Board of Appeals denies Greenwich Street owners’ challenge to 2015 zoning memo, rules zoning action memo did not create a merger entitlement

The San Francisco Board of Appeals on June 21 denied an appeal by the owners of 1281–1283 Greenwich Street who argued a 2015 zoning‑administrator action memo legally authorized a merger of two dwelling units into a single‑family home.

Alex Merritt, attorney with Shepherd Mullen representing the appellants, told the board his clients purchased the property in January 2020 for $18,000,000 and relied on a 2015 action memo and marketing materials that described the house as a single‑family home. "That approval was not appealed. It does not expire, and it's now vested under common law principles," Merritt said, arguing the planning‑code change that later removed an administrative merger pathway is not retroactive.

Corey Teague, zoning administrator for the Planning Department, said he disagreed with that reading. "I, respectfully disagree with the appellant," Teague said, arguing the action memo only documented that the project qualified for a waiver from the mandatory discretionary review process and did not, by itself, create a standalone entitlement to change the number of units. Teague told the board the permit record, certificate of final completion and assessor and plan records consistently reflected two units and that the ZA memo was primarily an internal record to document whether the administrative path to review applied.

The debate turned on a technical distinction raised repeatedly during the hearing: whether the ZA action memo constituted an "administrative approval" that vested a property right absent issuance and completion of a building permit, or whether the memo was a procedural waiver within the permit review process and the building‑permit/CFC record controls unit count. Commissioners probed the record for evidence of when a separating wall was removed, the contents of building‑permit plans, and whether the property’s addressing and tax/assessor records put subsequent owners on notice.

Merritt argued the memo's plain language and the planning code's retroactivity provision supported treating the 2015 action as an administrative approval. Teague and the city attorney countered that the memo functioned as part of building‑permit review; appeals and finality for permit‑related determinations run through the building‑permit process and the city’s usual implementation mechanisms. Teague also acknowledged the memo’s wording could be clarified in future practice.

After extended questioning and deliberation, the board concluded the record contained multiple pieces of countervailing evidence—permits, a certificate of final completion, plan sets, addressing, and assessor summaries—indicating the property remained recorded as two units, and that the ZA had not abused discretion in issuing the notice of violation. Vice President Jose Lopez, Commissioner John Trezvina, Commissioner Alex Lemberg, Commissioner JR Epler and President Rick Swig all voted to deny the appeal. The motion to deny carried 5–0.

The board’s decision leaves the notice of violation and penalty in place. Commissioners expressed sympathy for the property owners’ situation and suggested civil remedies or superior‑court review remain possible paths for the appellants to pursue legal questions about vested rights and retroactivity. The board also instructed staff and the Planning Department to clarify the language used in future action memos so property owners and applicants are less likely to be confused about the memo’s purpose.

Other meeting actions: commissioners adopted the minutes from the June 7, 2023 meeting (vote 5–0) and voted to continue appeal 20‑036 (Bruno Avenue) to July 26 (vote 5–0). The matter of 1281–1283 Greenwich Street was submitted and the hearing concluded.