A 'special power' lets San Franciscans halt new construction — but a new law may rein that in

Nov 9, 2017

Did you know that you have the power to hit the pause button on new construction projects in San Francisco?

With about $600 and some paperwork, anyone in the city can hold up any construction project, even if it’s just a neighbor’s plans to upgrade their kitchen.

The process is called “discretionary review,” and the city describes it as a “special power” granted to the Planning Commission.

"You are a regular person who has bought your house and you're trying to upgrade it ... it then becomes your job to appease 50 of your neighbors." —Christine Johnson, planning commissioner

Recently, officials responding to the housing crisis have set limits on local controls that slow down construction — and that means changes are coming to discretionary review, too.  

The backyard of Dino Goosens-Larsen’s Mission condo is a small space, maybe 15 by 20 feet, where a fig tree reaches nearly three stories high.

 

 

Dino Goosens-Larsen in his backyard.
Credit Laura Wenus
"It is literally my backyard ... Am I now a NIMBYer, is this what I'm doing? You know what? I don't care. I just want what is right." —Dino Goosens-Larsen

  A new development is planned next door that turns one story into five. The construction will mean the tree has to come down.

“I had an arborist come out to figure out what the impact would be to have a five [story] wall basically right in the middle of our yard next to that tree, and that tree will be condemned,” he says.

That’s one of the reasons why Dino asked the city to use its discretion to review the situation. He knows people might think he’s just saying, “not in my backyard.”

“It is literally my backyard ... I've done a lot of thinking about that for myself: Am I now a NIMBYer, is this what I'm doing?” he reflects. “You know what? I don't care. I just want what is right.”

Long story short, the Planning Commission forced the developer to make some changes, but didn’t address Dino’s concerns. He’s appealing the decision.

Neighbor against neighbor

In general, If you don’t like a neighbor’s home improvement project, or you just don’t like your neighbor and they’re pulling a permit, you can file for discretionary review.

Christine Johnson is a planning commissioner who also works at the San Francisco Bay Area Planning and Urban Research Association, an urban-planning think tank. As a member of the planning commission, she votes on discretionary review cases.

“You are a regular person who has bought your house and you're trying to upgrade it ... or do something to improve your property, and it then becomes your job to appease 50 of your neighbors because there is this DR process,” she says.

Last spring, neighbors in Bernal Heights went to the city to resolve a fight.

“Two adjacent homeowners, two neighbors, were both doing renovations to their properties, and filed discretionary reviews against each other,” she recalls. “[It] was egregious, a waste of time, and I believe we had two hearings on that, which was absolutely ridiculous.”

Discretionary review is one of the reasons San Francisco takes a lot longer than most cities to approve permits. And the longer it takes to get a building permit, the more construction is delayed and the more housing costs.

On both sides

At an abandoned industrial bakery on 16th and Folsom streets, Feliciano Vera, a project manager at the Mission Economic Development Agency, oversees a project that will transform the lot into 140 units of affordable housing.

You can still see the truck loading zone where the baked goods were shipped out, and the storefront where day-old baked goods were sold direct to consumers.

 

 

MEDA’s projects are often funded with use-it-or-lose-it grants. Which means when their projects get delayed, the money could dry up. So they plan ahead for delays like discretionary review requests.

The former industrial bakery in the Mission where MEDA will build affordable housing.
Credit Andy Bosselman

  “We have to be prepared for that, so that we can make sure that we hit all of our funding timetables,” Vera says.

Knowing that, you might be surprised to learn that the organization files its own discretionary review cases against market-rate projects. They’ve delayed at least two recent condo projects.

“We believe that it is a vital part of the democratic process here in the city,” Vera says.

The group uses it as a tool to halt or request changes to new condos that they believe will gentrify the Mission and push people out.

   

Discretionary review can warn officials of other problems, too.

This summer in the Bayview, the city ordered a landlord to empty out several overcrowded homes that weren’t up to code. But someone filed a discretionary review request, alerting officials that senior veterans lived in those buildings.

“These people would be out on the street if we follow the letter of the law,” says Johnson, the commissioner. “And I think that that is a perfect use of discretionary review.”

Sunshine over a beer garden

If all of this has made you feel like you need a drink, the next stop is Zeitgeist, a well-known bar in the Mission.

In Zeitgeist’s beer garden, you might see Rachel Ruben, a regular.

"If there's sun in Mission, there's sun in this yard, which if you're in San Francisco regularly you know is not something that usually happens." —Rachel Ruben, Zeitgeist customer

  “I love it here,” she says. “I play dominoes here, there is a group of us that plays dominoes on a regular basis.”

The beer garden is like a big backyard. There are about 40 enormous picnic tables, an old red truck, and some lively murals. Most important, there’s the sunshine.

“If there's sun in Mission, there's sun in this yard, which if you're in San Francisco regularly you know is not something that usually happens,” Ruben says.

Zeitgeist Manager Lara Burmeister says they sell the most drinks when it’s sunny. So when she got notice that a five-story building was going up across the street, she worried it would throw some shade on the beer garden.

“It was the biggest existential threat to the business I think we've ever encountered,” she says.

So Zeitgeist’s owner filed for discretionary review.

“The DR was our only forum that we felt we could actually make a case, to say that there is an exceptional condition that should be considered,” Burmeister explains. “It was the only option we really had.”

Through this process, the city ordered the new building to be built five feet shorter. That will reduce some of the shadow, but keep the same number of condos.

But the discretionary review added seven more months to a permitting process that started five years ago. All during a time when California needs 2 million new housing units, and construction prices are going up fast.

Small delays like this can have an impact on some projects, according to Johnson.

Christine Johnson, a member of the planning commission, thinks San Francisco should reform its discretionary review process.
Credit Andy Bosselman

“It has resulted in projects being reduced in size, which literally means fewer units, or potentially projects not being built at all because of the delays in the process,” she says.

In fact, last month the developer across from Zeitgeist said he won’t be building the project at all. He has put the land and permits up for sale.

"We live in a city, and if you want to not have neighbors at all, and not have any impact to the peace and privacy that you bought, then you should move to somewhere more rural." —Christine Johnson

  He said that if permitting had moved faster, his building would be done already and up to 50 people would be living in those condos.

Taking aim at delays like this, San Francisco’s mayor recently issued a new directive: Most housing plans must be approved within a year.

State legislators have gotten fed up with delays like this, too.

They recently passed SB 35, a bill proposed by San Francisco’s State Senator Scott Wiener that says if cities aren’t building enough housing, the permitting process must be streamlined. In many cases, it will forbid discretionary review.

The law distinguishes between affordable and market-rate housing. Right now San Francisco is building enough market-rate housing, according to the state. So those projects will still be subject to review. But on affordable projects, where San Francisco is lagging behind goals, discretionary review won’t be allowed.

As for planning commissioner Christine Johnson, she advocates reform, saying the city should stop getting involved in petty disputes between neighbors.

“We live in a city, and if you want to not have neighbors at all, and not have any impact to the peace and privacy that you bought, then you should move to somewhere more rural,” she says. “You know at some point, we have to cut it off and say we live in a city, we're all in this together.”

That can be scary to people like Dino Goosens-Larsen, with the tree in his backyard. He sees discretionary review as the only power neighbors really have.

“This whole initiative about wanting to reform the discretionary review process, because it's so onerous on developers ... It's all we got right now,” he says.

But he’s not giving up yet. Unhappy with the decision on his case, he filed an appeal and his neighbor’s construction remains on hold. Like other San Franciscans, Dino’s determined to use this special power to the fullest — while he has it.