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Board of Appeals upholds notice of violation against Winfield Design over BMR compliance
Summary
The Board of Appeals voted 5–0 to uphold a notice of violation and penalty against Winfield Design International Inc. for failing to meet inclusionary affordable‑housing conditions at 3020 Third Street after legal challenges alleging Costa‑Hawkins preemption and a takings claim; the board relied largely on the city's contention that the 90‑day statute to challenge conditions had run.
The San Francisco Board of Appeals unanimously (5–0) upheld a notice of violation and penalty (NOV&P) Nov. 16, 2011, issued to Winfield Design International Inc. for failing to meet conditions of approval requiring below‑market‑rate (BMR) units at the property identified as 3020 Third Street (also cited as 2690 Harrison Street).
Edward Suman, counsel for Winfield Design, argued the ownership and entitlement history meant the property qualified under the Costa‑Hawkins Rental Housing Act and that requiring the owner to provide BMR units without concessions amounted to an unlawful taking and violated equal‑protection principles. Suman also sought to avoid a Government Code §65009 (90‑day) limitations bar by invoking constitutional claims and case law (he cited Palmer and other authorities in his briefing).
The City — represented at the hearing by Scott Sanchez (Planning Department) and Deputy City Attorney Susan Cleveland Knowles — responded that the challenged BMR conditions trace to the Planning Commission's conditional‑use authorization, a recorded Notice of Special Restrictions and subsequent Board of Supervisors action in February 2003. The city argued that challenges to the legality of such conditions must generally be filed under Government Code §65009 within 90 days of the final decision and that the appellant had not timely raised those objections after the Board of Supervisors' action. Cleveland Knowles urged the board to treat the issue as a statute‑of‑limitations matter rather than an open constitutional review in this forum.
Chandra Egan, Inclusionary Housing Program Manager at the Mayor's Office of Housing, described MOH's enforcement timeline: MOH identified potential noncompliance around February 2009, issued notices and provided application packets to the owner, and said the owner returned incomplete documentation (missing income verification for tenants and complete worksheets). MOH told the board it received information indicating some rents may have exceeded applicable BMR limits for particular units; MOH staff said they never received a complete auditable file to close the matter. MOH and Planning asked the board to rely on those enforcement steps as the factual basis for the NOV&P.
A recurring factual discrepancy at the hearing concerned the building size: Planning staff referenced a 54‑unit project in some remarks, while the appellant and other parts of the record referred to 52 units; MOH identified seven BMR units associated with the NSR. The NOV&P was issued while the matter remained before the board; Sanchez said the $250‑per‑day penalty rate cited in the NOV&P is the standard rate used by the department.
After discussion, Commissioner Frank Fung moved to uphold the zoning administrator's NOV&P based on findings of no error or abuse of discretion and on the board's conclusion that the 90‑day statute of limitations to challenge the Planning Commission/Board of Supervisors decision had run. The roll call vote was 5–0 to uphold the NOV&P. The board’s decision left open the appellant’s constitutional and preemption arguments for potential review in a court forum, but the board declined to overturn the administrative penalty.
