Board of Appeals denies appeal, upholds notice of violation for trellis and fence at 201 Ashton Avenue

The San Francisco Board of Appeals denied an appeal and upheld a notice of violation issued December 16, 2024 for 201 Ashton Avenue, voting 4-0 on March 5, 2025.

Appellant Michal Emberton asked the board to find that the Zoning Administrator abused his discretion and to rescind Planning Department violation notices related to a fence and a trellis (pergola) that Planning says sit in the required front setback and require a permit or variance. Emberton argued the trellis is not within the required front setback, that the structure is open and should be treated differently under the code, and that the Notice of Violation (NOV) lacked required photographs and misapplied Administrative Code Chapter 80 and Planning Code provisions.

Corey Teague, Zoning Administrator for the Planning Department, told the board the NOV relates specifically to an unauthorized structure within the required front setback and is accurate and appropriate. Teague explained the department’s position rests in part on the city's established record for the property line, a survey submitted during prior hearings that the board relied on when it issued earlier decisions about a related minor encroachment permit and later denied a variance for the pergola. "It is my opinion that the notice of violation in question is accurate and appropriate. It does not represent an abuse of discretion," Teague said.

Kevin Birmingham of the Department of Building Inspection (DBI) said the department’s guidance is that a garden structure such as a pergola, cabana or sunshade requires a building permit when it exceeds certain size or height thresholds. On the record he summarized the department’s FAQ: "Does a garden structure such as a pergola, cabana, sunshade require a building permit? ... the answer is yes," when thresholds are met.

Emberton disputed several elements of the enforcement: she said the trellis is eight feet tall, open on the walls and top, and that a 2019 variance legalized a four-foot fence. Emberton told the board the City and Department of Public Works’ (DPW) assertion of a public right of way mislocates the setback; she argued the matter of whether the right of way is public or private is for a civil court. "We humbly request this board declare the zoning administrator abuse his discretion, rescind and reverse planning's unlawful violation notices, order planning to issue new lawful decisions, and order planning to adhere to municipal state and federal law," Emberton said.

Multiple commissioners noted the matter had been the subject of several prior hearings before the board. Board records show an earlier appeal (related to a minor sidewalk encroachment permit) resulted in the board granting an encroachment permit with conditions while specifically reserving the question of a variance; the appellant later applied for a variance for the pergola, which was denied and the denial was upheld by the board. The board also received a survey during those prior proceedings that Planning and Public Works relied on to locate the property line.

Commissioner Lopez moved to deny the appeal on the ground that the zoning administrator did not err or abuse his discretion; President Trezvino, Vice President Epler and Commissioner Swig voted aye. The motion carried 4 to 0 and the NOV was upheld.

The board record and testimony reflect the parties were informed that further dispute over property-line location or other legal claims remains available to the parties in civil court; the board’s action addressed only whether the zoning administrator’s issuance of the NOV was an abuse of discretion or error under the board’s jurisdiction.