Land-use planning in America is a relatively new phenomenon, and San Francisco was the first city in the country to try zoning—an 1867 law prohibited development of slaughterhouses and similar noxious facilities in certain geographic districts. This preventative, rather than curative law set the stage for further development of a system of regulation for how we use our land. In 1877, the United States Supreme Court verified the basic principle:
When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.”
As population and cities grew, it soon became apparent that a whole family of tools to guide growth were required. In 1907, the first official permanent town-planning board—the Hartford Commission on a City Plan—was established in Connecticut. By 1913, 18 American cities had planning boards. The purpose of these early boards was to sponsor development of city plans, oversee their execution, and to generate public support for the attendant necessary public works. The plans—and the planning boards—focused almost exclusively on public property and public facilities. Gradually, necessity backed by a series of court decisions led municipalities to expand their regulation to private land and development as well.
In terms of the issue at hand, the biggest change came in 1928 when Secretary of Commerce Herbert Hoover published the Standard City Planning Enabling Act, promoting zoning. In a last-minute bureaucratic scuffle, the act suggested that a semi-independent planning commission oversee the plan and the planning staff, rather than the local legislative body. The purpose and the effect of the citizen planning commission enshrined by this conservative law was to weaken planning by making it an adjunct rather than core function of city government.
In San Francisco, until the new 1996 Charter (which SPUR had a major hand in crafting), it was the Planning Commission—not the Board of Supervisors—that adopted the General Plan of the City and County. Now it must be adopted by both the Planning Commission and the Board of Supervisors, with the intention that it be a clear reflection of the public goals and objectives of the electorate. All rezonings and height-limit changes must be approved by the Board. Thus, the Board has broad authority to set land-use policy both for the city as a whole and for each neighborhood. But, until recently, implementation of those policies has rightfully been exercised by the Planning Commission and Planning Department.
But since the supervisorial election of 2000, we have seen the emergence of open warfare between the executive and legislative branches of government. Without ascribing blame, the result has been disastrous for the planning function and thus for the very future of the city.
The effect is that the Supervisors, unknowingly, are altering the direction American planning has taken since 1928 by taking on the duties and rights of the Planning Commission by assuming both policymaking and implementation in the context of project-by-project decisionmaking.
As a professional planner, I should be quite happy to see planning assume its rightful position as an integral component of government. But that is not what is happening. Instead the Board has set itself up to second-guess Commission decisions. This is a reflection of pressure from the fraction of the electorate that elected each of them, who in many cases are simply NIMBYs (“Not In My Backyard”s). The effect is increased uncertainty for the provision of housing—which is guaranteed to drive housing prices further skyward at the end of the recession.
This is ironic because we currently have the best Planning Commission we have had in years.
In the March, 2002 election, the voters approved (and SPUR opposed) Prop. D, which split the appointments to the Planning Commission between the mayor and the supervisors. At the time, SPUR predicted a war between the mayoral appointees and the supervisoral appointees. In fact this has not happened. Supervisor Ammiano in particular did an excellent job by setting up a broad-based public committee, vetting candidates on their qualifications, and making a balanced group of appointments. Prop. D has been a success and we have a Planning Commission that is professional, functional, respectful of each other and the public, and “gets it.” They understand their job is not to look backward but in fact to plan for our changing city.
At the time they put it on the ballot, the supervisors pledged that once the new “balanced” planning commission was in place, they would stop interfering with its functions. Yet, despite that pledge, into this atmosphere of forward-looking harmony the Supervisors have inserted themselves time and again with the effect of opposing what have to be the eventual interests of their constituents by bowing to the always-present vocal opposition who oppose any change any where any time. Here’s just some of the things they have done…
Conditional Use Appeals. Until 2001, conditional use approvals (the means by which the Planning Commission considers most medium to large-scale projects) were appealable to the Board of Supervisors only by a petition signed by the owners of 20% of the property within 300 feet of the development site. These appeals were rarely and seldom successful, since the vote of 8 of 11 supervisors was necessary to overturn the Commission or impose different conditions on the permit. However, less than six months after taking office after the 2000 election, the Board amended the Planning Code to permit any 5 supervisors to sign the appeal petition. At the time, members of the Board stated publicly that this was designed as a temporary fix until a system was in place whereby tenants as well as owners within 300 feet could appeal conditional use decisions.
Two years have passed and no effort has been made to draft legislation giving tenants equal appeal rights as owners. Instead, appeals to the board through the signature of five supervisors have become the normal course of events for conditional use project with any neighborhood opposition.
Typically, the board holds several hearings over an extended period of time, forces concessions out of projects that endanger their feasibility, and impose conditions far beyond what any developer would reasonably foresee at the beginning of a development project. This process escalates the risk for housing projects and injects high uncertainty into the process, two things developers need to avoid.
Site Specific Rezonings. For myriad reasons, the city has not done a good job of undertaking pro-active neighborhood planning efforts and the rezoning necessary to carry out neighborhood plans. Those reasons include an underfunded long-range planning division in the Planning Department and the substantial costs to the city of preparing the EIRs state law mandates before any rezoning can occur. The city is addressing those issues, but in the meantime, there has not been a major rezoning effort anywhere in the city since the 1980s, and in most areas since the 1950s. It is at least another year or two before the Better Neighborhoods and Eastern Neighborhoods plans are finalized and new zoning is in place.
In the meantime, many projects that respond to current plans and current needs are not consistent with the underlying zoning. The only way such a project can proceed is to seek a specific rezoning or height limit change for its specific site. And all such rezonings must be enacted by the Board of Supervisors, following a recommendation by the Planning Commission. A majority vote of the Board is needed to enact these rezonings, such that any six supervisors can block these projects. A far better process would be for the Board of adequately fund the Planning Department and neighborhood-wide EIRs so that neighborhood-wide rezonings, not site specific ones, are considered by the Board in the context of the broad policy decisions they should be considering.
How ironic it is. Here we are, with a Planning Commission doing an excellent job of just what they should be doing. And progressive district Supervisors attempting to be in touch with the electorate, going into unknown territory.
Environmental Review Appeals. The article “More CEQA Delays?” by Andrew Junius (p.16) deals with an important state law change. This is new territory. The Board must have the discipline to exercise its CEQA appeal powers responsibly, so that political or planning policy opposition to housing projects does not become an excuse for turning down perfectly adequate analyses of those projects’ environmental impacts. In general, the Board should summarily dismiss these appeals, unless the appellant can produce real evidence of environmental damage that has not been analyzed in the CEQA document.