question. if you would like, we can move to the merits of the argument -- president garcia: right now, we are hearing on the continuous issue. how long is your window of opportunity bint to appeal? >> the cat x accompanied this building permit and it was dated early february. under the city attorney's guidance, we are timely on the ceqa appeal because it is pending before your board. president garcia: how long into the process did you wait to file your appeal on the cat x? >> we filed it yesterday. i was brought in on this matter last week. the council that were handling it previously were from out of san francisco and not as familiar with the local procedures. the building permit was issued and the cat x was issued

february 3. >> what is the basis of your appeal? >> is a home that was built at the turn of the century. the project proposes construction of a fire wall. we are uncertain what all of the structural issues are at this time. their plans indicate that several openings would have to be closed as a result of the construction on their property. the basis for the ceqa appeal is that the categorical exemption did not take any consideration to our client's home next door. we believe the environmental review is inadequate. >> is your client's building a landmark? >> is not. but it is a category a resource. president garcia: and the historical aspect of it was

reviewed by planning? >> the cat x document indicates only a category b structure. based on the face of the cat x it does not appear that our clients home was considered. because it is a category a resource, it deserves to be considered and it is part of the product description, given that the project would require closure of several openings in the house. president garcia: thank you. >> good afternoon, president garcia and members of the board. we are working with the project sponsor in the response to this appeal. you heard from ms. shaw yesterday. she recently got into this case but there is a lot of history.

on february 7, the appellate filed a lawsuit about an easement that they do not have property -- on our property that they do not have it jurisdiction over. they do not have a prescriptive easement and we will prove that in court. up to the time they file the lawsuit today, they could have gone to court for an injunction, which would have included you having to hear this hearing. an injunction would be the probability of proving the prescriptive easement. at had six or seven weeks to do that and they have not done it. on february 3, the permit was issued an the categorical exemption was issued and i think is probably very relevant to show you that categorical exemption. here it is. there is the front page.

if you take a look, by the way, the planner is elizabeth wattey, a very capable and experienced environmental planner. it is initialed under 8, other were consistent with the secretary interior standards pertaining to the far wall. she was fully aware of the radiance of these buildings, took a look at the preservation issues. the prior page has a box checked saying this is a preservation asset. it was all considered as part of that categorical exemption. it says, "known historic resou rce." there is nothing to be gained by putting this off to listen to the same material again after the planning department has already considered it. it is a fire walter it is a

safety issue. i can show you the plans and we will get into that if we have a hearing. but the appellate house is not occupied and has not been occupied for the last year except for maybe one week. the owners travel a lot. this fire wall is going to sit between their house and our five-unit building. it is going to protect us from a boiler room which is there. the windows and door she is talking about, there are two windows and two doors. one is in a mechanical room and the other is in a stairwell. the door is surplus because it leads to the garages. there are two front gates to the garage that open onto lombard street. i urge you to allow us to proceed. there is nothing to gain by waiting. frankly, there are problems with waiting. thank you. >> is their departmental comment?

>> scott sanchez, planning department. i want to clarify one point about the ceqa check. overall, it was finalized by a very capable planner, but it was additionally reviewed by one of our preservation specialists. it did have two planners are reviewing the analysis. it was clearly shown as a category eight known historic resource and that was included in our evaluation. the ceqa appeal was filed yesterday. it could've been filed any time after the ceqa was issued more than one month ago. the city attorney has yet to make a decision about the timeliness. that is all i will say. thank you. >> is there any public comment on the continuance question? seeing none, commissioners, the matter is yours. president garcia: before we deliberate, would you, madam executive director, or the city

attorney, explain what the effect would be if we would hear this? and the board of supervisors were to hear it also? if the city attorney determines it was timely, what would happen to our process? >> if the city attorney determines it is timely and the board of supervisors here is the appeal and decides the underlying and our mental evaluation is faulty, then any decision that this board makes would be moot. president garcia: not mooted by the board of supervisors taking jurisdiction, only if there were to decide that the cat x is invalid. >> correct. president garcia: thank you. any comments? >> i would be inclined to hear the matter. i do not think we need to wait.

i would be inclined to hear the case. commissioner hurtado: i would be inclined to continue it. commissioner fung: perhaps i am too much a traditionalist. this board has always preferred when there was a potential cat x appeal. president garcia: i guess i could make a difference. we need three votes in order to continue. my feeling is that, i know it is not a city policy, but the cat x issue has to do with state laws. not any thing with the city. it would be one thing, and i regret this, ms. shaw is new to the case, but it seems difficult moments before something is

heard before this board, there is an abuse of this process. someone appeals it to the board of supervisors and it prolongs the process. i know what the tradition of this board is. i know what we normally do here. given the statements made by the zoning administrator as to the individuals who dealt with this at the planning level and the fact that category a was taken into consideration by two different people who are skilled in this particular area, i am going to not support a continuance so if someone who wants a continuance wants to make a motion, we will vote on that. >> in the absence of a motion, we will hear the case. president garcia, i recommend until we wake that it is normal

order to hear it. president garcia: i would agree with that. >> i will call item no. 4, a jurisdiction request subject to the property that is at 2825- 2827 greenwich street. the board received a letter -- a letter from gregory hanson asking that the board take jurisdiction over bpa no. 2012 /01/24/2796. it was issued on january 24, 2012. the appeal period ended on february 8, 2012 and the jurisdiction request was received at the board office on march 7, 2012. the project is to remove an illegal unit at the back of the

garage, to install drywall @ sailele walls, and sealing a descent to unit above. there are also seeking a continuance. president garcia: if someone is seeking a continuous, we will hear that. >> i had spoken with the executive director today in contemplation of requesting a continuance and but we never said that in and are not, at this time, requesting a continuance. >> my apologies. if you would care to go forward with your three minutes to argue the matter of. >> mr. hanson is going to begin. >> thank you very much for hearing my request today. with the request of the the building permit issued on january 24 and the appeal period that ended on february 8, the first time i had any awareness

of such a permit was when a copy of the permit was taped to my front door on the 30th of january. at such time, i called an attorney who i had worked with in the past on occasion and asked the attorney what to do. the attorney said, you need to go find -- he is an attorney who specializes in that land use issues and some legal area that i needed help in. i went about the business of trying to find an attorney. i finally did find one who agreed to represent me on a contingency basis for a buyout negotiations and suggested that the best thing i could do to help myself is start doing some research. he suggested that i see if there is a certificate, a certificate

of final completion on the file and is there a way i could go about appealing the permit. i went about doing my research, made many trips back and forth to the planning office, the building department, and learned that there is a lot of compelling reasons to believe that my apartment is a legal unit. with that, i am not an expert. i would like to turn that over to mr. kristol to present to you. -- mr. driscoll to present to you. that is pretty much it. >> thank you. tonight, we are just addressing whether the appeal should be heard. as mr. hanson indicated, there is some efficacy in explaining why we want to be heard ultimately. this is a 1938 building that was

recently constructed as a two- story building. i have seen a permit that allowed the additional unit to be constructed in 1940. also, i understand this is an rh2 zone now. i have seen the zoning map that showed that it was originally r3. i want the board to realize that this is not a pro forma appeal or request for jurisdiction but that there is some substance triet one thing i would like to amplify on what my client said it was he received notice on january 30. that is correct. it was attached as an exhibit to a 60-day notice attempting to terminate his tenancy. other than that, he had no notice of these proceedings. what this comes down to is the right to be heard. thank you.

commissioner fung: do you have a response to the current holder where they indicated the december date of correspondence? it was december something, the correspondence with the appellant. >> excuse me. i was just retained a couple of days ago and have not had a chance to review it. >> mr. schlarb or your counsel? >> good evening. i am speaking on behalf of jeff schlarb. this is a jurisdictional request. nothing has been stated by the request for, mr. hanson, indicating he has satisfied it any of the necessary threshold's in order to justify the right to

have this matter proceed. in particular, to grant lee jurisdiction that the board must find that the city intentionally or inadvertently was late in filing the appeal. there is nothing before the board that suggests that. unlike what mr. hansen had stated, exhibit b, which is referenced in the materials are presented to the board, clearly, in december of 2011, he refuses to provide information regarding his tendency and references an attorney who is representing him at this time, robert peterson. mr. hanson is now on his third attorney. while i understand that mr. hanson may be disappointed about the fact that he is residing in an unwarranted unit, my clients are new owners, trying to do the right thing and remove what is not permissible. they have complied with the san francisco rent ordinance and served a proper 60-day notice,

provided mr. hanson relocation payment as provided under the rent ordinance, and mr. hanson is not entitled to a jurisdictional request. he is not availing himself of other opportunities to contest this matter. he can contest it at the san francisco ran board and the has the opportunity to contest the termination notice through the court system. i would vehemently oppose -- oppose any attempt to stop the process and allow the board to accept jurisdiction while acknowledging the right he has to defend himself. i would ask that you reject jurisdiction at this time. he did not take the necessary steps. he had counseled. it was over one month from the time of service of the termination notice to him actually going to the board of permit appeals despite his claims that he only received the

termination notice when the board was mailed to him. we have a proof of service that is provided. most importantly, my clients are in a very particular situation. they bought a property knowing that it needed to have a unit removed and this simply want to avail themselves of the right to be compliant with the law. thank you. >> anything from the department? >> scott sanchez, planning department. just a few notes. no neighborhood notification is required to remove and a legal unit. records indicate that this is a two-family dwellings. the map indicates it is a two- family dwellings. i am not aware of any information that establishes it legally as three units. a third unit could not be

legalized at this time. maybe mr. duffy has additional information about the past records, but that is what we have. additionally, the permit holders briefed there was some mention of the use as an office. just to be clear, the use of this office independent of a dwelling unit would be illegal. it would be a separate commercial use. you are about to have a home office as part of an accessory to a dwelling unit, but not separate from a dwelling unit. i am available for any questions. >> i do not know that you can straighten this out for me, but in exhibit b, i assume this would be the permit holders brief, it appears as though there are six units in this building? and the tenant has the right of first refusal? i do not think it has any bearing on whether or not we agree to jurisdiction, but i am

just curious. >> exhibit e is the agreement for premises. i do not recognize this as a city document, an official city document. whoever prepared this, maybe this was a tic agreement. but it is not something that we would use as reference for establishing the number of legal units in a building. president garcia: i was just curious as to whether or not it was three units, this being the third, that the request for lives in. or whether there were actually six minutes -- six units? >> if it was being rented out as office space, that would be illegal. this is not a city documentary we did not generate this, so i

cannot comment on it. >> i believe this refers to the property across the street. there are some allocations in the brief about the requester's tendency across the street. president garcia: thank you for clearing that up. commissioner fung: the legalization process is different. it needs to be initiated at the planning commission, does it not? >> in terms of establishing this as a legal unit, we do defer to the department of building inspection to establish the legal number of units in the building. a report was prepared last year as part of the transfer of the property to the current owner. they have established this as two units treat you can petition to the department of building inspection to correct that if you have additional information that establishes a historic use of the property. i am not aware of any

information that establishes historic uses. commissioner hillis: can i just ask how this works? if you want to avail yourself of the rent board process, do we stop the planning permitting? how do they work together? >> this board has a tradition of how to handle illegal units. there are separate processes. the board does offer processes for relocation. when it is an illegal unit, i cannot exactly comment on how it plays with a unit that is illegal, which appears to be the case with this. >> mr. duffy.

>> good evening, commissioners. joseph duffey, dbi. the permit was applied for and properly obtained under -- over the counter. two dwelling units. the only thing i see, it is done on 3 units on that. that is probably not accurate but just for tax purposes. i do not see anything in the brief but is it legal occupancy. as far as i'm concerned, it is a two-unit building based on the permit. if anyone has any questions, i would be happy to answer them. >> is there any public comment?

seeing none, commissioners, the matter is submitted. president garcia: i guess the reason it would matter whether or not it was a legal 3 units, if they were to evict this tenant and go to two units, it would represent a dwelling unit merger. different processes would have to take place. there has been no evidence presented that this is anything but two units. there is no evidence presented that anything was not done that should have been done in terms of the notice. i personally look forward to the comments, but i see no reason to grant jurisdiction. commissioner fung: i am in concurrence with that. president garcia: i would move

that we deny the request for jurisdiction. >> please call the roll. >> we have a motion from president garcia to deny this jurisdiction request. commissioner fung: aye. commissioner hillis: aye. commissioner hurtado: aye. >> the boat is 4-0. this jurisdiction request is denied. >> we will call item no. 5 now. ruth levy inverses the department of public works bureau of st. use and mapping. this is protesting the issuance on december 22, 2010 of a minor sidewalk encroachment permit. the public hearing was held on

february 8, 2012 and is on for further consideration today. the matter was continue to allow time for the permit holder to pursue other proposals and allow additional briefing. is the department here? great, thank you. i would think we will start with the permit holder, since they were the one to provide additional information. we will give them three minutes, is that right, president garcia? president garcia: please. >> president garcia and members of the board, i am the permit applicants. we prepared an alternative design for a worked sidewalk as per the board's request and provided a split level sidewalk previously submitted to you. we submitted the drawing to the

department of public works on february 21 for their review. the drawing -- i am showing a drawing now of a proposed design for a worked sidewalk. -- a warped sidewalk. there is a five-inch step at each of the store entrances, hear, hear, and here. -- here, here, and here. this step was lowered from 9 inches to 5 inches. at 11 comment street, there would be a four-inch round inside of the store as well as a landing at the store entrance to. my clients have advised me that they prefer the proposed warped sidewalk option because of the

members concerns and their own tents concerns. i have prepared cost estimates, as you requested. both for the split level sidewalk and for the warped sidewalk. as you can see, the cost differential is fairly minimal. it also explains the sources we had for the estimates. there is one difference -- there would be some loss of space in 11 clement because of the level landing carry it would have a long-term impact. i think that is all i have to say. do you have any questions for me? >> the last time you were here,

we talked about a vacant storefront. two stores that were combined into one area your estimates for the gate in the middle of the sidewalk for the entire life, did you look at not doing anything to the storefront, where it is not an entrance currently? >> for the warped sidewalk? commissioner hillis: either alternative. >> we did not look at not having a raised sidewalk at 11 clement yet. the cost estimates that you see before you are based on the previous scheme that we had. commissioner hillis: the storefront that does not need an entrance now,