Planning Ahead

by M. Brett Gladstone

Editor’s Note: This is the second part of a two-part article about appealing San Francisco Department of Building Inspection determinations. The first part of this article was printed in the July 2007 issue of this magazine.

Previously, I discussed the process of fighting a DBI Notice of Violation through DBI’s internal appeal mechanisms. However, if you lose at the administrative hearing stage, the next step is appealing the adverse DBI determination to adjudicative boards provided for under San Francisco’s Charter or the San Francisco Building Code. The boards discussed below are: the Abatement Appeals Board, the Board of Appeals, the Access Appeals Commission, the Unreinforced Masonry Building Appeals Board and the Board of Examiners. Property owners should consider making their own appeal to some of these boards after the denial of a permit application, rather than merely upon receipt of an NOV.

Abatement Appeals Board
Appeals of Orders of Abatement are heard by the Building Inspection Commission. According to the San Francisco Charter, the BIC constitutes the Abatement Appeals Board. Orders of Abatement are issued by the DBI director, normally following the issuance of a Notice of Violation and the subsequent holding of a director’s hearing. If you receive an NOV and believe that a director’s hearing will unnecessarily delay resolution, you may appeal the NOV directly to the Abatement Appeals Board.

If the BIC secretary determines that your appeal affects the property interests of others, the BIC will send written notices of the appeal to those persons. You should submit a brief statement explaining why the Order of Abatement is improper, either for lack of due process (that is, you were not given proper notice of a condition or hearing) or lack of evidence to support the finding (that is, DBI had approved the construction of the narrow stairway years before or the structure is grandfathered in from being made illegal by new laws). You may include other materials you may wish to provide at this time, including letters of support from neighbors, so that the commissioners can review them before the hearing. The cost of filing this appeal is a nominal $54.95.

Hearings are short and somewhat informal. Each side gets seven minutes to argue and a few minutes of rebuttal at the end. You can have witnesses speak during the public comment period at the end of the parties’ presentations, but if they are related parties (for example, your architect, your spouse) their testimony is included in your seven minutes. Commissioners will probably ask you and your witnesses some questions. The rules of evidence are not generally followed.

Because the BIC is subject to the Sunshine Act, which is intended to create greater openness in government, all deliberations and the vote are held during the meeting. To modify or overturn a director’s determination, four of the seven commissioners must agree that the Director’s Order is improper and agree on how the order is to be modified, if not overturned. Appellants have the right to seek a continuance of their hearing if not all seven commissioners are to be present at their hearing, as it may be more difficult to reach the four-commissioner minimum to alter the director’s determination.

Estimates of the percentage of appeals where the BIC votes to provide the appellant some, if not all, of the relief requested range from 10% to 20% of all appeals heard. Your chances of success are much higher with the representation of experienced professionals. Should you be unhappy with the BIC’s ruling on appeal, you have the right to request a rehearing within 10 days of the BIC’s issuance of its written ruling. The BIC has the discretion, however, not to accept the rehearing request. If you lose in front of the BIC, you have 90 days to seek review of that determination by the Superior Court.

Board of Appeals
The Board of Appeals hears appeals filed by permit applicants in response to DBI’s denial of permit applications or DBI’s revocation or suspension of a permit. The board also hears appeals filed by residents who believe that his or her interest or the public interest will be adversely affected by the grant, denial, suspension or revocation of a permit, except for building or demolition permits for a project that has received a permit or license pursuant to a conditional use authorization (these appeals go to the San Francisco Board of Supervisors).

You have 15 days from the date of grant, denial, suspension or revocation of the permit in question to file your appeal. You file your appeal at the board’s offices on the third floor of 1660 Mission St. You need a copy of the front and back of the permit in question, a short written statement as to your concerns about DBI’s action on the permit, an adjacent property form informing the board of the owners and residents of both the subject property and of the properties adjoining the subject property, and a check for $100.

You will then have 15 calendar days to present a written brief stating your arguments as to how and why DBI has taken the wrong action on the permit. DBI has seven days to present an opposing brief (which it rarely does), and then you have ten calendar days to present your reply brief. Members of the public, however, have until the week before the hearing to present their own letters, pictures and petitions to the board. So if DBI’s action is taken based on neighbor complaints, you need to go to the Board of Appeals the Friday before your hearing to see what your neighbors have submitted in opposition to your appeal. The board will also accept pictures and other material from the public on the night of the hearing.

The five members of the board will likely ask pointed questions and seek reasoned responses from the parties. The board regularly receives professional presentations of appeals and professional assistance aids greatly in having your message heard effectively by the board. Decisions of the Board of Appeals are appealable to the Superior Court.

Board of Examiners
Prior to the grant or denial of permits, the Board of Examiners can review DBI determinations regarding requests for variances from Building Code requirements where you do not seek to use new materials, new methods or types of construction, but where the enforcement of compliance with the Building Code would result in unreasonable hardship. You will also have to provide supporting arguments for your request for a variance from code provisions, including results from studies, if possible, showing that such variance from code will not reduce the level of safety.

There are ten members of the Board of Examiners, each of whom fills a designated business or trade slot (such as architect, structural engineer or fire protection engineer). The electrician, plumber and high-rise sprinkler members hear only cases that involve their particular field of expertise.

Clearly, this is a board where your likelihood of success can increase because you are being heard by licensed real-world professionals who are not city employees. Your chances are often better with strong professional assistance on your team. The grant or denial of permits based on the determinations of the Board of Examiners is appealable to the Board of Appeals, but the Board of Appeals generally defers to the expertise of the Board of Examiners.

Access Appeals Commission
The Access Appeals Commission can review DBI’s determinations prior to issuance or denial of permits related to issues of access when the proposed project does not meet the Building Code for handicapped access by the public. These cases may involve ramps or lifts for the mobility impaired, Braille signage for the blind or mandatory electronic signage (instead of only audible messages) for the hearing impaired. The commission rules on access regulations found in the San Francisco Building Code and California’s Health and Safety Code.

The members of the Access Appeals Commission are appointed by the BIC and serve at the BIC’s pleasure. There are five members on the commission. Readers should note that if your building is of a certain age, it could be deemed historic. If historic, some owners find they are able to invoke the state Historical Building Code to obtain equivalencies of many handicapped access requirements to preserve the historic fabric of the building. Determinations of the Access Appeals Commission are appealable to Superior Court, though it has been argued that DBI’s decision to deny or grant a permit application, based on an Access Appeals Board determination, is also appealable to the Board of Appeals.

Unreinforced Masonry
Building Appeals Board
The Unreinforced Masonry Building Appeals Board reviews DBI’s determinations prior to issuance or denial of permits related to the seismic retrofit of UMBs where there are concerns with design or construction. This board hears appeals of Orders of Abatement for failure to come into compliance with code provisions requiring the retrofit of UMBs.

Like the Board of Examiners, the UMB Appeals Board is comprised of persons who are qualified by experience or training to review the relevant codes and pass judgment on whether your proposed solution meets the intent of the code, where strictly enforcing the code would place an unreasonable burden on you. The full board consists of nine members.

As with the Board of Examiners, you would need to tell the UMB Appeals Board which code section you are unable to comply with and how you propose to build while providing an equivalent degree of safety. Here, too, you will also have to provide supporting arguments for your proposal, including results from scientific studies. Determinations of the UMB Appeals Board are appealable to the Board of Appeals, but the Board of Appeals generally defers to the expertise of the UMB Appeals Board.

Weaving your way through the city’s enforcement and adjudicatory arms can be a tricky and time-consuming process. The avenues for appeal are many.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. The information within this article is general in nature. Consult an attorney for any specific problem. M. Brett Gladstone is a partner in the San Francisco real-estate law firm of Gladstone & Associates, and can be reached at 415-434-9500. Copyright © 2007 by SF Apartment Magazine. All rights reserved.