Commission approves legalization of rooftop deck at 426 Fillmore after neighbor safety dispute

The San Francisco Planning Commission voted unanimously May 2 to not take discretionary review and to approve a permit to legalize an existing rooftop deck at 426 Fillmore Street, after hearing competing testimony from the unit below and from the deck’s co‑owners and the homeowners association.

Loren Simon, the DR requester and owner of Unit B, told the commission she provided inspection reports and photos showing roof leaks and said two independent inspectors concluded the roof membrane is failing and that the deck structure may not have been intended for regular use. "The roof membrane is failing," Simon said, and she requested the commission stay approval until the roof can be repaired and a water test completed.

Co‑owners Ty Brabeck and Nancy Goldson said the deck has existed for decades and appears on original sales materials; Brabeck told the commission the deck is an exclusive‑use deck allocated to Unit C by recorded plats and subdivision material. Deborah Rosenthal, president of the homeowners association, said the Department of Building Inspection issued a notice of violation and that HOA supports renovation to cure the violation and preserve property value.

Staff architect David Winslow recommended legalization, noting the deck has existed in a similar configuration since 2004 and that staff found no extraordinary circumstances that would justify denying the permit. Commissioners observed the dispute has active civil litigation and that structural and insurance determinations may lie outside the commission’s land‑use authority. Vice President Moore moved to not take discretionary review and approve; the motion passed 6–0.

The commission’s approval allows the sponsor to proceed with planning and building permits; staff said they will follow up with the parties and with the assigned planner on outstanding time‑billing and inspection questions. The record shows safety and insurance disputes remain contested and may be resolved in civil court or through building‑department enforcement procedures.