be satisfied compromising the depths of their deck in order not to destroy the privacy of a sick neighbor. i'll end my plea for compromise with comments about the horners' d-r rebuttal idea of a 30 degree desired view. we believe this is a totally arbitrary invention. one would have to wear blinders to eliminate the dine sider view which includes our bedroom. but from my bed, i clearly see anyone standing within five feet of the edge of the proposed deck. the horners' undesired view, the view into my bedroom, is there when it's desired or not and merely have to look down. there is absolutely no evidence that a 30 degree view plays a role in sustaining visual behavior. if this were true, tourists standing at the rim of the grand canyon would risk seeing precisely what they came to admire because they would be constrained from ever looking down. thank you for your time. i hope a neighborly compromise ning commission might favor

a roof setback of 5 feet. thank you. >> thank you. speakers in opposition to the project, i have a number of cards. joram altman, [speaker not understood]. evelyn [speaker not understood]. good evening, [speaker not understood]. i'm an architect speaking here as a friend of melinda and arnie. they're asking me to look at this project and advise them on the performance of the planning code and general fit within the neighborhood. now, compared to one of the problems i have with this project is the documents we have prepared. we generally prepare for submittals to the planning department. these ask for very basic information that kind of make it hard for me to evaluate it. there's no setback line indicated, the adjacent neighbors for width of lot and

footprint of the building is not shown. [speaker not understood]. and i didn't see any rear yard photos. they weren't part of the packet that i filed for you. and also if you assume the rear setback line which i'm estimating to be about -- at the line of the rear of the next door neighbor, the rear wall line, the main two-story line, the proposed planter which they show on the deck goes beyond that so that line, therefore, requires -- i believe would require a variance. this is not an open railing design. beyond these efficiencies, i think the commission should really look at the overall size and scale of this deck given its location in bernal heights. the buildings are small and [speaker not understood] and tightly spaced. with overhead drawing, if you could focus on this.

we did a survey of various elevated decks in the neighborhood. there's about 20 of them. and they range in size from about 60 to 150 square feet an average of approximately 100 square feet. the proposed deck here is 250 square feet which i think is excessive. it's accessed from a bedroom in the third level. so, functionally it doesn't seem to need to be that size. for a bedroom that's only 180 square feet. and also the house has a large rear yard with a deck at grade which is accessible from the main living. so, i think you should look at this deck in terms of scale in the neighborhood and consider pulling back the guardrail away from the edges as you've done in other projects, including a recent project of mine in telegraph hill where the fact it was reduced in size from the

edge for a similar type neighborhood issues and scale. so, if you pull back the railing 5 feet, [speaker not understood] the owners still have a functional deck that's 150 square feet, 7 foot deep which is fairly -- which can still be functional in terms of using full view. and arnie and melinda would receive some privacy. thank you. >> thank you. good evening, my name is evelyn rankin and i'm a neighbor and friend of [speaker not understood]. i'd like to present -- read three out of the six letters written in support of the bergener's concerns with the project. the first one is written by beth roy, ph.d.. i have lived across the street from melinda and arnie bergener for 20 years.

i know them to be friendly neighbors, reasonable and socially minded [speaker not understood]. they sought advice from me about ways to resolve the conflict in a collaborative and fair way. i highly respect their inclination. in the event they felt the necessity of appealing for adjudication. as a caring neighbor and counselor, [speaker not understood] my greatest concern is for the well-being of melinda. she has suffered for a number of years from a serious respiratory ailment and is under long-term treatment that is very [speaker not understood]. she therefore spends many hours resting in bed. the function of the bedroom therefore goes beyond a place to sleep. it is a place of respite for melinda as she suffers the debilitating consequences of her disease and treatment. the bedroom looks out on a lovely sunny garden. i can only imagine [speaker not understood] derives from that view. as a mediator, i think i'd like the better resolution to be

reached that would satisfy both neighbors' needs. i hope your commission provide substantive relief. the second letter is from myself and [speaker not understood]. it's to the planning commission. the bergenerses have lived next door from us for 32 years. they are always thoughtful, considerate and reasonable and we feel lucky to have them as neighbors. we are familiar with the backyard in relationship of their bedroom window to the roof deck the horners proposed to build. in fact, our two homes were built as mirror images of each other so we have in effect lived in their home. some years ago we had a second story addition to our house and altered the design to respond to neighbors' concerns. we voluntarily pulled back our second story so as not to negatively impact anyone. we understand the process while and consider it part of the normal give and take. bernal heights is a densely populated community with smaller lots that san francisco

neighbors build and consider this delicate bernal relationship when making changes to their homes and try to avoid stepping on anyone's toes. were we in the bergener's position now, we would be as much concerned about conextrusion as bedroom privacy as they are. we would be requesting the same approach in order to maintain that privacy. a roof deck of smaller proportions would satisfy everyone, raising the fence between the two properties is in our view a mistake since the fence is already very high on the bergener side and already significantly cuts down sunlight into their garden. we feel we should add that melinda's lung disease ha her spending a good amount of time -- >> thank you. thank you. >> we do have a copy of the letter. good evening, commissioners. my name is arnold bergener and

my wife melinda and i live at 301 prospect. i'd like to emphasize some of the points we've made. we live in a house with a single rear bedroom and we have already experienced firsthand the privacy impact of the project sponsor's proposed roof deck. as it's happened with construction people several times over the last six months, my wife has been resting in bed, looked out the window and seen a worker peering down at her from the roof. we have made it absolutely clear that we do not oppose our neighbors having a roof deck off the master bedroom. on the other hand, there is no compelling reason why our bedroom needs to go from the most private room in our house to the most public. we know there is a simple solution in the form of the rolling setback which would be

highly effective and we know that this commission has imposed the same remedy on other projects. the project sponsor in addition to wanting to capture views, citeses a single goal for the development of the roof deck. make it as big as it can be in order to maximize the use of the property. however, when we compare the size of other roof decks in the neighborhood, the deck the project sponsor wants to construct is fully 0% larger than the largest existing backyard deck we could find anywhere within the surrounding eight blocks. with a five-foot railing setback, the proposed deck would be consistent with the size of other decks in the neighborhood.

they're still at the top of the list. it would also avoid the privacy issues of the maximum deck design creates. as you've already heard, we cooperated six years ago with the previous owners of 300 [speaker not understood] address the shortcomings of their sloping backyard as a play area for their two children. that is why they build a four-foot retaining wall which we like to construct on the property. that is why the raised elevation in the backyard is up five feet. and that is why they added a 200 square foot deck to the backyard. with the current owners we are again addressing the same issue, but this time the remedy is in the form of a new deck. this compensation they offered to raise the fence another two feet bringing between the two winfield owners a total increase of six feet. that would put us at 11 feet height for the variance to construct -- >> thank you.

any further public comment? okay, seeing none, project sponsor, you have five minutes. good evening. thank you for hearing us. my name is mason kirby and i'm the architect working with the owners of 300 winfield on this particular project. i think the point of consideration that i would ask you to acknowledge is whether or not there is an extraordinary circumstance that's being asked of us in this particular situation. i know that you have it in your packet. i wonder if you're able to see this.

is that as far as you're able to do that? if not -- i'll try it here. what i want to provide for you is the quick description of the common block and lot pattern that exists in this particular area. but we'll see in the slightly shaded area is the common block and lot separation from one, the rear of one house to the rear of the other house. in this case it's 34 foot 5 inches. it's a consistent pattern that exists and is repeated two or three or four houses down the block. the rear yard separation that exists between the d-r requestor and the project sponsor's home is 43-1/2 feet. the suggestion also would be brought that there are a variety of other rooftop decks

at the same elevation that would also have the same opportunities to look into somebody's bedroom window in that respect. the other point of consideration that i ask you to hear is the idea that in addition to having a wider rear yard separation between the dwellings, there is, in fact, the better part of a four-story drop between the elevation of the deck and the elevation of the subject bedroom. it's 38 feet. so, really what we're looking to try and identify is a situation where somebody's privacy can be considered without recognizing there being a hardship on behalf of our project sponsor, either by

making the railing solid which would require a variance, or by raising the fence in this particular instance. i think the opportunity to raise the fence with a trellis or some of the light permitting device might make sense. it's just as reasonable. that this is reasonable would suggest the d-r requestor might consider getting a shade or something like that. again, that's not my business in that respect. i'd ask you to consider that there are no exceptional circumstances in the block or lot pattern we are considering. there is no expansion of the envelope. it allows our client to make the best use of an existing flat existing extension that is in place. and i think we've gone through a back and forth with the d-r requestors. they have ranged from solid

railing to a planter to pulling it back. to be quite frank, i'm 6 foot 3 and 6 foot 4 with heels. when i stand on the deck five feet back, i can still see into melinda's bedroom. i just wonder at what point the precedence might suggest that this is a [speaker not understood] condifficulttionv and this is a reasonable expectation of privacy, but not an absolute expectation of privacy. ~ condition if i could turn the last few minutes to the owner. hello, good evening. my name is lee horner. i am the owner of 300 winfield and, first of all, i would just like to say we sympathize, we sympathize with melinda with the illness. that's just no question about that. so, on our behalf, our

architect started discretions early this year and i first met with our neighbors at 301 prospect mid april to discuss an appeal on another permit which was related to the reroofing of our house. and later on, our neighbors withdrew that appeal. 301, our neighbors at 301 prospect have been on our roof to assess and measure various things on three separate occasions. no agreement was reached. we suggested many times if we could raise the fence and they were unwilling to even consider it. many e-mails were exchanged and we still reached no agreement. after the final meeting, we measured the lots and the fence, and we determined we meet san francisco planning guidelines with our existing dimensionses and our open

design ~. we feel there are no exceptional circumstances and there's no unusual privacy impact here. a reasonable loss of privacy is expected and -- from living in san francisco. and i'd just like to end with our neighbors at 302 winfield have -- are impacted the most by this deck, and they are in complete support and they were supposed to be here today, but circumstances beyond their control mean they can't be here. but i think you have their letter in support. thank you. >> thank you. members of the public in support of the project sponsor. hi, i'm julian glass. i live at 214, a block away from the project. i'm also mrs. horner's sister. i am here in support of

curtains or shade. i live in bernal heights. if i didn't have my shades down they could see in my window. they water my window when they water their plants. society has a way to combat this. we have window coverings. i just don't see how you can say you're allowed to live in the city and not cover your windows. you know, this is basically a frivolous request. you know, they're wasting everybody's time here when they could buy curtains and just sort of concerns me as a resident. so, that's all i'm here to say. thank you. >> other members of the public? okay. so, d-r requestor, you have a two-minute rebuttal. >> thank you. thank you. ~ what i'd like to show you is a bar chart that was created in

conjunction with evaluating the size of the rose decks, roof decks in the area. so, if we can take a look at that. i found that 21 roof decks and raised decks in a laid back area, i was able to measure. the blue one at the top is the project sponsor's proposed roof deck. measures, i think it's 258 square feet. if you look at the other 20, you'll notice that they average around 107 square feet. with the second-largest deck on the order of 160 feet. so, there's almost 100 square feet difference between the

horner's deck proposed deck and what anyone else in our neighborhood has actually built. i think that the take away from that is this deck is [speaker not understood] in context. and in order to have a functional deck as indicated with what 20 other people had done, that this deck could take a five-foot setback with the railing which would leave it near the top of this list. plus, it would also mitigate the privacy issue that we're facing. thank you. >> thank you. project sponsor, you have two minutes.

i'll be quick. the simple idea is that when i stamped in my heels at five feet back, i can still see in the bedroom window and i don't think that's going to solve that. that's the concern basically that we have. we played the sectional game back and forth to retrieve the edge of the deck and make the edge of the deck solid. and somebody who is shorter than i am is perfectly cut off at the five foot length. somebody who is as tall as i am or taller has a straight shot. and i think there's just a simple question of what is a reasonable approach to this, what is the intent of the planning code to allow this kind of habitation of an otherwise unused flat roof area. and that's all i have to offer. thank you. >> thank you. okay, the public hearing portion is closed. commissioner sugaya.

>> yes, it's a difficult case, i think, for the commission because you kind of have to say on the one hand if you just look at what the architect's presented as just land use issues, or setback issues or residential design guideline issues, or whatever, then it probably isn't extraordinary. but there seem to be other circumstances that we're always faced with. so, on the one hand, i think as a bedroom, since it's off the bedroom and if we assume that the project sponsor is going to live there for quite a long period of time and he's old enough that he's not going to grow very much taller, he's,

you know, the five foot setback would probably work. i don't know which lady in the back is your wife, but i assume she's not any taller than you are. so, from one standpoint you could argue that five feet might work in this case and still have enough livability on the deck. and i suppose -- and i don't know where to go with it exactly, but one idea might be to have -- although you may not want to go to the extent of spending the money for it, but you could have the roof deck as a deck and only pull the railing back five feet. and then at some future date -- and i'm trying to be sensitive here. at some future date, either the

if this owner leaves, you're not going to sell your house since you've been there for 30 years. there might be a time in the future when there could be some extension or something like that. but that's neither here nor there. i don't know where to go with it actually. i'd like to hear more discussion among the commissioners. >> commissioner antonini. >> well, i have some thoughts on this. i don't really care what the relative size is if the deck is relative to the other decks in the area. it's whatever is suiting the project sponsor. it looks like -- i'm not sure if this is 25 by 10. it looks like it probably runs the width of the house almost, and then i would assume it's about -- our project architect, is it 10 foot -- >> yeah, 25 by 12.

>> please come to the podium. >> yeah, just tell me what the dimensions are. the setback from both -- the setback from one side property line approximately 4-1/2 to 5 feet. and the adjacent space happens to be above the street which is the series of steps, which is also one of the reasons why we can have the deck up against that property line and it's open to the public. >> right. what are the dimensions? it's probably in our paperwork. i believe it's 20 by -- >> [speaker not understood]. >> okay, thank you. the point is the 12 because i was thinking 25 by 10, but now, you know, because as you start to pull the thing back, particularly five feet, you start getting into a really small situation. your distance from the house, if you want to put a picnic table there, you want people sitting around it, you've got to have room for the table, room for the chairs. and, so, you know, it makes it difficult to have enough room to maneuver around there.

it's not impossible, but it makes it less desirable. we've got 45 -- 43-1/2 feet of separation as was mentioned between the house, the d-r requestor's house and the location on the deck. even detached homes in san francisco frequently have -- if they're lucky -- three-foot separations. in the case of my house, which is in a detached neighborhood on the west side, three foot on each side. so, if i've in one of the rooms looking south, my neighbor is in her bedroom there, we have the windows open and mine are open, and we can see each other. i mean, it comes with urban living, but this is an extremely long area there. so, i don't know that the idea or the solution of the fence i don't think is a good one because it's only going to cut the light and air to the bedroom in question of the d-r requestor. probably you want to get as much light and air in there. so, i don't see that as being a

solution. but i'm not really sure that we need to cut a lot of size off of here. we have had situations often with our decks where we don't bring the railing all the way to the very end of the deck. it is -- i would entertain the possibility of recessing it a foot or, you know, two feet at the most away from there which still leaves you 10 feet. and that's enough room to maneuver around the table from the house to the side of the deck. >> commissioner moore. >> since this particular deck is off a bedroom, i think the possibility of having a dining room table with people sitting around the table is somewhat limited, although people might do it. i think i generally favor decks to not be flush with the building wall for reasons, one, outside elevation, but also for

reasons of [speaker not understood] the devil is in the details on that particular thing because not very -- if you have a solid [speaker not understood], do a good detail on the railing, it's not the easiest [speaker not understood]. i would be prepared to pull the deck two feet back and have that be a compromise. we do have a substantial separation, though, 45 feet plus a grade to front which by itself is a combination of the vertical as well as the slope distance, which makes it somewhat unlikely somebody to stand at the edge and intentionally stare down, that's not how life works. there is a sensitivity to the health of the neighbors. i'm sure the neighbors will not send their guests or themselves to the edge in order to stare down there. having said that, i would be comfortable of taking d-r and

asking for a two-foot setback off the deck to a 10 by 21.5 and leave it with that. >> is that a motion? >> it is a motion, yes. >> second. >> commissioner hillis? call the question. >> on that motion to take d-r and approve the project setting back the deck's depth by two feet, reducing the deck's depth 2 feet to 10 feet, on that motion, commissioner antonini? >> i'm sorry, i'm not sure if it's 10 feet or 10.5. >> 10 feet. >> is that correct -- >> i was pulling it back by two feet, that's correct. >> i think it was testified that the depth was 12.5. >> 12 and 12, 12 and 1 inch. >> 10 foot 1 inch, close enough. >> reducing the depth of the deck by 2 feet. on that motion, commissioner antonini? >> aye. >> commissioner borden? >> aye. >> commissioner hillis?

>> aye. >> commissioner moore? >> aye. >> commissioner sugaya? >> no. >> and commission president -- excuse me, commission chair wu? >> aye. >> so moved, commissioners, that motion passes by a vote of 5 to 1 with commissioner sugaya voting against. commissioners, that will place you on public comment. i have no speaker cards. >> is there any general public comment? okay. seeing none, meeting is adjourned. [adjourned]