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ARTICLE 1.7: COMPLIANCE

Sec. 170. Applicability of Requirements.

Sec. 171. Compliance of Uses Required.

Sec. 172. Compliance of Structures, Open Spaces and Off-Street Parking and Loading Required.

Sec. 173. Compliance of Lots Required.

Sec. 174. Compliance with Conditions, Stipulations and Special Restrictions Required.

Sec. 175. Approval of Permits.

Sec. 175.1. Transitional Interim Extension of Planning Code Provisions for Permits Approved Prior to Adoption of Amendments Implementing the Downtown Plan.

Sec. 175.2. Exemption from Application of Amendments Implementing the Downtown Plan.

Sec. 175.3. Exemption of the Yerba Buena Center Redevelopment Project Area.

Sec. 175.4. Exemption of the Rincon Point Subarea of the Rincon Point-South Beach Redevelopment Area.

Sec. 175.5. Transitional Extension of Interim Planning Code Provisions for Projects Approved Prior to Adoption of Amendments Implementing the Neighborhood Commercial Rezoning Proposal.

Sec. 175.6. Effective Date of South of Market Zoning Control Amendments.

Sec. 175.7. Exemption from Application of Amendments Implementing the Rincon Hill DTR District.

Sec. 176. Enforcement Against Violations.

Sec. 176.1. Administrative Enforcement Procedures.

Sec. 178. Conditional Uses.

Sec. 179. Uses Located in Neighborhood Commercial Districts.

Sec. 180. Nonconforming Uses, Noncomplying Structures and Substandard Lots of Record: General.

Sec. 181. Nonconforming Uses: Enlargements, Alterations and Reconstruction.

Sec. 182. Nonconforming Uses: Changes of Use.

Sec. 183. Nonconforming Uses: Discontinuance and Abandonment.

Sec. 184. Short-Term Continuance of Certain Nonconforming Uses.

Sec. 185. Continuance of Other Nonconforming Uses.

Sec. 186. Exemption of Limited Commercial and Industrial Nonconforming Uses.

Sec. 186.1. Exemption of Nonconforming Uses in Neighborhood Commercial Districts.

Sec. 186.2. Exceptions for Pre-existing Structures in Neighborhood Commercial Districts From Certain Limitations on Upper-Story Uses Imposed Under Article 7.

Sec. 187. Garment Shops and Garment Factories as Nonconforming Uses.

Sec. 187.1. Service Stations and Gasoline Stations as Legal Nonconforming Uses.

Sec. 188. Noncomplying Structures: Enlargements, Alterations and Reconstruction.

Sec. 189. Substandard Lots of Record: Construction and Other Actions.

SEC. 170. APPLICABILITY OF REQUIREMENTS.

In their interpretation and application, the provisions of this Code shall be held to be minimum requirements. This Code is not intended to repeal, abrogate, annul or in any way impair or interfere with any existing provisions of law, ordinance or the San Francisco Municipal Code, except such as are specifically repealed by this Code; provided, however, that where this Code imposes a greater restriction upon any use, activity or feature, or with respect to any land or structure, than is imposed or required by such existing provisions of law, ordinance or the Municipal Code, the provisions of this Code shall control.

(Added by Ord. 443-78, App. 10/6/78)

SEC. 171. OF USES REQUIRED.

Except as otherwise provided in this Code, structures and land in any district shall be used only for the purposes listed in this Code as permitted in that district, and in accordance with the regulations established for that district. A Permit of Occupancy shall be issued by the Department of Public Works (Central Permit Bureau) to the effect that the use or proposed use of a structure or land conforms to the provisions of this and related ordinances, prior to the occupancy of any structure erected, enlarged or structurally altered, or where any vacant land is proposed to be occupied or used except for permitted agricultural uses. Such a permit shall also be issued whenever the use of any structure or land is proposed to be changed from a use first permitted in any district to a use that is more widely permitted by the use districts of the City. Upon written request from the owner, such a permit shall also be issued covering any lawful use of a structure or land existing on the effective date of this Code, including nonconforming uses.

(Added by Ord. 443-78, App. 10/6/78)

SEC. 172. OF STRUCTURES, OPEN SPACES AND OFF-STREET PARKING AND LOADING REQUIRED.

(a) No structure shall be constructed, reconstructed, enlarged, altered or relocated so as to have or result in a greater height, bulk or floor area ratio, less required open space as defined by this Code, or less off-street parking space or loading space, than permissible under the limitations set forth herein for the district or districts in which such structure is located.

(b) No existing structure which fails to meet the requirements of this Code in any manner as described in Subsection (a) above, or which occupies a lot that is smaller in dimension or area than required by this Code, shall be constructed, reconstructed, enlarged, altered or relocated so as to increase the discrepancy, or to create a new discrepancy, at any level of the structure, between existing conditions on the lot and the required standards for new construction set forth in this Code.

(c) No required open space, off-street parking space or loading space existing or hereafter provided about, in or on any structure shall be reduced below the minimum requirements therefor set forth in this Code, or further reduced if already less than said minimum requirements. No required open space, off-street parking space or loading space existing or hereafter provided for a structure or use and necessary to meet or meet partially the requirements of this Code for such structure or use shall be considered as all or part of the required open space, off-street parking space or loading space required for any other structure or use, except as provided in Section 160 for the collective provision or joint use of parking.

(d) Existing live/work units, or those newly created or expanded within the existing exterior walls of a structure, so long as they conform to all Building Code requirements, shall not be considered an enlargement, construction, reconstruction, alteration or relocation for purposes of this Section.

(e) Any structure containing one or more live/ work units on the effective date of Ordinance No. 412-88 (effective October 10, 1988) must provide off-street parking for live/work units, but only to the extent of: (1) any off-street parking which existed on the lot on said effective date, and, in addition, (2) the amount of off-street parking which would be required for any increase in the number of live/work units within the structure since the effective date.

(Added by Ord. 443-78, App. 10/6/78; amended by Ord. 412-88, App. 9/10/88)

SEC. 173. OF LOTS REQUIRED.

(a) No lot shall be created or reduced so as to be smaller in dimension or area than allowed by this Code, or further reduced if already smaller in dimension or area than allowed by this Code, or created or modified so as to omit, remove or reduce the frontage or access required by this Code.

(b) No lot shall be created or reduced in relation to any structure thereon so as to produce a violation of any of the requirements of this Code, or be further reduced in relation to any structure thereon if already below such requirements in relation to such structure.

(Added by Ord. 443-78, App. 10/6/78)

SEC. 174. WITH CONDITIONS, STIPULATIONS AND SPECIAL RESTRICTIONS REQUIRED.

Every condition, stipulation, special restriction and other limitation imposed by administrative actions pursuant to this Code, whether such actions are discretionary or ministerial, shall be complied with in the development and use of land and structures. All such conditions, stipulations, special restrictions and other limitations shall become requirements of this Code, and failure to comply with any such condition, stipulation, special restriction or other limitation shall constitute a violation of the provisions of this Code. Such conditions, stipulations, special restrictions and other limitations shall include but not be limited to the following:

(a) Conditions prescribed by the Zoning Administrator and the City Planning Commission, and by the Board of Permit Appeals and the Board of Supervisors on appeal, in actions on permits, licenses, conditional uses and variances, and in other actions pursuant to their authority under this Code;

(b) Stipulations upon which any reclassification of property prior to May 2, 1960, was made contingent by action of the City Planning Commission, where the property was developed as stipulated and the stipulations as to the character of improvements are more restrictive than the requirements of this Code that are otherwise applicable. Any such stipulations shall remain in full force and effect under this Code;

(c) Special restrictions prescribed by the Zoning Administrator in actions on permits pursuant to the authority prescribed by this Code, and in the performance of other powers and duties to secure compliance with this Code.

(Added by Ord. 443-78, App. 10/6/78)

SEC. 175. APPROVAL OF PERMITS.

(a) No application for a building permit or other permit or license, or for a permit of Occupancy, shall be approved by the Department of City Planning, and no permit or license shall be issued by any City department, which would authorize a new use, a change of use or maintenance of an existing use of any land or structure contrary to the provisions of this Code.

(b) No such application, permit or license shall be approved or issued by any City department for the construction, reconstruction, enlargement, alteration, relocation or occupancy of any structure if the construction or other activities that would be authorized by the requested permit or license would not conform in all respects to this Code, or if the structure or any feature thereof is designed, constructed, arranged, maintained or intended to be used for a purpose or in a manner contrary to the provisions of this Code.

(c) No such application, permit or license shall be approved or issued by any city department for the construction, reconstruction, enlargement, alteration, relocation or occupancy of any land or structure if the lot on which the use or structure is or will be situated has been created, reduced or maintained contrary to the provisions in this Code. This prohibition shall apply to all lots involved in any change of lot lines that caused any of said lots to be created or reduced in dimension or area, or in relation to any structure thereon, contrary to the provisions of this Code, regardless of whether one or more of the lots involved remained in compliance with such provisions.

(d) Notwithstanding the limitations of Subsections (a), (b) and (c) of this Section, minor alterations, maintenance and repairs shall be permitted for any such structure where ordered by an appropriate public official to correct immediate hazards to health or safety, and only for that purpose.

(e) Permits for signs shall be further regulated by the provisions of Section 604 of this Code.

(Added by Ord. 443-78, App. 10/6/78)

SEC. 175.1. TRANSITIONAL INTERIM EXTENSION OF PLANNING CODE PROVISIONS FOR PERMITS APPROVED PRIOR TO ADOPTION OF AMENDMENTS IMPLEMENTING THE DOWNTOWN PLAN.

(a) Intent. It is the intent of this Section to provide for an orderly transition from prior zoning and planning requirements to the requirements imposed in implementing the Downtown Plan (Ordinance No. 414-85), without impairing the validity of prior actions by the City, or frustrating completion of actions authorized prior to the effective date of such Ordinance. This Section shall be construed liberally to accomplish its purpose.

(b) Effect of Amendments. Notwithstanding the provisions of Sections 175 or 302 or any other provision of this Code, but subject to the provisions set forth in the last sentence of this Subsection, any project that has received one or more approvals by the City Planning Commission or the Zoning Administrator, whether by approval of an application for a building permit, site permit, conditional use, variance, or other license (other than approvals that are required as part of the environmental review process), prior to the effective date of Ordinance No. 414-85, shall continue to be governed by the provisions of this Code in effect at the time of such approval; provided, however, that such permit or permit application is subject to any time limits imposed pursuant to the Building Code or as a condition of approval of the project. If the project has received more than one type of approval, the approval that is referred to herein is the first. The provisions of this Subsection shall apply to such project even if the project is modified, after the effective date of Ordinance No. 414-85; provided, however, that any modification resulting in a change of use or increase in square footage may be approved only as a conditional use by the City Planning Commission, and in no case may an increase of square feet in excess of 15,000 be allowed. Any project for which a public hearing was held on a Draft Environmental Impact Report prior to May 9, 1985 and for which Responses to Comments were published on or before July 1, 1985, which project receives its first approval by the City Planning Commission, as approval is described in this Subsection, after July 1, 1985, shall be subject to all of the provisions of Ordinance No. 414-85, other than Sections 320 through 324 (except that Section 321(a)(2) applies).

(c) Expiration. The exemption provided by this Section shall terminate with respect to a project (1) six months after the effective date of Ordinance No. 414-85, or (2) 24 months after the date of approval of the project (as the term "approval" is described in Subsection (b) above) or, if more than one approval has been given, of the first approval of the project, or (3) with respect to projects which are reconsidered by the City Planning Commission as a result of any administrative or judicial appellate process, 24 months after the date of the first hearing by the Commission regarding such reconsideration, whichever of Subsections (c)(1), (2) or (3) is later. The time periods provided in Subsections (c)(1) and (2) shall be tolled during any period in which the project sponsor was legally prevented from commencing or proceeding under the project approval due to court order, legislative moratorium, or other similar events. (Amended by Ord. 414-85, App. 9/17/85)

SEC. 175.2. EXEMPTION FROM APPLICATION OF AMENDMENTS IMPLEMENTING THE DOWNTOWN PLAN.

(a) Exemptions.

(1) The amendments to Section 124 of this Code contained in Ordinance No. 414-85 shall not apply to projects for the substantial rehabilitation and adaptive reuse of buildings designated as landmarks by the Board of Supervisors pursuant to Article 10 of this Code and for which a building permit application and an application for environmental review have been filed with the Department of City Planning prior to October 11, 1984.

(2) The amendments of this Code contained in Ordinance No. 414-85 shall not apply to:

(A) Integrated development projects involving the substantial rehabilitation and adaptive reuse of buildings designated as landmarks by the Board of Supervisors pursuant to Article 10 of this Code and for which a building permit application and an application for environmental review have been filed with the Department of City Planning prior to October 11, 1984. "Integrated development" means a project involving several buildings which are integrated with rehabilitation of a landmark designated pursuant to Article 10 of this Code and which are located on sites that, but for separations by a street or alley, are adjacent to such landmark; or

(B) The relocation, substantial rehabilitation and adaptive reuse of buildings designated as landmarks by the Board of Supervisors pursuant to Article 10 of this Code and for which an application for a certificate of appropriateness to demolish or relocate and an application for environmental review have been filed with the Department of City Planning prior to October 11, 1984.

(b) Conditional Use Requirement. Applications for a permit authorizing a project covered by Subsection (a) may be approved only as a conditional use. In addition to the criteria set forth in Planning Code Section 303, the City Planning Commission shall consider the provisions of Ordinance No. 414-85 insofar as they govern:

(A) Density, height, bulk and setbacks;

(B) Off-street loading facilities;

(C) Building appearance;

(D) Open space;

(E) Sunlight access;

(F) Pedestrian circulation;

(G) Streetscape; and

(H) Preservation of architecturally Significant and Contributory Buildings.

(Added by Ord. 414-85, App. 9/17/85)

SEC. 175.3. EXEMPTION OF THE YERBA BUENA CENTER REDEVELOPMENT PROJECT AREA.

The amendments of this Code contained in Ordinance No. 414-85, other than Code Sections 320 through 324, shall not apply in the Yerba Buena Center Redevelopment area as described in Ordinance No. 538-81. Provisions of this Code which, pursuant to the provisions of the Yerba Buena Center Redevelopment Plan, were applicable to the Yerba Buena Center Redevelopment area prior to the effective date of Ordinance No. 414-85 shall remain in full force and effect with respect to Yerba Buena Center Redevelopment area.

(Added by Ord. 414-85, App. 9/17/85)

SEC. 175.4. EXEMPTION OF THE RINCON POINT SUBAREA OF THE RINCON POINT SOUTH BEACH REDEVELOPMENT AREA.

The amendments of this Code contained in Ordinance No. 414-85 other than Code Sections 320 through 324 shall not apply in the Rincon Point Sub-area of the Rincon Point South Beach Redevelopment Area as described in Ordinance No. 50-84. Provisions of this Code which, pursuant to the provisions of the Rincon Point-South Beach Redevelopment Plan, were applicable to the Rincon Point Sub-area prior to the effective date of Ordinance No. 414-85 shall remain in full and effect with respect to the Rincon Point Sub-area of the Rincon Point-South Beach Redevelopment area.

(Added by Ord. 414-85, App. 9/17/85)

SEC. 175.5. TRANSITIONAL EXTENSION OF INTERIM PLANNING CODE PROVISIONS FOR PROJECTS APPROVED PRIOR TO ADOPTION OF AMENDMENTS IMPLEMENTING THE NEIGHBORHOOD COMMERCIAL REZONING PROPOSAL.

(a) Intent. It is the intent of this Section to provide for an orderly transition from prior interim zoning and planning requirements to the requirements imposed in implementing the Neighborhood Commercial Rezoning Proposal (Ordinance 69-87), without impairing the validity of prior actions by the City, or frustrating completion of actions authorized prior to the effective date of such Ordinance.

(b) Effect of Amendments. Notwithstanding the provisions of Sections 175 or 302 or any other provision of this Code, any project that has received either (1) a conditional use authorization on or before March 19, 1987, or (2) a conditional use authorization on or before April 16, 1987, which authorization was made contingent upon the adoption of an amendment to the provisions of the Planning Code regulating Neighborhood Commercial districts by the Board of Supervisors, shall continue to be governed by the restrictions set forth in interim Neighborhood Commercial zoning controls imposed by City Planning Commission Resolution No. 10779, and ratified by the Board of Supervisors on October 27, 1986, for purposes of receiving any demolition permit, building permit, site permit or other authorization necessary to achieve the project authorized pursuant to such conditional use authorization; provided, however, that any modifications in the project which exceed the scope of the conditional use authorization will be subject to any then-applicable laws.

(Added by Ord. 344-87, App. 8/21/87)

SEC. 175.6. EFFECTIVE DATE OF SOUTH OF MARKET ZONING CONTROL AMENDMENTS.

Any permit, including a building permit, site permit, police permit, conditional use, variance or other license, for property located in the South of Market Base District for which any application was filed prior to March 31, 1990 and approved by the Department of City Planning no later than December 31, 1990 shall be governed by the provisions of the City Planning Code in effect prior to adoption of the South of Market zoning control amendments to the Planning Code; provided, however, that such permit or permit application is subject to any City Planning Commission discretionary review policy in effect upon the date of application for any such permit; such permit is subject to any time limits imposed pursuant to the Building Code or as a condition of approval of the project; and further provided that modifications in the project which exceed the scope of such approval shall be subject to any then-applicable laws.

(Added by Ord. 115-90, App. 4/6/90)

SEC. 175.7. EXEMPTION FROM APPLICATION OF AMENDMENTS IMPLEMENTING THE RINCON HILL DTR DISTRICT.

(a) Exemptions. The amendments to this Code contained in this Ordinance shall not apply to projects only on Block 3747, Lots 001E, 002 and 006 for which an application for environmental review and a conditional use application have been filed with the Planning Department prior to March 1, 2003 and February 1, 2005, respectively, provided that such projects shall comply with the progress requirements and approval revocation provisions of Planning Code Section 309.1(e) as set forth in this Ordinance. Provisions of this Code (including, without limitation, the Zoning Maps) that were applicable to such exempt projects prior to the effective date of this Ordinance shall remain in full force and effect with respect to such exempt projects including, without limitation, provisions of this Code permitting conditional uses, variances, and other exceptions from the strict application of this Code.

(Added by Ord. 217-05, File No. 050865, App. 8/19/2005)

SEC. 176. ENFORCEMENT AGAINST VIOLATIONS.

(a) Violations Unlawful. Any use, structure, lot, feature or condition in violation of this Code is hereby found and declared to be unlawful and a public nuisance. Should any permit or license have been issued that was not then in conformity with the provisions of this Code, such permit or license shall be null and void.

(b) Methods of Enforcement. The Zoning Administrator shall have authority to enforce this Code against violations thereof by any of the following actions:

(1) Serving notice requiring the cessation, removal or correction of any violation of this Code upon the owner, agent or tenant of the property that is the subject of the violation, or upon the architect, builder, contractor or other person who commits or assists in such violation;

(2) Calling upon the City Attorney to maintain an action for injunction to restrain or abatement to cause the correction or removal of any such violation, and for assessment and recovery of a civil penalty for such violation as well as any attorneys' fees or costs, including but not limited to expert witness fees, incurred in maintaining such an action;

(3) Calling upon the District Attorney to institute criminal proceedings in enforcement of this Code against any such violation; and

(4) Calling upon the Chief of Police and authorized agents to assist in the enforcement of this Code.

(c) Penalties.

(1) Administrative Penalties. In the notice requiring the cessation, removal or correction of any violation of this Code, the Zoning Administrator may assess upon the responsible party an administrative penalty for each violation in an amount up to $250.00 for each day the violation continues unabated. The "responsible party" is the owner(s) of the real property on which the code violation is located, as listed in the records of the San Francisco Assessor, and the current leaseholder if different from the current owner(s) of the real property.

The responsible party may request a Zoning Administrator's hearing in order to show cause why the notice requiring the cessation, removal or correction of the violation and any assessment of administrative penalties is in error and should be rescinded. The Zoning Administrator may designate a member of Department staff to act as the hearing officer in his or her place. The Department shall send a notice of the date, hour, and place of the hearing to the responsible party at the address specified in the request for hearing and to any member of the public who has expressed an interest in the matter.

The responsible party may also request that the Zoning Administrator terminate abatement proceedings under Section 176 and refer the matter to the Director for enforcement action under the process set forth in Section 176.1 of this Code. If the Zoning Administrator determines that the enforcement case will proceed under Section 176, that determination shall be made as part of the final written decision and is not appealable separately from the decision on the merits.

The responsible party may waive the right to a Zoning Administrator's hearing and proceed directly to an appeal to the Board of Appeals under Section 308.2 of this Code. Administrative penalties shall not accrue during the period of time that the matter is pending before the Zoning Administrator on a request for hearing or before the Board of Appeals on appeal. If the responsible party elects to request a Zoning Administrator's hearing, the request for hearing must be in writing and submitted to the Zoning Administrator prior to expiration of the time for appeal of the Zoning Administrator's determination to the Board of Appeals. If a request for a Zoning Administrator's hearing is timely filed, any appeal to the Board of Appeals shall be from the decision of the Zoning Administrator rendered after the hearing.

The Zoning Administrator or the Zoning Administrator's designee, after a full and fair consideration of the evidence and testimony received at the hearing, shall render within thirty days following the conclusion of the hearing a written decision that either rescinds the notice of violation and dismisses the proceedings, upholds the original decision, or modifies the original decision. In rendering a decision, the Zoning Administrator or the Zoning Administrator's designee shall consider:

(A) whether the responsible party was properly identified;

(B) whether the accrual dates for the administrative penalties are accurate;

(C) the amount of documented staff time spent in order to secure abatement of the violation;

(D) the nature of the violation;

(E) the duration of the violation;

(F) efforts made by the responsible party to correct the violation;

(G) the impact of the violation upon the community;

(H) any instance in which the responsible party has been in violation of the same or similar laws at the same or other locations in the City and County of San Francisco;

(I) the responsible party's good faith efforts to comply;

(J) whether the violation is easy to correct; and

(K) such other factors as the Zoning Administrator or his or her designee may consider relevant.

In hearing any appeal of the Zoning Administrator's determination, the Board of Appeals shall consider the above factors. If the Board upholds the Zoning Administrator's decision in whole or in part but reduces the amount of the penalty, it may not reduce the amount of the penalty below $100.00 for each day that the violation exists, excluding the period of time that the matter has been pending either before the Zoning Administrator on a request for hearing or before the Board of Appeals on appeal.

The provision of administrative penalties is not intended to be punitive in nature but is intended to secure compliance with the Planning Code and to compensate the City for its costs of enforcement.

(2) Civil Penalties. Any individual, firm, partnership, corporation, company, association, society, group or other person or legal entity that violates any provision of this Code shall be liable for the City's costs of enforcement and a civil penalty, of not less than $200.00 for each day such violation is committed or permitted to continue, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the City and County of San Francisco by the City Attorney in any court of competent jurisdiction. The City Attorney may seek recovery of any attorneys' fees and costs, including but not limited to expert witness fees, incurred by the City in bringing such civil action. For civil actions to enforce Municipal Code provisions related to general advertising signs, the penalties, attorneys' fees and costs set forth in this Section 176 shall be in addition to those authorized by Section 610 of this Code.

(3) Criminal Penalties. Any individual, firm, partnership, corporation, company, association, society, group or other person or legal entity that violates any provision of this Code shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in an amount not less than $200.00 or be imprisoned for a period not exceeding six months or be both so fined and imprisoned. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder.

(4) Planning Code Enforcement Fund. Any fees and penalties collected pursuant to this Section 176 shall be deposited in the Planning Code Enforcement Fund established by Administrative Code Section 10.100-166. The Planning Department, through the Planning Code Enforcement Fund, shall reimburse City departments and agencies, including the City Attorney's Office, for all costs and fees incurred in the enforcement of this Section 176.

(d) Additional Methods of Enforcement and Penalties for Violation of Sign Regulations. Violation of the general advertising sign regulations set forth in Article 6 are subject to the administrative penalties and enforcement procedures set forth in Section 610 of this Code, in addition to those set forth in this Section 176.

(e) Use of Penalties Collected. All penalties collected under this Section 176 shall be deposited in the Planning Code Enforcement Fund established in Administrative Code Section 10.100.166 and shall be used for the purposes specified in that section.

(Added by Ord. 443-78, App. 10/6/78; amended by Ord. 71-01, File No. 001391, App. 5/18/2001; Ord. 46-07, File No. 061539, App. 3/9/2007; Ord. 57-08, File No. 071651, App. 4/10/2008)

SEC. 176.1. ADMINISTRATIVE ENFORCEMENT PROCEDURES.

(a) Purpose and Intent.

(1) The Board of Supervisors finds that enforcement of the Planning Code is vital to ensuring the quality of life in San Francisco's neighborhoods and in the City as a whole. A comprehensive code enforcement program using a combination of judicial and administrative remedies is likely to be the most successful approach to secure compliance with Planning Code requirements. Therefore, it is in the best interests of the City and its citizens to provide an alternative method of administrative enforcement that is designed to induce compliance with the Planning Code through action by the Director to issue and record orders of abatement and assess administrative penalties.

(2) The alternative methods of administrative enforcement established by this Section do not replace but rather are intended to supplement the enforcement remedies established in Section 176 and other penalties or methods of enforcement, both civil and criminal, that are authorized by law. The provision for administrative penalties is not intended to be punitive in nature but is intended to secure compliance with the Planning Code and to compensate the City for its costs of enforcement.

(3) By establishing multiple enforcement mechanisms, it is intended that the Department will elect to use the mechanism most likely to achieve an expeditious and effective resolution of the violation in a particular case with the best use of the City's resources. In exercising this discretion, the Department should usually elect to use the Director's authority under this Section 176.1 in those cases where the legal or factual issues are not complex and where an interpretation of the Planning Code is not at issue, and reserve the enforcement mechanisms in Section 176 for those cases that are more complex or where interpretations of the Planning Code are at issue.

(b) Authority of the Director. The Director may enforce against violations of the Planning Code through the alternative administrative remedies of this Section 176.1. The Director may designate a member of Department staff to act under his or her authority with respect to any action the Director is authorized to take in this Section 176.1.

If the Department elects to use the administrative remedies of this Section, the Department must use the abatement process set forth in this Section. However, as provided in Section (d)(3) below, the Department is not precluded from pursing the alternative remedies of Section 176 if abatement of the violation has not been achieved under this Section 176.1. In addition, the Department's election of this process shall not affect the City Attorney's Charter authority to pursue a civil action. If the City Attorney filed a civil action against the property prior to the Director's issuance of the notice of violation under this Section 176.1, at the City Attorney's election the process under this Section 176.1 shall be terminated and abatement of the alleged violations shall be pursued by the City Attorney in the ongoing civil action.

(c) Notice of Violation.

(1) Issuance. After the Department has determined that a violation of this Code exists, the Director shall give written notice of the violation to the responsible party. For purposes of this Section 176.1, "responsible party" means the owners(s) of the real property on which the code violation is located, as listed in the records of the San Francisco Assessor, and the current leaseholder if different from the current owner(s) of the real property.

(2) Contents of Notice. The notice shall cite to this Section 176.1 and describe the violation(s) with specificity, including: the date and location of the violations and the approximate time the violations were observed; citation to applicable Code sections; and a description of how what was observed violated the Code sections. The notice of violation shall state that the responsible party has thirty days from the date of service to (i) correct all violations or (ii) file an application for a building permit or other authorization necessary to abate the violations and proceed diligently to obtain all approvals and complete the work, as specified by the Director's order and within the time periods required.

The notice of violation shall inform the responsible party that if the action required in the notice of violation is not taken by the stipulated deadline, the Director will (i) will issue an order of abatement, (ii) cause the order of abatement to be recorded against the property's records in the Office of the Recorder of the City and County of San Francisco, and (iii) assess administrative penalties under Section 176.1(e). The notice of violation shall also inform the responsible party of the right to request a Director's hearing under Subsection (d)(3) below prior to issuance of an order of abatement and assessment of administrative penalties. Service of the notice of violation shall be as specified in Section (g) below.

(d) Order of Abatement.

(1) Issuance; Administrative Penalties; Request for Hearing. If a property remains in violation after the deadlines established in the notice of violation, the Director shall issue an order of abatement and assess administrative penalties against the responsible party by following the procedure set forth in Section 176.1(e). The order of abatement shall state the amount of penalty imposed, explain how and when the penalty shall be paid, and describe the consequences of failure to pay the penalty. The order of abatement shall inform the responsible party of the right to appeal the order of abatement and assessment of administrative penalties to an administrative law judge under Subsection (f) below. The Department shall not proceed to enforce the order of abatement or collect the administrative penalties until the time for appeal has passed or the order and penalties have been upheld on appeal.

(2) Recording. The Director shall record the order of abatement against the property's records in the Office of the Recorder of the City and County of San Francisco. The Department shall not record the order of abatement until the time for appeal has passed or the Director's decision has been upheld on appeal. Within fourteen business days after the violation has been finally abated and all fees and penalties have been paid, the Director shall record a notice of compliance that cancels the order of abatement.

(3) Request for Hearing. Prior to expiration of the compliance deadlines set forth in the notice of violation, the responsible party may request a Director's hearing in order to show cause why the order of abatement should not issue and administrative penalties should not be assessed. The responsible party may also request that the Department not proceed with abatement proceedings under this Section 176.1 but instead proceed under Section 176. The Director's decision to continue proceeding under Section 176.1 is final and not appealable.

The Director may designate a member of Department staff to may act in his or her place as the hearing officer. The hearing officer shall have the same authority as the Director to hear and decide the case and to make any order provided for in this section. The responsible party may waive the right to a Director's hearing and proceed directly to an appeal under Subsection (f) below after the order of abatement is issued and administrative penalties have been assessed. If the responsible party requests a Director's hearing, the following procedure shall apply:

(A) Request for hearing; notice. The responsible party shall submit a written request for a Director's hearing prior to expiration of the compliance deadlines set forth in the notice of violation on a form or in the manner required by the Director. The Director shall send a notice of the date, hour, and place of the hearing to the responsible party at the address specified in the request for hearing and to any member of the public who has expressed an interest in the matter.

(B) Decision. The Director or the Director's designee, after a full and fair consideration of the evidence and testimony received at the hearing, shall render within thirty days following the conclusion of the hearing a written decision which either dismisses the proceedings or orders issuance of the order of abatement and assessment of the administrative penalties. In rendering a decision, the Director or the Director's designee shall consider the following:

(i) whether the responsible party was properly identified;

(ii) whether the accrual dates for the administrative penalties are accurate;

(iii) the amount of documented staff time spent in order to secure abatement of the violation;

(iv) the nature of the violation;

(v) the duration of the violation;

(vi) efforts made by the responsible party to correct the violation;

(vii) the impact of the violation upon the community;

(viii) any instance in which the responsible party has been in violation of the same or similar laws at the same or other locations in the City and County of San Francisco;

(ix) the responsible party's good faith efforts to comply;

(x) whether the violation is easy to correct; and

(xi) such other factors as the Director or the Director's designee may consider relevant.

(e) Administrative Penalties.

(1) Assessment. In an order of abatement issued under Subsection (d) above, the Director shall assess administrative penalties for violation of the Planning Code. A penalty shall be assessed for each violation observed. Payment of the penalty shall not excuse failure to correct the violations nor shall it bar further enforcement action by the City.

(2) Amount of Penalty. The penalty assessed for each violation shall be $100.00 if the violation has not been corrected within thirty days from the date of service of the notice of violation. $250.00 if the violation has not been corrected within sixty days from the date of service of the notice of violation, and $500.00 if the violation has not been corrected within ninety days from the date of service of the notice of violation. If at the end of the 90-day period the violation has not been corrected and the matter has not been appealed, the Zoning Administrator may exercise his or her discretion to initiate abatement proceedings under Section 176 of this Code or to refer the matter to the City Attorney or District Attorney for prosecution.

(3) Failure to Pay the Administrative Penalties. If the responsible party fails to pay the administrative penalties to the Department within thirty days of service of the order of abatement, or within thirty days of the date the penalties have been upheld on appeal, the Director may take such action to collect the fees as he or she deems appropriate, including (i) referral of the matter to the Bureau of Delinquent Revenue Collection under Article V, Section 10.39 of the San Francisco Administrative Code, initiation of lien proceedings under Article XX, Section 10.230 et seq. of the San Francisco Administrative Code, and/or a requesting that the City Attorney pursue collection of the penalties imposed against the Responsible Party in a civil action. The City Attorney may request its attorneys' fees in any action that he or she pursues to collect the administrative penalties or to enforce collection of the penalties.

(f) Appeal of Order of Abatement and Administrative Penalties.

(1) Method of Appeal; Fee. The responsible party may appeal the issuance of an order of abatement and any the administrative penalties assessed in the order by filing a written request in the form required by the Department within fifteen days of the service of the order. The appeal shall describe in detail why the appellant believes that the order of abatement was issued in error or why the administrative penalty was assessed in error or should be modified.

The appeal shall be filed on a form or in the manner required by the Director and be accompanied by the payment of a fee of $400.00. The Department shall increase this fee on an annual basis at a rate equal to that of the Consumer Price Index (CPI). In addition to the appeal fee and administrative penalties assessed in the order of abatement, the Director shall assess upon the responsible party the Department's cost of preparation for and appearance at the hearing and all prior and subsequent attendant costs of the enforcement action. These fees shall be waived if the responsible party would qualify for a waiver of court fees and costs under California Government Code Section 68511.3.

(2) Scheduling of Hearing. Upon timely filing of the appeal and payment of the appeal fee, the Director shall schedule a hearing before an administrative law judge, who shall serve as the hearing officer. The hearing shall be scheduled for a date no later than thirty days after the request. The Director shall notify the responsible party and the appellant, if different from the responsible party, of the hearing date, hour, and place of the hearing as soon as the hearing is scheduled and in no event later than ten days prior to the hearing. Notice of the hearing shall also be given to any member of the public who has expressed interest in the matter. Notice shall be given in the manner specified in Subsection (g) below.

(3) Documentation to be Provided to the Administrative Law Judge. The Director shall provide to the administrative law judge no later than ten days prior to the hearing a copy of the Department's case file, which shall include at a minimum the notice of violation, the order of abatement, other written communications between the Department and the responsible party, and communications submitted by interested members of the public concerning the case. The Director may also submit, but is not required to do so, written arguments on why the Director's order should be upheld. Anything submitted to the administrative law judge by either party to the appeal shall be served upon the other party at the same time and in the same manner as it is submitted to the administrative law judge.

(4) Hearing and Decision. The administrative law judge shall hold a public hearing to hear the appeal of the Director's order of abatement and/or assessment of administrative penalties. In considering the appeal, the administrative law judge shall consider the following:

(A) whether the responsible party was properly identified;

(B) whether the accrual dates for the administrative penalties are accurate;

(C) the amount of documented staff time spent in order to secure abatement of the violation;

(D) the nature of the violation;

(E) the duration of the violation;

(F) efforts made by the responsible party to correct the violation;

(G) the impact of the violation upon the community;

(H) any instance in which the responsible party has been in violation of the same or similar laws at the same or other locations in the City and County of San Francisco;

(I) the responsible party's good faith efforts to comply; and

(J) whether the violation is easy to correct; and

(K) such other factors as the administrative law judge may consider relevant.

The decision of the administrative law judge shall be based upon, but not limited to, provisions of the San Francisco Planning Code, any final Zoning Administrator interpretations, the San Francisco Building Code, building permits issued by the City, and any final decisions of the San Francisco Board of Appeals concerning the subject building or property.

The administrative law judge shall issue a written decision on the appeal within thirty days of the conclusion of the hearing. The decision shall be served on the responsible party by certified mail by deposit in the United States mail in a sealed envelope, postage prepaid, addressed to the responsible party at the address provided to the administrative law judge by the responsible party. Service shall be considered to have been completed at the time of deposit in the United States mail. A copy of the decision shall also be mailed to the Director of Planning at the offices of the Planning Department.

(5) Continuance of Hearing. The parties may by mutual agreement continue the hearing date. If the parties do not mutually agree on another hearing date, the party wanting a continuance may request the administrative law judge to grant the continuance by submitting a written request for a continuance and demonstrating good cause with supporting documentation. A written request for a continuance shall be made at the earliest possible date but in no event less than five days before the hearing unless unforeseen circumstances prevent such notification. The party requesting the continuance shall notify any other parties of the request in the most expeditious manner and provide them with copies of the complete request and the supporting documentation. A request for continuance made at the time of the hearing may be granted only in those exceptional cases where the requesting party demonstrates both good cause and that the party was unable through no fault of their own to make the request at an earlier time. The administrative law judge may grant more than one continuance, but the combination of all continuances granted shall be for no longer than forty-five days.

For purposes of this section, "good cause" may include:

(A) the illness of a party, an attorney or other authorized representative of a party, or a material witness of a party;

(B) verified travel of a party, attorney, or material witness outside of San Francisco scheduled before receipt of the notice of hearing;

(C) failure to receive timely notice of the hearing date; or

(D) any other reason which makes it impossible or infeasible to appear on the scheduled date due to unforeseen circumstances or verified pre-arranged plans that cannot be changed. Mere inconvenience in appearing shall not be considered sufficient good cause.

In deciding whether to grant the request for continuance, the administrative law judge shall also take into consideration the nature of the alleged violation and its impact on neighboring properties and the general public if the alleged violations are allowed to continue for an additional period of time.

(6) Finality and Effect of the Decision. The decision of the administrative law judge shall be the City's final administrative action on the matter and there shall be no further administrative appeals.

(7) Compliance with Decision. If the administrative law judge upholds the Director's order of abatement in whole or in part, the responsible party shall comply with the decision and pay to the Department any administrative penalties that were upheld within thirty days of the date the decision was served. If the responsible party is proceeding diligently to obtain required permits and to complete the abatement work, the Director may grant additional time to comply with the decision. If the responsible party fails to comply with the decision and/or to pay the administrative penalties within the time period required, the Director may take such action to collect the fees and enforce the decision as he or she deems appropriate, including (i) referral of the matter to the Bureau of Delinquent Revenue Collection under Article V, Section 10.39 of the San Francisco Administrative Code, initiation of lien proceedings under Article XX, Section 10.230 et seq. of the San Francisco Administrative Code, and/or a requesting that the City Attorney pursue enforcement of the decision and collection of the penalties imposed against the responsible party in a civil action.

If the administrative law judge overrules the Director and determines that the order of abatement was issued in error, the Department shall consider the case abated and all administrative penalties rescinded.

(8) Rescission of Order of Abatement or Withdrawal of Appeal Prior to the Hearing. If the Director rescinds the order of abatement in its entirety prior to the hearing, the case shall be considered abated and the appeal withdrawn, and any assessed administrative penalties shall be considered rescinded. The Department shall refund to the responsible party in a timely manner any appeal fees that he or she has paid.

If the responsible party elects to withdraw the appeal and comply with the order of abatement, the Department shall refund in a timely manner any appeal fees that he or she has paid. Any administrative penalties already assessed must be paid in full before the Department will consider the case abated. If the responsible party withdraws the appeal within ten days of the date the appeal was filed, he or she may apply to the Director in writing for a reduction in the amount of any assessed administrative penalties based upon the number of days between the filing of the appeal and its withdrawal. Any decision by the Director to grant or deny the request shall be at the Director's sole discretion and is not appealable.

(g) Service of Notices and Orders; Proof of Service. Service of a notice of violation, order of abatement, or other notice or order required by this Section 176.1 shall be given to the owner of the property or other person to be notified by depositing the notice or order in the United States mail in a sealed envelope, postage prepaid, addressed to the person to be notified at that person's last known business or residence address as shown in the Assessor's records. Service by mail shall be considered to have been completed at the time of deposit in the United States mail.

If the identity of the person or business entity owning the property in question is unknown, the notice of violation shall be posted in a conspicuous location on, or if access to the property is not available in a conspicuous location as close as practicable to, the building or property. The notice shall also be hand delivered to the person, if any, in real or apparent charge and control of the subject premises or property. Once the identity of the person or business entity is known, the notice of violation shall be mailed to such person or business entity without the delay affecting the time limits, fees, or administrative penalties imposed by this Section 176.1.

Proof of giving any notice may be made by the certificate of any officer or employee of the City and County of San Francisco or by affidavit of any person over the age of 18 years, which shows service in conformity with the San Francisco Municipal Code or any other applicable provisions of law.

(h) Failure of the City to Comply with Timelines. The failure of the Director, the Department, or the administrative law judge to comply with any of the timelines set forth in this Section 176.1 shall not render the code violations unenforceable.

(i) Use of Fees and Penalties Collected. All fees and penalties collected under this Section 176.1 shall be deposited in the Planning Code Enforcement Fund established in Administrative Code Section 10.100.166 and shall be used for the purposes specified in that section.

(Added by Ord. 57-08, File No. 071651, App. 4/10/2008)

SEC. 178. CONDITIONAL USES.

The following provisions shall apply to conditional uses:

(a) Definition. For the purposes of this Section, a permitted conditional use shall refer to:

(1) Any use or feature authorized as a conditional use pursuant to Article 3 of this Code, provided that such use or feature was established within the time limits specified as a condition of authorization or, if no time limit was specified, within a reasonable time from the date of authorization; or

(2) Any use or feature which is classified as a conditional use in the district in which it is located and which lawfully existed either on the effective date of this Code, or on the effective date of any amendment imposing new conditional use requirements upon such use or feature; or

(3) Any use deemed to be a permitted conditional use pursuant to Section 179 of this Code.

(b) Continuation. Except as provided for temporary uses in Section 205 of this Code, and except where time limits are otherwise specified as a condition of authorization, any permitted conditional use may continue in the form in which it was authorized, or in the form in which it lawfully existed either on the effective date of this Code or the effective date of any amendment imposing new conditional use requirements upon such use or feature, unless otherwise provided in this Section or in Article 2 of this Code.

(c) Enlargements or Alteration. A permitted conditional use may not be significantly altered, enlarged, or intensified, except upon approval of a new conditional use application pursuant to the provisions of Article 3 of this Code. With regard to an Internet Services Exchange as defined in Section 209.6(c), any physical alteration which will enlarge or expand the building for the purpose of intensifying the use shall be deemed to be significant under this section, and any increase in the size of electrical service to the building which will require a permit from the Department of Building Inspection shall be deemed to be significant under this section.

(d) Abandonment. A permitted conditional use which is discontinued for a period of three years, or otherwise abandoned, shall not be restored, except upon approval of a new conditional use application pursuant to the provisions of Article 3 of this Code. For purposes of this Subsection, the period of nonuse for a permitted conditional use to be deemed discontinued in the North Beach, Castro Street Neighborhood Commercial Districts, and the Jackson Square Special Use District shall be eighteen (18) months, except that in the North Beach Neighborhood Commercial District, the period of non use for a full service restaurant use, as defined in Section 790.91, to be deemed discontinued shall be three years.

(e) Changes in Use. The following provisions shall apply to permitted conditional uses with respect to changes in use:

(1) A permitted conditional use may be changed to another use listed in Articles 2, 7 or 8 of this Code as a principal use for the district in which it is located and the new use may thereafter be continued as a permitted principal use.

(2) A permitted conditional use may be changed to another use listed in Articles 2, 7 or 8 of this Code as a conditional use for the district in which the property is located, subject to the other applicable provisions of this Code, only upon approval of a new conditional use application, pursuant to the provisions of Article 3 of this Code.

(3) A permitted conditional use may not be changed to another use not permitted or prohibited by Articles 2, 7 or 8 of this Code. If a permitted conditional use has been wrongfully changed to another use in violation of the foregoing provisions and the violation is not immediately corrected when required by the Zoning Administrator, the wrongful change shall be deemed to be a discontinuance or abandonment of the permitted conditional use.

(4) Once a permitted conditional use has been changed to a principal use permitted in the district in which the property is located, or brought closer in any other manner to conformity with the use limitations of this Code, the use of the property may not thereafter be returned to its former permitted conditional use status, except upon approval of a new conditional use application pursuant to the provisions of Article 3 of this Code.

(5) In the North Beach Neighborhood Commercial District, any use that exceeds the use size provisions of Section 121.2(a) or 121.2(b) may be changed to a new use only upon approval of a new conditional use application. The Commission's approval of such conditional use application shall explicitly address the use size findings of Section 303(c).

(6) In the Castro Street Neighborhood Commercial District, any use that exceeds the use size provisions of Section 121.2(a), but is smaller than the maximum use size limit of Section 121.2(b), may be changed to a new use only upon approval of a new conditional use application. The Commission's approval of such conditional use application shall explicitly address the use size findings of Section 303(c).

(f) Notwithstanding the foregoing provisions of this Section 178, a structure occupied by a permitted conditional use that is damaged or destroyed by fire, or other calamity, or by Act of God, or by the public enemy, may be restored to its former condition and use without the approval of a new conditional use application, provided that such restoration is permitted by the Building Code, and is started within one year and diligently pursued to completion. Except as provided in Subsection (g) below, no structure occupied by a permitted conditional use that is voluntarily razed or required by law to be razed by the owner thereof may thereafter be restored except upon approval of a new conditional use application pursuant to the provisions of Article 3 of this Code.

(g) None of the provisions of this Section 178 shall be construed to prevent any measures of construction, alteration or demolition necessary to correct the unsafe or dangerous condition of any structure, other feature, or part thereof, where such condition has been declared unsafe or dangerous by the Superintendent of the Bureau of Building Inspection or the Chief of the Bureau of Fire Prevention and Public Safety, and where the proposed measures have been declared necessary, by such official, to correct the said condition; provided, however, that only such work as is absolutely necessary to correct the unsafe or dangerous condition may be performed pursuant to this Section.

(Added by Ord. 69-87, App. 3/13/87; amended by Ord. 131-87, App. 4/24/87; Ord. 115-90, App. 4/6/90; Ord. 312-99, File No. 991586, App. 12/3/99; Ord. 198-00, File No. 993231, App. 8/18/2000; Ord. 77-02, File No. 011448, App. 5/24/2002; Ord. 245-08, File No. 080696)

SEC. 179. USES LOCATED IN NEIGHBORHOOD COMMERCIAL DISTRICTS.

The following provisions shall govern with respect to uses and features located in Neighborhood Commercial Districts to the extent that there is a conflict between the provisions of this Section and other sections contained in this Article 1.7.

(a) Permitted Uses.

(1) Any use or feature in a Neighborhood Commercial District which lawfully existed on the effective date of Ordinance No. 69-87 which is classified as a principal use by the enactment of Ordinance No. 69-87 is hereby deemed to be a permitted principal use.

(2) Any use or feature in a Neighborhood Commercial District which lawfully existed on the effective date of Ordinance No. 69-87 which is classified as a conditional use by the enactment of Ordinance No. 69-87 is deemed to be a permitted conditional use, subject to the provisions of Section 178 of this Code.

(3) Any use or feature in a Neighborhood Commercial District which lawfully existed on the effective date of Ordinance No. 69-87 and which use or feature is not permitted by the enactment of Ordinance No. 69-87 is hereby deemed to be a nonconforming use subject to the provisions of Sections 180 through 186.1 of this Code.

(4) Any use or feature in a Neighborhood Commercial District which was nonconforming under Section 180 of this Code prior to the effective date of Ordinance No. 69-87, which is classified as a principal use by the enactment of Ordinance No. 69-87, is deemed to be a permitted principal use.

(5) Any use or feature in a Neighborhood Commercial District which was nonconforming under Section 180 of this Code prior to the effective date of Ordinance No. 69-87, which is classified as a conditional use by the enactment of Ordinance No. 69-87, is deemed to be a permitted conditional use, subject to the provisions of Section 178 of this Code.

(6) Any use or feature in a Neighborhood Commercial District which was nonconforming under Section 180 of this Code prior to the effective date of Ordinance No. 69-87, which continues to be not permitted by operation of Ordinance No. 69-87, shall still be classified as a nonconforming use, subject to the provisions of Sections 180 through 183 of this Code.

(7) Any use or feature in a Neighborhood Commercial District which existed on the effective date of Ordinance No. 69-87 but for which the required permits had not been obtained shall be deemed to be a permitted principal use, permitted conditional use, or nonconforming use, only if the use or feature complies with all conditions prescribed in Subsections (b), (c), (d), (e), (f), or (g) below; otherwise the use or feature shall be in violation of this Code subject to the provisions of Section 176 of this Code.

(b) Any use located in a Neighborhood Commercial District, which use existed on the effective date of Ordinance No. 69-87, but for which the required permits had not been obtained, and which use is permitted as a principal use by the enactment of Ordinance No. 69-87, will be deemed to be a permitted principal use if:

(1) An application is filed for all permits necessary to bring the use into compliance with applicable codes; and

(2) All necessary permits are granted; and

(3) All work which is required for Code compliance under all applicable Codes is substantially completed.

(c) Any use located in a Neighborhood Commercial District, which use was in existence on the effective date of Ordinance No. 69-87 and was permitted as a principal use at the time the use was established, but for which the required permits had not been obtained, and which use is permitted as a conditional use by the enactment of Ordinance No. 69-87, will be deemed to be a conditional use if:

(1) An application is filed for all permits necessary to bring the use into compliance with applicable codes; and

(2) All necessary permits are granted; and

(3) All work which is required for Code compliance under all applicable Codes is substantially completed.

(d) Any use located in a Neighborhood Commercial District, which use would have been deemed a permitted principal use at the time it was established but had not obtained the required permits and was on the effective date of Ordinance No. 69-87, but which use is not a permitted use by the enactment of Ordinance No. 69-87, will be deemed to be a nonconforming use if:

(1) Applications are filed for all permits necessary to bring the use into compliance with applicable codes within three years of the effective date of this amendment to Ordinance No. 69-87; and

(2) All work which is required for Code compliance under all applicable Codes is completed, including the issuance of a Certificate of Final Completion from the Bureau of Building Inspection, within three years of the effective date of this amendment to Ordinance No. 69-87.

(3) The time for completion of all work required for compliance with all applicable codes may be extended an additional one year should delays be caused by a government agency or by legal action.

(e) Any use located in a Neighborhood Commercial District, which use was in existence on the effective date of Ordinance No. 69-87 and was permitted as a conditional use at the time the use was established, but for which the required permits had not been obtained, and which use is permitted as a conditional use by the enactment of Ordinance No. 69-87, will be deemed to be a conditional use if:

(1) An application for conditional use authorization is filed pursuant to the provisions of Article 3 of this Code and if an application(s) is filed for all other permits necessary to bring the use into compliance with applicable codes; and

(2) The conditional use is authorized and all other necessary permits are granted; and

(3) All work which is required for Code compliance under all applicable Codes is substantially completed.

(f) Any use located in a Neighborhood Commercial District, which use was a conditional use at the time it was established but for which the required conditional use authorization and permits had not been obtained and which was in existence on the effective date of Ordinance No. 69-87, will be deemed a nonconforming use if:

(1) An application for conditional use authorization is filed pursuant to the provisions of Article 3 of this Code and if an application(s) is/are filed for all other permits necessary to bring the use into compliance with applicable codes within three years of the effective date of this amendment to Ordinance No. 69-87; and

(2) All work which is required for Code compliance under all applicable Codes is completed within one year of the date of authorization of conditional use, but no later than December 31st of the third year of the effective date of this amendment to Ordinance No. 69-87; and

(3) The time for completion of all work required for compliance with all applicable codes may be extended for an additional one year should delays be caused by a government agency or by legal action.

(g) Any use located in a Neighborhood Commercial District, which use existed on the effective date of Ordinance No. 69-87 and was not permitted at the time the use was established, and which use is permitted as a conditional use by the enactment of Ordinance No. 69-87, will be deemed to be a conditional use if:

(1) An application for conditional use authorization is filed pursuant to the provisions of Article 3 of this Code and if an application(s) is filed for all other permits necessary to bring the use into compliance with applicable codes; and

(2) The conditional use is authorized and all other necessary permits are granted; and

(3) All work which is required for Code compliance under all applicable Codes is substantially completed.

(h) Any use located in a Neighborhood Commercial District, which use existed on the effective date of Ordinance No. 69-87 and was not permitted at the time the use was established, and which use is not permitted by the enactment of Ordinance No. 69-87, shall be in violation of this Code, subject to the provisions of Section 176 of this Code.

(Added by Ord. 69-87, App. 3/13/87; amended by Ord. 37-92, App. 2/3/92)

SEC. 180. NONCONFORMING USES, NONCOMPLYING STRUCTURES AND SUBSTANDARD LOTS OF RECORD: GENERAL.

The following provisions shall apply to non-conforming uses, noncomplying structures and substandard lots of record:

(a) Such uses, structures and lots are hereby defined as follows:

(1) A "nonconforming use" is a use which existed lawfully at the effective date of this Code, or of amendments thereto, or a live/work unit which existed on the effective date of Ordinance No. 412-88 (effective October 10, 1988) (other than a live/work unit wholly or partly occupying space whose legal occupancy under the Building Code was then limited to a residential occupancy) and which fails to conform to one or more of the use limitations under Articles 2, 6, 7 and 8 of this Code that then became applicable for the district in which the property is located.

(2) A "noncomplying structure" is a structure which existed lawfully at the effective date of this Code, or of amendments thereto, and which fails to comply with one or more of the regulations for structures, including requirements for off-street parking and loading, under Articles 1.2, 1.5, 2.5, 6, 7 and 8 of this Code, that then became applicable to the property on which the structure is located.

(3) A "substandard lot of record" is a lot which existed lawfully at the effective date of any requirement of this Code applicable thereto for minimum lot width or area (on December 26, 1946, or through subsequent amendments), and which fails to meet one or more of such requirements. Any lot existing and recorded as a separate parcel in the office of the Assessor or the Recorder at such effective date shall be deemed to be a lot of record under this Code as of such date. Any lot created by merger of such existing lots of record or parts thereof in such a manner as to establish a lesser number of lots, each having an increased area with no reduction in width, or an increased width with no reduction in area, or both an increased area and an increased width, shall also be deemed to be a lot of record under this Code as of the date of such merger.

(b) Such uses, structures and lots, in failing to meet applicable requirements of this Code, are incompatible with the purposes of this Code and with other uses, structures and lots in the City, and it is intended that these uses, structures and lots shall be brought into compliance with this Code as quickly as the fair interests of the parties will permit.

(c) Notwithstanding any other provision of this Code, such uses, structures and lots may be continued, except as otherwise provided in Sections 180 through 189, and subject to the limitations of this Article 1.7.

(d) A mere change of title or possession or right of possession of property, without any other change that is relevant to the restrictions of this Code, shall not terminate the status of a nonconforming use, noncomplying structure or substandard lot of record.

(e) Any structure or use for which a permit was lawfully granted prior to May 2, 1960, pursuant to the City Planning Code provisions in effect on that date, and which was thereafter commenced and completed in accordance with such provisions, shall be deemed to have been a lawfully existing structure or use on that date. Any structure or use for which a permit has been lawfully granted pursuant to the provisions of this Code relating to amendments, and which has thereafter been commenced and completed in accordance with such provisions, shall be deemed to be a lawfully existing structure or use at the time of the amendment that causes it to become a noncomplying structure or a nonconforming use.

(f) Except as specifically provided in this Code to the contrary, every nonconforming use, noncomplying structure and substandard lot of record shall comply with the applicable requirements of this Code, other than those requirements from which such uses, structures and lots are exempted by this Section 180.

(g) Section 606(c) and other provisions of Article 6 of this Code shall regulate the signs permitted for nonconforming uses. In addition, signs which are themselves classified as nonconforming uses and noncomplying structures under this Code shall be governed by Section 604 and other provisions of Article 6 of this Code.

(Added by Ord. 443-78, App. 10/6/78; amended by Ord. 69-87, App. 3/13/87; Ord. 412-88, App. 9/10/88; Ord. 115-90, App. 4/6/90)

SEC. 181. NONCONFORMING USES: ENLARGEMENTS, ALTERATIONS AND RECONSTRUCTION.

The following provisions shall apply to non-conforming uses with respect to enlargements, alterations and reconstruction:

(a) A nonconforming use, and any structure occupied by such use, shall not be enlarged, intensified, extended, or moved to another location, with the exception of the construction of a mezzanine within a live/work unit, unless the result will be elimination of the nonconforming use, except as provided in Paragraph (b)(3) below and Section 186.1 of this Code. A nonconforming use shall not be extended to occupy additional space in a structure, or additional land outside a structure, or space in another structure, or to displace any other use, except as provided in Sections 182 and 186.1 of this Code.

(b) A structure occupied by a nonconforming use shall not be constructed, reconstructed or altered, unless the result will be elimination of the nonconforming use, except as provided in Section 186.1 of this Code and in Subsections (a) above and (d), (e), (f) and (g) below, and except as follows:

(1) Ordinary maintenance and minor repairs shall be permitted where necessary to keep the structure in sound condition, as well as minor alterations, where such work is limited to replacement of existing materials with similar materials placed in a similar manner.

(2) Minor alterations shall be permitted where ordered by an appropriate public official to correct immediate hazards to health or safety, or to carry out newly enacted retroactive requirements essential to health or safety.

(3) Alterations otherwise allowed by this Code shall be permitted for any portion of the structure that will not thereafter be occupied by the nonconforming use, provided the nonconforming use is not enlarged, intensified, extended, or moved to another location.

(4) All other alterations of a structural nature shall be permitted only to the extent that the aggregate total cost of such other structural alterations, as estimated by the Department of Public Works, is less than 1/2 of the assessed valuation of the improvements prior to the first such alteration, except that structural alterations required to reinforce the structure to meet the standards for seismic loads and forces of the Building Code shall be permitted without regard to cost.

(c) A dwelling or other housing structure exceeding the permitted density of dwelling units or other housing units set forth in Sections 207.5, 208, 209.1 or 209.2 of this Code for the district in which it is located shall be classified as a nonconforming use under Section 180 of this Code, but only to the extent that such dwelling or other housing structure exceeds the permitted density. This Section 181 shall apply with respect to enlargements, alterations and reconstruction of the nonconforming portion of such dwelling or other housing structure, consisting of those dwelling units or other housing units which exceed the permitted density. Any dwelling unit or other housing unit coming within the density limit shall not be affected by this Section 181. Except as provided in Section 182(e), no dwelling or other housing structure exceeding the permitted density of dwelling units or other housing units shall be altered to increase the number of dwelling units or other housing units therein, or to increase or create any other nonconformity with respect to the dwelling unit or other housing unit density limitations of Section 209.1 or Section 209.2.

(d) Notwithstanding the foregoing provisions of this Section 181, a structure occupied by a nonconforming use that is damaged or destroyed by fire, or other calamity, or by Act of God, or by the public enemy, may be restored to its former condition and use; provided that such restoration is permitted by the Building Code, and is started within one year and diligently prosecuted to completion. The age of such a structure for the purposes of Sections 184 and 185 shall nevertheless be computed from the date of the original construction of the structure. Except as provided in Subsection (e) below, no structure occupied by a nonconforming use that is voluntarily razed or required by law to be razed by the owner thereof may thereafter be restored except in full conformity with the use limitations of this Code.

For purposes of this Subsection, any dwelling unit or other housing unit in a structure that has, in whole or substantial part, been determined by the Director of Public Works to be unsafe to occupy or that will require substantial repair due to damage caused by the earthquake that occurred in San Francisco on October 17, 1989 and its associated aftershocks, may be restored and recorded as a lawfully permitted unit even if its prior lawful existence cannot be established if (1) the permit applicant can demonstrate to the satisfaction of the Zoning Administrator that the unit has been occupied within one year prior to the earthquake, and (2) the unit is brought into compliance with the Building Code, Housing Code, Fire Code and any applicable requirements of State and Federal law. Any dwelling unit or other housing unit legalized pursuant to this Subsection shall be offered to the previous tenant, or if that tenant does not desire to reoccupy such unit, to any tenant on reoccupancy at the rent which was charged prior to the earthquake. If the amount of rent cannot be established to the satisfaction of the Zoning Administrator, the Zoning Administrator shall set a rent that is affordable to households making 80 percent of the median income in San Francisco, according to guidelines established by the Mayor's Office of Housing.

(e) In order that major life safety hazards in structures may be eliminated as expeditiously as possible, a structure containing nonconforming uses and constructed of unreinforced masonry that is inconsistent with the requirements of the UMB Seismic Retrofit Ordinance, Ordinance No. 227-92, may be demolished and reconstructed with the same nonconforming use or a use as permitted by Planning Code Section 182; provided that there is no increase in any nonconformity, or any new nonconformity, with respect to the use limitations of this Code; provided further that the current requirements of the Building Code, the Housing Code and other applicable portions of the Municipal Code are met; and provided further that such restoration or reconstruction is started within one year after razing or other demolition work on the structure and diligently prosecuted to completion.

(f) A nighttime entertainment use within the South of Market RSD or SLR Districts may be enlarged, intensified, extended or expanded, including the expansion to an adjacent lot or lots, provided that: (1) the enlargement, intensification, extension or expansion is approved as a conditional use pursuant to Sections 303 and 316 of this Code; (2) the use as a whole meets the parking and signage requirements, floor area ratio limit, height and bulk limit, and all other requirements of this Code which would apply if the use were a permitted one; and (3) the provisions of Section 803.5(h) of this Code are satisfied.

(g) Automotive sales and service signs within the Automotive Special Use District which have all required permits but which do not comply with the controls for new signs established in Section 607.3 of this Code shall be permitted to remain as nonconforming uses and shall be permitted to modify the signage text to describe new automobile ownerships and dealerships that may occur from time to time.

(Added by Ord. 443-78, App. 10/6/78; amended by Ord. 69-87, App. 3/13/87; Ord. 412-88, App. 9/10/88; Ord. 79-89, App. 3/24/89; Ord. 75-90, App. 3/5/90; Ord. 115-90, App. 4/6/90; amended by Ord. 227-92, App. 7/14/92)

SEC. 182. NONCONFORMING USES: CHANGES OF USE.

The following provisions shall apply to nonconforming uses with respect to changes of use:

(a) A nonconforming use shall not be changed or modified so as to increase the degree of nonconformity under the use limitations of this Code, with respect to the type of use or its intensity except as provided in Section 181 for nighttime entertainment activities within the South of Market RSD or SLR Districts and in Subsection (f) below. The degree of nonconformity shall be deemed to be increased if the new or modified use is less widely permitted by the use districts of the City than the nonconforming use existing immediately prior thereto.

(b) Except as limited in this Subsection, a nonconforming use may be reduced in size, extent or intensity, or changed to a use that is more widely permitted by the use districts of the City than the existing use, subject to the other applicable provisions of this Code. Except as otherwise provided herein, the new use shall still be classified as a nonconforming use.

(1) A nonconforming use in a Residential District (other than a Residential-Commercial Combined District or an RED District), which use is located more than 1/4 mile from the nearest Individual Area Neighborhood Commercial District or Restricted Use Subdistrict described in Article 7 of this Code, may change to another use which is permitted as a principal use at the first story and below in an NC-1 District, or it may change to another use which is permitted as a conditional use at the first story and below in an NC-1 District only upon approval of a conditional use application pursuant to the provisions of Article 3 of this Code. If the nonconforming use is seeking to change in use to a retail sales activity or retail sales establishment which is also a formula retail use, as defined in Section 703.3 of this Code, it shall comply with the provisions of Section 703.3 of this Code. The nonconforming use shall comply with other building standards and use limitations of NC-1 Districts, as set forth in Sections 710.10 through 710.95 of this Code.

If the nonconforming use is located within 1/4 mile from any Individual Area Neighborhood Commercial District or Restricted Use Subdistrict described in Article 7 of this Code, the nonconforming use may change to another use which is permitted as a principal use at the first story and below in an NC-1 District and in the Individual Area Neighborhood Commercial District or Restricted Use Subdistrict or Districts within 1/4 mile of the use, or it may change to another use which is permitted as a conditional use at the first story and below in an NC-1 District and in the Individual Area Neighborhood Commercial District or Districts within 1/4 mile of the use only upon approval of a conditional use application pursuant to the provisions of Article 3 of this Code. If the nonconforming use is seeking to change in use to a retail sales activity or retail sales establishment which is also a formula retail use, as defined in Section 703.3 of this Code, it shall comply with the provisions of Section 703.3 of this Code. The nonconforming use shall comply with other building standards and use limitations of NC-1 Districts and any Individual Area NC District or Districts located within 1/4 mile of the use, as set forth in Article 7 of this Code.

(2) A nonconforming use in a Residential-Commercial Combined District may be changed to another use listed in Articles 2 or 7 of this Code as a principal use for the district in which the existing use would first be permitted as a principal or conditional use.

(3) A nonconforming use in a Neighborhood Commercial District may be changed to another use as provided in Subsections (c) and (d) below or as provided in Section 186.1 of this Code.

(4) A nonconforming use in any district other than a Residential, Downtown Residential, or Neighborhood Commercial District may be changed to another use listed in Articles 2 or 7 of this Code as a principal use for the district in which the existing use would first be permitted as a principal use.

(5) A nonconforming use in any South of Market District may not be changed to an office, retail, bar, restaurant, nighttime entertainment, adult entertainment, hotel, motel, inn, hostel, or movie theater use in any district where such use is otherwise not permitted or conditional, except as provided in Subsection (g) below.

(c) A nonconforming use may be changed to a use listed in Articles 2 or 7 of this Code as a conditional use for the district in which the property is located, subject to the other applicable provisions of this Code, without the necessity of specific authorization by the City Planning Commission except where major work on a structure is involved, and the new use may thereafter be continued as a permitted conditional use, subject to the limitation of Section 178(b) of this Code.

(d) A nonconforming use may be changed to a use listed in Articles 2, 7 or 8 of this Code as a principal use for the district in which the property is located, subject to the other applicable provisions of this Code, and the new use may thereafter be continued as a permitted principal use.

(e) A nonconforming use in an R District subject to termination under the provisions of Section 185 of this Code may be converted to a dwelling unit without regard to the requirements of this Code with respect to dwelling unit density under Article 2, dimensions, areas and open space under Article 1.2, or off-street parking under Article 1.5, provided the nonconforming use is eliminated by such conversion, provided further that the structure is not enlarged, extended or moved to another location, and provided further that the requirements of the Building Code, the Housing Code and other applicable portions of the Municipal Code are met.

(f) Any nonconforming use in an RED District may change to any use falling within zoning categories 816.36, 816.42 through 816.47, 816.55, or 816.64 through 816.67, subject to the applicable provisions of this Code other than those controlling uses, and the new use may thereafter continue as a nonconforming use.

(g) Once a nonconforming use has been changed to a principal or conditional use permitted in the district in which the property is located, or brought closer in any other manner to conformity with the use limitations of this Code, the use of the property may not thereafter be returned to its former nonconforming status, except that:

(1) Any area which is used as a live/work unit shall be allowed to return to its former nonconforming status.

(2) Within any South of Market District, any area occupied by a nonconforming office use which is changed to an arts, home and/or business service use falling within zoning categories 102.2 or 816.42 through 816.47 or a wholesale, storage or light manufacturing use falling within zoning categories 816.64 through 816.67 shall be allowed to return to its former nonconforming office use.

(3) Upon restoration of a previous nonconforming use as permitted by Subsection (1) or (2) above, any modification, enlargement, extension, or change of use, from circumstances which last lawfully existed prior to the creation of the live/work unit, or prior to the change from office use, shall be subject to the provisions of this Article, and the restored nonconforming use shall be considered to have existed continuously since its original establishment, prior to the live/work unit or change to office use, for purposes of this Article.

(h) If a nonconforming use has been wrongfully changed to another use in violation of any of the foregoing provisions, and the violation is not immediately corrected when required by the Zoning Administrator, the wrongful change shall be deemed to be a discontinuance or abandonment of the nonconforming use under Section 183 of this Code.

(Added by Ord. 443-78, App. 10/6/78; amended by Ord. 532-85, App. 12/4/85; Ord. 69-87, App. 3/13/87; Ord. 445-87, 11/12/87; Ord. 412-88, App. 9/10/88; Ord. 115-90, App. 4/6/90; Ord. 62-04, File No. 031501, App. 4/9/2004; Ord. 217-05, File No. 050865, App. 8/19/2005)

SEC. 183. NONCONFORMING USES: DISCONTINUANCE AND ABANDONMENT.

Whenever a nonconforming use has been changed to a conforming use, or discontinued for a continuous period of three years, or whenever there is otherwise evident a clear intent on the part of the owner to abandon a nonconforming use, such use shall not after being so changed, discontinued or abandoned be reestablished, and the use of the property thereafter shall be in conformity with the use limitations of this Code for the district in which the property is located. Where no enclosed building is involved, discontinuance of a nonconforming use for a period of six months shall constitute abandonment. Where a massage establishment is nonconforming for the reason that it is within 1,000 feet of another such establishment under Section 218.1 of this Code or because it is no longer permitted within the district, discontinuance for a continuous period of three months or change to a conforming use shall constitute abandonment. (Amended by Ord. 186-84, App. 5/4/84; Ord. 292-98, App. 10/2/98)

SEC. 184. SHORT-TERM CONTINUANCE OF CERTAIN NONCONFORMING USES.

The period of time during which the following nonconforming uses may continue or remain shall be limited to five years from the effective date of this Code (May 2, 1960), or of the amendment thereto which caused the use to be nonconforming. Every such nonconforming use shall be completely eliminated within 90 days after the expiration of such period.

(a) Any nonconforming commercial or industrial use of land where no enclosed building is involved in such use, except for permanent off-street parking lots in the C-3-O, C-3-R and C-3-G Districts existing on the effective date of Ordinance No. 414-85, provided that such lots are screened in the manner required by Section 156(e);

(b) Any use of a type first permitted as a principal or conditional use in an NC, C or M District or in a Residential-Commercial Combined District, when occupying a building in an R District other than a Residential-Commercial Combined District that has an assessed valuation not in excess of $500 on the effective date of this Code or such later date as the use becomes nonconforming, with the following exceptions:

(1) Any lawful use in this category in a building having an assessed valuation of $250 or more on the effective date of this Code, or such later date as the use becomes nonconforming, shall have a period of permitted continuance of 10 years from the date at which the property was placed in a residential zoning classification, if such a period of continuance produces an expiration date which is later than the expiration date stated above; or

(2) Any lawful use in this category which is of a type first permitted in an NC-1 District; or of a type first permitted in any other district and supplying commodities at retail, or offering personal services, primarily to residents of the immediate vicinity; shall have a period of permitted continuance of 10 years from the effective date of this Code, or of the amendment thereto which caused the use to be nonconforming. After five years of such period have elapsed, any use as described in this Paragraph (b)(2) shall, upon application, be qualified for consideration by the City Planning Commission as a conditional use as regulated in Section 303 of this Code. (Amended by Ord. 414-85, App. 9/17/85; Ord. 69-87, App. 3/13/87)

SEC. 185. CONTINUANCE OF OTHER NONCONFORMING USES.

The purpose of this Section is to provide for the gradual elimination or conversion, after a reasonable allowance of time for the amortization of investments therein, of certain classes of nonconforming uses in buildings, in order to encourage and promote the orderly and beneficial development of the land and buildings with conforming uses. The Section is intended to apply to obsolescent buildings whose use is widely at variance with the regulations of this Code, and is safeguarded against unnecessary hardship in application by provision for a minimum period of continuance of 20 years, by procedures for extension and exceptions, and by the requirement of repeated notice as the buildings approach an age indicative of obsolescence. It is further declared that the requirement of eventual removal, or conversion to conforming use of such buildings, subject to the exceptions set forth, is in the public interest and is intended to promote the general welfare.

(a) This Section shall apply only to nonconforming uses occupying buildings in R Districts, other than Residential-Commercial Combined Districts, when such uses would first be permitted as a principal or conditional use in an NC, C or M District or in a Residential-Commercial Combined District. It shall not apply to exempt limited commercial and industrial uses meeting the requirements of Section 186, or to any nonconforming use of land or a building whose continuance is more strictly limited by the provisions of Section 184.

(b) Every such building to which this Section applies may be continued in such use for at least 20 years from the effective date of this Code (May 2, 1960), or of the amendment thereto which causes it to be nonconforming, and may be continued for a longer period if it has not yet reached the age hereinafter specified, computed from the date the building was erected. For buildings of Type 1 or Type 2, as defined in the Building Code of the City, the specified age shall be 50 years; for Type 3 buildings it shall be 40 years; and for Type 4 and Type 5 buildings it shall be 30 years.

(c) Upon the expiration of the period specified for each such building, it shall be completely removed or altered and converted to a conforming use, except as hereinafter provided.

(d) Where special circumstances apply to any such building and use, which do not apply generally to others affected hereby, extension of time may be granted under the variance procedure as regulated in Section 305, but no such extension shall be for a period in excess of one year. Successive extensions, subject to the same limitations, may be granted upon new application.

(e) Any nonconforming use affected by this Section shall be qualified for consideration by the City Planning Commission as a conditional use as regulated in Section 303, upon application filed at any time during the period of permitted continuance specified above. In the event that a conditional use is authorized by the City Planning Commission for any such use, the provisions of Sections 180 through 183 shall continue to apply to such use except as specifically provided in the action of the Commission, and no enlargement, intensification or extension of the nonconforming use shall be permitted by the Commission.

(f) The Zoning Administrator shall give notice by mail of the date of expiration of the periods of permitted continuance specified herein to each owner of record within four years of the effective date of this Code, or of the date of the amendment which caused the use to become nonconforming, and shall repeat such notice at approximate intervals of four years thereafter. A final notice shall be given one year before said date of expiration in each instance. The notices shall set forth all pertinent provisions of this Section, including the declared purposes thereof. Failure to send notice by mail to any such owner where the address of such owner is not a matter of public record, or where no Permit of Occupancy for a nonconforming use covered by this Section has been issued as provided in Section 171 of this Code, shall not invalidate any proceedings under this Section. (Amended by Ord. 470-79, App. 9/28/79; Ord. 69-87, App. 3/13/87; Ord. 115-90, App. 4/6/90)

SEC. 186. EXEMPTION OF LIMITED COMMERCIAL AND INDUSTRIAL NONCONFORMING USES.

The purpose of this Section is to provide for the further continuance in R Districts of nonconforming uses of a limited commercial and industrial character, as herein described, which are beneficial to, or can be accommodated within, the residential areas in which they are located. It is hereby found and declared that, despite the general incompatibility of nonconforming uses with the purposes of this Code, and with other nearby uses, these limited commercial uses may be tolerated in residential areas, and tend to provide convenience goods and services on a retail basis to meet the frequent and recurring needs of neighborhood residents within a short distance of their homes or, within the South of Market RED Districts, tend to provide jobs and continuation of small scale service and light industrial activities. These uses tend to be small in scale, to serve primarily a walk-in trade, and cause a minimum of interference with nearby streets and properties. Accordingly, this Section recognizes the public advantages of these uses and establishes conditions for their continued operation.

(a) The following nonconforming uses in R Districts shall be exempt from the termination provisions of Section 185, provided such uses comply with all the conditions specified in Subsection (b) below:

(1) Any nonconforming use at any story in an RH or RM District which is located more than 1/4 mile from the nearest Individual Area Neighborhood Commercial District or Restricted Use Subdistrict described in Article 7 of this Code, and which complies with the use limitations specified for the first story and below of an NC-1 District, as set forth in Sections 710.10 through 710.95 of this Code.

(2) Any nonconforming use in an RH or RM District which is located within 1/4 mile from any Individual Area Neighborhood Commercial District or restricted use subdistrict and which complies with the most restrictive use limitations specified for the first story and below of:

(A) NC-1 District, as set forth in Sections 710.10 through 710.95 of this Code; and

(B) Any Individual Area Neighborhood Commercial District within 1/4 mile of the use, as set forth in Sections 714.10 through 729.95 of this Code;

(C) Any Restricted Use Subdistrict within 1/4 mile of the use, as set forth in Sections 781 through 781.7 of this Code.

(3) In the RED Districts, any nonconforming use which is a personal service use falling within zoning category 816.31; home and business service use falling within zoning categories 816.42 through 816.47; live/work unit falling within zoning category 816.55; wholesale sales, storage or light manufacturing uses falling within zoning categories 816.64 through 816.67.

(b) The limited nonconforming uses described above shall meet the following conditions:

(1) The building shall be maintained in a sound and attractive condition, consistent with the general appearance of the neighborhood;

(2) Any signs on the property shall be made to comply with the requirements of Article 6 of this Code applying to nonconforming uses;

(3) The hours during which the use is open to the public shall be limited to the period between 6:00 a.m. and 10:00 p.m.;

(4) Public sidewalk space may be occupied in connection with the use provided that it is only occupied with tables and chairs as permitted by this Municipal Code;

(5) Truck loading shall be limited in such a way as to avoid undue interference with sidewalks, or with crosswalks, bus stops, hydrants and other public features;

(6) Noise, odors and other nuisance factors shall be adequately controlled; and

(7) All other applicable provisions of this Code shall be complied with.

(c) Any use affected by this Section which does not comply with all of the conditions herein specified shall be subject to termination in accordance with Section 185 at the expiration of the period specified in that Section, but shall be qualified for consideration as a conditional use under Section 185(e). Any such use which is in compliance with such conditions at the expiration of such period but fails to comply therewith at any later date shall be subject to termination when it ceases to comply with any of such conditions.

(d) The provisions for nonconforming uses contained in Sections 180 through 183 shall continue to apply to all uses affected by this Section 186, except that the cost limit for structural alterations contained in Section 181(b)(4) shall not be applicable thereto.

(Amended by Ord. 470-79, App. 9/28/79; Ord. 69-87, App. 3/13/87; Ord. 445-87, App. 11/12/87; Ord. 115-90, App. 4/6/90; Ord. 250-06, File No. 061069, App. 10/11/2006)

SEC. 186.1. EXEMPTION OF NONCONFORMING USES IN NEIGHBORHOOD COMMERCIAL DISTRICTS.

The purpose of this Section is to provide for the further continuance in NC Districts of nonconforming uses created by adoption of Ordinance No. 69-87, as herein described, and subsequent ordinances that change the uses allowed in NC Districts, which are beneficial to, or can be accommodated within the neighborhood commercial areas in which they are located.

It is hereby found and declared that certain uses which traditionally have been permitted to locate in neighborhood commercial areas can be beneficial to a neighborhood commercial area in small or limited numbers, but which if allowed to proliferate, can disrupt the balanced mix of neighborhood-serving retail stores and services. It is further found and declared that in order to prevent undesirable over concentrations of such uses, the establishment of additional such uses shall be prohibited pursuant to controls governing uses in NC Districts. At the same time, however, it is desirable to provide for the further continuance, expansion, enlargement, alteration, changes, discontinuance, and relocation of such existing uses, which are nonconforming as a result of zoning controls governing uses in NC Districts.

The following provisions shall govern with respect to nonconforming uses and features located in Neighborhood Commercial Districts to the extent that there is a conflict between the provisions of this Section and other Sections contained in this Article 1.7.

(a) Expansion. A nonconforming use may expand: (1) in floor area as provided in Subsection (b) below, but may not expand beyond the lot which it occupies, nor may the boundaries of such lot be expanded for purposes of expanding the use; nor may the use expand upward above the story or stories which it lawfully occupies, except as provided in Section 186.2 below.

(b) Enlargements or Alteration.

(1) A nonconforming use may not be significantly altered; enlarged or intensified, except upon approval of a conditional use application pursuant to the provisions of Article 3 of this Code, provided that the use not have or result in a greater height, bulk or floor area ratio, less required rear yard or open space, or less required off-street parking space or loading space than permissible under the limitations set forth in this Code for the district or districts in which such use is located.

(2) A nonconforming use may expand to include public sidewalk space provided that such space is only occupied with tables and chairs as permitted by this Municipal Code.

(3) No existing use or structure which fails to meet the requirements of this Code in any manner as described above in this Subsection (b) shall be constructed, reconstructed, enlarged, altered or relocated so as to increase the discrepancy, or to create a new discrepancy, at any level of the structure, between existing conditions on the lot and the required standards for new construction set forth in this Code.

(c) Changes in Use. A nonconforming use may be changed to another use or feature as described below.

(1) A nonconforming use may be changed to a use listed in Article 7 of this Code as a principal use for the district in which the property is located, and the new use may thereafter be continued as a permitted principal use.

(2) A nonconforming use may be changed to a use listed in Article 7 of this Code as a conditional use for the district in which the use is located, only upon approval of a conditional use application pursuant to the provisions of Article 3 of this Code, and the new use may thereafter be continued as a permitted conditional use, subject to the provisions of Section 178 of this Code.

(3) A nonconforming use may be changed to a use which is not permitted in that Neighborhood Commercial District as described below, only upon approval of a conditional use application, pursuant to the provisions of Article 3 of this Code:

(A) Any use described in zoning categories .41, .42, .43 or .44, as defined in Sections 790.22, 790.92, 790.90 and 790.91, respectively, may change to another use described in zoning categories .41, .42, or .44, even though such other use is not permitted in that Neighborhood Commercial District, unless such other use is located in an Alcohol Restricted Use Subdistrict and is prohibited by the provisions governing that Alcohol Restricted Use Subdistrict.

(B) Any use described in zoning categories .51, .52 or .53, as defined in Sections 790.114, 790.116 and 790.108 respectively, may change to another use described in zoning categories .51, .52 or .53, even though such other use is not permitted in that Neighborhood Commercial District.

(C) Any use described in zoning categories .57, .58 or .59, as defined in Sections 790.14, 790.17 and 790.15 respectively, may be demolished and reconstructed as the same use or may change to another use described in zoning categories .57, .58 or .59, even though such other use is not permitted in that Neighborhood Commercial District.

The new use shall still be classified as a nonconforming use.

The changes in use described in this Paragraph 3 shall include remodeling activities involving the demolition and replacement of structures which result in a change of use.

(4) In the North Beach Neighborhood Commercial District, any use that exceeds the use size provisions of Section 121.2(a) or 121.2(b) may be changed to a new use only upon the approval of a new conditional use application. The Commission's approval of such conditional use application shall explicitly address the use size findings of Section 303(c). In the North Beach Neighborhood Commercial District, a nonconforming use cannot be changed to any use which is not a permitted use under Section 722 (North Beach Controls).

(5) In the Castro Street Neighborhood Commercial District, any use in this district that exceeds the maximum use size limit of Section 121.2(b), may be not changed to a new use. The only method for changing a nonconforming use identified in this Subsection is to reduce the nonconforming use:

(A) to a conforming use size or

(B) to a size specified in Subsection 121.2(a) pursuant to conditional use authorization.

Notwithstanding the above, any use in this District that exceeds the maximum use size limit of Section 121.2(b) and is categorized in the Other Retail Sales and Services zoning classification, as defined in Section 790.102, may change to another use category enumerated in Section 790.102 as long as the use size is not increased and the Commission approves a conditional use application for such change. The Commission's approval of such conditional use application shall explicitly address the use size findings of Section 303(c).

(d) Discontinuance. A nonconforming use which is discontinued for a period of three years, or otherwise abandoned or changed to another use which is listed in Article 7 of this Code as a principal or conditional use for the district in which the use is located shall not be reestablished. For purposes of this Subsection, the period of nonuse for a nonconforming use to be deemed discontinued in the North Beach and Castro Street Neighborhood Commercial Districts shall be eighteen (18) months, except in the North Beach Neighborhood Commercial District, the period of non use for a full service restaurant use, as defined in Section 790.91, to be deemed discontinued shall be three years.

(e) Relocation. A nonconforming use in a Neighborhood Commercial District may be reestablished at another location within that Neighborhood Commercial District only upon approval of a new conditional use application pursuant to the provisions of Article 3 of this Code, provided that the following conditions are met:

(1) The original premises shall not be occupied by an establishment of the same type of use as the relocating use unless by another establishment that is relocating from within the district; and

(2) No final permits to operate the relocated use at the new premises are granted prior to the issuance of a certificate of final completion of any work to the original premises which is required as conditions attached to the approval of the conditional use application; and

(3) Deed restrictions are recorded for the original premises in the Official Records of the City and County of San Francisco, which restrictions prohibit for the duration of the Code sections prohibiting the use for the district in which the use is located, the establishment and operation of a new use of the same type of use as the relocated use, unless such new use is relocating from within the district.

(Added by Ord. 69-87, App. 3/13/87; amended by Ord. 445-87, App. 11/12/87; Ord. 229-99, File No.990991, App. 8/20/99; Ord. 312-99, File No. 991586, App. 12/3/99; Ord. 198-00, File No. 992321, App. 8/18/2000; Ord. 250-06, File No. 061069, App. 10/11/2006; Ord. 245-08, File No. 080696)

SEC. 186.2. EXCEPTIONS FOR PRE-EXISTING STRUCTURES IN NEIGHBORHOOD COMMERCIAL DISTRICTS FROM CERTAIN LIMITATIONS ON UPPER-STORY USES IMPOSED UNDER ARTICLE 7.

This section is intended to provide for the re-use of (1) multi-story buildings, or (2) buildings with either a ground story with a ceiling height in excess of 15 feet or mezzanines, which buildings were originally constructed prior to the effective date of this provision (Ordinance No. 445-87) for single-tenant occupancy, by uses which are otherwise not permitted on upper stories pursuant to Article 7 of this Code.

(a) In (1) multi-story buildings, or (2) buildings with a ground story with a ceiling height in excess of 15 feet or mezzanines, which buildings were originally constructed for single-tenant occupancy, a use which is permitted as a principal or conditional use at the first story and below may also locate in the upper stories of the building as a nonconforming use as provided in Section 186.1(b) above, if the use occupies all stories as a single tenant. The nonconforming use area in the upper stories occupied by the single use shall be limited to the use approved by the conditional use authorization and shall not be transferable to any other party or parties except upon approval by the City Planning Commission as a new conditional use authorization.

(b) In (1) multi-story buildings, or (2) buildings with a ground story with a ceiling height in excess of 15 feet or mezzanines, which buildings were originally constructed for single-tenant occupancy, an existing first-story nonconforming use may expand above the story which it lawfully occupies as provided in Section 186.1(b) above only if the expanded area is occupied by the same tenant operating the nonconforming use which occupies all stories as a single tenant. The nonconforming use area in the upper stories occupied by the single use shall be limited to the use approved by the conditional use authorization and shall not be transferable to any other party or parties except upon approval by the City Planning Commission as a new conditional use authorization.

(c) Except as provided in this Section or by subsequent changes to the provisions of this Code, new nonconforming uses shall not be established in Neighborhood Commercial Districts.

(Added by Ord. 445-87, App. 11/12/87)

SEC. 187. GARMENT SHOPS AND GARMENT FACTORIES AS NONCONFORMING USES.

(a) A garment shop or a garment factory (as defined in the Building Code), existing on January 1, 1960, and located either in a commercial district or in a building having legal nonconforming commercial status under provisions of the City Planning Code in force on that date, shall be regarded as a legal nonconforming use under provisions of the City Planning Code becoming effective on May 2, 1960, if such shop or factory was brought into compliance with all applicable codes and ordinances prior to January 1, 1961. Permits of Occupancy must have been obtained prior to January 1961, by such shop or factory, and any shop or factory which failed to comply with all applicable codes and ordinances prior to that date shall have closed and discontinued all operations.

(b) Garment shops and garment factories located in an R District, except those having legal nonconforming status, shall have closed and ceased all operations by January 1, 1961.

(c) Garment shops and garment factories having legal nonconforming status in R, NC, and C Districts shall be subject to the provisions of Sections 180 through 185 of this Code as nonconforming uses. No such use shall be intensified by installation of additional machines.

(Added by Ord. 443-78, App. 10/6/78; amended by Ord. 69-87, App. 3/13/87)

SEC. 187.1. SERVICE STATIONS AND GASOLINE STATIONS AS LEGAL NONCONFORMING USES.

(a) As used in this Section, "automotive service station" shall mean an establishment that sells and dispenses gasoline and other motor fuels and lubricating fluids directly into motor vehicles and which may, in addition, provide the types of services specified in Section 223(f) and 223(g) of this Code.

(b) Notwithstanding any other provision of this Code, an automotive service station located in an R district, and having legal nonconforming use status under the provisions of this Code on January 1, 1980, shall be regarded as a legal nonconforming use so long as the station continues to sell and dispense gasoline and other motor fuels and lubricating fluids directly into motor vehicles.

(c) An automotive service station regarded as a legal nonconforming use under Subsection (b) of this Section may enlarge or intensify its current service station operations provided the station receives conditional use approval for such enlargement or intensification under Section 303 of this Code. Conditional use authorizations issued pursuant to this Section shall not contain termination dates.

(Added by Ord. 362-90, App. 11/6/90)

SEC. 188. NONCOMPLYING STRUCTURES: ENLARGEMENTS, ALTERATIONS AND RECONSTRUCTION.

(a) Within the limitations of this Article 1.7, and especially Sections 172 and 180 hereof, a noncomplying structure as defined in Section 180 may be enlarged, altered or relocated, or undergo a change or intensification of use in conformity with the use limitations of this Code, provided that with respect to such structure there is no increase in any discrepancy, or any new discrepancy, at any level of the structure, between existing conditions on the lot and the required standards for new construction set forth in this Code, and provided the remaining requirements of this Code are met.

(b) A noncomplying structure that is damaged or destroyed by fire, or other calamity, or by Act of God, or by the public enemy, may be restored to its former condition; provided that such restoration is permitted by the Building Code, and is started within one year and diligently prosecuted to completion. Except as provided in Subsection (c) below, no noncomplying structure that is voluntarily razed or required by law to be razed by the owner thereof may thereafter be restored except in full conformity with the requirements of this Code.

(c) In order that major life safety hazards in noncomplying structures may be eliminated as expeditiously as possible, a noncomplying structure constructed of unreinforced masonry that is inconsistent with the requirements of the UMB Seismic Retrofit Ordinance, Ordinance No. 227-92, may be demolished and reconstructed to the same level of noncompliance; provided that:

(1) The current requirements of the Building, Housing and Fire Codes and, as applicable, Planning Code are met, provided that the Zoning Administrator may, and is hereby empowered to, permit minor modifications to Planning Code requirements (which may include permitting an increase in the building envelope or a reduction in the number of parking spaces) to the extent necessary and required to bring the replacement building up to such applicable Code requirements and to allow replacement of the demolished building with a building which contains a comparable amount of square footage or the same number of residential units as that of the demolished building. The Zoning Administrator shall provide a written determination regarding such permitted Planning Code modifications; and

(2) Such restoration or reconstruction is started within one year after razing or other demolition work on the structure and diligently prosecuted to completion.

(d) Notwithstanding Subsection (a) of this Section, a noncomplying structure as defined in Section 180, may add nonusable space. "Nonusable space" is space not used for living, sleeping, eating, cooking or working. Public corridors, mechanical space, fire stairs and similar areas, are nonusable space. The enlargement must:

(1) Facilitate the adaptive reuse or the rehabilitation of a landmark site or contributory structure within a Historic District designated under Article 10 of this Code or a significant structure or contributory structure within a Conservation District designated under Article 11 of this Code; and

(A) Be necessary to comply with Building Code, Fire Code or Planning Code requirements; or

(B) Enhance the life safety aspects of the building and/or mechanical, environmental control systems; or

(2) Be located within a C-3 District, and:

(A) Be necessary to comply with Building Code, Fire Code or Planning Code requirements; or

(B) Enhance aesthetic qualities and/or character; or

(C) Enhance the life safety aspects of the building and/or mechanical, environmental control systems; or

(D) Accommodate rooftop features exempted from height limits under Section 260(b) or as provided for under Sections 270, 271 or 272 of this Code.

(3) Application for enlargement of a non-complying structure under Subsection (d)(1) shall be considered as part of an application for a Certificate of Appropriateness under Article 10 or a Permit to Alter under Article 11 of this Code. Any application to enlarge a noncomplying structure under Article 11 shall be considered as a major alteration under Section 1111 of the Planning Code. Application to alter a noncomplying structure not designated an Article 11 significant or contributory building under Subsection (d)(2) shall be considered under the provisions of Section 309(b) of this Code. These applications shall be subject to the following additional criteria:

(A) That the enlargement promote the health, safety and welfare of the public; and

(B) That the enlargement not cause significant shadows or wind impacts on public sidewalks and parks; and

(C) That the structure provides an appropriate transition to adjacent properties, as necessary; and

(D) That the interior block open space formed by the rear yards of abutting properties will not be adversely affected; and

(E) That the access of light and air to abutting properties will not be significantly affected; and

(F) That public view corridors not be significantly affected; and

(4) The City Planning Commission, subject to the same application procedures of Section 188(d)3 above, may grant an exception to the Planning Code requirements rather than expansion of the structure to accommodate the Planning Code requirements. The exception of the Planning Code requirement shall be subject to the criteria below:

(A) That the exception promote the health, safety and welfare of the public; and

(B) That the exception result in an increased benefit to the public and the adjacent properties over the increase in nonconformance; and

(C) That the exception not be detrimental to either the occupants of the proposed project or to the neighborhood.

(e) Notwithstanding Subsection (a) of this Section, and in order that certain character-defining architectural elements of Qualified Movie Theaters be preserved and enhanced, a noncomplying Historic Movie Theater Projecting Sign, as defined in Section 602.25, and/or a noncomplying Historic Movie Theater Marquee, as defined in Section 602.26, may be preserved, rehabilitated, or restored. A noncomplying Historic Movie Theater Projecting Sign or a noncomplying Historic Movie Theater Marquee removed from a Qualified Movie Theater prior to or in absence of an application for replacement may be reconstructed.

(1) For the purposes of this Section, "Qualified Movie Theater" shall mean a building that: (A) is currently or has been used as a movie theater; and (B) is listed on or eligible for listing on the National Register of Historic Places or the California Register of Historical Resources, designated a City Landmark or a contributor to a City Landmark District under Article 10, or designated as a Significant or Contributory Building under Article 11.

(2) Any preservation, rehabilitation, restoration, or reconstruction permitted under this Section shall be in strict conformity with the overall design, scale, and character of the existing or previously existing Historic Movie Theater Sign or Historic Movie Theater Marquee and:

(A) For a Qualified Movie Theater that retains its Historic Movie Theater Projecting Sign and/or Historic Movie Theater Marquee, the signage features shall be limited to the following:

(i) On a Historic Movie Theater Projecting Sign, the historic name associated with a previous theater occupant;

(ii) On a Historic Movie Theater Marquee, the historic name associated with a previous theater occupant and, where applicable, on the signboard, other information that is an Identifying Sign, as defined in Section 602.10, provided such information shall be contained within the signboard, shall not consist of any logos, and shall be in the character of lettering historically found on movie theater signboards in terms of size, font, and detail.

(B) For a Qualified Movie Theater where the Historic Movie Theater Projecting Sign and/or Historic Movie Theater Marquee has been removed and is proposed to be reconstructed, the overall design and signage features shall be limited to the following:

(i) On a Historic Movie Theater Projecting Sign, the historic name associated with a previous theater occupant;

(ii) On a Historic Movie Theater Marquee, the historic name associated with a previous theater occupant and, where applicable, on the signboard, other information that is an Identifying Sign, as defined in Section 602.10, provided such information shall be contained within the signboard, shall not consist of any logos, and shall be in the character of lettering historically found on movie theater signboards in terms of size, font, and detail.

(C) Any application to reconstruct shall include evidence of the dimensions, scale, materials, placement, and features of the previously exiting Historic Movie Theater Projecting Sign and/or Historic Movie Theater Marquee, as well as any other information required by the Zoning Administrator.

(D) General advertising signs shall not be permitted on either a Historic Movie Theater Projecting Sign or a Historic Movie Theater Marquee.

(Added by Ord. 443-78, App. 10/6/78; amended by Ord. 268-91, App. 6/26/91; Ord. 227-92, App. 7/14/92; Ord. 242-08, File No. 071431, App. 10/30/2008)

SEC. 189. SUBSTANDARD LOTS OF RECORD: CONSTRUCTION AND OTHER ACTIONS.

(a) Within the limitations of this Article 1.7, and especially Sections 172 and 180 hereof, a substandard lot of record as defined in Section 180 may have a structure constructed, reconstructed, enlarged, altered or relocated upon it, provided such structure meets the applicable requirements of this Code.

(Added by Ord. 443-78, App. 10/6/78)