first hearing you indicated that you had produced a design that had a setback solution. i would like to see it. >> okay. i don't have it with me. >> no i meant that we are not going to finalize everything tonight. >> that relates to an earlier question that you asked the project sponsor. can i answer that now? that version was the building that required a variance step into yard to get the variance or to initiate requiring the variance and then stepped back. >> i see. >> it involved the variance. >> it wasn't just stepping back from the rear yard line. >> the regard is that it's not a very nice rear yard. it is surrounded by walls and that was not good. >> okay. thank you. >> maybe we will finalize it

tonight. might i try a motion? >> certainly. >> i'm going to move to adopt the findings and conditions with two changes. i would add condition l which is that the ground floor commercial space being neighborhood serving uses as defined by the san francisco planning code. i would modify condition a as follows: the original

entitlement as authorized by the planning commission in terms of density will be maintained. our feeling is that the residential design guidelines have not been conformed to with this particular design. have not been conformed to. and therefore i'm imposing a setback at the front and rear of the 5th floor to a depth of 10-12 feet depending on the final architectural solution.

>> can you repeat the last part. >> imposing a setback of 10-12 feet with a range that depends upon the structure of the final design. >> and where is this setback made? >> front and back. >> front and back. you want them both pulled in? >> yes. >> on the 5th floor. depending upon the structure of the final design, is that what you said? >> yes. >> what does that mean m terms of who gets to decide what it is? >> it means where they have a structural wall, it may vary that dimension a little bit. >> it would be up to the project sponsor to decide?

>> i think that's okay. >> only concern i have about the second element is what i believe i heard earlier from the zoning administrator that the residential guidelines do not apply in this zoning district. but there are other elements in the findings as currently drafted that talk about non-conformity with some of the mission area plan policy. >> you may delete that line. >> okay. i think that's already covered in the findings. >> is that clear, madam director? >> yes. and i would just like to ask that you add, there are a few places in this draft of the draft findings where additional language would

need to be revised to address the change that you are proposing as far as the structural. >> do you think we need to see a final draft? >> no, i think they are very very minor changes. they are two places where the 5th floor would reference and those would need to come out with a reference to a setback instead. >> then i would depend on you and the city attorney to create a final draft that would be issued. >> is that a motion? >> that's my motion. >> any further discussion? >> no. >> mr. sanchez? >> thank you. scott sanchez. i believe at the previous hearing one at the mark proposed a language section h instruction that the

affidavit should be signed prior to a purchase or lease and i was wondering if the board was considering that language change to ensure the affidavit for anyone who moves into the building would be done prior to them buying or leasing? >> i would support that. >> i would support that as well. >> there is two places where that comes in section 8 and notice of special restrictions. >> thank you for reminding us of that. >> thank you mr. sanchez. >> i would accept that amendment. >> mr. pacheco, how do you feel about this motion, are you ready? city clerk: let's see here so the motion is from commissioner fung to uphold the permit, adopt the findings, with provisions as stated and with the two

further conditions that the ground floor commercial space be permitted to neighborhood use by the san francisco planning code that the original entitlement as to density be maintained and with a 5th floor setback at the front and back of 10-12 feet depending on the final architectural plan. >> yes. >> okay. on that motion to uphold this permit -- >> did we forget the last piece. >> he said as indicated to the one mr. sanchez referred to. >> on that motion to uphold this permit with these revised find gsz and additional

conditions. commissioner hwang is absent. vice-president hurtado, lazarus, commissioner honda. this permit is upheld with revised findings with additional conditions. >> thank you. a >>we are back to the february 26, 2014. item no. 8 is rescheduled. we are on item no. 9. item 9: 99 appeal no. 14-008 ty bash, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1100 ashbury street. protesting the issuance on december 31, 2013, to michelle meyer, alteration permit replace windows; work done in 2000; found out permit not issued at time; rectifying situation; in response to notice of violation #2013428411. application no. 2013/12/31/5419. for hearing todayrescheduled. we are on item no. 9. sf 91234 this is on for hearing

tonight and we'll start with the appellant mr. bash. you have seven minutes.7 minutes.a good evening commissioners, my name is tie bash and i'm the individual pealing the window replacement i believe in error to respondent. as a 19-year resident of the city of san francisco. i have met the planning commission department. these are windows installed at ash bury meeting

the standards. i don't believe they do. i met with the preservationist counter that permits that city does not allow windows that were originally wood and #, a window replacement permit for a building of this age and one classified as potentially historic resource should have been reviewed by preservationist, again it was not. in her brief, respondent on behalf of ms. myers claims that no where in the window replacement document explains windows. i would like to refer your attention to page 3, section 4. where it states replacement windows should match the historic windows in size, dmraezing, operation

and material, finish exterior profile and arrangement. section 4d further clarifies where visible from the street aluminum or vinyl windows cannot be approved for replacement windows that were originally wood -- windows. the respondent claims the character of the immediate vicinity of the issue. the vinyl windows prevail in the immediate vicinity she claims. again this argument is indirect contradiction to the standard setforth for window replacement document. exhibit 3 page nine where the following question is asked. many of the building in my neighborhood already have vinyl wnd owes or aluminum or fiberglass windows, why can't i have similar windows

approved in my building. the question answers the following. the primary character of the citywide the department acknowledges that windows maybe in consistent with the original design and intent of older structures. in addition it is i ampossible that the windows have been done without a permit or contrary to the scope of work out lined in the building permit. page 13 of the window replacement document also mentions a criteria for window replacement permit. a building permit is required for all windows replacement. failure to obtain a window replacement permit. >> we can't see what you are reading from. >> it's a different page.

it's all in the exhibits. >> what exhibit? >> exhibit 3, page 9. to this the respondent claims that ms. myers is not a building or planning professional but rather a mother whose windows needed to be replaced an she did not know she needed a permit for windows to be replaced. unfortunately i agree with respondent ms. myers feels that many home improvements do not require a permit. further the reality that ms. myers is a homeowner in several homes in the area and building as several experts wrote this brief at

her finger tips. finally according to ceqa categorical exemption form. this is page 3. the project planner checked the box for window replacement meets the department for window replacement standards. if it is determined the replacement window do not meet such standards then the project does not meet categorical exemption. with all of this in mind, it requests mr. speaker mierz to replace the windows without permit with wood framed windows required by the planning in order to maintain the integrity and beauty of our city. thank you.

>> we can hear from the permit holder now. >> commissioners mary gallagher. michelle myers put these windows 4 years ago. -- 14 years ago. there is many issues in regard to this appeal 679 one the issue of the permit was not in error. it was received by senior planner at the information counter. they knew it was illegalization of the windows

installed and they reviewed the windows in the neighborhood. after i contacted mr. bodien to rea firm and the issue was final and abated. two, ceqa applies to the future, not to effects that happened 14 years ago. the department continues to inconsistently implement ceqa in this manner. 3, the zoning administrator is not in doubt with ceqa. the zoning administrators powers are many but the charter nor the planning coda allow to take any action on the ceqa document. planning staff issuing a categorical xemg on december 31st. four, the building is not originally historic. national register of historic places of eligibility criteria are used by the department in evaluating historic significance. there are two components of

national registered standards, one has to do with architecture and one with history. in terms of architecture this is a common unan adorned and missionary revival. it has not distinctive fix us -- if fixtures. it was written by the historian. he included properties as quote uniformly bland and lacking distinct. the entire neighborhood was studied and determine no aspect to historic district. this issue was also put in historic evaluation. this historic district does not

exist anywhere in this building. six, even if this building were historic there is nothing about the windows that define the characteristics of this home even on the basis of some historic events that is not some specific unrelated architectural aspects of the building. if the building is not significant for it's architecture which it clearly is not then the windows are not findings as significant. many of the homes in the neighborhood do have vinyl windows. 1096 ash bury, 1082, 1086 ash bury. i have a stack that could keep us here all night. in your review of a window permit that an appealed for stockton street that

other vinyl windows in that neighborhood didn't count for neighborhood. no where in any definition in any document of this city does neighborhood character define the legality. neighborhood character is neighborhood character. this issen titled to buildings. this is comparing favorably. they were ordered to fit the openings including the semicircular openings over the garage bay. there is a preference but not a black and white requirement for windows by the planning department. it is a discretionary standard, a guideline. one of the underlying principles is ironically i'm quoting the same section. if a window is proposed for any type of structure, the new windows

from any public right-of-way should be compatible with the character of the neighborhood and the subject building in terms of size, glazing, operation, finish and exterior profiles and arrangement. the neighborhoods character is in anyway vinyl or wood. this as long as it contribute to the architectural character. the windows are compatible. 10, over turning the issuance of this permit will have a chilling effect of every citizens effect to exercise dr. over sized permit which have do have a regular basis for issuance such as this one merely because a developer wants to intimidate a dr applicant, promotes bullying and institutionalizes. the windows were in uniform in

effect at the time. the windows guidelines from 2003-2005. the windows were installed in 2000. that had permit holder taken out a permit it would have complied at the time. showing all of the points i would hope you agree. i would like to introduce michelle >> hello commissioners. my name is michelle myers. i live on ash bury street. i'm trul sorry that i didn't have a permit at the time. i truly am sorry. when i came home and my daughter saw that note on the door i immediately went to the planning department the next day and i thought i rectified situation. i'm sorry i can't

change time. if you have any questions for me, please ask. >> the thickness of the window frame that you purchased, how thick is it? >> i don't understand the question because i'm not a contract or. but it fits in the same window seal, nothing was changed. >> perhaps your consultant understands. what is the width of the frame? >> i have no idea. i don't know. >> mr. sanchez? >> thank you scott sanchez planning department. i will be brief and on this matter i think as we had on the stockton street case we do have windows that we do not believe complied with our guidelines and we believe the permit was issued in error

and respectfully request that the board deny the permit and require that windows that comply with our design guidelines be proposed for this property. i think what happened here the staff planner was very experienced was supervising a new staff planner and i think they exercised discretion and reviewed this. saw that the windows were installed some 14 years ago. at that time our design guidelines were not in fekteffect. also maybe perhaps even recognizing that with these types of windows, vinyl windows don't have the same performance or longevity that quality windows were and would need replacement in the future and would satisfy our guidelines. these maybe even also the issue that was

raised about the in the case the appellant having filed a complaint on the property it was believed to be as a result of the dr being filed on his project that the planner may have considered in exercising their discretion. i think in this case, we need to apply the guidelines that we have uniformly. it's the only way to fairly do so and that's why we are requesting that you deny the permit. while we don't have historical photos of this building, i think it's a fair argument to say that the windows that were there before original to the building were probably in a relatively plain building probably some of the more character elements findings of it. i viewed these with the preservation staff and they believe they have been

treated with casement windows and not double hung on the windows that would have been installed with the permit. we would have been looking at different types, different window material. it doesn't need to be 100 percent wood. we see that they can be suitable based on a case basis and that could be a suitable alternative which can be a little bit more clad windows which are more cost-effective. these would be custom windows given the size of them and the configurations. with that, i am available for any questions. >> i have a question. so are you asking us to apply retro actively our guidelines to 2,000 when they weren't in effect? >> no. they saw the no permit in 2,000. they saw the the permit now and our guidelines are in effect now. so we have

to apply them to the permit to legalize the windows that were done without permit. >> apart from -- okay. but apart from aesthetics what's the practical significance of vinyl versus wood. is there a viable difference in terms of noise or anything like that? >> primarily it's aesthetics. secondly but also important is generally they are windows that perform better, last longer. not that you can't have vinyl windows that meet the energy efficiency standards and typically in new vinyl windows are better than that 10-20 years ago but you would have vinyl windows that last a couple years whereas wood bind -- windows and

longevity are better. >> my last question is you are asking us to reverse your own staff's decision here and i am troubled by the implication that this is this complaint is in retaliation for dr. your staff took that into consideration when not imposing a penalty. so what's your view on that? are we encouraging these types of complaints in retaliation? >> i think that's a consideration for the board to make in the decision tonight. i certainly would understand that. we have to look objectively at whether or not something was in compliance or not. we received complaints that are anonymous of those which we know who the complainant was as to try to

sift through what the modifications may have been are problematic and we have to follow our code requirements and exercising discretion along those lines at our level is problematic. >> but your staff person exercised discretion in terms of probably viewing the other types of windows surrounding this particular property. would you say your staff person properly exercised discretion under that regard under that st. -- standard because i saw a lot of other windows similar. >> there were other vinyl windows and without permit. i apologize, i did not look at the other properties. i did not have addresses. i did not do that research here to see if there were others but on the stockton case as part of this are brief had 20 or 30

photos with the address. i passed those onto the department of building inspection for enforcement. those were all windows with proper permit. so the appellant here is going to be very unpopular once the neighbors get a notice of violation for enforcement. >> well, their property there is is a discretionary hearing in the upcoming weeks that is a major alteration to the building. >> and regarding the stockton we enforced but we gave them a long period of time for correction. >> yes. >> per commissioner fung's strungs instructions. >> i don't recall the length of time? >> i think it was 5-10 years. >> and we only applied it to

public facing windows. >> mr. sanchez, one of the primary reasons why the planning department changed their criteria and allowed vinyl is because vinyl wound up being able to extrude shapes that were wider which then looked more in conformity with the depth of woodwind owes. i think that was one of the reasons. you are right. in terms of the longevity of the previous generations of vinyl windows was not very good. that's why i asked your predecessor what they looked like because they were wider than the thin ones that used to be ones