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Code Section: 311(b)(4)
Subject: Notice Requirements for Permitted Obstructions
Effective Date: 02/24
Interpretation:
Ordinance No. 248-23 amended Section 311(b)(4) to expand which permitted obstructions under Section 136 are excluded from the definition of “alteration.” More specifically, a Code-complying “pop-out” described in Section 136(c)(25) is now excluded from the definition of alteration. The amendment added qualifying language that such permitted obstructions are excluded from that definition “regardless of whether the feature is located in a required setback.” However, that language only refers to permitted obstructions that are over a sidewalk or within a required setback, yard, or open space only to the extent permitted in Section 136(c)(1-26).
It’s important to note that only vertical alterations, single-family home additions of a certain scale, demolitions, and new construction may require neighborhood notice outside the Priority Geographies SUD, and the permitted obstructions described in Section 136(c)(1-26) are highly unlikely to meet any of those thresholds. As such, the issue of when these permitted obstructions will require neighborhood notice mostly relates to permits within the Priority Geographies SUD. With that in mind, the following interpretations are designed to clarify when these permitted obstructions are otherwise exempt from neighborhood notice:
1. Features that meet all the criteria for any of the permitted obstructions described in Section 136(c)(1-26) that are otherwise fully within the permitted buildable area do NOT trigger neighborhood notice. An example may include an alteration consistent with a permitted bay window, but not located over a sidewalk or within a required setback, yard, or open space.
2. Fully compliant obstructions per Section 136(c)(1-26) over a sidewalk or within a required setback, yard, or open space do NOT trigger neighborhood notice.
3. Features that meet all the requirements of Section 136(c)(1-26) for permitted obstructions but are not fully Code-compliance due to the locational requirements for that permitted obstruction (e.g., a bay window more than 3 feet into the required rear yard that will trigger a variance, a garden shed greater than 100 square feet that will trigger a variance, etc.):
a. Within the PEG SUD: Permitted obstructions described in Section 136(c)(1-26) DO trigger neighborhood notice because they are not Code-complying, subject to additional exceptions for certain features provided in Zoning Administrator Bulletin No. 4.
b. Outside the PEG SUD: These features alone do NOT trigger neighborhood notice unless they otherwise trigger the requirements for notice in Section 311(b)(3).
Subject: Notification Requirements
Effective Date: 04/01
Interpretation:
Sections 311 and 312 allow for the elimination of duplicate notices where there is a Conditional Use (CU) or Variance (VZ) hearing. However, Sections 311 and 312 notice occupants within 150 feet of the subject property, while CU's and VZ's only notice owner within 300 feet. In the future, in order for a CU or VZ notice to substitute for a Section 311 or 312 hearing, occupants within a 150 radius of the property must be noticed.
Subject: Notice for Day Care and Residential Care Facilities
Effective Date: 02/06 (Revised 4/17/2015)
Interpretation:
State Law requires that both family daycare up to 14 children and residential care for up to six people are nondiscretionary. The state requires that family day care and residential care be treated as permitted uses that do not fundamentally alter the nature of the underlying residential uses. Since 311 and 312 notices could potentially lead to Discretionary Review requests that cannot be acted upon, as the permits are nondiscretionary, such day care uses up to 14 children and residential care uses up to 6 people are exempt from such notices. However, if there is an expansion of the site that would require Section 311/312 notice, then the project is still subject to notice.
Code Section: 312
Subject: "Pet Day Care for Dogs"
Effective Date: 1/07
Interpretation:
Pet day care for dogs, the daytime care of domestic dogs belonging to persons not residing on the premises, is an emerging land use which has not been contemplated under existing Planning Code provisions. It should be noted, however, that controls relating to "personal" dogs exist in the Health Code and allow a household to maintain three such dogs at any one time. Because no substantial land use distinction between "personal" dogs and dogs belonging to individuals residing off-site is evident, the daytime or overnight care of three or fewer dogs - regardless of animal guardianship - is exempt from regulation under the Planning Code. In contrast, overnight animal boarding on a larger scale is subject to existing "animal kennel" Planning Code regulations. These provisions continue to apply to facilities which (a) offer animal breeding, (b) provide overnight boarding for more than three dogs at any one time, or (c) do not meet either set of restrictions identified below:
(1) "
Neighborhood-serving doggie day care facilities" are those which (a) care for no more than 12 dogs at any one time and (b) provide no outdoor activity on site. This grouping maintains land use characteristics similar to animal groomers, which in turn have been classified as retail uses under previous interpretations. Accordingly, these uses are subject to Planning Code "retail" controls and are further subject to neighborhood notification under Code Section 312 in all NC zoning districts regardless of the previous use on the property. Notification is felt to be appropriate given the unique potential externalities of doggie day care that were not contemplated when existing neighborhood notification provisions were crafted.
(2) "
District-serving canine day care facilities" are those which contain more than 12 dogs and no more than 5,000 gross square feet. Because of the potential greater size and number of animals cared for, this classification maintains land use characteristics similar to animal hospitals and therefore to be regulated as such.
Code Section: 313.4
Subject: OAHPP, City as "developer"
Effective Date: 3/12/93
Interpretation:
This Section requires the developer of an office building to build housing or pay an in-lieu fee to a housing development fund. Normally, such obligation is passed on to any party that purchases the building before the obligation has been fulfilled. In the case where the City purchased a building with such unfulfilled obligation, the City Attorney ruled that the City is exempt from the OAHPP requirement as a sovereign entity in regard to its own police powers. The Board of Supervisors has demonstrated it knows how to make the City subject to the Planning Code by specifically stating such in regard to various provisions. In the case of the OAHPP provisions, the Board did not so state, thus indicating an intent to exempt the City from this provision.
Code Section: 315
Subject: Section 315 Application to Projects which Represent Additions to Existing Development
Effective Date: 05/08
Interpretation:
Pursuant to Section 315.3(a), this program applies to "housing projects of five or more units where an individual project or a phased project is to be undertake and where the total undertaking comprises a project with five or more units, even if the development is on a separate but adjacent lots." However, there has been some question about how to apply the requirements of the Residential Inclusionary Affordable Housing Program to projects which consist of an existing building which is adding units.
The Inclusionary Affordable Housing Program is intended to mitigate the impacts of the development of new market rate housing on affordable housing demand, per the Residential Nexis published in April 2007 to support the Program. Therefore, the Program is clearly intended to apply to projects involving 5 or more new dwelling units, as stated in the August 22, 2006 Memo summarizing the recent changes of Ordinance Numbers 231-06 and 219-06 to the Inclusionary Affordable Housing Program (see **attached). ** The memo referenced is not set out herein but is available for review in the offices of the City.
Therefore, this Program should be applied to any projects which represent, in sum total, a net addition of five or more units, including multi-phase or multiple lot residential development which will eventually result in five net new units. Existing units which are not part of this phased development should not be subject to this program. This requirement shall be effective immediately.
Code Sections: 315.3 and 315.4
Subject: On-Site Housing Requirement, Calculation of Units for 10% Threshold
Effective Date: 04/06
Interpretation:
These Sections establish the requirement that projects consisting of, or constructing, 10 or more units are subject to an affordability component. The question arose as to how the number of units is calculated to achieve the threshold of "10 or more." A project consisted of two existing units that were to be renovated, and 9 units that were to be newly created for a total of 11 overall units. Neither Code Section indicates whether it is the proposed number of newly created units located on a property, or the overall number of units within a single proposal that triggers the affordability requirement. The situation could arise where (for example) a property contains 7 units but a maximum of 11 were permitted. In order to reduce the burden of providing affordable units on smaller projects where a limited number of newly created units is proposed, those projects proposing 9 or fewer newly created units after June 18, 2001 are not be required to meet the affordability requirement. In addition, neither of the Sections indicates a retroactive consideration for existing units. The question of phasing could arise and will be considered on a case-by-case basis in consultation with the Zoning Administrator.
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