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 sure that's going to be -- obviously if there is no permit for it, there would be a violation but someone was calling it a level of occupancy or something like that, i'm not too sure i would agree with that. i would say it definitely has to comply with the exiting if that's the issue. the issue about the exiting to the public way, we do have in

san francisco a lot of zero property lot lines. there is an equivalency -- i wouldn't call it an equivalency. our department would have a policy about that. we do give people some leniency with regards to the 50 foot rule in the year yards. i spoke with mr. mar about that and he was very comfortable with that area of the project. the ceiling height at the subbasement i'm confused about that. i see 8 feet on the plans tonight. obviously that's too high if you are not going to provide egress, so something has to be done about that. we will have an opportunity at dbi but i'm not sure how i would get that done from our end of things. i'm not involved in the plan check process so maybe some condition

within an hr2 district. it went through section 311 neighborhood notice at the beginning of this year, 5 discretionary views were filed on the application, the matter was heard in may of this year and not take discretionary review. the planning department does not have any complaints on file for the

subject file. the appellant has raised concerns regarding section 181 of the planning code that would not apply here. the building is not, it doesn't contain any nonconforming uses. they are allowed to contain two dwelling units, that's what the property contains. a further note, even if the property did contain a nonconforming use, it's not a prohibition on an expansion of the building. the building code does allow that. the building does aper to be a nonconforming structure however the application proposes work at the rear which extends it approximately 21 feet to the rear so the project is fully code compliant as stated by the permit holder, no variances are required so none were sought and the planning department finds the project complies with the residential design guidelines. i'm available for

any questions you may have. >> did you say you cannot expand the nonconforming space and this project wouldn't do that. >> correct. what's been cited by the appellant is 181, which deals with nonconforming uses. >> does not contain, okay. because? >> because the zoning allows two dwelling units and the building contains two dwelling units. they are reducing one of the dwelling units in the building, maintaining as a studio but that complies. the front is above the height limit. however, none of the work they are proposing deals with that non-complying portion, they are doing work at the rear within the permitted envelope. >> also for that addition on the top floor is lower than the existing roof line. >> that's correct. so the addition is fully compliant with the planning code. thank you.

>> is there any public comment on this item? seeing no public comment, then we will move into rebuttal, starting with the appellant. you have 6 minutes. >> good evening, commissioners, i've been asked last week to do a peer review. my name is pat buscovitch, of both briefs. i keyd in on two specific pretty much nonrefutable issues. in 2002 there was a permit to enlarge the building. a cfc was issued. some of the enlargement may not have been papered correctly but what was president in that 2002 permit was a roof deck. in 2002 there was no deck and there's a little confusion about the complaint made monday. the complaint was from 2002, when there was a permit that

didn't show this deck, there is no permit to build a deck that now exists, to build a deck. there is a permit to build a fireplace on the existing deck, but a deck isn't existing legal if you don't have a permit for it. so from 2002 when a cfc was issued, which is a controlling document, no permit was issued. this permit is going to legalize a deck that never a permit to be built and decks are counted as a level of occupation for exiting. so someone needs to pay attention how the exiting works from this fiflgt level that was never permitted. they need to remove it off the drawing or solve illegal construction for this deck. the other issue is there was a pre-ap where they went in for this studio apartment and asked to exit through a garage --.

>> which illustration so we can see what you're pointing at? >> this unit right here. i'm not going to get into the debate about pre-aps, pre-aps said you can continue exiting tlau a grudge. but what wasn't in that discussion was a more fundamental basis. exiting through a garage is not a primary code compliant exit. what was and what is currently there now is a second means of egress to the rear yard downstairs into an area of refuge and i've been doing this for 30 years so i'm not even going to get into the area of refuge issue, but when they said you can exit through the garage, they didn't tell the building department, oh, by the way we're going it take out the stairs which is your second exit which really gives you one fully compliant exit, sort of. we're going to take the stairs out. so now this unit that's currently in front of you, it

exits to an unsprinklered garage at its primary, which isn't code compliant, it has stairs to the back yard, they are removing the stairs. so after this project is done, the rent control unit, the only way to get out of this unit is either going through the garage where the car may be on fire, no sprinklers, or jumping 20 feet to the ground. now, that's not what the building department agreed to. the building department agreed you could exit through the garage, but not that you could take out the second exit. so they have a fundamental problem how they get out of this unit short of jumping to the ground. now, the yard is getting smaller, which you are not supposed to do, but fundamentally no one jumps 20 feet to prevent being burnt. so those are the two fundamental problems they have to address. they have to go back to the building department to do some pre-ap or equivalency, maybe sprinklering or doing something but you

can't take two sort of noncomplying exits and remove one of them and then rent it out to the public. thank you. >> howard elman, i have just a couple points in rebuttal. i don't know, it's my fault, i don't know whether any of you are lawyers and it's probably a good thing that you are not, i guess. the doctrine of latches has been introduced -- yeah, merchants of misery and paid pessimists, that's what we are. latches has been introduced and it's been completely misrepresented as to how it works in this case. what we're complaining about is the new permit that is based on a foundation of what appears to be illegalities, a combination of a little bit of that while we work on that and then a little bit of that. if you take away the foundation then

our argument doesn't fly. but i respectfully submit that having reviewed the files, it does. we also have this business of the modification. when there are practical difficulties involved, this is 104a2.7. san francisco building code. when there are practical difficulties involved in carrying out the provision of this code, the building official may grant modifications for individual cases. the building official shall first find that a special individual reason makes the strict letter of this code impractical and that the modifications are in conformance with the intent and purpose of this code and that such modification does not lessen any fair protection requirements or any degree of structural integrity. now, our position is that several of the things that they propose do make those changes and the only way you can approve it is to have a

modification that complies with this code. and there is nothing in the file to show that was done. thank you very much, i appreciate it. >> i understand the basement issue that they're talking about changing. midlane of the floor was 9 feet, 110 inches. until i see the final building -- the other thing i'd like to make a program of real quickly, the intent of the law, building codes are build to save lives. the intent of the law is if we exit out the front of the building if we have a fire in the back, that's adequate. but if we have a fire in the front that could encompass both those front exits, we still need to be able to get out the back. i hope you will key in mind egress is a way out of the fire and not to go left or right of the fire. thank you. >> miss murphy.

>> again, commissioners, mary murphy. in closing you've heard the rebuttal arguments. i don't believe anything new has been raised by mr. buscovich or mr. moony or mr. elman, but with respect to the matters mr. buscovich was raising, in the 2002 issues he raises, we have the 2008 permits here. we can show when that work was done. this xlaipblt -- complaint was filed on monday, they will look into it. as to mr. elman's point as to whether the prior permit history has any bearing, this board knows as well as anyone if this permit is issued you have 15 days to bring an issue before the board. they are raising issues in 2002 and

2003 and what's remarkable is that they walked down to the building department to file the complaint about permits issued 9 or 10 years ago, and with respect to the 2008 permits they made allegations, again baseless allegations, that work was done without permit in 2008, again, 4 or 5 years ago, and one could argue that they are claiming there were no permits issued so therefore the 15 days it appeal doesn't apply. but in fact if they had gone and gotten the permits, which we have the plans here tonight, they would know permits had been pulled. i just would like to summarize to say there have been a whole host of issues thrown up here today. it really is a bit of kitchen sing situation. but one thing does emerge. this building, this owner, has sought permits, they have obtained permits, they have had those permits inspected and closed out and the prior owners did as well. i think it's very

rarely the case that this board sees buildings like this where there is such a conscientious record of seeking permits. we often see messy records especially over the years, but this is a conscientious effort of one permit being pulled after the other. i do not believe the appellants have brought forward any evidence tonight about the site permit that is before you today and i would respectfully request this board deny this appeal and uphold this permit and let our client continue with this project to make this a family friendly home. and as i said, who is here with the materials, mr. moddox is here to answer any questions you have if you have any further questions about the matters that have been raised this evening. thank you. >> councilor, you said you had copies of the 2008 permit? no,

not the drawings yet, you said you had copies of the permits. i want to see the permit first. >> he has the drawings, the approved drawings. >> you have the permit? >> the stamped drawings. would you like him to --. >> i would like to see those, but only that portion dealing with the deck. >> if i could give you a set and just refer you to two pages here on the set. >> could you put it on the -- i mean you don't have a set for all of us. >> yeah, but when you look at the page, what i want to show, one is the --. >> it's not going to work. >> too big. >> hold it? >> they can move the lens. the lens will move in or out. >> i wanted to show you this is a permit set drawing, this

is --. >> it's upside down. >> the stamps --. >> it's upside down. >> sorry. >> also if we could ask sfgtv to pull back the view as far as possible. that's too large. >> there are only two sheets to show you. you could pass it around, it's easy it look. >> sure. >> i apologize, we didn't reduce it in size but it gets to be unreadable. again, my name is wane who, i'm a project management consultant to the property owner. what is being presented to you is a copy of an approved drawing set. the first page, s1, there is to show you the stamps, the dbi stamps of approval as well as the permit application number. if you good to a2.5, which is further

back, i folded the other sheets but on a2.5, is the third floor plans and on the third floor plan you will see the family room and the stairs, you will see that there is double doors that open to the roof. >> so before you move on, we need to make sure that the appellants have an opportunity to see this as well. >> i gave them a set of drawings. >> thank you. >> and you can see that around the roof there are exactly the parapets and walls there. so this afternoon i met with inspector duffy, the issue is that this plan labels it as a flat roof rather than as a deck, but in the rest of the drawings it shows an opening from the building portion it

that roof area and the railings and the parapets. so wae -- we believe this portion was approved. the other part, just quickly, the note is that the building, this is a site permit that was submitted that the construction documents will be submitted in an addendum. >> mr. who, thank you. >> questions for mr. maddox? >> this is not convincing as justifying the use of a deck, what was just presented. >> if i may respectfully submit, you did see there are french doors that open, there is a railing all the way around it. i think it's pretty

clearly, it's obviously intended to be a roof deck. and i think there is a nomenclature issue, respectfully, commissioner fung, but i do believe with the french doors opening to it with the railing all around it, it certainly has all the external indicia of a deck. >> perhaps i should have said that in our own discussion, but thank you. >> never say that while the lawyer is still --. >> thank you, councilor. >> mr. duffy. >> thank you, commissioner fung, for doing our complaint investigation for us. >> pro bono, too. >> i think the roof deck is something that there was french doors going on it and there was a flat roof. i looked at it briefly but you need to go into

the microfilm and look at the plans. i didn't want to make a judgment. but it was labeled as a flat roof, there is if furniture on it, it looks like a complying roof deck. maybe it wasn't labeled like that. we would certainly be asking that that gets called as a roof deck if that's what it's going to be used. if it was never permitted as a roof deck we would have to get that added on to this permit or get a separate permit for it. when you see french doors opening on it a flat roof it's a little bit strange, but i'm not sure if that's the issue tonight, because we only got the complaint at the start of the week about the roof deck ?oo ?a understood. how does that impact level of occupancy as raised by mr. buscovich? >> well, i think it impacts it with regards to exiting from the roof deck but doesn't, we

wouldn't claim it as a story. >> you wouldn't count it as a fifth story? >> i wouldn't and i don't think mr. buscovich would, either. i think there is the 500 square feet where you need two exits if the roof deck is more than 500 square feet so you would have to (inaudible) the whole way to the ground from the roof deck at the top. that's something for the design team to think about if they do want that roof deck there. certainly it is an issue. but being dealt with on a complaint, but if you want to take it under consideration as well. >> thank you. >> one thing i didn't mention when i was speaking earlier, there are sprinklers in the new part i think someone said. mr. mar was pretty comfortable with the fact we were now getting sprinklers in a good part of the building. the 2010 building code gives you a lot of leniency when you provide

sprinklers in a building because of the life safety issue with having sprinklers in a building. i don't think i had anything else. >> thank you. mr. sanchez is indicating he has nothing further to add unless you have questions for him. commissioners, the matter is submitted. >> commissioners, that was a very extensive brief gone over on a sunday afternoon. the issue here is how do we review the overall performance of this building with respect to the permit and the allegations that were raised

and not to get mired perhaps in a couple of items, was going to use the term minor, but perhaps it's not so minor to certain people. and the question of what rises then to a point that needs to be addressed in future construction documentation and future deliberations between the project sponsor and the building department. first is based on my own experience, i believe that the issues raised with respect to the exiting systems by the appellant are incorrect. i am supportive of the permit

holders' position on that and what the code states. there may be some minor adjustments later, certain issues that may have to be, real estate late to the creation of some additional either exiting corridors or means of exit, depending on how the details work, and that's something that is traditionally done during the construction document phase. the only question i was raising with respect to the porch was to look at the questions of whether certain things had been done here without benefit of permit. not that they cannot proceed to ask for another

permit, i think as is written in the brief, the position of city departments on that varies between the planning department and how they issue entitlements versus the building department. the last portion of it is dealing with the question of nonconformity and i accept what was written in there, that the issue of nonconformity in the planning code is quite different on nonconformity within the building code. there are many buildings in san francisco that are nonconforming in certain respects and i believe when they talked about some of the questions related to sprinklering of the studio and other portions that are not sprinkled, there are