Board of Appeals denies appeal for 704 Broderick Street, upholds notice of violation

SAN FRANCISCO — The San Francisco Board of Appeals voted unanimously to deny an appeal by the owners of 704 Broderick Street and to uphold a notice of violation alleging an unauthorized dwelling unit (UDU) and illegal parking in the front setback.

At a remote hearing, the board recorded a 5–0 vote to deny the appeal after hearing arguments from the property owners and extensive presentation by planning staff. Commissioner Rick Swig moved to deny the appeal, saying the zoning administrator "did not abuse his discretion." The board directed the owners to pursue either legalization of the unit or a conditional-use authorization to remove it, and noted the parking violation must be addressed as part of compliance.

The planning department presented evidence that realtor marketing materials and lease documents had previously listed multiple units at the property and staff site-visit photos show a door that, under the department’s interpretation of Planning Code section 3.17, means there is not an "open visual connection" between the floors. "Simply a door is enough for it to not be an open visual connection," Deputy Zoning Administrator Scott Sanchez told the board, summarizing staff’s view that the physical separation and other documentary evidence supported the notice of violation and penalty.

Appellants, represented by attorney Ryan Patterson, argued the zoning administrator erred because the First Floor lacked the independent characteristics required for a UDU and was connected to the upper floors by an open stairwell. Patterson said historical use and renovations show the floor was not operated as a separate unit: "With all due respect, the ZA erred in making this determination," he said. Owners Peter Lynch and Donna Noah told the board they had relied on city records that identified the property as a two-unit building and disputed that the ground floor met the separate-use standard asserted by staff.

An attorney representing former tenants, Mr. Hushmand, submitted lease-related evidence and told the board a tenant "never had access to the Second Floor" during a 2016 tenancy, arguing that the lower unit had been occupied as a distinct space. Planning staff and DBI officials disputed aspects of the owners’ timeline, citing communications, photos and a staff site visit that showed cooking facilities identified with the ground-floor space at certain points in the record.

Joseph Duffy of the Department of Building Inspection cautioned the board that changing a building from two to three dwelling units can change its code occupancy and trigger life-safety upgrades, including second means of egress, fire alarms or sprinklers, and would require architectural analysis before permitting.

The board's action upholds the zoning administrator’s July 22, 2020, notice of violation for alleged noncompliance with Planning Code section 3.17 (unauthorized dwelling unit) and Planning Code section 1.32F (unauthorized parking in the front setback). Commissioners noted the owners may pursue the planning commission or other administrative pathways to legalize the unit or to obtain conditional authorization to remove it; staff also said they will work with the owners on compliance steps. The hearing record includes references to earlier building-permit records and enforcement history dating back to the mid-2000s.

The Board of Appeals concluded the matter at the hearing after the vote; no further action was taken at that meeting and staff noted the owners retain administrative pathways for legalization or permit applications.