Board upholds notice of violation for 201 Ashton Avenue, denies appellant’s claims

The San Francisco Board of Appeals on March 5 denied an appeal by the property owner at 201 Ashton Avenue challenging a Planning Department notice of violation (NOV), upholding the zoning administrator’s enforcement action and finding no abuse of discretion.

The NOV at issue was issued Dec. 16, 2024, and alleges violations of Planning Code sections cited in the NOV relating to front setback and work without a permit. Appellant Michal Emberton argued at the hearing that the trellis and fence do not violate the Planning Code because parts of the structure are located in private open space, because the trellis lacks a roof and should be treated like permitted architectural projections, and because a 2019 variance legalized a four-foot fence. Emberton also raised procedural and constitutional objections, calling into question whether Planning used aerial observation without lawful authorization and asserting defects in the NOV’s supporting documentation.

"We humbly request this board declare the zoning administrator abused his discretion, rescind and reverse Planning's unlawful violation notices," Emberton said during testimony.

Corey Teague, the Planning Department’s zoning administrator, told commissioners the NOV concerns an unauthorized structure in the required front setback and that the department’s enforcement is "accurate and appropriate." Teague and other city staff explained that (1) the Board previously addressed the property-line and right-of-way question in prior hearings and accepted the city records confirming the right-of-way location, (2) a portion of the trellis extends into the required front setback and is therefore not permitted under the Planning Code provisions that govern permitted obstructions in setbacks, and (3) the department did not enter private property to gather evidence and relied on observations from the public right of way.

Kevin Birmingham of the Department of Building Inspection (DBI) testified that under the building code a garden structure such as a pergola or trellis "requires a building permit" when it exceeds 60 square feet or 8 feet in height or is more than 50% enclosed; he said planning approval would also be required when a variance is involved.

Board members questioned the scope of the board’s review, with several commissioners noting the panel had previously considered related issues — including the location of the property line and a prior minor sidewalk encroachment permit — and that those prior rulings and an accompanying survey supported the city’s position. Deputy City Attorney Jesse Minordi advised the board that its review is limited to whether the zoning administrator committed an error or abused his discretion in issuing the NOV and that the board may rely on its prior determinations of facts and law.

Commissioner Lopez moved to deny the appeal and uphold the NOV on the basis the zoning administrator did not err or abuse his discretion. President Transvinha, Vice President JR Epler, Commissioner Rick Swig and Commissioner Lopez voted "aye," the motion carried 4–0, and the appeal was denied.

The board’s decision preserves the NOV requirement that the appellant either remove the unauthorized obstruction or pursue lawful authorization under the Planning and Building codes, including obtaining any required permits or a variance. Emberton said she plans to continue to press her claims in court; Teague and Birmingham noted there are existing administrative and judicial avenues to dispute the city’s determinations.