pictures to show up while you are speaking, you will have to refer to them as you are speaking and then the tv department will pick it up, okay? >> okay. okay, this is a picture of the --. >> if you can flip it. i paused your time, but any time you want to refer to the picture, you have it refer to it. >> i introduced my associate, kimberlee whangfu to you. as a dinosaur, i'm not very good with these modern technology things and she is and that's why i rely on her for this. >> i restarted your time, you are at 11.16. >> i've spent 11 minutes already? >> no, no, you have 11. >> okay, thank you. so the roof deck was built without a permit and it's treated as a habitable space and so now we have 5 floors over the basement and that's supposed to be sprinklered and the plans don't call for full sprinklering. there is a series of

violations of the emergency escape and rescue provisions under building code section 1026.1 and that's where -- you got it? that section says the openings that are required shall open directly into a public way or to a yard or court that opens to a public way. the word is directly. now most of us understand what that means. a line from here to there without a lot of interference or obstacles. it's not over the woods -- over the hill and through the woods to grand mother's house. and yet if you look at these plans there is no such opening as required for all of the various improvements. now, it's possible that dbi could have made an equivalency

determination. the code allows for that, as you know. the equivalency determination has 3 parts. it starts with an application, followed by a determination that, yes, indeed, the building plan actually has protections that are equal to the protections in the building code that we're not going to enforce, even though the state building code says that everything -- even though local governments have the right it reduce -- to increase the standards, they do not have the right to reduce them. so you have an application, a determination, then you have to have written findings. you can look in this file and you won't find any of those three things. none of them. all right, in the response to our papers, mr. fenton's lawyers have said they are not responsible for prior

violations. that's not correct. the building code says that the violations run with the property and that's planning code section 180 subparagraph b i'm prepared to give the authorities on this that i've collected through the city attorney with a copy to mr. fenton's lawyer. a further statement that because mr. fenton relied on a defective permit and incurred expense, he has vested rights. the problem with that argument is you don't get vested rights on the basis of an illegal permit and you don't get vested rights against public health and safety regulations which we're talking about is a serious threat. i think that one thing before i ask mark moony to come to the

podium here, we filed an application for design review at the planning commission -- discretionary review at the planning commission and were turned down. and lurking in the background here is the allegation that we are using building code arguments to raise what was essentially a planning code issue. we were told by the planning commission, don't tell us anything about the building code, take that to the board of appeals. so what is this, sort of a game of -- here we are. now, miss seligman, her house directly abuts the fence of the house. that house has had two fire incidents in it. the house to the north of her has had a serious fire incident. mr. moony actually investigated that. and so, you know, what is that argument all about?

violations of the building code don't matter if you have -- if you are involved, if you are concerned about it, if you have a different objective than just protecting against building code violations. the violations exist based on the structure and that's what counts. the validity of the permit does not change with the identity of the party calling it into question. that's what i'd like to end up with here for this part of the presentation and ask mark moony to come forward. >> good evening, board members, my name is mark moony, i'm a private licensed investigator with the state of california, my expertise is in fire suppression and fire safety. i've taken a look at the plans related to this permit process and specifically i have come up

with two violations of this permit process which are extremely important issues that need to be discussed. first of all is keep in mind, please, that this home is bound on two sides by other properties at a zero lot line. in other words, in the event of an emergency you have no exit from either side, only from the front or the rear. with that in mind, in the event that an emergency occurs, and let me also remind you that the building code uses the term emergency, not fire. because you could have a natural gas emergency which causes an explosion, you could have an ert -- earthquake and so on. what i want to make clear is that the egress from the rear of the structure is into an area that has no legal access to a public right of way so as a result they would be required, the minimum distance from the rear of the house for safe area would be 50 feet. currently they have plus or minus 57. if the plan is put in action and extends the

building out, they would only have 29 feet. that is surely very short of the required distance. this is related to radiant heat. i did investigate a fire in san jose at the santana road fire and 58 feet across the feet, the foal foliage across the street from the winchester mystery house burned. that has not been given consideration and considered because they only allowed 29 feet. there's a basement which actually opened out through a sliding door into the ground level but there's a subbasement. according to the law and the building code, if the basement ceiling is reduced to 80 inches, they don't have to have windows for ingress and regress for the fire

department. however, please be mindful that an elevator has been installed in this home. the elevator goes all the way to the subbasement where the machinery is located. in order to operate that accurately you have to have 110 inches, so they would absolutely have to place windows in the area of the subbasement for egress or ingress for the fire department to help people out of that room. so without lowering it 80 inches, which i don't think they can do without removing the entire elevator, that is not compliant with the building code. any questions you might have about what i have spoken about? i'm also very in favor of residential sprinkler systems but i'm also mindful of, just investigated a fire in newport beach, southern california, and in that case the fire occurred in the concealed spaces between

floors. it burned through the pvc piping which is allowed for residential housing and rendered it ineffective for the occupants to leave the home. thank you for your time. >> if there's nothing further from the appellants then we will hear from the attorney for the permit holder. >> so i haven't been practicing law as long as mr. elman, i still need help from my younger colleague. i'm mary murphy, council for the permit holder and respondents, laura and peter fenton. here with me tonight are members of the project team, paul kenyon are project managers, jeff maddox, my colleague and also technical expert, allison kidd. all will be available to answer any questions you might have.

unfortunately the fentons could not be here tonight because they agreed to postpone from hearing from mid-september to mid-october at the appellant's request. dear members of the board, my wife, laura and i live with our two small children at 2705 larkin street. as you may know, we have proposed to remodel our home to make it child friendly and to better accommodate the needs of our growing family and that remodel is the subject of tonight's appeal. it has always been our intention that the remodel be in keeping with the neighborhood. in fact, the remodel complies with the planning code and we did not seek or require any variances. unfortunately laura and i are not able to be present today to discuss with you the appeal of our building permits. as you may recall, this hearing was originally scheduled for october 19th but we agreed to postpone it in recognition of

our neighbor, miss seligman, would be observing the jewish holidays through most of the month of september. not withstanding mrs. seligman's at the tenacity in opposing our permit, she is still our neighbor. we are anxious to complete the project and even though it places us at a disadvantage for the hearing tonight. we are deeply hopeful (inaudible) i will present a copy of that into the record.

commissioners, the briefs are very lengthy. let me begin by summarizing the essence of the appellant's xlaibts. as you can see from the appellant's complaints and as mr. elman touched on today, the true nature we believe is found in their discretionary review where the seligmans raised issues of light and privacy. they have come to this board to attempt to stop a project they simply do not like by raising what purport to be safety and building code concerns. considering whether any of these new complaints have any merit, it's important that they assert that the city was incorrect not only tonight, but all the prior permits issued for this house over many years. the permits show the fentons and prior owners sought permits for that work and had that work

inspected and signed off. not withstanding this conscientious record, in addition they claim the planning department and zoning administrator were mistaken in their prior actions for many years before they even owned the house. all thoi it has no bearing on the issues before you tonight, they would have you believe the city has repeatedly erred in issues permits for the building over many years. again, this has no real bearing on the matters before the board tonight except to underscore the lack of merit of their most recent complaints. as we will discuss in greater detail the city acted correctly with respect to the permits before you and we respectfully request the board deny this appeal and uphold the permits. i want to respond briefly to a

couple issues presented by you tonight from mr. elman. as you know from the briefing, it's a relatively complicated project. first they claim incorrectly it fails to comply with section 1024.6. it complies because both exits discharge on to larkin street which is a public right of way. appellant ignores the definition set forth in the building code. when you look at the definition it becomes clear that the appellant has misunderstood what portions of the structure constitute exit discharges to which the definition of discharging then applies. as you can see and as mr. maddox, our expert, explained in his submital, the rear of the house does not fall within the requirement of a rear exit

discharge. there are two exit discharge sz as defined in the building code. next, upon claims that 3 levels of the house, the studio, the basement and the subbasement all fail to comply subbasement all fail to comply with section 1029.1, section 1026.1 expressly exempts ceelings of less than 10 feet in ceiling height. in fact the plans that have been submitted and approved do not show a ceiling height above 80 inches and therefore under the terms on its face it is exempt. second both the studio and basement levels of the house comply with dbi's long standing

interpretation of 1026.1 which provides access to a closed rear yard satisfies this section and that was determined in the preapplication agreement on the preapproved set of plans. because it complies with dbi's interpretation of the building code, they are not equivalencies and therefore no equivalency findings are required. third, appellant argues in his brief and again tonight that section 181 of the planning code prohibits the project. i will briefly try to summarize, there are a number of issues that could be raised under the planning code which are all incorrect on their face. it is absolutely the case that section 181 limits the use (inaudible) 2705 larkin is a residential use in a residential district. the studio does not make it a nonconforming use. it is zoned rh2, which would be legal to have the stued dio in the

structure, so it is simply not applicable and more to the point, what constitutes nonconformity under the building code is not tantamount to a nonconformity in the planning code. in the interest of time i will say all the arguments raised here tonight and on the briefs with respect to the planning code and the prohibitions in section 181 of noncomplying structures is incorrect. fourth, the appellant has argued that prior mer permits were issued in error. such late complaints have no bearing on the issue before you tonight and have no bearing because of latches. latches says you cannot slaep on your rights and they are raise matters that are sometimeness some cases 9, 10 years old. in addition, appellants make

unsubstantiated allegations about illegal or unpermitted work. apparently and as mr. elman testified tonight, the appellant went into dbi and filed two xlaipblts complaints with dbi they believe the appellant constructed a roof deck without a permit in 2008. respectfully, having gone to the counter to file that complaint, appellant could have gotten the permit. the fentons have done all the work pursuant to properly issued permits. not having been satisfied with filing the first complaint on the morning of the 15th, appellant's council returned to file a second complaint saying

dbi erred in 2001 or 2003 even before the fentons owned the property. even if there were a shred to support this good faith belief, the theory of latches would again prevent them from raising such a xlaipblt complaint at such late date. in the second instance they are complaining about things that happened before the fentons owned the property 9 or 10 years ago without any basis for -- they're just saying the permits were issued, but issued in error. latches would bar this being heard and the board should not countenance them

doing that at this late date. as i explained a moment ago, no equivalencies were sought or required in any instance. with respect to the exit discharge and emergency egress requirements of the code, they are satisfied by the project and no equivalencies are required. dbi correctly determined with respect to the sprinklers that they were required in the rear addition and the project does provide sprinklers in the rear addition. at the same time dbi also determined because the front portion of the house is not affected by the building, building code 33.01 applies. that says the portion not being altered are not required to comply with the building code for the new structure.

it is quite ironic that this appeal lays claim to safety issues because the entire purpose of the fentons project is to make their home child friendly for their baby and toddler and it is abundantly clear in all of the instances that are raised that the city correctly applied the building code in every instance and 91 of the appellants a objections have merit. we respectfully request this board uphold these permits and deny this appeal. our team is here to answer any questions you may have. thank you for your time and consideration of this matter tonight. >> councilor, you have provided a fairly extensive permit history in your brief. are there any nov's? >> not that i'm aware. >> issued against this property. >> no, not that i'm aware of and we've looked at the permit history quite thoroughly. as i said, the 2008 permit was

pulled and we have it here tonight if you'd like to see that. >> because the appellant raised it today i don't believe i saw it in their brief, the question i have relates to the elevator in the subbasement and you said that the plans indicate that the ceiling height is less than 80. >> yes. if i may --. >> bring the design forward, we're talking about numbers, i'm a lawyer. ole lundberg from lundberg design. >> hi, ole lundberg, lundberg design. the plans currently show an elevator going to the subbasement and an elevator mechanical room on that level.

per the building code we would not be able to do that elevator mechanical room higher than 80 inches unless we had exit out of it. if that doesn't work, the elevator won't go to that level, it will go one level up and that will be determined by dbi when we submit, but it would not exceed 80 inches do you understand 120 inches, is that a standard mechanical room height? >> it's possible we have a dimension that shows that but, again, that would be a department of building issue. if we have that, that wouldn't work. we wouldn't be allowed to do that room at that height. >> i don't understand why you say if you have that, do you have it or do you not have it? >> i don't know, lev, do we have it? >> there's actually -- my name

is lev (inaudible) and i'm the project architect on the project. the subbasement, there's issue of ceiling height and there's also issue of square footage. one is allowed to have up to 200 square feet of normal ceiling height and then the rest has to be 80 inches or less than 80 inches. therefore, if we connect the elevator and the stair and, again, and the elevator machine room by a passage, by a corridor, we can maintain normal head height for people to function in as long as we're under 200 square feet, which we will be as long as the actual mechanical room itself has the lower ceiling. because it's unoccupiable space. >> not following the 200 square feet piece. the ceilinging? >> the code has to do with a

subbasement that's either less than 80 inches in height or is also less than -- 200 square feet or less. >> the entire subbasement is 200 square feet? >> better to have our code expert. >> okay. >> jeff maddox, fire consultant. there's two exceptions for this requirement for escape windows. one of them says basements less than 80 inches do not require one and the other says basements without habitable spaces of less than 200 square feet. i think the interpretation is if you have a little space under 80 and under tw00 square feet, 200 square feet, as long as it's not habitable. >> as i think the appellant stated.

>> right now we didn't dimension the entire -- we're just showing floor levels, we don't have any dimensions of actual ceiling heights. >> so is the subbasement at 110 but less than 200 square feet non-habitable? >> that is what will be provided. >> i thought that the brief said they were under 80 inches, that's why -- i'm confused. >> this is mary murphy again. what's before you today is a site permit. as you know from hearing a million of these, what happens is you file subsequent addendums. i think what lev is trying to say, the level of specificity with the subsequent addendums will be sorted out. what mr. maddox has explained is that the code provides, as best i understand it, when we come forward with the addendum that's specific with the heights and the relationship with the mechanical room, we could have 200 square feet that would be

more than 80 inches, but the rest of it would have to be under 80 inches. that's a detail that would come forward during the addendum process and we would absolutely comply with the details the department of building inspection would impose upon us with respect to those technical details of it. >> thank you. mr. duffy, i think you are up, unless mr. sanchez wants to go first. >> good evening, commissioners again. when i got the brief obviously there's a lot of reading in them. i decided on monday to make an appointment or friday i

contacted the property owners so i was at the property today which i thought might help me for tonight. also i spoke today with jeff mar, who was the person who did the preapplication meeting back at dbi back in 2010. the purpose of the preapplication meeting is you have some issues with your project, you come down to dbi, you pay a fee and you get to sit down with an expert and you go through your issues. you got questions, we give you an answer, we give you an interpretation. that let them go and make some decisions as to how they were going to design their project and issues such as were brought up tonight by both sides. for example, on the studio the second exit is not required but an escape and emergency rescue window is and that is provided on the plans. the garage exit would have to

comply with ab20 of the san francisco building code, which means that exit from the studio to the garage and down to the street would either have to mean that the garage would be sprinkled and we would have a hallway or corridor to provide safety from a fire. so that definitely is something that's going to have to happen. i'm not sure yet, as they said earlier, the addenda hasn't been sent in yet but that is something we will definitely be asking for. when i was at the property today i spoke to mr. hue and i explained that to him as well. the new complaint we received that start of the week and we need to do some research on it and investigate it. we will be taking action on it if that's warranted or if there's a permit in 2008, obviously that would be something we would look at as yet. i'm not