>> to me what is relevant is the process is still available. >> if you approved a permit at this stage, he would be approving it without having it go through all the code requirements. the alternative would be to uphold the denial but immediately and now -- allow a new permit application, making clear the only reason for it to go to sections 311 notice. commissioner fung: we could do a finding that the notice process that has already occurred is the same as a 311 notice. >> a 311 notice goes through the are at the planning commission, correct? -- goes to eight d r -- goes trhough a -- goes through a dr

at the planning commission, correct? vice president garcia: if we overturn, we are not giving them a permit. we are giving them the right to apply a permit. >> you are giving them a permit. >> planning can go down and cpb will issue a permit. vice president garcia: there is still a process available. >> but not to the planning commission. >> if it triggers one right, but it is not a dr right. vice president garcia: would neighbors be noticed? >> i do not know what exactly the notice from ddi -- dbi would be at issuance for this type of permit. vice president garcia: i hate to ask the permit holder.

it is like asking tobacco companies its cigarettes are dangerous. do you know if there is any neighborhood opposition? i know your answer will be of course not. >> i do not know. we prepared the neighborhood map. we are prepared to do a 311. >> i think an option available to the board would be to uphold the denial but make findings is only on the basis that section 311 notice has not been done, and make clear the permit holder is authorized. the one-year bar does not apply. he can apply tomorrow for the permit. if we were to issue this permit now, it would not become compliant. commissioner hwang: it is not ok given that the idea is to clear it up and clean it up. let us do it right. >> if i apply for another permit, do i have to pay all the permit fees again? [laughter]

>> would planning have discretion to waive the fees in the unique circumstances of this case? i do not think the board has jurisdiction over planning zone fees. >> this is a department of building inspection permit. the planning department is a referred agent to be on that permit. while i imagine we would be creative and attempt to waive our portion of the fees, that is only one segment. commissioner fung: i think that is the only segment we are talking about, because he has not paid for his permit yet. there is the permit. yes. the permit costs are separate. >> that is within the planning department. vice president garcia: you do not have to get planning to check it twice, do you? i am aggregated enough. -- aggrivated enough.

>> i would defer to staff and the attorney whether or not this discretion exists in your body. i would be comfortable making a finding on behalf of the planning department that the notice bus issued in life and nature of the project is tantamount to a section 311 notice. vice president garcia: the notice that went out having to do with this case described the proposed project? >> vice president garcia, if i might interrupt, it is less an issue about notice and more about the process available as a result of that notice. it is the discretionary review process that would be obviated. that is a concern. commissioner hwang: i would agree. thank you for clarifying. >> this is hard, though. commissioner fung: the crux is

we need four boats here. -- votes here. vice president garcia: so we could help out the appellant by making a motion that stated that we are overturning the department. you look skeptical already. give me the content of a motion with a comfortable with. >> i think the motion would have to be to withhold the department, but only on the basis that the project needs 311 notice, but that the permit applicant would not be precluded by the one-year bar from replying, so that section 311 note this can occur. you technically are upholding the denial of the permit, but

making clear that the reason the department originally denied it was in deference to the board's 2006 decision. the circumstances have changed. there is a new owner. the tenants are gone. the basis of the 2006 does not exist anymore. the variance on the proper permit is expired. but the 311 notice is the of standing issue. vice president garcia: and that is not a du jour, de facto remanding? >> they do have to go apply. vice president garcia: but we are granting them the right. i will not get into that. it is not important. you got my motion, right? [laughter] >> there had been an earlier motion by commissioner fung. vice president garcia: i worried

it was my motion. i am glad to hear it. commissioner fung: i doubt it will pass but i will make it again anyway. i will move to overrule the zoning administrator on the basis that the variance and the original permit to maintain the two units have expired and arnelle and void. >> one suggestion. it is not the zoning the minister -- the zoning administrator's decision. commissioner hwang: before roll is called, i want to make sure i understand what is potentially going to happen if there is a three-one continued, and also if it is letter continued -- later continued the potential for not

passing would result in the one year bar, it's a truck. -- etc. i would be more inclined to go with the motion as articulated by our deputy city attorney. vice president garcia: i have to agree a think we serve the appellant better by doing that. he has had that individual living there for a while. i do not see where he is harmed by a little more time. there might be some greater expense, but i think having the greater expense is better than not having housing. >> commissioner fung, do you want us to call the roll on your motion?

commissioner fung: i think the will withdraw my motion. i will allow somebody else to make a second motion. commissioner peterson: i will make the motion that duplicates the comments of our city attorney. vice president garcia: will you repeat those? [laughter] >> to deny the appeal and upheld the department on the basis of the project need section 311 notice. the permit applicant is not barred due to changed circumstances, including there is a new owner and the variance is no longer valid. anything further or different? commissioner peterson: a and he is not barred from applying for this permit to obtain section 311 notification, to go through that process.

>> the motion is from commissioner peterson to uphold the denial of this permit on the basis the project requires section 311 notice in the planning code. the one-year bar does not apply. the appellant may reapply for this permit. commissioner peterson: provided section 311 notices obtained. -- notice is obtained. and there is nothing i can do about fees? are there nov penalties paid? >> that is different. >> what is the one-year thing you are talking about? vice president garcia: under normal circumstances if we uphold the department, you are

barred for one year for replying for the same project. we are waiting that ban on you. >> on that motion from commissioner peterson -- commissioner fung: aye. >> the president is absent. vice president garcia: aye. commissioner hwang: aye. >> the boat is -- vote is 4-0. >> will move on to our last item, item nine, brett poffenbarger versus the zoning administrator, appealing a letter of determination dated march 30, 2011, regarding whether a news their penthouse and roof deck may be constructed and the permit height of a

glass wind screen wall and skylights at the subject property. we'll start with the appellant or his agent. you have seven minutes. >> thank you. i would like to submit for the records and documentation from a reputation today. >> i'm sorry? vice president garcia: you have given this to the planning department? >> we continue talking to them. my name is steven stept, the architect for my clients, lesley and brett. this is a six story loft building converted in 1996. this is the building on at 650 2nd street. there is a dedicated space on the roof. the goal was simple for this project -- privacy, security,

safety, and the benefit of access which has been permitted to other neighbors. i will go to the first board, which is really a description of the history of permits on this project in the last 10 years or so. there is a variety of elements on the roof, shown in yellow in the first image -- stairs, mechanical equipment, skylights, penthouses', and if you? . the middle drawing showing all the permits that have been issued since 1995, in much similar nature of what we are asking for. 3 is similar to what we would like to do. it is an enclosure given access to the common area deck. there are a couple of items shown in blue the word? the were approved also since 1996. when we do not have a permit his report. the others have -- one we do not have a permit history for. the others have a permit

history. the one on the bottom right shows a stir in closure. in the second board is going to explain the roof deck element. when we were denied by the letter of determination, we looked to see what this means to us. what it is showing is that the requirement for us is we would have specific stair elevator access, which would require us to cross the roof to the deck, if we could even do a deck. this is an extremely unsafe condition, with a baby on the way and a toddler running around in a few years. there are parapets on this roof that are 30 inches high, at least a foot below what current code allows. it is extremely unsafe conditions. there are other elements that do not make sense. the windscreen was only allowed to be 2 feet high, which is shorter than the existing power cut. it was not making practical sense.

we wanted to look at section 260. there are different ways to do things sometimes. we wanted to see if there were different ways we could achieve this, whether we wanted to do it that way are not. we could do an elevator from the bedroom to the roof deck. there are elements in the code for an enclosed seating without restriction to height that allows windscreens to 10 feet. we could put windscreens on two sides, maybe even the third side. there is mechanical screening allowed up to 10 feet, which i think we realized recently some of these other units had taken advantage of in concept for some of the permits in the last 10 years. we think it is a possibility. the image on the right is trying to describe our goals for the project. the area shaded in red was a very minimal stair in closure, which was connected to the existing penthouse. there is minimal visibility

impact. landscape features, windscreens the etc -- windscreens, etc. the last slide talks about the exemption. there are a lot of exemptions allowed to the height limit. the works for us within the limit of 20%. there is only 14% coverage on the roof now. our stair inclosure would be minimal. it would not be close to 20%. skylights, stairs, and elevators can have certain height exemptions. others have no horizontal limits. when we read the code, section 260, we see that elevator stairs and penthouses are exempted. these features are defined where the height limit is 65 feet.

the first item on the bottom is showing you could have eight stair elevator windscreen to the heights shown. there is an interpretation we do not think is correct which told us we can only do a stair that is 2 feet high above the roof level, which we obviously cannot have access to, an elevator we could probably squeeze in at minimal height, and a wind screen that would only be 2 feet higher than the roof, which is more unsafe than the existing paraquat. we think the ruling of the code suggests that where the high limit is 65 feet -- we are in that district -- the we should be able to have exemptions to the height limit to add these elements and, as the diagram shows. the last diagram basically is saying there are existing penthouses' appear up to 84 feet. we want a stair connected to one of those. it would have minimal visual impact. one thing i think has been

created by the denial of the letter of determination. it is a hardship by denying that our clients the structures others have had the opportunity to enjoy. the product is not controversial. i think there are proponents here that will speak tonight. we would like to have a consideration. i think brett would say a few things. >> my name is brett poffenbarger. our goal is to make a green space. this is the backyard for our house, for our child to play in. i think it has a positive visual impact for the neighborhood. even buildings that can see it will see a park-like structure with greenery. we want to make it safe and accessible from our unit so that our child will be able to go up there and be safe from falling off the walls using windscreens. that is all i have to say. thanks.

>> thank you. mr. sider? >> thank you, commissioners. i am actually a little heartened by what the appellants have to say in this case. there was a presentation a few minutes ago about the letter itself and about the code and an interpretation of the code. previously, the argument had been one of my neighbors had it so why can't i. that, as you know, does not carry any weight in the planning code. i would like to briefly address the code issues that were raised with respect to the appellants, the issues and the diagnosis he

made of the code. he is correct. there are various controls that relate to permiting on the roof of a building. complexity increases when you are talking about a non complying building. this building rises to 73 feet in height and is in a 65 foot district. it is about 8 feet over the base hight limit in this district. while the code does allow certain things such as a scared -- as a scare penthouse, they are limited to the top 10 feet of height. if you have a building that rises to a height of 65 feet, you're penthouse can rise to 75 feet. when you're building rises to 73 feet, you are only able to work with 2 feet on the top of your building to fit in. i think the words he used for that is not practical.

he is right. it is not practical. but that is the nature of this building. it enjoys height which would not be permitted under the planning code today. i think it is worth noting, although not relevant, but sympathized with his desire to raise a family in the city. i think this particular property may impose some real problems with that. certainly, it is a live-were building. it may not afford the development potential -- a live- work building. it may not afford the development potential the appellant would like. we have not heard a solid argument as to how this could be built today. we have heard how other decks were built previously and other stair penthouses were constructed previously. in fairness, there is ambiguity in the permit record. certainly, some permits issued by the city are in question.

some actions taken by the various owners of the building over time to not seem to be evidenced by the permits. there is an ambiguity. the fact that something may exist and an adjacent property owner may enjoy it a particular amenity under the planning code is not reason to grant that same amenity, particularly in a case where it is clearly prohibited under the planning code. that is all i have to present to you. i am happy to answer your questions. commissioner hwang: how old is the building and how did it get to 73 feet high? >> i believe the appellant indicated it was built in 1920, before height limits existed in san francisco.

interestingly, the property report i have shows built in 1996. i suspect that relates to its conversion to condominiums and live-work. commissioner fung: was it previously in storage or industrial building? >> it was an industrial building. i think it was controlled by a lithography company. i am not sure. commissioner fung: the conversion was the first residential use? legal residential use? >> it was the first live-work usage, which is technically commercial use. vice president garcia: is there no way around this, no way you could get a variance on high? there are variances on lots of things. >> height is not variable.

i was intrigued to hear the notion of an elevator. those are subject to somewhat different controls with respect to extension's above height limits. but in terms of the proposal before us in the letter of determination, this is a black and white issue. there is no discretion or opportunity to seek a variance are conditional use. vice president garcia: let us ride with the elevator a dip for a second. if it turned out they were allowed to do that, they would have to put on an elevator to go where they want to go. what else would be allowed? the windscreens would not be allowed? the botanical screening would not be allowed? the rails could be no higher than how high? >> in general terms, what the code allows on top of the noncompliance structure is a deck surface when built to the minimum necessary under the building code, along with rails that are as open or as low as required under the building code.

with respect to a larger windscreen, under the planning code that is not permitted above the 10 foot height extension. vice president garcia: so they would have to do the minimum of what is required, a railing, for safety's sake for that child, which is 4 feet? commissioner fung: 42 inches. vice president garcia: which is not safe. >> i would not put my four girls up there, no. commissioner hwang: do you have the language of 460? i do not have the full text, or much text. >> is the 10 foot exemption you are curious about? commissioner hwang: yes, 260 b one.

>> shall i read it into the record? commissioner hwang: 20 over had first and see if i can read it. thanks. commissioner fung: is that standard issue at the planning department now? [laughter] >> i guess. we should revisit our budgeting. commissioner fung: maybe. >> is all eligible? -- is that all legible? commissioner hwang: i can read it. that is good. is it b1 cap b? >> the 10 foot reference appears

here at the bottom of b1. commissioner hwang: ok. >> i am sorry. i may be pointing to the wrong code section, commissioners.

commissioner peterson: what is this language. it says the exemption chambly limited to the top 10 feet of such features. the height limit is 65 feet or less and the top 16 feet of such

features were the high limit is more than 65 feet. -- we're at the height limit is more than 65 feet. >> in districts -- a 105 ft district -- the standard can put exemption is increased to 16 feet. -- the standard 10 ft exception is increased to 16 feet. commissioner hwang: right. can you put that back up? it says here where the height limit is 65 feet or less. that is this particular district. is that what you had said earlier? >> this is a 65-x district. commissioner hwang: thank you.