they had many continuances, they weren't able to get to a resolution in the materials submitted by the project sponsor, they said they weren't able to get a clear answer from the appellant of what was desired or wanted. and i'm available for any questions. thank you. >> vice president swig: so just a macroquestion, but it's tied to the situation of this case. in the case where a house was built 100 years ago, just pick a number, and when an area might be farm land, there wasn't the urban in-fill that existed today, and then, the urban in-fill occurred, and still, in this situation where there's a cottage in the back

or another building that was built in the back. 100 years ago, who was worrying about access to the street? you are more worried about the cows that might attack you while you were interrupting their feed. but what happens in situations -- what's your experience in situations like this where the -- there's a very historic precedent of a residence behind another residence and things like lot lines may not have even been in existence, and then suddenly, they are, and then, suddenly, you know, 100 years passes, and 40 years passes, and as this -- the appellant has owned the house for 40 years. and then suddenly, it actually matters. how have you dealt with these

things historically in and i'm sure this is not the first time. >> first, it would be a question if there's actually an easement. in the 100 or so years that this has been going on, was there ever an easement actually developed in you know, at the end of the day when i was to develop my -- when i want to develop my property, you have to figure it out on your own. so that's one possibility. so another possibility, there's been an offer but they haven't been able to reach an groemt. it sounds like the lawsuit was filed yesterday. this has been going on quite sometime. i think the lawsuit could have been filed any other day other

than the day before the hearing. maybe we would have had a resolution if they filed their lawsuit two-plus years ago. when this project was first moving forward, it would have been great to get a resolution from the courts. but now, we're here to try to resolve this, and it looks like there's an offer on the table. i think this is a more appropriate item for the department of public inspection, so i would toss it over. >> vice president swig: i'm going to toss the appellant a softball, and i plan to ask the appellant when it became clear that these issues were in place, why didn't he file something then? what i'm kind of interpreting from your answer is that the property owner really got a free pass for 40 years, and

there was always an owner of that property that was next to them, and yeah, there was no issue of having a trail there, and -- but then suddenly, the free pass ended when -- when the land changed hands and then real life kicked in? >> yeah. that seems to be from the information presented. there's no evidence there was ever an easement recorded. if it really was an argument over a prescriptive easement, why wasn't that claim brought sooner rather than yesterday. >> vice president swig: yeah. i understand thank you very much. >> clerk: thank you. we'll now hear from the department of building inspection. >> commissioners, joe duffy. d.b.i. the permit to erect three

stories, no basement, type a family building was issued on d.b.i. on the 16 of january 2019, suspended by d.b.i. pending the appeal on the 30 of january 2019. it's been through quite a lot of city departments, as you know. fire department, planning, d.p.w., p.u.c. it went back and forth a couple of times to different agencies. from what i see, it looks like it's a properly issued site permit. there would be an addenda process as we know to bring in the structural drawings, architectural and technical, interesting, plumbing permits, and i did hear the comments about the easements, and i think the city attorney, brad's comments were relevant in that,

you know, generally, a recorded easement would need to be shown to d.b.i. if there was one. i don't think there was one in place as you've heard. it's unfortunate, we deal with these situations a lot, where for many, many years, something's existed. i've dealt with it just in general for complaints where someone's been using a gate for a long time. the recorded easement and that process is generally -- we would refer that could civil. it is a civil issue. my understanding today, if there is going to be an easement, the city then are party to that easement, as well. they've sort of cleaned up the process with the city attorney's office. that easement has to go to the city attorney's office because we're a party to it, but that

wasn't always the case. i just thought i'd mention it because it's a process, and i spoke to people in the county storn's office regarding new easements. that wouldn't apply here unless they agree to a new easement, and we would then be a party on the new easement. i think the engineering company, they probably do monitoring of the existing buildings on either side. that's always a good idea. i didn't hear that mentioned. i would hem that. i think they -- recommend that. i think they do that any way, but that would alleviate any concerns for adjacent buildings for movement, the monitor during the construction. other than that, i'm available

for questions. >> vice president swig: so mr. duffy, are you saying that i offer which has been made by the permit holder to the neighbor is a pretty good offer because in your experience where there's no easement, there's no easement, and they have the right to build what they want to, especially if it's compliant? is that your point of view? >> i would agree with that. i've seen this happen many times. if you think you've got to go to the courts, that's what 400 macallister is for. >> vice president swig: and

secondarily, are you saying -- i want to get really clear on this, that with this benevolent offer, as i see it, that would allow what the appellant wants to have happen, there still is -- what are the odds of the city attorney going along with the permit holder's request to create an easement? is it going to be an immediate rubber stamp because it's viewed as a benevolent situation that would cure a problem or is there going to be an issue with that? >> i've personally never been involved with creating an easement with the city attorney's office. both parties agree they're probably going to review it to make sure the city aren't going

to be liable somewhere down the line. they're going to look at it for any issues that the city might be brought up on later. maybe i'm wrong on that one. >> vice president swig: so again, it's a -- you see this as an offer that does point have to be made under what you see. and second of all, that even though the offer's being made, it's not an automatic rubber stamp, but the chances are it's going to be done. >> yes. i saw comments to mr. pang, and what i did see was that mr. pang had reviewed these permits. and senior inspector mark wall brought up these issues.

it sounds like they were responded to, but again, the recorded easement is the issue that we don't have one. maybe that is why d.b.i. had to go ahead and approve it. had there been a property easement documentation provided, it may have -- then we probably would have maybe had more questions on that to make sure it was going to work. >> vice president swig: thank you very much for the constructions. t t >> commissioner tanner: i have just a few questions. it seemed like the proposed walkway would not comply with building code. i heard it as him saying there needs to be an open air egress for that back unit. is that accurate or what's being proposed by the project sponsor of the hallway, if you will, as the easement, is that meeting the building standard for egress for that cottage? >> the new corridor that's

going to be created? >> commissioner tanner: yeah, that corridor. >> i don't have the plans in front of me, but it would have to meet building codes before it's approved. even if it's a mistake on the plans, and the engineer can address that. it has to make code. we're not going to allow a new noncode compliant condition. we would never do that. >> commissioner tanner: if this case -- the easement's a civil matter, they've got to work it out, but they don't work it out. is that they could occupy it as a family? what ends up happening with that? >> it could potentially be an issue. and that's why the civil process will get to that point. they probably not going to --

probably going to have to do it on their property, and that can be very difficult and very expensive. many, many times a complaint will suddenly come into d.b.i., and it might be after this new building's built. someone could slam the door on the way out and say oh, d.b.i., you have a building behind this. >> commissioner tanner: thank you. >> clerk: thank you. is there any public comment on this item? okay. can you come forward on this, please? is there anybody else for public comment? okay. just one person. you have three minutes. >> thank you. you guys will have to bear with me. i just got back from the dentist, so if i stumble over my words. i come to you as a concerned citizen. i'm a friend of max and

elena's. all my life in san francisco, born and raised. i recently came to the understanding of the easement. as mr. swig over here said, this idea that our neighbors had a free pass for a while, and now we have a developer that is coming in, proposing many units, not just a 1058 texas unit, but many units in our neighborhood with the history of back and forth, i really just kind of want to make the point that in a city that is like ours that has an affordable housing crisis like it does now, it's very important that these situations, this back and forth

that we're having be resolved immediately. there are so many underpinning issues that come up between whether there was an easement or not. and i just want to make the statement if there is money in the game, then we should actually pay attention to what kind of -- who stands to gain anything. so for my neighbors over here, max and elena, i'd really very much like to state with the crisis that we have in our city with affordable housing, i think that it's very important for -- you have to excuse me for a second while i collect my thoughts. it's very important that -- we

really understand who kind of the little guy in the matter is and who has everything to gain and who has everything to lose. c.f. development has stepped in, say they want to develop this property, has stepped in and said that max and elena don't have an easement when they've been there for 40 years. that is not the case, and i think that they -- they do have a right to their property, especially if, in the back lot, this house has been here for 100 years. we should really take into consideration who has everything to lose and who has everything to gain. my neighbors have everything to lose, sia consulting has everything to gain. >> clerk: thank you. thank you. we will now hear from the appellant. >> president fung: i'm sorry. can we have one minute? >> clerk: sure.

>> clerk: welcome back to the march 6, 2019 board of appeals hearing. we are on item number 6-a, appeal 19-008, and we are on the rebuttal portion for the appellant, so if the appellant can come forward, please. you have three minutes. >> thank you. i want to address some misunderstanding and misconceptions. there a there is no benevolent offer on the table. my mother is -- we're not harassing these developers. my mother's now going to spend her savings to get her easement perfected. this is her retirement. we've been trying to negotiate with every developer all of this time, and now, we can't anymore. there definitely is no offer of

an easement because if there was, it would look like this. can we put that up. >> clerk: the overhead, please. >> the overhead, please, this was an open court egress. that was offered to us by the first developers until they realized it would cost them $400,000 to offer this to us. this is why they're not offering an easement because they would have to follow building and fire court and make it open air. section 1028.1 and section 103.0 makes it clear that the easement has to be open to the sky. there is no benevolent offer to us. they want an enclosed corridor which they cannot get if they were to actually give us the easement. they never did give us the easement, so this is an e-mail

from bauman after he got the -- after he got the hold lifted. in the e-mail, it says we will provide emergency access to the cottage on the rear of the property, and once construction begins, the at the point tents will not be able to -- tenants will not be able to use that access. in california, easements ripens when they've been used for five years. that pathway has been in service since 1905. they can sue us for quiet title if title change, but they won't, because they realize we have a privilege tiescriptive .

it's also something that the developers were extremely aware of when they purchased the property. they waited four months after their purchase to contact us. they knew very well about this e. a, so let's not -- easement, so let's not characterize them as victims of us. thank you. >> clerk: thank you. >> vice president swig: so the question i promised i would ask you, if this is also, why do you wait until the 11th hour on this on this hearing to go to court on this matter to perfect the easement? why didn't you go before now, because we wouldn't be sitting here at all -- and i'm not doubting you, sir. >> that's an excellent question, and the reason is

because it is so expensive to enforce your easement rights, and we have preferred to try to accomplish that through negotiations. negotiations brought down last week and because of this impending date, it's forced our hand and now we have to file a lawsuit. i should also say that the developers have always had the chance to file a lawsuit and quiet title and -- and challenge our easement claims this entire time, as well, and keep us from using their property. thank you. >> clerk: thank you. we will now hear from the permit holder. >> so i kind of agree with commissioner swig, and this was my thought. the project was filed to planning department in 2015. i'm sure neighborhood meetings was done before that filing of

that date. now we are two years later, you know, we are still in this position. they could have filed a claim back then to go through the superior court and resolve this, but that's not the case. every step of the way, there has been a continuance request. they have found a way to extend this property and hold this property, and we have -- you know, i'm saying this on the record, our easement offer is valid. we are willing to give an easement, but it needs to be regional. the rest of the term -- reasonable. the rest of the terms have to be reasonable. one other thing i wanted to mention is that any vacant lot in this town sitting for 100 years is always used by -- by

the neighborhood, whether people going through it, whether people put their gar g badge cans on it, park -garbag cans on it, park their cars on it. mr. myers and his mom have plenty of opportunity for access to their house. it's not a project that requires extensive retaining walls. they have -- with minor excavation, i know it's going to cost money, but if they don't want to go through their lot, they can provide access to their house in the back. again i'm asking for you to allow the permit -- uphold the permit and allow this project to go forward. >> vice president swig: so on

your plans, i see a door on the front of the house that's adjacent to the appellant's house. i see a passage way that goes the length of the house, connects to stairs. is that your prescription for an easement that will allow access from their -- >> that's right. >> vice president swig: okay. so then i also -- and this is where we -- we are at a handicap, and i acknowledged my handicap at the beginning hearing, so this is not new news. it would seem to me without a legal person in this area, that that is a good exclusion. that a semi exclusive or an intended passage way that would be available to them 24 hours a day with a buzzer and everything would be a perfect solution to this.

however, then, the appellant puts up on the screen -- now, this can't happen. it has to be open air, and here is the -- you know, here's the situation. so the risk that we have here, and i have to turn to my city attorney yet again, or maybe he doesn't have the answer is if, indeed, we go in this direction, and we say well, it looks like a passage way, looks like an access that's reasonable to solve the situation, and then, we find out -- and we approve that, and we find out, lo and behold, and the appellant is correct, and you have to have an open aired court that -- it's really clear that separates the building, what happens -- what happens then? >> unfortunately, i can't answer that question today. that was the first time i've seen that code provision

myself. i don't know if the building department has any opinion on that. you can probably ask inspector duffy when he comes up. >> vice president swig: then let me turn to you as the developer who needs to answer this question. have you researched that claim from the appellant, and what is your interpretation of that little paragraph the appellant put up about the open air thing? i like your resolution. i think it's a fair resolution, and if it can be clarified in writing that it's exclusive or semi exclusive and can never be obstructed for that right, that's a fine solution for me, but we also can't authorize something that's against the law. what's your opinion on that? >> having been in this city for the last 30 years, i have done

dozens of projects that have exits to adjacent lots. we have one right now project on 24th street that is exactly the same thing. we have a house in the front and building in the back and we provide access. building code changes every three years. if approximate -- if this thing drags on, and the building code changes or interpretations of the code change, that's beyond my approval, but i -- based on my experience and the permit that we have -- similar permit in the -- if the easement is granted, it could be done. >> vice president swig: and again, you're hearing me, i think it's logical.

but the other peace of logical real life that doesn't work for me and with that logic, is that easement or that passage way that you are proposing turns into a construction zone for about 18 months to two years. >> right. >> vice president swig: and so what do we do about getting those residents down that easement that you're going to benevolently authorize and work on in that 1.5 or two-year period? >> yeah. we also own the two lots behind this lot fronting texas street that they mentioned. i'm proud to propose a home-sf with affordable housing on that site. that progressicess is going to5 years to get a permit. we have offered to build a code complaint set of stairs that --

compliant set of stairs that provides their tenant to the texas street. that's another offer that we have made. >> vice president swig: thank you. >> commissioner tanner: and proposed adding monitoring perhaps of the adjacent buildings. seems like you worked out with the appellant who withdrew some monitoring and work to underpin it. do you have a similar proposal for the subject appellant? >> every job, we have monitoring. we don't -- we don't put a shovel on any lot without doing this monitoring whether the neighbors want it or not. >> commissioner tanner: thank you. >> clerk: thank you. is there anything further mr. sanchez or mr. duffy? >> joe duffy, d.b.i. again. just in reviewing the plans and

the brief with the section 1028 and section 1030, i mean, the language in the code would say that you can't come out of, you know, 1060 mississippi and go into 1058 and then go underneath that building. but that -- that passage way that's on there is not the easement. it's not -- it's part of the approval at 1060 mississippi. if it becomes part of the easement. that will need to be presented to d.b.i. for code compliance. it could be an issue, but what i would suggest, they do a preapplication meeting and try to get some alternative from d.b.i. to approve it if it's not fully code compliant to maybe sprinklering it. it's an issue, but i think it's a workable issue in relation to

the code. there's always -- and commissioner fung would know this that d.b.i. does have the flix -- we also have -- have the application. we also have some other mitigating -- because the code does say you shall not enter a building that's not open to the sky. these plans that i'm looking at that were in the brief, the east isn't there. this is just a passage way. >> president fung: okay. it could be the easement. >> it could be the easement. now, what the appellant said, it's not going to make code, i'd have to agree with them, but they'd have to offer

something other than section 1028 but that's in the building code. >> vice president swig: should we -- thanks very much for that enlightenment and that suggestion. should that process continue about of we say "ayea or nay tonight or should we continue it until pe know what we want to achieve? >> this is going that's on these drawings here for a reason. i can't say to hold it any longer it's going to benefit anybody. if this thing goes -- if we've now got a lawsuit -- i don't know that as couple of weeks is going to help. >> president fung: well, this is the second means of egress. >> so it's only a two story building with accessory

dwelling units. you could go into the rear y d yard, but it's only two stories and three units. if you put sprinklers in somewhere where because it's not just open to the sky, but you've got all sorts of egress -- panic hardware, there's all sorts of things that mitigate the actual strict reading of the coat that you can give us sng something that meets the code. otherwise, as i just told the appellant, if it this can't be code compliant, then they have to do it through their building. that's the condition that commissioner tanner brought up, like the developer says, we're not doing this, where does that

leave these people that own this property? and i sympathize with them very much. >> vice president swig: as a final follow up question, this was what i was going to ask. is it code compliant? yes, we could ask this, but we really want to take into consideration the appellant's position, and maybe we can save them money if we do it correct. how do we get this then resolved so that in any motion tonight that would approve this -- these plans that what you just suggested, the plannic -- the panic hardware, the fire sprinklers, all that stuff is really put in there so the developer can't say -- not

that they ever would -- never mind? >> i don't know. i really think that it's more than what i would be up here for. it all sounds good, but how do we make them do it? suggestion? but that's not enough on a decision. i would just say to the developer, as well. one thing, i didn't state it earlier. we had some conversation with the developers, and i see this pretty good on the developers, as well. these people have been there a long time. you're the visitor for a while. you know, do everything right, all the things that need to be done. this just needs to get figured out, obviously but i don't know how to make it happen. >> commissioner tanner: just to make it clear, you're suggesting that the developer would meet with d.b.i. in a preapplication meeting to make sure how this egress would be compliant in terms of serving -- this hallway, which

is in their building would be able to serve as an egress for the rear cottage and make sure that's compliant. that's something the developer would work out with d.b.i., how does it meet this code with alternate means? >> yeah. that's what i spoke about this, as well. this would need to come into d.b.i. with the easement agreement and the city attorney's office involved. it's a good point. i'm glad the appellant brought it up. >> president fung: if you had an egress across the property line, don't you have to be four hours? >> i believe this is an open yard at the back. there's a step going down there. yeah, you talk about a communicating open, i think that's whatter -- opening, i think that's what you're talking about. i think this is in between the

front and back building is where it is. >> clerk: okay. thank you. okay. commissioners, this matter's submitted. >> commissioner lazarus: so going back to the beginning, my understanding is that short of a legal decision that there is an easement, it's not an issue relevant to this permit. there might be a moral obligation to provide something, but there's no legal obligation. i want to assess this as to whether it's code compliant, and in my opinion, it is. >> vice president swig: so i agree with you. however, there's some other circumstances that have presented themselves here that i think the appellant and the project sponsor have to consider. the project sponsor has made it very clear that they would be

willing to clear a -- to the best of their ability a legal easement that would satisfy the problem of getting the folks from the back cottage to the front and they would like to work on that. and even the issue related to the construction, they said we will -- i'm hoping i heard this correctly, to the best of our ability knowing that we have the access to the neighboring properties. i' i'll waive for them during the construction property to get to where they need to be. then, on the other side, you have the appellant who says well, you know, we're going to take a risk here, and oh, by the way. the project sponsor doesn't have to do this, and we can say

code compliant. if we do that, the appellant's not going to give up. they're going to continue to try to put a lis pendens on your property, they're going to try to keep you in court as long as they possibly can. regardless of that, they're going to cost you a lot of money and a lot of time even if they lose. i agree that we could very easily do what you're advocating. it passes muster, let's go, but it doesn't solve anything because you're going to have a problem, mr. developer, and you're going to spend a lot of money creating a problem for him, and i would prefer that that's something that you and the actual developer don't have to spend. that being said, i'd like to give them a really short leash to work it out. short leash would be, like, by our next meeting, which is two weeks, and they don't work it

out, here's what's probably going to happen. we're going to come back here, we're going to do exactly kwwh commissioner lazarus is saying. owner, you're going to be spending a lot of money, and appellant, you're going to be losing something. i would like to continue this to the very, very next meeting to see if they can work it out. if not, i'll support commissioner lazarus. >> president fung: i don't necessarily disagree with that approach, but i do need to say one point to your summary. i'm not sure that they can give a code compliant egress. not per these plans, okay? so i think that's a -- that's the primary issue that has created an impasse between the two. >> vice president swig: and i think within that two weeks,

then -- >> clerk: three weeks. >> vice president swig: within that three weeks, which is a good period of time, they can go and have consultation with mr. duffy and mr. duffy can provide them counsel -- if not, we're going to be back here, we're going to follow what commissioner lazarus says, and say i do, and it's going to be a rough one for both parties. i'm sorry. any other commissioner comments? motion to continue this until the very next meeting so that the appellant and the project sponsor can work on the key issues to see if you can create a resolution to those issues. >> clerk: okay. and do you want them to submit plans in advance with approval

of d.b.i.? >> president fung: they're not going to have enough time. >> vice president swig: there's not going to have enough time. if they can come back and show that they have a written agreement and outline, i think that's fine for me because they will have done some research with d.b.i. already. >> clerk: okay. so we have a motion from vice president swing to continue this matter to march 27 to the appellant and property owner can try to reach a resolution on this issue. on that motion -- [roll call] >> clerk: so that motion carries, and we'll see you on march 27. thank you. this concludes the hearing. >> president fung: i think this meeting is adjourned. [gavel]

. >> i love that i was in four plus years a a rent control tenant, and it might be normal because the tenant will -- for the longest, i was applying for b.m.r. rental, but i would be in the lottery and never be like 307 or 310. i pretty much had kind of given up on that, and had to leave san francisco. i found out about the san francisco mayor's office of housing about two or three years ago, and i originally did home counseling with someone, but then, my certificate expired, and one of my friends

jamie, she was actually interested in purchasing a unit. i told her about the housing program, the mayor's office, and i told her hey, you've got to do the six hour counseling and the 12 hour training. she said no, i want you to go with me. and then, the very next day that i went to the session, i notice this unit at 616 harrison became available, b.m.i. i was like wow, this could potentially work. housing purchases through the b.m.r. program with the sf mayor's office of housing, they are all lotteries, and for this one, i did win the lottery. there were three people that applied, and they pulled my number first. i won, despite the luck i'd had with the program in the last couple years. things are finally breaking my way. when i first saw the unit, even though i knew it was less than ideal conditions, and it was

very junky, i could see what this place could be. it's slowly beginning to feel like home. i can definitely -- you know, once i got it painted and slowly getting my custom furniture to fit this unit because it's a specialized unit, and all the units are microinterms of being very small. this unit in terms of adaptive, in terms of having a murphy bed, using the walls and ceiling, getting as much space as i can. it's slowly becoming home for me. it is great that san francisco has this program to address, let's say, the housing crisis that exists here in the bay area. it will slowly become home, and i am appreciative that it is a bright spot in an otherwise

>> they tend to come up here and drive right up to the vehicle and in and out of their car and into the victim's vehicle, i would say from 10-15 seconds is all it takes to break into a car and they're gone. yeah, we get a lot of break-ins in the area. we try to -- >> i just want to say goodbye. thank you. >> sometimes that's all it takes. >> i never leave anything in my car. >> we let them know there's been a lot of vehicle break-ins in this area specifically, they target this area, rental cars or

vehicles with visible items. >> this is just warning about vehicle break-ins. take a look at it. >> if we can get them to take it with them, take it out of the cars, it helps.