action requested by appellant to rehear appeal no. 16757 previously addressed by the abasement appeals board on june 27, 2012. >> excuse me, could i have a clarification. the vote you just had was requesting the continuance. have you made a decision on the rehearing? >> oh, excuse me. we have to go back to the other item to address the rehearing request. so now what do i do? is the department going to present its case, then? >> so the grounds for rehearing under the

administrative code is new evidence or legal errors. so you have to ask the appellant if she has new evidence or legal error. >> so sorry for creating the confusion herement the department would suggest that you would not grant the rehearing request because no progress has been made since you have made your decision at the last hearing and furthermore the only remaining active permit for the property has expired. so the concern the department would have is you made a decision, if you were to grant a rehearing and time moves on, if that retaining wall failed, the appeals board and the department would participate in a dangerous condition. if somebody got hurt it would all

fall back on you guys and us. that's all i can say, thank you. >> i am sorry, i am not prepared to argue without presence of my lawyer. but i would have to read what is written, reason for request for the hearing is that appellant requests rehearing because history of this case shows her diligent participation and willingness to abate the problem. additionally, appellant disputes that she has to be penalized for her efforts to abate. and this set of permits here, some issued and expired, some filed and not

processed, and some new which cannot be reviewed because of the discretionary review, it shows that i am the appellant who is trying to fix the problem to abate the notice of violation and it is unfair to penalize me. for what? for trying to do the right thing? so i ask to allow the hearing. >> i just wanted to point out that council for appellant has prepared a written statement attached to her request for rehearing titled exhibit a, so

if the commission would like to review that, that's essentially her argument for rehearing. >> yes, this is where i was reading from. thank you. >> but in addition to what she filled out on the form, there is an attachment and it's titled exhibit a. the first point that counsel makes in exhibit a is that there is a dispute as to the ownership of the wall. just for clarification, i went and reviewed the july 18th hearing where the commissioners sought to clarify whether or not there remained a dispute as to who was responsible for the wall and the commissioners asked counsel for miss dubrovsky and

she said her client had agreed to take ownership of the wall in a settlement and the commissioners asked if it was decided where the property line was and counsel replied it wasn't necessary because it was part of the settlement agreement. that was consistent with my recollection, but i wanted to confirm that. of course you all may have your independent recollection, which would be important, too, so that was what i learned. >> may i --. >> sure. >> the lawsuit is still filed, it's not been heard yet because

we went through the attempts to settle the case. and settlement was entered in august, 2010, at which point both neighbors agreed that we will not discuss who owns the wall from way back then until august, 2010 if settlement goes forward. and i accepted ownership going to the future. if settlement stays i accept the ownership of the wall going into the future. if the settlement doesn't stay, the lawsuit is still filed and it's still open and if arbitration cannot help us this coming monday, we will go to court, there is -- i don't know any

other legal ways to finish this case. so if we go to court we will start from ground zero. i don't own that wall. my predecessor of this property were building the house 5 years later after my neighbors. it's their wall. >> commissioners, have any questions or comments? >> i have a comment. this is what i remember, jana, that at the last hearing miss dubrovsky's attorney and her neighbor's attorney came before us and talked about how the mediation process was going really well. they stated that

at a couple hearings at least and they talked about how sure they were that there was going to be a resolution for this. and so when we granted that, you know, 6 months extension it was based on that assurance that parties were coming to the table and dealing with this. so that's what i remember, jana, from how this all came to us. i would be open to be corrected by any of my fellow commissioners or jana and that i do not believe that not -- that rehearing this would harm you in any way. if we stick to our original plan of giving it till december to see if you guys can work it out, it does not harm you in any way. so i read what your attorney has submitted, i don't see any new evidence. all of the points

that she's making are restatements that i have heard in this body in the past so i really don't see it and i don't see how it would harm you that the decision that this body has made to give the process a few more months, discretionary review at the planning department, while it can be lengthy, is not a black hole. it does have a time limit and it has a process that's established for a reason. so i really, you know, if the question before us is rehearing this, i would say, no, i really don't see a reason it and i don't see how this harms you in any way. >> but there is discretionary review, this is the new fact. and new fact came yesterday when i learned that i can do absolutely nothing. >> but that is not a new fact, i'm sorry. that is the process. your attorney should have advised you that that was

a possibility and it is a process that is available through the planning department. like i said, i do not believe it is a black hole, i believe it is a time limited process through which other folks can give their opinion about the project that's being proposed. >> i kind of want to shoulder commissioner's point of view. one of the reasons we're in this position right now is because we did get a commitment from the attorneys that we had a resolution here. we got a lot of criticism from the department because the consensus was we were probably giving a little bit too much time here to resolve something that should be resolved a long time ago. now we are here again and we're being asked to be dragged backwards as the inspector has said. i don't want to go

there. i want closure. at this stage it is what it is and i'm ready to rule on this. >> how is it fair if you are doing it to one party and another one is just living free? the neighbors are living free, they are causing trouble, they are sabotaging project and they are not harmed at all. you are the people, the city who is probably obligated to keep peace in the city. you are penalizing me, the person who is trying to mitigate the process. the three months, i don't believe it will make any difference. lawyers express their best hope, it was my hope, too, for all 7 years. on every step it was my hope. i don't have any hope right

now. i don't. >> we hear a motion. >> public comment. >> public comment. >> thank you, ma'am, your testimony has ended. is there any additional public comment? >> yes, we have one public comment. >> we have some time? >> yes. >> just to keep in mind the neighboring property on july 7 of last year was issued an order of abatement for the exact same retaining wall we are discussing today. if you decide today to reject the rehearing request you are simply going back to the decision you made at the last hearing, which is that the order of abatement on this property goes through. in other words, both property owners would have orders issued, both would be treated equally badly by the department. i think that's

fair. thank you. >> does the owner --. >> is there any other additional public comment? you swear the testimony you are about to give is the truth to the best of your knowledge? thank you. >> my name is rubin becker and i represent the downhill neighbor at 1727 12th avenue. there was some comments and observations made regarding both attorneys coming before you on several occasions and expressing some hopefulness that there was an end in sight. i have a little different view of the process that miss dubrovsky described as the

chronology of events. there was a lawsuit that was filed when the wall failed. there was a mediation before jams, judicial arbitration mediation services. we agreed in the mediation agreement at the beginning that if the mediation were unsuccessful, the same judge would serve as arbitrator in a binding arbitration. we have spent certainly three days taking evidence and having arbitration proceedings. there were some post-arbitration briefs. there was an interim arbitration award granted or issued by the arbitrator justice snowden on july 16th, 2012, which he made some very

clear guidelines and decisions as to what's going to happen. he left open for the parties to sort out some of the details and left open for miss dubrovsky if it were necessary to go back and get necessary permits or revise or modify proposals that were part of the interim arbitration award. i believe that judge snowden's award will be finalized, whether on october 29th or shortly thereafter, as an order. i do not see, and the law has always surprised me in my 40 years of practice, that this can go back to court

successfully. it's binding arbitration. everyone has ceded their right to have a court hear this because it is binding arbitration and i have very little belief that this could ever go back to court. so there is finality coming. i don't know whether it's armageddon or peaceful valley, but it's coming. i just wanted it make that very clear that when i made my assurances with miss dubrovsky's attorney to this board, it was sincere and it was with the knowledge that judge snowden is god in this case. >> thank you. >> there's a motion. >> someone restate the motion and the second. >> i move that we do not rehear this ?oo .

>> deny the rehearing. >> is there a second? >> second. >> again, there's a motion and a second it deny the rehearing of this appeal. do a roll call vote. (roll called). >> motion carries unanimously. >> item f, rehearing request, case no. 6758, 130beulah

street, action requested by appellant to rehear. >> good afternoon,. (witness sworn). >> good afternoon, mr. president, members of the board, i am senior house inspetor andrew carson, department of building inspection. if i can refresh the board's memory, this property is a two-unit building on two floors of occupancy over a basement area. that basement area was converted into two additional units, creating a 4-unit building on 3 floors of occupancy without permits or inspections. the original

notice of violation was issued on this property on may 27, 2008. this board, the appeals board, held an extensive hearing on this case back on june 20th of this year and based on that testimony that was taken from staff and the property owner, a notice of decision was issued on july 27 of this year. at that point the board gave the property owner 30 days to obtain, to apply for and obtain building permits to correct all violations that dealt with any serious and immediate life safety hazards. also they gave her 90 days to complete that work and an additional 4 1/2 months to get any additional building permits to correct the notice of violation. it has now been 4 months since the date of that hearing and as of today's date, 1.30 pm, to be

exact, the property owner has yet to apply for or obtain any building permits. at this time staff is therefore recommending that the board deny the appellant's request for a rehearing since no permits have been taken out to comply with the notice of violation or the notice of decision from this board or no new evidence has been provided to the board. >> thank you. >> appellant? >> commissioners, i'd like to disclose to you before miss roberts takes her comments on the last hearing i had given her my number if there were any questions you had. i did receive a phone call from her and left a detailed message and i did not return the phone call

but can admit my assumptions from that message. i just wanted to disclose that in case there's any conflict. >> i also have not taken the oath. (witness sworn). >> so i'm catherine roberts. i first want to say that this rescud aoling has been extremely problematic for me and i have called the department every single day since i got that notice. i have never heard of a meeting being moved up a month because you guys apparently made a mistake, i mean it was explained to me that it was an error on the part of the department, there wasn't really any other reason why this wouldn't be held on november 21 as it was originally scheduled. it's been extremely disruptive to me to have to, you know, i mean i planned to be here on november 21st and to just have

the rug pulled out from under me like that and have to be here a month early has not been a good experience for me. i am aware you guys have given me a lot of time, but i have never heard of that kind of process where if there's an error you can move it forward. i've never heard of something being moved like this and especially being moved back a solid month. that has really disadvantaged me. i was extremely upset that i called so many times, every single day, literally, and never got a return phone call from the department. i mean, i'm sort of horrified by that. i don't really understand it. that said, i guess i'm here so let me present, since i know there needs to be new evidence and/or legal error, and i feel there is both, these are the things that i should have brought last time. i'm no

expert at any of this so i just asked out of ignorance didn't bring it, but these are old records. one of them is from, they are all from, like, 2008-2009. this is from the -- can you see this if i --. >> if you put it down. is there it is. >> the fire department. this was the notice of violation that a former tenant called in, claiming there were problems with egress, life/safety hazards, correct, and she came by and left a door hanger, michi wong, in case you can't read that. unfortunately i was in new york at the time so i didn't get the door hanger until i got back about a week later. the minute i got back i called her and said what's going on,

please come. she scheduled an appointment as soon as she was able and she came and there were no -- she performed an inspection, very thorough inspection of the whole building. no violations whatsoever. the only reason that this whole thipg, i asked her, could it just get erased from the record and she said, no, because you weren't there when i first came by. just, you know, very unfortunate that i was out of town when she came. she came without warning, she didn't call and make an appointment or anything, she just showed up. i didn't khaifrpg a thing during those two weeks. it was the same as it was if she rang the bell and i let her in. she didn't see anything different from what she would have seen when she came by and left the door hanger, which i understand. so the violation was still on the books and she couldn't

retract it but she could abate it. and she did abate it. sorry, there's one more document from them, which is also saying all those violations were corrected, you know, since she couldn't say that they never existed in the first place, which was actually the truth. so there are one, two, three, four, five doors divided between two units. they are one-room units and there's 5 doors, which means exit doors between them. there are also ground floor windows big enough to crawl out of if need be. six of those -- they have so many points of egress i can't even count them all. they have

way more than i do up on the third floor. if anything happened i would be trapped or have to jump out of a window. if they had a fire or god forbid an emergency earthquake, i would rather be in one of those units as opposed to my unit i called the fire department and the guy i talked to, even if they share a common entrance if there's two people and there's only two people, i told him the square footage, if there's only two people in about a thousand square feet of space, even if they shared a common exit and that was their own exit, he would not be concerned about egress. they have each a private entrance plus all these other points of egress. the fire department is not concerned about this at all, okay? so that's the first thing i want to say. the second thing i want to say is

about the electrical wiring, supposed electrical hazards which really do look bad on paper. i understand all this stuff looks very bad on paper. it looks like it's just a horror story waiting to happen. but if you look at the facts, it's just not like that. here's the -- i don't know why that's not showing up. this is a record from the department of electrical inspection saying that the same tenant called the fire department claiming all these life hazards. the electrical inspectors came, they found 3 prong sockets that should have been 2 prong sockets, very minor stuff. it was all they found. they went over the whole building with a fine-tooth comb, of course they d i took out permits, i fixed everything that they told me to, and you can see that david green says case abated. all the supposed electrical

violations weren't all that much, i totally abated them. so no electrical hazards, no fire hazards, no life hazards that i know of. the other things on the list, the units were built with not fire resistant materials, they are sheet rock, not masonry. i'm not a contractor, my understanding is from talking to electricians and other people, that is code compliant for first resistance. it's a 7 foot ceiling and in 2008 when the inspection first happened that was substandard because the code was 7 1/2 feet but the code changed since then and the code is now 7 feet so the ceiling height is no longer a problem. >> i'm afraid i have to cut you off because that's the

7-minute bell. tame for department rebuttal. >> i mean, i could go down the list, every single one of these things has a problem with it, literally every single thing has a problem. >> you will have an additional 3 minutes for rebuttal. >> all right, thank you. >> members. board, i will consider myself sworn in, i raised my hand. rosemary bosque, chief housing inspector. do you feel like we're chasing our tail on this particular case? the bottom line here is you have two dwelling units that have no permits. the documents the appellant just showed you, we have not had the courtesy of seeing them but if we had, i would tell you they are not relevant to the issue before you.