was there when i brought the house and allows me access to the side door and a minor encroachment basis but it has nothing to do with the stairway for public use that goes down the center of the property. at angle that cannot be addressed from the side of the house because of this steep grade. the two-side entrances were always there. now one entrance and the second entrance is for the lower unit and the lower apartment, because the zoning is two units and that is what this will be in the single family home. finally. i just want to say that i should have the same right to walk out on that property as ever neighbor in the neighborhood has. if you walk down the old stairs or side stairs and all of that land adjacent to those stairs belongs to the city and you will see a gate with the wood and you will see a gate and they are always see through and open. they cannot put a barrier up for the people to realize that

is not where it should go. and that is the kind of stairway that is allowed. by the dpw. and that is kind of the gate that is allowed by the dpw and they keep it locked and it does not allow the people to come down. anybody that looks at the side of this plan will see that the stairway that goes down on the side of the house is not a wide stairway with lighting or railings and made for the public use. i don't have to do the public use stairway. it is just the right way to do it. and opening up access to the land is a good thing to do. that is what it has been from the beginning it has never changed from the very first presentation six years ago not one time. >> except that it was made

smaller. >> i guess that the they mentioned that the stair stairs that have been a public stair all wait through the site we would not be here. but i believe that... >> it is... >> let me finish. >> i believe that that is not enough run on that stair to be able to get down to the street adjacent to your home. >> that is correct. >> second question is you are providing and paying for the construction of that public stair? >> yes. >> what about the landscaping? >> what about what? >> the landscaping. >> it is also paid for by me but it is with a committee from the association and which of this gentleman here. and it will be done and once the grade is done and the stairs go in we will have a better idea of what it be landscaped. >> and who maintains it.

>> the core bit heights association has agreed to be part of the maintenance of it and it is the ultimate responsibility of the owner of the property next door. there are a lot of stairs like this in the city this one is a little bit more. >> could you speak into the mic so that the people in the back can hear. >> there is quite a few stairways like this in the city. there are over 500 adjacent two home stairways in the city of san francisco. >> thank you. >> i have a question if you are finished. i am done. >> and the necessity. what is a necessity for the staircase? >> do you have multiple egress entrance? >> it is not a matter of necessity and it is a matter of access. and you have access. >> the access is already there. >> and in what way? >> the door on the side of the house. >> you already have access. >> it is build with the house. >> so there is no property there that you could open the door on to? you just... >> it is the property that i am

responsible for has always belonged to someone else. >> so things were done... >> don't talk over me. i have a question for you. >> okay. >> which is you have a door to the side of your house. >> right. >> and you open it. and it goes on to what? >> it goes on to a little landing and up to mars street. >> with stairs there currently? >> yes. >> that is an existing stairway. >> yeah. >> i didn't put it there. >> okay. >> but the door is framed into the house. >> i understand the door part. i meant that i guess that i am maybe, what is going on here then? is it that you already have the permit and you built it already? >> no, i bought a house with it there. >> and could you i am missing something, here. and i think that... >> and should we have them come up and you can finish the questions with mr. auto first.

>> the existing stairs that he is referring to was a preexisting condition at the subject site. >> okay. >> they are being rebuilt as part of this. >> so it has been in existence and the challenge here is to rebuild them? >> yeah. >> essentially yeah. >> to rebuild what has already been in existence? >> yes. >> and how long has it been in existence? >> i couldn't tell you. >> do you know? >> it has been a long time. >> okay. >> i know that it has been a long time because they are not legal. >> the stairs,... >> thank you, that was helpful. >> no other questions, for mr. auto then we will hear from the department now. >> thank you.

>> thank you, with the department of public works and mapping, i believe what the issue really is here is the original design for this addition that mr. auto is proposing, was reviewed by the building department and the planning department thus as it was essentially conceptually approved as an entitlement already. and the reason that we got involved was because the subject stairway, and the stairway in question is located in the public right-of-way, thus it was referred to us to issue an encroachment permit. and we followed the regulations, and the regular process and did a notification and had a public hearing and at which mr. dean presented his issues and our hearing officer reviewed all of the facts and made... n >> so a permit that was for an encroachment that already

existed? >> is that what is going on here? >> that happens quite often. >> is that what is going on here? >> okay. >> are you finished? >> yeah. i have no further comments. >> okay. >> actually there is two stairways. that are for private use does that... >> yes, correct. >> and there is one that basically interconnects mars and core bit avenue. >> i understand that. >> but there are two that come from the house. and i guess that one could sit on the stairs and one would do, but basically for private use, okay. >> yes. >> it accesses the subject property. yes. >> and at two different points. >> at two different points, correct. >> the permit of that issue and the subject permit only relates to one of those; is that correct?? >> the stairways.

no it reflects all of the stairways that are to be constructed in the public right-of-way. >> constructed does it exist or not? >> reconstructed. >> so they are there currently. >> they are just going to be upgraded and made in the better materials. >> exactly. >> and so it is existing stairways that already give access private access. >> correct. >> okay, thank you. >> public comment on this item? >> please step forward. >> president hwang? >> three minutes. >> okay. >> faster than that. >> hi, my name is mom murphy and i live with my partner and my young son on mars street and we lived on the property 15 years. on january 15th. i met with the architect on the project in his office in san francisco and he showed me an amazing project. it is a gorgeous new house it

is not a remodel and it is a massive new project and it is gorgeous and i asked for two egresses on the property next door and there is one existing that the previous owner took over and not the two previous took over and created and assumed the property. that is why there is one, there is only one right now and not two. and the architect would say that this is part of the plan and i said that i don't get that it is public property and i don't think that you should be able to take that over. >> and the neck thing that we learned is that we learned about the new stair that david auto was willing to pay for and everybody loved that because it improved this piece of funky little property with a young child that would have helped safety wise, there were two public stairs and two for the lower and one for the upper, there were two public things, dpw, and he told us about what that meant and they could

mitigate and so it was like okay, then we learned in this response that there is actually one technically private stair and one public stair and we were like for such an explored project that has been through so many rounds to have so many questions as a property owner i feel dissieved and you just feel iky and that is it i hope that it was less. look at that. >> thank you. >> and you are having rebuttal and we will take public comment.. you have three minutes of rebuttal. >> thank you. >> okay. when the building permit was issued mr. smith told us that yes, there were two doors that exited out to the public property, but that he had nothing to do with other than just approving the fact that they were doors, and nick said

that it is all up to me and up to the dpw people to put something near those doors. number one. number two. since i got my master's degree at the university of wisconsin in philosophy, the last century i have longed to be able to use the phrase (inaudible), what nick elsner is doing to the logical fallacy. and that stairway that exists now, is illegal. and to make it the basis for a legal stairway is logically i believe incorrect. for the dpw to rely on the building plan that says that there can be two doorways here and to authorize the use of a creation of one public stairway and public... there is a public exit at the bottom of the property, if you go out of the door down there, and near core bit street, you are right on to

the beginning of the walkway, of the public stairway. and if you go out the other designed door, you have got a private stairway where people who are wandering up and down the street can hide where the people who are being pursued by the law enforcement will not be seen and putting more lighting there will not help the creation of a safety problem on our block. the bottom line is there is no basis for this stairway in the other one which was illegal and it is still illegal. and he is going to tear down the entire property. and it will all be gone, including i hope the illegal stairway. we start from scratch with this building permit. please don't let them continue with this mistake that because it is there now, it deserves to have another one. this man has more entrance places than any other house on the block. and he has entrances on two streets. and could have designed in the fact, tom will tell you had he had the time that he went and

saw the architect and the architect said that i could redesign it, it is not a problem. to have city property, my property and your property given away to this man because it is a convenience for him, he has never in a hearing stated there was a necessary, the hearing officer never found a necessity and if you would like send it back to hearing and have that question answered so you can answer the question based on the facts that have been gathered by the dpw and the question was never asked because everyone aassumed that it was all public access stairway. >> mr. auto. >> okay. once again, this is a two-minute property now, not a single family home, the entrance on the lower side is a new entrance and it takes up two steps of the public or the public stairway to go up two

steps into the house. that is how much i am going to pay tax on for the lower unit. the upper unit or the existing stairway is, and i would like to comment on what is legal and what is not legal. if the whole city of san francisco fell down tomorrow, my architect told me less than five percent of it could be rebuild without a special permit. in other words, there are stairways all over that were built at some point that are existing that can be rebuilt in a legal way and in a permitted way. and in good manners, and so, but they are concerned about that my access to the property and my access to the property exists now, and i want it to exist in the future. and everything that i am doing otherwise, is generous and it is a good total solution for the project. >> thank you.

>> good evening, commissioners, john the department of public works. and i was listening to providing information and also from both the appellant and the permitty, and i would need to provide the clarification to the board specifically. the location of 75 mars, applied for a building permit in 2010. building permit number 2010, 06, 1545, 12, to renovate the existing unit garage and vertical and horizontal additions and a dwelling unit. this went through the building department in june of 2010 and the or the planning department provided 311 notification in october and a request for review as to the design of the building itself. which showed the second point of egress, the discretionary

review went through in november, october, of 2010, and the planning department upheld the design based upon that requirement, and they, the applicant came to the department of public works and applied for a minor encroachment permit. and i believe that for the department, for the public works, we reviewed the technical merits of the permit and not necessarily what happened before as it relates to the entitlement, it appears that the appellant and the property owner are now back to this work are arguing over the entitlement portion of it that is why i want to clarify for the board and appears to the department. we believe from making it stated clearly, we followed the process as it relates to the minor encroachment permit and notification was provided and objections were heard and made to approve the permit based upon the approval of the building department and the

planning department. and it is up for appeal based on that approval from the department. i am here to answer any questions that you guys may have. >> i have a question, so the stairs have evidently been there since several owners, the private use stairs that are public. >> to clarify, there was one set of stairs initially, i believe it was along mars? >> the access mars. and okay, there was a door as suggested that was on the side of the building. okay? and what happened is they would get access through this door to the public right-of-way currently it leads to the landscape area in that corner sliver that the appellant is suggesting, and that they are maintaining however, since based upon the application of the department and shows this egress point that the department is obligated to

provide somehow, and egress in the public right-of-way and not necessarily in that area. >> that was my question. it was regarding that sense the door has been there in some type of stairs have been there for quite a while, does that create some type of legal easement? >> there are no legal easements, they will have to issue a minor encroachment permit to the property owner, declaring that it is something to construct out of right-of-way and it is the responsibility of the property owner to maintain and be liable for it. >> okay, thank you. >> okay, thank you. >> thank you. >> commissioners, the matter is submitted. >> this is an interesting design problem. i do have to say just for to correct the record i believe

that the permit holder misstated how many steps come from the new stairs and actually four or five steps and not two. however, that is not the issue, the issue here is two-fold. one is if you provide a public access across a fairly steep site and it needs a certain amount of run and therefore what you see is a curve solution that increases the length of the potential run to be able to get down. and there were additional options that they could have had, he could have interrupted the larger run on that stair anthen created to what had original in the permit holder

opinion illegal stair. but the effective issue however, is also addressed, if you make a relatively long run to have a legal conforming stair and you are doing it artistickly that varies in width, if you buy into that, proposal, then you are going to have a left over piece of land and it could be some type of planning and so there was a combination of things and i don't know why they came to this specific design. and the new stair that goes down alongside of the building could have been in the middle. >> however, you know, the fact that i have to, look at it in terms of the permit holder willing to do all of this work

on the public private way that adds the significant amenities to the neighborhood, and you know i think that he is deserves something. and therefore, at this point, i am supportive of the enroachment. as currently constituted. >> i am in agreement with commissioner fung, i think that although the permit holder is getting some value, out of the public right-of-way here, even if he is bringing more value to the neighborhood, and if you are looking at these plans it is a good cost to the permit holder so that this neighborhood could have some enjoyingment from looking at the pictures that were in the briefs and no man's land and so

i too am in favor of permit holder. >> and i am actually in principle in disagreement with the use of public property for private enjoyment. and the value added by the additional work that the permit holder would do is going to be returned to him in the increased value of his own property. for those reasons i would be disenclined to up hold the permit. but i will be out voted here. >> there is a motion. commissioner? >> sure, i will make a motion. >> i will vote that i moved to up hold the permit deny the appeal. on the basis that it was

properly issued for the reasons stated in the mr. dpw's brief. >> okay and commissioner hurtado, perhaps we could reference the pdw order as part of the basis. >> thank you. >> dpw order 181, 284. >> okay. >> othis will be on the basis of for the reasons stated in the dpw briefs and the order. >> yes. >> thank you. >> we have a motion then from commissioner hurtado to deny this appeal and up hold the sidewalk encroachment permit on the basis that it was properly issued and also for the reasons as stated in the dpw's brief. and the original dpw order.

>> on that motion, to up hold, commissioner fung. >> aye. >> hwang. >> no. >> lazarus. >> aye. >> honda. >> aye >> 4 to 1 and the permit is upheld on that basis, thank you. >> we are going to take a short break until 7:00. >> welcome back to the june 17, 2013, of the san francisco board of appeals. and we are calling 9 a and 9 b which shall be heard together. that appeal 13-064 and 065.

3930-3940 judah street. protesting the issuance on may 16, 2013, to other avenues food store, parklet permit (50' long parklet consisting of slip resistant and accessible reclaimed wood deck with planter boxes, bike racks, wooden benches and tables for use by general public). permit no. 13pkt-0044. for hearing today.3930-3940 judah street. protesting the issuance on may 16, 2013, to other avenues food store, street improvement permit (construct one parklet). permit no. 13ie-0298. for hearing today. (10) appeal no. 13. >> matter is on for hearing, these matters are on for hearing today and we can start with the appellant. we will have a total of 14 minutes to present your case if you care to use it because there are two matters that are being heard together. you are not required to use it all. >> good afternoon. i recon that it is good evening now. my name is james telliher i am the owner of delicious juice in san francisco and i would like to thank the board for considering the matter before them. according to the 2011, 2012,

dpw annual report, parklets turned unused pavement and parking into green areas. these public spaces allow residents and business customers to relax and enjoy the atmosphere of the city primarily in areas where open space or urban parks are lacking. and the neighborhood is located two blocks, two blocks from golden gate park and about five blocks from ocean beach. and we have become like, a new found destination and kind of the rest knows that we exist out there right now. and you know, spaces, is hard to come by, you know, and in both of our pavement and parking are highly utilized. and in our access to open space

does not lack. we have experienced an increase in vehicular traffic and parking is at a premium. with no public parking lots, or garages available, customers and residents in the immediate area circle the neighborhood in search of a parking space. and lack of parking is a discouragement to local business. because many of our customers drive and it is reasonable that they may soon associate the area with lack of parking and will choose to avoid the area in favor of other neighborhoods. parking has already been diminished by the introduction of two parklets in addition to two spaces allocated to the city car share. in their brief, other avenues, food star mentioned the potential for increasing business as a result of parklet

installation. our local business are mostly food service oriented and we lack the commercial diversity that the other neighborhoods afford. with little for people to explore in the way of retail, and entertainment, oriented establishments like you know, galleries, we lack theaters and boutiques and it is more or less of a stop and shop, sit and eat or grab and go type of business corridor. we do not experience the pedestrian hustle and bustle of commercially diverse neighborhoods even though on true beach days which are... they are kind of rare, visitors patronize local business and you know on the way to or the way from either the park or the

beach, daily, however, we do have the comings and going of locals coming in on scale boards and walking and riding near bicycles and working folk and the guys driving out in just your average coming out to get something to eat or... get some groceries. and people who purpose to patronize our businesses out on outer judah. over the last nine years, i have enjoyed a friendly relationship with other avenues, food store, but i firmly believe that there is no need for the construction of a third parklet. the addition of a third parklet on judah street would not as a

whole benefit the commercial interests of the microbusiness in the area. additionally removing viable parking space further challenges families with kids. older adults, with gate and moebility problems and the people with disabilities. you know, visitors in the neighborhood residents alike. throughout this process, i have been kind of disappointed with the transparency of the matter before us. and of our neighbors on judah street i was one of the only businesses notified of intent to apply for a parklet permit in spring of 2012. as a result, the neighborhood businesses and the residents in