the units directly facing out from the light well. yes, there may be some instances for a little bit of light. i get that sometimes from the north where it could come at an angle that is greater than 90 degrees. that's not long and not very often that it happens. most of the blockages really not from the building with respect to the light well. the issue of privacy, it's not necessarily code related, but we take that as one of many factors when we look at the scale and the relationship of buildings to buildings. i don't see that this is much different than any other building in san francisco where a key lot then crosses the orientation of other lots and therefore you are going to have

situations throughout this city where from the back of one building you are going to be able to see across to windows of an adjacent building that is at a different orientation. at this point, i do not see enough in the arguments to either revise or disapprove this permit. >> i have a similar opinion. >> i concur. >> move to deny the appeal on the bases that the permit was appropriately authorized. >> thank you, commissioner. mr. pacheco, when you are ready. city clerk: there is a motion

on the floor from commissioner fung to uphold this permit on the bases it was appropriately authorized. on that motion to uphold, president lazarus? aye, vice-president honda, commissioner wilson, aye, commissioner swig? aye. the vote is 5-0. it is upheld on that bases. next item 8. alan huge non and gale bradley versus zoning administrator. protesting the issuance on march 30, 2015, of the letter of derjs whether the planning code allowed for a total of four 4 units at the subject

property in 1979. and whether the planning department considers all 4 units legal today. >> i'm florence campbell for gayle bradley. i will give you the direct code in opposition to what happened here. in the early 60s two lots together had 9 units approved and foundations were built on the hillside of this lot which was very steep at the top of twin peaks. at the end of the 60s, the property owner wanted to put in the 9 units. planning changed the zoning and they had to sell it off. the next owner of the property from whom gayle bradley bought the property became the developer and has plans approved for 2 units on 5 stories which existed in that hillside. then, all 4 units were approved by building

inspectors that were actually built with habitable space on four levels including six bathrooms and four kitchens which exceeded the approved plans filed in 77. you can see that here. i have two of the cards here. overhead, please. >> can you see this? okay. it's six toilets there and you can see more issues with the bathrooms and so forth. also on the plumbing for the kitchens. same thing again in 78. it was 77 and 78. you can see the toilets and wash basins. a notice of completion based on the 4 units being seen by

building inspectors and here it is here. it was filed in august of '78. however, shortly thereafter, someone in the neighborhood must have complained and got planning involved and they sent a letter january 30, 1977 and stated the four floors could be occupied as built as long as the building had only two families and planning would see enforcement action. they abandoned enforcement and have taken no further action in 37 years. you can see this letter in the package and here it is here. where they state that the department of city of planning meets the following conditions and the building be used as a

two family dwelling according with this particular section. that's here and you have that in your packet. and between 1978 and 2005, all permits for repairs were applied for and issued as a 4-unit building. a number were issued that way. but in 2005, the building department issued a notice because of sharing with the san francisco assessor's office which shows 3 units. the building department shows as always 2 units not realizing that san francisco code allows second unit for each home pursuant to california law. two second units one for each home is allowed for a total of 4 units

without discussing discrepancy with the owner issued a notice of violation. the owner is concerned that that happened and why enforcement happened 30 years later. double jeopardy to the buyer was then created by the department of building action. the innocent buyer of this property was not knowledgeable that this issue even existed. in fact the buyer who purchased the building in 1995 has also lived in the building since first occupancy in '78 and still lives in the apartment unit which is shown as storage area and it is one of the alleged added units in question. after this on going 10-year dispute after adding units from this first date of occupancy. the owner requested a letter of determination from

planning in 2015 citing the state code to allow every home to be allowed to have a second unit. this interpretation was denied by sf planning and now reversed their position that it's always been there but always illegal. that's not what's stated in the original letter from 1979 as you can is see. so what did the state code say? the key issues in a state code starts out by ordinance a single family and multifamily residential zones. further down it states every local agency shall grant a variance or special use permit for the

creation of a second unit if the second unit complies with all of the following and there is a list that you have to meet or do. then it states no local agency shall adopt an ordinance that totally precludes second units single families or multifamily zoned areas unless the ordinance contains findings acknowledging the ordinance may limit housing opportunities of the region, san francisco and further contains findings that specific adverse impacts on the public health would result. no changes or other ordinances or any changes in the general plan shall be required to implement this subdivision. so we are asking you to implement this subdivisions in light of the state code.

>> do you have a legal opinion on this? >> not yet. but they are probably going to have to if they go further. he needs to speak to his background. >> excuse me. you will have to do it on rebuttal. >> good evening again. department staff. i'm going back to the history here. to be clear t property is zoned rh 2 which was at that time which does not permit more than two dwelling units unless it's a very large property and

you can request conditional use operation. maximum density has two dwelling units. every inspection card related to this property indicates the property was approved and constructed as the 2-unit dwelling. again, just a bit of a chronology. the original zoning permit was submitted in 1977. that was clearly for 2 units. the two lower floors shown. it indicates two family structure. the certificate of final completion from october '78 listed as a two family structure. the plumbing card from november of '78 that shows more toilets than the

first plumbing card but still shows 2 units and no additional cooking facilities. at that point there was an interesting situation in the next door property and 2043 burnett was applying for a conditional use authorization for more drilling because it was a large property and there were several complaints about properties in the area that were thought to maybe have illegal dwelling units and 425 was one of those. based on that information, the planning commission continued the item and directed the planning department to investigate. that led to a letter in november of that year to the property owner stating as much that there has been a complaint of four dwelling units if that's the case, two of them are illegal and we would like to inspect this site. in december of '78, two planning department staff members did inspect the property and found

there were only two dwelling units and reported that back to the planning commission with the conditional use authorization for the neighboring property. a follow up letter in january was issued to the property owner stating specifically that the inspection had occurred and it was found they only had two dwelling units and they should continue to only use the two dwelling units and therefore the enforcement case was closed. that's probably the issue why there was no enforcement because it determined the project was in compliance and there has been no complaints since to create enforcement case. regarding the

planning department dbi enforcement and not necessary to enforce the issue. regarding the list of 2-unit building. the permit history is available and there is no reason to indicate that any buyer or the property would not have been able to see this was authorized as a 2-unit building located in a district that only permitted 2 units. understate law for granny units, it is true that the planning code states that law. we addressed that law by creating a whole district. s which allows these types of units for single family areas. we do allow granny flats if you have a single family house in rh 2 you are allowed to add a second unit but not

permitted to go over 2 units. there has been recent legislation passed and proposed to expand how the city permits what we are now calling accessory dwelling units. this is in the castro and for projects under going seismic retrofitting and legislation recently proposed. we do allow this in certain situations and that is currently expanding. in this situation that it did not apply. even if it had applied you would still get a permit for that building and it would have to meet all the building and planning code requirements at the time which would have included parking and open space. etc. it's clear that the permit did not include 4 units and not addressed as a 4-unit building. in conclusion it's not clear exactly when the two extra kitchens and illegal units were established. per

planning department inspection and notice to the owner? january of '79 it was 2 units. however it is clear that no more than 2 units ever received authorization at least from the planning department and based on that information we feel the zoning administrator has written the determination is appropriate and correct. i'm available for any questions you may have. >> i have a question. rhs i have never seen that representation. >> did the appellant indicate that state law that all allow secondary units? >> i think that may have been the argument that directly any unit in the city could have a second unit

essentially doubling the unit requirement in the city. that's not correct in terms of the way the law is written and implemented. the state law basically stated that the city had to adopt an ordinance either expressly prohibiting or permitting it in a way. if you look at the planning code it specifically says if the city does not act on this in a certain time, it does it for you and there are lots of provisions that if the city did not act that these provisions it would not act accordingly. >> we learned something new tonight. thank you.

>> we did meet with dbi and it should go to planning. i want to correct that. that is not what happened. i spoke to dan laurie and patrick oh riordan, if they go back to planning and the planning would allow them the four 4 units that would be dealt with the planning department if the zoning allows it then you can come to the building for the building code issues. i think that was some misinterpretation. i would like to say the building department would be happy to allow four 4 units if the planning would allow the zoning. if you

meet the zoning then you can apply for the building. i did want to, i do have the certificate of final completion. overhead. that's the original building permit and the certificate of final completion of occupancy which is a document we are used to looking at which clearly states 425 burnett, a wood frame building which indicates 2 family. so that's the certificate of final completion and occupancy for a new 3 story. that's a powerful document in our records. i did not see it as a number of dwelling units and the path.

i don't know if there is a plan. i didn't see a plan in the provision that show the floor layouts. but i did see another permit that came after for the termite report. however, if you look on the top here where it says present use a lot of times when you come into building department this was back in 2000. our system for dbi goes back to 1982. it's a lot of times if it's a termite report they are going to give it that permit. i wish it was better because some people use those permits and say i have 4 units. we see permits go from 2-4. we didn't see that. we have one from 2 and now 2-4.

that's what i'm seeing. and then on the back of the building permit when it got built in '77. the permit was on the back. you can see the planning department two family dwelling with 2 off street parking spaces. so, that's just some of the building stuff that i have with me. i'm available for any questions. >> there is one additional bit of information included in the letter of determination. when the building was built, there is a legalizing where a building was done and was adopted for the purpose of allowing illegal units to be legalized part of that

program allows or essentially grants a waiver from a lot of planning code requirements, 95% of them to allow these units to be legalized if they had existed prior to january of 2013. i want to make that clear that there is a potential path for legalization for at least one of these when only the zoning code permits two 2 units. >> we would normally take public comment. but i assume these are the appellants. we'll move into rebuttal. ms. campbell, you have three 3 minutes. >> no. 1, there have been four 4 units in this building since it was built. there are residents in all 4 units and doorbell existed and i believe they have four electrical meters and

have had since 2006 on that. but these are some of the older kitchens. they had four kitchens that i have seen pictures of. you can see that these are from the 70s. they are not recent. those are just two of the four. >> please talk into the mic at the same time. >> those are two of the four that i have seen. anyway, the bottom line is is there are more bathrooms and toilets than shown on the plans and you have those that exist today. now we have six toilets and that couldn't have happened in '77 and '78 in the inspection reports until they saw 4 units there because there are not more

toilets for the 2 units that were approved. >> i just want to say everything was inspected. >> would you identify yourself. >> i'm allen, the building engineer. everything was inspected and approved in 1978. everyone of these units has it's own floor of the 5 story building and nothing has changed in 37 years. and it's always been occupied as 4 units. two families, each family having a granny unit. that's how it's always been. the planning department came and inspected and said you can occupy all four floors as long as it's two families. we changed the two families to five unrelated people. the building has never had more than eight in it. it currently has seven. >> as there is also, there is

discrepancies between what happened and what's in the record. that's part of the problem here. and then there is also there is discrepancy between the state law as concerns second units and the law here which says, oh well. >> you have 30 seconds. >> okay. which says no local agency shall adopt an ordinance which totally precludes second units with family multiple zoned areas and the ordinance may limit housing opportunities in san francisco. i don't know if that's occurred and we have to find that out and further contains findings on adverse impact on public health. no changes in zoning ordinances or any changes in the general plan shall be required to implement this

subdivisions. it was rm before this and rm is all around this lot. above it and below it. >> excuse me, your time is up. >> i have a question. >> so how long have your clients owned the property? >> since '95. >> when they purchased it was a 3r made available. >> document did you see a 3r report? >> if you are going to respond, please come forward. >> this is gayle bradley. >> i am the current owner. remember that i always lived there. i was a tenant since the day it was built. i was put in the illegal apartment, i guess. so i have always known what the building is. it's clearly 4

units, four decks, four everything. >> okay. thank you. >> mr. tieg, rebuttal? >> department staff again. very quickly. when planning department inspected the units it was december of '77. there were still a couple years of the 70s left. it's possible that these kitchens were installed in the 70s. it's not clear when they weren stalled. it is clear that all of the documentation and records that we have available to us indicated at that time as of the beginning of 1978 there were only two 2 units on the site. it may been built out to accommodate other families, or larger families.

but there is a difference between how many families you can have in a unit and in a building. so that maybe a key distinction here. i'm not sure how many families were living in the building. i don't know if they were using the lower floors and de facto and using the kitchen at the time. when the building occupancy was issued, it was listed as a 2-unit building. we could not have permitted anything beyond that. regarding the state law, that she cited it is correct. if the city could not essentially prohibit or not provide any areas where second units are permitted and that's why it was created to allow that type of unit to be permitted in certain parts of the city. the city did meet it's obligation there and that is

the only place where these units are permitted barring recent litigation. >> the mystery rs is 1 issue. >> commissioners, the matter is submitted. >> may i ask one question of the owner? how long have you lived at the property? >> since '78 since it was new. brand new. there was a kitchen and there were 4 units, four tennants, a kitchen. >> when you say kitchen, it had a stove. >> it had a stove, refrigerator. in fact one of the ugly pictures she showed you from 1970. that picture is about that old. >> okay. thank you. when you

purchased in 1995, the documents must have reflected how many units were in this building? >> i never questioned it. it was always 4 units. i never looked to be honest with you. i have got four everything. i have got enough garages, street parking. >> you have four parking spaces? >> three garages and two driveway. >> plus miles of street parking which no one ever parked on it. >> thank you. >> i would like to remind everybody that whether the