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Board upholds First Street code-compliance permit but conditions record to two habitable stories
Summary
The San Francisco Board of Appeals denied Lisa Amick’s challenge to a permit for 3520 First Street while conditioning the permit on DBI amending its records to list two habitable stories; the decision resolves a dispute over whether an attic should be treated as a habitable floor and notes potential safety upgrades if it were legalized.
The San Francisco Board of Appeals on April 16 upheld a permit allowing owners Ben and Wendy Yellum to alter 3520 First Street to meet code-compliance requirements but imposed a condition that city records reflect two habitable stories rather than three, limiting recognition of the attic as a habitable level without further approval.
Appellant counsel Richard Hurlbert argued that the Yellums’ permit misrepresented the building’s historic permit history and would effectively legalize an additional habitable story while evicting tenant Lisa Amick. Hurlbert said the original 1909 permit shows two floors of occupancy and called it “a mockery of the system” to allow an over-the-counter permit that appears to legalize the attic while removing a tenant’s unit.
Engineer Pat Buskovich and other testimony pressed technical points about how older permits defined basements and attics. Buskovich said the attic’s conversion into habitable space would typically require sprinklers and a second means of egress and argued the permit record did not show the necessary upgrades: “If they want to legalize this Fourth Floor what would you need to do? You would have to sprinkler the entire building,” he said.
Permit-holder counsel Tracy Zill said the Yellums sought to bring the building into code compliance and that revised, accurate plans were before the board. Zill told commissioners the core issue is code compliance, not eviction, and said DBI and Planning had reviewed the revised plans. Chief Building Inspector Lawrence Kornfield told the board the department believed the permit reflected a reasonable approach to incrementally upgrading older San Francisco buildings.
Commissioners weighed fairness to Ms. Amick, who testified she had lived in the attic level for 11 years, against the city’s code process. Vice President Garcia and other commissioners described the question of whether the attic is a legally habitable story as a “gray area” in the record and said the board lacked definitive evidence to declare the attic legally habitable now.
To resolve the ambiguity while allowing the compliance work to proceed, the board voted to uphold the permit on the condition that DBI amend its records to reflect two habitable stories and that any future effort to treat the attic as habitable proceed through the appropriate permit submittal process. Commissioner Fung, Commissioner Albright, Vice President Garcia and Commissioner Holland voted in favor; the vote was recorded as 4–0.
The board’s decision leaves in place the underlying permit while requiring the record correction and preserves the option for the owners to pursue a separate process if they later seek to legalize the attic as habitable.
