dbi when it is a rent is you? >> a building should not be issued its final certificate of occupancy if it is not -- even issued its first permit if it had not paid the fee under the program. you have to pay the fee before you get your site permit it. that was the first shot that happened at the b i -- the first cjh -- the first check that happened at dbi. we have been working to firm up communication between dbi and the mayor's office. commissioner peterson: thank you.

president goh: is there any public comment on this item? seeing none, we will move into rebuttal. >> on page 6 of the notice of violation and penalty, it alleges that my clients wrongfully even did this person. if that is part of the basis on which the penalty was issued, there is a violation of state law because the unlawful detainer statute is under ccp section 11.61.

any interference with that or basis of a penalty would constitute a violation of the judicial powers act in an area of law pre-empted by the state of california. the problem is quite clear. when we go into court on an unlawful detainer and we get a judge to approve a settlement in superior court, then the city and county says that there is a wrongful depiction, there is a difference of conclusions. how is that going to be resolved if you have got this encroachment on the jurisdiction? getting back to the amnesty

case, which counts of referred to, that case involved a waiver of the ellis act by the property owner. that waiver was held to be not enforceable. the city cannot require somebody, a property owner, to waive their state, federal, or constitutional rights, unless there is compensation. there was no compensation paid to my clients. they are independent business people and therefore are absent any compensation. it would be an unlawful taking. we are not here to challenge the bmr law.

it is a good law. we are not here to challenge anything except the fact that my client do not come within the type of property owner which is subject to the bmr law because of the statutory language embodied. >> was your client represented by counsel and initially when these agreements were made? this would be 2001. >> during the permit process? yes, they were. >> i cannot find a derivation of all the penalties and were assessed. i do not know if that is amplified with the issue having to do with the eviction.

i suspect that it would be 250 without the eviction and. that is not the main point of this particular case? >> is not. we consider to be unreasonable. there is no basis for it. vice president garcia: i want a clarification on that. >> we do not know. vice president garcia: thank you. president goh: could we hear a rebuttal from the zoning administrator? >> picking up on what vice president garcia noted, this is a violation and penalty for " -- for failure to comply with the conditional use authorization. it is not that they even did someone and noted the penalty

and violation was issued because of the eviction. the parties failed to comply with the mayor's office, which is extremely clear from the evidence presented her by the mayor's office of housing. $250 per day is the standard penalty rate that we do assess if we notice a violation. the eviction notice was under evidence presented at the hearing. they did not notify the mayor's office of housing. so they did not comply in that respect. that is all i have to comment on there. >> help me with this confusion. section 315 no longer exists. it was replaced by section 415. there is no inclusion rehousing any longer? 415 gives it a different name and treatment.

the treatment is 8 feet as opposed to -- >> the planning code was amended after the bomber decision -- the palmer decision. it has been amended that, first and foremost, is a fee that is appropriately assessed because of a study that was done in order to support the affordable housing v. -- housing fee. they can choose the on-site housing. the requirements first and foremost is a fee. >> has that been tested? >> i do not believe so. >> commissioners, the matter is submitted. vice president garcia: one quick

question. mrs. sanchez. does the mellow out -- the mellow act apply to this? it has to do with whether or not 8 jurisdiction can issue bonds -- the mellow routh act. this one has to do with the housing on the coast of california having to be affordable. >> i believe that is correct. i do not believe that those particular properties are within the coastal zone. only a portion of san francisco

is within the coastal zone. usually, that is noted with in the conditions of our approval and at times, the coastal commission has jurisdiction or certain jurisdiction triet as far as i am aware from the record, i do not believe it is in the coastal zone. vice president garcia: just a curiosity. thank you. >> i guess i will start. it is unnecessarily not germane to my discussion, but the timing is interesting. there are tax consequences and condo consequences. that relate to the fact that it

is rental housing and sold as condos. in the thing for me is, as one of the few non-attorneys on the board, both briefs were extremely legal. it is not for me to understand the nuances within the legal arguments so easily. i do recognize, however, as an example come a one of the cases that was mentioned was san remo. the attorney ticket to the supreme court -- the attorney took it to the supreme court. i do not see the relation of that case to the arguments, since i sat on -- since i sat in on the hearings for both that and the cornell hotel.

anyway, what struck me most is that the principles of this firm, they negotiated, took two years, it was not an overnight deal, they signed it with the same principles. they should live up to what they agreed to. vice president garcia: i will speak as the other non-attorney cheri a reasonable approach would be that, aside from some constitutional issue having to do with section 315, which was in place when this permit was granted, it seems as though a covenant was entered into, a contract. there is no suggestion that there has been misrepresentation of fraud or any of the normal things that would end a

contract. that aside, it is an exercise and i have enjoyed reading about it. the most compelling argument for me is that i accept more the city's argument about statute of limitations than i do the appellant. when you read into why the 90- day exists, and i love the word profit to -- proftitude was part of it. i am from the business world. this is business. it has to do with real estate. aside from any other argument, i think that the statute of limitations is right.

>> i agree that the constitutional arguments were interesting. i think the design of counsel raises some interesting arguments there is also the counter of legal principles and i think eight years after the fact, as far as our limited powers would be governing our decision, matters for constitutionality reside elsewhere. i would not want to repeat everything that my fellow commissioners just stated, but i think the most compelling argument, also, is the statute of limitations and the city attorney's position is more compelling, more persuasive. >> i agree with what has been said. is there a motion?

commissioner fung: i moved to uphold the zoning administrator and. >> that would be as well as the 90-day appellant? >> that would be my motion. >> we have a motion from commissioner on -- fung. on the basis of the 90-day statute of limitations. on that motion, president goh: aye. vice president garcia: aye.

commissioner fung: aye. commissioner hwang: aye. commissioner peterson: aye, >> president goh, should recall the last item in. protesting the issuance on 40-50 lancing street. the permit to alter a building which was to demolish and remove existing would form work or shoring at the north end of the building and. we will start by mr. -- we will start with mr. buscovich. actually, if you could wait for a commissioner to return, we

will begin momentarily. vice president garcia: did you want to go to the bathroom? we will wait. i am assuming that is ok with madam president. president goh: that's fine. >> please go ahead. you have seven minutes. >> i will not be seven minutes.

maybe other people will talk. the owners of my client's building are here. thank you very much. in a past life in the 1980's, i did wait too much shoring and underpinning and then i would want to do in my life. it is a shoring project. i have long since passed from that life, but i am familiar with the issues of underpinning. a little bit of history -- our project has had shoring and underpinning done on it. there is a permit to do work on their side of the property line, but they have underpinned our building under a permit. that altered our deck. they talked about tearing the deck in the back down. along the side property line, they altered our debt and done a

temporary shoring. the current debt is the only way in for the tenant. it is along the canal supported all of this form work. my brief comment is that it appears their work crosses the property line, because they are talking about doing work the was permited on a permit the was filed on our property. i have gone out and look at the front deck. there is you about an authorized agent -- the junius brief comments that this work does not cross the property line. we are not expecting the stability of the deck, which is concerning me, because they mention a six-foot vertical wall. are they taking down 6 feet? and that they are the authorized

agent. we had a conversation in the hall. it will make a clarification about their position. i do not need to make comments about it. but my response is, i have no idea the scope of the work. the scope of the work is a citation from the city that says damage to the property at my client's property, the contractor did not finish the work and left debris on our side of the property. the permit says to demolish and remove the existing would perform -- wood form and comply with another current. that is for my property. how they can pull a permit to

work on my property is beyond me. what they need to do, the entire scope of this issue, this is a pretty complicated issue, they need to prepare plans and show what they are doing. they also need to do a survey to see if they're on their side of the property or our side of the property. the junius break might be right. i cannot tell but i do this for a living. the building department cannot tell because the citation says to take stock off of my property. i have looked at the drawing that is the base citation that the underpinning is on my client's property. to be perfectly blunt, both properties should have been cited, not just theirs. they both should have been cited. the reality is, the current debt is not stable. i have prepared plans to fix the deck. but i cannot fix the deck with

surcharging their building, because now have been -- that have built a basement beneath my building, has been resolved. i am asking the board to direct the applicant to prepare plans so that we all know what the scope of the work is. to do a service that make shores -- that makes sure their work is on their side writ it is not possible because the permit for my side, then come back to the board and let everyone see what their permit is. the current permit -- complies with violation for work done on my property. we need to fix the deck. i cannot fix the deck if they figure out what they're doing. i need to get a firewall issue resolved. that is part of the problem. there is a simple fix, and $50,000 for two decks.

it is an extremely complicated fix if i have to drill case on its -- caissons. we have asked their permission to do a surcharge and we have not gotten a response. we have asked them about the fire wall and have not gotten a response. we have a rent control unit. we have no idea what they're doing. they need to prepare plans so we can all see what they are doing. they need to come back here with something better than, comply with the violation that was filed to the wrong address. these people own the building. that owned the building for years. there is a retired police officer who lives there. he is in a rent control space and he is a family friend. we want to get this thing fixed.

if you have any questions, we would be happy to answer it. it is a pretty straightforward case of someone needing to prepare something. they did the underpinning with very complex drawings. you cannot yank this out without being concerned about stability. there is no reference from any engineer who has any experience in underpinning. we do not want to destabilize this house. thank you. vice president garcia: did you want to speak before? >> i just wanted to say thank- you. i really nervous. this has been going on -- i am body of frazier -- claudia frazier. i inherited this from my dad when he passed away. i am grateful that my tenant has been patient, because we have tried to work with them and

things just have not been very truthful. we never gotten to the point where we have to hire an attorney. i just want my tenant happy, i want the place safe. the promises that they made to my father, i want them to take care of things they said there would take care of and i'm asking for your help on that. thank you. >> in the respondents brief, you refer to some unreasonable demands made by the appellant. >> i want to be careful commenting about confidential settlement agreements and having them reprinted. the big issue i have is that i know what the value of their deck is. it is the same value as mine. the big issue is that if the deck was taken down and i

replacing it, it is a firewall issue. if i can get away from the firewall issue, i would say a tremendous amount of money. i ask the question, can i surcharge your basement wall? i could get another large check of money and make this a lot simpler. i have not approached planning because the surcharge issue is a huge issue. if i have to drill caissons for a silly deck, it is out of control. but a neighbor cannot surcharge the basement wall. that is the issue of making this simple. i have asked the question and have gotten no response. >> there was an issue raised about your appellant. not allowing access. >> there are issues of access that are there. to be perfectly blunt, when

planning comes out and takes a lot -- they did not finish the building. they need to come onto our property to finish the building. they did not finish. i do not know how dbi signed off. they did not fulfil the planning regulations. they want to come onto our property to finish our building. the last time they came on, they tore down the back deck and walked away. and the sliding door is still open. if you walk out of the sliding door, you drop to your feet and break your neck. we brought in an independent contractor, i told them the numbers over the phone of what is going to take. the big ticket for these numbers are firewall and caisson. we are reticent about letting them come back on the property until this issue gets resolved. commissioner fung: if you are asking for a resolution from the board, three of those issues were not in your brief.

the fire wall was not, the surcharge issue was not -- >> those are my issues. commissioner fung: but you are asking the board for a resolution. why were they not in the brief? >> their permit was a separate issue. i cannot do my permit for this. when we file our permits, which you have to file for the right address, i could not put my issues on their permit. their permit is filed for 50 i will have to file a separate permit. i am sorry for the misunderstanding. president goh: we can hear from the permit holder now. >> good evening president goh

and members of the board. i am with the law firm of rubin and junius in san francisco. i appreciate your time tonight. he made a few statements that i think miss characterized the status quo of the project and what has been happening over the past few years. first of all, the permit that we are talking about is a permit to remove some pieces of wood that remain on 15 guy place property. the person who called in to the -- who called in the complaint as a means to leverage, we do not know that for sure, but we were simply trying to respond to the notice of violation. he says that there are some shoring issues, the debt is not stable, the whole thing will come crashing down if we do not -- if we allow this permit to proceed. a couple of points about that -- if you look at the notice of violation, and the underlying

permit, and you have a copy of the notice of violation. that is attached as exhibit f to my brief. it talks about -- pardon me. it refers to the two by four wall constructed at the rear side without a permit current there was a permit for the underpinning. the two by four wall was part of the shore information that was done when the project was originally underpinned. i have a copy of an e-mail from the department of building inspection. if i may submit copies to the board. they confirm there are no shoring issues at hand. i refer you to the department of building inspection. they confirmed that to me by e- mail that only talked about mail that only talked about removal of some pieces of wood.