commissioner hwang: and that insufficiency alone makes the permit that was issued in valid? >> i believe there are many other reasons, but that alone would make it in sufficient. commissioner hwang: so what would have been indicated in these? what you think they're trying to hide? >> i think if you look at the red areas, the impression they want -- with your permission, this is what i believe. if you look at the three photos usf submitted in their brief and you looked at this, they all show a six-foot sidewalks. the impression is they it are only 6 foot sidewalks in the area. this is my brief it in exhibit to the original brief, i tried to honestly show where the streets were and note there are 9 ft. sidewalks and 12 ft sidewalks. i was trying to give a complete picture. commissioner peterson: is your

argument that the damage to the public is processed? >> thank you, my argument is both. in this process, because i think one of the things that was of concern to me, just as a member of the public, i like to know when government agencies make decisions that they have the facts and that they may the decisions with proper code revisions. i think that is a minute -- i think that is good for the public. here we have procedurally where dpw did not have the facts and they did not provide evidence that would make them sufficient, and the answer is substantive. even if dpw had made and gathered all the correct facts in their determination, i also think substantively, the commission should rule the permit should not be issued. as one example of the substance,

this encroachment is not in keeping with the neighborhood. that is a factual, substantive issue, not procedural. commissioner peterson: thank you. >> we can hear from the permit holder now. >> part of me just a moment. my name is terry o'brien. i am here on behalf of the university of san francisco. the encroachment permit authorizes encroachment for a

fence and retaining wall adjacent to the baseball field. it is exactly the kind of encroachment contemplated by the public works code. specific examples of minor encroachments that can be authorized. i want to spend most of our time orienting the commission to the situation. this aerial photograph shows the usf campus, fulton street at the bottom of the picture, golden gate avenue at the top, the baseball field at the right edge of the drawing. the university terrace neighborhood is unusual, sort of in between the two campuses of usf. mr. rabbitt's residents is on the western edge of the property. the encroachment is on the

eastern and out of this. it the next slide? but this shows a closer look at the baseball field. the baseball field itself is entirely on usf property. at the encroachment is on this small strip between the sidewalk and edge of the baseball field that is shown at the top of that drawing. this is a survey that shows the lengths of the entire encroachment. in historic fact, this property was actually originally dedicated by the university of san francisco to the city to make the golden gate avenue right of way. as we look closer to give you a better look at that survey, this shows clearly the chain link fence, the outfield fence, the left-field fence out of the baseball field is on usf property as is the high netting

installed to protect from fly balls. and the encroachment area of this 6 foot strip is a second chain link fence and some landscaping. this is a photograph that shows just the sidewalk in front of the encouragement. -- in front of the encroachment. this is the sidewalk looking east. but the encroachment is this fence and the vines that were planted by usf to help screen the baseball field from the view of the right of way and the adjoining neighbors. the tree in the background of this photograph is also within the encroachment area. this is from the same spot, booking and the other direction, along the baseball field -- looking in the other direction, along the baseball field. this is a photo from the opposite side of the street, showing the polls and the high netting.

we had a complaint from some neighbors some years ago that baseballs were coming out of the field and into the right of way and actually into houses, so a higher net was installed a couple years ago. the landscaping and the fence in the foreground is the subject of the encroachment permit. this actually gets us behind the fence and shows what is taking place inside the encroachment area. on the right is the fence that is the outfield wall, the poles holding the net, which is all on usf property. the retaining wall and the fence on the left side of the property is what is authorized by this minor encouragement. the retaining wall is about 5 feet high at the western and of the encroachment area. this is from the same spot looking the other way at the back of the encroachment. obviously, to widen the sidewalk

would be a major engineering undertaking. this is not a matter of usf just appropriating this property and using it for itself. that is not part of the baseball field. it is a required transition between the height of the baseball field and the sidewalk and to protect the public from this change in grade and provide additional security adjacent to the baseball field. it is true there is a chain link fence and netting to protect from baseball's, but the second fence at the sidewalk. a few more pictures. this is looking back east, showing the change in grade. another detail on the survey, beyond the fence, the increase amid goes further. that is where those larger trees are in the photograph. ia closer look at this, the fins

that have grown into the fence, and those trees. an important screening device to allow -- to protect the neighbors from looking down into the baseball field. this basic condition has existed as near as we can tell for about 50 years. the fence along the sidewalk was rebuilt and about the same location. there may have been a small strip of dirt next to the sidewalk before that, that was in 1991 that the fence was last rebuilt. but the sidewalk has never been longer -- excuse me, never been a wider than 6 feet, to anybody's memory. so we think this is exactly the sort of minor encroachment that is contemplated by the public works code. we think the public works department exercised its discretion properly in granting

this permit. the reason they were able to do so so promptly after the application is they had already been an out and inspected the site in response to mr. rabbitt's original complaint and prior to the issuance of notice of violation. richard makes a major point that neighborhood pattern is one of the factors that dpw is required to give disregard, among a list of other factors. neighborhood pattern, not neighborhood encroachment pattern as mr. rapidt described it, but neighborhood pattern is one of the factors, required pedestrian traffic and emergency egress requirements. he also makes clear that on golden gate avenue, on this side of golden gate avenue, the pattern is in fact 8 6 foot sidewalk. thank you. commissioner fung: counselor, a

couple of questions. you indicated that the age of the various things in question the security netting and the high poles was in the last couple of years. that chain-link fence was 1991. what about the retaining wall? at >> there has been a retaining wall of one sort or another in that area for quite some time. there used to just be it would lagging. the retaining wall that was shown in those pictures i believe was also built in 1991, at the same time that the fence was rebuilt. some of the old pictures that mr. rabbitt pointed out that were attached to dpw's brief indicates there used to be a higher fence at about the same location as the current fence is. there used only be one fence, at

about that. commissioner fung: thank you. you mentioned in your brief and also earlier today that of the giving away of certain property for the construction of the street, is there a correlation between the dd in of that property to this encroachment? -- to the deeding of that property to this encouragement? >> i think it was probably some confusion. commissioner fung: no, is there any legal -- >> it is historically interesting, but i do not think there was any legal substance. commissioner fung: would you say it is not possible to move the fence -- excuse me, it is not possible to remove the encroachment?

actually, it is possible if that fence moves to a certain degree, and it may not capture the entire encroachment. >> i don't recall specifically using the word is not possible. it commissioner fung: or something to that effect. i'm almost anything is possible. it would be because of that change in grade. it would be a major undertaking to put in and install a new retaining wall. commissioner fung: no, i was referring to the fact there is some space between where the retaining wall is and the edge of the sidewalk. that the chain link fence is pretty close to the edge of the sidewalk. >> if i could put the picture up again? you are right, there is a short distance -- commissioner fung: and that amount varies as it proceeds onward, i believe? >> i suspect it does. i would have to look at the

survey to see where it does. the other point of course is divided and that france has taken many years to fill in to the degree that -- the vine in that defense has taken many years to fill lead to a degree that it has. commissioner fung: the property line? >> somewhere near the bottom of the retaining wall and the poles for the netting. commissioner fung: thank you. commissioner hwang: i have a couple of questions, also. i have a question about the reason for the fence. the first question actually is the fence was existing over 20 years without any permit. is that correct? >> without any encouragement. commissioner hwang: without any encroachment permit. it's only at the time the complaint was filed --

>> that usf understood that was an encouragement at all. commissioner hwang: during your oral presentation, you talk about protecting the public. have there been any safety related issues with children or members of the public attempting to in any way harming themselves? >> there have been a lot of issues around the baseball field. again, this fence has been there quite some time, so, no, there have not been issues with children falling into it -- commissioner hwang: that was one of your arguments, to protect the public you need the encouragement. at that to protect the public, you need a fence that approximately -- he needed a fence at approximately this location. if you were going to have a 5

foot drop next to the sidewalk, i think you need a fence between that drop and the sidewalk. we also think, though it is the height of the interior that is on the outfield, because of the change in grade, it is not significantly higher than the height of the sidewalk. so obviously -- what has been built above that now it is out netting, it is there to stop baseballs. it is not there to stop people. the interior fence, again, if there was no higher fence at the sidewalk line, would have to be substantially higher itself to protect from people accessing the baseball field from there. did that make sense?

commissioner hwang: i think so. just when i looked at your photographs, it appeared it was more a way to enclose the field and protect the field from the public. that seemed to be more the reason for the fence, rather than the safety concerns of the public. >> i think it is both. again, i think this condition -- something would need to be done because of that change in grade. yes, i agree the solution that was settled on 20 years ago -- or, frankly, perhaps 50 years ago -- of having the fence along that edge of the sidewalk was as much for protection of the property as protection of the people. i would point out that is appropriate grounds for issuance of an encroachment. ok? commissioner hwang: thank you.

>> madam president, mr. vice president, congratulations. i am from the department of public works. as you can see from the brief, what the department believes, we have issued an encroachment permit to usf appropriately. there are a lot of questions. we understandt mr. rabbit's point of providing more pedestrian path of travel, more landscaping to the public right of way. however, we also need to temper that in this case with what the department believed to be a level of fairness. had this not been the university

of san francisco, had this been a regular private citizen with a similar offense that encroaches into public right of way with an elevation difference of anywhere from zero to 13 feet, as described in my brief, with the department direct that citizen to remove the encroachment? i would suggest that had the department required this of a citizen, the citizen would have came to this board as an appeal with a denial of the encouragement permit and suggest the department was very heavy- handed and this case and point back to this process. as to the substance of to this encroachment in the brief, based upon our research prior to the notice to usf, we believe this

retaining wall or something similar to it exists at this location prior to 1991, based upon aerial photography we did of the city at that point. it is an existing encroachment. typically, the department requires a courtesy notice, a courtesy notification to the public when there are new encroachments. when there are existing encroachments, we would not as a practice. the code does not require the department to provide notification to the public when there are these types of encroachments. similarly, prior to the adaptation of the board landscaping permits and the public right of way, a majority of the landscaping along golden gate avenue would require a minor encroachment previously. all of these encroachments exceed, in many cases, the 25% rule, as identified by mr.

wrapped it -- mr. rabbitt. this is similar to other sidewalks, however landscaping, driveway ramps, that exceed 25% and to the public right of way. these are situations the department evaluates carefully and issues a variety of encroachment permits to authorize these types of construction. we believe that we acted appropriately in issuance of these permits, and we would suggest the department of pulled the department's decision and denied -- uphold the department's decision and denied the appeal. commissioner fung: as far as the department knows, has this elevation difference been there for a time equivalent to when

the street was deeded over? >> i would suggest so, because the baseball field typically needs to be on a level surface. based upon the maps i have seen, and extends nearly to golden gate avenue. the street slump, as my brief stated, if we assume 0 elevation, by the time he reached the other edge of the baseball field, there would be an elevation deficit between 12 and 13 feet. so something must have happened in order to retain the level area of the baseball field, in order to make that work. so a retaining wall of some type was constructed at some point. commissioner fung: okay. can you talk a little bit to how the department of use this particular as a minor compared with a major encouragement?

-- encroachment? >> this would be very similar to other appeals that came to the board. 791 bruno comes to mind right off the bat, where there was an existing at unimproved right of way, ok, where the property owner construct something beyond the 25%. based on the nature, we deemed it a minor encroachment permit. this is an existing condition dating back to at least 1991. there has been no, based upon the records we have, there have been six complaints in this area. only one references to this fence. obviously, it is an existing condition. we determined that because of the existing condition, along with the elevation difference, but they needed the retaining

wall to satisfy the construction of the baseball diamond, the age of the encroachment, that it would be appropriately issued as a minor encroachment because it is an existing condition. commissioner fung: what were the other complaints? >> bottle sidewalks, damaged sidewalks, other similar things. -- local sidewalks, damaged sidewalks, other similar things. there are no complaints that we can identify related to the narrowness of the sidewalk. president goh: i have some questions. with the 6 feet width of the sidewalk encroachment, there are signed polls and what not? is that correct? and so with the encroachment and the sign polls, is that enough for, for example, wheelchair's to get through? >> currently, there is

approximately 18 inches on the face. six-foot sidewalk, that leaves a little more than 4 feet from the fence to the pole which would provide the minimum 4 feet of travel required by state law. president goh: tight squeeze. does this photo come with your package? i cannot remember. it came apart. the vegetation is encroaching and the encroachment. how does the department deal with that? that means the 6 feet appears to be down to 4. >> typically what we do is evaluate the situation. if it is a minimum of 4 feet, which would satisfy state requirement, there's not much we would need to do. if it was less than 4 feet, we would notify the property owners to trim the vegetation to provide a minimum of 4 feet.

president goh: okay, thank you. vice president garcia: how did dpw miss this? >> the department did not necessarily know about this encroachment previously. it was only after we received a complaint that we sent an inspector out there and identified it. i don't know if there was every building permit or any thing. we cannot find anything in our historic archives related to this. therefore, we believe it was in on permit encroachment. vice president garcia: would usf have to pay for the privilege -- one wonders if there are other sources of revenue for dpw out there -- >> that is a question, commissioner, i cannot speak to that. >> thank you.

is there any public comment on this item? please step forward. president goh: you can submit a card after you speak. >> after you speak. president goh: how many speakers? show of hands? >> somebody please step forward and speak? >> my name is jenny, and i am the next-door neighbor of richard rabbitt. there has been a lot said about the fact the fence has been there 50 years and why didn't somebody speak ups and art. -- speak up sooner. i think we have asked citizens to walk more. actually, i have never walked in that area until i started to be a tree hugger.

that is why i think it is a board to look at the issue now. and i know that some of my very fine neighbors are ok with the clearance around that fence. some say i live six blocks from it. i walked in that area because we are fortunate of to have a lucky store and trader joe's. even though i live six blocks away, i care. " thank you for listening to us. vice president garcia: your issue would be you would have them removed the fence or do more landscaping or something to make it more attractive, less on attractive? >> i would like the fed's move dover because of it like more space to walk. -- i would like the offense moved over because i would like more space to walk. one issue that has not been brought up, there are huge suv's.

i believe there is 4 feet left after an suv parked there. when i go grocery shopping, i just carry groceries, and i make sure that i carry a like amount. but i used to have a suitcase- like thing. that does not fit in that area very well. not only is there at the fence, the cars, the signs, the posts. have you seen the posts? they are big. they are 8 inches, maybe 12? it is not a comfortable walk, and i think we're trying to encourage people to walk. why don't i walk on the other side? when i am carrying groceries, it's very warm. there are times when that is the shadyside of the street. that is what i would like to ask for a sidewalk on both sides of the street. thank you again. >> thank you.

next speaker? >> hello. my name is chris. when you look at richard's diagram, you see that golden gate has t. i am the first half across from the baseball field. i see this fence and sidewalk all the time, all the time. i brought some photographs, my own photographs, of what is involved with this fence and sidewalk. it in this picture, you see there aretwo trees. is that clear enough? there are trees that would have to be removed if you move that fence back. you will lose a couple trees. i have another picture. iyou can see those