On a Thursday night in October at City Hall, T-Mobile was vying for the city’s approval to operate a store in the Mission, but recent history wasn’t on their side. Just a day before, dozens of people crowded into a room down the hall to oppose Jack Spade, another store that, while not technically a chain in the eyes of the city, found itself in the crosshairs of neighborhood activists and vitriolic protest when it tried to open a small, upscale menswear shop on 16th Street.
Yet it was smooth sailing for this T-Mobile franchisee’s cell phone megastore on the corner of 20th and Mission — among his 20 other locations nationwide. The project was approved in less than four minutes without discussion from the Planning Commission or without a single objection from the public. More interesting yet: the store had been already open and operating without the required conditional use permit for four years, Mission Local has learned.
Under the city’s formula retail restrictions, such a permit is required for any store with 11 or more locations in the United States to open and operate in the Mission District. The store must alert the neighborhood about the hearing at which the permit will be considered, which often stirs up pitched anti-chain battles.
In T-Mobile’s case, there wasn’t a peep.
How did such a big chain go unnoticed by the city and anti-chain activists in the very heart of the closely guarded Inner Mission? City planners had tagged the store as operating illegally in a notice of enforcement sent on November 2009, but neither the franchise owner nor the landlord responded, documents obtained by Mission Local show. Their lack of response was enough for the store to continue business for four years without a permit — and without further hassle from the city.
In the meantime, the city potentially lost big in uncollected fines. According to Planning Department policy, a failure to respond to that November 2009 enforcement letter should have resulted in a notice of violation. That notice triggers a $250-a-day fee for noncompliance. In this case, the department never issued the notice, so wasn’t eligible to collect any fees, which could have spurred the store to take action to get the permit — or added up to $365,000 over four years.
As the city prepares to revamp its policy on formula retail, the unusual case of T-Mobile shows the shortcomings of the current law. The system relies on incoming chain stores to self-report as formula retail and secure the conditional use permit — a step that is sure to attract neighborhood attention, if not opposition. Or the Planning Department must flag and also hound the violator.
None of these things happened in the case of T-Mobile — and the 3,000 square-foot pink megastore on Mission Street evaded a law that more than 60 other chain stores in the city have complied with.
For Javier Solorzano, the permit expeditor hired by the landlord’s architecture firm in 2013 to finally apply for the formula retail permit for the location, T-Mobile was one of the easiest projects to receive city approval that he’s worked on.
The fact that it had been operating outside city law for four years failed to raise any problems in getting a permit. In fact, at the October Planning Commission hearing that approved T-Mobile’s conditional use permit, the commissioners never brought up the store’s four-year delay.
“What I noticed from the Planning Department is that as long as there is no community outcry their position is ‘nobody said anything, we will approve it’ — unless it’s a super monster,” Solorzano said. “Again, it’s a lot of politics, and it depends on who makes waves.”
Planning Commission president, Rodney Fong, who was among the five members who voted in favor of the permit, disagreed.
“That’s not the rule,” he said. “The commission and staff spend a great deal of time and effort. Obviously there is so much volume [of cases].”
Original Planner On Case Fired In Porn Scandal
T-Mobile never applied for the permit before opening in August 2009, replacing the chain music store Ritmo Latino that had opened in the mid-90s, grandfathered in when the city passed its retail formula law nine years later in 2004. The Planning Department sent an enforcement letter to the T-Mobile franchisee named Ritmo Latino Wireless, and the landlord, Edward Litke, three months after it opened, in November 2009, notifying them they must get the permit. (Ritmo Latino’s owner David Massry had converted several of his shuttered music stores to T-Mobile franchises across the country).
Both the franchise and the landlord failed to follow up with the department’s enforcement notification and remained open until 2013 when a merchant planning to open a café in the adjacent space in the same property applied for a conditional-use permit.
The Planning Department again flagged the T-Mobile property, and Litke’s architecture firm hired Solorzano to finally get the formula retail permit. (T-Mobile’s franchise owner Massry did not respond to repeated emails and phone calls for comment, and the landlord’s spokesperson, Stefano Casalino, would not speak on the record).
The planner who issued the 2009 notice of enforcement failed to follow up and was fired a year later after getting caught up in the Planning Department’s email porn scandal in 2010, according to press reports. The case then appears to have fallen through the cracks. The department has more than a thousand open cases and relies on complaints and due diligence of landlords to look into potential violations, a planning official said.
Planning Strikes Again — Four Years Later
It was planner Edgar Oropeza who discovered T-Mobile was operating illegally and then forwarded the complaint to Christine Haw, the Planning Department’s director of code enforcement, records show.
Haw says notes on why the case wasn’t followed up on in 2009 are missing, and concedes that the department was unaware, until 2013, that the store was still operating legally.
“[Project sponsors] think ‘the city is not going to pay attention to us,’” and continue the unauthorized use, Haw said after reviewing the file at Mission Local’s request. “It’s kind of unfortunate.”
Haw said she is unaware of any other formula retail store that is being allowed to open in the city without a permit, but that it’s not unusual for some landlords or project sponsors to be unaware of the city’s flurry of zoning restrictions.
“Because there are so many storefronts, we don’t know when a storefront opens,” she said. “It’s common for things to come back as complaints. It’s common to abate the complaints.”
Everyone Else is Doing it
Another trigger for the Planning Department to follow through with enforcement is neighborhood opposition. Since voters approved formula retail controls in 2006, the Planning Commission has approved several formula retail projects in the Mission including Pollo Campero, AutoZone, Fresh & Easy and AT&T. Voters approved Proposition G in 2006, which required all chains to go through a conditional use process before opening.
Many times, the projects face opposition for anything from wafting fried chicken odors in Pollo Campero’s case to the amount of affordable housing on top of the Walgreens at Cesar Chavez and Mission streets.
That’s not to say that activists won’t use whatever tools at their disposal to move their agenda, said Lesser, who worked on getting the Pollo Campero and Jack Spade projects approved.
“Depending on what your agenda is, if you can use the formula retail law to stop a project, you use that law — regardless of if your objection is formula retail or not,” he said.
In sharp contrast to Mission Street, Valencia Street has been a chain no-go zone. Merchants successfully fought against American Apparel and joined with neighborhood nonprofits to halt Jack Spade from moving near Valencia Street last year.
Lesser said the T-Mobile case is unfair given that other businesses have to follow the law — and sometimes get a black eye in the process. When contacted by Mission Local about the case, he was perplexed that the giant had sat without a permit for so long.
“That is so visible,” he said. “I don’t feel it’s the public obligation to police this kind of stuff.”