the e-mail between me -- i have requested they give me the e- mails between the architect and the planners. commissioner hwang: did you put your request in writing to the department? >> yes in writing. commissioner hwang: is that part of your record? >> yes, but i did not submit all the e-mails to you. commissioner hwang: so the request is documented? >> yes. it is all in writing. they did nothing. they say they do not even know today's hearing. president peterson: does that answer the question? commissioner hwang: it answers my question, thank you. president peterson: now we can go to your three minutes of the bottle. >> i believe the permit holder is the owner. she does not live there. she does not really know what is

going on with the tenants. this architect for this project -- you really do not know what they are doing until today. we suppose you have a plan for me and you to review. nothing is presented. after 11 revisions you do not really know what they are doing. maybe you think it is ok, our rights being taken away, as long as the planning and building said the project was okay. at least you asked them to build a wall, a fire wall to protect our safety and privacy. one of the times in the previous denials by the city, they asked them to remove a fire wall.

this is really a nuisance. i do not know if you understand. people stand so close to your property. this is not the law, not the code. that is what they claim they have. i think this has to be corrected. you send a message that no matter who you know you have to comply with the law and respect our constitutional right for public record. until we get the full picture, then you can rule. then at least i know what is the reasoning you are ruling. i think that public record has to be fall when we request. every time we have to go to sunshine for something. before the hearing, they do not give it to you. after the hearing, they say, "we do not have to give it to you

anymore. it is final." that is not a good process. thank you. commissioner garcia: i am looking -- vice president goh: i am looking at the order of determination from sunshine dated june 14. this particular one is july 8, 2010. this is when you are mentioning internal e-mails dated a particular date. did you receive those e-mails? >> some of them, but there are correct ones i have had to request again. the e-mail does not end at that time. commissioner garcia: they make reject vice president goh: they make reference to an e-mail dated february 2010. that is an internal e-mail dated february 12, 2010. >> after the sunshine request

the gave me that. i am just telling you what the retaliation is they imposed on us. vice president goh: i am having trouble understanding what you are asking this board to do. >> i am asking you to deny this permit. if you want to go ahead, without them giving me any document, i want you to wait until the give me every document. i would ask them to build a wall if not. commissioner hwang: i am having trouble understanding what particular documents it is that you would like. >> i sent e-mails to building to ask them for information. they have not even responded. vice president goh: what is the date of your e-mail? >> just a few days ago. is this the e-mail where you

enumerate and everything you and the building department submitted to the port -- to the board of appeals? the file you will bring to the board of appeals hearing and your statements that you intend or will give before the commissioners? >> that is one of them. there is another one. i do not know before and after. just recently, and asked them about that permit and other questions. i did not bring that one with me. there was a person called william straw. he was the custodian of record of the building department. vice president goh: so there is

a subsequent e-mail to mr. straw and asking for additional items? >> yes. vice president goh: how long has a deck been there? >> if has been there for a while. vice president goh: these permits are meant to legalize this deck. this has not had permits, is that right? >> yes. commissioner garcia: is one of the things you are requesting to have that? the smaller than it is? >> i do not know. i believe when they submitted the plan it was submitted and inaccurate size. they claimed that the size was such and that in order to get approval, and in fact after they get the approval they say they are not going to do anything. the size is 160% larger than

they claim in the plan. i have to say -- before the variance hearing -- before the hearing, when i know the project -- when i saw they send me the notice, and asked them the questions. i sent them the letters. vice president goh: i am still confused. commissioner garcia: she is offering additional testimony. i am curious if you have been satisfied. vice president goh: i was not sure that was going. commissioner garcia: i do not feel it was a response to your question, but if you do, go ahead vice president goh:goh i was having trouble understanding. you said this deck was 163% larger than the plans. that is what you're saying. >> the existing deck is larger.

initially, they submitted a plan with many errors. vice president goh: and there were many revisions. >> up to today. i do not know the final one. the one i saw was still incorrect. i think this building department has inaccurate plans. in the public record, i request the information as well. vice president goh: ok. thank you. president peterson: you have a few minutes of rebuttal. >> i wanted to answer the question how long was the deck there. there were a number of claims made it twice, here as well as

in the briefs submitted by the appellant, that this debt has been moved several times. there has been no alteration of this deck prior to the time that my on to acquire the property in 1965. >> there have been 11 revisions made to the plans, at the request of the appellant for such things as window sizes, which were not relevant to the case. i just wanted to address the claims of spying or looking into the neighbors -- the

appellant's home. i just want to say that that is not the case. i want very much to see this matter resolved with my neighbor. i care very deeply about the neighborhood. i may not live there now, but that won't always be the case, and i very much want to see this matter resolved with my neighbor. these claims that she is making about spying are the same claims that she has made in approximately 40 other appeals that have been made for contiguous lots surrounding her property. i don't believe -- well, that's enough. thank you. >> thank you. anything more from the departments? seeing none, commissioners, the matter is submitted --

>> i have a question for mr. kornfield. we saw a photo of the deck. one question is whether the deck that was built or is built is in fact 163% larger than the plan. >> hold on one second. i will put something on the overhead here. >> thank you. >> i am with the department of building inspection. i am not personally familiar with this property, but i did make a request for a copy of the plan, which i understand the appellant was able to view. we don't make copies of these plans for the public because of copyright laws, but we allow them to view them. this plan -- i am going to try to zoom in a little bit.

it says to me, in the absence of any personal knowledge, shows me that there is a dashed or dotted line that shows the existing balcony, and then there is a solid dashed line showing the proposed balcony. the proposed is significantly smaller than the existing. that is what the plan shows me. i can't tell you anything more than that. >> and so the proposed deck has not yet been built? >> i can't answer that actually. >> and the appellant talked about putting some kind of privacy wall up? >> i believe she was suggesting that she would like to see a wall built at the edge of the deck to block it from her view

or from her property. i believe it is at this end of the deck that she would like to see a choir wall built. i call to your attention it seems like -- and i am trying to understand the plan, but it seems to be 7'9" from the edge of the balcony to the very nearest property line, and so i'm not sure if this is the back. i am not sure of the appellant's property line, but the closest line. it is 7'9" this way, and it appears to be 4'8" this way to the side property line. >> i believe you have mentioned in other cases that if it is greater than three feet from the property line, there is not a need for a fire wall. >> typically that is the case. that has been the case for many years in san francisco. >> could you also speak to the

sunshine violation allegations that have been made against your department? >> i'm not sure. could you repeat the question, please? >> some allegations were made that d.b.i. was not providing documents that were requested by appellant. i spoke with mr. -- with our public information officer, who said he had contacted the appellant, and information had been provided, and she was given a time to come look at the documents. i don't have any certification that she did so, but he told me that documents were made available. >> all right. thank you. >> the issue that is jermaine here is that this is an existing deck that is being legalized. >> that is correct, to cure a notice of violation. >> there was a variance granted on it a couple of years ago. tenants' of that variance, e

which i believe your department would refer? >> i would have to confer with the planning department, but i would assume since we are into the 11 revision that something has looked at it. mr. sanchez is nodding his head yes. >> i will ask that question. >> thank you. >> maybe he is trying to stay awake. >> mr. sanchez, a variance was granted. this deck was in existence. does the plan as proposed show that the existing construction conforms within the tenents of the variance? >> in response to that question, the variance granted

a particular envelope, and as the department director noted, the plans actually show a reduction in the deck. that reduction in the deck, with that, then the plan and the deck does conform with the variance. that reduction is being made as part of the variance. that is what we are here for, the reduction of the size of an existing deck and the legalization. >> and the fact that there was a variance is reflected in the permit? >> that is correct. that is how we were able to approve the permit. >> thank you. >> i have a question for the property owner. so you heard the appellant suggest that a fire wall or a solid wall on that side of the

deck -- i actually don't know what direction that is. you are facing the front of the building, the left-hand side of the deck. it is the north side of the deck, thank you. she suggested making that a solid wall. is that something you would consider doing? >> i don't believe it is necessary. >> we heard from the department that is doctor -- that a fire wall is not necessary. i am asking if that is something you would consider doing it as a good neighbor gesture? >> i might consider it as a good neighbor gesture, but i would need to give it consideration. i would need to think about that. i might. >> ok. >> commissioner, what i read from the document was they are requesting a 14 so 15-foot high wall.

i am assuming that is at the rear property line, not a fire wall adjacent to the existing balcony. >> oh, i see. thank you. >> you are welcome. >> mr. sanchez, could you shed some light on the wall issue? >> i would like to note for the board that any sense on the property line above 10 feet in height would require another variance. >> thank you. so we are in deliberations, is that right? >> i will start talking since i am already talking. you know, i hear the frustration of the appellant in terms of getting documents that they feel they need to see, and feeling like the departments aren't as forthcoming as they might be. we have had cases here where the department hasn't been able to find drawings, and it is

frustrating. i also know that d.b.i. at least under mr. kornfield has done a huge job in reoriginal ying -- reorganizing and making their files more accessible. i saw that in a tour of d.b.i. in reading the e-mail request from the pell apt -- appellant, it was hard for me to say what exactly was missing from the information that she had. that is difficult to say -- it would be difficult for me to conclude that she didn't have a complete packet. i didn't see -- we didn't have the plans. i saw the plans on the overhead, but i didn't see

anything that struck me -- given that there is a variance, the variance has already been finalized. i didn't see anything that struck me as particularly egregious in this deck, and i would be inclined to uphold the department and uphold the permit pending comments from my fellow commissioners. >> i move a similar opinion. the issue before us is what has been discussed through the materials, which is the legalization of this deck. the one thing we want to make sure that the department has done is that it conforms to the tenents of what the variance has concluded. i am convinced that it does.

similarly, i am not prepared to condition it on an illegal wall that is 14 so 15 feet high. other issues. there are a number of various agencies that oversee certain things, and it's up to them to then pursue through their investigative powers, whatever they do. >> it did seem that they wanted to rehear the variance, and that is not before us, so i am inclined to deny the appeal. >> commissioners, i move to uphold the permit and the department. >> any further commissioner comment? should we call the role? call the role.

>> that it is in conform ands with the variance? >> that is correct. >> the motion is from commissioner fung to uphold the permit that it conforms to the vare advance. >> thank you. the vote is 5-0. the permit is upheld with that basis. thank you. >> thank you. could you call i'd nine, please? >> calling item nine, appeal number 10-048, fred herrera versus the zoning a administrator. property at 763 university street. appeal of notice and violation of penalty dateded april 19,

2010, addressed to sandra and fred herrera, regarding the b.p.a. number in violation of the planning code. >> you have seven minutes. we will start with the appellant. >> good late evening members of the commission. my name is frederick reamer. i am a lawyer from the east bay and a friend of the herrera's for over 35 years. i am doing this pro bono. i have associated a law firm to put together the papers, and it is my job to put this matter on tonight. part of the firm is with me, and she is going to be handling some of the paperwork. thank you so much. the first thing we would like

to show you is a picture of the decision that was made in this case at a design review hearing . the decision was made on january 15, and a notice of violation came out april 19 against -- excuse me, june 17th of 2010. we are here appealing that decision, and asking for an abatement of the penalties, and asking that the matter be redefined by this board. when i say redefined, i am talking about an issue that came up during the course of reading the decision. as you can see, the decision says that one of the actions they want the people to take is to lower side and rear parafets to six inches. we didn't know what that meant.

we thought that meant that they wanted to lower them to six inches above the existing roof line and the drainage system which they call crickets. so, we submitted a proposal to do that. they came back with saying well, that is not what the commission actually meant, and it was redefined by a gentleman by the name of larry b amp dner. he's the one that redefined it. he said this is what the commission meant, and i'm not so sure that is correct. and i will tell you why. because if the commission had one or two possible interpretations to make, one would thing as a rational person that they would make the decision that would be the least likely to cause the most

damage. we feel the decision was made to bring them down to six inches above the roof line. mr. badner states, no, we want you to tear the roof off, tear the foam off of it, tear the drainage off of it, we want you to bring it down to the roof plate, and measure up six inches from the roof plate for that. if we did that, the damage to the house would require us to bring the roof down lower to compensate for the insulation reinstallation, and the reinsulation of the crickets. we have an estimate, which is rough because the contractor who made the estimate was not the gentleman who built the roof and built the addition. he estimates about $120,000 to bring it down to six inches above the plate.

this is the issue. this is why we can't comply. it is impossible to comply. it is impossible to determine what the commission really meant except to say i am not so sure larry dabner is the person that can speak for that commission. that is why we are here, because we want to ask you for a ruling as to what they meant so that we can abide by it. in the interim, i've talked to lisa wong, who is a member of the affected neighbors. she is on the north side of this tract. she is the lower neighbor on the north side. she is an architect, and we had a conversation today. she indicated, and she indicates on page nine of her letter, if you have had a chance to read that, that she was willing to compromise. even after the hearing, she was willing to -- do you have the big picture?

she was willing to -- according to her letter, she was willing to actually consent to driving them to the red line that was marked by a contractor. >> can you point to the red line? >> i am sorry we don't have a smaller picture. >> that is the red line there? >> yes. >> she on page nine said she agreed to do that even after the hearing so it would not cause all this disruptive destruction to this roof. that is what we would like to do. we would like to help the neighbors. we would like to drop it. we would like to get it done, restore some community to our little community and get rid of some of the anger that is going on here. there is a lot of ugly anger, and threatening gestures. it all has to do with a para fet.

we just want something rational to comply with. that is all we are asking for. we will do the work, and we will do it quickly, but we just need some guidance by this board to tell us what we are supposed to do. i don't think it is fair to assess us with a penalty without knowing what the definition is. we don't know how to comply with something that is ill-defined, and that is where we are here. now, i want to show you, if i could, another picture of what i just showed you in the big picture. these are various lines that are across it. the original line is the line by jerry that i just showed you. subsequent, below that, that is broken up is something else that was agreed to in this process. and the bottom