agreement to the size, that we could use as deck, we were told at the same time that it could be changed. and that made sense to us that we could use the deck because of in our 27 years in living in burliing game in carrying projects we have come to understand which projects required the permit and which didn't and which might fall in the gray area and certainly this one, for example, the work on our front store entranceway did not require a permit. and since the usable deck size is defined only by the planters on wheels, moving these seems to us a great forward task that would not require a permit. >> the planters had to be on wheels since these have been stationary there is no access and no way to access the rest of the roof for maintenance or for emergency given the fact that the family room windows on

that floor are 6 feet per the mandated plans. >> we bought this house in good faith looking forward to the next stage of our lives and everything that behave done has been in good faith as well. we never intentionally violated any city rules and i would like to end with the cover letter of the e-mail that mr. segal s former president of the focc sent to the commissioners. he wrote to me just early they are week, i really struggled with how the process that we went there prior to our ownership and also support your totally reasonable desire for a larger deck and i think that he even acknowledges that it is a reasonable desire for this, thank you. >> the last speaker in support of the sponsor?

>> my name is alegra and i am a student at uc berkeley across the bay. but, i consider 201 fair oaks san francisco is to be my family home i often come here on weekends and i bring friends home with me sometimes from school and i have a lot of friends in the area as well. but i am also here tonight to speak on behalf of my sister, my younger sister who was actually at work earlier. because my sister actually plays on a competitive well she played on a competitive in high school and joined the brown university division one water polo team once she started college. so for her, it was necessary to attend swim practices at 6:00 a.m., and since the pool that she practiced at was down on

the peninsula she needed to leave the house at 5:00 a.m. and there was no public transport at this hour as you probably know and there was no way for her to get there. rather than driving. but the reason that i bring this up actually, is because several times she had to leave the house early but her car was blocked into the garage because as per the request, the garage was painted to kind of camouflage into the rest of the house and so she missed practice and coaches take this very seriously after this happened several times, my parents painted the garage white, which is the same color as the molding so that the garage door would stand out and would do away with the problem, so this is just one example of you know how something like this could effect us. lastly, i wanted to speak to

the point of there may be some of the new comers in the area, and i think that it might be important to take those requests into consideration. as i know some of you ignorant new comers might actually make-up some of the vibrantcy of the mission district as i mean that you walked on valencia and you see that it is with young people who make-up a lot of the part of the mission. so thanks so much. >> bye. >> thank you. >> any other speakers in support of the project sponsor? >> good evening, my name is chandra askin and i live a block and a half away from the home. and i have lived on fair oaks street for almost ten years and i might be considered one of those new comers. and since the fair oaks coalition has been around for a very long time. i don't, i believe when i

approached fair oaks street, this process of negotiating i thinks that the process was just taking place as a sort of dingy laundry mat was changing into a developer's hands and i was not a part of that process, i think that i just moved into the neighborhood and i was not aware of the process going on perhaps. but since then, i have i watched the development of that building, and i walked down that street, every day, if not once, twice with my dog. i enjoyed watching the development from the dingy laundy mat to what is really a beautiful home. and i appreciate it actually see the deck developed above the on the roof. and i enjoy seeing outdoor areas that people can enjoy and i have continued to enjoy it as i walk by that house once if not twice a day. so i am really in support of

the ability to bring their roof deck out to the para pit and you know we live in a city where houses are very close to each other. sometimes the only way to get privacy is by putting the windows down that is my experience on fair oaks street. i am hoping that we can agree to disagree as neighbors and still be neighborly. and so, i am again, in support of the roof deck expansion, thank you. >> thank you. >> are there any other speakers in support of the project sponsor? >> hello, good evening, my name is karin hofmann and i also live at 42 fair oaks. and i am support of the roof deck. and i think that it is important that we all have a

little bit of space, and i don't feel that this infringes on anyone's privacy, within the neighborhood and i think that it just makes for another little special place for people to hang out in the house, thank you. >> any other speakers in support of the project sponsor? >> okay. seeing none, dr requests you have a two minute rebuttal if you choose. >> >> i really think that this issue well in mind. so nothing further. >> thank you. >> project sponsor you have a two minute rebuttal. >> i have submitted an extensive brief and it is getting late. >> all right. >> i will be glad to answer questions. >> thank you. >> okay the public hearing is then closed and opening up to commissioners, commissioner antonini? >> the dr requestor, i know that if you could answer some

questions. you know, that you have this agreement that was or took place with the previous owners and it is apparent that is the agreement does not have unlike a conditional use which goes with the property, i guess is agreement does not have the status that it remains with the property after it is sold. however, you are hoping that the owners will implement parts of the agreement. and i guess that what i am interested in knowing is what are the issues that are really key here because there were some concern about the historic nature of the building but, this is the size of the deck a key part of it? because it seems like if they enlarged their deck, it might not interfere with the building appearance that much. >> well there is a change, say the owners moved in and they moved the wind screen to where it was not visible from the street. and back to the edge and that

was like shocking and i mean in a way. because as planning department, and that was a character in the building and it just does not look right. now what is changed since we filed the dr is just recently my understanding is that the latest plan is to you know, it is really just the plan, and as we go along here. is to move the wind screen and so that is gone and that is a plus. and you know, it is the different... (inaudible) should be present or not and the deck at all. and what they reduce it. but i guess what remains is our belief that the roof deck configuration of the roof deck should be as agreed, set back. there were some privacy issues and it is going to come down to. >> so what i am understanding is that the other parts of the

conditions including the garage door problem, that was alluded to is not... >> no, that and by the way, the (inaudible) it was the developer, it was remodeling the whole place,... and the owners and it was not the owner per se and the owner build, i guess, and i want to point out that is really a development thing and so, it is a little, hazier in that, and should it be buying and there is a little different if you had it there and five years later somebody buys a property and then they don't know about this thing and maybe this is different. here, i think that we are dealing with the agent of the owners and they bought it and i think that they bought it before they moved in. >> okay. >> okay, i guess that my point is that i am trying to get to the specifics of what part of the agreement that the dr requesters find to be objectable. >> at this point it is the size

of the deck. >> so we can focus on that. and then the commissioners can get an idea of whether they feel and your main concern on the size would be presumably because it is visible from the street and it detracts from the historic appearance of the house or... >> no the wind screen is not... and the deck is (inaudible). >> okay. so that does not sound like it has a historic issue. >> no. >> okay. i will see what the other commissioners have to say. i am just trying to find a way that the current owners can enjoy a little more open space out there and as well as it is not bothering anybody in the neighborhood i think that it should be okay. >> they do have a deck. that is the question of size. >> okay. >> commissioners? >> okay, i guess for me, we have to remember that there was a dr filed originally.

and because of that dr, the developer and the neighborhood, then, took the time to negotiate the agreement. which is something that we always tell people to do. when they are in this kind of a situation, is can you guys just go back and work it out? >> and so they worked it out. and the developer did not get everything that he wanted apparently and the neighborhood did not get everything that they wanted and i don't think that they wanted the penthouse there, but you know they said, okay. and i don't know the specifics of all of what was negotiated. but we are now talking about the deck. but what is important to me is that there was an original dr filed on this same subject that then they negotiated and i will repeat again that this is exactly what we want both parties to do. and we tell that to people

every time we get a dr, it is kind of like maybe you could go in the hall and negotiate the terms and we will give you ten minutes and if you can come back and tell us. this took a lot longer than that. and in some ways the neighborhood, i think has some assurance or believed that they had some assurance that this was something that the department accepted because mr. wang's e-mail specifically says, the site permit, and i will not site the number. will be approved with revised plans that have been agreed upon by you and the developer assume that his name is troy or whatever. and the iten cal called the revised plans will be saved in the discretionary review docket for future records. i know what the staff is going to say this has no standing, i

don't care if it has any standing or not, it is in the record it is what mr. wang sent back to the neighborhood and they have every reason to believe that the department would look at this and say this is what happened and we accept it. and now, i think that we should accept it and i am going to make a motion to take dr, and approve the original project that was filed back when mr. wang wrote this e-mail. >> agreements are made between private property owners and neighbors that result in the withdraw of a discretion review. because that agreement is made, that does not necessarily mean that the staff's position would have been to take the discretionary review, what it does is eliminates the dr.

>> and my point of why we do this. >> right. >> is to eliminate the dr. >> otherwise, why would we be involved in telling people to work it out in the first place? >> because the neighbor has the right to submit a permit to make modifications. >> it makes a mockery of the whole process. >> commissioners i think that there is a misunderstanding. >> staff did not approve a agreement. >> i know that the staff did not approve anything. the staff worked it out. it is a private agreement. i understand that. we have no jurisdiction over that. we want them to work it out privately and then we should respect that process >> i don't think that it is the position of the department to accept a plan because the private parties agree to it. we approve the set of plans. >> okay. >> and if this project came to us today with the same form that it did before, we will take the same position on the dr. >> and that is not the point. >> but it is the point for us and maybe that the commission's

responsibility or the commission believes that it should honor our private agreement, but it is not in our position, our position should be to look at a set of plans to see if they are appropriate. >> commissioner hillis? >> to follow up on that question, if we took this, if this commission took the dr and kind of ratified the agreement, could the new owner come back today and file a permit to expand this deck? >> commissioners? >> yes, they could. >> but it is their right as a property owner and they can expand it. >> and the dr, when can they do that? if we approve the dr today could they come back tomorrow and approve the permit. >> yes, this is from a cu or you can make a decision without prejudice and they have a year to come back with the same exact request and in this instance if it is a code

complying request, we have to respect that permit and review it and give our professional recommendation on it and if it results in a discretionary review bring it back to this body. in this instance they came in with a revision to that deck, and we did the notification process because we knew that there were neighbors who opposed the alteration and they were notified and the discretion review was filed, and it was brought back, because of prior agreement had been made, it does not negate us the inability to not follow through with the process. >> excuse me, with all due respect, i think that commissioner hillis is asking if under the original dr, that came before the... if it had come before the planning commission and if the planning commission took the dr and ratified that agreement, and then yes, the planning department would agree. >> and the question that you could come back with another permit. >> and they could come back with another permit. >> and we could not approve

that administratively knowing that. >> they will come back to the commission. >> i just want to... could i ask the projector the dr requestor a couple of questions? >> because i mean, i think that it is important to have this agreement and i think that it is great that you worked this out agreement. i just want to get at, because i agree that the glass is not good and i would not approve that nor do i like the sfra glass screen where it was agreed to be put. i mean, so let me ask you, what was the purpose of that kind of screen? >> why did you want that? >> well i was just concerned of the privacy. and our house is right across the street and you know, and it is going to look straight across. but if you know, it is gone, and it is not the end of the world. because while the public is see

the glass screen at the street level if it is on the edge, you can see it where it is? >> well... we could see it from our second story. >> yes. but it is not, some of it is... i think that it is a more importance than the other and than the others and it is not... >> it is not the most important thing. >> my question is that the deck is small and where they are looking to expand the deck i can see that the deck is small and i don't like the screen and if we set the new deck back five feet from the property line that faces your house and put a planter instead of a screen what do you think about that? >> the original, sure, it sounds good. >> i mean, i move to take the uflm. >> go ahead. >> first of all would i like to clarify that the permit before you is to take the screen down.

and to remove the planter in front of the (inaudible) facing them. >> yes. >> no i get it. >> yeah. >> i mean, i think that the agreement is to gather the contacts and i think that it was a well thought-out agreement and we are looking at it and would i move to take the dr in set back the deck without a screen, but with a planter, and five feet from that property line. >> so you get an expanded deck and you don't get it fully to the property line and there is a five-foot buffer and i don't have what i think is an inappropriate screen on that. >> is there a second to that? >> maybe... i will second it at that point and we will want to talk to the project sponsor about the feeling but i will second it. >> commissioner moore? >> just for the record, in my recollection, that is in support of mr. washington and when we ask for two opposing

parties, to work things out, it is mostly after we have looked at the project. the agreement was well created here, and it was not with any guidance from any planning commission, i know was seated in 2010. i do not recall this project because the project is a number of others, and it is things and the approval of the planning commission and how you paint your trim and all things and the tonalty of the garage and whatever, those are personal agreements which go way, way beyond what normally this planning commission comments on as really have any influence on. so in your recollection, too, how do we encourage the dr applicant and the opposing parts to work things out after we have given guidance and sometimes we do it once and twice and three times sending them back to work it out but specific input of what we are looking for in terms of being the critical issues.

and not seeing the property line and the projects which have common lines, and the layout of this building and the living room and light and all of the things that we really spend a lot of time sending the dr requests back to work with each other on the subject and the things that we are setting to be worked out. and this is not the case here. and if this project was unbias and we would take the dr and make the modifications and it would not just basically say that because it was an agreement that means that we have to up hold the agreement. i think that only comes after we have given the type of guidance we are asked to give you. and so, i basically want to take issue in the interpretation of commissioner sugaya and more trend towards what commissioner hillis understands we cause and interpret and so i am more in support and more support of your motion while to have taking the dr and modifying the

project and look at the plans and see a lot of what we can agree on and what guidance we want to give the project when we are out. >> commissioner borden. >> i think that what the struggle is for us, i feel terrible that this agreement was not lifed up to and that the neighborhood felt like they had agreed to something and now sponsor is in a different direction, it is our policy whether it is ccnrs or deeds or other sorts of easements or other private agreements that is not our jurisdiction because that is not our jurisdiction and we do not have binding capability there and i think that while we may end up changing this project, you are taking the dr, and the past agreement can't be the binding reason because it does set a precedent that is not in line of what our policies have been and how we have acted as a commission, and again and, again told others that is not

our area, and that is a legal matter. and so, what we do need to do is look at this permit as in the new permit that is coming before us and make a decision on how we want to treat this project sponsor proposed project. and so i think that it sounds like we were talking about moving the deck back and it sounds like that might be leases among the commission about doing that and i do also want to point out that the larger agreement that we agreed to was about other things and not specifically about this deck and i, you know that i regret that i hope that whatever happens here that everyone can work together and i want the neighbors to understand and that i understand where you are coming from and i feel terrible that you took a process, and you had an agreement and apparently with the same architect that went later to work on that and did not keep that word but at the same time, as commissioner moore said it is not something that had officially been before

the commission or discussed in approved in a particular fashion. and so our jurisdiction is to decide the best way to you know to either maintain the project as proposed or to scope it in a different way. >> commissioner antonini? >> i agree, i think that we have to look at this denuvo even though i do understand the issue of the previous agreement and there were many parts to that and the place was being renovate and there were issues dealing with the historic nature of the building that were included and really we were right down to the deck now and we are talking about the size of the deck if i could ask the project sponsor, and i am looking at your correspondence and the legalization of the deck that you are proposing to do. to go from 14 x 13, ten inches to 24, 4, so a 24, 4, does it come all the way to the parapit. >> yes. it does. and then if you look at it,

there is also very, very extended quantifies, that is above 30 inches that just beyond the parapit. and so that is why, the proposal, when you ask this, and to qualify to it and the planter, you are pretty much almost five feet from you, know in terms of being able to... >> we may be accomplishing what the motion says by your actual proposal. because if i am understanding it right, to this street side of the parapit there is a significant cornis that projeblgts out further. >> correct. >> and then the plants will be between the deck and the parapit. >> yes >> there is a separation. >> and the deck of the planter, you know, like beneath right now is around 2 feet or

something and we can make it 3 feet >> okay that may be a good compromise for me. >> i think that part of the problem was, you having it, and several, and you know, no man's land. and is what do we really achieve? >> that will be my question, but i think that my concerns would be when i saw this screen, in the picture, where it could be seen from somewhere else even from the street we did not want that, of course. >> no. >> but the reason for the screen. >> being pushed up there, >> yeah. >> and when they come to me and say, you cannot take the screen down, in the event that the commission or the planning department that you have to move the deck the way that it was, so they didn't take the screen out. >> okay. >> because this is actually asked not only to move and match with that but also to take the screen down. >> i am inclined to go with

your suggestion because you are estimated that the planters now is about a two-foot and if you make it three feet, all that you are really doing is making a foot off so that you would be 23, 4 inches. by 14, you still would have almost an entire deck. >> you will not be standing up next to the para pit. >> it is probably just as well. >> i think that more important for the privacy, of the landscaping. >> yeah. >> that is true. >> and we have never in an urban area and we have never brought in too much of the privacy issue and people are going to look from one deck to the other deck and they are going to see the people there and it is not really if you choose to look across there, it is your choice, but putting a planter there probably sounds good. so with your permission, i would ask that the motion be modified. it sounds like we are going to

be basically three foot from the parpit. and it would be a one-foot reduction on what their permit is. >> yeah. >> but it ends up being a net three. >> okay. >> so that means that if that is okay with the maker of the motion? >> let's hear. >> i have another issue. >> commissioner sugaya? >> i have a question for the staff, when drs are filed, the staff routinely suggests trying to work it out? or is that not something that the staff does? >> we routinely recommend that dr filers project sponsors communicate before they have to filed the discretionary review, if they reach some type of a mutual agreement and they withdraw the dr, plans will be submitted and it will be signed on, which is what mr. wang did in this scenario. in the future if a new plan is

submitted we will review it and unless the recommendation were to come from this commission based on the actual dr that was held, a hearing, where the commission gaves specifics, we will always honor those and bring those back to the commission, with any future you know recommendation on any future dr that may occur on that property. >> okay. so on item 16 a, and 16 b at 68 procedio avenue which was a request for discretionary review which was withdrawn today. for whatever reason, if there was an agreement between the two parties, then, it holds for water with the city. >> even though the staff has encouraged the two parties to try to work it out. it does not prohibit the property owner in the future