A 297-foot Residential building in a San Francisco Commercial District with a 40-foot Height Limit
Two residential towers will rise in San Francisco’s Marina District even though the lots for the development are not zoned for residential use, and the maximum height allowed is 40 feet. A focal point for the NIMBY v. YIMBY standoff, the project at 11 and 15 Marina Blvd. (the “Marina Project”) will, when it’s completed, climb to 297 feet at one peak on the building’s eastern side and to 232 feet on the western side, with a valley of units in between. By far the tallest building in the district, it would hold 790 residential units, and the city has no discretionary authority to reject or modify the project beyond commenting on objective criteria.
The property is zoned as a Neighborhood Commercial Shopping Center District (NC-S). These districts are “intended to serve as small shopping centers or supermarket sites which provide retail goods and services for primarily car-oriented shoppers.” In new buildings, housing development is permitted. But the height limit is 40 feet.
So, how did the Marina Project shoot up to almost 300 feet? This is the result of the State Density Bonus Law (Gov. Code, § 65915) and the Affordable Housing and High Road Jobs Act of 2022 (AB 2011, Gov. Code, § 65912.100, et seq.). Under these laws, the project developer, Align Real Estate, applied for a 39 percent density bonus and a waiver of, among other things, height restrictions. The project is eligible for a 39 percent density bonus because it plans to make 15 percent of the units affordable at the Very Low Income level, which is 50 percent of the area median income (AMI). It is eligible for a waiver of height restrictions for several reasons which have to do with the maximum density of units the applicable zoning designation would allow for the Marina Project property.
The applicable zoning designation is RM-4 (Residential, Mixed). This is the applicable designation, for purposes of determining the objective zoning standards for the Marina Project, because it is the “zoning designation for the closest parcel that allows residential use at a density proposed by the project.” (Gov. Code, § 65912.113.) The RM-4 designation allows for a maximum density of 1 unit per 200 square feet.
This unit per square feet ratio is than applied to the total square footage of the project’s property to figure out the base density. The Marina Project property is 113,430.24 square feet, which yields, when multiplied by 1:200, 567 units. Because the project is eligible for a 39 percent density bonus, the number of units is increased to 790.
You don’t necessarily need a building with 25 stores to fit 790 units. You could probably fit them in a building that’s much shorter. But that’s not what the State Density Bonus Law or AB 2011 require. In fact, because the Marina Project is eligible for waivers of objective zoning criteria, due to the percentage of affordable housing it will provide, the developer can request a waiver from the zone’s height restrictions if they would prevent the project from realizing its maximum number of units, in whatever configuration. In other words, if the 40-foot limit would prevent Align Real Estate from developing the 297-foot tower on one end and the 232-foot one on the other, that height restriction must be waived if the project applicant requests it, which they have.
Take for example the case of Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329 (”Wollmer“). In Wollmer, the developers applied to the City of Berkeley for a permit to build a five-story building with 98 residential units (including 15 affordable units); 7,770 square feet of ground floor commercial space; 114 parking spaces; and a five-foot right-of-way to the City to accommodate a new left-turn lane to alleviate traffic concerns. The developers also sought approval of a density bonus as provided under state and local law. (Id. at p. 1336.) Later the developers modified their application to request a use that would permit them to proceed with either the approved affordable housing project, or a 98–unit mixed-use building for an affordable senior housing in-fill development. The alternative project included 9,300 square feet of retail space, 25 parking spaces for the senior housing and 18 for retail. The residential units ranged in affordability from a 40 percent to 60 percent average median income. (Id. at p. 1337.)
Pursuant to the State Density Bonus Law, the City waived the standards for height, number of stories and setbacks, granting variances to allow the project an additional story and a higher building height, and to forego setbacks on two corners. (Id. at p. 1346.) The appellant, Wollmer, challenged the waivers on grounds that they were impermissibly granted to accommodate certain project “amenities,” namely an interior courtyard, a community plaza and 15–foot ceilings in the commercial space and nine-foot ceilings in the residential units. (Id.) This, according to Wollmer, was unlawful because, in his view, the City cannot waive development standards in order to approve a density bonus project unless it specifically finds that the waived standards physically preclude construction of the density-bonus qualifying project, and waivers to accommodate project amenities do not meet this test. (Id.)
The court rejected Wollmer’s argument: “Standards may be waived that physically preclude construction of a housing development meeting the requirements for a density bonus, period. (§ 65915, subd. (e)(1).) The statute does not say that what must be precluded is a project with no amenities, or that amenities may not be the reason a waiver is needed.” (Id. at pp. 1346-1347.)
Applying the same reasoning to the Marina Project and assuming a court would consider the project’s design with two towers analogous to the “amenities” in Wollmer, the City should waive the height restriction if it would “physically preclude construction” of the project, so long as the project satisfies the requirements for a density bonus.
The case of Schreiber v. City of L. A. (2021) 69 Cal.App.5th 549 (”Schreiber“) is also instructive. There, the developer applied to the City of Los Angeles to build a residential project 75 feet tall with seven stories, and 60,388 square feet of floor area (FAR 4.2:1), which would include 54 units, five of which would be for very low income and five would be for moderate income. (Id. at p. 553.) The applicable zoning standards restricted the building height to three stories, a height of 45 feet in the front and 33 feet in the back, a total of 40 units, and a maximum floor area of 21,705 square feet (floor area ratio [FAR] of 1.5:1). (Id.)
To overcome the restriction on height, number of units and maximum floor area, the developer requested, and obtained, waivers from those standards. The appellant, Schreiber, challenged the waivers on grounds that section 65915 requires that applicants submit certain financial information to support a request for incentives and waivers. (Id. at 592.) The court disagreed and found that the City’s ordinance requiring documentation to show that a waiver of any development standards is needed in order to make the project economically feasible was preempted by state law. (Id.) An amendment in 2008 to the State Density Bonus Law “delete[d] the requirement that an applicant for a waiver of development standards must show that the waiver was necessary to render the project economically feasible.” (Id., citing Wollmer, 193 Cal. App..4th at p. 1346.) As such, Schreiber’s argument failed.
So, with respect to the Marina Project’s 297-foot and 232-foot towers, far exceeding the zoning standards for height under the applicable zoning designation, the developer does not need to show that a waiver of the height restriction is necessary to make the project economically feasible.
There’s no question that San Francisco needs to increase its housing stock, not only to address the housing crisis but also to avoid falling out of compliance with, among other things, the state’s regional housing needs assessment (RHNA) allocation. San Francisco is about 30,000 units short, and if it does not meet its RHNA allocation by 2031 it could risk losing local control over proposed projects that satisfy objective zoning standards; i.e. the “Builder’s Remedy.” So, adding 790 units in the Marina is a step in the right direction. But deactivating the City’s ability to shape proposed projects to align with neighborhood preferences and city planning vision and goals might go too far.
Phillip Babich is a California real estate and land use lawyer based in Berkeley. He teaches California land use law at the University of San Francisco School of Law.