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Board reinstates review of canceled Funston Ave. permit, directs modifications and retains enforcement record
Summary
The Board of Appeals reinstated review of a canceled 2021 permit for 1228 Funston Ave., concluding the Planning Commission's prior discretionary conditions required close analysis under the Housing Accountability Act. The board directed Planning staff to reinstate permit review with modified conditions and left remaining enforcement tools intact.
Owners Elena Asturias and Eduardo Paniagua appealed Planning and DBI's cancellation of a 2021 permit to legalize earlier unpermitted work at 1228 Funston Ave. The case drew extended argument over whether the Planning Commission's conditions from a 2017 discretionary review could be read as objective, continuing code requirements under Planning Code 174 and whether the Housing Accountability Act (HAA) prevents conditions that reduce housing density for a project that meets objective standards.
Appellants said they were defrauded by an engineer and presented a new, compromise design that would legalize the rear addition and create two additional legally permitted units. Planning argued the commission's past objective conditions must still be met under 174 because the current application sought legalization of the same envelope and the property had an unresolved enforcement history and notices of violation.
After lengthy public comment and commissioner questioning, the board voted 4'to'0 to grant the appeal and reinstate the permit review but directed changes: the board removed the most restrictive DRA conditions that would force demolition of the rear massing, maintained other commission conditions intended to ensure compliance, required the applicant revise plans to incorporate the board's direction (including expanding the ground-floor unit footprint by removing an internal laundry closet), and accepted counsel's representation the owners would record a rent-control covenant on any new ground-floor rental unit. The action keeps enforcement records and the order-of-abatement in place while permitting a path to legalization with conditions.
