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Board of Appeals overturns suspension of permit for 128 Elsie Street
Summary
The San Francisco Board of Appeals voted to grant an appeal and overturn a zoning administrator's suspension of a building permit for 128 Elsie Street, after finding the ZA's decision failed to account for repeated building-permit extensions and changed departmental practices. Commissioners expressed concern about interdepartmental notice and template language.
The San Francisco Board of Appeals on Aug. 15 granted an appeal to lift a suspension of a building permit for 128 Elsie Street, ruling that the zoning administrator erred in treating a 2010 variance as void. Commissioner Anne Lazarus moved to grant the appeal, arguing the zoning administrator failed to consider repeated building-permit extensions and that departmental procedures and templates had contributed to confusion; the motion carried in a recorded vote.
The project's architect and former owner, Mike Schulte, recounted the long history of the proposal, including a variance granted April 8, 2010, and multiple permit extensions while financing and ownership changed. Counsel Tuya Catalano argued the appellants reasonably relied on building-permit extensions and cited precedent and exhibits supporting an extension or rescission of the suspension. "By paying the extension fees and complying with the DBI notices, the appellants did not realize that there was a separate variance deadline that had already passed," Catalano said during argument.
Planning Department staffer Corey Teague summarized the department's position: although the planning code does not prescribe a specific expiration period for variances, a standard paragraph used in variance decision letters has for years stated that a variance is void if no site or building permit is issued within three years. "If no site or building permit has been issued within 3 years, then the variance decision is determined to be void and null," Teague said, noting that language historically appeared in the body of decision letters rather than in the conditions of approval or the notice of special restrictions recorded on the property.
DBI staff said the building permit file had been extended repeatedly under DBI practice, and that calls for a start-of-work inspection can initiate issuance. Neighbors who spoke at the hearing raised notice and safety concerns: Jeremy Daley told the board the lots sit in a mapped landslide/seismic-hazard zone and said, "I'm concerned about having a four-story building immediately behind us." Another neighbor asked whether a solar easement could protect recently installed rooftop panels.
Commissioners debated whether the zoning administrator had discretion to extend the variance. Several members expressed frustration at inconsistent interdepartmental practices and a lack of automated cross-department notices. Citing DBI's extensions and the department's recent change to include the three-year expiration in conditions of approval, the board found sufficient reason to overturn the suspension and allow the project to proceed through the building permit process.
The board recorded affirmative votes and stated the motion carried; the board also noted the procedural issues raised at the hearing and the department's plan to update templates and recording practices. The board did not adopt new design changes to the project; DBI and planning follow-up was left in place for any required corrections or further approvals.
