including clients i have down the block, the yellow ones you can clearly see that what has happened, and maybe i can explain it here. this is a broadway and still more. this is a high section of the intersection. there is a nice cross slope, and in the middle, there is a knob. goosomebody in the 1940's raiset the grade 4 or 5 c. the permit i am going after tore down the structure. you cannot tear things down in the rear yard that are not supposed to be there. it is about 9 feet tall.

i could not get over to the section because is way over here trabout 7 feet or seven anf feet. there may be a problem because you cannot tear down a retaining wall and rebuild it without a very tense, and you cannot tear down on non-conforming retaining wall and raise it to feed. apparently the belief islam that this -- is that this trade is yellow, and they came and left this up in the air, and you can look at it. this is an elevated retaining wall but someone has added

sioux, and you cannot keep doing this. goowhat my client was left witho was sections -- his property is about 7 feet collin -- 7 feet tall, and the only way this convene -- could be illegal is if a properties gradually blend in tune in -- blend into the photography. for this to be there, they would have to show cliff. we are only asking one thing. stand in the backyard antel main this is native to grade. it is physically not possible

how it is surrounded, and you cannot keep raising grade, and if i am wrong, i am happy to have you look and tell me i am wrong. i want you to take a look and tell me it is appropriate to have this structure in the rear yard because planning code would not allow it. >> if we were to agree with everything you say, how do we do anything but urge planning to go out there, because when you directed your comments at has nothing to do with the permits. >> the current permit is sitting on his wall, so it was issued in error. they are building on the part of the wall but was previously under permit.

this section of the wall does not need of various. if this was issued in error, you cannot build on top of it,>> it3 feet tall. out here, is. the dangerous slope to say that we are going to piecemeal permits issued in error, they need to fix their permit and get a new permit for a foundation. >> can you put the picture back up? the one with the brown would which i believe -- is that the structure that you're referring to? >> that is the fence on top of the wall. >> defense, is that the structure that is related to the permit at issue? >> the structure is way behind.

>> offense on the retaining wall, it is the wall, the retaining wall itself was issued on an erroneous permit? >> i believe it required a variant because the height above native grade. >> defense is not an issue, it is the wall. where is the structure? >> of the structure is about 50 feet back. >> that is the permit on which the property -- >> this is a very large wall. you're seeing this section here where the houses being built on top of this wall. we look at this permit and the old permit in this current structure is sitting on this wall. the permit was issued in error, you can't build on a permit issued in error.

i invite planning out to look. >> we can hear from the permit holder. >> and good evening, commissioners. attorneys for the owners of the home, also in the audience is matt williams of the architectural firm, and he will be available in case you have any questions are regarding the plans. just to focus the commission, the permit in the retaining wall at the fence that he is complaining about is not the subject of the permit that has been appealed. the permit that has been appealed his 2,010.1008.

the retaining wall and borders the rear yard and has nothing to do with what was contemplated under the permit. this was also subject of discretionary review at the request of mr. rubin's anson. we negotiated extensively with him, and we entered into a letter agreement that is attached to our brief period of that is the result of extensive negotiations. the consultant approved those plans. we thought we were done. if you can tell in his brief, there are no objections to this plan that is subject of

affirmative that has been appealed. the permanent that he is arguing is 2,011.03162. the planning department never makes a mistake. [laughter] except when it comes to parking. the permit application has been approved by planning and approved by the building department. you will hear from scott that says this is a validly issued permits. it was issued on march 25, 2011. they relied on the issuance of the sperm that and have spent substantial sums of money. as you can tell, it is built. it is done. i should know that as part of the settlement agreement, those exact lands were shown to mr.

rubinson, it was approved by his consultants and it was approved by him. i am embarrassed to say this is a neighbor who just doesn't like the construction. they still filed this appeal. he is arguing about a permit which really is a jurisdiction request and he has shown a no grounds for this commission to take jurisdiction over this permit. we respectfully request of the commission to deny the appeal and to end this craziness of his neighbor filing every possible objection and allow them to complete their code compliance tom. >> will you go back to that graphic that you had up and

point out exactly what the construction was? >> four the retaining wall? >> of the subject of this permits. >> that is the retaining wall. >> point out what has been done and what is proposed to be done. on the picture, if you can. >> i will call matt williams that has a better picture of this. >> third baseman? >> he used to play for the giants, too. >> can i ask you a quick question? you keep mentioning mr. rubinson. >> the rear neighbor. >> the person who is underlying this appeal? >> mr. buschovitch's client.

>> is that who you are representing today? >> that is correct. >> i am matt williams, i guess i have to put my finger in. the permit was for a property line retaining wall with a six- foot high fence on that. as part of the negotiations with the neighbor, he is directly behind, bamboo was planted. >> show where. >> this is the line here, this is the screening wall that is 35 feet tall. >> house seat is that dropoff? >> from this retaining wall down

to the other retaining wall is i believe 3 feet or 4 feet. it varies because it is slow. essentially, what is going on is that he is talking about a retaining wall permit, a landscape permit, which has nothing to do with the permit that we are here about. this photograph is taken from the roof of the structure, the actual permit under appeal. >> what is proposed to be built under this permit? >> the appealed permits is a horizontal addition at the basement level and the first level. >> will you point that out? >> i cannot, it is well below the roof. the roof of the structure.

>> what is that? >> and that is the neighbor's basketball court which he dug down about 8 feet just recently to put in his basketball court. next to it as another 12-foot high retaining wall supporting another flat. >> you can slide that down. >> the property, and the adjacent neighbor, there is stepping that is happening down the block. it is the nature of the hilly slopes. >> this sanction here which is the subject of a 311 notice, the subsequent request for discretionary review, which we thought we settled, the permit

the was issued a was a sight permit that would be pursuant to the 311 plans approved by planning and also by mr. rubin 10. >> what about the comments made it that the real problem here is the agreement over landscaping >> under the settlement agreement, we negotiated this extensively where we had agreed to plant a green privacy wall which is primarily bamboo at the recommendation of the consultant shades of green. it grows quickly, and it should provide sufficient privacy. that was settled as part of the 311 notice.

>> mr. sanchez. >> and good evening, members of the board. i would like to provide some bread -- background information on the project. that permit was the subject of a discretionary review filing by the appellant. in march, we received an e-mail asking questions specifically about the retaining wall permit that was filed in march of 2011. we responded to them, that day we had approved a permit, and that it was separate from the building permit that was on file.

and the permit did not trigger any notification requirements. we informed them very quickly in that e-mail that they could appeal the permit at a board of appeals. there was due notice of their appeal rights of the retaining wall permit which is really what we're talking about here. for whatever reason, they chose not to file an appeal on the retaining wall permits. an appeal was filed and it is my understanding that it was withdrawn and the permit was issued. issues are being raised regarding the retaining wall which was under a separate permit, it is a very thin link to this permit because the permit was proposed stairs that are built on top of a portion of the retaining wall. that is within the buildable area and not within the

required here yard. of the issuance is due not come into play here. this would not trigger a requirement for a variance. we did try to work with the appellant and listen to their concerns interviewed extensively the permits, we got the plans from the retaining wall permit and reviewed those. after analysis, we haven't found any violation of the planning code. we will give you a few of the reasons why -- if you like us to go to the site and take a look, we would be happy to do that, but we haven't been presented with any information that leads us to believe that the previous permit was issued in error. the retaining walls are permitted in required rear yard and you are allowed to retain grade which was in place the time the building was constructed.

additionally, you are allowed to go above 3 feet in the required rear yard when slopes are between 15% at 70%. there is the calculation that you would go to the property line, 3 feet above grade a, take a 45 degree angle, and the deck cannot penetrate that plane. that is exactly what the permit holder did, and the plans from the retaining wall had a very thorough planning and analysis. they demonstrated that it complied with the relative code requirement. in regard to what is or what is not natural gray, we reviewed the maps and it appears that the retaining wall based upon a first review appears to hold off what was apparently natural gray. i'm understand the concern about

that, he'll be happy to go to the site and continue that evaluation, but it is on a separate permits. it is not on the permit that is before you. any action that we would take would be a suspension of the previous permit. that is where we are at this point, and i think that has been explained to you by the appellant and by the permit holder, the real issue seems to be about landscaping. that is something that is beyond the scope of her view that we have at the planning department. we would welcome aboard's guidance on that matter to resolve the situation. i am available for any questions you may have. >> if the original grade is not native and the retaining wall on it and would be legal nonconforming, and if planning work to go out, the planning department would issue an nov or

cause the wall to be torn down? >> if we find the permit was issued in error, we would request a suspension of the permit or revocation of the permits. the planning code does allow retaining walls that are necessary to maintain approximately the grade existing at the time of construction of the building. other walls shall be subject to the same regulation under section c-24 and c-25. 24 is what i explained about the art degrees. >> another question would be, how would a planning go about determining whether or not that had been built up prior to were contemporaneous with the building of the house there? there is no problem, there is no

violation. >> the best resources to go to already indicates that they would be at what was made of gray. is very likely or possible that the appellate excavated in the rear yard to make it level. we have the appellant is saying that the permit holder and struck this retaining wall and had him and built up the grade on their property. i think the appellant would not disagree with this that the appellant could have, in the past, and make it lower and make it level. >> i think it willquestion, it h there were no conditions of approval on the sperm that such a that would ratify some

agreement having to do with landscaping, so that is nothing that would be our per view because it was not your purview? >> it was a private agreement made between the two parties in order to give the withdrawal of the d r request. >> on those maps, it sounds to me that you rely heavily on those maps as the source of any potential evidence of what the native grade was at the time the house was built. >> in a case like this, the question is being raised, we used it as a resource to make that determination. >> you said you had nothing to suggest that what existed -- that was complained of was elevated to grade. and was based on the maps? >> yes. >> when he speculated that the

house behind the appellant might have been leveled off, is that something you could determine using the same maps? >> i put on the overhead the map that we were referring to, the subject property is here in the middle. we follow this corner, which is the northwest corner, and it will be a little over a 180. >> when you say 175 -- >> 175 feet above sea level. with the retaining wall permit, this was provided by their landscape architect. they're showing the top of the retaining wall at 177. it appears to be in line with 175-181 elevation. it appears to be very close to

what is shown on the map. that is what we were using. >> any public comment on this item? no public comment, we will move into rebuttal. you have three minutes. >> i'm going to try to be polite. the three-foot wall they pointed out, that is just one of the walls. there is a series of woes. it is not 3 foot, it is 3 ft. to than 6 feet. it is 9-feet tall. this permit on appeal is sitting on this wall. it does tie together. this comment, and i will be

careful here, the planning doesn't make mistakes, then you guys can go home. you don't need to be here to tell planning they make mistakes, you can just leave. that is an outrageous comment here. you can help planning go out and look. if you look at the maps, and i am not going to say how to read them, but as an engineer, i know how to read. and these are in increments of 5 ft. this wall is 9 feet high. i can't mark on the drawing, but if there is a 9 foot change in grade, you would have a double line right here. anyone that has gone hiking, if you have a nine-foot, two lines, you have to sharp lines going exactly where none exists. to be honest, and he supports -- which supports the argument that it has been added to.

if you guys do matter, after planning to go out there and check the elevation, see how this matches, because it supports my argument and have them report back. if you guys matter and planning doesn't make mistakes. >> were you involved when the original permit was pulled having to do with this? >> no. >> your client chose not to appeal the permit because he wasn't aware of things that you have made him aware of? >> no, he asked for his landscaper to meet with their landscaper to work out the settlement for the vegetation because quite frankly, he doesn't care if it is illegal. he just doesn't want to see it. they said you're landscaper can't talk to my landscaper. >> is that codify in the letter? >> i don't know, what we asked

is what the landscapers should meet and figure out some way for this monstrosity to be hidden and they were told to pound sand. >> did you consider bringing this as a jurisdiction request rather than an appeal? >> i think the jurisdiction request is good, but the reality is that they are building on a wall that needs a variance. if one person needs a variant, they all need a variant. if the will was issued in error, then they can't build on it. that is what the current permit revives on. current permit is clearly showing that they are building on the wall. and of this wall needed a variant, the permit was issued in error.

>> and the house does not depend to be built on the retaining walls that are subject -- should be subject to a jurisdiction request. the house is separate from the retaining wall that he is complaining about. you're correct, there should be a jurisdiction request. the fact of the matter is, if we are focusing on the retaining wall, he permit was issued in march, it has been built and has been completed. we have detrimentally relied on the validity of the issue of the permit, you have heard that the permit has been validly issued. and more importantly, is that a journey which is an excellent attorney has reviewed the plans with his client, have shown the plans to his client, his client even had a consultant to review those plans when we entered into the settlement agreement. we have been here, we have

settled it, we have to allow this craziness to and to allow appeals, jurisdiction request, the less than finished their code compliant home. >> he characterizes this as being as simple as an issue of not having won skate architect talk to another one. can you comment on that? >> in our settlement agreement which is dated may 24, 2011, exhibit 5, we do have the landscape plans that were supposed to plant in accordance with his consultant. the shades of green recommendation, we are doing that. we have alread