Evaluation application prior to January 1, 2014, the Project Sponsor shall pay an additional fee, or provide additional land dedication or off-site affordable units, in
an amount equivalent to 5% of the number of units constructed on-site; (ii) if the development project has submitted a complete Environmental Evaluation application prior to January 1,
2015, the Project Sponsor shall pay an additional fee, or provide additional land dedication or off-site affordable units, in an amount equivalent to 7.5% of the number of units constructed
on-site; or (iii) if the development project has submitted a complete Environmental Evaluation application on or prior to January 12, 2016, the Project Sponsor shall pay an additional fee, or
provide additional land dedication or off-site affordable units, in an amount equivalent to 10% of the number of units constructed on-site. Notwithstanding the foregoing, a development
project shall not pay a fee or provide off-site units in a total amount greater than the equivalent of 30% of the number of units constructed on-site.
(G) Any development project consisting of 25 dwelling units or more that has submitted a complete Environmental Evaluation application on or prior to January 12, 2016, and elects
to provide off-site affordable housing, may provide off-site affordable housing by acquiring an existing building to fulfill all or part of the requirements set forth in this Section 415.3 and in
Section 415.7 with an equivalent amount of units as specified in this Section 415.3(b)(2), as reviewed and approved by the Mayor's Office of Housing and Community Development and
consistent with the parameters of its Small Sites Acquisition and Rehabilitation Program, in conformance with the income limits for the Small Sites Program.
(3) During the limited period of time in which the provisions of Section 415.3(b) apply, the following provisions shall apply:
(A) For any housing development that is located in an area with a specific affordable housing requirement set forth in an Area Plan or a Special Use District, or in any other section of
the Code such as Section 419, with the exception of the UMU Zoning District or in the South of Market Youth and Family Zoning District, the higher of the affordable housing requirement
set forth in such Area Plan or Special Use District or in Section 415.3(b) shall apply;
(B) Development projects that are within the Central SoMa Special Use District; that are designated as Central SoMa Development Tier A, B, or C, as defined in Section 423.2; and
that submitted a complete Environmental Evaluation application prior to January 12, 2016 shall be subject to the affordable housing requirements set forth in Sections 415.5, 415.6, and
415.7 that apply to projects that submitted a complete Environmental Evaluation Application on or after January 13, 2016 and before December 31, 2017; and
(C) Any affordable housing impact fee paid pursuant to an Area Plan or Special Use District shall be counted as part of the calculation of the inclusionary housing requirements
contained in Planning Code Sections 415.1 et seq. In the Divisadero Street NCT, the provisions of Section 415.3(b) shall not apply to certain sites, as set forth in the Divisadero Street NCT
Affordable Housing Fee And Requirements, Planning Code Sections 428.1 et seq.
(4) Any development project that constructs on-site or off-site affordable housing units as set forth in subsection (b) of this Section 415.3 shall diligently pursue completion of such
units.
(A) In the event the project has not been approved, which shall mean approval following any administrative appeal to the relevant City board, on or before December 7, 2018, the
development project shall comply with the inclusionary affordable housing requirements set forth in Sections 415.5, 415.6, and 415.7, as applicable. Such deadline shall be extended in the
event of any litigation seeking to invalidate the City’s approval of such project, for the duration of the litigation.
(B) In the event the project has been approved on or before December 7, 2018, but the project sponsor does not procure a building permit or site permit for construction of the
affordable housing units within 18 months of the project’s approval, or by December 7, 2018, whichever is later, the development project shall comply with the inclusionary affordable
housing requirements set forth in Section 415.5, 415.6, and 415.7 as applicable. Such deadline shall be extended in the event of any litigation seeking to invalidate the City’s approval of
such project, for the duration of the litigation. For purposes of this subsection (B), the date of approval shall be the date of any administrative appeal to the relevant City board.
(c) The new inclusionary affordable housing requirements contained in Sections 415.5, 415.6, and 415.7, as well as the provisions contained in Section 415.3(b), shall not apply to (1)
any mixed use project that is located in a special use district for which a height limit increase has been approved by the voters prior to January 12, 2016 to satisfy the requirements of
Administrative Code Section 61.5.1, or (2) any mixed use project that has entered into a development agreement or other similar binding agreement with the City on or before January 12,
2016, or (3) any housing development project that has procured a final first discretionary development entitlement approval, which shall mean approval following any administrative appeal
to the relevant City board, on or before January 12, 2016. The inclusionary housing requirements for these projects shall be those requirements contained in the projects' existing approvals.
(d) Notwithstanding the provisions set forth in Section 415.3(b), or the inclusionary affordable housing requirements contained in Sections 415.5, 415.6, and 415.7, such requirements
shall not apply to any project, consisting of 25 dwelling units or more, that has not submitted a complete Environmental Evaluation Application on or before January 12, 2016, if the project
is located within the Eastern Neighborhoods Mission Planning Area, the North of Market Residential Special Use District Subarea 1 or Subarea 2, or the SOMA Neighborhood Commercial
Transit District, because inclusionary affordable housing levels for those areas will be addressed in forthcoming area plan processes or an equivalent community planning process. Until
such planning processes are complete and new inclusionary housing requirements for projects in those areas are adopted, projects consisting of 25 units or more shall (1) pay a fee or
provide off-site housing in an amount equivalent to 30% if the Principal Project is a Rental Housing Project, or 33% if the Proposed Project is an Ownership Housing Project, or (2) provide
Affordable Units in the amount of 25% of the number of units constructed on-site in a Rental Housing Project, or 27% of the number of units constructed on-site in an Ownership Housing
Project. For Rental Housing Projects, 15% of the on-site Affordable Units shall be affordable to low-income households, 5% shall be affordable to moderate-income households and 5%
shall be affordable to middle-income households. For Ownership Housing Projects, 15% of the on-site Affordable Units shall be affordable to low-income households, 6% shall be
affordable to moderate-income households and 6% shall be affordable to middle-income households.
(e) The City may continue to enter into development agreements or other similar binding agreements for projects that provide inclusionary affordable housing at levels that may be
different from the levels set forth in Sections 415.1 et seq.
(f)3 Section 415.1 et seq., the Inclusionary Housing Program, shall not apply to:
(1) That portion of a housing project located on property owned by the United States or any of its agencies or leased by the United States or any of its agencies, for a period in excess of
50 years, with the exception of such property not used exclusively for a governmental purpose;
(2) That portion of a housing project located on property owned by the State of California or any of its agencies, with the exception of such property not used exclusively for a
governmental or educational purpose; or
(3) That portion of a housing project located on property under the jurisdiction of the San Francisco Office of Community Investment and Infrastructure or the Port of San Francisco
where the application of Section 415.1 et seq. is prohibited by California or local law.
(4) A 100% affordable housing project in which rents are controlled or regulated by any government unit, agency or authority, excepting those unsubsidized and/or unassisted units
which are insured by the United States Department of Housing and Urban Development. The Mayor's Office of Housing and Community Development must represent to the Planning
Commission or Planning Department that the project meets this requirement.
(A) Restrictions. If a project sponsor takes advantage of this Subsection, all of the rules and regulations of the programs or recorded documents guaranteeing the affordability of the
units shall govern the units and the requirements of this Program shall not apply.
(B) Conditions. In order to qualify for this provision, the project sponsor must record an NSR against the property that provides that, in the event of foreclosure or for any other
reason, the project no longer qualifies as a project meeting the requirements of Subsection (4) the project will either:
(i) pay the Affordable Housing Fee plus interest from the date the project received its first construction document for the project if no affordable units were ever provided or, if
affordable units were provided and occupied, then the Affordable Housing Fee with no interest is due on the date the units were no longer occupied by qualifying households; or
(ii) provide the required number of on-site affordable units required at time of original project approval and that those units shall be subject to all of the requirements of this
Program.
(C) In the event that there is a foreclosure or other event triggering the requirements of Subsection (B) above, the project sponsor shall record a new NSR specifying the manner in
which it complies with this Program, including but not limited to any specific units restricted as affordable under (B)(ii). The new NSR shall provide that the units must comply with all of
the requirements of this Program.
(5) A Student Housing project that meets all of the following criteria:
(A) The building or space conversion does not result in loss or conversion of existing housing, including but not limited to rental housing and dwelling units;
(B) An institutional master plan (IMP) pursuant to Section 304.5 is on file with the Planning Department prior to the issuance of any building permit or alteration permit in
connection with the creation of the Student Housing project, and, in addition to the requirements of Section 304.5, such IMP shall describe:
(i) to the extent such information is available, the type and location of housing used by its students;
(ii) any plans for the provision of Student Housing;
(iii) the Educational Institution's need for student housing to support its program; and
(iv) the percentage of its students, on an average annual basis, that receive some form of need-based assistance.
(C) MOHCD is authorized to monitor the Student Housing program described in this subsection (f)(5)3 and shall develop a monitoring form. An annual monitoring fee of $792 per
building exempted from the Inclusionary Housing Program pursuant to this Section 415.3(f)(5)3 shall be paid to MOHCD by the owner of the real property or the Post-Secondary
Educational Institution or Religious Institutions, as defined in Section 102 of this Code. Beginning with the setting of fees for fiscal year 2018-2019, the Controller shall annually adjust the
base monitoring fee amount referenced in this subsection (f)(5)(C)3 without further action by the Board of Supervisors, to reflect changes in the two-year average Consumer Price Index
(CPI) change for the San Francisco/San Jose Primary Metropolitan Area (PMSA). This process shall occur as follows:
(i) No later than April 15 of each year, MOHCD shall submit the current monitoring fee to the Controller, who shall apply the CPI adjustment to produce a new monitoring fee for
the fiscal year beginning July 1. No later than May 15 of each year, the Controller shall file a report with the Board of Supervisors reporting the new monitoring fee and certifying that the
fees to be collected will produce sufficient revenue to support the costs of providing the services for which the fee is charged and will not produce revenue that exceeds the costs of
providing the services for which the fee is paid.
(ii) No later than July 1 of each year, MOHCD will publish on its website the current monitoring fee amount inclusive of the annual adjustment, and also make the fee amount
available upon request at MOHCD’s main office.
(D) The owner of the real property and each Post-Secondary Educational Institution or Institutions shall agree to submit annual documentation to MOHCD and the Planning
Department, along with the annual monitoring fee, on or before December 31 of each year, which addresses the following:
(i) Evidence that the Post- Secondary Educational Institution continues to own or otherwise control the Student Housing project under a master lease or other contractual agreement
with at least a two-year term, including a certificate from the owner of the real property and the Post-Secondary Educational Institution attaching a true and complete copy of the master
lease or other contractual agreement (financial information may be redacted to the extent permitted by law) and certifying that the lease or contract has not otherwise been amended or
terminated; and
(ii) Evidence, on an average annualized basis, of the percentage of students in good standing enrolled at least half-time or more in the Post-Secondary Educational Institution or
Institutions who are occupying the beds or accessory living space in the Student Housing project; and
(iii) The owner of the real property records a Notice of Special Restrictions (NSR) against fee title to the real property on which the Student Housing is located that states the
following:
a. The Post-Secondary Educational Institution, or the owner of the real property on its behalf, must file a statement with the Department if it intends to terminate the Student
Housing project at least 60 days before it terminates such use (“statement of termination”);
b. The Student Housing project becomes subject to the Inclusionary Housing Ordinance requirements applicable to Housing Projects other than Qualified Housing Projects if (1)
a Post-Secondary Educational Institution files a statement of termination with the Department and another Post-Secondary Educational Institution or Institutions have not been substituted or
obligated to meet the requirements of this subsection (f)(5)3 ; or (2) the owner of the real property or the Post-Secondary Educational Institution fails to file a statement of termination and
fails to meet the requirements for a Student Housing project, then within not more than one year of a Notice Of Violation issued by the Planning Department;
c. If units in a Student Housing project become subject to the Inclusionary Housing Ordinance then the owner of those units shall (1) pay the Affordable Housing Fee plus
interest from the date the project received its first construction document for the project if there is no evidence the project ever qualified as Student Housing or, if Student Housing was
provided and occupied, then the Affordable Housing Fee with no interest is due on the date the units were no longer occupied by qualifying households and interest would accrue from that
date if the fee is not paid; or (2) provide the required number of on-site affordable units required at time of original project approval and that those units shall be subject to all of the
requirements of this Program. In this event, the owner of the real property shall record a new NSR providing that the designated units must comply with all of the requirements of this
Program.
d. The Post-Secondary Educational Institution is required to report annually as required in subsection (f)(5)(D)3 above;
e. The City may commence legal action against the owner and/or Post- Secondary Educational Institution to enforce the NSR and the terms of Article 4 of the Planning Code and
Planning Code Section 415 et seq. if it determines that the project no longer meets the requirements for a Student Housing project; and
f. The Student Housing project may be inspected by any duly authorized City employee to determine its status as a Student Housing project and its com-pliance with the
requirements of this Code at any time upon at least 24 hours’ prior notice to the owner of the real property or to the master lessee.
(Added as Sec. 315.3 by Ord. 37-02, File No. 001262, App. 4/5/2002; amended by Ord. 76-03, File No. 020592, App. 5/2/2003; Ord. 213-06, File No. 051668, App. 8/2/2006; Ord. 219-06, File No. 051685, App. 8/10/2006; Ord. 101-07, File No.
060529, App. 5/4/2007; Ord. 198-07, File No. 070444, App. 8/10/2007; Ord. 298-08, File No. 081153, App. 12/19/2008; redesignated and amended by Ord. 108-10, File No. 091275, App. 5/25/2010; amended by Ord. 312-10, File No. 100046,
App. 12/23/2010; Ord. 321-10, File No. 101095, App. 12/21/2010; Ord. 188-12 , File No. 111374, App. 9/11/2012, Eff. 10/11/2012; Ord. 219-12 , File No. 120464, App. 10/23/2012, Eff. 11/22/2012, Oper. 1/15/2013; Ord. 62-13 , File No.
121162, App. 4/10/2013, Eff. 5/10/2013; Ord. 22-15, File No. 141253, App. 2/20/2015, Eff. 3/22/2015; Ord. 188-15 , File No. 150871, App. 11/4/2015, Eff. 12/4/2015; Ord. 76-16 , File No. 160255, App. 5/13/2016, Eff. 6/12/2016; Ord. 245-16,
File No. 160510, App. 12/16/2016, Eff. 1/15/2017; Ord. 158-17, File No. 161351, App. 7/27/2017, Eff. 8/26/2017; Ord. 167-17, File No. 170093, App. 7/27/2017, Eff. 8/26/2017; Ord. 208-17, File No. 170834, App. 11/3/2017, Eff. 12/3/2017;
Ord. 26-18, File No. 171193, App. 2/23/2018, Eff. 3/26/2018; Ord. 202-18, File No. 180557, App. 8/10/2018, Eff. 9/10/2018; Ord. 290-18, File No. 180911, App. 12/7/2018, Eff. 1/7/2019; Ord. 295-18, File No. 151258, App. 12/7/2018, Eff.
1/7/2019; Ord. 296-18, File No. 180184, App. 12/12/2018, Eff. 1/12/2019; Ord. 210-21, File No. 210868, App. 11/19/2021, Eff. 12/20/2021)
AMENDMENT HISTORY
[Former] division (c)(5) amended; Ord. 188-12 , Eff. 10/11/2012. Division (a) and [former] Table 415.3 amended; Ord. 219-12 , Oper. 1/15/2013. Division (a) and [former] Table 415.3 amended; former divisions (c)(4) through (c)(4)(A)(i)
deleted; former divisions (c)(4)(A)(ii) and (c)(4)(B) through (c)(4)(D) redesignated as [now former] (c)(4) and (c)(4)(A) through (c)(4)(C); [former] division (e) added; Ord. 62-13 , Eff. 5/10/2013. Divisions (a)(3) and [former] (c)(5)(C) amended;
Ord. 22-15, Eff. 3/22/2015. Division (a) amended; Ord. 188-15 , Eff. 12/4/2015. Division (b) amended in its entirety and former Table 415.3 deleted; new divisions (c) and (d) added; former division (c) redesignated as (f)1 ; current divisions (f)(3)
and (f)(4) amended; former divisions (d) and (e) deleted; Ord. 76-16 , Eff. 6/12/2016. Division (f)(5)(B)(iv) amended; division (f)(5)(C) amended in full; unlettered paragraphs designated as (f)(5)(C)(iii)a. through f.; Ord. 245-16, Eff. 1/15/2017.2
Divisions (b), (b)(1)(E), (b)(1)(F), (b)(2)(E), and (b)(2)(F) amended; new division (d) added; former division (d) redesignated as (e); divisions (f)(5)(C) and (f)(5)(C)(iii)d. amended; Ord. 158-17 , Eff. 8/26/2017. Divisions (f)3 and (f)(5)(B)(ii)
amended; former divisions (f)(5)(C)-(f)(5)(C)(iii)f. redesignated3 as (f)(5)(C) and (f)(5)(D)- (f)(5)(D)(iii)f. and amended; new divisions (f)(5)(C)(i) and (ii) added3 ; Ord. 167-17 , Eff. 8/26/2017. Divisions (b)(1), (b)(2), (b)(2)(F), and (d)
amended; Ord. 208-17 , Eff. 12/3/2017. Divisions (b)(2), (b)(2)(F), and (b)(2)(G) amended; Ord. 26-18 , Eff. 3/26/2018. Division (f)(5)(D)(iii)f. amended; Ord. 202-18 , Eff. 9/10/2018. Division (b)(4) redesignated as (b)(4) and (b)(4)(A) and
amended; division (b)(4)(B) added; Ord. 290-18 , Eff. 1/7/2019. Division (b)(3) amended; Ord. 295-18 , Eff. 1/7/2019. Division (b)(3) amended; Ord. 295-18, Eff. 1/7/2019. Division (b) amended; division (b)(3) amended and redesignated as
divisions (b)(3), (b)(3)(A), and (b)(3)(C); division (b)(3)(B) added; Ord. 296-18 , Eff. 1/12/2019. Divisions (b)(2)(F), (d), and (f)(5)(C) amended; Ord. 210-21 , Eff. 12/20/2021.
CODIFICATION NOTES
1. So in Ord. 76-16. After the amendments of that ordinance, this section did not include a division designated (e).
2. Ord. 245-16, in amending portions of division (f), erroneously refers to it as division (c). The amendments have been made to division (f) as intended.
3. Division (f) was redesignated as division (e) by Ord. 167-17, but Ord. 158-17 had already established a different division (e). Thus, this division has been editorially designated as division (f).