interpretation of the code. previously, the argument had been one of my neighbors had it so why can't i. that, as you know, does not carry any weight in the planning code. i would like to briefly address the code issues that were raised with respect to the appellants, the issues and the diagnosis he made of the code. he is correct. there are various controls that relate to permiting on the roof of a building. complexity increases when you are talking about a non complying building. this building rises to 73 feet in height and is in a 65 foot district. it is about 8 feet over the base hight limit in this district. while the code does allow certain things such as a scared

-- as a scare penthouse, they are limited to the top 10 feet of height. if you have a building that rises to a height of 65 feet, you're penthouse can rise to 75 feet. when you're building rises to 73 feet, you are only able to work with 2 feet on the top of your building to fit in. i think the words he used for that is not practical. he is right. it is not practical. but that is the nature of this building. it enjoys height which would not be permitted under the planning code today. i think it is worth noting, although not relevant, but sympathized with his desire to raise a family in the city. i think this particular property may impose some real problems with that. certainly, it is a live-were building. it may not afford the development potential -- a live-

work building. it may not afford the development potential the appellant would like. we have not heard a solid argument as to how this could be built today. we have heard how other decks were built previously and other stair penthouses were constructed previously. in fairness, there is ambiguity in the permit record. certainly, some permits issued by the city are in question. some actions taken by the various owners of the building over time to not seem to be evidenced by the permits. there is an ambiguity. the fact that something may exist and an adjacent property owner may enjoy it a particular amenity under the planning code is not reason to grant that same amenity, particularly in a case where it is clearly prohibited under the planning code. that is all i have to present to you. i am happy to answer your

questions. commissioner hwang: how old is the building and how did it get to 73 feet high? >> i believe the appellant indicated it was built in 1920, before height limits existed in san francisco. interestingly, the property report i have shows built in 1996. i suspect that relates to its conversion to condominiums and live-work. commissioner fung: was it previously in storage or industrial building? >> it was an industrial building. i think it was controlled by a lithography company. i am not sure. commissioner fung: the

conversion was the first residential use? legal residential use? >> it was the first live-work usage, which is technically commercial use. vice president garcia: is there no way around this, no way you could get a variance on high? there are variances on lots of things. >> height is not variable. i was intrigued to hear the notion of an elevator. those are subject to somewhat different controls with respect to extension's above height limits. but in terms of the proposal before us in the letter of determination, this is a black and white issue. there is no discretion or opportunity to seek a variance are conditional use. vice president garcia: let us ride with the elevator a dip for a second. if it turned out they were allowed to do that, they would have to put on an elevator to go where they want to go.

what else would be allowed? the windscreens would not be allowed? the botanical screening would not be allowed? the rails could be no higher than how high? >> in general terms, what the code allows on top of the noncompliance structure is a deck surface when built to the minimum necessary under the building code, along with rails that are as open or as low as required under the building code. with respect to a larger windscreen, under the planning code that is not permitted above the 10 foot height extension. vice president garcia: so they would have to do the minimum of what is required, a railing, for safety's sake for that child, which is 4 feet? commissioner fung: 42 inches. vice president garcia: which is not safe. >> i would not put my four girls up there, no. commissioner hwang: do you have

the language of 460? i do not have the full text, or much text. >> is the 10 foot exemption you are curious about? commissioner hwang: yes, 260 b one. >> shall i read it into the record? commissioner hwang: 20 over had first and see if i can read it. thanks. commissioner fung: is that standard issue at the planning department now? [laughter] >> i guess. we should revisit our budgeting. commissioner fung: maybe. >> is all eligible?

-- is that all legible? commissioner hwang: i can read it. that is good. is it b1 cap b? >> the 10 foot reference appears here at the bottom of b1. commissioner hwang: ok. >> i am sorry. i may be pointing to the wrong code section, commissioners.

commissioner peterson: what is this language. it says the exemption chambly limited to the top 10 feet of such features. the height limit is 65 feet or less and the top 16 feet of such features were the high limit is more than 65 feet. -- we're at the height limit is more than 65 feet. >> in districts -- a 105 ft district -- the standard can put exemption is increased to 16 feet. -- the standard 10 ft exception is increased to 16 feet. commissioner hwang: right. can you put that back up?

it says here where the height limit is 65 feet or less. that is this particular district. is that what you had said earlier? >> this is a 65-x district. commissioner hwang: thank you. >> is there any public comment? please step forward. vice president garcia: 3 minutes. >> am i at the right place? my name is ms. guthrie. i am an owner. i live across the hall from the -- is a appellants?

is that what you call them? i am also an architect. i am so sick protector in architecture at uc-berkeley. i recently moved here. i am just setting up practice. i am still trying to understand all of the building designs and all that. a couple of things i wanted to point out. i am sensing this does not actually exist in the planning code now. it has to do with exceptions for existing buildings. other cities of worked in and take -- make exceptions to existing buildings, when you want to retain and hold on to building stock. i think this building is one of those exceptions. because i am also an honor on the top floor of the building, i would hope that at some point in time, either through appeal or through the planning guidelines

themselves, they find a way to allow for exceptions to come into the code that encourages existing buildings to be maintained and to still have a life to them. certainly, what is being requested is adding more life to the building. i think the appeal is actually trying to go through the code guidelines. the code is not taking into recognition the building as it does exist, in spite of the fact that it is beyond the height limit of the district. somehow, codes have to take that into consideration. >> is there any other public comment? seeing none, we will move into rebuttal. mr. stept, you have three

minutes. >> we find it perplexing, given the permit history and the examples we have stated that we cannot have the rights other homeowners had and that the city has approved. they are incredibly simple. we are not asking for anything different than what has been legally permitted. we find that to be a little bit odd. i think there are a few things, when you ask the question about whether there is any way -- that is what we look at section 250 to see if we could find different methods to get to the same solution. we talked about the elevator. maybe we could squeeze it in a for use that as our interpretation. as i read it, when it comes to windscreens, when it says enclosed seating -- this is under the height exceptions. you are allowed to have windscreens of up to 10 feet. we were reading that in a way where that would allow windscreens if i have enclosed

seating. that is in the section under height exemptions. it did not seen there was anything specific to 65 feet on that, if you read that section. i would like to point that out. i can put it on the screen in a second. it is this one here. it is highlighted in yellow. it says an enclosed seating areas limited to tables, chairs, benches, lettuces, and sun shades. it does not say anything about 65 feet or less than 65 feet. we were thinking that and the element below its -- our original design had landscape elements, planters, essentially. the way we interpret this is a maximum height of 4 feet for those features.

the way we read this is a does not say anything about whether it is 65 feet or 75 feet. vice president garcia: under what category was the item you just read? what is the heading? >> let me go back to the beginning. it is in section 260. vice president garcia: which part of 260? >> it is under 2d and e, right? vice president garcia: thank you. >> this was converted to lofts in 1960. it was originally a good year tire of warehouse.

i think there may have been other things. originally, it was good year. -- goodyear. >> goodrich. >> i guess that is it. >> anything further? >> just briefly, and to correct the record -- this is a commercial building. this is a live-work building. there are requirements like things to maintain a business license. i want to make sure that is clear on the record. going to the matter at hand, i am actually really encouraged to hear the sponsor talking about alternatives. we welcome a chance to in gauge

him and speak with the notion of an elevator or stairway. although it is challenging from a drainage perspective, there are ways to make this happen. granted, they may not be as straightforward or desirable, but there are ways to make this proposal happened. i will not go into the details. there are a variety of permitting problems with what is on the roof now. in particular, there is no historic clarence for three of the four events of the installation of things on the roof. this is a historic building. a certificate of appropriateness is required. non-was sought. i do not want to go too deeply into that. i want to comment on two last things. one is the issue raised by the professor from berkeley. i think it is a great notion to have a code section that addresses existing buildings.

i think it is worth considering. but it is worth considering from a legislative perspective. it needs to be a change that applies to all buildings that are existing in whatever capacity the policy makers choose. lastly, just to sum up the" argument, i do understand how one person could pick section 261 b 2 e out of context and read that as the ability to proceed with that high limit at all costs. the fact is the top of roof is 73 feet. it is 8 feet above the existing high limit. there are code provisions and interpretations that allow for certain the minimus -- de minimus steps to go beyond. for example, the roof deck that is flush with the room service,

-- roof surface. but the code does not allow for a wind screen or an elevator penthouse -- strike that elevator portion. a stair penthouse or other appurtenances, as the applicant proposes in this letter of determination. thank you for your time. vice president garcia: i do not mean to ask you to speculate. let us say some accommodation could be reached between the planning department and the applicant, in this case the appellant. a certificate of appropriateness would still be needed, as you have said. would you lay any odds on how that would go through? >> in the hypothetical, i would like good odds. vice president garcia: this has nothing to do with this particular case. but it almost seems unreasonable

that if a building is built, and maybe this is the issue that was addressed by the one person that offered public testimony, and you impose a high limit that is less than is built, you are taking rights away from the building that are granted to other buildings in the same area. it almost seems like a little bit of a taking to do that to that particular building. >> commissioner, i see your point. but one argument that could be made is the flip side of this perspective is that buildings that conform to the height limits in the district cannot enjoy the same additional height the nonconforming building does. under the planning code, the case could be made that the top floor of this building is a right not enjoyed by other similarly situated properties in the zoning district. commissioner hwang: what concerns me is i think they have

a deed to occupy. how is that provided? >> i cannot speak to the personalization -- parcelization. we would characterize the roof as being useful, so long as appropriate safety improvements were made. the code does allow for a deck and railing. it does seem they cannot get the desired access. but there is a way to get up there. vice president garcia: rope ladder? >> i will hold my tongue, commissioner. >> commissioners, the matter is submitted. vice president garcia: did you want to offer more comment?

please do. >> i'd just wanted to mention for one thing the coo in question for the building. for some reason, the building did pull all the permits for the work that has been done on the roof back in '95 and '96. that is on record. the work was done and inspected along the way. but for some reason when they built this building they did not get the final coo. my building is currently in the process of obtaining that, with all the inspections and everything. because of that, a whole bunch of the permits they pulled back in '95 appear as canceled. it is a huge mess for a building that we are slowly working out. the other thing is i can build an elevator but not a staircase, and that is crazy. it does not make sense. personally, i cannot afford to build an elevator. the other point is that you

could say that our building is higher than the other buildings that are shorter, and so we enjoy and advantage because of that, but that is not really true. our building has something taken away, whereas the other people that are building and know that, going forward. vice president garcia: you are continuing your argument. i thought you had something. at any rate, wait to see where this goes. not that i know. commissioner fung: i will start with a couple of points. i am sympathetic to them wanting some open space that is directly accessible from their unit. a couple of things, just from a

purely technical basis. even with the change in height, you could not get an elevator that conforms with in the 16 feet in this high limit. you cannot get a stair penthouse, technically, to conform with this height. i have to do this to commissioner peterson. 25 years ago, there was a very famous name in san francisco. the zoning administrator denied his permit to build the market greenhouse on top -- to build an orchid greenhouse on top of his high-rise in pacific heights because it was non-conforming and above the height limit. the problem i have here perhaps

is a little bit too much experience with this code section. that is that it has always been interpreted that way. the fact is that the 65 feet establishes the point at which exceptions take place. therefore i do not see any basis that i can even attack to give them what they want. commissioner peterson: i do not have the experience of commissioner fung, but i also am very sympathetic. i needed to look at the language to see if there is any wiggle room. you have a hope or expectation for having something like that on your building. i understand what it is disappointing to see these

restrictions. but i also could not find any way around it. i guess i was wondering if there was a chance for a continuance and a possibility for something that would be within your budgetary constraints and still get you something usable. i do not know what everybody would think about a continuance. vice president garcia: i would certainly favor a continuance. i am not sure it makes a difference. the zoning administrator is scott sanchez. we have great minds to work on this. i would suspect they also think this is a worthwhile project that would add to the value of this house and the enjoyment of your property and the safety of your child.

i someone agree that it seems kafkaesque and does not totally make sense. i would favor the suggestion made by commissioner peterson. that is offering you perhaps false hope. sit down and have a conversation. mr. sanchez and mr. sider -- you might walk away with them saying they would love to help you but cannot. that is the sentiment of this board. we would love to help you, but we can't. commissioner fung: the proposal to continue, i will support that. but i will remind everybody he has 8 feet for an elevator. that includes framing and the cab itself. that is not going to get done. if they can find something that

turns the language, ok. but i do not see a technical response to this attrition. vice president garcia: i misunderstood. i thought you could not go above 75. commissioner fung: it is 16 feet above the 65 for elevator. vice president garcia: i thought they could go 16 above the seven. >> commissioner fung articulate it best when he said the 65 foot height limit is the point at which any exemption is taken. 10 feet in the case of stairs and 16 in the case of elevators. because this building is already 8 feet above the height limit, they only have a fee to play with. perhaps when i indicated an elevator was the option, i spoke without experience.

it is a more viable option. there are ways to get access to the roof, i believe, from the unit. but it is a question of working with the sponsor, which we are happy to do, to figure out what will work. commissioner hwang: looking at the drawings and the designs, it does not seem to become a first of all, economically viable, based on the testimony of the project applicant, the appellant. but also it does not seem to be simply an access issue. the windscreens would also be more protective. if you are talking about safety, that is not good to address that. access is not the big issue. i would assume if you could get the screens up, that might do it. just hold the hand of the child to get to that area from a common space. it is not perfect, but that