Franklin v. Steele

Opinion

SCOTT, J. Appellant R. Spencer Steele, Zoning Administrator for the City and County of San Francisco, appeals from the granting of a peremptory writ of mandate ordering that he grant respondent Dorothy B. Franklin a variance and facilitate the issuance of a building permit consistent with that variance in accordance with the decision of the San Francisco Board of Permit Appeals. Application had been made on behalf of Franklin, to the zoning administrator for a variance to facilitate the construction of two apartments on Franklin’s property. The application was denied. Franklin appealed to the board of permit appeals who granted the variance. The zoning administrator refused to abide by the ruling of the board, hence, the instant petition for a writ of mandate to compel the administrator to grant the variance in accordance with the board’s determination. We conclude that the appeal to the board was untimely; therefore, the board was without jurisdiction to enter its order. As we shall explain, we find no support in the record for the trial court’s conclusion “that the Board of Permit Appeals acted within the scope of its authority and discretion in determining that the notice of appeal of petitioner Franklin was timely-filed and in accepting jurisdiction over such appeal. . . . ”

By document dated October 28, 1976, Franklin designated Robert M. Witcher as her agent in the filing of an “.. . application for a variance from City Planning Code on additions to property located at 3060 Franklin Street .. . San Francisco . .. . ” This document along with an application for a variance was presented to the zoning administrator on December 21, 1976. The application designated Witcher as the applicant and authorized agent for the owner Franklin. The application provided Witcher’s address and telephone number and designated him as “the person to be contacted for details about this application.” The variance application was denied by letter dated June 3, 1977. The denial letter was addressed to Witcher at his address on the application and stated “last date for filing appeal: June 13, 1977.” The letter concluded with this sentence: “This decision will become effective if no appeal from this decision has been filed as provided in Section 308.2 of the City Planning Code on or before the last date for filing as noted above.”

[561]Franklin filed an appeal with the permit appeals board on June 24, 1977, 11 days beyond the 10-day period.

City Planning Code section 308.2 provides for procedures for appeals from the granting or denying of variances by the zoning administrator. That section provides in pertinent part as follows: “Right of appeal. The action of the Zoning Administrator, in granting or denying a variance application as described in Section 305 and Sections 306 through 306.5 . . . shall be subject to appeal to the Board of Permit Appeals in accordance with this Section. Such an appeal may be taken by any person aggrieved or by an officer, board or commission of the City and County. An appeal shall stay all proceedings in furtherance of the action appealed from.”