and jim stafford, subject property is 2705 larkin street and both appeals are protesting the issuance to peter fenton to a permit to demolish a building, conforming to residential design guidelines by stepping back in two directions. the matter is on for hearing today. i understand the appellants have, are jointly represented by an attorney and if you would like to step forward. are the parties here for this item? you need to -- you want to try and get him? okay, thank you. very sweet.

mr. elman, we just called this appeal. we're ready to have it heard when you are ready to start. commissioners, since this matter is two appeals joined the parties will have 14 minutes to present their case. >> mr. president and members of the board, i am howard elman representing the appellant, carol seligman and we are, the other appellant has granted us his time so that we could have a little bit more it make a

coherent presentation to you, because there are some complex issues. what we're asking for is that you revoke the permit that's been issued and require the permit to correct all the nonconforming uses. our appeal is supported by testimony from fire experts jim mcmullen, mr. moony who is here tonight, the state fire marshal for 7 years. he cannot here to testify as an expert tonight because he is testifying in some expert out of the city. mark moony has equally strong credentials in the packet presented to you. he is here tonight and able to speak on those issues and answer questions. there's a lot of issues in this matter and it's complicated. i would like to focus on a few short ones, ones that are easy to understand. there's a studio apartment in

this building that's a nonconforming pre-existing use. the plan before you proposes to enlarge and relocate the studio in violation of the san francisco planning code section 181, and to exit from that unit through an unsprinklered garage from the second floor. now, initially there was a second emergency exit, means of egress, that was a stairway in back of the building. and the plan calls for the elimination of that stairway and so now you have -- and this is a rent controlled unit, by the way, if there's a tenant in there they are going to be dealing with the possibility of having to walk tlau through a garage that's not sprinklered, even though a lot of residential fires begin in a garage, and they don't have the access out the back that is clearly what they are supposed to have and is clearly required by the code.

so that's point 1. and in and of itself it is sufficient to require that this permit be set aside or sent back for further analysis and study. second, there was a roof deck that was built in 2008 without a permit. under your code, a roof deck is treated as habitable space making it a 5-level building without sprinklering in violation of code 5 stories above two basements, and we filed a formal complaint about this --. >> mr. elman, if you want the 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.