January 29, 2014

Downsizing Of Valencia Street Development Could Be Against The Law

1050 Valencia Street 2012 Rendering

With San Francisco's Board of Supervisors having narrowly upheld the Planning Department's approval for the five-story development at 1050 Valencia Street to rise, a subsequent appeal of the project's building permits resulted in 5-0 vote by San Francisco's Board of Appeals to issue the permits, but under a couple of conditions, including that the developer only build four stories rather than five as approved.

The problem for the Board of Appeals, they might have overstepped their legal bounds.

Following their public meeting, the Board of Appeals will move behind closed doors this evening to meet with legal counsel in anticipation of having to defend against litigation. The likely action would be based on the California Housing Accountability Act which prevents local agencies from reducing the density of code-complying residential projects.

First Published: January 29, 2014 3:15 PM

Comments from "Plugged In" Readers

[people] at the planning and building Dept's
Over regulated
politicians telling architects how to design buildings
Neighbors allowed to derail neighbors renovations
"Shadow" Laws
Sue Hestor's Crap

It's a miracle anyone bothers to build anything here

Posted by: mdg at January 29, 2014 3:39 PM

Interesting precedent if they win, however it will take several years. Possibly long enough to last until the next downturn. But maybe, just maybe, they might get it through their heads that we need more housing ASAP.

Posted by: Mephisto at January 29, 2014 3:45 PM

How can a Board of Appeals overrule the Board of Supervisors on *anything*? That's like saying a Congressional subcommittee can overrule a vote of Congress.

More generally - good! I hope the Board of Appeals gets a big slap on the wrist, and that the City government as a whole uses this as a wake-up call to streamline and simplify project approval processes. After a project is legitimately and properly approved, *no one* should be able to file an appeal to stop or modify it.

Posted by: Sierrajeff at January 29, 2014 4:04 PM

build the f***ing building already. enough of this red tape.

Posted by: seriously at January 29, 2014 4:05 PM

This would be glorious if we could finally stop the NIMBY BS and allow by-right development for code-compliant buildings.

I can already see prices falling due to all the new construction starting.

Posted by: anon at January 29, 2014 4:15 PM

I'm surprised that this doesn't constitute a taking. They are under the zoning code envelope, there's a building that size across the street. How is this not a taking?

http://en.wikipedia.org/wiki/Regulatory_taking

Posted by: The Overhead Wire at January 29, 2014 4:24 PM

Permit exhaustion

One precondition of a regulatory takings claim is that the claimant must obtain a final decision by the regulating entity as to what uses will be permitted. The Supreme Court's decisions make it clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking. See Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 293–297(1981).

The reasons are obvious. A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself "take" the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent "economically viable" use of the land in question can it be said that a taking has occurred. United States v Riverside Bayview Homes, 474 US 121 (1985)

http://en.wikipedia.org/wiki/Regulatory_taking#Permit_exhaustion

Posted by: chitrana at January 29, 2014 4:34 PM

"How can a Board of Appeals overrule the Board of Supervisors on *anything*?"

They probably can't. I've been on my share of government committees comprised of laypeople. Very few had a background in law and certainly not to the specific level that chitrana displays. About the only law that my fellow committee members were aware of was the Brown Act.

Some committees are assigned a legal council to attend all meetings and shoot down bad decisions based on rules. I've also seen committees without legal council make decisions that later bounced back when reviewed by city staffers.

Posted by: The Milkshake of Despair at January 29, 2014 4:47 PM

While I appreciate the credit, that was copied from wikipedia.

Posted by: chitrana at January 29, 2014 4:53 PM

^^^ Well at least you knew where to look for a relevant quote. Myself and most of my lay-committee members would have been lost.

Posted by: The Milkshake of Despair at January 29, 2014 5:12 PM

First world problems.

Posted by: sf at January 29, 2014 7:26 PM

I hope the never bored of appeals gets a huge slap on the wrist and I hope the Marsh learns that being a good neighbor goes both ways - you dont get to just dictate commands.

Posted by: bob at January 30, 2014 9:08 AM

"First world problems"

1) so tired of hearing that phrase. what, if I'm not dragging my kid through the sand on the way to a refugee camp, I'm not allowed to have complaints?

2) of course it's a "first world problem", that's where they're proposing to build the building. What other kind of problem would it be?

Posted by: Sierrajeff at January 30, 2014 9:19 AM

You have a right to complain, but there is so many other things to complain about in this city, that i can't help but make fun of people who put energy into this type of stuff, as if this is really what's detracting from the quality of life, when you have homeless and heroin addicts on he streets who turn the city into a dump. And when riding a bike, or even a light jog, is faster than your public transit system, you really need to reevaluate your priorities.

Posted by: sf at January 30, 2014 9:37 AM

Yeah, it's so silly for people fight for their right to build a 5-story building on their own private property, when that property's zoned to allow a 5-story building, and there's already a 5-story building across the street. How dare they; they should be spending that time and energy at the soup kitches for the homeless.

Besides, I thought the housing crunch *is* a major complaint in this City, so this seems precisely the sort of things that is worth fighting over.

Posted by: Sierrajeff at January 30, 2014 10:26 AM

I love the Marsh theater but was discouraged by their very strong opposition to this sensible project. Of course, both sides should find common ground so that this new building will be built in a manner that minimizes both construction and future noise concerns. In regards to sf's comments, one can optimistically expect a "car free" new building like this to indirectly contribute to an improved Muni (by adding more car free/car-lite households and by generating new tax revenue for the city).

Posted by: Sprague at January 30, 2014 10:31 AM

Jeff, I was actually referring to the NIMBYs fighting against a 5 story building..

Posted by: sf at January 30, 2014 10:41 AM

Sierrajeff - The Board of Supervisors didn't approve the project, they found (on appeal) that the CEQA review was adequate. The Board of Appeals was acting on the appeal of a DR to the Planning Commission.

Posted by: ilivehere at January 30, 2014 12:21 PM

Actually, the California Housing Accountability act states that a building must meet design review standards as well as the code before its provisions kick in. As the Board of Appeals decided that the project was not compliant with approximately a dozen different design review standards contained in City Policy, its action was clearly lawful.

Of course, the editors of this blog wouldn't let facts get in the way of their reporting -- they just believed whatever the developer's lawyer told them.

I note that after running numerous articles on this project they never bothered to report on the Board of Appeals 5-0 decision in favor those opposing the project. I guess it is embarrassing when you find out that the community was right and you are wrong.

Of course, the editors have made it clear that they don't care about the community. They anyone who wants to criticize a development a NIMBY -- which just shows that they don't know what the word means and they aren't smart enough to come up with a real counter argument.

Posted by: NoeNeighbor at February 11, 2014 2:00 PM

So you claim that you do want this in your backyard? If not, then you are the definition of a NIMBY. Not sure why that is hard for you to figure out...

Posted by: anon at February 11, 2014 6:23 PM

I would be ecstatic if there were more buildings like this in my neighborhood. Even next to me would be fine.

Posted by: NoeValleyJim at February 12, 2014 2:54 PM

Posted by: SocketSite at February 28, 2014 7:39 AM

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