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Board declines jurisdiction over Athleta letter of determination after neighbors say they lacked notice
Summary
Small-business owners on Fillmore Street urged the San Francisco Board of Appeals to reopen a 15‑day appeal period for an April letter of determination that Athleta was not a formula retail use, saying the LOD had no address and deprived neighbors of notice. The board declined to take jurisdiction for lack of the four votes the code requires for reopening appeals.
The San Francisco Board of Appeals on July 21 declined a request from Fillmore Street merchants to reopen the appeal period for a Planning Department letter of determination that Athleta (a Gap Inc. brand) would not be classified as formula retail.
Patty Pizzotto, owner of Clary Sage Organics, and Karen Siegel, the store’s general manager, told the board they first learned Athleta was interested in the Junior League storefront on May 12 and that the April 8 letter of determination (LOD) the Planning Department issued contained no property address and therefore produced no meaningful notice to nearby merchants. “There was no way that concerned merchants would know that the determination might impact them,” Pizzotto told the board, urging the panel to reopen the appeal window so neighborhood businesses could be heard.
Jim Abrams of Gibson, Dunn & Crutcher, representing Athleta, urged the board to deny the jurisdiction request. Abrams said the Planning Department had posted the LOD and followed its standard procedures, and he emphasized that Clary Sage had the opportunity to request a block‑book notification (BBN) and to file a discretionary review once the building permit was posted. “This letter was legally noticed by the Planning Department and met all the code requirements,” Abrams said.
Acting Zoning Administrator Scott Sanchez explained that under current practice an LOD need not identify a specific address and that the department issues some LODs (for example, accessory‑use or wireless facility determinations) without property addresses. He said the department was moving toward issuing LODs to holders of BBNs but that, in this case, the building permit and the later BBN notice had already occurred.
Vice President Kendall Goh moved to grant jurisdiction so the board could consider reopening the appeal period. Commissioners discussed whether the 15‑day appeal right was meaningful when an LOD omits an address and whether reopening the period would unfairly prejudice the project sponsor. The motion did not obtain the four votes the Board’s rules require to take jurisdiction, and the Board declined the jurisdiction request.
What happens next: If parties want a discretionary review of the proposed use, Planning or affected neighbors can pursue the Planning Commission’s processes described in the department’s testimony. The Board’s decision leaves the Planning Department’s April 8 LOD and the building permit process in place.
