Board of Appeals denies rehearing request for Hometown Creamery mobile food permit at Union Square

The San Francisco Board of Appeals on Aug. 8, 2018 denied a rehearing request from the Union Square Business Improvement District and left intact a conditional permit allowing San Francisco Hometown Creamery to operate a vintage van near Union Square.

The board considered new pedestrian-count data cited by the BID in a rehearing petition but concluded the information did not constitute the sort of new, material evidence that would justify reopening the case. "We don't believe there is new information that justifies a rehearing," Vice President Rick Swig said when he moved to deny the request; the motion carried.

Karen Flood, executive director of the Union Square BID, told the board the area is congested and that the permit should be reheard after updated pedestrian counts. "We have serious public safety concerns," she said, arguing the ordinance bars mobile food facilities in congested, well-served areas. The BID submitted intersection counts from 2011 and asked for an on-site, mid-block count to inform the legal standard.

Sadie Khalil, co-owner of San Francisco Hometown Creamery, pushed back, saying "there's been no material change in facts" and that intersection counts cited by the opposition are not a reliable measure of mid-block congestion at the permit location. Brent Cohen of the Department of Public Works told the board that pedestrian counts are not required as part of the application and that, had they been submitted earlier, Public Works would have referred them to SFMTA for technical review. "The department stands by its decision," Cohen said.

Public comment overwhelmingly favored the small-business owners. Dozens of residents and business patrons told the board they supported the creamery, saying protracted rehearing requests hurt entrepreneurs and that shopper traffic has declined since the earlier counts. Macy's representative William Rutland acknowledged concerns about congestion and said he had asked Public Works if a pedestrian count would be reasonable; he was told it would be.

The board's vote to deny the rehearing maintained the permit as previously conditioned by Public Works (including reduced vehicle size and hours), ending the rehearing bid without ordering a new pedestrian count. The board also requested that Public Works return in coming weeks to provide clarity about identifying "congested" and "underserved" areas under the mobile-food ordinance.

The rehearing denial leaves the conditional permit in place; the permit holder may operate subject to those permit conditions unless further judicial relief is sought.