Code Section: 311 (b)

Subject: Lightwell infills and 311 Notification

Effective Date: 9/02

(Please note: This Interpretation formally authorizes long-standing Department practice and does not constitute a change in policy.) 

Interpretation:

   For lightwell infills: if the plans (and accompanying photos, if necessary) clearly establish that the infill is against a blank neighboring wall and not visible from any off-site location, it is approvable over the counter with no 311 notification.

   If the proposed lightwell infill is visible only from an adjacent property, i.e. it faces a matching lightwell or equivalent, the applicant must either: submit a set of reduced plans signed by adjacent owner/occupants; or, submit the plans with labels for owner/occupant (of that adjacent party). A "10 day" letter, similar to those provide for Block Book Notifications would be sent to the affected owner/occupants to allow them an opportunity to voice any concerns.

   If the proposed lightwell infill is visible from any off-site location other than an adjoining lightwell, 311 notice is required.

Code Section: 311 (b)

Subject: Applicability of Section 311 to Neighborhood Agriculture

Effective Date: 3/21

Interpretation:

   The interpretation of Section 311 issued 11/08 (Amended 06/09) concerns the notification requirement of non-residential uses and their demolition, expansion, or change in occupancy. The interpretation states that it would be inconsistent with the intent of the Planning Code for conforming uses within residential districts to be subject to Section 311 notification while demolishing, expanding, or changing the occupancy of non-residential uses would not require Section 311 notification given that these non-residential uses are typically nonconforming or conditional uses within residential districts. The interpretation states that all changes of use in RH and RM are subject to Section 311 notification.

   While Neighborhood Agriculture is a non-residential use, it is principally permitted in all R districts. This is likely due to the minor nature of such use, and its size limitation. As such, it does not follow the same logic of the prior interpretation that such uses are typically a nonconforming or conditional use. Therefore, a change of use to Neighborhood Agriculture is not subject to Sec. 311 neighborhood notification.

Code Section: 311 (b)(2)

Subject: Alteration — Removal of Framing

Effective Date: 3/21

Interpretation:

   This subsection states that for the purposes of this section, an alteration is defined as the removal of more than 75% of a residential building’s existing interior wall framing or the removal of more than 75% of the area of the existing framing. In applying this provision, consistent Planning Department practice has been to calculate removal of framing on a linear basis on the floor plans. The question arose about how to handle specific situations where there may be a doorway, window, or pony wall (half height wall). The following describes possible scenarios and whether each constitutes the removal of framing:

   •   If only removing a door, this would not count as removal (because no framing is being removed);

   •   If only removing a door and filing in the opening with a new wall, this would not count as removal (because no framing is being removed);

   •   If removing the door and the door opening is floor to ceiling (i.e., no header above), this would not count as removal (because no framing is being removed);

   •   If removing the door AND header above the door, this would count as removal (because the header constitutes “framing” per Section 311);

   •   If removing a wall to add a door or window, this would count as removal (because the wall constitutes “framing” per Section 311);

   •   If reducing the height of a wall (resulting in a pony wall), this would count as removal (because the wall constitutes “framing” per Section 311);

   •   If moving a wall, this would count as removal (because the wall constitutes “framing” per Section 311).

Code Section: 311(b)(3)

Subject:   Exemptions for Adding Dwelling Units

Effective Date:   02/24

Interpretation:

   Ordinance No. 248-23 added Section 311(b)(3) to create specific triggers for neighborhood notice for building permits outside the Priority Geographies SUD. These triggers included an exception from neighborhood notice if at least one new dwelling unit is added. This exemption applies per building permit, which means it also applies per building. Therefore, the building with the proposed alteration that would otherwise trigger notice must also be proposed to contain an additional dwelling unit to be exempted from neighborhood notice.

Code Section: 311(b)(3)(A)

Subject:   Vertical Alterations Outside the Priority Geographies SUD

Effective Date:   02/24

Interpretation:

   Ordinance No. 248-23 added Section 311(b)(3)(a) to specify that a building permit proposing a “vertical alteration” outside the Priority Geographies SUD will require neighborhood notice (unless an additional dwelling unit is also provided). However, the Planning Code does not define which scopes of work are defined as a “vertical alteration.” Therefore, a vertical alteration includes each of the following scopes of work:

1.   An addition of a fully new floor above the upper most floor of an existing building;

2.   An addition of a new upper floor to an existing building where the only existing features at that level are items exempt from height measurement per Section 260(b), such as stair or elevator penthouses, mechanical enclosures, and parapets;

3.   An increase in the actual or measured roof height of the existing building (flat or sloped roof);

4.   Converting an existing building’s sloped roof to a flat roof where the new flat roof would be higher than the midpoint of the sloped roof (i.e., an increase in measured height);

5.   An addition of a new stair or elevator penthouse;

6.   An addition of any other building enclosure at the roof level beyond those items exempt from height measurement per Section 260(b), such as a mechanical enclosure larger than what is exempted; or

7.   An addition of dormers beyond the limits of Zoning Administrator Bulletin No. 3.

   A vertical alteration does not include a horizontal expansion at any existing floor, including the upper most floor, so long as that existing upper floor is comprised of enclosed building beyond those items exempt from height measurement per Section 260(b) (i.e., the horizontal expansion of an existing partial floor).

Code Section: 311(b)(3)(B)

Subject:   Notice Requirements for Subterranean Additions Outside the Priority Equity Geographies (PEG) SUD

Effective Date:   09/24

Interpretation:

   This interpretation addresses the question of whether subterranean additions count towards the Gross Floor Area (GFA) trigger for notice per Section 311(b)(3)(B) for projects outside the PEG SUD. The response to this question depends on the specific scenario:

1.   Subterranean work only. If the scope of work is purely subterranean, then the GFA trigger of Section 311(b)(3)(B) is not triggered because Section 311 only applies to “Alterations” as defined in Section 311(b)(4), which is “an increase to the exterior dimensions of a building” other than certain Section 136 exemptions. “Exterior dimensions” connotes the outer structure of the building that may be visible, including building portions that are above grade. As an example, if a project scope is to add a completely subterranean basement level that represents more than a 25% increase in GFA and results in the building having GFA greater than 3,000 square feet, no notice would be required because that scope of work does not constitute an “alteration.”

2.   Combination of subterranean and above-ground work. If the scope of work includes an above-grade “alteration” (as defined in Section 311(b)(4), which exempts certain Section 136 features) plus a subterranean expansion, then the total GFA increase for the project must be used (including the subterranean GFA) when calculating the Section 311(b)(3)(B) GFA trigger for notice. As an example, if a project scope is to construct a horizontal “alteration” plus a new subterranean basement that collectively is more than a 25% increase in GFA and results in the building having GFA greater than 3,000 square feet, then notice would be required.

   Scenarios other than the two described above will be reviewed on a case-by-case basis by the Zoning Administrator to determine if notice is required pursuant to Section 311.

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).

Code Section: 311 / 312

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.

Code Section: 311 / 312

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.