planning ahead
Legalizing an Illegal Unit
by M. Brett Gladstone
Perhaps you bought a building with an unwarranted unit, or possibly your building had underutilized space you have since put to a higher and better use as a dwelling unit. Now a tenant, neighbor or building inspector is demanding that you show the unit is legal. Often that will mean “legalizing” your unit; to put it another way, you will need to seek retroactive approval of a unit or habitable space built without benefit of permits and inspections. Legalizing an illegal unit requires a step-by-step analysis of various aspects of the Planning, Building and Housing Codes.
First, and most obviously, you should request a copy of all permits and plans held in the files of the Department of Building Inspection. You also need to request all records held by the Technical Services Division, which maintains DBI’s microfilm records. Even though the Technical Services Division should have a copy of all records on your property, it is likely that it has only some of your property’s records. If you have an apartment building (defined as three or more units) you should also go to the Housing Inspection Division and review its file for your property. The best-case scenario is to find that the unit was built with permits and your problem is resolved. More often than not, one will find that the habitable space was built with permits, but only as additional living space for a different, legal unit, which means you will still be seeking to legalize the space as a separate unit.
Assuming that the unit was not permitted as a separate dwelling unit, you now need to check the local zoning for the district to determine if the space can be legalized. San Francisco zones its neighborhoods to allow residential units in some areas, but to reserve other areas exclusively for commercial or industrial uses. It is generally difficult to gain approval of residential space in areas not zoned for residential purposes.
Residential zoning is further categorized by how many units may be maintained on a particular lot. In limited instances in RH-1 districts, where only single-family residences are allowed, the Planning Code provides for legalization of a second unit, though these second units are not generally encouraged. Consultation with an expert in the Planning Code may be needed.
Besides zoning, the Planning Code also contains other requirements for dwelling units in order to assure that the space meets standards for habitability and is not a burden on the neighborhood. Issues related to habitability that the Planning Code regulates include the size of the open space associated with the unit and the amount of window exposure the unit has to exterior open space. The City generally does not approve permits to legalize units that do not have sufficient light and air.
The main neighborhood concern, besides zoning density, is that the unit has at least one dedicated off-street parking space, so that the demand for on-street parking is not intensified. You may be able to obtain a variance from the Planning Department’s Zoning Administrator. A variance is the grant of an exemption from the strict application of the code due to practical difficulty or unnecessary hardships in meeting the literal requirements of the code. You cannot get a variance to waive height limits or the restrictions on the numbers of units per lot. Should the Zoning Administrator deny your application for a variance, you may appeal the denial to the Board of Appeals. (See the “Planning Ahead” article in this magazine from October 2007 for issues related to the Board of Appeals.)
Before you proceed to legalize under the Planning Code, you also need to consider whether your space meets Building and Housing Code requirements. The Building and Housing Codes contain provisions that assure fire safety and further assure habitability. The unit will need to have the necessary fire egress routes and fire-rated construction. The unit may also trigger heightened sprinkler and fire alarm requirements, especially if the unit adds another floor of occupancy to the building. It is extremely rare that a building would need a seismic upgrade. For habitability, the Building Code provides for minimum ceiling heights and a fixed source of heat, among other requirements.
Should your unit not meet the letter of the Building Code in the above issues, you may be able to obtain an “equivalency” by providing the equivalent amount of fire protection or habitability in another manner (such as sprinklers in lieu of a second means of egress). DBI has the authority to grant equivalencies. Should DBI deny your application for an equivalency, you may appeal the denial to the Board of Examiners. (See the same October 2007 article for issues related to appeals to the Board of Examiners.)
Should you not be able to obtain a permit for your unit as a “dwelling unit,” you may be able to legalize the space as another type of housing. The Planning Code provides for living space dedicated for use as group housing or senior housing. Group housing, generally speaking, can be housed in buildings that also contain dwelling units. Depending on your building’s residential zoning district, group housing can be permitted only with a conditional use authorization or not permitted under any circumstance.
Senior housing, on the other hand, is permitted in all residential districts of the city. This type of housing, however, can only be located in buildings dedicated exclusively for residential use by seniors, because the California Supreme Court has ruled that concerns about age discrimination arise when “seniors only” housing is maintained in buildings that also contain unrestricted dwelling units. You will likely need to file a notice of special restriction against your property, warning any potential buyer that the building may only be used for senior housing. Buildings with senior-only housing are allowed double the amount of units on a particular lot than if the lot contained unrestricted dwelling units.
The Planning Code also allows for dwelling units to exist in districts that prohibit residential use if: the dwelling unit is dedicated to housing artists, artisans or craft persons (in this case, the space must be necessary and integral to the art or craft workspace otherwise occupying the building); the residential use occurs in a San Francisco City Landmark; or the unit is a “caretaker” unit to house the building’s caretaker and his or her family.
Lastly, in legalizing your illegal unit, you may be required to notify your neighbors, because any change in use or change in the number of dwelling units of a residential building triggers neighborhood notification requirements. Neighbors are provided notification so that they have an opportunity to voice their opinion as to the effect of the legalization on the neighborhood. Most often, they will object to the lack of an off-street parking space. So not only will you need to convince city officials of the wisdom of permitting your otherwise unpermitted unit, you may need to lobby your neighbors as well.
It may seem counterintuitive that the city’s bodies, so focused on creating more small units (which tend to be more affordable), should enact so many impediments to legalization. But with some diligence, insight and good, professional advice, you may be able to legalize your illegal unit.
The opinions expressed in this article are those of the author, and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. The information within this article is general in nature. Consult an attorney for any specific problem. M. Brett Gladstone is a partner in the San Francisco real-estate law firm of Gladstone & Associates and can be contacted at 415-434-9500. Copyright © 2008 by Black Point Press. All rights reserved.