Letter of Determination

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1 0 SAN November 22, 2013 FRANCISCO PLANNING DEPARTMENT Mr. 95 Brady Street San Francisco, CA Letter of Determination Site Address: - dba Cosmo Hotel Assessor s Block/Lot: 0304/015 Zoning District: RC-4 (Residential- Commercial, High Density) District SUD: North of Market Residential SUD, Subarea No. 1 Staff Contact: Elizabeth Watty, (415) or Elizabeth.Watty@sfgov.org 1650 Mission St. Suite 400 San Francisco, CA Reception: Fax: Planning Information: Dear Mr. Badirier: This letter is in response to your request for a supplemental Letter of Determination for the property at. The site is located in the RC-4 (Residential-Commercial, High Density) District, the North of Market Residential Special Use District No. 1 ("NOMRSUD") and the 80-T-130-T Height and Bulk District. The request supplements a previous Letter of Determination dated September 13, 2013, which asked for confirmation that converting accessory space within an existing 151-room tourist hotel into 22 tourist hotel rooms would not constitute an intensification of a nonconforming use under Planning Code Section 181. The current requests ask for confirmation that although the existing hotel exceeds the Planning Code s Floor Area Ratio (FAR) maximum, the building s square footage may be reconfigured so long as the project does not result in a net increase in floor area. The project proposes to add a new floor level within the ballroom and to create two light courts at the rear of the building. The new floor area created through the insertion of a new floor and the loss of floor area caused by the creation of two new light wells would result in an equal or lesser FAR for the building. According to your letter, the property at consists of an 18-story tower on Post Street and a two-story rear portion that currently contains support facilities on the lower level and a double height ballroom on the first floor. The hotel is 57,972 square feet on an 8,250 square foot lot. This equals an FAR of 7.03:1, which exceeds the Planning Code s FAR maximum of 4.8:1, making the existing structure legal noncomplying with regard to its FAR. The proposal is to remodel the rear portion of the building on the lower level and first floor, and to insert a new second floor within the ballroom. The project would convert approximately 16,119 square feet of interior space (including a new interstitial second floor of approximately 3,042 square feet in the ballroom) into 22 hotel guestrooms oriented toward the newly created light wells (which would remove 3,042 square feet of floor area) along the west and east sides of the property. The project would increase the number of guestrooms in the hotel by approximately 15 percent to 173 tourist hotel rooms, but would not add any square footage to the building. The FAR would remain at 7.03:1.

2 Mr. November 22, 2013 Badiner Urban Planning. Inc. Letter of Determination 95 Brady Street San Francisco, CA Pursuant to Planning Code Section 188, noncomplying structures may be "enlarged, altered or relocated...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." Section 188 allows a noncomplying structure to be relocated, and it follows that a noncomplying portion of a structure may similarly be relocated within the structure. The project would relocate noncomplying FAR within the same building through a single permit. Upon the project s conclusion, there would be 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 the Planning Code. Since the project would be processed through one alteration permit, the relocation of noncomplying FAR within the same building is permitted through Planning Code Section 188. Please note that before the Department can approve this work, it will need to review the gross floor area calculations for the existing building and the proposed project through a building permit application in order to verify that the project will result in an FAR that is equal or lesser than the existing conditions on the lot, based on the Planning Code s definition of gross floor area (Section 102.9). If you have any questions regarding this matter, please contact Elizabeth Watty by telephone at (415) or at Elizabeth.Watty@sfgov.org. 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, eague Acting Zoning Administrator cc: Elizabeth Watty, Planner Neighborhood Groups Property Owner SAN FRANCISCO 2 PLANNING DEPARTMENT

3 !A ---- UPPLEM&iV7/k J? 95 Brady Street San Francisco, CA jr.r / Phone (415) LarybadinorurbanpLanning.com Web: badinerurbanptanning.com Mr. Scott F. Sanchez Zoning Administrator San Francisco Planning Department 1650 Mission Street Suite 400 San Francisco, California Site Address: - Cosmo Hotel Assessor s Block/Lot: 0304/015 Zoning District: RC-4 (Residential- Commercial, High Density) District Height and Bulk District: T Preservation: Contributory Building in the Apartment Hotel NRHD RE: Supplemental Request for Letter of Determination Determination That Inserting Additional An Interstitial Floor Balanced By Light Wells In A Noncomplying Building With Respect To FAR Is Permitted Dear Mr. Sanchez: We respectfully supplement our request for a Letter of Determination, pursuant to San Francisco Planning Code Section 307 (a), acknowledging that the Cosmo Hotel may expand the second floor of the hotel into the existing ballroom. The area added on this expanded second floor will be balanced by space deducted from the building by the creation of new lightwells on the east and west sides of the rear of the building. The net proposed result will be that the floor area of the building remains the same in a noncomplying building with respect to FAR. I represent RLJC San Francisco LP, the owner of the hotel. We submitted a request for a Letter of Determination on August 13, 2013 with respect to the increase in the number of hotel rooms that you responded to on September 13, In that letter, you noted that there was not enough information available to make a determination as to whether the addition and simultaneous removal of floor area in a single parcel would be permitted in a building that is noncomplying with respect to FAR.

4 R: I M, Further, we had not addressed this issue in our original request for a Letter of Determination. Background The owners of are preparing for minor reconfigurations on the lower three floors in the back of the hotel building. The building consists of an 18-story tower on Post Street and a two-story rear annex that currently contains support facilities on the Lower Level and a double height ballroom on the First Floor. The space to be remodeled is on the southeast corner of the building on the Lower Level, First Floor and newly inserted Second Floor in the ballroom. This space is not visible from any public viewpoint. Specifically, the proposal is to convert approximately 16,119 square feet of interior space (including an expansion of the Second Floor of approximately 3,042 sf in the upper area of the ballroom) on these floors into up to 22 hotel guestrooms oriented to newly created light wells (3,054) on the east and west property lines. There are no exterior alterations proposed since two light wells are within the envelope and the property line non-architecturally treated walls. This proposed reconfiguration will increase the number of guestrooms in the hotel by approximately 15 percent up to 173 rooms. It will not add any square footage to the building. The existing building is 57,972 sf on an 8,250 sf lot (Assessor s Records) for an approximate FAR of slightly under 7:1. The allowable FAR in an RC-4 District is 4.8:1, so we acknowledge for the purposes of this letter that the building is nonconforming with respect to FAR. Discussion We did not originally address the question of essentially trading floor area in a building that is nonconforming with respect to FAR because we understood that was permitted by the Planning Department s longstanding practice. In checking with former staff members, they had the same understanding going back to the at least the 1970s. SEC 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 noinireasjn..am, discrepancy, or any new discrepancy, at FT1eve 1f the structure, between existing con diii n ns, on the lot and the required standards

5 M.- I M, for new construction set forth in this Code, and provided the remaining requirements of this Code are met. [Emphasis Added] Section 188 allows a noncomplying structure to be relocated, and it follows that a noncomplying element of a structure may be relocated. We are proppig to relocate noncomplying FAR within a buildin in le pprmi Upon the project s conclusion, there wi be, "...no increase in any dcrepancy, or any new discrepancy. at any level of thstructure, between existing conditions on the lot and theregiiird for construction set forth in this Code." We understand that there is a concern that because we are adding some space in the building, and removing other space in the building, at any one instant of time there might be more or less floor area than exists at the project s start or conclusion. However, the end result will be the same square footage. Typically, the Planning Code is applied to an entire permit and does not look at interim construction stages of a single permit, provided that the project is executed as a whole. Further, the space does not legally exists until the permit receives a final inspection and Certificate of Occupancy, so at no time would there be legally occupiable space either in excess or under the current FAR. An analogous situation is in the moving of a nonconforming unit within a building. Code Section: 181(a) Subject: Moving of an NCU within a building Effective Date: 1/97 Interpretation: This Subsection states that a nonconforming use (N CU) "shall not be enlarged, intensified, extended, or moved to another location, the prohibition against moving shall not apply to relocation within the same building, provided it occupies the same or less area and is not intensified in some other way. It is logical that relocation of an NCU to some other lot should not be allowed because it shifts the negative impacts of an NCU to a different environment which would be unfair to its unsuspecting neighbors. However, the same logic does not apply to relocation (without intensification) within the same building where its unsuspecting neighbors would only be other building tenants. Generally, other City Codes such as the Building or Housing Codes govern or protect the environment within a building while the Planning Code is intended to

6 M.- I M, 4 control the impacts of a building on surrounding properties and population. The zoning lot (as defined by "Lot" in Planning Code Section 102) is normally the basic unit to which most zoning regulations apply. Therefore, it is reasonable to assume that relocation to another lot is what was meant by this prohibition. [Emphasis In Original Interpretation] Therefore, it is permitted to move a dwelling unit that is over the permitted number of dwelling units within a building. At anyone time during the construction, there may be an increase or decrease in the number of units by one depending on whether the replacement unit is constructed before the original unit is demolished or whether the original unit is demolished before the replacement unit is created. The interpretation is silent as to this issue, because the end result is the same number of units existing at the end of the project as existed at the beginning of the project. Similarly, the end result of our project to insert floor area balanced by new Iightwells is the same floor area as when we started. Similarly, this Interpretation allows the moving of NCUs both within a building and within a district by CU: Code Section: 186.1(c)(5) Subject: Relocation of NCU in NCDs Effective Date: 4/88 Interpretation: This Section says that in Neighborhood Commercial (NC) Districts, a nonconforming use can be "reestablished at another location" within that district through a conditional use authorization. The phrase, "at another location" is interpreted to refer also to a different floor area within the same building. [Emphasis In Original Interpretation] At any one time there may be two NCUs in existence, but at the completion of the project only one NCU will exist. This project is distinguishable from a case in which there is a multi-building complex that is over FAR where onebuilding is demolished and rehiiilt t radjjj[oor area. As separate buiidiæs, the removal of one bujn rpq &a.drnoiitica..pnnjtand new construction permit. not an alteration permit. as in the si ihjf case hjsjhe demohtion4lermlt wilt 1e tifll. extingui.sfling tfl noaoniormity, tetore tile new construction permit is commence,". her, the demolition and new construction necessi a es a significant period of time (at least a year) where the FAR is reduced,

7 fl unlike the subject case. The demolition and new construction will be very visible, as opposed to the subject property where all alterations are within enclosed walls. Therefore, we request you confirm that relocation of floor area in the Cosmo Hotel s ballroom is permitted under Planning Code Section 188, which allows the relocation of noncomplying structures, provided that the new floor area is balanced by the insertion of hg htwells. Please do not hesitate to call me at (415) if you or your staff has any questions regarding this letter. Sincerely, Badiner Urban Planning cc: Elizabeth Watty, SF Planning Department RLJC San Francisco LP Michael Stanton, Stanton Architecture Sandra Chow, Stanton Architecture

Letter of Determination

IeA ID coulv~, SAN FRANCISCO PLANNING DEPARTMENT Letter of Determination 1650 Mission St. Suite 400 San Francisco, CA 94103-2479 September 25, 2013 Mr. 95 Brady Street San Francisco, CA 94103 Reception: