Unlawful Demolition Committee

Building Inspection Commission (BIC)

Committee Meeting of August 4, 1998

Advance Copy

Room 2001, 1660 Mission Street, San Francisco, CA 94103

MINUTES

The meeting of the BIC Unlawful Demolition Committee was called to order at 9:50 a.m. by Chair Freeman.

1.	ROLL CALL - Roll call was taken and a quorum was certified.

COMMITTEE MEMBERS/STAFF PRESENT:

Sigmund A. Freeman, Chair	Mona Cereghino, Commissioner

Armando Vasquez, Commissioner	Maria Banico, Commission Secretary

D.B.I. REPRESENTATIVES:

Frank Chiu, Director

William Wong, Deputy Director for Inspection Services

CITY ATTORNEY'S REPRESENTATIVE:

Ilene Dick, Deputy City Attorney

2.	Public Comment.

Ms. Roberta Caravelli, Citizen Review, thanked Commissioner Freeman for his efforts on clarifying the language of Section 103.3. She said that Director Chiu does not read the codes. It is interesting that the code is administered by people who do not read the code. She said that the BIC needs to look at this issue. It is an insult to the Board of Supervisors and the Mayor because staff says that the ordinance does not make sense and that the Board of Supervisors did not know what they were doing when they adopted the code. She said that it is evident that DBI staff does not read the code. They are more familiar with the temporary provisions of the Planning Code when the moratorium was imposed and have referred to those provisions during discussions on Unlawful Residential Demolition. She urged the Committee to move along in resolving these problems.

3.	Discussion of Unlawful Residential Demolition Ordinance codified in Section 103.3 of the 1995 San Francisco Building Code, including but not limited to:

a.	Report and discussion on the distribution and responses to a questionnaire prepared by Commissioner Freeman to solicit input on the language in Section 103.3.

Commissioner Freeman said that he had distributed a questionnaire to solicit input on the language and interpretation of Section 103.3. He said that he kept hearing from members of the public at previous Committee meetings that the language was very clear. He said that he has some experience reading codes, and yet found that the language of Section 103.3 was not clear. Commissioner Freeman said that the key issue was the definition of "a principal portion." The first part of the code on "total tearing down" seemed to be clear and did not result in any debates. However, succeeding portions of the code is not clear. He said that it is still not clear what one principal portion included.

Commissioner Freeman described the responses to the questionnaire and said that from the few who responded, he still did not get any resolution. He said that even if the Board of Supervisors passed this ordinance, it is not necessarily well written and its language is not clear.

Commissioner Vasquez said that the responses on "a principal portion" seem to indicate that there can be any number of possible interpretations. This is probably why there is so much inconsistency. Some staff members just go by precedents and their previous experience. He addressed his next statement to DBI management and said that if there is such variation, how can consistency be expected. This fact points to a piece of the code that is a problem.

Commissioner Cereghino said that the Unlawful Residential Demolition Ordinance belongs in the Planning Code and not in the Building Code. She said that the Committee needs to resolve this issue first before doing anything else.

Commissioner Freeman agreed. He said that per the Building Code the definition of demolition is clear. It means the removal of the whole building. He asked if a solution would be to change the word "demolition."

Commissioner Vasquez said he did not think that the word "demolition" could be removed. It is a common term used for removal of building parts.

Commissioner Freeman said that in any construction project, there is always a component of removal. He asked if that was demolition.

Ms. Caravelli said that there are four other provisions on demolition in the Building Code. The Board of Supervisors was trying to regulate the removal of the total building. Section 318.1 was adopted so that a demolition permit was required for the tearing down of a whole building.

Ms. Caravelli referred again to the questionnaire and said that it did not include the language "for purposes of this chapter." She said that this ordinance should be in the Building Code. The Central Permit Bureau in DBI establishes the form to use and DBI issues the demolition permit.

Commissioner Freeman asked if there was a definition of "structure" in the Building Code.

Ms. Caravelli said that there was and it reads "any piece of work artificially built up." She said the phrase "that construction" in Section 318.1 meant any portion that determines the envelope of the building.

Commissioner Freeman said that there is debate over the definition of structure.

Ms. Caravelli said that she was trying to teach the Committee how to read.

Mr. Bruce Bonacker, NARI, said that overall, the macro issues should be within the Planning Code. He said that he did not answer the questionnaire because he was in support of making a change in the Building Code. Mr. Bonacker said that Ms. Caravelli's definition of a structure is absurd. "Any piece" could be taken to include any part, e.g., a nail. He also said that he wanted to address the issue on whether Section 318.1 has been properly interpreted. He said that he had a project that was not an illegal demolition project when he first brought it in. But by the end of the project, it had become an illegal demolition. He said that there should be one station dealing with all the potential illegal demolition projects so that there would be consistency in applying the code. He said the staff assigned to this station should have the institutional knowledge on this issue. Mr. Bonacker added that if Ms. Caravelli's definitions are used, all remodeling projects would fall under unlawful demolition.

b.	Discussion of the problems that Section 103.3 was intended to solve and the difference in impacts between filing for an alteration permit instead of a demolition permit (e.g., notice requirements, increase in assessed value of residence, preservation of legal non-conforming status for parking and setbacks, etc.)

Commissioner Freeman invited a discussion on the probable reasons for adopting Section 103.3. He said that the lack of clarity has encouraged dishonesty.

Director Chiu thanked the Committee members for trying to help DBI staff get a definition of "a principal portion." He also thanked Deputy Director Wong for his report and Commissioner Freeman for the questionnaire. He said that the responses to the questionnaire showed the need for more guidance. Mr. Chiu said that in 1988 there was better enforcement because staff had some number to use to figure out what came under unlawful demolition. He said that if consistency is the goal, staff needs a method of quantification. He said that even if Section 103.3 were not in the Building Code and was transferred to the Planning Code, DBI staff would still be responsible for its enforcement during the inspection process. Staff needs guidance and is frustrated as well. On the requirement for a demolition permit, he said that DBI staff got a ruling from the City Attorney's Office that if a plan shows what is to be removed, an alternation permit should be used.

Commissioner Freeman thanked Deputy Director Wong for his report. He said that Mr. Wong did a good job in putting the package together. He asked if he would need a permit to take a wall down.

Director Chiu said he would need an alteration permit. He said that staff is clear on the intent of the law. If the project entails taking down 800 sq. ft. to be replaced by 800 sq. ft, there is no penalty under unlawful demolition.

Commissioner Cereghino said that the process should be clear. She suggested forming a committee of experts. This BIC Committee can then review its recommendations. The Committee also needs to look at who makes decisions on permit applications.

Commissioner Vasquez said that the Committee should not steer away from the intent of the code. This ordinance was meant to preserve sound, affordable housing. The Planning Department has not participated in this Committee's work so far, but this is a planning issue. For example, Planning needs to be involved when there is an alternation to the envelope of a building. The Committee needs to separate what is within DBI's jurisdiction and what falls under other jurisdictions. He said he did not yet know how to do this. The Committee needs to take a practical approach. If the literal interpretation is used, Commissioner Vasquez said that for him would mean everything would fall under unlawful demolition. However, this is impractical. He cited a bathroom remodel, the way the code reads now is open to an interpretation that this is an unlawful demolition.

Director Chiu said that such is not the intent of the code. Staff always has to back and understand the objectives. Staff also is guided by the goal of preserving affordable housing.

Commissioner Freeman asked if under the unlawful demolition ordinance, one can tear down a whole building and build the same building using new materials without a demolition permit.

Director Chiu said that this could be allowed under the unlawful demolition ordinance. However, there are other codes that will come into play such as seismic requirements.

Commissioner Cereghino said that she wants to move in the direction of having everything written down and not subject to individual interpretation.

Director Chiu said that staff drafted a proposal in 1996 which contained a definition of "principal portion." He said the Committee can look at this and if the proposal is not acceptable, staff can start over.

Commissioner Freeman said that he may not agree with the 1996 proposal but it was a good attempt to do something. However, this proposal was shut down as illegal.

Director Chiu said that the Committee could revisit this proposal.

Commissioner Cereghino said that if the proposal did not work out, it should have been rewritten. She reiterated that there is a need to get a group of experts involved. Otherwise, this Committee would be sitting in endless debates.

Ms. Caravelli said that the draft 1996 Code Ruling tried to change the requirements of Section 318.1, not merely interpreted it. DBI staff can't continue to insult the Board of Supervisors by amending legislation. Director Chiu referred the question of what constitutes unlawful demolition to the City Attorney's Office. The opinion from the City Attorney's Office said what is allowed is work on "a principal portion requires an alteration permit." "A" means only one principal portion. She said that it should not be a situation where Planning makes the decision then Building issues the permit.

Commissioner Freeman said that the ordinance, as written, does not make sense. He said that Ms. Caravelli keeps repeating that the Board of Supervisors knew what they were doing. However, he said that even if the members of the Board at that time testify before this Committee, he was sure that no one will be able to explain the code.

Ms. Caravelli said that the courts have ruled that it is presumed that legislators knew statutory construction of language in adopting laws.

Commissioner Freeman said that he disagreed with that premise. He said this is only his individual opinion.

Mr. Bonacker said that the ordinance does not have findings that could have been used to determine when an unlawful demolition has occurred. He said that another place that the Committee should look at is the punishment imposed on an unlawful demolition. He said that there is a fine imposed and the exact same building can be rebuilt. These do not have to do with life safety or disabled access issues. Mr. Bonacker asked Director Chiu if he thought that this ordinance belongs in the Building Code.

Commissioner Freeman asked Mr. Bonacker if he had an opinion on how this ordinance fits within the state code.

Mr. Bonacker said that the City can only adopt ordinances amending the state code if it can make the findings that there are special conditions like topography or climate that require the adoption of such ordinances. He said he did not believe that state code allows San Francisco to have this ordinance.

Director Chiu said that if DBI staff is given the task to enforce the code, staff needs something more definite. He said that in his opinion this ordinance is contrary to the goals of the Building Code to make structures better, provide fire and safety improvements.

Mr. Bonacker said permit applicants should define very clearly what will be demolished. Applicants should be brought to task.

Commissioner Freeman agreed and said that applicants need to be upfront about the extent of demolition.

Commissioner Cereghino asked what the process was if dry rot is found during construction.

Mr. Bonacker said that the applicant should try to disturb as little as possible of the original construction and should ask the department what the requirements will be.

Ms. Caravelli said that any additional work will require another permit. However, in actual projects, the evidence that the additional work was the result of finding dry rot has usually been removed when the inspector comes to the site. All the inspector sees is the "replacement" due to dry rot. She said that the applicants should give the Planning Department a complete set of plans. Planning staff relies on the type of permit application used in determining if a project involves demolition. If the planners see a form six, they process the application as a demolition. If the planners see a form three, they process the application as an alteration. DBI has no controls on what forms should be used. She said that the review should be carried out by Planning. Ms. Caravelli added that Section 104(f) gets triggered if an application is considered a demolition. This would require replacement construction to meet 75% of the current seismic standards.

Director Chiu said that if an application was received to remove any part of a structure, a demolition permit is required. He said that the intent of the ordinance is clear to all. DBI staff does not just implement the ordinance without considering its intent.

Ms. Caravelli said that Planning staff does not put any effort to determining if a permit application would result in an unlawful demolition. She said that Planning does not even receive detailed plans for review.

Mr. Bonacker agreed with Ms. Caravelli that Planning staff does not review for potential unlawful demolition. He said that compliance with the 75% of current seismic standards is checked separately. He said that DBI should look at what other cities such as Berkeley or Palo Alto are doing. He said that even the Planning Commission had some discussion that there may be a need for a category called Major Alteration.

Commissioner Vasquez asked if the Planning Code had any definition of Major Alteration.

Ms. Caravelli said it did not.

Director Chiu said that the Building Code has a definition for substantial change.

Mr. Bonacker said that the Planning Department has ducked on this issue and has relied on DBI to police unlawful demolition.

Commissioner Vasquez said that he did not completely agree with the opinion that this ordinance should not be in the Building Code. The definition of substantial alteration was in the demolition moratorium legislation. The intent of the ordinance was to preserve affordable housing. That intent is extremely difficult for DBI staff.

Ms. Caravelli said that a classification called Major Alteration will not trigger the level of scrutiny intended for unlawful demolition.

Mr. Bonacker said that the Planning Code will need major modifications if this ordinance is moved from the Building Code to the Planning Code.

Mr. John Bardis gave a history of Proposition M. He said that this initiative was to preserve affordable housing. It was not lodged in the Planning Code on purpose. Once an applicant files a permit, he should be on notice that he is taking the risk of additional work due to dry rot. If during construction, he finds that he has been wrong on the extent of work, he should go back to the beginning. DBI should do away with the process of issuing multiple permits. This is a byzantine process. DBI staff should be very clear about the risks and then should go ahead and enforce penalties when needed. He said that government has the authority to allow things to happen and also the responsibility to control.

Commissioner Vasquez said that there is a need to figure out the intent and to draw the line for the Building Code. He said he was trying to be practical and asked Mr. Bardis' opinion on having a classification for Major Alteration.

Mr. Bardis said that this may be acceptable. Thresholds can be set such as not to allow more than 500 sq. ft. of alteration with no additional floor area. He said that if the actual work exceeds the scope of the permit, then the permit becomes void.

Commissioner Freeman said that some people are saying that permit applicants have been cheating from the beginning of the permit application, that they actually know that there will be more work needed than what is shown in the permit.

Mr. Bardis said there is a need for a more rigorous review process.

Commissioner Freeman said that at the beginning one can't ascertain what the extent of dry rot will. He said that an applicant can't open up walls, etc., in the beginning.

Mr. Bardis said that if an applicant finds out that he has made a mistake in the plans, he has to fix the permit immediately. He said that this has not happened for the last ten years.

Commissioner Freeman asked Mr. Bardis if he agreed with the opinion that the wording of this ordinance is hard to interpret.

Mr. Bardis said that the ordinance should start by putting people on notice that the process will be difficult. Once a permit applicant starts with that premise, things can get easier.

Commissioner Freeman said that he was looking for a way where the code could be implemented to make it harder for cheaters but easier for others. He said that there are many applicants who just want to fix up their existing structures.

Ms. Caravelli asked how DBI would distinguish between these two groups.

Mr. Bardis said that a building permit is not a right but a privilege.

Commissioner Vasquez said that a lot of the issues are subjective. He said he agreed with the premise that there is a lack of affordable housing in the City in general.

Ms. Caravelli said that affordability is not the issue that this ordinance was trying to address. She said it sought to put a stop to speculative practices that affected housing.

Commissioner Freeman asked if it was really possible to turn a single family dwelling into five units.

Ms. Caravelli said that is happens a lot. Once an inspector leaves, additional units are carved in.

Mr. Bardis said that government should look at the bigger picture. He spoke about the relationship of jobs, demand and supply of housing, the Master Plan, Zoning, demolition and alteration. He said that government has the duty to address the impacts.

Commissioner Freeman said that it seems like the issues have been dumped on the BIC.

Commissioner Cereghino said that enforcement has been dumped on DBI. This needs to be addressed.

Ms. Caravelli said that the enforcement responsibility rests on DBI because the Central Permit Bureau, which is in DBI, issues the permit. One cannot separate the permit, revenue and authority to enforce.

Director Chiu said that he needs a number or quantification of the code requirements. He urged the Committee not to leave this vague. He said that a definition of "principal portion" is needed with measurable standards.

Mr. Bardis said that the administrative authority should provide the guidelines.

Ms. Caravelli said that the administrative arm does not have jurisdiction over the law.

Commissioner Freeman asked Mr. Bardis if he agreed that the wording of this ordinance is vague and if he would be willing to work with the department on coming up with an interpretation and a permit review process.

Mr. Bardis said that he agreed that the wording is vague. He said that he is very cynical about the process.

Director Chiu urged the Committee to form a task force. He said that he did not recommend at this time to move the ordinance to the Planning Code. That would involve larger political issues that will take longer to resolve.

Commissioner Freeman asked for details on the task force.

Mr. Bardis said that in order for the work of this task force to be accepted, the task force must be open to the public. He recommended that the intent be written down before the task force convenes.

Commissioner Vasquez said that Deputy Director Wong is a good step in making people understand the issues. It is a good beginning.

Commissioner Freeman said that he wanted this report to be sent out. Each member of the task force should get a copy.

Commissioner Cereghino agreed.

Ms. Caravelli asked if this task force will be working on a code ruling.

Commissioner Freeman said that the task force should come up with a recommendation on how to solve this problem.

Commissioner Cereghino asked who would be in charge of the task force.

Director Chiu said that usually the task force members select their own chair.

Mr. Bardis said that the task force should report to this Committee.

Commissioner Cereghino asked who would do the initial planning for forming the task force.

Director Chiu said that he will be responsible for this.

Commissioner Cereghino asked for a timeline.

Director Chiu said that he will do this quickly and asked what timeline the Committee was looking at.

Ms. Caravelli suggested that the Committee give guidance to Director Chiu on the membership on this task force.

Commissioner Freeman said that the task force could have about nine members comprised of: a BIC Commissioner, four non-industry representatives, four industry representatives. He also said that there should be a representative from the Planning Department who could be an ex-officio member.

Commissioner Cereghino suggested that the deadline for a first report from the task force should be in three months.

Director Chiu said that DBI staff will send the minutes of task force meetings to this Committee's members. Based on the information in the minutes, the Committee can decide when there should be a Committee Meeting.

c.	Report and discussion of previous cases where there was a question on whether the application involved illegal demolition and schematic cases/floor plans to illustrate the types of projects where the question of the occurrence of illegal demolition arises.

There was no discussion on this agenda item.

d.	Possible action to adopt strategies to formulate a workplan with a timeline, disseminate information to the public and forward a recommendation to the full Commission on alternatives proposed to amend the Unlawful Demolition Ordinance or to improve the implementation of the current ordinance (e.g., through code interpretations/bulletins).

There was no discussion on this agenda item.

4.	Discussion and possible action with respect to those items that could be placed on the agenda of future Committee meetings.

There was no discussion on this agenda item.

5.	Commissioner Inquiries and Review of Communication Items: At this time, the Committee may make inquiries to staff regarding the status of various documents, policies, practices and procedures which are of interest to the Committee and may discuss communication items received since the last Committee meeting.

There was no discussion on this agenda item.

6.	Approval of the Minutes of the Committee Meeting of November 13, 1997.

Commissioner Vasquez moved, seconded by Commissioner Freeman, to approve the Minutes of the November 13, 1997 Committee Meeting as prepared.

The motioned passed unanimously.

7.	Approval of the Minutes of the Committee Meeting of December 9, 1997.

Commissioner Vasquez moved, seconded by Commissioner Freeman, to approve the Minutes of the December 9, 1997 Committee Meeting as prepared.

The motioned passed unanimously.

8.	Public Comment.

Ms. Roberta Caravelli, Citizen Review, said that the questionnaire that was being circulated was not written well. She said there are more than one answers to some questions. She asked if this questionnaire was meant only for DBI staff.

Commissioner Freeman said that anyone who was interested can fill out the questionnaire and submit it to the Committee.

9.	Adjournment.

There being no other business, and on a motion made by Commissioner Vasquez, seconded by Chair Freeman, the meeting adjourned at 12:50 p.m.

The motion passed by unanimous vote.

________________________________

MARIA G. T. BANICO

Commission Secretary

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