Board dismisses 7‑Eleven Kearny appeal on jurisdictional grounds; sets findings adoption for June 17

The Board of Appeals denied an appeal from 7‑Eleven over a planning denial for a proposed store at 652 Kearny Street, concluding the city’s recently adopted formula‑retail rules require a conditional‑use process and that the board lacks jurisdiction to grant the building permit as applied for.

Counsel for the applicant argued the ordinance was enacted in response to 7‑Eleven’s application and cited case law exceptions (Russian Hill and related decisions) permitting courts to apply the law in effect when a permit was filed if new legislation appeared targeted at a single applicant. Counsel asked the board to apply the law as it existed when the application was filed or to find the ordinance was enacted in bad faith to frustrate the application.

Planning staff and the City Attorney’s Office urged the board to follow San Francisco precedent that discretionary review and permitting operate under the law as it exists at the time of the hearing and to treat the new formula‑retail controls as citywide policy, not spot zoning. "There's no such thing as a right to a permit just because it's code complying," the City Attorney's representative cautioned, and staff said the changes were part of a broader policy initiative affecting multiple districts.

The board voted to deny 7‑Eleven's appeal for lack of subject‑matter jurisdiction and, in the alternative, to deny the permit for lack of the required conditional‑use authorization; it directed that findings be prepared and returned for adoption on June 17. The vote was recorded 4 to 0 with Vice President Peterson absent.