we are resuming the may 15, 2013 the san francisco board of appeals. the next item is no. 8. item 8: 312 avila street.protesting the issuance on march 07, 2013, to theodore & cynthia heyermann, permit to alter a building garage alteration as per plan; remove non-conforming construction; remove living room, kitchen and toilet; remove space from housing use that is currently being used as a dwelling by a tenantt. application no. 2013/03/07/1690.12 >> this matter is on for hearing tonight. commissioners it's my understanding that the permit holders representative are not here. we have someone who has worked with the permit

holder who is in the audience but informing the attorney and permit holder are not in attendance. she would like i believe the matter be rescheduled. the matter for the appellant is here and has indicated he does not want this matter continued. i wonder if you would like to entertain a few minutes of discussion. >> why is the reason for the absence? please step forward. >> what is your role? >> my name is rebecca salas and i'm related to the owners who live outside of the country. >> do you know reason for the no show? >> i have no idea. i wasn't even supposed to be here. we were told we don't need to be here. so i didn't realize the lawyers are not here. i thought he sent somebody. i didn't

know. >> okay. well, i think normally, the matter is called and if no one shows up, too bad. we have one more matter. i would be willing to await until let the other one go before. absolutely. i'm sorry. >> thank you, my name is james. i'm the attorney for the appellant. i have been sitting here since 5:00 tonight. i believe these folks were in attendance. when i showed up i called up the name of the address to see if there is council there, i was acknowledged and they said no. i would have no problem continuing this. i'm billing my client for four hours for them to now come forward and say, we want to do it another day is

grossly unfair and abuse of the process of this board. thank you. and as to continuing it, unless there is to later on the calendar, unless there is some indication that council is coming, it's 9:00 at night. if council is coming, he or she should be here. we know there is council because a reply brief was made. >> i hear you, i'm tired too. >> thank you. >> do we want to -- does anyone have any thoits -- thoughts on how to proceed? >> well, i do. counselor, if we continue it, your client will be able to stay there for an additional period of time. >> that's true, but my client just spent four hours of time and there is already an unlawful detainer going even though this permit is

suspended. although i appreciate that perspective, commissioner, i don't think it would have great value to my client. >> understood. >> we can hear it. absolutely. they didn't show up. their loss. >> i just want to say that we came here late. my husband and i came in late and we weren't here when he called the address. >> it's okay. >> okay. commissioners, if you are interested in continuance we can make a motion to that. >> i would move to continue. i don't think it's fair to either side really what's happened toept. -- tonight. i don't feel comfortable hearing an

appeal without one party present. >> if you could, commissioners to schedule it little more time certain to the beginning of the calendar since they waited so long. >> i feel differently simply because the party that is not present is represented by an attorney. if that's not, that would obviously, it doesn't help the attorneys client, but that's, you know -- i don't believe that, i don't really like to cut people breaks like that especially when it's at the expense of another party here. if it was a regular person not represented by legal council, i would very very different about that. tl -- there have been times where you proceeded with the hearing and if the person is unhappy with the outcome they can file a

rehearing. >> i'm inclined to go that route. we've done that before. >> i'm willing to do that if they can file a rehearing that would take care of the issue. >> commissioner, are you withdrawing your motion? >> yeah. i will withdraw my motion. let's hear it. >> okay. >> yes. please step forward. you have seven minutes. >> my name is james doris skol. i'm here to represent the client. it is an illegally constructed in law unit as they are called in the city built on the garage of a property that

is admittedly zoned rh 1. when miss miller moved it she had no idea that it was an illegal unit and what brought this to the matter that miss salas and her husband who are the sellers of the property, the absentee landlords and intimidated her and staked themselves outside of her apartment and refused to leave. i know this because she had to call me to, i knew her socially previously. she called me, i came over and spoke with them and explained to them that she wasn't going to come out and asked them to please leave which they eventually did. i was subsequently retained by miss miller. i wrote to the landlords, i could not at that time write to the property meteorologyers because --

managers because at that time by profession code, but copied them on the letter and they retained council and sought to withdraw this permit and as i was filing the appeal council could send notice as the parties intent as required by state law before using it as a basis to use the ordinance. when the permit was issued i filed this appeal and of course spending the permit and nonetheless the landlord's attorney has gone forth with the unlawful detainer as i mentioned in response with

commissioner fung's original question. >> when my client granted this in 1998 and up until she hired, she had no idea that this was an illegal unit. the owners are absentee and supposedly living in france in some location. the only contact per that my client has is the sales. what has happened is we have a situation where a tenant in san francisco in a represent controlled unit is facing eviction that she wouldn't have faced or wouldn't be facing if she were in a legal unit. the city has a strong policy in favor of

affordable housing as shown in my appellant's statement. the landlords can seek to legalize it going in for a conditional use permit even though it is currently zoned rh 1. what they are seeking to be reawarded for their own wrongdoing. they got rent every month on time for 15 years and now they want to throw her out so they can move the unit. once she's gone since there is no nov, it could be rented to someone else. if the permit is allowed to continue what is happening is the city is saying, if you are a good landlord, rent only legal units then you can't e

evict people. if you are a bad landlord and represent out illegal units you have the advantage of being able to throw those people out when it's convenient for you and whether in fact you actually demolish the unit. who knows. if there is no nov. i understand the landlords didn't refile for them to recite it. they just got this permit. the board has power to grant the appeal. they should grant the appeal on a number of basis. one, if the appeal is not granted there will be a decrease in affordable housing contrary to statutory state of the policy of the city and again, it is basically in equitable to give a bonus to someone who violates the law who is not available to someone

who follows the law. i think the equities here lie greatly in favor of my client and that this should not be permitted to be a means to force her out and possibly get in a new tenant at 2-3 times the rent and reward the landlord for the wrongdoing. thank you. >> thank you. miss the salas, do you want to speak >> i don't know if i should. i'm not represented by a lawyer. >> she's the agent for the permit holder. she's been actively involved in this appeal in terms of -- but it's -- i don't know if, she can

decide for herself. >> i didn't know she was the agent. i didn't realize. >> she's been submiting the documents as the agent? >> no. she had some phone calls to the office. >> okay. >> do you feel authorized to speak on behalf of the permit holder? >> yeah, i feel authorized but because i'm not represented by a lawyer here. i don't know if that's a good idea. i can say a lot of what he has said is untrue. >> do you have a procedural objection? >> the witness indicates that she arrived late the swearing incurred for anyone giving sworn testimony. i asked the witness to be sworn? >> were you here during the swearing in process? >> okay. it's within your right

to decline, but if you are comfortable, are you comfortable to swearing to tell the truth tonight? if you are not, you don't have to. >> in the interest of the owners. >> that's up to you. >> when you say your lawyer, are you talking about the person that filed the papers here? the person's name lana conner? that's the lawyer you talked about. okay. sounds like she's not authorized to speak. >> it's okay. >> mr. sanchez, mr. duffy? >> thank you. the subject property at 312 video street can contain one legally dwelling unit. the record that

it contains one dwelling and has no second dwelling unit. this could not be returned because you cannot legalize the property. i did note there were two permits moved. one was issued in february. the appeal passed. there was noah appeal filed and it was canceled by the permit holder. there are some change in the language listed on the project description, but otherwise i'm unclear as to why it was refiled. anyway. it was an appealed here and so say the zoning only allowed a single family dwelling. i'm available for questions. >> would an novb issued on the property. they are asking for permits on something that is

not warranted. they are giving permission for the nov. >> there have been no complaints by the planning department. but the planning department may have a violation on the property. >> thank you. >> commissioners, i'm not aware of any violations for the illegal unit. we sometimes get people that come involuntarily. we want to recognize there is an illegal unit and they want to take it out. that's what it sounds like this permit is for. we also have owners who make a complaint on their own property in order to have us write a notice of violation. i'm not aware that that happened in this case, otherwise we would have wanted some language on the permit to comply with notice of violation. i don't see that. it looks like someone can fight for a permit to take an illegal unit out.

>> why would an owner request for a complaint on their own property? >> sometimes they do it if they are under dispute with the tenant and they don't want to deal with the illegal unit anymore. they may want to convert that area. >> can they do that voluntarily? why would they need an nov on it? >> for some legal action. if the city is telling you to remove an illegal unit. it will give you moi sway -- if there is an illegal unit. >> remember the case in castro area where there was an anonymous tip on the non-warranted unit. >> it's anonymous. it's not the owner.

>> it was an open complaint. >> it's usually the anonymous. >> one more question, why would the permit be canceled by the owner? >> i saw that. i have it with me. >> would you be speculating? >> i would be. >> have you seen that happen before? >> oh yeah. people cancel all the time. >> on the filed permit, we held the permit bass -- because we were told there was an appeal. there was an appeal and it was perfecteded and they filed an appeal. >> that does ring a bell. >> i do have a question. this

is to make a garage, return a garage back to what it was supposed to look like. if a person -- have you been to this property? >> no, i haven't been to the property. >> can a garage make it look like a real unit. >> garage alteration is to remove non-conforming construction, a living room or toilet. if the part is in the full floor, the garage which was the original garage may have a base ment or indeed if they have another living room. we don't have plans to see what's there. >> okay. >> is there public comment? >> step forward. >> my name is fish ler. i'm the current renter of the house on

avila street. we moved there about june of last year. and we were -- we expected this to be a single house. >> sorry, you are the renter of the house. >> not the downstairs. the apartment downstairs is an illegal apartment because after the second week we were there, and to continue addict what the lawyer said, why we are paying for both electricity and water for this apartment, she said it's not your problem. it's the owners problem. she did say she knows this is an illegal unit

and testifying to that. i don't know if you read the report we wrote. it's not that we expect to -- if it's an apartment in the building, or if it's an apartment for two families, it shouldn't have been built that way. the owner is taking advantage because she's been there for a while to harass her in a sense. our life is not the way we are expecting it to be. we moved to the u.s. a year ago to build a business and grow and we created our own company and i never thought that i would have so much problem back home with this kind of situation where i'm supposed to be, this is supposed to be my safe haven where i go to rest and be with my wife and feel

this is my castle. this is not a situation now. this is a situation where they are talking about, well it's only technicality to remove this place. i think we create a better environment also for us as it relates to the pricing of the lease. we definitely discussed also extending the lease for another year without increase of the price. i didn't see anything from the renter side to say they are looking to double or triple our rent for any reason. that really is fair. the last thing relates to our privacy. as you saw in the letter, this illegal apartment is situated right above our bedroom. this is not a situated in the garage, a separate area. this is right above our bedroom. every conversation we have. she can listen to what we

talk in our own bedroom where this is the ultimate privacy of our life. we see that as a problem and we definitely support the petition of the owner to remove the unit and make it legal and make it livable for one family as it's supposed to be in the first place. thank you. >> i have a question, i'm a little confused when you originally rented the unit were you aware there was another tenant in the building? >> i was aware there was another unit but i didn't know it was an illegal unit whchl -- when i saw the huge bill, they said it was a single house. it's not supposed to be two apartments. >> that is the situation with

your landlord, not with the tenant, correct? the landlord should have disclosed that certain portion of the utilities whether it's illegal or not, the landlord should have definitely explained that. >> she says i'm pa -- paying for the entire utilities in the back both apartments for water and electricity. i knew that i was paying for both apartments, i didn't know it was two separate apartments. >> you would still be stuck with a double bill. do you agree to pay water and electricity for two units? >> yeah, but that would be that i can call p g and e. >> in your own agreement you

agreed to pay for both? >> for both apartments. >> then you have nothing to complain about if you agreed to it. i don't understand why you are arguing that you -- >> because when it comes to pg & e bill there is an amount that is considered under a reasonable rate. above the rate? >> if you entered into an agreement to pay it. >> i believe it was one bill. i thought it would be, okay, i'm paying for both bills, that's fine, but it's one bill. it's not two bills. the way that we receive the bill is we get a huge overcharge. >> i don't think he understand. >> is there any additional public comment? seeing none, public comment is closed. >> we have rebuttal. >> thank you, mr. pacheco

clarified the appeal on the first permit. in terms of the rebuttal through the public comment, i think that the most emotional part of that, the heart of that was my goodness my bedroom is right over this woman's home. our sanctity is being invaded. however when questioned from the board it was clear he knew that unit was there when he moved in. the fact of that unit being there is not a surprise to him as the board illicited. i think the harm that the public speaker was claiming of is not valid because he knew what he was

getting. he knew he was living above someone and to now say my goodness my privacy is being invaded. it's like moving into a multiunit apartment building. it's like saying, my god, there is people next door. of course. you knew that when you moved in. lastly the permit issued, right above the signature there is a series of 4-5 check boxes, one is supposed to be checked regarding workers' compensation. considering the permit holders are obviously not around as admitted by the property manager. that box was not checked and there is no representation as to who is going to do the work or that workers' compensation will be provided if it's done by someone other than the homeowner personally. so i

would suggest in addition that the board can look at the permit and on its face find it defective because that box is not checked. >> anything further from the departments? no. miss salas you have another opportunity to speak if you would like. >> we have a licensed contractor who does not have employees. because it's a simple job and the planning department approved it. he is under, he is in their list of approved contractors. otherwise he wouldn't approved it. >> how long have you been taking care of the property for

your relate ives? >> 2004. she was already there. >> given the current statement the tenant has made, if she's been there that long was there a previous issue with the previous tenant that was there regarding water bills and noise? >> i hate to interrupt you. i want to make sure we are properly proceeding. i heard you state you are not in a position to speak on behalf of the permit holder. okay? you want to speak if public comment, that's different. she can't speak in public comment. sorry. the matter is submitted. >> i have a question for mr. doris skol, seems the own want to come to demolish the unit

in order to rent it for higher amount. >> they want a permit to demolish the unit to evict miss miller and whether they will demolish it who knows . >> you don't have any basis for that, other than that it's your guess. >> the factual basis is a negative. the fact that they haven't sought and nov which would force them to remove it and the fact that they attempted to demand that my client make an agreement to move out and harassed her and when she refused and obtained council, then they decide it's an illegal unit and we want her out. the pattern of the