San Francisco’s Efforts to Block Duplexes Could Force It To Allow Skyscrapers Instead

San Francisco politicians seem to be embracing the brilliant idea of single-family-only Zoning being preserved in practice and abolished on paper, in a very clever move.

The San Francisco Board of Supervisors’ Land Use and Transportation Committee met Monday., Three different options were considered by supervisors to allow four-unit houses (fourplexes), in various neighborhoods of the city.

The leading proposal from Supervisor Rafael Mandelman—supported by the city’s Planning Department and Committee Chair Myrna Melgar—is a seemingly ambitious plan to abolish existing single-family zoning citywide and allow four-unit homes everywhere and six-unit homes on corner lots.

Mandelman said Monday at “fourplexpalooza”, that San Francisco is still struggling to create new housing units in order to satisfy demand. In this environment, density restrictions are not sensible.”

Mandelman’s bill would legalize fourplexes in the entire city, but it wouldn’t put any restrictions on affordability. These units could be sold or rented at what the market is willing to bear. He was criticized by Ahsha Safai and Gordon Mar.

They both proposed fourplex bills, which would preserve single-family-only zoneing. They would instead create bonus density programs to allow individuals to construct four-unit homes in single-family lots. In exchange, some of these units could be sold or rented at lower market rates.

Mar was critical of Mandelman’s bill for not requiring affordability. He accused Mar of proposing a “neoliberal proposal” that would produce lower-income housing.

Mandelman said that although he didn’t consider himself a neoliberal but was an optimist who knew that new housing wouldn’t be converted into fourplexes by homeowners, unless they were forced to do so at a substantial discount. Mandelman agrees with housing policy specialists and staff of the city.

Mandelman’s proposal to abolish single-family zoned development and eliminate price controls on new construction seems to be making it one of the most open market legalization bills. It’s not.

His bill repeals single-family zoneing and nullifies California’s newly passed S.B. 9. That law allows property owners to split their single-family zoned lots in two and build a duplex on each half—permitting four homes where only one could go previously.

S.B. 9 also requires local governments to “ministerially approve” these lot splits and duplexes—meaning city officials can’t apply onerous conditions on projects and neighborhood NIMBYs can’t delay them with endless public hearings and appeals.

Mandelman says that San Francisco should get rid its single-family-zoned lots. 9 is not applicable anywhere.

Some might be asking “What the fuss?” Mandelman proposes to allow the legalization of the same amount of units per lot as before (and more for corner lots).

His bill replicates S.B. It also abandons important process reforms. It would make a significant improvement to San Francisco’s current permitting process by requiring that duplexes must be approved ministerially.

According to a recent study done for the California Air Resources Board, San Francisco ranks as an “extreme exception” when it comes to how long it takes to get new housing approved. According to the San Francisco ExaminerAccording to the study, approval of new projects took on average 27 months. This is the longest time it took for any California city to approve new projects. It took five months to approve new projects in Oakland.

The main reason these approvals take so long is the discretionary review feature in San Francisco’s permit process. It gives the city’s planning commission the ability to approve or reject any building permit.

Anyone can request a discretionary review for a project. It is a powerful tool that allows anti-development activists and business owners to block new construction in their neighborhood.

The upshot is that people trying to do something totally legal—whether that’s build a code-compliant single-family home or convert an arcade repair shop into an arcade bar—can end up having to go through rounds of neighborhood meetings and public hearings just to get their permits.

Builders that are subject to discretionary review may have to produce professional architectural drawings, or to hire an attorney to help them make the case. To make their objections go away, they could end up having to pay compensation. Uncertainty surrounds the length of the discretionary review. This means that someone can take on all costs but still lose their permit.

The smaller, two- and three-unit housing projects are particularly vulnerable to discretionary review, states Emily Hamilton of the Mercatus Center at George Mason University.

She says that large apartment builders are more likely to be able to spread out the cost of larger units than they would otherwise, which makes them less susceptible to discretionary review. However, a duplex is a project that can be costly and will usually end in failure.

Hamilton says that duplexes are more popular in areas where ministers approve them. There are reasons.

She cites Palisades park, New Jersey as an example. It has allowed far more duplexes despite similar market and zoning conditions. Palisades Park allows duplexes to be approved ministerially while neighbors are subject to more discretionary approvals.

San Francisco’s Planning Department identified discretionary reviews as an obstacle to housing construction.

The city’s 2014 housing element states that “Discretionary Review Applications add time and cost to the prices of new or renovated dwelling units.” Due to the financial and time burdens imposed by this process, many project sponsors have decided not to pursue their projects.

The same study also found that discretionary reviews are most common in lower-density residential areas. It’s exactly in these areas that city officials are trying to legalize fourplexes.

Mandelman and the supporters of his ordinance believe that preservation of discretionary approval is an asset, not a problem. His fourplex bill would “allow for the same increases in density…while retaining our local design review,” he said at Monday’s committee meeting.

Melgar agreed, criticalizing Mar and Safai’s plans to leave S.B. 9 intact, which allows builders to still construct duplexes with no need for discretionary review.

At Monday’s meeting, she stated that “I am wary of not moving on with something which won’t give me local control.” San Franciscans have many things they value. To be able to contribute with conditional usage, and to review design guidelines. These are very important to me and I want them to stay.

Mandelman’s bill has been criticized by Zoning reformers who argue that increased density doesn’t justify the long approval process.

Rafa Sonnenfeld (director of legal advocacy, YIMBY Law), said that “it’s not a fair enough trade-off.” San Francisco Chronicle. It’s the simplest way to get around the law. San Francisco is believed to have one of the most lengthy review periods in all of California.

Several cities and towns in California are doing everything they can to avoid the S.B. 9. State officials have become more vigilant about their efforts and threatened to sue them.

If they pass a fourplex ordinance, which expands discretionary oversight, San Francisco may be subject to the same scrutiny, according Chris Elmendorf (a U.C. professor). Davis School of Law.

A state law mandates that all cities plan housing components to ensure sufficient housing is available to cover the projected city’s housing requirements. These housing elements should also be able to identify and address barriers that hinder housing production, as well as develop programs to remove them.

San Francisco’s former housing element pointed out that discretionary reviews were a restriction on development. California’s Department of Housing and Community Development has already informed San Francisco it plans to overhaul its permitting process for its next housing element, which is scheduled to be completed at the end of 2012.

HCD has “already fired the shot.” Elmendorf said that they were aware of the problem and have already fired the shot.. “All of this leads to a battle over the city’s plan for housing, particularly if they do things such as expand discretionary reviews right after taking it away from the state.”

San Francisco could lose its housing component if the state rejects it. This could lead to the loss of housing funding and infrastructure funding.

Elmendorf claims that it will also activate another state provision that prohibits cities that do not have compliant housing elements depriving them of their zoning codes. This prevents them from denying projects with below-market rate units. This would allow a developer theoretically to construct a project of unlimited density.

San Francisco’s politicians are trying to save low-density areas from being overrun by fourplexes. This could lead to the government allowing tall residential towers in those same areas.

This “builder’s remedy” has never been tried.

The state is not interested in making housing laws for non-compliant localities. Building apartments at a lower market rate is generally not a financially viable venture due to the lack of economic conditions.

Elmendorf says that things are shifting. Housing officials in the state are increasingly keen to eliminate housing components they do not believe go far enough for allowing more housing. It rejected Los Angeles’ ambitious and pro-growth housing component in February.

In California, developers have more options to make profit by building affordable and below-market rate units. Developers can get more hair done on the few units that are discounted because they can rent at such a high market rate.

Elmendorf points out that “the builder’s remedy”, while it is being tested, has not been proven to work and leaves many questions unanswered about its legality. It would be a matter of grave concern if it was attempted to be used. This would also not be a good idea for small residential projects which remain unaffordable due to affordability.

It does however present the possibility that San Francisco’s attempt to circumvent state housing laws could be disastrous.

The question of whether this risk will be enough to make city supervisors leave S.B. It remains to be determined if 9 will remain in place. Monday’s hearing was closed with a vote for continuation consideration of all three fourplex suggestions at a future meeting.