- our 28,000 city and county employees play an important role in making san francisco what it is today. - we provide residents and visitors with a wide array of services, such as improving city streets and parks, keeping communities safe, and driving buses and cable cars. - our employees enjoy competitive salaries, as well as generous benefits programs. but most importantly, working for the city and county of san francisco gives employees an opportunity to contribute their ideas, energy, and commitment to shape the city's future. - thank you for considering a career with the city and county of san francisco. . >> good evening and welcome to the september 16, 2015 meeting of the san francisco berd of

appeals. the presiding officer this evening will be the board's vice president, dairl honda. he is joined tonight by commission frank fung, commissioner rick swig. to my left is robert brian, he is a deputy city attorney and he will provide the board with any needed legal advice. at the controls we have the board's legal process clerk and i'm also very pleased to welcome our new legal assistant, gary cantera i'm cynthia goldstein, the board's executive director. we will be joined tonight by city departments that have cases before the court. senior building inspector duffy is here, representing the department of building inspection. the board requests that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings. please carry on conversations in the hallway.

the board's rules of presentation are as follows: appellants permit holders and responders each are given 7 minutes to present this case and 3 minutes for rebuttal chl people affiliated for these parties must include their comments within these 7 or 3 minutes. member members of the public have up to 3 minutes to address the board and no rebuttal. please speak into the microphone. to assist the board in the accurate presentation of minutes you are asked but not required to submit a speaker card or business card when you speak. the board welcomes your comments and suggestions. there are customer satisfaction survey forms on the podium for your convenience. if you have questions about requesting a rehearing, the board rules please speak to staff during a break or after the meeting, we are located at 1653 mission

street. this meeting is broadcast live on sfgovtv, cable channel 78 and rebroadcast on fridays at 4:00 on channel 26. dvd's of this meeting are available for purchase from sfgovtv now we will swear in or affirm all those who intend to testify. please note any member of the public may speak without taking an oath pursuant to their rights under the sun shine ordinance. if you intend to testify at any of tonight's hearings and have the board give your testimony any testamentary weight, please stand. (sworn). >> thank you. commissioners, we'll start with item no. 1, which is general public comment. this is a not item for anyone here who wishes to address the board on an item that is within the board's subject matter jurisdiction but is not on tonight's calendar. is there anyone here for item

1? okay, seeing none, item 2 is commissioner comments and questions. commissioners, anything? >> i'd like to welcome our new staff member. >> thank you very much. any public comment on item 2? seeing none, then we will go to item 3. item 3 is the board's consideration of its minutes for the meeting of september 2nd, 2015 and we can wait until commission fung gets back up to his seat. commissioners, those minutes are before you for your consideration ?oo sfoo commissioners, do we have any additions or changes to the minutes that have been presented? >> no. >> may i have a motion? >> move to adopt. >> thank you. is there any public comment on the minutes? seeing none, we have a motion from commissioner fung to adopt

the minutes. vice president honda? aye. commissioner wilson, aye. commissioner swig, aye. that motion carries 4-0. the next item on the calendar is item 4, which are two jurisdiction requests, the subject property is at 721 beach street, the board received a letter from greg holzman, requestor, asking the board take jurisdiction over application numbers 205 and 201404707 which were issued on january 15, 2013 and june 24, 2014. the appeal periods ended on january 30, 2013 and july 9, 2014, respectively and jurisdiction requests were filed at the board ofrs. permit holders are jeff sears and bj real estate. a new structural system along east

property line, new stair configuration at rear property, new elevator, lobby layout, update occupancy to b, m and r3. i understand there may be an agreement that was just reached on this matter. we can hear from the attorney for the requestor and the attorney for the permit holder. >> prior to that, i need to make a disclosure. i wish to disclose that i have a prior business relationship with rubin rubin pars3 m. jun junius on a separate project and will not have any effect on my decision today. >> do we need to start the clock? >> no. as you may remember, this is about a very large penalty house on the roof of a building by aquatic park. it though the permits are very expensive this is the

settlement or the agreement between the parties is just about the penthouse and we have just heard that the developer is going to not bring an elevator to the roof. there will be a small penthouse, maximum of about 6 feet, going -- just to house mechanicals and our understanding is the roof deck will be made permanently residential, not just, you know, currently approved as residential. >> so is there something you need the board to do? >> we were going to -- we were hoping that you would put this over for a couple months so that permit holder could draw a new plan, get a permit, everybody works at it, everybody nods and then we can drop this request for jurisdiction.

>> okay. >> thank you, commissioner, john kevlin here on behalf of the permit holders. we listened to the board's emphatic concerns at the last hearing in august, we spent some time exploring other options for taking this elevator to the roof. it really was because of the various state and local guidelines it really was going to be impossible to get it down to even 9 foot 6 inches, so ultimately considering both the board's concern as well as the neighborhood's concern we have decided to take it to just the fourth floor. it's a 4-story building so it will just go up to the fourth floor as mr. vinoles mentioned there's about 6 feet or so of mechanical penthouse above that, but the elevator won't be stopping at the roof any more. procedurally speaking we've got a jurisdiction request here tonight. we've got a suspended original building permit that mr. sanchez at some point is going to have to unsuspend and

also be filing an amendment to that original building permit to modify the elevator penthouse. so what we would be happy with is if the board tonight continues this matter for two months so that we can file the amendment to the original building permit for the new elevator design, take it through the process, get it issued, hopefully it is, meets the needs of the neighborhood. we don't have any appeals of either that building permit or mr. sanchez' unsuspension of the suspension and then mr. vignoles can withdraw the jurisdiction request. i'm here for any questions, thank you. >> mr. sanchez? >> thank you, scott sanchez, the permit holder did correctly outline the process that needs to happen in terms. permission revision and with regard to the roof deck and in response to

commissioner swig's concerns about the roof deck, i did review all the plans, very clearly label that as roof deck but certainly we would expect that that be continued on any revision permits that it is noted that that is the says depx open space. >> anything, mr. duffy? is there any public comment? seeing none, commissioners there has been a request to continue this matter. is that your wish? >> commissioners? >> i think so. >> counselors, november 18th? i would move to continue this case to november 18th. >> that's to allow the parties to take the various steps they

just outlines to resolve the issue, right? >> right. >> on that motion then from commissioner fung, vice president honda, aye. commissioner wilson, aye. and commissioner swig, aye. okay, thank you. that item is continued to november 18th. thank you very much. item 5 is next, another jurisdiction request, subject property is at 4631 to 4633 irving street. the board received a letter from marco estrada and ascencion landeros, asking that the board take jurisdiction over appeal no. filed at the board office on august 26, 2015. permit holder is chad doyle and the project is to demolish a kitchen in an illegal in law unit and legalize a half bath and we will start with the requestors.

you have three minutes to present your case. >> yes, thank you. good afternoon, my name is racquel fox and i am here with the tenants who have resided there since 1997. i wanted to make a correction to my brief where it says 1978, they have been there since 1997, exhibit a, the rental agreement, reflects that. they have been there almost 20 years. they have their own separate pg&e meter, they do have gas service, they do have their own water, both cold and hot, they have smoke detectors, they have separate bedrooms. they have a kitchen and refrigerator, stove, the ceiling heights are somewhere around 9 to 10 feet, somewhere in that range. first i just want to point out

that there are 3 separate mailboxes. there is also 3 separate meters at the property. there are separate bills that come to the family, they pay their own. this is the upper unit, 4633. this is 4631, and this photograph here reflects 4631a, so they do have their own separate meters. pg&e said that if there was more evidence that needed to be it submitted that it would be something that would need to be actually subpoenaed but i do

have the tenants here that can testify as to their own payment. pg&e recommended showing you the numbers to the meters. this one ends with 69, the smart meter. this smart meter ends with 68, and then the next meter ends with 70. so basically the family received a notice that was sent june 23rd of 2015, it's in english and unfortunately it went to the upstairs unit, 4631, but the tenants did bring it down and they saw that there was an intent to apply for demolition. however, the notice also says that they were going to immediately upon the issuance of the permit get a notice of termination served on them. the way this was strategickally placed they didn't get notice until after the notice period

had expired. also if you look at the section dealing with demolition, the land lord is supposed to give notice to the tenant that they have in fact applied, not of a future intent. there's nothing we can do about it. those are kind of in 3 minutes the most i can get in at this point. >> thank you. miss fox, you indicate that the notice was not received by them until after june 23rd? >> that's correct. the notice of termination of tenancy that included the actual permit was received august 14th. it was mailed probably at the end of the day on august 11th. but june 23rd, the landlord's lawyer did send out a notice that says there is an intent and i believe it's their exhibit --. >> exhibit b

>> yes. if you look at that, it just talks about, that the land board intends to apply and with an intent to apply, that's not enough, we can't move for discretionary review and unfortunately these tenants didn't come to me until after everything had happened. otherwise we would have done the block notation which we since have done, but in this notice it further says that the owners obtained a require that they will promptly thereafter serve all occupants with a 60 day notice. that wasn't done. i believe the permit issued july 21 but they didn't serve this until after the time period had expired and it seems pretty clear to me that they had a lawyer involved so they could have just as easily served their notice. they weren't in pro per and they should have given notice because they sepbltd this premature june 23rd notice.

>> that was going to be my second question. there was two names mentioned as attorneys for them before you came on? >> yes, there was -- let me backtrack. now we're in august. so they received the notice of termination of tenants august 14, two lawyers were at the property that sunday, august 16th and i don't remember their names, i have their card, but they met with all the tenants in the building who each received some notice of termination of tenancy, i think it was owner move in and relative owner move in. at that time these tenants were told there was nothing to be done with their case. >> who were they representing? >> hold on. the upstairs tenants. they invited them to show up as well.

>> okay. >> so that's it in a nutshell. thank you. >> we can hear from the permit holder now. >> hello, my name is chad doyle, i grew up in san francisco along with my brother. i have a wife who is a high school councilor at lincoln high school and we have been searching for a place to purchase. it became quite clear that inc. single family residences went to a point where we could not afford them so i found a property where i could do a owner move in and i could also do a relative move in so my brother could move back to san francisco from oakland and i could move closer to where my wife's work is and also my mother, who lives in west portal, looks after our

two children. and so in june i went ahead and purchased the property, finally purchased the property, then i had my attorney, because we were going to be doing owner move ins and relative move ins, and so at that point in time my attorney went ahead and sent the california civil code notices to the different tenants. and then at the property -- so there's two flats and it shows on the 1978 plans that there's two flats and storage area down below. and on everything that i have, including the inspections and everything else, said that this was an unpermitted illegal unit and there's notes from the inspectors and everything else saying that the electricity used in the illegal unit is tapped off the house meet *er and that there is just two gas

meters. i am removing it because it's not supposed to be there. i see it as a liability in many different ways but i also have always envisioned it as a place where i can use for storage as well as a place where my kids can play. i went ahead and went to the city and after numerous visits i finally obtained my over counter permit, took me like 4 visits down there, and, you know, i waited for the appeal permit to end, to expire, before serving notice to terminate. that's what i have. >> good evening, commissioners, jamie bombard, i represent the permit holder and property owner chad doyle the issue is whether the city caused the requestors to be late in filing this appeal.

they have not cited anything in their brief (inaudible) we did provide the tenants with notice as we are required to do under the california civil code of our intent to dmraulish their unit prior to us doing so. >> are you finished? >> yes, and that is attach toad my brief as an exhibit, along with a report indicating this is in fact a nonconforming unit. >> jurisdiction requestors indicated they did not get notice, it went to the upstairs tenant. >> i can't speak to that. i can tell you i drafted the notice and instructed my office to mail it to these tenants and i have a proof of service indicating it was mailed. it's addressed to 4621a irving street. >> that was clear in your documentation. >> and i do know it was sent

out as part of a packet of other required disclosures that we must give because my client is a new owner of the property. one of those disclosures contained my client's phone number and address and i do know that the tenants received that because they subsequently mailed a rent check to my client and they were all included in the same envelope as far as i know. >> have you folks looked at legalizing the unit under the new city ordinance? >> i mean as right now i have not. right now both of the flats need extensive work. they are both at the end of their life cycles. i am going to be spending money to go ahead and bring those up to date and honestly i don't want to be a landlord. i didn't buy the property to be a landlord, i bought the property and that downstairs area because it goes out to the yard and everything

as an indoor/outdoor place for my kids to play and to have just for storage of christmas stuff. >> mr. sanchez? >> thank you, scott sanchez, permit department. this does appear to be on our records, it was constructed in 1978 as a two-unit building. the zoning is rh2 which would allow a maximum of 2 units and it would have been rh2 since 19 78. since that time no third unit would have been able to be added legally. there is a klek lift and review process for that to ensure there are certain requirements that would be met. if they do go ahead and remove the unit now they cannot restore it and try to legalize it later, they would lose that opportunity by removing it now, which would be their choice. the planning

department reviewed this, approved it, there is no bbn note is on the property at the time that we did review it, there's no notification requirement. subsequent to the issuance of this permit a bbn request was made on the property so that would be applicable for future permits reviewed by the planning department. there is pending legislation i believe at the board of supervisors that would require notification for removal of illegal units. it seems to be both a planning and building notice process so there could be discretionary reviews even filed on the requestor of illegal living spaces but that is not yet in place and not yet law. so with that i'm available to answer any questions. >> mr. sanchez, we see single family residences that are allowed, they can legalize the legal nonconforming unit, basically the in-law. the question i had is regarding the two units, so that would be, if they were to be legalized it would be a legal nonconforming

but i heard there are other things that apply when legalizing a third unit rather than just a unit to a single family residence. >> under the planning code, i think you want to talk to the building department in terms of when additional building code requirements may be triggered and if it is --. >> sprinklers. >> it may be when you go from three or from three to 4 but i would let building inspector duffy address that. >> if these people are evicted they will give up their right to have the illegal non-warranty unit. >> once the unpermitted unit is removed it cannot be restored, not under the current zoning. >> thank you, inspector duffy. >> good evening, commissioners, joe duffy, dbi the building permit

application was filed on the 3rd of july and approved and issued on the 21st of july. it did go through our intake, it went through building plan check, mechanical plan klek and we also routed it to planning, as you know. the building was reflected as a legal two unit two family dwelling. the description was to demolish kifrp enand in law unit and legalize a half bath. it appears the permit was properly issued. mr. sanchez, i heard him say there is some pending rules coming up i think about future notifications from dbi on single family and two unit buildings whenever the units are being removed, so that may take care of this in the future. that's not in yet. i haven't, it hasn't appeared anywhere in front of me where it has been brought in yet but i do know there is a lot of talk about it as dbi i'm

available for any questions. >> thank you. you know, if it looks like a duck and quacks like a duck it might be a duck so i look at a separate water meter, i look at a separate pg&e meter and that would mean to me for the number on it that says it's a separate address and that would mean it would be a separate address. and i understand from the zoning administrator that it's zoned for two units and i understand that it was permitted for two units and maybe you can educate me on something. you know, pg&e is not a random off the grid electrical supplier and yet there is a brand spanking new meter that was obviously

put in recently, significant electrical work is there. that would be -- that wasn't done by some random street electrician, that was done by somebody who is associated with pg&e. where was the permit -- how did the permit, how does a permit for that occur with a separate address? that was one question. the same thing with a separate water meter. the city department that supplies water is not a random department that brings in water by buckets, it's a real entity and that was, it was obviously a sophisticated hook up and a permit was issued to separate that as another address, i am assuming, so how does something like this happen? here are two very valid recognized supplier

of services who put in sophisticated real legal stuff and then they label it with a separate address, yet when it's convenient for it not to be a separate address, and believe me i am sympathetic to the home buyer who thought they were buying what they thought they were buying, but i don't understand -- but i'm also really sad about throwing a family out on to the street. and i don't understand how something cannot be recognized as a separate dwelling unit when two important vendors of city services or whatever have been there, permitted and installed meters. how does that happen? >> commissioner swig, that's a very good question. i am not, don't work for the water

department or pg&e. i don't know how that happens to be honest with you. >> how is a permit --. >> which permit? >> i'm asking to be educated. how does a pg&e unit which separates electrical service into a separate, into a part of a building that is recognized as a separate address by somebody because it says it, how is that permit issued in direct conflict with what the building is zoned as and in direct conflict as what dbi recognizes? >> a lot of times we have two unit buildings and we have three electric meters and three sometimes water meters. the third electricity and water is for the common areas so if they are owned separately and billed to two separate units that is the separate one is .

>> is that labeled as a separate address, that's what is making me scratch my head, that that is billed in that case as a separate address, we saw a separate address and i'm sure the occupant of that space can provide us with a bill that says a separate address. instead of a common area it would link those addresses together or the one address -- this is what's confusing. >> i don't know what permit, a pg&e permit, i'm not sure what that is. the meter would be put in by pg&e. there wouldn't be a dbi permit for an electrical permit. if it's just putting in a meter i don't think the electrical, i'm not sure if there's even an electrical permit issued for that. i don't work for the electrical inspection division. i could find that out for you, there's no problem with that, but there's the address i'm not sure if that's a legal address or not if it was sought. if

this was a two unit building on the cfc for two units, i don't know that dbi would issue a third address for that. i don't know where that address would come from. a lot of times you do see the addresses put up there by people, a or b, something like that, but i don't know that there's an actual legal address for the third unit. but it's a very good question you are asking me as well with the water department. i do see and i've said it here before, you can have multiple meters. the number of meters doesn't always reflect the number of units. i'm not saying that in any way on one side or the other here. the electrical work, obviously the work done to create the unit wasn't done with a permit. we give a cfc, that grant for storage probably got converted. it's been like that for a long long time. it sounds like with

the ceiling heights and all of the attorney mentioned a lot of the things, it certainly sounds like it's not, it sounds like there's enough room in there to make a unit if they wanted to legalize the unit is that i'm hearing if there's ceiling heights and all that kind of thing, they would need to apply for a permit to do that. >> it's just very hard for me, i know i'm going to get tripped up potentially by the law or some regulation or the zoning or that it's a two unit building, but it's just very interesting to me that since 1997 a family has lived there, it's very interesting to me that it isn't like many of the other items that have come in front of us where the electrical service is off of a 17 principal meter, where the water service is all a central meter and a central hot water

heater. this one, this one is interesting to me because clearly actions were taken to make this really, like i said , quack like a duck and look like a duck and yet -- and with a separate address and with bills that are paid by somebody at a separate address, yet when it comes time 18 years later and somebody buys the building then the tenant is given the heave-ho, unfortunately. something is kind of wrong there but i can't figure it out. (inaudible) the law. >> pg&e water department and dbi went together on all this happening. if you put a unit together and call it a unit, pg&e would flag the unit but that may not happen. i don't know enough about it, to be honest about it. maybe i could bring in the senior electrical

inspector, chief electrical inspector in here some night to explain that, water department might be to see him. you can get a meter for a unit without actually having a legal unit but i would imagine that conversation would come up as part of it but maybe that meter was put in, as commissioner honda said, for a common area and then used to supply the illegal unit, so to speak. >> i mean renters, i'm probably going on too long, but again this bugs me and i think it should bug other people, too, especially when families are being tossed from tenured places where they have had tenure, that a renter renting in good faith, understanding they are going to pay separate water bills, separate electrical bills and therefore making the assumption, which is a dirty word, unfortunately, in some cases that they are renting a legalized unit, stick

around for 18 years, are responsible renters, pay their bills, pay their rent, and then are tossed because in the process of a sale, you know, they are gone. i mean the renters don't do the same level due diligence as you and i would if we bought the building but there's something makes me scratch my head. >> i'm not here to give advice but i agree with you. >> is that it? >> thank you. >> is there any public comment on this item? seeing none, then, commissioners, the matter is submitted. >> not particularly. >> i'll start, then. as commissioner swig expressed, i particularly don't

like this placement, especially in this time that we have. at the same time we have a new home owner coming in with his family and the permits look like they were issued correctly as well as the fact that he is a new owner, the work that was done prior to this was by the previous owner. and so i am leaning towards, you know, approving, or denying the appeal. >> unfortunately i'm of a similar opinion, that the city did not err in issuing the permit and that notice was not required from the city and notice was provided to them. unfortunately their resources in terms of finding out certain types of legalities may not be as great as others.

>> commissioners? >> i said my position. again i am tripped by, i acknowledge my diatribe, my fellow commissioners are correct in their observation. it's unfortunate and also that which we have already sent to the board of supervisors which they got to take action, they have got to take action on fair notification of tenants of illegal units that are placed in this position. that's, you know, it's unfortunate. but i have to go along with this and i can't find any way to make a motion to deny the appeal. >> commissioner. >> motion to deny the appeal ocean on the grounds that the city and county did not err.

>> this is a jurisdiction request, so this would be a motion to dough nigh the request. on that motion then from the vice president to deny the request, commissioner fung, aye. commissioner wilson, aye. and commissioner swig, aye. so that motion carries with a vote of 4-0, thank you. the next item is item 6, which is a rehearing request, the subject prompt is at 333 pennsylvania avenue. the board received a letter from robert gonzalez, aplenty, requesting rehearing of appeal 15-101, jaromay and gonzalez versus dbi at that time the board voted 3-1 to uphold on the basis it was properly issue and the permit holder is ed maiello

>> i've done my homework. >> so we can start with the requestor, then, mr. gonzalez, and you have 3 minutes. >> good evening. my wife reminded me to smile. as you know the 1932 charter created this board and charged you to provide an efficient fair and impartial hearing for the residents of sfax as the last step in the city's improvement process. the chair reminded me that some 47 years ago i sat on this board and the issues seem to be the same and those years they called us the people's court because we dealt with people issues and it seems after 47 years not too much has changed, you hear people's issues and they are tough issues. it's up to you to deal

with your commitment when you come to serve on this board. as is stated in your own rules, section 5, the board is a quasi judicial body whose decision are rendered based on the evidence that is before the board in the public record. on august 26 this board voted 3-1 to, quote, deny the appeal and uphold the permit on the basis that it was properly issued and code compliant, unquote. there is no evidence in the public record to support such a ruling. you will recall that the zoning administrator, mr. sanchez, specifically told the board in answer to commissioner fung's question that the plans approved by the planning commission on october 9, 2014, were not before this board for review on august 26.

mr. sanchez also told commissioner fung that he did not know what changes or revisions, minor tweaks, he called it, were made to the april 2 plans to make them code compliant on october 9. it is an extraordinary circumstance when this board of appeals makes a decision based upon evidence that admittedly was not before it, or in the public record. it would be a manifest injustice not to be granted a rehearing on the state of the public record here and that's what i am urging. again there were no facts presented to this board on august 26 that could form the basis for this board concluding that the plans submitted to the planning commission on october 29 were, quote, code compliant. the burden to present evidence of a code compliant project was

on the developer. they did not bring plans to you that day, as you recall, there were plans given to you that day dated july d 28, some 20 pages of plans that almost verbatim the first page showed the same defebts that were on the april 2 plans. several garage doors, no landscaping in the front, entrance on the side, the very same things that were wrong with the project from the beginning. so i request that you grant my request for rehearing and let's go ahead and get the matter before you properly and you can rule properly. i believe at this time your ruling was without foundation. thank you. >> thank you, and i apologize, mr. gonzalez, i needed to make a disclosure prior. i wish to disclose that i have an existing relationship with the

law firm of rubin and junius. their representative of the entity before the board will have no effect on my decision. >> pardon me, did you just tell me you are represented in a private matter by the lawyers that represent the developer? >> correct. >> and you are telling me that you can be fair and impartial to both sides? >> correct. they had a case here before this evening as well. >> i'm sorry? >> they had another case before as well earlier in this hearing. >> well, i just wanted to be sure what you said about this case. thank you. >> mr. tunney >> good evening, members of the board, i'm tom tunney, rubinson, junius and rose on behalf of the permit holder. we acknowledge that plans that were submitted with the brief

were dated july 28, 2014. i don't believe that the appellant has presented any facts or circumstances that are new and that change the board's decision. the question before the board at the previous hearing was whether the 311 notice and the process was proper. we spent a great deal of time and that was the focus of the hearing, talking about whether those requirements were met. and in this case we submit they clearly were. the changes to the project were talked about at the hearing, we talked about the garage door, talked about the landscaping, talked about the change to the light well, we talked about the curb cut that was later shown on the plans. there's no requirement in the board of appeals rules about the approved plans being provided. the fact is that the site permit was issued because the plans submitted to the

department of building inspection complied with the code and the fact also is that this board's decision the 311 process was proper was supported by substantial evidence. the fact that mr. sanchez may have talked about different changes in the project and it wasn't -- did not describe the changes the way we did doesn't mean that the board's decision was not supported by substantial evidence. so we're available for any questions the board may have. this really is not a dispute about whether the proper plans were provided to the board but it's whether the 311 process was proper and we submit that it was. thank you. >> thank you. >> mr. sanchez? >> thank you, scott sanchez, planning department. don't have too much to add. i did

request the approved plans from the project sponsor, i received those about 4:00 today, had a brief moment to take a look at that, did see the permability and landscaping on the approved plans, plans stamped approved by the department of building inspection as well as the garage door, single garage door meeting the code requirement. planning commission direction to have the rear stairs incorporated into the building envelope, those are also on the plans. but in regards to having approved plans at the hearing certainly it does, i know it doesn't follow the board's rules explicitly but everyone, certainly it does help the commission to have that information available and i would encourage the board to look at whether or not that can be mandated, i don't know if there are certain issues that prevent that from being a requirement but definitely encouraging that of project sponsors would be great. it's an issue not only on this case but it was an issue on the 721 beach street which we had

earlier as well as other projects so i think the more that we can require in terms of having approved plans, the better. thank you. >> thank you. anything, mr. duffy? no? any public comment on this item? okay, seeing none then commissioners the matter is submitted. >> you know, commissioners, the -- as mr. gonzalez knows, the process is one where we hear a case and we render a decision the same night. we don't spend, you know, a certain amount of time afterwards, which is like different than certain types of hearing with planning where a decision is rendered subsequently. the question of being able to

accurately and comprehensively respond to the major points of an appeal or a case is one that's quite difficult to do. it's not always possible for us to be entirely eloquent in doing that. i find that an issue sometimes where i'll think later i should have said this, this and this, but it doesn't mean that the process that we go through in terms of arriving at a decision doesn't take into consideration all of the things that were stated, all of the things that were provided in the briefs. so as far as i was concerned, in this particular case the various issues both procedural and those that related to legalities and to the actual

issues with the physical development i believe were things that we took into consideration in totality. therefore what has been presented in this rehearing request has not provided anything new and therefore i can't support it. >> i concur with my fellow commissioner. the grounds for rehearing are quite strict and i believe that the merits that were presented were all heard before us. >> like my fellow commissioner fung, i did have the opportunity of getting to sleep overnight with it because i got to review the materials, i got to see it on tv, albeit on recorded, and it became very clear to me, one, that the changes had been made as requested to the plans, became very clear to me that proper notices were given as

commissioner fung talked about in the previous hearing and so i see no new material that's been presented here tonight that would cause a change in the ruling. >> move to deny the request for rehearing. >> okay, thank you, commissioner fung. on that motion from commissioner fung to deny the request, vice president honda, aye. commissioner wilson, aye. and commissioner swig, aye. that motion carries with a vote of 4-0 with the president absent. thank you. the last item on our calendar then is item 7, appeal 15-101, irving zaretsky versus the zoning administrator, the property is at 2835 broaderic

street proof a rear yard variance, replace existing rear stairs with new decks and stairs on second and third floors of the three story 3 family dwelling. and we will start with the appellant mr. zaretsky. 7 minutes to present your case. >> i'm going to split this time with my sister, so about halfway through please let me know. >> actually, mr. zaretsky, you should manage your time yourself. i don't think the staff can let you know halfway. >> no problem. board members, i am irving zaretsky, coowner of 2845-47 broaderic street and i am here to address the issue of my next door neighbor to the sought, mr. jaeger. about three years ago on a random meeting in front of the property mr.

jaeger called me over to show the renovations he was doing inside of painting, changing hard wood floors, et cetera. we looked outside his living room and i suggested to him if he wanted to create a deck similar to ours we would fully support it. we did then and we do now. he asked me if i could recommend anyone who could do the job, and i recommended an engineer who could do the deck. he went there and for the next couple years he worked with him, i was pretty much out of the picture except to get emails of different proposals that he was working on. and at that point he told us in may of 2013 that he has issued a letter to the city requesting for a variance and would he support it and would we support it and we said we would. he wrote the letter, he signed it, he left it in the mailbox of his place for me to take it, i

took it to my sister and we both signed it, as did my niece, the trustee of the trust and we submitted it to the city. the letter said that he wanted the identical dimensions and construction as the deck that is on our property. these properties are historical properties, they are on broaderick street, the lots are extremely short, they are 80 feet in length, very small back yards, and we had then received a number of emails from him thereafter showing alternatives until april 17, 2014, at which point the emails stopped. we had nothing else from them at all. on april 17th we had a chance meeting at a plumber at the property, i saw him, he came downstairs in the morning, he asked me to come up, he showed me what he had done, i thought it would look very nice. at that time we really didn't talk about the deck at all, he just

gave me the name of a yoga instructor and i was waiting to hear from her further. he said he was going to take the material and show it to our neighbor on the south and never heard from him until until 2015 a neighbor on ours wrote to me and asked me if i knew anything about what was going on with 2835 broaderick street, i said i didn't and she said she received a 311 notice. we received no notice whatsoever and we didn't receive any notice for the preapplication hearing, for the variance hearing that occurd on february 25 or for the 311 notification. i contacted the city planning department and after back and forth going about it david lindsay and scott sanchez extended the 311 notice until 3 and mr. lindsay wrote to me as indicated previously the zoning administrator has yet to make a decision on your variance

request to have a new variance hearing held. his decision is pending the expiration of the 311 notification period. we waited for the 311 notification period, at which time the zoning administrator issued his decision and never responded to us at all on what was supposed to respond, whether we were going to get a variance hearing. therefore we are before you for the first time rather than before the planning commission because there was nothing for us to appeal. we were waiting for the zoning administrator to let us know exactly what he was going to do with our request to have a variance. we did express to him what our concerns were. i should add that not only did we not receive any 311 notification, the cow hollow association didn't either and after correspondence between planning department and (inaudible) it was made clear they had no record the 311 hearing was ever sent to the cow hollow association, didn't

receive any information. at that point we appealed to you, we asked to meet with mr. jaeger to discuss what can be done to alleviate the problem with the deck is he was expected to do a 5-foot deck with a staircase enclosing. he went between 7 and 8 feet and the stairs are attached to it so it is within just about touching the property of don moorhead to the west so that the entire back yard is covered. this is fundamentally against the rules of the cow hollow association to leave the quarter back yards empty to open and public space. we requested to meet with him on june 2nd, he said he would meet with everybody but not with us and he has refused ever since to address the issue so we come to resolution. we support his deck as we did originally on the dimensions that he requested and we accepted on a 5 foot deck and the stairs attached to them. what the cow hollow association suggested is that he move the

stairs closer in to the building which is what we suggest as well. he has refused to address the issue. i will let my sister take over from here. >> i'm zeva cardos, i am owner of half the building. i have never ever goten any notices of anything. i met with my brother and mr. jaeger only once at which time he showed us some plans. it was very small type. i asked him could i have a copy of it to take home and look at it and he said absolutely not. he was very belligerent and we left the building. that's all i have known. now the deck that he is proposing to build, besides being on a very short lot, it's a 3-unit building. each one

has one bedroom and the two top ones have two bedroom units. he wants to come out in the back on the second floor and again on the third floor 7 to 8 foot deck. you can imagine that takes away all your light that comes into our little tiny garden where we have some fruit trees and we are looking at a yard of all the building between filbert and union street. our lot ends but you see all the open space, that's the beauty of cow hollow. by building these huge decks you take away all our light, all we have to look is the floor of one deck and then a floor of another deck and also his lot is higher than ours. the hill comes down. so it makes it even taller. it's not like building a large deck over the garden and taking away the garden because it's on the ground, this is second and

third floor. >> thank you. >> what i have to ask you to approve a 5 foot deck and not a 7 to 8 foot deck and to make sure that the stairs are incorporated and doesn't come --. >> i'm sorry --. >> over the yard. >> i'm sorry, your time is up. you will have time in rebuttal. thank you. >> thank ta you, we can hear from the variance holder now. >> good evening, commissioners, sydney kanolitz, project sponsor. obviously if people are concerned they would be here tonight and they are not. the deck was supposed to be similar to what the neighbor has got. the issue that came up about his deck and mr. jaeger's deck is the neighbor's

deck had spiral stairs that were permitted back in 1982 when his deck was built. today it's not permitted any more. so what we have to do is leave the landing at the top so we wouldn't be required to have a fire wall and move the stairs in to make this work. but honestly otherwise the deck is pretty well identical to what mr. zaretsky has got. i want to remind you nobody else is opposed to this and he has gone for about 3 years, commissioners, to do decks that are identical to his. >> dear members of the board of appeals thanks for letting me speak tonight. as sponsor i submitted this board to implore the board of appeals to approve the variance that has already been made. it's already taken place with respect to this small rear deck and renovation plan. no public process is ever likely perfect. however in this case the sponsor and zoning administrator have taken great pains to more than clearly

satisfy the spirit and letter of this process, especially with respect to the appellant. the appeal process started in may of this year, as you know. they asserted planning, the appellant did, that they did not receive notice of the sponsor's project and therefore we must start the whole process over again. nothing could be farther from the start. as related in sponsor's brief, which i submitted, we have worked repeatedly for several years. sponsor clearly planned the rear deck and stair renovation plan from the start to be consistent with the one enjoyed by appellant and its renters of many years. sponsor has the only deck and dilapidated stairs that is original. of particular import in this case is that sponsor

clearly presented its variance plan to all in 2013 and they signed off in writing prior to sponsor's submital. sponsor then worked with appellant for an additional 6 months more on multiple iterations for the location of the code compliant stairs and to build around the existing deck. the code compliant stairs were ultimately as far away from appellant's property as possible and embedded as much as possible under current 3 foot minimum requirements. finally on an on site meeting i snited an iteration, appellant signed off on the revised stairs prior to resubmittal again as evidenced in an email from sponsor to appellant that same day. they also verbally

approved this plan again on site. appellant brought the resubmitted plans to the meeting and said these were the last plans which appellant had signed off but now appellant had additional changes and wanted sponsor to start the project again. based on appellant's history of blocking plans, their plans are clearly ever changing. this is likely where their deck and stairs rlt only one still vacant. the house still sits vacant marchred for appellant in litigation more than 3 years after a tragic fire. (inaudible) make further mostly unspecified changes. the assertion that members of the project is patently false as appellant was clearly directed from the start and even an assertion of no formal notice cannot be affirmed. several

notices were sent to appellant and be went to his rental property instead of his address. they verbally confirmed they were directed by appellant to hold his mail. appellant was then given a special 30 day extension to provide comments to the project by the zoning administrator but no formal comments were submitted. this i surmise is likely due to the fact that appellant had already signed off on the plans that were submitted. while no public review in common process is ever perfect in this case appellant has been involved from the start and signed off from the plans prior to their submital once submitted and again verbally. the appellant has already been given 30 days to make comments and did not submit any formal comments. only after the variance was approved almost 5 months after the hearing and the appeal period was set to expire did

appellant file his notice to block the project. sponsor believed appellant's repeated approval of the plans, requestings for delays and calls to start the process all overagain are not only opb outrage us hardship but make a rockery -- mockery of the public process. sponsor implores the board of appeals to stop the process. sorry, i know that's a little bit confused but --. >> must be fun to live on your block, hunh >> yeah. i've also brought pictures to show the board all the houses on the block on both sides and the status of our project, aplenty's rental unit and then the burnt-out house on the other side. >> would you please show us those? >> especially the rear yard

photos, if you have them. >> i don't have the rear yard photos. i'm happy to refute (inaudible) but the stairs go to 6 feet from the property line. they are code compliant stairs. they are a requirement of the project. the deck under the circumstances self is 5 feet, that's all it ever was. i have a one to two foot bay window, so it's 5 feet from the bay within door. appellant would like us to build a 3 foot building width deck and would also like us to stagger back the second story deck, which would require a multi structural -- would require significant additional structural costs and it's not buildable. >> would you show us the pictures, please? you are out of time. i want to give you that opportunity. >> so --. >> as you are looking at it, put it on as you would look at it. >> this, as you can see, is the other side of the block,

broaderick street, east facing. all the houses are renovated. it's kind of hard to see here but you can see from basically this is on the left-hand side is the north side of the page, all the houses are renovated on the block. there's some multi unit buildings on the south side of the east side of the block. this is the west part of the block. and this starts here on the south side again and goes north. sponsor's house is the brown house right here in the middle. appellant's house is to the right of sponsor's right covered in trees and then it's really impossible to take pictures of the other house but i tried to take it in the third selection here. this is the boarded-up house next to the appellant's house. >> we are quite familiar with that address. >> this is appellant's house and then the other locations.

and that's from the other side, the corner house on the north end of the west side of broderick street. >> there is in the brief some reference to existing deck. >> there is an existing deck and stairs, yes. >> where is it? >> that's in the back of the house. >> in the back of the house. where is it, what floor. >> the deck runs all 3 floors. >> currently? >> currently, yes. >> your drawings which show existing conditions doesn't show any deck. >> yeah, it shows a small deck. >> no deck on your existing condition drawing. >> i'm sorry, commissioner, but i can check but i'm almost certain that they do. >> i looked at it 5 times. so my question is how -- is this a

replacement of existing deck and stair that comes under a different section of the code, the replacement of a nonconforming deck and stair, or more stair. >> well, commissioner fung, i'm looking at the plan right now and it does show the existing balcony and stair. >> would you like to show us that? >> yeah. >> is that drawing a-1? >> a-1. >> a-2. >> a-2 is what you are proposing? >> no, a-2, the unit itself has 4 layouts. there's a subbasement, that's a garage and studio, a second floor flat and a third floor flat.

>> i'm looking at a december 5th, 2013 date. is that the same date you are looking at? >> i'm looking at november --. >> it's in there, just later on. >> okay. all right, they are not appropriate to the case, the other drawings. >> i'm sorry, sir. >> i submitted as part of the brief earlier submitals to the appellant to show that i had been working with the appellant for a period of time after the code compliant stairs were determined to be required. then i just submitted that as additional --. >> your existing decks are how wide? >> my existing decks are approximately 5 feet deep and probably close to 5 to 6 feet wide. so what was being proposed was a full building width deck similar to what the

appellant has. >> you know, maybe that's why i'm confused because i think the reproduction wasn't totally accurate. all right, i'll figure this out, thank you. >> mr. sanchez. >> thank you, scott sanchez, planning department. the subject property is located within an rh2 district, the building contains, as has been stated, three dwelling units. there is kind of a shallower lot depth than typical at 80

feet. the rear lot requirement is 20 feet and the existing building wall is build out to that required rear yard line. the subject property has an existing stair and landing that go to all floors of the building so what they are proposing is to remove those stairs, keep the landings and then have a new deck build more to the south of that and the stairs that they have will be located on the south side of this away from the appellant's property and about 6 feet away from the adjacent property to the south, which is on a deeper lot which extends deeper into the lot's open space than any of the properties to the north or the proposed deck and stairs. you heard a little bit about the process of this, had a variance hearing on february 25th of this year. part of the variance notice process in addition to the mailed notice

of owners within 300 feet there's also a large poster on the property about 3 feet tall by 30 inches wide so it's a pretty substantial poster. we did have a variance hearing on the matter, there was no opposition to the project on the hearing, i intended an intent to grant the variance. subsequent to that the section 311 notification was performed in may, beginning on may 6. about 20 days into that mr. zaretsky made known that he did not receive notice or proper notice of the 311 or of the variance hearing notice. we asked him to hear what his concerns would be in response to our initial request about what concerns he had, we did not receive any concerns, it was more concern about the process, about the neat -- notice, about the hearing. we did extend the time by 30 days which is from the when the

notice went out to when he contacted us saying he did not know about the project. also at that time when he stated he wasn't aware of the project, we contacted the project sponsor. he provided a signed letter from mr. zaretsky saying he had no issues with the project. there were no attached plans, there were concerns in our mind and we felt justified in extending the notification period. we asked for comments with regard to the project, i generally understood the impact on the block open space. cow hollow ended up stating that they had concerns about the extension into the block open space, not of the deck, the deck they felt, the 7 foot 1 projection from the rear wall was acceptable but they had concerns about the stairs which were on the south side of the property away from the appellant and closer to a property which already extended further into the midblock open space than the stairs were proposed. they suggested looking at alternatives, it was our understanding that a spiral

stair would not be an option here. also given the fact that there is a bay window at the rear it's 7 foot 1, the deck projection from the main rear wall but when you have the bay window, a shallower bay window, it's about 5 feet from the outer face of that bay window, it would be very difficult to manipulate a full set of stairs in this envelope without causing further harm in somes on way. by setting it back from the side property line they are avoiding the need for a fire wall. one of the things when i first saw the project i questioned why they were doing this proposal as they are because it's, they are notching the deck so if i can show here on the overhead, these are the proposed plans. you can see more clearly here, the portion where the door is, that's existing and we are retaining it, not rebuilding it

and not triggering a fire wall requirement then the expanded deck really begins when you go further to the south away from the appellant's property. and the set back here is about 5 feet 4 inches from the side property line to the deck expansion. >> so the area of the appellant's property really isn't being changed from the existing condition? >> no. and -- so that's where we are. again the issue being, the issue came down to the stairs, it didn't seem that there was another alternative for the stairs, they put it in the best location possible to minimize any impact to the neighbors and in particular to the appellant's property and it's up against the property that does extend further into the required rear yard. i think that is all. i'll be available for any questions.

we have outlined my reasoning and the 5 findings for the variance and they are stated in the materials that you have. thank you. >> thank you. >> is there any public comment on this item? okay, seeing none, we will take rebuttal starting with the appellants. you have three minutes of rebuttal, mr. zaretsky. >> quickly, a lot of what you heard from the sponsor is not accurate. the existing stairs are 5 feet, they were supposed to go straight across the back with a 5 foot deck and add the stairs on the south side. they are extending it further into the back yard. with regard to the notification there was absolutely no 311 notification to us at all and that was confirmed by the planning department after they researched out that nothing was

sent to us at our address, we didn't know anything about the preapplication hearing or the variance hearing or the 311. in fact, for today's hearing i contacted miss goldstein. we did not receive the post card that you sent either and as we looked at the list of people that you sent it to, it was sent to the project sponsor both to the residence and to him as an owner, it was only sent to our occupants but not to us. and we have our tax records in which it says irving zaretsky, 3111 jackson street, apartment 5. this is both at the assessor's office and the recorder's office. so the process used to resolve these issues was never made available to us at all, including today. we knew about it because we are the appellant. so the question is that the notification for all of these things, when brook sampson on

blafr of the cow hollow association asked to meet and resolve this issue, he refused. and we say again that the 5 foot deck is what they asked for, what we agreed to when we sign on to the variance and this has not been extended with the stairs going all the way to mr. moorhead's house. the stairs can be brought closer in, our deck has the exact same bay as he does exempt our bay is square. it's a 13 inch protrusion into the deck. the same thing as his, it's a 13 inch protrusion in the back. these are narrow balconies, they are unique because the lot is so short and once you start to build into the lot we lose the open space that we are entitled to have and that cow hollow wants to have. we are requesting once again that he remove the stairs closer to the building and make it a 5 foot deck as was originally intended by him when he requested the variance. it was not an 8 foot

deck. thank you. >> thank you. >> we can take rebuttal from the variance holder. >> we have no time left. >> was there any time left on the clock? there was 30 seconds. do you want 30 seconds? okay. can you set 30 seconds? would you let us know when 30 seconds have passed. >> i'd like to say it happens in all these cases. you allow something in detriment of the neighbor next door, a year or two later, those people sell. the building remains the way you allowed it. i've seen it time and time again. asking you to leave us with some sunlight and do a 5 foot deck and not a 7 and 8 foot deck. mr. jaeger always said i'm going to spend money, i'm going to get the biggest deck that i can. this is not right. >> thank you. we can hear

from the variance holder now. >> dear board of appeals, members of the board of appeals, sorry again to be (inaudible), there's a lot of inaccuracies with regard to the case. i think that regarding the 311 notice, as soon as i heard about this, i checked with the noticing service. they immediately reconfirmed all the addresses that were submitted so they confirmed that the data base they used was correct and sometimes pricing does change from what i've learned, pricing does change in the noticing in the data base pretty regularly but other certain aspects do not. we went through the appropriate notice process, that was confirmed. the addresses were confirmed, we used an appropriate notice provider and they used an appropriate data base. there is potential he did not receive notice but he was given an additional 30 days to comment and did not comment. in addition he had been

involved from the beginning of the process very clearly and the sponsor puts forth a set of plans were shown at the time the letter was signed. there's no way anybody would have signed an approval of a deck without a set of plans and if you check the original submital dates i think you will see that. so in addition for the cow hollow association, i reached out to brook many times, i'm happy to meet with her as well as anyone in the association. i take this responsibility very seriously of historic preservation. i restored the white oak floors in the house, i restored the plaster walls, i even restored some of the windows. there's nothing i would do against that. but there's just a tremendous amount of nit picking and i think there's an abuse of the public process. but again i have reached out to brook and what she told me in emails was that her main concern was getting resolution with the appellant and the sponsor and when i met with

irving at that time on june 2nd and he had brought the plans that he approved prior that were resubmitted and said these are the last plans i approved and what did you submit since then and we couldn't get the planning submital material because the original structural material on the project wasn't able to put the details in place that we needed. there was a recommendation to bring in an architect which we did and that's why i took an additional 6 months to get through the process. there's no scheming or anything from our perspective but again i reached out to brook but again her view was that it was primarily her main concern was in reaching agreement with the appellant. also our other neighbor who indicated concern for the open space. as part of the preapplication meeting one of the neighbors commented about the railings and we're going to upgrade the railings to make them glass and use as light material as possible, not the

plywood and decking, to make it as light as possible. so we did take it very seriously. >> any rebuttal from mr. sanchez? no? okay, unless there are questions for him, commissioners, the matter is submitted. >> based upon all the discussion that has occurred i would have thought there was a dr case, not a variance appeal. nobody spoke to the variance. the question was whether one side was right or the other side is right, versus was this variance justified. i don't know whether i want to take that on because nobody seems to care, you know. the fact is both sides support

a variance. the da supports a variance. i'm not sure i support a variance. >> it wasn't brought up. >> i'm not sure what's before us any more. . >> i feel the deck has been vetted. >> may i say one last thing? part of the issue is the notice that -- using dimensions. five feet is the dimension with the deck at the top floor, third floor. that's measured from a bay that sticks out. >> a foot and a half, yeah. >> and the floor below that second floor is going to be wider, it's closer to 7 feet. just to make sure everybody understood that. >> so although the appellant has pointed out that there was a flaw in the 311 notification, i think he has had adequate

contact, more than adequate contact with the project sponsor and the fact that i almost feel this has been over vetted. i am in the opinion of denying the appeal and upholding the permit. >> no comment. >> commissioners, just as a reminder, as commissioner fung stated, this is a variance and your task is to decide whether or not the 5 findings under planning code 305c have been met or not. >> you know i'm a hard case on variances. >> yeah. >> but i do feel that one is a little bit different because if you look at the ones that are more specific to the property because these quite clearly are

always very general, i've said that, i don't know, hundreds of time. but the one that strikes me is that a property right that is given to adjacent neighbors that you don't have and i think that strikes me quite heavily in this particular case. the one that doesn't strike me so generally is the last and most general one is the question of general plan. filling in the rear yards i don't think is the general plan's desire. >> so what are our choices again? >> if you want to deny the appeal and uphold the variance you need to state that's your intent and it's because the 5 findings have been met and if you want to grant the appeal and overturn the variance then you need to state a reason why you do not believe the 5 findings have been met. i

figure attorney wolf will say that better and more ak raitdly. >> you can modify the variance as well but then you'd also have to find, state why you think the 5 criteria still met with the modification. >> i will make a stab at it. i will deny the appeal, approve the variance that the 5 criteria have been met. >> okay, thank you. so from the vice president then is a motion to deny the appeal and yul hold the variance on the basis that the 5 findings under planning code section 305c have been met. on that motion, commissioner fung, aye. commissioner wilson, no. commissioner swig, aye. okay, with a vote of 3-1 and one absence, that motion carries and the variance is upheld. and there is no

further business. >> we are adjourned. thank you. (meeting adjourned).