stay within the envelope of the existing buildings. when we went to the planning department, we were told given the rear yards and the adjacentt the section 188 interpretation would require permission of the five contiguous property owners or 10-day notice, per the zoning administrator interpretation for the deck that complied on the not complying portion. this is a three story not complying portion. we went through the proper procedure. in the packet received, this was the cover page. the second page is the letter that was sent to each of the homeowners, with the set of

plans dated july 22, 2009. finally, the last set of drawings and that pat and i gave you all of the packets we submitted for the permit on october 22, 2009. we went through the process, planning went through the process. application and the meetings of the plan review. we have been corresponding. our contractor has to work out scaffolding arrangements for the side yard. she was in hong kong, but we corresponded by e-mail and worked out an agreement where we gave them certificates of insurance, add them as additional insured so they would not have any responsibilities for people injured on their property. susan came back at one point and i addressed them in an email back to her and she was pleased with that result.

on 5/26/09, she came back from hong kong and the tenants were not happy with the project -- with the progress of the worked. there was debris and the side yard. we suggested a dumpster. she was happy with that. we replied to one another by e- mail, we had a fine relationship. it on 7/22/09, we brought the drawings to her and the other neighbors. the other four neighbors had no complaints. susan said no in an e-mail to us, no uncertain terms, no decks. how do you negotiate with no decks? we could have negotiated, but when you follow -- when you follow the zoning administrator is interpretation, and they're very good because they go to the heart of the case they are deciding on and apply the cases and the future, they said the

deck is permitted on the use provided the open railing is no higher and no more closed than required by the building codes. the appellant wanted us to put frosted glass on the deck. if we did that, we would be in violation of the interpretation of the planning code, and it would require would get a variance. i think that is what mr. adkins and won it, was for us to concede to something that would trigger notice for variance. the other portion of the interpretation that apply to us says that decking may be placed on the flat roof of the nine complying structure, provided it is placed flat against the roof and below any parapet, providing it does not exceed the minimum height by the building code. the addition of a penthouse would be permitted obstruction, only if the debt would require

variants. on the topmost, we had to do without the stair penthouse. we carved out a portion of the third floor so it could be a stair that would not require arrested go through the various process. we worked through the process. everything was noticed correctly. >> thank you very much. >> thank you. president peterson: mr. sanchez? >> thank you, scott sanchez, planning department. it just a few points. at first, in regards to notification. out of the planning code referred to, the 311 requirements. the replies to bridge it applies to buildings. a strict reading would mean that you did not even need that foredecks. however, there is interpretation of section 311 that requires

notification for certain tax. a deck that has a fire wall higher than 10 feet, the debt itself higher than 10 feet, there are certain times when a neighborhood notice is required for a deck under this interpretation. that is first, the notification. at second, the variance issue regarding the installation of the deck on the noncompliant portion, this interpretation from 1986 has been in effect almost 25 years. numerous ducks have been approved over the years with this process. -- numerous ducks have been approved over the years with this process. we have the 10-day process, or you have the acknowledgement of all the surrounding neighbors, then it can go ahead. the 10-day notice was provided in the case. that is what meets the interpretation. i think that in terms of process notification, also, the

variance, it is clear from the interpretation, if the decking is flat on the structure, the railing is minimum height as set by the permit holder, the variance is not required. it is a minor alteration. this is how we have handled these for almost 25 years. this has been a longstanding process. i think really what the issue has come down to our privacy, and the privacy concerns have adequately been addressed by the permit holders proposal. can i have the overhead, please? the debt itself is set back substantially from their shared property line, and the appellants property is set back from the shared property line, so there is a large gap between the properties. additionally, the properties are slightly larger than normal. that provides greater distance between the two. in reviewing this, the

department felt in terms of privacy and residential design guidelines, those were adequately addressed. had verification, we had the variance which is not required for the deck, and we had a project which complies with the residential design guidelines and adequately addresses privacy. we leave it up to the board to decide whether further modification needs to be made to address the concerns of the appellants, but the department believes this is appropriate, and i am available for questions. commissioner hwang: what about the request of frosted glass? >> it is an interpretation. there is some flexibility there. it is not specifically say you cannot have solid. anything solid, that would be prohibited. i think the concern here would be not only in terms of a a

potential variants issue but also notification to other neighbors and what this modification would mean if the board were to try to find a compromise. i think the concern we would have would be notice to other surrounding properties and a change in condition from an open railing to something that is not open. >> it is in our discretion? we cannot do that? we would have to go through notice? >> this board has broad discretion. the decision of this board would be final. there was a neighborhood notification provided as part of the product, similar to the section 311 notice. i don't know if anyone has expressed concerns about the project. president peterson: thank you. commissioner fung: mr. sanchez, a couple of procedural questions. does continual use applied to

the lower deck, on a nonconforming structure? >> we don't even see the continuance or abandonment of the deck as any issue. if there was ever a back there, they would be allowed to install a deck there. commissioner fung: was the historical resource survey done? >> i would have to defer to the permit holder on that. he is nodding "yes." commissioner fung: you have a copy of that? >> no, we don't. president peterson: mr. butler, you have an opportunity to speak in rebuttal. not right now. we will move into public comment. is there any member of the public would like to speak on this item? ok, seeing none, back to a

bottle. you have three minutes. -- back to rebuttal. you have three minutes. >> my client has proposed a menu of various alternatives, some of which possibly would require variances, which i think given the fact this deck essentially would not be visible to anyone else would probably sail through. that is an attempt to reach a compromise. furthermore, mr. sanchez made it clear that frosted glass was something they could permit, if the permit holder was willing to consider that. the issue here we think is a lack of variants, the ability to approve this without variance is a mistaken interpretation because section 188 clearly says you cannot do anything that would decrease the discrepancy, and we believe this will decrease the discrepancy in the rear yard. the buildings in the rear yard

may be separated 13, 15 feet back from the fence. the major part of my client's concern is the view in to their rear yard, which is right at the fence, and it would be about 813-foot distance from somebody standing at the age of the lower deck and it would be looking over the fence at a fairly high and also that most if not all of the rear yard would be exposed. in terms of compromises, we have proposed the elimination of the lower deck, an exchange for keeping the upper deck that was rejected. then when they said they wanted both decks, which said can't we do something to increase the visual distance between the lower deck and the rear yard. we suggested higher or frosted deck railings. mr. sanchez said that might be

possible. we also suggested the use of plants or arbors on the edge of the debt or along the fence line. we also suggested the parties get together and agree to have a higher fence along the property line. the fence along the property line is somewhat old and i will not say decrepit, but it is probably at the age where could be replaced. and defense above 10 feet would require a variance. this would only concern the two property owners. i find it hard to believe the variants would not be approved if the property owners could agree, and that would provide a visual separation my clients are asking for. i would suggest the board either continue this so that the parties could address some of these issues, or i would suggest if the board is not comfortable with overturning the permit that we perhaps at conditions in terms of a higher fence,

allowing a higher fence along the property line. president peterson: thank you. mr. butler? >> is not often that i am here with the permit. i am here usually arguing against the permit. mr. atkinson is usually on the other side. i think in this case, i have an idea that would solve the problem. even if you will grant and uphold our permit to put either and open metal rail or a glass rail that is clear, which are permit allows us to do, if you will uphold that permit, i will put translucent glass in the elevations of the debt that face

the appellants property so that all the west side glass would be glazed with translucent glass. you cannot see through it, but light goes through it. if no one appeals the use of that translucent glass, we are done. if someone appeals it, we will come back to you and you can ask me to notice the translucent glass. but if we walk out of here tonight without the ability to move forward on the web -- on a permit that has been a year in the making, through no fault of our own, i think we already severe disadvantage. after we have gone through a process that was carefully researched, that was carefully reviewed by the department, that was carefully planned-checked, and checked in the field by dbi, the permit that we have here, this being the last one,

will end this now to your process and will bring closure to this project. -- two-year process and will bring closure to this project. we would love to put translucent glass on the west wall. love to do that. we don't want to move them away from the property line at any further than they already are, 11 feet and 13 feet respectively. they are framed so there is no penetration in the roof and will not weaken the future. i hate leaking roofs. my clients take them even more. we would be inclined to put translucent glass there, but a couple are permit and let us finish our job. thank you very much for your time and consideration. commissioner garcia: would you address defense request? >> under a separate permit? i don't know what my client thinks of a taller fence, but i am also sitting back there, the architect, always thinking and

drawing, this is the appellant's property, this is our property. this is the fence that is about eight, 10 feet. if they built the trellis, when we are on our third floor back, we would look down on the trellis, but we would not see anybody on the trellis -- we would not see any body underneath the trellis. there's a lot of things the property owner can do, the appellate can do to enhance their privacy. i showed in my brief what they had. when when they walk up that stair, and stand on a landing 6 feet from my clients bathtub. that is a privacy issue. being 30 feet away from somebody out doors, that is not a privacy issue. if it is, you belong in the country, not in the city, not an urban place.

if they want to put a fence there, my clients will work with them. we probably would not oppose a high fence. she does not look like she is in an opposing mood tonight. president peterson: thank you. mr. sanchez? >> thank you. briefly, in regards to the proposal from the permit holder on the west side only, only facing the appellant property, we think that is something that would be best achieved by the board at amending the permit and adding that as a condition. i think this is something that really calls for the authority of the board to make a decision on. commissioner garcia: that does not represent an intensification of legally noncompliance structure? if the >> is board finds it does not predict -- >> if this board

finds it does not. commissioner garcia: okay, thank you. mr. sanchez, if this board were to decide instead that esthetically plants might be better, how would something like that it and forced overtime? >> that is extremely difficult for the department to enforce any type of vegetative requirement. it is difficult to require anybody to water and fertilizer and what type of species of plants should be planted. that is something that is more of a goodwill gesture between the parties. commissioner garcia: thank you. >> commissioners, the matter is submitted. >> do we hear from the pilot of that is an offer that would be willing to accept? -- from the appellate? >> i apologize, my clients are

not here and i cannot consult with them. that is kind of a limitation for me. if the translucent glass would help, i would say it definitely would help, the other problem is the fact the railings are fairly short, so anybody standing or sitting close to them would probably be looking over the rails anyway, which is why we are looking for something a little bit higher. if the board in its wisdom feels that is the most they can give us, that i think it would help somewhat. thank you. commissioner garcia: you might suggest to your client, the trellis idea sounds like a good idea. at least to me. i don't know if the architect would agree or your clients would agree. but it seems as though that would afford them a great deal of privacy. >> thank you. commissioner fung: commissioners, let me say a

couple of things. i sort of sense where this is going to go, and i will probably be in the minority here. i am fully supportive of the second-floor deck. i think one could have made an argument, to a certain extent. i am not supportive of the third floor deck. it is an issue that i think creates problems, especially if it is not complying. we have had issues in the past, related to the usage of those.

i think that has given something to the property owners that is not deserved. commissioner garcia: i am not correcting you, i am asking for clarification. my understanding is the third floor deck is supposed to be built on what is now a legally nonconforming structure, but in order for them to build a deck, there is no variantce, that it would represent, because of the variants notice process that we're going through, it would represent intensification. commissioner fung: i think i know the legal language as well as you do. commissioner garcia: no, no, no -- commissioner fung: but i have also gone against variances and allowed them. commissioner garcia: i am not suggesting you are ill informed.

commissioner hwang: commissioner fung, tell me why you are opposed to that deck? commissioner fung: it is interesting, some of the comments that were made today about urban living. you hear many different stories, and you hear many different sides, depending on which side of the case you are on. my issue is in certain urban settings, one wants to allow some ability to adjust to the fact that we have zero property lines and we have a certain density and we have certain less hurt rear yard setback than other areas. -- lesser rear yard setbacks than other areas. rooftop decks are notorious for being nuisances.

not all instances, not all neighborhoods, but they have the potential. i just try to reduce that potential. >> i am trying to understand the palin's point of view. was not the top deck that was the issue? commissioner fung: it is the reverse. they accepted a higher deck, they did not want a lower. >> with all due respect, it is almost a policy statement you are making on the top deck. commissioner fung: yes, i just wanted to be a little bit consistent. i>> i appreciate your opinion as always, commissioner fung.

i would like to proceed with the motion of amending the permit to including the translucent glass . i don't know if there are further comments. commissioner garcia: my comment would be, and this is not to be argumentative with commissioner fung, any noise that is created would be created by the second floor deck, so have the third floor deck does not increase the level of potential noise. the privacy thing is always a problem for me and that -- it was an interesting point that mr. atkinson made having to do with the fact -- you don't necessarily adhere to it, but if you stand in the window and & on somebody's , that is not as intrusive as if you are sitting on a backed -- if you're sitting on a deck.

i don't really see that. in an urban setting, i don't think anybody has the right to expect privacy. i don't see the privacy issue. i could see why it would be very desirable to have a deck that would afford a view that i think this will afford. i don't it will affect the privacy and i don't think it is intensification of any potential noise, so i would agree with the point made by president peterson that i would like to refer in this and focus now on the translucent glass and hammer that out. commissioner fung: thing your motion should be to uphold with conditions. president peterson: then that is the motion, please. can you specify that the translucent glass would only apply to the west side, third floor deck? do we need any specificity as to

what type of glass? >> scott sanchez, planning department. probably the lightest class possible, not dark blazing. president peterson: mr. butler, do you understand? commissioner garcia: do we need to sayu81s minimum height? president peterson: is that what the current plans reflect? the only change to the plans would be the glass on the west side, the first floor deck? and i would based on the finding that the variance is not required? commissioner fung: the interpretation. president peterson: the design

administrators interpretation. when you are ready to call that. >> to clarify, i believe the motion is from the president to uphold the permit on condition that the western wall of the first floor deck be made of translucent glass? president peterson: of the lightest grade. >> the lightest grade of translucent glass. commissioner fung: the lightest density. commissioner garcia: before you take the vote, if i may, and this is in no way prejudicial, there was a poem referred to called "the bridge builder." it is a pretty good read. i would recommend it to anybody

who is interested in what we do here. >> i agree. >> ok. again, the motion is from president peterson to uphold the permit, on condition that the western wall of the first floor deck be made of the latest density translucent glass, and with the adoption of the zoning administrator interpretation of planning code section 188. on that motion -- [roll call vote] thank you. the vote is 3-1. absent another motion, absent for votes, this permit is upheld as is. president peterson: no condition. >> no commission. commissioner garcia: do you want to change the vote to get the

condition in, on behalf of the public? -- on behalf of the appellate? v>