just getting information, maybe a continuance to understand what is involved. it is hard for me to read as depictions. this is not my field. i would like to hear from people who actually worked in it. commissioner fung: i think there is -- commissioner hwang: that is just the one piece. otherwise, i am pretty much ok. commissioner fung: one could apply that to the other piece, but i would argue against it for the following reasons. when you have the structural aspects of the support for that offense, it is not something you can just move next to a retaining wall. there are issues of how the courses work in the pressure against the wall. there are questions as to that side of which open up also. the other side you're talking about is the definitive aspect. it probably could be used in

some type of a beautification aspect with the neighborhood in terms of creating some kind of garden wall, or however you want to look at it. commissioner hwang: right now, as i understand it, this huge fence -- commissioner fung: they have already committed a some omnipotent amount of money. one would expect -- a significant amount of money. one would suspect the planning attendant to that would be more comprehensive than for us to look at one small piece of it. commissioner hwang: i agree, but that is not before us. we have no way to weigh in on the decisions made in the settlement agreement. whereas here what is before us is that fence and the encroachment issue. that is what i would be more inclined to continue for the purposes of hearing from dpw about what is involved there. if you could talk about what is involved in your jurisdiction, i

would appreciate that. >> it is the nature of the encroachment. right now, there is a miner encroachment. -- a minor encroachment. right now, one of the possibilities is to relocate the fence and do other improvements to it. but understanding, based on our earlier discussions from citizens, is that it will take approximately two years to settle on a plan. it could very well be that the department would reevaluate this in the process, as relates to the improvement along golden gate avenue, and make a decision to revoke and reissue a new increment decision from the retaining wall at a later date. commissioner hwang: i know. i understand it is a push off, but what is before us is the fence. we can ensure the department

said it now, within a tight time frame, rather than the two years outside your control. >> because it is an encroachment permit, it can be revoked at any time. there can be conditioned on it. commissioner fung: she is saying well she has the opportunity that we could strike well as hot. commissioner hwang: thank you. commissioner fung: i am sorry. is there -- perhaps the project sponsor would like to respond to the suggestion at this point by commissioner hwang. >> i did suggest to mr. hwang that i think we would welcome a condition of approval that requires that suf a-- usf and uta include consultation with

dpw in the ongoing planning process. we did have a chance to look through our settlement agreement. there is an outside date of three years. at that point, the parties agree that if they are not agreed it is submitted to arbitration. we have an outside timeframe intended to function as an outside time frame. we hope to do it sooner than that. if there is really a focus on that eastern and of the encroachment, -- eastern end of the encroachment, we would look to include dpw in the ongoing community process and direct the director to specifically consider, as part of that process, whether some modification of that fence might not be appropriate in the future. commissioner hwang: the problem

i am having with that is both parties are now before us today. you are referring to a neighborhood group that is not before us to talk about their concerns. we are here with richard rabbitt. >> i am actually suggesting to you that the university association is the most directly concerned and the most appropriate to be involved in this. mr. rabbitt is not. i think the process we have worked out with the neighbors to look at golden gate avenue in a comprehensive basis, which mr. rabbitt voluntarily opted out of, is the process that also -- that ought to be considered. the fact that mr. rabbitt is left out of the process is entirely of his own choosing. commissioner hwang: i would like to hear from mr. rabbitt. >> commissioners, thank you for the opportunity to address this. i agree with the commissioners

that it seems to me that the issue before the commission is dealing with the specific issue of defense and the parties to this appeal of the parties that submitted briefs on the issue. with all due respect, i want to submit my concern that the board seems to be considering a settlement agreement between the university of san francisco in the neighborhood association which has nothing to do with this appeal. it is irrelevant. as the commissioner noted, the neighborhood organization is not even here. i was not going to speak to this, but since this is something you are considering, i want to make clear that i have written confirmation from the neighborhood association that they have never checked with the membership on this issue. the board provided a little -- a letter of support to the university without actually checking with their members. i would never bring that up,

because i do not think it is relevant to this proceeding, but if the board wishes to take a broader perspective and is looking at the overall agreement between certain people in the neighborhood and the university, i think that is relevant. if the board is really interesting and getting -- interested in getting the impact on the association members, i do not think you have that information in front of you. i am happy to answer any questions. commissioner hwang: i should have been more clear. what i wanted you to address was the potential modification and looking to dpw. would you be satisfied with that type of remedy? >> i would not be satisfied, to be clear, if it is that the border -- that the board orders usf to remove the fence in that portion of the field and the order was limited to that

portion. i would be willing to accept that as a reasonable outcome if the suggestion is that the university merely be asked -- that as a reasonable outcome. if the suggestion is that the university merely be asked to speak to dpw and something might come out of it, i would view that as essentially upholding the permit with language that is not particularly helpful. commissioner hwang: thank you. commissioner peterson: i thought there was a member of the terrace association here. would you mind coming up for a second? >> chris schiffer again. i was actually one of the four people from the university terrace who worked for nine months, all the time we spend,

to work on the settlement agreement. i am the only person in this room who is a neighbor working with the group and usf. that is a reason i have the time line. i have a background. i am not on the board. that also needs to be understood. commissioner peterson: thank you. that clarifies it. vice president garcia: i don't feel comfortable about weaving a settlement into the discussion. i think that commissioner hwang raised what i would deem to be a reasonable request, and that is to know what the implication is. we could move defense back in

the areas where it is feasible. it appears those portions of the fence have no landscaping in them. as long as it did not affect uprooting and help the tree, which is the purview of dpw, i think it is reasonable. we could get that information before us. how many linear feet of fencing can be moved and how much additional land can be captured, and at what cost? if it is very burdensome on usf, i might not be for it. if it is good to capture a linear foot, 25 linear feet, i don't think it would be worth it. but to have that information before us would be very

worthwhile. i am in favor of assuming that is what the other commissioner would want. i would be in favor of continuance so we can have that additional information. defense is pretty much a straight line. it could be a design issue. i would welcome knowing more things about this. also, mr. o'brien, i think mr. rabbitt has set standards. anyone in the community -- i would have standards and i live miles away from usf. to say he does not have due process or the right to pursue his issues because he opted out of some arrangement -- i do not think you intend to make that

statement. president goh: i agree to having a continuance to flesh some of this out. i don't think anyone is harmed if we have a hearing later, if it is not a midnight hearing. vice president garcia: we are placing the burden, i guess, if the motion passes, on dpw. commissioner peterson: right. that is why i asked them to speak to that issue. i will make the motion. do you want to speak to this first? >> the department would. we will do a re-evaluation. we would have to hire an arborist or engineer as needed to look it the ability to relocate this fence. vice president garcia: i am not asking if the fence can be relocated. i am asking if there is a portion where it would not affect other landscaping without harming things.

commissioner peterson: just an evaluation. vice president garcia: i do not know what would be required, but it seems like for level ground -- >> de want -- do you want dpw to submit a brief, or the one the other parties to comment after dpw? i understand you want dpw to look only at the parts of the feel that our level. president goh: how about if we freeze it where there is no retaining wall and no significant change in grade? because i think that -- commissioner peterson: i think a change in grade is different than level. commissioner hwang: there is level and then there is 3 inches. vice president garcia: do we need to define significant? mr. rabbitt got up and said that

in some cases it is level with the sidewalk. president goh: i up the area that had the -- i could be mistaken. i thought the area that had the trees was -- there was some concern that fence movement would require removal of the trees and that the area on the other side of the trees was not exactly level. i thought there was a sloping area. commissioner peterson: why don't we give some discretion to dpw to make the decision where feasible to examine parts of the fence that are part of the encroachment to determine -- to do an evaluation? i would like as brief airport as you can provide -- as brief eight report as you can provide, written. >> do you want to set a page limit? commissioner peterson: 3 is pretty brief. if you need more pages, just let

us know. commissioner fung: commissioners, i do not have a problem with continuing this. but i do not want to make a major planning efforts separate from what they are going to get involved in a planning effort. commissioner peterson: what i am suggesting in this motion is a move to dpw for information on any feasible area that is part of the scope of this encroachment permit to determine whether, if at all, it makes sense or we could

potentially move that fence to allow for greater access for the public. the reason i think it is more appropriate than to wait for parties outside of this room is that it is not within our purview to wait and see what they do and how that -- hope that dpw is involved in that process. what is before us is the encroachment permit. president goh: if they did not know about the $1.20 million in the supplement, i think we should retain jurisdiction over this issue at least for now. commissioner peterson: if that is sufficiently clear, i would like to make that motion.

>> to march 16? it might depend how much time dpw feels the need to prepare this. -- they need to prepare this. >> i believe march 16 will be sufficient. there is not too much to evaluate. we will give you at least an idea of the magnitude that would require. >> the motion is to move it to march 16. is that correct? do you want to allow any reply brief by the parties, or do you want just the said middle from -- submittal from dpw? commissioner hwang: brief reply briefs. >> your brief would be due two thursdays prior. would that still give you enough time? commissioner hwang: we can move to march 23 if that -- how about

march 23? >> we can move it to march 23. your brief would be due to thursday's prior. -- two thursdays prior. do you want to say three pages per brief with unlimited exhibits? ok. call the roll, please. >> the motion is from commissioner hwang to continue this matter to march 23. the hearing is held and closed. this allows dpw to submit additional information. additional briefing is allowed at three pages per party. dpw is due two thursday's

prior. commissioner fung: aye. president goh: aye. vice president garcia: aye. commissioner peterson: aye. >> the vote is 5-0. >> item 8 has been withdrawn. we can move on to item nine. >> item 9, appeal and 10-123, mario and teresa martinez, appealing the imposition of penalty on october 26, 2010, for construction work done without a permit. >> my name is ms. martinas-

smith. i am the doctor of mario and teresa martinez. -- i am the daughter of mario and teresa martinez. they have asked me to speak on their behalf. i think this could go quickly and be your easiest case of the evening. the issue is that my parents, who are retired, have many health issues going on, but the primary issue is the fact that my mother has major spine problems. she has had numerous amount of surgery'ies. she walks bent over, as you would notice. it was recommended by her doctor that she exercise in water to help the circulation of her legs. this was two years ago, after she had her breast surgery. my father, in trying to help her with the issue of keeping

circulation in her legs going, went out and bought a jacuzzi show she could exercise at home and get up every morning and get her circulation going so she could have a better quality of life. unfortunately, they live at the bottom of a hill, where the wind is extreme in their neighborhood. if you are familiar with our district, we have 90% of the year blog or heavy rain -- or heavy wind. it was uncomfortable for her to exercise in the jacuzzi. he had the bright idea to put a cover over the yard. two years ago, my brother and my dad built this structure that sits over the jacuzzi. never in their wildest imagination did they think it would need a permit for what seemed like a very simple structure to keep the wind off of my mother while she exercised in the jacuzzi. they built the structure. they were hit with -- we do not know how it happened, or who

report to them. the structure can be seen as you drive down the hill, because their houses at the bottom of the hell -- their house is at the bottom of the hill. someone must of reported it because they saw it coming down the hill. they are here to ask -- in the process of having the jacuzzi for a couple of years, they ended up having to pay numerous fines and penalties, and also all the fees they paid to three separate architects that the requested plans be drawn, which were always rejected by the city. i also called several architectural agencies, asking if they could come and assess the structure and submit proper plans. as a cold, everybody would laugh at me because the structure -- as i called, everybody would

laugh at me because the structure was so small and it did not seem there would be a permit necessary to keep it up. two years later, they did remove the structure because the could not afford to pay the penalties. right now, at what they are asking is a reduction of the penalties they have paid. they have removed it. their health issues continue to grow, and their health costs and everything else continues to grow. they are not well. they cannot afford the penalties they have been charged for the jacuzzi that they did not realize at the beginning was going to need permits. we are here, basically, to ask you if you could reduce what they have already paid. i do not know if you have the information as to what they have paid so far. i have that information here.

we are basically asking to see what can be done to reimburse some of those penalties they have paid, along with all the other fees they submitted for the permit that was never -- the plans were never accepted by the planning department. i do not know if you have information there regarding the different plans that were submitted. they kept going to the city planning department with different plans that different architects had put together, but nothing was ever accepted. this is where we are. this is why we're here. i do not know if you have any questions. commissioner fung: what you build looks like it probably covers the entire yard. let me finish, please. that is one issue.

it covers all kinds of plantings and other things, much more so than just the jacuzzi. secondly is that there are two reasons, probably, what you had difficulty. one is the size of the structure in terms of the would you used. it would probably never have passed any type of analysis. the legalization of that would have been quite difficult in terms of what happened the rear yard said becton everything else. the issue -- the rear yard setback and everything else. the issue is whether we think there is a basis to reduce this. that is usually based on whether regular citizens have

very little knowledge of what that process should have been. >> that is right. they had no idea a permit would be necessary for this kind of structure. it never even occurred to them until after the fact. then they got into the whole process of trying to provide the proper plans and so they could get the permit. it became a vicious circle for them. they have removed the overhead over the yard. commissioner fung: should your mother still need something, i think he should go to sears and by one of these little overhangs and let them get the permit for you. >> i do not understand. commissioner fung: to cover the jacuzzi. >> you are denying any kind of -- commissioner fung: i did not say that. my recommendation is to do that to provide a cover for your mother. >> they are trying to figure out another solution to the problem

so she can exercise, but we are still at how much it is that we have paid. commissioner fung: i understand. >> that is the issue. they live on a fixed income. they are retired. they have many health costs hindering their life right now. this is where we're at, basically. commissioner hwang: i need a clarification. i see a receipt for $2,047.20. that has been paid to the city? >> that has been paid. commissioner hwang: you are requesting a refund on that? >> any part of it. commissioner hwang: i just want to know what you are requesting. vice president garcia: to reduce it. commissioner hwang: a reduced by index -- reduced fine? >> i went to the department and filed for the permit. i paid $750.

they never told me any notice to my house. they never warned me about keeping the construction. i was waiting and waiting. we see a man from another department. he saw the construction was in place. he said that we probably had a permit. he sent somebody. they asked me for so much money. i said it was not worth it. i go back and he says that he would give me another person. he sends me an architect who comes over. he says it does not need a permit issued. my son and i did it. commissioner hwang: you have taken it down at this point? >> yes. commissioner hwang: and today

the question is about the penalty you have paid and you would like a reduction. thank you. i think we understand the issue. president goh: thank you. >> i did not know. president goh: we understand. thank you. >> mr. dufty? >> commissioners. the notice of violation was issued on may 22, 2008 for a structure 25 by 20 feet in the rear yard. that totals the entire yard. the $754 was paid to planning when they were trying to legalize it. that was for a variants that was not followed through on -- a not followed through on -- a variance the was not follo