BOARD OF APPEALS Annual Report FY18 final 10-9-18 (number 2)_2

San Francisco BOARD OF APPEALS
ANNUAL REPORT FY18

MISSION

To 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

BOARD MEETINGS

•Meetings •Hours

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

FY18 Board of Appeals Annual Report 2

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
July 25, 2012 July 1, 2022
Ann Lazarus Mayor December 4, 2012 July 1, 2020
Darryl Honda Mayor September 30, 2014 July 1, 2018
Bobbie Wilson Board of Supervisors

(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.
FY18 Board of Appeals Annual Report 3

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

Docket

12%
5%
7%

76%

Appeals RRs JRs Pending/Continued

FY18 Board of Appeals Annual Report 4

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

Status

140

120

100

80

60

40

20

0 Heard Pending Appeals Dismissed Call of Chair RR not heard JR not heard
Status 130 28 Withdrawn 13 216

57

FY18 Board of Appeals Annual Report 5

Appeal Volume

180 new appeals

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

250

200

10-year
average
150 = 178
appeals

100

50

0
FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17 FY18

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.

FY18 Board of Appeals Annual Report 6

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 13new Rehearing Requests new Jurisdiction Requests

RRs and JRs

35
30
25
20
15
10

5
0

FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17 FY18

RRs JRs

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

FY18 Board of Appeals Annual Report 7

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).

60
56

50

40

30

20 17
16
4
10 0 11111
10 PC SFPW DPH AC SFPD EC MTA HPC

0
DBI & PD DBI Only ZA

FY18 Board of Appeals Annual Report 8

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

FY18 Board of Appeals Annual Report 9

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

Appeals of Joint DBI/Planning Decisions

4%
9%

Issuance of Building Permits 87%
Issuance of Demolition Permits
Denial of Building Permits

FY18 Board of Appeals Annual Report 10

10 appeals were of decisions made solely by DBI:

• 9 protested the issuance building permits
• 1 protested the issuance of a demolition permit

Appeals of DBI Decisions

10%

Issuance of Building
Permits

Issuance of Demolition
Permit

90%

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

6% Appeal of ZA Decisions Variances
6% Letters of Determination
6% Notice of Penalty

44%

ZA Suspension Request
(building permit)

38% ZA Request to Deny
Building Permit

FY18 Board of Appeals Annual Report 11

Typical Cases from San Francisco
Public Works (SFPW)

SFPW Bureau of Street Use and Mapping:
Mobile Food Facility Permits

Wireless Facility Permits

FY18 Board of Appeals Annual Report 12

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

6% Appeals from SFPW Decisions
6%
6%
Wireless Box Permits

Tree Removal Permits

18% Mobile Food Facility
17% 47% Permits

Sidewalk Encroachment
Permit

Sidewalk Tables and Chairs
Permit

Street Space Occupancy
Permit

FY18 Board of Appeals Annual Report 13

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

FY18 Board of Appeals Annual Report 14

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

Outcome 108 Appeals

35%

45%
Denied
Denied by Default
Granted
Granted with Conditions

8%
12%

FY18 Board of Appeals Annual Report 15

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

Outcome RRs

20.0%

Granted
Denied

80.0%

7 jurisdiction requests were before the Board during the year:
o 5 denied
o 1 granted
o 1 continued to next FY

Outcome JRs

14% 14%

Granted
Denied
Continued to next FY

72%

FY18 Board of Appeals Annual Report 16

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

FY18 Board of Appeals Annual Report 17

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.

FY18 Board of Appeals Annual Report 18

PERFORMANCE MEASURES

City 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.

Performance Measures: Target v. Actual

120%
100%

80%
60%
40%
20%

0%

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

Target Actual

FY18 Board of Appeals Annual Report 19

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)

FY18 Board of Appeals Annual Report 20

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 Board of Appeals Annual Report 21

FY18 $ 923,014
$ 1,004,630
Actual Revenue $ -81,616
Actual Expenditures
Variance (shortfall)

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 Permits Surcharge Permits
FY17 FY17 FY18 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

FY18 Board of Appeals Annual Report 22

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.

2856-62 Washington Street HOA v. CCSF and Widen v. CCSF
PENDING. In two consolidated cases, homeowners’ associations (HOAs)
challenged orders of abatement to repair a retaining wall on or near the property
lines of three multi-unit buildings near the corner of Washington and Divisadero
Streets. The petitioners dispute responsibility for the wall and allege that the City
abused its discretion by failing to also cite a third property. The City successfully
demurred to both petitions and petitioners appealed the orders granting
demurrer. The petitioners opening brief(s) on appeal are due in October 2018.

Sullivan v. CCSF
PENDING. 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.

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-

FY18 Board of Appeals Annual Report 23

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.

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

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

PENDING & NEW. 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)

FY18 Board of Appeals Annual Report 24

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 25

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