to make it shine. it's a really hidden jewel. a lot of people don't know it's here. the legal advice at the controls is the board's legal assistant, al conway. and i'm julie rosenberg, the board's executive director. we will also be joined by representatives from the city

departments that will be presenting before the board this evening. up front, we have tina tam, the deputy zoning administrator representing the planning department, and kevin birmingham, senior inspector with the department of building inspection. the board meeting guidelines are as follows. the board requests that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings. no eating or drinking in the hearing room. the rules of presentation are as follows. appellants, permit holders and department respondents each are given seven minutes to present their case and three minutes for rebuttal. people affiliated with these parties must include their comments within these 7 or 3 minute periods. members of the public who are not affiliated with the parties have up to three minutes each to address the board and no rebuttal. mr. long, our legal assistant, will give you a verbal warning 30s before your time is up. four votes are required to grant an appeal or to modify a permit or determine nation. if you have any questions about requesting a rehearing, the board rules or hearing schedules, please email board staff at board of appeals at sam.gov. org now public

access and participation are paramount importance to the board, as if govtv is broadcasting and streaming this hearing live, and we will have the ability to receive public comment for each item on today's agenda. as of govtv is also providing closed captioning for this meeting. to watch the hearing on tv, go to sph gov tv cable channel 78. please note that it will be rebroadcast on fridays at 4 p.m. on channel 26. a link to the live stream is found on the home page of our website at sph gov. org forward slash voa now. public comment can be provided in three ways one in person, two via zoom. go to our website and click on hearings, and then go to the zoom link or three by telephone call. one (669) 900-6833 and enter webinar id 899 2219 1434 and again as of govt tv's broadcasting and streaming. the phone number and access instructions across the bottom of the screen. if you are watching the live stream or broadcast to block your phone number when 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 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 the speakers is. 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 is 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 alec longway, 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? okay, thank you. if you are a participant and 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 for general public comment? anyone in the room? let me check. zoom. anyone on zoom for general public comment? i don't see anybody, so we will move on to item number two. commissioner comments and questions. good evening everybody. thank you for being here. commissioner was any comments or questions? i think we're good okay. so we will move

on to item number three. the adoption of the minutes commissioners before you for discussion and possible adoption are the minutes of the january 17th, 2024 meeting. commissioners any comments or do i hear a motion to adopt motion to adopt please. okay. is there any public comment on the motion to adopt the minutes? i don't see any public comments. so on that motion, motion president lopez, commissioner trevino i vice president lundberg i commissioner epler i so that motion carries 5 to 0 and the minutes are adopted. so item number four is a special item. this is the board of appeals budget priorities for fiscal years 25 and fiscal year 26. it's an opportunity for members of the public to provide the board input on budget priorities pursuant to section 3.3 b, one of the administrative code, in advance of the board's consideration of the fiscal year 25 and 26, budget, is there any

member of the public who would like to comment on the budget? anyone in the room? anybody on zoom? okay i don't see any public comment. so we're going to move on to item number five or yes, five. this is appeal number 23. dash 060. daniel destefano versus department of building inspection. planning department approval. subject property 525 first avenue appealing the issuance on november 7th, 2023 to dana and edward wong of an alteration permit new seven by 14 foot deck at rear with three foot staircase. revision to building permit number 2023 0314 3656. and this is permit number 2023 ten, 20, 9145. and we will hear from the appellant first. mr. de stefano. good evening. good

evening. thank you for the opportunity to express my concerns regarding my neighbor's renovation project. i have tried to communicate these concerns to the building department on numerous occasions, but did not feel either fully understood or listened to on a general note, given the major house renovation and extensive excavation that has taken place, i believe there should have been advanced notice given to the neighbors so that any concerns about the project would have been identified and resolved during the review of permit. as i forgot, the interior you can see in my exhibit eight and read in my complaint that the excavation extended to the backyard to

include rebar reinforced drainage and substantial concrete patio. it is my understanding from my conversation with the planning department that such excavation and extra bill require a permit. the one opposition letter notes permitting the floor on range lanes, but does not indicate where they were installed. in december, months after the construction, i was notified that a deck permit was issued when i reviewed the plans, it showed the deck support beams sit on concrete pylons at the plan did not show the already built patio extension. please see exhibit b d there is no mention of the stairs. full length or landing aside for this

concern and permit issues. on a personal level, the proposed deck will greatly impact the use of our yard. the deck and staircase, as you can see in the exhibits, provide by the plenty off of pardon the mr. wong's exhibit two and four extend well behind my home and will look into our bedroom windows. this, along with the other loss of privacy, negatively affects and enjoyment of our garden. thank you for consideration to grant my appeal. okay. thank you i don't see i see a question from commissioner savino. thank you, mr. destefano. my question is, what out specifically do you want changed in your neighbor

plan? uh, well, a is the fact that the deck is built in and warrant construction. uh, the patio, um, extend the, uh, foundation, uh, and floor of the house outside of the building and the original permits. and when i went to see in the building department does not indicate any work or approve any work, nor approve excavation. so um, now they want to put up deck on top of it. so that's my concerns aside for, uh, the specifics, uh, of having, uh, privacy. so. so you want no deck , correct. pardon me? you want the you want no deck to be built

? no. okay. and have you asked mr. wong or miss wong? have you told them about your desire not to have the deck? if he. i'm sorry, i don't have you and your neighbors discussed this at all. um, yes. we're um. we uh, discuss it in. and they told him. they're saying that the deck is not going to extend, um, past my house, and they say they the, uh, allow you to build it, and therefore they want to go ahead and have a deck. and the deck does extend. and also the, the staircase to access the, uh, the is going to extend further out into the backyard. and when you go up the backyard, you look right into my, uh, two bedrooms in the back of the house. okay.

thank you. yeah. thank you, thank you. i don't see any further questions. you can be seated now. thank you. thank you. we'll now hear from the permit holders. uh, mr. and mrs. wong. uh, now. okay. thank you. okay microphone. okay oops. okay dear board members and audience, my name is dana wong. i'm the owner of 525 first avenue. so we propose a seven by 14 foot deck with a three foot staircase to the back of our house to allow for backyard access. it is

approved by the department of inspection on november 7th, 2023. and mr. distefano filed an appeal on november 21st, 2023. the board should deny this appeal as the. this permit was a properly issued. our house is a detached single family house which is situated on a 35 by 112 foot and six inch lot. planning code requires the minimum backyard should be equal to 30% of the total depth of the lot on which the building is situated, and our proposed new deck is small. uh, and if you live more than 30% of the backyard depth planning also recommends at least three feet setbacks and encourage a five feet setbacks when the deck proposed starts

encroaching on the neighboring properties exist enjoyment of light and privacy by the proposed deck is about seven feet and nine inches. setback from mr. destefano's property line, which is about ten feet and nine inches away from his house. it's about eight feet setback from the other side. neighbors property line, which is about 11ft from the house as well. therefore, the impact of the light and privacy of the adjoining neighbors by the proposed are very minimal. furthermore, mr. stefanos property is longer than our property in the back for about seven feet and the proposed deck is also seven feet deep. so we won't be able to see mr. uh, the, the destefano's bedroom windows from the proposed deck. so about the, um, the concrete

retaining wall and plumbing on the concrete floor. uh, we have pulled permits for the plumbing and the concrete retaining wall is not over 40 inch, so, mr. destefano filed appeal three times. as i mentioned in the brief and also, the inspector came out and make comments on it. three times and confirmed that we don't need permit on it. so as my husband and i pledged to be complying, neighbors and to be part of the community, we wish to solve this issue without attending the appeal. um, we provide more details of our proposed deck plan to mr. destefano by phone calls and text messages. finally, we went over and discussed the proposed deck plan and the jobsite on december 8th, 2023. so so, um, but mr. destefano never

mentioned she doesn't want us to, uh, get rid of the deck. don't don't build the deck at all. so after the meeting, he has no more questions for us. and we were hoping he would voluntarily withdraw the appeal. i have sent several text messages to follow up. how ever mr. destefano has no intention to withdraw the appeal, which is unreasonable. we propose a contemporary design project that is consistent with the guideline for the deck planning code and residential design guidelines, and it respects the adjacent properties of light and privacy. the appeal has its fair affected us emotionally and financially. accordingly we respectfully request that the board deny this appeal. thank you. okay thank you. i don't see any questions at this time, so we will now

hear from the planning department. good evening, president lopez. vice president lemberg, members of the board. i'm tina tam, deputy zoning administrator. 525 hearst avenue is a two story, single family residence in the r1 zoning district. constructed in 1923, it is a potential historic resource. the scope of the permit is to construct a one story deck and stairs at the rear of the property. the new deck is approximately 14ft wide, seven feet deep, and seven feet nine inches tall. the new straight run stairs are three feet wide and are located on the western portion of the property. no neighborhood application is required for the project, and the permit was approved over the counter by planning staff on october 26th, 2023. the appellant, mr. daniel stefano,

the owner of the adjacent property to the east at 519 hearst avenue, is concerned about one work that's underway way exceeding the scope of the permit. and two, the new deck is too tall, too large and will impact his light and privacy to his property. he overhead. please. the graphic at the top is a sanborn map showing the subject property in blue and the appellant's property in red. the aerial photograph below also shows the view of the two properties from the back. here's a site plan of the existing

condition and a site plan of the proposed condition. this is where the new stairs will be and the new deck on the site. plan is a line that denotes the 30% rear yard line. this shows you how much the property can build up to under the planning code. here's a zoomed in view of the new deck. as mentioned, the deck will be 14ft wide by seven feet deep. given the lot of the property, um, of 30ft. the new deck will be set back approximately eight feet from the side property line and 11ft from the appellant's building. this proposed side setback, um, it's very generous as no setback is required in this district as you heard from the project sponsor and seen in the photographs, the appellant's building extends further into

the rear than the subject building, subject, property and neighbor. thereby, the new deck will be minimally visible from the appellant's rare windows. lastly the concrete work on the ground floor does not trigger planning review department finds the proposed deck and stairs to be compliant with the planning code, consistent with the residential design guidelines, and recommends that the board deny the appeal on the basis that the permit was properly issued. that concludes my presentation, and i'm happy to answer any questions. thank you. we have a question from commissioner swig. uh, just to be redundant. um, so in in looking at that plan, they could they they, they could have made this deck a lot larger and they, in fact, could bulk out their house a lot further. but they, in my view, it seems to be a conservative very conservative addition to their, their house. would that be a fair characterization? i believe so, i mean, it's a deck. it's one story. it's not a building, it's

a structure which would be um, certainly permissible in this area. um, a lot more could be permissible in this area. right. and in fact, they could build out the back of their house wider and larger if they, they wanted, and occupy more space in their, their lot. that's correct. so so in your view, just to confirm there's absolutely nothing wrong with this. it's, uh, it's compliant, it's legal. they've they've abided by in fact, been more conservative by about abiding by the, the terms and conditions and compliances set forth by the planning department. that's correct. we routinely reviewed and approve these decks over the counter, which much less suspect than this one. okay. and just for convenience. so i don't have to push my button again. mr. birmingham would i'm going to ask same questions of you. would you please address that in your presentation. or if you want me to, because you run out of time, i'll ask the same question again about compliance. yes, about legality, about all the stuff. okay. thanks thanks very much.

uh, just after your. you're done , i guess it's time for you. okay. thank you. i don't see further questions, so we will hear from dbe. good evening, president lopez and vice president lundberg. i'm. kevin birmingham. i'm acting chief inspector of dbe and add to your question, it's substantially smaller than it could be allowed to be. and then as far as the lower patio area, we consider that landscaping it does not require a permit. it's less than four foot from the top of the retaining wall to the bottom of the footing. they did get a plumbing permit for the concrete work because it was over 200ft!, and it was checked out by plumbing and past, um, i'm not sure what else i can add. it's a pretty straightforward permit. i would say uphold the permit and deny the appeal. thank thank thank you. we have a question from president lopez. thank you, mr. birmingham. um, i think

you've you've spoken to the points or allegations about, uh, work exceeding the scope of, of permits. yeah. but just for, for everybody information. um, obviously your your comments are , you know, as of the latest information we have about the project, which is, you know, still underway. okay. um, if there were no further, uh, concerns about work exceeding permits going forward, what would be the proper channel for, for, uh, neighbors such as the appellant to voice those concerns? yeah, he could definitely file another complaint. he had. there was two complaints filed. our inspectors went out, investigated both of them and closed them. one was for exceeding or, you know, extending the rear building, which it turns out is just, you know, flat work, patio landscaping, basically. and the other one was for the height of the retaining wall. but if he feels something else is going

on, he's more than free to file another complaint and will happily go out and investigate it. thank you. thank you, commissioner trevino. how's the question? uh, yeah, just to follow up on that, i believe in mr. destefano's, uh, file with us. he mentioned he had some questions as to the department that were not answered. are you aware of any of that or have any record of that one way or the other? not as far as i know. i've nothing came up with the people i discussed that went out there and did site inspections. they had no knowledge of any concerns that had been raised. if they were, they were addressed through the complaint process. maybe that's what he's discussing. and your answer to president. lopez about if he has further questions, is he can use the complaint process. oh, yeah. is there any other process that can be used other than the complaint process? yes. um, well, i mean, he could do a, uh, ask for the building inspector to stop by and discuss it with them and then, you know, a off the record type thing, you know,

and i'm sure he could go next door and discuss it with the neighbor. and i'm sure the building inspector would also be happy to meet the three of them and discuss anything. is there anything that the city does to promote that kind of discussion other than send people to the complaint process? um, no. we do. we encourage them to reach out to their neighbors, and if they have a question, we're happy to go out and meet with them. thank you. thank you. i don't see any further questions. you can be seated. thank you. so we will now move on to public comment. is there anyone here to provide public comment on this matter? anyone on zoom? okay, i don't see any public comments. so we're going to move on to rebuttal. mr. destefano, you have three minutes to address the board. absolutely. please approach and if you could just identify yourself for the record , please. my name is maureen sullivan. okay. so with respect to how big it can be built, totally understood. there is

more leeway for them to build more than currently stands. our concern is with what we're seeing as this extension on stairway, because clearly the deck just bumps up to like where our property ends, that that is what we see as the more intrusive part of this project. and it is also hard to understand what we were directed by. the planning department, that this type of backyard patio, where the deck sits, needed a permit. because of the excavation wasn't the back wall, wasn't the retaining wall. that was our concern. it was what all of this was being built on. so so while the building department mentions that it's landscaping from our perspective and what we were supported by in that perspective was that this was bigger than that and should have been permitted. so those are where i feel i just want to

clarify what the issues are, what our concerns are. and, um. the other element or aspect with respect to danielle speaking to the building department and not being heard or or understood, he asked simply many times about the floor, not the not the back. retaining wall. and it was constantly like they're not doing an extension of the house. so it was just if we could have had that clarified or if danielle could have had that clarified, then there wouldn't have been. i think, a lot of this back and forth where we were getting one set of information and another set of information that we didn't feel was being clearly articulated. so i just wanted to respond to that as well. okay. thank you. i don't see any any questions, but if you could fill out a speaker card, ma'am, that would be great. then i can make sure alec can you just so i can make sure we spell your name correctly for

the minutes. thank you. okay we will now hear from the permit holders. miss wong, you have three minutes to address the board. i, um, mr. distefano, um, could about our patio floor more than our deck. i don't know, uh, they have complained so many times, and the inspector came out and talked to him about it, and we also went to the jobsite and talked about it. so i also toured him around my house, not just the backyard, the deck. i i told him from my second, from the front door to second floor, walk around and go down to basement and then the patio, then we talked about our plan. okay so for the reason for us to lower the portion of the backyard and build a retaining wall because we add, uh, additional rooms in the basement , our house is only have two bedrooms on upstairs. we need

more rooms. so and then the basement doesn't mean the ceiling height. so we have to lower the floor for that. following the basement floor. so the backyard is higher than the, the ground floor. so we have to take the dirt out from the backyard to avoid the water coming in. that's why we built the patio door. i mean, the patio floor at the beginning. we were not thinking to build the deck, okay? the reason we build it is for us to have backyard access, even. i mean, during the construction, mr. distefano, he built a fence between our pathways. so our pathway is six feet wide. so he built right on it. when he asked our permission, i respect it, but i never think about he built a fence between the pathway. so it cost a lot of trouble for us to

paint the house during construction. and also our side door to the backyard is on his side on the pathway side. so it's it only have less than three feet space. space for us to get to the rear yard. so there's another reason for us to build the deck to get access to the rear yard. so yeah, i, i just respectfully and hopefully you guys will deny this appeal. thank you. okay thank you. we will now hear from the planning department. nothing further. and how about dubai. nothing further . so commissioners, this matter is submitted. thank you. commissioners, uh, why don't we start with, uh, commissioner swig? um, oops. sorry. uh, i see nothing wrong with this project. i asked, um, planning and d.b. whether anything was wrong with it. in fact, everything is right with it. and well, within well within the boundaries of what could have, could have been far more conservative than what we

normally see, which is people trying to exceed, uh, their opportunities. so i see nothing wrong. i make a motion to deny the appeal on the basis that the permit was properly issued. that's all. thank you. uh, do i have any other further comments before we entertain the motion? uh, commissioner trasvina, uh, i thank you, president lopez. i agree with commissioner swig. uh, but what i do see, see, and what i will bring up when it comes time for our our future budget request is to see if there's a way, either with us or with the planning department, for there greater ways for the public neighbors to be able to, uh, have questions answered so that they don't have to come into the complaint process or the appeal process. i get from the paperwork from that. the that the destefano's presented, that they had more questions

than they did objections, and that perhaps the questions could have been answered. i'm not going to take sides as to what was said by the department or or what or what questions were not answered, but i do sense that there is a way that that greater communication can be enhanced so that we have fewer, uh, fewer appeals, that right now the appeals are harm as as miss wong said, it provides tension and time and worry to have this appeal out there. it's probably not pleasant for the for the for the destefano's either. so i will look for that in the future. but i do believe that for the record presented that the, uh, the permit was properly issued. thank you for that, commissioner trasvina. i think i also want to thank, uh, the appellants for raising those those concerns and those issues. um, i also want to thank, uh, mr. birmingham for, uh, you

know, outlining, uh, you know, how some of those issues may be navigated. you know, in the future of the project, which it looks like, uh, will likely continue if i can guess as to the direction we'll take. um if there are no further comments, i think we can move on to, okay, the votes. so we have a motion from commissioner swig to deny the appeal and uphold the permit on the basis that it was properly issued on that motion. president lopez, i commissioner trasvina i, vice president lemberg. i commissioner epler i. so that motion carries 5 to 0 and the appeal is denied. we are now moving on to item number six. this is appeal number 23. dash 053. bushra khan versus department of building inspection, planning department approval subject property 218 union street appealing the issuance on november 2nd, 2023 to john votruba of an alteration permit to comply with notice of violation number 20 2181 083 and planning enforcement case number

2021 006592. legalize the installation of privacy screens and seating on existing roof deck. urban garden approved under separate permit per 2015 018220 certificate of appropriateness. this is permit number. 202109239006. and we'll hear from the appellant's attorney. first, welcome. you have seven minutes. yes. my name is george benetatos. uh, commissioner lopez, vice president lindbergh, commissioners. uh, miss rosenberg, miss huber, uh, i'm representing, uh, bushra khan, the appellant here. uh, we're asking that the permit that was issued be rescinded. basically for two reasons. the first one is that, uh, mr. uh, mr. votruba does not have any authority to appear before this board. he's not a property owner. he finally submitted a paper. it's an exhibit three to his, uh, uh, appellant, uh, opposition brief, uh, purportedly signed by his sons. that paper is defective,

and we respectfully ask this, uh , the commissioners to reject it . first of all, it's not under penalty of perjury that's required. and, uh, we have an exhibit. um, it's exhibit h, and it is a form, uh, where a person or an owner can authorize another agent to appear before this board and to make these appeals or otherwise appear before pdi. and, uh, it states that, um, the person authorizing the agent that is the owner has to sign it under penalty of perjury. the document we have from mr. votruba is simply a paper purportedly signed by his sons. and by the way, it's dated , i think, november the 23rd, which is about 21 or 22 months after mr. votruba was no longer a property owner. so apart from its lack of authenticity, its failure to be in compliance with the requirement be under penalty of perjury. it's also outdated.

um, mr. votruba produced no other evidence that could have been produced to show that the owners, uh, authorized him. there's a procedure set forth in the tenancy in common agreement that governs the whole property, which would have required 14 days notice and so forth. i think that's all in our brief and explained bottom line is we respectfully ask the commission to reject this or rescind this permit first on the ground that the person applying for the permit has no authority and has not shown that he has authority from the owners of the property where his sons. that's the simple issue. the first issue for the board. or excuse me if the commission decides on that basis we're done. but beyond that. this is a 13 year effort by the vogt-roberts to close the windows to block the windows of miss khan. uh, we've outlined in

some detail the history of this effort. um and i would just like to quote from a couple of lines in mr. vogt-roberts brief that that illustrates the, uh, shall we say, personal nature of the vogt-roberts in pursuing this, this fixture on the property here. i'm referring to in their brief. at page four for this is how they characterize miss khan and this is what's been going on for 14 years. i'm looking at page four, line 24. this is under the headline misuse of appellant by of her ab0 zero line lot line windows. by the way, this is a ten page brief.

the last the last six pages are devoted to something that's entirely irrelevant. they continue the vogt-roberts to manifest their anger and their effort to cause miss khan to remove her windows. six pages devoted to something entirely relevant. it's a mania. this is what mr. votruba wrote or just characterized. uh, miss khan, when appellant miss khan feels angry or annoyed, she heckles, stops, stomps, taps and points to attract uses of the deck to look into her windows and then uses wide angled surveillance cameras as well as her cell phone to take pictures of them. now look, this is obviously something that doesn't come up before a commission like this very often, but the relevance of this is to show that the real purpose of what the vtubers want to have installed on their roof has nothing to do with privacy. there is no privacy from the

miss khan's deck. you can see everything from all the houses in the neighborhood. you can see everything. it's a device. another quote. this is something almost well, let's let's say it's puzzling. a quote from an event that occurred in 2015 or a purported event i'm quoting from page five at line one on on february 5th, two, 2015, she, that is miss khan situated a guest, clinton choi, standing at her north corner window with arms folded and staring angrily while appellant tapped on another window. on this occasion and others, she turned this into a criminal complaint against a deck user. there was no criminal complaint. there was a restraining order that the judge crompton issued in 2015. it was renewed in 2017 and it was

renewed again four days ago. i have a copy of it. there's a continuing restraining order on mrs. votruba for harassing behavior. the criminal proceeding that's referred to occurred a year later, when mrs. votruba violated that restraining order, partly by pointing her cameras and partly by again trying to obstruct the windows. so by their own language, illustrated from their own brief from mr. votruba brief. uh, we're asking this commission to find that the real purpose of this structure has nothing to do with privacy or the convenience of anyone in a final comment. this is not a trellis. a trellis is a device where you hang plants on and so on, and so forth. i believe the commission has seen the pictures. it's a very large structure. it's a big bench with, uh, coverings over the head and so forth. it was a misrepresentation to present this as a just a simple

structure. um, final remark then, um, remember, commissioners. we believe that, uh, this mrs. votruba and mr. votruba are using this device to carry out something that they've been unable to do for 13 years through the courts and through various citizens cities, agencies. we respectfully ask that this commission, uh, rescind the permit. thank you. get away with time. thank you, thank you. we do have a question from vice president lundberg. thank you, mr. benetatos. i have a couple questions. uh, number one, uh, the first basis on on which you've argued your appeal is based on, which is the authority from the owners. do you have a legal citation that, uh, shows that a planning application needs to be under plant signed under penalty of perjury? i have, i have, yes, i do, i have, um, just a moment. i

have the this is the property. may i use the device here? overhead, please. the overhead. the first page i'll just show you is the property owners package. that's the title of the document. can you help them zoom out, please? this is. uh enlarge it. i mean, show the whole document. yeah okay. sorry about that. this is. the document was available to mr. votruba. and let me show the second page, which answers the question about what authority there is that requires a declaration under penalty of perjury. it says it says at the bottom, there's a space for an authorizing agent, uh, authorization of agent to

act on property owners behalf, and it asks for various information and so forth. and at the bottom, it says the person signing this, the owner signing the authority states as follows. i declare under penalty of perjury that i am the property owner for the address label above and so forth. i see that, but what that isn't to me is a legal citation, a legal citation is a code section that says this must be done under penalty of perjury, or else it is not valid. well, it's a requirement of the commission of the, um, it's a requirement of, of the overhead. again, it's a it's a requirement. department of building inspection requirement. it also requires that it also says only an owner or an authorized agent can appear before this board or appear before or apply for a permit. it's their own requirement. and we ask that this commission enforce that. now, i don't know if there's a specific civil code

section that deals with this. i kind of doubt that it's a local matter, but it seems to me that if the department of building inspection requires this and says only an owner or authorized agent can apply for permit, we'd ask this commission to enforce that. i i just want to kind of call the difference between a the inclusion of a penalty under by perjury statement and the requirement of a penalty under penalty of perjury statement, which are not one. and the same. and i know as a practicing attorney that not every inclusion of a perjury statement is actually necessary. um, so that's why i asked the question. i did. may i respond? yes. yeah uh, look, if you don't have a an owner sign under penalty of perjury that he's authorizing mr. a or mr. b or miss c or miss d, then you have no way of

knowing or enforcing the requirement of the department of building inspection that only an owner or authorized agent can apply. why they haven't complied with this? we're asking that that be enforce it. i'll submit that on that basis. okay. my next question is unrelated to that. and that is, um, you know, there's there i'll say what's obvious, which is that there's quite a, quite a history between the appellants and, uh, permit holders in this case, um, we, you know, we certainly do not have jurisdiction to decide those issues between the these, you know, several years, decade or more of issues that have arisen between these parties. um, what's before us tonight is the permit, the specific permit that's being appealed. um, and so my question is regarding this permit, um, on what grounds are are on what grounds are are you seeking to actually apart from the purported lack of authority,

uh, of ownership? what what is the grounds to overturn this, this permit? we're asking the commission to make a finding that the purpose of this device, uh, is, uh, that the use of this device or the application of this device is a nuisance. and the nuisance is defined as follows. it's in our case that we cited it states as follows. even even if a lawful use of one's property may eat even a lawful use of one's property may constitute a nuisance if it is part of a general scheme to annoy a neighbor. and if the main purpose of the use is to prevent the neighbor from reasonable enjoyment of his property, even though the fence the case involved a spite fence had not been ten feet high. still, it was a nuisance if it was constructed with malicious intent. let me repeat that. if

it was constructed with malicious intent, interfered with plaintiff's full enjoyment of their home, and if its usefulness to defend it was subordinate and incidental. of course, we're not asking this commission to make a decision about what's been going on for 13 years. however after we've presented the evidence to show over the 13 years that the motive, the construct of this item was not just for the privacy reasons which don't exist, but is part of what's been going on for years. and we ask that you find that the main purpose of this was to prevent miss con from, uh, reasonable enjoyment of her property. and it has no other purpose. i'm going to ask this as a question, because i'm pretty sure you know the answer. what governmental entity is, uh, is empowered with making written findings for her, uh, based on civil code sections? well obviously, courts are empowered to that. we're asking this commission, though, to follow the law and apply the

same law. i don't think that's without the powers of this commission. i think this commission can make that. and that's why we made these citations is, uh, obviously it's not a court here. we know that. but look. this is an unusual case. obviously, we don't want to litigate and bring in all the stuff that's been going on. however, it is relevant because it explains what's what the purpose of this item is. and we ask on these two grounds that the commission rescind the permit. there's no authority. we, based on the eddies or urbis requirements. and this in fact is a nuisance for the reasons stated i. okay, i'll ask one more question, which is are there any other grounds other than those two? i do understand that this, you know, that the record needs to be made for, uh, exhausting administrative remedies. but it is. are there any other grounds, other than those? those are the two grounds. okay. thank you. thank you. we have a question from

commissioner trasvina. uh, yes. thank thank you. uh. my purpose of asking these questions is to give you another chance on the question of, are there any other grounds on the first part of what you described, you state that the permit application is defective, correct? i'm sorry. i didn't hear that. your you are saying that the permit application was defective? is it? is that because the, uh, something was signed under penalty of perjury or that that part was not signed, that you the it's defective because the permit applicant has no authority to apply for a permit. he's neither an owner or an authorized agent. so for that reason, the permit should be rescinded. and the only evidence that that he's authorized is a

document that we respectfully contend and, uh, cannot be, uh, should be stricken and ignored by this because it does not comply with the requirement of the department of building inspection for authorizing someone, an owner to authorize someone else. otherwise, no, i understand that part. do you do you have any evidence one way or the other, that the true owner does or does not want this construction done? the two owners have never communicated with me. the true owners don't live in california. okay you answered my question. oh, so okay, second part on the, um, on on the issue of the and i think you've already you've answered vice president lindbergh's question about that. you're asking us to make the determination on or at least discuss and consider whether this is a nuisance or not. we're asking you to deny the permit. excuse me? to rescind the permit because it is a nuisance and it

has serves. no, no basis other than to, uh, annoy and harass and demoralize. uh, uh, miss kahn and can you can you describe the interest, whether it's a property interest, a financial interest or what what is the what is being? for the record, what is miss kahn being deprived of with the construction of this as it is described in the permit? this trellis she's been not she's being deprived of the use and enjoyment of her property in that this this device blocks the view from her window, uh, and is an unattractive device. and when the original restraining order was issued back in 2015, it included instructions are included in the order, which is one of our exhibits that that the that mrs. votruba was directed against her not not block the windows. okay. thank you. okay. thank you. no further

questions as you can be seated. we will now hear from the permit holder and mr. votruba is on zoom. can you unmute yourself if mr. votruba i can't. you're you're muted right now. okay. you did unmute yourself. welcome. okay. i think yes i can hear you. you have seven minutes. oh great. okay uh good evening, president lopez. uh, and vice president, uh, lundberg and miss rosenberg and commissioners, uh, i want to start with the administrative certificate of appropriate appropriateness. uh, to begin with, that just simply one. i'm not going to repeat what's in that? uh, it it's been over two years, and the planning department, they've worked very hard and helpfully, uh, particularly miss kelly wong. and getting. it through and also, uh, the plans that were submitted as number two, uh, with the trellis were also, uh,

signed off by the various departments and speak, uh, that speak for themselves. uh, both both permits that really speak for themselves. so and then a job card was issued on november 2nd of 2023. now to the issue of authority, i've asked mr. benetatos a number of times to read the tick. uh, agreement which which describes in section eight and section two, uh, what how uh, members of the uh, uh management team are selected or and uh, what it what it states is that, uh, that over you need the majority of 67% of the, uh, holders of the tenancy and common interests to, uh, uh, be in excess of that. that is in order to become an, uh, a

management team. now, there's nothing in the code. and he brought this up in his brief to say that, uh, in the excuse me, the agreement that, uh, suggest that a non-owner is prevented from being a part of the management team or, for that matter, if the owner. so choose from preventing the owners from hiring an outside management company. so uh, what i am saying here also, though, is that, well, let me just start by saying that the or continue, uh, that i was an owner at the time of applying for this permit seems to have been forgotten by mr. benetatos the, uh, i did then gift my 50% interest in the in the, uh, about two years ago or a year and a half ago to my

two sons. sons who live in different places and they are not able to manage their own apartments because one is living in france and the other one's colorado. so i've been handling that for them. and the, the document that i have at number, uh, number, uh, excuse me, exhibit three as absolutely accurate there this business about filing under perjury. there's no such requirement in the tick agreement for that or, uh, so, so certainly. and in the building department or the plans , i, uh, signed, i would certainly be happy to file it under perjury, but i see no, uh, no, no, i was not under the impression that any such thing was necessary. so. and then also this business about being a spite wall. um, mr. benedetti's,

uh, will say it seems to know what mr. khan, uh, that it harasses and demoralizes mr. khan. number of words he uses. all are made up in his own view, without hearing. so i can't tell you that this is anything true, but i do have to say that a lot of this, uh, past history is really a matter of real property . we have the entire lot line windows by mr. khan. which overview our our deck have are totally encroaching on our lawn. so first of all, those windows are over our property line, but five inches as opposed by the, uh, as opposed as, as, excuse me, supported by a survey that

we have presented. and it's also in our exhibit. the this business about it being a spite wall is ridiculous. this is no spite wall. nor was there ever any intent to be a spite wall as it's set up and as and again, this is a civil code matter. not really something i'm sure you guys have wanted to deal with in on the on the board. so but that's that's part of the problem. and then the windows in addition were marked out completely in the original building plans. i'm talking about the entire line of windows that miss khan is looking through and complaining about. they are in the original building plans. they were marked out and deleted by in the official plans, which are in the

building department records. next, the windows showed up in there without a permit. they are protected but no permit. and then they, uh, miss khan arrived on the scene and she, uh, arrived. she seemed to be able to get a permit on these windows. nonetheless yes. even though that she didn't comply with ab 009, which is the applicable, uh, uh, fire code related, uh, document that she must comply with in order to get a and one of the, one of the there were at least three that she didn't comply with, but the one that's the most important is that she didn't get a, uh, consent. the written consent from us. so that, uh, and in addition to that, they were, uh,

the, the that was the being over the line the whole thing should never been, should never have been, uh, accepted for, for, uh, a permit. so and then we wouldn't even have these last ten years of our so of problems between. thank you. that's building. that's time. thank you, mr. votruba. you'll have time in rebuttal. we do have a question. we do have a question from i missed it. yeah. okay, so we have a question from commissioner trasvina for you. yes uh, thank you for your for your testimony. i have just a couple of questions. uh, can you tell me how long have you lived at this? uh, at this location since 2002. but 20 years, 22 years, 22 years. yes. and the issue of, uh, miss miss khan's,

uh, windows encroaching, uh, that you described. did you pursue any, any legal action as to those windows? well what happened was that, uh, the last hearing i had was because we didn't get any notice from the planning department at that time. about the, uh, the permit being authorized and the hpc hearing made. there was no notice from that either. at that time, we were left with filing a jurisdictional request. with with the board at that time and the board, despite all the issues i've just mentioned about no notice and the like, decided that they couldn't find anything wrong. so that's where i was left at that point. okay, so then you you did file legal action and it was ruled against against you. you that's right.

at that level, it's sort of an administrative level, but it's but there have been no, uh, deliberations or assessments or, or uh, regard guarding the issue on the, on these windows. okay. and on, on the, the trellis that you're that the subject of this hearing, what is its purpose. well, the purpose is, is as, uh, seating area, uh, for, for privacy. uh, so that, uh, people can use the, the, use this area so they don't feel in posed upon by miss khan's multi cameras on a 24 hour basis and it also provides a little bit of protection from her on, on her side. but the reason is to make a nice, comfortable setting for our tenants who live, who are in the building. and do you live there? well, i do, i well, i

live, i have, i live in santa rosa as my main address, but i spend about, uh, half a year down there at 107 myself. so so you've taken the effort to build this wall for the benefit of the tenants so they can sit out on the deck without presumably, anybody watching them. that is that that's right. okay. um, great. that that's that helps me very much. thank you. okay. thank you, thank you. i don't see any further questions. so we'll hear from the planning department. pinetum for the planning department again. 218 union street is a four story, seven unit apartment building in the rh three zoning district located within the telegraph hill landmark district. the property is a known historic resource. the scope of the permit is to legalize a rooftop trellis

structure constructed without the benefit of a permit, at a notice of violation was issued to the property owner, and in late 2021, the owner filed a corrective permit along with an administrative certificate of appropriateness. the certificate of appropriateness, or c of a is required um for the project because it's located within a landmark district. on august 23rd, 2023. preservation staff and code enforcement manager kelly wong issued the c of a finding. the proposed trellis to be compliant with the secretaries of the interior standards, which are preservation standards, and the design conforms with the architectural character of the landmark district. no appeal or request for a hearing was filed for this admin c of a on november 1st, 2023, after the enforcement fee was paid, planning staff signed off on this permit. the appellant is doctor bushra khan, one of the adjacent owners to the west of

280 union street. doctor khan believes the trellis structure is not a privacy screen, but rather a spite wall due to the location and design. doctor khan believes that the new trellis structure will negatively impact what i believe, or appears to be views from the property line windows to describe the project and the context, i'm going to go ahead and share some graphics. so overhead please. the graphic at the top is the sanborn map overhead. the subject property is shown in blue, and the appellant's property is shown in red. below is an aerial photograph showing both the subject and the appellant's property, and in this photograph you'll see the ten property line windows. there are four here, two here and five here. for the

location of the trellis structure is right here. as you heard from mr. votruba, these property line windows were not part of the original plan set that was approved for the appellant's property in 1986. so it's super not unclear as to when those windows were first installed. however in 2010, in response to the complaints filed on the property about these windows, doctor khan did obtain a corrective permit from dbe to legalize these windows. the next graphic shows the proposed trellis structure in yellow. it measures approximately seven feet four inches in width and seven feet six inches in height. the

structure is set back approximately five feet from the west side property line slash appellant's property line windows. the material of the structure is wood, which is appropriate and compatible with the landmark district. while the department acknowledges there will be a change to what the appellants will see from her property line windows, the planning code does not protect private views, especially those from property line windows. doctor khan's property line windows will remain functioning as windows will continue to bring light into her dining room . it's important to note that there are other windows. um that faces onto the rare on doctor khan's living room that will bring in light to that space. given the design, the location, and the size of the proposed trellis, the department finds it to be compliant with the planning code and conforms to the residential design guidelines and the secretaries of the interior standards as as for the applicant matter, the

planning department does not conduct research or need to verify the ownership of the property before reviewing and signing off on the permit. as such, the department recommends the board deny the appeal on the basis that the permit was properly issued. that concludes my presentation. happy to answer any questions. thank you. we have a question from commissioner swig. okay i want to get us back on track and out of the civil world and into the property world, into compliant world. um, the what we've heard so far is you didn't sign this paper or you didn't have that. right. and these are all this is this is all civil matters from your from planning point of view , right? you don't deal with this stuff. not entirely. i'm just speaking on behalf of the planning department. yeah, the building department may have other requirements. that's when they process a permit that may require them to check on the ownership of the property. okay mr. birmingham, you'll address that. i'm sure. um, so let's talk about property line windows. i've sat on this

commission for a long time and dealt with more property line windows than a lot of property line windows, and i've seen an and it. would you confirm my view that property line windows if you put in a property line window, your living dangerously because that those property line windows really could be covered up by your next door neighbor for a variety of reasons. i look at this one and the can you put that that photo up that showed the actual photo that showed the, the buildings overhead. so when i look at these property line windows, um, if, if, if let's say the next door neighbor wanted to raise the if it were legal and with with height limitation and other factors wanted to expand their building and cover those property line windows, could they not cover those property line windows because their property line

windows right. that's that's my understanding as well. i mean, provided that the proposed expansion and vertical additions that will result in covering the windows are co complying exactly . everything is code compliant. everything is according to code. everything is building heights. everything is bulletproof roof. uh, it's tough luck if you have property line windows and you live next door. is that correct or am i? i believe so, but i'm not the. ■i'm not th expert in ab, which is an administrative bulletin 009 that's actually out of the department of building inspection. but i do see that you can address that. again, i do see that doctor kahn did sign off on the ab 009 attachments, acknowledging, um, the limitations of these windows. right. so in, in in fact, uh, if mr. votruba. i'm sorry if i'm butchering your name, sir. 1 to 1 to build a wall. uh or one to raise the height of his building

. those property line windows that are are being protected, whether they are in the over the property line or not. uh, as claimed. there's no protection, really, for those those windows, especially since they weren't a part of the original plan. would that be a the wrong direction or . well, we do review for that and we review for potential impacts. and in this case we i'm not sure whether we recommended the five foot setback or encouraged it or it was certainly something that we certainly support. um, as part of the project, does it require the five feet? not technically we, but we certainly think it's a good idea to have a setback between the windows and the structure. right. and so where i'm going with this is that if you have property line windows, regardless of whether this, this building in this case or any other building, if you have property line windows, those are you, you, you live dangerously. uh, if you think that the, uh, the they will never be

obstructed by something by your next door neighbor. if there's a possibility city of building something on the roof, like a deck. the possibility of expanding the height of the building property line windows are not protected. is that true? yes, but i'm going to let doctor mr. birmingham confirm that. okay. thank you. uh, follow up question. so in consideration not only of that which mr. birmingham will address, but in consideration of that situation question. um it the way that this the trellis was originally installed illegally. correct. okay they, you know, install first pray for forgiveness later . um, that was unfortunate. that probably just threw um, uh, gasoline on what was already a fire. um, but if, if mr. votruba would have gone through the proper channels, filed for a permit, build the same trellis,

uh, then it would, in your view, have been totally and completely legal based on on, uh, based on on what is happened, which is when he did pray for forgiveness, he got approval from the planning department. yeah, i ideally, people should file a permit first before building, but that sometimes doesn't happen. yeah, but we did. if we did, if we did have an enforcement case open, we did assess for time and material right. mr. votruba did pay for our time and materials spent in helping him come into compliance with the code. um, that was a cause. what i'm getting at is all that. if mr. votruba would have gone originally by the law of the land, which is. don't build it until you get a permit. and he would have filed for a permit. exactly. for what he what he ended up building. he he probably would have gotten that permit for exactly what he ended

up building. is that correct? i believe so, i mean, we don't have any different rules and standards. if you have a permit first versus a permit later, it's the same rules. we're going to apply the same standards. so it is design guidelines compliant. had it been done. uh, originally legally, which is too bad because we probably wouldn't be here if it would have been done that way. or we may have been. no, because there, there would be there, there. by the way, you guys set the rule, the record for me, as far as sitting as a as a member of the board of appeals, i've never sat with two restraining orders in the in the same case. the first time you guys win. i'm not. and that is not a compliment, by the way. um, but i just wanted to clarify that this this is a compliance structure. had it been done originally, it would have been a compliance structure. uh, it's in front of a property line window that has limited rights. if any, in the first place. that's correct. is that true? yeah. we went through the proper process. yes. although out of order. um, and it complied with all the standards and

requirement. he worked with our, our staff member, our preservation staff member made some adjustments. um, and here we are. yeah. and with regard to the other administrative details , as mr. birmingham, you can chat about those. thank you, thank you. we'll now hear from debbie. good. good evening again . um, on the first point, as far as the signatures and the approved signatures, this is done by cpb, the central permit bureau. we do not require via a notary public on this piece of paper. we take it at face value. we would take the applicant's, um, driver's license, take a photocopy of that, and put that in the record with it as being the person who was authorized to pull these permits. as far as we're concerned, they were pulled properly. um, so but i did talk to cpb and they said if they want to submit a new

affidavit, they are happy to take it and update the file. as far as the property line windows , the a, b009 you're correct. they are not protected. and actually if they were to decide to build a structure there, they would have to close those windows at their expense and it's part of the agreement of the 009. they were never approved. they were legalized later. and that is part of the legalization. basically we. have any questions? thank you. question from commissioner swig. sure sorry. uh, so in fact, the whole concept, i forgot what the word was, but. oh, spite. spite wall. so the whole issue about a spite. sure, it could have been built for spite. who cares? it's still illegal. yeah. doesn't matter. yeah what's legal is legal. what's compliant is compliant. what? you can get a legal permit for as long as it is done. setback nicely. and in this case, politely because it

could have been right against up against the wall. he did the wall and blocked the property line window because property line window has no rights. yeah. correct. that's correct. so the whole concept of a spite window is kind of. yeah, that's subjective i guess. it's subjective. and you know i like pepper. you like salt. and so we disagree okay. thanks very much okay. thank you i don't see any further questions. thank you. be seated. we are now moving on to public comment. is there anyone in the room here who would like to provide public comment on this item? okay. if you could, after you're done speaking, if you could fill out a speaker card that would help us with the minutes. thank you. my name is richard green. i live in london, but i'm a frequent visitor. sir, can you speak into the microphone? we can't hear you. hello? i'm i'm from london. i'm a frequent visitor to doctor khan. um i come to support

doctor khan because she wants to be safely and peacefully in her property. the safety part that has openly been resolved by restraining order, which has again been renewed, um, by superior court a few days ago. now we have to deal with the peaceful apart. i mean, how can doctor khan live peacefully when she's presented with this construct, when she walks into her living room every day? you know, i mean, it's so obvious, you know, i mean, the sole purpose of this illegal construction on the common area upper deck is purely to block the mr. khan's windows, which the retrievers have been tempted to do for the last ten years. even though they're not the sole owners of the property. if the issuance of this permit, not even supported by all the owners anyway. it's also a bit of lack of clarity of the permit. is it a trellis? is it a cabana? i mean, what is it? you know, i

mean, it seems ridiculous. seem to call it a trellis. i mean, the structure was usually was built in the usual trivial way of doing the work. and then afterwards, um, you know, without a permit. and afterwards, this is the complaint to get it authorized. the vitruvius, the this structure is a windbreak. windbreak from what direction? it's against the windows. the european overlooks and service the deck is overlooked and so is their deck. so privacy is not an issue. okay also, it goes against the guidance in the planning code and residential design leaflet. it says in there the granting of an hoa and permit is problematic and fails to meet the planning's own guideline lines. in the document, it states that all

efforts should be made to minimize potential adverse effects on the building design, privacy, light, noise and safety, and should also taken quality of life impact such as visual clutter, noise, sightlines and light shadow aspects, etc. none of that criteria was applied to this. this um, construction. it also was a complete lack of transparent 80s. okay um, the visual was also used in this permit. as for financial gain, the recently sent doctor khan in 2003, a demand for $2 million to replace the that removed. there's a whole purpose is basically to obtain money or to deliberately block doctor khan's view and even the restraining order said that that object should not be there. thank you. that's time. thank you. and against ali, do you want to give

him a speaker card? sure okay. is there any further public comment for this item? anyone in the room? um, anybody on zoom? okay. i don't see any further public comments, so we will move on to rebuttal. mr. benetatos you have three minutes to address the board. i'll address two things. number one, mr. votruba admitted that the purpose of this is to provide seating. you can provide seating without blocking the windows. that's the first point. number two, i want to address the very valid points. obviously that commissioners i'm sorry swig i'm sorry. couldn't read without these with these glasses addressed regarding when you have lot line windows you take your chances. if i may. the overhead overhead. this is an exhibit from 2015. this is how the votruba has behaved for several years before. mrs. miss khan was able to get her, um,

restraining order. and you could see obviously lot line windows do have some rights. and obviously the court found they don't have a right to block windows like this. the current. board, the members of the commissioners have seen the current, uh, cabana and so forth. and it's hard to make a distinction between one or the other, except that you don't have the offensive signs there. the main point i want to make is that we're asking this commission to find, in making this decision, whether or not to revoke this permit, what is the purpose of this? if it's just to provide seating, they don't need this huge structure that can block the windows. there's plenty of room to provide seating if the purpose is privacy, it doesn't exist because all over the neighborhood, one sees directly on there and several feet above these windows in the roof deck of miss khan, everything is visible. the real purpose is in effect, to demoralize and perpetuate out there the efforts

to get these windows blocked. those that permit was issued in 2010. uh, it was challenged again. excuse me, 2011. it was challenged numerous times by the votruba. each time it was denied their challenges. they persist in trying to get these removed. the recently with a adult restraining order where they asked the court to block these windows. it's all all related to that. and finally, mr. votruba has spent more than half his time talking about the lot line windows. the point of that, the relevance of that is that that is the real purpose for this structure to find some way. if you can't do it in court, you can't do it before these bodies to block those windows. so we respectfully ask this commission to deny this or to revoke this permit by finding that, first of all, did not comply. there's no penalty of perjury, which is a requirement of 32nd inspection. and second, that this is

constructed solely to harass and demoralize. miss khan submitted. thank you. we have a question from commissioner swig, then commissioner trevino. counselor, let's do an exercise, please, because i don't want to get in an argument with you. um because it's not. it's not my role, and i don't think i'm. i'm competent to do that. but what i'd like to ask you, please, would you would you let's jointly ask a question . about two, uh, the planning department and dbe because i kind of get gray area on who has which jurisdiction. um, about what does it, uh, what is appropriate or what is not appropriate for, uh, mr. votruba to put out on his deck? i, i, i asked and you heard me. unless

you weren't listening to me, which is okay. nobody else does. uh uh, was was that trellis? was that trellis even though it was done illegally the first time? that's too bad that i always get upset about that. but now. now that it's legal, uh, does it matter what is really out there? does it matter whether it's really out there? if it is code compliant, you question? uh, well. well, uh, doesn't block wind. it doesn't do anything. let's look at it. can we look at it? let's ask them about together if it's okay with you. if that, if that trellis was looked at as a piece of sculpture, would it be compliant based on that? not. i don't want you to answer it. i just want i, i want you to understand that i don't agree with you, but but i want to ask the experts together. would you mind asking

the experts together when they come up? uh, for, for their, uh, their for their, their time after you come, would that be the fair question to ask them what could be put out there? what is appropriate? what isn't appropriate doesn't matter. could it be a good what's not appropriate? and why isn't it trellis appropriate even if it serves? absolutely no purpose whatsoever? in your view, is that an okay question? of course it's an okay question. okay. thank you. mr. okay. am i permitted further comment or. no no, no, because we're going to ask the question. that was i just was asking your permission and getting clarity on that question. yes. thank you. thank you. i have a question, uh, for you, the photograph that you put up with the signs, the posters. the first one. yes this one here. can you put that back up overhead? yes. is that the same logo as the proposed trellis?

exactly the same. and can you describe it? can i describe the record? can you. yes. this was an exhibit, uh, to the petition for, um, a restraining order against theresa votruba back in 2015. there were several other a number of other photographs as well, that were submitted, which are included in our, um, appellate brief here to illustrate that among the things that mrs. votruba engaged in in committing civil harassment was to, uh, desecrate the windows with these signs, these warnings, these things that touch the window, block the window or behind the window. they were all part of what was forbidden in the restraining order by judge crompton. back in 2015, which remains in effect. my eyes aren't as good as they should be. uh, i see a yellow and black sign that says caution . and another blue and white sign that says notice. are these

signs. signs about construction or no. they were there to harass and demoralize, uh, and intimidate miss miss kahn. and the court agreed. and it didn't matter whether they were touching the window or on mr. vertebra's property. no. some did. they were considered they were considered harassing rather than touching. there were structures and things touching the window. the signs were not exactly. some of them were not on the window, but they were deemed part of the civil harassment. thank you. okay. thank you. no further questions. so we will now hear from the permit holder, mr. votruba, you have three minutes. you're on mute. you're still muted. let me see. sorry yes we can hear you now. thank you. okay. the first thing i want to say is mr. panetta's statement. he doesn't

know one window from another. the trellis was nowhere near that. that set of uh uh windows that he showed it was a completely on the other side of the on our roof deck. this is her bedroom window, which and what things she miss kahn uses cameras that are, uh, what we would call highly, uh, distorted to make things look like they're right on the window, when in fact, they're probably three feet off of it. and then. and if there's any movement, it's because the wind blows it around . so uh, and this is something that took place ten years ago. nothing and so we're talking now about today and the trellis and the trellis in another part of the room, another part of the deck, uh, is there for a, for a valid purpose. so that's what,

uh, and i will repeat that, uh, when ever possible, that it's, uh, designed for comfortable living for people. and in privacy on this, on this issue. so, um, i urge the board to, uh, ask us to, to proceed with this, uh, permit and, uh, and move forward. so, and i thank you all very much for your attention on this matter. thanks. thank you. commissioner trevino has a question. thank you. i just have some brief, brief questions about those signs. so are those signs that you or a family member or somebody put up, uh, i'm not sure about that. i'm not. okay, what we say, one of them says no trespassing and one of the reason that sign was there is because that's exactly what miss kahn said. does is as

authorizing trespass, passing by that fellow, mr. green. that was that was her surrogate roommate. or is his her surrogate roommate. and the two of them together, uh, trespass and damage our property, including our surveillance cameras. and it also, i don't plant the other sign said, don't know, plant poisoning. she was seen or. mr. kahn. excuse me. uh, mr. green was seen pouring liquid onto our plants below so as to poison them. so that's what those signs were? no trespassing, no, no. and that's exactly what i'm sorry. that took place. did you did you inform them of that message any other way. well, in court, uh, we i mean, whenever

there was a hearing of any kind, we try to evidence that what we really tried to evidence is that i'm not asking about evidence. i'm just asking you a question. did you. yes. inform them or warn them about not trespassing or not plant poisoning any other way than that. so yes or no question. well, we were we're not able to communicate with with her because of the straining order. so the answer is no. the answer is no. yeah thank you. okay. thank you. we'll now hear from the planning department, i think for there to be. good evening again. i believe actually if the picture that he showed i don't know if he still has it was from the windows. the three windows at the front. because if you look at there's a wall perpendicular to those three windows. so that's not the location of where this trellis is going. so that was misappropriated. but and the

administrative bulletin that they, they had you know, it says that um, in the event that adjoining property is improved in such a manner that the openings no longer comply with the provisions of the administrative bulletin. and there is a declaration, they shall be submitted to the planning prior to the review. those windows will be closed and fire protected in place. so they they, they, you know, they have no obligation to keep those windows open or viewable. okay. thank you. i don't see any questions or no. okay. so commissioners, this matter is submitted or i'm sorry, commissioner epler has a question. i was jumping into the queue. okay uh, commissioner epler, thank you. um, i so i was quiet during questioning. um we are a tribunal limited jurisdiction. and our jurisdiction is to evaluate

whether or not the permit was properly issued or properly not issued. and that is within the guidelines of the codes around building and planning. and those things in the san francisco city charter and the laws promulgated there under. there's a lot going on in this case. there are a lot of questions i have. they are not at all applicable to the thing that we're here to decide. i have a lot of opinions about this case, and i think i have some thoughts on it. but again, they are not at all applicable to the thing that we're here to decide. they're were two arguments made about the validity of the permit. one was the authority of the permit. and these permits are amended all the time. and corrections are fixed all the time. they're fixed after the fact. they're amended after the fact. even if we invalidated the permit. um, we now have a piece of paper saying that the person who filed the permit now has authority to act on behalf of the building. they could run down tomorrow and

file the same permit. we're exactly in the same place. that does absolutely nothing to decide the matter before us here today. it's a no harm, no foul thing, even if it is a mistake. i'm not sure that it is or not, but even if it were, worst case doesn't do anything. the second piece is nuisance. nuisance gets to motive. it gets to intent. there's nothing about motive or intent within the laws about this permit that is before us here today. that may be unfortunate. maybe for us and the amount of work that would take to actually come to a real conclusion about the real matters of the case, uh, maybe it is fortunate for us. um, but with respect to the permit itself, there's not a place for understanding why it was done. it is just whether or not it fits within the guidelines of the code. so with that in mind, i'd. and not to jump on the comments of my other commissioners that want to get out there, i will go ahead and make the motion to deny the appeal and uphold the permit on the basis that it was properly issued. thank you, commissioner eppler. i think we'll before we entertain that motion, uh, we'll

continue with, uh, other commissioner comments and starting with commissioner swig, um, i'm in support of the motion. um and but i have a couple comment s i love sitting on this commission. i love serving the people of san francisco. it gives me great pride. it is a great honor. um, the only thing that really pisses me off is when people will abuse each other as neighbors. i it saddens me. it saddens me. okay, i've given this lecture a bunch of times. how can you live next to each other? how do you live next to each other behaving this way? sorry, i'm not a rabbi or a priest, but how do you do that? so please guys, make peace. all right, let's let's start with make peace. all right. um, mr. vitruvius, you broke the law. you know, you build a you build a, you build a trellis without getting a permit. you through care on the fire. i'm sorry for

that. you could have done it right. and he would have up the next year. next door neighbor would have appealed. you would have appeared in front of us, except it wouldn't have been so nasty because we would have said, hey, you did everything right, but please don't break the law. and doctor kahn, you have a property line window. look at the law. when you have a property line window, whether you did it legally or not or whether you adopted it when you moved into the property, you adopted a property line window. when you adopt a property line window comes with it. some stuff and that stuff is somebody can do anything they want to in front of that property line window. okay um, and it doesn't matter because there's a law about that. so you got it. and that's the way it is now. so, uh , mr. vitruvius, uh, aside from it doesn't matter whether he

broke the law now because he got it. he he legalized it, but what mr. vitruvius built is legal. it is. in fact, it could have been closer to your window. it's set back. it is a is a trellis. it doesn't matter what the heck the purpose is for. he spent the money. he wanted to do it. it's his right. and he's within the law. therefore of course, i'm in support of denying the appeal because all the other stuff is between you guys, all the other stuff are civil matters. go have at it. okay. for this jurisdiction, this group, mr. eppler, is absolutely right. it's perfectly legal. so deny the appeal. thank you, vice president lemberg. thank you. um, i also support the motion. and ultimately, my thoughts are very, very similar to what commissioner eppler said. um, and, and i, you know, in my roles as, as a human being and

as a practicing attorney, i have a lot of opinions about what's going on here between the parties. um, but i'm here in my role tonight as just a member of this board. and we, um, as, as my fellow commissioners have said, have very limited jurisdiction. uh, we have very limited things that we can make decisions on. um, and as far as i can tell, no, no, legally valid reason to, uh, to grant the appeal was presented tonight. so for that reason alone, we have to deny the appeal commissioner, i don't disagree with my colleagues, but i do want to observe that it seems we are being brought into a very long standing nasty dispute between two neighbors and i'm not going to pick one side or the other, but what what i what i do here, i believe that, uh, that the appellants come out of this hearing with a tremendous amount of evidence to suggest to the, uh, to the

appropriate forum, um, a campaign of harassment that i do not understand. the basis, uh, and, and i echo to some extent, commissioner zweig's comments about how how neighbors can do these things to, to, to, to each other, um, and for and for this purpose. i'm not going to distinguish between one neighbor or one neighbor or the other, because we don't we, we have heard some of it, and we're not here to pick one side or the other. we're only here to decide about a permit. uh, but i also wonder whether the department would approve a trello case that had an anti-semitic or anti-lgbtq or offensive statements on it and say there's nothing that can be done or if they had a it had as part of the construction, a depiction of an

offensive depiction of a body part. so there are some limits. and if there are not some limits, then that's something that should be addressed. again it may be addressed in a, in a in another tribunal, it may be addressed elsewhere. uh, but i think while it appears that we are not going to, uh, over overturn, uh, this permit, uh, there's ample evidence for, for, for, uh, uh, doctor khan, miss khan to be able to, uh, to go forward, uh, in a, in a different tribunal to, to get some justice and get this heard. so, uh, i, i, i agree with my colleagues. i, i want to thank my colleagues for their, their comments. i don't have much further to add. i echo many of those comments. thanks again. and i am in in alignment with, uh, commissioner eppler's motion . so with that, okay, we have a motion from commissioner eppler to deny the appeal and uphold the permit on the basis that is properly issued on that motion.

president lopez, a commissioner trevino i vice president lemberg i commissioner swig i so that motion carries 5 to 0 and the appeals denied and uh president lopez has requested a five minute break. so thank you. why don't we make it 1010? okay ten minute break. so thank you for your patience for the people waiting. we'll come back in ten minutes. at 650. ready okay. welcome back to the regular meeting of the san francisco board of appeals. today's january 31st, 2024. and we are on item number seven. this is appeal number 23. dash 068 at van roden versus department of building inspection. uh, planning department approval, subject property 3516 to 3518 sacramento

street. appealing the issuance on december 4th, 2023 to margaret rogerson rogerson of an alteration permit revision to building permit application number 2000 061 for 2006 28. response to planning enforcement case number 2020 001795 to correct proposed building height to comply with required zoning. height limit remove approved ground level garage and expand retail space. this is permit number 2021 0802 5569. and we will hear from the appellant first. mr. van roden. welcome. you have seven minutes. so my name is ed van roden. the reason i'm appeal this. i'm sorry. can you hear me? better

the reason i'm appealing the permit is that, uh, the is currently a three story building that's going to go to four stories. it's going from two stories of commercial space to three stories of commercial space. and adding a fourth floor residence. um, my view in other people's view is that for ada requirements, there should be some kind of vertical access for the people to access this. um because i don't know how anybody would get to the second or third floor by stairs if they're in a wheelchair. um based on the california state building building code that's triggered title 24 is triggered. must have all this compliance in addition, the california civil rights laws say that the protect the right of individuals with disabilities for full use and enjoyment of all business establishments. i don't know how that would be possible when this thing is on second and third floor only the first floor has access from the from the street without stairs. i've been chasing dbe for many months for over a year on this. actually they finally said to meet with thomas fessler. he said the plans are all over the

place and would need vertical access, and he referred me to joseph hospital who said he's working with the architect to try to remedy this. there's also a services business on the third floor, which is still illegal. it says on the plan that they're going to vacate april 2023, which they have not. um, so it's a permit that was taken out to reinstall a sprinkler systems. they got parking permits for this that, um, had no building plans and they removed the entire front of the stairs as part of this process. that's not that was not that was done over a month ahead of time prior to the actual permit that that i'm appealing today. they they there was just they started the work prior to november 1st and the permit was approved december 4th. um so, so abuse making, parking spaces, many notice of violations over the years. it's been sort of a nightmare living next door. as far as some evidence for you, um, do you

want i sent this in? do you need to say it again or. no? for the audience? do you need to see the evidence again? photos and things or no? okay i'll just share this one if i can. overhead, please. this is an example of the parking that to the first spot. the mic. microphone, please. you see, the first spot is the little red bucket with a sign and the dumpster, and then the truck, and then the red bucket in front of the truck, which is the red truck that's went on for a long time. she reserved two spots. she had three. again, i tried to remedy it, but the city is difficult. the other thing is that for the infeasibility technical exception, i had both an architect and a structural engineer. look at that. and they said complete nonsense made no sense at all that there's many

ways to resolve this. many places to put an elevator if needed. so i'm not sure why it was approved, but there's it needs to be reviewed further is my view of the plans also that i saw online in which she sent me are also different, which is very suspicious to me as well. the second time that's happened in the past. in addition, for california standards, access, the definition of a shopping center is only one or more sales or rental establishment or stores. stores she's got four retail spaces. she's a shopping center. there's different laws required for shopping centers. here's the exception clause that they're claiming. uh again, any privately funded multi-story building is not a shopping center. this is just for your

reference in the plans. it shows the existing business on the third floor that's still there. again, lots of uses around the process. she plays. she has permits from 1999. she plays with dbe all day long. she they can't keep track of her. i just need someone to keep a closer eye on this. have her comply with all the rules that everybody else does and not work. all these loopholes that don't seem to be correct. thank you. are you finished? okay i don't see any questions at this time. so you can be seated. we will now hear from the permit holder . hello, commissioners. my name is alex santos of altos engineering

and i'm the engineer of record for the project at 3516 sacramento street. uh i joined in 2019. um, at the same time that the novi and notice of enforcement was issued related to the height of the vertical addition. uh, keep in mind that the vertical vertical addition that was previously approved had never been constructed. it had not even been started to be constructed. so this was based on the previously approved plans back in 2001. um so this novi required a full resubmittal of the previously approved vertical addition plans to be reviewed by both building and planning department. so given given the nature of the project, the plans were scrutinized by every department over the past few years, including reviews by both supervisors and senior level plan reviewers. uh, at the architectural engineering and planning level. um, regarding the architectural and ada component of the project, it was

originally planned checked by jeff barnes, who has extensive experience as both a plan checker and a building inspector . uh, and after he approved it, it was subsequently reviewed by joe hospital, uh, who was just coming from the mayor's office of disability. um, and is now a senior building plan checker. uh, i would consider him one of the experts in accessibility. and ada codes in city government . um, following those two, uh, uh, the structural engineer, um, that reviewed the plan, supervisor vivian wong also reviewed the architectural and accessibility plans. that is three senior level plan checkers . looking at the ada of this project for new construction. when we understand every commercial floor must be accessible to the public and comply with ada codes. however, for existing structures, especially in san francisco, where buildings were constructed decades before, the ada codes were even existed, including this one, which records show this building was constructed in

1900. um, there is a technical and visibility exception or exemption that can be applied to existing, uh, to existing structures. if vertical access cannot be met. uh, if vertical access requires the removal or reconfiguration of existing structural framing, members, then that can be exempted. if an equivalent ground floor service is provided. creating an elevator shaft within the existing floor plan would not only disrupt occupied commercial spaces, but penetrate critical structural members, such as the steel moment frames at the ground level. the psl girder beams on each level, and the seismic plywood shear walls so instead, instead of an elevator or a vertical lift that provides access to the upper levels, the new ground level commercial space will provide the same service as the upstairs commercial, and that was the that was a that was accepted by by joe hospital and the building department as a technical and

feasible and technical and feasibility exemption. and that's it. okay. thank you. i don't see any questions at this time. so we will hear from the planning department. tina tam, once again for the planning department. 35163518 sacramento street is a three story commercial building in the sacramento street neighborhood. commercial zoning district. constructed before 1900. the property is a potential historic resource. the scope of the permit is to address a violation on the property, which is to correct the height of the proposed vertical addition. a previously approved and issued permit for the project incorrectly had the proposed building greater than 40ft, which is not permissible by the

planning code. as part of this permit, the shape and height of the fourth story was revised and reduced to less than 40ft. the permit also includes one terminating the unpermitted personal service uses on the third floor, and converting them to offices, two removing the projecting sign on the third floor and three replacing the storefront windows and front stairs. the appellant, mr. ed van roden, the adjacent neighbor to the east, at 33508 sacramento street, is concerned about the lack of an elevator to this commercial use. as mentioned, the existing building is three stories commercial and will remain three stories in commercial, with exception of a new residential unit on the fourth story. the project is proposed complies with the planning code, both commercial and residential uses are allowed on the property, since the department of building inspection is the lead agency for implementing the building

code, i will defer to kevin birmingham to respond to the appellants concerns about compliance with title 24 of the california state building code, and that concludes my presentation. happy to answer any questions. thank you. commissioner swig then commissioner trevino, what, if any, issues should we be concerned with with regard to planning? are there any that you can advise? are. there any issues which you can identify why that might be concerning in any way shape or form? please thank you for that question. i don't think so. based upon the brief and the appellant's presentation today, i didn't hear any, um, so i think it's mainly about accessibility and the elevator. commissioner trevino, are there any requirements or limitations on who can bring a challenge, uh, on the grounds that have been brought on this case? um, just

to clarify, is this pertaining to the elevator and accessibility? i'm i'm meaning the entire case as you you you just described. i think correctly, this is a case about the elevator and accessibility. who can bring who can bring this case? are there any bring the case. are there any requirements or any limitations on who can bring a challenge? i don't believe so. i mean, i haven't heard any from a planning code perspective or a planning department review process perspective. um, but certainly if someone wanted to, they can and is there any requirement to show harm to that person that you're aware of regarding the elevator? correct yes. um, i, i'm not sure i can answer that. there isn't any provisions for an elevator from the planning

code. okay, so i'm not i'm not i'm not sure how i can answer that if there's no criteria for an elevator in the planning code. all right, uh, i'll keep asking the question to different people. thank you. i would be happy to field that question. so i think commissioner trasvina is essentially asking a question about standing for challenging the permit here. and what the charter provides is that any person who believes that their own interest or the public interest has been affected by the granting of the permit, has the standing to appeal all. there is no injury or harm requirement when it comes to appeals before this body. okay all right. so we will now hear from the department of building inspection. good evening again guys. um, this, as you know, has been going on for quite a few years. and because of that was

given extra scrutiny as it went through the plan check process and as, uh, mr. santos said, joe ospital, who recently came from the mod department, which was very specifically deals with handicap accessibility issues, spent a lot of time on this project and i believe he he said he had up to 14 to 15 email exchanges with the architect to work out the infeasibility part of the project, and they did come to the conclusion that what they would do is provide a space on the ground floor that would mirror exactly what was happening in the residential or the let me see what they say in the, um, in the commercial spaces on the second, third floor and the retail spaces. so that if someone with a disability did want to access those businesses, they would come down and get the exact same experience on the ground floor. and also the elevator was pretty much in, you know, infeasible and cost prohibitive in a

building like this. so okay. thank you. we have questions from commissioner swig and vice president lundberg. okay so, um. having had a professional life that included doing, i can't tell you how many renovations of hotels or developments of hotels, it seemed every time we were renovating something, we would touch a stick and that would trigger the, uh, every non-compliant ada. um uh, standard that we immediately had to fix. so, um, that's that is a jaundiced view from a sorrowful owner's perspective. i'm being a little sarcastic, but we're, um. but uh, but but but literally, uh, if there was a, it seemed that if there was a certain

level of renovation that was being done on, um, on the first floor that suddenly the lack of a, an ada compliance, not malicious on our part ever, because we were in the position of having probably bought a bought the building from somebody, but it just triggered something that hadn't been done when the building was built, you know? so um, what can you explain how the triggers happen? what triggers what what you know, what what triggers are, uh, ada responsible parties in in a renovation in general. and then in this specific renovation, um, the i accept the fact that it the building and elevator, um, presents a significant burden to the owner and therefore, there's. uh, there might be a reason why it couldn't get built, but what are the trigger points? and also, please address, um, there was a

i said, well, if you're, you know, 20% of the, of the project costs have has to go to the ada. um but but what what if, you know, it's i was getting confused there because, you know, in this day and age, who knows what what something costs. and if you know, 20% of $200,000 is $40,000, i think i did my math right. uh, and the and the bathroom that you have to comply by make compliant to an ada situation cost $45,000. do you not have to do the bathroom so that's i mean, those are the things that were going through my mind. and i'd really like to get educated around and trigger points and, and what and compliance related to percentages of project cost. and i think the other commissioners would love to hear that too. yeah i'm a little unprepared there, but i believe it's 15% of the overall cost of the job

needs to be spent on the ada upgrades. and there is an ada check list to show where they've spent the money, where they do spend the money, and as long as you meet that threshold and you've met the requirements, in this case, they built an entire other suite on the ground floor. and that's where they basically spent their money, uh, into to upgrade the ada compliance on the on the property. but yeah, and otherwise they could have spent it on, you know, a chair lift up to the front door or front door. hardware ada bathroom. you know, there's a lot of ways where you can spend your money. generally, you try to start at the front door and work your way back, but in this case, by converting that ground floor space into a compatible or comparable space for the upper floors, that's where they spent all their money. i'm not i'm not familiar with. i didn't get familiar. i'm sorry. i should have, uh, get familiar with the layout of the building with regard to the addresses and the

use of the suites that are going to be commercial. um, and, uh, can you, uh, but, uh, i think what i heard and what i read was that in the current configuration, floors one and floors two were commercial and floor three was residential. now floor three is going to be commercial, and floor four is going to be residential. am i am i right or i'm not sure. can somebody help me with that? i don't think so. i think so, um, assuming i'm. i got a one way or the other if, if floor one and let's, let's move from reality to conceptual. so i get myself out of trouble if, if floor one becomes is a barber shop, floor two is a fashion boutique and floor three is a law office. just because you convert that floor one to the, uh, to a very,

very ada compatible situation, what happens to the to the a uh, the disabled person or person with disabilities who needs to go see the lawyer on floor three? and how are they? how are how are their needs satisfied in a building like that? when only the barbershop got the compliant , uh, improvements? well you would have to adjust the ground floor to make sure they there was an adequate or, you know, comparable space on the ground floor. and you might have to re configure the entrance into both the barbershop and to provide a space for the law offices. so i mean, this is this is what was confusing me. and i bet you that this may be the roots and, and in um, uh, in rebuttal the, the

engineer or the architect may want to address this. i mean, if you have three, three different uses or even two different uses, i, you know, in this case there are at least two commercial spaces and one residential space that, yes, from what i understand, is ultimately that's at least two commercial spaces and one residential space. i don't know how they're configured. i believe they've converted the ground floor to have a comparable experience for both of those uses. upstairs and so i want to know if there are two separate, two separate businesses on two different floors, how is ada compliance is satisfied to the users of one, which is on another floor versus is, um, you know, versus the businesses on the first floor, that's all. and you, you can't answer that because you're not prepared. but that's okay. yeah. i believe they you know, there's an access to the ground floor and you would go into one suite and that would be the retail going to the next week, and that would be the office space. okay.

you know, unfortunately i didn't quite look into that. but i mean, there's nothing stopping the neighbor bringing a lawsuit later on if he feels it's not ada compliant. yeah. well, that's, that's that's the other piece of this is, is again speaking from unfortunate experience since, um, every time i always did a renovation, a hotel, there was somebody, uh, some maliciously, some some honestly who seemed to walk in and, and file an ada lawsuit because there wasn't some technicality fulfilled. so even. even when there is something blatant, you're for sure going to get nailed. i mean, at the end of the day, this project's been going on for quite a while, and we know that. and it's getting very close to the finish. and we would like to get it, really push it over the end and be done with this. okay and i just simply because you brought it up and you said it in the way you did, i got to be a little bit snarky and say, so you're willing to get it over

the finish line and, and compromise the oh no, not the ada law. no, no, i mean, i just telegraphed i was being snarky, but, you know, this it would be very quick to bring an ada lawsuit if it was non-compliant. so we would definitely not skip on this. and like i say, joe ospital, who was the plan checker on this, has cast certified, um, specialist and he came from mod and he made very sure that everything was very compliant. in this project. thanks very much for that. thank you. vice president lundberg. thank you, mr. birmingham. i have, uh, some deeper dive questions, kind of similar to what commissioner swig was saying. um, number one, just so i'm totally clear, because i've been looking at the pictures of, of this property is the ground floor going to be fully ada accessible at the at the completion of this proposed construction? okay. because i keep seeing all these pictures where it still stairs that lead up to the ground floor part of this proposed permit is to convert that into a storefront

with the full ada underneath the stairs. okay so that area is what currently i believe it's just like a storage unfinished space. okay uh, that is very helpful. thank you for that number two. um being as the residential unit on the fourth floor is new, uh, and did not previously exist, it does. this is there no requirement to make that unit ada accessible as well? no okay. because it's the only unit in the building. okay. i just wanted to make sure, um, and following up to the previous question, the ground floor ada accessible unit, that's being proposed here, um, is it would that space be on occupied by one of the current tenants, or are there multiple tenants in the building? first of all, because i'm, i'm, i guess i'm concerned learned that that's a question for the permit holder. but my

what's going through my head is that, you know, the this compromise was created to create this ground floor space that's ada accessible. um, but if it's because, say, for example, one, one tenant has all three stories, that condition could easily change in the future is what my thought was. but how does this how is dbe ensuring that this ground floor space can be used as an ada accessible space by any of the occupants of the commercial spaces in perpetuity? that's my question. i would presume it's tied into the lease that that is part of that space, you know, because it would be two separate spaces in this case. one is a retail space, one's a an office space. so space a would have a part of the ground floor. and that is tied to the lease on the retail. and part b would be tied to the, the office space. so it will

always belong to one of those two spaces. it. has that been confirmed by dbe or is that just an assumption? uh, i would have to check. okay. um but generally we wouldn't issue the permit unless there is safeguards in place to make sure that that remains, um, you know, a comparable experience for those different spaces. yeah. okay. i will be asking that question to the permit holders in rebuttal. um, uh, do do do do. okay. this is kind of a broader question. um, just because this set off a bunch of red flags for me, but just morally speaking, how does a 2020 enforcement case, um, lead to an alteration of a 20 year old building permit? i've never seen that before. in my time on this board, we've seen some pretty old permits, but this one, i believe, is the oldest by a pretty significant margin. i believe alex addressed that that permit was never actually executed. basically, i believe i'm not quite sure. okay

i. i understand what you're trying to get to. i'm yeah. trying to explain it as well. but, you know, this project has been going on for a long time. okay. um, i, um, i might formulate a better question than that, but thank you for now. okay. thank you. no more questions. thank you. we're moving on to public comment. is there anyone in the room to provide public comment on this item? okay. is there. yes. do you want we if you'd like to provide public comment, please come up to the microphone. yes i'm doctor charles rogerson and i'm an investor in the project. your investor in the project. okay. so you're being paid by the, the permit holder? no, i've

invested and i'm an investor in the project i've put money into. okay. so i think you have i'm not a member of the public. i guess. right. so you wouldn't qualify for public comment. thank you. is there anyone on zoom who would like to provide public comment? okay, i don't see anyone, so we're going to move on to rebuttal. mr. van roden, you have three minutes. so first of all, she's putting a fourth floor up, which requires major structural and reinforcement in the building. much more than putting an elevator in. by the way. so, i mean, it's sort of an excuse that she can't do this. woe is me. and i think it needs further review with true structural engineers to look at what's required and what this technical infeasible supposedly is, which is sort of mind boggling to me. the next thing is, um, the cost he he might we need to verify what he just said. a lot of his information was incorrect. but regarding total 24 and the

dollar limits, it's 20. if she exceeds a 20% cap, then it's all in. there's no she's she's hundreds of thousands of dollars. she's more than the cap. so she's got to do it right. she didn't address anything related to the civil rights act either, as far as protect all rights of individuals and disabilities with full use of enjoyment of all business establishments. there's no way anybody in an elevator can get beyond the ground floor that someone carries him up three flights of stairs. right? so i know that mr. hospitals has a lot of background in this, but i think there's some loopholes and some things that got maybe over not looked at correctly. and i'm bringing this to your attention today. again, it's a shopping center based on the california laws as well. so i think we need to take a closer look at all this as my view. thank you. okay. thank you. okay. we will now hear from from the permit holder.

uh yes. go ahead. you have three minutes. thank you. okay so, um, if it exceeds 20, then then it, uh, mr. van roden is right. it has to. the building has to go to full compliance. ada compliance. um, the ground floor is completely, uh, ada compliant and the second and third level is the is where we applied for the technical and feasibility. and there's a distinction between office and retail services. uh, office does not require vertical access. retail services do. and the retail services of the building will be accessible from the ground floor . so offices are, are are exempt . um, and then related to the kind of the existing or

pre-construction conditions of the building. it was, is uh, a three story building. the ground level was a was a essentially a the first 15ft were, were were was, was a was a was a, i guess had had full ceiling height. and then it, it gradually stepped up into the hillside. and that created a crawl space. this permit created a essentially a, a, a cavity. so, so this ground level is about halfway subterranean for the back of the building. um, so the front is, is at grade level, but the hillside slopes up and, and, and therefore we are subterranean for the, the final 50% of that, that ground level, the first and second level. so i guess i guess for nomenclature, the first level is the sidewalk level, not ground level. uh first level and then the second floor, which is an existing level, one floor up

from grade. uh, that was the first first, i guess that's the lowest level. that's always that the lowest existing commercial level. so it was a second and third level commercial building with non commercial at the ground level. thank you. are you finished. that's it. okay we have questions from commissioner swig and vice president lopez. uh lundberg. excuse me. can you describe the uses? there's four stories ground second, which was the first. right right right. then there's the third, which was the second. and then there's going to be.

and then there's the fourth residential. then there's going to be a fourth, which is residential. yep. okay so that that lowest level had i'm clear. oh sorry. you answered my questions. okay um, the floor floor one one has been remediated to be fully accessible to according to the plans. and what i've heard tonight, to be fully accessible. floor two, which was floor one, is still not accessible. all is not accessible. correct. floor three is still not accessible. all. yep. floor four doesn't have to be accessible because it's residential. am i am i doing a good job so far? that's right. okay. thanks is it it. is it anticipated that floor one. the new floor one. the new floor two. and the new floor three be occupied by. by. are they three separate addresses to be

occupied by three separate users ? well, there are there are multiple, uh, commercial units per floor. oh, there. so it's a series of, of units of, of, of independent rooms or, or or commercial spaces. so with a, with a shared hallway. okay. and those uses are defined on the plans. but there off they range from offices to services to retail. okay. so um, so the new floor one does that become for all intents and purposes, a, a common shared area for, for all of the users on the new floor, two and the new floor three? uh, no, no. okay, then i'm really confused. well, i don't understand how this is. this building is in any way, shape or form, um, compliant. because if

it doesn't matter what the uses are in those other areas, whether they are for legal, for dental, for, you know, a flower shop, for a dress shop. right. all right. and how can a, how can they be a mr. birmingham? you better listen to this because i'm going to grill you. and if you don't have the answers, i'm going to move for a continuance. okay? and if you're not prepared, it's really okay. continuances are wonderful things, you know, that's why we gather information. so so floor one, right. which is the ada floor. if i am a customer and i don't know what's on floor two and floor three, and you don't know either because they're being renovated. okay. well, they are fully occupied, all right. they're fully occupied. so that so who's on floor two and who's on floor three? floor three right now is residential. i thought though. no, no, that is floor four. no, but no no,

no. the current the current, the current top level is occupied by by a series of offices. okay. cool. so that's going to stay the same. correct. all right. and who's in those offices. that's there's give me a type not names i don't need. are they lawyers doctors. you know there's a legal there's a legal team was the with the owner like the step up and bail out the engineer. thanks. so this has always been a commercial building. would you step to the mic? because the public can't hear you, and we can't without you speaking into the mic. so yes, please just bend it as much as you want. that's good. speak clearly and loudly. okay, so i bought this building in 1977. the previous owners were pacific cycle therapy. the entire building was used commercially and was converted in the early 60s by pacific psychotherapy.

and it's been used as offices. it's still used as offices. the planning commission, because we had estheticians and a hair salon on upper floors, asked us, if you look at the plans and you see on our set of plans, there's before current and future, you can see that they removed any thing that was, um, retail where you needed ada access. the office are not required as he mentioned, to have ada access the second and third floor are used by offices. there's a law firm in there. there's an investor, offers its office space there. there was one in large person who who who was a hair salon who's been in the building since 2004. and he he will leave. so all the rest of the space on the second and third floor are, are used by offices. i can give you the leases if you want. thank you.

that's that's very enlightening. that's very important. thank you. uh, let me ask you this, uh , my question about the first floor and mr. birmingham, when you step up, would you confirm again the level of ada compliance that, uh, that a law office or another? i mean, a law office is a retail office, even though they don't sell, you know, stuff? uh, it's still, uh, could be considered retail. any of these. i want to know the difference between retail and other stuff that that skirts the need for ada compliance. i think this was an issue with the planning commission. yeah. and the planning commission not. i just want his other opinion to warn them. but now let's continue. uh, sorry for the digression, but i just wanted to warn him so he can get his mind in gear. um, so let's go to the first floor. all right. the new first floor. um, what is that?

what what do you what is that? is that a retail space? retail it's a retail space. the building had an encroachment onto the street. there was no ada access when i purchased this building. these new plans create ada and a brand new space which never existed. okay, so now, before you could never even enter the building because when the building was built in 1900, there were still stairs that go onto the onto the sidewalk. the renovation that we did was a huge excavation. we've been before you before for years ago when my neighbor, who has filed 40 complaints and is also assaulted me, i, i'm just saying . yeah, okay. remember i'm, i was here, okay. so i've spent my whole life restoring this building and making this a beautiful building in san francisco. my neighbor has never spent nothing on his building. i

feel like i'm being penalized by trying to make this building code compliant. i spent five months with joseph austin paul to make sure that any services which are on the upper floors have a place on the lower floor. if it if it requires ada access, the only remaining person in this building is a hair salon. if the back portion is leased to a hair salon on the ground floor , which might happen, then his clients who require ada access would then go to the hair salon on the ground floor. if it is not leased to a hair salon in the back. my tenant from 2004 will leave the building. all the other tenants are office space and my understanding is that office space does not require ada access and not like an elevator for like handicap out. okay, it's not. retail is different. so basically automatically what happens in this in this situation is that

if there is a person in a wheelchair or there is a person that has disabilities which prevent them from climbing stairs, um, then they will be prevented from it's not your fault. it's just the way it is. but the, the that's the law that i understand that we talk about the law here all the time, and sometimes it works for people, sometimes it doesn't, you know, it's just the way it is, but it's the law. you just thank you very much for encapsulating the whole situation, but i'm just i'm just saying i'm not arguing with you. so if there's a law firm upstairs and that client has as disabilities and can't climb the stairs, then then they might be compromised. their business may be compromised because that person can't climb the stairs, but from your view. and we'll ask mr. birmingham to confirm that, uh, the. it's not illegal. it happens to be a legal coincidence. yes. and an

and that law firm is not going to have a customer or they're going to have to have somebody else deal with it. and somewhere else. the one lawyer in the building only works remotely and never sees any clients. the financial people, the people, the office, the people using the office space don't see anyone, right? so primarily they're primarily they're not in and out. so they're not they're not any they don't see they don't have customers coming to them. right? none of them. so the only the only space that has any, any chance of being a retail place, space to sell flowers, be a hairdresser, sell dresses or men's clothes, um, that it's on the ground, they're going to be on the ground floor and that accommodation for ada has been, uh, made. yeah there was no ada into this building to begin with. no, because there's no building. and those things didn't happen. and also, we added 2000ft!s of retail space that never existed on sacramento

street. and we're doing a lot of glazing. and i mean, honestly, you guys, i've tried my best. i'm 76 years old. this person has stopped me every moment. i don't know why i didn't do anything to him. i i understand, but thank you for your testimony because it's really clarified for me. the uses and then align those uses which with what mr. birmingham will confirm are the are the legal compliances. yeah. and the planning commission was pretty. that's why i don't know if you guys i know you're all busy, but if you look at the plan set that's going through it shows before current and future. so that there is no question that on the upper floors, if there is something that requires ada access, they must have a space on the ground floor. and if the hair salon, if the back does not rent to a hair salon, it could. but if it doesn't, he will leave. that's the only person left that. okay. thanks for thanks very much for your testimony. very enlightening. i think, uh, commissioner lemberg has a question for you or commissioner lemberg. i do just

the owner. would you like to. i think i think for you, ma'am, would be more helpful. um, i want to ask a question. i asked, uh, earlier to mr. birmingham, but i realized it's more appropriate for you, which is that, um, you've been discussing significantly how what the current uses of the units are of the rental units are and i certainly understand that. um, but from my point of view, in order to have true ada accessibility based on this plan , um, those access rights for the upstairs tenants, uh, or the, the, the any tenants above the ground floor, um, would have to be i don't know, there has to be some enforcement mechanism because the uses the tenants may change. probably will change over time. um, so what enforcement mechanism are you creating either in lease agreements or some other method?

uh, to ensure that any future tenants in this building will also have ground floor ada accessibility access, if necessary? very well. my leases are pretty explicit as to the use, so if someone comes to me and wants to rent a another hair salon or an esthetician or some other personal service which requires ada access, i'm not going to lease it to them. i mean, i as my intention, i have no intention to break any laws. i've done everything i can to make this building code compliant. you know, it's fire sprinkled, it's earthquake. it's you know, it's a beautiful victorian that's been restored and this person next door who's filed all these complaints against me has done nothing to fix his building. so i guess the answer is that it's just is it in all of the tenants current lease agreements? yes. okay yeah. it's all my tenants. i could present the leases if

you'd like. my leases are i use a quarterly lease. it's very explicit what the use is and it's. and they are to be used as general office purposes and offices don't require elevators and ada and anyone coming to me, i have no intention to break the law here. okay so the ground, the ground floor ada accessible space is leased only to the hairdresser. well, if it's when it finishes, there are two separate entrances. and if you look on the plans, the back section is what's called out where, if anything, it's specific on the plan. if there is something on the second and third floor which require ada access, this is the section where it will be. if the back does not lease to a hair salon, which it could, because there's a lot of them on sacramento street. but if it does not, then when this project is finished and the ground floor has occupancy permit, the person who has its 80ft!s, that's all he's

got. he will leave, i promise you. okay. so on paper, who is the ground floor space lease to. it's not done. that's what i'm trying to finish it. okay so the answer is not to anyone currently. currently it's currently the reason we're trying to get this permit through is so i can get occupancy permit after this huge excavation, new foundations, seismic moment frames. i just spent all my life building this ground floor space. i don't know who it will lease to. there are two separate entrances. if it does not lease to a hair salon in the back, then then the person who has the 80ft!s who's been there since 2004. then i will tell him. that's it. all right. thank you so much. okay. thank you. we will now hear from the planning department. anything further? tina, for the

planning department. um, just really have nothing more to add. other than to confirm that the ground floor is proposed for retail. um, the area behind the main ground floor retail. um, does note that the space shall provide the same services by the same tenants as. provided in the upstairs retail space on the second level. will be the gold berry jewelry store for the entire second floor. and then on the third floor is noted as general offices. thank you. okay. thank you. i don't see any questions. we will now hear from debbie. there is a lot of

different options and conclusions on an existing building like this, and i would be happy to continue this. and the next time i come back, i'll bring a cast specialist and a senior plan checker who's a lot more adept at answering these questions than i am at this point. um, i'd be happy to continue if that clarifies the situation. well yeah. um, so i think it was very helpful to hear from the owner. yeah who explained? and then, uh, and then the plans indicate that that the jewelry store in the second floor has a first floor access and that would handle the ada, uh, piece of it. my concern is this, um, i wish the owner of the longest life possible. she and i are peers, uh, from across logical standpoint. so uh, i've accepted that i won't live to 176. uh, and i probably won't

own my house and all that stuff either, because i can't take it with you. um, i, you know, sorry for taking taking kind of a life air on that, because we worry about it, you know, what's the point? um, but but but the building is going to live forever, and there will be a successor owner potentially. and so, um, and i, i, i believe the current owner that she's going to be responsible, um, i don't know, the next owner and nor does anybody on the, the commission. so my concerns are that although she's, she has a level of integrity that puts it in the leases. um, do you advise that that that we put and i would ask the city attorney, can we do this, put some restricted, restrictive, restrictive covenants? uh, on, on this building so that if we approve of this, um, uh, this permit that acknowledges restrictive

covenants, covenants on, on on the third floor, uh, business only. so that it retains a business, a legal psychiatric, whatever. uh, non-retail and non retail, um, use and so that there won't, wouldn't, won't be a worry about that because we'll hold it. it'll be legally held accountable for not leasing to somebody that's retail. that would require a broader ada. uh, yeah. i believe we can do it. but i would defer to legal. but i think we could classify the ground floor as mercantile. the second floor is office and keep it that way, and you have to go for a change of use. if you did want to change, it would would trigger the ada. ada upgrades at that point. yeah. how do we how do we hold accountable? how do we protect or how do we protect that when the current owner is no longer the current owner and another owner comes in that that

there's a clear record that that that what is about to be the third floor cannot be used for anything but um, but but business office purposes and non retail purposes. so i think the board needs to be mindful that what it has before, it is of course, a building permit. so but we've done, we've put terms and conditions on buildings. um many many many many many times. so i don't know if this is legal to do that. in this case. i think what we've seen before is a use classification in the plans so that the department of building inspection makes clear here that the approval is for a specific use. right, which wouldn't include anything open to the public in this case. right. for the floors that are above the space where there's accessibility, i don't think a restrictive covenant could be imposed because that goes beyond

what planning or die would have the authority to impose those. and so this board's authority is limited to what the city departments would have the ability to do in connection with , with the permit. let me rephrase the question. what can we do to ensure that there is clarity and public knowledge that the new third floor will, in perpetuity be restricted to office use? well, can we do i don't think we can restrict it in perpetuity because somebody down the line could potentially do a renovation and decide they want to make commercial spaces up above. so i don't think it's current condition. how about that in its current condition? i think it's i think it's what dbe has indicated, which is that the plans could indicate a use restriction at the at the end of the day, if there are ada accessibility issues, there are also private rights of action

that can be pursued that what is before this board is a building permit. and so the building permit can indicate a restriction on the use. yes. right um, but i'm not prepared to. that's perfect. that's you answered my question. so as we move in today, if we approve this permit, can we put a condition or should we assume that do we need to put a condition of restricted use on the third floor just to make everybody feel comfortable? well, i think it would be the plans that are approved by dbe. we would need to confirm its occupancy on that. that the occupancy is specified, tried to indicate that the spaces are not open to the public. and then if someone did want to do retail on the third floor and they were willing to spend the money to put an elevator up, oh yeah. then they could and they would then be ada compliant. all right. so but but in it's i think it would if the issue is an ada issue. yeah and we know that the law is that office use

does not require that ada that level of ada compliance. yeah. that that for future boards of appeals for a future senior dbe officials that it'd be right there in front of them as on the record that says this in this current condition. this is restricted to non retail uses or non public at whatever you terminology is its occupancy code for per floor. and i would like to see that if in fact we do uphold the permit i'd have to check it might be on there already. i would have to check. can you check. yeah all right. thanks. thank you. good storm going on by the way, outside, i can hear it. president lopez, i'm sorry. has a question. no, sorry. that was that was my question about the current state, which it sounds like you're going to look into. okay. yep. okay. thank you. okay, commissioner. this matter submitted. uh, well, mr.

birmingham is looking into that. uh, why don't we start on on this side with commissioner trasvina. so are the hearings over so, um, if one of the commissioners, uh, directs a question at you that potentially may be on the table, but we're in deliberations now. thank you. i i like the way that commissioner sweig is elevating the, uh, ada issue and future accessibility. i am not at all comfortable when i hear no interest or record. uh of the rights of people with disabilities. um and this appears to me to be an excuse to challenge the work that has been done by the property owner. uh, i think that's a misuse of the

law. uh, i do not want to. i do not want to, uh, uh, credit the appeal with with any, uh, uh, we with with anything other than it is brought in a larger dispute. i will not go into the details of the dispute. uh, that are very much laid out in the record that have already that has already been brought before us. uh, but i do. i do appreciate, commissioner swig looking for the proper protections and how we've prepared to, uh, support his motion. uh, in that regard. um this is another case where i think the real property lawyer in me was coming out and wanting to do things along the lines of what commissioner swig was suggesting. but, uh, ultimately, i, you know, being as the city attorney has told us that we can't, uh, impose any such conditions. um, i think that the i think that the permit holders

have presented as strong of a case as they possibly could here , and i don't really think there's a base similar to earlier. i don't think there's a legal basis to grant the appeal. and for that reason, i would have to vote to deny it, uh, to deny the appeal. um, even though i, you know, i do have this kind of bat like itch on my back, on my shoulder to do something more than what we're able to do. but being as we can't, uh, we shan't . um i generally i generally agree with my fellow commissioners, the, um, private right to challenge the ada accessibility is a strong one. and i do think that it will act as something that will protect, uh, the, the future users of the building. if someone should end

up in a if, uh, if somehow a space is improperly used in the future. um, i am in favor of making sure that the plans are appropriately clarified such that the third floor uses as office are are clear. um, it does. it is relatively clear that the first floor has flexibility to accommodate, um, a, a tenant who needs an accessible space. um, and so i'm , i, i do look forward to a response on if anything needs to be added in terms of use. i will also point out that change of use, uh, restrictions also, um, are a kind of a bulwark against the improper change without ada considerations being taken into place. so we do have some legal bookends on what's possible here, and i look forward to hearing if there's anything else that we need to add in terms of use on the plans. it looks to me like they're pretty well specified in terms of what the uses are, but we can wait for

that comment. okay um, mr. birmingham, do you want you want to come up and then, uh, if you don't have the answer, i was going to ask the property owner if she had knowledge of the plans, whether that's specified or not. so under this permit, it is r3 residential is top floor, b is for office space, and m is mercantile for the right. and so, so it is. these are it's office space, whether you like it or not. and if you want to change it, you will trigger ada upgrades. and you have to be code compliant no matter what it is. that makes me feel comfortable. thank you very much. thank you. uh, commissioners, i agree with all y'all and all y'all that where are we in new orleans? um, and, uh, uh, and i, i am comfortable, uh, as my fellow commissioner said, that that if somebody abuses the privilege in the future and tries to put something on the office floor that isn't compatible, i, i, i know that there are there's a

lot of scrutiny in the public about, uh, ada compliance and, and they will be challenged. so i'm going to be, um, i'm going to be comfortable with that. and also it's in the it's in the plans. so i'm prepared to make a motion to, uh, deny the appeal on the, on the basis of the permit was properly issued. uh, before we entertain that, i did want to say that that i echo the , the comments of my colleagues. i want to thank, uh, in particular, commissioner swig for helping kind of smoke out the facts in this one, which were, uh, confusing to me. i suspect we're confusing to some of my fellow commissioners as well. and i think, uh, your questioning, uh, brought us a clearer picture of, uh, of the, the proposed reality. and i also want to thank the property owner for presenting, uh, her her facts and position and, uh, and

personal history with, with the project and, uh, your, your your comments were, uh, at least very helpful to me in helping to reach a determination here. uh, so with that, we can move forward. okay. so we have a motion from commissioner swig to deny the appeal and uphold the permit on the basis that it was properly issued on that motion. president lopez i, commissioner trevino. hi. vice president lemberg. i commissioner eppler i so that motion carries 5 to 0 and the appeal is denied. thank you for your patience. we are now moving on to item number eight. this is appeal number 23. dash 061 ming mao versus department of building inspection. planning department approval subject property for 15 grafton avenue. appealing the issuance on november 15th, 2023, to brian edward corwin of a site permit. second story addition at rear of home upstairs addition to include two bedrooms, two bathrooms, one laundry room downstairs remodel to include new full bathroom, kitchen

expansion, new family deck i'm sorry, new family room deck remodel at backyard. this is permit number 2022 08150509, and we will hear from the appellant. first, miss mao. welcome. you have seven minutes. uh computer, please. huh. oh, sorry. uh, what do i do? can you see computer? yes, we can see it up here too, on our screens. okay. thank you. oh, my name. can you hear me? sorry. my name is evelyn mao, the property owner of 49. can i go back to

the computer overhead, please? uh, you have to the image, huh? oh sorry. there you go. okay uh, we started the adjacent property , uh, of 415. uh, the two buildings, four and five and four tonight are similar in terms of height and low. both buildings have a h-shaped wolf. even though we are adjacent to each other, i'm able to see, uh, received a light and morning sunlight as well. uh sorry. can i see that one? and you can see that this is the property that we have. okay um. the existing height of 415 is 24ft tall, and the four ceiling is seven feet and 11in. the new building will

be 31ft and three inches tall. and it will be a feather shaped, uh. it will be a affected shaped wolf. and you can see those lines right. um, and that will have a significant negative impact to the light and the sunlight of my property. i know mr. brian has a hypothesis. computer model about the solar shading. and based on his statements, page two. uh, the model also stated the light and the sunlight will impact. and i only have 90 minutes of morning sun, so based on the model, the new addition will reduce 45 43 minutes from the sun, meaning 50% of the morning sun of my property. that is significant.

but we don't know the assumption what the assumptions are and what the criteria are, where they taken into consideration in including this replacement of the a shaped roof to a flat shaped roof. so standing on my property and seeing the sun movement with my human eyes, my observation is that once the h shaped roof is opened up to, uh, become a flat shaped rooftop, it will block most of the morning sunlight. that is why i'm strongly asked for the three feet setback. you will agree with me about my observation. i have been standing and seeing the morning sunlight coming to my property. it is my real experience, not from a

hypothesis. computer model. let's take a look. let's take a closer at the new, uh, building ceiling height. the first floor. as you can see. uh, can someone please shut the door to the hearing room? i'm sorry. it's a bit loud. thank you. the first floor is will be eight feet and five inches. and the first floor ceiling will be 18ft and five inches in price. at the first floor there will be ten feet tall. the second floor will start at 19ft, 5.5in. the second floor ceiling will be at between 28ft and 30ft in price. that the second floor will be up to 12ft tall. mr. brian's new building, uh, ceiling heights will be higher than most of his neighbor

homes. lower the vertical addition to 29ft. mr. brian can still have high ceilings for his growing family to enjoy. and i have some sunlight in the morning as well. the new building will install or replace windows on the property line and install new window at the back of the property. i have privacy and safety concerns about those windows, especially those on line lines. window opening over the property line. that will be a significant negative impact to my building. i also noticed that the three so-called let me show it to you, the three so-called old, uh, existing window may not be qualified as grandfathered window. do you know why?

according to miss, uh, to san francisco building code, the existing light window can only be replaced. not with not can only be repaired. not replaced. the window. the building was built in 1900. those are, y'know, window. so they are not original. they they are replaced without permits because i cannot find any record in dbi about this window work. um, so i'm asking ppe the city consider those vinyl window as will the city. consider those as grandfathered window. if they knew they will replace without permit, but if not, they should be treated as a lot like window as same as those new window. i discussed my concern with mr. brian in the past year. i suggest the new drawing to set

back three feet and to use skylight instead of lot lines window. mr. brian reject my suggestion. then i suggest an alternative to change the vertical addition from 31ft to three 31ft. 3in to 29ft, and all lot line opening to be upscaled non-ops table and fire rated. i try to negotiate with mr. brian, so we could come up with a solution, but he also rejects my suggestion. i remember my last conversation with mr. brian last november. he said to me he have no privacy concerns and he can stand naked in front of his window and has this statement make me uncomfortable and i feel

like i was sexually insulted. the year the your decision about my ass should help to avoid this from happening again in my best neighbor neighborly voice, i believe my ask is reasonable. i hope i have provided sufficient background information for you to rule that that the vertical addition that's time sufficient. okay, thank you. we have a question from commissioner eppler. yeah, just just one quick question. um, you, you know, have a couple of requests and there's an or in there where you ask for a three foot setback or 29 foot height, that 29 foot height would be if i'm understanding all the plans correctly, two feet shorter than what is currently proposed. i am very humble. right. okay. yeah. understood and you know, it's nice to have options and it helps us too. and so that that's great. um can you and i know that you take some, uh, you

know, you have some suspicion about the shadowing study. can you, can you articulate how much additional solar benefit you would get from the two foot? sorry. there you go. two foot change in in height during the course of the day. do you have any metric for what that benefit would actually look like? i do not, uh, the only thing is, based on my human eye, my, uh, observations, you know, and that's why i prefer a three foot setback. but i as a good citizen and a good neighbor, i also suggest to just lower this, uh, and just keep in mind, i only have 90 minutes of sunlight in the morning. so 43 minutes of reduction of my sunlight is talking about 50% reduction. it's a significant point, i think. understood. thank you. thank you, thank you. vice president lundberg. thank you, miss mao. i have one more

question that often. uh, commissioner swig asks, can you can you kind of detail the conversations between you and your neighbor regarding the scope of this project? uh, kind of the before for any of these appeals were filed. can you kind of explain to me how so, uh, explain to me what the conversations were like between you and your neighbor regarding trying to find common ground, uh, as to how the project might be able to move forward. uh, other than the one that i just talked about in my statement. yes. were there were there ever discussions about the plans themselves or, you know, he never come to me about the plan before he submitted to the dbi. and i thought we a good neighbor. i was a little bit disappointed by his action, but it's okay. that's why i have to appeal. i did talk to him a couple, uh, options, but he rejected all my options. you know, and then he said, oh, it's

okay, but it's not okay. okay. thank you. did i answer your question? yes you did. thank you, thank you. okay thank you. no more questions. you can be seated. thank you. thank you. we will now hear from the permit holder, mr. coren. welcome. you have. seven minutes. thank you. hello. commission uh, my name is bryant corwin. i am the owner of 415 grafton avenue. uh, i was born and grew up in san francisco, and i absolutely love this city. and i feel incredibly , uh, privileged and lucky to be able to have bought a house here and live close to my family. uh, my partner and i feel that we got one of the, uh, last deals in san francisco that has allowed us to stay here. um i live there with my partner, my six year old, seven year old son, my three year old daughter, and my mother in law, uh, in

about 1000 square foot space. it is old, um, and needs to be updated and upgraded. our whole plan this time was to live in it until we could save up enough money to do a remodel. um, we have gotten to that point now where we are ready to do a remodel and add a little bit more space. about 650ft!s of additional space. um, we believe this to be a very modest addition. uh, really meant to allow us to grow into the space. uh my two kids currently share an incredibly small room that they are quickly growing out of. and so we need, uh, to make more space. um when this was went up for public notice as part of the planning department requirements, um, evelyn requested a discretionary review at that time, i met with her.

she and i met for about two hours at my house where we walked my property inside and out. we looked at her property, um, and discussed her concerns. um. i then went back to my architect with her concerns to identify what we could do, what our options were. we looked at lowering the height, the two feet that she suggested, and we did the we updated the solar study and it provided about one minute of additional direct sunlight into those windows. um after i had those conversations with my architect, i sent an email, uh, to her, um, outlining some options that we could discuss and what was possible. um she did not respond to that email that was february 12th of last year. she did not respond to that email, nor did she respond to numerous requests by the planning department to mediate this issue. and try and

work together. uh, it wasn't until the day after the hearing on march 31st that she then responded and asked for, uh, some, some changes to the plan. now, that was after the discretionary review hearing. and during that hearing, it was stated that, um, there was nothing extraordinary about this addition, and it was unanimously declined. so then the day after she responded, uh, looking for changes to the plans, but i did not feel comfortable making any changes to the plans because then it would have opened up the process again for public disclosure and would have required to go through that 30 day notice and everything again. uh, the existing house sits on the property line. um, and so the addition, uh, continues that trend. uh, if we were to do a three set, three foot setback

from what exists now, it would significantly reduce the amount of livable space that we could have there. um. there are three existing windows. they were there when we bought the place. i have no idea as to the history behind them. all i know is that when we bought the house, those three windows were there. uh, and in this remodel, two of those get replaced. their currently operable non-fire rated, um, and they would be replaced with fire rated non operable windows, as is required in ab 009. i am fully aware of the risk and responsibility, especially after sitting through that past hearing about windows on the lot line, and recognize that, um, the main the primary purpose of this is to allow light to come in not for views, but really to allow light into the space. um, ideally i would

like to keep as much of the roof available for solar panels, uh, in the future, when that becomes financially feasible for us. uh, regarding the height of the building, it is a sloped roof for the new addition, so it is a little taller in the front than it is in the rear. um, it is lower than the zoning maximum of 35ft. so we did not even go to the maximum height. uh and at the rear, uh, that allows for eight foot tall ceilings, which is just a little bit higher than the seven foot six minimum that's required. and in my opinion, is actually quite short. i can easily reach up and touch those. and that's where the kids rooms will be in the future. um, with regards to the windows again, um, the three new windows, one of them is on the ground floor. that is then, you know, kind of matching up with her floor as well. that is in

the bathroom. and it is a narrow up high window that's above the line of sight. it's really there to let light in. the other two are on the upper floor. and look, you know, above her roof line or kind of at her roof line and above. um you know, the appellant's house is on a very large double lot. it is fully detached. it does get daylight and sunlight all, all day long, um, especially at the rear where our house, um, does not and will not fully reach the depth of hers. um we really just want to get a little bit more space, and we believe that this is a pretty, uh, modest and reasonable addition. thank you. thank you. commissioner eppler has a question for you. yeah, just one question. um, since i kind of asked on the other side,

and then you mentioned that your roof slopes the highest point of your roof appears to be that 31 one feet and three inches. do you know what the height is at the south part? that the lowest part there. what the what the height is there? um, i don't know offhand. i'd that is in the drawings that were provided, um, in the brief, uh, so if that's what you say, it was 31. yeah, it's 31 at the front, at the top part. and then it slopes downwards towards the south. so i believe it would be three feet lower. okay. got it. yeah. okay. so 28 change maybe. yeah. okay got it. thanks. okay. thank you. you can be seated. thank you. we will now hear from the planning department. tina tam for the planning department for 15 grafton avenue is a one story over basement single family dwelling in the r1 zoning district and a 40 x

heightened book district constructed before 1900. the property is a potential historic resource. the permit is to construct a new vertical addition containing two bedrooms, two bathrooms, and a laundry room. the appellant is evelyn mao, the adjacent neighbor to the west. at 429 grafton. as you just heard from the from the applicant, evelyn was also the requester. um, and is citing the same issues raised in her application. um, lighting air impacts of the new addition and privacy impacts of the new property line windows at the march 30th, 2020 3dr hearing, the planning commission heard testimonies from both parties and voted 6 to 0 to not take the yard and approve the project as proposed. the commission did so because the project meets the planning code and residential design guidelines, and there are no exceptional or extraordinary circumstances in the case. as an expansion of any building, it's

anticipated there will be some changes for the neighbors. however, both the planning department and the planning commission believe that the vertical addition is modest in size and that the general setback of 11ft on the appellant's own property provides sufficient separation between the two neighboring buildings. i'll go ahead and quickly put up some graphics overhead. the site plan, um, at the top, shows the subject property in blue and the appellant's property in red. as you can see, the appellant's property is double. it's a double lot, 50ft in width and it's has its own sort of setback on all four sides. the site plan below shows the proposed vertical addition. the location of the vertical addition highlighted in yellow, and again

the separation between building wall. the building wall is 11ft. here is a existing and proposed side elevation of the subject property. this is the site, um, in which directly faces onto the side of the appellant's property . the rendering of the elevation on top is the existing condition . and the elevation below shows the proposed vertical addition. there are two existing property line windows that are proposed to be removed as part of this permit, and replaced with a smaller window, and for the proposed addition, there will be two new property line windows shown here in yellow. i believe

these two windows are for, i think, a window to a staircase and another window to a bathroom on this elevation, you also see, um, the location of evelyn's windows and as you can tell, none of the new windows directly faces onto the appellant's windows, thereby keeping the privacy concerns and issues, um, to a minimum. um the parliament and commission finds that the project complies with the planning code and the residential design guidelines. the department recommends that the board deny the appeal on the basis that the permit was properly issued. that concludes my presentation. i'm happy to answer any questions. thank you. commissioner swig has a question. um as typical, my questioning, uh, could person, could you put up the slide before the drawing? before the one that you just you just put up? um. so um, even those

property line. so this this looks. if we had an original map, it looks like that the appellant's house could have been placed. on what? on a similar lot that, uh, of the size of the, of the property permit holder. am i speculating or or i mean, who knows what happened in san francisco then? um, and, and thus the, uh, this is more the appellant's property is much like a cottage. it seems. then, uh, a full scale house of the appellant. is that my being too logical? i'm sorry. i didn't hear you. if we looked at an original, uh, mapping of the city, would it be a possibility that those were combined, that the permit holders. i'm sorry, the

appellants house was, in fact, on on two lots, do you think or does that just just out of interest? sure. i'm not entirely sure. but i do know that both buildings, um, are similar in age, so they're super old. they're like 1900, maybe even older than that. and there are some, some random sort of older homes on wider lots sort of sprinkled throughout the neighborhood. um, some get demolished and subdivided and, and new two new buildings get constructed. but in this case this remains possibly the original sort of configuration, since the coincidence that that that the smaller that the permit holders, uh, house is on a property line is, is really the available use of a very, very narrow, uh, piece of land and, and that was a circumstance chances of the of the day. well, it's narrower, more narrow than

the appellant's property, but it's not more narrow than the typical san francisco lot. yeah 25ft. okay um, uh, could the could the permit holder have developed a more ambitious project on on his lot with expansion? yeah, absolutely. i mean, the, um, the zoning for this zoning district, r1 allows you to go full width, uh, lot line to lot line with no setback. yeah. um in the height limit here, given the topography of the lots, 35ft front to back, wherever the front yard is, wherever the lot, lot line is. okay, so this is 35ft. this could be considered a conservative addition that does not push put push the envelope in any way, shape or vertical. it's not a full vertical number one to start with. um, the slope of the roof, um, does angle it's taller in the front than the back, so it's not consistently i think 31ft is, which is the

tallest point of the overhang eave. um, so it does slope down. so reducing the overall sort of envelope towards the back. right. and it's set back from, um, significantly from grafton avenue. so from a street view, it maintains a um a less bulky situation. correct. it's set back from the front and um, there might be even some more area in the back that can possibly push it, which is in the buildable area. but i didn't do the calculation. yeah and it and if the other uh, and if the other house is as long as it is now and in fact longer in the or goes deeper into the property than, uh, the, the permit holders house, probably he could have expanded the back as into the further into the lot. at least there's room to grow. that's my point. there is room to grow. that's correct. and he didn't push the envelope and he's not being overly ambitious. and trying to right the addition accommodates two bedrooms to a

bathroom. yeah. okay. um do you is, uh, i asked this in the first session. i think anything that gives you any, there might be one that came up that, um. mr. birmingham and i just caught on. um, there's a there's an existing property line window that looks like it's operable. all right. um, so that that would need to be modified to be fixed per ab 009. okay. and that's something that dvi will catch. and will not issue, will not, uh, will ask that modification. and we don't have to deal with that that tonight. okay, okay. cool. thanks. okay thank you. no further questions. we'll now hear from debbie. all right guys, um, debbie really has no problem with this permit. they've addressed the a b009. it's incorporated into the approved set of drawings. all

all the protections that were we went over in the first case are in place. uh, like we said, we did just spot that. that one window appears to be operable. that doesn't seem to be noted on that set of drawings that it is to be replaced by a fixed window, but we'll make sure that gets addressed before it goes out the door. so okay. thank you. any questions guys i don't see any questions. you can be seated. thank you. okay. we are now moving on to public comment. is there anyone in the room to provide public comment? okay. is there anyone on zoom to provide public comment for this item? i don't see anyone. so we're going to move on to rebuttal. miss mao , you have three minutes to address the board. hello um, the last time i was

here for the discussion, we reviewed towards the end of the hearing, i feel like my eyes got swept under rug and that did not make me feel good. as a tax paying citizen. and so i'm here for the same reasons as in the case of mr. brian's already approved the drawings. i'm asking you to consider the negative impact to the addition of his building will have on me, his neighbor. i'm asking within the law that that you consider the three feet setback in his direct vision. in this way, mr. brian can do whatever he wants in his building as long as it meets the city's building codes. as a good citizen and a good

neighbor. if the three feet setback is not an option for him , please, please, please give me the upgrade window. not operate and fire. fire rated lock live window. okay, i please help me with this. you know i don't want the window be see through. if they're not for the will, is it possible that get it not a see through window? i'm not asking a lot. right and if also reduce the proposed height of the building to 29ft. it this way i can continue to get some morning sun light to my property. i won't be concerned about seeing a naked man in his window and i will feel more safe in my home. i think that solution will not remove mr. brian too far from

his intention to take care of his family. this is important. and so with the lights that is coming to my house and the not see through window and non operable fire rated window in store at my property line, are those benefits to what i'm asking? maybe doesn't sound like that. third time to mr. brian, but in my neighbor, my best neighborly voice. what i asked about what i am asking is reasonable is that i continue love where i live and why i bought my property and mr. brian on the same hand, continue take care of his growing family's needs and i want to add why i'm not responding because i was sick for a whole month when i

got this. uh, the time that he, he sent me that. thank you. that's time. okay. thank you. commissioner swig has a question . yes, i, um, i'm going to put this in the form of a question. although it's for information purposes. um uh, do you understand? do you understand that the property line window that you're complaining about will be fixed? it's going to be a fixed window. and it's according to the all the window, the windows on the property line that are is operable. dbe is going, do you understand that dbe is going to require that that be a fixed window that fire? uh uh, fireproof all the current standard. you understand that. so you're getting your, your wish on that. you understand. but mr. rig, you know there's three existing window was not as, uh, as right now is not great. they they thought it's a grandfathered. but i already told you this shouldn't be a grandfather. so i hope this three existing window also be non-operable. it is not it is not going to be operated.

well. mr. birmingham, would you please, uh, help the appellant understand? um later, after after the. so all the window on the property line will be okay. can i also ask for, like, not see through right. uh uh, do you also understand that, uh, and it was a very, very important, um, uh, example when, when planning showed the, the, the alignment of the windows, the alignment of the windows, do not, uh, align with your windows so that when you will look out of your windows, you know that you will not see into your neighbor's windows. and if you would like to see that, i'm sure they will show you that, uh, you won't have that fear of him looking into your house or you looking into his house. do you? did you see that, uh, that example? i understand, mr. rig, but the thing is, like. yes, i'm not saying. but it's not like that.

i have 180 degree view. right. so i can still see something. if someone stands naked in front of the window, i can still see it, and they can put a curtain in front of themselves or not. uh, and the final and the final thing, uh, i know that you want a 29 foot height. the peak. but if you. what did you look at? the design of the house and see that, uh, first of all, uh, the addition is set back. uh, uh, from it's not from the, the grafton street all the way back. it is it is partial. okay. and also that the front of the addition is 31ft. the back of the addition, by my estimate, is probably 29, 28 or 29ft. so in fact, it is not 31ft all the way. so in fact, you do get, uh, the, the you understand that it

the, uh, the permit holder has really worked to accommodate your needs. uh, even though you may not think that. thank you. all right. thank you. i want to make sure that you understand that you're you're getting pretty much what you want. and also, i also give in. okay? don't forget, i'm giving a lot. i understand. and that's that's what makes that's what makes you a lovely neighbor. good neighbor i know that. and that's what makes you a lovely neighbor. okay and you also most importantly, understand. and that he could have gone a lot higher and done it front to back . and so do you understand, please, that he's being a good neighbor too? um, by by designing something that is good for him, but not everything that he could have gotten because he's being respectful to his neighbor. i want do you understand all that? yep. okay i want you to feel comfortable. that's. yeah and that you're. and that you're listened to. okay. thank you so much for listening to me. all right.

thank you. thank you very much. okay. thank you. we will now hear from the permit holder. you have three minutes. uh thank you everyone. um, i do just want to start by saying that evelyn has been a great neighbor. um, we've gotten along very well on everything except for this, um, my kids enjoy her. she's been she's been great. and this has been the only point of contention. um, the only other thing i wanted to bring up, uh, on the addition on, you know, there's the two existing windows that are getting replaced by three non-operable fire rated. uh, it was brought up the other operable window that is our current bedroom in the front of the house. that is out of the scope of the addition. that is not being that part of the building is not being touched. it is only the rear that is, um, getting rebuilt. okay. president i mean, commissioner swick used to be president once. president.

okay sorry. donald trump, he's still president, according to him. so why the hell can't i be still president? uh, sorry. um, that was that was inappropriate, but true. um you understand that that those those. and i'll ask mr. birmingham to confirm this to you. do you understand that once you have once something is illegal, it's illegal. and that the she could come, your neighbor could complain. a notice of violation will be filed, filed, and you would have to replace it anyway. so even though it's not within the scope and mr. birmingham, if you would please confirm this, me being the amateur here, you being the professional, um, you're, you're you're going to be required to replace that window because it is, uh, a non-compliant window and because you're touching the rest of your building. uh do you understand that? you'll have to get that done. it's just just part of the wonderful homeownership. i was unaware, but. yeah, so be it. it's a

window. sorry um. all right. and you answered. i was going to ask you, uh, on behalf of the appellant, uh, is there the ability to frost any of the or make opaque any of the property line windows? but if i were you and i'd answer no, because that would be the only one that seems to be, uh, the one in question is your bedroom window, and i don't think that you probably want to frost your or make opaque your bedroom window. i'd prefer not to. yeah. why don't you just put up drapes? how's that? okay. thanks a lot. thank you, thank you. anything further from planning? dbe no. commissioners. this matter is submitted just for proper, uh, mr. birmingham, would you please step up and please confirm that the bad advice i gave for once may may be accurate about the operable window and your ability to, um. yeah, if it's non-conforming, it's non-conforming. it will have to be brought up. okay. thank you. just for the record, thank you.

uh, commissioners, why don't we start at, uh, commissioner suggs and again. okay. i find no problem with this. this property. it's been confirmed by dbe and planning. so i would make a motion to deny the appeal on the on the basis that the permit was properly issued. commissioner eppler and nothing else to add any other i agree. i appreciate, uh, former presidents wix. uh uh, extended comments that, uh, developed the case and hopefully brought some promoted some good and future relations, uh, with the neighbors. thank you. thank you. and thank you to, uh, commissioner swig for also for your respect for election integrity and, uh, and i want to thank the, the parties. i think i saw something a moment, uh,

here in the latter part of comments that i saw some, some warmness there. and i wish that we saw more of that, uh, particularly among, uh, in between neighbors. um, thank you . uh, to the appellant. i think you, you you raised something in this process that, uh, that led to, uh, the department's, you know, making a note of something that, uh, potentially was, was missed before. so thank you for your statements. and thank you also to the permit holder for, for, uh, for presenting a reasonable and neighborly, uh, case before us this evening. so with that, i think we have a motion. okay. we have a motion from commissioner swig to deny the appeal and uphold the permit on the basis that it was properly issued. on that motion, president lopez i, commissioner trevino i vice president lundberg i commissioner epler i

so that motion carries 5 to 0 and the appeal is denied. and that concludes the hearing. thanks everybody >> shared spaces have

transformed san francisco's adjacent sidewalks, local business communities are more resilient and their neighborhood centers are more vibrant and mildly. sidewalks and parking lanes can be used for outdoor seating, dining, merchandising, and other community activities. we're counting on operators of shared spaces to ensure their sites are safe and accessible for all. people with disabilities enjoy all types of spaces. please provide at least 8 feet of open uninterrupted sidewalk so everyone can get through. sidewalk diverter let those who have low vision navigate through dining and other activity areas on the sidewalk. these devices are rectangular planters or boxes that are placed on the sidewalk at the ends of each shared space and need to be at least 12 inches wide and 24 inches long and 30 inches tall. they can be on wheels to make it easy to bring in and out at the start

and the end of each day. but during business hours, they should be stationary and secure. please provide at least one wheelchair accessible dining table in your shared space so the disability people can patronize your business. to ensure that wheelchair users can get to the wheelchair accessible area in the park area, provide an adequate ramp or parklet ramps are even with the curb. nobody wants to trip or get stuck. cable covers or cable ramps can create tripping hazards and difficulties for wheelchair users so they are not permitted on sidewalks. instead, electrical cables should run overhead at least ten feet above sidewalk. these updates to the shared spaces program will help

to ensure safety and accessibility for everyone, so that we can all enjoy these public spaces. more information is available at sf.govt/shared spaces.

okay. good afternoon and welcome to the san francisco planning commission regular hearing for thursday, february 1st, 2024. when we reach the item, you are interested in speaking to. uh, we ask that you line up on the screen side of the room or to your right. each speaker will be allowed up to three minutes, and when you have 30s remaining, you will hear a chime indicating your time is almost up. when you're allotted time