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Board upholds Mount Olympus fence variance by default after 2-2 tie on appeal
Summary
The Board of Appeals drew a 2-2 split on an appeal challenging a variance that legalized a rear-yard fence at 272 Upper Terrace; because the city charter requires four votes to overturn a department decision, the zoning administrator's variance stood by default.
The San Francisco Board of Appeals on Feb. 5 heard a lengthy appeal over a rear-yard fence at 272 Upper Terrace adjacent to Mount Olympus Monument Park and, after extended testimony from neighbors and the property owners, deadlocked on a motion to overturn the zoning administrator's variance. Because the city charter requires four of five votes to overturn a departmental action, the variance remains in place by default.
Appellant Jerry Weiss, representing about two dozen neighbors, framed the case as preservation of a unique pedestrian open space and said the zoning administrator erred by not demonstrating the necessity required by Finding 3 for a variance. "My concern ... is about the place, the place where you are while you're seeing the view," Weiss said, urging that the board protect the park's historic and visual character.
Property owners Susan Babolsky and Neil Pernick said they built the fence after receiving an over-the-counter permit and then accepted a condition to lower the fence further; they described the location as having a 7.5-foot city retaining wall and a sidewalk at the rear property line that creates privacy and safety concerns. "We decided it was necessary to build a fence to preserve our privacy and increase the security of our rear property line," Babolsky said.
Zoning Administrator Scott Sanchez reviewed the file and said the property line sits at the bottom of the retaining wall, which triggered the need for a variance. Sanchez said he balanced public-view concerns and the homeowners' privacy needs and imposed a condition that the fence be lowered to match an existing city guardrail. Sanchez told the board he believed the conditioned variance represented a reasonable compromise.
Multiple neighbors and community members urged the board to overturn the variance, citing the site's historic character, scenic views and proximity to public recreation. In deliberations, one commissioner said he was inclined to uphold the zoning administrator; another said he would overturn. A president's motion to overturn the zoning administrator "errored and abused his discretion" drew a 2-2 vote, falling short of the four votes required to reverse a departmental action; the variance therefore remains in effect.
The board noted it will prepare written findings if it takes a formal overturning motion in the future; for now, the zoning administrator's conditioned variance stands.
