A closed-door conference between San Francisco’s Planning Commission and Legal Counsel is underway.

And while the agenda for the specially scheduled hearing doesn’t offer a hint as to the topic of the meeting, other than to “discuss with legal counsel potential litigation with the City as defendant, where there is significant exposure to litigation, based on existing facts and circumstances,” according to a plugged-in tipster, the implementation of California’s existing Density Bonus Law is the issue at hand.

From the materials Planning prepared for the conference, all emphasis theirs:

“The State Law does not limit the types of concessions or incentives, and municipalities must grant any requested incentive or concession unless the City has substantial evidence that the concession or incentive does not have a positive financial impact on the projects. The amount of the density bonus and the number of incentives and concessions is based on a sliding scale, depending on the amount and level of affordability of the housing.”

“State Law defines concessions or incentives as proposals that “result in identifiable, financially sufficient and actual cost reductions.” A city may deny a requested concession or incentive if makes written findings, based on substantial evidence, that the concession or incentive is not required in order to provide for affordable housing costs or rents. In addition, similar to waivers, the only discretion that the Planning Commission has to disapprove an incentive or concession is if it would have a “specific, adverse impact upon health, safety, or the physical environment”, or it would have an “adverse impact on any property listed in the California Register of Historical Resource’s.””

And while the City of San Francisco has been working on plans for a contentious bonus height program of its own, rumblings of local developer discontent, with respect to not being able to effectively take advantage of the State law which already exists, have been growing louder.

39 thoughts on “SF Preparing for Potential Litigation Re: CA’s Density Bonus Law”
  1. God speed San Francisco. I cant wait to see the headlines … “California coastal city which barely produces housing sues state to prevent the building of additional housing.”
    We are going to lose this one. I cant wait.
    What is the opposition on this?

    1. Rather it is a developer suing the city probably. And it must be a developer not planning on doing much building in SF since suing the city isn’t really a winning strategy overall, this is the main reason the state density bonus has never been used in the City.

      1. it’s true, until a developer or owner challenges the city in court, I don’t see the State pursuing this to the full extent they should.

        1. The State law has an attorney fee provision for the winning party, as in the City would have to pay all the costs of the lawsuit if they lose. It will be interesting to see this play out.

        1. Too late. See something, say something.

          Ring, ring. Hello, Homeland Security. Moto mayhem is threatening The City government.


  2. Interested to see how this will affect Planning Department’s plans for the Hub rezoning and the affordability concessions / height incentives there.

    1. I would think they’re unrelated. The city can rezone the urban areas near Market st. The challenge is up-zoning ‘traditional’ areas like the Richmond, Bernal Heights, the Mission, Marina, North Beach…where heights have been for the most part restricted to 40 ft for decades.

      1. There is no exception in the state law for upzonings, but the City can structure the upzoning to be tantamount to execution of the state density bonus law if they see fit.

  3. they’ll make sure their friends are taken care of and everyone else will get knee-capped.

    then after the dust settles, they’ll start making exceptions for their friends again.

  4. “potential litigation with the City as defendant” – This would seem to indicate that the city is preparing to be sued for its failure to act within the state law allowing for density bonuses. Let us all hope that the city loses any potential action of this kind and is forced to allow for more development.

    1. Yes. I think our unaffordable prices present a real risk to our economic future

      Then I hope the state either sues or threatens cities on the peninsula. They are maybe even more restrictive than San Francisco.

      1. They’re undoubtedly more restrictive. Despite all the NIMBYs in SF, and all the extra press SF gets for them, it’s actually one of the least NIMBYish places in the Bay Area.

        1. “SF is one of the least NIMBYish places in the Bay Area” — maybe, but only because of the low bar. And San Francisco shouldn’t be compared to suburbs, it should be compared to other large cities. It’s almost definitely the most development-hostile large city in North America.

        2. Faint praise. That’s like saying North Carolina isn’t the most bigoted state out there, it’s actually one of the least.

        3. Wait, you think SF is one of the least NIMBY places in the Bay Area? Your 4:20 must have been awesome!

          To pick an obvious one, San Jose has grown much, much more quickly than SF.

          1. Yes everyone knows that the only municipalities in the bay area are SF and SJ…you got me.

          2. Sorry, I just went to the biggest. Also the one with the largest population growth. But there are other on the peninsula–look up San Mateo or Sunnyvale.

            Or don’t, because that’s just numbers, man, and I don’t want interrupt your narrative.

          3. The affluent areas of San Jose have plenty of NIMBYs. But in the less affluent areas there aren’t as many objections to development. You could say the same of the whole Bay Area: development glides through in commercial, industrial and less affluent areas but receives opposition if wealthy homeowners live nearby.

  5. Would love to see the City get sued. San Francisco talks out of both sides of its mouth on affordability issues – and that mouth needs a hard smack.

  6. Does anyone know what kind of height bonus the state law would allow in strictly 2/3 story residential areas? Such as Mt. Davidson and Midtown Terrace? I would think they would not be impacted as these are SFH areas and there are no multiple units.

    1. The State law doesn’t pick and chose…it’s State Law….the local laws could then find other prohibitive circumstances, like say, block someone from taking down an Edwardian, or what you’re talking about.

      The City bonus plan discriminated, and specifically targeted properties based on vulnerability and profitability, so it was far from compliance.

  7. A lot of people living in the Outside Lands are genuinely worried that this state law will cause entire blocks of single-family homes to be razed and replaced with the equivalent of Section 8 public housing.

    Of course it’s a pretty silly concern, but the fear is creating a lot of political pressure, which I can only assume is the behind this search for litigation.

    1. That’s unlikely, but what you might see is a type of red lining that could make owning a home so difficult, it pressures owners towards behavior they might not normally choose.

    2. These people are being roused up by ‘affordable housing advocates’ and being fed mis-information. It is a pathetic power grab by a desperate few trying to maintain led role in negotiating every development deal in the city under the name of affordability but actually just for self aggrandizing.

  8. As long as the state law does not force changes in RH1 zoning the outlands are safe.

    I assume it only applies to areas already zoned for multiple units. There are not a whole lot of those areas West of Twin Peaks.

    1. Of course there are – Taraval Street, Geary, Balboa, Judah. Hundreds of blocks worth just right there.

    2. State law applies to projects that can with current zoning achieve five or more units. RH-1 is safe.

  9. Another place SF has been out of compliance with State law for years is essentially forbidding inlaw units (until the recent actions by Scott Weiner in District 8 and Julie Christensen in District 3). Prior to a few months ago, they were allowed only in one zoning category in small parts of SOMA. Every other Bay Area community, including Piedmont, for gods sake, allows inlaw units.

  10. They never intended to comply or attempted to.

    Much of what they do is in violation of State law, and a power grab for controls they don’t have rights over.

    1. Very true.

      Just a couple weeks ago, the BOS voted to instruct SF’s State Legislative contingent (our 2 Assembly members and our State senator) to try to get language into AB2501 (which is intended to strengthen the existing State Bonus Density Law) to exclude SF from the State Bonus Density Law altogether! — a very slimy move.

      Accordingly, we can’t trust our own politicos to do whats right, so please email the sponsoring legislators, Assembly members Bloom, Daly and Low and ask them to “hold the line” and not allow SF legislators to undermine the law and try to get special treatment for SF excluding it from the Bonus Density Law’s mandates.

      1. yes, SF the city of exclusionary anti-growth housing considers itself an exception to state laws mandating growth because we’ve done so much for housing. Delusions are inexhaustible I vow to end them. For example down-zoning the entire city in the 1970s/1980s; having the most nimby discretionary approval process in all of CA; comparing urban growth patterns to suburban neighbors, and now considering an impact fee that reduces development feasibility except for luxury housing. delusional san Francisco. We have one of the few inclusionary fees in the state that does not include a density bonus – not because we are progressive and pro-housing, because we are provincial and opposed to change.

  11. When you take a height concession for Density Bonus what is the impact if the City Cultural Heritage Board rejects based on adverse condition due to being next to listed property.

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