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San Francisco government loves public participation and transparency, and nowhere is that more evident than in the Planning Department—or more abused. Today Curbed University is tackling the dreaded, fear-inducing, spine-tingling Discretionary Review. Conceptualized as a checks-and-balances process for the public to participate in planning review, DR has been wildly abused by NIMBYs and feuding neighbors hellbent on stopping projects.
What is DR?
According to the Planning Department: "Discretionary Review (DR) is the authority of the Planning Commission to review projects that comply with the San Francisco Planning Code and take action if it is found that the case demonstrates an exceptional and extraordinary circumstance. Currently anyone can file a DR Application on any building permit, and have that project brought before the Planning Commission for a public hearing and review." So basically the Planning Department staff reviews and approves basic building permits, but if a DR is filed, the permit is brought before the Planning Commission to see if the residential design guidelines were interpreted correctly by the department.
When is it Used?
DR is supposed to be used only when there are "exceptional and extraordinary circumstances" involved. For a long time "exceptional and extraordinary circumstances" weren't defined which lead to some major reaching by DR applicants, but with some reform policies proposed in 2009/2010, it was defined as: ""Exceptional and extraordinary circumstances occur where the common-place application of adopted design standards to a project does not enhance or conserve neighborhood character, or balance the right to develop the property with impacts on near-by properties or occupants. These circumstances may arise due to complex topography, irregular lot configuration, unusual context or other conditions not addressed in the design standards." While this is definitely an improvement over no definition, the whole "impacts on near-by properties or occupants" is still a little wishy-washy and leaves wide open spaces for interpretation. You know when it CAN'T be used? When it blocks your view. Newsflash to all future DR applicants – views are not protected by the Planning Code, unless they are public views from public locations (like public rights-of-way, scenic vistas, and public open spaces). The view from your living room or backyard sure doesn't count.
Some examples of DR issues What's the Problem?
Well, pretty much anyone can file a DR and it has to go all the way to the Planning Commission. This is usually a disgruntled neighbor who doesn't like some aspect of the project, even though it conforms the Planning Code and has been approved. Instead of the burden of proof that the project is non-conforming lying on the DR applicant BEFORE it goes to hearing, it automatically gets put on the agenda. That's why most DR agenda items come with a Planning Department staff recommendation of "Do not take Discretionary Review and Approve." Project sponsors have to pay for the hearing, for notification costs, and for Planning staff time – which can add up to some crazy delays and costs – not to mention a massive waste of time for the Planning Commission, who have bigger fish to fry than whether your neighbor's third-floor addition will block the view out of your guest bedroom.
How to Avoid It
Part of the DR reform was to require a pre-application meeting, where you as the project sponsor meet with your neighbors to present your ideas and get their feedback on any concerns or issues. Ideally, this way you can tweak your design to steer clear of any battles and avoid DR altogether. Unfortunately, it doesn't always work out that way, as many folks like to file for DR even after lots of neighborhood meetings (this third-story addition in Buena Vista Park, this new construction in the Outer Sunset, this third-story addition in Pac Heights for example?ironically all those DR requesters were neighbors concerned about the height even though they currently have taller buildings).
Will the Reform Help?
It should – if it would ever go into effect. The Planning Commission approved the reforms back in 2010, but the Board of Supervisors had the final word and decided to wait for a year?yeah, it's now 2013. In the meantime, the Planning Department issued some Interim DR procedures.