and calling in first all star six seven, then the phone number. listen for the public

comment portion for your item to be called and dial star nine, which is the equivalent of raising your hands so that we know you want to speak. you will be brought into the hearing when it is your turn. you may have to dial star six to unmute yourself. you will have 2 to 3 minutes depending on the length of the agenda and the volume of speakers. our legal assistant will provide you with a verbal warning 30s before your time is up. please note that there is a delay between the live proceedings and what is broadcast and live streamed on tv and the internet. therefore, it's very important that people calling in reduce or turn off the volume on their tvs or computers. otherwise there's interference with the meeting. if any of the participants or attendees on zoom need a disability accommodation or technical assistance, you can make a request in the chat function to the board's legal assistant or send an email to board of appeals at sf gov .org. now the chat function cannot be used to provide public comment or opinions. please note that we will take public comment first from those members of the public who are physically present in the hearing room. now we will swear in or affirm all those who

intend to testify. please note that any member of the public may speak without taking an oath, pursuant to their rights under the sunshine ordinance. if you intend to testify at any of tonight's proceedings and wish to have the board give your testimony evidentiary weight, raise your right hand and say, i do. after you've been sworn in or affirmed. do you swear or affirm that the testimony you're about to give will be the truth? the whole truth, and nothing but the truth? i do thank you. if you are a participant, you're not speaking. please put your zoom speaker on mute. so item number one is general public comment. this is an opportunity for anyone who would like to speak on a matter within the board's jurisdiction. but that is not on tonight's calendar. is there anyone here who would like to speak on general public comment? okay. mr. bruno. apologize for not dressing up because we all rushed here to get here. but thank you all for allowing me to in public comment. um say something about. board of appeals processes. um,

i've looked at other notices of appeal. notices of decision rather from this board, as you all know, because you're the experts. there have been many that say things like upheld on the condition that they be revised as follows. the tree shall not be removed. the bureau of urban forestry shall inspect the trees annually. um, there's another one from my neighborhood that's even more complicated because it asks somebody to reinstall a light. well, that simply a light. well, that didn't have permits to be obstructed with in some way. and yet in three hearings that i've recently, um, attended at this board, i feel that the city attorney and the board executive director has commented on policy without being asked by the commissioners. so we have a commissioner system. i'm somewhat familiar with it because i was the director of the. graffiti advisory board,

and ed lee, who was then administrative, um, the administra chair for the city, the city administrator kindly offered to do what director rosenberg was doing for us here. and even though it doesn't sound nearly as important as the board of appeals, the graffiti advisory board was very conflicted about how we should people really be arrested and if so, by to what degree? the city attorney be at that hearing for us. we had a city attorney and the effective executive director, ed lee, were very restrained in what they said in public during the hearings. and yet, in two hearings that i attended here, you all commissioners unpaid. thank you for your service serving the people but not employed by the city or stymied. i believe very directly in very simple things, much simpler than what you've done here. we want to write a letter. what was said on one point? we want to write a letter or include this language to the

building department. i know you were told by john gibbon or gibbons, i apologize, mr. gibbons of the city attorney's office. there was a long argument, a long discussion ensued. and my point is simply, he never suggested why it was illegal or it had anything to do with the law that a letter should not be written or it should not be included as part of the nod. and you all ended up going along with him, which is fine. 30s and um, the same thing happened two weeks later when i came back here to say the action suggests by this board to the department of building inspection had never been done. you all then were going to write a letter, and your executive director said, no, no, no, that's not necessary. but again, i believe and i have a request into david chiu, his office. i believe i'm right in saying that neither either party, neither one should have commented on that, because they were policy. thank you. that's time. thank you, thank you. is there any

further general public comment? please raise your hand and i don't see anybody on zoom. so we are moving on to item number two. commissioner comments and questions. and we have commissioners any comments? question. oh we first any comments and questions. then we'll move on to the agendized item. no okay okay. so uh under item two uh discussion of possible action on september 27th, 2023, the board heard appeal number 20 3-036 at 472, 474 and 476. union street and 15 nobles alley. the board voted 5 to 0 to grant the appeal and issued the permit on the condition to be revised to require that the three units in which work was to be performed have their unit addresses listed on the permit. the board further recommended that dbe inspect the three units and, with the consent of the property owner, dbe, inspect the remainder of the building. on october 4th, 2023, dbe reported back to the board via email that the

inspection of the property had been completed as requested by the board. on november first, 2023, and no. november 15th, 2023. mr. bruno appeared before the board during public comment and stated that dbe did not inspect the remainder of the building. mr. bruno also submitted written public comment on this issue at the request of the board, dbe submitted a written response dated december 4th, 2023 to mr. bruno's allegations. this letter was summarized by matthew green, deputy director of inspection services at the december 6th, 2023 hearing. mr. bruno also spoke about this matter at the december 6th, 2023 hearing. commissioner trasvina requested that this matter be put on the december 13th, 2023 agenda so that the commissioner could engage in a discussion about the issues subsequent to the hearing on december 6th, 2023, president swig through the executive director uh, asked dbe to inspect the property prior to december 13th. the commissioners will discuss these matters and may ask mr. bruno and dbe to address questions and provide an update on dbe a's inspection.

okay. um. thank you commissioners. we can we can chat about this item as you wish. just want to set some ground rules. first of all, is the first time, um, since i've been on this commission, which is a while that we've ever had an agenda item on comments, questions, comments, commissioners comments, questions. so this is a first. welcome to the first, um, second of all, this isn't a formal hearing. uh, there can't be any formal in that. there won't be a called question at the at the end. um, and, and, um, so there's no motion. no motion will be asked for. no motion. uh, will be made. so um, it's really a discussion item as to whether, um, what we wanted to achieve was, uh, achieved, moved in front of you just for the, you know, it by just for the, uh, knowledge of the public. um,

we, um, we have a public comment submission from mr. bruno, who we just heard from. uh on his version of the inspection. uh, mr. green, uh, and this is a public information, uh, sent us a recollection of his, uh, trip to the site and, um, and so that's, that's on the record. so the, uh, the request which is made by the commission, was a, uh, was recognized and completed, um, and commentary has been received from both. both parties. how would you like to proceed? i'd because that's basically what we, uh, should we be what items would you like to discuss around this? what have we learned? um, i think for one one thing for sure, uh, we have raised the profile of this property to the department of

buildings and so i'm sure they are now aware of the issues noted by both parties on this building. so we don't have to discuss any of that. what would you like to discuss or we have the option of just saying we've achieved what we've achieved. um, mr. eppler, shall i start with you? if you care to comment ? if you don't, we can pass right down the line. thank you. i think that, um, you know, the one question that i have is, you know, kind of gets to what we had requested in our original hearing in the matter. and that is, you know, i it's still somewhat uncertain to me whether or not the full building has been inspected for illegal plumbing work. and if any illegal plumbing work has been found outside of the three units that are are now on the permit for plumbing work. um, i that's seems very nebulous to me. i don't know if that's an appropriate question for the department of building inspection at this time, but,

you know, i certainly would like to ask mr. green that if you'll let me, it is appropriate. and that's why we amended it. mr. green, please welcome, uh, good evening, commissioners and matthew green representing dbi. um, no, i we tried to inspect, uh, unit number three for mr. bruno. um, mr. bruno, uh, directed me to unit number two. um, i'll say that the tenant there was very, very, um, reluctant to let me in at mr. bruno's direction. um, there's i know there's definite tension there, so i was very awkward. i didn't want to force myself into that apartment. but to answer your question, we've looked at the first three front three units. the inspectors have looked at the. the stairwells where the plumbing is. but we have not done a full inspection of mr. bruno's unit or the two

units below it. so so it's still possible that there is, as of yet undiscovered unpermitted plumbing work that would require remediation and be subject. yeah it's possible, yes, but i would say we're we were hoping to have the owner present at the meeting on monday. mr. bruno requested that he not be there. so we still need to do that. but regardless of the circumstances, i mean, the core nucleus is the safety and the weather works been done that's not permitted or not. and so, you know, we're going to have to get through the circumstances somehow in order to ensure that happens. but i do think that that was the direction of, of this board. okay any other commissioner, alex wood, you know, jose would you like to further comment? i think the only thing that that i would add is based on the, the, uh, the communication that we received, uh, from mr. bruno, it's, it seems like there was, uh, some kind of, uh, you know,

potential acrimony or or, uh, conflict that, uh, which prevented the dpi inspector from from entering the, the premises. and so. um, i mean, just. a suggestion. i think we should keep keep trying to do this inspection. and if it means as, um, you know, trying to find, you know, other representatives from dubai to be present or to be, uh, emissaries to the, uh, the building. that's just one, uh, idea that comes to mind. but i do think that we should keep trying to get into the unit to do the inspection. um, first of all, mr. green, i'd like to thank you very much for taking, uh, taking the time and effort to. i know somebody might comment. well, it's his job. i don't i, i know it's a special opportunity and i want to, uh,

extend my appreciation for you showing up and doing your best to make the inspections failed or not. uh, and thank you for your patience through this effort. um last week, i think i asked about accountability. um now, um, can you just for the record, go down the laundry list of, um, of things that you are that not you dbe will hold the owner accountable for and would you please be redundant? probably to last week and tell us, uh, uh, what the laundry list is, how the accountability for that, um, that laundry list will, will manifest itself and, and if you can. it may not be possible. uh give us a timeline, um, in case at some point we want to check back in which. we

may or may not do because this is really getting way out of bounds for this. uh in my view, way out of bounds for this board. but could you just talk about the items, the accountability and the resolution of these as you as you can? are you referring to the notice of violation against the property? everything that you have noted written down, that is in the nov world or anything that you might be aware of that may go into nov world? sure. well we have uh, at the moment, i believe there's six notices of violation. um, uh, three have been referred to further, uh, the director's hearing as i discussed last time, we have one order of abatement issued, um, two, i believe are pending. there's three other complaints that, um, if there's not compliance, they they will be referred to, uh, hearing as well. they address the plaster removed from the wall down in the garage and the storage separate notice of violation for the storage in the

garage. um, it's, you know, it presents. a fire hazard. it needs to be removed or sprinklered. um, those cases are going forward. um, the plumbing permit. we do have a valid, i believe, a valid plumbing permit for the first three units facing, um, uh, union street, uh, that will be inspected as as, uh, the contractor will perform the work and request us to inspect as necessary at not as necessary. he'll request to inspect at different stages of the work. um, we'll be sure that it's done to code. um i will maybe i'm going to ask the chief plumbing inspector to try and do this inspection. um, i believe that he has a, uh, he knows mr. bruno. hopefully they'll be a little more, um. well, i haven't seen mr. bruno's comments on the inspection, so i don't want to comment on that, but hopefully it'll be a little more fruitful. um is there anything i'm missing or i, uh. and there are

penalties associated with, uh, associated if the owner does not choose to pay attention to your notices of abatement or a violation. sure. it just goes through the normal code enforcement process. now, there's going to be, um, an assessment of costs attached whenever there's an order of abatement placed on it. any work done without permit will require a building permit with a penalty assessed to it. um, the work in the garage is removing the items from the garage that doesn't require a permit. but if it goes to the order of abatement stage, then the assessment of costs will be added to the owner's bill. okay when was the first time, uh, an. and i honestly don't remember. i'm sorry. when was the first time that we had this building on our agenda? uh, way back when a couple of years. it was a pre-covid or was it during covid? i believe it was pre-covid, about a, um, i believe it was about the unit,

the unit they want to add downstairs off the garage, similar to the case we heard. so, so that unit, as we have observed has not. well, it's not a unit just as that area of the building. sorry um, thanks for asking me to rephrase that. um, that area of the building, um, is in the same condition, uh, as because we've seen we've seen pictures and none of us have inspected us. um, that unit in the building has not been touched, according to the photos that we've seen. and i guess you witnessed the same, uh, since that time, which we're now moving on somewhere between on, uh, around four plus or minus years. so, uh, does does this does this body have to check in four years from now to find out that that condition will still be in place because we have an owner that doesn't choose to pay attention to what what is asked

of him by, you know, uh, by folks who have some level or or are we going to or is mr. bruno going to see as a resident of that building that situation, um, taken care of? well it it has changed because they took the plaster off one of the walls. the that was one of the big changes. yeah um, i apologize, i didn't look at the previous case. i think they were trying to legalize or add a unit there. um, i don't think there was an order to change the area. they just. you just decided not to allow the unit? yeah i don't know. i don't know what the. you know, when somebody cuts a hole in a wall and changes the, the. well, yeah. so the infrastructure of the, of the building without a permit, i don't know the level to which. and we, i forget what we ruled on it, but i don't know whether they're supposed to return it to original condition or they can

leave it as a hole in the wall, so. well i apologize. i don't know if that plaster was removed the previous time you heard this case. i know we have a notice of violation from december of 2022 for that plaster removal that that needs to be replaced with a building permit. yeah and the penalty attached to it. so, uh, back to timing. um uh, that whatever happened then didn't have much effect other than the fact they never complete the, the, the space and made it into a unit. so it's still a space. um, but it's still the construction results with the construction and seemingly no cure or return to original condition has been done since now for plus or minus years. so how how long, how long until these noves and other, uh, items

will will be dealt with? is there any way that you can you can say no, no, i'm just saying we're using the tools we have. it's still up to the owner to get off his, his his butt and do the work. yeah. so it's still unknown part of my leg. and is there any so that we don't have mr. bruno being frustrated as he has been several times in recent weeks in front of us, and i feel his feel his pain. um, how do how do we prevent mr. bruno or kind of help mr. bruno from not being frustrated? or is it really simply an owner who he has to take the sybil into a civil situation because we're we're out of our we're now out long out of our our decision making process on this. well like i said last week, we'll we'll go through the steps we have, uh, after orders abatement, we can refer this to the franchise tax board and we can refer it to the city attorney for litigation. um, i know it's dragging on. i you probably won't like this, but it

doesn't seem to rise to the level of city attorney litigation just yet. but if it drags on and on and on, right. i can refer. i'm sorry you're in the middle of this. and i really don't want to characterize this as shooting the messenger. and we i try not to. so just it's nothing. it's just it's a situation. we're here to help. and i understand the if there's an illegal action which there seems to be. well there is a legal an illegal action because there's no violation. so you know, we're just trying to be supportive of the citizenry. just unfortunately have to be the messenger that that gets right in the middle of all the stuff that goes back and forth. so um, just trying to figure out for the citizens, um, how we are moving forward with the code enforcement. process for all the existing notices of violation, i'd be happy to, um, update the board monthly to see where they're at. if you want something like that at some reasonable time, we may ask you to step back in or. or if mr.

bruno comes back in a couple of months in in public comment, which he can do. uh, that not related to a case on the agenda, then that may call it to our attention again, and then we'll have to get started all over again. so and just, you know, they'll they'll need a building permit to fix that wall that'll be an appealable permit. and mr. bruno doesn't like that permit. i'm sure mr. bruno will be in front of us appealing it. so there you go. there is a system. uh, mr. lundberg or, uh, mr. lundberg. sorry. thank you. uh, i, i have a fairly discreet question, and that was in regard to a distinction that mr. bruno made in an email today regarding , uh, building inspectors versus . plumbing inspectors, specifically. and so just to help me understand, are those different divisions within dubai or different sets of inspectors, i guess, is the they are different divisions. uh, san francisco's unique jurisdiction. we have separate plumbing inspectors, electrical inspectors and building

inspectors. okay. so and was the plumbing inspector present at the visit, the most recent visit? uh, senior plumbing inspector bob farrell. okay. oh, that he's the plumbing inspector. sorry i missed that fact. okay. thank you. that was it. anybody else? well thank you. uh, thank you very much again for going out, making the inspection. thank you for following up on the request of this body. and hopefully everything will be resolved to the, uh, mr. bruno's satisfaction and the building will be made legal and whole again. i appreciate it. thank you very much. um, we need to call public comment now. is there any public comment on this item? no. mr. mr. no no questions, but this is the public comment portion. if you want to. who's deciding whether the request they just said. is president swig just said is there anything else. and no one answered. so we're now moving on to public comment. would you like to provide public comment,

sir? thank you. you have three minutes. mr. green has come here before and said in no uncertain terms, and he used this word that he views plumbing permits as ministerial. they're not ministerial. there's no cutout in the law for plumbing or electrical or building or housing. they're all part to get to. mr. commissioner lemberg's question. they're all part of the same picture, which is the building code. there's some overlap, but there's no exceptions made for plumbing. and yet when i went to the plumbing inspector originally, who happened to be mr. farrow, he did not want to let me speak. this is about four months ago, and i wanted before i even filed a and or complaint about this. he didn't want to let me speak to mr. pinnell, the head of plumbing, but i went around him finally and was able to speak in person with the head of the department. there's no ministerial cutout for plumbing. so when mr. green just told us

we're using all the tools to fix all this, that's not quite true. if you read the chronicle, there's a new law from hillary ronen. aaron peskin passed unanimously by every single board member last year. it went into effect in june. it's now part of the building code. the expanded compliance control and permit review act of it says, of 2021. but it went into effect last year. that basically is a perfect template for what is occurring here. ongoing noves a landlord who seems to not be respondent responding. at all. as christine dang has said in her comments in the housing inspection tracking system. fifth, fifth, fifth time in. mr. bousquet has not met with me. it's not asked to meet with me. it's with your own, our own inspectors and to go back. to

what occurred in on monday. why is the board and why is the department of building inspection asking the tenant supposed, oh, can we have the owner come? they don't need my permission. that's the silliest thing i've ever heard. he can come whenever he wants. he can come now. he can come tomorrow with proper notice. but i've had people come and yell at me in my apartment. i don't like that. and when the last director's hearing we went to with cheryl rose, she's a electrical inspector. she was there for the housing inspector inspecting, uh, abatement hearing. 30s and they the owners on the phone. constant interrupted her as they did right in this very room from this seat, mr. morgan. thomas, if you go back and look at the hearing video, you cannot understand what's being said because he's sitting here yelling at you all five of you were here that day and you all responded. there's no way to even know how that part of the

decision was made. so i don't like people yelling in my apartment. that's why i, i said that, but it's not up to me to have the time. thank you for your time. thank you. is there any further public comment on this item? commissioners, any, um, any. oh sorry. we have one more. hi. my name is, um, maria bugarin. i'm mark bruno's girlfriend, and i was there on monday when mr. green and mr. ferro came. and when they got out of the car, mr. ferro was so angry, and i even said they were just angry. i said, mark, why are they so angry before we even got to the apartment? uh to mark's apartment? they were angry and i didn't. i'm like, why are they acting like that? so i'm just i didn't come prepared or anything. i just want you to know that it wasn't mark. it was they were the angry ones. they were yelling. so that's. what happened. okay thank you. is there any further public comment from this item? okay. seeing none. um, uh, just

one further note, commissioners, is, uh, is there any initiative that. further initiative that we should take to, um, to revisit this item or should we leave it to, um, the public that would probably be mr. bruno to call it to us. our attention, a reasonable period of time. should the noves or anything else not be, um, handled to his satisfaction. feedback, please. um my feedback on that question is that there as mr. green stated, there are several open notices of violation. um, and, you know, i it's i'm not going to make an opinion here, but, you know, if, if it is appropriate for the city attorney to take action on this property at some point, i, i hope they will. but but, um, being as we this body does not have any power or jurisdiction to really do anything further in this case, um, you know, i don't i don't think there's any

further action that we can take, frankly. um, it's not even a matter of should. i think it's can, um, there's no, there's no future vote to take. there's no no further action. and i, you know, i, i personally feel satisfied that mr. green is representing the department of building inspection and what's been going on in this, and i'm not sure what, uh, what benefit is there to be gleaned from our this body's continued supervision of this? but that's just my opinion. so thank you. any contrarian views on that? all right. i think i think we have a direction and we have, um , heard this item. okay. as agendized. thank you. so we are now moving on to item number three, the adoption of the minutes. commissioners, before you for discussion, possible adoption are the minutes of the december 6th, 2023 meeting. commissioners any comments? do i have a motion to approve the minutes? so moved. okay. is there any public comment on the

motion to adopt the minutes? okay. seeing none. um on vice president lopez's motion. motion to adopt the minutes. commissioner lundberg i commissioner epler i president swig i so the minutes are adopted 4 to 0. we are now moving on to item number four. this is the rehearing quest for appeal. number 20 3-04 for subject property at 223 anderson street. mary jane galvez. so the appellant is requesting a rehearing of appeal number 20 3-04 for decided november first, 2023. at that time, upon motion by vice president lopez, the board voted 5 to 0 to deny the appeal and uphold the permit on the basis that it was not that it was properly issued. the permit holders are david kulum and elizabeth elizabeth d. appeal. the permit description vertical addition to add new suite with bedroom, bath and closet. new connecting stair, new windows at rear. new window at existing front facade. resurface existing entry stair and replace guardrails. remove existing bathroom at existing

primary suite and convert into a family room. this is permit number 2022, ten, 27, 53, 36 and we will hear from the requester. first, miss alviso, you. have three minutes. i wanted to start first. and if you could adjust the microphone, please, so we can hear you when you get a chance. overhead, please. um, i asked for the rehearing. uh, because, uh, point of point of information. i think the timer is off, but i just reset it. you could go ahead and miss alviso if you could just speak into the

microphone, that would be great. i okay. i asked for a rehearing because i think that the decision that was made was so decidedly negative and didn't really look at the core, uh, uh, subject that i was raising. and so i wanted to start off with some photos. so it's very, very clear as to the damage being caused to me and the loss that i will suffer. so this is my house. it's the red one on, um, and, um, what you'll see in the break between both homes, you can't see it very well, but but, uh, is the fact that there is a single window on the north side of my house, a single window? so let's look at it from the inside up. uh and that's myself and. and a neighbor sitting in the kitchen. and you can see it is a very oversize window. it is really it really makes the kitchen the heart of my house.

and it's the reason why, 30 years ago, i bought this home. uh, so let's, uh, so to give you an idea, the last photo show that the photo that you had seen, uh, from the neighbors was completely wrong. they only showed the lower half of the view out of my window. so you can see i do have a sky view. i do, and out of that, i get to see the clouds. i get to see birds wheeling in the sky. i get to see, um, the changes in the day from dusk to dawn, from dawn to dusk. so what would it look like if it was covered? if it was blocked out? that's what i'm going to be looking at. basically when that structure goes up. so i'm going to go, um, up. i'm going to go on real quickly up. and uh, hold on. i

paused the time. oh, okay. good, good good good grief. where is this? uh, close this real quick and just go back to, uh, what i had meant to say and that and that is this, you know, gentrification is really the core of what i'm talking about. and um, i, i question how the department, the planning department could call a community meeting with just the neighbors and one individual being there at community meeting. moreover i felt that i had just cause to not to not have been, uh, to not have attended, uh, that meeting at and uh, but nevertheless, i think that in every decision that the city and county makes that the principles of inclusivity and equity are, are, are, um, that there grounded in those principles. and i felt the

last meeting it was basically just a checklist. um, i want to say very quickly that i came here because i want a resolution as well. and i feel that the resolution that needs is, is that it? and um, is this that i be afforded, uh, a sky view? and if it's not going to come from that window that it come from overhead. so i'm asking if there is a process that that's time. okay. okay. thank you, miss, could i just from finish real quick uh, that that i, that i be compensated, that there be just compensation for a skylight? your time is up. thank you. okay, so, commissioner lemberg has a question. thank you, miss kelly. so i had a couple of questions. number one, can you show us the photo of the sky again? because we couldn't actually see the full photo. uh, the photo of the where you were

showing the sky view. we couldn't actually see the sky in that in on our screens. at least . oh, i see okay. right yeah, i. i'm so bad at this. okay, here it is. um, it is this. that's it . so can there we go. yeah. so you can see not only the view but the natural light that comes in into. and that's what i said. that's, you know, that's the loss that i'm going to be suffering. and i'm feeling like what's just compensation? what is it? can you show us the next two photos as well? okay okay. that's it. and that's the one

where, like i said, the view being blocked and just to refresh our memories, they're building something on top of the roof. is that exactly? the permit is, is to build a second story and that's going to completely block. and that's why i'm saying just compensate is a skylight out on my house. i mean, i shouldn't feel like i'm totally being robbed of a sky view. it's just not it's just not fair. it's not equitable. um, the one other question i wanted to ask you, miss alviso, is in your brief, you mentioned, uh, you mentioned how, uh, a permit applicant presenting a or conducting a pre-application meeting can pay to have it in the planning department office, but your neighbors submitted documentation showing that the pre-application meeting was, in fact, um. at at your at their

house, um, at on anderson street. i was not made aware of that. like i said, they never directly, uh, spoke to me, and i believe i received the notices as mailed. okay but there is. but like, i said, there had never been any direct communication up until, uh, the permit was issued by the neighbors. it never knocked on my door. they never came and spoke to me. okay not once. um. and of all the neighbors, i'm the one being impacted. but you're saying you did receive the pre-application meeting notice, correct. a pre-application notice? yeah. the notice that the meeting was to be conducted on. i'm not looking at the notice itself, but on whichever. no, i did not. i did not receive a notice that

said the meeting was being held at their home. um, no. okay. my the one that i, i received my understanding that it was at the planning department. did i get it? did i get it that wrong? i mean, that's why i called do you have that document? because i would be very curious to see it. but the. you didn't submit that document and your neighbors did. and their, their says that the meeting addresses at 223 anderson street. um or you get that no. that's why i called the building inspector. okay um. thank you. okay. thank you. you can be seated. we'll now hear from the permit holder.

good evening. commissioners. i will keep it short. i don't have much more to say than what i've provided in the brief. um, i don't believe sky views are protected by the building code. so i just wanted to state that otherwise, i'm available for questions. i just believe i followed due process entirely. okay. thank you. i don't see any questions at this point, so you can be seated. we'll now hear. you can be seated. thank you. we'll hear from the planning department. good evening commissioners corey teague planning department i also don't have much to add. um, the issues raised tonight, um, seem to be issues that were raised in the original hearing. i didn't myself hear any new information or different information that wasn't already kind of addressed and considered, and, um, kind of fully considered before the original decision was made. but

i'm available for any questions you may have. thank you. we'll now hear from debbie. nothing from debbie. okay. is there any public comment on this item? please raise your hand and anyone on zoom. i don't see any public comment, so commissioners, this matter is submitted. jose, let's start with you. sure um, point of information. can you remind us of the standard of review for rehearing requests? uh, it's except in extraordinary cases and to prevent manifest injustice that warren may grant a rehearing request only upon a showing that new or different material facts or circumstances have arisen when such facts or circumstances, if known at the time, could have affected the outcome of the original hearing. thank you. um, i think with that in mind, i. i agree with, uh,

mr. teague's character that, uh, i don't see material new information, uh, in in the briefing, uh, or in tonight's comments. that would, uh, that would lead us to, um, to rule in favor of a rehearing and i'd, you know, with respect to the, the manifest injustice prong, you know, i think what what we have to keep in mind is that that views aren't out, uh, protected. right. in san francisco. and so if, if the, the, the project otherwise complies, uh, complies with the planning code with the building code. um, you know, i do think that we have to, uh, stand by,

uh, the project on that basis, and it it certainly in my mind wouldn't rise to the level of manifest injustice. that's, uh, to, uh, to, to make a rehearing ing, uh, appropriate in this case. so with that in mind, i'd, i'd be inclined to, uh, deny the rehearing request. um, i, i rather unfortunately concur with vice president lopez. i respect you, mr. alviso, and i respect you coming back and trying to seek justice for yourself and your home. and i do, you know, and i feel for you in this situation. and at the same time, we as a body are held to legal standards. and that's what we have to decide cases on, on um, and uh, as vice president lopez just said, we, you know, views are not protected under the code. and we have a case later

this evening that actually deals with exactly that issue. um, but but, uh, in, in a different way. but ultimately it currently under the code, under san francisco planning code views are not protected. period. and, you know, i'm not saying i agree with that. i'm not saying that's the way it should be. i'm saying that's what it is. and because of that, that, um, and the fact that i don't think any real new evidence is being presented here , i don't think we can, uh, grant the rehearing request on, on that basis. um, but but, um, much respect to you and i, you know, uh, i think we align on a lot of things, just not, unfortunately, on the legal standard. necessary to grant your request. uh, that you're bringing to us tonight, commissioner eppler. uh, thank you. i you know, i agree with, uh, commissioner lindbergh, commissioner lopez. um, i, i do have, uh, some sympathy for the loss of the, uh, rehearing

requester, but but, um, unfortunately, you know, i think we took a little bit of umbrage with the photo that was, uh, presented to us by the permit holder because we could see that it was not not perhaps great and accurate. and so, i mean, i think we fully considered all of the facts that have been presented to us tonight, and none of them, um, you know, give rise to the manifest injustice standard. uh, commissioner lopez, would you like. to make the motion, which i anticipate and which i will support? uh, i, i do i, i move to deny the rehearing request on the basis that it, uh, there is no manifest injustice, uh, nor or, uh, material fact to support a rehearing. okay. on that motion, commissioner lamberg, i commissioner eppler, i president swig i so that motion carries 4 to 0 and the request is denied. we are now moving on to item number five. this is appeal

number 23. dash 047, tom metz versus the zoning administrator. subject property 51 prosper street appeals the issuance on september 25th, 2023 to tom metz of a reasonable modification decision. the proposal is to merge two dwelling units, units two and five, at the subject property by constructing an internal staircase connecting the units and removing the kitchen and unit five. the kitchen and unit five would be converted to a bedroom. the zoning administrator allowed for the construction of an interior staircase connecting units two and five, but did not authorize the merger of the two units or the removal of the kitchen. in the reasonable modification is valid only for the period that there is a qualifying disabled occupant. this is case number 2022 011807, and we will hear from mr. metz. first, welcome .

and mr. metz, i understand that at some point you would like alec to show the plan. so just let us know when we can put them on the overhead for you. okie doke. thank you. okay. thank you. so welcome. you have seven minutes? yeah. there's to be four. and after that came. yes. thanks uh, director rosenberg, members of the board, mr. longway. thank you for the opportunity to present my appeal . my name is tom metz, and i own 51 prosper street with my husband, david brightman. we live in apartment five. we bought this property in this location specifically because of my disability. and specifically so we could age in place. i have a progressive motor neuron disease, and i have been been getting weaker for 43 years. it is reaching an urgent stage. i'm trying to merge our apartment number five with the one directly above us, apartment two. apartment two is not being demolished. we are not removing any living space. we are not changing the footprint of the

building or either apartment. apartment two is not being taken off the market. the renter and apartment two moved out voluntarily with no prompting from me. if you approve my appeal, i will replace the kitchen in apartment two with a bedroom. please note for a year now, the planning department has been referring to the kitchen in apartment five. nothing is happening to the kitchen in number five. that's incorrect. if you approve my appeal, it will permit me to have live in assistance when it becomes necessary. my personal care assistant will thus share our living space, but have their own bedroom, bathroom and sitting area. this is considered best practice for a personal care assistant and is a requirement for many agencies that provide this. your approval will permit me to continue to live independently. the department will not permit us to merge, citing the california housing crisis act of 2019 as interpreted by director bulletin number seven. see especially. page four. the conditions they impose, which you've already described are problematic or

impossible for the reasons i will describe below. however, first, i would like to note that on november 9th, after i was already scheduled for a hearing before this board, the department changed their interpretation of directors bulletin number seven. you should have a copy of this. please note the amendment on page four. quote the hca speaks specifically to demolition of units. therefore, dwelling unit merger procedures will not be impacted and continue to require the planning commission to grant a conditional use authorization. even so, i believe that the department's new interpretation means that the hca no longer applies in my case, and please remember, the department has already waived a conditional use authorization, even if the board agrees that the hca no longer applies applies, and the coa has been waived, then please approve my merger application without further consideration and without restrictions. if. the board disagrees with this

interpretation of the new facts, then please consider this appeal as a request to remove onerous restrictions from the reasonable modification letter. um, and could you display page number one, please? oh, thanks. that here are the reasons for my appeal. number one, the department misinterprets the california housing crisis act. uh, the department. the act says nothing about merging units. the act was designed to build more housing, not to deny housing for seniors. people with disabilities or families. number two, the department ignores the director's bulletin. number seven and fails to use proper discretion. the bulletin specifically says on page four, quote, there are limited circumstances where exceptions can be made. they are ignoring this. my project is one of those limited circumstances. number three, the department imposes an unfair burden on the restrictions imposed nearly impossible burdens on me, david, or my estate. there are three

likely scenarios that would trigger, quote, the end of occupancy. see, i could need to vacate and move to skilled nursing. i could die and david would inherit as an old man or three. my energy and finances could be exhausted by owning and managing this property in any of these circumstances, taking on a final renovation project to deconstruct the combined unit would be impossible. how is someone in need of skilled nursing going to manage a construction project, and how am i going to pay for this? should i be saving for this out of my social security disability checks number four the proposed merger secures long tum viability. of this rent controlled multifamily home. uh, the merger secures the long terme as a rent controlled multifamily home, which is our goal. our current five unit configuration means we require commercial lending and commercial insurance. the administrative, legal and financial headaches and unpredictable reality of falling into the five unit commercial category makes it increasingly impossible for us to stay in

business. could you please show page two, please? number five, the merger supports the california housing crisis act of 2019. the goals of the housing crisis act supports it by creating additional dwelling space. the combined unit will have three legal bedrooms instead of the current two. when some future owner rents it out, it will thus provide more space for more people. number six the proposed merger houses more people at a lower cost. at the median, san francisco rent for a one bedroom is 2850. the median for a three bedroom is 4650. thus the combined department will accommodate three people or couples for over 1550 for per bedroom. that's s 1300 less per bedroom and up to two more occupants. number seven with this three bedroom configuration in the proposed merger, provides more housing for underserved renters as the configuration

will provide flexibility for those who desperately need housing. seniors who need to age in place, persons with disabilities who need to live independently, and families who need an apartment with more than one bedroom. deconstruct the combined unit would exacerbate renting conditions for seniors, families and people with disabilities, all of whom need more than one bedroom. number eight the proposed merger will not set a precedent, according to the planning department. i am the only person requesting something like this, and the reason the department is having so much trouble coming up with an equitable resolution is that they have never done this before . there is not a flood of elderly, disabled property owners looking to age in place by merging two units, granting my request will not create such a flood. thank you for your consideration. thank you. we do have a question from commissioner lumberg. thank you, mr. metz. i have a few questions

for you. um, number one, i did just want to check in you did speak to this in your briefing, but i did want to just ask. uh, take the opportunity to ask you, um, how and when did apartment two become vacant? uh, the owner and or the owner? the renter and his wife had a baby, and they moved. okay. um, there was no eviction lawsuit or anything like that, ever. okay. we have done the exact opposite of that way of being great. i just wanted to make sure and, uh, and get it on the record. um my next question is, uh, in your briefing, you spoke to, uh, planning, i guess, approaching you at some point. and, uh, suggesting that you submit a reasonable modification request in lieu of the conditional use authorization, which i understand that you would already submitted. uh, prior to that. um, can you kind of describe that conversation to me, how how you were approached, what they said, uh, what they told you? well, we were at, uh,

we actually had gotten to the point of attending a planning commission hearing on june 29th. i think. and we were just waiting for our turn. and uh, someone from the planning department came up to me and said, can you meet me in the hallway at. and he talked about, uh, doing what you just said, deleting the conditional use part of it, doing a reasonable modification thing instead. and, uh, yes, i'm i that's what happened was it presented as a suggestion or, uh, you know, a command or like what was the what was the tone? i guess i can't answer that to be honest with you, because i was really nervous and it was all just kind of a blur. i thought, i it's i figured he knew what he was doing, and i was just going along with what he said. okay. and my last question is this after you submitted the reasonable modification request,

after you had that conversation with planning, um, was there any back and forth conversation between you and the planning department? uh, about, you know, conditions about or what conditions they were thinking about imposing? uh, was there any sort of back and forth conversation that occurred? no. they uh, at the, uh, commission president rachel tanner had asked them to come up with a less adversarial approach. and i heard nothing for three months. and then at the end of their three month deadline, i, you know, want somebody from planning department called me and said, this is what we are deciding. and these are the four conditions. and that was just it, okay? and there was no opportunity for you to respond to those conditions, proposed conditions or anything like that . no. all right. um, you'll see why i was asking those questions later. thank you very much. okay okay. thank you. i don't see any further questions at this time. so you can be seated and we will

hear next from the planning department. okay. good evening again, president swig. commissioners corey teague for the planning department. so again, the case before you today is an appeal of a reasonable modification for the property at 51 prosper street. this is a property that is zoned rh two and was constructed in 1906 and currently contains five dwelling units. as we've discussed, um, and this case is the first reasonable modification appeal to come before the board of appeals and at the heart of this case is two somewhat competing policies, one being to reasonably accommodate persons with disabilities and two to preserve and protect existing housing in the city. you know, it is unfortunate that such policies conflict for this case, and we definitely support the underlying cause policy of providing reasonable modifications. so what exactly is a reasonable modification,

since none of them have come before the board before? so the planning code section 305.1 was was added to the planning code in 2015 to add this process so that the city was in full compliance with the federal fair housing act. the americans with disabilities act, and the california fair employment and housing act. um, by allowing reasonable modifications to our regulations, um, for persons with disabilities and it provides that the zoning administrator may grant a reasonable modification in lieu of any other approval that would otherwise be required under the code, and that the zoning administrator must consider seven specific criteria when making that determination, and those criteria are listed in the letter and my brief, so i won't repeat those. um right now. but when a reasonable modification application is filed with the department, we refer that also to the mayor's office on disability so that we have a third party, um, actor who is, you know, who works in this space to provide the department of determination that the

applicant has a qualifying disability. and then depending on the nature of the request, a reasonable modification may require a public hearing or it may be done administratively. um, just fyi, the recent housing constraints reduction ordinance that just passed second read yesterday at the board of supervisors would make them all administrative. no no no hearing. and this one was determined to be an administrative. so there was no public hearing for this one. so in this case, as was mentioned, the appellant originally filed a conditional use authorization for a merger under planning code section 317. he was informed by the department at that time that due to state law, sb 330, that that couldn't be permitted without providing a replacement because that law basically requires units like this to be replaced. if you're going to remove them, and so that ultimately there's no net loss of units. um, and so this was scheduled, it went to the planning commission. there was a recommendation for denial all while we were at literally at the hearing, um, there was a discussion on because there was

some conversation at along among the commissioners about how to handle this case. um and there was a discussion about the fact that the applicant had a disability and we had there was a conversation amongst staff. well they could possibly use a reasonable modification instead of a queue if the queue is something that we can't grant, um, because of state law. um, but there would be a limitation likely on how the connection and the merger could happen. so um, in that case, the, the conditional use authorization was continued indefinitely. the. the appellant withdrew the cea, the conditional use authorization, and filed for the reasonable modification. to my understanding, with the project planner, um, who has worked very closely with the applicant through this entire process. the concept of, you know, not likely receiving approval for a legal merger of units and only allowing a physical connection between the two units has been something that's been kind of discussed from from the beginning. um and so the, um.

let's see, we've been moving on from there. um, as was noted, the, the decision was made to grant the reasonable modification to allow the physical connection. that is the that is what's actually being modified. that is the reasonable physical modification between the two units, but not to allow a legal merger of units because it would be a loss of housing and a loss of rent controlled housing, which is generally extremely challenging to be approved in the city because that's something that at the city level and the state level, there's strong protections against that, including sb 330, sb 330 is about the production of housing, but it is also clearly has strong protections for existing housing, um, as well, which is why it has these replacement requirements. um, and the conditions there were that, um, once the connection between the two units was no longer necessary, that it be removed within certain timeline.

um, but no additional conditions as to like what that removal would look like. um, and as was mentioned in november of this year, the city changed its interpretation on the state law based on additional analysis and experience such that mergers are no longer falling into that only demolitions, actual physical demolition of units. and so to be clear, if the appeal is not successful tonight, then then the applicant would have the ability technically to go through that conditional use authorization process and have a say in front of the planning commission. um, obviously the planning commission would planning department would make a recommendation, and ultimately the planning commission would have to decide whether or not to grant a full legal merger of the units. but that would be an option for them if they were unsatisfied with whatever the results are here for this case. so looking at this specific project, um, the brief laid out the key points. um, again, uh, the mayor's office on disability has was briefed on this case. they're aware of this case. um,

and the details of this case, um, they have not expressed any concerns with the, um, issuance of this reasonable modification or the conditions that were, um, included. again, at the root of this is trying to reasonably de modify and reasonable accommodate the physical needs of this occupant, while also balancing the housing needs of the city that are well established. um we've had one other reasonable modification for this type of situation in, um, that was also approved this year. it was two units that were side by side, um, but a same option, same kind of conditions allowed the internal connection, but requires that internal connection to be removed. um, once it is no longer necessary. um, and then there are two specific criteria, uh, criteria four and six, that have to be considered as part of the reasonable modification. i'll just point those out because i think those are, um, specific to this issue. and since time is running out, obviously we think

this is a reasonable accommodation that balances both those policies and we respect fully request that the board uphold the reasonable modification with conditions as it was issued. thank you. that's time. sure. okay. thank you. i don't see any questions at this time. so we will move. on. d.b. to db, i want to win. no. okay. so we'll move on to public comment. is there anyone here to provide public comment? please approach and after you're done speaking, if you could fill out a speaker card that would be helpful. so we get your name correct for the minutes. um, good evening commissioners. um director rosenberg, my name is elizabeth kerr and i live in district eight. i'm a lifelong barre resident. i'm here today to urge you to support tom metz's request to grant a limited circumstances exception at 51 prosper street and to allow the merging of apartment five with apartment two. i've known tom for 25 years. i've witnessed how his disability has

progressively impacted his ability to work, prepare meals, walk, hold a pen, and conduct other activities of daily living . despite the advances in his motor neuron disease, he has gone to extra ordinary lengths to maintain his independence and ensure his ability to age in place. i'm someone who has lived in a rent controlled apartment in san francisco since 1994, and i underwent an owner move in eviction seven years ago, so i fully understand the pressing need to maintain an the stock of rental housing. at the same time, it's incredibly important to prioritize the ability of elders and people with disabilities to remain in san francisco and to live as independently as possible. this merger would help accomplish both goals by allowing tom to have a live in caregiver and providing shared housing at a lower per person cost. i cared for both my aging parents for 18 years. each of them needed on

site care at the end of their lives, having a separate bedroom for caregivers is a requirement for many caregiving agencies with. out this, people like tom may be forced to move into an institutional setting, which is far more expensive and unnecessarily limits their independence. by approving this merger, you could not only help tom and his husband age in place, but it would also create a housing unit which would provide the same ability for another elder or disabled person in the future. as tom stated, there are almost no wheelchair accessible units like this, with access to transit and services in san francisco. i urge you to approve this request under the limited circumstances provision. thank you so much for your consideration. thank you. is there any further public comment on this matter? please raise your hand. okay. i don't see any further public comments, so we're going to move on to rebuttal. mr. metz, you have three minutes to address the board.

director rosenberg, members of the board and mr. long, the planning department brief emphasizes that existing housing should be preserved and protected, especially rent controlled housing that is precisely what i am trying to do. the planning department says that decisions are not typically based on specific financing or insurance mechanisms. well, financing and insurance should be considered. that's how you preserve and protect rent controlled housing. david and i are responsible and good rental property owners. we are not trying to evict people or get rich. since we bought this

building in 2013, we have prioritized good relations with our renters. we have obeyed every detail of the rent ordinances and treated people with courtesy and respect. our renters have said so. please read their letter. we are the kind of rental property owners that san francisco should want to keep. david and i obey the rules. we performed our seismic retrofit before we were required by law to do so. we are also in the process of decarbonizing our building by removing gas appliances and converting to high efficiency electric appliances in advance of the upcoming legal requirements. please do what the housing crisis act of 2019 actually says . why are we even talking about that 480 square foot apartment? it will not solve the city's housing crisis, preventing one home owner from using his own resources to build an accommodation for disability and old age is beyond unreasonable when there are so many other resources available and by the way, whatever work i do will

benefit a future occupant if they are senior, if they are disabled, or if they are a family with children and need more than one bedroom. if the department wants to address a housing shortage, they can abide by the true intent of housing crisis act of 2019 and provide more housing. the city can do better with a budget of $14 billion. also, let me point out the city owns or leases in their portfolio, mostly. owns 5176 properties. in fact, 300 yards away from this building, there is a san francisco owned property that has been vacant for 34 years. it is. 1000 105,802ft!s. that's equal to 220 apartment the size of one of the one we're talking about today. in addition, 40% of san francisco hotel rooms are vacant, 30, 32nd, 33.9% of san francisco office space is

vacant. that's almost 30,000,000ft!s. study does indicate that 15% of these could be converted to housing. other cities are already doing it. san francisco does not need my little 480 square foot apartment rent. san francisco needs to build more housing instead, as of november 21st, the city is currently out of compliance with california's housing element law and shows no sign of coming. thank you. that's time. thank you, thank you, mr. metz. i don't see any questions. is there vice president lopez is a question for you. thank you, mr. metz, for your testimony for being here. um, it seems like we're essentially talking about about, uh, the kitchen and whether or not there's a condition to, uh, remove the, the, the or, i guess, reverse

the removal of the kitchen. um, i know you mentioned this in your, uh, in your prior statement that that's, uh, essentially based on best practice, uh, in these types of care arrangements. can you say more about that? the i guess i'd like to understand what's the, um, why why is that, uh, so necessary? uh well, it's just what agencies require, for one thing, but the apartment. two kitchen, that's the one above us. if that kitchen is removed, it can be turned into a third bedroom. so so, uh. uh, someone who is assisting me could have that bedroom and their own bathroom and their own sitting space as well. maybe maybe i'm just not following. so. so the unit has has a bedroom right now? yes. and so then the kitchen would be converted into

a second bedroom. that's correct. so essentially it would be a two bedroom. it would be a two bedrooms upstairs, one bath. no kitchen. yes got it. um and you're saying the, the agencies that you would contract with for, for these services require uh, which aspect of the require no kitchen or two bedroom or both. they require a bedroom, a bedroom for the person providing care. separate space. but isn't that already present with the bedroom that's present in the unit right now? it is there is a bedroom there. my husband uses it for his office. he uh, lost his job in march and he's now doing consulting, and that is his office space. so if someone else is going to help us, they would need to have a bedroom. that's issue number one. the other issue is the whole issue i mentioned about, uh, having a five unit building versus a four and having commercial insurance, commercial lending and everything else compared to a

four unit building which has residential lending and residential insurance and secures the long terme viability of the building. the risks and the headaches and, uh, the unpredictability, everything difficult related to being in a commercial class class makes our lives extremely difficult and i'm sure you have been following what it's like to get insurance in california right now. that's just the tip of the iceberg for the you know, we are small timers. we don't have a margin. you know, we're supposedly we're in business, but we don't make any money. i mean, the whole reason we have this, this building is specifically so that i can age in place. that's that's why we're here, you know? so part of it is because, yes, the, uh, the someone who lives in and helps me needs to have their own space and part of it

is that will help us preserve this, uh, rent controlled housing, long terme, because if we have to keep going with the risks we have, i don't think we can keep going. i mean, we borrowed, i think i think the question's been answered. so i'll just. okay. thank you for that and. yeah. thank you. thank you. president swig has a question for you, mr. mets. yeah you know, i, i, i want to thank you for being so transparent and so truthful because as some people would come up here, shocking as it may seem, sorry for my sarcasm, but it's the truth. and lie. and they would say, oh, that bedroom is that that bedroom does exist. and they would say, my sister lives there, or somebody lives there and you're being truthful in saying that bedroom exists. and my, my partner has his office there. uh, and, and, and, and for me, here's where we run into

the law versus you know, common sense and decency and all these things that we constantly wrestle with in this commission. um, the, the. um you you were, uh, you had me very, very convinced in one direction until you became truthful. unfortunately. and i thank you for your truthfulness and the reason being is that is it not true that if your, uh, your partner didn't have his office there in doing commercial business in a in a residential apartment that you could accommodate a caregiver in, in that space. is that true? well we can't afford to stay there. if he doesn't have income. he's a book editor. it's not like we're millions or anything. yeah, and that's where i run. i this is very this is really

hard. this is very hard. this is where again, we run into the law versus the, you know, the, the standard. um. because my, my reading on it is that this, this , uh, this bedroom would accommodate your need for a caregiver because it exists as a bedroom. i'm going to have some questions that you'll like a lot better when we get the, uh, mr. teague up. i'm sorry. these are difficult questions. um, but in fact, they're, you know, it's being used in a commercial use, and it could be used as a bedroom for a caregiver. and that's just one of the things i'm, i'm, i'm running into. you don't think it's really commercial? i mean, he works from home. yeah there are millions of. but it is. but but but a court. but accordingly. and it's really hard for me to have this conversation with you because i'm, i, you know, my feeling is that we should go

ahead and give it to you. you know, and figure out a way to get it done. we'll work on that with mr. teague. but but but, uh, but but what was new information is that it's. thank you for asking it. uh, commissioner. and then i also hate you for asking it because it forces me to ask a follow up question. it was just disclosed that there is there is a bedroom up there and there is an apartment, uh, which is a separate apartment which is used, being used as an office when it's when it's not being used as a residence. is that correct? i'm sorry. say that again. so, so your your disclosure is that that unit which you want to which you want is a merger is currently not being used as a, a residential apartment, but it's being used as an accommodation by yourselves as owners, uh, for a, for a commercial purpose, that is to have houses office. correct. extension of our own personal space. we use it as

part of our apartment. but it's still a separate. but it is a separate unit. it is apartment number two. apartment two. it's a separate unit because they won't let us combine it. yeah. i mean, a lot of people have an extra bedroom in their house that they use for an office. i understand we're caught. we're caught between the law and common sense. so i just want to let you let you know that so we can either make a living or we can lose the building. um, i'm not going to argue that position with you. and i, i, you know, i'm not as mean and nasty as i might seem by asking the question, but i got a i got a surface that for the purpose of a further discussion, i appreciate your, uh, asking the question and i will point out that it, you know, we presented those plans a year ago when we first applied for this. there's never been any any trying to hide the fact that there's no and i appreciate your transparency and your truthfulness, which this commission quite often doesn't,

doesn't get this from, from other people. and i really appreciate it. thank you. i just want to ask you to clarify, please. yeah. uh, is it that it's being used as an office because because i don't actually work in it? uh, you know, um, i'm working in our in our shared space downstairs on the great. the question on is it was represented to this commission that you that an extra bedroom is required uh, to house a caregiver and what, what commission or what commissioner lopez surfaced as a result of asking that question is that that bedroom is exists and could be used by a caregiver at and therefore the, the kitchen, the kitchen is the key issue here. and therefore the kitchen does not have to go away. and it can be maintained as a as a residential unit. i guess what

i'm asking is if it's a bedroom and i'm occupying it. yeah or then if it's not an office, does that make a difference? i'm going to ask. uh, i'm going to ask mr. teague those questions. but that i just want i need the information. and that was that, that, that need for that question was opened up by commissioner lopez's question. okay and i will point out it was it has been in my documents and application and in every single form i filled out and in the plans. and if keeping that bedroom and giving an assistant that bedroom would make a difference. and david can work in the garage or someplace, or the kitchen table, that would be fine with me. but the other parts of my application are really important, and one of them is removing the kitchen and combining the units so that we can have a four unit building. i don't see how financially or in terms of insurance, we can go forward without that and preserve this rent controlled

property and believe me, there are a lot of people out there who would like to take this rent control property off the market because i get calls from them all the time. yeah thank you for that. i appreciate that. thank you. we'll now hear from the planning department. thank you. corey teague again planning department. um yeah. we have no reason to not believe that the property owners are great landlords or anything related to anything they've disclosed regarding their financial situation. uh, and the challenge here is those things aren't kind of relevant to the question of the reasonable modification, because the reasonable modification is really just about modifying code requirements to address a physical need due to a disability. um, and so that here is the ability to connect to physical units, to have, you know, home health professional there. so the reasonable modification that's been provided would do that. it will

allow the connection between the two units, which is not something you can otherwise get permitted in the city. um that will physically allow and accommodate the issues at hand. and the, the request is to go further than that. and and form fully and formally and legally merge the two units into one unit, which would be a loss of number of units. um which there are different ways you can slice that in terms of what it means about who occupies it and what how it can be used, but it would be a loss of a of a rent controlled residential unit, which as you know, is something that we don't we generally really don't do unless there's an extraordinary circumstances. so really the, the key here is, is to me, it just comes down to that like it is that request necessary to accommodate that the disability or is it more than necessary to accommodate the disability, um, in a reasonable way? um, of course we don't. it's not a fun decision

to have to make, because we'd love to be able to just make it easy and, and, uh, um, address all the policies appropriately. but that's why the decision is what it was to, to land on that kind of compromise of a, of granting the modification to physically accommodate the disability as it's been represented and the needs have been represented while still maintaining the entrance of the city to protect and preserve, preserve, rent control, housing. um, you know, i can understand every individual case kind of having an idea of like, my one little case isn't going to solve . but obviously, if you use that logic on one, you kind of have to use that logic on all of them. and then collectively, they do have a problem when it comes to losing housing, etc. so i understand that that sentiment , i really do, um, we deal with that a lot, but that's why we do have to be, you know, typically pretty consistent in these issues and these policies. um, so that that's kind of just a little bit more of a basis

around it. one thing i would add, um, you know, the, the, the modification that i granted was to allow the connection, which is not permitted. you know, we required the kitchen to be maintained in that second unit. um, if the board was interested in going a little bit further, but not as far as requested, just to put that out there, another step further could be to allow the kitchen to be removed. that's not i can go further, but would you finish your statement, please? sure um, another step further without would be to allow the interior connection, allow the kitchen to be removed temporarily in apartment two. um but still maintain the requirement that when no longer needed the kitchen be replaced, the connection be removed. now, that's kind of a give and take, because it gives the thing of request. it provides the request to remove that kitchen. but then it's going to there's going to be a cost to putting it back to at the end as well. so i'm not sure if that's exactly what

would be wanted. but in terms of just thinking about options, you know, of course the other option that's under your purview is to just grant, you know, grant the reasonable modification for the full legal merger. and that's that takes it all the way to that end of the spectrum. but i just wanted to put that out there as kind of another step that seems relevant between the request and where we landed. schellenberg. thank you, mr. teague. um, i have a lot to say about this case. um, but i'm going to do it in the form of questions. so, uh, um, let's see. let me start with. um can you help me understand a little bit why as mr. metz said, uh, this specific proposed modification would involve the addition of a bedroom and actually result in a larger amount of housing in the same building. why does that not fulfill the sb 330 mandates, even though it's obviously a

loss of one net housing unit? but not actual net housing? well, again, sb 330 is no longer applicable in this case, right? so that's that's not really here. but in terms of just in principle, obviously you get um, i know the bedroom, but it's part of one larger unit which is going to have a higher cost on a per unit basis. and that's what i'm saying. there's different ways you can slice it up. um, but because you are maintaining the same amount of square footage, but obviously fewer discrete number of units for more individual families and couples, etc, to, to use that housing. um and also i mean you could obviously you could expand you could scale that up, you could merge three units, right. with the same logic. and then you get into the question of what's too far to go. but that principally, you know, we don't really use that logic to justify merger of units. we want to preserve the number of distinct housing units we have in the city. all right. thank you for that. um, now next is can you

help me understand a little bit how and who and when the planning department's reasonable modification policy was created? obviously, there was some board of supervisors, i believe, in 2015, an ordinance that was passed that created planning code 305.1, um, and i saw this, this bulletin, but that's kind of where my understanding ends. can you kind of walk me through where the rest of the policy came from and how it's been implemented up to this point? sure. um, my understanding is that i'm trying to remember when the state law was adopted. i feel like the state law was in the 90s, and the federal law was in the most recent amendments, was in the late 80s. um, and i believe at the state level there began to be more of a push in the 2000 for more, um, uh, local jurisdictions in california to accommodate these laws by creating their own model, their own ordinances, and their own programs. i don't know all the details of like, how and why san

francisco did what they did specific to this. i do know that in 2014 is when the city started working on a specific project to add this program into the planning code, and that was adopted in 2015. and we've been implementing it ever since have there. i mean, can you kind of give me an idea of the scale of how many of these reasonable modification request requests to the city? there have been obviously, you can't give too many details, and i understand why, but, um, the details you can give. yeah. i mean, not many. i want to say several a year. um, honestly, uh, most of them have been parking related. um, you know, allowing parking in places and the kind of in an unscreened way that maybe wouldn't meet planning code requirements for ease of accessibility into a unit. um there have been, i believe, 1 or 2 for elevators. um, i mentioned there's been one other one recently that was a similar case like this, but the two units

were side by side instead of different floors. um but there haven't been that many. i don't know the total number, but i would say no more than probably 5 or 6 a year. okay um, i want to put a disclaimer on this by saying i'm really not this. this isn't about you. i think you've done your job admirably. as always. here. um but ultimately, you're the one on the stand right now. so uh, sure. my question is, are you familiar with the difference between a reasonable modification and a reasonable accommodation? well i know that most of the actual, um , like, state and federal laws are more based around the terme federal. i mean, reasonable accommodate when you're trying to accommodate. i know the local program here was titled reasonable modification because you're modifying local code requirements, but they're essentially, you know, it's the local program, regardless of terminology, is designed to meet state and federal laws. that was

exactly the sort of answer i was hoping for. and i will be discussing that, uh, significantly. but it's not a question. so, uh, i'll move on. uh what? um. oh i also wanted to ask the same question i asked mr. metz earlier, which is, uh, was there any sort of back and forth conversation with mr. metz with and the planning department after he submitted the reasonable modification request? um, very much to my understanding. yes my understanding is that, again, that the project planner was in contact, um, many times with the project sponsor over the whole process. um, and that there was communication regarding the, um, likely hood of conditions to this nature, like the concern of like not a full merger being, um, authorized. i'll ask a more specific question then is, was there any was there any

conversation about the conditions themselves or the proposed conditions that were that eventually the planning department did issue clearly in a decision on? so, i mean, i don't i mean, there wasn't for me and i haven't i don't know that i've seen the emails or, you know, that wasn't part of the phone calls with the project planner. the principle behind them, the lack of a full legal merger, the requirement for the connections to be removed, um, afterwards, i mean, my understanding is that the principles around those were or were communicated prior to the letter being issued. okay. thank you. i'll pass it to my fellow commissioners for the time being. commissioner lopez, thank you. thank you, mr. teague. um so going back in time to the to the q process, um, do i understand correctly that essentially the department was,

uh, recommending against the see you based on an old interpretation of sb 330. so so generally, yes. yes. the and the reason i say generally is because at the time the city was applied for, it was the it was the city's position and interpretation of sb 330 that the city could not grant this without replacement unit, which is what was required under sb 330. um i my understanding is that the department didn't really analyze the project must much beyond that. because of that issue. um, you know, most of the time dwelling unit mergers are not supported by the department at the planning commission for reasons having nothing to do with sb 330, but just having to do with all the reasons we've talked about, you know, preserving housing. they you know, sometimes there are unusual circumstances and they do grant it. but, you know, most of the time, um, it's not unusual to have a recommendation

of disapproval for those, i think for this one. but that level of review, i don't believe actually happened because of the sb 330 context. and the position of the department that the planning commission was would, um, would not be consistent with sb 330 if they granted it. um, that's my understanding of the conditional use process for this one. got it. um and then you i mean, you you you were at the meeting and i guess i'm, uh, much to my chagrin, kind of asking you to read some t leaves or prognosticate, but did this seem like something that was considered unusual, absent sb 330 or, um, to be honest with you, i wasn't really p involved in this case up until that point. i was at that planning commission hearing, but i was back in the green room. i wasn't really kind of engaged during

that time. i kind of became engaged in this when there was a conversation, conversation like in that moment about the potential for this being a reasonable modification instead of a use like, is there another path forward for this applicant to, to get what they needed? and um, and that's kind of where i became part of this conversation . again, i can't speak too much to kind of the department's review of the of the conditional use authorization. okay and then if let's just to sketch out a, a potential scenario, if, if, if we, if we proceeded with the rm decision as drafted. um, the appellant would, would still be able to apply for, for a q two is that correct? and presumably in the, in the brave new world

of the new sb 330 uh interpreted ation. correct. so the original q was um withdrawn. it was never denied. so there's not the one year wait required there so they could apply for a conditional use authorization. now now, because sb 330 under current interpretation would not apply. and so you'd just be subject to the 317 review process. yes. and that's in my brief. that was kind of the point i was making, is that it not to say that's necessarily ideal, but in terms of options going forward, there would at least be that legal option going forward for the applicant to apply for the conditional use authorization, kind of, as they had originally done. got it. that's it for me. thank you. thank you commissioner. commissioner fuller, thank you, mr. teagan. and thank you, commissioner lopez, for asking some of the questions that i had. i do have a question. and it gets the idea of what is a reasonable

modification, because that is such a soft and in and fleshy word that, you know, can be manipulated in a lot of different ways. um, you mentioned that a lot of the, the, um, reasonable modification requests were around parking and other issues. um, you mentioned one, you mentioned in your brief on mission street that is a unit can connection, not a merger, but a connection of two different units. is that the only one that we've had to date, or is that or is it just the most, most recent example of one? that's the only one we've had. i'd, um, and one one reason maybe for that is there, there there was never kind of any issued interpretations or anything to that effect. um, but going back through the implementation of reasonable modifications up until the last year, um. if something triggered a c, u wasn't thought that that would qualify for a reasonable modification, that the reasonable modification was more

a substitute for a variance, um, kind of quantitative of physical controls. um, but again, this year we updated our interpretation of that to be more comprehensive, that the reasonable modification could be granted in lieu of other approvals as well, including a conditional use authorization. i'm not aware of before we made that call, anyone even making that request before. but this year we did have this, this, this one other one, and again, it it was issued very similar to this one, which with the same kind of condition as and i imagine that it's a very limited universe of possible situations that would give rise to this in the first place. um uh, with that, the, you know, you determine it was reasonable to have a connection that had to be undone at the time that it was no longer needed. and those units were side by side. how would that connection be undone? how would it be done undone? how would that connection be undone at that time? yeah. so in that way, side by side, right. so in those situations you have basically a communicating wall between the two units and to be clear, both in this case and in

that case, we didn't dictate right how they did it. obviously they can provide the interior connection through whichever room and wall they would like, as long as it meets all other kind of code requirements. um, so we didn't dictate that, um, theoretically there's going to be a most likely or easiest place to provide that connection that works best for them. and they can they can do that. and then they would board it, board up the wall to undo it. right when you undo it, you have to physically go in and patch that wall up to remove the connection. in this circumstance , we would need a stairway to a code compliant stairway to connect the two units. correct and how would that then be undone? so how it would be undone again, the planning this decision doesn't dictate any specific manner in which it's undone. um, clearly it could be fully removed floors, everything patched up. it could be done initially. just by, um, walling

off one end and you know, if you want to do it later. i mean, there's. we didn't require how they do it. there would be different options for them. and the walling off of one end, should i ask mr. green if that would be building code compliance? have a stairway to nowhere. it's a little winchester mystery house, perhaps. sure. and it may be something, again, that we wouldn't typically see or want to see. um, but it could be something that if code compliant and if a property owner felt like that was the best thing for them to do at the time. but but it would certainly. but in any case, uh, you know, to completely remedy the area. otherwise we'd have a stairwell that's not in use. it's a loss of livable space, etc, etc. in order to completely undo it. it's much more cost intensive than simply boarding up a wall, as in the case that the department has decided, and the one. the other option would be a, you know, a code compliant spiral stair as well, which could be theoretically be less less impactful to the floor plate and whatnot. but but but also less conducive to aging in place, perhaps for all the

residents in the in the building, perhaps. but my understanding is that the concept is to allow the home health nurse home health professional to go kind of back and back and forth. but but again, certainly all the more reason why we didn't dictate the manner in which the connection was created or removed. thank you. that's all. appreciate it. yeah, sure. thank you. president swig. sure um, my personal intent would be to find a path forward. my jurisdictional intent would be to find a path forward legally, as we always have. just to state that i do have an agenda. okay uh, but let me ask a couple questions. um i think we've had 6 or 8. yeah not that many. about 4 to 6, um, cases here in the last 7 or 8 years related to combining

units, 100% of them have been denied. and, um, because because of what has been cited is that san francisco is not does does not support combining units. that's against the law. um, i remember we. had one which we handled, um, very, very creatively and for a family where they had combined a unit, somebody um, called that to the attention of the authorities, and it was a family, i believe, of a young family. kids were less than ten years old, or certainly less than 12 years old, living on on one side of a hallway which had been conveniently combined into making one unit out of two. and we creatively, uh, allowed that to stay in place for a period of

time so as not to create a difficult situation for that family and force them to move. but but that included every 100% of the cases that have come in front of us, um, have resulted in the same thing. we haven't allowed the combination of a unit, um, and is it? but it seems in every one of the cases also which have not which that the issue of a kitchen and even in the cases of taking units gram uh, grandparent units or, or uh, out of, out of commission, it's all, all has to do with the kitchen. so is it is really the what what makes a difference between combining a unit or not combining a unit for the city, the removal of a kitchen. and the conversion of that into a rumpus room or a bedroom or any, any, any auxiliary usage. sure. and i

mean, it can get a little complicated there because there's different ways you can render two units, one unit, right. um, obviously we define a dwelling unit as having one kitchen. um so you do have to have a full kitchen to be a dwelling unit. and if you have a dwelling unit, you take the kitchen out. that's a problem. right. so there that that is true. there's no question about that. for here for again there's kind of three we raise the kitchen issue. there's kind of three different code requirements in play. one says you can't have an interior connection between units, which is what was granted here. yes. you can have an interior connection between units and then replace it when you're done. two is you have to have a kitchen in each unit. right. so we said you got to keep both kitchens. and three is the, the um kind of prohibition without a conditional use to merge the units just full on. so in this case, you know, we granted the first the connection, the

physical connection that because that provided the physical need and the other two were not were not granted all three are before, you know, all three could be under the, um, the authority for a reasonable modification could be granted. okay and when is a kitchen not a kitchen? we had a, uh, you know, we had a case about 6 or 8 years, eight months ago. maybe it was a year ago. it all runs together, uh, where something had been labeled. one thing on a set of plans, and then it turned out that it wasn't that thing, and. and that was the discussion. but um, when what is the condition? and you alluded to it, uh, that a that a kitchen can be removed but still exist. um. as mandated for when the, when, when it might be put back into service. so tell us about

that. what's the definition of a kitchen. what is the definition of a kitchen. or when is a kitchen not when is a kitchen uh removed and when is a kitchen simply disabled. so it's still a kitchen, but it's not being used as a kitchen. um well, we don't really, you know, the use thing is harder, but we actually didn't have a definition like a real definition for a kitchen in the, uh, planning code or the building code. and um, that definition was created through, um, interpretation in, in 2021. um, and for the minimum that you have to, have to have a kitchen and a dwelling unit, you have to have a four burner stove, you know, a full size oven, um, a kitchen, a sink of at least 15in and a refrigerator or freezer of at least 12 cubic feet. those are kind of the minimum standards to have a full kitchen for the purposes of being like the one kitchen required for a dwelling unit. and and tell us

about you. it was your idea. i love the idea, but removal of the kitchen is and then the requirement that it be put back in. but is that removal of full removal of the infrastructure for that kitchen or is it simply a capping off of, of plumbing and other, uh, conduit infrastructure? i think if the board wanted to go that direction, that would be at your discretion. and you may not like the same way that my decision did not dictate how they provide the connection or how they remove it. you may not feel inclined, if you want to go that direction, to dictate how they removed it. um, whether it's capping it off, whether it's just removing part of it or whatever that may be. um, but that would be at the discretion of the board. um, all right. um, for, for. yeah. i don't want to get into the weeds. um, the issue of precedent also has been

a, an issue that that i, for one, for several years have been very sensitive to once we set a precedent by going against what, um, what the code has been, what the law has been, what the. then we're in deep doo doo because, you know, two weeks later somebody's going to come in and said, but for those guys, you did that and you set the precedent. so how, um, how do we how do we stay away from from setting a precedent, a generic precedent, uh, as we find a, a path forward? well, there's no kind of planning code legal definition of what a precedent is. i mean, it's really just the vernacular. i mean, in general, like, situations should be getting like, decisions as, um, every case is a little bit different and unique. um, you know, and i feel like it's impossible to know. so, you know

, if this was granted to do full merger from 5 to 4 units, i, i feel like there's so many variables and factors involved that it's really hard to know how much that would trigger or, or or lead in some way to a certain number of these being approved in the same way in the future. i mean, there's no question we have a growing we have an aging population and, and, um, that there are people who are in need. i mean, there's more than just this applicant, but there's so many different scenarios out there. so it's almost impossible to really, you know, um, answer the question on precedent, except for the fact that, you know, if a decision is made based on certain grounds and criteria for and factors and all things being equal, when those grounds and factors and criteria are come up again and there's nothing else to different, there's going be a strong case for, for landing in the same place. is there is

there a um is there, is there a method in this case that you see using your own example of removing the kitchen in some fashion, uh, that those two units are sustained in perpetuity. but for, for the purpose of usage related to, uh, um, to an exception. and this being a the ability to, to serve a senior disabled individual and allow them to, um, and prevent manifest injustice by putting them into a difficult, more difficult situation. can those units still be sustained as unit two and unit five or by the by the construction of an internal stairway, albeit a circular stair or an indoor traditional indoor stairway? um, must they be combined and into one unit? um, well, i mean long terme. if

that second unit is going to stay, a second unit, it would need a kitchen. um, right. i mean, here this is the reason why a modification to address the need. um, if the need is not forever, like, if you wanted to do that just long terme, it'd be tantamount to a merger like if you, if you're going to go that route, i think it would probably make more sense just to permit the merger. um, you know, the internal connection is a little bit different because, again, i'll let my colleague from dbi speak on any building code issues, i believe any doorway, any connection that's going to be between these two units have to be fire rated because it is still legally two units. if they're keeping it two units. so there's going to be doored in some way or another. um, and what would be required in the future to again, to seal that off in a way that was sufficient. i'm happy to leave that to dbe and, um, i'm, i'm,

i'm mindful. i'm taking too much time, but i'm going to ask these questions and ensure that rebuttal error in discussion anyway. so what the heck? um. so the, um, the, the issue of, of paying attention to creating an exception, uh, and exception for, uh, for a significant for an exceptional purpose is very clear for me when it comes to the pleading that was made to be able to age in place with a disability and the manifest injustice, they didn't use those words. i'll throw them in there just, uh, just because i feel that they should be, uh, by forcing some somebody in that condition out of their home into a into another place for a gazillion reasons. um, if this was so, i would, i would be

very, very sensitive to that. where i got where i got lost a little bit. and i'd like your opinion in a typical sense where that exceptional consideration did not exist, that is the disability, the aging in place. um but it was the other excuse or the other purpose, which is we can't afford to keep this building, which is a purely financial, all purpose. um, how would that, uh, that exception and that pleading, uh, play into your decision making? well financial considerations of a property owner. you know, for us, when we're making decisions about a project are extremely challenging because we have no reason to not believe the property owner with anything they're saying about how they run their building or what their finances are. but but whether it's this case or any other case , we there's it's simply impossible for us to know what the actual financial situation is for anyone or why that situation exists or anything

related to that. so that's why, you know, the, the reason why modification is really focused on like providing the physical aspect of what's needed to address the disability. any anything that's really kind of financial related, um, is not one of the criteria for consideration. um in granting the reasonable modification and not really a criteria when we're looking at any other kind of project, either. okay, final question. sorry for this long winded situation. um i would like you i would like you to state a creative solution. um so we don't have to. i'm being lazy . no, i'm not being lazy. you're going to make the decision anyway. uh i would like you to suggest a creative solution along the lines that you have already, um, stated that provides a path forward. and, um , but that enables a resolution tonight, um, without the need of

going through them. um, the property owner filing a icu or going down any other road. and if you find that impossible, that's fine. that's why i asked the question. can you suggest a creative solution to find a path forward along the lines that you previously suggested? uh including terms and conditions, uh, that will allow us to make a decision? uh tonight, basically to move this forward, um, before what i've suggested, because, again, my understanding of the case is there's essentially three aspects to the request. the connection in kind of the removal of the kitchen and the full merger. um so obviously, if you do the full merger, the other two things are kind of moot because they're kind of included in that, in that decision. so the only other middle ground i could think of, and i, you know, maybe i'm not being creative enough, but the

only other middle ground i could, i could think of was, um, the allowance to have the kitchen removed during the period of need. and then obviously, if it's not a full merger, then that means that's just more that has to be put back at the end. so i mean, that may not be the most cost. uh, may not be the outcome, um, that the applicant actually wants if they don't get the full merger. i'm honestly not sure. although if they have the ability to do it, they wouldn't have to do it. they could, you know, go either way. but really, anything other than that, i'm not i'm not sure if there are any other kind of relevant factors to the case to get creative on. so what would be what would be our language tonight to create? because the, you know, the what was stated in front of us was that my, uh, the, the appellant, the speaking appellant, came in front of us and say, i would like to spend the rest of my life in this one place and allow my partner to stay with me and not not disrupt and force us, uh, to move

elsewhere or compromise our ability to provide proper health care for the rest of, of at least one person's life. so so in in that with, with that condition. and with the intention of maintaining, uh, this location for that individual, for the rest of their lives. um, what is a give me, give me some language, give us some language. um, that would that would, uh, real language, please. sure. that we can use in a, uh, in a motion, uh, that would allow this to move forward and to allow the wishes of the appellant. um, but before i do that, one other creative option that i failed to mention was, and again, this may rely on our my colleague at dbi to help address this, but my understanding is that the if the two units are to remain legally two separate units, any interior

connection would have to be fire rated, which means it's going to have to be doored. right. um now again, under the planning code, that connection is not permitted, even if it's a door. i mean, obviously it can be closed and locked and everything, but that's even that's not permitted as a connection between units. um but i mean, it would be under the purview of the board as well to not require for that to be, um, replaced to allow the, the connection to remain open. um you know, whether you require there be a lock on the door, you know, whatever, but kind of remove the requirement to fully remove that connection. um, because that is something that could be granted long terme, you you still have and we do have some units historically that were built a long time ago that have these weird connections. we don't permit them anymore. so it's not completely, um, something you won't ever see in the city. but that is another situation where it would not require the removal of that

connection in the future, per se . um, or at least not full removal. um, but also wouldn't wouldn't be the full merger of the units. just another in between. another in between option. so really, my, my determination has specific conditions of approval that kind of require what happens after there's no longer the need for the accommodation. and so we would just have to draft, we would revise that language essentially to the extent that the board makes a different decision, whether it's removing the language about, um, removing the interior connection or adding language, allowing the kitchen to be removed, etc. so i, i think we need to know the direction of the board before it, before kind of working on the language. okay. would you please be thinking about that by the time we get to the discussion part of this. and mr. green would you be, uh, would you respond to the same, uh, question or attempt to collab with your next door neighbor there to give us some language,

please, and commissioner eppler had a question. yeah. sorry, mr. teague. i had one quick one. um, because it may come up. could you remind us what the standard would be for the granting of a conditional use for a dwelling unit? murder so there's a list of criteria. um, i'd have to. i don't have those memorized, so i'd have to go grab my laptop if you want. are you asking for the criteria for the conditional use or the reasonable for the conditional use? for a conditional use for i can i can grab that and tell you if you want. yeah, i appreciate it. yeah, sure. maybe useful okay. thank you. commissioners matters submitted. commissioners. this matters submitted. or are we waiting for something? no um. no. mr. mister green has you had a question for him? no does he have. he wasn't previously participating, but he's mr. green. do you have anything to add? yeah. since mr. green's

name was. since i was brought up. since he was implicated. three minutes. maybe he should testify a little bit. uh, good evening again. uh, matthew green representing dvi. the questions were what to do, how to how the stairs would be removed or sorry , how the stairs would be. yes how the stairs would be removed after this. um well, first, when the stairs are put in, they'll be, you know, there'll be some structural changes to the property. the joists will be cut. cut the new headers put in to make that opening. they'll have to, you know, make sure the opening is wide enough and allows the proper headroom to move in. so it'll be a fairly large opening. um, the at the end of the process, you could do two things. you could, uh, remove the stairs and then restore the jointing and restore the, the fire separation. you could you could just wall in the stairs like you said, the stairs to nowhere. those walls would have to be fire rated to keep the fire separation between the two units. um i suppose you're

discussing keeping the stairs with the stair with the stairs. sorry. with the door on either end. that would be an option as well, but they'd have to be fire rated doors, which are fairly, um, you know, they're they're pricier than regular doors, but they're not ridiculously expensive. you. okay. i don't. oh. so go ahead, president swig. so sorry i pressed the wrong button. uh, we're in now. oh. conditional use. yeah, yeah. commissioner epler had asked me to share the criteria, so i'm going to use the overhead. all right. there's a bit of a glare. yeah. he's gonna. he helped me last time to work on the grill glare. there you go. okay. all

right. is that fairly legible? okay. thank you very much. okay. so for in planning code section 317, um, because there's different types of removal of dwelling units, right. you can demolish it. you can convert it to another use. you can merge units. so for merger these these are the a through h criteria. um if you're all able to read them i won't necessarily read them all out loud, but i'm happy to read any of them for you. if you like. would you would you please read the most applicable ones? for those who may not be able to see the screen clearly, who are online, and who may be sitting in the audience and can't see the screen, please. so do you want me to read them all then? those those which you feel are more most applicable to this? they all have equal weight. okay. um, i don't know if i would feel comfortable not

reading them all. um so one, the first one is about whether or not it's owner occupied housing and for how long it's been, um, owner occupied. the second one is, is, um, if the merger is intended for owner occupancy, the third is whether or not it would remove an affordable unit or a rent controlled unit. um, d is, um, if it is a rent controlled unit, um, whether there be any replacement housing, um, and comparable in terms of size and bedrooms, affordability, etc. c e is how recently the unit had been occupied by tenants. f is whether a number of bedrooms provided in the merged unit will be equal or greater than the total before g is whether or not the removal is necessary to correct any kind of design or

functional deficiencies, and the interior of the building and, um h is well, that's um, for unauthorized units, which is not the case here. and then there's some language relevant to certain types of evictions and prohibitions. there and these are just factors, right? you look at them and you kind of weigh between the answers on each one. these aren't required findings like in a variance that you have to make these findings. these are just criteria that have to be considered, um there and then and then there's the general conditional use and the same. but there there are findings but they're but they're not. they're fairly subjective findings. um, could go over those. but those aren't specific to mergers. it's like, is it beneficial to the right. yeah. yeah consistent with neighborhood etc. yeah, right. thank you for that. appreciate it. now we can move forward to, uh, trying to resolve this issue

tonight. commissioner lemberg. i'll call on you first. please thank you. um, okay, so that was actually a good segue. uh, because we started reading code sections. so that's what i'm going to do as well. um, i want to do a little bit of a rundown on federal disability law, because i don't think it's being represented extremely well in this room tonight. uh, and i worked for four years as the lead housing attorney at open door legal in the bayview. i most 60% of my clients were disabled, and i did exclusively housing related cases. uh, during my time there. um, i'm going to read from the federal department of housing and urban development website regarding the fair housing act, which this , uh, which the ordinance that mr. teague has been talking about all evening, uh, was purported to support, uh, but for several reasons, does not. and i will go into detailed reasons why. um, number one, under the fair housing act, this

is a federal law from 1968. there is a difference between a reasonable accommodation and a reasonable modification. a reasonable accommodation is a change, exception or adjustment to a rule policy practice or service. that should sound familiar to all of you tonight, because that is indeed what we're actually dealing with. uh, going through the city here, a reasonable modification is a change to the structure of a housing development or dwelling. now that is what mr. metz is seeking to do. obviously, he's seeking to change the physical structure of his home. um, but the key difference here is that the general application of the fair housing act is between landlords and tenants. that's not what we're dealing with here. we're not dealing with landlords and tenants. mr. metz owns the building as has been declared here, uh, extensively and therefore here. um, if this was a tenant coming before mr. metz's tenant coming before us and asking for this, this would

be a very different question and a very different discussion. however, um, what we're actually dealing with here is mr. metz going to the city? who is not a housing provider under the fair housing act and who, by the way, is not required to provide, uh, options like this but has affirmatively chosen to do so. um mr. metz is not asking the city for a reasonable modification, uh, because he has the ability to do that. mr. metz is asking the city for a reasonable accommodation, which is a change to a policy, a rule. and in this case, an ordinance requiring that he, uh, previously. as mr. teague has been saying, uh, previously was required to go through a conditional use authorization process. um, now, i guess that isn't the rule anymore. but as of recently. but that is, um, i guess that's just what it is. uh, the fair housing act applies to most housing. uh, it does not

apply to federally subsidized housing, which is not what we're talking about here this evening. um if a reasonable modification is necessary, you may, in certain circumstances require the individual with a disability to pay for the change and require them to pay to undo the change if they move out. now, that again, is what very similar to what we're hearing here tonight right? uh, this is what the condition that the city placed on this going on this condition here, here's the catch. um, because this is not, in fact, a reasonable modification, but in fact, a reasonable accommodation under the fair housing act. the city does not have the ability to put on any conditions at all. um, that is a solid rule. uh, it is extremely well settled under federal case law. uh, it is also extremely well settled under state case law, as california has actually, uh, passed laws that are more protective than the federal laws, uh, and in no

ways less protective, of course, because we have this lovely concept called federal preemption, where state laws can exist that are more protective than the federal laws, but they cannot be less protective than the federal laws. um, that's why, you know, the federal access to abortion was such a big deal, etc. that's not relevant. um, all of this is to say, um, the city does not have the ability to put conditions on this permit at all. um, and i, you know, i, i don't know what else to say about that. uh there's one other part i'll do when a reasonable modification or accommodation request is submitted. uh, the process is the same. uh, and what you do is you go into what's called the interactive process and the interactive process is a and i alluded to this in some of my questions earlier, the, uh, the interactive process is an interactive process, a back and forth conversation between the

requester and the housing provider. um, in which, uh, you know, the reasonableness of the request that's being made is determined back and forth. um, that's where we're going to that's where i would like this body to focus our discussion on is whether the accommodation being requested today is reasonable. um, that being said, again, i don't believe the city has any ability to put any condition on this and the mere fact that the that that supervisor, then supervisor wiener passed this ordinance in 2015 with unanimous support, i will add from of this 2015 ordinance. uh, and none of those supervisors who passed that are also are currently on the board today. um, but none of them caught this. apparently and the language of the ordinance itself actually says reasonably modifying policies and rules. but as i just said, that's not actually how this works. um the reason i asked both mr. metz and

mr. teague whether there was that interactive process was to see if it happened or not, and the answer i heard was no. um, that and mr. teague did say that there had been back and forth conversation between the planning department and mr. metz . uh, but not actually in regard to the accommodation itself, um, which is what is required. and in fact, in under california, but not federal law, there is a separate legal cause of action for failure to engage in the interactive process. that's actually a separate legal claim altogether. that's addition to a failure to accommodate, um, and. all of this is to say, the san francisco ordinance, as presented. and i was really, really surprised to be reading all of the case materials today, knowing everything i knew going into this case, um, the san francisco ordinance does not apply reasonable modification law. at all, nor could it ever, because the city with the one exception that i'm aware of,

which is the midtown park apartments, does not actually own any residential housing in the city. they have numerous other types of agreements and regulatory agreements in place, but not the. they clearly do not own this housing. this housing is owned by mr. metz and his husband, um, for all these reasons, i think we have to have to under federal and state disability law, grant this without any conditions at all. um, i don't think there's another way around it. i do, i was very interested to hear what vice president lopez said earlier, which was regarding the , the, the kitchen, um, and turning that kitchen into a bedroom. and i do think there is some wiggle room there ultimately, uh, because the city does have to approve those plans still ultimately. and the question is whether that is a reasonable accommodation. i'm not going to answer that question. we can answer that question, actually, because i believe we have de novo review over this. although miss

rosenberg or miss huber can correct me if i'm wrong about that. okay, so we have the ability to decide whether it's reasonable. we may or may not make that decision here tonight. i think that is definitely open for discussion to this body. um, but i don't think that the, the conditions to change it back are should even be on the table. i'll, uh, i'll pass it off. thanks. uh, commissioner eppler. well, that that's a tough act to follow. and um, i and. i don't think any time will we ever have a case that goes into my specialty, my specialty of law. so i'll never be able to do that . thank thank you for that. i, i appreciate that that education i was looking at this, uh, um, just practically through the application of our own, uh, city policies and processes, and you know, i kind of think i kind of playing this out, right? if we

deny the appeal, then i would anticipate that the appellant would go on to seek a conditional use, um, particularly because the last conditional use process was done under color of an interpretation law that does no longer exist. and, you know, having thought about the different factors for the conditional use of a dwelling merger, i could see how the planning, um, commission would grant that conditional use in this circumstance, which is an extraordinary circumstance, since it may not be 100% unique or and i know that's redundant to say, because unique is unique , but it's definitely a very limited circumstance. um, if the planning commission denied that conditional use authorization, i would then anticipate the appellant to appeal that. um, and it would come before this body and i think that if we look at this and we say, well, you know, if we would in that circumstance grant the conditional use ourselves or we

feel like the criteria for the conditional use are met, then we should just skip all this process and go ahead and do it tonight. so that's that's where i'm leaning. i can be persuaded otherwise. but that that's the direction in which i was i was thinking on this. thank you. um may i, as the board's attorney, just remind it that it would need to make a decision under the criteria of the reasonable modification code. at issue before the board. i understand that you would consider those factors, but what is before the board is not a conditional use authorization, right? we'd certainly frame it differently. but the outcome would be would be the same. commissioner yes. i'll go. um yeah. i think, um, following following on, commissioner eppler's, uh, reasoning and, and i think i'm going to artfully try to dodge the question of the legality of

the ordinance itself. um, because that feels like it's above my pay grade. um, but within. the four corners of what we have before us, um, i guess i'll, i'll start by saying that that this is a tough one for me. um, i'm generally in favor of property owners being able to do what they want and need with their property. um, i'm also a big affordable housing guy. uh, so that this puts me in a in a tough spot. um, i think i think that that, um, and i and i will say that i think mr. teague and the department because i, i, i feel like this is a good example of the department trying to do.

right. uh, in a tough situation. um. and i think and i do especially appreciate the suggestions for, you know, things around the edges that we might be able to modify, uh, this evening if we go, uh, uh, forward with an action that's short of, uh, a legal merger. um and, and, and, and i thought commissioner eppler was going to go in a place where i'm kind of think i'm landing and then i think we diverge a little bit with the with the end point. but in my mind, this was this was in the queue process. i think if we read the tea leaves, the queue process was not going to go well for the appellant. um, in, in

over the summer. uh, and so there was an audible into mx land, um, which we have the mx before us. uh, this evening post uh audible sb 330 is being, uh, perceived and interpreted in a different way. and so we almost have to, to, uh, you know, turn back time to, to the queue, hearing, uh, but ask, uh, time to fast forward to the new sb 330 interpretation. at the same time. um, and it feels to me, if we go with, uh, permitting the legal merger, that that's what we're doing is we're wearing the planning commission's hat, uh, while we, uh, understand the future, what it is to be today in terms of how we interpret sb 330, um, that feels uncomfortable to me as much as

if i were a planning commissioner. i think i would approve the legal merger in this case. but i'm not a planning commissioner. i'm a board of appeals guy. um, and this does feel like an unusual, unique situation in, um, i do think that, um, like, weighing the interest in the equities here. i do think that, uh, precedent may need to be set that that situations like these would qualify for a legal merger because i do think that with an aging population, uh, will be having these types of, of conversations more and more in the years to come. um, but i also think that that type of precedent should be set by the

party that is entrusted with those decisions. and that body to me is the planning commission, not the not the boa. um, and so i think i'd be in favor of, of, of allowing the, the, the, the mx to, to carry forward probably with a couple of modifications, uh, with allowing the, the removal of a kitchen, uh, with the condition that it need to be replaced, uh, after the need is no longer present and then, and then maybe, um, uh, also modifying the condition with respect to the, to the connection and allowing for, for that not to be replaced for that to be sealed off. i think that that feels like to me, if, you know, if i were to make the call myself, i

think there's more that we can do to, to be further accommodating, uh, of the, the, the, the appellant. um, but i do think that the, the, the, the, the legal merger question, um, for feels like it's outside of the types of questions that i have to decide on this body on a regular basis. and it's a type of question that the planning commission does. sides regularly , um, and usually when we have appeals before this body of the planning commissions decisions on something like a cu, we have the benefit of that decision of the, the reasoning of the planning commission for why certain factors were, uh, were, were, uh, were considered or weighed, you know, in a certain way. we don't have the benefit

of that this evening because, you know, the queue question was never decided by the planning commission. and so i think, you know, with apologies for, for kind of, uh, you know, for a long kind of, uh, missive on, on how i think about it. but i do think the, the, the outcome that feels kind of the most the most, uh, accommodate while also being , uh, respectful of kind of the expertise and, and, and jurisdictional kind of, uh. uh, boundaries of, of the different bodies in the city. i think the, the, the outcome that makes the most sense for me is to stay in mx without illegal merger, allow the property holder, property owner to go to the planning commission in to see if a see

you will pass their under this new sb 330 interpretation in uh and see if they can get the legal merger that way and then even if that's not successful, if that gets appealed, it comes back before us, then i think at least we have the benefit of hearing from the members of the planning commission. uh as communicated through their decision, uh, the factors that they took into consideration and why, why and kind of let the more quasi policy making, uh, body on these topics, uh, let that body weigh in and then i think i feel more comfortable with, with, um, you know, with, with, uh, granting an appeal of those decisions once we've had the benefit of, of them sussing out the facts or weighing the factors and telling us what they

think. so that's that's how i'm thinking. okay. thanks um, so i agree, just one point of clarification. it is my understanding that the board of supervisors hears appeals of a conditional use authorization. so um, okay. thank you. um, i, i would you know, it's great to be on the panel with, like, four lawyers because they actually know what they're talking about. i have no clue from a legal standpoint because i didn't have that education. listen, thanks, guys. um, for all that support, i say that sincerely. um, so i, i tend to agree with, uh, commissioner lopez, um, and, and because i think this is jurisdiction seven of the planning commission, and i don't want to screw things up or set a precedent that's going to screw them up for the for the future for and i think we have a path

forward and without by going in that direction because we can get it, we can accommodate the appellant and their, their wishes. but it it does force them to go back or not. uh, to, to get a, uh, go the cu path or not. um, the, the, you know, the, the thing that is one thing that's influencing me is that it's, it's just common sense. it's the human thing to do. it's the just thing to do. and um, uh, being the senior member of this, this panel, thankfully without and respectfully without a disability, i, i'm, i'm sympathetic to the right thing to do and the just thing to do for people going into their senior years. um, so the other thing is that this, this apartment isn't being used as a

residence. so we're not in reality, we're not taking, uh, we're not forcing somebody out of a residence. we're not taking away, uh, we're taking away a unit of, of residential possibility. but the owner of the building is chosen by past practice, and i think it was on one of your list of things, corey, it's not being used as a residence anyway. so we're not taking anything away out of the inventory. uh, literally, we are . but in reality, literally, we are a reality. we're not. so i don't feel bad because we're not displacing, uh, a resident. but i'm going back to this so that all being said that, um, being my preference is to go in the direction of commissioner lopez again, i go to you and say, help us with some language, hearing.

commissioner lopez and not saying that the other commissioners, uh, agree or disagree. um, i'd like you to present, uh, some language. should we find for the appellant that would allow, uh, the usage of this unit that without an ifta official separation to move forward for the use that they desire, including the potential of removing the kitchen. or maybe you'll suggest that, you know, build a disable the disabled all the stove and cover it with a plank of wood and use it as a table, you know. but uh, please, please give us the path forward that will enable this to move forward. because the other thing is, in the spirit of the of real life, this is an aging person we're talking about. it's an aging person with a disability. and why the hell should we force them to wait

around for another six months, a year, a year and a half to go through this, this, this agony? um, and that's as you know, that's what it is for most people. so can you give us a way forward that will allow us to, uh, to do what we we'd all like to do on this? i'm i'm happy to attempt it. although i may do it in kind of a roundabout way relative to what you just said. um, because i just want to be really. i want to clarify kind of the reasonable modification program that we have in the intent because i completely respect and understand the sentiment of kind of granting the merger is kind of the planning commission. um, is except that when the merger is being requested as to address a disability, that's what the reasonable modification is for, for. right? so, you know, i'm saying like in this, the cue to remove to merge a unit can be for anything, you know, the reasonable modification request

to merge a unit is in direct response to a physical disability. and so a reasonable modification can be granted for the full merger. um, i just wanted to kind of be clear about that because i don't want you to feel like this body or by the planning commission, by this body that that's what i'm saying. like i the zoning administrator, me or someone in the future could have granted this reasonable modification to, as proposed to merge the whole to merge the unit. so that is de novo before you all like that is within your purview. if the four of you all feel like that is the appropriate response to this situation, is it is absolutely within your purview to make that decision and not kick it back to the planning commission, because through the reasonable modification, you're looking at it through a very different lens . not that the planning commission couldn't look at the same issues involved, but this lens is specifically focused on the disability aspect of the request. so i just want to be clear there, like if everyone

felt like ultimately this was going to be permitted as a merger on the grounds that are in front of you related to the disability, then it would be completely in your purview to, to grant the appeal. and, and, and grant the reasonable modification as proposed just for merger. no conditions. i mean that's please fill please fill in the following blank. um, we motion to, uh, approve the appeal or grant the appeal. grant the appeal on the basis now fill in the blank. well, i'm not going to get, you know, word by word, but i mean, obviously, if you feel that based on the seven criteria for julie's a master getting word by word, the word you fill in the blank as best you can, but you can also be on the basis, you know, generally what i'm hearing is that based on the factors and criteria presented relative to the property owner and their request, it is reasonable to authorize the full dwelling unit merger to accommodate the disability. um that's, you know,

in a big nutshell, that's that's what we're talking about. um, again, specific findings aren't required to be made. the seven criteria for has to be have to be addressed. and again, there were a couple criteria specifically in my authorization that called out like one of them specifically says, are there alternatives? which again, which is why for me, it was like, well, a full merger is one thing. an alternative of is where we landed. um, so i'm not sure what the best mechanical process would be to get to a new letter, but, um, but the basis, you know, would be, i imagine something generally what i described there and to include the, the, the removal of the kitchen and the if it's a full merger, it's a full merger. they can they can connect it however they want. they, they wouldn't get rid of that second kitchen. so we don't have to get into the detail. that's what i'm saying. yeah. if it's a full merger

there are no conditions because that's the full proposal. the other things become moot. um yeah. so uh, julie can you well, can you translate what he just said? i understand that the board wants to allow for a merger of the units, but it seems to be that the zoning administrator saying that we still have to address the criteria for in the planning code. so maybe the best way to deal with this is to have the zoning administrator work with the applicant, modify the language, and we can come back and adopt it. that's what we've done in the past with changing variances. right? that's what i was going to say. the variance decision usually is something to that effect where there's a process to draft and update it. i mean, we could just say, you know, allow for the merger, but he seems to be saying that the criteria have to be addressed. well a new a new letter. what i'm saying is like the decision that was issued was to grant it with conditions. but there's also specific language in about

how the seven criteria were considered that i imagine will be different based on this new decision. and that's like a little bit more of a process in terms of amending that language. okay. well we've done this in the past with regard to the variances. we have approved the variances as and as they have met, as they have met the criteria, and then we've overturned denials of variances and allowed for the variance to be issued. but we let the zoning administrator work with the applicant to craft the language. so exactly. and that's happened quickly and without it. yes. so further discussion. it's kind of like a when they come back it's a rubber stamp. right. we could put it on the next agenda if, you know, if they can get some language together by january 10th or, you know, the thursday before january 10th. right. and that wouldn't be subject to a new hearing, wouldn't be subject to. no, i mean, we should probably give the parties three minutes to address the board to say that they and public comment an agreement and, and blah,

blah, blah. and so that's all we would be, but it wouldn't be a the so the analogy to a variance, a variance requires the zoning administrator to make specific written findings a reasonable modification requires the zoning administrator to consider the factors so the board could make a finding that the factors under the relevant code that it has considered in each of the factors and it finds that each one supports it. um, the modification that is being sought. so i don't know legally if, if the same specificity or written findings are required under the circumstances here. so i think you could come to a decision tonight on the basis that you've considered each of the factors under the code code and have concluded that they support a granting of the modification, modification. lundberg is chomping at the bit

to speak. um okay. there's a few things. um, number one, when you're granting an accommodation which again, this is an exception to a policy or a rule, the rule, the general rule that anybody else seeking a merger would have to go through is that they have to seek a conditional use authorization. and in doing so, they have to, uh, those seven factors that we've discussed have to be considered or eight factors have to be considered. um, and normally the zoning administrator, i think would make that decision. uh, am i or i'm sorry, the planning commission would make that decision. um, and, and they would decide. yes or no on it. right. that would be the normal process that it would go through . if a merger is being sought, however, a reasonable accommodation or modification, whatever we want to call it, is asking for an exception to that policy. so the exception is that a conditional use is not

necessary. that's the exception. that's the that's the accommodation that the city has the power to grant. um, and we are representatives of the city in this circumstance. and i think mr. teague was starting to get what i was catching on to because i, i heard his, uh, his rationale starting to change a little bit. um, but, um, ultimately like that, that's the accommodation that we can make. we this is not a conditional. this is not an appeal of a conditional use as as miss huber said, that's not even within our jurisdiction to decide that we don't even have the ability to do that. but, um, putting those eight factors in there, i don't think is a terrible idea. i think it's actually a good idea. um, because i think it strengthens the, uh, the, the decision that we would be making under such a circumstance that, you know, because because there is no precedent for this ultimately, um, and, you know, we could say, uh, we're doing this, but ultimately we as a

body, um, you know, we're required to not only consider the city law, which i contend was not written well, um, and not written to actually conform with state and federal law. but we also have to consider the state and federal laws themselves as miss huber corrected me on a few weeks ago, we do and are required to consider state laws in our decision making. um in most circumstances, and this is not an exception to that. it um, and as a result, i don't you know, i think. having the appellant do a file, a conditional use authorization, an application at this stage is not is essentially denying the accommodation because it's still making them go back and do the whole process over again. and as you were alluding to president zweig, that could take six, eight months or more. and that's not reasonable like that just is not reasonable at all. um, and i

certainly wouldn't be in support of that. but i, you know, i if, if we did want to consider that i do think a full merger and i think you were starting to get this at the end. two presidents wig that um, you know, the merger is, uh, once the merger is granted and mr. teague said this to, um, once the merger is granted, they can kind of do whatever they want with it. there's no there's no rules on that anymore. um, and i think that's what we should be considering and voting on tonight. and i hope we do. um, and i'm a little scared because i don't see all of my fellow commissioners on the same page about this, but i and i know we need all four votes to support a motion for this, but. so would you like to make a motion that we can argue about, uh, and, and collaborate on, uh, or maybe even vote for? i would love to. um, and i will ask for your help, julie. and then commissioner lopez will follow

you up with a an alternative or or similar opinion or recommend a collaborative adjustment. i uh, i move to grant the appeal, uh, to grant the appeal. uh and, uh, issue the issue. the reasonable modification request under the language of section three, uh planning code, section 305.1, um. to hold on. sorry, i should have been writing this down. um. uh, to allow the merger of the two units to move forward on the basis that that, um. on the basis that, uh, the merger of the units is a is a reasonable accommodation to mr.

metz's. uh proven disability. um, and that it does not, uh, does not conflict with, um, with city or state law. we can work from there. okay. uh, commissioner lopez, i know, um, i. i'm open to this, and i can definitely be convinced, i think that, um. when we're talking about the criteria, um, it doesn't feel to me like we've really. wrestled with those criteria in a thorough way so as

to support a different conclusion than what what the wsa has reached. um and i think that should be the basis for, for granting the, the appeal, which, which should be. hey, zia, you got this wrong. and this is why, um, and so i'd love to be able to hang our hat on on that. explicitly um, because i do, i do agree that it's unprecedented. um and we may we may be getting more of these and i'd like to be able to, to say, um, yes, you know, next case yours qualifies under the met's

standard essentially. and that goes to precedent. yeah, yeah. so where where are we how are we going to do that? commissioner eppler? well, and i apologize for, for my misstatement on the, uh, conditional use authorization appeal. i was so dazzled by commissioner lindbergh's legal analysis, i was lost. my rationality. i i, i mean, so the criteria that we are trying to base this around, um, are the criteria set forth then in the reasonable modification decision. correct? yes um, you know, if. if the process is such that the zoning administrator takes our decision and then reworks that into something that we then review, i mean, i think from a procedural standpoint, we get to where commissioner lopez, you know,

wants to be, um, in terms of having crafted criteria that that makes sense to both planning and to us. um, and so it may be that's simple as going through that process to get to that at that decision. so, i mean, i don't know if that requires any modification of the , the, um, the motion then, but if that is something that we are, you know, looking for to be more comfortable that we've reasoned the decision adequately, that it can be followed in the future, um, for whatever precedential value it has and that seems to be the way that we've gone about this in the past, although, you know, this is outside of my limited experience on the board thus far . um, so, mr. teague, would you shoot holes? not that i want you to shoot holes. um, because i'm not finding any holes to shoot.

but you're the guy who has to actualize this, and, you know, we walk away and then then this happens, as, you know, the result of this happens to your department. so can you in the spirit of precedent in the in the spirit of, uh, legal will, uh, legal ramifications, can you find some holes to shoot? and i hope not in, uh, commissioner lehmberg's, uh, motion, um, well, what i will do is what i think i hear is obviously we. and an intent to grant the appeal and approve the full merger. there's that, but there's also a desire to have a good letter on that basis that really fully articulates all the rationale from the board, because this is kind of the first of these kind of situations. and so, so what i

think i'm hearing is an, a desire for like a, a motion of intent to grant the appeal, continue it to the next hearing to allow an updated draft to be, um, provided to the board for review and approval. so like the intent is clear, going to grant the appeal grant the merger. but just basically continuing to the next hearing to allow the actual updated draft letter to be drafted and submitted and then ultimately voted on. you know, wordsmith by the board at the next hearing. i'm amenable to that. i think that makes sense. that delays it a month, which isn't ideal, but i think it's, uh, i think that does cover our bases in many ways. okay. um who's up? uh, commissioner lopez or commissioner lundberg? your names are are, uh, commissioner lopez. yeah, i think jc and i'm

looking at this in real time, but i think back to what mr. teague said earlier. i'm looking at criterion d in the rm decision, uh, with respect to alternatives, i think what we would essentially be saying is that the, the, the alternatives to a full legal merger are inadequate in light of the, uh, the disability, um, experience by the property owner. essentially, we're saying that these alternatives are not good enough. once we take into account the nature of the of the disability. and, um. i mean, i think i kind of feel like that gets us here. we're essentially saying that, uh, in the future, in a future case, we need to we

need to be confident that that the essentially the disability prevents the alternatives from being reasonable because they're too burdensome. um, to for someone experiencing that disability to undertake. commissioner lundberg, you're it's your motion. you've heard i know i don't disagree with what you said, vice president lopez. i really don't. um, ultimately, though, what this boils down to is federal disability law. and, you know, and i think that's that preempts the local ordinance. um, that's what i keep getting stuck on. and i'm happy to give a legal citation, a specific legal citation as to the law that we would be violating if we didn't do this. but, um, i, i'm worried about setting precedent that involves the involvement of those eight coa factors where it's not really what we're talking about here today, and it's not what we're considering here today. i,

i would just advise it is my view that it is what we're considering here today. i understand your position, commissioner lemberg. i understand the mayor's office of disability is also an expert on these issues. and they consider the zoning administrator's decision on. and i would just encourage the board. and regardless of what you decide to take into account the code that is before you, i was going to say as, as you know, your fellow commissioner on this, there's a lot of circumstances where the laws in need of change in order to, i think, comport to, you know, i common sense or other factors that we consider from a legal basis and, and we use these opportunities to get that law to change and then try to couch our decisions within the laws that exist at this time. and i've butted my head against that a couple of times myself. and so i understand your stress on that. but i think that we can dispose of this immediate case in a positive way. while leaving the opportunity for the code to

be brought into, uh, broader state and federal compliance if necessary, and that i agree with. so on that basis, i'll amend my motion to, uh, continue this matter to the january 10th calendar, if that's okay. julie. um uh, which is our next available meeting, assuming that the parties are available on that date. um uh, yes, i'm seeing nods. uh, continue this matter to january, our january 10th calendar. uh, so that the planning department can on, uh, redraft the, uh, the response. unless i'm missing something. you want to go stronger and go, uh. um, grant. the grant. oh, yes. to grant the appeal and grant on the on the condition that the planning department will come. come back with what you just described. so we don't. what what are we doing on january ten? we should grant the

appeal. we should continue this with the intent to grant the appeal. okay? okay. thank you, thank you. i think that's, uh, with we'll continue it with the intent to grant the appeal, which is a very odd thing to say out loud, but, uh, that i think it's our best option here. so so we have a i'll add some language and you tell me if you want it changed. we have a motion from commissioner lemberg to continue this item to january 10th. so to allow the zoning administrator and the applicant to work on modifying the reasonable, uh, modification decision to allow for the merger of the unit with criteria supporting this outcome . uh, this motion is made with the intent that the board basically, i'll word this better in the minutes, but intends to grant the appeal and modify this decision. i will add one thing in there that i think makes sense, which is if the conditions change between now and january 10th, uh, the condition is that, uh, that the

planning department submits that we, uh, add additional time to discuss those changes and allow testimony on it. does that am i, i mean, yeah, it's i think everyone wants the same result. so three minutes each public comment i mean, i don't i don't know if we should allow i mean, so i think that's i that will happen anyway. commissioner um, because they're going to come up with two minutes each, uh, the planning department will present their position, uh, the opportunity for the appellant to speak will be there. uh, then there's the commissioners will have the opportunity to comment. and so along with public comment. and so i think everything what you're concerned about will be covered by the process anyway. so i don't think it's necessary to add that language. i appreciate that respectfully. okay. so then that would be given to us. the change modified decision the thursday prior to the hearing. okay. so on that motion by wait, wait, can i can i add sorry. um,

almost with uh, with commissioner lindbergh's permission given, i think i, i'd like to add and i'll allow our, our ed to, to figure out how to how to do it. but i'd like to add something, uh, explicitly so we can have a through line for, for future cases, like explicitly pointing to the proposed alternatives in the arm , uh, not adequately meeting the needs of the disability. can you say that again? i didn't understand either. yeah i'd like i'd like us to, uh, i guess point the za, uh, toward the direction of modifying the proposed alternative is based on the nature of the disability. that's that's present in the facts. so you want to you want to you you you really you want

to make this an extraordinary exception and point directly to this one. and only case that led us to this finding. uh no, i think i want i want it to be on the basis that that that the, the alternatives that, that are proposed currently under the arm , they're not adequate based on the disability. me. okay so what are we actually asking the planning department to do under that suggestion, though? it's nothing different. it's just pointing to that's the basis for why we are are leaning that way. okay all right commissioner, are you fine with that? yeah i'm fine with that. okay. i'm not commissioner. who would like to pile on. well, i mean, i think it's fine. i think that the zoning administrator will look at each criteria and tailor it appropriately, including, uh, criterion d, which i agree is, is a very important one. but if

we want to flag criterion d specifically, that's that's okay too. knowing that we'll cover the full set of criteria as well. yeah okay. are we ready for a vote. yes. so on that motion, including vice president lopez's comments, uh, vice president lopez, i, commissioner eppler, i president swig, i on the condition that we take a ten minute break now. okay thank you so much for your patience, everyone. we're taking a ten minute break. um, thank you, everybody, for moving through this very, very important okay welcome back to the regular meeting of the san francisco board of appeals. uh, today is december 13th, 2023, and we are on item number six. misha polasek, apologize if i pronounced that incorrectly. uh, versus the zoning administrator. subject property 566 kansas street, appealing the issuance on september 26th, 2023, to

misha polasek of a variance decision denial of a rear yard variance. the proposal is to legalize the third floor solarium conversion within the buildable area of the lot. as an expansion of the master bedroom suite, legalize the use of a third floor unoccupied roof area as a deck with five foot side setbacks, and relocate and extend the spiral stairs located in the rear yard to access the proposed third floor deck. the planning code requires the subject property to maintain a rear yard depth of approximately 45ft. the existing non-compliant building has a rear yard that measures only 31ft eight inches. the proposed rear spiral stairs will encroach approximately six additional feet into the required rear yard. the zoning administrator determined that the project does not meet any of the five findings required by planning code section 305 c, and denied the variance. this is case number 2021 005284, and we will hear from the appellant. first.

welcome. you have seven minutes. thank you. can we make sure we're. we're not immediately i'll i'll ask you okay. do you want it now. when. not. not now. in a minute okay. great. uh. thank you. uh, and good evening, president swig. members of the board, director rosenberg, i'm tom tunney. i'm counsel for the appellants and property owners, amanda salmon and mesa. misha palecek. amanda and misha live at 566 kansas with their three children. um i know the appeal description addressed. uh a variety of issues, but we're before the board tonight seeking your approval just of the proposed rear deck and the

circular access stair. we admittedly have a tall order before us in that we're asking you to one over turn a decision. this board itself made in 1987 and affirmed in 1993 concerning this very deck and to overturn a variance denial by the zoning administrator. as i say that now, it seems a bit of a stretch even to ask, but and i had the same reaction you may have had when i first looked at this case. i remember talking to amanda and misha and telling them there's an nsr prohibiting this deck and that you can't do this, but we ask that you keep an open mind as we present the reasons. as we filed this appeal , as we looked more closely, it became more and more clear that there was more to this story that than meets the eye and compelling reasons justifying approval of the deck and stair. i'd like to start by trying to

organize the procedural posture of this appeal in a way that hopefully simplifies things. the appeal has two components, as i mentioned. first, we're asking the board to approve the rear deck. you show there it is. um. the zoning administrator confirmed this in his papers and explained that the planning department had to deny the deck permit because of the board's prior decisions. we agree with that. the deck is not part of the variance decision. so in that sense, the question is very simple concerning the deck does the board agree it can and should overturn its own prior decisions and approve this code compliant deck? the. second component of the appeal is the denial of the rear yard variance for the spiral stair connecting the deck to the rear yard. we're asking the board to overturn this denial. so turning first to the deck, we looked carefully at

the board's proceedings. in 1987 and 1993. in 1987, prior owners judy johnson and doctor willard johnson were seeking to add the current third floor to accommodate their family of four, and they request approval of the deck. the prior owners of the neighboring homes, whose current owners are again opposing this deck, were opposed to the addition and the deck because it would block their views. the discussion during those appeals and the board's resulting decisions were about views and only views. then director robert feldman explain this in a letter to the board of supervisors. we submitted that in our papers. even though such private views were subject to protection at that time, the board voted unanimously to approve the addition. but as a compromise, voted to deny the deck even on its own merits. today, the decision is a little puzzling because as a deck, it

hardly has an impact on views. there is no structure. so how does denying the deck alleviate view impacts most? most importantly, the city later took a 180 degree turn concerning private views and adopted an unequivocal rule that such views are not protected. can you show the next slide, please? the residential design guidelines provide, and i quote the general plan planning code, and these guidelines do not provide for protecting views from private property, which with that with the rationale behind the board's decisions in 1987 and 1993, no longer binding, we submit that the board could only deny the deck for some other reason, and we would argue there is no other reason. the neighbors have cited privacy concerns, but this deck is downhill, and 35 to 40ft away from the closest building wall. you show the deck photos again,

this is a deck off the master bedroom. it's not an area where amanda and misha would have barbecues or parties. for example. it's for their private use, so their presence would be minimal. views are away from the neighbors downhill. amanda and misha have no interest in invading the neighbors privacy. the neighbors concerns seem disingenuous considering the neighbor at 2112 18th street recently received their own rear yard variances for structures and stairs, and decks, including a roof deck. apparently, for them, it's okay to have special privileges in their rear yard, but amanda and misha can't have a code compliant deck as a final rationale for allowing the deck, we note that these kind of decks are ubiquitous on this block, primarily because the block slopes steeply, steeply from north south to north and west to east. there are seven existing and two approved but not yet

built built decks in the immediate vicinity. our second request concerns the access stair and the variance denial. we submitted in our papers. our proposed findings to meet the planning codes, variance request moments. i'd like to add an important, extraordinary and exceptional circumstance. chance and hardship. the spiral stair will allow the deck to be used as a second means of emergency egress. amanda doctor amanda salmon knows these issues all too well. as a trauma surgeon at sf general. perhaps not coincidentally, the current railing around the edge of the deck is there because in 1993, the board allowed it so that the deck could be used as a second emergency egress, which was required. 30s, which was

required at that time. it's not required now. the way this home is configured, the parents bedroom is on the third floor. they often have their infant with them in that room and the two other children are on the ground floor. having that egress would allow them to access to the backyard in an emergency, and able to get their younger children at the ground floor. but it was because of this railing that they thought the deck was legal. when they bought the home. just one sentence if i if i could, uh, they found through the complaint this was not the case, that it was not legal. they're seeking now to legalize it. and the stair. that's what brings us before you this evening. thank you. thank you. i don't see any questions at this time. so you can be seated. we will now hear from the zoning administrator.

okay. good evening again. president swig. commissioners corey teague, zoning administrator for the planning department. again, this is an appeal for proposed rear yard variance that was denied by the zoning administrator in september of this year, the property at 566 kansas street. the subject property is within the rh three zoning district and a 40 x height and bulk district. the existing building constructed in 1929 and contains a single family unit as noted in the decision letter, and the appellant's brief, this property has been before the board two times prior. um related to permits in 1987 and 1993, the board adopted specific conditions of approval in the past, such that the roof area in question cannot be used as a deck, and that and that restriction was recorded on the property as a notice of special restrictions. the current owners purchased the property in 2013 and 2021. enforcement case enforcement cases were opened by dvi and planning for an

unpermitted work, including the use of the rear roof area as an unpermitted deck in violation of the board of appeals decisions. this led to a notice of violation um number 2021 77691 being issued by dbi in july of 2021, then a variance application was subsequently filed in march of this year to legalize that work and propose the additional spiral stair. um a couple of quick points on this one. um this is already been caught out a little bit by the applicant, but the first is, um, you know, regardless of whatever the my opinion was on the merits of the project and the variance, it was required to be denied because it conflicts with the conditions of approval regarding the deck that had been placed there by the board of appeals in the past. so that required the denial so that they had the opportunity to appeal it and come before you again and ask you to essentially change those conditions of approval, since that was not under the purview of the zoning administrator to

do. if you take that issue aside , you know, the zoning administrator also determined that there were no exceptional, extraordinary circumstances related to the property that resulted in any unnecessary hardships or practical difficulties for the existing lot or single family home. you know, the decision letter provides more specific information into those determinations, but generally speaking, you know, the building is a single family home in an rh three district. it's generally taller and deeper than other buildings on kansas street, and it has access to adequate open space. um, and so it wasn't determined that that the addition of the multi storey spiral stair within the required rear yard met the required findings for a variance. um, it's also important to note that and i think this is referenced to that just using that rear roof area as a deck. um would not trigger a variance as long as it had open railing. the planning code allows us, um, roof decks to go on to non compliant structures. um, as long as they have open railings and they're not kind of

increasing the roof height. um so um, that issue was not really pertinent to the variance itself. it wasn't a trigger for the variance itself. we you know, we consider the whole project when it's in front of us. but, um, convert that roof area to a deck itself. wasn't really a trigger for the variance. that was really just the spiral stair. um, so those are the two aspects of the project that's before you today. um, just wanted to make that clear. i think the letter is pretty straightforward and self-explanatory, but i'm available for any questions you may have. and of course, respectfully request that you deny the appeal. thank you. thank you. i don't see any questions at this time. and did i want to weigh in? um, good evening again. uh, just for some background, as mr. teague mentioned, uh, tbi does have a notice of violation for the enclosure of the solarium with solid walls and the deck there. and it's, uh, the case is just

waiting for, um, either a permit to issue to either legalize this or revert it back to this last legal use. so this variance is part of that process of legalizing it. thank you. okay. no questions. thank you. is there any public comment on this item from anyone inside the hearing room? okay i see one hand raised on zoom. mark anderson, please go ahead. uh, yes. my name is, uh. can you hear me? yes, we can. you have three minutes. thank you. so my name is mark anderson. i live with my wife. uh, 2116 18th street. so we are one of the 5 or 6 property. his depending on how you count that share of backyard space with the applicant property. um, and i want to say that our objections to it are don't have to do with views really much more to do with privacy, because despite what the lawyers representing the owners just said from that

vantage point, they can directly see into sort of the private family rooms of multiple properties, not only ours, but our but multiple neighbors as well. uh, and that just isn't comfortable. and we heard, uh, private that they were suggesting that we just put up curtains, but that's, you know, that isn't really, you know, an appropriate or suitable thing for the way we'd like to live. um, so we're just not comfortable with it. we also haven't cared for the fact that there's been years now of illegal, unpermitted construction going on, despite, you know, not only was it against the previous decision, but it was, um, it was done without pulling a permit and the fact that i just don't believe that they were unaware that that there was this, you know, prior decision regarding this deck. that was 30 years ago. i don't know if the, uh, complaints at

the time had to do with solely view. maybe it was, but maybe that was just how they expressed it at the time, because that was deemed a reasonable basis for an objection. but it many several of the owners are still here that were here 30 years ago. and the same issues pertain, which is that as i said, it's like a anyone standing there would basically just be peeking into the private lives of multiple neighbors. thank you. thank you. and we will now hear from ryan pfeiffer. please go ahead. you need to unmute yourself. thank you. um, yeah, i would like to, uh, i'm the resident at 2112 18th street. um, yeah. just wanted to also further emphasize that, you know, this the home in question here, uh, you know, further encroaches on the setback really more than any other home on the block. um, really the aspects around, you

know, other people having a roof deck, um, i don't believe there's equivalence there. and the reason is, is the circumstances are, uh, asymmetric. um you know, frankly, like the you know, privacy, uh, problems mentioned earlier. um, it's, you know, dark out right now. uh, anybody that were to go under that deck can clearly see into our house, um, you know, with, with the lights on and, uh, i think the photos don't really represent that, uh, at all. um, you know, furthermore, i just wanted to highlight it. i think this, you know, approving or overturning or accepting this appeal, uh, would set a weird precedent for, you know, any further construction in the city. uh, it basically it says you can go and, you know, ignore prior notices, special restrictions. uh, do what you want at your house and ask for forgiveness later. and, you know, say that that's an appropriate way to conduct yourself, um, in the way that you, you know, work, work with the city. um, all of us who have put, uh, money and

resources into our homes followed those, uh, you know, uh, procedures. so it doesn't seem like that's happened in this case. and, you know, for these purposes, i think we, you know, we want to see this the right thing happen here. okay. thank you. is there any further public comment on this item? please raise your hand. okay. i don't see any. so we're going to move on to rebuttal. mr. tunney, do you have three minutes? thank thank you. uh, could you show the image on the screen? can you expand that? so i just wanted to point out, i do think now is it is clear that that the neighbors along 18th street there, that's the south side of

the property, are concerned about privacy? um, there currently is the planter there on the south side. um, i think it's been my experience with this board or the planning commission when privacy concerns are at issue, they can be mitigated. we would, uh, that planter is there now. it can be, uh, those plantings can be enhanced to increase the privacy , be with the neighbors that that side of the deck is being pulled five feet, uh, to the north. so five feet further away from those neighbors, um, um. and, uh, and then five feet from the north side as well. um, so, uh, as i said, it's not a heavily used deck, and we just don't feel like the privacy impacts. um, we weren't the not

approving this deck. and, um, it's an amenity, uh, that that's valuable to, uh, misha and amanda. um, and i think the rationale for having appealed it in the past no longer exists. so, um, we do want to thank staff for working with us on this project. the enforcement planner has been rochester. she's been particularly helpful and working with zoning administrator. mr. teague. thank you. thank you. we do have a few questions. president swig then commissioner lundberg. um mr. tunney, the alleged illegal construction. can you talk about that? and was that on your client's watch or was that on a. i'm not i previous there was no illegal construction. um why is why is there. so i can, you know, address the can you address the question ian posed or the accusation posed? i think maybe it has to do with these

aspects of the property that have to be legalized. um, that includes the solar, um, that was preexisting. and so that wasn't your your your. no okay. that was with that was part of the prior project that was approved in 1987. okay. so that's been there ever since. and it may it may be a reference to the deck. you asked me to answer my question. thank you. on the issue of the deck, can you put that photo back up? that was a good photo. so are the folks who were just talking on the phone, do they live in the 211222116? um, can can their issue be mitigated by aa6 foot opaque, um, fence or structure that, that rises on their side of the, the deck? yes. so so would you be open uh, to, to us require a, an opaque. yes. uh, fence, six foot because that's what we can

do. we like the privacy too. so yes. okay. good that you answer both my questions. thank you very much. uh, commissioner lemberg. thank you. um. the main thing i'm getting stuck on here is, um, you know, even if we were to overturn the notice of special restrictions, we would still have to find that all of the variance factors are met. um, because this is an appeal to a variance decision. um, and. i just heard you say that the privacy concerns could be mitigated, but my concern is that in order for us to even consider granting this appeal tonight, we have to be satisfied that those privacy concerns will be mitigated, not just that they could potentially be mitigated in the future for, um, what

would your clients be willing to do to mitigate those concerns, to address finding four in the variance decision? okay. first, first, uh, i think what president zweig's proposal, well, if that were adopted as a condition of the decision on would be then it would be binding. and so that wouldn't be a good it would be a would. but i do think it's important that and maybe the zoning administrator can, can echo this and clarify you this board does not have to make the variance findings to approve and allow the deck alone, and that the deck is code complying the only restriction against being able to have this deck are those prior decisions by the board. so you would be deciding independently okay, this deck is

allowed and the any potential impacts have been mitigated. so we would we would do that and we would overturn those prior decisions. the variance findings go only to the rear spiral stair for. i'm just reading the variance decision itself. and it says that you know, the description of variance. rear yard variance sought. the proposal is to legalize the third floor solarium conversion within the buildable area of a yacht. yadda yadda. legalize the use of a third floor, unoccupied roof area as a deck with five foot side setbacks and relocate and extend spiral stairs. it doesn't seem like it's one of those. it says it's all three of those, and i mean, i'm happy to confirm with mr. teague regarding you know, uh, his if some of these factors apply to, uh, you know, all of these, but i'm the plain reading of this is that it's actually the variance was to confirm all three of

those things. i understand i read that too. and i think as mr. teague was explaining his presentation, he does concede for the project as a whole in the variance application. but that technically, for those for that variance approval and application and the findings, it's only the rear spiral stair. so, so just to confirm it's your position that there's no variance required for the deck or the solarium. it's just the staircase. correct. that okay. correct. all right. and we have a we have a permit a building permit submitted to legalize those aspects of the building. so that would just be review of a building permit to, to in terms of a decision on, on those parts of this project. doesn't the existence of those separate building permits imply that it

is all part of this one? planning permit application that a variance was required to, that a variance was required for i know it's confusing the way the variance is described, but but technically our understanding of the project is a building permit to legalize a few different aspects of this property that were done before for, uh, misha and amanda. they owned the property, but that the only one of those legalized options that requires the variance is the stair. so i'm just i'm still reading this and it you know what i'm seeing is that the planning code requires a rear yard depth of approximately 45ft is what it says. and then that the existing non-compliant structure has a rear yard that

measures only 31ft. eight inches is not that against what the planning code says already? i mean, even regardless of the use of that extending space was there some previous variance? granted for it? was it was built before for that rear yard control existed. so it's legal. non-complying. yeah okay. um thank you for that. that's helpful. um. okay okay. all right. i think that's all i've got for now. thank you. okay. thank you. we will now hear from the planning department. okay. thank you again, corey teague, zoning administrator. uh, one point of clarification, i wanted to i meant to mention before, um, the building permit associated with this variance, did go out for 311. notice there was no doctor filed on that. so

these issues weren't hashed out at the planning commission at all. just just fyi. um, and so to that point, kind of from a design perspective, um, if the board did want to kind of allow the, um, the deck to be used as a deck, that roof area to be yet, but with some kind of screening like that screening itself would probably then require a variance, which would be, you know, fine, totally your purview. we'd probably want it to be achieved the screening while still not be as solid as possible. so if it's, you know, if there's some kind of frost and, you know, lighter material that obscures the view while not blocking a lot of light, that would be a preference from a design perspective. on the other question. so the way the variance decision is structured, there's the whole project. right. um, and we try to describe the whole project because the, the portion of the project that triggers the variance doesn't exist in a vacuum. right? it's part of a whole project. so you describe the whole project, which is all those elements in there. and then the second part of the letter talks about what specifically is triggering the variance. and that's where that,

that next paragraph talks about the stairs are what's actually triggering the variance. that's why the two things that are before you today, like you're right that like the whole project matters, like, you know, because again, it's not a vacuum . um, but the only element of the proposal that's triggering a variance is the spiral stair. um, if they had come forward and not proposed the spiral stair and just propose to convert that roof to a, um, to a deck, we would have had to deny that permit. um, and they would appeal the permit and have come before you and asked to have those conditions removed. um, but it wouldn't have triggered a variance because you can put roof decks on top of non-complying structures as long as again, you're not raising the roof height and you do open railing so that that's a little bit of a nuance here. um, and i hope that helps kind of answer some of those questions. but again, i'm available for any, any questions you may have. and one quick thing, the solarium stuff like it's again, that was

work. that was done in violation before that's being corrected. like that's it's not part of like the variance proposal in the sense it doesn't trigger a variance either. it's not within the required rear yard. so it wasn't really called out specifically for this. thank you . we have questions from president swig, commissioner eppler and commissioner lundberg . um i might should pose this first to the city attorney and then pose the same to you. or she might want to chime in. i'm not sure. so let me pose the question and then let you all decide who's going to answer it. so the question of the nsr, um, i, i, i fully understand nsrs. i have promoted nsrs from this or seen nsrs promoted from this bully pulpit and they are they are purposeful and important. however they were tied to a

specific, uh, ordinances, laws or real reasons at, you know, at the moment that we now have an nsr that is not applicable if it was today, uh, we the basis of that nsr law, which was view would not be valid. so how do we deal with the nsr appropriately in this case, given that it would not be an issue if today we were talking about the deck, who wants to take that jen or corey? i'm happy to do it and be corrected if needed. but like perfect. i mean that the you know, the nsr was really the relevant time. there is the are the restriction like, you know, the board placed conditions of approval on these prior permits. um, that went beyond what was required in the planning code.

um, and, and you know, it's basically under your, your purview to maintain those or modify them or remove them, um, under whatever basis you find appropriate under the project that's in front of you. um, it's kind of a, you know, a de novo review of your of the restrictions that were originally placed on there. um and you would have the same purview you would have if you're reviewing any other project in front of you, variance or, or or, um, a building permit. um, and it would be the board's, you know, decision to make, whether or not they felt the factors that were originally be relevant for those restrictions were still applicable, or if there were new issues or whatever that may be, but it's basically i think that's a, a decision for the board based on the criteria that you have available now. mr. teague has done an excellent job of summarizing a view that i

share, and he's very good. the board has the discretion to change or modify the nsr. okay. so tonight we can say that those that nsr was primarily based on, on view view issues and no longer are view issues recognized as a reason. and we can throw that away. then i mean, i know that some of the written documentation that was provided references views. i you know, i haven't read the minutes , i haven't read the full documentation on the rationale for rationale. so i don't want to speak definitively about, you know, the full reasons. but but view was, is, um, was part of the conversation for sure. okay um, so if this this was a deck and this goes to what you were saying, it goes to what, um, uh, commissioner lemberg was saying, if i think if this were a deck alone tonight and we were

hearing about it and the and we heard on the phone, uh, public comment that said no, they're looking right into our window. we would do probably what i suggested. can we put up an opaque, uh, wall of appropriate or legal size and therefore that , that, uh, that privacy issue is mitigated? uh case closed. let's move forward. okay. um, if we had this, uh, if we had the issue of the, the solarium, that's a separate permit. that's just legalizing something that was illegal. we probably there isn't anything raucous or wrong. it seems, with that. and we would probably only say no. it's probably okay. and we didn't hear from the public. they didn't mention anything about the solarium and the fact that it was illegal and was built. so we probably let that go now, on the case of the spiral staircase , um, we might not let that go because it it goes into and, and

if it was in a separate issue related to a variance doesn't pass any of the variance muster. now not really. or mostly not. and so we probably would deny the appeal if it were, if that single issue was is um, i'm making grand assumptions here, but i'm pretty good at this stuff. um, he says humbly, uh, we would probably, uh, deny the appeal and, and forget and uphold the, the variance decision. so so given that two out of three most likely we would go in a favorable direction and the third would not go in a favorable direction on how do we unbundle this. sure. so we don't throw the baby out with the bath water. i mean, what i if from what i just heard you in terms of if the board was inclined to allow the roof area to be used as a deck, but with the condition of adequate

screening, whatever that may be. right. but not grant the variance for the spiral stair. right? then you would grant the appeal. um to allow for the roof deck or the roof area to be used as a deck with the condition for the adequate screening and the condition that the spiral stair be removed, because right now, as it's issued, it's a full denial, right? it's basically like it's a denial of two things, because the screening is not really part of it right now. so is the denial of the deck and a denial of the, uh, of the stairs. if you're basically saying, well, we want to give them one thing with the condition, but still not the other, then you would grant the appeal and basically just grant the variance for the deck condition, the adding of the screening, but with the condition that the spiral stair be removed. thanks for that wording. i was going to refer to the previous cases. how come you

couldn't be so succinct last time? i thank you very much for that. uh, that and thank you for giving us the solution to unbundling. and i'll turn it over to commissioner epler, who's may have further comments. i'm sure he will. yeah. thank you. um, i appreciate the, the prior direction that you've given us. um, what would be the process for the deck legalization if that came in, in and of itself and wasn't tied to the, uh, well, let's let's assume that the, the restriction was not there and that the, uh, spiral stair was not there. what would be the process for the, uh, deck component if it was at standalone and able to be built there? um, so in that case, so even like prior, the conditions of approval that the board placed were on, those were gone. yes. if we had relaxed those, if those were relaxed. so basically , if you have a building permit that had a condition of approval, that was as, um, adopted by the board, and you want to change that, you have to

go back to that body to do that. right? so, so in this case, if someone came in, they just filed a building permit just to basically add the deck, like use the roof area as the deck. that would be a building permit that we would deny because there's a condition. and but let's say that the restriction wasn't there at all. it was permitted. like what does that process look like? what does neighbor notify location look like? what does there's no there'd be no neighborhood notification. um, it's not required for that. it would basically just go through design review. okay um, again because right now the rear portion of that building is in is a little bit within the required rear yard. if they wanted to put some of that roof deck into that portion of the building, that's in the required rear yard, then, then it had to be open railing. um, and, you know, not raising the roof height. all of that. and then it would just be a design review process. um the one little nuance there is, if we wanted a certain amount of screening that might trigger the variance, because now you're in, you know, you could lead kind of there,

but if you put that aside, basically the process, if you have existing roof space on your building and you want to convert it to a deck, that's usually just a building permit, there's no, there's no, um, 311 notice, and it's just a design review and has the design review taken place for this deck? um my understanding is that it it did happen. um, and i'm trying to recall if there was any. you know, i don't think there was any specific design concerns raised about the deck itself. um, because typically, if that's if there are design concerns about that from the design review, that makes it into the variance letter under finding four. and maybe this is a question for mr. green. but as a permit been pulled for the deck already, i think it's been filed . yeah i don't know. obviously it hasn't been issued. um, but i think it has been filed and would double check that. and, and i guess this may also be a question. mr. green, i'm going to ask you anyway, just in case, would that permit then be

appealable and when would it become appealable? yes so i apologize. it's definitely been filed because i just said a little bit ago that it went through 311. okay. um, so yeah, that that has been filed. it did go through 311. yes. it would be appealable, um, if it was revised and, you know, in some way to do whatever comes out of the hearing today, it would be appealable. the reason, the reason i ask, just for my fellow commissioners, is that normally when we have privacy issues, we get to hear from the people filing the appeal and to figure out what their privacy issues actually are and how to best address them right now, we're kind of shooting in the dark because we've only had public comment with respect to privacy issues, so we'll keep that in mind a little bit. thank you. those are all my questions. sure. uh commissioner lemberg, uh, thank you. i initially crafted this as a question to you, but i realized that you were not actually the right person to ask the question to. so my question is actually to miss huber regarding a question i sort of asked earlier, which is regarding the five variance factors that mr. teague certainly did the analysis for in issuing his decision is that do we also have to follow that standard in, in order to grant

this appeal? i think it depends in part on on how the appeal is granted. so if this board were to grant a variance, it would be required to make the written findings. and my understanding is what we've typically done is continued the matter so that the written findings can be prepared. okay um, what i understand mr. teague to be saying is that because the deck doesn't require for a variance, it's sort of a very unique situation where the variance could conceivably be you could grant the appeal with a modification that would allow the deck and that would not require the findings is because it's not a variance, but the technically. but it sounds like that would be a company with screening that would trigger the variance. i think it would still be triggered. okay. right. thank

you, mr. teague i appreciate that. yep so it's and really what i meant to ask is really just in regard to the staircase portion of it, because i do get the distinction with the other two pieces. now so, um, so just as to the approving the spiral staircase, we would have to make those findings is that. that's correct, that's correct. okay um . then my question to you, mr. teague, is just for sake of example, if we were to do that, um, you know, would your analysis change at all based on. that's a weird question. um sorry things aren't coming out right tonight. um. okay my question is actually if this had just been for the staircase and not the other two portions of

it, which i and again, just in theory, i don't think that actually would have been possible, but, uh, just theoretically, if that were the case, would your variance, um, analysis have changed? no. and that was one of the kind of things i was trying to say, which is kind of had to say no about for the reasons of the, you know, the deck area, the thing that was really in front of me for the trigger for the variance was the spiral staircase. and so, yeah. so my letter is very specifically crafted to say that does not meet the five findings. so if the board felt the other way, you need to craft a letter that, you know, reasoned the other way. got it. um, and what about any possibility of the spiral staircase being i don't even know if this is possible, but being moved to within the footprint of the deck. so that would make it like interior to, you know, and i imagine the property owners don't want to eat up that interior space, but

i don't want to speak for them. that's just my assumption. okay. sorry i should have asked them that question, but i didn't think of it until just now. so uh, okay. all right. i think that's all i've got. thank you, thank you. no further questions. anything further from dubai? no okay. commissioners, this matter submitted. commissioners thoughts. at the risk of putting my foot in my mouth again, i'll start. um so i mean, we've we've got three different issues here. this, you know, the solarium is clearly fine. um, there's a question as to whether we want to do anything with the nsr. uh, with respect to the deck, and i can see that cutting both ways, one is something that's been decided. it's been in place. it's been there for a long time. it's been noticed. it's been part of the record and so it has been decided. and that is what

it is. however, the rationale for that has in large part gone away, and it would seem fair to have our our review of that also . so to have that nsr also go away as a result. and so i would be, you know, open to considering that with respect to and particularly because with respect to the deck, there's still the process that people can follow to appeal the permits for the decks and for us to be able to hold a fulsome hearing about the impact of the decks. if the neighbors can't work something out in advance, and it would be to their benefit to work something out in advance so that we don't start, you know, doing all sorts of crazy things to that deck. um, that said, with respect to the stair, i see nothing. and really, we had nothing argued to us tonight. um, that makes that stair that we really haven't heard any arguments that that stair, um, does meet the variance findings and so i think that we would have to deny the appeal with

respect to the stairway. um i agree with your conclusions. commissioner eppler and this is actually a question for you. and i honestly don't know the answer. is there any benefit to just just, you know, getting rid of the nsr is there any benefit to doing that? if we're granting the appeal anyway? yeah, because the nsr would continues to go along with the property. right. so i mean basically we'd be clearing the title of the property in order to reflect the decision that we make tonight. okay jose. oh no. although since you did ask the question, i did have a question in my mind whether it makes sense to do this conditional like thing or whether it makes more sense to deny the appeal, remove the nsr and then let them file clean with the two parts away from the stair. but i mean, that's i maybe we can get more more, uh, more uh, color on that from,

from the city attorney or, but, um, i don't know. jose any thoughts. i think if you're denying the appeal. well, it's a denial of the appeal. so in order to alter the nsr, you would have to accompany that with a grant of the appeal. so you have the power to modify the action of the department. uh, i'm in favor of essentially going down that path, denying the appeal with respect to and removing the nsr, uh, denying the appeal with respect, i'm sorry, granting the appeal with respect to the two prongs and upholding the ved that that sounds sounds weird. uh, with with respect to the staircase. so basically, you're i like

quarries. i like corey's wording a lot. basically, you like corey's wording. basically you like corey's wording. uh i'm good with it. yeah. okay you want to make that motion with corey's wording since it's already been worded and does exactly what you're talking about. yes, i would make the motion with, uh, corey's wording . i would move to i would move, i would move to grant the appeal. and um, remove the nsr with respect to the, um, deck, uh, to grant the appeal with respect to the solarium and to uphold the appeal with respect to the spiral stair and what other bells and whistles is necessary? uh to uphold the determination and uphold the determination? yes. with respect and the part about the, uh, requiring as a condition a, uh, an opaque or like, um, so we can

talk about that because i'm not convinced i want to do that now. i would rather have the people whose privacy is impacted have conversations with them and perhaps file an appeal. so that they can sort this out if necessary. and then if they can't sort this out amongst themselves, then it comes back to us to make our arbitrary decision. okay i'm going to ask the same question of mr. teague. um that i asked in the last case. okay shoot holes, please. well, it sounds very similar to what we talked about earlier. just maybe sans the buffer, which is basically grant the appeal to grant a variance to allow the roof area to be used as a deck, but with the condition that the spiral stair, you know, not be constructed essentially. so it it changes the variance decision from a, from a straight denial to an

approval of like item one with like a with a condition that item two go away. um, so that would be kind of the mechanism. so in that in that case what happens just mechanically. please clarify. well mechanically then that's you know then that would be the variance that's issued. and they can move forward with the building permit to effectuate the variance. yeah um, the, the, the potential challenge for that a little bit is if we don't deal with the, with the screening issue. now as i mentioned, the adding of the screening, which uyghur, um, a variance. so so that puts it in a very weird place. if we don't deal with that now, now, um, but yeah. yeah, i mean, i, you know, i don't want to try to complicate it, but that's, that's, that's one rationale for dealing with it now, because again, just

doing the converting the roof area to the deck now with open railing doesn't trigger the variance. it just triggers the board of appeals approval because of the prior conditions. but the adding of the screening on that side would, would require, um, essentially a new variance, um, which i don't think is the intention. so i don't know if. yeah, i mean, that's for the board's consideration because i completely understand. and commissioner eppler's point about like the, the like how this hearing is structured in terms of the parties involved. um so i don't know if a, if a continuance to allow more conversation is on that specific issue is appropriate because i don't know if it's the intent to necessarily require new variance for that aspect of the project. either okay. so if we deny the appeal boom gone right. and then the uh, the, the appellant, how

long then the appellant can come back and apply for a permit for the deck? i mean, they have the permit in now. now that includes the deck and the spiral stair. um right. but if we deny the if we deny the appeal, then the, the chalkboard is erased. correct. there's nothing on the table. yeah. if you deny the appeal, then they don't have authorization to do the, um, any of the work that triggers the variance. and including the deck, because that has the conditions of approval for prior from the board of appeals. okay and this is kind of getting down the road, i think commissioner eppler was saying then they could still apply for that deck through their permit, which would be denied. and they kind of have another bite. so then apple, but at the same time that would be appealed by the property owners and not by the yeah, right. so my question is, so first, if, if we if we deny

the appeal the, the it's the chalkboard is washed clean. it's done. correct. at this point that's a yes or no for the variance. yes for the variance. yes. right at that point could the current appellant come back and file for a permit to do the deck project and separately to do the solarium project, which they have to do anyway because it's subject to an nof at this point? yeah. i mean, they could come back, they could take the permit they have now and revise it or split up permits to do separate scopes of work. they could get back in front of the board through a building permit instead of a variance. the place where that gets a little nuanced again, though, is the is the potential for screening. um, because just the nature of where that is. but but but so if uh, if a permit for the deck let's just deal with the deck because that's the contentious part. um, if the permit for the deck were

appealed by the neighbors as and i, you know, if i look in my mind's eye or my crystal ball, which is broken, i would i would wager that the guys that we heard from in, in public comment would be the appellants, uh, if it came back in front of us and, and we, we and the nsr, if the nsr issue were surfaced, we probably would override the nsr because we talked about that. but if the issue is of privacy was raised and we said, okay, we can fix this by putting up a requiring a condition to put up an opaque, uh, privacy fence. um, it doesn't aren't we there? and wouldn't it and where would the variance come in there if we required a privacy fence? because whenever we seem to require a privacy fence, anywhere else, it's a condition of. the our approval. again,

it's really going to depend on which approval it was added to. so, you know, if you want to if the commission if the board wants to have you know, a structural, um, opaque screening there under the current code that's going to trigger a variance, um, you know, the alternative there is we can require, you know, landscaping of a certain height, whether it's bamboo. other thing that's kind of and those don't require variance because it's plants. so if it was a if, if instead of an opaque physical thing thing we, we, we required a, a trellis with thick shrubbery that would be the same as an opaque fixed structure. then, then that would, that would pass muster in, in, in the, in the appeal. yeah. i mean i think if you, if you want to deal with the

potential screening issue as part of this case, or if you want to deal with the potential screening issue, it should probably be as part of this case, because this is where we have the flexibility of the variance. um, you know, typically like even a trellis that's not going to work. but normally if you want landscaping, that's going to be screening for screening purposes , you know, it's typical planner, but the plant itself is a is a plant that provides you not not the support of a structural support like a trellis or something like that. um, so plantings, uh, plantings of at least, uh, ten feet high or six feet high. yeah i mean, oftentimes it's, you know, something like, like bamboo or some type of vegetation that, you know, is going to be easy to maintain and grows fairly, relatively straight. um, but again, that just depends if you want to tackle that issue at all as part of this. and it's understandably a little complex because of the nuance between

the variance and the prior conditions of approval. but if we can get to yes tonight, that would be nice for everybody involved. uh, and, and, and cut the time at and i mean, we would do what we want to do. we would get rid of the, uh, the spiral staircase. we would allow the deck to be built with, with screening according to that wouldn't trigger a variance. and then the nov, which is a solarium fix, is taken care of. two. correct. um so we can get there if we adjust the words to include privacy, landscape keeping, privacy screening. yeah. i mean, if you nail down the, the screening tonight, understanding the context isn't ideal. you know, um, if you were to nail that down tonight or, you know, if you continued it and nailed it down, then however you want to do it, but a part of this case, then it would kind of wrap everything up in this one, in this one case. now kind of the i say it would wrap

everything up. but to commissioner eppler's point, the building permit still appealable to. so if we if you whatever decision you make tonight if that gets effectuated by the building permit, people can appeal that and be unhappy with that decision. but you know so the decision would have been made. i'll, i'll let commissioner eppler, uh, comment now. so and this is, this is, uh, you know, for discussion my, my fellow commissioners, i mean, since we're going to have a, an appealable permit come out of this, my preference i think, would be to leave the issue of screening by itself because we're not going to require any screening that's going to require a variance. i mean, right, i mean, so what we're going to stay within the bounds of what can be done without requiring additional process. yes. and i don't want to require something that's counter productive to all the neighbors just shooting in the dark here.

so i would go silent on screening right now. okay, fine with me. you want to make a do we do we you want to make the motion that he suggested? where am i in motion? land right now? do you want me to try? yeah, go for it. okay, so. so we have a motion from, um, commissioner eppler to grant the appeal and issue the decision on the condition it be modified to allow the roof area to be used as a deck. uh, by by removing the nsr and condition that prohibited the area to be used as a deck, which were imposed by appeal numbers 87, dash one, 80 and 90 3-2 hundred, and then you did mention the solarium, but i don't think is that relevant. we need to address issue it with respect to the issue, the appeal or grant the appeal with respect to do we not in order to get it out of jail? um, because the

work at the solarium isn't part of the trigger for the variance, you know, it's not something that has to be proactively called out, okay. for the variance. the only thing that had to be proactively called out would be the, the condition to not construct the spiral stair. right. i'm getting to that. yeah. okay. okay. so the second part is you're revising it to allow, you know, the roof area to be used as deck and also to uphold the determination with respect to the rear spiral stairs, uphold the determination denying the variance for that. and what basis would you make this motion on? um i would make this motion on, on the basis that the conditions for the prior conditions and nsr are, with respect to the deck, have, uh, been have have changed and that the zoning administrator correctly exercised his discretion with respect to the spiral staircase. okay so thank

you. so on that motion, vice president lopez, a commissioner lemberg i president swig i so that motion carries uh, 4 to 0 okay. thank you. and thank you very much for everyone who is here for item number seven. we really appreciate your patience. we're moving on to item number seven, appeal. number 23, dash 042. elena asturia and eduardo paniagua versus the planning department. subject property, 1228 funston avenue. appealing the cancellation on september seventh, 2023 of a building permit. new dwelling unit on ground floor per rh two zoning density to comply with complaint number (201) 501-4724. legalization of unpermitted interior remodeling and vertical additions at rear restoration of front facade. see permit application number 2014 0206 7948. the permit was canceled for one failing to submit the

request or required revisions per planning commission decision. uh dra 822 deadline and two other same project under duplicate permit number 2019 02153076. note on october 25th, 2023, upon motion by president swig, the board voted four to 0 to 1. commissioner trevino recused to continue this item to december 31st, so that the record could be supplemented with the dra action memo 822 and a brief from the planning department, which includes answers to the following questions. does the housing accountability act apply to this case? if so, is the planning commission's imposition of the conditions consistent with the housing accountability act and why? so thank you for your patience and welcome, and we will hear from the appellants first. good evening commissioners. my name is elena asturias and i own 1228 funston avenue, along with my husband eduardo. thank you for the opportunity to speak with you today. 1228 funston avenue has

been in our family for three generations. when we wanted to remodel our family home, we approached engineer rodrigo santos, who was well respected professional at the time, to help with plan preparation, permit submission and supervision of work. unfortunately, we placed our trust in the wrong person. rodrigo santos, who is now serving federal prison time, defrauded us by assuring us that permits had been issued for the project. we trusted him and took him at his word, and as a result, have endured years of struggle and financial burden at all times. our intention has been to work with the city and reach a compromise. to this end, we have brought forth a new project that a new team and worked with our neighbors to ensure their support for the project. letters of support from our next door neighbors are in your packet. other members of the neighborhood are also here to speak to you. we are here today to hopefully find to bring an end to this difficult chapter and to offer our apologies for the burden thi