san francisco board of appeals annual report fy18 · outcome: rehearing & jurisdiction requests...

San Francisco BOARD OF APPEALS

ANNUAL REPORT FY18

MISSIONTo provide an efficient, fair and expeditious public hearing and decision-

making process before an impartial panel.

o Created in 1932 under the San Francisco Charter

o Quasi-judicial body

o Provides the final administrative review for a wide range of City

determinations

o Appeals may be taken on decisions to grant, deny, suspend,

revoke or modify permits, licenses, and other use entitlements

issued by most of the departments, Commissions and other

entities of the City and County of San Francisco

FY18 Board of Appeals Annual Report 2

BOARD MEETINGS

o Open to the public and broadcast on the City’s government

television channel and website1

o Held on most Wednesdays starting at 5:00 p.m. in City Hall

o Conducted in accordance with the Rules of the Board of Appeals

o Closed-captioned in the hearing room and on TV

Meeting agendas, minutes, and the briefs and other materials

associated with the cases heard are posted on the Board’s website.2

1SFGovTV: http://sanfrancisco.granicus.com/ViewPublisher.php?view_id=6

2www.sfgov.org/boa

•Meetings •Hours

http://sanfrancisco.granicus.com/ViewPublisher.php?view_id=6

http://www.sfgov.org/boa


BOARD MEMBERSHIP

The five-member Board is comprised of three members appointed by the

Mayor and two by the President of the Board of Supervisors. All

appointments are to staggered, four-year terms and require approval by

the Board of Supervisors.

Commissioner Appointing Authority Appointment Date Term Expires

President Frank Fung3 Mayor October 19, 2004 July 1, 2020

Vice President Rick Swig Board of Supervisors April 2, 2015 July 1, 2020

Ann Lazarus Mayor July 25, 2012 July 1, 2022

Darryl Honda Mayor December 4, 2012 July 1, 2020

Bobbie Wilson Board of Supervisors September 30, 2014 July 1, 2018

(L to R) Commissioner Darryl Honda, President Frank Fung, Commissioner Ann

Lazarus, Vice President Rick Swig, Commissioner Bobbie Wilson.

3President Fung also served on the Board from January 1986 to June 1988.


APPEAL EXPERIENCE

237 matters were on the Board’s docket during the year:

o 209 new matters filed

• 180 appeals

• 16 rehearing requests (RRs)

• 13 jurisdiction requests (JRs)

o 28 pending or continued matters carried forward from prior years

76%

7%

5%

12%

Docket

Appeals RRs JRs Pending/Continued


130 matters were decided by the Board:

o 108 appeals

o 15 rehearing requests

o 7 jurisdiction requests

107 matters were not heard:

o 28 pending appeals

o 57 appeals withdrawn

o 2 appeals placed on Call of the Chair

o 13 dismissals

o 1 RR not heard in FY18

o 6 JRs not heard

Heard PendingAppeals

WithdrawnDismissed Call of Chair RR not heard JR not heard

Status 130 28 57 13 2 1 6

0

20

40

60

80

100

120

140

Status


Appeal Volume

180 new appeals

Slightly above the ten-year average of 178 appeals per year

10-year average = 178 appeals

Changes in appeal volume from year to year can be attributed to a variety of causes, such as fluctuations in the health of the City’s economy, new permitting legislation or business trends that trigger a spike or drop in a particular type of appeal, and specific enforcement efforts by the City that result in appealable penalties.

0

50

100

150

200

250

FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17 FY18


Rehearing & Jurisdiction Requests Volume

Rehearing Requests (RRs) ask the Board for a new hearing to reconsider a decision in order to prevent manifest injustice and so that the Board may consider new evidence that could have affected the outcome of the original hearing. Jurisdiction Requests (JRs) ask the Board to allow an appeal to be filed late based on a showing that the City committed an error that caused the failure to file on time.

15 new Rehearing Requests 13 new Jurisdiction Requests

The volume of rehearing requests and jurisdiction requests has remained

relatively low each year.

• The ten-year average for rehearing requests: 17

• The ten-year average for jurisdiction requests: 19

0

5

10

15

20

25

30

35

FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17 FY18

RRs and JRs

RRs JRs


Subject Matter 76% of appeals heard were of land-use decisions made by the

Department of Building Inspection (DBI), the Planning Department (PD) and Zoning Administrator (ZA). Other permit appeals came from San Francisco Public Works (SFPW), the Department of Public Health (DPH), Arts Commission (AC), San Francisco Police Department (SFPD), the Entertainment Commission (EC), the Municipal Transportation Agency (MTA) and the Historic Preservation Commission (HPC).

56

10

16

0

17

4

1 1 1 1 1

0

10

20

30

40

50

60

DBI & PD DBI Only ZA PC SFPW DPH AC SFPD EC MTA HPC


Typical land use cases involve:

• Building, alteration and demolition permits

• Accessory Dwelling Units

• Zoning Administrator Decisions: o Variances o Letters of Determination regarding permitted uses o Notices of Violations and Penalties


56 appeals were of decisions made jointly by DBI and the

Planning Department:

• 49 protested the issuance of building permits; these appeals are typically filed by individuals or groups of neighbors concerned that proposed construction will negatively impact their property or neighborhood

• 5 protested the issuance of demolition permits

• 2 protested the denial of building permits

87%

9%4%

Appeals of Joint DBI/Planning Decisions

Issuance of Building Permits

Issuance of Demolition Permits

Denial of Building Permits


10 appeals were of decisions made solely by DBI: • 9 protested the issuance building permits

• 1 protested the issuance of a demolition permit

16 appeals were of ZA decisions:

• 7 appeals protested the granting or denial of variances

• 6 protested Letters of Determination

• 1 protested a Notice of Violation and Penalty

• 1 protested the ZA’s Request to Suspend a building permit

• 1 protested the ZA’s Request to Deny a building permit

90%

10%

Appeals of DBI Decisions

Issuance of BuildingPermits

Issuance of DemolitionPermit

44%

38%

6%

6%6%

Appeal of ZA Decisions

Variances

Letters of Determination

Notice of Penalty

ZA Suspension Request(building permit)

ZA Request to DenyBuilding Permit


Typical Cases from San Francisco

Public Works (SFPW)

SFPW Bureau of Street Use and Mapping:

Mobile Food Facility Permits

Wireless Facility Permits


SFPW Bureau of Urban Forestry: Tree Removal Permits

17appeals were of decisions made by San Francisco Public Works:

• 8 protested the issuance of Wireless Box Permits for the

installation of cellphone equipment in the public right-of-way

• 3 protested the issuance or denial of permits related to tree

removal

• 3 protested the issuance of Mobile Food Facility Permits

• 1 protested the issuance of a Minor Sidewalk Encroachment Permit

• 1 protested a Sidewalk Table and Chairs Permit

• 1 protested the issuance of a Street Space Occupancy Permit

47%

17%

18%

6%

6%6%

Appeals from SFPW Decisions

Wireless Box Permits

Tree Removal Permits

Mobile Food FacilityPermits

Sidewalk EncroachmentPermit

Sidewalk Tables and ChairsPermit

Street Space OccupancyPermit


Appeals from Determinations of Other City Departments:

Arts Commission:

• 1 appeal regarding the denial of a Street Artist Certificate

DPH:

• 2 appeals related to Massage Establishment Permits, 1 protesting

a suspension and 1 protesting a revocation

• 1 appeal regarding the revocation of a Permit to Operate a Food

Facility

• 1 appeal regarding the denial of a Tobacco Sales Establishment

Permit

MTA:

• 1 appeal protested the revocation of an A-Card Taxi Driving Permit

Police Department:

• 1 appeal regarding the revocation of a Tow Car Firm Permit and

Tow Operator license

HPC:

• 1 appeal protesting the issuance of a Certificate of

Appropriateness allowing for the removal to storage of a sculpture

located in the Civic Center Historic District


Outcome: Appeals Heard

Given the supermajority vote required to grant an appeal, the Board

typically denies more appeals than it grants.

48 appeals were denied by the Board with the underlying departmental decision upheld

13 appeals were denied by default when the Board was unable to muster sufficient votes to pass a motion that would grant or deny the appeal (underlying departmental decision upheld by operation of law)

9 appeals were granted by the Board with the underlying departmental decision completely overturned

38 appeals were granted with conditions by the Board: The underlying departmental decision was conditioned or modified in some way

45%

12%

8%

35%

Outcome 108 Appeals

Denied

Denied by Default

Granted

Granted with Conditions


Outcome: Rehearing & Jurisdiction Requests

15 rehearing requests were on the Board’s docket during the year:

o 3 granted (2 of these were for the same appeal)

o 12 denied

7 jurisdiction requests were before the Board during the year:

o 5 denied

o 1 granted

o 1 continued to next FY

20.0%

80.0%

Outcome RRs

Granted

Denied

14%

72%

14%

Outcome JRs

Granted

Denied

Continued to next FY


Geographic Distribution

The appeals heard by the Board during the year involve properties located

in most of San Francisco’s neighborhoods. As is typical for the Board, the

highest concentration of appeals is seen in the northeast quadrant, and

the lowest is in the southern portion of the City.

Geographic Distribution of Appeals Heard

An overview of the Board’s jurisdiction, the standard of review applied to various appeal types, and

a description of the appeal process is available on the Board’s website.4

4See: http://sfgov.org/bdappeal/resource-center

http://sfgov.org/bdappeal/resource-center


APPEALS MANAGEMENT SYSTEM• The existing appeals management system needs enhancement but will no

longer be supported by the Department of Technology.

• In order to replace the existing system, the Board drafted and issued a

Request for Quotes (RFQ) seeking a vendor who could create a more stable

and easily managed Salesforce solution that would meet the system,

business, and operational requirements and demands of the Board.

• The Board received proposals from six vendors, and after a rigorous review

process, selected one.

• The contract has been approved and Board Staff is working with the vendor on

developing and implementing a new system.


PERFORMANCE MEASURESCity departments are required to report on specific statistical measures as a way of

assessing and documenting performance. The two measures unique to the Board look

at how long it takes the Board to decide cases and how quickly written decisions are

published.

o Measure 1: Percentage of cases that are decided within 75 days of filing

• While fewer appeals than projected were decided within the 75-day

timeframe, the majority (62%) were delayed due to rescheduling requests by

the parties; 23% were matters continued by the Board for additional

information or to give the parties an opportunity to negotiate a settlement; and

15% were due to a period of increased activity affecting the overall volume of

appeals filed with the Board and how quickly they could be heard.

o Measure 2: How often decisions are issued within 15 days of final Board action

• All Board decisions were released within 15 days of final action.

0%

20%

40%

60%

80%

100%

120%

Cases Decided w/in 75 days Decisions Issued w/in 15 days

Performance Measures: Target v. Actual

Target Actual


BUDGET

REVENUE OVERVIEW

The Board has two sources of revenue:

(1) Surcharges placed on permits which are designed to generate the

revenue needed to cover operating expenses (95% of the budget)

a. Surcharges are collected on new and renewed permits

b. The rates are based on the percentage of cases originating

from each underlying department and anticipated permit

application volume and are analyzed annually and adjusted if

needed

(2) Filing fees which are collected when new appeals are filed (5% of

the budget)

PROJECTED REVENUE

$1,038,570 was the projected revenue budget:

o $992,533 in projected surcharge revenue collected by permit

issuing departments on new permit applications

o $46,037 in projected filing fee revenue collected by the Board when new appeals are filed

ACTUAL REVENUE

$923,014 in actual revenue was collected:

o $866,637 in surcharges

o $56,377 in filing fees

-$115,556 shortfall from projected revenue (11% less than projected)


EXPENDITURES OVERVIEW

PROJECTED EXPENDITURES

$1,038,570

ACTUAL EXPENDITURES

$1,004,630 was spent by the Board (out of a projected budget

of $1,038,570): o 77% for salaries and fringe benefits

o 19% for the services of other City departments, such as the City Attorney, Department of Technology, SF Gov. TV, and Real Estate (rent)

o 3% for specialized services such as neighborhood notification data production and interpreters and for infrastructure costs such as, photocopier, telephones, postage

o 1% for materials and supplies

$33,940 difference (surplus) between projected and actual expenditures; a

savings of 3%.


FY18

Actual Revenue $ 923,014

Actual Expenditures $ 1,004,630

Variance (shortfall) $ -81,616

Reserve Account

• Given that actual revenue did not meet projections and actual expenditures exceeded actual revenue, the shortfall was covered by a transfer from the Reserve Account

Surcharges

• The surcharges imposed on appealable permits are intended to recover costs for the Board’s expenses

• Given the surplus in the Reserve Account, some surcharge fees were lowered in FY18 with the intent to rebalance the Board’s cost recovery

• A reduction in the Reserve Account is consistent with our goal of rebalancing our cost recovery

Dept. Surcharge

FY17 Permits FY17

Surcharge FY18

Permits FY18

Planning $25.00 1,539 $18.50 1,334 DBI $25.00 35,387 $18.50 39,185 DPH $52.00 839 $43.00 804 SFMTA $7.00 4,987 $2.00 4,782 SFPD $26.50 1,160 $6.00 1,150


LITIGATION Parties dissatisfied with a Board determination may seek further review and relief

in court. Set out below is a description of the lawsuits that were filed, pending or

resolved during the year, in which the Board is named as a party.

Sullivan v. CCSF

NEW. This is a petition challenging a building permit which authorizes an

exterior stairwell at 407A 30th Street. The petitioners allege that the stairwell

would encroach on petitioners’ properties at 1716 and 1720 Sanchez Street. The

petitioners and real party have reached a settlement in concept that does not

involve the City but would result in dismissal of the petition. The settlement is not

final and the parties have asked that the City not prepare an administrative

record while they continue to negotiate the final agreement.

Marc A. Bruno, et al. v. City and County of San Francisco, et al.

NEW. This is a petition challenging CEQA categorical exemption for a building

permit authorizing façade restoration and garage removal at 20 Nobles Alley in

North Beach. The pro per petitioner alleges that the City used an incorrect

CEQA baseline and failed to adequately analyze impacts to historic

resources. The petitioner also alleges violations of the Sunshine Ordinance and

conflict-of-interest rules. The petitioner has elected to prepare the administrative

record but failed to provide the complete record to the City by the parties’

stipulated August 24, 2018 deadline.

Contest Promotions, LLC v. City & County of San Francisco, et al.

PENDING. In July 2014, the Board of Supervisors approved a settlement of

Contest Promotions’ previous lawsuit challenging the constitutionality of Planning

Code section 602.3, which defines onsite business signs. The Board of

Supervisors then amended section 602.3, which clarified that Contest Promotions’

signs in San Francisco do not qualify as business signs but are prohibited general

advertising signs. On January 20, 2016, the Board upheld the Planning

Department’s denial of 35 sign permit applications. Contest Promotions contends

that San Francisco breached the settlement agreement when it amended section

602.3 and when it denied Contest Promotions’ sign permit applications. Federal

and state courts have dismissed all of Contest Promotions constitutional claims

against the amended section 602.3. What remains, in state court, are Contest


Promotions’ breach of contract claims. The parties have agreed to present cross-

motions for summary judgment to the Superior Court to adjudicate disputed

contract interpretation issues, which should finally resolve the case.

Robert E. Gonzales v. San Francisco Board of Appeals

PENDING. A lawsuit was filed in Superior Court by an adjacent property owner

challenging the Board’s August 26, 2015 decision to uphold a permit to erect a building

at 333 Pennsylvania Avenue. On January 6, 2016, the Court denied the petitioner’s

motion for immediate relief, stating it failed to establish that the Planning Code or

Residential Design Guidelines were violated. At that time, the petitioner requested a

deferment of any further proceedings while he negotiated a settlement with the project

sponsor. The petitioner has made no further effort to pursue this matter.

1049 Market Street, LLC v. City & County of San Francisco, et al.

PENDING. Six lawsuits were filed by the owners of a six-story building

challenging, among other things, the Board’s April 8, 2015 decision to grant an

appeal filed by residential tenants protesting the Zoning Administrator’s (ZA)

Release of Suspension Request on a permit to convert live-work units to

commercial space, and the Board’s April 5, 2017 decisions related to the

revocation of that permit. One case was filed in federal court and the others in

state court.

The state cases assert claims under CEQA, a vested rights theory and several

constitutional claims. The federal case focuses on federal constitutional claims.

Because the state and federal suits challenge the same conduct and seek the

same damages, the federal court agreed to have the state court resolve issues of

local land use law before it determines whether any federal constitutional issues

remain. On this basis, the federal lawsuit has been stayed pending the outcome

in state court. (continued on next page)

In April 2016, the City won the first of the five state court cases on all issues

except the jurisdictional issue relating to whether the Board had properly

considered the validity of the permit. The court remanded the matter to the Board

for reconsideration of whether the ZA erred or abused his discretion in

determining that the property’s principally permitted use as an office had not

been abandoned, but left the Board the option to apply recently adopted

legislation requiring a Conditional Use Authorization. The City has since

prevailed in the appeal of this case, and that ruling is now final.


Another of the state court cases, which challenges on CEQA grounds the

permanent zoning controls adopted by the Board of Supervisors, is before the

Court of Appeal but not yet briefed. In August 2017, another of the state court

cases was rejected based on the petitioner’s failure to serve it on time. The two

most recently filed cases, stemming from the Board’s 2017 decisions, are still

before the trial court.

The parties entered settlement discussions in connection with related lawsuits

between the owners and their tenants, and those discussions are continuing. If

successful, the settlement will result in the subdivision of the property into single-

floor condominiums, and the purchase of one floor by the City for use as

permanent affordable housing. Meanwhile, the pending appeal has been

continued.

| FY18 Board of Appeals Annual Report

The Next Chapter …..

After more than thirty years of public service, Cynthia Goldstein, the

Board’s Executive Director, retired from the public sector. Ms.

Goldstein served as the Executive Director of the Board from November

2008 through March 2018. Previously, she worked as a senior manager at

the City’s Human Rights Commission (HRC) where she oversaw the

implementation of the nation’s first Equal Benefits Ordinance, which

prohibits discrimination by City contractors in their provision of benefits to

married employees and those with domestic partners. At the HRC she also

developed training curricula focused on eliminating workplace

discrimination and reintroducing HIV positive people into the workforce.

She served as a staff attorney at National Gay Rights Advocates and as a

litigation associate at a large San Francisco-based law firm. Ms. Goldstein

received her law degree from Northeastern University and her

undergraduate degree from Oberlin College.

The Board thanks Ms. Goldstein for her numerous and significant

contributions and wishes her the best in the next chapter.

The Board also welcomed Julie Rosenberg as the new Executive Director.

Ms. Rosenberg previously worked for 13 years as the manager of the

Administrative Hearing Section for the San Francisco Municipal

Transportation Agency. Prior to that she was an associate at a small San

Francisco-based law firm. Ms. Rosenberg received her law degree from

the University of San Francisco.

| FY18 Board of Appeals Annual Report

san francisco board of appeals annual report fy18 · outcome: rehearing & jurisdiction requests...

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