Welcome to the Horror of Discretionary Review

Discretionary Review is a San Francisco process in which your neighbors can decide how you will or will not remodel your house. I know that sounds a little bit harsh, but CW Nevius of the SF Chronicle has a great article today about how horrible the discretionary review process in San Francisco can be, and the impact it has on law-abiding and well-meaning citizens who are attempting to remodel their home.

CW’s article gives a good, simple definition of discretionary review in San Francisco:

In simplest terms, discretionary review means that neighbors can object to changes in their neighborhood if a project is deemed to be “exceptional and extraordinary” and get a hearing before the City Planning Commission – even if city planners have approved the project.

And the “exceptional and extraordinary” definition came into play only recently, before which a neighbor could object for pretty much any reason, ensuring that the permits for your building project would be tied up in a byzantine and almost never-ending bureaucratic city process for years. And it would also ensure that you would end up spending thousands, and often hundreds of thousands, of extra dollars on attorneys and other specialists to justify your design to a fickle and wildly inconsistent planning commission in a public hearing.

The horror stories about discretionary review abound, but here are two simple ones from CW’s article:

Everyone has a horror story. There was a discretionary review filed by a neighbor against a new backyard deck because the neighbor feared the deck would lead to the use of a grill, and those fumes would waft over their house.

Architect Cassandra Mettling-Davis was an advocate of discretionary review until she was entangled in a contentious review that saw her client asking to move a backyard deck 6 feet farther away from the neighbor’s property line. Mett-ling-Davis battled the review for three months, costing her client thousands of dollars. “The neighbor withdrew the DR half an hour before it went before the (Planning) Commission,” Mett-ling-Davis said.

The San Francisco planning department in 2010 made changes to the discretionary review process which included:

  • Strengthen pre-application meeting requirements, broaden the project types that require pre-application, and make consistent the scope and type of information exchanged at those meetings to improve communication between project sponsors and their neighbors;
  • Specify a 24-month (2-year) trial period, and at the 18-month point initiate a public evaluation of the efficacy and effectiveness of the reforms, and at the two year mark, the Commission would continue, modify, or discontinue the policy.
  • Improve the Department’s internal design review process to provide balanced, transparent, and consistent application of the Planning Code and design standards;
  • Improve public information about the Discretionary Review process in general, and provide access to project-specific information on-line;
  • Define “exceptional and extraordinary circumstances” in the context of Discretionary Review;
  • Use the definition of “exceptional and extraordinary circumstances” to allow only those projects that could meet exceptional and extraordinary standards to proceed to a Commission hearing (applications where the standard was not met could be appealed to the Board of Appeals);
  • Ensure that cases heard by the Commission are identified either as one-of-a-kind, or a representative of a policy issue that should be incorporated into design standards;
  • Offer interested parties the option of “Reconsideration” whereby they can request that the Department can be requested to re-examine a project without having to find exceptional and extraordinary circumstances, if it is believed that the Department made an error. If the Department misapplied the Planning Code or design standards, the project would be modified and the $300 fee would be refunded to the requestor;
  • Adopt timelines for review, response and hearing of Discretionary Review requests; and
  • Specify a 24-month (2-year) trial period, and at the 18-month point initiate a public evaluation of the efficacy and effectiveness of the reforms, and at the two year mark, the Commission would continue, modify, or discontinue the policy.

While these are all good reforms, any further changes to the discretionary review process require action by the city Board of Supervisors. Which so far has been unable or unwilling to show leadership on this important issue.

In today’s chronicle article, CW Nevius makes the point that families leave San Francisco because of nightmares that have occurred in the discretionary review process. Its a valid point, and one that San Francisco should address before it is too late.

Comments

  1. Paulo says

    “because the neighbor feared the deck would lead to the use of a grill, and those fumes would waft over their house.” Sounds frivolous, unless that deck was built right next to your windows?

    • Matt Fuller, GRI says

      Paulo,

      I still think it sounds frivolous. I don’t know of anyone who places their grill immediately under someone else’s window, even if the deck extends underneath such a window. I also don’t know of anyone who grills 24/7. My stove exhaust hood vents to a light well that is shared with a neighboring house, so when I cook they can smell what I’m cooking. Should they have the right to remove my kitchen, or even force me to spend thousands of extra dollars to have it vent somewhere else? What if having it vent somewhere else isn’t technically feasible?

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