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CITY AND COUNTY OF SAN FRANCISCO

BOARD OF APPEALS 2003-2004

   COMMISSIONERS

                                                    Kathleen Harrington, President

Hisashi B. Sugaya, Vice President

Frank Fung, Commissioner

Randall Knox, Commissioner

                                                 Sabrina N. Saunders, Commissioner

            STAFF FOR 2003-2004

Robert H. Feldman, Executive Secretary                                                   (1575)

Catherine B. Johnson, Principal Clerk                                                        (1408)

Victor F. Pacheco, Legal Assistant                                                            (8173)

Marylee Phillips, Sr. Clerk Typist                                                               (1426)

Paul C. Johnson, Sr. Clerk Typist (part-time as needed)                             (1426)

Iris Davis, Sr. Clerk Typist (part-time as needed)                                        (1426)

              Manuel Payes, Jr. Clerk (part-time as needed)                                            (1402)

Claudine Woeber, Official Court Reporter (annual contract approved by Civil Service Commission,

Purchaser, Administrative Officer and City Attorney) for 2003-2004.

STATEMENT OF PURPOSE & MISSION

The Mission of the Board of Appeals, a quasi-judicial body created under the Charter of 1932, is the processing, hearing and deciding of appeals of departmental decisions involving the grant, denial, suspension, and revocation of permits, licenses, and other use entitlements by various commissions, departments, bureaus, agencies and officers of the City and County of San Francisco, including the granting and denial of variances and other determinations of the Zoning Administrator and discretionary review decisions and certain authorizations by the Planning Commission.

AUTHORIZATION & PROCEDURES:  

The jurisdiction of the Board is set forth in Section 4.106 of the Charter and the Board of Appeals’ regulations are contained in the Business & Tax Regulations Code, Article 1, Permit Procedures, §§ 1-31, and under the Rules of the Board.  The Charter, revised effective July 1, 1996, retained the Board, and changed its name from the Board of Permit Appeals to the Board of Appeals (§ 4.106).  Specific rights of appeal to the Board are also set forth in the Building, Planning, Public Works, Police, Health, Plumbing and Electrical Codes.  The following are examples of the matters under the jurisdiction of the Board:

a)       building permits for new commercial and residential buildings

b)       alteration permits for rear decks and room additions to residential buildings

c)            demolition permits and determinations of unlawful demolitions

d)            rear yard and parking variances, to legalize dwelling units and allow expansion of houses

e)            place of entertainment/dance hall keeper, and after hours permits

f)      taxicab medallions and taxi driver permits, and public convenience and                              necessity findings of the Taxi Commission which determine the number of                   taxicab medallions issued by the City.

Under the revised Charter of 1996 the Board lost jurisdiction over permits issued by the Recreation and Park Department and the Port Commission, as well as any building or demolition permits issued pursuant to a Conditional Use Authorization by the Planning Commission or the Board of Supervisors.

The Board continued its practice of having the Official Court Reporter at the beginning of each meeting swear or affirm in all those intending to testify at any hearing that night, and to repeat this process during the evening as necessary to insure that all who testify are sworn or affirmed.

This fiscal year the Board processed 198 appeals.  Many involved more than one department, and required the resolution of several issues requiring the Board to resolve several hundred issues.

The attached statistical breakdown indicates the nature and disposition of appeals decided during the fiscal year or pending at its end.   

PERFORMANCE GOALS

The goals for the Board have been to issue 95% of its final written decisions within thirty days of final action, and to schedule hearings within 45 days of filing.  The Board has consistently met the goal of releasing final decisions within 30 days of final action, but has not been able to meet the goal of scheduling hearings within 45 days of filing.  We remain concerned with the costly and complicated legal burdens placed upon it both by the nature of appeals, and the resolutions and litigation they generate, and by the Sunshine Ordinance, and will continue to strive to efficiently serve the public and reach our goals.  Litigation results in the need for more documentation of cases and the adoption of substantial written findings and preparation of complete administrative records. 

BUDGET

The Departmental budget for FY 2003-2004 submitted by the Mayor and adopted by the Board of Supervisors was $456,756.  This was basically the same as the previous year, with only minor adjustments.  The Board of Appeals operated within its budget and no supplementals were required.  Actual expenses were $418,007.  Appeal fees accounted for the only revenue generated by operations which were projected at $52,000, and the actual amount collected was $42,550 which was deposited into the City’s general fund.  This revenue was supplemented by surcharges on certain permit applications issued by the Departments of Building Inspection, Planning, Public Works, Police, and Taxi Commission, which totaled $216,877, which was deposited into a special account used to support our operations.  The surcharges ranged from $1.00 to $10.00, and are adjusted annually by the Controller and the Supervisors so that we are not a burden on the general fund.

TELEVISION BROADCAST

Beginning in 2002, the proceedings of the Board are broadcast on SFGTV cable channel 26.  Copies of the videotapes are available to the public from the station for a nominal fee.

NARRATIVE OF YEAR’S ACTIVITIES

INTRODUCTION:

Throughout the year the Board considered a variety of appeals as listed on pages 2 and 3.  Each meeting agenda had, in addition to regular appeals, requests for rehearing, requests for jurisdiction, and the adoption of findings for cases already decided.  The following narrative describes significant decisions and activities of the year.

FIRST QUARTER: JULY 1 TO SEPT. 30, 2003

During the first meeting of the new fiscal year the Board granted two requests for rehearing and one request for jurisdiction (to allow a late filing of an appeal).  The Board has allowed late filings in cases where the departments have failed to give parties proper notice of permit issuance.  In two protest appeals an appellant contested the demolition of a small one-family house and construction of a two-family house on the site.  The Board denied the appeals and upheld both permits on condition that the plans be revised to reduce the length of the proposed building by four feet on all three stories.  This type of protest appeal was typical of appeals heard throughout the year, with issued permits being upheld on condition that plans be revised to meet the concerns of the appellants without denying the permit holder the opportunity to go forward with the basic proposal. 

Also the first of several appeals concerning replacement of windows in architecturally significant buildings was heard.  The Planning Department suspended similar permits during the year to seek compliance with guidelines from the Landsmarks Preservation Advisory Board, which are meant to preserve the architectural integrity of the existing façade.  The Board urged the contractor to work with the Planning Department to avoid problems in the future. 

Also scheduled that night were two cases involving a recurring problem during the year: revocations of taxi medallions and driver permits by the Taxi Commission.  As it has in previous years, the Board continued to press for a graduated penalty program to replace the drastic revocation actions, and to encourage compliance with City regulations requiring driving by medallion holders. 

Later in July the Board heard a protest appeal by a resident trying to save a tree slated for removal and replacement.  Tree appeals generate emotional responses from parties and from neighbors, who consider street trees an important part of a neighborhood deserving of protection.  Permit holders often feel equally strongly that they should be allowed to remove trees with roots that break their sidewalk and clog their sewer connections, resulting in significant costs.  Testimony from foresters and arborists added an academic flavor to the proceedings. 

In August, an appeal of a Planning Commission denial of an alteration permit to merge two dwelling units raised unit merger issues regulated by Commission guidelines meant to preserve affordable rental units.  This and several other cases involved buildings in the most expensive parts of the City and young families trying merge units to create large one-family houses in densely built-up neighborhoods.  These cases were sometimes complicated by evictions of tenants, raising issues regulated by the Rent Board and civil law.  The Board tried to reach equitable decisions preserving rights of owners and tenants. 

In September, an appeal of a Zoning Administrator determination regarding the lawful use of an apartment house as five units raised issues of City records, reports and current zoning density standards as owners tried to establish the legality of existing units created before density and parking standards were enacted.  The Board had tough decisions to make balancing the integrity of zoning use regulations with the need to preserve existing apartments, which may have met the simpler Codes of the past but do not meet the current Codes.  Through the year cases of apartments created for servants or building managers whose owners now want to put them on the rental market came up and the Board tried diligently to allow continued residential use, sometimes asking Dept. of Building Inspection staff to make site visits to determine if units were safe and habitable before it allowed their continued residential use.

SECOND QUARTER: OCT. 1 TO DEC. 31, 2003

Also in October, the Board considered an appeal by the Telegraph Hill Dwellers of a proposed nine-unit mixed-use building at Lombard and Columbus in North Beach.  Their decision upholding the permit was followed by Supervisors’ action aimed at condemning  the property for purchase by the City for use as a park.  The controversy went on for months and the project remained un-built at the end of the year.  During November and December, the Board heard two dozen appeals of revocations of various Police permits for failure to pay the annual fees as required by the Code.  Permits for massage establishments, pushcarts, billiard parlors, tow cars and arcades were some of the permits involved.

THIRD QUARTER: JANUARY 1 TO MARCH 30, 2004

During January, the Board upheld a determination that a multi-family residential project in the former Golden Gateway Development Area does not require a new conditional use authorization from the Planning Commission.  The opposition objected to the loss of recreation facilities and tennis courts on the site, which have served residents in the area for many years and  testimony was impassioned. 

In February the Board held its annual election of officers and Kathleen Harrington and Hisashi Sugaya were elected President and Vice President, respectively.  At the same meeting, Planning staff presented the revised Residential Design Guidelines adopted the Planning Commission, which provide criteria for evaluation of harmony of new residential construction as required by Prop. M, Section 101.1, of the Planning Code.  The Director of the DBI has toughened his enforcement of demolition permit requirements, which resulted in difficult decisions for the Board as half completed projects were halted for lack of proper permits.  An appeal of such a matter had its initial hearing in February and was continued several times, and continued pending into the new year while the owner struggled to meet DBI requirements without removing sheetrock for inspections and submittal of adequate plans, with the Board urging the parties to reach an agreement and end the impasse. 

Later in February several Taxi Commission revocations of cab drivers’ permits presented the Board with having to decide appeals involving driver’s ability to earn a living balanced against the needs of tourists and residents. 

In an especially difficult case, the Board upheld a Planning Commission denial of an alteration permit for an addition to a two-unit building on San Jose Avenue opposed by the tenant who battled to keep the unit he had occupied for many years.  Testimony from tenants’ rights activists supported the tenant, and the Board continued the matter several times in the hope the parties could reach an agreement.  In the end the parties could not reach an agreement and the appeal was finally rejected and the denial upheld on a split vote. 

Throughout the year appeals by tenants seeking to prevent renovations and additions that would result in their eviction were a staple with the Board always attempting not to encroach on the Rent Board’s jurisdiction over landlord-tenant matters, while appropriately limiting themselves to their jurisdiction over permits and zoning variances. 

In mid-February the Board held a hearing on and adopted the proposed budget for FY2004-2005 with revenue from appeal fees and permit application surcharges, projecting reliance on only $26,000 from the general fund.  There was no significant change from the previous year. 

In March the Board found itself dealing with immigrant labor issues in an appeal of an office alteration to provide space for an immigrant rights organization being opposed by residential neighbors opposed to laborers using the area for pick-ups for day labor. 

FOURTH QUARTER: APRIL 1 TO JUNE 30, 2004

Taxi medallion revocations returned to the calendar in April, with the Board in most cases overruling revocations and imposing suspensions to support enforcement efforts of the Taxi Commission and the Police Department Taxi Detail while allowing holders some income to support families.  Again the Board urged the Taxi Commission to seek amendments to taxi regulations that account for aging and disability of drivers and owners who must meet driving requirements to keep their medallions. 

In May, the Board began consideration of an Incompatible Activities Statement required of all boards and commissions under the Campaign and Governmental Code, which remained pending at the end of the year.  The statement is to guide commissioners and staff in use of City equipment and outside employment that is inappropriate in light of official duties and public employment. 

In June a case involving public toilets installed by a French firm in exchange for advertising kiosks came up with appeals by people opposing placement of toilet facilities on sidewalks in front of residential and commercial buildings.  Merchant groups supported certain ones to accommodate tourists and customers who otherwise had no facilities except those in businesses, and with neighbors opposing because of fear of facilities being used for criminal purposes, prostitution and drug dealing.  Again the Board encouraged parties to meet and discuss to reach agreement on an appropriate location that would serve all parties. 

Throughout the year appeals of dwelling unit mergers, street tree removals, housing replacement demolitions, fence and retaining walls, horizontal and vertical additions to houses, and decks and stairs were heard every month, with matters continually complicated by inconsistencies in the Planning and Building Codes on apartments, housekeeping units and neighbor notification requirements.  The repetition of problems indicates the need for amendments to the Codes to make regulations consistent and mutually supportive so that the public and businesses can deal with their projects and appeals in a reasonable and straight-forward, logical manner.

Commissioner Harrington provided strong leadership and was particularly effective in managing long calendars.  She expressed great interest in appeals involving small businesses, strongly supported owners’ rights.  Commissioner Shoemaker took the lead in consideration of appeals involving multi-unit projects and affordable housing.  Commissioner Sugaya demonstrated great interest in architectural design issues and expertise in architectural conservation, seeking to mitigate the negative effects of projects on surrounding neighbors.  Commissioner Saunders continued as in past years to take special interest in appeals involving evictions of single parent families and loss of employment. 

Litigation:  During the year several Board decisions were challenged in Superior Court and the Board was effectively represented by the City Attorney’s office. 

Departmental representatives at public hearings:  The City Attorney was represented by Deputy City Attorney Catharine Barnes.  The Planning Department by Lawrence Badiner, Zoning Administrator, backed up by Senior Planners Craig Nikitas, Jonas Ionin,, and Julian Banales; the Department of Building Inspection by Chief Building Inspector Laurence Kornfield, assisted by Senior Building Inspector Leo McFadden; the Police Department by Sgt. William Coggan of the Department's Legal Division; the Taxi Commission by Executive Director Naomi Little; she was supported by Inspector Farrell Suslow and Sgt. Vince Simpson of the Police Department’s Taxi Detail; and Acting Urban Forester Tony Wolcott represented the Dept. Of Public Works Bureau of Urban Forestry.

Staff:  Catherine Johnson, Office Manager, performed admirably as she trained and supervised staff, attended hearings in the absence of the Executive Secretary, coordinated the appeals process, as well as meeting the requirements of the Mayor’s Budget Office, the Controller, the Purchaser, DHR, DTIS, and other required duties.  Victor Pacheco, Legal Assistant, attended all Board meetings as clerk and timekeeper, drafted and maintained Board calendars and minutes, prepared all rescheduling notices, notices of appeal, issued final notices of decision, supervised all communications with parties, created and amended forms/templates to assist the public, kept the departmental website up to date, and supervised the Senior Clerk Typist and Junior Clerk, always with great professionalism and a sense of humor.  Marylee Phillips provided reception, typing and in-take services, while Iris Davis, Chris Johnson, Elizabeth Rudzinski and Manuel Payes served admirably in various clerical roles on a part-time basis.  Official Court Reporter Claudine Woeber successfully completed her contract obligations and was rehired for the new year.

It remains the intention of the Board and its staff to continue to strive for excellence in serving the public, with strict attention to all legal requirements, and with compassion for those involved in the process.    

Prepared by

Robert H. Feldman, Executive Secretary

cc:  Hon. Gavin Newsom, Mayor; Commissioners of the Board of Appeals (5); Public Library (2 copies); Clerk of the Board of Supervisors

This report will be posted on the Board of Appeals’ website, www.sfgov.org/boa, pursuant to Ordinance no. 14-03.