not been given consideration and considered because they only allowed 29 feet. there's a basement which actually opened out through a sliding door into the ground level but there's a subbasement. according to the law and the building code, if the basement ceiling is reduced to 80 inches, they don't have to have windows for ingress and regress for the fire department. however, please be mindful that an elevator has been installed in this home. the elevator goes all the way to the subbasement where the machinery is located. in order to operate that accurately you have to have 110 inches, so they would absolutely have to place windows in the area of the subbasement for egress or ingress for the fire department to help people out of that room. so without lowering it 80 inches, which i don't think they can do without removing the entire elevator, that is not compliant with the building

code. any questions you might have about what i have spoken about? i'm also very in favor of residential sprinkler systems but i'm also mindful of, just investigated a fire in newport beach, southern california, and in that case the fire occurred in the concealed spaces between floors. it burned through the pvc piping which is allowed for residential housing and rendered it ineffective for the occupants to leave the home. thank you for your time. >> if there's nothing further from the appellants then we will hear from the attorney for the permit holder. >> so i haven't been practicing law as long as mr.

elman, i still need help from my younger colleague. i'm mary murphy, council for the permit holder and respondents, laura and peter fenton. here with me tonight are members of the project team, paul kenyon are project managers, jeff maddox, my colleague and also technical expert, allison kidd. all will be available to answer any questions you might have. unfortunately the fentons could not be here tonight because they agreed to postpone from hearing from mid-september to mid-october at the appellant's request. dear members of the board, my wife, laura and i live with our two small children at 2705 larkin street. as you may know, we have proposed to remodel our home to make it child friendly and to better accommodate the needs of our growing family and that remodel is the subject of tonight's appeal. it has always been our

intention that the remodel be in keeping with the neighborhood. in fact, the remodel complies with the planning code and we did not seek or require any variances. unfortunately laura and i are not able to be present today to discuss with you the appeal of our building permits. as you may recall, this hearing was originally scheduled for october 19th but we agreed to postpone it in recognition of our neighbor, miss seligman, would be observing the jewish holidays through most of the month of september. not withstanding mrs. seligman's at the tenacity in opposing our

permit, she is still our neighbor. we are anxious to complete the project and even though it places us at a disadvantage for the hearing tonight. we are deeply hopeful (inaudible) i will present a copy of that into the record. commissioners, the briefs are very lengthy. let me begin by summarizing the essence of the appellant's xlaibts. as you can see from the appellant's complaints and as mr. elman touched on today, the true nature we believe is found in their discretionary review where the seligmans raised issues of light and privacy. they have come to this board to attempt to stop a project they simply do not like by raising

what purport to be safety and building code concerns. considering whether any of these new complaints have any merit, it's important that they assert that the city was incorrect not only tonight, but all the prior permits issued for this house over many years. the permits show the fentons and prior owners sought permits for that work and had that work inspected and signed off. not withstanding this conscientious record, in addition they claim the planning department and zoning administrator were mistaken in their prior actions for many years before they even owned the house. all thoi it has no bearing on the issues before you tonight, they would have you believe the city has repeatedly erred in

issues permits for the building over many years. again, this has no real bearing on the matters before the board tonight except to underscore the lack of merit of their most recent complaints. as we will discuss in greater detail the city acted correctly with respect to the permits before you and we respectfully request the board deny this appeal and uphold the permits. i want to respond briefly to a couple issues presented by you tonight from mr. elman. as you know from the briefing, it's a relatively complicated project. first they claim incorrectly it fails to comply with section 1024.6. it complies because both exits discharge on to larkin street which is a public right of way. appellant ignores the definition set forth in the building code. when you look at the definition it becomes clear that the

appellant has misunderstood what portions of the structure constitute exit discharges to which the definition of discharging then applies. as you can see and as mr. maddox, our expert, explained in his submital, the rear of the house does not fall within the requirement of a rear exit discharge. there are two exit discharge sz as defined in the building code. next, upon claims that 3 levels of the house, the studio, the basement and the subbasement all fail to comply subbasement all fail to comply with section 1029.1, section

1026.1 expressly exempts ceelings of less than 10 feet in ceiling height. in fact the plans that have been submitted and approved do not show a ceiling height above 80 inches and therefore under the terms on its face it is exempt. second both the studio and basement levels of the house comply with dbi's long standing interpretation of 1026.1 which provides access to a closed rear yard satisfies this section and that was determined in the preapplication agreement on the preapproved set of plans. because it complies with dbi's interpretation of the building code, they are not equivalencies and therefore no equivalency findings are required. third, appellant argues in his brief and again tonight that section 181 of the planning code prohibits the project. i will briefly try to summarize,

there are a number of issues that could be raised under the planning code which are all incorrect on their face. it is absolutely the case that section 181 limits the use (inaudible) 2705 larkin is a residential use in a residential district. the studio does not make it a nonconforming use. it is zoned rh2, which would be legal to have the stued dio in the structure, so it is simply not applicable and more to the point, what constitutes nonconformity under the building code is not tantamount to a nonconformity in the planning code. in the interest of time i will say all the arguments raised here tonight and on the briefs with respect to the planning code and the prohibitions in section 181 of noncomplying structures is incorrect. fourth, the appellant has argued that prior mer permits

were issued in error. such late complaints have no bearing on the issue before you tonight and have no bearing because of latches. latches says you cannot slaep on your rights and they are raise matters that are sometimeness some cases 9, 10 years old. in addition, appellants make unsubstantiated allegations about illegal or unpermitted work. apparently and as mr. elman testified tonight, the appellant went into dbi and filed two xlaipblts complaints with dbi they believe the appellant constructed a roof deck without a permit in 2008. respectfully, having gone to the counter to file that

complaint, appellant could have gotten the permit. the fentons have done all the work pursuant to properly issued permits. not having been satisfied with filing the first complaint on the morning of the 15th, appellant's council returned to file a second complaint saying dbi erred in 2001 or 2003 even before the fentons owned the property. even if there were a shred to support this good faith belief, the theory of latches would again prevent them from raising such a xlaipblt complaint at such late date. in the second instance they are complaining about things that happened before the fentons owned the property 9 or 10 years ago without any basis for -- they're just saying the

permits were issued, but issued in error. latches would bar this being heard and the board should not countenance them doing that at this late date. as i explained a moment ago, no equivalencies were sought or required in any instance. with respect to the exit discharge and emergency egress requirements of the code, they are satisfied by the project and no equivalencies are required. dbi correctly determined with respect to the

sprinklers that they were required in the rear addition and the project does provide sprinklers in the rear addition. at the same time dbi also determined because the front portion of the house is not affected by the building, building code 33.01 applies. that says the portion not being altered are not required to comply with the building code for the new structure. it is quite ironic that this appeal lays claim to safety issues because the entire purpose of the fentons project is to make their home child friendly for their baby and toddler and it is abundantly clear in all of the instances that are raised that the city correctly applied the building code in every instance and 91 of the appellants a objections have merit. we respectfully request this board uphold these permits and deny this appeal. our team is here to answer any

questions you may have. thank you for your time and consideration of this matter tonight. >> councilor, you have provided a fairly extensive permit history in your brief. are there any nov's? >> not that i'm aware. >> issued against this property. >> no, not that i'm aware of and we've looked at the permit history quite thoroughly. as i said, the 2008 permit was pulled and we have it here tonight if you'd like to see that. >> because the appellant raised it today i don't believe i saw it in their brief, the question i have relates to the elevator in the subbasement and you said that the plans indicate that the ceiling height is less than 80. >> yes. if i may --. >> bring the design forward, we're talking about numbers,

i'm a lawyer. ole lundberg from lundberg design. >> hi, ole lundberg, lundberg design. the plans currently show an elevator going to the subbasement and an elevator mechanical room on that level. per the building code we would not be able to do that elevator mechanical room higher than 80 inches unless we had exit out of it. if that doesn't work, the elevator won't go to that level, it will go one level up and that will be determined by dbi when we submit, but it would not exceed 80 inches do you understand 120 inches, is that a standard mechanical room height? >> it's possible we have a dimension that shows that but, again, that would be a

department of building issue. if we have that, that wouldn't work. we wouldn't be allowed to do that room at that height. >> i don't understand why you say if you have that, do you have it or do you not have it? >> i don't know, lev, do we have it? >> there's actually -- my name is lev (inaudible) and i'm the project architect on the project. the subbasement, there's issue of ceiling height and there's also issue of square footage. one is allowed to have up to 200 square feet of normal ceiling height and then the rest has to be 80 inches or less than 80 inches. therefore, if we connect the elevator and the stair and, again, and the elevator machine

room by a passage, by a corridor, we can maintain normal head height for people to function in as long as we're under 200 square feet, which we will be as long as the actual mechanical room itself has the lower ceiling. because it's unoccupiable space. >> not following the 200 square feet piece. the ceilinging? >> the code has to do with a subbasement that's either less than 80 inches in height or is also less than -- 200 square feet or less. >> the entire subbasement is 200 square feet? >> better to have our code expert. >> okay. >> jeff maddox, fire consultant. there's two exceptions for this requirement for escape windows. one of them says basements less than 80 inches do not require one and the other says basements

without habitable spaces of less than 200 square feet. i think the interpretation is if you have a little space under 80 and under tw00 square feet, 200 square feet, as long as it's not habitable. >> as i think the appellant stated. >> right now we didn't dimension the entire -- we're just showing floor levels, we don't have any dimensions of actual ceiling heights. >> so is the subbasement at 110 but less than 200 square feet non-habitable? >> that is what will be provided. >> i thought that the brief said they were under 80 inches, that's why -- i'm confused. >> this is mary murphy again. what's before you today is a site permit. as you know from hearing a million of these, what happens is you file

subsequent addendums. i think what lev is trying to say, the level of specificity with the subsequent addendums will be sorted out. what mr. maddox has explained is that the code provides, as best i understand it, when we come forward with the addendum that's specific with the heights and the relationship with the mechanical room, we could have 200 square feet that would be more than 80 inches, but the rest of it would have to be under 80 inches. that's a detail that would come forward during the addendum process and we would absolutely comply with the details the department of building inspection would impose upon us with respect to those technical details of it. >> thank you. mr. duffy, i think you are up, unless mr. sanchez wants to go

first. >> good evening, commissioners again. when i got the brief obviously there's a lot of reading in them. i decided on monday to make an appointment or friday i contacted the property owners so i was at the property today which i thought might help me for tonight. also i spoke today with jeff mar, who was the person who did the preapplication meeting back at dbi back in 2010. the purpose of the preapplication meeting is you have some issues with your project, you come down to dbi, you pay a fee and you get to sit down with an expert and you go through your issues. you got questions, we give you an answer, we give you

an interpretation. that let them go and make some decisions as to how they were going to design their project and issues such as were brought up tonight by both sides. for example, on the studio the second exit is not required but an escape and emergency rescue window is and that is provided on the plans. the garage exit would have to comply with ab20 of the san francisco building code, which means that exit from the studio to the garage and down to the street would either have to mean that the garage would be sprinkled and we would have a hallway or corridor to provide safety from a fire. so that definitely is something that's going to have to happen. i'm not sure yet, as they said earlier, the addenda hasn't been sent in yet but that is something we will definitely be asking for. when i was at the property

today i spoke to mr. hue and i explained that to him as well. the new complaint we received that start of the week and we need to do some research on it and investigate it. we will be taking action on it if that's warranted or if there's a permit in 2008, obviously that would be something we would look at as yet. i'm not sure that's going to be -- obviously if there is no permit for it, there would be a violation but someone was calling it a level of occupancy or something like that, i'm not too sure i would agree with that. i would say it definitely has to comply with the exiting if that's the issue. the issue about the exiting to the public way, we do have in san francisco a lot of zero property lot lines. there is

an equivalency -- i wouldn't call it an equivalency. our department would have a policy about that. we do give people some leniency with regards to the 50 foot rule in the year yards. i spoke with mr. mar about that and he was very comfortable with that area of the project. the ceiling height at the subbasement i'm confused about that. i see 8 feet on the plans tonight. obviously that's too high if you are not going to provide egress, so something has to be done about that. we will have an opportunity at dbi but i'm not sure how i would get that done from our end of things. i'm not involved in the plan check process so maybe some condition

within an hr2 district. it went through section 311 neighborhood notice at the beginning of this year, 5 discretionary views were filed on the application, the matter was heard in may of this year and not take discretionary review. the planning department does not have any complaints on file for the subject file. the appellant has raised concerns regarding section 181 of the planning code that would not apply here. the building is not, it doesn't contain any

nonconforming uses. they are allowed to contain two dwelling units, that's what the property contains. a further note, even if the property did contain a nonconforming use, it's not a prohibition on an expansion of the building. the building code does allow that. the building does aper to be a nonconforming structure however the application proposes work at the rear which extends it approximately 21 feet to the rear so the project is fully code compliant as stated by the permit holder, no variances are required so none were sought and the planning department finds the project complies with the residential design guidelines. i'm available for any questions you may have. >> did you say you cannot expand the nonconforming space and this project wouldn't do that. >> correct. what's been cited by the appellant is 181, which

deals with nonconforming uses. >> does not contain, okay. because? >> because the zoning allows two dwelling units and the building contains two dwelling units. they are reducing one of the dwelling units in the building, maintaining as a studio but that complies. the front is above the height limit. however, none of the work they are proposing deals with that non-complying portion, they are doing work at the rear within the permitted envelope. >> also for that addition on the top floor is lower than the existing roof line. >> that's correct. so the addition is fully compliant with the planning code. thank you. >> is there any public comment on this item? seeing no public comment, then we will move into

rebuttal, starting with the appellant. you have 6 minutes. >> good evening, commissioners, i've been asked last week to do a peer review. my name is pat buscovitch, of both briefs. i keyd in on two specific pretty much nonrefutable issues. in 2002 there was a permit to enlarge the building. a cfc was issued. some of the enlargement may not have been papered correctly but what was president in that 2002 permit was a roof deck. in 2002 there was no deck and there's a little confusion about the complaint made monday. the complaint was from 2002, when there was a permit that didn't show this deck, there is no permit to build a deck that now exists, to build a deck. there is a permit to build a fireplace on the existing deck,

but a deck isn't existing legal if you don't have a permit for it. so from 2002 when a cfc was issued, which is a controlling document, no permit was issued. this permit is going to legalize a deck that never a permit to be built and decks are counted as a level of occupation for exiting. so someone needs to pay attention how the exiting works from this fiflgt level that was never permitted. they need to remove it off the drawing or solve illegal construction for this deck. the other issue is there was a pre-ap where they went in for this studio apartment and asked to exit through a garage --. >> which illustration so we can see what you're pointing at? >> this unit right here. i'm not going to get into the

debate about pre-aps, pre-aps said you can continue exiting tlau a grudge. but what wasn't in that discussion was a more fundamental basis. exiting through a garage is not a primary code compliant exit. what was and what is currently there now is a second means of egress to the rear yard downstairs into an area of refuge and i've been doing this for 30 years so i'm not even going to get into the area of refuge issue, but when they said you can exit through the garage, they didn't tell the building department, oh, by the way we're going it take out the stairs which is your second exit which really gives you one fully compliant exit, sort of. we're going to take the stairs out. so now this unit that's currently in front of you, it exits to an unsprinklered garage at its primary, which isn't code compliant, it has