San Francisco BOARD OF APPEALS ANNUAL REPORT FY18

Transcription

1 San Francisco BOARD OF APPEALS ANNUAL REPORT FY18

2 MISSION To provide an efficient, fair and expeditious public hearing and decisionmaking 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

3 BOARD MEETINGS Meetings Hours o Open to the public and broadcast on the City s government television channel and website 1 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 1 SFGovTV: FY18 Board of Appeals Annual Report 2

4 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 Fung 3 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. 3 President Fung also served on the Board from January 1986 to June FY18 Board of Appeals Annual Report 3

5 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

6 130 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appeals o 15 rehearing requests o 7 jurisdiction requests 107 matters were not heard: o 28 pending appeals o 57 appeals withdrawn o 2 appeals placed on Call of the Chair o 13 dismissals o 1 RR not heard in FY18 o 6 JRs not heard 140 Status Heard Pending Appeals Withdrawn Dismissed Call of Chair RR not heard JR not heard Status FY18 Board of Appeals Annual Report 5

7 Appeal Volume 180 new appeals Slightly above the ten-year average of 178 appeals per year year average = 178 appeals 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

8 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 RRs and JRs 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

9 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) DBI & PD DBI Only ZA PC SFPW DPH AC SFPD EC MTA HPC FY18 Board of Appeals Annual Report 8

10 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

11 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 9% 4% Issuance of Building Permits Issuance of Demolition Permits Denial of Building Permits 87% FY18 Board of Appeals Annual Report 10

12 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% 6% Appeal of ZA Decisions Variances 6% Letters of Determination 44% Notice of Penalty ZA Suspension Request (building permit) 38% ZA Request to Deny Building Permit FY18 Board of Appeals Annual Report 11

13 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

14 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 Appeals from SFPW Decisions 6% 6% Wireless Box Permits 6% Tree Removal Permits 18% 17% 47% Mobile Food Facility Permits Sidewalk Encroachment Permit Sidewalk Tables and Chairs Permit Street Space Occupancy Permit FY18 Board of Appeals Annual Report 13

15 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

16 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

17 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

18 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 4 See: FY18 Board of Appeals Annual Report 17

19 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

20 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. 120% 100% 80% 60% 40% 20% Performance Measures: Target v. Actual 0% Cases Decided w/in 75 days Target Actual Decisions Issued w/in 15 days FY18 Board of Appeals Annual Report 19

21 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

22 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

23 FY18 Actual Revenue $ 923,014 Actual Expenditures $ 1,004,630 Variance (shortfall) $ -81,616 Reserve Account Surcharges 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 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 $ ,539 $ ,334 DBI $ ,387 $ ,185 DPH $ $ SFMTA $7.00 4,987 $2.00 4,782 SFPD $ ,160 $6.00 1,150 FY18 Board of Appeals Annual Report 22

24 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 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 Sullivan v. CCSF PENDING. This is a petition challenging a building permit which authorizes an exterior stairwell at 407A 30 th 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 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 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

25 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 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

26 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 singlefloor 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

27 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 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