what i think is important to note is the initial action we understand to be motivated out of concern by the tenant, who would be evicted, and our our action stems from that as well. our action stems from the decision was made in 2006. aside from the outcome of this does comply with planning code. were it not for the history, we would have issued a neighborhood notice and would have gone on to a approved a permit. we will continue to defer to your judgment. we understand the circumstances which led to your 2006 action may no longer be presidenent.

if the is the case, we would not find that objectionable at all. we do not have anything else to say, but we would be available to answer any questions. >> do they have any time clauses related to implementation for solidifying the variants? >> i am checking right now. there is more often than not a three-year window during which variants must be executed. i am going to find this later and answer it, but there is a second issue, which is set in the intervening time, this letter was issued on the 12th of

february, 2007, and it does have a three-year of effective date, so this variants would have voided out in february of 2010. the planning code since this was issued has changed in order to legalize this unit. >> understood. the policy has also changed. >> thank you. before you sit down, can you speak to the fact? >> i cannot speak to that with any level of expertise at oall.

>> is there any public comment on this item? you have three minutes for rebuttal. >> i'd just want to mention the fines have been paid. >> can you tell me about the process you and your wife underwent? >> kofi unisys -- both units were occupied when we purchased it, so the only way we thought we could move in was to do this. to protect the tenants, they have one year to vacate, and one of the tenants of vacated early, so we moved in to the upstairs unit. the downstairs unit decided not to vacate after one year, and we

reached a settlement agreement, and they have been living there for an expanded nine months rent-free, but they leave tomorrow according to the settlement. >> did you have to do file certain documents and with -- i do not know which agency. >> it goes to the red board, and it basically says this property will no longer be a rental, and if we rented it in the next 10 years, the original tenants have the first claim to come back of the original rent level. >> what are you doing whiff the lower unit? what is your plan? >> we want to merge the units into a single family dwelling. right now there are two separate entrances. we want to get rid of the exteriors there's -- exterior

stairs. you can barely see it, but on the right side we want to put a single car garage, extended to the property alliance -- to the property alliance -- lines. and to basically updates to windows and that kind of stuff. >> not further expansion? a wax there is a horizontal and addition. >> -- >> there is horizontal i edition. -- addition. >> thank you. anything further? no?

nine commissioners, the matter is submitted. >> it seems as though we have not have one of these in a while. it is always done if there is mutual consent, so we had and a legal unit, and to accommodate the individual living there -- and we had an illegal unit, and in order to accommodate, if the individual allowed to of -- agreed to allow them to stay there, we would go through the process of legalizing it, rather than the process of some apartment, probably planning, to have the individual move out. it is unfortunate someone was there, but the reasons are pretty compelling to grant the individual who bought this house to go ahead with his plans

and do what he would like to with that building. >> i would follow on a slightly different cas path. the variants is null and void. a permit is null and void, and this indicates the current status of the structure is a single-family home, and if there is no further comments, i am going tuo move to overrule this. >> i can see where the conversation is going. while the project is code

complying, the project is not, because it involves an expansion. the project would not otherwise be subject to 311 neighborhood noticed. that was not issued because we disapproved the permit prior to do the notice. it was not needed. now in consultation with your staff, it is clear that the hearing notice was issued and it was issued in a similar fashion, but i want to point out the required 311 notice was not issued. whether or not you feel that is relevant is a matter for your a judgment, but i wanted to mention that. >> if we agree that, what would the process bee to indicate to planning, assuming this board

things it should go back to a single-family dwelling? >> i may have to defer to your staff and the city attorney, but i imagine it would be reinstated with a condition that it be subject to neighborhood notice, though i may have its row wrong. >> the board cannot remand to go through further processes. if it is up held now, the permit would been final. >> i would reiterate the notice issued by your staff goes to a very similar radius. >> this is a denial.

if you overrules, a permit would be issued. the notice would not th150 feete -- not be 150 feet. >> the relevant issue is whether the work composed is required to get 311 note is -- notice. >> to me what is relevant is the process is still available. >> if you approved a permit at this stage, he would be approving it without having it go through all the code requirements. the alternative would be to uphold the denial but immediately and now -- allow a new permit application, making clear the only reason for it to

go to sections 311 notice. commissioner fung: we could do a finding that the notice process that has already occurred is the same as a 311 notice. >> a 311 notice goes through the are at the planning commission, correct? -- goes to eight d r -- goes trhough a -- goes through a dr at the planning commission, correct? vice president garcia: if we overturn, we are not giving them a permit. we are giving them the right to apply a permit. >> you are giving them a permit. >> planning can go down and cpb will issue a permit. vice president garcia: there is still a process available. >> but not to the planning commission. >> if it triggers one right, but

it is not a dr right. vice president garcia: would neighbors be noticed? >> i do not know what exactly the notice from ddi -- dbi would be at issuance for this type of permit. vice president garcia: i hate to ask the permit holder. it is like asking tobacco companies its cigarettes are dangerous. do you know if there is any neighborhood opposition? i know your answer will be of course not. >> i do not know. we prepared the neighborhood map. we are prepared to do a 311. >> i think an option available to the board would be to uphold the denial but make findings is only on the basis that section 311 notice has not been done, and make clear the permit holder is authorized.

the one-year bar does not apply. he can apply tomorrow for the permit. if we were to issue this permit now, it would not become compliant. commissioner hwang: it is not ok given that the idea is to clear it up and clean it up. let us do it right. >> if i apply for another permit, do i have to pay all the permit fees again? [laughter] >> would planning have discretion to waive the fees in the unique circumstances of this case? i do not think the board has jurisdiction over planning zone fees. >> this is a department of building inspection permit. the planning department is a referred agent to be on that permit. while i imagine we would be creative and attempt to waive our portion of the fees, that is only one segment.

commissioner fung: i think that is the only segment we are talking about, because he has not paid for his permit yet. there is the permit. yes. the permit costs are separate. >> that is within the planning department. vice president garcia: you do not have to get planning to check it twice, do you? i am aggregated enough. -- aggrivated enough. >> i would defer to staff and the attorney whether or not this discretion exists in your body. i would be comfortable making a finding on behalf of the planning department that the notice bus issued in life and nature of the project is tantamount to a section 311 notice. vice president garcia: the notice that went out having to do with this case described the proposed project?

>> vice president garcia, if i might interrupt, it is less an issue about notice and more about the process available as a result of that notice. it is the discretionary review process that would be obviated. that is a concern. commissioner hwang: i would agree. thank you for clarifying. >> this is hard, though. commissioner fung: the crux is we need four boats here. -- votes here. vice president garcia: so we could help out the appellant by making a motion that stated that we are overturning the department. you look skeptical already. give me the content of a motion with a comfortable with.

>> i think the motion would have to be to withhold the department, but only on the basis that the project needs 311 notice, but that the permit applicant would not be precluded by the one-year bar from replying, so that section 311 note this can occur. you technically are upholding the denial of the permit, but making clear that the reason the department originally denied it was in deference to the board's 2006 decision. the circumstances have changed. there is a new owner. the tenants are gone. the basis of the 2006 does not exist anymore. the variance on the proper permit is expired. but the 311 notice is the of standing issue. vice president garcia: and that is not a du jour, de facto

remanding? >> they do have to go apply. vice president garcia: but we are granting them the right. i will not get into that. it is not important. you got my motion, right? [laughter] >> there had been an earlier motion by commissioner fung. vice president garcia: i worried it was my motion. i am glad to hear it. commissioner fung: i doubt it will pass but i will make it again anyway. i will move to overrule the zoning administrator on the basis that the variance and the original permit to maintain the two units have expired and arnelle and void.

>> one suggestion. it is not the zoning the minister -- the zoning administrator's decision. commissioner hwang: before roll is called, i want to make sure i understand what is potentially going to happen if there is a three-one continued, and also if it is letter continued -- later continued the potential for not passing would result in the one year bar, it's a truck. -- etc. i would be more inclined to go with the motion as articulated by our deputy city attorney. vice president garcia: i have to agree a think we serve the appellant better by doing that.

he has had that individual living there for a while. i do not see where he is harmed by a little more time. there might be some greater expense, but i think having the greater expense is better than not having housing. >> commissioner fung, do you want us to call the roll on your motion? commissioner fung: i think the will withdraw my motion. i will allow somebody else to make a second motion. commissioner peterson: i will make the motion that duplicates the comments of our city attorney. vice president garcia: will you repeat those? [laughter] >> to deny the appeal and upheld

the department on the basis of the project need section 311 notice. the permit applicant is not barred due to changed circumstances, including there is a new owner and the variance is no longer valid. anything further or different? commissioner peterson: a and he is not barred from applying for this permit to obtain section 311 notification, to go through that process. >> the motion is from commissioner peterson to uphold the denial of this permit on the basis the project requires section 311 notice in the planning code. the one-year bar does not apply. the appellant may reapply for this permit.

commissioner peterson: provided section 311 notices obtained. -- notice is obtained. and there is nothing i can do about fees? are there nov penalties paid? >> that is different. >> what is the one-year thing you are talking about? vice president garcia: under normal circumstances if we uphold the department, you are barred for one year for replying for the same project. we are waiting that ban on you. >> on that motion from commissioner peterson -- commissioner fung: aye. >> the president is absent. vice president garcia: aye. commissioner hwang: aye. >> the boat is -- vote is 4-0.

>> will move on to our last item, item nine, brett poffenbarger versus the zoning administrator, appealing a letter of determination dated march 30, 2011, regarding whether a news their penthouse and roof deck may be constructed and the permit height of a glass wind screen wall and skylights at the subject property. we'll start with the appellant or his agent. you have seven minutes. >> thank you. i would like to submit for the records and documentation from a reputation today. >> i'm sorry? vice president garcia: you have given this to the planning department?

>> we continue talking to them. my name is steven stept, the architect for my clients, lesley and brett. this is a six story loft building converted in 1996. this is the building on at 650 2nd street. there is a dedicated space on the roof. the goal was simple for this project -- privacy, security, safety, and the benefit of access which has been permitted to other neighbors. i will go to the first board, which is really a description of the history of permits on this project in the last 10 years or so. there is a variety of elements on the roof, shown in yellow in the first image -- stairs, mechanical equipment, skylights, penthouses', and if you? . the middle drawing showing all the permits that have been issued since 1995, in much

similar nature of what we are asking for. 3 is similar to what we would like to do. it is an enclosure given access to the common area deck. there are a couple of items shown in blue the word? the were approved also since 1996. when we do not have a permit his report. the others have -- one we do not have a permit history for. the others have a permit history. the one on the bottom right shows a stir in closure. in the second board is going to explain the roof deck element. when we were denied by the letter of determination, we looked to see what this means to us. what it is showing is that the requirement for us is we would have specific stair elevator access, which would require us to cross the roof to the deck, if we could even do a deck. this is an extremely unsafe

condition, with a baby on the way and a toddler running around in a few years. there are parapets on this roof that are 30 inches high, at least a foot below what current code allows. it is extremely unsafe conditions. there are other elements that do not make sense. the windscreen was only allowed to be 2 feet high, which is shorter than the existing power cut. it was not making practical sense. we wanted to look at section 260. there are different ways to do things sometimes. we wanted to see if there were different ways we could achieve this, whether we wanted to do it that way are not. we could do an elevator from the bedroom to the roof deck. there are elements in the code for an enclosed seating without restriction to height that allows windscreens to 10 feet. we could put windscreens on two sides, maybe even the third

side. there is mechanical screening allowed up to 10 feet, which i think we realized recently some of these other units had taken advantage of in concept for some of the permits in the last 10 years. we think it is a possibility. the image on the right is trying to describe our goals for the project. the area shaded in red was a very minimal stair in closure, which was connected to the existing penthouse. there is minimal visibility impact. landscape features, windscreens the etc -- windscreens, etc. the last slide talks about the exemption. there are a lot of exemptions allowed to the height limit. the works for us within the limit of 20%. there is only 14% coverage on the roof now.

our stair inclosure would be minimal. it would not be close to 20%. skylights, stairs, and elevators can have certain height exemptions. others have no horizontal limits. when we read the code, section 260, we see that elevator stairs and penthouses are exempted. these features are defined where the height limit is 65 feet. the first item on the bottom is showing you could have eight stair elevator windscreen to the heights shown. there is an interpretation we do not think is correct which told us we can only do a stair that is 2 feet high above the roof level, which we obviously cannot have access to, an elevator we could probably squeeze in at minimal height, and a wind screen that would only be 2 feet higher than the roof, which is more unsafe than the existing

paraquat. we think the ruling of the code suggests that where the high limit is 65 feet -- we are in that district -- the we should be able to have exemptions to the height limit to add these elements and, as the diagram shows. the last diagram basically is saying there are existing penthouses' appear up to 84 feet. we want a stair connected to one of those. it would have minimal visual impact. one thing i think has been created by the denial of the letter of determination. it is a hardship by denying that our clients the structures others have had the opportunity to enjoy. the product is not controversial. i think there are proponents here that will speak tonight. we would like to have a consideration. i think brett would say a few things. >> my name is brett poffenbarger. our goal is to make a green space.

this is the backyard for our house, for our child to play in. i think it has a positive visual impact for the neighborhood. even buildings that can see it will see a park-like structure with greenery. we want to make it safe and accessible from our unit so that our child will be able to go up there and be safe from falling off the walls using windscreens. that is all i have to say. thanks. >> thank you. mr. sider? >> thank you, commissioners. i am actually a little heartened by what the appellants have to say in this case. there was a presentation a few minutes ago about