· The Planning Department has reconstituted and reorganized its code enforcement unit by allocating six positions to that function. In addition to a team leader and one clerical staff person, one planner is assigned to each of the four geographically-based quadrants within the Neighborhood Planning Division of the Department. Although this staffing level is significantly more than that dedicated for the decade of the 1990s, it is not sufficient to effectively manage the current backlog of Planning Code enforcement caseloads.

· As of March 5, 2002, the Code Enforcement unit had 732 active complaint cases, including 171 illegal signs, 147 illegal commercial uses, 121 building enlargements without a permit, 80 illegal units, 56 violations of approval conditions and others. However, only seven of 31 complaints newly recorded in February of 2002, were being investigated. Further, of 41 primarily recent Notice of Violation (NOV) reports referred from the Department of Building Inspection (DBI) to the Planning Department, none were in the possession of the Code Enforcement Unit. Thirteen of the 41 NOV cases were included in the Enforcement Unit"s Complaint Tracking System, having been brought to the Enforcement Unit"s attention through other means.

· According to the current Code Enforcement Manager, the Planning Department did very little Code Enforcement between 1988, the time of the previous Planning Department audit report, and 2000, and in fact, placed approximately 3,550 Planning Code complaint cases in an inactive status in 2001. The types of complaints included in the inactive status include all categories. The Code Enforcement Unit maintains lists of the inactive cases on notebook paper including the type complaint and other information, keyed to the address, but no electronic listing of the complaints, although the complaints were originally contained in an electronic database. Thus, planners in the Neighborhood Planning Division do not have ready access to the complete complaint history on applications being processed. Working with Code Enforcement planners, the Budget Analyst selected a sample of "inactive" complaint cases in order to determine the actual status of the case. Of 18 site visits to inactive case addresses, we were able to determine that at least nine Planning Code violations, primarily illegal dwelling units, still exist.

· The Planning Department has not obtained any Planning Code Enforcement fees since at least 1998, although fee recovery mechanisms exist for that purpose.

Mission and Organization

The mission of Planning Code enforcement is to investigate and resolve complaints relating to violations of the Planning Code. Section 4.105 of the 1996 City Charter, "Planning Commission," states, "The Planning Department (emphasis added) shall administer and enforce the City Planning Code." This general assignment of Planning Code enforcement to the Planning Department is in contrast to the 1932 Charter, as amended, which states " . . . a zoning administrator (emphasis added) appointed subject to the civil service provisions of this charter who shall administer and enforce the zoning and set-back ordinances." (Charter §7.502) However, this difference in Charter terminology has not changed the duties and responsibilities of the Zoning Administrator regarding enforcement because those duties, as elaborated in the Planning Code, continues to assign those responsibilities to the Zoning Administrator.

Planning Code enforcement is carried by a six-person Code Enforcement Unit, which includes a Code Enforcement Manager, four planners who are each assigned to one of four Neighborhood Planning quadrants, and a support staffperson.

Violation Abatement Process

In general terms the Planning Code violation abatement process is as follows:

Code Enforcement Active Workload

As of March 5, 2002, the Code Enforcement Unit was carrying an active code enforcement caseload of 732 cases. Exhibit 13.1 below shows the number of violations by type and neighborhood quadrant.

Exhibit 13.1
Active Enforcement Cases

For the period of October 10, 2001, through March 5, 2002, the Code Enforcement Unit initiated and closed out approximately 20 cases monthly. However, for the period of May 23, 2001, through October 9, 2001, the Code Enforcement Unit initiated an average of 48 new cases monthly and closed out an average of 23 cases monthly. According to the Code Enforcement Manager, the reason for the high number of new cases in the earlier part of calendar year 2001 is due to public knowledge that complaints would be acted upon, which had not previously been the case.

Code Enforcement Inactive Caseloads

In addition to the current workload of approximately 732 active cases, the Planning Department has placed approximately 3,550 complaint cases in an inactive status. Some of these complaints were recorded in the early 1980s but never investigated. The Budget Analyst"s audit report of the Planning Department in 1988 included the statement that the Planning Department had a backlog of approximately 4,550 complaint cases. At that time, accessions of new cases were significantly outpacing dispositioned cases. Further, according to the current Code Enforcement Manager, between the time of the last Planning Department audit in 1988 and the year 2000, the Planning Department did very little Planning Code Enforcement.

The types of complaints included in the inactive status include all categories. Currently, the case folders containing the complaint forms, letters, and various other paperwork are boxed and in storage. The Code Enforcement Unit has lists on notebook paper of the type complaint and address, keyed to the address, but no electronic listing of the complaints, although the complaints were originally contained in an electronic database/ Thus, planners in the Neighborhood Planning Division do not have ready access to the complete complaint history on the applications being processed.

The Code Enforcement Manager is currently working with the Planning Department"s Information Services Division staff to restore an electronically accessible database of these inactive cases. When the database is re-established, the Neighborhood Planning Division will be able to determine whether the case should be reopened and investigated.

When the Planning Department initiated its current efforts to reinvigorate code enforcement in late 1999, the decision was made to place all cases and complaints in an inactive status, with the exception of approximately 30 high priority cases. In this regard, the Zoning Administrator reported in December 9, 1999, memorandum to the Planning Commission that "Currently, the Department has approximately 30 active enforcement cases being pursued. As previously stated, approximately 3,550 complaints are contained in the inactive category. In order to determine the approximate rate of continuing Planning Code violations included in the inactive case population, the Budget Analyst selected 18 such cases. Working with the Code Enforcement Unit planners, we determined from site visits observing the exteriors of inactive complaint addresses that a minimum of nine of the 18 complaints, some ranging back to the 1980s, were still active.

Code Enforcement and Cost Recovery

Planning Code Section 176. "Enforcement Against Violations"

Section 176 of the Planning Code, entitled "Enforcement Against Violations," provides that any use, structure, lot, feature or condition in violation of the Planning Code is unlawful and a public nuisance and empowers the Zoning Administrator to enforce the provisions of the Planning Code by serving notice, calling upon the assistance of the City Attorney, the District Attorney, and the Chief of Police. Section 176 provides for civil penalties of up to $500 for each day the violation was committed or permitted to continue and criminal penalties of up to $500-and/or up to six months imprisonment. Regarding the criminal penalties, each day the violation is committed or permitted to continue constitutes a separate offense.

The monies that would be collected under Section 176 of the Planning Code are payable to the City Treasurer. The Office of the City Treasurer has no record of having received any monies paid under the provisions of Planning Code Section 176.

Planning Code Section 350(c). "Time and Materials"

Article 3.5 of the Planning Code covers fees. Section 350(c)(2), states:

Applications with verified violations of this Code shall be charged time and materials in excess of fee for renotification, investigation and research relating to processing applications, where the applicant has failed to respond fully, and within the time requested, to a notice of incomplete application citing the code violations with direction for their correction, not to exceed five times the amount of the initial fee.

Our discussions with the City Attorney and the Zoning Administrator have yielded the following summary of the foregoing provision: work performed by Planning Department staff in response to an application (conditional use, building permit, variance, etc.) filed in response to a verified violation enables the Planning Department to charge up to five times the initial application fee for actual time and materials expended.

However, in spite of the foregoing provision and the fact that there have been many applications filed and processed by the Planning Department in response to a violation of the Planning Code, the Planning Department"s financial records show that no time and materials collections have been made since at least 1998.

The Code Enforcement Manager reports that the Code Enforcement Unit is currently designing procedures to charge time and materials costs, as allowed by § 350 (c) (2) of the Planning Code. Further, improved coordination between the Department of Building Inspection and the Planning Department on Notices of Violation should enable the Planning Department to recover some costs associated with abating certain Building Code violations.

Planning Code Section 610. "Violation of General Advertising Sign Requirements"

In May of 2001, the Board of Supervisors passed and the Mayor signed legislation enacting Section 610 of the Planning Code, providing penalties for violations of regulations governing general advertising signs: The penalties provided by Section 610 are in addition to those set forth in Section 176 of the Planning Code, previously discussed.

Section 610 provides for the Director of Planning to "impose administrative penalties for violations of the regulations governing general advertising signs set forth in this Article...." Section 610 provides a process for the Director of Planning to serve notice to both the property owner and the company that installed the sign (the "Responsible Parties") describing the violation, stating that the Responsible Parties have up to five business days to remove the sign or be subject to penalties, the amount of the penalty and fees to be imposed, and notifying the Responsible Parties that they have the right to request the Director"s reconsideration by filing such a request within 15 business days of the date of the notice. Section 610 provides administrative penalties against the Responsible Parties of at least $1,000 but not in excess of $2,500 per day, per violation, per Responsible Party. The "Planning Code Enforcement Fund" is the designated repository of any collected penalty fees.

The Planning Department"s experience in implementing the provisions of Section 610 is that although violators will use the appeal provision of the Section to delay having to remove the sign, Section 610 is effective in getting the signs removed. According to the Code Enforcement Unit, no owner of a sign notified of the provisions of Section 610 has maintained the sign into the administrative penalty phase.

However, the provisions of Section 610 cover general advertising signs only. Members of the Planning Department have suggested that other violation types, principally those readily verified, could be added to the violation abatement processes of Section 610, and that the result would be enhanced compliance with Notices of Violation. Violation types suggested are illegal auto repair facilities, illegal commercial uses, and illegal removal of parking. The Budget Analyst is of the opinion that adding such violations to the Section 610 processes could be of valuable assistance to violation abatement and that the idea should be thoroughly investigated, and implemented if found sound.

Code Enforcement Effectiveness

The 1988 Planning Department audit report includes the statement "the Violation Abatement Section must review all building permit applications filed in response to a Building Code violation to verify that the intended use does not also involve a Planning Code violation." However, the Code Enforcement Unit is not currently performing that important task, due to insufficient staffing, as reported by the Code Enforcement Manager. The Code Enforcement Unit has performed without the services of the Northwest Quadrant Planner, who has been on an extended absence since January 2002. Also, the Code Enforcement Unit was assigned its own vehicle only toward the very end of the management audit fieldwork period.

Building inspectors routinely report violations of the Building Code, as a part of their normal duties. Many of these violations involve construction without benefit of a permit or construction in excess of that permitted. In response to such violations, the Building Inspector will file a Notice of Violation against the property.

The Notice of Violation (NOV) form has check boxes for indicating departments other than the Building Department, such as the Planning Department, the Fire Department, and the Department of Public Health that may have an interest in the alleged violation. In order to determine the Planning Department"s performance in processing the Notices of Violation from the Department of Building Inspection, we obtained a total of 41 Notices of Violation that had been referred to the Planning Department by the Department of Building Inspection.

Of the 41 Notices of Violation obtained from the Department of Building Inspection (DBI), none had been physically routed to the Planning Department Code Enforcement Unit. The Enforcement Unit did have complaints against 13 of the 41 addresses for the cited violations that had been obtained from means other than the referred Notices of Violations. Thus, the Planning Department"s Enforcement Unit did not have any record of 28 of the 41 Notices of Violation, which included numerous citations for construction of illegal units.

In response to the foregoing, the Enforcement Unit Manager researched the process whereby NOVs are supposed to be delivered to the Enforcement Unit and determined that such NOVs have been delivered by DBI to the Planning Department"s Planning Information Center on the first floor of 1660 Mission Street, and later distributed to the Neighborhood Planning Quadrants. According to the Enforcement Unit Manager, the Neighborhood Quadrant Team Leaders did nothing further with the NOVs, "expecting that they might ultimately get building permit applications related to the NOVs, unless they were approved over-the-counter."

In response to this finding, the Enforcement Unit Manager has instituted the procedure of having a member of the Enforcement Team retrieve daily from DBI copies of NOVs that contain a Planning Department referral. If executed, this procedure should insure that referred NOVs are physically delivered to the Planning Department"s Enforcement Unit.

As a result of reviewing the referred NOVs, the Enforcement Unit Manager observed that most of the NOVs were referred by approximately 20 percent of the Building Inspectors, mostly those with considerable experience. Therefore, the Enforcement Unit Manager has arranged to provide a training session on Planning Department interest in NOVs to DBIs District Building Inspectors on April 11, 2002.

As another example of the relative ineffectiveness of the current Planning Department"s Code Enforcement program, of 33 new complaint cases opened in February of 2002, only seven were being worked on as of March 22, 2002.

In order to attain a steady state condition with respect to servicing newly opened complaint cases, service the existing backlog of approximately 732 active cases, and bring a measure of control to the existing approximately 3,550 inactive complaint cases, the Planning Code Enforcement Unit needs additional resources. We estimate that the Enforcement Unit would need an additional four planners and additional vehicles for approximately a two-year period in order to achieve control of its existing workload and new accessions. The annual cost of a Planner II at the top step is approximately $79,279, including mandatory fringe benefits. The annual cost of a Planner III at the top step is approximately $94,025, including mandatory fringe benefits. Thus, the annual cost of two Planner II positions and two Planner III positions would be approximately $346,608. The current cost of a mid-size, clean air vehicle is approximately $26,000, including taxes. Therefore, the cost of two such vehicles would be approximately $52,000.

Before adding this level of additional staffing to the Department, even though they would be of limited tenure, the Department should first begin collecting code enforcement related fees such as those authorized by Planning Code Sections 176 and 350.c to begin to generate new revenues that would cover the costs of these limited tenure positions. As new revenues become sufficient to cover these costs, the limited tenure positions could be phased in.

Notices of Special Restrictions

A Notice of Special Restrictions (NSR) is a legal recording with the Recorder"s Office of some sort of restricted use against a property. NSRs serve to inform current owners and future owners of properties as to limitations on uses of properties. NSRs are used in conjunction with Planning Commission cases, such as conditional use approvals and discretionary reviews of building permit applications to record conditions of approval and special restrictions. NSRs are also used by the Zoning Administrator to record restrictions against variance approvals and, to a much lesser degree today than in the past, by the Neighborhood Planning Division to record restrictions or limitations against building permit applications.

Shown in Exhibit 13.2 is the number of NSRs recorded by the Planning Department for the years indicated, beginning in 1981.

Exhibit 13.2
Number of Notices of Special Restrictions Recorded

For the years 1989 through 1996, the Planning Department recorded an average of 983.4 NSRs. However, for the years 1997 through 2001, the average number of NSRs recorded dropped to 202.2, a reduction of 79.4 percent.

According to the Zoning Administrator, the reason for the precipitous reduction is that a previous Zoning Administrator decided that the time involved in developing restrictions and the administrative tasks in having them recorded was not worth the effort, because the Planning Department did not have the staff to enforce them. Therefore, beginning in calendar year 1997 and continuing to the present, NSRs are primarily required only for conditional use approvals, variances, and discretionary review conditions of approval. According to the Zoning Administrator, not requiring NSRs for interior modifications that don"t enlarge the building envelope enables the Planning Department to process such applications "over-the-counter" at the Planning Information Center on the first floor of 1660 Mission Street, thereby improving service for building permit applicants.

However, the increase in service comes at a cost. According to DBI, complaints of illegal units are much easier to verify and abate if an NSR has been recorded against a property. Without the NSR, it is necessary for the DBI Building Inspector to perform extensive research concerning the legal construction of a building. The NSR provides straightforward, unequivocal evidence of what is permitted with respect to construction, which, for example, can lead to an illegal unit.

Conclusion

The Enforcement Unit of the Planning Department is insufficiently staffed to effectively manage the Planning Code enforcement workloads of new cases, servicing the current caseload of approximately 732 cases, and bringing a measure of control to the existing approximately 3,350 inactive complaint cases. We estimate that the Enforcement Unit would need an additional four planners and additional vehicles for at least a two-year period in order to achieve control of its existing workloads and new cases.

The Enforcement Unit, with the assistance of the Zoning Administrator and the Planning Department"s Administrative Division, should develop processes designed to actively recover costs incurred, as provided in Section 350(c)(2) and Section 610 of the Planning Code. Moreover, the Planning Department should seek to expand the scope of Planning Code violations subject to the processes developed for general advertising signs in Section 610 of the Planning Code. As new revenues are generated from these sources, they should be used to cover the costs of limited tenure staff to enforce the backlog cases.

The Enforcement Unit needs to ensure that it records each referred Notice of Violation that potentially includes a Planning Code violation.

The Planning Department should perform a cost-benefit analysis of requiring Notices of Special Restrictions on building permit applications that have the potential for abuse, as was the practice in earlier years.

Recommendations

Based on the above findings, we recommend that the Director of Planning:

13.1 Emphasize the Planning Code enforcement responsibilities of the Neighborhood Planning Quadrant planners in order to assist the Code Enforcement Unit in bringing Planning Code enforcement under control;

13.2 Ensure that the Code Enforcement Unit properly processes all Notices of Violations referred by DBI;

13.3 Ensure that existing means of cost recovery for code enforcement activities are pursued vigorously;

13.4 Investigate the feasibility of obtaining new legislation to expand the types of Planning Code violations subject to the violation penalty fees, similar to those now charged for advertising sign Planning Code violations;

13.5 As new revenues are generated from the code enforcement fees recommended, temporary staff positions should be added to clear backlog cases to the extent their costs are covered by new fee revenue;

13.6 Conduct a review of the benefits and costs of requiring Notices of Special Restrictions on building code permits that have the potential for abuse, as was done in the recent past.

Costs and Benefits

The costs of implementing the above recommendations would primarily be staff time. The cost of salaries, mandatory fringe benefits, and vehicles to provide the Enforcement Unit of the Planning Department