neighbors. >> as i told them, that is the most important thing to me. i would like to find a solution so we can both be happy. >> thank you very much. >> i am the co honor. when we purchased the home, almost one year ago today, tomorrow would be when year. we purchase this as a foreclosure and it was kept for repair when we purchased it and we had plans to renovate the entire -- and to make it more livable. we wanted to create a more homey feel. let me put a picture really quick. the overhead, that is the picture of the fence on our

side. there is a pretty significant slopes in our backyard. this is to the east of us, i believe. the grade from the west to the east is about a 70% grade. this slopes downward towards ms. fleming's property. now, this is the height of the fence. we did measure this and the fans tight is actually from about 8 feet and 11 inches. that is important because according to the san francisco planning code, we are allowed a fences up to 10 feet high. that is article 1.2. it says that you can have a fence of no higher than 10 feet in the backyard.

we feel that we are well within that limit, of course we took measurements. we have no personal issues with miss fleming at all. we find her to be quite pleasant. given that the height of the censuses in the standard, we feel that we should be allowed to keep defense the way that it is and it does offer some privacy that we desire. >> it did you consider other designs instead of the pine? >> no, we liked the look of the fence and which understand that some of the sense is there but not all of the fence has that. on the other side of the property, this is about 8 foot

tall on their side and there is maybe a 6 inch latticed there. >> let's assume that you are correct, is there any value to compromising with your neighbor? q. are the new neighbor. have you propose alternative solutions? do you acknowledge that this is impacting and creating shade. >> we understand that we like the look of it. there is no other way to do this. >> thank you. >> that sends runs along your deck and then it runs adjacent to a scare? >> the staircase is right here.

>> is this the end of the deck? >> this is right up behind this. >> actually, this sense and is before you have windows. >> , yes we have windows. >> this does not go across the entire length. >> i notice that your lot is quite large but it goes uphill. >> this all goes uphill. the sense is built on a great so if she was to take out her fans,

this would not be an open face. -- open space. >> mr. sanchez. >> under the planning code, they can have a fence of up to 10 feet in height without any requirement. additionally, they can have decking of up to 3 feet and they can redo the whole backyard. generally, the project is code compliant. one thing that is the concern is that the plans provided by the permit holder, they show that the fence is existing 5 feet and will be replaced by 5 feet.

the plan shows 5 feet, the existing fence. this does not call for an 8 foot fence, which would be allowed, but the plans don't call for that. >> one can make the assumption that this would be the same size. >> >> you are looking at the

permit. i think that one would read this as a five-foot high fence. as you pointed out, the permit itself says this is a five-foot high fence. >> is this measured? we heard that this was measured at grade. >> this is generally measured as an uphill or a downhill? >> this is up on the subject property. this was 8 ft. 11 from the base. i don't know if this is from the great or what we were looking at? i don't know where exactly they measured this from. >> what if there is a change right at the place of the sense? >> you have mentioned this from

the lower end. >> if we do this from the higher end, the person on the higher and would not be able to have a sense at all. this is a really difficult situation. >> this is difficult because a 10 foot fence on the permit holders property would be 25 cents on a neighbor's property. it seems like some kind of averaging can take place. >> is there any public comment? seen none, we do move into rebuttal. >> i don't believe i have anything to say by way of

rebuttal, i was hoping to find some local room so that i don't have that big solid wall of a kind. what it means for me now is that i will have a conflict cents to cover their fence. i don't want a 10 foot fence. in my hearing that i am stuck with this? >> how did you measure 10 feet? >> i have to go by impression because i cannot get on their side of the wall. >> you are saying they yours is approximately 6 feet and this is approximately 4 feet above that. >> now i would have to build a

10 foot fence to have some kind of harmony along the wall. it doesn't seem right to me that i should be forced to do that and lose my sunshine. >> it was 1 cents before with the latticework? >> yes. >> their permit calls for placing the fence and i see where they build. >> they built a branch in defense. >> mine is still standing and theirs is about four inches inside and their property what do i do now? >> we hope we can give you some relief that i don't know how"î'o

do that. sit tight. president peterson: mr. fleming? >> i would like to clear up a couple of issues mr. sanchez brought up. the height of the fence was measured not on the base of the deck but from the grade level. i will show you on the overhead. i am raising my arm. the tape measure goes all the way down to grade. this is a close-up. there is the top of the measurement. as far as the -- president peterson: what does that mean? >> there is a shadow there. there are 8 inches down there. it goes up. as far as the permit is concerned, we are learning as we go. when we hired an architect to do the drawings and while the

permit for us, it was our fall for not looking at the permit more clearly and really describing what was actually going on. that was our fault for not following up with our architect. commissioner garcia: let me ask you -- i am not going to require this, but it seems so far that your neighbor is willing to bear some expense to get some of her sunlight back. and if you were to take -- let us decide that latticework is 3 feet. i have no idea what height that led to start is. if she were to pay to have 3 feet of fence removed and lettuce put there, that would allow sunlight, and how would that affect your privacy? do you feel that would affect your privacy? >> my wife and i talked it over. we feel we just wanted more of

an inclosed feel to our backyard. i think it is just a matter of preference. commissioner garcia: it is so low it seems there would be no vantage point for somebody standing on ms. fleming's property, looking up. >> she does have a bench on the side of the fence that she can stand up on and look into our backyard, which she has done in the past. it bothers us a little bit. but we feel we just like the look of the -- the solid look on our side. president peterson: thank you. anything further from the department? commissioner garcia: mr. sanchez, what effect does this have on anything, the fact that unless i am confused the permit states that a fence is being replaced when there was no fence

there before the was replaced, that this is a brand new fence? >> if the plans in the permit are incorrect, it is up to the department of building inspection to determine what would need to be done to remedy that. in terms of the privacy issue, there is a substantial briard -- mid blocked open space in the subject walk. -- midblock open space in the subject's walk. put that on the overhead. given how the properties curve out, i think a 3 ft. trellis at the top would provide adequate privacy, in my opinion. additionally, the neighbor's property is substantially lower than the permit holder's property. commissioner fung: that is the

subject area? >> that is correct. it has been updated. it shows the deck. commissioner garcia: what is the -- knowing now that the permit is inaccurate, what is the effect of that? what would be done about that? >> i will defer to department of building inspection. for us, it is still compliant with planning code. it is really an issue about consistency with the building permit, best left to the department of building inspection. commissioner garcia: thank you. >> laurence kornfield with the department of building inspection. i do not think we would find this to be a fatal flaw in the permit process, replace instead of install a new fence, but it appears not to be correct. i think that might broaden the scope of how you might choose to

address this, but i do not think we would issue a notice of violation and say "get a new permit." the fact is they are here and you're hearing the issue. this is probably the time for discussion. president peterson: is there any value from you going to measure? we are hearing from ms. fleming it is approximately 10 feet. we're hearing from the other side it is approximately eight. have you measured the fence? >> i cannot tell you if we actually measured. somebody looks at it to make sure it is a parts of it. if you wish us to, we certainly can come out. president peterson: thank you. commissioner garcia: ms. fleming, can i ask you a question? when mr. sanchez put up the graph, i did not happen to notice what was no. and what was south. what is the attitude of your backyard? your backyard faces which way? >> oh boy.

it is a northwest, the backyard. commissioner garcia: so the sun comes up northwest over their property or away from their property? >> away from their property. commissioner garcia: away from their property and northwest, so south is to the front of your house. >> that is right. and as i said, that one photo, that has the shade on my roses. commissioner fung: it affects the afternoon sun coming out. >> if i may add something, scott sanchez, planning department's staff. i would like to put on the overhead a parcel map that has the no. aero. the shaded property is the permit holder's property.

the appellant is on the adjacent block. that is why they do not show on this. but it is directly to the south. i think it would probably be more the afternoon sun that would be impacted, especially more so in the wintertime when the sun is lower in the sky. commissioner garcia: the time when you would most like to be in your backyard. >> commissioners, the matter is submitted. commissioner fung: a couple of things i would note first, before i for a direction of would like to propose. the deck is a fairly substantial back across the year -- across the rear of the property.

the access to that that occurs through sliding doors -- the access to that deck occurs through a sliding doors in the larger dimension of the deck. the area we are talking about is actually the side of the house. i can understand the desire for greater privacy where they have windows there, but that fence runs all the way across the deck and goes across beyond the point of the edge of the building, the rear wall, and the windows that are there. privacy, as we know, is a very nebulous thing in san francisco, and we hear many different types of definitions of what is desirable privacy.

if i had to guess, i would say that the bulk of the deck that they will utilize the most is that which is directly adjacent to the doors and access point. that is where i would put my furniture. that portion that is against the property line is something that does prevent somebody from mrs. fleming's yard looking upward and potentially catching a glimpse of what was standing there. but it is also interesting, because if you look at one of the photos there are a lot of homes that are 200 feet or 300 feet up above them that can see everything on the deck. admittedly, it is quite a ways away. where i am leading with this is a think the permit holder needs to provide some level of accommodation, and that is that

portion of the fence -- at least the portion of that fence needs to be reduced. the minimum that could be reduced is two guardrail heights, 42 inches. that means that that reduction probably is in the neighborhood of about 2.5 feet, i am guessing. either it is done that way or it is done at the trellis, where there is some transparency through it. not a trellis. it would be a lattice, where there would be some level of transparency through it. it is interesting, because if that fence was only a guard rail, it could be a ticket type fence, and therefore they get the protection from the guard rail and there is significant

light through. i am not sure that is what their desire is, but i think it would be my intent to reduce some portion of that fence that would probably stretch from the rear of the deck some appropriate to mention. commissioner garcia: and we would do this -- defense is upright, it is code compliant, and we would do this based on good neighbor policies? commissioner fung: yes. and if we were talking about reducing the height of the deck , i do not see that as a substantial cost. i know people get into what they want. i am not sure that they will

see that great of a privacy impact with some reduction of that fence. commissioner garcia: and who would bear the expense of reducing the size of the fence? commissioner fung: let us hear from the other commissioners. vice president goh: i would agree with commissioner fung's suggestion. in terms of who would pay for it, i know we had discussed -- you had mentioned something about perhaps the appellant, but we are here with an 8 foot 11 inches fence where the plans call for a five-foot high replacement fence. i know mr. kornfield said we might as well take care of it here, which we can do, and it is

probably not in keeping with their permit that they built that. commissioner fung: i disagree with that. i think mr. sanchez was stretching a little. i would read that as replacement with new and there is no guarantee what that new has to be. president peterson: 1 thought i have is if we reduce the height of the fence, that will be borne by the permit holder if there were a compromise in the leftist formed by both parties. vice president goh: that sounds right for me. commissioner fung: you want them to comport with something that neither would fully like but they are willing to accept rather than us forcing it? vice president goh: that sounds right. president peterson: certainly. commissioner garcia: you have to come up here to speak. >> my initial thought on your

comments is that at least i feel that you are starting to dictate how we can use that backyard of hours, and i am feeling a little uncomfortable with that. it is our home. it is our first home. i understand where you are coming from. i guess we do not know how we are going to use that backyard yet. to say that we would put most of our furniture on one side as opposed to the other side, i am a little uncomfortable with that. in addition -- commissioner fung: actually, i am too. >> [laughter] i do understand where you come from. the access to the deck is from a sun room that has windows all around it. it is not bordering our house. it is bordering a sun room that has windows all around. downstairs, there is also a

window where the stairs go. commissioner fung: i guess we are looking at a little bit of equity -- equitable situation for both parties. i mean, i have an idea of what i would suggest, but i would rather the two of you come up with something you can both accept. >> i think that is why we are here today. we like the fence this way and ms. fleming once the fence another way. we cannot seem to find a compromise. that is why we are here. president peterson: i think we discussed one, if you would prefer just a shorter fence, or if you think a taller fence with a lattice would be more preferable. we will ask the appellant to bear those costs. >> as far as a shorter fence, i think it becomes more of a

safety issue on our side. president peterson: commissioner fung has addressed that. it is a minimum guardrail height and you would be where you would need to be for safety if it came down to a certain amount. >> i feel that we would -- president peterson: later, we would have the inspectors come by and check that it is at 8 ft. 11. it is stretching credibility. it looks greater than 9 feet, your fence. we could continue and have them investigate and follow up on some of the problems you have had with the permit. there is that choice, too. >> we would be open to having them come out and do it from that measure. i think from ms. flemming's yard, it does look higher. there is a victim grade in the yard. as to shortening the fence, the fence on the deck level is a little over 5 feet there.

if someone were to fall onto her side, it would not be a 5 foot fault. it would be a higher fall. commissioner garcia: that is why you might like the solution of having it be the same sized fence but having part of it be like this work. what this board is leaning to, i am not sure, seems to be that because you are both neighbors, and you have in every regard a lovely neighbor -- you are very fortunate -- to go out and speak with your neighbor with the understanding that the desire of this board now is you are very unlikely to walk out of here with it if we were to vote. i think what we are doing is offering you the option, or asking you to accept the option of discussing with your neighbor some solution other than what is there now and also to delve into who is going to pay for what it will ultimately be.

and i think unless ms. fleming has something to say, i think we are ready to offer a motion and vote. so thank you. commissioner fung: motion to continue. commissioner garcia: that would be my preference. commissioner fung: how much time would you -- both parties would like to take and discuss this issue? two weeks? vice president goh: commissioners, i heard or i thought i heard -- commissioner fung: pardon me? vice president goh: i thought i heard the permit holders say he was not interested or thought it was futile to discuss it with his neighbor. i would be disinclined