to the september 26, 2018 meeting of the san francisco board of appeals. board president frank fung will be the president. to my left is deputy city attorney brad russy who will provide the board any legal advice this evening.

i'm julie rosenberg, the board's executive director. we will be joined by the city departments that have cases before the board. we have mr. scott sanchez, representing the planning commission, and we expect to see joseph duffy, senior building inspector from the department of building inspection. the board requests that you turn oregon silence all phones or electronic devices so they will not disturb the proceedings, please carry on conversations in the hall way. appellants, permit holders and department respondents are each given seven minutes to present their case and three minutes for rebuttal. people affiliated with these parties must complete their comments within the seven or three minute periods. members of the public not affiliated with the parties have up to three minutes for their comments. to assist the board in preparation of minutes you are asked but not required to submit a business card or speaker card to the board when you come up to speak.

speaker cards are on the left-hand side of the podium. we are located at 1650 mission street room 304. this meeting is broadcast live on sfgovt.r. cable channel 78 and will be rebroadcast at 4:00 on fridays on channel 26. now we will swear in or affirm all those who intend to testify. please note that any member of the public may speak without being under oath pursuant to the sunshine ordinance. if you wish the board to give your comments testimonial weight, please stand if you are able and say yes or i affirm.

do you solemnly swear that you will testify to the truth, the whole truth, and nothing but the truth? this is general public. this is the opportunity for members of the public to speak on any item in the board's jurisdiction but not on tonight's calendar. seeing none, we will move onto commissioner comments. seeing none, we'll move onto item number three, adoption of minutes. commissioners before you for discussion and possible adoption of the minutes of the sept 12, 2018 board meeting. >> any corrections or additions? entertain a motion to accept. >> so moved. >> okay. we have a motion from commissioner lazarus to adopt the minutes from september 18, 2018. on that motion --

[roll call] >> oh, one question. is there any public comment on the adoption of that motion? okay. my apologies. on that motion -- [roll call] >> okay. that motion carries, and the minutes are adopted. item four, this was a jurisdiction request and that has been withdrawn. the subject property was 2900 vallejo street, so we will move onto item number five. this is appeal number 18-101, mark hermann, andres ferrier, mark meza, the subject property is 3250 octavia street, protesting the issuance on july 11, 2018 of a building permit. this is application number

2018-0595170. >> looks like our building official's not here yet. why don't we move this down one. >> okay. so we'll move onto item number six. this is 2130 -- peal number 18-091, 2135 market street, l.l.c., versus building inspection with planning department approval. the subject property -- okay. >> here you thought you were lucky in getting moved up from last to first. >> okay. let me try and call our inspector here. >> i think we need him for all of them. >> yes. >> in the six years on this board, i've never heard the volume from the event.

>> yeah. >> that's because this music is for younger kids. >> metallica, is that for the city hall? >> nice. i like them. >> you want me to call >> welcome back to the september 26, 2018 meeting of the board of appeals. we will go to item number five. this is appeal number 18-101, mark hermann, andres ferrier, bill meza, the subject property

is 3255 octavia street, protesting the issuance of july 11, 2018 of a building permit. this is application number 201805159170, and we will start with the appellants if they're present. >> i don't see counsel for the permit holder, either. they're not here. let's move that down one item -- oh, i'm sorry. you're here? >> okay. so -- [inaudible] >> okay. >> okay. just for the record, one of the appellants contacted our office and indicated they wanted to withdraw the appeal. we explained that they would need to have agreement from all of the appellants, and they would have to return the form. they never -- he never did

that, and he indicated he might not show up, but we don't see them here. >> okay. let's hear from the permit holder here. >> and prior to hearing, i am a partner that has hired the law firm of reuben junius, and it will have no effect on my hearing this. >> i'd just like to start and say that we also heard from the appellants, and that they indicated that they likely would withdraw the appeal; however, we have not heard from them today. so 3255 octavia street, which we're here today to discuss, we've come today for a project that was reviewed by d.b.i. and sf planning. an appeal was filed by a small

contingent of neighbors who previously opposed. commission comments were heard, changes were made to the commissioner's liking and the d.r. was not taken on july 26 of this year with the condition that if the project sponsor were to convert the ground floor to a common area to a unit that that unit would be a fourth unit approved through the a.d.u. program. attempts were made to link 1355 francisco with 3255 octavia at that time, and the board agreed there was no linkage. the two properties are not linked and stand on their merit as code compliant with the approval of sfdbi and sf planning. i would like to submit a

neighbor petition signed by 62 of their neighbors. >> you can put it on the overhead. >> overhead, please. overhead, please. >> so what i presented before you is a petition with signatures by 62 of the neighbors. >> in support of the project? >> they support the project,

yes. and those include those most affected by the project at 3249 octavia, next door, and directly behind the subject property. the neighbors have responded appropriately to the sense of the project and to their sense of fairplay. they do not want to fare that their neighbors can use divisive tactics to strong arm them. this is the interior renovation of a two story building, light well in-fill, and some minimal changes to the rear facade. the deck uses an operable sky light for compliant access and egress point as the existing stair tower is a narrow winder. the roof deck proposes additional cosmetic paving and screening outside the deck footprint simply or aesthetics and to com -- for aesthetics

and to accommodate future planting. it will seismically upgrade and provide sprinkler protection. it is a well designed, code compliant and sensitive to its surround beings. the appellants purport -- [inaudible] >> -- the future issuance of 415 francisco for which d.r. was not taken and we hope that your decision in this sends a message to the harassment of the project by this party. thank you for your time. >> thank you. is there anyone here from the planning department? >> scott sanchez, planning department. would like to highlight a couple of facts. the permit was actually approved in error by the planning department because the

roof deck has a 6 foot high glass wind screen under the code. anything higher than 4 feet would require a section 311 notification. i discovered this when reviewing the project plans today, and i did reach out to the attorney and spoke with him earlier. another issue that i had noticed appears to be inaccuracy on the roof plans, they're showing the second set of stairs as existing, but in reality, that is a new condition. i think it must be a drafting issue because in the brief, it seems as if they're representing the second set of stairs as a new addition. in regards to the compliance with the not yet adopted roof deck policy, it would not completely comply with the policy which would require or would generally have a set back of 5 feet against the side property line. certainly, they meet it with regards to other set backs, but along the north side property line under that policy, which is not yet adopted, would have

a set back of 5 feet. it also limits the size of the roof deck to one-third of the roof area. they are showing the wood deck as a smaller deck of 490 square feet, but then, they are showing concrete pavers at the front and rear of a couple hundred square feet each, which is odd because it also has around those, a 42 inch tall railing. so it would seem to be it is meant to be a roof deck. i don't know why else you would build out on the roof and put concrete pavers and railing around it unless it is intended to be used as a roof deck? i know they've set in the brief that it was meant to be a wind break. i would think that we would have to honestly look at this as a much larger roof deck than what they're representing it here. if this is their intention not to use these areas, it could

also be labelled on the plans that this is not usable roof deck area. in speaking with the attorney, he said there had been discussions with neighbors. one of the things he mentioned with me is that there had been some possibility of lowering the height of the railing to 4 feet as a compromise. i don't know what the status of that is, but that would obviate the need for the section 311 neighborhood notification. in regards to the ground floor, i mean, the ground floor modifications that they're proposing, in and of themselves violating the planning code, they certainly raise questions, given how their design would facilitate its reuse or use as a dwelling or separate living space, but there is no violation that i see just from what they have on the plans, and i think inspector duffy may

have other comments on that, as well, but those are the thoughts that i wanted to share with you. in regards to the section 311 notice, i would point out to the board that as part of your appeal process and as part of your appeal notification, you do send your appeal notice to the same radius that we would for a section 311 notice, and i think in other cases, we have considered that to satisfy -- generally satisfy the requirements of section 311 because the required people are getting notice of the work. but we'll leave it up to the board as to how to proceed with the appeal. i know it's a little bit unusual that we don't have an appellant here, but i wanted to represent our department's review and concerns that we have and issues that we highlighted. thank you. >> sure. may i ask you a question? so your concerns were my concerns. of course, we always think alike, don't we?

i -- i -- exactly what you registered were exactly my concerns. i became much more focused on the roof deck that wasn't a roof deck that is a roof deck, same concerns as yourself. so can you help me -- can you help me in making it legal or help me in making it more appropriate to what -- what the -- what the code is? >> certainly. and in terms of being code compliant, it's just a question of the notification for the six-foot tall wind screen. if that's dropped to 4 feet, that does not need notice? but as i said, you have essentially completed the section 311 notice by virtue of the note that was done for this appeal hearing? so i think if the board felt the six-foot height was appropriate, that would be

appropriate to take action on here. the separate item, i think, is the -- not concrete pavers, area which is represented in the brief as not being deck space, has a 42 inch tall railing around it, and laid with pavers, which they say kind of improves the visual aspect of it. obvious when people want to improve the visual aspect of a roof, often, they'll do a green roof, other than concrete pavers. it has its benefits, as well. i think if you're concerned about the size of the deck and this is on appeal to you, even if that there's no appellant, you have ability to take whatever action you feel is appropriate. if you feel the potential roof deck was too large, you could require the removal of the concrete pavers and the railing, you could just have recovery room value of the railing and noting that the concrete pavers are to be

nonoccupiable space. i think it's what the board feels is an appropriate roof deck for this property and modifying the project if you feel that there's any changes that are necessary. >> yeah. i would again -- you just represented what i was going to talk about, which was why would you put concrete pavers on top of a roof unless you're going to use them, and who's going to look at them -- there's nobody up there unless you're flying a drone, so i was confused by the whole excuse for why this area was made as finished and visually important as it was, so -- >> maybe the appellant can elaborate more on what was on the -- or permit holder. >> yeah, thanks. >> thank you. >> i have a question for you, too, mr. sanchez. you mentioned that there's a 5 foot set back. >> so it's not a code requirement, it's -- i'm glad

we're actually having this conversation. so last month, the planning department put forward to the planning commission a draft policy for how we review roof decks, knowing that this not only comes up at d.r.s, but also the board of appeals. they did request that the planning department review that with the board of appeals, and so i will discuss approximate your executive director at a future hearing date whereby we can present the draft policy to the board of appeals and get your feedback, but in terms of that, some of the items that are in there i think are relevant to this. a set back of -- generally, a set back of 5 feet along the side property line, unless if there is a blind wall or some other feature that would render it kind of useless -- in this case, i think the property to the north is at the same height, so it may not be

useless, and the 5 foot set back may -- may be more appropriate there, but it's not a code requirement. it's just what is in the draft policy. it's also limiting the area of the roof deck to no more than one-third of the roof area. so what they have shown, i think as the wood deck of 490 square feet, seems to be probably a third, but then, they have the paver areas and -- of the area and why is that there, especially with a 42-inch tall railing. i'm not an aerodynamic engineer, but i wouldn't think it would make much of an impact on the wind. >> so the planning commission is making us the stewards of decks and trees. >> they are seeking your wise input knowing that the board of appeals has wisely adjudicated on these issues in the past. >> thank you, mr. sanchez. >> just one more question. so we can clarify or cure your concerns by allowing the -- the

deck -- sorry, i'm going to refer to it as that -- to -- with a restricted covenant that says that paver area is simply not occupiable. and then, that stops that as being used as a deck. >> we get into enforcement issues down the road, and that's what i'm concerned because it's been represented as this roof deck is just this smaller, 490 square foot deck. this deck is not a roof deck, even though it is got a 42 inch railing around it. i don't know if this home is going to be occupied by the owner or be sold in the future, but if i say this, you would think i could use that space. it's not a code issue about the size of it, i think we need to be honest if it's deck or not. if it's not deck, i think that the railing should be removed or the pavers, too, and just -- whatever the deck is should be

approved on the plans. that's it. >> thank you. >> mr. sanchez, the two points you brought up were questions i had in my own mind. but the draft policy that the planning department shared with us, it had no definition of what is a roof deck as part of that. >> trying to think -- >> it's just something for the department to consider. >> fair point. >> i think the -- the other restrictions that it poses, all of it probably pretty much makes sense. the only exception is why is it that the department is recommending no set back at the

rear wall of the property. >> as part of the policy? >> yeah. >> i think it is less of a concern about impacts on adjacent properties because it's looking over their own property, but it's not a final policy, and i think that would be a great discussion to have when we do bring our staff here in the future to discuss the policy, and i'm sure they can come up with a great answer for that. >> yeah. >> thank you. >> thank you. mr. duffy? >> good evening, commissioners. joe duffy, d.b.i. yeah just on a couple of the points that mr. sanchez brought up are concerns of mine, as well. just reviewing the plans this morning at the office, some of the labelling of the areas are something that i wouldn't be used to seeing. i know it's been approved by d.b.i., but i never got a chance today to speak to the

plan checker. if you look at the grand floor plan on a-100, they're labelling these areas as common space on the ground floor behind the garage. i'm not used to seeing common space. you know, we normally have storage. there is one storage room on the existing plan, but they're showing this common space. i'm not sure what common space means on the ground floor of a building. i'd prefer to see that labelled as storage or whatever it's going to be used for. the occupant load factor, i don't even know if we have something in the code for that. common areas of buildings are generally lobbies, hallways, corridors, stuff like that, but this seems to be some sort of a room that's going to be used for something, but common space doesn't really fit with the building code in my opinion. i was hoping to speak to d.b.i. plan check about that issue. the other point is i see there's a gas connection going to the -- in the workshop.

it looks like an island there in the middle of the workshop, so they're providing gas to that, with i -- which is alway suspicious. and then, it's called a workshop, with cabinets on the walls, and gas is going into the island, so there's always suspicion someone's going to turn it into a dwelling unit. obviously, it might be for welding, but i don't know what it's used for. i would just -- if the plans were a little more defined on what that space is actually going to be. the other issue i have, of course, is the roof deck, as well. i've only ever seen one project that had these concrete pavers, i'd say, the roof deck area. normally it's labelled as a roof garden or something, but then, we would ask that planning look at that. it's got concrete pavers out there. i don't see access to it from

the roof deck. there's no gate or anything in that railing, so, again, just concerns about it, obviously, it's got a rail around it, and if they're going to put plants up there, we may be concerned about the load, what they're going on up there, but certainly, i have a few comments about the plans, and the appellant's not here, but certainly, i would think we've got a few questions that we would like to get clarified from d.b.i. plan check. >> thank you. >> thank you. is there any public comment on this item? okay. seeing none, we will move onto the rebuttal portion. so mr. jacobs, you have three minutes, please. >> thank you. i want to address some of the concerns that were raised both by mr. sanchez and mr. duffy. so the intent of the roof paving area is to support some

potted plants and some sculptural pieces in the future, so it really is for aesthetics, there is no intent to occupy that area. we have discussed with the appellant the possibility of lowering the railing to 4 feet, and the intent of that railing really is both for wind screening for plants and for protection for maintenance access. the existing or proposed egress systems wouldn't support a roof deck greater than 499 square feet, so we're limited to the occupiable area on this roof, both by building code and by the parameters of that railing. in terms of the -- the concerns about the common space, the common space is presented as an amenity space for both units in

the building. it should provide both workshop area and access to the rear yard so that both units can barbecue and enjoy the garden space, though the intent is the roof deck be primarily the usable open space for the upper unit. >> the property owner. it's hard not to be frustrated because this was -- this has been pulled back by the neighbors, the three that protested this. this was done as a tactic to delay us at 1503 francisco. that's why they're not here. they've got significant push back from the neighbors because there's been both on-line and in person, really, a threshold that has gotten into bullying, and that's why support for us on 1503, which was around 25 people six months ago, has know developed to 62. it's not because i'm a nice guy

or things have changed that much. it's because the neighborhood has gotten very divided and concerned over what is bullying. so the -- we would like to have a space that's accessible, makes the garden accessible for the two units. that's what's occurring down at the bottom. we have no intent to have it be a unit or a bedroom, i'm not sure what you'd call it. the roof deck, we would like to have a roof garden for vegetables and fruits. it's something that my wife does. that's why we need the pavers. there's beams going in the building so they can bear the weight of that. we had agreed to remove the wind screen down to 42 or 48 inches on the outer edge. it's just simply for -- you know, just added security in case there's a niece or

somebody accompanying my wife as she's gardening, but it's not meant for usable space. >> okay. thank you, sir. your time is up. >> i have a few questions, whoever would like to answer it. let's go through a number of the issues here. one is the six-foot wind screen around what you call the deck stays, then planning is saying you have to give 311 notice. >> could you repeat the question. >> your current wind screen around the wood deck is 6 feet high. that would require 311 notice. the property owners cases that he would consider reducing it to 4 feet. is that yes or no? >> yes. >> yes. >> okay.

the building department has brought up that there's no gate around the -- around the hard paver areas. how are you going to get your plants in there? >> i guess we'll have to institute a gate for maintenance access. >> if you have a gate then what prevents it from being used as a deck? >> you know, it would be a point of honor at that point, but i see in many locations on high-rise buildings, on buildings all over the city where there are maintenance access provided to unoccupied portions of buildings, and those unoccupied portions of buildings are accessible, but not occupiable, and it would be a similar situation. >> and my last question would be, you know, your counsel's brief indicates that they felt

it was in compliance with the draft policy of the planning department. but yet, the northern side of it shows no set back against the adjacent property line, and it also expands your existing deck out -- in terms of the paved area out to that point. is that your intent to leave it like that? >> it is our intent to leave it like that. i think to say that it complies with that policy was an error, but i think it was in the spirit of that policy. i'd also like to note that the property at 1503 francisco, to the north has been through d.r. to add a third story so it would actually have a blind wall at that location and be in compliance with that policy were that project to be

constructed. >> all right. any other questions? >> excuse me. my question would be so if the pavers were allowed to stay, would you oppose an n.s.r. that that becomes not occupiable space in case of enforcement? >> no, and -- no. as long as we have the ability to make it a roof garden with sculpture. >> and the second question, why is there gas in the area that's labelled workshop? >> you know, that's a good question. i think it's actually supposed to be a tinkering workshop. do you have an -- >> if you have an answer, ma'am, why don't you come forward. >> it's a workshop. >> okay. and then -- >> that's what my father had. that's the way i want to set it up. >> okay. and then, the last question would be that building has indicated they'd like some

clarification regarding the drawings regarding common sense to that the label would reflect something better with their building language. >> often, we see in these buildings, we see these common areas labelled as library, we see them labelled as media rooms that service the entire building. we would be happy to clarify with a more concise use than common space if the building department requests it. >> thank you, mr. jacobs. >> okay. >> thank you. mr. sanchez, anything further? >> thank you. scott sanchez, planning department. you know, we would need to review any ground floor changes to the property to ensure our down rooms compliance and to ensure that there's not illegal units that are created, so it

limits the amount of amenities that can be developed on the ground floor, though we can review any revision for compliance with those requirements. if the board's desire is to allow the concrete pavers to remain with some railing, i would ask that the n.s.r. noting that as nonoccupiable space. also i would note that a portion of the pavers are located in the rear yard, so some element of that rear most concrete waiver area is going to be -- paver area is going to be within the rear yard and wouldn't be allowed to be developed. one concern is usually, gardening areas, if you're gardening, that's occupiable area and maybe department of building inspection can elaborate on that, but it does require some regular access to garden, sculpture not so much,

but if you're gardening, you would have regular access, and i would assume that would be something that would be occupiable. so maybe they have the garden near the front of the part and the sculpture in the rear yard. they would need to be advised of that, and i'm sure whatever action the board takes, it sounds like there's going to be some revised plans, and they can properly document that through this process. >> do you have an idea how much where the required rear yard is and how much of the pavers would be? >> i think it's -- it looks like it's 100 foot deep lot -- actually more than 100 feet deep. my estimation would be that they would use averaging and it would be the averaging of the two adjacent building walls. it's not a dimension, so i can't give you that, but something splitting the difference between the two adjacent buildings. >> thank you, mr. sanchez. >> what i'm seeing emerge here

is a little tinkering there, a little tinkering there, and now that, you know, we're into a rear yard, and we've got a 42 from a 6 foot down, and we've got pavers that nobody's comfortable with because it would be a finishing item that somebody would get amnesia about. and i don't know if the -- if the permit holder lives there now, but they may not live there in the future, and the next person comes in now, and says hey honey, gee, we've got a deck. so should we push this back and have a continuance just so the tinkering can occur on the plans and we can see what you're suggesting? 'cause i'm seeing a lot of stuff -- and then, the -- what is the name, what is that called in the entryway? is it an entryway, is it a

workshop? what is the gas line doing there? there's all these little stuff, and we've got to make a permanent discussion -- or decision on this that's going to last in perpetuity? would you advise us to get a plan revision and do it quickly and get it over with? >> i think both would be possibilities, either kind of he announ enunciating what your concerns are. i think the executive director's perspective to have the board actually take action on revised plans, that everyone is understanding what the solution is or what the answer is, that's generally preferable. sometimes it's quite reasonable to take your actions and have revised plans submitted later,

but it's up to the board, and there are a number of small issues to be ironed out perhaps, so -- >> yeah. i know it's a pain in the neck, and i'm really sensitive to the permit holder that this is a really big pain in the neck, and they've been stalled. but just for clarity purposes, it might benefit us all. >> actually, there's a benefit to them, commissioner swig, in that this board can get a special conditions permit. >> yeah. >> instead of them having to resubmit their permit package to show a reduction in the wind screen height. >> okay. i'm going in that direction. >> okay. did mr. duffy want to say anything else? >> sorry, ma'am, your time is up. >> joe duffy, d.b.i.

just on the ground floor, it might be better to add common space, nonhabitable area, so you can't be living there. sort of might clarify that. the roof deck, and i wouldn't mind going to d.b.i. with the plan check -- senior plan checkers just to review those pavers. because if you're going to be out there doing gardening, it's occupied. it's just an extension of your garden deck. that's my opinion. i certainly -- i'm a little bit wary of the size of that area and it not being labelled property. instead of it's going to be a nonoccupied roof, it's going to be a roof garden. if it's a roof deck, they need to treat it as a roof deck, and then, the gated access, so it probably needs a short time just to clarify a few things from my end any way. that would be appreciated. and i don't want to hold it up, either. that's the last thing i want to do.

thank you. >> okay. so commissioners, the matter's submitted. >> you seem to have a handle on this, and you heard my thoughts, so i'll let you go forth. >> when i first saw the proposal, two things stood out. one was if it was in full compliance with a proposed policy for roof decks, and not knowing the circumstances on the adjacent building, what was proposed there, i would have looked at a 5 foot set back with that deck. secondly, in looking at initially when i saw the fact that there was a transparent

glass railing, and paved area, i said in my mind there's no difference in my mind between that area and a regular deck, which then puts them not in compliance with a proposed draft policy. and by the way, as an aside, the proposed draft policy seems to be fairly well thought out and addresses a lot of the problems and issues that we've had between neighbors. the -- i would disagree, however, with the fact that there's no set back requirement at the rear. the -- and we'll get our chance on the it when the -- at the scheduled hearing. if the permit holder wants us to issue a special conditions

permit whereby the reduction of the wind screen from 6 feet to 4 feet, i would add to it, then, that they should remove the railings around the two paved areas. we can act upon that tonight, or we can continue it. [inaudible] >> okay. let me restate that into the microphone. what i said was that the -- if the permit holder wants us to issue a special conditions permit whereby you do not then have to wait in line again for a brand-new permit, it would be a revised permit that would go directly to building department with that revision.

and/or if you want to keep it, and then, you would have to provide 311 notice, either way, it would involve quite a bit of process. it would be my suggestion that -- and i'd be willing to look at a special conditions permit whereby the -- the wind screen around the wood deck is reduced from 6 feet to 4 feet. and then, to make it perfectly clear -- well, it's actually not very clear, even with the removal of the railing around the two paved areas, but still, it's something, then i would consider the issuance of a special condition permit. >> i think i'm more inclined to go with commissioner swig. it seems to me there's other issues that aren't clear, and if we waited two weeks and had

a chance for both plans and d.b.i. to look at some of those, i'd be more comfortable with it. not that i don't agree with where you're going, but i just feel like that's a major part of it, but it's not all of it. >> i kind of -- i somewhat agree with my helfellow commissioners, but at the same time there's a process here, and at the same time, the appellants were willing to withdraw their complaint. >> but they haven't done that. >> but that was their indication as perthe conversation. >> negathey said that, but the didn't follow through. >> and the fact that they're not here with their counsel. and also, the wind screen and other things were brought up just recently, that had gone through the routing of planning and building without building and planning actually catching that. i can go for a continuance. i do feel that if -- you know i

believe the wind screen should be at 4 feet. i believe there should be a special deed of restrictions that if the brick is allowed or the pavers is allowed, that that be considered a nonoccupied space for future enforcement. let me see here. also that they would work with the department in the renaming of the -- of the areas that the department felt should have different names, but i can go either way. >> and i would add to that, and to designate that final area as nonoccupiable for -- nonoccupiable area. >> it's up to you. there's a lot on this check list that needs to be taken care of. >> isn't there a question from building about the weight of potential sculpture and figuring all of that out? >> and then, another thing addressing what the planning

department had indicated that the pavers should not extend past the rear yard -- required rear yard, otherwise, that would require a whole different process. >> it's more to do with the labelling of the area, commissioner left si commissioner lazarus. concrete pavers have to be something. they're either the roof or they're the deck, so they have -- they have to label it, or roof garden, if they want to put that. if they're going to put plants out there, it's a roof garden. just call it what it is. that's what the code asks you to do, and i don't think that's clear up on the plans just yet. i think with a little bit of work, we could get there, and i just, as i said -- >> it sounds like the commission wants a continuance. >> yeah. i think a motion for a continuance to give the opportunity of planning to get clear as mr. sanchez says that

the permit was in fact not issued in -- by mistake and also that buildings has -- gets clarity on what its needs are, as well, so i move for a continuance, please. >> and with instructions that new drawings indicate where the -- >> where there's questions raised. the date, october 17, madam director? >> that's fine. >> does that work for the parties? >> we could do it the 10th, october 10. >> you want to come to the podium, sir? >> hi. week of the 15 does not work. i'm trying to see. you asked a question. we have no issue going to the 42 inches, no issue removing the screen around the pavers -- >> sir, that's not the question. the question is the

availability. >> what's that? >> is the availability of your -- on your calendar, sir. >> okay. so are we going to allow additional briefing? should they submit the revised plans prior to the hearing? >> they can bring it here. >> okay. ideally, before. >> ideally. >> okay. so do we have a motion from vice president swig to continue the matter to october 10 so that the parties can have opportunity to revise the plans to reflect the concerns addressed at this hearing. on that motion -- [roll call] >> okay. that motion carries, 4-0, so we'll see you on october 10, ideally, you could submit the plans on the thursday prior to

the hearing. that would give the commissioners more time to review them. thank you. okay. we will now move onto item number six. this is appeal number 18-091, 2135 market street versus department of building inspection with planning department approval. subject property is 21123 market street, protesting the issuance on june 11, 2018 to crossroads trading incorporated of an alternatation permit to install new stairs with associated guard rails and handrails and provide doors to provide second means of egress, new a.d.a. upgrade of unisex bathrooms and to comply with complaint number 201602061. we will hear from the

appellants first along with metallica. >> i was going to say that. how often do you get to say you give testimony with metallica as your background, mr. patterson? >> that's fine. good evening, president fung and commissioners, ryan fung for the appellant. this is to orient you to the properties. this is a two story building on upper market street. the building is owned by c.t.c., presumably short for crossroads trading company. the upstairs is occupied by the academy of ballet of san francisco. the appellant owns the property next door at 2135 market

street. the subject permit tonight is a permit for secondary egress from the ground floor commercial space. the problem with the mer my is it doesn't go far enough to -- permit is it doesn't go far enough to give secondary egress to the ballet school, as well. it does not have a legal second means of egress. the two properties were previously under the same ownership, which allowed the ballet school to exit across the appellant's property historically, but when the ownership changed, the permit holder asserted that it had an unrecorded easement across the appellant's record for the ballet school's egress. they went to court, and the judge issued a 28-page decision. if i could have the overhead. thank you. to quote the judge, the court therefore quiet titled 2135, that's us, and rejects c.t.c.'s demand for an implied easement

or a prohibit tiff easement over the mercani parcel. there is no easement. even if there were, the city would have to be a party to it, written by the city attorney generally and signed by the fire marshal. that does not exist. there is a temporary license agreement between the appellants and the ballet school, on the overhead again. because the appellant didn't want the ballet school to go out of business, but the appellant explicitly left it up to the ballet school, to the permit holder, to ensure that this egress complied with city code. as it turns out, this agreement does not meet code for egress, and the appellant does not want to be on the hook for liability if something happens with the stampede of people leaving that school over his property. as the court found, again, on the overhead, i'll quote, instead of addressing the actual circumstances with city officials, however, crossroads

misrepresented its interest in the set back, there by cutting short the administrative process. there can be little doubt that had crossroads been truthful, it and its neighbors would not be in the difficult situation they find themselves. at this point, they've decided to deal only with the ground floor egress and they're ignoring the second floor egress for the balance eye school assembly. this is a much more hazardous condition upstairs because it's an assembly and it includes children. so what's wrong with the subject permit? it doesn't extend far enough to connect with the second floor ballet school on the egress -- on the overhead, i'll put the plans here. so this is coming from down stairs, and you'll see bizarrely, the permit plan set shows the appellant's breezeway. you see the arrow coming down the permit holder's stairs from

upstairs and emptying out onto the appellant's breezeway, which i think mislead d.b.i. into thinking it was there property. the property line is not clearly noted there, and d.b.i. probably thought they had egress for the upstairs assembly. this is the secondary means of egress contained in this permit. you'll see it only applies to the down stairs commercial space. this needs to be located in a way that it can go all the way back to the rear. if they do that, if they build it like this, they're not going to be able to take it all the way back to the ballet school in the future. what happens next? this condition is either going to be resolved by the fire department shutting down the ballet school or the board should tell them, include secondary egress now as part of this egress permit, going all the way back to serve the ballet school upstairs.

we don't want the ballet school to be shutdown, to be clear. my client does not want that. they have a good relationship. i don't think the city wants that, either. really, the only people who might conceivably want the ballet shutdown is the property owner so that they can rent that space out to a higher-paying tenant. so our request of you today is please revise this permit so that the egress goes all the way back. i think my client would like to say a few words, as well. hi, everyone. my name is kent miercona, and i own 2135 market street. everything you've heard so far is true. when all this started, i thought i was trying to protect my property, and i unfortunately found myself, first time at the rodeo, we went all the way to court could. i tried to be a good neighbor,

tried to be fair and reasonable with my neighbors here who own crossroads trading company, and unfortunately, over and over again, things were misrepresented to the city, permits were issued with -- showing that our walkway was an easement that they had, which they didn't. but all of that, i sort of feel, at this point, is secondary. we have kids. this is a public safety issue now. the only victim here are the kids. sooner or later, we're going to work all this out, and at this point, all i want is to secure my property, have my neighbors secure theirs, they take care of their tenants, and i'll worry about mine. it's not safe conditions. i would invite all of you to come take a look. we were in the middle of court, and we wanted to -- like he said, we have nothing against crossroads trading company, we have nothing again the ballet. >> you have 30 seconds.

go ahead. >> oh . i just want the kids to be safe, and i want to go our separate ways and be happy neighbors. that's it. >> i just want to make clear, the only exit that is legal or under the code is exiting on your own property. you cannot exit across the property unless you get an exception. the only type of exception is an exception that city attorney wrote and signed by the fire marshal. >> thank you. >> thank you. okay. so -- >> mr. patterson, question. >> yes, sir. >> please define for me, what do you mean by temporary? >> sure. i will refer to -- >> in layperson's -- >> sure. so the license agreement, temporary license that they gave to the ballet was for the

remaining term of their current lease, which expired june 30, 2018, and if they renew their lease for an additional five-year period, it would cover that. but again, that was assuming it meets city code, which unfortunately, it does not. >> all right. thank you. >> okay. we will now hear from the permit holder -- >> it does have an automatic termination provision, as well. >> thank you. you have seven minutes. >> my name is gabriel block, and i'm the owner of crossroads trading element, which is a distinction entity from c.t.c., l.l.c., which owns the property. all the owners of c.t.c., l.l.c. are not owners of crossroads. this was filed solely by the ground floor tenant, crossroads