Board upholds Fillmore foundation and ADA permit; tenant build-out dispute deferred to May hearing

The board heard appeal 13-004 from Mio Ota, who appealed a Department of Building Inspection permit for 2130 Fillmore Street that would replace a brick foundation, address water-damaged studs and include accessibility upgrades. Ota—s briefing argued the permit was issued without consideration of a pending change-of-use that could make the tenant a formula retail establishment and that the landlord—s timing suggested a coordinated move to avoid formula-retail scrutiny.

Permit-holder representatives and OSCA counsel said the permit before the board was solely the building/structural permit; the tenant—s change-of-use permit and the question whether OSCA met the 11-store threshold under Planning Code §303 is a separate application scheduled for May 15. OSCA counsel said OSCA operated eight U.S. locations at the time and that Internet-only listings are not counted as brick-and-mortar establishments for the formula-retail threshold. Planning staff confirmed that only operating physical retail establishments open to the public count toward the §303 threshold and that temporary pop-up stores that have closed do not count.

Commissioners on the board asked technical questions about whether partial foundation work on only a portion of the ground floor could create structural imbalances and whether DBI plan check would catch related issues. DBI senior inspector Joe Duffy said plan check and geotechnical review would review slope and structural safety and that, in his experience, projects of this type generally result in new foundation work. After discussion, Commissioner Fung moved to uphold the permit as code-compliant for ADA and the scoped structural work. The board voted 5— 0 to uphold the permit. Planning staff reiterated the tenant build-out and any formula-retail determination remain set for the May hearing.