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Board of Appeals upholds DBI permit for 1058 Mississippi Street, denies easement appeal
Summary
The San Francisco Board of Appeals denied an appeal by Elena Myers challenging a site permit for 1058/1058A Mississippi Street, finding the Department of Building Inspection (DBI) had determined the proposed passageway met code; the board declined to delay while easement litigation proceeds.
The San Francisco Board of Appeals on March 27, 2019, denied an appeal by Elena Myers challenging a site permit issued to TM Build LLC for 1058/1058A Mississippi Street, finding that Department of Building Inspection (DBI) staff had concluded the proposed passageway met local code requirements.
Max Schmieder, speaking for appellant Elena Myers, told the board the rear cottage at 1060 Mississippi Street has a prescriptive easement across 1058 and that the neighbors are pursuing litigation to perfect that easement. Schmieder said the board should have continued the matter pending resolution of the civil suit, and alleged the developer’s claim that the appellants had requested four continuances was false: “In actuality, there had been granted three, the third only because the developer did not show up, and in fact, only two continuances were granted on the merits of our appeal.”
DBI representative Joe Duffy told the board he had reviewed the permitted drawings and forwarded an email from Cyril Yu, a DBI supervisor, indicating the passageway shown on the plans meets DBI and San Francisco Fire Department equivalency requirements and conforms to the San Francisco Building Code. “I was able to review the permitted drawings associated with 1058 Mississippi… the proposed project does meet accepted local equivalency requirements of the Department of Building Inspection, DBI, and the San Francisco Fire Department,” Duffy said.
Vice President Rick Swig moved to deny the appeal and uphold the permit, citing the sponsor’s offer of temporary access during construction and DBI’s finding that the plans are code-compliant. The board recorded Aye votes from President Frank Fung, Commissioner Anne Lazarus and Commissioner Rachel Tanner; the motion carried and the appeal was denied.
Legal counsel and several commissioners noted limits on the board’s ability to impose conditions on a permit as to a separate property and advised that recording or enforcement of any easement would be resolved between the parties or in court. The board’s action left the underlying civil easement litigation intact; the permit decision stands subject to any judicial determination about the easement.
The board moved on to the next item after a brief recess.
