Supervisor Aaron Peskin's demolition legislation didn't go over well at last week's joint meeting of the San Francisco Planning and Building Inspection Commissions. Stakeholders remain unimpressed by what increasingly looks like an example of kitchen sink legislation, designed to stop almost any new housing being built in the City's neighborhoods. Those criticisms were laid out in stark relief at last week's four-hour, overflow hearing.
The proceedings began with Supervisor Peskin reiterating the stated intent behind the legislation – to harmonize definitions of residential demolition and constrain its use to particular instances to prevent its misuse for merging residences or constructive evictions.
"I think we all agree, and have agreed for many many years, (that) there is a problem relative to definitions of demolition in the code… We all know the numbers…. It's not just about the high-profile things we've seen in the media… it's a much larger systemic problem. I am not the first Supervisor to try to fix this… As a matter of fact, my former colleague Jake McGoldrick teamed up, as unlikely as it may have been, with Alice Barkley to solve this problem 20 years ago."
Later, Peskin's citing of Barkley would come back to bite him. A respected land-use lawyer and longtime veteran of San Francisco's zoning wars, Barkley ended up being the final speaker at the hearing's public comment (as it turns out, Sue Hestor was nowhere to be found). Barkley's mic drop appraisal of Peskin's legislation was withering:
"I spent a long weekend, three and a half days, trying to amend this legislation, to make sense out of it. And I gave up. This legislation, you have to start all over again, focus on what the objective is, and go from there.”
Barkley's comments were the crowning stroke of a solid two hours of public comments. This was preceded by a joint presentation by the Planning Department and the Department of Building Inspection, which itself took two hours, counting breaks for commissioners to ask questions.
Department staff began the presentation with the caveat that because of the extent of the "highly dense" ordinance, the presentation had to be broken up into sections. These featured several Venn diagrams outlining the ordinance's possibly unintended outcomes which were sources of concern to both departments.
“We wanted to warn you about the amount of information you are about to see on the slides," said Audrey Merlone, a Planning Department staffer. “We broke all the PowerPoint rules, there are way too many words. That was on purpose – this is a very complicated piece of legislation, we don't expect Commissioners or members of the public to digest every single piece of what's going to be presented here today.“
The presentation also explained how the state of the City's housing stock, the overwhelming majority of which was built before 1950, has helped to create many of the issues which cause recurring criticism of the current regulatory regime over demolitions.
Aging of wiring and plumbing; long-term damage due to pests, moisture, and dry rot; combined with previous development patterns where there is little or no space between neighboring buildings; often mean that routine and necessary structural upgrades often require temporary removal of existing walls and other actions which bring these projects very close to the definition of demolition.
These and other factors have created some space for a handful of bad actors to abuse current regulations by perpetrating stealth demolitions, which sometimes result in the removal of rent-controlled or other unsubsidized affordable housing, or structures which the community would otherwise consider to be worthy of preservation.
But the main takeaway from the department's presentation was that Peskin's legislation would go far further than what reforms may be needed. The legislation would present significant changes in neighborhood notification, permit review, and qualifying conditions, which would make many kinds of necessary upgrade work and the infill construction of new housing in residential neighborhoods impossible. If enacted, the new regulatory regime would significantly increase the workload of both departments, while at the same time removing the space for discretion that is often necessary to achieve stated policy goals.
The presentation also contained several case studies of projects previously approved which would be prohibited by the new ordinance. These included projects which were beneficial to the City's housing goals where additional units of housing were created, as well as relatively simple remodels, such as upgrading a façade.
“So what was once a same-day permit over-the-counter, would now take up to 9 to 12 months, just for the process of changing a façade,” said Cyril Yu, a Department of Building Inspection employee.
During one of the many breaks in the presentation, Planning Commission President Myrna Melgar asked Lee Hepner, Peskin's aide and point man on the legislation, where the floor area criteria for dwelling mergers came from, expressing concerns that it didn't take into consideration the different family living patterns of the many classified constituencies in the City.
Hepner replied that the 1200 ft.² threshold number may have been taken from numbers produced by the Mayor's Office of Housing for constructing new multi-unit affordable housing. "It's not an entirely arbitrary number, if we are here to discuss what the appropriate size was, I would be very very pleased because I think that's a discussion that is worth having.”
Melgar did not seem satisfied with that answer.
“You need to help me understand what the thinking about this was because families come in all shapes and sizes," said Melgar. "The way we use residential space often has a lot to do with what a family looks like, or cultural norms about intergenerational living. Having a one-size-fits-all policy could be problematic… Why pick a number that is an average, as opposed to a percentage or proportion, I don't understand the logic here."
Building Inspection Commissioner Debra Walker expressed concerns over unintended consequences the legislation may have with regard to maintaining the habitability of existing rental housing. "I think all of us know the state of a lot of these older buildings… I don't want to create a situation where rental units are not upgraded," said Walker. “This really needs some attention."
Hepner responded by continuing to maintain that the legislation intended to preserve affordable housing, and to make the maintenance of sound affordable housing easier, not harder. "I will be the first to admit that in the course of working on this, the building code came second," admitted Hepner. "I don't think enough attention has been paid to the particulars of the building code in this ordinance.”
But he also attributed many of the concerns voiced during the presentation as the product of incorrect and possibly captious interpretation by the departments. "I just want to be clear that the removal of dry rot, that the removal of a dry rotted deck could require a CU (conditional use process), is absurd," said Hepner. “That is not the intent of this ordinance…. I do think it's interesting that a standard becomes unenforceable in this context, or assigning that burden to somebody becomes an insurmountable hurdle in this context, and then in other contexts (they can become) enforceable tenant protections." These and similar remarks from Hepner elicited a considerable amount of side-eye from department staffers and others present at the hearing.
Nevertheless, other commissioners continued to press Hepner on the intent of the legislation considering its breadth and effects. Planning Commissioner Rich Hillis remarked on "how the language of the ordinance seems to conflict with its stated goals.” When he asked Hepner about whether the standards of the ordinance allow for any soft infill to identify residential neighborhoods, he was met with a nonresponsive answer.
Later in the presentation, concerns were aired over the changes proposed for fines for illegal demolitions. Commissioners wondered if changes in where revenue from those fines would go could essentially defund code enforcement efforts.
Building Inspection Commissioner Sam Moss asked Hepner why the ordinance specifies that fine revenue would go towards the Small Sites Program, which funds efforts by affordable housing nonprofits to purchase smaller apartment buildings: "I could see why that would make sense if this were only about single-family homes, but my question is why not let the fine revenue go to the mayor's office of housing's general fund, let them have discretion over how to spend those dollars… The new construction of affordable housing is going to continue to be the way we get the most amount of new affordable units… I'm just wondering if that was considered it all."
Hepner responded with general remarks about the intent of the new fine structure as a stronger deterrent to violations in the first place.
The public comment portion of the hearing was, on balance, even more hostile towards the legislation. Although there were some, such as Jennifer Fieber from the San Francisco Tenants Union, and Kathy Lipscomb, a veteran of the San Francisco Labor Council who now works with Senior Action Network, who did speak forcefully in favor of the legislation.
But even George Wooding, President of the Coalition on San Francisco Neighborhoods, seemed to have his doubts, despite representing a constituency that would typically be supportive of similar measures. "I think the expansion and demolition aspects of this legislation need to be bifurcated," said Wooding. “The City needs a clear and clean definition of what demolition is for everyone… the rest of it, I read it four different times, and came to different four different conclusions about it.”
Most speakers were overwhelmingly opposed to the legislation. Irene Velasquez, a contractor affiliated with the Residential Builders Association, voiced concern about the ability to adequately maintain older housing and said that the bill would negatively affect younger and expanding families, as well as older, "empty-nesters," alike.
YIMBY Action's Laura Foote described the ordinance as "a denial of service attack" on both the Planning and Building Inspection departments. “There's a great way to incent triplexes and fourplexes is if that's what you really want – upzone. We can protect tenants with Right to Remain and Right to Return laws at the same time,” said Foote. "Other cities seem to be able to do that better than we do right now.”
Another YIMBY activist, Stephen Buss, offered to enter a banana into the public record, reflecting what appears to be an increasingly favorite nickname for the ordinance. "Please enjoy this banana, or you can throw it away if you want - like we should do with this ordinance."
Planning Commissioner Millicent Johnson offered up what everyone seemed to be thinking, but few wanted to say out loud: “In this city, If you do not own a home, and want to own a home in the city, you have to have a $300,000 down payment, you have to have an income of at least $200,000 a year, and if you have those things you might be able to get a condo, or small house which hasn't been renovated in decades. And you're going to need several hundred thousands of dollars in order to get through the process of upgrades. All while paying off student loans and taking care of your children or aging parents. And if you're a renter, where you live likely hasn't been updated since the 70s, substandard, noncompliant housing, which you can't move out of because the rent is too damn high everywhere else… there is no way that we can get out of this housing crisis without demolishing homes. We have to create conditions where owners can densify their parcels without illegally evicting tenants. Yes, we have to preserve existing housing. But we have to, we have to, we have to build more housing, and we have to allow for housing the people are living in to be upgraded."
And so it appears to be back to the drawing board for Aaron Peskin. In the meantime, there have been more developments.
This week, housing activist Vincent Woo made allegations that Supervisor Peskin actually lives in what could be considered a monster home, that used to be a rent-controlled duplex.
Additionally, it was announced that Senate Bill 330, authored by Nancy Skinner (D-Berkeley) and aimed at removing local obstacles to infill housing, has been amended to include demolition controls aimed at protecting existing tenants.
Sonja Trauss, Executive Director of the California Renters Legal Advocacy and Education Fund, describes the amendments to SB 330 as "stronger than what we have now and, as far as tenants are concerned, stronger even then went Peskin proposes in his BANANA legislation. Peskin should throw his legislation in the trash and start over, with the tenant protecting demolition controls and SB 330 as his baseline."
Requests for comment from Supervisor Peskin's office regarding these developments, as well as next steps for his demolition bill, were not answered by press time.