are removing the stairs. so after this project is done, the rent control unit, the only way to get out of this unit is either going through the garage where the car may be on fire, no sprinklers, or jumping 20 feet to the ground. now, that's not what the building department agreed to. the building department agreed you could exit through the garage, but not that you could take out the second exit. so they have a fundamental problem how they get out of this unit short of jumping to the ground. now, the yard is getting smaller, which you are not supposed to do, but fundamentally no one jumps 20 feet to prevent being burnt. so those are the two fundamental problems they have to address. they have to go back to the building department to do some pre-ap or equivalency, maybe sprinklering or doing something but you can't take two sort of noncomplying exits and remove one of them and then rent it out to the public. thank you.

>> howard elman, i have just a couple points in rebuttal. i don't know, it's my fault, i don't know whether any of you are lawyers and it's probably a good thing that you are not, i guess. the doctrine of latches has been introduced -- yeah, merchants of misery and paid pessimists, that's what we are. latches has been introduced and it's been completely misrepresented as to how it works in this case. what we're complaining about is the new permit that is based on a foundation of what appears to be illegalities, a combination of a little bit of that while we work on that and then a little bit of that. if you take away the foundation then our argument doesn't fly. but i respectfully submit that having reviewed the files, it does. we also have this business of

the modification. when there are practical difficulties involved, this is 104a2.7. san francisco building code. when there are practical difficulties involved in carrying out the provision of this code, the building official may grant modifications for individual cases. the building official shall first find that a special individual reason makes the strict letter of this code impractical and that the modifications are in conformance with the intent and purpose of this code and that such modification does not lessen any fair protection requirements or any degree of structural integrity. now, our position is that several of the things that they propose do make those changes and the only way you can approve it is to have a modification that complies with this code. and there is nothing in the file to show that was done. thank you very much, i appreciate it.

>> i understand the basement issue that they're talking about changing. midlane of the floor was 9 feet, 110 inches. until i see the final building -- the other thing i'd like to make a program of real quickly, the intent of the law, building codes are build to save lives. the intent of the law is if we exit out the front of the building if we have a fire in the back, that's adequate. but if we have a fire in the front that could encompass both those front exits, we still need to be able to get out the back. i hope you will key in mind egress is a way out of the fire and not to go left or right of the fire. thank you. >> miss murphy. >> again, commissioners, mary murphy. in closing you've

heard the rebuttal arguments. i don't believe anything new has been raised by mr. buscovich or mr. moony or mr. elman, but with respect to the matters mr. buscovich was raising, in the 2002 issues he raises, we have the 2008 permits here. we can show when that work was done. this xlaipblt -- complaint was filed on monday, they will look into it. as to mr. elman's point as to whether the prior permit history has any bearing, this board knows as well as anyone if this permit is issued you have 15 days to bring an issue before the board. they are raising issues in 2002 and 2003 and what's remarkable is that they walked down to the building department to file the complaint about permits issued 9 or 10 years ago, and with

respect to the 2008 permits they made allegations, again baseless allegations, that work was done without permit in 2008, again, 4 or 5 years ago, and one could argue that they are claiming there were no permits issued so therefore the 15 days it appeal doesn't apply. but in fact if they had gone and gotten the permits, which we have the plans here tonight, they would know permits had been pulled. i just would like to summarize to say there have been a whole host of issues thrown up here today. it really is a bit of kitchen sing situation. but one thing does emerge. this building, this owner, has sought permits, they have obtained permits, they have had those permits inspected and closed out and the prior owners did as well. i think it's very rarely the case that this board sees buildings like this where there is such a conscientious record of seeking permits. we

often see messy records especially over the years, but this is a conscientious effort of one permit being pulled after the other. i do not believe the appellants have brought forward any evidence tonight about the site permit that is before you today and i would respectfully request this board deny this appeal and uphold this permit and let our client continue with this project to make this a family friendly home. and as i said, who is here with the materials, mr. moddox is here to answer any questions you have if you have any further questions about the matters that have been raised this evening. thank you. >> councilor, you said you had copies of the 2008 permit? no, not the drawings yet, you said you had copies of the permits. i want to see the permit first. >> he has the drawings, the

approved drawings. >> you have the permit? >> the stamped drawings. would you like him to --. >> i would like to see those, but only that portion dealing with the deck. >> if i could give you a set and just refer you to two pages here on the set. >> could you put it on the -- i mean you don't have a set for all of us. >> yeah, but when you look at the page, what i want to show, one is the --. >> it's not going to work. >> too big. >> hold it? >> they can move the lens. the lens will move in or out. >> i wanted to show you this is a permit set drawing, this is --. >> it's upside down. >> the stamps --. >> it's upside down. >> sorry.

>> also if we could ask sfgtv to pull back the view as far as possible. that's too large. >> there are only two sheets to show you. you could pass it around, it's easy it look. >> sure. >> i apologize, we didn't reduce it in size but it gets to be unreadable. again, my name is wane who, i'm a project management consultant to the property owner. what is being presented to you is a copy of an approved drawing set. the first page, s1, there is to show you the stamps, the dbi stamps of approval as well as the permit application number. if you good to a2.5, which is further back, i folded the other sheets

but on a2.5, is the third floor plans and on the third floor plan you will see the family room and the stairs, you will see that there is double doors that open to the roof. >> so before you move on, we need to make sure that the appellants have an opportunity to see this as well. >> i gave them a set of drawings. >> thank you. >> and you can see that around the roof there are exactly the parapets and walls there. so this afternoon i met with inspector duffy, the issue is that this plan labels it as a flat roof rather than as a deck, but in the rest of the drawings it shows an opening from the building portion it that roof area and the railings and the parapets. so wae --

we believe this portion was approved. the other part, just quickly, the note is that the building, this is a site permit that was submitted that the construction documents will be submitted in an addendum. >> mr. who, thank you. >> questions for mr. maddox? >> this is not convincing as justifying the use of a deck, what was just presented. >> if i may respectfully submit, you did see there are french doors that open, there is a railing all the way around it. i think it's pretty clearly, it's obviously intended to be a roof deck. and i think there is a nomenclature issue, respectfully, commissioner fung, but i do believe with the

french doors opening to it with the railing all around it, it certainly has all the external indicia of a deck. >> perhaps i should have said that in our own discussion, but thank you. >> never say that while the lawyer is still --. >> thank you, councilor. >> mr. duffy. >> thank you, commissioner fung, for doing our complaint investigation for us. >> pro bono, too. >> i think the roof deck is something that there was french doors going on it and there was a flat roof. i looked at it briefly but you need to go into the microfilm and look at the plans. i didn't want to make a judgment. but it was labeled as a flat roof, there is if

furniture on it, it looks like a complying roof deck. maybe it wasn't labeled like that. we would certainly be asking that that gets called as a roof deck if that's what it's going to be used. if it was never permitted as a roof deck we would have to get that added on to this permit or get a separate permit for it. when you see french doors opening on it a flat roof it's a little bit strange, but i'm not sure if that's the issue tonight, because we only got the complaint at the start of the week about the roof deck ?oo ?a understood. how does that impact level of occupancy as raised by mr. buscovich? >> well, i think it impacts it with regards to exiting from the roof deck but doesn't, we wouldn't claim it as a story. >> you wouldn't count it as a fifth story? >> i wouldn't and i don't think mr. buscovich would,

either. i think there is the 500 square feet where you need two exits if the roof deck is more than 500 square feet so you would have to (inaudible) the whole way to the ground from the roof deck at the top. that's something for the design team to think about if they do want that roof deck there. certainly it is an issue. but being dealt with on a complaint, but if you want to take it under consideration as well. >> thank you. >> one thing i didn't mention when i was speaking earlier, there are sprinklers in the new part i think someone said. mr. mar was pretty comfortable with the fact we were now getting sprinklers in a good part of the building. the 2010 building code gives you a lot of leniency when you provide sprinklers in a building because of the life safety issue with having sprinklers in a building. i don't think i had anything

else. >> thank you. mr. sanchez is indicating he has nothing further to add unless you have questions for him. commissioners, the matter is submitted. >> commissioners, that was a very extensive brief gone over on a sunday afternoon. the issue here is how do we review the overall performance of this building with respect to the permit and the allegations that were raised and not to get mired perhaps in a couple of items, was going to

use the term minor, but perhaps it's not so minor to certain people. and the question of what rises then to a point that needs to be addressed in future construction documentation and future deliberations between the project sponsor and the building department. first is based on my own experience, i believe that the issues raised with respect to the exiting systems by the appellant are incorrect. i am supportive of the permit holders' position on that and what the code states. there may be some minor adjustments later, certain

issues that may have to be, real estate late to the creation of some additional either exiting corridors or means of exit, depending on how the details work, and that's something that is traditionally done during the construction document phase. the only question i was raising with respect to the porch was to look at the questions of whether certain things had been done here without benefit of permit. not that they cannot proceed to ask for another permit, i think as is written in the brief, the position of city departments on that varies between the planning department

and how they issue entitlements versus the building department. the last portion of it is dealing with the question of nonconformity and i accept what was written in there, that the issue of nonconformity in the planning code is quite different on nonconformity within the building code. there are many buildings in san francisco that are nonconforming in certain respects and i believe when they talked about some of the questions related to sprinklering of the studio and other portions that are not sprinkled, there are issues of nonconformity within the building code that's allowed and i didn't see anything in there that would make this an

egregious type of situation. so overall i would say that i have not found the arguments made by appellant to be compelling enough to overturn the basic entitlement and allowing the project sponsor then to get into the more detailed efforts in terms of construction, constructability and final departmental dbi approvals. >> vice president fung, there was very thorough and i appreciate the way you framed the question that's before us today. i did spend my friday night going through these briefs so -- and i think both sides presented well. i think the volume and sort of numerousity of issues that were brought does create a certain level of complexity that for those of us who aren't as trained in these issues, it was

helpful it hear more discussion of it today. like vice president fung, i agree that the permit should be upheld for many of the reasons he stated. i didn't find, i found at this point the position of the permit holder persuasive. >> make a motion? >> move to uphold the department and the permit. you need grounds? >> if you care to articulate. >> on the grounds it is code compliant. >> thank you. >> we have a motion from the

vice president to deny both appeals, uphold this permit on the basis that it is code compliant. on that motion. (roll called). >> thank you, the vote is 4-0, this permit is upheld. >> okay, thank you. president wong wong, hwang, would you like me to call the next item. >> i think we should take a short break.

(brief recess)