the package to the planner to mail out. everybody should have gotten a copy of the current plans in the 311 package. everyone that is here, that is a 150 foot radius. at the very least, they knew something was going on and they saw the revised plans. we went through the d.r. process because the der requestor had filed the d.r. but not withdrawn it. and the project had gone through so much change since they filed. i guess there d.r. was no longer relevant. i remember my conversations with the planner and he was -- he said there would not withdraw the d.r.. so they basically a kind of stopped in the middle of the process. if they still have issues, maybe they did not understand the process and i do not know what the solution is to that.

san francisco seems to hold out its hand to people and try to help people. i think there are resources, i do not know what to say. regarding issues that some of the neighbors have raised about the floor plans and it looks like someone will change it into an illegal configuration in the future, that is an illegal configuration. if they attempt to do that, they apart will cite them and the neighbors will log an anonymous complaint and the building in the department will inspect and it will issue an [unintelligible] just because someone does not break the law in the future does not mean we have to prevent them from doing stuff that is legal today. there are regulations regarding sound and nuisance and i sympathize with the appellant. we have all experienced neighbors that are

disrespectful and have parties and keep this up at night. nobody likes that. but there are laws on the books to address that. there is a process for dual -- dealing with that. the fact that someone could termite is not a guarantee they will, and it is not justification for removing that roof deck. i think the roof deck is fair. it is 300 square feet, it is pretty small. again, i believe that the envelope of this building is modest. that we have modified the plans, and we are open to working with them that we're not amenable to removing the third story. i think that is fair. that third story is only 30 feet in a 40 foot district. every single neighbor here is entitled to that same envelope. so that is our position. if there are any further questions, i am available. president hwang: -- vice

president fung: would your client consider reducing the roof deck? >> are you willing? are you willing to remove the -- president hwang: you can talk to him separately. vice president fung: it requires some kind of decking material of some type. i am not talking route the setback. i am sure the neighbors love the setback. it does come -- conform to residential design but i just threw that out. >> i will speak to him about pulling the front of the roof deck slightly to keep people offered from the front of the building. maybe it will provide some level

of separation. again with setbacks from both sides and the road in between, the appellant across the street is pretty far away. >> it seems tro me, this roof deck is on the front of the house. it seems really out of place with the photographs we saw, the others on that block. i am not sure what is going on with the rest of the neighborhood. we heard from planning that it is within the residential guidelines. it's kind of -- looks like a sore thumb, out of place. i do not know if you survey the neighborhood to determine whether there is anything else that looks remotely similar? >> i have not for roof decks. from the ground, you may not be able to see them. this one will have -- the front

parapet extent and kind of heights the roof deck. e -- extends and hides the roof deck. this -- you do not really see it. it is like a railing that you can see through or anything like that. i am wonderinpresident hwang: yt back? that is more in my mind visually -- i do not know where the sun fits into all this and why this decision on the part of your client. wondering if there is any way to move the interior space forward

so that remains, you get to keep your interior space but not the back. >> the size of the front deck and expand the size of the rear? i don't know. president hwang: i do not know what is contemplated. we're hearing a lot of on have been around that front. if you are saying it is hidden and concealed that is -- there's nothing in the visual. if you are not able to notice it until people are standing on it or sitting on it or hanging out on that, it is hard for me to get the visual. i'm wondering if there is some way to address that concern. >> can we move forward?

i am not sure of that goes far enough from the neighbors' concerns. >> maybe we can talk to planning about what they would allow. >> ok. those are some thoughts. i did not know if there were considered and rejected. >> i was not involved in the initial design. we're not the architect of record. we do not have the history, unfortunately, of this project. i cannot tell you what sort of debate went on in their original design and the subsequent modifications. president hwang: thank you. >> where are we? >> we have rebuttal from the departments. mr. sutter -- sider, do you want

to rebut? >> thank you for the opportunity. i will be brief. the residential design guidelines to address exposed upper stories which are typically the stories -- do address expos upper stories. they do speak to the 15 foot front sent back. we do see that with some frequency throughout the city. the typical architectural response is to use that france faced as some kind of open space. we do see some? that did not occupy that entire area. i would say more often than not the entire front setback area on top of the story typically is stack. as to the question of whether or

not the department contemplated shifting -- contemplated the product -- project, we did and our reply is to say it should be shifted back. that was what staff said. you have discretion here. >> you're saying the front deck in that open space is commonplace throughout the city. >> yes. >> thank you. >> mr. duffy. >> i feel i should made -- i should address the commabout th. i am not sure what the $500 is about. if you want to file a complaint with dbi, call the investigator and there is no charge for that. what might have happened is the lady might have called after the

issuance of the permit to complain about the permit and that might have been, sometimes our board -- or staff tells them they can go to the board of appeals. the permit details report, i printed it off today. that is on the tracking system. the demolition permit, the new construction permit, also i did see the vacant building complained with inspector kees matter and that should pay an annual fee. there is a permit filed and sometimes that is overlooked. the vacant part goes away and the inspector would know the details. >> the matter is submitted. vice president fungpresident hws

what you would like to address? at the microphone. >> they provided 311 addresses, that is a noticing code on 3- 30-12 for demolition to times on five, 25, 12. -- 5-25-12. vice president fung: we tried to explain that to you. that only goes to the adjacent neighborhood. it is the notice of the

proposal with the plants involved in july of 2011 that went to the 150 foot radius. nobody responded to that. >> that is the chance to file a d.r. when that notice goes out. to stand up and say i do not agree. notice goes out to a smaller subset about the d.r.. >> which i respectfully disagree with. thank you. >> it is unfortunate that neighbors have not talk and discuss this project. there are architect and owner

and engineering changes. that is unfortunate. a lot of these questions could have been addressed. i would agree with planning that it is fairly typical you get this third floor even in these two-story residential areas. they're all around the city that are set back. it is great that we're sitting that back 30 feet. what do you do with that space? you can leave it or do something like open space. i prefer the roof deck in these situations and adding more life to the street. there is neighbors that disagree with that obviously. and do not want that. my inclination would be to approve the project. and denied a permit. -- deny the permit. >> i do not feel i can speak

with the same certainty. i think some of the issues raised by the appellant i think were addressed adequately by the plans. i do not think a third parking space is necessary and we have some clarifications on the plans in terms of their accuracy in reflecting the deck. concerns regarding renting, i am a believer that tenants and owners should live together in the same community. so if it is rented, that is fine with me. in principle to the extent that they are problematic, that is the problem but homeowners can be problematic, too. the street facing deck is challenging to me. i do not see it as commonplace. i am not a planner. i have not been to every block in the city so i cannot speak to that. it did seem inconsistent with

that neighborhood. i can understand the challenges the neighbors feel and their viewpoint. i think i might feel similarly in my own neighborhood. i did feel heartened by the permit, the sponsors' communication that there would be willing to engage in more discussion. i think that needs to happen. i do think the onus and should have been on the project sponsor from the get go. maybe a lot of this, we would not be here especially with the demo permit. the replacement structure is fundamentally at odds with what the neighbors want. i do not know if there is any flexibility there. the discussion and opportunity to have those conversations could result in something that might be more amenable to better neighborhood relations.

and -- for that reason, i would be inclined to give the parties more time to have those discussions and continue it solely for that purpose. that is just my inclination. i do not know of others feel the same. -- if others feel the same. vice president fung: you have arrived to the same position but in a slightly different way. the interesting thing about this neighborhood is it follows the pattern that is similar to a couple of other neighborhoods but took a slightly different path in how they control development. if you look at what occurred in west would parked in -- westwood park in mira loma, they were able to get approved a design guidelines within their areas

that was applicable to all buildings. like westwood park, it had a height limit of 28 feet which precluded a third story. they would rather have people go down and expand inward rather than go aboard. the question about that here, it is a little bit different, in my opinion. first is westwood in mira loma. there is no doubt that on this street, the context is quite consistent in terms of two stories. the reason why the deck comes up is because of the third floor and therefore, the mandated setback that establishes a lesser impact of the third floor upon the streetscape.

and adjacent neighbors. that then creates a situation which puts it right at the edge for me in terms of its ability to fit in within the context. it is not overly done and yet it is not real close to what is there. on a personal note, the reason i bring up the thing about the deck is it is not something i find very suitable, especially in a less dense area, where the yards are larger, there? in the rear. i am not enamored with roof? in general, and -- with roof decks in general. if they are a limited size similar to what one may require

as a open space by the planning code. in this instance, that would be somewhere in the neighborhood of 100 square feet. what swings me in terms of my final determination here is the fact that this site has had so much process and i think that was part of the problem. the process that occurred before was to maximize and therefore createed a situation where the numbers -- neighbors who were there previously versus those who were there tonight wound up probably with a very protracted and therefore difficult process in dealing with the previous developers.

it [unintelligible] this particular proposal. given that level of process, given the fact that nobody responded to the notice, to make, that was very important and was telling. i am prepared to support this permit, but i would like to see a reduction of the usable roof deck in the front. >> i have been undecided about how i came out on this case until i heard commissioner fung speak on this case. i have seen this type of roof? -- sha'reroof decks.

because of the way they are constructed, i do not believe it would infringe on privacy. i am also swayed by the fact that it is far away. it is 100 feet. it is not directly in front of any windows or anything like that. that is the nature of living in san francisco. so i would be in favor of commissioner hillis' position is -- which is to uphold the permit as it is. and also the additional fact that there has been a lot of process around this permit and we have to reach a resolution. it is unfortunate that no one attended the d.r. hearing. there was the opportunity to do that. it is unfortunate that may be the neighbors did not communicate about someone being present their but the process

was available and it was not used. at this point, i do not feel we have any other choice but to uphold the permit. >> i would move to deny the appeal. >> ok. >> we have a motion to upheld this -- of polled this permit on the basis that it is code compliant. -- uphold the permit on the basis that it is code compliant. the vote is 3-1. this permit is upheld as is on

the basis. thank you. president hwang: i will call the next item. appeal no. 12-055. subject property is at 99 marietta drive. protesting the issuance on april 13, 2012 to lease a burrell -- lisa burell to alter a building. we're going to start with the appellant's council and you have seven minutes. >> thank you and good evening. president hwang and committee. i represent the appellant, mary maxon.sh

she is on assignment at the white house in d.c. but i in august she will be coming back to her home at 95 murieta drive -- marietta drive. the permit holder lives on the peninsula. she has a real estate background. she is the sole title owner of the property in question, 99 marietta drive and the issue raised is the appropriateness of a decking system she intends to hang on the back of her property. i'm going to try to limit my comments to about five minutes and then mary will speak as well. you can see that the decks in

question are close to the adjoining property in level owned by dr. maxon. the houses are cheek and jowl. i have attached to the brief and exhibit c the representation of the sideline that would be afforded anyone standing outside on the proposed the deck and looking into dr. maxon's better. the bid to -- the depicted rectangle is her bed. most of the room would be clearly visible. this is an attempt to illustrate what mary, if she were in her bedroom, would see.

if she entered the room and looked out at a time when the deck next door, as proposed, was being used by her neighbor. ms. burell's brief was drafted -- drafted by the architect. he says the decking does present if you and obstruction problem but he concludes this is the city and it is dense, tough luck. no one should expect any privacy or views in san francisco. he also makes a couple of other arguments. first he states the proposed decking system is consistent with the maryland lab -- mira loma neverland standards.

this demonstrates quite the opposite. there is a letter that was offered by the mira loma improvement club, signed by the president of that organization, cassaundra davis. i believe that is in your packet. i want to draw your attention to language in that letter, suggesting that the board of permit appeals consider the modification of the building permit to eliminate or at least to minimize the proposed second floor that is the upper deck that looks into the bayview window of dr. maxon's home while allowing the first floor or lower deck to be constructed. mr. zapone is therefore wrong

about the compliance of this design with the neighborhood standards. it would represent a very substantial aberration and very likely more than that. if it is granted in this instance, it may serve as a very unhappy precedent for future improvements, if you want to call them that, in this neighborhood. he also contends that mary projected all modification proposals made by ms. burrell. she did suggest a couple of suggestions. we never, ever categorically rejected any of them. my first act as the lawyer for dr. maxon was on the day i was retained to telephone ms. burrell, suggest a meeting, and try to work out this issue voluntarily. mrs. burrell responded

by saying she did not want to me with a lawyer. we all understand the reputation that lawyers have in some circles but it was a problem for us. there was no way to get her in the room with the design in front of us and work something else -- something out. we find ourselves in front of you tonight. unfortunate. i should make it clear that we're tonight still willing to consider alternatives but we believe that whatever alternative might be adopted by the board or agreed to by the parties, it must eliminate the problem and the prospect of a degrading of the few and the privacy at the second level. i want to bring to your attention an e-mail that ms. burrell wrote to dr. maxon's house