SAN FRANCISCO PLANNING Ia]1J!! ; IiyA Letter of I1I I Determination 1650 Mission St. Suite 400 San Francisco, CA 94103-2479 June 26, 2013 Reception: 415.558.6318 Deborah Kartiganer, Esq. Fax: Sedgwick LLP 415.558.6409 333 Bush Street, 301h Floor Planning San Francisco CA 94104 Information: 415.558.6317 Site Address: 938 Howard Street Assessor s Block/Lot: 3725/015 Zoning District: MUR (Mixed Use Residential)/85-X SoMa Youth and Family Special Use District (SUD) Staff Contact: Corey Teague, (415) 575-9081 or corey.teague@sfgov.org Dear Ms. Kartiganer: This letter is in response to your request for a letter of determination regarding the characterization and permissibility of Kaiser Permanente s proposed establishment of a Chemical Dependency Recovery Program ("CDRP"), which treats alcohol and substance abuse dependency for adults, teens, and families on an outpatient basis in a medical office setting, in a building located at 938 Howard Street, San Francisco, in the MUR (Mixed Use Residential) Zoning District. Specifically, you have requested a Letter of Determination to confirm the following: 1. That Kaiser s proposed CDRP would be considered a Medical Services use within the Mixed Use Zoning Districts (including the MUR district) of San Francisco; and 2. That a Medical Services use constitutes a principally permitted "Office use" in the MUR Zoning District, such that the CDRP use would be permitted in an MUR Zoning District without any additional discretionary review or approval other than a building permit. BACKGROUND You described the CDRP, which currently operates in several locations around the Bay Area, as a program that provides to Kaiser s members outpatient-based mental health treatment for drug, chemical and alcohol abuse problems. This treatment includes psychological and medical evaluation in individual and group therapy formats, education, skill building, wellness programs, self-help programs, and recovery programs, all in a professional office setting. It is my understanding that the CDRP does not include residential rehabilitation, hospitalization, or other inpatient programs. Kaiser s brochures and documentation for the program describe it as a "health service." The CDRP would be open on weekdays from 8am to 7:30 pm, and on the weekends from late morning to the mid-afternoon. On average, the CDRP is expected to have a fairly regular stream of approximately 75 www.sfpianning.org
Deborah Kartiganer, Esq. June 26, 2013 Sedgwick LLP Letter of Determination 333 Bush Street, 301h Floor 938 Howard Street San Francisco CA 94104 to 115 visitors per day, with occasional increases in visits around holidays. The CDRP premises would include: offices, conference rooms, two or three exam rooms, kitchens, and a medication dispensary (medication will be dispensed to members, but not directly administered to them). Its staff would include psychologists, marriage/family therapists, social workers, interns, medical assistants, a receptionist, and researchers from Kaiser s Department of Research. DETERMINATION Given the character of the proposed CDRP use, I have concluded that the applicable Planning Code classification is Medical Services (Planning Code Section 890.114), defined in pertinent part as follows: "A use, generally an office use which provides medical and allied health services to the individual by physicians, surgeons, dentists, podiatrists, psychologists, psychiatrists acupuncturists, chiropractors, or any other health-care professionals when licensed by a State-sanctioned Board overseeing the provision of medically oriented services. It includes a clinic, primarily providing outpatient care in medical, psychiatric or other health services, and not part of a hospital or medical center, as defined in Section 890.44 of this Code." (emphasis added) A Medical Services use is distinguishable from a "Hospital or Medical Center" use, which is defined by Section 890.44 of the Planning Code as "[a] public or private institutional use which provides medical facilities for inpatient care, medical offices, clinics, and laboratories." This definition demonstrates that Hospitals and Medical Centers are considered to be integrated medical facilities that provide an array of "traditional" medical services to (among others) patients on an inpatient basis. By contrast, Kaiser s CDRP solely constitutes an office use that will provide medical and psychological outpatient care (not including any invasive medical procedures and unconnected with any medical clinics, laboratories, or inpatient facilities). Thus, the CDRP use fits within the Medical Services use category. Pursuant to the Planning Code, uses within Mixed Use Zoning Districts (including the MUR Zoning District) are considered to be office uses when they meet the following definition (set forth in Section 890.70): (a) "Office use" shall mean space within a structure or portion thereof intended or primarily suitable for occupancy by persons or entities which perform, provide for their own benefit, or provide to others at that location services including, but not limited to, the following: Professional; banking; insurance; management; consulting; technical; sales; and design; and the non-accessory office functions of manufacturing and warehousing businesses; all uses encompassed within the definition of "office" in Section 219 of this Code; multimedia, software development, web design, electronic commerce, and information technology; all uses encompassed within the definition of administrative services" in Section 890.106 of this Code; and all "professional services" as proscribed in Section 890.108 of this Code excepting only those uses which are limited to the Chinatown Mixed Use District. SAN FRANCISCO 2 PLANNING DEPARTMENT
Deborah Kartiganer, Esq. June 26, 2013 Sedgwick LLP Letter of Determination 333 Bush Street, 301h Floor 938 Howard Street San Francisco CA 94104 (b) Office use" shall exclude: retail uses; repair; any business characterized by the physical transfer of tangible goods to customers on the premises; wholesale shipping, receiving and storage; and design showrooms or any other space intended and primarily suitable for display of goods. In other words, the "Office use" category is an "umbrella" category that encompasses many other types of uses that are listed separately in the use definitions of Planning Code Section 890 (applicable to the City s Mixed Use districts)) Although Medical Services are not specifically listed in the examples of Office uses given in Section 890.70, that section expressly states that its list of examples is not allinclusive. Furthermore, the types of representative uses that it does list (such as professional and consulting activities) encompass quiet and consistent office and administrative operations with relatively regular workday hours, analogous to most Medical Services operations. Finally, Medical Services are not specifically excluded from the definition of Office uses pursuant to Planning Code Section 890.70(b). This determination is supported by Planning Code Section other sections of the Planning Code, which specifically list Medical Services (together with Professional and Financial Services) as office uses within the MUG and UMU Zoning Districts (see Planning Code Sections 840.65A and 843.65A, respectively). 2 Thus, Medical Services similarly should be considered part of the "All Other Office Uses" category in the MUR Zoning District (see Planning Code Section 841.66). Please be aware that if the proposed CDRP is larger than 25,000 square feet, it may require an "Office Development Allocation" from the Planning Commission pursuant to Planning Code Section 321 et seq. Additionally, pursuant to Planning Code Section 304.5(i), the Planning Department shall not approve any building permit for interior alterations to an existing building that significantly intensify, change or expand the use, occupancy or inpatient services or facilities of an institution that requires to maintain an Institutional Master Plan (IMP) with the City until such facility is included within an IMP that is accepted by the Planning Commission. I This construct is similar to the Planning Code s treatment of "Other Retail Sales and Services," which are defined as a group in Section 890.102 and regulated together in the Zoning Control Tables for the Mixed Use districts, but actually encompass various several different retail uses with separate use definitions. 2 The only reason why Professional, Financial, and Medical Services uses are listed as a separate row under "Office Uses" in the Zoning Control Tables for the MUG and UMU districts is because the MUG and UMU districts are subject to office vertical controls under the Planning Code, and those controls may be relaxed slightly only under certain circumstances with respect to those particular office uses. By contrast, the MUR district is not subject to any office vertical controls, and thus there was no reason to differentiate those specific office uses from the other office uses by creating a separate row for them in the Zoning Control Table. Instead, they are deemed part of the "All Other Office Uses" category. SAN FRANCISCO PLANNING DEPARTMENT
Deborah Kartiganer, Esq. June 26, 2013 Sedgwick LLP Letter of Determination 333 Bush Street, 301h Floor 938 Howard Street San Francisco CA 94104 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) 575-6880. Sincerely, Scott F. Sanchez Zoning Administrator cc: Corey Teague, Planner Neighborhood Groups SAN FRANCISCO 4 PLANNING DEPARTMENT
ATTORNEYS AT LAW 333 BUSH STREET, 30TH FLOOR SAN FRANCISCO, CALIFORNIA 94104-2834 www.sedgwick1aw.com 415.781.7900 pioe 415.781.2635 Jx SedgwickLL, Deborah L. Kartiganer deborah. kartiganer@ secl,gwicklaoi. corn April 24, 2013 Via Courier Scott Sanchez Zoning Administrator City & County of San Francisco Planning Department 1650 Mission Street, Suite 400 San Francisco CA 94103-2479 Re: 938 Howard - Request for Letter of Determination Regarding Character of Kaiser Permanente s Proposed Use File No.: 03869-000011 Dear Mr. Sanchez: We are writing on behalf of our client, Kaiser Foundation Health Plan, Inc. ("Kaiser"), which is considering leasing an approximately 25,000-square-foot building located at 938 Howard Street, San Francisco, in an area zoned MUR (Mixed Use Residential). Kaiser would use this building for the operation of its Chemical Dependency Recovery Program ("CDRP"), which treats alcohol and substance abuse dependency for adults, teens, and families on an outpatient basis in a medical office setting. We request a Letter of Determination to confirm the following: 1. That Kaiser s proposed CDRP would be considered a Medical Services use within the Mixed Use zoning districts (including the MUR district) of San Francisco; and 2. That a Medical Services use constitutes a principally permitted Office use in the MUR district, such that the CDRP use would be permitted in an MUR district without any additional discretionary review or approval other than a building permit. Use Characterization of Kaiser s CDRP Kaiser s CDRP, which currently operates in several locations around the Bay Area, provides to Kaiser s members outpatient-based mental health treatment for drug, chemical and alcohol abuse problems. This treatment includes psychological and medical evaluation in individual and group therapy formats, education and skill building, and wellness programs, self-help programs, and recovery programs, all in a professional office setting. The CDRP does not include residential rehabilitation, SF/3 795222v3
Scott Sanchez Re: 938 Howard - Request for Letter of Determination Regarding Character of Kaiser Permanente s Proposed Use April 24, 2013 Page 2 hospitalization, or other inpatient programs. Kaiser s brochures and documentation for the program describe it as a "health service." 1 The CDRP will be open on weekdays from 8am to 7:30 pm, and on the weekends from late morning to the mid-afternoon. On average, the CDRP is expected to have a fairly regular stream of approximately 75 to 115 visitors per day, with occasional increases in visits around holidays. The CDRP premises will include: offices; conference rooms; two or three exam rooms, kitchens, and a medication dispensary (medication will be dispensed to members, but not directly administered to them). Its staff will include psychologists, marriage/ family therapists, social workers, interns, medical assistants, a receptionist, and researchers from Kaiser s Department of Research. We believe that the applicable Planning Code classification for Kaiser s proposed CDRP would be Medical Services (Planning Code Section 890.114), defined in pertinent part as follows: A use, generally an office use, which provides medical and allied health services to the individual by physicians, surgeons, dentists, podiatrists, psychologists, psychiatrists, acupuncturists, chiropractors, or any other health-care professionals when licensed by a State-sanctioned Board overseeing the provision of medically oriented services. It includes a clinic, primarily providing outpatient care in medical, psychiatric or other health services, and not part of a hospital or medical center, as defined in Section 890.44 of this Code. (emphasis added) A Medical Services use is distinguishable from a "Hospital or Medical Center" use, which is defined by Section 890.44 of the Planning Code as "[a] public or private institutional use which provides medical facilities for inpatient care, medical offices, clinics, and laboratories." This definition demonstrates that Hospitals and Medical Centers are considered to be integrated medical facilities that provide an array of "traditional" medical services to (among others) patients on an inpatient basis. By contrast, Kaiser s CDRP solely constitutes an office use that will provide medical and psychological outpatient care (not including any invasive medical procedures and unconnected with any medical clinics, laboratories, or inpatient facilities). Thus, the CDRP fits squarely within the Medical Services use category. Medical Services Uses Permitted in the MUR District Pursuant to the Planning Code, uses within the City s Mixed Use districts (including the MUR district) are considered to be Office uses when they meet the following definition (set forth in Section 890.70): (a) "Office use" shall mean space within a structure or portion thereof intended or primarily suitable for occupancy by persons or entities which perform, provide for their own benefit, or provide to others at that location services including, but not limited to, the following: Professional; banking; insurance; management; consulting; technical; sales; and design; and the non-accessory office functions of manufacturing and warehousing Please do not hesitate to contact me with any questions about the character of Kaiser s CDRPs. In addition, if you wish, please feel free to explore the following website (for Kaiser s Oakland CDRP): http://mydoctor.kaiserperrnanente.org/ncal/facilities/regiofl!eastbay/area master/departments/psychiatry/chemical dependenc y/cd rp. j sp. SF/3 795222v3
Scott Sanchez Re: 938 Howard - Request for Letter of Determination Regarding Character of Kaiser Permanente s Proposed Use April 24, 2013 Page 3 businesses; all uses encompassed within the definition of "office" in Section 219 of this Code; multimedia, software development, web design, electronic commerce, and information technology; all uses encompassed within the definition of "administrative services" in Section 890.106 of this Code; and all "professional services" as proscribed in Section 890.108 of this Code excepting only those uses which are limited to the Chinatown Mixed Use District. (b) "Office use" shall exclude: retail uses; repair; any business characterized by the physical transfer of tangible goods to customers on the premises; wholesale shipping, receiving and storage; and design showrooms or any other space intended and primarily suitable for display of goods. (emphasis added) In other words, the "Office use" category is an "umbrella" category that encompasses many other types of uses that are listed separately in the use definitions of Planning Code Section 890 (applicable to the City s Mixed Use districts). 2 Although Medical Services are not specifically listed in the examples of Office uses given in Section 890.70, that section expressly states that its list of examples is not allinclusive. Furthermore, the types of representative uses that it does list (such as professional and consulting activities) encompass quiet and consistent office and administrative operations with relatively regular workday hours, analogous to most Medical Services operations. Finally, Medical Services are not specifically excluded from the definition of Office uses pursuant to Planning Code Section 890.70(b). The Planning Code itself bears out the conclusion that Medical Services constitute Office Services, because it specifically lists Medical Services (together with Professional and Financial Services) as Office uses within the MUG and UMU districts (see Planning Code Sections 840.65A and 843.65A, respectively). 3 Thus, Medical Services similarly should be considered part of the "All Other Office Uses" category in the MUR district (see Planning Code Section 841.66). Because "All Other Office Uses" are principally permitted uses within the MUR district, Kaiser should be able to establish its CDRP in that district without conditional use authorization or any other type of discretionary approval (other than a building permit). Conclusion Kaiser s CDRP constitutes a Medical Services use, which is considered to be part of the Office use category within the Mixed Use Neighborhoods. Because Office uses are principally permitted within the MUR district, Kaiser s proposed CDRP use should require no discretionary review or 2 This construct is similar to the Planning Code s treatment of "Other Retail Sales and Services," which are defined as a group in Section 890.102 and regulated together in the Zoning Control Tables for the Mixed Use districts, but actually encompass various several different retail uses with separate use definitions. The only reason why Professional, Financial, and Medical Services uses are listed as a separate row under "Office Uses" in the Zoning Control Tables for the MUG and UMU districts is because the MUG and UMU districts are subject to office vertical controls under the Planning Code, and those controls may be relaxed slightly only under certain circumstances with respect to those particular office uses. By contrast, the MUR district is not subject to any office vertical controls, and thus there was no reason to differentiate those specific office uses from the other office uses by creating a separate row for them in the Zoning Control Table. Instead, they are deemed part of the "All Other Office Uses" category. SF/3795222v3
Scott Sanchez Re: 938 Howard - Request for Letter of Determination Regarding Character of Kaiser Permanente s Proposed Use April 24, 2013 Page 4 approval other than a building permit (except as may be necessary for any particular characteristics of the project that are regulated separately by the Planning Code). This conclusion is not only strictly consistent with the Planning Code, but it is also good public policy. Easy access to outpatient health care is important in mixed use residential areas for both residents and employees of commercial tenants. In Kaiser s case, providing CDRP services to its members living and working in this community is an extremely important aspect of Kaiser s care delivery system. We look forward to receiving your determination as to the matters in this letter at your earliest convenience. As we have in the past, we have prepared for your consideration the enclosed draft Letter of Determination in an effort to expedite the process and to assist you in your endeavors. In accordance with the City s current fee schedule, we have also enclosed a check in the amount of $601, payable to the San Francisco Planning Department. Thank you very much for your consideration of this request. Please do not hesitate to contact me with any questions you may have. Very truly yours, Deborah Kartigan,/ Sedgwick LLP Enclosures cc: Viki L Westfall Indrajit Obeysekere,Esq. Tom Bruister SF/3 795222v3
Letter of Determination May,2013 Deborah L. Kartiganer, Esq. Sedgwick LLP 333 Bush Street, 30th Floor San Francisco CA 94104 RE: Kaiser Permanente s Proposed Chemical Dependency Recovery Program at 938 Howard Street Dear Ms. Kartiganer: This letter is in response to your request for a letter of determination regarding the characterization and permissibility of Kaiser Permanente s proposed establishment of a Chemical Dependency Recovery Program ("CDRP"), which treats alcohol and substance abuse dependency for adults, teens, and families on an outpatient basis in a medical office setting, in a building located at 938 Howard Street, San Francisco, in an area zoned MUR (Mixed Use Residential). Specifically, you have requested a Letter of Determination to confirm the following: 1. That Kaiser s proposed CDRP would be considered a Medical Services use within the Mixed Use zoning districts (including the MUR district) of San Francisco; and 2. That a Medical Services use constitutes a principally permitted Office use in the MUR district, such that the CDRP use would be permitted in an MUR district without any additional discretionary review or approval other than a building permit. My responses are as follows: Characterization of the CDRP. You have described the CDRP, which currently operates in several locations around the Bay Area, as a program which provides to Kaiser s members outpatient-based mental health treatment for drug, chemical and alcohol abuse problems. This treatment includes psychological and medical evaluation in individual and group therapy formats, education and skill building, and wellness programs, self-help programs, and recovery programs, all in a professional office setting. My understanding is that the CDRP does not include residential rehabilitation, hospitalization, or other inpatient programs. Kaiser s brochures and documentation for the program describe it as a "health service." The CDRP will be open on weekdays from 8am to 7:30 pm, and on the weekends from late morning to the mid-afternoon. On average, the CDRP is expected to have a fairly regular stream of approximately 75 to 115 visitors per day, with occasional increases in visits around holidays. The CDRP premises will include: offices; conference rooms; two or three exam rooms, kitchens, and a medication dispensary (medication will be dispensed to members, but not directly administered to them). Its staff will include psychologists, marriage/ family therapists, social workers, interns, medical assistants, a receptionist, and researchers from Kaiser s Department of Research. SF/3802817v2
Given the character of the proposed CDRP use, I have concluded that the applicable Planning Code classification would be Medical Services (Planning Code Section 890.114), defined in pertinent part as follows: A use, generally an office use, which provides medical and allied health services to the individual by physicians, surgeons, dentists, podiatrists, psychologists, psychiatrists, acupuncturists, chiropractors, or any other health-care professionals when licensed by a State-sanctioned Board overseeing the provision of medically oriented services. It includes a clinic, primarily providing outpatient care in medical, psychiatric or other health services, and not part of a hospital or medical center, as defined in Section 890.44 of this Code. (emphasis added) A Medical Services use is distinguishable from a "Hospital or Medical Center" use, which is defined by Section 890.44 of the Planning Code as "[a] public or private institutional use which provides medical facilities for inpatient care, medical offices, clinics, and laboratories." This definition demonstrates that Hospitals and Medical Centers are considered to be integrated medical facilities that provide an array of "traditional" medical services to (among others) patients on an inpatient basis. By contrast, Kaiser s CDRP solely constitutes an office use that will provide medical and psychological outpatient care (not including any invasive medical procedures and unconnected with any medical clinics, laboratories, or inpatient facilities). Thus, the CDRP use fits squarely within the Medical Services use category. Medical Services Uses Permitted in the MUR District Pursuant to the Planning Code, uses within the City s Mixed Use districts (including the MUR district) are considered to be Office uses when they meet the following definition (set forth in Section 890.70): (a) "Office use" shall mean space within a structure or portion thereof intended or primarily suitable for occupancy by persons or entities which perform, provide for their own benefit, or provide to others at that location services including, but not limited to, the following: Professional; banking; insurance; management; consulting; technical; sales; and design; and the non-accessory office functions of manufacturing and warehousing businesses; all uses encompassed within the definition of "office" in Section 219 of this Code; multimedia, software development, web design, electronic commerce, and information technology; all uses encompassed within the definition of "administrative services" in Section 890.106 of this Code; and all "professional services" as proscribed in Section 890.108 of this Code excepting only those uses which are limited to the Chinatown Mixed Use District. (b) "Office use" shall exclude: retail uses; repair; any business characterized by the physical transfer of tangible goods to customers on the premises; wholesale shipping, receiving and storage; and design showrooms or any other space intended and primarily suitable for display of goods. (emphasis added) In other words, the "Office use" category is an "umbrella" category that encompasses many other types of uses that are listed separately in the use definitions of Planning Code Section 890 (applicable to the SF/38028 17v2 2
City s Mixed Use districts). Although Medical Services are not specifically listed in the examples of Office uses given in Section 890.70, that section expressly states that its list of examples is not allinclusive. Furthermore, the types of representative uses that it does list (such as professional and consulting activities) encompass quiet and consistent office and administrative operations with relatively regular workday hours, analogous to most Medical Services operations. Finally, Medical Services are not specifically excluded from the definition of Office uses pursuant to Planning Code Section 890.70(b). This determination is supported by other sections of the Planning Code, which specifically list Medical Services (together with Professional and Financial Services) as Office uses within the MUG and UMU districts (see Planning Code Sections 840.65A and 843.65A, respectively). Thus, Medical Services similarly should be considered part of the "All Other Office Uses" category in the MUR district (see Planning Code Section 841.66). Because "All Other Office Uses" are principally permitted uses within the MUR district, Kaiser may establish its CDRP in that district without conditional use authorization or any other type of discretionary approval (other than a building permit). To conclude, Kaiser s proposed CDRP constitutes a Medical Services use, which constitutes part of the Office use category within the Mixed Use Neighborhoods. Because Office uses are principally permitted within the MUR district, Kaiser s proposed CDRP use would require no discretionary review or approval other than a building permit (except as may be necessary for any particular characteristics of the project that are regulated separately by the Planning Code). If you have any questions regarding this matter, please contact by telephone at or email at 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) 575-6880. Sincerely, Scott F. Sanchez Zoning Administrator cc: This construct is similar to the Planning Code s treatment of "Other Retail Sales and Services," which are defined as a group in Section 890.102 and regulated together in the Zoning Control Tables for the Mixed Use districts, but actually encompass various several different retail uses with separate use definitions. 2 The only reason why Professional, Financial, and Medical Services uses are listed as a separate row under "Office Uses" in the Zoning Control Tables for the MUG and UMU districts is because the MUG and UMU districts are subject to office vertical controls under the Planning Code, and those controls may be relaxed slightly only under certain circumstances with respect to those particular office uses. By contrast, the MUR district is not subject to any office vertical controls, and thus there was no reason to differentiate those specific office uses from the other office uses by creating a separate row for them in the Zoning Control Table. Instead, they are deemed part of the "All Other Office Uses" category. SF/3802817v2