Illegal Demolitions Continue Despite Stiff Penalties

By Cody Cotulla

With planning policies making it more difficult to destroy existing houses, some people are using loopholes in the demolition ordinance to tear down buildings using alteration permits, and the few that get caught can expect to have their cases over-ruled when they go before the SF Board of Appeals.

No one knows the exact number of illegal or de facto demolitions that occur each year, and estimates vary widely.

Supervisor Jake McGoldrick is one of those people. He estimated that there are 25 to 30 illegal demolitions a year in the Richmond District and between 100 and 200 citywide. He said that 99 percent of the projects that claim they are adding a two stories over a one-story building with a garage are basically demolishing the building.

"To put two stories on top they have to demolish the building to build it," McGoldrick said.

Owen Brady, president of Save Our Richmond Environment, said even when builders know they are going to demolish a building, they request a permit for a remodel so they can skip the planning process and public hearings that are triggered by a demolition permit request.

Chief Building Inspector Laurence Kornfield said he did not know of any official number from the SF Department of Building Inspection, but he did not think there were that many.

"To find out how big a problem it is, you need to talk to the people who are saying it's a problem," Kornfield said.

Avoiding Discretionary Review
The SF Planning Commission has a temporary demolition policy, which has been in place since 2003. It mandates Discretionary Review for all residential demolition projects.

At a joint session of the Planning Commission and the SF Board of Appeals on June 15, Jonas Ionin, a member of the SF Planning Department, said that since 2003 there have been 110 projects that have been subject to the temporary demolition policy. Of those, 66 have been heard by the commission as of June and 55 permits were approved. Of the 11 that were denied, 10 were appealed to the Board of Appeals and, as of June, the BOA had heard eight of those cases and over-ruled the Planning Commission in every instance.

So, of the 66 that have been heard by the commission 63 were ultimately approved.

But getting approval is time consuming and expensive, which motivates people to try and avoid the Discretionary Review process.

"It will take you 2-and-a-half years to get a demolition permit, but you can get an alteration permit in three months," Building Inspection Commissioner Roy Guinnane said. "Plus, you don't have to get a building soundness report, which will cost you a minimum of $20,000."

He said there were other costs as well because project sponsors have to get the replacement structure approved before the existing building can be torn down.

"It takes $25,000 for a set of plans, and if those plans aren't approved, you can throw that money out the window," said senior building inspector Edward Sweeney. "You can spend $50,000 to $70,000 for the plans before you drive the first nail."

Ron Miguel, Planning Association for the Richmond president, does not think the process takes an inordinate amount of time.

"It's hard to get a permit to demolish a building, and it should be," he said.

But Joe O'Donoghue, president of the Residential Builders Association, said that when people learn what they have to do to legally demolish a home, they will not do it. They will find a way around the law.

"We are forcing people into becoming scofflaws," he said.

Serial Permitting
One common way of using alteration permits to demolish a building is what Sweeney called permit sequencing. The project sponsor gets one permit that allows for one portion of the building to be renovated and then they file for another permit because dry rot or some other problem is discovered.

"They take out permits serially, and they do so much work that you end up with what is essentially a demolition, even though in the beginning the project wasn't permitted that way," Miguel said.

Brady said these "rolling demolitions" hide the fact that the face of the neighborhood is being changed.

"They have structures that they have been able to sneak in because they are not being tracked as demolitions," he said.

Kornfield said that serial permitting is not a bad thing. Serial permitting is just part of doing construction in the City. He feels 99 percent of the time people are not using serial permitting to get around the process.

"There are rare circumstances where people are trying to obfuscate and get around the process," he said. "You can abuse any process."

He said that in the last year the department has been looking at previous permits that have been issued to see if the new permits hide an illegal demolition. If it does, they will send the project over to the planning department for investigation.

Penalty Deemed Too Harsh
It is very rare for the Department of Building Inspection to hold a hearing and find that a project is an unlawful demolition. In 2003 and 2004 combined, there were four cases, and of those rulings, the Board of Appeals reversed two and upheld one. In one case the appeal was dropped.

The most recent unlawful demolition case to come before the Board of Appeals was of a house at 323 26th Ave. The board reversed the building inspection ruling and, in response, Commissioner Guinnane tried to get the City Attorney's Office to sue the Board of Appeals.

The City Attorney's Office refused, stating in an Aug. 4, 2005 letter to Amy Lee, acting director of the Department of Building Inspection, that "a lawsuit to overturn the board's decision is not warranted."

Hisashi Sugaya, the president of the Board of Appeals, said he did not think the board was reversing the building department too often, but said the board "may have overturned more of the cases that have been in front of them than they have upheld."

The penalty for an unlawful demolition is a five-year moratorium on building permits for the site, which Sugaya said is quite substantial.

"By the time the illegal demolition is found, the building is most of the way gone," he said. "Then it's going to sit idle for five years and be an eyesore in the neighborhood."

Sugaya said the law is inflexible, and the city attorney said the board does not have the power to impose a different penalty.

"Can we make it a year penalty or impose a monetary penalty? They say no," Sugaya said.

Guinnane said that this is no excuse for reversing the building department ruling.

"The law is the law, and they are there to uphold the law," he said.

The Board of Appeals did uphold the department of building inspection's ruling concerning a house located at 641 27th Ave.

"The initial permit said they were just going to remove 30 percent of the building," said Michael Dong, who lives next door to the project. "Then they tore the whole building down."

After the project was stopped, the people working on the project just left it and now it has become a dump and a graffiti magnet, Dong said.

"I'm mad as hell, and I can't do anything about it," he said.

The building code does allow for someone who has illegally demolished a building to get a permit to rebuild a structure with the same number of units and the same or less square footage, but even this has a loophole that can be exploited, according to Guinnane.

People will try to play with the numbers when it comes to determining the square footage of the original house.

One homeowner on Junipero Serra Boulevard dropped an unlawful-demolition appeal that had gone on for more than a year after making a deal with his neighbors to allow the project to go foreword. Guinnane said that in calculating the size of the original building, they counted a portion of the original building that was being used for storage as living space and, as a result, the homeowner is ending up with a brand new 3,800-square-foot house.

Patrick Buscovich, a structural engineer and former building inspection commissioner, said people who get caught in an unlawful demolition get punished even when the case gets overturned by the Board of Appeals.

"It punishes them for two years to sit through the process" while the project is going through unlawful demolition hearings and appeals, he said. "They are punished financially, big time, because they have to pay attorneys and consultants."

Poorly Written Ordinance
Buscovich said the problem stems from a poorly-written unlawful demolition ordinance. There have only been two illegal demolition cases that have been upheld on appeal, pointing out there is a problem with the ordinance, he said.

The ordinance defines demolition as the total tearing down or destruction of a building containing one or more residential units, or any alteration which destroys or removes, as those terms are defined by the director of the Department of Building Inspection, principal portions of an existing structure containing one or more residential units. A "principal portion," according to the ordinance, means the construction which determines the shape and size of the building envelope (such as the exterior walls, roof and interior bearing elements), or construction which alters two-thirds or more of the interior elements (such as walls, partitions, floors or ceilings).

So, Buscovich asked, if you have a one-story building and you take the roof off to add another story, have you modified two-thirds of the principal portion? Is that unlawful? Even building inspectors are not clear on what the ordinance means.

"When you look at the code, you see that it could be read 10 different ways," Sweeney said. In one interpretation, Buscovich said, as long as the project sponsor shows everything they are doing, they can tear down 99 percent of the building and not have it be an unlawful demolition. In another interpretation, if the sponsor shows a 66 percent demolition rate, they are OK. But, if they go to 70 percent, that is an unlawful demolition.

Buscovich cites the case of 4109 Irving St., where work was halted in 2004.

"The project is so on the edge that if they do anything else it's an unlawful demolition," he said. Buscovich said the ordinance was written during the '80s to stop "Richmond Specials," where people were tearing down buildings in a day and just leaving up one wall. "That's not what's happening now," he said. "People are still tearing down buildings, but they are doing it more slowly with serial permitting."