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Doctor sues SF for $12M in garden fence spat—but says ‘it’s not about the money’

Mihal Emberton stands outside her home in San Francisco on Feb. 5, 2023. | Jason Henry for The Standard

A doctor is suing San Francisco for $12 million after repeated building code enforcements cost her thousands in fines after efforts to beautify her home were deemed noncompliant—but she says, “It's not about the money."

"It’s about changing the system,” said Mihal Emberton, who is representing herself in the multimillion dollar federal court lawsuit.

Emberton alleges that the city’s orders to remove a new arbor, fence and fire pit at her Ingleside Terraces home’s front yard, violates her civil rights, including the Fourth and 14th amendments to the Constitution.

Mihal Emberton and her wife stand behind their contested fence. | Jason Henry for The Standard

The permitting enforcement saga—spanning several months, three city departments and more than $4,300 in enforcement fees levied against Emberton—crystallizes a familiar story in San Francisco, a city notorious for its outlandishly expensive and time-consuming construction rules

$12 Million

When deciding to push for the whopping $12 million sum—Emberton had little to go on—she looked online and saw an article about a former city planning commissioner who won a $1.8 million settlement in an alleged retaliation suit; they had originally sued for $12 million before settling.

“If the city said $1.8 million, that sounds right to me,” Emberton said.

Emberton alleges a total of 124 civil rights violations in the course of the city’s ordering her to remove her yard improvements. 

The family medicine doctor decided on $12 million for “unjust demands of time and energy to defend our civil and human rights,” and the reimbursement of fees paid to the city.

Mihal Emberton wants $12 million from San Francisco in a dispute over yard improvements. | Jason Henry for The Standard

City Attorney’s Office spokesperson Jen Kwart said in an email that the city was willing to work with Emberton to address “permitting issues.” The office has argued Emberton’s claims are meritless.

“The city was willing to work with [Emberton] on these relatively minor permitting issues. Instead, [she] chose to file a lawsuit alleging the city’s efforts to enforce local codes violate the Constitution, various federal statutes, and the United Nations International Covenant on Civil and Political Rights,” Kwart said. “We do not believe the claims have merit and have made that case to the court.”

‘The System’

Emberton said the mess of red tape around home improvement projects is not in the public interest: She argues that the city’s demands to remove her yard improvements makes the neighborhood less beautiful.

“The laws should say we should build to improve the community, build out the urban canopy,” Emberton said.

In her complaint, filed in August, Emberton goes on to cite a laundry list of city code, federal law and constitutional amendment violations prompted due to the city’s ordered removal of the amenities.

Emberton alleges she was told conflicting information by different city departments in relation to a fence she had built. 

Mihal Emberton (left) and her wife sit outside their home. | Jason Henry for The Standard

Emberton says the SF Planning Department had approved a 4-foot-tall fence, higher than normally allowed, through a “variance hearing,” and only later the Department of Public Works told her planning bosses didn’t have the authority to approve the fence because it is in the “public right of way.” Emberton disagrees with that assessment.

“DPW’s fence height and location requests supersede any other department,” a Public Works staffer told Emberton in an email seen by The Standard.

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Emberton alleges that orders to reduce the fence height to 3 feet from 4—despite previous approval by the Planning Department—violated her Fourth Amendment rights and her 14th Amendment rights.

Emberton claims she is being discriminated against over the fence’s height as her neighbors have tall fences too.

“All my neighbors’ 4-foot fences are brick, next to our 4-foot wood fence, both along the sidewalk, and we’re told we need to take our fence to 3 feet,” Emberton said. “It’s totally discrimination.”

An arbor at Mihal Emberton’s home | Jason Henry for The Standard

Supervisor Myrna Melgar, who represents Emberton’s neighborhood, declined to comment on the ongoing lawsuit specifically, but said she has spoken with Emberton and believes that the enforcement issues amount to an instance of poor performance by the city in providing a public service.

“I don’t think they’ve gotten the best service as taxpayers,” Melgar said.

The Department of Public Works deferred comment to the city attorney, citing the fact that the lawsuit is ongoing. The Department of Building Inspection responded to inquiries from The Standard but declined to comment on the lawsuit.

Planning Department boss Dan Sider said in an email that Emberton's fence had an approved variance, but that it was found to interfere with the public right-of-way. The department also said that Emberton's arbor was constructed without a permit.

"The proposal sought to legalize four and six-foot tall fences along the southern and eastern property lines. Through the balance of the permit review process, it became clear that those plans were not accurate, and that the fences were in fact located outside of the property and within the Public Right of Way." Sider said. "No portion of the arbor was included in the Variance request."

Garrett Leahy can be reached at garrett@sfstandard.com