it's a bedroom or a living room, and utilize the other portion of it for your support spaces like bathrooms and storage, it could be at a lower level without a shed roof across the entire property. but that's just a suggestion that you are free to come up with whatever you like. >> yes, okay, quickly. >> it would help if you clarified for me where it says in the code that this is to be considered as two roofs versus one roof, if there is something in the code other than what you have seen because it seems to be fairly sichl and straightforward. but if you feel that somehow mr. sanchez' determination is correct in interpreting the code, then can you also verify that his interpretation would stand then if we make a large roof over the whole, sloping

roof over the entire 35 feet from front to back is he that we get the average like that so that we can go forward with our section 311 notification. >> i think he's already indicated should you choose to make that shed roof across the sbair property. >> i did not hear that. he still maintains there's something magic about the 35 feet that you can't poke up above the 35 feet. >> okay, why don't we hear from mr. sanchez, please. >> thank you, scott sanchez, planning department. it real estate pete what i said in my rebuttal, you can have portions. raf above the 35 foot height limit, it's a matter of averaging. i blaefrb if they had a full width shed roof as long as the points measured out correctly and it was an average 35 feet, it would comply with the planning

requirement. this is purely looking at the height limit and it would be code compliant for the height limit but it with still need other review. it's not as if he does the full width shed raf that wae would automatically send out the 311. the planning department still has it look at it and make a determination what we can support on that project. >> commissioners, i'm prepared to move to uphold the letter of determination. >> that's on the basis of lack of error or abuse of discretion? >> that's correct. >> call the roll, please. >> we have a motion from the vice president to uphold this letter of determination on the basis of lack of error on the part of the zoning administrator. on that motion,

president hwang, aye. commissioner. commissioner lazarus. >> the vote is 4 to zero and the vote is upheld. >> i'd like to take a short break, please. >> okay. (brief recess).

>> wl come back to the october 10, 2012 meeting of the san francisco board of appeals. we are calling item no. 8, appeal no. 12-098, eric foss versus the department of building ip spex with planning department approval. the subject property is at 2888 folsom street,

protesting the issuance on august 3, 2012 to new china real ti it a permit to alter a building, remove illegal unit at garage level, remove illegal kitchen and bath, cap all utilities at source and convert to storage. you have 7 minutes ?oo . >> on september 5, 2011, i signed a lease for my apartment, 2888 fall sum street. i was never informed the unit was anything unusual compared to anything else in the city. there was nothing in the lacy to indicate the unit was not up to code or a perfectly acceptable apartment unit. i'm not a real estate professional and though i went to college, i had to reason to believe there was anything about this unit that made it different or made the lease terms that we were about to enter into different than any

other lease that i signed. this apartment, while quirky and charming is like many of the apartments we see anywhere across the city in any neighborhood, part of the fabric of the city that we all know. so in may, 2012, the ownership of the building that i rent in was changed and the owners, at that time the new owners inspected the entire building including my unit and despite the fact they are real estate professionals they at no time voiced any concern about my safety and continued to accept my rent on-going. in july of this year, i requested a repair that i had been promised many months before hand. it was the second time i made this request for a very simple and basic bit of maintenance and they said they would get on that. they had known about it, they said they would get on it.

two weeks later i got a notification of their intention to terminate my lease and demolish the unit and turn it into storage and they expected the termination to be complete -- i would need to be vacated by august 31, 2012, which was 5 days before my one-year anniversary date as a tenant there. that is significant because after one year of tenancy in an apartment, you qualify for a 60 day notice and over $5,000 in relocation benefits. and that was further clarified when the permits were approved on a different schedule than they anticipated and i didn't get my 3 day notice until august 6, which would make nigh actual termination date september 5, 2012, which is exactly my one-year anniversary date but in my notice of tenancy they said they still didn't think i should be sbailgtsd it any

relocation benefits. i ask my appeal be granted and the permit be dea denied. there has not been any complaint, there has not been any inspection, there has not been any complaint by me about any environmental factors taking place there. absent notice or complaint of any kind i think the apartment should be presumed, based on the fact it was entered into by two parties of their own free will in a business arrangement, and that's the lease. i know i as a tenant am obligated to fulfill my obligations and if i didn't, i can be evicted or something else.

but aparpbtly because the supposed confirmation of this unit is illegal, the land lord reserves the right to terminate the lease on their own discretion on their own timetable because they decided they wanted it make storage. had i known that their rights could be, that the entire lease could be voided at their sole discretion at a time of their choosing, that's a material fact i would have liked to have known at the time i signed the lease, something that should have been included in the lacy or something i should be made aware of. the city charter of san francisco is written is such a way it wants to preserve the character of the various neighborhoods we have here and for better or worse, in law units are a vital component of the neighborhoods and by fiat the cities if they wanted to could simply order the eviction of everyone in an illegal unit

at a date certain. but it doesn't do that. with benign neglect most tenants are left alone to live in so-called illegal units indefinitely and those are subject to lease agreements that are enforcible by law. in this case, again, there's been no health code violation or any other violation or even inspection by the building inspector that would suggest there's anything about my unit that is a blight on the city or something to be removed, certainly not on a timetable that would just by a day or even a fraction of a day happen to prevent me from getting at least the relocation benefits i would otherwise have qualified for. i think a fair reflection of the city charter would be to balance the rights between the ability to remove illegal units when they are egregious violations, safety violations putting peoplality risk, and when they are not. and also a way of balancing the concerns

about housing in the city and safety in the city. i don't think the way this permit was granted and brought forth reflects that balance that should be applied. at the very least, i think the owners' rights as the owners can still be enforced if they want, have an actual building inspection be done by the department of building inspection, determine how safe it might be. without those things in place, without any external or environmental defects i think this permit should be rejected at this time. that's all. >> thank you. okay, from the permit holder now. >> good evening, members of the board, my name is thomas

wu, i'm representing new china realty corporation, the current owners of the building as well as the permit holder. i assume you have read both the appellant's brief and ours, i don't think i need to go over it in complete gory detail, but just to give the audience some idea of the perspective, we are not responsible for creating this lease and this situation with the tenant. we inherited the property midway through his tenancy. the previous owner who had the building since 200if you are apparently ran into financial difficulties last august and that apparently prompted him to lease this rear garage area as a living space to the appellant which, as the appellant says, began in september of that year. we purchased the building in

march, 2012, and we are as contrary to what the appellant says, we are not real estate professionalsment we do hold the building in a corporation but my wife and i have full-time jobs elsewhere. we merely hold this as an investment property. upon meeting with a lawyer to discuss various issues we learned about the perils of holding illegal units. in fact, the lawyer told us what the right thing to do was in this case, which is to declare it illegal and to obey the laws as they are required to do with respect to this property. the appellant just makes several statements now that really are the same as in his brief. he refers to his lease, if he wishes to litigate against the previous owner for false information or for not informing him of the status of the unit, he is welcome to did that. he asks for inspections

to be made. we provide ample evidence in our brief and rebuttal, i will have my contractor's speak, about the various safety issues which are very apparent just by taking photographs let alone try to see exactly what was done inside the walls. there have been no plumbing permits, no electrical permits, no building permits taken out for all of this, but the real issue is, is this unit legal or not? in our brief we provide clear evidence it is not legal, the 3 hour report, the certificate of occupancy says it's a 6-unit building, the permit from 1933 which converted it from a two-flat building to a 6-unit building. the sandler map says clearly it's a 6 unit building. never has there been a permit to allow a 7th unit in this building. this unit has always been used for stoerplg. there's a permit

from 1916 to say this is explicitly a garage space in the basement. there's a permit from 1982 that says we're going to install sprinklers in the basement, makes no mention of any other purpose for this basement. we have a pest control report from 2007 that says they couldn't even enter the space because of excess storage. i have several other comments in my brief about the importance of doing this now because not only are we concerned about the safety of the appellant but we're concerned about the safety of all the other people in the building, in which case there are 6 other units in the building who are depending on the city it make sure their living space is code compliant and safe. and i think the safety issues make a compelling argument that this situation cannot be allowed to continue,

let alone for any other damage to the building that might result if, for example, there was an accident or some other incident that would affect our property rights as the owners. so i think i'll save everyone further time on this issue except to say that really the issue is is this unit legal or not? and unless the appellant can really make a case against this, i think we should uphold the permit to remove thrill legal unit. thank you. >> mr. wu >> yes. >> when you bought the property, your title report showed 6 units? >> yes. the mls unit on the title report --. >> i understand. you have accepted checks from the tenant since march? >> we did. >> so you knew there was an illegal unit. >> we knew there was unwarranted studio. this is only the second apartment building that we owned at the time. we've never had the case

of an illegal unit. we, you know -- frankly, if someone had pointed out to us earlier that the situation was of that type, we would have acted sooner. but we are, you know, we are not real estate professionals, we hold this as an investment property. we actually thought unwarranted studios were, i didn't know the details of the law with regard to this. i didn't know that there was a 9 times penalty for not acting in the situation. i didn't know that there was, you know, there's a procedure you had to follow to make this happen. so we are as much a victim of the previous land lord as the tenant. we're acting in perfectly good faith and you follow the timeline, as soon as we met with our lawyer to understand the law, we obeyed it. >> thank you. >> other questions? >> mr. duffy, we haven't heard from you yet this evening.

>> good evening, commissioners. i don't really have too much to say about the permit. i would be available for questions. apart from the fact the permit looks like it was properly issued by our department, it went through planning as well, it was an over the koupter permit to voluntarily remove the unit, as you can see, and we do sometimes get people that want to come in and do this. typically it is after we issue a notice of violation, but occasionally we do have people that want to take up the units with the purchase of a lease. >> based upon your records you have confirmed it's entitled to 6 units. >> sorry, i should have mentioned that, commissioner fung. i read the brief and it looks like there's a lot of units. without going to the building, it certainly looks

like it's a legal 6-unit building. >> mr. sanchez. >> thank you, scott sanchez, planning department. the subject property is located within an rh3 zoning district which would allow a maximum of 3 dwelling units within the subject property. it does contain 6 units and is a existing legal non-complying structure. according to our records, it was built in 1900, which means it could have been built any time prayer to the turn of the century. the records were lost in 1906. if it was originally 6 units or if it was less, it was probably increased to 6 units prior to the current zoning going into effect, which was 1967. i would imagine the 6 units were created sometime prayer to 1960, but we don't

see anything about a 7th unit on the property, just six. >> is there any public comment? seeing none, then mr. foss, you have 3 minutes of rebuttal. >> first of all, there was a tenant in this unit for over 15 years almost immediately before my tenancy began. there was a couple months when his apartment was cleared out because he had passed away, but he maintained the building for i think the entire time, or almost the entire time he was a tenant there so there was a tenant in the building for at least 15 years or so. i'm pretty sure when the owners of the building take ownership, at least it was in our stockholder agreement, it said they were taking on all the obligations of the prior owner so i think whether he likes the lease or not, whether he's a victim or

not, he took on responsibility when he signed and bought the building. as far as safety, when i got the complaint from the respond dapbt there was no safety issues of any concern at all. when the inspections were done when the building changed ownership, whether they consider themselves real estate professionals or not, the people who did the building certainly are considered legal professionals. they informed the owner as a fiduciary duty that my life and my safety was at stake and if they informed the owners. they hurried through the procedure so i would be forced out one day before my one year anniversary date. on the actual day of my anniversary, they still put

into this notice that they felt i was not owed or due any relocation benefits. that's the kind of good faith that we're talking about here. i don't think that's good faith, to me that's trying to save money and get rid of a tenant and abrogate an entire lease and terminate it and all the terms therein on a whim. i couldn't do that as a tenant, if i decided i didn't want to pay rent any more i couldn't just terminate the lease and live there without paying rent. that's my rebuttal. thank you. >> speaking on behalf of the permit holder, sir? >> yes. >> i'm a general contractor, my name is tom corbet, ima company called tom can construction. i've been in business about 30 years. i do a lot of removal of illegal units. i've probably pulled in excess of illegal units off the market. the most important thing here is there were no permits for

any of the things done here. you can only assume there might be wires within the well held together with band aids, which i have seen. i've seen properties where they have undermined the foundation in order to get the extra 3 inches to call it a legal room. this place is under 7 feet, there's illegal plumbing, there's illegal plumbing. one of the biggest problems is one of the ways of getting out is tlau a single hollow core drawer directly into the garage, which contains all the furnaces, the hot water furnaces, and he's got a couch in front of the door whereyou couldn't get out anyway. sometimes we have to blow the whistle, sometimes on ourselves so we can get the place cleaned up. it's not