on going twisting of facts. i also want to address mr. sanchez's understanding of what the board of appeals approved. there was a revision suggested to combine the units into a dwelling unit merger. the planning department communicated that would not be allowed under the addenda. so what was allowed though was interior changes of reconfiguring the 2 2 units and door changes iechlt -- i wanted to clear that up that we did not sneak this into the addenda for the merger . we did discuss about how to reconfigure the two units.2

units. what mr. sanchez putting this forward is why we are making changes to the house. they are the owners and the project sponsor's desire to make changes if they are not conforming with the approved plans, that is board approved. my question is my understanding is not that those plans were frozen and there was a condition of no changes. again, historically, those plans were initiated with my prior client, the older woman who just wanted a minimal amount of work. the new owner who came at the time of the appeal hearing wanted to make changes and was assured she can make changes at the interior. i just want to have it clear that the project sponsor can make changes to her property beyond what was approved by the board and the planning department. >> the dwelling merger was never part of the appeal nor did we try to part that as

part of it. the other thing i just wanted to say with this here, i know if you can underline on july 5th, irving zaretzky keeps saying he had no idea about the height. i saw this letter or may 3, 2013. he saw this on july 5, 2012. it clearly states 3 points of our house unbeknownst to us that he measured and he filed the date after he found out that our height was not correct. one thing i want to say is i have reached out and tried to talk to neighbors. i feel that irving doesn't even live on the block and he has somehow been very crafty at eliminating. >> sorry your time is up. i have some questions. >> is the deck enlarged?

>> no. it's not enlarged. the plans, the permit that we have i think was issued may 23, 2013, our deck, everything we have built and i wrote this to scott after because i think he's been away for a few months. i just wanted to remind them that we have not made any exterior changes that were not on those plans that the permit said was approved may 23, 2013. which we were allowed, the board of appeals was a start but we were allowed in that finding to make changes providing that irving zaretzky was okay with. he didn't care about interior changes and the planning department was okay. they did. i think scott sanchez looked at our approved plans and building looked at them and walked around our building and found 100 percent we did not

exceed in any scope in anyway those plans. >> on the exterior? >> correct. we have not even touched the roof because of all this. that's one thing the building said don't touch the fourth floor. we have not touched the roof. >> can i interrupt you? as i understand the planning and zoning administrator, the plans that were submitted and that are now under suspension reflected design or drawings that were inconsistent with what this board approved, is that correct or not? >> i think they are pretty consistent. i think we had the plan that the board approved and then we were understood that we would make further changes. >> ignore what the board approved, is that what you are saying?

>> no. we did not ignore. >> all interior. but the deck from the zoning administrator appeared on the revised plans reflected, a size increase to the deck after this board said it can't look like that. >> can i? from my understanding in 2011, the decks that are built right now and the decks and the point to the variance was that the existing decks that were there could be rebuilt or remain because they had fire damage. those decks that are built right now and one deck hasn't even been touchdown is the identical foot print of what has been historically there for years. >> what about the plans submitted? were they drawn to expand it? >> let me answer this. this

is a complicated answer to this. there is on a set of plans that the board looked at there is a reduction to the deck. this happened in the middle of negotiations and settlements where i was communicating with martin ron at the building department about exiting from the rear yard and the appellant issued had nothing to do with the height. it's all about the steps on the side yard. that had to do with exiting from the rear. so, the negotiation with martin ron was if i cut the existing deck back 2 feet, then the solution i came up with to satisfy irving was okay. in the process, we discovered, i discovered a different way to get out, to exit. so that i didn't need to cut back the existing deck. so i have not constructed for the zoning administrator primarily his

benefit, that paper trail, but we do have an approved plan of that basically the historic existing deck not being cut back 2 feet. so it wasn't a proposal to enlarge, it was actually a proposal to reduce what was there which we dropped because we didn't need to. does that make sense? >> yes, but you took a chance. >> okay. i have nothing further. mr. kwaung, rebuttal? >> good evening commissioners, john kwaung department of public works. it appears on the face that the permit issued by the department of public works is very simple and straight forward permit for a minor encroachment for a ramp that leads to a future garage in the property. however from the discussion here there is issues related to a variety of issues that

is tied directly to a building permit which our encroachment permit was tied to and that's where the conundrum and difficulty lies. i would hope that my colleagues at both planning and building will be able to resolve this amicably among all parties bought ultimately the permit we issued currently assess -- satisfies all the merits of the department of public works code. if it needs to be adjusted if that is the case, the department may need to review that encroachment to make sure it continues to satisfy our requirements.

currently we believe it is correctly issued based upon the information we currently have. thank you. >> mr. sanchez, anything further? >> scott sanchez, planning department. again this permit is not really what's at issue but it is tied to the permit that is at issue, that's why we are requesting until the underlying permit issued are being resolved. i'm available for any questions. >> thank you, mr. duffy. thank you, commissioners, the matter is yours. >> if you would allow me to leave the materials? >> i don't think i need them because i have enough information. based on what i have heard today and i think i'm in agreement with the

suggestion by the zoning administrator which has concurrence on the department of public works that we should continue to the call of the chair until we have a better understanding from planning as to the status of the underlying building permit before we make a motion on the -- >> especially if there are more appeals. we would like to, we should aggregate everything just to have a resolution one time. >> i would also agree. >> i will make that motion. okay. i will move to continue this appeal to the call of the chair pending, just call of the chair, based on the facts. >> it is helpful to know when you want it to be pulled back. it sounds like you want it to come back after the underlying permits become resolved. >> suspension is either

revoked or modification is submitted. would that be correct? >> i think maybe just the resolution by compliant plans. >> stop work is removed. >> so it's really relating to the suspension of the permits. there are several permits suspended. until that matter is resolved? >> that sounds good. >> do you have a question about the process? if you do, come to the microphone. i will entertain a process related question. i don't want to hear further argument. >> can i say concern? is that every ounce of ability for irving to appeal anything will be and if you don't let this

go through, it's just going to prolong. >> okay. i understand. >> i don't mean to argue. the ground level is not going to change. there is nothing that will change with this driveway. >> okay, you are making an argument. >> i'm trying not to make an argument. >> i understand that it up sets you that we are going to continue this and the process prolong, but we've got an issue that we heard about with respect, and maybe it will be resolved quickly and then we can proceed. okay? >> okay, we should call the roll, mr. pacheco. >> the clerk: we have a motion from the president to continue this matter to the call of chair, the board's indefinite calendar and this is pending resolution of the suspension

of the underlying building permits. on that motion, commissioner fung, aye, commissioner hurtado, aye, the vice-president absent. commissioner honda? >> aye. >> the vote is 4-0. this is moved to call of chair. >> thank you. i would like to have a very short break >> item 7: jerry weiss, appellanttss vs. zoning administrator, respondent 272 upper terrace. protesting the granting on

december 16, 2013, to neil pernick, rear yard obstruction variance legalize a fence at the rear property linee. case no. 2013.0923v.>> sf 71234 >> we'll start with the appellant. >> before i begin, could i update our brief with a couple of developments that have happened since the deadline for submissions. these are just factual matters that are not part of my argument. they are just developments happened in the last couple of weeks. >> that is part of your time. >> well, i will just skip it. good evening, commissioners, i'm jerry white, the appellant in this case and the designated spokesman for my neighbors and fellow citizens. i moved to san francisco in 1978 and lived on portrero hill and my daughter was born at ucsf and for the last 20 years my wife and i have made

our home on mount olympus. we know this city well and i especially love san francisco especially those hidden treasures that are easily missed where i walk my dogs. those of us who have taken part in political campaigns and moved through social progress, are aware that whatever the issue of with half the people you talk to don't care at all whether it's a non-conforming fence or equal rights for all or the identities of the elected representative. the story is pretty much the same about half the people don't have the time or inclination to be involved. the other half will care, they will vote and sign a petition if one is frod -- presented to them and that's about it and there are the

few that care a lot and they write letters and contact their public officials and they enlist their friends and neighbors to their cause and donate money and of course the ones who care the most show up at the meetings and the public hearings whether at 10:00 a.m. or 5:00 p.m. they care and show up a lot and those impact our public policy. they determine what tomorrow will look like and in this instance the ones who care wrote to the planning department and have been writing to you for the last couple of weeks. overwhelmingly we wrote and spoke in opposition of the granting of this variance. the activist know when 20 people or more come to sit on a variance, the issue must be compelling and important. it's worth asking, just what is it that these people care so much about. there is no money to

be made here, no business advantage, there is certainly no entertainment value. there is noing to add to your resume. so just what is it that is so compelling. what we care about is called stewardship. the idea that those of us who care a lot are responsible for what we all hold in common. what we hold in common in this case is unique and extraordinary and now threatened. san francisco is a city of views, some say we are obsessed with views and this decision is obsessed with views. for the north we have the golden gate, and al traz island and mount diablo. these can be seen from different parties of the city. you can see these views all over

town. these views are common sense. what is unique about mount olympus park what is extraordinary is that not that you can see the east bay from there. it's something more illusive and more to define. it's not what you can see but where you can be while you see it. it's a very special place, a quiet place where one might go for inspiration or contemplation and a place where fences don't really belong. by far most people who come here arrive on foot . there is no tour buses, it's one of those precious hidden treasures. and after having climbed mount olympus, we find the property lines closer to the heavens. this is when

truso chose to adopt the amount of lighting. we are the stewards of this and we speak for all others who come to mount olympus who may themselves be speakers of beauty and light. now it's time to come down from the mountain top and to discuss the issue at hand. what i have been talking to is known as the pedestrian open space experience. san francisco's planning code defines open space as traditional parks and green spaces from playing fields to natural landscapes as well as components of the public right-of-way that have been improved to enhance the pedestrian experience. there is no doubt the city owned property and it's improvements which directly adjoin the non-conforming fence at upper terrace qualify as open space and deserving of it's

protection. it's that specific context that i wish to address tonight. that question is did the zoning administrator error in the findings met. in the brief before you we have already made our arguments and i don't want to restate those arguments, but i do want to call your attention to finding 3. finding 3 is necessary for the requirements of the substantial property rights. there is no statement to that effect in this decision. moreover no evidence is presented that the variance is in fact necessary. the requirement of finding 3 is not ambiguous in anyway. it's not enough that a variance would allow a substantial property right in order to be granted, the variance must be necessary. the reason for this requirement is that a variance is not to be lightly granted. whenever possible the code itself must be followed. if there are other options for preserving the rights in

question, option which are code conforming, they must take precedent and there are other options. e-mails sent to mr. sanchez prior to the hearing laid out options for security. it's not necessary to list them but to know they exist and have been suggested both prior to and at the public hearing on august 28th. there is no indication that the administrator suggested these suggested option or any other wunsz. what matters here is the zoning administrator has failed to state the requirements have been met. >> thank you. we can hear from the variance holder now.

>> hi. my name is suzanne and this is my husband. we are the residents and owners. we are here once again to reiterate the case for a fence we constructed with the city's approval at the rear boundary of our property. the facts we'll share with you and support our case is what we presented previously. this is why we'll expect that you will come to the same conclusion that the zoning administrator did and namely it's reasonable for us to want and has m it the conditions for the variance to be approved and the zoning administrator did not error and that the complaints are unfounded. we moved into our home on july 2012 and discovered the sidewalk of the property line had a direct line of sight into our space. we can look

at people looking directly down at us and 1 person in our yard. we decided it was necessary to build a fence to 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