Ken Herrera has created a home for nearly 20 years in an in-law studio apartment along the narrow tree-lined stretch of Noe Street behind Cafe Flore, but it is uncertain whether he will continue to call the Castro home.

Herrera's in-law unit is illegal, one of many within San Francisco. And while his situation might be resolved, as of now he faces the possibility of having to relocate.

He lives with his two service dogs, Scarlet and Chanteal, in the studio he spent years decorating and improving.

"I love it here so much because I know all of the neighbors," said Herrera. "It's a friendly neighborhood. It's different than most. I've lived in other neighborhoods in the city where you don't get to know your neighbors, even in the same building. Here everybody talks to each other. You walk down the street people will nod or say 'good morning' – even if it's a total stranger."

The thought of moving is terrifying to Herrera, 55, who was diagnosed with AIDS in 1995 and has other disabilities including limited mobility due to failed hip replacement surgery. Everything Herrera needs so he can remain independent is where he currently lives including his doctor, pharmacy, service providers, local grocery store, friends, and dogs.

This was all threatened in March 2006, according the Amanda Ebey, Herrera's attorney, when his apartment along with other illegal units and building structures were reported to the San Francisco Department of Building Inspection.

One older man who lived in a unit much like Herrera's was evicted; Herrera's landlords Jesus Marez and Daniel S. McLean had to remove the rooftop hot tub because the previous owner installed it without a permit.

Herrera and Ebey, who contacted Herrera through the AIDS Legal Referral Panel, told the Bay Area Reporter that to this day they don't know who reported the building violations. According to Ebey and Michael Hall, Marez's and McLean's attorney, they haven't been able to obtain their names and contact information. Ebey told the B.A.R . what they do know is the building these people were living in overlooked Herrera's garden and that two months after they moved into the building it was sold and they were evicted.

That building is now empty.

Despite no longer living in the neighborhood, the unknown neighbors continue to call the Department of Building Inspection to see if Herrera has moved, Ebey told the B.A.R.

"What bugs me about the people that made the complaint [is] they are vindictive," said Ebey. "I don't know why they missed that one lesson that is so important 'Do no harm.' I don't know why they missed that lesson."

Herrera's sister, Carmella Herrera, is worried about her brother. She is doing everything she can to protect him. She wrote in an e-mail to the B.A.R. that her brother's income is from public disability funds and that if her brother had to move outside of the Castro where all of his support systems are that it would "substantially and significantly limit his major life activity."

"How much does he have to give up?" asked Carmella Herrera in a phone interview from New Mexico. "He has to give up his neighborhood. He has to give up his garden. He has to give up his lifeline. How much can this man give up?"

Upon learning about a potential eviction in December 2006, Herrera was hospitalized for pneumocystis for several weeks during January.

Dr. Lisa Capaldini, at the California Pacific Medical Center Davis Campus, Herrera's doctor since 1998, is concerned about his health and well being due to the stress of his housing situation.

"I think for anybody moving is stressful, and [in] his particular case he has an ideal situation right now because friends living near him, he has his dogs, he's close to his doctor," said Capaldini. "Most of the good options take many years to become available. I would be very concerned for him to find a place that works as well as this one does."

Third time might be the charm?

This isn't the first time Herrera faced possible eviction. In 1998, a housing authority inspector visited Herrera and determined the apartment wasn't in compliance with housing quality standards. The unit didn't have a window in the alcove where Herrera's bed is and therefore didn't have proper ventilation. Herrera appealed to Art Agnos, a former San Francisco mayor who then worked at the Housing and Urban Development Department during the Clinton administration. Agnos assisted Herrera with securing Housing Opportunities for People with AIDS subsidies and more importantly, recommended the city reverse its determination that Herrera's apartment wasn't habitable, according to a letter from Agnos.

Two years went by and Herrera was living in peace. Then his building changed ownership in 2000. According to Ebey and Herrera, the neighbor living above his apartment was being evicted through an owner move-in. In the process the neighbor reported Herrera's apartment to the Department of Building Inspection. This time another neighbor contacted then-Mayor Willie Brown on Herrera's behalf. The situation was quietly resolved.

Laws and humanity

Herrera's latest troubles have opened a Pandora's box of laws.

Herrera's disabilities place him in a protected class that directly conflicts with San Francisco zoning laws and housing quality standards, despite the fact that Inspector Jim Grossman for the San Francisco Housing Authority has approved Herrera's unit consecutively for the past nine years for the HOPWA funds.

According to Carla Johnson, acting deputy director for inspection services of the San Francisco Department of Building Inspection, it would be difficult to legalize the unit because the building is zoned only for two units.

"We had some suggestions for the property owner to address his concerns and what the tenant needs," said Johnson. "At the end of the day we think it is best that he stays where he is."

Johnson insisted that the person really setting the deadline is Herrera's landlord.

According to Johnson and Boe Hayward, aide to Supervisor Bevan Dufty, they provided Marez with two ways to handle the situation in June 2006. The first option was for the owners to obtain a permit to legalize the unit so they could appeal to the Board of Appeals to temporarily legalize the unit. The second option was to obtain a permit to remove the unit, meaning that Herrera would have to move.

Marez obtained the permit to remove the unit in June 2006, but extended it in December 2006, stalling demolition for three more months. Then last month, Herrera received a 60-day eviction package that included compensation to relocate.

"I feel for the landlords because they don't want to evict Ken either," said Ebey. "But if Ken doesn't move out and the building department goes forward they are going to start fining them. The landlords have to bring the petition for the variance and they haven't done that."

Ebey filed an appeal with the Board of Appeals on March 20, which she presented on April 4 in an attempt to have Herrera remain in his apartment. She has also attempted to schedule a meeting with Mayor Gavin Newsom, but hasn't been successful.

"The owners are doing whatever they can to preserve the tenancy because they don't want him to be evicted," Hall told the B.A.R .

After the B.A.R. contacted Dufty's office, it began working with Hall and Johnson to assist Marez and McLean through the Board of Appeals process to legalize the unit.

"We are cautiously optimistic," said Hayward.

According to Johnson, the department hasn't held a hearing to force Marez and McLean into compliance with the city's regulations. She told the B.A.R. that they are trying to give the owners a little bit more time to find a solution.

"I think that everyone has tried to be very understanding of the circumstances there to the extent that our laws allow us to be," said Johnson. "It is a very unfortunate circumstance for Ken and for his landlord. The unit is providing a very important resource for Ken."

Hall said that his clients are willing to solve the issue.

"There seems to be a happy ending here," said Hall about his clients. "They are willing to bear the expense as long as we can get to a point where this is finally resolved and we don't have to continue this issue."

While it appears that Herrera's home might be saved, Ebey continues searching to find another suitable apartment for Herrera in case things don't work out. So far, she has not had any success.

"The chances of me finding anything else wouldn't even remotely serve the purpose that this place does," said Herrera. "It's pretty scary. I'm rooted here.

Ebey added, "We are just hoping that the community will come together and help us out. We are actively looking for a replacement."

To help Herrera, contact Amanda Ebey at (415) 989-8070 or mailto:AmandaEbey@aol.com.