whatever reason planning is trying to say there are a bunch of problems with the history of this. since there was a garage, do not worry about all the errors. we need to move forward to say there was a garage there in 1980. we need to require this unsafe condition to proceed. i would to lead to invite the fire captain to talk about the existing conditions. >> good evening, commissioners. i worked in conjunction with the building department. i would like to explain the fire department's position for new construction as it relates to single-family dwellings. the fire department does not have jurisdiction when a single- family dwelling is presented for review as far as construction. our department's jurisdiction

picks up after the building is built. the fire department is concerned with access to the building, ok, and is concerned with specific requirements in the building department as far as you cannot accept a garage. i am not here to speak on the complicated issue as far as how this got here. i went to the fire department and presented the position to the lieutenant and he reviewed the condition. it is the fire department's position that there is a problem. there is a problem with the access to the structure if the condition is left to remain and a car was parked there. you can see some of this picture, that is the access point. a current car will provide absolutely no access for the fire department to enter the building. for the occupancy to egress -- the occupants to egress.

it was presented to the fire department as a complaint. it would issue a notion -- a notice of violation and starred the abatement process. that is all i have to say. >> i would like to introduce the occupant of this building. that photograph was taken by the developer. [inaudible] you cannot even get around this car. >> we on the property at 69 montezuma's street. we bought our house in 1988 and have lived there continuously since that time. for over 20 years, no one has parked in the entryway. my statement is going to be brief because the legal and historical arguments will be presented.

what i want to stress is the members of this board, by upholding my neighbor's right to park in this entryway to my home, the city is taking the position that pleases me, my wife, my family and friends and possibly the department -- the fire department in danger. the space in question may be illegal in many ways, but most importantly, it in its dimensions. i feel certain there is no other homeowner in san francisco that has been forced by the city to provide parking for a neighbor that jeopardize their safety. i feel it should be incumbent upon all city agencies to place the safety and well-being of the citizens above all else.

thank you for your time. vice president fung: were you aware that needed to have a permit to close of that space? >> yes. nope. at the time i did it, i did not know that. when i was given notice, we paid the penalty. >> mr. sanchez? >> thank you. good evening. thankfully, this is a fairly unique case. the appellant has listed a variety of arguments. i would like to go back to the beginning and reiterate the facts. the subject property is located

in a single-family zoning district. the adjacent property is a duplex. it was constructed pre-1900. the adjacent property was vacant save for a garage. it does show an auto brides -- garage. garage -- that is what we are relying on we are making our determination. at the time, the properties were under one ownership. from 1971, they were under single ownership. it appears that in 1982, there was a parking easement.

that parking for the units, one parking spaces was provided on the property of 69 montezuma. when the permit was submitted in 1984, the plans referenced this easement. it makes reference, it also has a curved cuts. -- curb cut. that was reviewed by the department of building inspection. the permit was subsequently issued. there was discussion in the late 1980's with the then zoning administrator about changing the easement. he said a variance would be required. it was very clear there were two parking spaces at 69 montezuma, one for the property at 69 montezuma and one for the adjacent property. this is the evidence that was presented to our department.

we were brought into this because of the fact that the second garage space was closed off. the easement was denied to access that parking space. there is no variants on record to remove the parking that has been provided. this was an enforcement issue. there was a directors hearing on it. our department became involved. i reviewed all the facts. i denied the permit that is at issue here based upon the facts that i had. the parking that was being removed was code required parking and it could not be removed. the variants today has been saw. -- variance today has been s

ought. the removal of the parking goes back several years. there had been several discussions with the parties. we're hoping -- we were hoping the matter would be resolved outside the board of appeals. but we are here today and based upon the evidence, i have to determine that there is required parking for the adjacent property that is being provided on the subject property. that can only be removed with a variance. that is why the denial of the permit is appropriate. there were some questions about gaming the system. i am not sure how that argument works. i am not sure how that

manipulation place through. i do not know how it is relevant. vice president fung: was there any board of appeals decision -- >> not that we could find. >> if your position is to deny the permit, but the work has already been done, what happens? >> we denied knowing they would have the right to appeal to this board. this board has the authority to make what they feel is the appropriate decision. at the board upholds the denial of the permit, they will need to restore the parking or seek a variance. those would be the two options going forward.

>> all retroactive. all the work has been done. >> to legalize the condition. >> on top of an easement. >> the easement is a separate issue. the reference to the city being a party, that is a private matter. what that easement does is guarantees the code required parking is required. >> in terms of a variants, that would be an option. planning could not grant of variance to allow for the work here that was done after the fact? >> the easement is a private matter, so the parties would need to resolve that outside of city channels. >> in the meantime, you could grant a a variance. >> we would prefer to have that issue resolved. that was the subject of the court case.

i do not think that has been resolved. ideally, that would be resolved. >> ideally, but let's say appeal after appeal after appeal. it is locked down in the court system. is there an automatic -- cut the easement is a separate issue. -- >> the easement is a separate issue. the easement -- they can still provide parking. the code -- the planning code does not require parking. we can separate the two issues. >> who can apply for the easement? >> it is a private matter. >> if you can apply for the variance? who gets to file for that? >> the chicken or the egg, take your pick. that is an excellent question.

>> the appellant could file an easement. but they do not own the property because they do not control the easement. >> if a decision is granted, that could be appealed. that could be the subject of a lawsuit challenging the validity of the easement as well. hopefully, the easement issue will be resolved. >> that has to be fairly common. we have that easements before where there is a common area. who gets to apply for staff in areas where there are easements? >> easements are not to comment. especially something this specific. a lot of easemen+ access. you would have a property that would be separated -- maybe is a

landlocked lot. he would have an easement across somebody else's property. it has to be maintained free and clear. this is a very unique situation. the building is built above the easement. it is a unique case. >> can you speak at all to the safety issue that was referred to earlier? >> no, not within the purview of our department. i would note that it does appear -- it was approved as such by the department of building inspection. >> where did the plans show egress? >> it is one of these where --

let's see. they call it as injury and parking -- as entry and parking deck. i do not think there is -- i do not think there is any way to access the property from the neighbors. >> at the time, that was an improved -- approved condition. >> at the time. >> i need to try that at my house. >> thank you.

>> good evening, commissioners. from our perspective, this case, we issued a notice of violation for work without a permit. we valued at $500 at the time. the honor filed a permit, paid the appropriate -- the owner filed a permit, paid the appropriate investigation fees. at this point, based on our administrative code, from our perspective, the issuance of the permit is an ministerial act. when all pertinent departments approvals are in compliance, we shall issue the permit. in this case, it was disapproved by planning. normally, for this type of alteration, we would look at the proper exiting and ensure that

it meant the building code. providing the land use limitations and the zoning restrictions are complied with as well. in our case, we would wait for a determination based on planning. clearly, the interest of the department is of attaining compliance. >> does your data base show nsr's or variances or anything? >> this was one of the permits that was same day review in terms of over the counter. all of that process took place for us on that one day, the 25th, and then it went on to planning on the 29th.

>> thank you. president hwang: we can take public comment now. >> i live at 79 montezuma's streets. i am here to try to persuade you not to convert on street parking into another driver. you'll make it unusable for many of the families living in the area that might not have a parking, like myself, or families that have multiple cars. this street is very densely populated. the negative impact will be felt immediately. i am one of the least 20 residents on montezuma's street that could be here to argue in

favor of keeping this space open and available as it has been for 20 years. i am friends with -- we go to their house often come in and out through this space here talking about. i guess i cannot picture putting a car there because you would have to almost going sideways. if something happens to the house, a fire or something, that is going to be very dangerous. that is my comment. i want to take the opportunity to read two and letters from my neighbors who are not able to come. "i live that 17 montezuma street

since the november of 1992. i was involved in a review hearing in 1994. the neighborhood was concerned regarding the potential for the units in this building. the nsr talked about a second unit being allowed if the zoning change. a second parking space was being provided in the design of 69 montezuma for this potential future second unit." >> the next letter is -- "i rented the structure on the baking much at 69 montezuma street prior to its demolition

in 1985. i rented it to store tools. the outside dimensions for about 10 feet wide by 12 feet. at the front was a horse hitching post." thank you. president hwang: any other public comment? please step forward. >> good evening.

my name is elizabeth. i own 65 and 67 montezuma. i also on the parking at 69 montezuma. i bought this property just prior. i submitted you a brief that gave you a history of the way this easement was created. when i purchased my property, a long came a deed granted easement. the planning department to mandated this in 1982. it was a condition of approval

to split lots. this mandate said parking was required. in 1988, they were well aware that this easement existed on the property. they fully understood that the planning department opinion on this. they had an opportunity to terminate their contract. they took responsibility for this issue. there are three documents, k, n, and o, confirming those three items. this easement is located on 69 montezuma and has been used as a carport. the exhibit and i would like to show you, if you would not

mind, this shows what the date looked like prior to then taking it off -- the date looked like prior to then taking it off. this is what it looks like today. this is in your brief that i sent you. thank you. this is what they said they think they did not need a permit for. in 2009, without my permission, -- i filed a complaint with the department and ask them to remove it. the city center and a notice of violation. they got the permit revoked. then there was delay after delay. they sued me i have no off street parking nine years i battled staged for cancer. when i came back, this is what i

found. they have cost me my life savings. 2.5 years i have been defending the city mandate. i ask you -- if you have any questions, i ask you. please. vice president fung: is their ongoing litigation? >> yes. there has been two years of this. postponing the this, suggesting they would give me back the parking, they will do this, they will do that. that is what is going on. president hwang: were there any issues getting in or out of your car?

as the picture would suggest. >> i have a 1982 z. may i continue? what i would do, when i would go off on trips, bob would say, will you pull out your car into our garage? i did that. there was a period it were at a lot of personal issues so i spent a lot of time away. president hwang: you parked your car in their garage? >> that was a fair deal. nouri often, i would come back into the city -- very often, i would come back into the city and i would park my car right in front of the gate. if i came back at 11:00 at night, i would just parked in

front. for years, you could park beyond the sidewalks. i did that for years. my tenanted that -- my tenant did that for years. and then i got sick. and when i came back, there is . i want to be clear that this easement was a mandate by the city. it was mandated in part of the planning process. >> thank you. president hwang: is there any other public comment? we will move into rebuttal. >> good evening, commissioners.

i am the attorney for the appellant. the question of whether or not there is an easement that exists across my client property, the question before the superior court. what is clear is that this area at that we're trying to -- that some of us call parking is not allowed to be a garage. the fact that the developer, as part of the process of getting his house approved, does not change the fact that there is not a garage on this site. there has never been a garage on this site. there multiple basis why we believe our bryant -- our client will prevail. what is for you tonight is to

consider the impact of requiring a private property owner to provide parking to their neighbor where there is no reported document to which the city is a party. i observation and experience is in the past, when the city has conditioned approval of the building on parking being granted to some other party other than the owner, the recording notice of special restrictions. there is a recorded document to which the city is a party that memorialize the city's interests. that never happened in this case. that is a fatal flaw in terms of the position the planning department has taken. if the city now attempts to require parking on my client's land, in favor of someone other than my client, that raises some significant constitutional questions in terms of the occupation of my client's property, the confiscation of my client's property.

if there any questions, i am happy to answer them. >> crafting yourself an easement, which is what the developer did, would be like me granting myself -- granting myself an easement to park in my backyard. then he cut a deal with the neighbors and the only document the city has signed is this nsr. it is our parking space. the document planning sign says it is our parking space. if it is our parking space, and they have signed it, we want to get it up. all this comes down to the original document that the developer lied on. that is its.