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Recently I was sad to learn that Jason Yu gave up on opening a dessert shop in San Francisco’s Mission district, after 22 months of struggle to get city approvals. Three months of the delays can be directly attributed to actions by the owners of Garden Creamery, whose ice cream business sits half a block from Yu’s proposed storefront.
But what took the cake for me was that a Garden Creamery owner told the SF Chronicle that their complaint was about “clarifying inconsistencies,” and that they “feel badly for Jason.” That’s because I had tuned into the hearing online in June 2020 (video recording starts at 7:07:17) to support Yu’s store Matcha ‘n More. (Disclosure: I am a board member of the Edwin M. Lee Asian Pacific Democratic Club, which supported Yu and the new business.)
So I looked up the Discretionary Review packet to go over last year’s complaint against Yu that Garden Creamery submitted to the Planning Department. In the filing, the established ice cream shop accused the new business of “perjury,” which isn’t quite the same as “clarifying inconsistencies”:
I ask that the Commissars consider taking this Discretionary Review and Rejecting the Application under the grounds that the Project Sponsor, Jason Yu of Matcha n’ More, knowingly and purposely committed perjury twice by misrepresented his business to the Planning Department under two separate affidavits signed under penalty of perjury.
It struck me that the Garden Creamery owners were lacking in any contrition or self-awareness for their role in stymieing a new store. I was also disappointed that a white-owned shop serving Asian-themed ice cream flavors stood in the way of an Asian business owner. Taking to Twitter, I wrote a short thread.
In a part of the Mission where four ice cream shops cover one square mile, I felt that Garden Creamery did not afford Jason Yu the same spirit of welcoming (or benign indifference) that was extended to them.
Tried and true trip-up tactic
Being a nerd that watches Planning Commission hearings, all this brought to mind so many other mean-spirited and meritless efforts to thwart and delay in the form of discretionary reviews, or DRs. In a similar tiff between two similar businesses, a Castro falafel shop DR’d a new falafel shop (2019–012253DRP, denied by one vote). In the Mission, activists DR’d a zoning-compliant permit for arcade business Joey the Cat (2018–003910DRP, denied). Even worse examples abound: A resident who did not want poor neighbors DR’d 127 homes for low-income households in the Mission (2016–011542DRP, denied).
Some of these seem really petty. In the single-family neighborhood of Balboa Terrace near Stonestown, one homeowner objected to their next-door neighbor’s straightforward remodel (2017–000433DRP, denied). An SF land-use lawyer objected to the shadow that would be cast on his office by a second-story bathroom addition in a house next door (2018–013422DRP, denied).
All these DR attempts were denied. But even if a DR is shot down, there is damage done in lost time and lost income, as well as lease and legal fees. Our system makes it easy for just a single person who fears competition, inconvenience, or shadows to file spurious discretionary reviews to scuttle projects, or hold the proposal hostage for concessions.
While community and neighborhood input is often positive, what we have here is overkill. The labyrinthine permitting and DR process contribute to commercial storefront vacancies and to our housing crisis. I’ve observed appeal processes like DRs and environmental appeals (like how Slow Streets were obstructed last year) for years, and would like to suggest some structural reforms to reduce bad-faith appeals.
Streamline and deter
Idea No. 1 is to shrink a proposal’s “attackable surface” — that is, minimizing or eliminating the opportunity to file a discretionary review. Proposition H, which voters passed in November 2020, eliminates DR for the “change-of-use permit” that unfortunately ensnared Jason Yu. Mayor London Breed also has proposed more business streamlining legislation to be reviewed by the Board of Supervisors.
Second, there should be tougher consequences for filing frivolous DRs. A neighbor only needs to pay $665 (a fee that can be waived for organizations) to inflict tens of thousands of dollars in costs and months of delay. Bad actors need a bigger deterrent. The Planning Commission could mandate fines for wasting time and resources for the agency and department staff. We can also open up avenues for project owners or watchdog organizations to seek legal redress from DR filers in civil court.
Third, let’s lower the burdens on project owners who get DR’d. DRs bring projects to a halt, which throws people trying to open a business or homeowners trying to add another bathroom into limbo. Such reviews should get a first hearing within 30 days and have final resolution within three months. To make clear that DRs are extraordinary measures, the voting threshold to support a review and delay a project could go from a simple majority to three-quarters of Planning Commission members. Finally, while the DR is under review at the commission, project owners should be granted a provisional permit.
Community input and engagement have a place in planning our city, but our system goes too far to empower petty, empty grievances and scourge newcomers who want to enliven our districts. Discretionary review is robbing San Franciscans of vibrant storefronts, livable streets, and affordable housing. We’re past time for reforming how San Francisco conducts public business.
Mike Chenis an elected delegate to the California Democratic Party, and sits on the Municipal Transportation Agency Citizens Advisory Council (MTA CAC). He also serves on the boards of the Edwin M. Lee Asian Pacific Democratic Club, the Alice B. Toklas LGBTQ Democratic Club, and the GLBTQ+ Asian Pacific Alliance (GAPA). Mike volunteers with YIMBY Action, among other organizations.
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