preserve our privacy and increase the security of our property line. in jun 2013 we applied for a permit and then had an inspector come and that inspector approved it. subsequent to that, the city suspended the permit following complaints of neighbors without appeals being filed. we have documentation of a compromise in which we lowered the fence from the original height which from 13 feet by another 18 inches 4 feet above the sidewalk. the only opposition that was stated during and before the variance hearing we had was based on the claim that the fence had obstructed the views for people of shorter stature in our neighborhood. the height was only 4 feet. in december the city approved the variance with a condition that the fence be further reduced to 3 1/2 feet. as you can see the approved fence from the

variance is at a minimum that would achieve any goals from the privacy from the sidewalk above our property and additionally the fence at the height it is now or with the height the conditions met are not obstructing the views in anyway. so why are we here today. the height of the appeal, some people that are in our neighborhood do not like the change that we've implemented. we would like to walk through why our variance meets the requirements and the appellants claims and we suggest that the zoning add ministrator did not error or abuse his discretion. we have a picture here that shows the grade level is a retaining wall. >> if you have an illustration on there, you can use the overhead. >> i'm sorry. the presence of

this retaining wall and the substantial difference is a hardship. the argument is that our property did not have extraordinary circumstances because other properties in san francisco have a hillside as part of their rear yard as well. it's unusual to have a 7.5-foot retaining wall that resides on an -- abutting property for tourist looking directly into our living space. >> i'm sorry, the extraordinary circumstances that you have' retaining wall? >> with a sidewalk on to have top of it that allows people to look into our property. >> this retaining wall is on city property, not part of our yard. >> but it was there when you bought the property? >> correct. >> the practical difficulty

is the retaining wall and we are unable to follow the law in our understanding that a 6-foot fence is what's typically allowed by the planning code. this is why a variance is required for a property like ours. here the appellants arguments is what is necessary to the security. the fact that the building code that is determined to provide home owners with security and privacy. unfortunately we are not able to apply that code guarantees based on the prototype and the current variance is best we are able to do. >> sorry, i hope your time gets stopped every time i ask a question. i want to follow your argument. can i see that illustration again. the

6-foot fence is something you cannot do bought baus of the 6-foot fence. >> you wouldn't, we are referring to the planning code which we understand allows for the construction of a 6-foot fence on someone's property. >> okay, the neighbor could build it because there is no retaining wall and it would go above the grade of the retaining wall? >> we are talking about the grade of the sidewalk height which is up here below. we are just referencing the fact that we could not literally follow planning code because it would be ridiculous. >> i'm wondering if that circumstances is if your neighbor others right next to you don't have the same retaining wall issue. >> there are a variety of other properties that have similar issues and we'll show you the map in ways they have handled it

>> that go 6 feet but the grade not necessarily and it's gone above the area that you find? >> right, we appear to be the property of similar situation that hasn't implemented some sort of privacy measure whether it's landscaping or a fence. we are the last once to do this apparently. >> you can't do this for a retaining wall? >> we could. but we thought a fence would be approved. >> okay. no you i'm following, thank you. >> sure. finding 3 is for then enjoyment of the property rierts. -- rights. i think the key aspects are here. the appellants argument neglect the fact that the findings are of that. in no subject the

findings immediately adjacent to our abutting properties. many of the properties in our class of district, have created and maintained a fence of at least 6 feet in height. here are a few examples of pictures that show you some fences around the neighborhood. why would our property not be afforded the same right as seem to be enjoyed to other properties in close proximity to us. the dwranting -- granting of the variance to the public welfare. i will show you. a fence with an effective height of 4 feet which we have now or three 1/2 feet based on the condition of the variance approval did you tell does not infringe to the welfare of the public. we have consistent with the aesthetics to the

neighborhood. the fence itself cannot even be seen when standing in mount olympus park. in fact all shrubbery cannot be seeing. we have a picture to show this as well. this is a picture where the fence is there. >> right here between these red lines is where our fence could not be seen from the park. >> the only view affected is the view directly into our rear yard. finding 5 is the harmony of the general purpose and intent of the code and the fence is in harmony with this code. and the appellants claim it affects the park and they have nothing to support it. or why other fences in the surrounding area can be evaluated differently. in summary our fence has no impact in the enjoyment of the park with sidewalks surrounding it and properties

throughout the neighborhood are detrimental to deny us the right of any meaningful height constitutes hardship and we would say they are incorrect. >> if you are on the sidewalk and seeing your fence, your time is up. so, and your fence is up already, you are walking in that sidewalk that it's not otherwise impeded the public view? >> correct. >> this is the view where the fence is now. it will go where my finger is. it will drop down to about there based on the variance. >> it will go lower. >> even now we have taken multiple photos and scanned at four 1/2 feet tall. you see roof tops. i believe the zoning administrator. >> for you? >> it was security and

privacy. now it's more of a privacy thing because it still impedes sidelines because you can't see the decks on the property. i'm not sure it provides the security we intended. >> okay. thank you. mr. sanchez? i have one question. the appellant is speaking on behalf of 25 people. that it should be on the 7-minute component and 3-minute rebuttal. if the people that are here speaking for the appellant would state they are part of that briefing creation and they do not get additional time from public statement standpoint. would that be correct? >> if that's correct, they are not officially aligned with the appellant. >> he mentioned in his brief

that it was complying with 12 people and he mentioned today there is 25 and who are those 12 people. they effectively wrote the brief with him. >> okay. i can't answer your question. >> sure. i just asked. >> got it. thank you. not right now. >> thank you. scott sanchez, planning department. i believe the project sponsor has compelling arguments, in our decision letter. i would like to go back to the subject property 272 upper terrace in our zoning district. at this rear property we have mount olympus and there is a public sidewalk at the rear property line essentially of the subject property. in june 2013, they did seek a building permit to build a fence that

is taller than is there now. it was approved by the staff. we received complaints from the neighbors regarding this and we received the plans and found inconsistencies where the property line. that had rear property line been at the top of the retaining wall; no variance would have been required. but we didn't suspend the permit because we found that the rear property line was at the bottom of the retaining wall and the fence as constructed would require a variance. the project sponsor has been working very well with the department. they submitted the vaengs. -- variance. >> i'm sorry, this whole retaining wall. i'm want to get my head around that. if the property line would have been at the retaining wall they would have been able to

build from the retaining wall. too planning coda allows a fence up to 10 feet in height in a required rear yard. when there is a retaining wall the calculation can be different. it depends on whether you are retaining existing grade or building upgrade for a retaining wall. you would at least be able to do 42-inch tall on top of that at the absolute minimum but we would need to look at the natural grade, but definitely what we have here the property line is at the bottom of the retaining wall and not at the top. had it been at the top, there would have been different calculations applied to the code. the real problem here getting to the problem is the retaining wall is not on their property. had they done that, i think everything here would have been okay. >> okay. >> we suspended it. they promptly filed a variance in july. we received a lot of

concerns from the neighbors as well as regarding the fence of blocking the views and were able to expedite the hearing variance on august 28th, i believe they had lowered the fence prior to the hearing as well. at the didn't construct it as tall it was allowed under the plan. at the hearing we heard a lot of passionate testimony from the neighbors regarding the impacts on the view and i was quite compelled and impressed by the neighbors by the passion and concerns that were raised. it's a little bit of a joke now. people are saying they are not allowed to see people on mount olympus. also things pointed out if someone in a wheelchair that is on mount olympus on the public right of way and sidewalks and the impacts of views for them. there are a

lot of valid points raised. i wanted to consider all of these. i did go out to the site prior to the hearing. i did go with the neighbors that the views are spectacular and it is a gem of the city and i'm agree with that. and coming out of the hearing, it was much more difficult decision than probably anticipated going into hearing. and i hate to say it, i was a bit on the fence of the hearing because of the concerns raised. unfortunately i did not get a chance to issue a final decision before i left on paternity leave. i consults with corey teegs who is the drafting administrator and he was at the hearing as well and we discussed the resolution. on the one hand, if the fence as it is to have an impact especially for people and i was concerned

about someone who might be on a wheelchair going by. i did feel there was an impact but at the same time it's a very steeply sloping lot and a public right-of-way in your back yard essentially. i think those are extraordinary circumstances. there is a reasonable expectation for privacy and security for any owner in this city. so trying to balance that what can we do. we looked at existing cues. there was a guardrail that the city had installed. it's an open railing that is horizontal and it did have openings to it and i felt that and corey and i discussed this reducing the height to match the height of the fence, the existing guard rail from the city would be appropriate and fair. it was a judgment call of trying to balance all the issues here and we felt that was fair and effective and

addressing the concerns. honestly i didn't know if it would be an appealed by the neighbors and the property owners. certainly both could have an appealed. the property owner accepted the conditions and is willing to make those changes which would reduce the height further of the fence from 6-8 inches. that is my presentation. i struggled with the decision as i imagine you might as well. you can see there is passionate arguments here, valid aths arguments. i will wait your decision. >> once it's reduce in height, will it be the same height as the guardrail? >> correct. the solution is that it matches the existing guardrail. >> the other fence that was built without a permit is where? >> there is a property at 278

upper you terrace. this was mentioned. a notice of violation has been issued. i have been in contact with that property owner and they did provide materials last week which i have not been able to respond to them. the question is did they have the same condition with regards to the retaining wall. thoos >> this is one in the photo? >> correct. that was constructed without permit prior to this fence. >> on planning 3 which was hiementd -- highlighted by the appellant, the necessity of having this fence that is variance, can you address that point? >> certainly.

>> i think commissioner fung was talking about the rights of the adjacent property. >> finding no. 3 of the variances that such variance is necessary for the substantial of the property rights provided in the same class. it's not speaking to the neighbors. >> but necessary determination it says this is currently a right that adjacent properties possess? >> i would say that a correction needs to be made there in regard to the finding. what we missed was that the possible illegality in the same zoning district. there is a reasonable expectation. few doors down the way there is an expectation that you would have privacy from properties

that abut you. >> in analyzing the properties in the district that a variance would allow, are those other properties that have this fence or ways to secure their privacy security comparably located in the totals, the context of that neighborhood. i haven't been there myself, so i'm not familiar with the views and the very special nature of it, but from the pictures i see, it looks pretty amazing. >> how i applied this finding is that it asks you to look at other properties in the same class of district. >> you can't look at them outside of the context. if you look at those other properties that have this substantial right here and you are looking at this one, it's not necessarily apples to apples. >> it's talking about extraordinary circumstances that are unique to that

particular lot. looking at the exceptional extraordinary circumstances here is that it is a very steeply sloping lot and it has a public right-of-way behind it with a sidewalk. so that is the findings specific to the property, but finding 3 is looking at rh 2 properties that is reasonable expectation of privacy and security. it's not just the abutting properties but properties in a residential district in general what would generally be expected. >> is that an interpretation of the code where you can take them outside of the context where they are located? >> that is my interpretation application and i would love to hear more from the boards in terms of that application of that finding. you have to look at it beyond the immediate adjacent property beyond in a residential district what is there an

expectation of. >> the immediate adjacent to the property and i'm not familiar with the illegality of the proshths -- property, are there any properties impacted by that view.? >> i would put my copy up. >> if i can have the overhead. this is the lot map for the subject property. it's highlighted. it's shallow in depth from the upper terrace. there are not that many

properties that abut this area here which is where you would have the sidewalk. in fact, there are some buildings that have their frontage on this portion of the upper terrace. it's not a fence blocking the view. it's a dwelling. it's quite exceptional. so this is one of the properties upfront from the lower part of upper terrace. this is the subject property at 278 which has the fence which does appear to be illegal. i'm working with the neighbor on that and i will work on findings. their impact is much less great than this. the subject property. >> what do you mean their impact? >> because they don't have as much of a sidewalk frontage. so

again on the overhead tht the property. there is the easement. their impacts with this buffer of landscaping and the fence, the impacts from a public right-of-way is definitely not as much as the subject property which is more front and center in terms of the impacts on the view which i can show here. here you can see it's entirely adjacent to the public right-of-way. thises the most impactful. adjacent property one more to the north they have pretty much vegetation in the rear. so, that's the existing

situation. >> and the fence line we are seeing in the photo, there is another 8-inch drop from that according to what was agreed on? >> correct. the approval is the fence must be lowered to match the existing railing. >> okay. thank you, mr. sanchez. >> where is that fence? is that on top of the retaining wall? how is it stabilized? is it right on the wall? >> it's a question of how it's stabilized. it's sitting on top of the retaining wall. >> that's public property? >> correct. >> that's permissible? >> this railing? this is city property. >> no, the redwood? the new fence they are trying to put in.

>> the variance is to legalize the fence. >> it's sitting on top? it's on the property? >> the subject fence is built at the bottom of the retaining wall. it's a large post and the solid boards are above. i have a photo of the rear that maybe helpful. this is a photo from the permit holders property looking at the fence. this is the fence here which you saw from the other side in the previous photo and then the post that support the fence are here and they have lattice covering that. >> okay. >> sorry if that wasn't clear. i apologize. >> okay. we can take public comment then. can i see a show of hands for public comment on this item? great. who ever

would like to start, please step forward and if you have not done so, please fill out a speaker card and give to mr. pacheco before or after you speak. >> hi, my name is marsha -- >> are you at all times related to the appellant? >> no. i'm not. i'm a neighbor. i actually don't live right up on the circle. i live several blocks further away and i have been walking up there for 25 years. what i would like to speak about is finding 4 following what jerry woois spoke about and finding four requires that the variance will not harm property or improvements in the vicinity. the zoning decision does not really

address this requirement. adjoining properties and improvements are completely ignored. the railing have stood alone for nearly 90 years. the fence stands within 18 inches of the adjoining property and it's improvement. but the zoning administrator did not mention them in his findings. he talks mostly about the views. in fact only about the views in this finding. no consideration is given as to whether the variance, the fence itself might be detrimental to the walkway even though these are the most immediate property in improvements in the vicinity. is it harmonious or harmful to the over all design and feel of the walkway. it's a flat board fence really

appropriate here. we call your attention to the photograph on the first page of our brief and the photograph on the left page of our exhibits. there is no view. >> you said our brief. are you a participant in the brief? >> well, we all read it before it was submitted. i didn't write it. you can tell this is a group effort. >> when i think of an issue raised by the permit holder, the variance holder as far as the representation by the appellant on behalf of 25 people, i don't need to know everybody by name. but if the appellant, the named appellant was paid for his services here by the 25 or 12-25 people, those people are parties. therefore unable to speak as public commentors. >> the appellant was not

paid. it was voluntary work on behalf of all of us. the appeal. that's correct. >> it's a split cost. to any extent, this is very technical and i always appreciate people coming out to participate in this process. but i think from a legal and fairness issue to whatever extent the participation has financial stake here and you participated in those fees you can't speak as a public person because you have a representative speaking on behalf of you. >> you are saying that anybody who made a donation to the fee that was paid in order to file the appeal should not be speaking as a public representative? >> i'm going to defer to our city attorney, but my understanding is that it

makes you part of the appellant group. but i'm not the city attorney. >> it's a board rule that's focused on fairness. if you are paying him, he's your representative and you can't speak on his behalf. and if that's the purpose of splitting the fee for the appeal, then i would say that you are paying him. you are allowed to speak, but your testimony would not be admissible as evidence in the proceedings. you are a member of the public. >> so what you are saying is that anybody who contributed money to the filing fee, cannot speak as a public person? >> you can speak, i heard him say you can speak. >> but your testimony would not be admissible as evidence in the proceedings? >> why would i want to speak if my testimony is not admissible. why not let the next person come