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Board upholds DBI permit allowing removal of Polaris Way deck over tenant'landlord dispute
Summary
The San Francisco Board of Appeals voted 3-2 to uphold a Department of Building Inspection permit that allows a property owner to remove an unpermitted rear deck at 314 Polaris Way after a tenant appealed, citing health and accessibility needs and alleging retaliation. Commissioners expressed sympathy for the tenant but cited limited jurisdiction and existing remedies.
The San Francisco Board of Appeals on the evening heard Jonathan Gerson's protest of a DBI-issued permit to remove a rear deck at 314 Polaris Way and voted 3-2 to uphold the permit.
Gerson, who said he is undergoing chemotherapy, told the board the dwelling has multiple habitability problems — asbestos, electrical issues, and a loose guardrail on a rear deck — and that he relies on the deck for access and fresh air. He accused the property manager, Jack McCloskey, of retaliation after he filed complaints with DBI and said he was told by the landlord to "go f myself" when he sought repairs. He said removal of the deck would effectively force him from the home.
Permit-holder counsel Saul Foerster and the property manager argued the Department of Building Inspection issued a notice of violation for an unpermitted deck and the owner may lawfully choose to remove an illegal structure to comply. Foerster told the board the core question is whether the owner may correct an NOV by removing the deck, not the suite of tenant complaints that Gerson raised.
Lawrence Kornfield, Chief Building Inspector, told the board DBI found no valid permit for the deck and issued an 08/22/2007 notice of violation covering the rear wood deck and related unpermitted openings. Kornfield also noted that under the Federal Fair Housing Act, a tenant may install an accessibility feature at the tenant's expense and must remove it at tenancy end — a separate remedy from enforcement of unpermitted construction.
Commissioners acknowledged the seriousness of Gerson's health and housing concerns but several said the board's jurisdiction is limited; contract and habitability disputes often must be resolved in civil court or through other agencies. Vice President Michael Garcia said he was "troubled" by the policy implication of allowing a deck removal after a tenant'filed complaints. Ultimately the board's majority (Commissioners Fung, Albright and Holland) concluded DBI's NOV process permitted the owner's chosen remedy and voted to uphold the permit; President Randall Knox and Vice President Garcia voted no.
The board did not modify the permit or direct additional conditions; commissioners encouraged parties to pursue rent-board remedies or civil options where appropriate. The decision leaves intact DBI's enforcement path for unpermitted structures while underscoring limits on the Board of Appeals's ability to adjudicate broader landlord'tenant habitability disputes.
