Building Inspection Commission
BUILDING INSPECTION COMMISSION (BIC)
Department of Building Inspection (DBI)
REGULAR MEETING
Monday, March 20, 2006 at 9:00 a.m.
City Hall, 1 Dr. Carlton B. Goodlett Place, Room 400
Aired Live on SFGTV Channel 78
ADOPTED JUNE 5, 2006
MINUTES
The regular meeting of the Building Inspection Commission was called to order at 9:00 a.m. by President Walker.
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Call to Order and Roll Call – Roll call was taken and a quorum was certified. |
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COMMISSION MEMBERS PRESENTS: |
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Debra Walker, President |
Frank Lee, Vice-President |
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Ann Aherne, Commission Secretary |
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D.B.I. REPRESENTATIVES: |
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Amy Lee, Acting Director Sonya Harris, Secretary |
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CITY ATTORNEY’S OFFICE REPRESENTATIVES: |
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President’s Announcements.
President Walker had no announcements.
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Public Comment: The BIC will take public comment on matters within the Commission’s jurisdiction that are not part of this agenda.
There was no public comment.
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APPEALS PURSUANT TO SECTION D3.750-4 OF THE CITY CHARTER
Appeal by Regan Carroll, Trustee, Trust of Regan Carroll – Represented by Mr. Thomas Lippe, Attorney for the appellant regarding 1169 – 1177 Tennessee Street and the Department of Building Inspection’s decision that the Site Permit “expired without work having been started or completed within the required time frames.”
a. Report discussion and possible action regarding the Building Inspection Commission’s jurisdiction pursuant to Section D3.750-4 of the City Charter over this appeal. Ms. Catharine Barnes introduced herself to the Commission as the Deputy City Attorney representing the Commission when the Commission sits in an appellate capacity. Ms. Barnes stated that Deputy City Attorney Judith Boyajian who represents DBI in its capacity as a Department was also present to answer questions for the Department.
b. Presentation by parties including witnesses.
Acting Director Lee gave a timeline from the Department’s records regarding the permit history for 1169 – 1179 Tennessee Street:
(DBI was not contacted for any final inspections or inspections in regards to demolitions. DBI has no details as to when demolition actually occurred)
Ms. Lee said that this is where she thought that most of the discrepancy laid because at the time the project sponsor obtained his foundation permit; he did not renew his site permit. Ms. Lee stated that at this time even though the foundation permit was issued, the site permit officially has died. Ms. Lee said that had the project sponsor renewed the original site permit, revised the foundation permits, which was the action of this particular permit, and paid the permit fees associated with the valuation of $300,000, this would have resuscitated the expired site permit. Ms. Lee said that this would have been the third renewal for the site permit.
Ms. Lee said that it is the Department’s belief that with this permit had the project sponsor renewed his site permit and paid the associated fees, the Department would have issued the permit and there would be no need for an appeal.
Ms. Lee stated that regarding the permit she conducted a site inspection in January 2006 and at that time saw that no work had been done. Ms. Lee said that there was some dirt dug and a grass wall was removed from the site. Ms. Lee stated that in the project sponsor’s attachment she believed that the Commission would see that rebar had been installed along with some foundation and concrete work, but DBI staff did not see any of that at the time. Ms. Lee said that it was in January 2006 that the Department decided to stop this permit. Ms. Lee said that regardless of DBI’s jurisdiction with this permit, the Department encouraged the project sponsor to speak with the Planning Department because DBI was contacted by a neighbor with a complaint to pull the permit back. Ms. Lee stated that the Planning rules are different from Building Inspection rules and asked Mr. Larry Badiner of Planning to come up and speak on this issue.
Commissioner Theriault stated that before the meeting he addressed a question to the Deputy City Attorney and said that as a result he was announcing that when he went by this job earlier today he recognized that he had been on the job before. Commissioner Theriault stated that he went by the job in 1999 or 2000 when he was working for the Ironworker’s Union shortly after the demolition. Commissioner Theriault said that he was not directly involved in anything on the job, but might have sent correspondence to Mr. Strickland or Mr. Carroll at the time. Commissioner Theriault said that the correspondence would have been limited to offering contractor lists had the project sponsor been interested. Commissioner Theriault stated that he did not believe that this would affect his ability to decide on this in any manner, but wanted to make this clear in public.
Mr. Larry Badiner introduced himself as Zoning Administrator for the Planning Department. Mr. Badiner thanked Amy Lee, Wing Lau and Carla Johnson for being so helpful in this matter. Mr. Badiner stated that there is a very strong distinction between the Building Code, which is governed by State Law that says that the law that applies is at the time of application, but the Planning Code states that it is the law that applies at the time of issuance. Mr. Badiner said that sometime the Board of Supervisors in their amending of the Planning Code create some opening for grandfathering, but said that in this case he did not believe there was any grounds for grandfathering.
Mr. Badiner stated that this case was brought to Planning’s attention by the Dogpatch Neighborhood Group. Mr. Badiner reported that on April 18, 2003 the Dogpatch Historic District officially became part of the Planning Code and this case would need to go through a procedure to discover whether it meets the requirements of the historic district. Mr. Badiner said that a project at this time going through the process would be required to file a Certificate of Appropriateness, (C of A) for new construction within a historic district and both of these sites are within the historic district. Mr. Badiner said that then the project would be referred, after review by the Planning Department, to the Land Marks Preservation Advisory Board and as new construction possibly to the Planning Commission.
Mr. Badiner explained that these projects did not have to go to the Planning Commission for discretionary review and said Mr. Carroll had ample time to get these two projects started. Mr. Badiner said that now the law has changed and these projects are no longer in conformity with the law so the Planning Department asked that DBI bring one of them back and to refer the other to Planning when it came through.
Commissioner Hirsch pointed out that the Commission was only considering 1169 Tennessee Street at this time. Mr. Badiner said that his words would apply equally to both projects.
Mr. Badiner said that it was not unusual for the Planning Department to ask the Director of Building Inspection to call back a permit or to refer it back to Planning and said that it was his understanding that as long as the permit is still within the City the permit could still be called back. Mr. Badiner said that when a permit has been issued it could be brought back by the Zoning Administrator to Planning if it has been suspended or needs further analysis and could then be appealed to the Board of Permit Appeals. Mr. Badiner stated that it was his personal opinion that ultimately the Board of Appeals would be the appropriate place for this issue to be heard.
Mr. Badiner said that the issue of comparability was raised between these projects and the 80 Natoma Street project and said that these were distinctly different projects with 80 Natoma being a multi-million dollar high-rise where considerable foundation work had been started and in these two projects there was no foundation work started.
Mr. Badiner said that the Planning Code applies and the law has changed so that ultimately these projects would be referred to the Landmarks Preservation Advisory Board. Mr. Badiner stated that the residential guidelines for this area were amended in 2004 and said it is mandatory that the Planning Department follows those guidelines.
Commissioner Romero arrived at the meeting (9:23 a.m.)
Commissioner Hirsch said that projects go through Planning first and get approval and then go to Building to get a building permit and asked if it could then be reviewed again by Planning and zoning. Mr. Badiner said that in general the Planning Department often asks for permits to come back especially when the project changes through the Building Code process. Mr. Badiner said that any permit before its issuance can be referred back to Planning and said that he has, in the past for enforcement action or where questions have been raised, asked for issued permits to be suspended. Commissioner Hirsch said that it was his understanding that with this particular permit it was not a question of the design being changed, but the zoning changed while the project sponsor was in the process of obtaining building permits. Mr. Badiner said that was correct and said that one of the important issues is that these projects have been going on for so long and this is a 1999 permit. Mr. Badiner said that this is not a huge project and said that the project sponsor is at risk when the law changes by waiting so long for this project to proceed. Mr. Badiner stated that Planning had not reviewed the design characteristics of the project under the new guidelines and said that there might be some changes to the design because of those changes in neighborhood character. Commissioner Hirsch said that it was not known whether this project meets the new guidelines or not. Mr. Badiner said that was correct and said that in 1999 the Planning Department did not even look at design appropriateness because this was not a preservation district and now it is.
Commissioner Murphy said that he did not think that it was unusual for projects to take four or fives years to get a permit and said that the project sponsor was negotiating with the neighbors and that could take three or four years. Commissioner Murphy stated that he thought that it was harsh that this permit was pulled at the last minute. Commissioner Murphy said that the appellant was probably careless with following his paperwork, but said that there should be some sort of flag that is sent out to customers from DBI when a permit is about to expire.
Commissioner Theriault commented on the fact that in October 2004 Planning had the appellant’s final plans and site permit addendum in hand after the establishment of the Dogpatch requirements and still this permit was issued in June of 2005. Commissioner Theriault stated that Planning had the application in hand and could have easily applied the new district regulations at that time. Mr. Badiner said that Planning needed to be more conscious of the renewal of permits and said that he wished this permit had not been approved over the counter, but said the permit was pulled because this situation was brought to Planning’s attention. Mr. Badiner said that there was no question about the fact that this permit has brought about some issues in the process. Commissioner Theriault said that he did hate to see the financial impact that can occur when someone is acting in good faith to complete a project as a result of errors by the City.
Mr. Badiner said that it was brought to the attention of the Planning Department that this project did not comply with the law as it was. Commissioner Hirsch asked Mr. Badiner if he meant to say according to the law as it became. Mr. Badiner said that it was the law as it became. Mr. Badiner said that it is the nature of the Planning Code and the nature of the process that mistakes are made, but said that the Board of Appeals recognizes, as does Planning, that the law is the law and it needs to be applied correctly. Mr. Badiner said that this does not mean that sometimes there are some unfortunate circumstances and some unfairness.
Mr. Badiner said that in this case when the permit was pulled very little expense had been incurred by the project sponsor as no foundation work had been done, but the project sponsor proceeded with the foundation work at his own risk knowing that the Planning Department had issues that might result in the foundation work having to be modified or redone.
Commissioner Hirsch asked for clarification of Section D3.750-4 of the City Charter and the BIC’s jurisdiction. Deputy City Attorney Barnes said that the Commission had jurisdiction over DBI’s decision as it pertained to the permit.
Ms. Lee said regardless of the decision made by the BIC the March 6, 2006 letter from Planning would still stand and this would probably end up at the Board of Permit Appeals. Ms. Lee said that the Building Inspection Department thought this was a Planning issue.
President Walker called on the appellant and said that the appellant had requested additional time for presentation and rebuttal, fifteen minutes for presentation and five for rebuttal, and said that she was granting that request.
Mr. Tom Lippi said that he was representing the appellant, which is 1169 – 1177 Tennessee Street, Inc., the owner of which is Mr. Regan Carroll. Mr. Lippi said that he would be presenting some of Mr. Carroll’s receipts and cancelled checks to show the amount of money that has spent and to have Mr. Carroll testify to a few points at the end of the presentation.
Mr. Lippi said that Mr. Badiner stated that the Planning Department did not consider this project consistent with the historic district, but said that Planning did not allow Mr. Carroll to go through the process to determine whether it is or not and said that this is why Mr. Carroll feels that the Planning Department has been biased against his project. Mr. Lippi said that he agreed with Ms. Barnes that this case was about whether or not the permits expired which is clearly within the BIC’s jurisdiction. Mr. Lippi said that the facts of the case had not been reported accurately in the Building Department’s staff report dated March 6, 2006.
Mr. Lippi pointed out several discrepancies on the March 6, 2006 letter from DBI relating to dates of permits issued and the expiration dates and said that there were a number of different mistakes that were all related to each other that were confusing the issue and making it more difficult for the Commission to apply the law that is supposed to be applied. Mr. Lippi said that the March 6th staff report stated that the second extension issued August 22, 2003 expired on August 22, 2004, but said that this ignores the fact that the valuation of this permit was $300,500 which would give it a duration of 24 months and not 12 so the expiration date would be August 22, 2005.
Mr. Lippi said that the design envelope for this project had not changed in plans approved in 1999 and in 2005 by the Planning Department. Mr. Lippi stated that the only changes were to a light well and the size of the rear of the building, but otherwise the project was essentially the same. Mr. Lippi said that after the application of Appendix L Article 10 to the historic district (Dogpatch) the Building Department had a chance to look at the question of whether to apply the historic district to this project and decided not to and reissued or renewed the site permit at that time. Mr. Lippi stated that Mr. Carroll relied on that to proceed and develop plans. Mr. Lippi said that the final plans for this entire project were approved and issued by the Planning Department on May 25, 2004. Mr. Lippi said that the foundation permit was issued on January 27, 2005 and again there was another chance to apply the historic district or to claim that the site permit had expired. Mr. Lippi said that it was true that this occurred over a long period of time, but said that there were a number of instances where the Department of Building Inspection and/or the Planning Department had the time to tell Mr. Lippi that the law had changed, but that was never done. Mr. Lippi stated that Mr. Carroll relied on this and spent a lot of money on this project, to his detriment. Mr. Lippi stated that the mistakes are so egregious by the Planning Department that the City is estopped from denying the issuance of the revision of the permit which is causing this appeal to happen. Mr. Lippi said that Mr. Badiner concedes to the fact that if this permit is tied to an approval before the effective date of the historic district then the historic district does not apply and that is why the expiration date is so important.
Mr. Lippi said that a site permit does not allow work to start so it does not make any sense to reference a site permit. Mr. Lippi said that this project had a site permit with addendum and work started with the demolition back in 1999. Mr. Lippi said that Ms. Johnson says that no inspection was requested and no inspection occurred to show that the demolition work had been done, but said that there is nothing in the Code that requires an inspection. Mr. Lippi said that for whatever reason it seems that somebody in the Building Department is kind of making this up as they go along and said that this sounds harsh, but it is true. Mr. Lippi said that the staff report was grasping for every straw to look for a way to deny this permit. Mr. Lippi said that in looking at the staff report one item at a time it does not hold up under analysis.
Mr. Lippi said that in looking at the final addendum and the completion of work, the date is October 21, 2006 and that is a permit that has already been issued with a completion of work deadline that has still not passed. Mr. Lippi stated that his client could not be subject to the charge that the work has not been completed when the completion date is some time in the future. Mr. Lippi said that the foundation revision was issued on January 27, 2005, well within the time period set by the final plans addendum and the foundation permit work has been proceeded and been extended. Mr. Lippi that excavation work was started in July 2005 and that permit was extended for a second time with no caveat about this being at Mr. Carroll’s own risk and then work continued again in November 2005. Mr. Lippi stated that work was stopped and then the third extension was issued in January and had this caveat about Mr. Carroll doing the work at his own risk. Mr. Lippi said that the Department could not now tell the applicant to stop working on this project after spending so much money working on plans and various other costs.
Mr. Lippi called on Mr. Carroll to speak.
Mr. Carroll said that he was President of 1169-1177 Tennessee Street, Inc. and owner of this project. Mr. Carroll said that he wanted to make it clear that this issue was reviewed by the Board of Permit Appeals; the demolition permit was heard and denied; a request for rehearing was heard and denied; and a request for jurisdiction beyond the time was made and denied.
Mr. Carroll stated that the demolition of this building started in December 1999 and was completed in the year 2000. Mr. Carroll said that during the demolition the District Inspector, John Sims had been to the property. Mr. Carroll stated that over the course of the project he had spent $433,000.
President Walker asked Mr. Carroll why he did not renew the site permit as it was renewed twice. Mr. Carroll said that he did not know that the site permit was about to expire as he had Mr. Shawn Gorman of Gary Gee Architects handling his paperwork and Mr. Gorman left the employ of Gary Gee sometime in 2004. Mr. Carroll said that he thought this should have been brought up by Building Department staff and he should have been given the opportunity to extend the permit. Mr. Carroll stated that the Department staff had two separate opportunities to raise this issue and afford him the opportunity to have his due process and the opportunity to renew the site permit.
c. Deliberation and possible decision by the Building Inspection Commission.
Commissioner Lee asked Mr. Carroll if he happened to see the permits themselves or the extensions. Mr. Carroll said that he did not know who was in possession of those, but said that he now had the permits. Mr. Carroll said that he had possession of the foundation permit, but with respect to the site permit and the renewals he did not know if they were on the jobsite or in the possession of the Architect. Mr. Carroll said that had he been aware that there was issues with the site permit going to expire since it had been renewed twice already, he would have gone through the process to renew the site permits. Mr. Carroll said that the Department’s procedures would have routinely renewed these over the counter because work had started. Mr. Carroll said that both times prior to the expiration of the site permit, the foundation permit was renewed beyond the alleged expiration date. Mr. Carroll stated that there is an element of fairness that has been totally lacking in what has been done.
Commissioner Hirsch asked if Mr. Carroll was acting as his own contractor. Mr. Carroll said that was correct. Commissioner Theriault asked when the excavation started. Mr. Carroll said that work on the foundation began on July 5, 2005. Mr. Carroll stated that when the revision drawings were submitted in November 2004 causing the addendum to be issued they were told that the process would be complete in March or April 2005. Mr. Carroll said that on that basis he caused the foundation permit to be issued separately so work could proceed with the idea that when the revisions were approved he could go on. Mr. Carroll said that March turned into April, then May, then June and the Planning Department had his drawings from early December until June 30th. Mr. Carroll said that there were a number of issues raised by Mr. Purvis of Planning, which were responded to. Mr. Carroll said that the issues of the expiration of the site permit, or the alleged application of the historic district were never raised. Mr. Carroll said that he did not believe they should have or could have been raised because this project was originally approved prior to the inception date of that ordinance. Mr. Carroll said that both Departments had ample opportunity to raise those issues and give him a fair opportunity to decide how and when to proceed, but to raise this at the 11th hour, 59th minute, before the stroke of midnight was unfair.
Commissioner Murphy asked who Dogpatch Construction was. Mr. Carroll said that Dogpatch Real Estate Company is a company that he formed in January 2004 with the idea that this would be the builder, but it took some time to get the Contractor’s license issued and that Contractor’s license was issued in October 2005. Mr. Carroll stated that prior to Dogpatch becoming licensed, the family corporation known as the Reverend Group was his mother’s company and he was the qualifying officer for Carroll Construction prior to work proceeding. Commissioner Murphy asked Mr. Carroll if he had anything to do with a Victorian building on the left of the property that seems to have a lot of underpinning work done. Mr. Carroll said that this was the work that pressed him to redesign his building and said that it was not just the light well and the small buildings in the rear, but said that he made a conscious decision to work on that building. Mr. Carroll said that on the site in late 2003, early 2004 he was out on the site, staked it and shot elevations and discovered that they would have massive or deep underpinning of that existing Victorian. Mr. Carroll said that he went back to the Architect and Engineer and said they came up with a way to step the foundation and those were the revision drawing that were submitted. Mr. Carroll said that this project has remained virtually unchanged save for a light well with which they hope to keep a pepper tree on the adjoining property. Mr. Carroll said that he had agreed to pay in excess of $30,000 for unpinning work to be completed for both of his properties. Mr. Carroll said that underpinning was financed by both of his properties that are under appeal today. Mr. Carroll said that he had a clear intent on continuing with these projects and said that he could clearly show that work had been started.
Commissioner Murphy asked if Mr. Carroll volunteered to keep a large pepper tree that is in the middle of the lots. Mr. Carroll said that his predecessor designed that into the project and the neighborhood was glad that he had done so; Mr. Carroll said that he agreed to honor that agreement and had an arborist out to inspect the tree to make sure that it will last for many, many more years.
Acting Director Lee said that she did feel bad about the processes in the City, said that she did feel for Mr. Carroll and said that the Department did not want to be an obstacle in this project. Ms. Lee stated that even on December 1st, Chief Building Inspector Carla Johnson wrote a letter stating that DBI were ready to renew Mr. Carroll’s permit, but it did need to be referred to Planning. Ms. Lee said that because of all of the permits and the timeframes this was a little bit unclear, but said that at the time the revision to the site permit was filed, it was filed on October 21, 2004 and it had not yet been issued. Ms. Lee said that Mr. Carroll then filed a foundation permit and that was issued on January 27, 2005. Ms. Lee stated that she went out to the property in early January and said that the Department then wrote a letter to Mr. Carroll and his Attorney on January 5th and letters had been written on December 1st as well. Ms. Lee said that DBI’s Inspector did not see any work done with the foundation so it is a little bit unclear as to when foundation work was done. Mr. Carroll said that excavation was done at a cost in excess of $35,000 or $40,000 and said that but for the actions of the Department the foundation would have been completed before Thanksgiving and said that in December the City was inundated with rain. Mr. Carroll stated that the Department had stopped work on this project. Ms. Lee said that work was stopped on this project in November 2005 because the Department received a complaint from a public member. Ms. Lee said that then the Department did research on the history of the permits and discovered that the permit was expired and asked Mr. Carroll to submit a renewal and the fees according to the new valuation. Ms. Lee said that she wanted to emphasize that DBI does want to work with Mr. Carroll to move along with the project, but cannot go beyond Planning’s rules as Planning had taken over jurisdiction of this issue.
Commissioner Grubb asked if a site permit is expired would the Department be issuing subsequent permits. Acting Director Wing Lau said that DBI is not supposed to issue addendums when the site permit has expired, but said that once an addendum is issued work is supposed to start within 90 days and the work has to be completed within the time period of the site permit which was two years. Ms. Lee stated that there was some confusion as to when the site permit was renewed and when it expired, but the foundation addendum was not submitted until 2004. Ms. Lee said that there was a revision submitted regarding a light well that Planning had to review and that had not yet been issued. Ms. Lee said that the foundation permit submitted in 2004 did not speak to a renewal of the site permit nor did the applicant pay for revaluation.
Mr. Lau said that in the applications submitted in 2001 and 2003 both indicate an valuation of $300,000 which would allow for 12 months unless the valuation is over $300,001 and then the permit would be valid for 24 months. Mr. Lau stated that the Department did not have any computer records that showed District Inspector Simms visiting the site at any time. Ms. Lee said that if the Commission wanted to instruct DBI to move forward and renew Mr. Carroll’s permit he would still need to go through the Planning Department.
Commissioner Murphy said that he did not find it unusual that there was no signing of the job card as he said he had come across that situation many times where the Inspector did not sign it. Mr. Murphy asked Mr. Carroll if he had ever called for an inspection. Mr. Carroll said that Inspector Simms had been to the property regarding the work on the Victorian building and said that Inspector Spears had started on that job. Mr. Carroll said that he had contacted Inspector John Lee on several occasion at the Department because he was anxious to proceed with the project and kept Mr. Lee informed of the fact that he had pulled the addenda and submitted his revisions. Mr. Carroll said that he did not know until recently that Inspector McHugh was now the District Inspector.
President Walker allowed Mr. Lippi five minutes for rebuttal.
Mr. Lippi said that he wanted to focus on the fact that the second site permit extension had a valuation on the face of it of $300,500 and that would make the permit valid for 24 months rather than 12 months. President Walker asked who filled out the application. Mr. Lippi said that it was Mr. Carroll and said that the valuation change was initialed by Mr. Jim Hutchinson from DBI. Ms. Lee stated that the initials were those of Jim Hutchinson. Mr. Lippi said that therefore the permit expiration date would be 2005 and the final plans addendum was issued in 2004 before that expiration date. Mr. Lippi said that this would make the new completion date October 21, 2006 so all of the issues from August 2003 would fade into irrelevance. Mr. Lippi stated that if the Department is correct and the time was 12 months for that extension which would be 2004, then the final plan addendum was issued a year after the alleged expiration of the site permit. Mr. Lippi said that the City had to take responsibility for that action. Mr. Lippi said that his client was asking that the City pay a fair price for its actions and this permit should be allowed to proceed and be issued.
Commissioner Lee asked what the status of the final plans submitted on July 2002 was. Mr. Lippi stated that Mr. Carroll submitted revisions to that plan to create a light well, make the rear of the building smaller and step the foundation so he would not have to underpin the adjacent buildings. Mr. Lippi stated that Mr. Carroll maintains that this is an issued permit, not subject to Article 10 and does not have to go through Planning. Mr. Lippi said that this is what this appeal is all about. President Walker called for public comment.
Mr. Henry Karnilowitz said that he thought that this was an unfortunate happening as this is not a stand-alone permit. Mr. Karnilowitz stated that there should be some sort of notification sent out by the Building Department when a site permit is about to expire. Mr. Karnilowitz spoke in favor of the appellant.
There was no further public comment.
President Walker said that it seemed to her that a lot of the tracking of permits is the job of the Contractor in conjunction with their Architect so as much as there could be more attention to this by both Planning and Building President Walker said that at this point she would be likely to deny the appeal.
President Walker made a motion, seconded by Commissioner Romero to deny the appeal.
Commissioner Hirsch said that he did not think that the Commission had established that this permit had expired and said that the question of time duration, being 12 months or 24 months, had not been solved. President Walker stated that it was an application that was submitted by the Contractor himself. Commissioner Lee said that he thought that there were mistakes made on all sides and said that it sounded like the renewal permit should have had two years to expire, but the actual permit states 12 months. Commissioner Lee said that the Contractor should have questioned that time period when the permit was issued and not two years later. Commissioner Lee said that it would be unfortunate to send this back to Planning because it did not look like anybody was being malicious and trying to trick or deceive the Department. Commissioner Lee said that the permit actually stated that it would expire in 12 months and said he would probably support that.
Acting Director Lee said that when the application stated $300,500 that would kick in the two-year time period as the appellant stated earlier. Commissioner Grubb said that he was concerned because there were certainly plenty of errors made by everybody because the Department created some detrimental reliance with respect to the foundation permit by issuing the permit if the site permit had expired. Commissioner Grubb said that there were also issues where the owners of the property failed to do some due diligence with respect to their responsibilities.
Acting Director Wing Lau said that there was one copy of the application initialed by former Deputy Director Jim Hutchinson showing the valuation to be $300,500, but on another page the valuation is initialed by Inspector Ed Sweeney showing the valuation to be $300,000. Mr. Lau said that Inspector Carla Johnson relied on the $300,000 valuation in making her report, as this was the official document that was microfiched by the Department. Commissioner Hirsch asked which one was correct. Mr. Lau said that the application initialed by Mr. Ed Sweeney was the official microfilm copy kept by the Department. There was much discussion as to the difference between the valuation of $300,000 and $300,500. Mr. Carroll stated that it was his recollection that his Architect Shawn Gorman caught the error and came back into the Department to increase the valuation. Mr. Carroll said that to the best of his knowledge he did come in and paid the difference in fees for the $300,500 valuation. Commissioner Grubb said that it was not unusual for a Plan Checker or an Inspector to change the valuation in reviewing the application. Mr. Carroll said that there was confusion with payments because the Department initially issued the permit in error for $30,000.
President Walker called the question on the floor as there had been a motion and a second to deny the appeal.
The Commission voted as follows:
President Walker Aye Vice-President Lee Aye Commissioner Grubb Nay Commissioner Romero Aye Commissioner Hirsch Nay Commissioner Murphy Nay Commissioner Theriault Nay
The motion failed by a vote of four to three.
RESOLUTION NO. BIC 016-06
Secretary Aherne stated that the Commission should entertain a motion to grant the appeal.
Commissioner Grubb made a motion, seconded by Commissioner Theriault to grant the appeal.
The Commission voted as follows:
President Walker Nay Vice-President Lee Nay Commissioner Grubb Aye Commissioner Hirsch Aye Commissioner Murphy Aye Commissioner Romero Nay Commissioner Theriault Aye
The motion carried on a vote of four to three.
RESOLUTION NO. BIC 017-06
Deputy City Attorney Catharine Barnes said that she would prepare findings and bring them to the next meeting.
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5. |
APPEALS PURSUANT TO SECTION D3.750-4 OF THE CITY CHARTER
Appeal by Regan Carroll, Trustee, Trust of Regan Carroll – Represented by Mr. Thomas Lippe, Attorney for the appellant regarding 1179 – 1189 Tennessee Street and the Department of Building Inspection’s decision that DBI would not issue the Site Permit and Addendum (BPA No. 9902819) unless and until the appellant submits to Planning Department review of applications subject to Article 10, Appendix L of the Planning Code. a. Report discussion and possible action regarding the Building Inspection Commission’s jurisdiction pursuant to Section D3.750-4 of the City Charter over this appeal. b. Presentation by parties including witnesses. Acting Director Amy Lee said that she was not going to speak very long on this project and said that DBI was under the assumption that the permit was ready for issuance, but were subsequently asked to pull it back by the Planning Department. President Walker said that the permit had not yet issued. Ms. Lee said that the permit applicant had been notified that the permit was ready, but Planning pulled it back. President Walker called on Zoning Administrator Larry Badiner of the Planning Department. Ms. Lee said that she believed this was a Planning Department issue.
Mr. Badiner said that he thought the issues were the same as the last appeal, but said that the distinguishing characteristic of this appeal was that the building permit was never issued as it was called back by the Planning Department prior to issuance. Mr. Badiner said that he would be happy to answer any questions that the Commission might have.
President Walker called on Mr. Lippe, the appellant’s attorney. President Walker announced that she was granting a request by Mr. Lippe for an extension of time from seven minutes to ten for the initial presentation and from three minutes to five for rebuttal.
Mr. Lippe produced one more exhibit that was not in the original package submitted to the Commissioners and said that it was a collection of e-mails between staff about this project. Mr. Lippe stated that the issue in this case was different because in the previous case the issue was whether an issued permit was expired, but in this case there is no permit. Mr. Lippe said that this permit was approved by Dogpatch Historic District before the Dogpatch District took effect in 2003; this permit was approved by the Planning Department and the Building Department continued to process a permit application, excepting new plans, and approving those plans after the Historic District took effect. Mr. Lippe said that all of this was done without ever notifying the applicant that he had to do anything else, such as obtaining a Certificate of Appropriateness under the Historic District. Mr. Lippe said that the issue is who bears the burden and who pays the price in this situation.
Mr. Lippe said that the other issue is what kind of process should be followed once a decision has been made by the Planning Department that this permit should go through the Historic District type of review.
Mr. Lippe said that the City should be estopped from refusing to issue the permit. Mr. Lippe said that Mr. Carroll was told that his plans were ready to be issued once he paid the school facility fee. Mr. Lippe stated that Mr. Carroll paid this fee in the amount of $20,000 and when he came in to pick up his permit was told that it had gone back to Planning. Mr. Lippe stated that the plans had been routed to all departments for approval or disapproval and all of that had been done so the Central Permit Bureau was required to issue the permit. Mr. Lippe said that once the school fee was paid the permit was essentially issued, even though it was not technically issued; in real terms when you do not elevate form over substance, the permit was issued. Mr. Lippe stated that this is a situation where the City should be estopped from denying the issuance of this permit because of the detrimental reliance.
Mr. Lippe referred to staff e-mails and said that there seemed to be a painting with a very broad brush that somehow Mr. Carroll had been doing something he should not be doing so that his permit documents were not in order and that the lot referenced no longer existed. Mr. Lippe said that no attention was paid to the fact that Mr. Carroll had part of his package paid for in 1999. Mr. Lippe said that in this case the site permit and the addenda were processed together and said that because they were processed together that should not mean that the Planning Department could reopen an approval given in 1999 to a design building envelope and compatibility with the neighborhood. Mr. Lippe said that all of those issues were resolved in 1999. Mr. Lippe stated that if these issues were going to be reopened because of the passage of a new law in 2003, then they should have been reopened before additional processing and approvals were provided by Planning. Mr. Lippe said that in a subsequent e-mail Mr. Purvis stated that he thought that this project predated the Historic District. Mr. Lippe stated that he thought that Mr. Purvis got it right and the rest of the Planning Department got it wrong on that exact point.
Mr. Lippe said that the importance of the process is that the appellant wants the permit to issue. Mr. Lippe said that if someone from the neighborhood believes that this plan is incompatible with the neighborhood character then they are free at that point to file an appeal, as the appeal period has not run because the permit was not technically issued. Mr. Lippe said that the neighborhood would have the opportunity to appeal to the Board of Appeals on the grounds that the Historic District should apply. Mr. Lippe said that if the appeal is denied, even if nobody from the neighborhood would appeal, then Mr. Carroll has to go through the Planning Department review for the Historic District compatibility. Mr. Lippe stated that if the appeal is granted, then it is up to somebody from the neighborhood to appeal or not and if they do not Mr. Carroll can proceed with his project. Mr. Lippe called on Mr. Carroll to talk about his costs on this project.
Mr. Regan Carroll introduced himself as owner of the subject property and said that including the underpinning that happened in 2000 to date, over $98,000 had been spent. Mr. Carroll said that a good portion of that was spent after the subsequent approval of the redesign of the site permit, which occurred in 2002. Mr. Carroll stated that this was well before the effective date of the Historic District. Mr. Carroll said that he and his Architect went and met with the neighborhood group who were the parties that were the prime sponsors of the Historic Legislation and incorporated some of their requests into the design of the project. Mr. Carroll said that this design was then approved by the Planning Department. Mr. Carroll said that he made every effort to speak with the people who were materially involved with the creation of the special district and said that he thought that it was unfair for them to now have a change of heart when they knew the district was in play previously.
President Walker asked why the permits were not picked up between 1999 and today. Mr. Carroll said that he understood that the permits were routed in tandem and it takes some time to get through the plan check process. Mr. Carroll said that as Commissioner Murphy indicated in the first appeal a project sponsor thinks that the permit is about to be issued when it goes through mechanical and then other issues are raised. Mr. Carroll said that there were issues in mechanical along with fire and that is what it takes in the City to get plans approved. Mr. Carroll stated that the plans were approved and all of the discretionary reviews were complete when the Central Permit Bureau sent a notice to his Architect saying that the plans were ready for issuance subject to paying the school fee. Mr. Carroll said that upon paying the school fee on December 2nd, he became aware that the permits had been removed.
President Walker said that her feeling about this is that there were no permits issued and had they been issued they would have expired and the point of having an expiration date is that the permits are reviewed under the current rules that apply at the time permits were issued. President Walker said that once again she would tend to deny this appeal.
Commissioner Hirsch said that he was troubled that on the basis of a letter from the Dogpatch Neighborhood Association a representative from the Planning Department went after hours to the Permit Bureau and picked up the permits that were about to be issued and took them back to Planning. President Walker said that it had not been issued yet.
Mr. Badiner said that he thought it was a well-established fact of law that if the permit is still within the City, the City retains jurisdiction. Mr. Badiner said that in the past the Planning Commission has called back cases when they have already gone to the Building Department. Mr. Badiner said that Mr. Carroll’s other project caused Planning to look at the adjacent project and to also ask if there were any other projects like this. Mr. Badiner stated that this permit was still within the City’s jurisdiction so Planning could take it back. President Walker asked Deputy City Attorney Judy Boyajian to clarify that point for the Commission.
Ms. Boyajian said that on numerous occasions in public she had advised the Planning Commission that they could call back a permit from Central Permit Bureau if it had not been issued. Ms. Boyajian stated that once a permit is issued, it comes within the jurisdiction of the Board of Appeals. Ms. Boyajian said that issuing this permit now would violate the Planning Code. President Walker said that this case, in fact, would be technically out of the BIC’s jurisdiction. Ms. Boyajian said that the case was in front of the BIC and that would be a question for Ms. Barnes to answer.
Commissioner Hirsch asked about the allegation that this lot does not exist anymore. Mr. Badiner said that because of mergers and a lot of changes in the lot numbers it did not mean that the lot does not exist it just means that the lot number has changed.
Commissioner Murphy said that it appeared to him that someone in that neighborhood with a lot of power waited until the last minute to send the Planning Department scurrying around to get these plans back even though plenty of time had passed. Mr. Badiner said he did not know why and said that he could not comment on why the issue came up when it did. Mr. Badiner stated that a lot of people in the Planning Department know the preservationists in the City and know that the Dogpatch people are very active in the neighborhood.
Commissioner Grubb said that he had a question for Ms. Barnes and said that as he understood it from the discussion, if the BIC decided to go ahead and approve the issuance of this permit, if there were any aggrieved party that would like to have this reviewed by Planning, they would be able to file an appeal with the Board of Permit Appeals. Commissioner Grubb said that if the Board of Permit Appeals upheld that, the BPA could send it back to Planning for review. Ms. Barnes asked if Commissioner Grubb was saying that if the BIC determined that, in fact, this permit had already been issued, then that would be as of the date of the BIC’s decision and neighbors would have time to take it to the Board of Appeals who would have to apply the zoning in effect at the time it comes before that Board. Ms. Barnes said that the BIC could not issue a permit that was contrary to zoning so the Commission would have to find a theory whereby this permit was issued before the Dogpatch Historic District zoning came into being. Ms. Barnes stated that any permit, which is issued after that date, needs to be in conformance with the zoning at that date. Ms. Barnes said that the Commission could decide that they think it is, but it is not really within the BIC’s jurisdiction. Commissioner Hirsch said that the permit has been approved, but not issued. Ms. Barnes said that the Commission would have to determine that it has been issued or that there is something so fundamentally flawed that it should have been issued, but that kind of decision would be very novel. President Walker said that this would be precedent setting. Ms. Barnes stated that this permit would still have to go before the Board of Appeals who would have to apply the current zoning for this project.
Acting Director Lee asked when Planning finished review of this project. Mr. Badiner said that he understood from Mr. Purvis that Planning did review this permit after the Dogpatch Historic District came into being, passed it along and then realized it had not gone through the Dogpatch review before it was issued. Mr. Badiner stated that Planning might find that this project meets all of the requirements and standards of the Dogpatch Historic District, but said that the process was important. Commissioner Hirsch said that Mr. Badiner had stated that Planning had reviewed this project. Mr. Badiner said that Planning did not review it with conformance with the Dogpatch Historic District and said that there was no question, but that it was an error on the Planning Department’s part. Mr. Badiner said that the fact is that this permit has not been issued. Commissioner Theriault said that he realized that the permit had not been issued, but asked about the importance of the instructions given to the project sponsor by the Central Permit Bureau to pay the school fee and then to pick up his permit. Commissioner Theriault stated that Mr. Carroll fulfilled the sole condition given by the Central Permit Bureau, but then the permit was reversed.
President Walker asked Deputy City Attorney Barnes if there was a requirement to have the permit issued before construction begins or could work begin with the permit approved within the Department. Acting Director Lee said that construction could not begin unless the permit had been issued. Mr. Lippe said that he would agree with that, but said that his point was that the word issue had to be looked at in context, but said he would save his argument for rebuttal.
Mr. Badiner stated that the school fee could be returned or held in abeyance.
Commissioner Grubb asked if there was an issue of detrimental reliance with respect to the handling of the permit by Building Inspection. Ms. Barnes said that there would be no detrimental reliance for not issuing the permit. Ms. Barnes said that estoppel balances the injustice between an individual and the public good and this would, in all likelihood, be contrary to the Dogpatch Historic District zoning restrictions and therefore there would not be any detrimental reliance on any permit. Ms. Barnes said that the difference between standard estoppel and government estoppel is that it is always difficult to get estoppel from the government because of the public interest that is involved with zoning laws. Ms. Barnes referred to cases where forcing a change of zoning upon an individual occurred even if they did a lot of Planning and had costs associated with their expectation of getting a permit were not allowed because they were insufficient to overcome the public interest in zoning.
Acting Director Lee said that usually the fifteen-day appeal period of the Board of Permit Appeals does not kick in until the permit has been picked up.
President Walker called on Mr. Lippi for rebuttal. Mr. Lippi said that he thought that Ms. Barnes was correct, but said that this theory should be based on issuance of the permit or recognizing that it was issued in an effective way rather than a technical way. Mr. Lippi stated that there were two theories, one that is estoppel. Mr. Lippi said that Ms. Barnes was referring to cases about where someone relies on a permit that was issued, but issued in an illegal way. Mr. Lippi said that he was talking about estoppel because of the continued processing of the application, approvals by Planning some two to three years after the Historic District took effect and then pulled the imminent approval. Mr. Lippi said that the importance of this is that it is not necessarily going to be a waste of time to let somebody have an opportunity to appeal this to the BPA, because it is quite likely that no one will appeal it and this might be the end of it. Mr. Lippi stated that if it did go to the BPA he could argue that issue then. Mr. Lippi said that what he was now arguing under this Commission’s jurisdiction is that the procedure that his client followed was legal and fair. Mr. Lippi stated that Mr. Carroll detrimentally relied on that and said that this procedure should be taken to its conclusion and then see what happens as it is not necessarily true that it would be a waste of time.
Mr. Lippi said that the other issue that he alluded to previously is that as a practical matter the permit did issue. Mr. Lippi said that this sounded a little weird because the permit was not handed across the desk, but for the purposes of triggering the issue to the Board of Appeals, the public has a right to be considered when looking at an estoppel argument. Mr. Lippi said that the public interest would be protected because the public would have the opportunity to appeal the issuance if this appeal is granted.
Mr. Lippi stated that Mr. Badiner said that if the permit is still within the City, the City retains jurisdiction and Mr. Lippi said that as a general principle that is true, but the issue is not whether the City retains jurisdiction, but whether the Department of Building Inspection retains jurisdiction to withhold the issuance of that permit upon the payment of the school fee. Mr. Lippi said that the issue was not jurisdiction; the issue is what procedure is required to implement that jurisdiction. Mr. Lippi said that the jurisdiction was still with the BPA if this permit was issued to deal with Article 10. Mr. Lippi stated that there should be a procedure that is fair to get to that point of proper implementation.
Commissioner Hirsch asked about the Commission’s jurisdiction over this and asked if the Commission voted that this permit be issued would the BIC be acting illegally. Ms. Barnes said that the appellant’s theory is that the permit did issue, so it is up to the BIC to decide that it either issued or it did not, but the Commission cannot direct it to be issued. Commissioner Hirsch said that he was troubled about the catch 22 bureaucracy that was going on because the Planning Department reviewed this application after the Dogpatch Ordinance was passed and said that it did get reviewed under the requirements of that Ordinance. President Walker said that it did not get reviewed under the Dogpatch Ordinance and said that this was a mistake. Commissioner Theriault said that he was also troubled by this situation. Commissioner Hirsch said that this was unfortunate, but said that legally it seemed that the BIC had no recourse but to say that the permit was not issued. Commissioner Hirsch stated that he thought that Planning was at fault here.
Commissioner Grubb made a motion, seconded by Commissioner Romero that the appeal be denied.
Commissioner Lee said that he was disappointed that Planning was sloppy in this case and said that it should not have come before the BIC for review. Commissioner Lee said that Planning should have headed this off before the permit even got to Central Permit Bureau as the Planning Department had over two years to review this application after the Dogpatch Historical District was passed in 2003.
Commissioner Theriault said that had he been given some lengthy recitation of case law showing that complete fulfillment of the condition for issuance of the permit was tantamount to issuance of a permit, he would be more comfortable with supporting the appeal, but given the circumstances he would reluctantly vote to deny the appeal.
Mr. Badiner said that he thought Commissioner Lee was right and said that he apologized for that. Mr. Badiner stated that the one thing that he thought confused this issue was the idea that this was an addendum or a renewal and said that if a new permit had been filed, there would be no question in his mind that Planning would have applied the law correctly. Mr. Badiner said that Planning does need to do a better job and said that Planning was working with DBI to understand what should be done with renewals.
President Walker said that she hoped that this would be something that could be worked on as Planning and the Department of Building Inspection continue to work together.
Commissioner Hirsch said that he was hopeful that the review by Planning would not result in a complete trashing of this project.
President Walker called for public comment.
Mr. Henry Karnilowitz stated that he was not associated with the project in any way, but said that he was truly troubled by this situation Mr. Karnilowitz said that paying school fees is not such an easy thing and the project sponsor cannot pay by check; the fees have to be paid in cash or by cashier’s check. Mr. Karnilowitz said that for someone to call at the last minute and pull this permit is wrong and is an injustice to the people of San Francisco.
President Walker called for a vote on the motion.
The Commissioners voted as follows:
President Walker Aye Vice-President Lee Aye Commissioner Grubb Aye Commissioner Hirsch Aye Commissioner Murphy Aye Commissioner Romero Aye Commissioner Theriault Aye
The motion to deny the appeal was voted on unanimously.
RESOLUTION NO. BIC 018-06
The Commission took a break at 11:20 a.m. The Commission reconvened at 11:35 a.m.
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6. |
Review and approval of the minutes of the September 19, 2005 meeting.
Item was continued.
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7. |
Review and approval of the minutes of the October 3, 2005 meeting. Commissioner Hirsch made a correction to pages 11 and 12 changing two words from imminent to eminent. President Walker said that she wanted to call attention to a statement made by Mr. Joe O’Donoghue where Mr. O’Donoghue said that she was a known perjurer. President Walker said she was not correcting the minutes, as they were correct, but wanted to say that she was not a perjurer.
Vice-President Lee made a motion, seconded by President Walker, that the minutes be approved as corrected. The motion carried unanimously. RESOLUTION NO. BIC 019-06
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8. |
Review Commissioner’s Questions and Matters.
President Walker said that there was an outstanding seismic issue that Commissioner Hirsch wanted a report on. Acting Director Lee said that this item was scheduled for the first meeting in April.
Commissioner Hirsch said that he wanted to set the record straight on an item that he voted on about a month ago. Commissioner Hirsch said that this issue was the Department of Human Resources requirements for a Director. Commissioner Hirsch stated that he voted aye and said that he should have voted nay as he did not agree with Director Ginsberg’s revised qualifications for the position of Director of Building Inspection. Commission Hirsch said that he realized there was no way to change his vote, but wanted to set the record straight on his personal feelings about this issue.
President Walker said that the item for the hiring of a Director for the Department would be on the next meeting; an update on the Director’s search and the status.
Commissioner Grubb said that tin light of the appeals that were heard before the Commission today, he would like to see the Department work on a more streamlined way to apply for permits. President Walker said that this was an issue that should be discussed with the Planning Commission in a joint meeting and said she had been speaking with President Sue Lee about issues to be discussed at a joint meeting.
Commissioner Grubb and Commissioner Theriault stated that they would be out of town for the April 3, 2006 meeting. Commissioner Murphy said that he would not be present on April 17, 2006.
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9. |
Public Comment: The BIC will take public comment on matters within the Commission’s jurisdiction that are not part of this agenda.
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10. |
Adjournment.
The motion carried unanimously.
RESOLUTION NO. BIC 020-06
The meeting was adjourned at 11:45 a.m. |
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Respectfully Submitted, ______________________ Ann Marie Aherne |
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SUMMARY OF REQUESTS BY COMMISSIONERS |
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Item #6 Review and approval of the minutes of the September 19, 2005 meeting was continued. – Commissioner Walker |
Page 19 |
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Seismic issue requested by Commissioner Hirsch to be scheduled for first meeting in April. |
Page 20 |
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Update on the hiring of a Director for the Department of Building Inspection. – President Walker |
Page 20 |
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Future agenda item to work on a more streamlined way to apply for permits. – Commissioner Grubb |
Page 20
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Future joint meeting with Planning Commission. – President Walker |
Page 20 |