In SF, it takes a village to do illegal construction
"I’m not a finger-pointer," drawls Supervisor Aaron Peskin. "But the City Attorney's office fucked this one to a fare-thee-well."
Reasonable minds can differ about who did what to whom (to a fare-thee-well). But what's not in dispute is that the situation here at 2867 San Bruno Ave. is indeed worthy of Peskin's description.
We’ve written a fair bit about this embarrassing potential deathtrap and Gordian knot of a housing snarl. In a nutshell, the owners illegally shoe-horned 19 unwarranted housing units into this four-story mixed-use new construction, deviating from submitted plans and in clear violation of myriad building codes — most obviously those requiring a second means of exit in the case of a fire.
That's bad, but this gets so much worse. That's because this block-long series of five amalgamated buildings was erected with shockingly few inspections from the Building Department. There were only two recorded DBI inspections on one building, none on four of them, and then the final sign-off, from since-admitted federal criminal Bernie Curran. Other roughly comparable large projects were subjected to six times that many inspections, or more.
So this is a building that houses far, far more people than it was safely designed to accommodate. And it was built with virtually no city inspections, including final sign-off from Curran — an admitted crook who, among many misdeeds, took bribes to approve shoddy work or greenlight "fixes" that were never fixed. Finally, like Curran, former DBI plan-checker Rudy Pada, who handled this development, also took a sizable "loan" from a developer tied to the project.
The mess at 2867 San Bruno is back in the news, with hearings held this month regarding the plight of those living here, and more meetings scheduled for next month. For their part, tenants, wisely, are in the process of bringing in an attorney to fight to either keep them on-site or get them a good payment on the way out the door. He ought to have a field day: There are 29 units here in a structure warranted for 10, with either wholly absent or Mickey Mouse attempts at life-safety elements. It's almost impossible to figure that the city won't require all or most of the illegal units to be eliminated, meaning dozens of Spanish- and Cantonese-speaking working families — paying market-rate rent of more than $3,000 a month to live in inexplicably shoddy and dangerous new construction — will be put out of their homes.
It's understandable why the city is now focusing on the troubles of these put-upon renters, who are among the only people associated with this project who are blameless. The city, however, has had less of an impetus to focus on the most fundamental of questions: How could this happen? How can this be prevented in the future? And, as Laurence Olivier's Dr. Szell repeatedly asked Dustin Hoffman's Babe Levy in "Marathon Man:" Is it safe? Is it safe? Is it safe?
The concise answer is no.
The building code violations at 2867 San Bruno that this city has chosen to abide can all but be viewed from space.
In lieu of proper fire exit measures for a building this size, the owners belatedly installed a wildly non-code-compliant, hulking set of scaffolding eerily resembling the backdrop of a Donkey Kong game.
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It's bewildering that the city allowed this patently inappropriate remedy in the first place. And by the time we first wrote about this building in 2021, this "temporary" scaffolding had already been in place for some two years. Your humble narrator dropped by last week, and it appears nothing has changed. Contrary to code, the scaffolding is flush against the wall, meaning any lower-story fire emanating from a window will block the path of exit for those living above. Intuitively, you’re also not supposed to have people barreling out of windows directly into the path of people running along the fire escape. And the coup de grâce here — quite literally, if a serious fire ever breaks out — is an imposing exit door at the base of the scaffolding which, bewilderingly, swings inward. If a crush of people gather at this door, it cannot be pushed open.
This would seem to be a quick and intuitive thing to change, but it hasn't been done. Nor have more substantive measures beyond addressing the deficient fire escape. In a September, 2021, hearing, Building Department director Patrick O’Riordan said he "may" require opening walls on-site and "may" require forensic testing of the building's foundation.
But that hasn't happened yet, either. Rather, the department is, per a spokesman, "waiting on the property owner to identify their path forward, present their plan, and apply for a building permit before requiring them to dismantle the tenants’ living space." Only then will the Department of Building Inspection come in, open the walls, and do inspections.
On the one hand, the tenants have been plenty disturbed already. On the other, it's also disturbing to be incinerated in a fire or crushed in an earthquake because the owner tossed up a clearly unacceptable fire escape, with the city's approval, or the builders used Wheatena instead of concrete, and chewing gum instead of hold-downs, and the city never bothered to inspect.
At some point, yes, you’ll have to open the walls. But checking the foundations would not necessarily require the tenants to dismantle their living spaces, especially if ground-penetrating radar is involved. There are also preliminary means of checking on conduits, wiring and the like without ripping the walls open.
And, finally, this plan puts the ball in the court of the dodgy, demonstrably bad-faith owners, who already blew off coming up with a design to bring the building into compliance. The building remains virtually uninspected, with the good name of Bernie Curran on the final. And the myriad "special inspections" — city-mandated third-party work funded by the developer, and supposedly done in addition to Building Department inspections — all somehow overlooked the rampant illegal construction that was going on here.
"There should be no confidence that any inspections, special or otherwise, were done properly," says a longtime DBI inspector. "Somebody has to go back and re-put all the pieces in place and re-do all the inspections. It just has to be done. I don't see how you can get away without it."
In the event of a fire or earthquake, the overt corruption that enabled this site to be built with the city's blessing could trigger a massive legal action against San Francisco. And, you know, get people killed.
Thank God, that hasn't happened (yet). As such, the city's powers-that-be appear to think it's in their best interests for everything to go away quietly and for the aggrieved renters to set their legal sights on the building owner.
And that appears to be happening. The city that patently failed to prevent dangerous, illegal construction seems to have caught a break: At present, the most direct legal route toward compensating the tenants is for them to target not the government, but the bad-faith developers.
With that in mind, it's very hard to say the city has any real impetus to properly suss out who is to blame here. Certainly, Curran is due his fair share of opprobrium and the City Attorney in 2021 approved a settlement with the owners involving a $1.2 million penalty and accruing "fees, fines, and costs, including time and materials" as city departments continue to clean up this mess.
But surely it doesn't end there. Beyond the city departments that failed to curtail, much less inspect, rampant illegal construction on-site, how many others are guilty of passive or active corruption or incompetence? How culpable are the architects and engineers who prepared the illegal plans used to shoe-horn in those 19 unwarranted units? What about the contractors who built those plans? At the very least, they should’ve known they were building fire-trap units that had no second means of exit. And what about the structural engineer of record, who attested the construction was consistent with the approved plans, when it clearly wasn't? And, finally, what about the supervising engineers for the mandatory independent inspection services that did the same?
So, dumping everything on the dodgy owners and Curran is a bit too neat; it’d be like pinning Watergate on the five burglars and calling it a day.
The penalty paid to the city for in the negotiated settlement, $1.2 million, is actually less than the additional rent generated from the dangerous, illegal units. This is a major reason why Peskin and Supervisor Hillary Ronen remain so critical.
"Bottom line," Ronen says, "this was a ridiculous settlement."
Adds Peskin, "were it not for that settlement, we could presumably get [the owners] to disgorge profits or attempt to impose relocation fees on them, etc. We never should’ve entered into that settlement."
Clearly, the City Attorney's office sees things differently.
"As with all settlements we negotiate, we strive to get the best outcome possible for the City," says spokeswoman Jen Kwart. "In this case, we secured $1.2 million for the City and injunctive relief that allows us to pursue further legal action if defendants fall out of compliance with deadlines set by City agencies requiring the owners to bring the properties into compliance."
Well, okay then. But the real misstep here, beyond dollars and cents, may be failing to track down and penalize the cavalcade of bad actors who enabled this project and brought it to fruition; they remain out and about in the city, acting badly.
The Building Department has, in recent years, frog-walked a number of slubberdegullions out of its headquarters and forced them into private life. It has also taken measures to curtail rampant rule-breaking.
And that's good. But, Building Department employees tell me, these measures are hardly foolproof. The computerized Permit Tracking System remains disturbingly malleable. And, fundamentally, while automated systems ought to be in place preventing a 900-day gap in inspections or a final inspection being scheduled and carried out on a project with too few prior inspections, that's not the case. Inspectors have been called out to provide a final inspection on a previously uninspected site this month.
"You can still final[ize] permits without any inspection history. There is no block," says an inspector. "I can tell you that unequivocally."
Following withering criticism from Ronen and others, the City Attorney's office said it settled for the dollar amount that it did because, based on extant laws, this was the most city lawyers thought they could win at trial.
"We’ll change the law to make sure that's not the case in the future," says Ronen.
Her pending ordinance would quadruple administrative penalties in illegal construction cases from $250 to $1,000 a day — and, crucially, apply them per unit rather, rather than per project. Ronen's legislation would also ensnare not just the property owner of record "but anyone involved in willful misconduct."
She is additionally looking to pass legislation putting anyone evicted from an illegal unit toward the front of the line for affordable housing, which should benefit her constituents who will, all but certainly, be forced out of 2867 San Bruno.
Laws like these could serve as a deterrent to future malfeasance. Which is good because, as we’ve seen, when such malfeasance occurs, the most expedient thing to do is to minimize the city's exposure and avoid reform — or even much in the way of introspection.
That works for San Francisco.
San Franciscans, however, may find themselves fucked to a fare-the-well.
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Managing Editor/Columnist. Joe was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left.
"Your humble narrator" was a writer and columnist for SF Weekly from 2007 to 2015, and a senior editor at San Francisco Magazine from 2015 to 2017. You may also have read his work in the Guardian (U.S. and U.K.); San Francisco Public Press; San Francisco Chronicle; San Francisco Examiner; Dallas Morning News; and elsewhere.
He resides in the Excelsior with his wife and three (!) kids, 4.3 miles from his birthplace and 5,474 from hers.
The Northern California branch of the Society of Professional Journalists named Eskenazi the 2019 Journalist of the Year.Is it safe? Is it safe? Is it safe? no. Subscribe to our daily newsletter