(See Interpretations related to this Section.)
(a) Violations Unlawful. Any use, structure, lot, feature, or condition in violation of this Code is hereby found and declared to be unlawful and a public nuisance. Should any permit or license have been issued that was not then in conformity with the provisions of this Code, such permit or license shall be null and void.
(b) Methods of Enforcement. The Zoning Administrator shall have authority to enforce this Code against violations thereof by any of the following actions:
(1) Serving a Notice of Violation (NOV) requiring the cessation, removal, or correction of any violation of this Code upon the property owner or owners (“Responsible Party” or “Responsible Parties”) of the property that is the subject of the violation, by mail or by posting the notice in a conspicuous place on the property that is the subject of the violation. When such information is available, notice may also be served upon the tenant of the property, agent of the owner, designer, builder, or any other person who commits or assists in such violation;
(2) Calling upon the City Attorney to maintain an action for injunction to restrain or abatement to cause the correction or removal of any such violation, and for assessment and recovery of a civil penalty for such violation as well as any attorneys’ fees or costs, including but not limited to expert witness fees and costs of investigation incurred in maintaining such an action;
(3) Calling upon the District Attorney to institute criminal proceedings in enforcement of this Code against any such violation;
(4) Calling upon the Chief of Police and authorized agents to assist in the enforcement of this Code; and
(5) Calling upon the Mayor’s Office of Housing and Community Development (MOHCD) to enforce Planning Code requirements relating to affordable housing. The Department and MOHCD shall enter into a memorandum of understanding to identify the types of enforcement cases to be delegated to MOHCD.
(c) Penalties.
(1) Administrative Penalties.
(A) General Violations. The Zoning Administrator, by issuance of the NOV, may assess upon the Responsible Party an administrative penalty for each violation in an amount up to $1,000 for each day the violation continues unabated. For purposes of this subsection (c)(1)(A), each real property address, and each commercial or dwelling unit within a multi-unit real property address, affected by a violation is a distinct violation for calculation of applicable administrative penalties. Notwithstanding the foregoing, a violation of this Code that affects a common area, feature, or shared detached feature of a multi-unit structure may be treated as a distinct violation of this Code, at the reasonable discretion of the Zoning Administrator. The NOV may be appealed in the manner provided in subsection (c)(1)(E).
Upon the later of the expiration of the time in which an appeal of an NOV may be filed without any such appeal having been filed, or the entry of a final decision on an appeal of an NOV (a Notice of Violation and Penalty Decision, or NOVPD), the NOV or NOVPD may be recorded as an Order of Abatement against title to the property, and the obligations to correct the violation as set forth in the NOV or NOVPD Order of Abatement shall be Planning Code conditions pursuant to Section 174 of this Code that run with title to the property. Further, such recordation shall provide notice to each Responsible Party and any subsequent successor or assign of title to the property that the failure to perform such obligations is a violation of the Planning Code and may be enforced as such.
(B) Contents of NOV, NOVPD, and Notice of Additional Compliance Actions And Accrued Penalties. The NOV shall inform the Responsible Party: of the necessary steps toward compliance the Responsible Party must timely perform to avoid the accrual of daily penalties (“Compliance Actions”); that upon finality, the NOV or NOVPD may be recorded as an Order of Abatement against title to the property; and that any daily penalties or Time and Materials assessed under a final NOV or NOVPD will be a debt to the City and County of San Francisco that may become a lien against the property and/or may be enforced by any means available under the law. At any time following the issuance of an NOV, the Zoning Administrator may issue the Responsible Party a Notice of Additional Compliance Actions and Accrued Penalties requiring the Responsible Party or Parties to perform new or additional Compliance Actions and stating the total penalties accrued during the period covered by the notice. Upon a transfer of an interest in the property, the transferee shall be the Responsible Party for purposes of daily penalties accruing after the date of recordation of the transfer; however, if an NOV or NOVPD was not recorded as an Order of Abatement against title to the property prior to recordation of the transfer, the Zoning Administrator shall record an NOV against title to the property and may issue the transferee a Notice of Additional Compliance Actions stating the Compliance Actions required of the transferee where a penalty will be assessed against the property, and the transferee shall be given the opportunity to comply with said Notice prior to the accrual of further daily penalties.
(C) Penalties for Specified Violations.
(i) Alteration, Merger, Construction, or Demolition of Residential Units without a Permit. For any unpermitted alteration, merger, construction, or demolition of any building or structure containing one or more Residential Units, including work that takes place in violation of Section 317 of this Code, on or after March 1, 2023, resulting in the addition of more than three unauthorized Residential Units, or the loss of one or more Residential Units, (1) the owner of that building shall be required to apply for a replacement project under section 317 of this Code, and (2) the Responsible Party shall be liable for a penalty of up to $250,000 upon issuance of a Notice of Violation for each Residential Unit added or lost through such alteration, merger, or demolition. Within 12 months of the effective date of the ordinance in Board File No. 220878 amending this Section 176, the Planning Commission shall adopt factors and criteria for consideration, to be updated from time to time, to provide guidance to the Zoning Administrator when determining the appropriate penalty amount for violations subject to this subsection (c)(1)(C)(i).
(ii) Alteration or Damage to or Demolition of Historic Property. Whenever the alteration or demolition of a building or structure takes place in violation of this Code and the violation involves significant alteration or damage to or demolition of either a historic landmark, or contributor to one or more historic districts or conservation districts that are identified in the Appendices to Articles 10 and Article 11 of the Planning Code, or any property listed in the California Register of Historical Resources or the National Register of Historic Places, the Responsible Party shall be liable for an additional penalty of up to $500,000 upon issuance of a Notice of Violation for each structure that is significantly altered or demolished without the issuance of an alteration or demolition permit as required by applicable codes. Within 12 months of the effective date of the ordinance in Board File No. 220878 amending this Section 176, the Historic Preservation Commission shall adopt definitions for “significant alteration or damage” and “demolition” as those terms are applied in this Section 176(c)(1)(C)(ii), as well as relevant factors and criteria for consideration, to be updated from time to time, to provide guidance to the Zoning Administrator when determining the appropriate penalty amount for violations subject to this subsection (c)(1)(C)(ii).
(D) Hearings.
(i) Zoning Administrator Hearing. A Responsible Party or other party identified as a violator in an NOV or Notice of Additional Compliance Action And Accrued Penalties may appeal the NOV or Notice of Additional Compliance Action And Accrued Penalties by submitting a request, in writing, to the Zoning Administrator within 30 days of issuance of the NOV or Notice of Additional Compliance Action And Accrued Penalties. The hearing shall be conducted in the manner provided in this subsection (c)(1)(E)(i). An NOV or Notice of Additional Compliance Action And Accrued Penalties that is not timely appealed shall be final. Upon finality, an NOV, NOVPD, or Notice of Additional Compliance Action And Accrued Penalties in its original or reduced amount may be collected pursuant to subsection (f).
An appellant may request a Zoning Administrator’s hearing in order to show cause why the notice requiring the cessation, removal, or correction of the violation and any assessment of administrative penalties is in error and should be rescinded, or why any assessed penalties should be reduced. The Zoning Administrator may designate a member of Department staff to act as the hearing officer in the Zoning Administrator’s place. The Department shall send a notice of the date, hour, and place of the hearing to the appellant at the address specified in the request for hearing and to any member of the public who has expressed an interest in the matter.
Following the hearing, the Zoning Administrator or other hearing officer designated by the Zoning Administrator shall issue a NOVPD reflecting the Zoning Administrator’s determination of the NOV appeal, identifying all individuals liable for the violation(s), and including a description of all corrective actions required, and all administrative penalties due for such violation(s).
(ii) Direct Appeal to the Board of Appeals. The appellant may waive the right to a Zoning Administrator’s hearing and proceed directly to an appeal to the Board of Appeals under Section 308.2. Administrative penalties shall not accrue during the period of time that the matter is pending before the Zoning Administrator on a request for hearing or before the Board of Appeals on appeal, except that the accrual of penalties will not be tolled during the period of any continuance or request for extension of time in the proceeding before the Zoning Administrator or the Board of Appeals granted at the request of the Responsible Party.
(iii) Appeals. If any party listed in an NOVPD elects to appeal the NOVPD, such appeal shall be to the Board of Appeals.
(iv) Decision by the Zoning Administrator. The Zoning Administrator or the Zoning Administrator’s designee, after a full and fair consideration of the evidence and testimony received at the hearing, shall render within 30 days following the conclusion of the hearing a written decision that either rescinds the notice of violation and dismisses the proceedings, upholds the original decision, or modifies the original decision. In rendering a decision, including a determination regarding the amount of administrative penalties to be assessed, if any, the Zoning Administrator or the Zoning Administrator’s designee shall consider:
a. whether the Responsible Party or other appellant was properly identified;
b. whether the accrual dates for the daily administrative penalties are accurate;
c. the amount of documented staff time spent in order to secure abatement of the violation;
d. the nature of the violation;
e. the duration of the violation;
f. whether the violation was willful or intentional;
g. whether the violation resulted in a financial gain to one or more of the Responsible Parties;
h. efforts made by the Responsible Party to correct the violation;
i. the impact of the violation upon the community;
j. any instance in which the Responsible Party has been in violation of the same or similar laws at the same or other locations in the City and County of San Francisco;
k. the Responsible Party’s good faith efforts to comply;
l. whether the violation is easy to correct;
m. whether the violation of the Planning Code resulted in the displacement of one or more tenants;
n. whether the violations of the Planning Code created a nuisance, a public health hazard, or a dangerous condition on the affected property;
o. whether the violation is reversible;
p. such other factors as the Zoning Administrator or the Zoning Administrator’s designee may consider relevant; and
q. for penalties imposed under subsection (c)(1)(C), the foregoing factors are in addition to the factors and criteria set forth in that subsection.
(v) Appeal of Zoning Administrator Determination to the Board of Appeals. In hearing any appeal of the Zoning Administrator’s determination, the Board of Appeals shall consider the above factors. If the Board upholds the Zoning Administrator’s decision in whole or in part but reduces the amount of the daily penalty applicable under subsection (c)(1)(A), it may not reduce the amount of the penalty below $200 for each day that the violation exists, excluding the period of time that the matter has been pending either before the Zoning Administrator on a request for hearing or before the Board of Appeals on appeal. If the Board of Appeals upholds the Zoning Administrator’s decision in whole or in part with respect to the penalty applicable under subsection (c)(1)(C), but reduces the amount of such penalty, it may not reduce the amount of the penalty below $50,000 for each residential unit added or removed without authorization, or $100,000 for each historic landmark, or contributor to one or more historic districts or conservation districts that are identified in the Appendices to Articles 10 and Article 11 of the Planning Code, or property listed in the California Register of Historical Resources or the National Register of Historic Places, that is significantly damaged or altered, or demolished.
The provision of administrative penalties is intended to secure compliance with and deter violations of the Planning Code and to compensate the City for its costs of enforcement.
(vi) Order of Abatement. Upon the expiration of 90 days following the finality of an NOV, NOVPD, or Notice of Additional Compliance Actions and Accrued Penalties, the Department may record an Order of Abatement against the property's records in the Office of the Recorder of the City and County of San Francisco. The Department may also report any licensed professional responsible for the violation(s) to the appropriate local, state, or federal licensing boards. Within 14 business days after the violation has been finally abated and all restrictions imposed by the NOV or NOVPD have expired, the Department shall record a notice of compliance that cancels the order of abatement.
(2) Civil Penalties. Any individual, firm, partnership, corporation, company, association, society, group, or other person or legal entity that violates any provision of this Code shall be liable for the City’s costs of enforcement and a civil penalty of not less than $200 and not more than $1,000 for each day such violation is committed or permitted to continue, which penalty shall be assessed and recovered in a civil action brought in the name of the People of the City and County of San Francisco by the City Attorney in any court of competent jurisdiction. For purposes of this Section 176, each real property address, each commercial or dwelling unit within a multi-unit real property address affected by a violation, and each separate violation of the Planning Code is a distinct violation for calculation of applicable civil penalties. The City, when it is the prevailing party, shall be awarded reasonable attorneys’ fees and costs, including but not limited to expert witness fees and costs of investigation incurred by the City in bringing such civil action. For civil actions to enforce Municipal Code provisions related to general advertising signs, the penalties, attorneys’ fees, and costs set forth in this Section 176 shall be in addition to those authorized by Section 610 of this Code.
In assessing the amount of the civil penalty, the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including but not limited to, the following:
(A) the nature and seriousness of the misconduct, including but not limited to whether the violation resulted in any public health or safety hazard, or a dangerous condition on the affected property, and the impact of the violation on the occupants of the property and the surrounding neighborhood;
(B) the number of violations;
(C) the persistence of the misconduct;
(D) the length of time over which the misconduct occurred;
(E) the willfulness of the misconduct;
(F) whether the violation of the Planning Code resulted in the displacement of one or more tenants;
(G) whether the violation is reversible;
(H) whether the violation damaged or demolished a historic landmark, or contributor to a historic district, identified in Appendix A to Articles 10 and 11 of the Planning Code, or any property listed in the California Register of Historical Resources or the National Register of Historic Places;
(I) the violator’s financial gain or opportunity for financial gain from the misconduct; and
(J) the defendant’s assets, liabilities, and net worth.
(3) Criminal Penalties. Any individual, firm, partnership, corporation, company, association, society, group, or other person or legal entity that violates any provision of this Code shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in an amount not less than $200 or be imprisoned for a period not exceeding six months or be both so fined and imprisoned. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder.
(4) Planning Code Enforcement Fund. Any fees and penalties collected pursuant to this Section 176 except those collected pursuant to subsection (b)(5) shall be deposited in the Planning Code Enforcement Fund established by Administrative Code Section 10.100-166, and shall be used for the purposes specified in that section. The Planning Department, through the Planning Code Enforcement Fund, shall reimburse City departments and agencies, including the City Attorney’s Office, for all costs and fees incurred in the enforcement of this Section 176.
(5) Affordable Housing Enforcement Fund. Any fees and penalties described in subsection (c)(2) that are collected as a result of the enforcement efforts of MOHCD as provided in subsection (b)(5), shall be deposited in the Affordable Housing Enforcement Fund established by Administrative Code Section 10.100-10. MOHCD shall reimburse City departments and agencies, including the City Attorney’s Office, for all costs and fees incurred in the enforcement of this Section 176, from the Affordable Housing Enforcement Fund.
(d) Additional Methods of Enforcement and Penalties for Violation of Sign Regulations. Violation of the general advertising sign regulations set forth in Article 6 are subject to the administrative penalties and enforcement procedures set forth in Section 610 of this Code, in addition to those set forth in this Section 176.
(e) Failure to Pay Administrative Penalties. If the Responsible Party fails to pay the administrative penalties to the Department within 30 days of the date on which an NOVPD or Notice of Additional Compliance Actions And Accrued Penalties specifying such penalty amount becomes final, the Zoning Administrator may take such actions to collect the penalties and any unpaid Time and Materials owed to the Department as the Zoning Administrator deems appropriate, including (1) referral of the matter to the Bureau of Delinquent Revenue Collection under Chapter 10, Article V, Section 10.39 of the Administrative Code, (2) initiation of lien proceedings under Chapter 10, Article XX, Sections 10.230 et seq. of the Administrative Code, and (3) requesting that the City Attorney pursue collection of the penalties imposed against the Responsible Party in a civil action.
(f) Remedies Not Exclusive. Remedies under this Section 176 are non-exclusive, and, notwithstanding subsection (b)(2), the City Attorney may at any time institute civil proceedings for injunctive and monetary relief, including civil penalties, against any person for violations of the Planning Code, without regard to whether the Zoning Administrator has issued a notice of violation, instituted abatement proceedings, scheduled or held a hearing on a notice of violation, or issued a final decision. For proceedings instituted under this subsection (f), the City Attorney shall notify the Zoning Administrator or the Planning Director, as appropriate, and collaborate, where mutually desired, on the prosecution of the action.
(Added by Ord. 443-78, App. 10/6/78; amended by Ord. 71-01, File No. 001391, App. 5/18/2001; Ord. 46-07, File No. 061539, App. 3/9/2007; Ord. 57-08, File No. 071651, App. 4/10/2008; Ord. 56-13
, File No. 130062, App. 3/28/2013, Eff. 4/27/2013; Ord. 60-16
, File No. 151085, App. 4/27/2016, Eff. 5/27/2016, Oper. 6/1/2016; Ord. 155-22, File No. 220262, App. 7/21/2022, Eff. 8/21/2022; Ord. 40-23, File No. 220878, App. 3/28/2023, Eff. 4/28/2023; Ord. 64-24, File No. 231185, App. 3/28/2024, Eff. 4/28/2024)
AMENDMENT HISTORY
Division (c)(1) amended; Ord. 56-13
, Eff. 4/27/2013. Division (c)(1) amended; division (f) added; Ord. 60-16
, Oper. 6/1/2016. Divisions (a), (b)(1), (b)(3), (b)(4), (c)(1), (c)(1)(K), and (c)(2)-(c)(4) amended; divisions (b)(5) and (c)(5) added; Ord. 155-22, Eff. 8/21/2022. Divisions (b)(1), (b)(2), (c)(2), (c)(4), (e), and (f) amended; divisions (c)(1)- (c)(1)(K) amended as (c)(1)-(c)(1)(D)(vi); divisions (c)(2)(A)-(J) added; Ord. 40-23, Eff. 4/28/2023. Division (c)(1)(C)(i) amended; Ord. 64-24, Eff. 4/28/2024.