>> 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 already resolved the issue of the green privacy screen. we are planting in concordance with the recommendations of his consultants. >> you may plant ivy or other trees on the property to provide privacy? any comment on that?

>> it is focused on the planting of bamboo with inner plantings by either bamboo or ivy to provide the green privacy screen. we have planted the bamboo, this is mid-process. we haven't yet installed the appropriate restraint to prevent it from hanging over, but it grows quickly and we believe that there will be sufficient privacy between the homes. the client and their interests are mutually aligned. they want the green privacy screen of a gun see him and he can't feed them. our interests are aligned, we have a documented the settlement agreement. they just have to allow the bamboo to grow. thank you.

>> commissioners, the matter is submitted. >> i don't see where we can do anything here other than the one thing that he asked for, that may or may not be reasonable, to have a planning actually look at the site, because i think all they have done is all that has been done is to look at haplography maps. as for us to decide anything else, we certainly don't have any jurisdiction over the issue of the planning, the planting, and nothing has been raised that should cause this board to overturn a permit that has actually been appealed.

>> other comments? >> i appreciate getting to the nub of the problem about the landscapers, i don't appreciate an appeal being brought on a permit that is not really the permit at issue. for that reason, i would lean to asking planning to go out and check it out, but i don't think there is much we can do on the permit that issue. >> i wouldn't want anything to happen that would cause this permit if it has already been suspended -- is there an active permit and construction is not taking place as a result of this appeal? >> of the permit is suspended. >> i would ask that the request for planning to look at it would be in order for them to determine whether or not some other penalty is in order, and

they can take it from there, but i would ask that if we were to uphold this permit, but i suspect we will, that the work not be suspended until such time as planning has had an opportunity to inspect the site. >> i would agree with that. is there a motion or further comment? >> i move that leopold the sperm and beyond that, we ask planning to go out, but this permits will not be suspended until such time as planning is able to inspect the site. >> understanding that the board -- you are making a request to planning, but not part of the binding decision. when >> my feeling is that if there is -- [audio problems]

if there is something improper that was done, it can be dealt with through the penalty system or whatever. >> he mentioned suspension of a previously issued a permit. again, that is not this permits. >> the motion is to deny the appeal at the pull of the permit, have separately with the request to planning to make a site visit. >> that is based on a finding that the permit the appeal it is compliant. >> and absolutely nothing was mentioned or demonstrated to cause us to believe otherwise. >> i would support that motion but for the bases on which it was made. i think if we're asking planning to go out and have a look at the potentially erroneously

previously issued a permit, it is the foundation at all of this one, i think that is a problem. >> i am confused. what with the problem be? >> he would uphold based on the fact that it it is compliant, but would not be cut comply if what we're asking for them to go look at is true. >> nothing has been demonstrated that wasn't cut compliant, so i'm not holding it on bases that no evidence came forward that would cause us to think it wasn't code compliance. and it turns out that they are in error, planning has other ways of dealing with it. i think it is reasonable to make a finding of code compliant when nothing was demonstrated to us causes us to believe otherwise. >> we have of motion from the

vice-president to uphold this permits on the basis that it is code compliance. >> and that nothing was submitted to suggest otherwise. >> and no evidence submitted by appellant to suggest otherwise. on that motion, with that basis -- president goh: i'm going to vote no, because of the bases, no evidence presented. there was evidence presented, but perhaps we didn't accept it. peter mission nearson -- commissioner peterson: aye. commissioner hwang: aye. >> the permit is upheld on that

basis. >> we will take a

>> you have to start construction within 18 months of authorization, and acknowledging the economic crisis that we are in, the commission adopted a policy whereby they would monitor but not automatically revoke these entitlements. in 2007, we got an update to the planning commission and in 2009, we gave the status of these requirements. the commission requested an informational hearing on this. we gave them a hearing earlier this year. the commission said, in their estimation, this was no longer

viable for moving forward with the project and it should be brought forward for revocation. on june 9, 2011, we had a hearing on the revocation of the office allocation. the project sponsor did not show at that hearing. the project's sponsors submitted when the p.o. of the suspicion to revoke authorization. they did not submit a brief, and requested a rescheduling of the item to give them additional time to prepare their case. we agreed to a one-time continuance, and they did have the requireme three weeks ago. we respectfully request to uphold the revocation.