Board of Appeals - Regular Meeting

okay good evening and welcome to the june 30th 2026 meeting of the san francisco board of appeals president john trasvina will be the presiding officer tonight and he is joined by vice president rebecca soroyan and commissioner jose lopez commissioner robin abbott and commissioner lily wong are absent tonight Also present is Deputy City Attorney Jesse Minardi, who will provide the board with any needed legal advice. At the controls is the board's legal assistant, Alec Longway, and I'm Julie Lamar, the board's executive director. We will also be joined by Corey Teague, the zoning administrator representing the planning department. He is sitting up front. The board meeting guidelines are as follows. The board requests that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings. No eating or drinking in the hearing room. The rules of presentation are as follows. For rehearing requests, the parties are given three minutes each with no rebuttal. Members of the public who are not affiliated with the parties have up to three minutes each to address the board and no rebuttal. Mr. Longway, our legal assistant, will give you verbal warning 30 seconds before your time is up. Four votes are required to grant a rehearing request. If you have questions about requesting a rehearing, the board rules, or hearing schedules, please email board staff at boardofappeals at sfgov.org. Public access and participation are of paramount importance to the board. SFGov TV is broadcasting and streaming this hearing live, and we will have the ability to receive public comment for each item on today's agenda. SFGov TV is also providing closed captioning for this meeting. To watch the hearing on TV, go to SFGov TV, cable channel 78. Please note that it will be rebroadcast on Fridays at 4 p.m. on channel 26. A link to the live stream is found on the homepage of our website at sfgov.org forward slash BOA. Now, public comment can be provided in three ways. One, in person, two, via Zoom, or three, by telephone. To attend via Zoom, go to our website, and under the calendar, click on the link next to today's date, and then click on the Zoom link for hearing in the blue rectangular box. If you want to appear by telephone, call 1-669-900-9128 and enter webinar ID 945-4745-9785. And again, SFGov TV is broadcasting and streaming the phone number and access instructions across the bottom of the screen if you're watching the live stream or broadcast. To block your phone number when calling in, first dial star six seven, then the phone number. Listen for the public comment portion for your item to be called and dial star nine, which is the equivalent of raising your hand so that we know you want to speak. You will be brought into the hearing when it is your turn. You may have to dial star six to unmute yourself. You will have three minutes. Our legal assistant will provide you with a verbal warning 30 seconds before your time is up. Please note that there is a delay between the live proceedings and what is broadcast and live streamed on TV and the internet. Therefore, it is very important that people calling in reduce or turn off the volume on their TVs or computers. Otherwise, there is interference with the meeting. If any of the participants or attendees on Zoom need a disability accommodation or technical assistance, you can make a request in the chat function to Alec Longway, the board's legal assistant, or send an email to boardofappeals at sfgov.org. Now, the chat function cannot be used to provide public comment or opinions. Please note that we will take public comment first from those members of the public who are physically present in the hearing room. Now, we will swear in or affirm all those who intend to testify. Please note that any member of the public may speak without taking an oath pursuant to their rights under the Sunshine Ordinance. If you intend to testify at any of tonight's proceedings and wish to have the board give your testimony evidentiary weight, raise your right hand and say, I do, after you've been sworn in or affirmed. Do you swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth?

I do.

OK, thank you. If you are a participant and you're not speaking, please put your Zoom speaker on mute. So commissioners, we have one housekeeping item. The parties for item 5, the jurisdiction request number 26-2 at 1595 21st Avenue, have requested that the board continue this matter to July 15th. We would need a motion and a vote. And I also need to call public comment.

I'd like to make a motion to grant the continuance and move the agenda item to July 15.

Thank you. Is there any public comment on this item? I don't see any. So on that motion, Commissioner Lopez?

Aye.

President Trezvena?

Aye.

OK, that motion carries 3 to 0. And that item is moved to July 15. We are now moving on to item number one, general public comment. This is an opportunity for anyone who would like to speak on a matter within the board's jurisdiction, but that is not on tonight's calendar. Is there any member of the public who wishes to speak on an item that is not on tonight's agenda? I don't see anyone, so we're going to move on to item number two, Commissioner comments and questions.

Thank you, Ms. Lamar. I just want to welcome the participants on the items who are here and online, and we'll look forward to hearing your presentations, and we're ready to hear them very shortly. Thank you.

Thank you. Vice President Troyan, did you have something to add? Okay, is there any public comment on this item? I don't see any, so we're going to move on to item number three, the adoption of the minutes. Commissioners, before you for discussion of possible adoption are the minutes of the May 27, 2026 meeting. Note, prior to the meeting, President Trasvina reached out and suggested revisions to the language found under items 4A, B, and C at 248 Valley Street. Alec is showing those changes on the screen now.

Computer, please.

Computer, please, SFGov TV.

Thank you.

If you could move it up. Thank you. So President Trasvina is proposing these changes. So I do need a motion, and then I will call public comment.

I'll move to adopt the minutes as amended. And I'll just note that these are changes that are grammatical in nature only.

OK. Thank you. Is there any public comment on this item? I don't see any. So on that motion to adopt as amended, Commissioner Lopez?

Aye.

Vice President Soroyan? Aye. OK. That motion carries 3 to 0, and the minutes are adopted as amended. We are now moving on to item number four. This is the rehearing request for appeal number 26-021, subject property at 2840 Lake Street. Daryl and Celeste Wu, Taylor and Julia Moore, Mark and Allison Chaput, Susan Kronholm, Catherine Skangos, and Jeff Willis, the appellants, are requesting a rehearing of appeal number 26-021, Wu et al. versus the zoning administrator, decided May 27th. 2026 at that time upon a motion by commissioner lopez the board voted five to zero to deny the appeal and uphold the variance decision on the basis that it meets the five findings required by planning code section 305c the determination holders are richard and fiona The proposal is to construct a vertical and horizontal addition in the existing single-family building, demolish and replace the rear deck in kind, and add a new roof deck at the northwest corner of the third story. The proposed building expansion will extend six feet and four inches into the required rear yard. The zoning administrator granted or rear yard variance with conditions. This is case number 2015-013369. And so we will hear from the appellants first. And I see Mr. Wu is joining us via Zoom. Welcome, Mr. Wu. You have three minutes to address the board.

Thank you, Ms. Lamar. I will use my time briefly to respond to the opposition papers on behalf of all appellants, some of whom are out of the country or have unavoidable scheduling conflicts. The Queens respond to our due process arguments with a citation to Matthews v. Eldridge, but that case does not rebut any of the authorities cited by appellants showing that ex parte communications with the decision maker are improper. Matthews simply held the due process does not always require a hearing, in that case to determine whether Social Security benefits can be denied on the basis of an asserted disability. Matthews does not address our situation where one party influenced the decision maker in a one-sided ex parte communication without notice and fair opportunity for appellants to be heard. Matthews certainly does not address a lawyer's violation of his duty to refrain from ex parte contact with a decision maker. In fact, nowhere in the Cui's brief do they address the rules of professional conduct or deny that they violated them. The Cui's attempt to justify their lawyer's one-sided communications by pointing to appellant Julia Moore's status inquiries, but one, she is not a lawyer and not subject to the rules of professional conduct, and more importantly, two, her communications were immaterial status inquiries. They don't at all equate with the substantive communications had by the QIES counsel upon which the variance decision turned. The QIES further attempt to justify their conduct by arguing that the zoning administrator pushed back against the QIES, but that is not the point of due process, which at a minimum requires notice and opportunity to be heard when there are two sides to a hearing. The QIES and the zoning administrator claim that there was such notice and opportunity, but in making that argument in the QIES brief at page 5, they distort the record and mislead by omission. They say that the QIES had sent the revised plans to appellants, but failed to say when they sent them. Well, the record shows that the QIES provided parts of the revised plans and that they did not do so until March 30th, only about a week before the April 6th written decision issued. As the record shows, the zoning administrator had long before then made up his mind to grant the variance informing the QIES but not appellants on March 3rd that he was going to grant the variance. They also argue that due process was satisfied because Mr. Teague announced at the December hearing he would be in further contact with the Quees. But saying he will do that at some unspecified date in the future is not the same thing as telling appellants specifically when that will occur so that appellants could have fair opportunity to express different views before Mr. Teague would make his decision. The Crees argue that it is commonplace to have one-sided communications, but systematic violations are no excuse to violate due process or the rules of professional conduct. If this Board is uncertain about those rules, it should seriously consider referring the issue to the California State Bar for opinion. As noted in our brief, the law is clear that due process always requires a level playing field. The ex parte communications here deprive appellants of that level field, and depriving parties of due process is always manifestly unjust. Thank you.

Thank you. Vice President Soroyan?

Yes. Actually, maybe I didn't hit the request to speak. Before we started, and I'm fine doing it during the interim, I wanted to request that our city attorney, Mr. Minardi, remind the board what our standard of review is for a rehearing request, as well as what was required for review of a variance. If you wouldn't mind, please.

Would you like me to do that now or after the?

I would like you to do it now, please.

Now, okay, sure. So thank you, Commissioner. So this is a rehearing request, and so that's governed by Section 9 of Article 5. the board rules which says I'll just read it except in extraordinary cases and to prevent manifest injustice the board may grant a rehearing request only upon a showing that new or different material facts or circumstances have arisen where such facts or circumstances if known at the time could have affected any the outcome of the original hearing. That's subsection B. Subsection C says that failure to exercise due diligence to produce the new facts or circumstances at the previous hearing shall be deemed grounds for denial of the request. So that's with respect to the matter before the board right now.

And then you can remind us what is our standard of review for a variance. Please.

So when there's an appeal of a variance, that's under the charter reviewed de novo by the board.

Thank you. Thank you. I do see a question from President Tresvino, I believe.

Yes, I have a question for Mr. Wu. I don't know if I can see you while I ask you the question, but if I can't, that's fine.

Can we highlight the... Well, once he speaks, then I'll highlight it for you. Okay, thank you.

My question is, What I want to do is give you an opportunity to really express your reasons for the request. At the very end of your presentation, you stated that denial of due process is always manifest injustice. So I want to take you back to the rule, our rules, Section 9, the one that Deputy City Attorney Minority just read. And for a hearing request, you really have three, as the requester, you have three lanes to go down to achieve what you want to achieve. One is, is this an extraordinary case? Second is, is the request to prevent manifest injustice? And then the third is, your ability to show new or different material facts. So what I wanted to clarify from you is to, are you seeking the re-hearing on one of these grounds, two of these grounds, or all three?

I would say all three.

OK. And what makes this an extraordinary case?

Because of the denial of due process. It's extraordinary to me that one side can talk to the zoning administrator and not tell the appellants about that discussion.

All right. And the manifest injustice you've stated is the denial of due process. Due process. Right. You stated that due process always manifests in justice. That's correct. Do you have any particular citation for that, or is that just a canon that we should follow?

But that's an argument that we're making. And I think it's apparent from the authorities cited in our written brief.

And then third is, are the issue of new or different material facts? Are there any new or material facts?

So I think that one's probably our weakest ground. I'll admit that. But the issue is this. We diligently requested copies of the materials the file materials in this matter right after the April 6th written decision issued. We made that request, I think, on April 8th, only two days after we received the decision and it was issued. received the voluminous records until about a week before our brief was due. There wasn't sufficient time to get through all of it, as Ms. Soroyan, I think, even mentioned when she asked me at the May 27 hearing, you know, to cite to particular pinpoint sites to various materials. because they were just so long and voluminous to get through, and we tried our best to do that. And then the other part about this, I think there was extreme gamesmanship on behalf of Council for the Quees. They, again, never gave us opportunity. They know what the professional rules require. They never told us that they were having communications ex parte with Mr. Teague. And then they claim in their papers that, you know, we received the revised plans. Well, we didn't receive them until about a week before the actual hearing.

Mr. Wu, I understand your perspective on this, and I want to clarify that when you speak of the problems that occurred and you talk about the hearing, these are all about the April 6th hearing, correct, rather than the May hearing before us?

That's correct. So I mean, the overall conduct on the other side is to give us things at the very last minute so that we don't have an adequate opportunity. And so all I'm saying is that there was inadequate opportunity to present new facts. Because we didn't know about things, we weren't able to go get another opinion of experts. We weren't able to submit more of those types of materials to the record.

And again, if I could, you state you didn't have sufficient information. You had it a week before the hearing. That's the April hearing and not the May hearing, correct? Well, both, I think, really, because... Well, if you had something a week before April 6th, that's much more than a week before May 27th.

Well, right. So the QEES submitted, sent us copies, portions of their revised plans about a week before the April 6th hearing.

Right. Okay. Thank you.

And then... We didn't know about any of the ex parte communications until about a week before the May 27 hearing. So we really weren't able to fully explore everything and figure out all the violations of the rules at the time. And as I recall, there were questions by the board of the city attorney as to what the standard of review were and so forth that just came up only at the hearing.

Thank you, Mr. Wu. You've answered my questions fully.

Thank you. Thank you. We will now hear from the determination holder. Welcome. You have three minutes.

TOM TUNNY, Thank you. President Chesvena, members of the board, I'm Tom Tunny, counsel for the QIES determination holders. I am not going to talk a lot more about this than what was in our papers. I want to focus on the rule for granting the request for rehearing. The rule was quoted. I think it's notable that the appellant's papers don't even cite the rule. I understand the three paths and the analysis suggested there. I would say that this new and different facts or circumstances standard is crucial. And if you're not going to show new or different facts, you have to show why this case is extraordinary, or there's a manifest injustice that justifies not showing or having any new or different facts. And I don't think the appellants meet that standard. We submit there is no due process violation for the reasons we submitted in our papers, a number of reasons, including the fact that the appellants communicated with the zoning administrator. And they were not just fact gathering. The appellant complimented the zoning administrator, which is an implicit means of influencing the zoning administrator about the hearing. I think we'd be naive to think it was intended for anything less than that. And an important distinction. The appellants reached out to the city on their own to communicate about the hearing, whereas the permit holders, we only responded to communications from the city. We did not initiate those communications. The communications as they are were not a due process violation. And then lastly, I'll just say that we submit that the board applied the correct and appropriate standard of review in making its decision. It was just cited for purposes of this request that it was based on the variance findings having been met. So with that, I'll conclude. And we appreciate your consideration. Thank you.

OK. Thank you. We will now hear from the planning department.

OK, good evening, President Trasvinia, Commissioners, Corey Teague, Zoning Administrator for the Planning Department. First, I just want to acknowledge that, again, the issue of potential impacts this variance could create on neighbors. We understand that projects are going to have some level of impact. I live in a unit where the property to the south of me is slightly uphill and has a taller building. And after a certain time of day, the back of my property and my unit is completely shaded. I understand that. But when it comes to a rehearing request, we're talking about a very specific standard of review. And as I made clear in my brief, we don't feel like that has been met in this case. The two main issues, well, first of all, as was just mentioned, there's not any new information or new facts that were presented in this case. The previous hearing was a very thorough hearing. There was a lot of information provided. Every commissioner asked questions of all the parties. It was a very thorough hearing. hearing with lots of deliberation. So there's no new information. The primary thrust of the hearing request is this due process claim. As I made it clear in our brief, we don't feel like there was an issue with ex parte communication for multiple reasons. We don't feel like there was any lack of due process given to the appellants. Even if there was, that is what the appeal was for. The appeal was that additional process that allowed all of the information and materials to be provided to this board so that you could have all the facts all the information, all the context, and determine de novo. It was a whole new process to make sure that the decision was made correctly. And that happened. So I think that's relevant because essentially the appellant is asking for just a complete redo without any new facts. It's like double due process. And that's not what the bar is for a rehearing request. Just a couple points I do want to be clear about again. We've been clear that it's the city's position that the state statutes that are referenced regarding the ex parte communications don't apply in this scenario. Also, for a variance hearing, there is no one in particular neighbor that was an official party to that variance. There is the applicant, and then there was the zoning administrator making the decision. The neighbors are... asked and able to provide input, similar to in an appeal case. Other than the appellants, neighbors and members of the public can provide input to the board, but they are not parties to the appeal. I'm happy to answer any other questions you may have, but again, request that the rehearing request be denied. Thank you.

Thank you.

Thank you. I don't see any questions. So is there any public comment on this item? I don't see any public comment. So commissioners, this matter is submitted.

Thank you, everyone, for your presentations to us. And we are back here again. I am sympathetic to the appellant. I believe the appellant had some significant concerns in the view, the perspective of the appellants as a group and individually. represented by Mr. Wu, to express concerns, to express statements about defects in the process, particularly the ex parte communications, which apparently are routine, or at least not abnormal, post variance hearings. However, we've got three grounds before us, or we need to find one of them in order to grant a rehearing. And I believe that the concerns that have been raised tonight and in the papers by the appellants They had the opportunity to address them. And perhaps they applied to the original hearing. Perhaps they applied to the decision in terms of the ex parte proceedings. But that's the reason why we had our hearing on May 27, to air those concerns, to air those differences, and our colleagues have we as a board address them. And we looked at the five findings. We heard the concerns on due process. And we made our decision. There was really nothing new here, which is why I asked the appellant. Are these concerns related to April 6th, or are they related to May 27th? It appears they primarily, if not totally, apply to April 6th. They would have been good arguments, and they were good arguments when they were made. They weren't accepted by the board, but they were valid arguments to be made on May 27th. To the extent that Mr. Wu says tonight that some of the material came in too close to the May 27th hearing for him to fully address them or to get an expert. That would have been potentially grounds for a continuance of the May 27th hearing. But as a request for a rehearing, I don't find it sufficient. Finally, I want to point out, and it did concern me when I read it and it concerns me when I heard it tonight, equating one of the appellant's emails or outreach to the zoning administrator expressing appreciation for a good job or being responsive or Equating that to the very substantive, very deliberative interactions, ex parte as they were, between the permit holder and zoning administrator after the hearing, I just don't find the two comparable. Nonetheless, given that we have to find one of three grounds for a rehearing, I do not find them here in this proceeding, and I would not grant the request for the rehearing. I see Vice President Soroyan would like to be recognized.

Good evening. Thank you, everyone. I'm going to keep my comments brief. I concur with President Trasvinia. Unfortunately, I know that the appellants are all very invested in their neighborhood, and I think it's a difficult situation. But based on our rules in front of us, I see that the appellants have not met any of the three standards for granting a rehearing request. I'd be inclined to make a motion to deny the request for a rehearing.

OK, so in the reason for your motion, that there's neither new evidence or manifest injustice?

None of the three grounds under board rule. Would you remind me, is it 9?

Yes.

Right.

9.

Yes, the appellants have failed to meet the standard for a rehearing request.

OK. Did you want to speak, Commissioner Lopez, or are we ready to vote on that?

No, I think we're ready to vote.

Okay, so on that motion, Commissioner Lopez? Aye. President Trasvinia? Aye. So that motion carries 3-0, and the rehearing request is denied.

There being no further business before us, we are adjourned.

Thank you.

Thank you.