positive recommendation without objection? >> that was short and sweet. thank you so much, everyone. >> would you like to file this or continued? supervisor mar: is an annual report. let's continue to call the chair without objection. any other business before us? >> there are no further measures. supervisor mar: thank you, everyone. the meeting is adjourned. ♪ ♪ everyone has friends. there's on-line friends, friends to go out with on a saturday night, friends to hang out with and do nothing, friends who show up on moving day,

and then there are the friends who will be there if someone is dealing with a mental illness. are you one of those friends? >>. evening, and welcome to the june 29, 2011 meeting of the san francisco board of appeals. joining vice-president michael garcia is commissioner frank fung, commissioner hwang. at the controls, we have the board's legal assistant. i am the executive director. we are so joined this evening by

representatives of some of the city departments that will be participating in the hearings this evening. we have the senior planner and assistant to the zoning administrator representing the planning department and the planning administrator, and joseph dufty is here representing the department of building inspections. it at this time, if you could please go over the meeting guidelines. >> the board request that you turn off all phones and pagers so they did not disrupt the proceedings. please carry on conversations in the hallway. the rules of position are as follows, appellants, permit holders, and representatives each have seven minutes to present their cases and three minutes for a bottle -- for rebuttals. members of the public were not affiliated with the parties have 3 minutes each to address the board and no rebuttals. members of the public who wish

to speak on an item are asked but not required to submit a speaker card or business card to the board staff when you come up to the lectern. speaker cards and pans are available on the left side of the lectern. the board welcomes your comments and suggestions. there are customer satisfaction survey forms on the left side of the lectern as well. if you have questions about requesting a re-hearing, hearings, or schedules, please request them after the meeting or call the board office tomorrow morning. the board office is located at 1650 mission street, room 304. this meeting is broadcast live on san francisco government television, sfgtv cable channel 78, and abb of this meeting is available for purchase directly from sfgtv. at this point, we will conduct our swearing-in process. if you intend to testify in any of the hearings and wish to have

the board did your testimony evidentiary weight, please stand, reroute right hand, and say "i do" after you have been sworn in or firm. and a member of the public may speak without taking the oath pursuant to their rights under the sunshine ordinance. do you solemnly swear or affirm that the testimony or about to give will be the truth, the whole truth, and nothing but the truth? thank you. >> thank you. we move to item one, public comment. is there any member of the public wishes to speak on an item that is not on tonight's calendar? seeing none, we move to item two, which is commissioner comments and questions. commissioners, anything? seeing none, item three, the adoption of minutes. before you for consideration are the minutes of the board's june 22, 2011 meeting.

vice president garcia: it looks like there are no comments or suggestions, so i move that we adopt the minutes as written. >> is there any public comment on the minutes? seeing none, it called a roll, please? >> on that motion to adopt the june 22 minutes -- [roll-call vote] thank you, the vote is 4-0. >> subject property 161-165 newman street, appeal number v 11-035. the board voted 4-1 to grant the appeal, overrule the denial, grant the variance on condition that a notice of special

restrictions be filed against the property records which limits both properties to single-family dwelling and no further envelope expansion, and with findings and further conditions to adopted at a later time. those findings are before you this evening. the parties are in agreement with the findings as drafted, so it is submitted to you for your consideration. vice president garcia: are there any commissioner comments? i move that we adopt the findings as drafted. >> is there any public comment on this item? ok, seeing none, if he could call the roll, please. >> on that motion from the vice president to adopt the findings, with no changes -- [roll-call vote] thank you, though it is -- the vote is 4-0, those findings are adopted. >> thank you. call at no. 5, which is appeal

number 11-070, franz von uckerman verses the department of building inspection, 1354 york street, and the imposition of penalty on may 12, 2011, up for construction work done without a permit. we will start with the appellant. or his agent. you have seven minutes. >> thank you, i am here to represent the appellant. 1354 york street. we have a notice of violation issued in 2007, april 5, for two windows replaced at the ground level at the front of the building. some stucco work on the front exterior was also in disrepair. a building permit was filed on

may 12 of this year. the permit application number 2011-925, and has been signed off on june 14 of this year. in order to get this permit, we had to pay $1,800 penalty. for the notice of violation indicated on the panel day that there was $1,000 of work. -- on the penalty that there was $1,000 of work. this is a commercial building. i talk to the owner who purchased the property in 1979. he did not install these windows. these were installed prior to its purchase of the property. there was no report, no disclosure that anything had been done without a permit when he purchased the property. the other item that you should

know is that he is an elderly, retired at, on a fixed income, and this permit, which costs more, over double the amount of work that was estimated, $1,000 of work was the estimate, and, first of all, he had not put the window in. second, the amount of the penalty is far in excess, 225% more, then what the inspector noted was the amount of work. therefore, what we are asking for today is to remove the penalty entirely. because mr. von uckerman uses the building, he has carr's stored there. he uses it as his hobby. we feel that the $455 that the

permit cost is enough. also, looking at the notice of violation, when it was issued, there is nothing to the record that indicates the building inspector before he issued a notice of violation had even done a permit check to see if the permit was done. therefore, we are asking that the penalty be removed. thank you. commissioner fung: when did your client purchase the property? >> 1979. >> thank you. commissioner hwang: in the questionnaire, it appears that your client was an expediter, a retired employee of the planning department? >> i am the expediter. commissioner hwang: okay, sorry.

vice president garcia: do we know if additional work has been done since this building was purchased and whether or not permits >> were > parked it -- or additional permits were done? >> no additional work was done. vice president garcia: was that done by your client or the same time as the windows? >> we don't know when. the repair of the stucco work? >> the repair of the stucco work was when the notice was issued. vice president garcia: was there a permit for that? >> we don't need a permit for the minor repair. i wanted to show you a picture. i am sorry, i wanted to show a picture -- here it is, of the building. is it coming up?

those are the two windows in question. i have circled the two windows in question. there is the building. it has been repainted since 2007. commissioner hwang: looking again at the questionnaire, it says what is your occupation, expediter. >> that is me. commissioner hwang: and mr. von uckerman, retired employee of the planning department. is that him or you? >> that is him. it commissioner hwang: okay, thank you. >> if there are any other questions, i would be happy -- commissioner hwang: how long was your client and employee of the planning department, and in what capacity? >> 20 years. commissioner hwang: what

capacity? >> zoning administration, nonconforming uses. he did a lot of work on those. commissioner hwang: thank you. vice president garcia: how was it determined the work was done in the 1960's? >> that is a gas. all we know it is it was done prior. we figured it was in the 1960's. i don't have any evidence, commissioner garcia, to back that up. vice president garcia: thank you. >> thank you, mr. duffy? >> good evening, commissioners, joe duffy, dbi. the department would like to keep the penalty of nine times because the notice of violation was given in 2007 and we did not to permit until 2011. we did quite a bit of work on

the notice of violation that started off with building inspection, and the second notice of violation was issued, so there would have been a lot of administrative work by staff. i noticed that the building inspector, can gonzales, wrote that the windows were 3 foot by 3 foot at the front of the building and some deterioration of exterior stucco finish, 3 foot by 6 feet. it was causing a hazard by the building permit application. that was in 2007. we finally got the building permit approval in may, 2011. so we would like to keep that ton a day. commissioner fung: -- we would like to keep that penalty. icommissioner fung: do you consider that for window replacement or the minor repair

to the plaster that requires a permit? >> it appears that it is for both. the wording on the permit says the windows installed in the 1960's by the prior windows. the building inspector that wrote the notice of violation wrote in 2007. i could not see him writing a notice of violation for windows that are 40 years old. so the windows may be no more than that. i am not sure, i am just going by the notice that he wrote. but the penalty is for the windows and the minor stucco repair, signed off and completed on the 14th of june, this year. vice president garcia: mr. duffy, the amount that is derived to assess the penalty, is that formulary? is that what it would cost for the permits for the two windows? >> well, the 1000 other value is

the value of the permit. the penalty that was assessed was than nine times probably on the amount of work that the building inspector estimated, $1,000. that is a formula in the building formula. vice president garcia: i understand the nine times as formulary, but did dbi rely on -- to the appellate submit any papers that it showed that cost considerably less, would have cost, from their testimony, about what it would cost in order to replace those windows? their statement is it seems as though dbi was figuring this at a much higher price. >> whenever the permits are applied for, the applicant puts

the estimated cost on. if the staff feels that is too low, they can raise it based on construction valuation. but that is usually a discussion between the plan checker and the person getting the permit. if there is a receipt for the work that is done, they could bring that in and use that to argue the point this work on the cost me $450 or $5, compared with $1,000. but i am not aware of any receipt that was produced to dbi, and we do except those invoices. this comes up not a lot, but it does come up occasionally. vice president garcia: in this case, there would not be an estimate, because they claimed the work had already been done. the pictures seem to suggest it would be very hard for any stuccoed to fall in the public right of way, because it looked to me when i was looking at the picture as though there was a fence. i am confused as to how that

presented any danger to the public. is that a fence below the white pillar? is that flat? ok. >> someone did complain about this. it must have been a bad enough condition, but i don't think it is going to fall straight on the sidewalk. they said at 3 foot by 6 foot, and that would be quite a bit of stucco, if it fell. it is just the timing of the notice of violation and the timing of getting the permit, for years, and the work the department put into it. vice president garcia: thank you. >> is there any public comment? seeing none, we have three minutes of rebuttal. >> i am the appellant. the question is, if those windows were replaced at all, and i say they were not, we did

not do the work. did anybody ever before do the work? i don't know how the inspector arrived at what he picked out when he looked at the pictures that they were replaced. therefore, and the amount of work stated on the permits this kind of arbitrary, $1,000. for what, to fix the stucco? ? and i have talked to the supervisor of the inspector, and he did not say anything that could be down further. that was in 2007. this is for years, five years later. commissioner fung: mr. von ucerkman, can you explain why you did not respond to the notice of violation for several years? >> yes, i went into the office and spoke to the supervisor of the inspector. commissioner fung: imn 2007.

>> in 2007. commissioner fung: and? >> and i thought the matter was cleared up at that time. vice president garcia: if you thought it was cleared up, what caused you to go and get the permit to legalize it. >> i told him we did not do any window work and the stucco repair was so minor but that i would do it myself. -- that i would do with myself. >> the matter came up because there was a director's hearing. it was the code enforcement section at the directors hearing. we were under the impression it had been cleared. commissioner fung: 1 was the director's hearing? -- when was the director's hearing? >> may 12.

commissioner fung: this year? >> of this year. vice president garcia: it seemed to me that you were saying it would have cost a lot less to repair the two windows and the stucco work than $1,000. >> i think he must have misunderstood. vice president garcia: i think i must have. >> it was the stucco work. vice president garcia: you know that the fine is based on what would have cost to pull the permits for the two windows. >> i understand. commissioner hwang: do you contest that $1,000 is excessive, the you dispute the fact that $1,000 is in excess of what it would cost to replace the windows and the stucco repair? >> no, i do not. commissioner hwang: how was it that you arrived at the conclusion that the matter had been resolved prior to the

directors hearing? >> i asked for continuance. commissioner hwang: no, we heard testimony from a client that he had a conversation, and following the conversation it was his understanding that there was no further proceeding? i'd like to misspeak. -- i don't want to miss a beat. >> that was my understanding. commissioner hwang: and how did you arrive at that understanding? >> that is what the supervisor said. commissioner hwang: would you not expect something in writing? >> i know, i figured that the matter was so minor. i told him there were no windows replaced and the stucco work was taken care of. that is where we left it. commissioner hwang: who was the supervisor that you sit up to? -- that you spoke to? >> i don't recall.

vice president garcia: and this conversation took place in 2007? >> in 2007. vice president garcia: thank you. >> mr. duffy, you have three minutes of rebuttal. nothing further? commissioners, unless you have questions for mr. duffy, the matter is submitted. commissioner hwang: i have a question for mr. duffy. if an inspector's notice of violation is disputed, an individual would come to the supervisor of that inspector's office, is it a practice where the department would or early resolve the issue without further paperwork? >> yes, i probably should have explained that. well, not always, but sometimes when they get these notices, they want to speak to the supervisor of the inspector that issued them. it happens quite a lot.

sometimes they are abated if they are issued in error or they need to be amended or of the party needs to be amended, but that should have been a discussion with the senior building inspector and the property owner. i don't have any documentation to say that happened. i just have my complete data sheet that said it was the first notice of violation cent, and then the second notice of violation cent. normally, that discussion happens as soon as we issue the first notice of violation. if there was a discussion, maybe there was a misunderstanding between the property owner and what he heard, but we, the department, issued the second notice of violation. within about five weeks of the first one. i don't have anything here to say there was that discussion. but there is the possibility that he misunderstood it. commissioner hwang: thank you.

commissioner fung: usually, i am very sympathetic to peddle the cases where the work was not done -- to penalty cases where the work was not done by the current property owner. unfortunately, in this particular instance, too much administrative work took place, and therefore i am not sure i would support the reduction to the minimum that is allowed, but i am willing to consider something in between. vice president garcia: i guess i am confused.

we have an individual who worked for planning, and that does not mean necessarily that he would know about all the procedures at dbi, but what is continuing to confuse me, if i heard mr. dufty correctly, there was a notice of violation, and then five months later a second notice -- commissioner hwang: five weeks. vice president garcia: do we have the second notice of violation? or is the one before us the second? so the one we have is dated 5- 24-07. iok, so the first was on 4-5-07, and that is referred to in this one. i am sorry, i'm going to ask a question. so when your client went down to dbi and spoke with them, that would be between 4-5 and 5-24.

or is that after 5-24? >> i don't know. >> to the best of my knowledge, it was after. i don't even recall the second notice. vice president garcia: so your testimony would be as far as you know, you only got one notice of violation. >> that is right. vice president garcia: okay, thank you. commissioner fung: you want a motion? vice president garcia: please. commissioner hwang: my inclination is more along the lines of commissioner fung, because of all the work the department went through and the two notices of violation. i am inclined to uphold the

department. commissioner fung: i move to overrule the department and reduce the penalty to five times. based on that the work partially is fairly minor, but the fact that multiple notice of violations were issued and the administrative effort to do those require some compensation. commissioner peterson: i wonder if i could not add that the appellant testified that he thought the matter was debated in 2007. -- that the matter was abated in 2007. >> so the motion, commissioner

fung, is to grant the appeal and reduced to five times the permit fee, based on the fact that the matter was minor and the opponent of the matter was resolved, but the department had significant efforts to resolve it. >> on that motion to reduce to five times, on that basis, as read into the record. [roll-call vote] >the vote is a three-one, reducd to five times. the charter requires four votes to modify and overturn a departmental action. absent another motion, this upon the will be upheld at nine times. -- this penalty will