Letter of Determination

Transcription

1 rd WJ SAN FRANCISCO PLANNING DEPARTMENT December 1, 2011 J. Gregg Miller, Jr. Pillsbury Winthrop Shaw Pittman LLP P.O. Box 7880 San Francisco, CA Site Address: Assessor s Block/Lot: Zoning District: Staff Contact: Letter of Determination 365 Main Street 3745/008 RH-DTR (Rincon Hill Downtown Residential) Roman Lopez, (415) or Roman.Lopez@sfgov.org 1650 Mission St. Suite 400 San Francisco, CA Reception: Fax: Planning Information: Dear Mr. Miller: This letter is in response to your request for a Letter of Determination regarding the property at 365 Main Street. This parcel is located in the RH-DTR Zoning District with an 85/250-R Height and Bulk District. The request is whether Digital 365 Main LLC ("DRT"), the owner of the property at 365 Main Street (the "Project"), can convert 5,000 square feet of the building space from retail use to an Internet Services Exchange use without an amendment to the Project s Conditional Use permit. The Conditional Use authorization granted on July 6, 2000 by the San Francisco Planning Commission pursuant to Motion No deals substantially with (1) the establishment of a utility use and related impacts, (2) an exemption from the R bulk limits for the addition of a mechanical penthouse necessary for the operation of the Project, and (3) exceptions for the dimensions and number of off-street parking spaces and freight loading spaces. Although the Motion mentions the proposed retail space, the retail use is not required per the Planning Code nor set as a condition of approval for the Project s authorization. At the time of Planning Commission approval the Project site was zoned P (Public) and was located in the Rincon Hill Special Use District which permitted utility uses as a Conditional Use. In 2005, the Project site was rezoned to RH-DTR, which permits Internet Services Exchange (a use specifically regulated since 2002) as a Conditional Use. The Rincon Hill Area Plan seeks to "encourage the development of a unique, dynamic, mixed-use residential neighborhood." However, ground-floor retail use in this district is only required under Planning Code Section 827(2)(A) "for frontages facing Folsom Street." This control does not apply to the Project, which lies at the corner of Main Street and Harrison Street. MEMEEMEMOM

2 J. Gregg Miller, Jr. December 1, 2011 Pillsbury Winthrop Shaw Pittman LLP Letter of Determination 50 Fremont Street 365 Main Street San Francisco CA The proposed change in use, as described by DRT in the Letter of Determination Request, does not represent a significant intensification of the approved utility use. The Project substantially conforms to the findings made by the Planning Commission in Motion No which did not require a ground floor retail use at the subject site. Further, the 2005 rezoning of the area containing the Project does not require a ground-floor retail use at the Project site. Therefore, the change of use of the specified portion of the Project from retail to Internet Services Exchange use can be permitted without an amendment to the Project s Conditional Use authorization. APPEAL: If you believe this determination represents an error in interpretation of the Planning Code or abuse in discretion by the Zoning Administrator, an appeal may be filed with the Board of Appeals within 15 days of the date of this letter. For information regarding the appeals process, please contact the Board of Appeals located at 1650 Mission Street, Room 304, San Francisco, or call (415) Sincerely, Scott F. Sanchez Zoning Administrator cc: Planner Property Owner Neighborhood Groups SAN FRANCISCO PLANNING DEPARTMENT

3 e. Ei fl Qhllrn 37( 1i ujuu Pillsbury Winthrop Shaw Pittman LLP t i/.4- n 50 Fremont Street I San Francisco, CA I tel I fax LI\ +1 0 MAILING ADDRESS: P. 0. Box 7880 I San Francisco, CA J. Gregg Miller, Jr. tel gregg.miller@pillsburylaw.com Scott Sanchez, Zoning Administrator San Francisco Planning Department 1650 Mission Street, 4th Floor San Francisco, CA Re: Request for Zoning Administrator Determination Site Address: 365 Main Street, San Francisco, California Assessor s Block/Lot: 3745/8 Zoning District: Rincon Hill Downtown Residential Dear Mr. Sanchez: This firm represents Digital 365 Main LLC ("DRT"), the owner of the property commonly known as 365 Main Street, San Francisco, California (the "Project")(Assessor s block/lot no. 3745/8). We submit this letter of determination request pursuant to Section 307 of the Planning Code ("Code"). Enclosed herewith is a check in the amount of $ as payment for the Planning Department s Zoning Administrator written letter of determination fee. Requested Determination. We request that you determine that an amendment to the Project s conditional use permit is not required in order to use a portion of the Project for an Internet Services Exchange Use (as defined in Section of the Code) that was originally described as space for retail use. I. Project Description and History. The Project is located on Main and Harrison Streets in San Francisco, and consists of a four story, plus basement, building containing approximately 195,000 square feet of space. Approximately 190,000 square feet of the Project is dedicated to parking and the ISE use. The remaining 5,000 square feet consists of space proposed for retail use (the "Subject Space"). The Subject Space is located entirely on Main Street with no frontage on Harrison Street. The Subject Space is above grade by approximately

4 Page 2 feet and is set back from the building edge of the sidewalk by approximately 10.3 feet. Plans depicting the current Project and showing the location of the Subject Space are attached hereto as Exhibit A. On March 30, 2000, an application for Conditional Use Authorization for the Project was filed under the Planned Unit Development Process pursuant to the Code. Under Case No , on May 17, 2000, the San Francisco Planning Department (the "Department") adopted a Negative Declaration for the Project (the "Negative Declaration"). Also, on July 6, 2000, following a duly noticed public hearing, the San Francisco Planning Commission, pursuant to Motion No (the "Motion") (i) granted the Project conditional use authorization (the "CU") and (ii) determined that the project, as approved, was within the scope of the Negative Declaration and would not result in any significant environmental impacts. Following receipt of the Planning Commission approvals, the Project was constructed as approved. A copy of the Motion is attached hereto as Exhibit B. In a number of places, the Motion mentions that the Project would contain retail space. 2 However, nowhere does the Motion state that such space must be a part of the Project nor, even if part of the Project, that such space is required to actually be used as retail space. In addition the Motion s Conditions of Approval do not include any requirement that the Project include retail space. 3 There is an approximately two and one-half foot high, raised walkway between the at grade sidewalk and the fa ade of the building that creates an approximately ten foot three inch wide space between the at grade sidewalk and the Subject Space s building frontage. For example, the Motion at 4 says that "The Proposal is to retain the existing building.., and to rehabilitate approximately 195,000 square feet, including... approximately 5,000 gross square feet of accessory retail. The Motion at 7 states "The ground floor of the rehabilitated building would include.., accessory retail space" and at 10(2) states that "... the Project would provide for retail storefronts... along Main Street". The Motion contains additional discussion of the Subject Space at 14.b.iv, 16, and 17.a. The Conditions of Approval, found at Exhibit A to the Motion, do reference plans filed with respect to the Project, which are attached as Exhibit C to the Motion. Those plans depict the Subject Space and label it "retail". We attach a set of those plans as Exhibit C to this letter v1

5 Page 3 II. Current Zoning. At the time the Planning Commission approvals were obtained, the Project site was zoned P (Public) and was located in the Rincon Hill Special Use District, Residential Subdistrict. At such time, utility uses were permitted in P Districts with Conditional Use authorization. At the time, the Project was considered a utility use. No Code provisions then existed that specifically classified the use as an Internet Services Exchange. In 2005, the Project site was rezoned and became part of the Rincon Hill Downtown Residential zoning district (the "RHDTR"). In the interim, the Code was revised in 2002 to include new provisions to create and regulate a use known as Internet Services Exchanges ("ISE"). Under the RHDTR, an ISE use is permitted with Conditional Use authorization. III. Use of the Subject Space for ISE Use. DRT believes that use of the Subject Space for ISE use is consistent with the Project s CU such that no amendment to the Conditional Use authorization is necessary. 4 First, in granting the CU, the Planning Commission clearly allowed the use of the Subject Space for retail but did not require that it be used only for retail purposes. The Conditions of Approval that are part of the CU do not require that the Project include any retail space nor that the Subject Space actually be used for retail purposes. If requiring the Project to contain retail space was critical to the Planning Commission s decision to grant the CU, the Motion would have contained a requirement that the space be used only for retail. Second, use of the Subject Space for an ISE use, as opposed to a retail use, is entirely consistent with the CU. The CU authorizes use of the vast majority of the Project for an ISE use. Indeed, the Subject Space constitutes less than 2.5% of the square footage of the entire Project. Using the Subject Space for ISE use, as opposed to retail use, is consistent with the approval of the Project as a utility use for servers. We note that if DRT were allowed to use the space for an ISE use, DRT would not need to make any significant changes to the Project fa ade; only renovations to the interior of the space would be necessary

6 Page 4 Third, the Subject Space is not particularly desirable space for retail use. Located above grade and set back from the sidewalk, the Subject Space lacks the kind of street frontage and visibility that is critical for retail users. In addition, with no other retail use on the 300 block of Main Street, it is highly unlikely that a retail tenant would find the Subject Space desirable. Fourth, use of the Subject Space for an ISE use would not increase the potential environmental impacts of the Project. An ISE use in the Subject Space would constitute a far less intensive use of the space than a retail use. For example, the ISE use would generate far fewer visits by people than a retail use. In addition, DRT would not have to increase staffing levels at the Project as a result of using the Subject Space for an ISE use. Fifth, use of the Subject Space for an ISE use would not constitute a significant intensification of the ISE use at the Project. An ISE use in the Subject Space would not require an increase in the size of the building in which the Subject Space is located or any increase in the size of the electrical service to the Project. The Subject Space constitutes less than 2.5% of the Project s total square footage. Finally, due to security concerns, it is unlikely that DRT would ever be able to have a retail use in the Subject Space - it would just be kept unused and underutilized. Over the years, DRT has installed various security improvements and instituted various security measures in order to create a secure facility and to attract the types of tenants that require a secure location for their critical communications infrastructure. The security improvements and measures, along with tenant demand for high levels of security, do not accommodate a retail use at the Project. For example, a retail use in the Project would open a portion of the Project to the general public, but the Projects security requirements would require careful screening of anyone entering the retail space. Heavy security screening is not compatible with a retail use. Therefore, actually having a retail use in the Subject Space now seems extremely unlikely. IV. Conclusion. As noted above, DRT believes that use of the Subject Space for an ISE use is consistent with the CU for the Project and should not require an amendment to the CU. Furthermore, due to the need to maintain a high level of security, it is highly v1

7 Page 5 unlikely that DRT could ever actually lease the Subject Space to a retail user. For the reasons stated above, we respectfully request that you determine that the Subject Space may be used for an ISE use without an amendment to the Project s CU. Very truly yours, C A I-ILA C~ J. Gregg Miller, Jr. Ends. cc: Julian Banales, Department of City Planning (via , w/encls)