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Notwithstanding Section 207.2 or any other provision of this Code, certain dwelling units that were constructed without benefit of permit in an existing residential building or in an ancillary structure located on the same lot may be granted legal status subject to the conditions and procedures set forth below. For purposes of this Section 207.3, a dwelling unit shall not include single room occupancy units.
(a) Purpose and Findings.
(1) In California Government Code Section 65852.150, the Legislature declared that second units are a valuable form of housing in California because they "provide housing for family members, students, the elderly, in-home health care providers, the disabled, and others, at below market prices within existing neighborhoods" and that "homeowners who create second units benefit from added income, and an increased sense of security."
(2) San Francisco has long had a housing shortage, especially of affordable housing. The housing market continues to be tight and housing costs are beyond the reach of many households. Policy 1.5 of the City's 2009 Housing Element states that secondary units in existing residential buildings represents a simple and cost-effective method of expanding the City's housing supply.
(3) The City has no definitive information on the number of dwelling units that have been added to existing residential buildings without the benefit of a permit, but unofficial estimates indicate that as many as 30,000 to 40,000 such dwelling units exist as of 2013. Often these illegal units have been built in the basements, garages, and attics of existing buildings or in rear-yard structures. While many of these units may not meet existing Planning Code requirements, they constitute a major supply of San Francisco's affordable housing units, often meet life and safety standards, and may require only exceptions from density, open space, and other Planning Code requirements in order to become legal.
(4) Providing a mechanism to grant legal status to an illegally constructed dwelling unit in an existing building zoned for residential use furthers several public policy objectives. By encouraging the legalization of these units, the City can add legitimate units to the City's supply of affordable housing, ensure that these units are safe and habitable, and properly include these units when calculating the City's existing housing supply.
(1) Except as provided in subsection (2) below, this Section 207.3 shall apply to an existing building or an ancillary structure on the same lot, that is located in a district where residential use is principally permitted, and that has one or more dwelling units that were constructed prior to January 1, 2013 without benefit of permit and used as residential space. One of the unauthorized dwelling units on the lot that meet this threshold requirement and the requirements of this Section may be granted legal status under this Section, regardless of the density limits of the zoning district.
(2) No-fault Eviction. The Department shall not approve an application for legalization if any tenant has been evicted from the unit pursuant to Administrative Code Sections 37.9(a)(9) through (a)(14) where the tenant was served with the notice of eviction after March 13, 2014 if the notice was served within ten (10) years prior to filing the application for legalization. Additionally, the Department shall not approve an application for legalization of the unit if any tenant has been evicted pursuant to Administrative Code Section 37.9(a)(8) where the tenant was served with a notice of eviction after March 13, 2014 if the notice was served within five (5) years prior to filing the application for legalization. The Department shall verify with the Rent Board that no no-fault eviction had been filed. This subsection (b)(2) shall not apply if the tenant was evicted under Administrative Code Section 37.9(a)(11) and the applicant(s) have either: (A) certified that the original tenant reoccupied the unit after the temporary eviction or (B) submitted to the Department a declaration from the property owner or the tenant certifying that the property owner or the Rent Board has notified the tenant of the tenant's right to reoccupy the unit after the temporary eviction and the tenant chose not to reoccupy it.
(c) Notices of Violation. If the Director or Zoning Administrator has issued a notice of violation for the unauthorized unit for which legalization is being sought and all violations would be corrected by legalization of the unit, the Director or Zoning Administrator shall:
(1) temporarily suspend the notice of violation and enforcement action upon initiation of the legalization process by the owner or owner's authorized agent and acceptance of the required applications by the City; and
(2) rescind the notice of violation and remove any related liens on the property if legalization of the unit is approved within one year of initiation of the process set forth in subsection (d).
(d) Legalization Application. The Department shall approve an application to legalize an existing dwelling unit if the unit complies with Planning Code requirements as specified in subsection (e) below and with other City codes as specified in subsection (f) below, if the Rent Board verifies that no no-fault eviction was filed pursuant to subsection (b)(2) above, and if the permit application is completed at and plans approved by the Department of Building Inspection. In compliance with the State's Second Unit Law (California Government Code 65852.2), the Department shall exercise ministerial approval of the application if the dwelling unit is in a single-family home and thus within the scope of the State's Second Unit Law.
(e) Compliance with Planning Code Requirements; Exceptions.
(1) A dwelling unit authorized under this Section 207.3 must satisfy all applicable requirements of this Code except for the rear yard requirements set forth in Section 134, the usable open space requirements set forth in Section 135, and the light and air requirements set forth in Section 140, and except as otherwise provided in this Section 207.3.
(2) One such dwelling unit on the lot is allowed to exceed the permitted density authorized for that zoning district provided that a residential use is principally permitted in that zoning district. Authorization of an additional unit over the density limits will not change the official zoning classification of the lot; provided, however, that the additional dwelling unit shall count towards the density limits if the parcel is under its density limit capacity.
(f) Compliance With Other City Codes. A dwelling unit authorized under this Section 207.3 must meet all applicable provisions of other City codes other than the provisions of the Planning Code cited in subsection (e). Any Code equivalencies authorized under the Building Code, Electrical Code, Plumbing Code, Mechanical Code, Fire Code, or other applicable Code shall be considered by the relevant agency.
Legalization of a dwelling unit under this Section 207.3 shall not affect whether the dwelling unit is subject to the Residential Rent Stabilization and Arbitration Ordinance (Chapter 37 of the Administrative Code). A dwelling unit that was subject to the Residential Rent Stabilization and Arbitration Ordinance prior to legalization under this Section 207.3 shall remain subject to the Residential Rent Stabilization and Arbitration Ordinance after legalization. Landlords shall pay relocation assistance to tenants who are temporarily displaced due to work required for dwelling unit legalization pursuant to the provisions in Section 37.9C of the Residential Rent Stabilization and Arbitration Ordinance or California Civil Code Section 1947.9 for displacements of less than 20 days.
(g) Additional Dwelling Unit Considered a Lawful Nonconforming Use. Any dwelling unit authorized under this Section 207.3 shall be considered a lawful nonconforming use subject to the provisions of Planning Code Sections 180 through 189; provided, however, that expansion of the additional dwelling unit within the building envelope shall be permitted as part of the legalization process.
(h) Subdivision and Lot Splits Prohibited. Notwithstanding the provisions of Article 9 of the Subdivision Code, a lot with an additional unit authorized under this Section 207.3 may not be subdivided in a manner that would allow for the additional unit to be sold or separately financed pursuant to any condominium plan, housing cooperative, or similar form of separate ownership.
(i) Merging Secondary and Original Units. If the property owner wants to merge the secondary and original units, the owner may request merger pursuant to Section 317 of this Code. If the Planning Department or Commission approves the merger, the secondary unit will be removed from the Planning Department's Master List and the Assessor-Recorder's records after the final certificate of occupancy is obtained and the merger has occurred .
(j) Reports. Six months from the effective date of this Section 207.3 and every six months for the first three years after the effective date, the Zoning Administrator and the Director of the Department of Building Inspection shall issue a joint report on the effectiveness of the additional dwelling unit authorization program. After three years, the report will be included in the City's Annual Housing Inventory. The report shall, at a minimum, state the number of screening forms and building permit applications that have been filed pursuant to this Section 207.3. For the first three years, copies of these reports shall be submitted to the Clerk of the Board of Supervisors, the Mayor, and the Controller. Upon receiving the reports one year and two years after the effective date, the Clerk of the Board of Supervisors shall schedule a public hearing for each report on the agenda of the appropriate Board of Supervisors committee to consider the effectiveness of the program.
(k) Master List of Additional Dwelling Units Approved. The Planning Department shall create and maintain a master list of dwelling units approved pursuant to the provisions of this Section 207.3 and corresponding property addresses for use by the San Francisco Rent Stabilization and Arbitration Board, Tax Assessor, and other interested City departments, boards or commissions.
Division (b)(1) amended; Ord. 195-18, Eff. 9/10/2018.