In a move that could set a dangerous precedent, the Planning Department wants to allow a property owner in Potrero Hill wants to build an expanded two-unit building that involves the removal of what opponents say was an existing rent-controlled unit.
The matter will go before the Board of Appeals Wednesday/18.
At issue is a modest building at 695 Rhode Island Street—but if the board allows it, landlords and developers all over town may see a path to eliminating existing rental housing.
The owners of the now-vacant building, Charles Quach and Yen Ming Chen, want to expand into the backyard and build a third story, creating a large two-unit building that they say in planning documents would “create a dream home for our current and future family’s needs.”
But under city law, property owners are not allowed to destroy an existing rental unit—and the appellant, Emily Feldman, who lives nearby, argues that a third, basement unit has been used as a rental in the past.
The issue at hand is how to prove that tenants have lived in that unit.
Everyone agrees that the units was never legally authorized, but that doesn’t matter. If, under the current rules, the place had its own private entrance and a full bathroom, it counts as a living space.
The owners say nobody ever lived there—but Feldman has presented a sworn declaration from a person who identifies himself as a former renter in that unit, and another declaration from an upstairs tenant who says he knew there were people living in the lower unit.
In a May 28th declaration, Dillon Ballinger states:
From November 2017 to February 2018, I lived in the basement unit at 695 Rhode Island Street in San Francisco, Califomia. I rented the basement unit for $2,000 a month and paid rent to Michael Kopec. I found the rental from a listing on Craigslist.org. Kopec did not disclose to me that the unit was unpermitted. The unit included a stove, refrigerator and bathroom, and the unit had its own entrance to the street.
That was before the current owners bought the place, but it doesn’t matter: If this was an existing rental unit, it can’t be removed.
But Corey Teague, the zoning administrator, argues that the declaration might not be enough:
Pursuant to this definition, a space must meet two separate criteria to be considered a UDU. First, it must meet the physical requirements (independent access and visual separation). Second, there must be adequate evidence that such space has been as a separate living space. Noticeably, this language does not provide specific guidance on exactly how to determine if such a space has been used as a separate living space. Therefore, since this provision was adopted in 2016, the Zoning Administrator has consistently used the following additional criteria to determine if a UDU is present: 1. While the space is not required to include a full kitchen, it must include a full bathroom to have been used as a separate living space; 2. There must be clear and adequate evidence that the space was used as a separate living space. This may include Rent Board records, court records, leases, utility and other bills, copies of rent checks, historic voter rolls, Planning Department records, records from other City departments (DBI, etc.), or any other official documents that may exist.
Ballinger no longer lives in San Francisco, and it’s unlikely he kept utility bills from eight years ago. The unit was never listed with the Rent Board. Voter registration records from 2018 don’t show Ballinger registered to vote at that address, which again is not surprising if he only lived there for three months.
In a separate June 1 declaration, Edward Peters states:
From approximately June 2003 to June 2004, I lived in the floor-level unit at 695 Rhode Island Street in San Francisco, California. I rented the floor level unit for $1,600 per month and paid rent to Michael Kopec and Vinka Azich. During the entirety of time renting the floor-level unit at this property, the basement unit was occupied. It was first occupied by who I understood to be a local limousine driver who was removed for smoking cigarettes, then a younger gentleman in his 20s moved in. The basement unit had a separate entrance from the rest of the building.
But Teague says:
In this case, the UDU screening found absolutely no documentation or other evidence to conclude that the basement level of the subject building was used as a separate living space. While that does not mean that the Planning Department disputes the affidavits provided, it does mean that those affidavits alone are not considered adequate evidence of a UDU pursuant to standard protocol.
M. Brett Gladstone, attorney for the appellant, told me that judges and juries routinely accept sworn declarations as valid evidence—and in a case like this, it’s almost impossible to get any other proof that a unit was occupied.
If the zoning administrator ruling stands, he said, “it opens the door. Landlord attorneys and developer attorneys all over town will be watching this to see if there’s a way to get rid of rental units.”
That hearing starts at 5pm.
