Abatement Appeals Board denies rehearing after competing surveys in Divisadero retaining-wall dispute

The Abatement Appeals Board on Sept. 23 denied a request to rehear abatement orders for retaining walls along properties near Divisadero Place and Washington Street, voting unanimously to sustain the original notices.

Appellant counsel Melinda Sarjapour, representing owners of seven condominium units, told the board she sought rehearing to present ‘‘new evidence’’ including a recently produced survey, historic Sanborn and assessor maps and legal authority she said bears on liability for repair. Sarjapour said the new materials show portions of the retaining wall lie on the Divisadero Place parcel at 2308 Divisadero Place.

Stan Gray, a licensed land surveyor with Meridian Surveying, testified his firm marked the wall and measured a point at the base that showed the wall’s face at that location extended about 0.13 feet — roughly 1½ inches — over the property line. Gray said the measurement was taken at a location where the wall was not visibly bowing and that prior surveys used different offsets from monument lines.

"So it's an inch and a half over the line," Gray said when describing his measurement. David Ron, the surveyor who produced the original survey, disputed that the new submission added materially new facts, saying the two surveys differ only by small shot locations and that the ends of the walls are clear of the property line while the middle sections show cracking and bowing associated with the failure.

Chief inspector Patrick O'Reardon, speaking for the department, told the board that building inspectors are not surveyors and described field observations of two retaining walls that are "leaning," "cracked" and "bowing." He reviewed the new survey points and noted the middle survey point (identified in briefing as point G) was measured about 2 feet above ground and showed an overage of roughly 0.13 feet at that location. "When we saw the picture with the rule next to the wall," he said, the visible damage supported the department's enforcement decision.

Homeowners and representatives of the Divisadero Place Homeowners Association countered that the appellants misread or misdated historic maps and that their building postdates the adjacent properties. HOA member Kate Cardoz said the association did not ask for the hearing and argued that visible failure at the wall — not ownership by stare — should determine responsibility. "Someone's failing does not make the wall become mine," Cardoz said.

Board members debated whether the single additional point and the accompanying photos constituted ‘‘new evidence'' sufficient to warrant rehearing. Some members said the supplemental measurement could have affected prior votes; others said the change was immaterial in light of visible structural damage at the wall and the department's emphasis on expedient repair and public-safety concerns.

Following deliberation, a motion and second were called to deny rehearing. The board conducted a roll-call vote and approved the motion unanimously: Vice President Clinch — yes; Commissioner McCarthy — yes; Commissioner Maher — yes; Commissioner Lee — yes; Commissioner McCray — yes; Commissioner Walker — yes. The motion carried, and the board sustained the abatement notices. The meeting adjourned at 12:27 p.m.; the members planned to reconvene shortly as the Building Inspection Commission.