SEC. 723.2. MINOR ENCROACHMENTS.

   (a)   Minor Encroachments. The Director of of1 the Department of Public Works (“Department”) may grant permission, revocable at the Director’s will will1 in accordance with subsection (f), to an owner of property abutting any court, alley, or street to install and maintain minor encroachments such as fences, retaining walls, steps or stairways, sidewalk (pipe) barriers to control illegal vehicular parking or driving in sidewalk and public right-of-way areas, and other minor structures in the sidewalk fronting such property where such encroachments are desirable or convenient in conjunction with the owner’s use and enjoyment of the property, or required for the safety, convenience, and comfort of the public using the sidewalk. Pipelines or other portions of an alternate water source system constructed within the public right-of-way for the purposes set forth in Article 12C of the Health Code and in accordance with Health Code Section 12C.6 are minor encroachments subject to the requirements of this Section 723.2. Tier 1 Projects and Tier 2 Projects, as defined in Section 723.1(a), are minor encroachments subject to the requirements of Section 723.2.

   (b)   Requirements and Conditions.

      (1)   General. Minor encroachments shall not occupy more than 10% of the area of the sidewalk fronting the property nor more than 25% of the width of the sidewalk (together, “Dimensional Requirements”), unless the Director determines that such restrictions are not applicable due to the nature of the encroachment. The Director shall impose requirements and conditions as the Director deems necessary or appropriate to protect the public peace, safety, health, and welfare of pedestrians and other users of the sidewalks, public right-of-way, and public property (“Conditions of Approval”)..1 Conditions of Approval may include but are not limited to periodic inspection, maintenance, and repair requirements. To memorialize the Conditions of Approval, the Director may require the permittee to enter into a written agreement that is recorded in the Office of the Assessor-Recorder. No advertisement shall be permitted on the encroachments.

      (2)   Tier 1 Love Our Neighborhoods Projects.

         (i)   Registration Requirement. The owner of real property, or the owner’s authorized agent, shall not be required to obtain a permit prior to the placement of the Tier 1 Project, as defined in Section 723.1, in the sidewalk adjacent to the owner’s real property provided that the sidewalk is within the Department’s jurisdiction, the Tier 1 Project satisfies all of the applicable requirements for the Tier 1 Project as set forth in the Department’s regulations, and the owner registers the Tier 1 Project with the Department in a manner prescribed by the Department. Upon the owner’s registration of the Tier 1 Project and acknowledgment of the owner’s liability for any injury or Claims, as defined in Section 723.2(e)(1), caused by the Tier 1 Project, the Tier 1 Project shall be presumed to be authorized to be placed on the sidewalk within the Department’s jurisdiction as long as the sidewalk preserves the greater of a minimum path of travel of four feet after the installation or placement of the Tier 1 Project or, with respect to sidewalks that are a minimum of twelve feet wide, a minimum path of travel of six feet after the installation or placement of the Tier 1 Project.

         (ii)   Conditional Exemptions from Certain Requirements. The owner of real property adjacent to a properly registered Tier 1 Project shall not be required to obtain a permit, pay the permit fee and right-of-way occupancy fee set forth in Section 2.1.1(l), or furnish evidence of an insurance policy set forth in subsection (e)(2) for the Tier 1 Project at the time of registration and may install or place the encroachment upon the sidewalk following registration.

         (iii)   Safety Inspection. Any person may submit in writing, accompanied by any pertinent documentary information or photographs, a request that the Department perform a safety inspection of a Tier 1 Project at a specified street address due to concerns that the encroachment fails to comply with an applicable requirement or such encroachment poses a threat to public health, safety, or welfare. The Department, in its sole discretion, may elect to perform an inspection of the encroachment, and the Director may require that the owner of the real property adjacent to the encroachment modify or remove the encroachment for the purposes of public safety, health, or welfare. In addition, if the Director allows the encroachment to remain in place, the Director may require the owner of the real property adjacent to the encroachment to record in the office of the Assessor-Recorder the owner’s acknowledgment of the owner’s liability for any injury or Claims, as defined in Section 723.2(e)(1), caused by the Tier 1 Project.

      1    Tier 2 Love Our Neighborhoods Projects.

         (i)   Minor Encroachment Permits Required. Tier 2 Projects shall be required to obtain a minor encroachment permit as provided in this Section 723.2. Prior to submitting a minor encroachment permit application for a Tier 2 Project, the permit applicant must obtain all necessary approvals from City departments and agencies including but not limited to the Arts Commission and the Civic Design Review Committee, as may be applicable.

         (ii)   Neighborhood Notice for Murals; Compliance With Department Specifications. A permit applicant proposing a Mural shall submit a signed declaration identifying the steward of the Mural who will be responsible for maintaining, repairing, and removing the Mural for a period of five years. In addition, the permit applicant shall provide mailed notice of the application to the owner or owners of record of all units of real property within 250 feet of the proposed location of the Mural. All Murals shall comply with all requirements and specifications determined by the Department including but not limited to requirements pertaining to slip resistance, dimensions, durability, and removability of media and materials.

      (4)   Sidewalk (Pipe) Barriers. The Department of Public Works may grant permission, revocable at the will of the Director of Public Works, to owners of property abutting any court, alley, or narrow street to install and maintain sidewalk (pipe) barriers, also referred to as bollards, of an approved design, spacing, and location in the sidewalk fronting their property where necessary to control illegal vehicular parking or driving in sidewalk areas. Before the issuance of a permit for sidewalk (pipe) barriers, the applicant shall be required to pay to the Department, as an inspection fee, the sum of $100 for each 25 feet, or fractional part thereof, of the sidewalk frontage of the property.

   (c)   Permit Issuance. In considering the issuance of permits under this Section 723.2, the Director shall give due regard to the location, neighborhood pattern, anticipated pedestrian traffic, and access requirements of the Fire Department, and to the convenience and necessities of the owners, occupants, or tenants of offices, stores or shops in the vicinity. Permits for Murals shall be valid for up to five years, subject to the Director’s discretion to grant successive five-year extensions to a permittee that has complied with the conditions of their permit. A permit for a Mural on a stairway shall only allow the Mural to be painted or affixed to the riser portion of the stairway.

   (d)   Liability for Minor Encroachments.

      (1)   Adjacent Property Owners. Other than with respect to a Mural, Neighborhood String Lighting, or a commemorative plaque for which the Department has issued a Tier 2 Permit to a steward who is not the owner of the real property adjacent to the Tier 2 Project, the owner of real property adjacent to a minor encroachment shall be solely and fully liable for any injury or Claims resulting from the minor encroachment, shall bear all costs of such injury or Claims, shall pay all costs incurred by the City for any review and inspections of the encroachment, and, if ordered by the Department to do so, and shall be required to modify and/or remove the minor encroachment and restore the sidewalk or other public right-of-way to a condition acceptable to the Director in the Director’s sole discretion.

      (2)   Stewards. For Murals, Neighborhood String Lighting, and commemorative plaques, the steward identified in the Tier 2 Project permit shall be solely and fully liable for any injury or Claims, as defined in Section 723.2(e), resulting from the Mural, Neighborhood String Lighting, or commemorative plaque, as applicable, and the steward shall bear all costs of such injury or Claims, shall pay all costs incurred by the City for any review and inspections of the Mural or commemorative plaque, and, if ordered by the Department to do so, shall be required to modify and/or remove the Mural, Neighborhood String Lighting, or commemorative plaque and shall restore the sidewalk or other public right-of-way to a condition acceptable to the Director in the Director’s sole discretion.

   (e)   Indemnification, Security, and Insurance Requirements.

      (1)   For minor encroachment permits issued and Tier 1 Projects registered pursuant to Section 723.2, the The1 owner of the real property or the owner’s authorized agent applying for a permit or registering a Tier 1 Project under the provisions of Section 723.2 shall agree to hold harmless, defend, and indemnify the City and County of San Francisco, including, without limitation, each of its commissions, departments, officers, agents, and employees, from and against all losses, liabilities, expenses, actions, claims, demands, injuries, damages, fines, penalties, suits, costs, or judgments, including, without limitation, attorneys’ fees and costs (collectively, “Claims”), caused by reason of the installation or maintenance of the encroachment in the public right-of-way, and the owner or owners or subsequent owner or owners of the respective real property shall be solely liable for any Claims occasioned by any act or neglect in respect to the installation or maintenance of the encroachments in the sidewalk.

      (2)   The Director may require the recipient of a minor encroachment permit or the owner of real property with an authorized minor encroachment to furnish a bond, or other form of security that is acceptable to the Director, in an amount required to complete the installation of the encroachment remove the encroachments, and restore the public right-of-way to a condition satisfactory to the Director based on a cost that the City Engineer determines. The permittee shall provide evidence to the Department that the bond or other security is operative on an annual basis.

      (3)   For an encroachment with construction costs equal to or greater than $50,000, the Director may require the recipient of a minor encroachment permit or the owner of real property adjacent to an authorized Tier 1 Project to furnish evidence of an insurance policy that is satisfactory to the City’s Risk Manager. Such insurance shall in no way relieve or decrease a permittee’s or its agents’ obligation to indemnify the City under this subsection (d).

   (f)   Recordation. Each permit issued under the provisions of this Section 723.2 shall not become effective until the permit has been signed by the permittee or the permittee’s authorized agent and, where the permittee owns the property adjacent to the encroachment, a copy thereof has been recorded in the office of the Assessor-Recorder. The Department, in the Department’s sole authority, may require the owner of the real property adjacent to a Tier 1 Project who is the registrant of the Tier 1 Project to record in the office of the Assessor-Recorder the owner’s acknowledgment of the owner’s liability for any injury or Claims, as defined in Section 723.2(e)(1), caused by the Tier 1 Project.

   (g)   Revocation.

      (1)   The Director is authorized to initiate proceedings to revoke the permit or authorization of a minor encroachment upon the Director’s determination that a permittee, steward, or owner of real property adjacent to the minor encroachment has failed to comply with the any of the Conditions of Approval; that a minor encroachment, whether or not it is associated with an issued permit, poses a threat to public safety, health, or welfare; or that all or a portion of the public right-of-way on which a minor encroachment is located is required for a different public purpose. To initiate revocation proceedings, the Director shall provide the permittee, the adjacent property owner, and the steward, if applicable, with written notification of the time and date of a public hearing to consider the grounds for revoking, modifying, or suspending the minor encroachment permit or, as may be applicable, the City’s authorization of an encroachment without issuance of a permit. This notification may include requirements that would apply to restoration of the public right-of-way as set forth in Section 723.2(g)(2). Following the public hearing, the Director may issue an order revoking or modifying the minor encroachment permit and/or authorization of a minor encroachment for good cause. If the failure to comply with the Conditions of Approval poses an imminent threat to public safety, health, or welfare, the Director shall immediately suspend the minor encroachment permit or authorization of a minor encroachment pending a final decision to revoke or modify the minor encroachment permit or authorization of a minor encroachment. The Director’s modification, revocation, or suspension of a minor encroachment permit or authorization of a minor encroachment may be appealed under subsection (g).

      (2)   Following the revocation of a minor encroachment permit or authorization of a minor encroachment, the former permittee, the owner of real property formerly authorized to place a Tier 1 Project on the sidewalk adjacent to the owner’s real property, or the steward, as may be applicable, shall restore the public right-of-way to a condition satisfactory to the Director at the sole and absolute expense of the former permittee, the owner of real property formerly authorized to place a Tier 1 Project on the sidewalk adjacent to the owner’s real property, or the steward, as may be applicable.

   (h)   Appeals. Within 15 days following the Director’s approval, denial, or revocation of a minor encroachment permit or revocation of the authorization of a minor encroachment, any person may file a notice of appeal as follows:

      (1)   Appeals of the revocation of the authorization of a minor encroachment or the revocation or denial of a permit issued by the Director for encroachments that impede or otherwise impact the Central Subway Corridor, as defined in Section 723.3(a)(3) of this Code, subsidewalk encroachments below the public right-of-way or other encroachments in, on, and/or below the public right-of-way may be appealed to the Board of Supervisors by filing a notice of appeal with the Clerk of the Board of Supervisors.

      (2)   Appeals of the approval, denial, or revocation of all other permits may be appealed by filing a notice of appeal with the Board of Appeals.

      (3)   In the alternative, when the encroachment is related to building construction, rehabilitation, or maintenance, any person may appeal the encroachment permit decision to the Building Inspection Commission. A person waives their right to appeal to the Building Inspection Commission encroachment permit decisions relating to building construction, rehabilitation, or maintenance by instead filing the appeal with the Board of Supervisors or the Board of Appeals. No encroachment permit decision may be appealed to both bodies.

   (i)   For purposes of this Section 723.2, an encroachment permit is related to building construction, rehabilitation, or maintenance when the object of the encroachment permit affects the applicant’s ability to construct, repair, or maintain the building.

   (j)   Pending decision by the Board of Supervisors, the Board of Appeals, or the Building Inspection Commission, the Director’s decision to approve, deny, or revoke a minor encroachment permit or to revoke the authorization of a minor encroachment shall be suspended.

   (k)   Before issuance of the permit, the applicant shall be required to pay to the Department all applicable fees as set forth in Section 2.1.1 et seq. and a public right-of-way occupancy assessment fee as set forth in subsection(l).1

   (l)   Nothing in this Section 723.2 shall be construed as authorizing the Director to grant a permit for any encroachment which the Director determines to be inimical to the health, welfare, safety, and best interest of the general public, or in violation of the Charter or laws of the City or laws of the State of California.

   (m)   The Board of Supervisors, the Board of Appeals, or the Building Inspection Commission may affirm, reverse, or modify any permit decision made by the Director under the provisions of this Section 723.2. The decision by the Board of Supervisors, the Board of Appeals, or the Building Inspection Commission is final.

   (n)   Unless otherwise provided in the Section 723.2, the Department shall collect a public right-of-way occupancy assessment fee for the use of the sidewalk or other public right-of-way space permitted under the provisions of this Section 723.2.

      (1)   In accordance with this subsection (n) the public right-of-way occupancy assessment fee for minor encroachments, whether permitted or unpermitted and as specified in subsection (n)(2), shall be an annual fee of $3 per square foot of occupancy of the sidewalk or other public right-of-way space. For purposes of calculating the assessment fee, the Department shall charge no less than $100 per year even though the calculated square footage charge for the encroachment may result in a smaller assessment fee.

      (2)   The following categories of minor encroachments are subject to the public right-of-way occupancy assessment fee:

         (A)   Encroachments in, on, above, or below the public right-of-way that are affixed or appurtenant to any building whose owner obtained a site permit for new construction on or after August 29, 2005. This subsection (n)(2)(A) also shall apply to any commercial, industrial, or mixed-use building whose owner obtained a site permit for new construction prior to August 29, 2005; provided, however, that such building is not located in any Neighborhood Commercial District as designated in Planning Code Article 7 and that the encroachment associated with such building was installed or encroachment permit obtained prior to August 29, 2005. This subsection (n)(2)(A) shall specifically include, but not be limited to, doors that open over the public right-of-way and subsidewalk basements; provided, however, that this subsection shall exclude encroachments for shoring and tiebacks. This subsection (n)(2)(A) shall not apply to a building that has been converted from a commercial, industrial, or mixed-use building into a building containing only residential use.

         (B)   Encroachments associated with a commercial, industrial, or mixed-use building that change the vertical or horizontal plane of an existing sidewalk and modify the existing sidewalk slope pattern in order to provide access necessary to comply with the Americans with Disabilities Act; provided, however, that the building obtained a site permit for new construction on or after August 29, 2005.

         (C)   Any enclosure of the public right-of-way that is used exclusively for private benefit and was installed on or after August 29, 2005. This subsection (n)(2)(C) also shall apply to any enclosure installed prior to August 29, 2005 that is associated with a commercial, industrial, or mixed-use building; provided, however, that the building is not located in any Neighborhood Commercial District as designated in Planning Code Article 7.

         (D)   Underground storage tanks.

      (3)   For purposes of subsection (n)(2), the term “site permit” also shall mean “building permit.”

      (4)   Notwithstanding subsection (n)(2), no public right-of-way occupancy assessment fee shall be charged against the owner of an historic or architecturally significant building who has installed or seeks a permit to install a minor sidewalk encroachment for the sole purpose of conforming with an applicable Municipal Code requirement; provided, however that this exception shall not apply if the encroachment is a sub-sidewalk basement. For purposes of this subsection (n)(4), an historic or architecturally significant building shall be a building so designated pursuant to Planning Code Article 10 or specifically identified as an architecturally significant building on the Planning Department’s database or on a list maintained by the Planning Department.

      (5)   Notwithstanding subsection (n)(2), no public right-of-way occupancy assessment fee shall be charged against the owner of a property for elements installed as a requirement under Planning Code Section 138.1.

      (6)   Notwithstanding subsection (n)(2), if a minor encroachment permit is necessary for the development of a project including residential units, all of which are affordable to low- or moderate-income households as defined by the United States Housing and Urban Development Department, then such project shall be exempt from payment of the public right-of-way occupancy assessment fee.

      (7)   The public right-of-way occupancy assessment fee shall be subject to the review and adjustment procedures as set forth in Sections 2.1.1 et seq.

      (8)   The public right-of-way occupancy assessment fee shall not be charged to any federal, state, or local governmental agencies, commissions, or departments.

      (9)   Notwithstanding this subsection (n), the public right-of-way assessment fee for underground vaults shall be as specified in Section 2.1.1 et seq.

      (10)   Notwithstanding subsection (n)(2), no public right-of-way occupancy assessment fee shall be charged for pipelines or other portions of an alternate water source system constructed within the public right-of-way for the purposes set forth in Article 12C of the Health Code and in accordance with Health Code Section 12C.6.

      (11)   Notwithstanding subsection (n)(2), no public right-of-way occupancy assessment fee shall be charged to an owner of property that obtains a minor encroachment permit to construct and maintain a floodwater management project that is located in public rights of way and funded with San Francisco Public Utilities Commission grant funds.

      (12)   Notwithstanding subsection (n)(2), no public right-of-way occupancy assessment fee shall be charged for a Tier 1, Tier 2, or Tier 3 Project.

   (o)   Notwithstanding the fees specified in this Section 723.2, if a project involves voluntary seismic retrofit upgrades to soft-story, wood-frame buildings, as defined by the Director of the Department of Building Inspection, such project applicant shall be exempt from the proportionate share of fees specified under this Section 723.2 and Sections 2.1.1 et seq. that is related to such retrofit work.

   (p)   The Director may issue regulations setting forth standard design, safety, and operating requirements for minor encroachment permits (“Regulations”) consistent with the Public Works Code. The Director may, in the Director’s discretion, require an encroachment agreement that provides additional detail on the permittee’s rights and obligations under a minor encroachment permit, including maintenance of the encroachment, and establishes the regulatory relationship between Public Works and the permittee for implementation of the permit.

(Added by Ord. 391-81, App. 7/3/81; amended by Ord. 474-97, App. 12/23/97; Ord. 244-00, File No. 001354, App. 10/27/2000; Ord. 179-05, File No. 050986, App. 7/29/2005; Ord. 57-06, File No. 060081, App. 3/31/2006; Ord. 165-07, File No. 070452, App. 7/20/2007; Ord. 48-09, File No. 081598, App. 4/2/2009; Ord. 209-09, File No. 090934, App. 9/25/2009; Ord. 54-10, File No. 091113, App. 3/19/2010; Ord. 77-10, File No. 091165, App. 4/16/2010; Ord. 248-10, File No. 100757, App. 10/14/2010; Ord. 310-10, File No. 101194, App. 12/16/2010; Ord. 109-15 , File No. 150350, App. 7/2/2015, Eff. 8/1/2015; Ord. 183-15 , File No. 150758, App. 10/16/2015, Eff. 11/15/2015; Ord. 6-17, File No. 161081, App. 1/20/2017, Eff. 2/19/2017; Ord. 252-23, File No. 230768, App. 12/19/2023, Eff. 1/19/2024)

CODIFICATION NOTE

1.   So in Ord. 252-23.