Merging San Francisco units and legalizing an illegal unit

Merging units and legalizing an illegal unit

By M. Brett Gladstone, Esq.

Small Property Owners of S.F. Institute

June 2008 Newsletter

The Planning Code permits the merger of dwelling units into fewer units. However, the Planning Commission strongly discourages the practice. There is a discretionary review policy (an automatic Planning Commission hearing) for most building permit applications for dwelling unit mergers. For the following kinds of mergers, such a hearing may not be required (or if a hearing is required, Planning Commission approval is more certain): • Projects involving merging units for occupancy by owner or family members, bringing a building with four units or less closer to its original architectural configuration, particularly as part of restoration of an architecturally significant building. • Projects merging one set of two units, or a portion thereof, for an owner occupant or family members, in a building with six or more units, particularly when it is shown that no existing unit is large enough for the family seeking the merger.

Where Discretionary Review is considered by the Planning Commission, the Commission will likely look for development alternatives that would reduce the total loss of dwelling units on the site and respond to dislocation issues of residential tenants. There may be other impediments to such mergers, including the strict new owner-move-in eviction rules and a recent Planning Code amendment. Legalizing an Illegal dwelling unit If a unit has been authorized by building permit, it is legal; if not, it is illegal, no matter how long it has been established or what the rules were at the time.

The Report of Residential Record (3-R Report)— although often inaccurate—purportedly provides information from the city’s building permit records, including the property’s last authorized use. There may be instances where a unit has been in continuous existence from before the 1906 fire (which destroyed building permit records), in which case the 3-R Report may not be helpful. In such cases, because zoning laws which govern residential density were not adopted until 1921, the unit could be considered legal if sufficient evidence of its existence can be gathered from other records, such as from the Water Department.

The last use authorized by permit is the only legal one. For example, if a building once contained three dwellings authorized by building permit but a permit was subsequently issued to remove one unit, the record would show that only two units are legal. If a third unit is then added without a building permit, that unit would be illegal whether or not it was once authorized. If no permit had been issued to authorize a unit, there is no “grandfather” status. Besides being required by law, obtaining a building permit for installing a dwelling unit is an advantage to the current and subsequent owners by recording the unit’s authorization and establishing its grandfathered status in case the zoning laws change in such a way as to disallow it in the future.

Planning code criteria for legalizing a unit If a unit illegally established without permit cannot be approved under current regulations, it cannot be legalized and must be removed. However, if a unit illegally established without a permit can be allowed under current zoning regulations and the Building Code and all other current applicable laws, the owner may apply for a building permit to legalize it. If legalizing the unit does not constitute any expansion of the building’s external dimensions in any direction, only three Planning Code provisions—density, off-street parking, and useable open space— need to be met. If the proposal fails to meet all applicable Planning Code provisions, the unit cannot be legalized even if it meets all other code requirements, unless a variance is obtained. Permit requirements for legalizing a unit A building permit application must be accompanied by two sets of drawings showing the situation prior and the proposed work to be done.

They must be accurate and drawn to scale, and include complete plans for all floors in the building, indicating the use of each room, major features, location and dimensions of required off-street parking plus sufficient graphic information to show that the usable open space requirements will be met. The drawings must include a site plan of the subject lot, accurately locating the building and the proposed changes relative to the lot lines and, if the property is located in a residential district, drawings must include full site plans of the two adjacent lots showing the location and height of their buildings. Site plans must be drawn by a licensed surveyor or licensed architect.

Brett Gladstone is a San Francisco attorney specializing in land use, real estate, and condominium law. He may be reached at (415) 434-9500

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About Cheryl Bower

Cheryl is a S.F. native & 17 year property investor/renovator, specializing in S.F. real estate including residential sales & leasing.

She represents sellers, first time buyers, move up buyers, investors, & landlords in San Francisco, San Mateo County & beyond.

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