On Wednesday evening, the San Francisco Board of Appeals voted unanimously to revoke a seemingly minor permit that gave local business Monkeybrains permission to replace a fence on the hotly contested parcel 36.
At the end of the three-hour-long meeting, the board also decided to draft a letter pleading with elected officials and city staff to find a lasting solution regarding how the slice of land, which cuts between 22nd and Harrison streets and Treat Avenue, is used.
“The city needs courageous leadership to take charge on issues like this,” said board member Alex Lemberg. “And we’re just not seeing it.”
The permit in question would have given Monkeybrains, which owns a warehouse adjacent to parcel 36, permission to rebuild a fence at the contested land’s northeast edge. The appeal was brought by Mission Greenway, the guerilla gardener group that staked its claim to the space late last year when it cut the locks on the parcel’s gates and installed planters.
The Board of Appeals only had jurisdiction over the status of the fence permit, and ultimately blocked it because Monkeybrains does not own parcel 36. But beyond their limited ability to intercede on this particular permit, the board was clearly confused and frustrated by the situation on the parcel.
“It’s, like, a classic creative fact pattern for a property law final,” said board member Jose Lopez.
“This is the most obvious use case for eminent domain I have ever seen,” said Lemberg, referring to the legal practice of a government body taking over private land for public use.
Board chair Rick Swig ultimately suggested that the board send a letter to Supervisor Hillary Ronen to “ask her to do her job” and find a solution to the ongoing dispute.
But last week, Ronen’s representative, Santiago Lerma, said that the idea that Ronen or the board of supervisors “can make a decision on the parcel’s use or ownership is patently false.” He said that while the parcel owner was unknown, parcel 36 is not public, and was therefore beyond their ability to act.
Board member J.R. Eppler said that the Assessor-Recorder’s Office, the Treasurer’s Office, and the Recreation and Parks Department should all be contacted too, as he perceived the unclear status of the parcel to be a “departmental error.”
“It’s a departmental error that actually harms the city, because it’s not collecting taxes or putting the parcel to public use, either of which would be better than the current state,” said Eppler. “And I say that with sympathy to both sides on this.”
Parcel 36 has long been used for private parking and vehicle access for adjacent businesses. Monkeybrains’ co-founders, Alex Menedez and Rudy Rucker, said that they need the space for loading and unloading from their warehouse, and that replacing the current chain-link fence with a sturdier iron fence would “reduce neighborhood blight and increase safety and security for the adjoining businesses.”
Members of Mission Greenway said they were concerned that a new fence would be used to keep them off the land, which they intend to convert into public green space. The land has had no clear ownership for decades, despite being fenced off.
At the end of the night, the board implored the two groups involved in the dispute, Mission Greenway and Monkeybrains, to find a way to compromise and share the space.
“I don’t see bad actors on either side of this,” said Lopez. “I wish we could settle this this evening, and I’m sorry we can’t do that for you. But in the meantime, we really need you all to work together.”
The fence permit was revoked on the grounds that Alex Menendez, co-owner of Monkeybrains, claimed on his application form that an LLC affiliated with his company owned the land the fence sits on. Although Monkeybrains has paid more than $20,000 in back taxes on the parcel, it does not own the land.
Menendez and his business partner Rudy Rucker said that there was no field on the form to specify that they had a prescriptive easement — meaning a right to use land owned by another because of historic use — so Menendez filled in the “owner” box instead. Menendez said that he filled out the form with advice from staff at the Department of Building Inspection.
“I think DBI is ill prepared for easement owners pulling permits,” said Rucker, referring to the Department of Building Inspection. “We feel the board took the conservative out and did not address our rights as easement holders.”
Their argument did not convince the board members or assembled city department experts. Tina Tam, an assistant director at the Planning Department, recommended that the permit be nixed on the grounds that Monkeybrains did not own the land it was related to.
DBI’s chief inspector, Matthew Greene, concurred. Greene added that the department does not recognize prescriptive easements and would only consider written easements, such as those in a deed or issued in a court order.
Greene also revealed that neither the fence in question, nor the fence on the west side of the parcel, were actually built with permits. He said that if a complaint were to be made about the fences, they would certainly be found to violate city building codes but added, given the parcel’s unclear ownership: “Who would we send the notice of violation to?”
Although the permit to replace the northeast fence was revoked, the parcel’s existing fences will continue to stand.
This was not the first complaint made against Monkeybrains since they moved into their new warehouse, but it was the first that led to construction work being halted. At least 10 anonymous complaints regarding Monkeybrains have been sent to DBI in the past two months.
Most of the complaints were dismissed while one led to Monkeybrains being issued a new permit for roof repairs. Rucker characterized the complaints as a strategy to “continuously pester” the business.
Elizabeth Creely, who appealed the fence permit on behalf of Mission Greenway, said after the meeting that she was “incredibly pleased and so grateful to the commission” for their decision.
“It was issued under false pretenses, and needed to be revoked,” she said.
Disclosure: Mission Local and Monkeybrains have a barter arrangement, exchanging advertising for service. Elizabeth Creely was formerly a Mission Local contributor.