Discretionary Review / Variances / CEQA / Conditional Use

Discretionary Review (“DR”)

Discretionary Review (DR) is the term used under the San Francisco Planning Code to describe a public hearing review process used even though a development project proposal may conform to the strict requirements of the Planning Code. At the Request of any citizen, the Planning Commission may choose not to take Discretionary Review or can choose to take Discretionary Review and then approve, modify or disapprove the project. On the advice of the City Attorney, the Planning Commission has adopted a standard by which DRs are reviewed. In order to take DR on a project, the Commission must find it meets a threshold of “extraordinary and exceptional” circumstance.

Over the past three plus decades, Mr. Williams has handled more DR’s than any other attorney in San Francisco. He offers an experienced, informed and highly educated approach for neighbors of proposed projects, or property owners unexpectedly subjected to a DR. Mr. Williams offers an unparalleled understanding of the political and legal influences likely to affect projects or that may bring possible change for neighbors, neighborhood groups or project sponsors.

Variances

Variances are a product of State Law which generally “allows” local governments agencies to manage land use in limited ways. Cal. Gov Code Section 65906 is the “enabling” legislation for all local variance ordinances in California. State law specifies the basic rules under which counties and general law cities may consider variance proposals. Charter cities are not subject to these procedures unless they have incorporated them into their municipal ordinance—which San Francisco has at Section 305 of the Planning Code. Under the Section, the initial decision to grant or deny a variance is in the discretion of the Zoning Administrator:

Determination. The Zoning Administrator shall hold a hearing on the application, provided, however, that if the variance requested involves a deviation of less than 10 percent from the Code requirement, the Zoning Administrator may at his option either hold or not hold such a hearing. No variance shall be granted in whole or in part unless there exist, and the Zoning Administrator specifies in his findings as part of a written decision, facts sufficient to establish:
(1) That there are exceptional or extraordinary circumstances applying to the property involved or to the intended use of the property that do not apply generally to other property or uses in the same class of district;
(2) That owing to such exceptional or extraordinary circumstances the literal enforcement of specified provisions of this Code would result in practical difficulty or unnecessary hardship not created by or attributable to the applicant or the owner of the property;
(3) That such variance is necessary for the preservation and enjoyment of a substantial property right of the subject property, possessed by other property in the same class of district;
(4) That the granting of such variance will not be materially detrimental to the public welfare or materially injurious to the property or improvements in the vicinity; and
(5) That the granting of such variance will be in harmony with the general purpose and intent of this Code and will not adversely affect the General Plan.

The Planning Code mirrors the requirement of State law and every other municipal government in California (and elsewhere) and provides the above five criteria to be met for a variance.

Mr. Williams has handled dozens of variance hearings and is at home helping property owners obtain needed exceptions from the requirements of the Code or in opposing unfair and harmful “rewards” or “favors” often sought by developers as a matter of course for projects in our neighborhoods.

CEQA & Conditional Use Authorization

Mr. Williams has a wealth of experience (and solid, quantifiable success) in appeals under the California Environmental Quality Act (“CEQA”) and on appeals related to Conditional Use Authorizations at the San Francisco Board of Supervisors. As set forth below, of the thirty (30) such appeals he has handled over the past sixteen (16) years, fourteen (14) were granted, five (5) times projects were withdrawn as a direct result of the appeal (the Planning Dept will often withdraw an environmental determination in the face of a valid appeal rather than take a “loss”) and three (3) times settlements were reached between the parties as a result of an appeal. No other attorney in San Francisco can come close to matching this public record of a favorable outcome more than 70% of the time.