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Board upholds Planning Department’s letter of determination on ground-floor commercial use by operation of law
Summary
After split roll-call votes, the Board of Appeals left intact a Planning Department letter of determination that required the Upperquad graphic-design firm to pursue conditional-use authorization in the Divisadero neighborhood; the LOD is upheld by operation of law when motions to overturn failed.
The San Francisco Board of Appeals on Feb. 8 left in place the Planning Department’s letter of determination (LOD) that found the expanded graphic-design business Upperquad at 295 Page/Divisadero must seek conditional-use authorization because of a required active ground-floor commercial use in parts of the Divisadero Neighborhood Commercial Transit (NCT) district.
Appellant Phil Repanter, owner of Upperquad, told the board his graphic-design firm is a permitted 'business or professional service' and that the planning tables and code language as he read them did not require a conditional use at his specific frontage. Project architect Serena Calhoun argued the business serves the public and presented plans showing storefront access and services that support a ground-floor commercial use.
Scott Sanchez, Planning Department zoning administrator, said the Divisadero NCT controls were adopted through a multi-year legislative process and that, despite an omission in Section 145.4’s applicability table, the district’s use table and legislative history make clear the intent to require active ground-floor commercial frontage in the affected locations. Sanchez told the board the omission is being addressed through separate legislation to correct the code cross-reference.
Commissioners debated whether the omission in Section 145.4 and the over-the-counter permit paperwork created an error or an abuse of discretion by the zoning administrator — the legal standard needed to overturn an LOD. Two motions were made (one to deny the appeal and one to grant it) and each failed in recorded roll-call votes; with no successful motion to overturn, the letter of determination was upheld by operation of law.
The board’s action leaves the LOD in place; the appellant may continue the conditional-use process with Planning and pursue whatever remedies the administrative process allows.
