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 trading company to provide our company with emergency egress. this is required and is a life and safety issue. it's noncontroversial work, was properly approved, professionally prepared and vetted by the landmark association and -- we followed all the steps. this appeal is based on entirely irrelevant issues. i want to be very clear, there's been no objection to the actual work that we presented to open this section exit for the ground floor. crossroads made no misrepresentations, we omitted nothing from our permit. when a ground floor tenant is seeking emergency egress, the ballet load is not included in our calculations. they have their own egress that was granted to them, as the appellant said, by the appellant. the ballet agreed to be dismissed from the lawsuit in

exchange for emergency egress, and it -- i'm stunned to now see these -- the appellant try and say that oh, we gave them inadequate egress. if it needs to be made adequate, then, the ballet and the appellant need to work that out. i'm sure that the ballet would be very surprised that they are suddenly being told that the -- what they were given in exchange for their settlement was invalid at the time it was issued. i mean, it's really -- to me, it's a very simple review. the permit's a very distinct line of work, and i -- i believe that it's pretty clear-cut and should be approved. if you have any questions, i'm happy to answer them. >> is there anyone from the ballet -- is there anyone that represents the ballet in this

room? >> they weren't really a party to this action. neither was the owner. >> okay. >> i have a question. your ground floor space shows a vestibule and an access into the rear which then has access to that site. >> right, and we don't -- we are not able to use that for ground floor egress. that was part of the lawsuit. >> what's the purpose of the doors, then? >> what's that? >> what's the purpose of those doors? >> in the back? they were originally egress, but we lost that in the case. >> they were original to the building. >> yes. we didn't add that, but i just want to reiterate, crossroads is not able to use those. only the ballet is able to use those -- by agreement with the appellant, able to use that alley for secondary egress. >> thank you. mr. sanchez, nothing to add? mr. duffy?

>> joe duffy, d.b.i. the permit under appeal was approved by d.b.i., plan checked, went through building department review. as you can see from the plans, it's only for work on the ground floor, and to provide that second means of egress. i actually was at this property maybe three years ago on this issue. i believe i met that gentleman, yeah, just as a -- they wanted me -- some advice on this issue, and i advised them that on the ground floor, you would have to provide a second means of egress. i wasn't brought up stairs to the second floor. i came to see that as a separate issue, even though it's -- it's connected a little bit, and in my opinion -- and i spoke to mr. boskovic at the

building, if someone thinks there's an error of an exit in the building, contact d.b.i. we certainly don't want anyone with unsafe exiting. so that would be my opinion on that. this is ground floor work, and of course, there is a floor above it, but that could be treated as a separate issue. and unless -- and i didn't know that there's an agreement between the appellant and the ballet school to use that easement on the side there of the property. the only problem for crossroads would be if they lost that easement, and then, a corridor would have to go into the ground floor of that tenant space to provide access from the second floor occupants through a second means of egress from a rated corridor. they have one means of egress that goes straight up the middle. that's their main entrance and

exit. and their second, if they lost that easement -- sorry. i don't know. i'm calling it an easement. some sort of settlement or agreement, then that would necessitate something being used as a second exit. i guess they're okay as long as that door or that access onto the other property is allowed. >> okay. >> the permit holder has indicated should that lease terminate, then they would have to take care of that exiting at that point. >> and at that point, that could affect that building. >> kind of interesting. we're not exactly sure what the motives are, in terms of this, but you look at the drawing, and they show a dimension for an adjacent property breezeway, you know? >> yeah. it's -- i think it was used for

many, many years, but it was e definitely on the other property. >> can i ask a naive question? it seems that the crossroads trading company is a lessee of the building and the ballet school is a lessee of the building. why is this not a building owner issue? because the t.i., the tenant improvement, is being built within the owner's envelope and certainly would have to be okay to with the owner and certainly would have to be in the context of a totally compliant building. so then, i don't understand why -- why we're not seeing c.t.c., l.l.c., the owner of

the building, talking about this activity, and we're not -- only seeing no, we're sorry, this is not the affect intended, and only seeing the lessee. we're not seeing the owner of the building. this is a building improvement, this is not necessarily only a tenant improvement. >> yeah, we see a lot of d.b.i. tenants do a lot of work in spaces that they rent. and for whatever reason, as part of their lease, it's an agreement they have with the owner of the building. we wouldn't question that, that's entirely up to them how they present that permit. >> but the egress, the difference that seems to be -- this has to do with the building envelope and something that is permeating the building envelope, and something introducing outside around the building to the inside of the building. if it was all in the inside of the building, we wouldn't be having this discussion, but this has nothing to do with the

four walls surrounding the building and access into the building. to me, that's an owner's issue, and i'm wondering -- >> i think that's a good question. >> -- where's the owner? because suddenly, this may be -- that easement -- you know, without paperwork -- if you and i have an agreement, and then suddenly someone disappears, one of the parties disappears, and somebody said oh, we always had that agreement as a verbal agreement, there's no record of that, therefore, there is no agreement. >> i can probably tell you -- >> it's an illegal building. >> what's going to happen is if this other property owner decides to block that door, which is his right to do, someday that ballet school is going to close, not going to be allowed to occupy that space. fire department will do it, any way, because assembly does

having adequate exiting, not sure it's going to last very long unless they comply by providing a second code compliant exit. this gentleman has gonna head and taken care of his tenant space -- gone ahead and taken care of his tenant space, but the owner down the line is going to have to be thinking i'm going to have to take care of that second floor if this goes away. we can't determine that. >> that's what has me scratching my head. thank you. >> yeah. >> okay. thank you. is there any public comment on this item? seeing none, we'll move onto

rebuttal. >> thank you, commission. ryan patterson. the judge explicitly found that these two entities are related, crossroads trading company and c.t.c. and in fact treated them as one entity for the purposes of that litigation. so you know, the -- the permit itself says the owner-contractor is doing the work. i think it's clear that c.t.c.'s building owner is deeply involved in this. to respond to a couple of things, the temporary licensing agreement is not an easement. that was the court's decision, his conclusion, and this is something that has to be solved now or is -- as inspector duffy said, it goes to a complaint process, and the fire department is very likely to shutdown the ballet. so you know, if we were okay with that happening, we

wouldn't have gone through with this appeal, we would have just gone to a complaint process. the reason we're here is that we hope the board, we hope today might be willing to just extend that egress corridor back, solve the issue so it's not the fire department solving it with a heavy hand. this protects the ballet. very briefly, in the permit holder's brief, they said that we demanded a nondisclosure agreement in order to discuss their offer to pay-for-access over my client's property. the reason they wanted a nondisclosure agreement is precisely so they would not show up in a place like this and say we're trying to shake them down because they've offered to pay a licensing fee. at this point, my client has no interest in that kind of an agreement. he wants the properties to take care of their own egress issues, and it's largely a liability concern for him.

so i think that's probably about it. you had something else to add, pat? >> this feels like a game of chicken where the owner and us are driving down the road, and the guys in the middle of a bunch of kids taking ballet. and chicken is, do we go to the fire department or we let this happen? and if you go out there, you look at the emergency exit, there's no signage. there's no panic hardware. there's a step, and the door swings out, which means the first kid falls, they're going to be trampled to death. we're asking you to stop the game of chicken and say fix it. thank you. -- before someone has to be evicted or a kid gets hurt. >> hopefully, that doesn't happen. >> i do want to show you briefly on the overhead. there's this question of the license expiring.

mercani makes no reference to the sufficiency or legality of the egress. >> thank you. >> can you leave that up there, mr. patterson? question for clarity. was there a settlement agreement with the ballet for them to use that space? >> exactly, and that was -- that was this agreement that's here on the overhead? >> so there is an agreement or there's no agreement? >> there is an agreement that gives temporary license for egress if the city allows that, if it's code compliant. we made no representations that it was code compliant. we said that's up to you guys, between you and the city. >> and that is -- that agreement's only with the ballet company, so once that lease expires, there's no means of egress for the second floor. >> i think the first time i heard that you want us to make

them put a corridor through their space. it's not in any of your briefs so on what legal basis can this board go beyond the purposes of the permit in front of us? >> so the board has broad, equitiable, power, at least as the planning commission's, which as we see every week, has authority to make changes to interior and exterior projects. i think it's entirely appropriate to make that egress code compliant. thank you. >> does your agreement apply if there's an extension of their lease? >> it applies to the extent that egress is legal. >> okay. >> and it's not legal. >> okay. thank you. >> all right.

>> thank you. >> so i can speak on behalf of the owner. i'm a shareholder in crossroads or c.t.c., l.l.c. to the question you had. there's -- there's no immediate need to address the egress issue on this side of the building for the ballet because we believe that the agreement that the appellant made with the ballet is binding or could be made binding if and when they deal with that with the ballet. it's not our -- we're not a party to that agreement. but we believe that a court would find it enforceable and do whatever's required to preserve that for the remainder of their lease, which is about five more years. i'm struck by the hypocrisy of the appellant saying it's our intent to close this ballet down. when they make that argument,

what they're doing is undermining the validity of the agreement that they made with the ballet, so you can't have it both ways. we will consider in five years what we're going to do with the ballet, but building an interior corridor is not before us. this is moorely addressing a ground floor tenant egress issue, and it strikes -- mereely addressing a ground floor tenant egress issue, and it strikes me as odd that there's anything else. >> you said the entities are two separate companies, so who applied for the permit because they mentioned that it was owner contractor. >> it was crossroads trading company, the ground floor tenant who's responsible for the costs. >> but when you -- so if you're a mentioned owner, that means owner of the building, correct? >> i'm sorry. say that again.

>> you mentioned that you wrote down that it was owner contractor dotion the work for the scope of the -- doing the work for the scope of the permit. >> you know, i don't have that in front of me, but i'm not sure that changes our position. >> but if you're saying that they're two separate entities, if the permit was taken out under the owner, so are they same or different? >> we treat them as different entities? >> okay so what's doing the -- who's doing the work as the owner of the building? >> no. it's crossroads trading company that's paid for it, paid the architect, and will manage and maintain the contractor. >> okay. thank you. >> mr. duffy, anything further? okay. so this matter's submitted, commissioners. >> mr. duffy, just to -- and i'm not asking for your legal opinion, but i'm thinking back to some similar situations that -- i think i recall that

for an exit to be legal on another property, i think you require an easement. >> that's correct. >> right? >> no -- okay. i'm going -- yes, you would need an easement. the city, if it was an existing easement, then, that would be something that the city attorney's office would not get involved with this. now, if you want to create a new easement then the city are actually involved in that, the city attorney's office, and i think somebody mentioned that john malamut deals with that. so there was about five or six years ago they brought in some changes where the city are definitely part of that easement. >> that also applies to opening through property lines and things like that, doesn't it? >> you mean communicating openings? >> yeah. >> yeah. we don't really see many

communicating openings anymore. >> so does that mean that this -- that the license -- the license is illegal? the whole premise of what we've heard is there is a license with the ballet school and the next-door neighbor, but if you're saying that you require an easement for an exit, then it doesn't matter if you have a license. the license was illegal, and the license was issued by one party or signed by the other party without knowing the full context of -- of the law. >> so i'm just going back. was there an easement before? >> apparently. >> there's no easement. >> there's no easement. >> we're hearing that there's no easement that's been filed and on record with the city, so i -- if there's no filing, there is no easement, and therefore, if there's no easement, then, it doesn't matter whether two people

they're going to license each other because they can't do it any way. it's illegal. >> if they came to us, we would take the advice of the city attorney's office and guide them towards an easement, but this has been in existence for many, many years, and unfortunately we have thousands of these instances throughout san francisco. it's just common because we've had new owners come in. it isn't the same way it used to be, and something that wasn't a problem becomes a problem, and they need to go and sort that out civilly, and the city's there to help them, as well. but what i'm being told today at my department is if it's a new easement, it needs to be ratified and the city attorney's office is involved in that. >> so -- so let's take it one step further. >> but just -- sorry. but that is not part of this

permit that's under appeal. >> i understand that. i just want to understand what's legal or not legal, get clarification. so if this permit goes through, what i see potentially happening is that somebody files an n.o.v. with yourself or with the fire department, at which point, there's no legal egress -- >> instrument, yeah. >> -- for the ballet. therefore, that space becomes unoccupiable, potentially, unless -- >> possibly. >> -- unless it's fixed, and so that would -- if that happens, then, that space is just void, and whomever's up there, the ballet or it could be anybody, it's an -- unoccupiable. >> let's be sure. it's occupiable up to the occupant limits for one exit. >> for one exit.

>> okay. >> which would not be for what its current use is. so if that use were to continue, and the owner of the building wanted that use and that load to be continued, then, they would have to be able to -- a quarter under a separate permit to allow that separate egress. that's the story. yeah. i just want to get that. >> just for clarity, for the permit before us, is that second means of egress a legal means of egress for fire safety? >> the new one? >> yeah -- well, the one that's existing on the other property? they mentioned -- >> that serves the second floor? >> i can't remember, that serves the -- yeah, that serves the second floor. >> i'm not sure, there's something about a stairs and -- corridor and no stairs. it swings out over the property. we don't know. >> sadly, different things told to different people. >> i think we're probably going

to get a complaint on it. it's going to get messy. that's the way i look at it, if they involve the ballet school at this point, and there's a possibility they'll be cited for violations, which could include use violations, exiting, a whole lot of things, but we haven't received that, so if that comes our way, we'll deal with it. >> thank you. >> may i ask a question of our city attorney, mr. russy. there's a lot of legalese going on here, and what is your take on this situation? >> you might need to ask a more specific question. i don't entirely understand what's going on with the property owners. >> it's just regarding a lot of legal term for prior stuff was -- was mentioned this evening, and what's before us is really only the corridor. and so -- >> no. >> no.

>> the second exit being added to the ground floor. >> right. >> i haven't heard anyone say that the permit itself that is being appealed right now is illegal. >> okay. >> or is not code compliant, and that's the question. >> yeah. >> okay. so commissioners, this matter's submitted. >> okay. commissioners? >> so i feel like we've been talking about two completely separate matters. >> we always do. >> which happens regularly here. >> okay. i'd like to get back to the matter at hand, which i don't think has anything to do with these other issues, and i'm not going to be responsible -- or i guess i might be responsible for what happens to the ballet school, but that's not before us. >> well, what's before us is the second exit, but is it an exit if there's no easement? >> for this property, right -- not for the -- >> for the ground floor only. >> yeah.

for the ground floor only, it is a legal -- it seems to be a legal exit for the ground floor only. >> okay. >> and what is -- what is trying to be thrown at us, i think -- >> is the second floor -- >> -- is another condition in the building that is illegal, and that would be another day's discussion. >> yep, i agree. i guess it now. sorry -- i get it now. sorry. >> do you have a motion? >> yeah. i'm here to deny the appeal and uphold the permit on the basis that it was properly issued. >> okay. we have a motion to deny the appeal and uphold the permit on the basis that it was properly issued. on that motion --

>> attorney, mr. patterson. >> okay. welcome back to the september 26, 2018 meeting of the board of appeals. we are now moving onto item number seven. this is appeal number 18-092, mel lee versus building department with planning commission disapproval.

to comply with n.o.v. 201786481 proposing to legalize the prior removal of 17 residential care units within a residential care facility, including nine for conversion to two dwelling units, four for conversion to larger space and for four conversion into larger care space. we will hear from the appellants. >> and prior to starting, i will disclose that we did a noticed duly noticed site visit, along with my director, along with representatives from the planning and the building department, inspector -- senior inspector joe duffy, zoning administrator scott sanchez, accompanying with the attorneys for the permit holder as well as the property sponsor and their manager. >> okay and just for clarity for the record, it was just commissioner honda. the other commissioners did not

attend the site visit, so we will now hear from the appellant. >> hi. good evening, president fung, and the respectful members of the review board, my name is teresa wong and i'm the owner and administrator of the avenue and assisted living facility for seniors, which is located on vanness and geary. we built this facility from ground up on a lot which was vacant for 40 years before me. so we opened in 2004, with a lot of hardship, but eventually, we opened with 124 studio apartments or studio units. and i involved in the management in 2005 because it

was managed by somebody else. it was really messed up, so i have to involve. and i live on-site since 2005 in a one unit. i use the other separate unit to put my personal belongings, and in 2006 or '07, we -- i start to notice that there is a huge need for one bedroom unit when couples, they need one bedroom, or even for single seniors, they always wanted privacy, not just a studio unit. so i convert four -- i mean, combine two adjacent units into one bedroom unit with two bathrooms, 'cause each unit consists of one bathroom any way, so we have four one-bedroom units. and also, on one floor for