>> welcome to the june 13th, 2012 meeting of the san francisco board of appeals. the presiding officer tonight is president fong. and joining her is -- president hwang. and joining her is commissioner fong and commissioner hillis. commissioner garcia will be joining later in the evening. the board may hold a meeting when there is a vacancy. in such instances, the board may overrule the auction of the department by a number of three members. to my left is deputy city attorney tom nolan.

he will provide the board with any needed be ill-advised this evening. and his legal assistant, victor pachinko. i am the executive director. dan cider is here, the assistant zoning administrator and is also representing the planning department and planning commission. joseph duffey will be here momentarily. at this time, mr. pachinko, would you please go for the board guidelines and i will conduct the swearing in process. >> the board requests that you turn off all funds and pagers, so you will not disturb the meeting. please carry on conversations in the hallway. appellants, permit holders, and department representatives each have seven minutes to present their cases and three minutes for rebuttals. those affiliated with these parties must include their comments within the seven minutes for 3 minute time frames. members not affiliated with the

parties have up to three minutes each to address the board, but no rebuttals. jewesses' the board in the accurate preparation of minutes, members -- to assist the board inaccurate preparation of minutes, members may present a speaker cards, but some are not -- but are not required. speaker cards are available on the left of the podium. the board also welcomes your comments and suggestions. there are customer service satisfaction survey forms to the left of the podium. if you have questions about the hearing or the schedule, please speak to staff after the meeting or call the board office tomorrow morning. adelanto, the board office is located at 1560 mission street room 304 between the bows and -- do boros and the other avenue. these are available for purchase

directly from sfgtv. at this point time we will conduct our swearing in process. if you intend to testify at any of tonight's hearings and wish to have the board give your testimony evidenciary wait, please stand, raise your right hand, and say "i do" after you have been sworn in or confirm. any member of the public may speak without taking his oath pursuant to their rights under the sunshine ordinance. thank you. do you solemnly swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? thank you. >> thank you. president hwang, members of the board, i have one housekeeping item this evening that is in regard to item never five, appeal no. 12,--- appeal no. 12- 027.

it has been requested that this be moved to august 1st, 2012. >> i move that this item be rescheduled. >> any public comment? >>seeing none, mr. pachinko, please call the world. >> on the motion to reschedule item 5, appeal no. 12-027, -- commissioner fung: aye. commissioner hillis: aye. and commissioner moore toronto is absent right now appear -- and commissioner her title is an asset right now. >> would any member of the public like to speak on an item that is not on tonight's calendar? seeing none, we will move onto item two. commissioners, anything? seeing none, item number three, the adoption of the minutes.

and for your consideration are the adoption of the minutes for the board meeting may 30th, 2012. >> time of adoption. >> any public comment on the minutes? seeing none, mr. pachinko, call the roll please. >> on the motion from president hwang to adopt the may 30th minutes -- commissioner fung: aye. commissioner hillis: aye. >> and commissioner hurtaio is absent -- absenthurtado is absent. >> items 4 and 5 will be heard together. the subject property is at 1285 40 fifth ave. we will start with dbi tonight.

the electrical permit is ground for cap off of electrical -- ground floor cap off of electrical in the permit range. these items were heard on april 18th, 2012. we are continuing to allow dbi to conduct a life safety inspection. we will give each party just three minutes to update the board. we will start with dbi and then move over to the appellant and then the permit holder. >> good evening, commissioners. joe duffy at dbi. unfortunately, i have not been able to get into the unit yet. just because of my schedule. i contacted the owners and the tenant today and was not able to arrange a site visit. i do not have any life safety issues.

the only thing i can add to this case from a dbi point of view is we did cite this for any legal unit. it is an illegal dwelling unit. the proper thing to do would be to legalize it or remove it. whether they're like safety issues or not, that would be addressed. -- whether there are life safety issues or not, that will be addressed. i'm available for any questions. i apologize for not having gone into the unit for tonight's hearing. maybe we might want to pull it off. -- put it off. i am open for suggestions. >> any suggestion for action beyond the mov? >> i have that information here.

we have just issued the first notice of violation. the second notice of violation, and it was referred to re directors hearing on june 5th, 2012, which has not happened yet. that normally takes a process of -- it could end up with an order of abatement. but as of yet, that has not happened. >> how did the notice of violation come about? what instigated dbi issuing it? >> the latest one that i have, and this goes back to 2009, our housing inspection services. they went out there. it looks like it was a routine inspection of an apartment building. then there is a note that there is an illegal basement unit. then we have another complaint

in 2012, fifth of february. it was received by the building inspection division. the first notice of violation was issued on 1/27/1997. iran has not beenthe inspector s not been renewed. the inspector issued a rare man meant -- a remandment. there was a notice that never are taking care of, so we created a complaint for this year. i'm not really sure -- >> what instigated that. >> it was an anonymous complaint. i'm not sure where that came from. it was an illegal unit then and it still is. it has been appealed, to remove

the unit. >> maybe we can hear from the appellant council now. >> at our last hearing we talked about the permit holder being a brief feet -- repeat offender. i have here a definition of robert jack offered. i'm putting that on the overhead projector. he is the former tenant of 1285 40 fifth ave. he said, i make this declaration on my personal knowledge, and called as a witness i could competently testify in another hearing. he said that since february, 2003, i was a residential tenet at the 45th avenue apartment located in san francisco, the ground level unit. the landlord and manager was a

purely the -- peter lead. i received an eviction notice in march saying that they intended to demolish the unit. after receiving the eviction notice, vacated the grounds in around may, 2010. they have been renting out its illegal unit for many years and have not removed it. but we also talked about this pattern and behavior of disobeying, or not paying attention to the building department orders. at the 47th avenue property, we talked about the restriction on their deed. specifically, it says, the lower floor area shall not be used as a separate drilling unit or rooming unit, and there should be no borders residing there --

boarders residing there. we're talking about another property owned by the trust. i make this declaration based on my personal knowledge, and is called as a witness i could and would competently testified to the matters set forth herein. for nearly 10 years, my wife and i were the residential tenants at the ground-floor unit. the landlord and building manager was peter feely. i believe he was the trustee for the peter feely trost. i recently learned that notices of violation for the building department exist to my illegal unit. our point is, he has a pattern and behavior of disregarding,

disobeying the department of building inspection rules and regulations and orders. the only thing that we can do to protect any future tenants is to put a restriction on the deed on the 45th avenue property. >> counselor, what you have cited is the enforcement action, basically. how does that affect the tendency of your client in an illegal unit. -- the tendency thethe tenancy -- the tenancy of your client in an illegal unit? rex it is an illegal unit and it is unsafe. -- >> it is an illegal unit and it is unsafe. they have to remove this unit.

and because you have to remove this unit, nobody can live there. it is unsafe. it does not have permits. it does not have the correct permits for planning or electrical. there's only one apartment -- it is an unsafe unit. they cannot live there. they still rented out to people even though it is unsafe. the on the way you can protect an unknowing tenant in the future is to put a restriction on the deeds of that it has been called to the attention of the san francisco rich ordinance. does that make sense? rex know, but that is all right. -- >> no, but that is all right. >> good evening, members of the commission. stephen macdonald for the permit holder responding. respectfully, i suggest that the

notation on the agenda is actually inaccurate. two months ago, when we were here i think i convinced this panel that the authority cited by the court of appeal makes it impossible for this commission to order the legalization of this illegal unit. that was not met with any rebuttal. then the statement was made that the tenant is a student and would like to finish her semester. the commission members then looked at each other and decided what to do. it was decided by this commission that the hearing would be postponed for two months so that the student tenant could finish her semester. in my mind, that implied that this meant that there was no way

this appeal could be granted. permit was perfectly necessary, as cited by counsel, to a dangerous, illegal unit. it is stated here that the purpose of a continuance was to allow dbi to conduct a life safety inspection. i respectfully submit that was not the purpose. i argued that this is an illegal and dangerous unit and please allow us to promptly remove it. mr. duffy was told to go out there and in the meantime inspected and report back to this body in case there were life-threatening conditions. that did not happen. but i think it is an unfortunate mistake tuzee the purpose of a continuance was to allow for the inspection. the purpose of a continuance was to allow her to finish her semester at the end of may, and in the meantime, to protect her safety, see if there were life- threatening conditions. that is all moot now. she has had her two months.

the elderly, and i would state, mentally unsound, sr. mr. feeley, he has had some patterns of renting illegal units before. what does this have to do with this illegal permit? no one has given this board any reason to approve this appeal. thank you. >> any other public comment? it looks like inspector duffy would like to address the board. >> sorry, commissioners. i need to correct something i stated in my earlier statement. there was another address in my brief for 1607 40 fifth ave. i think the commissioners asked me where that case was.

i was speaking of the 1607 47 avenue case. but the 1208 the 45th avenue case that we are discussing, it had similarities. there was a studio basement apartment, 10 by 20, a sprinkler head in the ceiling, and a sink and bathroom and refrigerator. i misspoke on the notice of violation. both addresses were on the brief. >> i have a question. mr. duffy, it seems to me the arguments made by the appellant are going to a course of problematic conduct in reprinting -- rerenting units.

i would agree with council about the things that are at issue are not at issue. the concern is raised whether dbi would enforce -- sure the unit be taken off the market? and the tenant be evicted? is there going to be some follow-up on the part of the department? >> i think there should be. certainly, if we issue a first notice of violation and a second. if it is not adhered to, it should go to the city attorney's office. that action takes -- you know, we get liens on properties and stuff. i would say it takes a long time for that to happen, and eventually it does. but a lot of these cases, especially illegal dwelling units, they seem to get caught up in the illegal enforcement.

if this unit was not removed and it did not receive a final inspection, it should follow through with the enforcement action. i do not know how this can happen from this board to dbi, but it said -- which should certainly happen. >> please -- president garcia: please correct me if i'm -- >> please correct me if i'm wrong, it ensures your department's role in the taking of these measures. >> many times we will go out there and the kitchen will be gone, the stove will be gone, and then a week later, it is back again. for this case, if they do a final inspection and all of that is capped off and moved in, then we could do the final of bashan.

--it should happen quicker. whenever there is a permit issued, and sometimes if there's a complaint, that will hold up the works because sometimes they have a valid permit. it is frustrating it does not happen quicker. i think that is what you're saying. >> ok, thank you. >> i have a question for the appellants attorney. have you had discussions with the property owner, with the lawyer for the property owner about the tenancy since we last met? rex there is a lawsuit involved. we have discussed -- >> there is a lawsuit involved. we have discussed mediation.

that is the resolution. >> so nothing is resolved yet? >> not yet. >> and if the permit is granted, then what happens? >> if the permit is granted, either the victor or as part of the mediation -- we can agree to a move that date. there are lots of steps that we can take. -- we can agree to a moved up date. there are lots of steps that we can take. >> can we get confirmation that your client has completed her school year? >> yes. you have graduated? >> ok, thank you. >commissioners, a master have other questions, the matter is submitted. -- >> commissioners, unless you have other questions, the matter is submitted.

>> there are obviously some actions that are outside the purview of this particular body. the permit in question relates to primarily the capping of utilities. i think that the owner of the property is being faced with something that he needs to act upon and we should allow that to proceed after word. -- afterward. i would like to recommend that we condition approval and shorten the time frame so that this thing gets done and some resolution occurs, at least as far as we can make it.

and i would recommend that upon the issuance of the permit and, obviously, any authorized changes, i think it should be completed within three months. madam director, you look puzzled. >> i'm just contemplating the board's authority to condition the issuance upon which it is completed. -- to condition the issuance of time upon which it is completed.

>> there have been cases in the past -- i think what the vice president was saying is may be on upon release of our notice of decision that you would want the work completed within three months, and that this permit be final within three months. is that what the condition would be? >> yes, but i'm thinking that there may be other options to delay the issuance. >> well, this is an issue permit. the time frame to execute the permit was told by the appeal. once we release our notice of decision, dbi will recalculate the modification time frame. and in the past we have said that we want the work done in a quicker time frame.

>> the only downside of that would be -- this is a suggestion that i would tend to agree with, given what mr. duffy has stated, that sometimes the work does not get done quickly. but in this case, given that there is what appears to be contentious litigation -- >> [inaudible] >> i am still speaking. but it seems to me that it would not be a result that we would want, to expedite the eviction. but yes, now i would like to hear you. >> thank you. sorry to interrupt. we would stipulate to an expedited completion of the work. we are most interested in proceeding with the work, proceeding with the service of the notice, a 30 day notice, and

as soon as the tenant is out, immediately getting to work. we would stipulate to a short timeframe. >> thank you. counsel for the appellant, we would like to hear from you on that. >> unfortunately, i cannot agree to any type of stipulation, but i will concede it to anything the board decides. then we will take our action. if you release notice to this decision and they have to follow through with the 30-day notice, but i cannot stipulate -- then that is fine, but i cannot stipulate to that. >> let me change this just a little bit. perhaps we can look at an

expedited time frame from the date that the tenancy is over, that she leaves. let the construction be completed within three months of the vacation of the move -- unit. >> that would work for me. do you want to make that motion? >> so moved. is that understood, victor? >> and just to clarify, vice- president, is that basic -- on the basis that you would like the pe to vacate the promise -- the premises? >> yes. >> ok, thank you.

>> to repeat, we have a motion from the vice-president to uphold this permit on condition that the construction be completed within three months of the unit being vacated and on the basis that the board would like the permit holder to abate the nlv. president fong: aye. commissioner fung: aye. commissioner hillis: aye. and commissioner hurtado is absent. >> we will move on to item number six, which is the appeal no. 12-050. t