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Board upholds permit for utility decapping at 1285/40 Fifth Ave., but requires work within three months of vacancy
Summary
The San Francisco Board of Appeals upheld a Department of Building Inspection permit to cap plumbing/electrical at a ground-level illegal unit at 1285/40 Fifth Avenue on condition the permit holder complete work and abate the notice of violation within three months of the unit’s vacation. DBI and neighbors had clashed over enforcement timing.
The San Francisco Board of Appeals on June 13 upheld a Department of Building Inspection permit to cap plumbing and electrical at a ground-level unit at 1285/40 Fifth Avenue, but imposed a timeline intended to speed abatement of an unsafe, illegal dwelling. Vice President Frank Fung moved the condition and the board approved it in a 3–0 vote.
The board’s action addresses competing aims: the building department’s record that the unit is an “illegal dwelling unit,” and the permit holder’s argument that the corrective permit is a lawful step. DBI Inspector Joe Duffy told the board he had cited the unit as illegal and that the case had two notices of violation and a pending director’s hearing, but he had not yet completed a life-safety inspection because he had not been able to access the unit: “It is an illegal dwelling unit,” he said during his presentation.
Appellant counsel Eunice Chang submitted declarations from former tenants stating the property’s owner, identified in filings as the Peter Feeley Living Trust, had rented out illegal units for years and had failed to comply with prior orders; Chang urged the board to require deed restrictions to protect future tenants. Permit‑holder counsel Steven McDonald argued that the board lacks authority to order legalization and that prior continuances had been granted to accommodate a student tenant’s semester. The permit holder’s side also said it would agree to expedited work.
After receiving legal guidance on how to word a timing condition, the board conditioned its decision on the permit holder completing the work and obtaining a final sign-off within three months of the unit being vacated and on the abatement of the NOV. The board’s motion explicitly tied the deadline to the date the unit is vacated to avoid miscounting potential legal delays prior to issuance of a notice of decision.
The board recorded the roll call: President Chris Huang (Aye), Vice President Frank Fung (Aye), Commissioner Rich Hillis (Aye); Commissioner Tano was absent. The board’s executive director and DBI staff clarified that enforcement beyond the board’s action—such as pursuit of abatement through the City Attorney and property liens—remains DBI’s pathway if the condition is not met.
The board’s notice and the hearing record make clear the order is narrowly crafted: it upholds a department-issued permit rather than ordering immediate demolition, while pressing the permit holder to complete the decapping work on a shortened timeline so the department and the affected neighbors aren’t left waiting. The matter was resolved at the hearing; no further continuance was announced.
