San Francisco Board of Appeals upholds several permits, continues neighbor dispute for inspection

The San Francisco Board of Appeals on March 4 upheld several department decisions, continued one contested property matter for inspection and approved its two-year budget.

Vice President Daryl Honda and fellow commissioners voted 4-0 to deny appeals that would have reversed department determinations, including a challenge to a retail tobacco-permit denial at 1801 Fulton Street and a challenge to a permit authorizing a gabion retaining wall at 765 Mangels Avenue. The board also continued an appeal brought by neighbor Marlene Kramer over retaining-wall and excavation work at 224—230 Fifth Avenue so planning and the Department of Building Inspection (DBI) can inspect both properties and report back on April 15.

"We will reach out and inspect the property to make sure it is not affecting the immediate neighbors," Vice President Daryl Honda said when moving to continue the Kramer matter to allow DBI time for a site visit.

The Fulton Market appeal challenged the Department of Public Health's application of a 2014 density cap on tobacco permits. Appellant counsel argued the department failed to provide constitutionally sufficient notice to the prior permit holder; the department's manager of the tobacco program, Jen Calliewert, told the board that the department conducted outreach when the law took effect and that additional notifications and an interactive permit map were used to inform holders.

Attorney for the Fulton Market appellants urged the board to find the notice defective, saying a notice in the administrative file bore a signature the appellants say was not the permit holder's and included an odd date; the board nevertheless voted 4-0 to deny the appeal and uphold the department's denial because the board agreed the law and its exceptions were properly applied.

In the lengthy Kramer v. Lau proceeding, neighbor Marlene Kramer told the board she experienced repeated unpermitted excavation, new retaining-wall heights and repairs that she said have damaged her property and stressed the need for DBI follow-up. DBI Senior Inspector Joe Duffy told the board that multiple earlier complaints and two active notices of violation exist for the property and that DBI staff will review job cards, permits and previous inspections and perform an on-site inspection with the appellant's permission. "I'm more than happy to go to this lady's house tomorrow and look at all these cracks," Duffy said during the hearing.

The board also heard competing arguments over a proposed gabion wall at 765 Mangels. Appellant counsel said the proposed plan could encroach on neighboring property and raised engineering and dust-containment concerns for on-site crushing of concrete. Permit-holders' counsel said the parties settled earlier litigation and that his clients have agreed to remove the existing wall and pursue a permited replacement; DBI said the permit had been routed to a structural reviewer. After discussion, the board voted 4-0 to deny the appeal and leave DBI's permit in place.

Board members approved the minutes from the Feb. 5 meeting and later adopted the board's two-year budget for fiscal years 2021-22. Commissioners noted concerns about recent reductions in surcharge rates and the department's reserve level but voted to adopt the budget, with staff noting a pending city surcharge analysis that could alter fee levels.

Next steps: DBI will perform site inspections of the Kramer and Lau properties and report back to the Board of Appeals at the next scheduled hearing on April 15. Several appeals were denied 4-0; the Kramer matter was continued to allow DBI and planning to gather further facts.