relief that i don't know how"î'o do that. sit tight. president peterson: mr. fleming? >> i would like to clear up a couple of issues mr. sanchez brought up. the height of the fence was measured not on the base of the deck but from the grade level. i will show you on the overhead. i am raising my arm. the tape measure goes all the way down to grade. this is a close-up. there is the top of the measurement. as far as the -- president peterson: what does that mean? >> there is a shadow there. there are 8 inches down there. it goes up. as far as the permit is concerned, we are learning as we go. when we hired an architect to do the drawings and while the

permit for us, it was our fall for not looking at the permit more clearly and really describing what was actually going on. that was our fault for not following up with our architect. commissioner garcia: let me ask you -- i am not going to require this, but it seems so far that your neighbor is willing to bear some expense to get some of her sunlight back. and if you were to take -- let us decide that latticework is 3 feet. i have no idea what height that led to start is. if she were to pay to have 3 feet of fence removed and lettuce put there, that would allow sunlight, and how would that affect your privacy? do you feel that would affect your privacy? >> my wife and i talked it over. we feel we just wanted more of

an inclosed feel to our backyard. i think it is just a matter of preference. commissioner garcia: it is so low it seems there would be no vantage point for somebody standing on ms. fleming's property, looking up. >> she does have a bench on the side of the fence that she can stand up on and look into our backyard, which she has done in the past. it bothers us a little bit. but we feel we just like the look of the -- the solid look on our side. president peterson: thank you. anything further from the department? commissioner garcia: mr. sanchez, what effect does this have on anything, the fact that unless i am confused the permit states that a fence is being replaced when there was no fence

there before the was replaced, that this is a brand new fence? >> if the plans in the permit are incorrect, it is up to the department of building inspection to determine what would need to be done to remedy that. in terms of the privacy issue, there is a substantial briard -- mid blocked open space in the subject walk. -- midblock open space in the subject's walk. put that on the overhead. given how the properties curve out, i think a 3 ft. trellis at the top would provide adequate privacy, in my opinion. additionally, the neighbor's property is substantially lower than the permit holder's property. commissioner fung: that is the

subject area? >> that is correct. it has been updated. it shows the deck. commissioner garcia: what is the -- knowing now that the permit is inaccurate, what is the effect of that? what would be done about that? >> i will defer to department of building inspection. for us, it is still compliant with planning code. it is really an issue about consistency with the building permit, best left to the department of building inspection. commissioner garcia: thank you. >> laurence kornfield with the department of building inspection. i do not think we would find this to be a fatal flaw in the permit process, replace instead of install a new fence, but it appears not to be correct. i think that might broaden the

scope of how you might choose to address this, but i do not think we would issue a notice of violation and say "get a new permit." the fact is they are here and you're hearing the issue. this is probably the time for discussion. president peterson: is there any value from you going to measure? we are hearing from ms. fleming it is approximately 10 feet. we're hearing from the other side it is approximately eight. have you measured the fence? >> i cannot tell you if we actually measured. somebody looks at it to make sure it is a parts of it. if you wish us to, we certainly can come out. president peterson: thank you. commissioner garcia: ms. fleming, can i ask you a question? when mr. sanchez put up the graph, i did not happen to notice what was no. and what was south. what is the attitude of your backyard? your backyard faces which way? >> oh boy.

it is a northwest, the backyard. commissioner garcia: so the sun comes up northwest over their property or away from their property? >> away from their property. commissioner garcia: away from their property and northwest, so south is to the front of your house. >> that is right. and as i said, that one photo, that has the shade on my roses. commissioner fung: it affects the afternoon sun coming out. >> if i may add something, scott sanchez, planning department's staff. i would like to put on the overhead a parcel map that has the no. aero. the shaded property is the

permit holder's property. the appellant is on the adjacent block. that is why they do not show on this. but it is directly to the south. i think it would probably be more the afternoon sun that would be impacted, especially more so in the wintertime when the sun is lower in the sky. commissioner garcia: the time when you would most like to be in your backyard. >> commissioners, the matter is submitted. commissioner fung: a couple of things i would note first, before i for a direction of would like to propose. the deck is a fairly substantial back across the year -- across

the rear of the property. the access to that that occurs through sliding doors -- the access to that deck occurs through a sliding doors in the larger dimension of the deck. the area we are talking about is actually the side of the house. i can understand the desire for greater privacy where they have windows there, but that fence runs all the way across the deck and goes across beyond the point of the edge of the building, the rear wall, and the windows that are there. privacy, as we know, is a very nebulous thing in san francisco, and we hear many different types of definitions of what is desirable privacy.

if i had to guess, i would say that the bulk of the deck that they will utilize the most is that which is directly adjacent to the doors and access point. that is where i would put my furniture. that portion that is against the property line is something that does prevent somebody from mrs. fleming's yard looking upward and potentially catching a glimpse of what was standing there. but it is also interesting, because if you look at one of the photos there are a lot of homes that are 200 feet or 300 feet up above them that can see everything on the deck. admittedly, it is quite a ways away. where i am leading with this is a think the permit holder needs to provide some level of accommodation, and that is that

portion of the fence -- at least the portion of that fence needs to be reduced. the minimum that could be reduced is two guardrail heights, 42 inches. that means that that reduction probably is in the neighborhood of about 2.5 feet, i am guessing. either it is done that way or it is done at the trellis, where there is some transparency through it. not a trellis. it would be a lattice, where there would be some level of transparency through it. it is interesting, because if that fence was only a guard rail, it could be a ticket type fence, and therefore they get the protection from the guard rail and there is significant

light through. i am not sure that is what their desire is, but i think it would be my intent to reduce some portion of that fence that would probably stretch from the rear of the deck some appropriate to mention. commissioner garcia: and we would do this -- defense is upright, it is code compliant, and we would do this based on good neighbor policies? commissioner fung: yes. and if we were talking about reducing the height of the deck , i do not see that as a substantial cost. i know people get into what they want.

i am not sure that they will see that great of a privacy impact with some reduction of that fence. commissioner garcia: and who would bear the expense of reducing the size of the fence? commissioner fung: let us hear from the other commissioners. vice president goh: i would agree with commissioner fung's suggestion. in terms of who would pay for it, i know we had discussed -- you had mentioned something about perhaps the appellant, but we are here with an 8 foot 11 inches fence where the plans call for a five-foot high replacement fence. i know mr. kornfield said we might as well take care of it here, which we can do, and it is

probably not in keeping with their permit that they built that. commissioner fung: i disagree with that. i think mr. sanchez was stretching a little. i would read that as replacement with new and there is no guarantee what that new has to be. president peterson: 1 thought i have is if we reduce the height of the fence, that will be borne by the permit holder if there were a compromise in the leftist formed by both parties. vice president goh: that sounds right for me. commissioner fung: you want them to comport with something that neither would fully like but they are willing to accept rather than us forcing it? vice president goh: that sounds right. president peterson: certainly. commissioner garcia: you have to come up here to speak.

>> my initial thought on your comments is that at least i feel that you are starting to dictate how we can use that backyard of hours, and i am feeling a little uncomfortable with that. it is our home. it is our first home. i understand where you are coming from. i guess we do not know how we are going to use that backyard yet. to say that we would put most of our furniture on one side as opposed to the other side, i am a little uncomfortable with that. in addition -- commissioner fung: actually, i am too. >> [laughter] i do understand where you come from. the access to the deck is from a sun room that has windows all around it. it is not bordering our house. it is bordering a sun room that has windows all around. downstairs, there is also a

window where the stairs go. commissioner fung: i guess we are looking at a little bit of equity -- equitable situation for both parties. i mean, i have an idea of what i would suggest, but i would rather the two of you come up with something you can both accept. >> i think that is why we are here today. we like the fence this way and ms. fleming once the fence another way. we cannot seem to find a compromise. that is why we are here. president peterson: i think we discussed one, if you would prefer just a shorter fence, or if you think a taller fence with a lattice would be more preferable. we will ask the appellant to bear those costs. >> as far as a shorter fence, i think it becomes more of a

safety issue on our side. president peterson: commissioner fung has addressed that. it is a minimum guardrail height and you would be where you would need to be for safety if it came down to a certain amount. >> i feel that we would -- president peterson: later, we would have the inspectors come by and check that it is at 8 ft. 11. it is stretching credibility. it looks greater than 9 feet, your fence. we could continue and have them investigate and follow up on some of the problems you have had with the permit. there is that choice, too. >> we would be open to having them come out and do it from that measure. i think from ms. flemming's yard, it does look higher. there is a victim grade in the yard. as to shortening the fence, the fence on the deck level is a little over 5 feet there.

if someone were to fall onto her side, it would not be a 5 foot fault. it would be a higher fall. commissioner garcia: that is why you might like the solution of having it be the same sized fence but having part of it be like this work. what this board is leaning to, i am not sure, seems to be that because you are both neighbors, and you have in every regard a lovely neighbor -- you are very fortunate -- to go out and speak with your neighbor with the understanding that the desire of this board now is you are very unlikely to walk out of here with it if we were to vote. i think what we are doing is offering you the option, or asking you to accept the option of discussing with your neighbor some solution other than what is there now and also to delve into who is going to pay for what it will ultimately be.

and i think unless ms. fleming has something to say, i think we are ready to offer a motion and vote. so thank you. commissioner fung: motion to continue. commissioner garcia: that would be my preference. commissioner fung: how much time would you -- both parties would like to take and discuss this issue? two weeks? vice president goh: commissioners, i heard or i thought i heard -- commissioner fung: pardon me? vice president goh: i thought i heard the permit holders say he was not interested or thought it was futile to discuss it with his neighbor. i would be disinclined to vote

for a continuance unless we heard from him he intended to discuss that with his neighbor. commissioner fung: that is not the first time we have heard it at this board. commissioner garcia: i do not think we have the authority to require the appellant to pay something. i hope that when they go out, they will have some discussion, realize the board is reluctant to have the offense day as it is, knowing that ms. fleming offered to pay for an alteration. for you all to discuss that, you have two weeks to do that, and what this board would like is if you would come back and present to us a compromise that was reached and we were not required to have any more deliberation or get overly involved over neighbor issues. commissioner fung: if there is no compromise accepted, we will have to deal with it. vice president goh: two weeks is

november 3, and we have something like 12 cases. november 17 we have 10, and i think a couple of those are big ones, right? i mean, we can put it to two weeks, but we are continuing a case to a very late night and we could also just take a vote and see where we land. commissioner garcia: why don't we give you the holidays to mull it over? president peterson: while ms. fleming is living with the shadow of lawn? commissioner garcia: we are going into the wintertime. we are trying to help you out. we have upset the permit holder and i think the permit holder is asking the commission -- president peterson: i want to make a recommendation. i am inclined to adjust the fence with latticework and have the permit holder pay for it. every time you come up, that is where i am more inclined to go.

you are welcome to come up if you have something to address. vice president goh: i agree with the president. >> commissioners, i might add that if the parties to reach an agreement prior to the date to which you can continue this matter, they are free to include in that agreement that the matter be withdrawn. commissioner garcia: sorry to go so far out, but i would recommend that we go further out, the we go beyond the holidays and hope that in that time both sides, or at least the permit holder, has calmed down and realized this is her neighbor. she is going to be a neighbor hopefully for a long time. that fence is a considerable intrusion on her enjoyment of for yard. is that all right, commissioner fung, for your motion to go all the way to january? commissioner fung: i was

thinking we could move it to december 8. our caseload is not that great. commissioner garcia: i would certainly go for that. commissioner fung: i will move that we continue this to december 8 with the understanding that some discussion occurs. if a compromise cannot be reached, then this board will deal with this. >> to be clear, there will be no additional briefing or additional testimony other than a response on how the settlement negotiations have proceeded. commissioner fung: that is correct. president peterson: if you could call the roll on that. >> the motion is from commissioner fung to continue this matter to december 8. the hearing is held and closed to allow time for the parties to

conduct settlement discussions. no additional briefing. unless they have a planned compromise. on that motion, vice president goh? vice president goh: aye. commissioner garcia: aye. president peterson: aye. >> commissioner hwang is absent. >> there is no additional material before the board this evening. president peterson: then we are adjourned. thank you very much.