that i, too, previewed this hearing on the sfgtv. this is really just a jurisdiction request. what i have heard today, it does not persuade me to grant jurisdiction again. i have some sympathy for the requestor, but -- >> it is ticklish because it seems as though come in a sense, the privacy issue, though it did not come up in the jurisdiction request, the original reason for that request was a that3/11 had not been received -- was that 3/11 had not been received. the appellant, or the requestor, did not go through the process.

i'm inclined not to grant jurisdiction. i wish there was some way we could codify what seems to be an arrangement that would prevent someone from standing on that deck and looking toward the window. all that is left to us to do is to hope that we are dealing with someone who is honorable, and we have no reason to think he is anything but honorable, and will do just what he said here. as for jurisdiction request, i would be inclined, with the others who have already commented, to not grant jurisdiction. >> i don't have anything to add. commissioner hwang: the timing of the notice and the change of ownership makes for a sympathetic set of circumstances. for that reason, i would be inclined to grant the request for jurisdiction. but, i will probably be shot

down here. commissioner fung: i would make a last comment that there was a time period of about a month in which the appellant could have and did not. i think that is what is going to sway me. >> is their emotion, commissioners? commissioner fung: i move to not grant jurisdiction. >> on that motion to deny the jurisdiction request -- commissioner garcia: aye. commissioner peterson: aye. commissioner hwang: no. 4 >> -2 -- >> 4-2. >> 4-1. >> correct. my apologies. item five, appeal number 11-011,

dean preston, appellant, verses the department of building inspection. thises and 401 divisadero street. protesting the issuance on january 10, 2011, to john brennan, a permit to alter rebuilding, a chase bank, includes window and brick wainscoting modifications, revised floor heights, revised entry and structural -- -- revisions for door and atm openings. public hearing was held in closed on march 16, 2011, and the matter was continued to allow absent board member to participate in the vote. commissioners, at that hearing, a motion was made by vice president garcia to grant the appeal and condition the permit so would be revised to reflect the plans contained in addendum number two from january 27, 2011, provided this does not

cause the square footage to exceed 3999 square feet. the vote was 3-1-1 with hwang dissenting. >> i will jump in. i do wish mr. duffy were here. i have a question for him about the square footage better -- measurements. i did watch the video, the streaming video, and thesf gov tv version over the last several days. i applaud the commissioners and the members of the public who sat through it live and also applaud the council for the two sides. i thought the arguments were very interesting and well done. the chase argument, the list of uses in the district, and financial-services are listed in

that category, i understand that argument. appellant argued that the category of retail sales and services includes financial services and points to planning code 711, providing a zoning table that provides a list of what our "retail sales and services." that list include 711.49, which are financial services, and that specifically references 790.110, describing banking services. if the appellant is correct in their argument, it falls on 703.3, which calls out retail sales and services in the thenc2

district. i found that argument persuasive. let me back up and say this. where there are ambiguities in the code, we as a qualified- judicial body needs to look at the reasons for the regulation. as outlined, there were many reasons. many of them apply to this situation. there are offices outside of san francisco. the outfit has standardized architecture, color schemes, and signed. the notion that in allowing these corporate places, the mix of business would be skewed toward national retailers.

the competitive advantage would change. there were large -- there were many other reasons. the code does night -- does not prohibit this type of an outfit. it simply adds a layer of thes cu process on it. that process could consider many of the issues raised by speakers. i was impressed, as vice president garcia mentioned, by the quality of the speakers and their comments, and noted it seemed like the traffic lining up, the volume of traffic, the parking problem, the monolithic storefront, where there have been three, the fact there was a j -- chase bank nearby, and the cluster of other national

chains that cropped up around that chase bank, and for these reasons, i would grant the appeal and overturned the department. i don't know if we need to call the roll again. maybe we can hear the motion and call the roll. >> the motion that was on the floor was made by vice president garcia, to grant the appeal, and condition the permit so it is revised to reflect the plans contained in an addendum, number two, dated january 27, 2011, provided this does not cause these were footage to exceed 3999 square feet. president goh: i will hold off on a roll call. mr. duffy has returned. could you step up to the microphone? did you have a chance to go out and measure the square footage? >> we have not measured the square footage yet. president goh: thank you. >> i was not aware we had to do that.

we can easily do that if need be. president goh: i heard a request from the public and from a commissioner. ok. thank you. >> shall i call the roll? >> mr. sanchez would be able to weigh in on the square footage issue. he has spent a lot of time today on the plants. president goh: my question was of dbi had measured. >> i don't think there's anything to measure. >> did you have a question? >> measure what? >> measure this or footage. -- of the square footage. >> what would he measure? >> the square footage. i believe the question was asked by one of the commissioners to find out whether or not it exceeded the -- >> that is the plan.

commissioner hwang: there had been questions raised to whether the plans reflected actually the limit, the amounts presented in the permit, which was 50 square feet short of the 4000 square foot limit. when i requested that the interior be measured, it was, i thought it was going to happen. i did not know that dbi was going to be unable to do that measurement. it was not that clear to me that that was something dbi could not do. the answers were, yes, we can measure it. i need some clarification.

>> if our department was asked to measure, we would try our best to measure it. if construction has not started, that could be difficult. i would need something from planning as well. there is a planning code. the 4000 square feet, and where exactly the measurement would be taken from, if it is the exterior wall, in the middle of the wall, that would be something. building code requires it from the inside for exiting purposes, for occupant load, which is the only times square footage would come up. we would be measuring the square footage if it goes over 4000 square feet. it is a planning code, not for a conditional use. i would have to ask planning. i was thinking if we did have to

go out and measure the space, we're probably going to ask for planning's assistance and have some planning staff with us for that reason. >> ok. >> i am not sure what stage the construction as that. -- is at. >> as i understood, the testimony in comments at the last hearing, there was something to be measured. >> that is what i thought, too. >> that informed the request. >> i don't think dbi were instructed to go out and measure the space from the board. >> in terms of how it is measured, according to chase council during rebuttal, there was something, and i did not catch the term, maybe the beaumont measuring system, which was outside wall to outside wall?

to me, that is measurable. >> it seems to me as well. that would be the case, yes. >> the issue according to chase's council was one of the difficulties was the hallway and storage areas were not yet built. >> that is correct. yes. we may need help from the contractor to work out where those walls will be if they have not been built yet. we would have to take bets base of the overall measurement. -- take that off the overall measurement. it is unusual for our department to be asked to measure square footage. i have never had to go out and measure a commercial space. >> but you understand in this situation why that is important? >> of course. >> thank you. we could entertain another motion or we could go ahead and vote on vice-president garcia's

motion. >> commissioners? >> if there is no other motion, let's go ahead and vote. >> do i need to repeat the motion? >> i don't need it repeat it. >> on that motion -- >commissioner hwang: no. commissioner peterson: aye. >> 3-2. it needs four votes to pass. it will be upheld by operation of law. thank you, commissioners. we will move on to item number six. appeal number 10-126, richard ravibbitt, verses department

of public works bureau of st use mapping. golden gate avenue, protesting the issuance on october 29, 2010, to university of san francisco, minor sidewalk encroachment permit, a chain fence and retaining wall encroaching 6 feet onto the sidewalk right of way for a distance of 389 feet. the public hearing was held on january 19, 2011. it is for further consideration today. the matter was continued to allow time for the department of public works to submit additional information pursuant to the board's comments, with additional briefing allowed. we will start with the department of public works. each party will be given three minutes to address the board. >> members of the board, the

department submitted findings of a few investigations on to your 22, where we identify whether the baseball fans can be moved toward the property line. based on our review, for the areas adjacent to the retaining wall, it appears that fence can be relocated between 6 inches up to a foot and a half back toward the property line, which would not significantly increase any sidewalk area from the perspective you were asking. as it relates to the approximately 100-foot section toward the intersection of the side of the golden gate, the offense can be relocated to the property line. there are several trees located there. a lower fence could be installed at the point without disrupting

the root structure of the trees or damaging the trees. however, as my report stated, the slope, the unpaved area, slopes upward, away from the sidewalk, opt for the baseball field. -- and up toward the baseball field. you still would not be able to construct the additional sidewalk. it would then require pruning or something that could very well destroy the trees in this case. if the intent was to move it back and have an open area, yes, it could be done in this case. i am available to answer any questions. >> thank you. we will hear from the appellant, mr. rabbitt.

>> thank you, commissioners. i will try to address as much as i can in three minutes. briefly d,pw confirmed that 600 square feet can be returned to the public, no impact on the retaining wall. this drawing here, this area is what will be returned to public. i request that be given to the board. like to request background information on the history of the retaining wall. i think it is relevant. here is a satellite photograph from 2004. it is hard to see. basically, i believe this was the old retaining wall here. this is the fence.

there are trees located between the retaining wall and the fence. this is the drawing. the area in blue traps the area of the retaining wall. believe that is the location of the old fence before 2004. excuse me, the retaining wall. what i believed happened is that the retaining wall was moved further into the public right of way. the reason that is relevant is because one reason you cannot move the fenced back is that the retaining wall, it requires a major endeavor. it has been there for 20 years. it was suggested that was done much more recently, seven years ago, and usf, based on maps

showing the public right-of-way, they used the one that was there. i'm trying to cover a lot in a short time. just to show you what i am talking about here, these photographs, this is, again, pre-2004 retaining wall, the trees here. what happened after 2004 is that the trees were removed and a retaining wall was moved further, closer in to the public right-of-way. these are photographs that show -- this is after the retaining wall was moved. this looks different than what was in the satellite photographs. you can see that this area replaces where the trees were.

lastly, i am running out of time, but this is in 1958-1964 master plan. it shows that they knew where that was. happy to answer any questions. >> i would like you to put those photographs back up, the one that was before 2004 and after, where you're suggesting a retaining wall was moved and trees were removed. which is which? can you talk -- describe it more slowly, please. >> i am sorry. the trees are the green objects. to the south, below the trees, are what i believe is the old retaining wall. you can see here, this looks similar to this structure down

here, comparing it. this retaining wall was far enough away from the fence that it was out of the public right of way for a good portion of thefence and there was enough room for the trees to be located between the retaining wall and the offense. -- fence. i have a publication saying usf removed the trees and they built a new wall. you can see here that the wall came in closer to fence and continue here in the grain structure. it replaced the trees. usf compounded the problem by a building further into the public right of way. >> where did you get those photographs? >> in this is a u.s. geological survey photo.

u.s. geological survey. i had a map from being online -- >> the color photographs that you put up there. where did you get those? >> these were taken off line from the u.s. geological survey. >> ok. thank you. >> any others? thank you very much. commissioner fung: just to be clear for my sake, what relief are you seeking? >> sure. the relief, i believe would be appropriate, would be required used to remove the retaining wall out of the public right of way and have it be aligned with the current inner fence they have. if they want to move the outer one, they can do that as well,

or the inner one could be sufficient for their purposes. the reason why i am asking for that is i believe usf has not been forthcoming in their testimony to the board. but the board determines that, for whatever reason, you are not worried about what happened in the past, and you feel that moving the retaining wall is too extreme a remedy, if you determine that, at the least, you can -- the report says that a 600-square-foot portion can be returned to public with no cost, or minimal cost, and no impact on safety on trees or anything else. for a fallback, if you don't feel the retaining wall should be removed, that area should be returned. >> if we were to agree with the 600 square feet, is that what it was? what was the figure? >> 600 square feet is the portion. >> right. that currently has a fence with

vegetation growing on it? >> that portion of the fence, there is no vegetation on that portion. three trees are located right next to it. >> you're not proposing having trees brought down. you're proposing that it become an open space because dpw testified it cannot become sod wall. it would be open space. >> it is for the board to make the determination, but i understand that the board wanted to preserve those three trees, then yes, i think you could move it back 6 feet. you would open up the public space. you would not extend the sidewalk. >> ok. thank you.

>> mr. o'brien? >> good evening, commissioners. kerry o'brien for the university of san francisco. first of all, i want to get on the record. we agree with the department of public works' report. we think it accurately describes the situation out there today. we do not believe that the sidewalk can be meaningfully widened. not without removal of those trees or vegetation. just to briefly refresh your memory on the overall encroachment, it runs along golden gate ave.

it is 6 feet in depth from the fence at the edge of the sidewalk in towards the proper line. there is a little more detail on that eastern end of that. the retaining wall goes into the ground here. there is -- this is actually a couple little bit from the sidewalk. these are the trunks of the trees in the center line of that area. it is also correct that that part of the fence is not landscape. this is the view from across the street of those three trees that are in that area. this is along the sidewalk,

looking at the trees of the eastern end here. on the inside, this is the retaining wall. i do want to apologize for a misstatement that i made to the board last week. or, at the prior hearing. it -- the fence that defines the encroachment has not changed since 1991. that was the focus of our argument and our briefing on public presentation. commissioner fung asked me about the age of some of the things. i did say there has been a retaining wall of one sort or another in that area for quite some time. the retaining wall shown in these pictures, i believe, was also built in 1991, at the same time a fence was built.

that was incorrect. the fence was built in 1991 and has not been moved since 1991. the retaining wall was built in 2004. the wood retaining wall had been there previously. a concrete retaining wall was built as much as two feet further into the right of way. the usf director of facilities in the prior director of facilities are here if you have any additional questions about that. >> was the retaining wall done with a permit? >> excuse me? >> and did it change the movement of the retaining wall into the right of way, was that done with a permit? >> we have not been able to locate the permit. we just refreshed on all of this when we received the brief about a week ago. i don't