Abatement Appeals Board upholds removal of two Noriega Street sheds, citing recorded easement

On Jan. 20, 2016, the San Francisco Abatement Appeals Board voted unanimously to uphold the Department of Building Inspection's order of abatement to remove two storage sheds placed in a recorded reciprocal easement behind buildings on Noriega Street.

DBI senior building inspector Joe Duffy told the board the department received complaint 201324411 on Sept. 18, 2013 and issued a notice of violation the next day alleging unpermitted storage sheds installed in an easement. Duffy said the department's permit records show a later permit application to legalize two garbage-storage sheds and that the easement language and the hatched area on the approved plans indicate the area is reserved for vehicular and pedestrian ingress and egress. "The notice of violation was properly investigated," Duffy said during his presentation.

The owner and appellant, identified in the record as Hillary Passman (appearing as the owner/appellant), told the board one of the two sheds is not hers and argued DBI had not read or sufficiently investigated the recorded easement before issuing the notice. "This wasn't well investigated," she said, adding that the bakery she runs employs about 20 people and lacks indoor space for garbage storage. She asked whether the abatement appeals board was the proper venue for a broader, citywide resolution of the problem.

Several neighbors and owners told the board the documented declaration of reciprocal easements covers the rear yard and limits use to ingress, egress and incidental purposes; they said the declaration specifically restricts commercial use of the easement. Homeowner Amit Mittal said the rear area is common space for the three parcels and that the process to change the declaration requires convening all 12 owners and DBI approval. Neighbor Yefim Zalzerman described sanitation and safety concerns, saying the sheds hold garbage, leak and sit closer than he believes code allows, and warned they could obstruct evacuation in an emergency. Attorney John Lofton, representing neighbors, told the board paragraph 11 of the declaration prohibits commercial use and urged the board to accept DBI's recommendation to uphold the abatement.

Commissioners questioned whether DBI had issued notices to all responsible parties and whether one or both sheds should be the subject of separate notices if ownership differs. Duffy said four notices of violation were originally issued in 2013 and three were later abated; he also said the bakery applied for a permit to document the placement of two garbage-storage sheds. DBI staff and city counsel explained that the recorded declaration includes a modification section that requires written consent of all signatories and the director's recorded approval for any change, meaning modification of the easement is a legal process that involves owners and the city.

Commissioner Walker moved to uphold the department's order of abatement to remove the two sheds, with language noting the evidence establishes an easement with restrictions that were violated and adding a caveat that if new evidence shows a different owner for the second shed a separate notice could be issued. Commissioner Lee seconded. The board took a roll-call vote and all commissioners present voted yes; the motion carried unanimously.

The board's action affirms DBI's authority to enforce the recorded declaration of easement in this case. The decision directs removal of the sheds; DBI staff said if new ownership information emerges the department can issue an additional notice of violation and pursue enforcement for that unit. The record shows the original complaint and notices date to 2013 and 2014 and that parties have discussed pursuing a modification of the recorded easement through the appropriate legal and administrative process if all owners agree.

The abatement appeals board then moved on to general public comment and adjourned after setting a short recess.