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Declaration of Policy.
Protection of PDR Uses.
Exemptions and Nonapplication.
Notice Requirements for Transfer of Real Property for Residential Use.
Planning Department and Commission Review of Residential Projects.
No Private Right of Action Against City.
This Chapter 35 may be referred to as the Residential and PDR Compatibility and Protection Ordinance.
It shall be the policy of the City and County of San Francisco (City) to protect its existing and future Production, Distribution, and Repair (PDR) Uses from potentially incompatible adjacent and nearby development provided that such Uses businesses1 are conducted and maintained in accordance with all applicable federal, state, and local laws and regulations. The City encourages the use of best available control technologies and best management practices whenever possible to further reduce the potential for incompatibility with other uses, including residential.
Furthermore, it shall be the policy of the City to support the health, safety, and welfare of the future residents of and overnight visitors to Industrial, PDR, and mixed-use neighborhoods by providing for a notification process so that such residents and overnight visitors are made aware of some of the possible consequences of moving to or staying in such neighborhood and by requiring features in any new residential or hotel construction designed to promote the compatibility of residential and hotel and adjacent or nearby PDR uses.
For the purposes of this Chapter 35, the following definitions shall apply.
“Eligible PDR Use” means any legally existing, including legally non-conforming, or future PDR Use, as defined in this Section, conducted or maintained for PDR purposes, in accordance with all applicable federal, state, and local laws and regulations.
“Hotel Use” is as defined in Planning Code Section 102.
“PDR Use” is as defined in Planning Code Section 102.
“PDR Use Zoning District” means a zoning district designated in Planning Code Section 201 as an Industrial District, Production Distribution Repair District, or Eastern Neighborhoods Mixed Use District.
“Property” means all real property inside a PDR Use Zoning District.
“Residential Use” is as defined in Planning Code Section 102.
“Transfer” means sale or lease.
“Transferee” means a purchaser or lessee of all or any portion of a Property, and includes but is not limited to the purchaser or lessee’s partners, assigns, successors, representatives, and heirs. “Transferee” shall not mean a guest at a Hotel or Motel.
“Transferor” means an owner of a Property who sells or leases all or any portion of the structure to a Transferee, and includes but is not limited to the owner’s partners, assigns, successors, and representatives.
No Eligible PDR Use shall be or become a public or private nuisance if the PDR Use operates in compliance with the Municipal Code and state and federal law, and with the terms of its permits.
(a) The provisions of Section 35.4 shall not apply whenever a nuisance results from the negligent, improper, or illegal operation of any PDR Use.
(b) This Chapter 35 is not intended to supersede or limit any other provisions of the Municipal Code with regard to the regulation and control of PDR Uses, including, but not limited to, Article 11 of the Health and Safety Code.
(c) This Chapter shall not authorize a change in use or uses where such is otherwise controlled or prohibited by the Municipal Code or any state or federal law.
(d) This Chapter shall not authorize the continuation or expansion of a nonconforming use where such is otherwise controlled or prohibited by the Municipal Code.
(a) Notice Requirement. The Transferor of Property for Residential Use or Hotel Use must provide notice to the Transferee as follows.
(1) Timing of Disclosure. For all transfers of Property having any Residential Use or Hotel Use, the Transferor shall provide the disclosure described in subsection 35.6(a)(2) on a written document. This notice shall be provided for a lease prior to the tenant(s) signing the lease, or for a purchase agreement for the transfer of the Property at the time required by California Civil Code Section 1102.3.
“DISCLOSURE OF NEIGHBORING PDR USES
You are purchasing or leasing property in an area that permits Production, Distribution, and Repair (PDR) Uses, as defined in Planning Code Section 102. PDR Uses may subject you to inconveniences or discomfort arising from their operations, which may include, but are not limited to: noise, odors, dust, chemicals, smoke, operation of machinery, and loading and unloading operations, which may occur throughout the day and night. One or more of these types of inconveniences may occur even if the PDR Use is operating in conformance with existing laws and regulations and locally accepted customs and standards for operations of such use. You should be prepared to accept such inconveniences or discomfort as normal and a necessary aspect of living in a neighborhood with mixed PDR and residential Uses. A PDR Use shall not be considered a public or private nuisance if it operates in compliance with the Municipal Code and state and federal law, and with the terms of its permits.”
(b) Affidavit of Disclosure.
(1) Contents of Affidavit. The Transferor shall make and sign, upon penalty of perjury, an affidavit containing the following information, with appropriate terms to be inserted in place of the bracketed language, as specified:
(A) the identities of the Transferor and any entity on whose behalf the Transferor is acting;
(B) the identity of the Transferee;
(C) the address, including unit number, of the portion of the Project being transferred;
(D) whether the Transfer is a sale or lease; and
(E) the following language:
“I have provided to the [purchaser or lessee] the disclosure required by San Francisco Administrative Code Chapter 35. Attached is a true and correct copy of the notice provided to the [purchaser or lessee].
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on [date] in [city and state].”
(2) Affidavit Transmitted to the Planning Department. The Transferor shall transmit to the Planning Department, by any means acceptable to the Planning Department, the affidavit and a copy of the disclosure notice provided to each Transferee; provided however, that the attachment need not also include a copy of the then-current text of this Chapter 35. This transmittal must occur within 90 days of the transfer. Upon request of the Transferee, the Transferor shall also provide a copy of this affidavit, with an attached copy of the disclosure notice referenced in the affidavit, to the Transferee.
(3) Affidavits Available to the Public. Pursuant to state and local law, upon request, the Planning Department shall provide a copy of the affidavit and attached notice to any member of the public.
(4) Covenants, Conditions, and Restrictions for Condominium Projects. If the Property will be subdivided into condominiums, the requirements of this Section 35.6(b) shall be included as terms of the Covenants, Conditions, and Restrictions (“CC&Rs”) that will be filed with the State and that govern owners of the property. Upon request, a copy of the CC&Rs shall be provided to the Planning Department.
(c) Civil Penalty for Failure to Provide Notice. Any person who fails to provide the disclosure required by this Section may be liable for a civil penalty of not less than $500 for each failure to provide said disclosure. This penalty may be assessed and recovered in a civil action brought in the name of the people of the City by the City Attorney in any court of competent jurisdiction. The City Attorney also may seek recovery of the attorneys’ fees and costs incurred in bringing a civil action pursuant to this Section.
(d) Private Right of Action. The current or former transferee of the Adjacent Property transferred for Residential Use may institute a civil proceeding for money damages of not less than $500 for each failure to provide the disclosure required by this Section 35.6, and whatever other relief the Court deems appropriate. The prevailing party shall be entitled to reasonable attorney’s fees and costs pursuant to order of the Court. The remedy available under this subsection shall be in addition to any other existing remedies that may be available to the transferee.
The Planning Department and Commission shall consider, among other factors, the compatibility of uses when approving Residential Uses and Hotel Uses in PDR Use Zoning Districts 1 shall take all reasonably available means through the City’s design review and approval processes to ensure that the design of such new residential and hotel development projects is sensitive to both the existing and future PDR Uses in these Districts and the future residents and overnight visitors of the new development. Such factors may include, among others:
(a) The proposed project’s consistency with the Industrial Area Design Guidelines;
(b) The proposed project’s overall design, acoustical treatment, and ventilation to achieve interior noise levels and ventilation compatible with residential standards; and
(c) The location of non-habitable spaces or spaces such as closets, bathrooms, kitchens, and/or landscaping so that such spaces may provide a buffer between the proposed habitable residential areas and any common property line with PDR Uses.
In the event that a court or agency of competent jurisdiction holds that a Federal or State law, rule, or regulation invalidates any clause, sentence, paragraph, or section of this Chapter 35 or the application thereof to any person or circumstances, it is the intent of the Board of Supervisors that the court or agency sever such clause, sentence, paragraph, or section or application thereof so that the remainder of this Chapter shall remain in effect.
This Chapter 35 shall not create any private right of action against the City. The City shall have no duty or liability based on any failure to achieve the disclosure required by this Chapter or based on the City’s failure to enforce or prosecute pursuant to this Chapter.
(Added by Ord. 296-18, File No. 180184, App. 12/12/2018, Eff. 1/12/2019)