San Francisco Board of Appeals denies neighborhood appeals of 1335 Bay St. ADU, citing state ADU law

The San Francisco Board of Appeals on Sept. 7 denied two neighborhood appeals and upheld a Department of Building Inspection permit to demolish a small rear structure at 1335 Bay St. and construct a two-story, 443-square-foot detached accessory dwelling unit (ADU).

The decision, reached by a 4-0 vote, came after residents and appellants urged the board to protect a longstanding mid-block open space and to treat the existing 123-square-foot rear structure as an "unauthorized dwelling unit." "Please grant the appeal and save this naturally affordable housing," appellant attorney Steve Williams told the board during oral argument. Williams said neighbors and declarations indicate the cottage was used for sleeping and should have been evaluated for rehabilitation rather than demolition.

Planning Department Deputy Zoning Administrator Tina Tam told the board the proposed ADU meets the State ADU Program's ministerial criteria for size, height and setbacks. "Because the new ADU meets the criteria of the state ADU program, no neighborhood notification, no variance, no discretionary review, and no conditional use is required," Tam said. Department of Building Inspection (DBI) staff and the permit-holder's attorney also said city records do not show the rear structure was a legal rental unit in recent decades.

Neighbors described the block's mid-block gardens and expressed surprise they received no notice of the permit. "The garden space is one of the most beautiful garden spaces, and I...hope you guys consider the long term view on this and not just the short-term benefits of my neighbor," renter Seth Miller said in public comment. Several residents warned that a 16-foot-tall two-story structure could reduce light, privacy and open space and set a precedent for similar backyard development.

Board members voiced sympathy for neighbors but repeatedly noted that recent state legislation limits the board's discretion for ADU permits. Vice President Jose Lopez, who moved to deny the appeals, said commissioners should still urge better neighbor-to-neighbor outreach even when state rules do not require it: "Just because at the current moment the state law doesn't require that communication...I think that's the right thing to do," he said. After discussion, Lopez moved to deny both appeals and uphold the permit; the motion passed unanimously.

DBI staff detailed the permit timeline: the ADU application was filed Feb. 7, 2022, routed to DBI plan check Feb. 25 and approved June 1; the permit was issued July 22. Planning staff said the proposed ADU would be set back four feet from property lines, sit about 30 feet from the nearest appellant property, and be exempt from CEQA under the ministerial ADU provisions.

The board's action means the permit stands. Commissioners and staff noted there is no right to rehearing for this case and that the decisions would be sent to parties the next day. Multiple commissioners said the hearing illustrated tensions between state housing policy and local neighborhood preservation, and several urged project sponsors to talk with neighbors before building even when notice is not required.

The appellants may pursue other administrative remedies if available, but the board made clear its legal authority was constrained by state ADU law.