you have in the past sort of considered a very similar issue with at&t permits and i believe exercised the discretion to grant jurisdiction because the department caused -- >> right, thank you. >> and we also got taken to court in boston. -- and lost. >> you were taken to court and lost at trial court level where the law didn't require notice to be given but you distinguished that case.

[inaudible] hearing before you where there was evidence that the department had caused and you relied on that. you've gone down this road before and you have been able to decide that discretion. >> i'm going to make a motion to grant the jurisdiction request on the basis that department inadvertently caused the appellant not be able to file on a timely manner. >> we are a motion from commissioner honda to grant this jurisdiction request. three or four votes are needed. >> commissioner fung. >> i. >> president lazarus. >> i. >> commissioner wilson. >> i. >> thank you. the vote is four to zero. jurisdiction is granted. the requesters now have a five day appeal period to appeal this variance and this appeal period end this coming monday.

thank you. >> we're going to take a very short break. >> welcome back to the december 17 meeting on san francisco board of appeals. we are on item 10. the subject property is at 1614 noe street. the requester asked that the board take jurisdiction over applicant holder which was issued on august 26 2014 and the jurisdiction request is filed at the board office on

december 1 2014. the permit holder is steven fouler and the project

>> everybody was getting along fine with the new house. instruction was well advanced and the project architect went to the planning department counter with a set of plans for a revision, is what he called it, a new permit revising the previous permit adding a roof deck and skylight and saw over the counter approval of this.

it was brought to mr. omakaro, but many knowledgeable architectings might go to the planning counter at that time if they were trying to get approval for something that might be questionable or sketchy. in fact, this permit authorized construction of a deck that similar mrip can't be approved. it is above the limit set by the special use district. the height limit of the general planning code for residential design is further limited by the special use district and no exception for anything above the 35 foot height limit is granted under that special use district. it's very unfortunate that the project sponsor sought to permit it in this way and frankly, i'm kind of baffled

by the argument made by the project sponsor's council saying that the neighborhood discussions were conducting in good faith and that the fact that they didn't abide by those agreements is a civil matter. i've done this kind of negotiation with rubin's office for 27 years and never heard something quite as cynical as that, that people should stand by what they say they're going to do and neighbors fulfill their responsibilities by finding out what the project is intended to be. 25 neighbors all surrounder the property have signed the petition for the request for jurisdiction. people care about this. it's a new thing on this block and i think this board should grant jurisdiction as it was by error of the planning department denied the applicant the opportunity to

file. thank you. >> in your brief you did not provide any documentation on those discussions. >> there was no documentation of those discussions. there were meetings held between and the neighbors were satisfied the decks they were concerned about were eliminated? >> no 311 notes or anything? >> no this all happened prior to that stage. >> thank you. >> we can hear from the permit holders council. >> thank you. good evening, i'm here tonight on behalf of the permit holder. we're asking that you deny this request simply because

it doesn't meet the board's standards. also the permit work issued here is now nearly complete so allowing a late appeal would cause unreasonable delay to the permit holder. as mr. brian indicated earlier after the board appeal is passed intentionally or inadvertently caused the requester to be late in filing the appeal and the standard is not met here. heerm the city followed procedure in code requirements and issuing a permit and caused no delay in filing the appeal. the permit holder was issued a permit to construct a three story home in the property in february and began construction in august. they were issued a revision to install a roof deck with a retractable skylight in the building under construction. this revised permit was oefrz the counter at dbi which was a process that let the applicant hand carely their permit from station to station for prior

review. however, it won't be issued if that i have don't meet requirement ls. before issuing that permit, however no neighborhood notice was required for this permit. the planning code didn't require notice for installation for legal roof decks in in the buildable yarl. in addition, public policies and documents in the planning department confirm that roof decks within the buildable lot can approve with no naibl notice. because no notice is required the department didn't ere in issuing this permit. the height concerns are unfounded first because the roof deck is located on a flat surface and the only vertical elements are a parapit wall and railings which are exempt from the height limit. even if they were counted

toward the height of the roof deck the building itself is beneath the 35 foot height district it's only 31 feet and the railings do not amount to the extra 4 feet. the per mipt was issued more than three months ago so the permit holder [inaudible] anticipating completion next week of installing these steel railings that have already been ordered. in response to comments regarding any agreement between the party there was no agreement or understanding regarding roof decks. we have brought copies of the presubmittal original plans showing changes that were made at that time. they involved removing areas of the building in the front and back set back and other changes, nothing having to do with a roof deck area. thank you very much. we're available if you have questions. >> counselor, were you involved in those -- >> i was not. >> -- discussions?

are you aware -- were there discussions of roof decks? >> there was a portion of the building, not at the third story roof area, but portions of the building toward the rear of the lot and front of the lot that people had requested be set back further so it was more in line with the properties to the north and south. one of those areas had a roof deck on them and it was removed as part of the process, but not because it was a roof deck, but because it was a location of that building extension. >> then the permit had said had no roof decks. >> the original permit submitted have a roof deck at 311 that was noticed, no.

>> thank you. >> mr. tigue. >> good evening, planning the president staff. department staff requires to be noticed. also specifically the question of the delores height special use district it states no portion of a building shall

exceed a height of 35 feet above the existing grade of the lot. the existing building as a proved it's building on does not exceed that height. the special use district doesn't in any way limit how the code does exempt certain features from height restrictions under 260b. this is no different than the preordained height district for any property whether it's a 40 foot height district hor higher. you can go above that height district specifically with those features that are exempted under 260b and the use district doesn't exempt those features. we basically interpret them and implement them the same way which is non structural features that are exempt under 260b, such as minimum required

d parapits and railings don't fall under this requirement for height and do not require 311 notification. i'm available for any questions you may have? >> did any planning staff attend any of the neighborhood meetings? >> generally we do not, especially not on the front end and it appears that much of the work with the neighbors on this project happened as we like to see on the front end. >> i'm a little confused. the overthe counter permit, is that from you or dbi? >> both. it's a building permit, but the scope of work is such that it does require the planning department to sign off before dbi -- >> in other words, it's been walking around one of the departments? >> it's the kind of permit that every agency that needs to see it can approve it over-the-counter so we approved it over-the-counter as the other agencies. >> thank you. mr. duffy.

>> on the building department involvement in this building permit involved the intake on august 18, 2014. it was checked for building cold compliance on 26th of august, 2014 by robert chunk and issued on august 26 as well. it was an over-the-counter approval. it was probably checked for architectural from dbi however, i'm pretty certain of that. that's normally foundations, additions, so roof decks would n't give us to give notice when the permit's issued. it's a standard roofer deck permit that looks like it's properly approved as a stand alone permit for a roof deck.

>> thank you. >> is there any public comment? seeing none, commissioners the matter is submitted. >> he said she said. >> i think if we are consistent with what we ruled on we allowed jurisdiction. >> i'm not so sure. >> why would you add a late provision to your permit that late in the game? >> i don't think that's the issue here, however. perhaps what he did was not particularly ethical or above board but if it was all done appropriately within the code i don't know how you get beyond that and not to mention the fact that relying on the

city's approval of the permit, the budget is just about complete. >> yeah, because you don't know it until they're at that level. >> that's isn't a standard for granting jurisdiction. >> what isn't? >> it has to be an intentional mistake. >> i'm going to ask you to speak into your microphone. >> that doesn't meet these standards? >> right. >> i think the issue goes a little bit before that in terms of whether discussions had occurred, a scope had been decided, elements were either included or not, but the problem here is that nothing has been presented to us. these guys are saying two different things and we have no basis to accept either one.

excuse me, we have no basis to accept the fact that a certain agreement had been made. the -- >> i would move to deny jurisdiction on the basis that the city didn't inadvertently or intentionally cause the delay in the filing of the appeal. frments i >> i would have to agree in this instance. >> so moved. >> there is a motion from the president to deny this jurisdiction request. on that motion to deny, commissioner fung. >> i. >> commissioner honda. >> i. >> commissioner wilson. >> i. >> thank you. the vote is 4, zero. jurisdiction is denied and no appeal shall be filed against.

thank you. >> item 11, appeal 14-6 [inaudible] the property is at 1410 [inaudible] properties llc of a street improvement permit. construct new 15 food wide concrete sidewalk to provide a walking path from clarendon after to subject property. we'll start with the appellants. you have seven minutes. >> good evening president lazarus, members of the board. steve williams. i can true hi truly say

without a trace of irony that this has been a long and winding road for the other neighbors.it's the longest case i've ever had, more than ten years. i summarize this appeal should be granted on page 2 of our brief and i'll start by reviewing those quickly. first is the legality issue. article 9 of the public works code governs all and any work in the unaccepted right away. the permit was not granted with article 9 and not properly granted. the owners of the property are financially and personally liable for maintenance and use for anything consent is required. d just as specified in

article 9 and that's probably the most important point in this appeal tonight. the sebd second is that the general plan, the planning code and numerous other policies and programs mandate preservation of open green space and these unaccepted undeveloped streets and rights of way a specifically defined in the planning code as public open space and must be treated as public open space because that's what they are. this is why the driveway sought by this development team was unanimously rejected by the board of supervisors, not once, but twice. once in 2006 and the second time this year when they went back for a second bite of the apple. third reason, practicality. the design was simply slapped together after the developer's most recent loss at the board of supervisors. it makes no sense.

it's dangerous, it goes straight up a very steep hill and there's a large utility box up legislative sidewalk. you've never seen any sidewalk like that in your life. it's right in the middle. the developers made this application without any outreach to anybody in the neighborhood, without any discussions and ignoring our pleas for a reasonable settlement such as the use of that existing walking path. the fourth reason is fairness. this is a real bait and switch by this development team. every prior approval granted by the city was based on the representation that access would be obtained from mountain springs. from 2006 when we were here last and commissioners fung was then president of the

board of appeals until 2012 when they got final plans to build access from mountain springs, exhibit 13 to my brief, the access was always represented to the public and all the city agencies planning, dbi, dbw is planning from above and mountain springs. that was 100% the development's idea. that's where access was obtained and where the neighbors on mountain springs consented and approved access from that site. it's just not credible now after six years for the development team to say well, we suddenly find that's not practical, we changed our mind so we're going to change this project. and that's what they say on page three of their brief. let's start with article 9 as exhibit 18.

it governs every aspect of development in the unaccepted streets and the other sections of the public works code deal with the accepted streets and there's two kind of streets, accepted and unaccepted. one the city's responsible for attaining and others, the local homeowners who abut it are responsible. item 15 directs the construction and maintenance of the sidewalks and directly refers to article 9 by saying if you're dealing with an unaccepted street go to article 9 and i brought some of those code sections depending on the arguments made by the other side. the requirement of consent for homeowners abutting the unaccepted street for improvements is well established and the developers were required to obtain that for the access from mountain springs. that's what dpw requires them to obtain.

if you look at exhibits 5 and 6 you'll see that's where the consent is and they said this is mandatory, that the consent had to be obtained in order to go from mountain springs and that's why it's so important for this board to understand this point. the developers are asking to build this steep concrete walkway which will only serve one building and will be a private walkway and the metulas will be 100% responsible for its maintenance and slip and falls. it does not follow the code. the second issue, the green policies. this new project they've proposed d violates not only the green policies, but the prior decisions of this board. this is the walkway that the developers brought up the

first time to the board of appeals and the board of appeals made a ruling, which was the only thing the neighbors were asking for that this all be reduced. cut less of the green space up. this is what was finally approved from mountain springs so 15 feet wide sidewalk violates that prior rule, also violates all the policy. it makes no sense. if i walk in front of your house it's not 15 feet, the sidewalk in front of my house is 8 feet. this is absurd. it was not thought out correctly. the practicality is extremely steam and i touched on the fairness issue. we're asking the board to set aside this improperly issued permit and if you're going to issue this permit as it is, provide them the tools with the same indemnity the city would demand and that same

indemnity is written into exhibit 5 and 6 where it was coming from mountain springs. you have to give than if this is going to stand. it shouldn't stands, but if it does they're entitled to the indemnification for this private walkway to this home. i'm available for questions. there's a million exhibits. i know the briefs were thick as a phone book. i know way too much about this case. happy to answer any questions. >> i think we can hear from the permit holder now. >> i am the architect for the property. the property owner karen woods is here with me. the prior appeal of this project was denied by the

board back in 2006. the house has taken a long time to approved permit for this legal legislative sidewalk should be upheld. in short, the neighbors didn't want the house on this property and now the house has been built and they're still trying to make things difficult for her. she would like access to the house and to sell it. it is a legal legislated 15 foot sidewalk. the history behind this appeal demonstrates why the appeal should be denied. throughout the history of this ro jekt there's been an adversarial relationship between the appellant and karen. and they asked us to revise the design. in all four cases we worked with the neighbors, redesigned the project and were able to proceed with good will from them.

thal fought us throughout the permitting and construction process. we met with them but were unable to engage in any meaningful discussions. they refused to let us into their home so we could see firsthand what their concerns were. they insisted we narrow the building so it was only 17 to 18 feet wide. they allowed for no new loans. normally neighbors allow me and my clients into their home so we can feel empathy for their situations, determine which impacts are most significant and deevery window was as important as the other and we needed to narrow the building 7 to 8 feet along its entire length. by the way, their house is a typical, being wide and extendsing very close to the rear property line. it had open space on neighbors does not constitute an entitlement. they told me we need to redesign the project their

way or they'd stop construction of the house. inspite of their inflexibility important to them and designed setbacks and notches into the design to responds to their concerns. they fist attempted to block the permit for their home through discretionary review at the planning commission. the planning commission az proved our design finding it to be well designed and fitting with the neighbor context. concerning the driveway across access from the after avenue to the house. parking in the gra raj our approved design approved a drive way. working with the planning director we modified the design and obtained a positive general plan referral. the driveway was approved by dpw but required final approval by the board of supervisors. because of the influence of the neighbors the project never got out of the land use committee.