>> good evening. welcome to the february 5, 2020 meeting of the san francisco board of appeals. president ann lazarus will be the presiding officer, vice president honda, commissioners tanner and santacana. at the controls this is the board legal process clerk, and the board's intern. i'm julie rosenberg, the board's executive director. we will also be joined by represents from the city departments that have cases before the board this evening. scott sanchez, deputy administrator, representing the planning department. joseph duffy, representing the

building of inspection. the board meeting lines in are as follows. the board request that you silence all phones or electronic devicings so they will not disturb the proceedings. appellants, permit-holder and respondents are given three minutes. members of the public who are not affiliated with the party have up to three minutes to address the board and no rebuttal. please speak into the microphone. you are asked, but not required to submit a speaker card when you come up to speak. speaker cards are available on the left side of the podium. the board reserves the right not to call an item after 10 p.m. if you have a question, speak to board staff during a break or

after the meeting. or call the board office. this will be rebroadcast friday. now we will swear and affirm all those who intend to testify. please note, any member of the public may speak. if you intend to testify at any of the proceedings tonight and wish to have the board give your testimony weight, please stand if you're able, raise your right hand and say i do after you've been sworn in or affirmed. anybody who is going to testify, please rise. do you swear or affirm that the testimony you are about to give is the truth, whole truth and nothing but the truth. thank you, please seated. we have one housekeeping item. item 5 has been withdrawn. andrew lee versus the zoning administrator, 1333 taraval street. that item will not be heard. we're moving to item one,

general public comment. this is an opportunity for anyone who wants to speak on a matter. is there anyone here for general public comment? no? okay. we'll move on to item number 2. commissioner comments and questions. we will move on to item number 3, before you discussion, adoption of the minutes of january 29, 2020. sorry, i have a cold. let me have a little water. >> while she's choking, any deletions or changes to the minutes? >> motion to adopt. >> clerk: okay. thank you. we have a motion from commissioner swig to adopt the

minutes from january 29, 2020. on that motion, santacana yes, lazarus aye. tanner aye. the minutes are adopted. thank you. we'll move on to item number 4. this is appeal number 19-133. tom johnson versus san francisco public works bureau of urban forestry. appealing the issuance of november 15, 2019, sylvie dhaussy, the tree removal order. it causes issues because the trees require annual pruning and grow back quickly, hitting the facade and roof. the sidewalk is too narrow to allow any replacement trees to be planted. this is order number 202245. we'll hear from mr. johnson first. you have seven minutes, sir.

>> good evening. i want to thank you for your time and attention. and i appreciate being here. i am -- my name is tom johnson. i'm a homeowner at 5407 diamond heights. this is where the trees are locate thad are in question. my purpose here tonight is to keep our trees that have been part of our building structure since 1971 when it was built. i have been a homeowner there since 1985. so 35 years. i can only assume that the trees were originally planted in 1971. so basically trees have been part of our building for 50 years. in 2002, the original tree branches began to crack the sidewalk. we voted to remove the trees and plant new ones. so 18 years ago we planted these trees that are in question.

the supposition is they're ill suited for the space and would cause problems in the future. i say let's wait and see if problems arise in the future and not be premature cutting down two healthy trees according to urban forest. it was 35 years before the first trees caused a problem. my request is not to chop down healthy trees. here are the reasons not to remove the trees. the boulevard is a busy street with fossil fuel pollutants by vehicles creating carbon dioxide which is poisonous. our trees help absorb this krod carbon dioxide from the air so they're environmentally sound. i know all of you are environmentalists if you're in san francisco, right? [laughter] and this is in sync

with the plan to not remove trees. i've been advised not to get into the weeds with homeowners, but this is something that is germane to this whole complaint. there is one woman's complaint about the trees. she has lived here for 20 years. the trees are okay for 20 years. then in august, 2019, she said they were breaking -- blocking sunlight in her unit and causing dry rot on her windowsill. her complaint in august, preceding the complaint, the trees were pruned back from the door to remove safety concerns. this precaution was taken before the august 26th hearing where it was stated at this hearing that the trees are a safety hazard. presiding officer at the time even remarked, what is the

safety hazard? this was a false statement that was made that claimed that the trees were a safety threat when they had already been cleared by six feet from the door. her other allegation about sunlight was removed by pruning the trees back and taking care of the dry rot, which the whole building had dry rot for 20 years. so it's not just a window sill. i asked her on november 22nd if she was okay with the trees. >> overhead, please. >> so i know it's hard to see that, but this is her answer to me, that the trees are okay the way they were pruned. the homeowner on the other side of the building said that the trees were okay for him, too. and that's an e-mail from him

saying he doesn't want the trees removed. i apologize -- i can't find it. but it's an e-mail from the other homeowner saying he doesn't want the trees removed. i apologize. the homeowner -- it all comes down to one woman's desire to impose her will on my wife and i. she dropped this letter at my door suggesting that we move. this is definitely dropped by somebody in the building because you can see there is no address on this letter. so this is the start of trying to get us to move. we were called by this woman, saying it would be too expensive for us to live there and they

raised our dues $70 a month to prove the point. the complaining -- they also complained my home office was run as a business and so i had to -- which it isn't. it's not a nail salon or anything like that. so i had to go and get another address, which was costly to me to do that. what i'm getting at here, there is a pattern of harassment to me and other homeowners. there was another homeowner that submitted a complaint to the city regarding this woman. the city and county. so it's not just me that doesn't get along with this woman. the previous owner of unit number 2 moved, partly because she couldn't get along with this woman. if you have any questions about that, you can contact her, but that was one of the reasons she moved. the other thing that is

affecting the whole building is this is a picture of the trees. and on the far right-hand side, you can see there is another tree, a smaller tree. i woke up one morning and this number one unit was out there with a chain saw cutting the tree down. it was not voted on, approved. it was done unilaterally. so i think what i have -- what is going on is a pattern of harassment to me and my wife. and i would ask you to keep these trees because they bring so much enjoyment to us. we love them. we're tree-huggers if you will. we want to keep the trees as they are and as they've been for 50 years. so thank you very much for your attention. >> commissioner honda: i've got a question. considering diamond heights is unique to san francisco being

that it was formed in the late 60s, 70s, the bulk of the buildings were done in mid 70s, right? is your property, besides h.o.a., is it a p.u.d.? >> i don't understand. >> a lot of properties are pud. planned unit development. >> i'm not aware of that. >> commissioner honda: that's a question i'll ask the department. and also, did you -- when the other person was cutting the tree, did you file a complaint with the city? >> i did not. i should have. >> commissioner honda: you still can. thank you. >> we'll now hear from the determination holder. good evening, welcome.

can we share the microphone? >> why don't you take turns and lower actually. >> this is our president of the -- >> you'll have to speak into the mic. >> she's the president of the h.o.a. >> what is your name? >> sylvie dhaussy. >> i have it, never mind, please go ahead. >> so first of all, tom johnson is focusing on me, which you know, we had a vote regarding removing those trees. and actually i did show you in the response that we all agreed, including the neighbor on the other side who said if the city feels like they need to come down due to other safety hazard kilometres per hour, that is a -- hazard concerns, that is a different conversation. they would like to keep the trees, but there is no space.

also, he said i was okay with the trees, he just cut them. but i said i would prefer if it was removed. regarding the bushes on the side of the street, we agreed to have them cut down because the garage next to it, unit number 6, the owner when he was coming out of the garage could not see the traffic coming. so we reduced the height of the bushes. what else? go ahead. >> good evening and thank you for listening to us. my name is alice, i'm h.o.a. president of 5407 diamond heights boulevard. i think you have all the papers of the response to the appeal. to make a long story short, i believe when the oldest

buildings have been built, for the pud, the first development, they were not -- there were no trees planted in front of any buildings. if you go down diamond heights boulevard, you won't see any trees in front of any buildings probably for the same reason that mr. mark stated in his ledger, there is not enough space for the trees in front of this building. there is enough green. there is park nearby and canyon. and i don't think this -- the trees in front of our building add much to the environment right now. but they do damage the building. yes, we're taking care of dry rot and it happens every decade. 20 years like mr. johnson said. and, yes, growing trees are contributing to having a dry

rot, so it's a big expense for us as well. in terms of the tree, but it's not a tree that mr. johnson mentioned, it's a bush on the other side, the south side of the building. and it's never been -- it started to grow with the rains last year and we made a decision to cut it shorter. we didn't destroy it. we trimmed it. and we also have been trimming it for many, many years. and one of our homeowners needed that to be -- to have clear access driving out of his garage space. i don't think the harassment case is actually having place here. it just is regular relationship between homeowners. some of them agree and some of them do not agree. and we had a vote for majority of four people have voted for -- what is english?

concurring with the city into removal of those trees. i think it has been initially done wrong 50 years ago. thank you very much. >> i would like to add that i never threatened him. i don't know where that note came from. i saw the envelope said vanguard. i have no idea who it is. i don't care if he's in the building or not, as long as he doesn't create problems for the other homeowners. >> do you have any questions for us? >> i do have a question. other than the dry rot, are there any other safety concerns with the trees? >> well, actually, when they were planted 12 years ago, to replace the older ones that we were told we should remove by the city, the woman named kerry derky, one of the homeowners

said he was going to plant dwarf trees there. we said, okay. but it didn't turn out to be dwarf trees. they grow and they completely, as you saw in the pictures in the back, they completely block unit number 1. >> so the problem is that the view of the window are blocked, that is a safety concern or the esthetic. >> the light, there is no view. there is no light. >> is there any other safety concern? >> if i open the window, the branches were coming inside. >> those are the issues, thank you. >> i cannot do that. so when the trees started to grow and it turned out they were not dwarf trees as we expected, the branches were starting, you know, from the bottom of the tree. and half of the tree was blocking, the growing branch were blocking the visibility

when you come into the building. and there was a police officer who recommended us to trim all the lower branches from the building -- from the trees, which we did. so now there is a clear visibility, but since the trees are growing wildly, it becomes a hazard to -- >> -- concern -- >> will catch fire, how sylvie and other neighbors who live will escape. >> thank you. great, thank you. >> ma'am, with the scarf. if you could fill out? thank you. we'll now hear from the department. >> welcome, mr. buck. >> yes, good evening commissioners.

chris buck with san francisco public works bureau of urban forestry. we'll look at the power point, if you go to the computer. it provides context. we can go through images of the site. if we can go to the screen. thank you. so this case before you, we originally received an inquiry from property owners within the building to just get our sense on the trees themselves. and so it's a typical process where the public would say, these are street trees in the public right-of-way, what do you think of these, would you approve them for removal? we're looking at the worst first and large trees and large volumes and quantities. so our initial staff decision was to deny the request to remove the two trees because they relatively speaking, compared to what we're used to managing, they're not nearly as large as what we're focused on right now. so we told sylvie and other

folks there that we would not typically approve the removal of these trees at this point in time, but if they wish pursue removal on their own, then property owners can submit an application and pursue it on their own. if approved, they would be responsible for moving the trees. that's how we got to this point. our initial review again, was some degree, there was a little bit of a sense of we wish these trees were on private property, because it's a unique setting. as the commissioner honda said, diamond heights is challenging. i'm think being amethyst, gold mine drive, those two neighborhoods. the land use there is really narrow sidewalks and a lot of the landscaping that exists is on the back of the sidewalk, kind of tucked in among the buildings. variation in the architecture, so some homes that variation between the buildings, there is

a little more space to have trees or plants. something a little bit more than just small ground cover. with that said, i just wanted to point out some of the images that we have. this shows the trees as they were earlier in the year. and here's a side view. the challenge that we have at the department and the reason why once this went all the way to the departmental hearing, why we essentially reversed course, where at the staff level we approved, but the departmental -- sorry, staff level we denied and here at the departmental level we're saying removal is reasonable. i had an inspection group on what do we anticipate our position being board of appeals. would we not look and say is this enough room for street trees? the answer is really no. i'm showing the photos. i have a diagram. this photo is provided by one of

the respondents. it's a challenging limited space site. when we look at the order that regulates the planting of street trees, this is a good resource for us, because nowhere does it show placed tree, or tree basin with a back up to the building. that is something we never typically do on our own. that is a guiding principle. we don't even have a detail for when we would plant the back of sidewalk up against a building. we have enough problem with trees and upsetting people when they're at the curb, let alone up against a building. if you look at google over the last 10 years or so, there has been a lot of work to get these cypress trees established on the

site. i'm sure this is what the police were referring to, not necessarily the safest. interesting, because it's a little entry way. it's neat, but from a public safety standpoint, might not be all that welcoming. there is also awnings or eaves above the site as well, so really what i wanted to bring your attention to was the really limited space that we have here. we need a four-foot path of travel for pedestrians. and that's really located along the curb, so we can't shift the site and try to place these trees at the curb. and so one thing i'm sort of obvious thing that i want to put out there, and unfortunately, i did not have enough time prior to the hearing to reach out to both parties. i'm going to float this evening that one compromise would be removal, but where i'd be willing to try to broker some sort of an agreement between both parties on what form of landscaping or even smallish

tree could we all jointly agree to, that it's not just a knee-high or waist-high shrub, but something a little more ornamental, that is not going to get public works into trouble long-term. i feel that the trees are young and small but we're already having problems, right, with the management of these trees. so think of it as almost like zoning. someone is trying to put a really tall building in an area that is not zoned for trees. that's the situation where we are. again, idea world, not that i'm looking to shirk responsibility, but this is -- it's a difficult case. it's important to both parties. but we're not in the business of planting trees, street trees that are going to be an asset long-term so close to the building. i think that's mostly what i wanted to cover. there is not a lot of options that are tree-like. but there are some that might get a little bit taller, but not

dominate the facade. and that's what we're concerned about. realistically, we were hoping to punt on this. we said this is not really a big issue for us, let's move along here. understandably, folks in the building are, no, no, we want to press the issue now. so one concern i have is the trees have been pruned since these photos were taken by our own tree crew, but we're looking at annual pruning. so even if one of the homeowners wanted to prune these on their own every year to keep them away from the building, we're just looking at a conflict here for the rest of the time these trees are there. they're going to eventually damage the sidewalk from the tree root system. so it's difficult, but we need to say no to trees here long-term. i would be willing, if both parties are willing, to try to review -- [bell ringing] landscaping material to come up

with a compromise. >> what is your sense that these trees have contributed to dry rot in the building? >> dry rot, i don't know a lot about dry rot, but generally what i say to folks, look around the rest of the city. there is planting and landscaping all up against buildings all the time. and people seem to be managing. so i don't feel like that -- there is fog, there is up on the hill, you know. we've got plenty of moisture here year round, but i'm not an expert on dry rot. to be fair, when you look at all the vegetation that is everywhere in san francisco on the shady sides of the street, on the sunny side, unfortunately, i don't think that is something we can -- they can point to here. >> commissioner honda: mr. buck, so having grown up in diamond heights when the houses were built and playing when they were being built. all those streets, gold mine, amethyst, amber, all have similar sidewalks and there is

all trees in that whole community. are you saying that all those trees have a right to be taken down at this point? >> no, a lot of the landscaping that exists is set back. and is not in the public right-of-way. they're not traditional -- >> commissioner honda: so most of the streets, like amethyst are on the sidewalk, in the front and they're in a small box that is no more than 2 foot by 2 foot and in the public right-of-way. >> the trees that are in the sidewalks, basins toward the curb, many of those are not allowed to be replanted. over the last 10 years or 10, 15 years since i've been here, it's hit-and-miss. there is a few sites where we removed a larger tree, there will be room, but more often than not, they've been too narrow to replant. so largely over the last 15 years, they're essentially getting phased out with owners putting landscaping in their

setback areas. >> commissioner honda: at one point or another diamond heights will be treeless. >> street trees, along the curb, yes. >> thank you. any public comment on the item? okay, seeing none, we'll move on to rebuttal. mr. johnson, you have three minutes. >> thank you. i feel a little ganged up going against urban forestry, but i want to state this has not been a problem for 50 years, we've had these trees. and now all of a sudden, in august 2019, we want the tree removed. it's been stated a couple of times it's a safety issue. and that has been resolved. you can see there is clearance there getting in the door. nobody is hiding in the bushes. that's not a safety issue right now. there is a letter that came to me from the urban forest people that said safety is not an issue.

and i've got a copy of that, too. one of the urban forest people told me -- i had many meetings with them and the board of appeals and even supervisor mandelman got involved -- one of them told me, he said, tom, if this wasn't a complaint, it never would have been on our radar. we never would have looked at these trees. they've been there. they've been pruned every single year and the pruning has been effective. it's not been a problem until august 2019. and you can see now that the trees are moved from the house, they're not touching the condo. they're not a problem now. nothing we can't take care of. i think we owe it to the trees and to the birds to keep them. and for the sake of ourselves, our sanity, and enjoying the trees. so i hope that we get to keep our trees because they've been there for 50 years. thank you. >> thank you.

>> thank you. >> you have three minutes. time for rebuttal. >> i just want to say that those trees have not been there for 50 years. they have been trees since mr. johnson moved in, but not the same ones. and, yes, we do have to prune them every year. and that is getting costly. and some members wanted to have them removed completely because that is a high cost to maintain them. >> thank you. i would like to add that, you know, every 25 years, we learn new things about how to deal with environment, how to deal with landscape, how to deal with buildings and new codes are coming in.

and we're understanding differently than 50 years ago. i would agree with mr. buck that we need to think about something which will have a good curb apeople, but if those -- appeal, but if those trees are a public safety hazard, we'll need to think outside of the box and find what would be presenting building well and keep everyone happy. thank you. things change. we have to accept it. thank you. >> one question, since you're the president of the h.o.a., just to be clear, the h.o.a. voted on it and they did vote to remove the trees? >> yeah. >> commissioner honda: thank you. >> since we have a few minutes, i just want to assure you, there are plenty of trees in diamond heights. now they're putting national assembly -- them in the middle, there is a median and they're putting trees in the middle. >> thank you. mr. buck, anything further?

>> thank you, commissioners, chris buck with public works. just to confirm the subject tree is right now, they appear to have been out there the last 10 years. and it's been a lot of work to get them established to the size and height they are. one recommendation i would have is just thinking through how we might achieve resolution on this. one idea -- and i'm just suggesting ideas here -- would be continuing the item with the idea that i work with both parties to resolve middle ground to the point where perhaps, if there is a middle ground approach to a different species, there is something that is not just knee-high, but something a little more ornamental in height, that continuance, if we achieve settlement, then mr. johnson could withdraw his appeal and he wouldn't be back before you.

it would give us a time line and deadline to work together. it's just an item i haven't -- we haven't been able to do yet together. so that's a suggestion that i have. i don't know if either party is open to that. another decision would be to support our approval of the application to remove the trees with a commitment that i do that as condition that we try to have middle ground. there could be a chance we could not get to a perfect middle ground. that could be helpful to have a continuance. there is that threat of coming back and arguing before you. but those are just some thoughts i have. just trying to figure out long-term the best thing we can do here. i just don't think a traditional -- this is a large tree, and i don't think this is a good long-term strategy. i do worry if denial of the permit to remove the trees occurs, we're really just --

we're stuck in a difficult place. again, this is not designed tore tradition -- for traditional street trees. accent, yes, but not typical street trees the way we manage in san francisco. >> mr. buck -- >> we all have questions. >> you have achieved congratulations brainwashing me fully to the position of man, if we don't -- if we can, we don't reduce the tree population. you've heard me in recent months be very critical about buff and critical about buff positions related to not filling tree basins, tearing down too many trees, et cetera. so congratulations, you've achieved your initial mission of me becoming a tree-hugger. i remember our first -- my first

tree case here. i thought that the suggestion of keeping a tree which was on fulton street was absolutely ludicrous because it was tearing up a sidewalk, it was tearing up a sewer. it was creating havoc, but, boy, you convinced us all, that even though this tree was creating havoc, costing citizens tons of money, we should keep that tree and i believe we kept that tree. so i don't give up trees that easy anymore as a result. so the question would be, how do we keep flora -- is there a tree that could be replaced? if we went to say that these trees are a nuisance, and these trees are a health hazard based on the fact that they would block the entrance that a bad guy could hide behind, et cetera, et cetera, et cetera, is

there a species -- i think you may have covered it -- is there a species, and would it be your recommendation we not cover this over with cement and actually put a real tree up there, instead of a bush? >> correct, commissioner. our resulting decision said some form of landscaping. i think where we can go with this is a real hard look at in reviewing what species. so there is a couple of examples to give the commission a sense that we have some starting places. one is a hollywood juniper. very slow-growing, but it chugs along over time, up against buildings all the time, but provides visibility. another idea, might be too windy or foggy there, but uh-huh --

hawthorne tree. it's not a maintenance issue. i think we can get there. you know, the applicant may prefer no tree, but i do believe that as you stated, we're in a climate emergency with carbon and many other things and just trying to maximumize what is possible for this space, i believe we could get to the middle ground where the h.o.a. is not overwhelmed with future liability or maintenance and it could be there long-term. i feel like there is an answer there and that's what i would like to explore with both parties. >> would it easier that if we agree there should be trees there, that we uphold the appeal, and with the

contingency, with the caveat that the trees be replaced once removed. or you think it's better that we do a continuance to let you work it out? one way or the other, it seems trees would be placed back in there, so that would be my inclination to get a mandate that some form of tree be replaced if these trees are removed. >> it would be mandate, required. >> yes, and i would just add to that, the trees that really need to be a little more ornamental in nature. we break up our three tree categories, small, medium and large at maturity. and what we end up settling on may not even be in the current tree list. because we're thinking traditional street trees at the curb, but it would be something that is still common, near to

the public right-of-way, when it's really wide. i would add to that, i also want mr. johnson to understand it wouldn't be a large tall tree that is going to get above the roofline, but this would be something that would be better than just landscaping and basin, but something vertical to some degree. and that is sort of the thread -- where we try to thread the needle on this one. i think there are options for both parties to review and consider. >> which option would you -- if we're going to go in -- if we were to go in that direction and i'm not saying we are, because i can't tell -- >> mr. buck, before you answer that, could i get clarity on what our options are here? as i'm thinking this through, if we grant the appeal, the trees stay. you can't grant the appeal and conditional it. if you deny the appeal, the trees are coming down. i'm thinking the only option, if people want to look at

alternatives is to continue. >> well, you could grant with conditions. if you know what the condition is. >> if you're granting, then the trees stay. can you condition the trees staying on them being replaced? >> you're revising the order -- >> okay, stay. >> can we grant the appeal and require that the trees be removed and replaced with a suitable -- >> yes, because part of the order is no replacement. we're changing that and replacing it with whatever. >> thank you. >> so we can direct aggressively, or, we direct aggressively at this point, or we let you take matters into our own hands by trying to resolve and reconcile a solution? >> correct? >> correct. and my only concern would be considering both parties, if mr. johnson said hey, it means trees

have to go back, well, they can't go too large, if he and i get at a crossroads, you know, i think special consideration needs to be given to what we're trying to achieve. >> well be very direct if we go that direction. >> okay. and that's why a continuance could help both parties feel like if they're not being heard, there is a threat of coming back publicly. >> at which point i think the city resources are stressed with trees and we should figure this one out. >> either way, i can make it work. >> i have a question, similar to what commissioner swig said, it seems a little bit like this is not a normal case where we approve the removal. they seem to be fine trees. i understand they're close to the building, but with continued pruning, i mean how many years until we run into a real issue? you showed the image of a tree bushy and large, but the bottom of this tree has been trimmed, so it seems that the boughs are

not growing back at the base of the tree, so that situation is irrelevant. it continues to grow in height. with proper pruning, i'm trying to understand when there is actually an issue with this tree and the building. >> there is an issue now in the sense that we had irate, very aggressive h.o.a. position about the inappropriateness of these trees at the front of this facade. now, following our departmental hearing, we went made and pruned the trees, because we're hoping, let's prune the trees, moved on and it see if things quiet down. with epruned them in -- we pruned them where we did heading cuts and it's just going to sprout out. we're on a 3-5 year pruning cycle. so these are a like a one-year, pruning off the building. they're going to be wrapping, it's going to keep sprouting back. it was a number of years to get

them to the point where you could remove all the lower branches. the trunks are very close to the walkeways. so i just see major problems ahead, about but you're right, this moment, you know, people walk by and they don't think the sky is falling. but it is long-term worry at this point with appeal and these trees are -- and that's where we feel like we're -- >> i guess i feel, thankfully, we have an appeal, because it seems like the bureau is not inclined to replace the trees, which is also distressing. now you're here saying we can do something. we have people in communities in dire straits because we're moving a tree against their will. now we have two holty trees and -- healthy trees and it's inconvenient that they're, and that we should grant the appeal

since the department didn't look into the solutions prior to the hearing. >> maybe i need to be more forceful on this point. there is day one entry in our managing trees and it's right place -- right tree, right place. this is wrong tree, wrong place. nowhere does it see plant a tree up against a building. i hear you. as i told the supervisors's office, to these appellants it's a big deal. we tackle much larger issues, i hear you, it's really not a question of tree health. it's not a tree health issue. this is like someone trying to put sales force tower in the park. this is a zoning, 101. just hoping for the best here is not -- it's not going to go well. we're going to be back here. it's not going to be easy. and in terms of city resources, it's going to be a drain to be dealing with h.o.a. that is not

on board. that's what i mean -- >> can i interrupt. when you're pruning, i thought the rule was not to prune more than 30% of the tree. >> correct. >> so at which point from the time that you got the -- the tree was there and the city resources and the city pruned the trees, that looked like that was more than 30%. >> no. it's right in that wheelhouse. 25%, 30%. we had the prune the trees -- well, we had to prune the trees back from the building and then the idea was -- >> like i said, again, that looked like -- >> right, we are -- we had to prune them quite a bit. to get them in that space. >> and not to get you guys totally out of trouble, but at which point, that tree is definitely the wrong tree for that particular location. it's a large stature tree and to keep it at that size is going to require a ton of work. sorry to interrupt, but what type of species would you recommend in place of it?

>> the closest one would be hollywood juniper, which is, there is thousands of those, up against buildings in a similar setting. and that's why -- but you're right, commissioner tanner, most property owners they're figuring their landscaping up against the building. it's not something we're heavily involved with, so i appreciate the question. it's a good point. totally fair point. >> mr. buck, can you help me understand your concern about the right-of-way. that is not addressed if you just replace it with a smaller tree, right? >> there is adequate space for the public to walk down the sidewalk. so our concern about the public right-of-way, there is very limited space for this tree to grow. within the public right of way. so it's limited space for trees

to grow here. i wish i could go back and talk to my planning folks when the neighborhood was designed. >> i was just going to go there. >> it just wasn't designed to traditional tree line streets in mind. >> thank you. commissioners, this matter is submitted. >> well, commissioners, i think we have a couple of options. one, is to deny the appeal and let the trees be removed. as the member of the department just mentioned, this is a much longer problem. we've had that issue off ocean avenue in areas that were developed in san francisco after the 70s. or 60s and 70s, where they really didn't plan on having large stature trees even though they planted them into the sidewalk. you know, it's hard to even walk on some of these streets with the trees in them the way they currently are established. so option one is to deny the

appeal and let the trees be removed. option b is to grant the appeal and condition it that two smaller stature trees in the hollywood juniper family be planted. >> there is a continuance, but i think that uses a lot of the resources that would be option 3. >> i don't think it makes sense to continue a case like this when we can just resolve if it we can. i don't know we need to specify the species. >> i think we do and the reason why is because the appellant is not going to particularly agree with the department in a decision of picking a tree. so if we pick that tree, that means that decision has been made already. >> or the order could say a tree to be chosen at the discretion of the department, which i think personally would be adequate, because it may be that the

appellant prefers a different tree that mr. buck agrees with. >> okay. >> make a motion -- >> no, you -- >> grant the appeal and condition the permit that the department has the choice to choose a tree or two trees -- >> two. >> two. but if we have limited space -- >> i would only prefer to continue if it's not going to be two trees. i'm disappointed this case is here and we're taking these trees out in the first place. >> can you put two small trees there? >> that was my motion. two trees. >> on what basis? >> on the basis that the current trees are inappropriate for the neighborhood and the new tree would fit in. >> okay. we have a motion from vice president honda to grant the

appeal and amend the public work order, condition the order on replacement with two trees chosen at the discretion of the urban of forestry on the basis that the current trees are inappropriate for the location. on that motion, santacana aye. lazarus aye. tanner aye. swig aye. so that motion carries 5-0. >> side note to the appellant, please work with the department because the department has the ultimate choice of what tree is going to be planted. >> and likewise, thank you for bringing the case forward so we were able to get to this resolution. >> before our executive director calls the next item, i am required to recuse myself due to a conflict based on ownership of property within 500 feet of the subject property. >> thank you. so we will wait for -- >> wow, i got the chair twice in a row. >> we will wait for president

lazarus to leave before we start. >> you do know i have my own gavel at home, right? yeah. no, for me. >> so we're moving on to item number 6a and 6b. 6a, appeal 19-134. 197 67, 1969, 1971, broadway condo association. 1973 broadway appealing the issuance to chris porter of an alteration permit. revision to permit application 201806061104 to clarify scope of demolition and correct nov. this is permit number 2019-11056442. and we also have appeal number 19-142. this is the broadway condo minute association versus zoning

administrator. 1973 broadway appealing the issuance on december 3, 2019 of request for release of suspension of building permit application numbers 20150. vertical addition for a new bedroom, sitting room with a new full bathroom, side additions and 2018-1104, additional demolition beyond the scope of 2015 permit suspended on august 13, 2019, because construction had exceeded the approved scope of work. on november 18, 2019, building permit application 201911056442 was approved by the planning department to correct the record of the scope of work completed at the site and verify that unauthorized demolition had not occurred and they request that d.b.i. releases the suspension of the subject permits. we'll start with appellants

first. since we have two appeals, you will have 14 minutes. >> good evening, commissioners. my name is sara hoffman. i'm an attorney for the appellant. and before i start, i'd like to introduce lynn fisher, who is one of the appellants, lives next door to the project and she'll be telling you more about that. >> good evening, members of the board of appeal and others present. my name is lynn fisher, that's my husband john. and we own and live at 1967 broadway which is the first floor in a three-unit historically significant condo property built in 1895. our condo abuts the eastern property line of 1973 broadway, the subject property owned by the porters. around two years ago, with none of the condo members having received any written notice of intent to excavate, the porters

began their unlawful demolition and extensive excavation work adjacent to our building. our experts have advised us that since this time, our foundation has been significantly weakened by the construction at 1973. with this damage, interior walls throughout our home have cracked. a wall buckled with a nearly 1-inch pro-trutrusioprotrusion. doors no longer open, including our front door. the other units have also experienced extensive cracking and damage to their fire escape door. we are concerned about irreparable harm and extensional threat to our building and inhabitants. one of the most frightening experiences, the building trapped me, the front door had

shifted so substantially, i didn't have enough strength to force it open. despite d.b.i. issuing multi-notices of violations, they've continued to move ahead with their project without taking steps to remediate the damage. this has created huge stress on me, my family and the other owners of our property. i had perhaps expected the city planning and inspection processes to protect our property. instead, they have allowed serial permitting to masquerade a demolition as multiple renovations and accepted misrepresentations and calculations by the permit-holder all in an ever changing playing field. they should please held to the original permit and all serial permits rejected.

if you've not had an opportunity to view the subject property, we have a picture that clearly shows this is a demolition. all that remains of the lovely historical house built in 1880 at 1973 broadway are segments of the exterior sidewalls. no floors, no ceilings, no roof. and most recently no facade. please understand that it's not the goal of our h.o.a. to delay the completion of 1973 broadway project. the condo owners do not enjoy looking on a construction site and would welcome the completion of the project, but unless remedial work is performed at 1973 broadway and on our property, we're concerned that further damage will occur to our homes and our well-being. i implore this board of appeals to revoke the planning department's reinstatement of

the permit in question, to require the remedial work and demand the porters rescale their design to the renovation they claim and originally permitted. please protect our rights as san francisco residents against the unchecked construction that has turned us into a mini millennium tower. i implore this board to not allow the planning commission and the department of building inspections to continue to turn a blind eye and neglect adequate oversight of this project. thank you very much. >> thank you. >> this appeal concerns two decisions. the first was the legalization of the second round of unlawful demolition work that occurred at this project. and the second decision is a reinstatement of all of the permits associated with that project as a result of the demo work being legalized. this project initially started

as a vertical addition with interior renovations, but from day one it created problems for the neighbors next door. there was significant excavation and demolition work performed beyond the scope of the permit that undermined our clients's foundation, causing significant damage as you've seen. the developer was issued a notice of violation and was allowed to legalize an additional 625 square feet of demolition. when work on the project resumed, the permit-holder demolished additional building elements they'd been told they weren't allowed to demolish. the pictures you see today, just the facade. the facade being completely gutted in addition to the interior of the building, which has also been gutted. and so we're submitting today that the developer shouldn't be

allowed to legalize this additional reckless demolition work, particularly when we still have unresolved, unrepaired damage that has been caused to the neighboring property. they erred for a few reasons. it does meet the definition of a demolition. at the very least, the permit-holder should be required to submit correct plans, because the plans and calculations are riddled with errors. for example, we have -- on this image here, you see the garage door and a small section of the facade remaining, when in reality, the picture shows that it's being taken out.

moreover, this cumulative step-by-step demolition work has triggered the threshold whereby notice of this demolition work would have been required. there was no 311. no neighborhood notification for what is tantamount to a demolition. there was no environmental historic review. and finally south of mission, that this work should not be allowed to go ahead. the project should not be able to resume where there is significant damage created by the product, created by the unlawful demolition work and has not been addressed. and so our clients are here today asking the board of appeals for relief and you'll hear more about the demolition work. >> good afternoon, commissioners. pat buscovich. i don't like to present calks,

they were intended to protect affordable housing. every time we have this conversation, it's as if they work, they don't. we need to get rid of them. as fast as we can and come up with a strategy that does work to preserve affordable housing. but they're saying they demolished 71%. and 36.6% of the wall. again, you can't get that accurate. and i haven't got access to the plans, but from what i can see on the plans, there is a number of criticisms. the first is, this is their third permit. they started off with one permit and tore down more of the building than they should. they tore down more than they should. this is the second exceeding the demolition calks and now they're at 37%. according to draw rooms, the

parapet. even when you look on the side, they're including parapets in the calculation. they're excluding the garage and in my declaration, you don't include the garage door, so that affects about 3%. so from what i can tell, they're probably just under the threshold of a demo at 50%. probably 48. but they're probably off by about 10%. they're relying on an interpretation, you don't include the garage because it's not conditioned space. in the interpretation, you don't include nonconditioned space added to the building. why does it matter if they're not a demo? two reasons. one, we want to get this stuff right. if we're going to use this code, let's get it right.

more important, they haven't started the real construction that is going to cause problems. the fire walls. if it's 36.6%, they can tear down 12% of this building and still not be demolition. that's 700 square feet. it's not 36.6. it's probably mid to high 40. if the drawings are right -- which i'm not sure -- they're right at the threshold. they've been back twice. you're about to say they can tear down more of the buildings, but i don't think the calculations are right. >> my name is mason kerby, architect in san francisco. and the first time i've ever told pat buscovich to be quiet. that worked out good.

there are two elements to my analysis that raise questions with regard to the demo. there is three sort of representations of demolition involving criteria that inform historic setting. there is a demolition consideration under the planning code, but also one within the building code. i had a moment to go back and reconstruct the nature of the quantity of demolition included in the plans from one revision to the next. i would draw your eyes to the second portion of the analysis, which is the horizontal summary. by my math, they're at 49.58%. that assumes in satisfying one of the four prongs of the

planning code definition that we rely on this particular diagram. and what i would show you, the denominator in the fraction that substantiates the 50%, includes portion of exterior patio, which is representing to be preserve and not demolished. so there is a slight imbalance with regard to the fractions. the more obvious consideration that i would draw your attention to is the first portion of the analysis, where we know that 100% of the interior walls are being removed. section 103 of the san francisco building code notes that it's unlawful for any person to demolish a building and they offer specific rules and regulations with regard to what is a demolition. and specific, we're talking about the principle portion of a

construction that alters two-thirds or more of the interior elements. and this clearly passes that threshold. i would raise the final observation that within this section 103, 103a, the penalty involves an acknowledgment that for five years, from the date of the unlawful demolition, no permit authorizing the construction or alteration of any building or structure from that site was issued, except for alteration with the same number of residential units and the same or -- [bell ringing] -- as the building or structure was lawfully demolished. in this particular instance, this project started out as a site permit to add a fourth level and extend to the rear. so there seems to be a question with regard to inappropriate enrichment if this moves forward.

thank you. >> commissioner honda: thank you. i have a question for counsel. why hasn't the repair work been done regarding the damage that was done to the adjoining properties? and is damage done to both properties, or just one side. >> i can't speak for the property on the other side. but, this being significant damage done, as you've seen to our client's property on all three levels, there has not yet been repaired because i understand there is issues and maybe he'll speak more to this, their insurance company has not agreed to pay for it. it is subject to litigation. we're hopeful they can work that out. >> i'll ask council that question as well. thank you. >> thank you. we will now hear from the permit-holder. >> good evening. for the porters.

they're to my right. needless to say, this is the first renovation remodelling project that the porters have undertaken and they've learned a lot of lessons and been at it for quite a while. after the building permit was first issued in 2017, there were revisions to the structural plans which did result in an alteration permit. after that permit was issued, the association, the neighboring association appealed the permit in early 2018. at or about the same time, the initial site demolition and the excavation of the garage area did result in some unexpected site conditions, some sandy soil was encountered and additional excavation work, we heard about it tonight, the 625 square feet, which was undertaken by the contractor to access the rear of the property. the contractor was ultimately allowed to actually proceed on an interim basis to stabilize the shoring of the property,

which in turn stabilized the lateral and subadjacent support for the neighboring property. and stabilized the shallow footings of the association's property, which had been damaged during the initial excavation. after the stabilization of the foundations which provided support for both properties, the association did file a lawsuit in april of 2018. alleging that both the property damage that commissioner honda asked about, and raising an issue regarding easement between the two properties. meanwhile, the appeal of the alteration permits would have been filed by the association was briefed for a hearing before this board, but was then withdrawn by the association in may of 2018. however, work could not start again on the project because when the porters put in an application to reflect the new demolition, and get a new permit to update the amount of demolition, it was routed to

planning and the association filed a request for review. the hearing for the review was scheduled for january 31, 2019. however, once again, just before the hearing, the d.r. request was withdrawn. meantime, the project had been sitting idle since april of 2018. work did not begin until may, 2019, more than one year after they'd been halted twice by an appeal by the association. in june of 2019, in the meantime, the porters and the association entered into a new easement agreement, on how to address the easement between the two properties and the construction of new stairs that would be shared between the two properties. so the only thing that is currently left in the lawsuit is the property damage issue that commissioner honda asked about. i'll address that in a second. unfortunately, when the project started again in july of 2019,

and to the considerable chagrin and embarrassment of my clients, the general contractor did in fact somehow manage to demolish an extra portion of the front facade of the structure in excess of the revised permit. simply stated, there is no explanation and no excuse for it. however, the project architect immediately contacted the planning and received a direction on submitting revised plans, revised calculations and new demolition permit. obviously the key to the new demolition permit was whether this additional work had resulted in a de facto demolition under the planning code. in order to address the issue, there was inspection of the property when members of the planning department were given free rein to analyze the issues and visit the property and ask questions deemed appropriate. following that inspection and that visit, the architect

responded to his request for new drawings and the permit in question was issued and suspension of the building permits were lived lifted. -- lifted and here we are, following another appeal. i want to stress before the board that the porters do not have an explanation or excuse for the additional front facade demolition. instead, all they can say is you might expect, they will not be proceeding with the contractor as they move forward on this project. at the same time, i should note that they have paid a huge price for the inexperience. the project has been dormant for six months of the last two years. they've incurred expense as well as legal expenses in connection with all of these appeals. they would like to move forward, particularly as many of their other neighbors are now complaining with regard to the inactivity on the project. there are a variety of arguments provided by the association with respect to this appeal.

they now suggest again that an unlawful demolition has likely occurred, but they present no calculations in that regard. planning has concluded that such is not the case. and i believe we've shown so in our brief. even if the calculations were revised per the suggestion of mr. buscovich with respect to the garage, which they should not be, the vertical calculation does not reach the required level. issues are raised with regard to other sections of the building code and the planning code, but as we point out in our brief, neither of those sections with applicable here and they have been considered by d.b.i. and the planning department. finally, the association does raise a concern about the risk of further property damage. no evidence is presented in that regard and i would argue there is none because the foundation has been fully and completely completed. but if further property damage occurs or is threatened, the place to address that issue is

in the pending civil lawsuit between the parties. and, again, to address the issue raised by member honda, the case is set for trial in april. if to the extent there is additional property damage, it will be addressed by settlement through the insurance company, by motions at the hearing or by evidence presented that there is further danger. the civil lawsuit is the place for that to be resolved. the only question here is, have the permits been rightfully and properly reissued? in sum, there is no question that mistakes have been made in connection with the project. i will tell you that lessons have been learned by my clients, but the permits have lawfully and properly been issued and released based on the calculations. the porters respectfully request the ability to move forward and complete the project with an appropriate contractor who will not do anything further to impact the neighbors and/or the

compliance with all the plans. thank you. >> commissioner honda: question, counselor. is the current litigation with the past contractor? >> that is -- >> yes or no. >> no. >> he did all this wrong, but they're not suing him? >> he did. >> who is the contractor? >> greg cook construction. so cook and associates. >> no, cook construction. one lawsuit at a time. we have to figure out what all in damages are -- >> i get it, but you know, whether the permit is valid or not valid, i'm sure you've heard this board has wide powers. so to me this is humpty dumpty. why let your clients go forward building their beautiful home when they destroyed somebody else's? >> i would respectfully disagree

they destroyed anybody's home? >> would you like to live in a like that? >> i would not be happy with the inability to open my door for sure, absolutely. and there is a process. >> the question is why should we let your clients go forward in building their home when the people next door home has an issue? >> there is a process in place in the lawsuit for the payment of compensation for the repair of the property. and i am confident that the lawsuit will be resolved in the appropriate course. >> thank you, counselor. >> i have a question. was there any monitoring in place before the construction started of the neighboring properties? >> the monitoring that was put in place, there were monitoring of elevations placed on the site of the property. so there have been eight i think now survey results provided to the association in terms of the

movement of the property. i would say that of the eight survey monitoring results, i think three have noted movement of the property in excess of what would be expected or tolerated in three of the eight different locations they've been monitored. they've been three small amounts of movement. >> thank you. >> thank you. >> and we continue to monitor by the way. >> you do have six minutes and 50 seconds. if you wanted to use that time or your client. >> i'm fine. >> you don't have to use it. >> that's fine. we will now hear from the planning department. >> i think i can say that section 317 is horrible. that's fair and mr. buscovich's comments, very challenging to

achieve. it needs a complete rework. it's something we've attempted for many years without success. unfortunately. it's a public process in order to have successful legislation that has not -- unfortunately has not advanced our proposals that we put forward. so the item that is before you started out in 2015 with a relatively modest vertical addition. that was the main scope of that permit was submitted in april 2015. underwent section 311 neighborhood notification. between april and may, no views were filed and the permit was issued in october 2016. 2018, february, the property owner submitted a permit to do an infill to expand what they had previously approved what had been issued two years prior. that permit then during the course of our review of that

permit, we found out about the first course of work beyond the scope of permit. that was the horizontal floor area demolition. staff held this permit until that was resolved. we had suspended the original permit. had the permit come in to resolve that issue, which i think has been outlined for you by the permit-holder. once that matter had been resolved or we believe it had been resolved, we did the section 311 neighborhood notification on the infill permit. and that was done last year. there was a d.r. filed on that, but as was related, it was withdrawn prior to the hearing. that permit for the infill has not yet been issued. that's still pending. but what we have before you now is there was a subsequently another allegation and validation of work beyond the

scope of permit from last summer. and we had them submit the permit to document additional demolition, this being at the facade of the building. staff did do a very comprehensive site visit and also reviewed very thoroughly the plans, reviewed it with the zoning administrator, with other senior staff and determined that the project did not meet the demolition requirements of section 317. which as i understand mr. buscovich testified that he believed as well that it did not meet the threshold, but i think there is a differing opinion perhaps in how close it is to the threshold. but as i understand it, today, even, the appellants are acknowledging it's not a demolition under 317. if it is a demolition, if there is work beyond the scope yet again, this board knows that the planning commission takes these items very seriously.

you know, they have in some cases had people go back to what was there before. and another alternative is what they will often do is have you maximize the density of the site. this is a single-family home in an r2 -- >> adu. >> they can do six dwelling units. they could do the additional story as well. there is opportunity for more housing on this site, which i think the planning commission would to see. we can't require someone to do a home sf project, but six units and better utilizing the property would be an option if it goes that far. >> but at this point, this is still a single-family home, correct? >> correct. >> and so you know, we do believe that the permit was properly reviewed and approved that is not demolition. that it is something that will resolve the violation, which has been pointed out by the permit-holder, there are these

issues, they've exceeded the scope of work twice. that is primarily the planning issues are related to that. exceeding the scope of work. there were issues raised about ceqa, the california environmental quality act and the building, given its age is a potential historic resource, but given the work was done without permit, this is -- you know, if people ask how you get around ceqa, you do work without permit. under ceqa, you look at the existing conditions. when something has been removed without permit, there is no ceqa work to be done when something has been removed already. this wasn't a known historic resource, it was a potential historic resource. and it's not in any way to give some leeway to the property owner. happy to here they recognized that they needed to move on with

a different contractor. we don't comment on what they should do legally, if they should sue their past contractor, but certainly their contractor has caused them serious delays on the project by exceeding the scope of permit multiple times. the issues about potential damage to the adjacent property are serious and that should not happen in the course of construction. i think even -- it doesn't make sense how it could happen in this case. but that is something that they will need to work out in that appropriate process. that is not something -- the planning department is typically involved in, we look more for the department of building inspection in terms of if work is done beyond the scope of permit, if there is damage to other buildings, the department of building inspection can document the damage for the party. i'll let senior inspector duffy comment on that. other allegation, that the project needs another 311

notification. it's gone to 311 twice. so a third, i don't know what that would accomplish, but that would only be potentially for if it was a demolition, which would then require conditional use authorization and more than a 311 notification. so but then again, i just heard tonight from the appellant's representative, mr. buscovich, that they think based on the new knowledge and the understanding that the garage door doesn't count, that it's under the 50% for the vertical elements and would not be a demolition under 317, so we don't get to that issue. yet, looking back, i don't think i've aligned anything for you tonight, but this permit does correct the violation that has occurred of the property. we think it was properly reviewed. it's a path to compliance. no one wants to be in the situation with the damage to the neighbor's property and the years of delay.

i mean, it's been five years since the permit was submitted. i don't know when construction started, but certainly they need to gather with their attorney, the property owner, and find a good qualified contractor who can do the work according to plans. not have this be an ongoing issue, not causing any further damage to neighbors properties. and being in xiecompliance withe planning code. >> i'm available for questions. >> man. so, where do i start? so let me start with, you know, when the first breach of promise occurred, breach of promise is i'm going to build this and then somebody built something else.

and then your department -- i don't want to make your department guilty, i just want feedback here -- and your department goes and when they expanded the footprint or they did too much digging and your department said you exceeded your scope and basically you covered their rear end, the department covered their rear end by issuing another permit that made that okay. >> we suspended the permit they had and required them to get a permit to correct the work they did without permit. i don't know what else we could do. >> is that enabling? i'm not april tacking you. -- attacking you. it seems like enabling that bad behavior? is that enabling or fixing? >> it's the only thing we have to fix it because if someone has alleged and shown there is work

beyond the scope of permit, i guess what else could we do other than to correct that through the permitting process? >> but then again, it happens again. and there is mr. fix-it again, which enables -- it fixes it, but enables. that's strike two. >> right. so in addition to my, you know, dislike of section 317, there is also weaknesses in our enforcement process, whereby generally for assessment of penalties, it's only if someone is nonresponsive. so if you speed, you get a ticket. and that ticket is going to cost you something. that does not exist in the planning code. at most, what we do and what the code allows, we can assess -- it's for our enforcement time -- so time and materials and then $2,000 added onto the cost of the permit. and that is what we have in

order to penalize. what i understand, this is happening once or twice, where is the penalty? how do we stop someone from doing this again? i don't have a mechanism in the code to allow it. if we see a larger pattern, we can refer this to the district attorney office. we have done that in other cases and gotten a million dollars place from someone with pattern of violating the law. i'm not aware of a pattern. >> and that wasn't enough for -- you know who we're talking about. >> that wasn't enough for some. but we have someone who tore down a historic resource and we did a settlement there for a half million dollars. that is something that is more for the bigger violations. here we have someone that happened twice, but they promptly came in to address it.

and -- >> but you still -- they still, oh, gee whiz, i broke the law, mea culpa, you enabled them and they got their mistake rectified and they got what they want. that's really -- again, i'm not attacking. i'm just sitting here scratching my -- going -- you know, that's really bad way to raise a kid at the very least. but then where does the humpty dumpty factor kick in? so that then now we have a torn down facade of a potential historical building. and now we're enabling again. where is the humpty dumpty

factor kick in where you say, enough of this, we let you off once, we let you off twice, now you're going to rebuild it the way it was in the first place because you've broken the law twice. no matter whether it was malicious or not, you know, oh, gee whiz, it's the first time we've done renovations. the law is the law, the guidelines are the guidelines, how far do you go before the humpty dumpty factor kicks in and you say rebuild the thing the way it was and start over again. >> arguably, they broke humpty dumpty twice, because he was broken the first time, they were putting him back together again and then they broke him again. there should be no third time. but in terms of additional demolition, the facade they're proposing now is the same as

originally proposed. the project with the excess and scope hasn't gotten larger and larger. they're still basically back to the same project that was approved in 2016, that went through neighborhood notice which was fine with everyone in 2016. i think really the main issue is here -- not putting aside the violations and exceeding the scope multiple times, which is inexcusable, the core it is the damage to the adjacent property and i don't know how that is addressed through these permits. >> where i'm going to go. i like to show my hand in advance as you well know. and mr. duffy gets to speak now. so the appellants' counsel will -- the appellants will have a chance to prepare to answer this. but what do you think -- how do we cure this? what do the appellants want to cure this? obviously the damage has been done. you're doing your best to

wrangle it given the limitations of the law. so what do we do? what do we go to fix this without enabling somebody who has broken the law three times? exceeded the scope three times to get away with, aside from the alleged naivety about renovation. how do we hold them accountable? >> can i interrupt for a second. when we see this, sorry, but when someone demos something by accident, oops, it fell out, we see something else being recommended to be replaced. a larger space, a different space. but you just mentioned that it really wasn't -- their error has not gained them larger space. >> it doesn't seem to be the case. i mean certainly -- >> it's not like you knocked a wall out, and i'm going to

change the design of this. i'm going to change the facade, but knocked the wall out and hired the wrong contractor or whatever the situation may be, but they're not getting an additional gain from this it's not getting them into their home any quicker. >> it's not like the house that fell down by itself and then instantly came up to 7,000 square feet. >> they were generally approved for a building that large to begin with. that's a separate. >> there was nothing really for the accident that happened, there was no -- there is no huge benefit here other than basically, you know, pissing in the wind and making all the neighbors mad? >> yeah, if it is a demolition, again, the end result is there could be a six-unit apartment building. i don't know if that's the goal of the appellant. if it does get to the planning commission, i can see them

wanting more density on the site and not having a single-family home. >> you said if it is a demolition. you're saying if it were a demolition. you're taking a clear position it is not a demolition. >> i believe, even mr. buscovich has stated that tonight. >> i have a question. >> is your position also affirm that the plans that were approved to lift the suspension don't materially differ from the original plans? >>s that my understanding from staff. in terms of what is proposed, i haven't even necessarily heard that from the appellant. the scope of work at the end of the day, the end project will be the same as what was proposed in 2015. i think the concern is just how they're getting there and they think it's a demolition, in which case -- if it is unlawful demolition under the building code, there is a strict requirement where they can't

build anything than what was there before for five years or so. that is very restrictive. if it was unlawful democrat under the building code. this is one of the problems with 317, if it is a demolition under the planning code, the planning commission is going to tell them, put more density there. >> one last question. your position, your response to commissioner swig's questions about enabling, essentially what you're saying, if they presented the plans, we're going destroy all this stuff and put it back the way it was, you're saying as far as planning was concerned, that wouldn't have been a problem in the first place? >> right. since it doesn't meet the 317 demolition, there is no additional process they would have to go through. >> if you want to demo your

facade and rebuild it exactly as it was. >> the process that would have been saved for the facade is that it would have had to go through additional environmental review. i guess that is correct, there was -- if it's even a benefit, but they would have saved time on environmental review of the demolition of the portions of the front facade because that would have required preservation review. >> sure, but there is putting it back. it would have been asinine to do that. >> i just want to -- >> you're next. >> so, i just want to understand the history of this process, because what is at issue, you're maybe saying that the big issue seems to be the damage to the neighboring property. there is pictures, that's not in dispute, although it's in litigation. i'm trying to understand, there is alteration permit appealed in

2018 and then discretionary review for demolition and both withdrawn and didn't go to hearing. would either of those issues present prevented the work outside of scope? it strikes me odd to kind of go after their neighbor on this and then to with draw twice and now we're here a third time. i'm trying to understand what the real issues are. and if any of the issues would have been resolved through taking the hears through. >> -- hearings through. >> that was something i thought unusual as well. you know, typically people, when they pay the money to go through the process, they don't get a refund when they withdraw it, that they would go through the process and have the arguments heard. unless they come to an agreement somehow and it could be resolved. i think the underlying issues are still the construction damage which i think has been known for quite some time.

in terms of exceeding the scope, i don't know the exact time of the facade demolition, but that may have been after the appeal and the d.r. certainly after the appeal seems to have been -- >> may 2018 was the appeal of the alteration permit itself. >> yeah. and i think the first issue with the demolition was in the summer of 2018. and then the second demolition issue was the summer of 2019 if i recall correctly. that's roughly when we had suspended the permits. >> great, thank you. >> so in the spirit of humpty dumpty, and the facade, you just said, well the facade that was a mistake and seems they're going to be rebuilding it the way it was before. is that what you said? >> it's my understanding the facade is going to be put back as it was originally proposed.

>> are we out of bounds, is it within our scope opportunity this body when resolving this issue whichever way it gets resolved, to mandate and require that the facade be replaced exactly as it was destroyed? >> i don't see -- >> than it was before it was destroyed? >> i don't think there is an issue with that, because i think the plans show that. so it just be they follow the plans. given the history of work beyond the scope of permit, whether there is reporting or monitoring they do. >> i'm just responding. the few years that i have been here, even i have developed a gun shy attitude where even -- you know, i'm not believing anybody unless we mention it in the motion. so i just wanted to ask if

that's appropriate. >> i don't see an issue why it wouldn't be. >> not that i don't believe anybody, i just don't believe anybody. >> i don't believe anybody either. >> okay, thanks. >> scott, one last question. is there a history of issues with this particular contractor? >> i've only heard of one other issue that i just actually heard of tonight. but i'm not aware of a pattern. >> okay. >> thank you. >> thank you. >> thank you. we'll now hear from the department of building inspection. >> finally. we get to hear from joe. >> good evening, commissioners. so, as you all know, these are difficult ones, we deal with them occasionally. there was one, 42nd avenue, something similar, damaged the properties next door. when you're sitting here and listening to this and really bad

management. somebody wasn't taking care of stuff. there wasn't outreach. when you go to do a vertical addition on a zero lot land and you start jackhammering somebody's slab, you're going to see next door and you should have prepared for that. you can do your monitoring, but you're pretty much assured there is going to be some shaking. and the notice of violation on june 22, 2018, provide protection of a adjoining building. it caused cracks to 1977 broadway. demo of slab and garage may have disturbed the soil. stop until it's cleared. call for inspection before proceeding to prove protection is in place. you end up having the pictures of the cracking plaster and you talk about monitoring. sometimes what this comes down to is the dollar amount. obviously, it's annoying and

upsetting to have someone crack your plaster. there is a fix for that. i don't know if there is structural damage. i didn't see an engineer report on that. but cracking and plaster, it is going to happen. they should have been -- it should have been agreement before hand. just like reflashing. just like the porta-potty on the street, the construction fencing. maybe that wasn't done right. now we're here and sound like three years later, 2020, dealing with this. so i just wanted to say that first. if the contractor is no longer involved, then the new contractor will come in. maybe a liaison officer or something like that that can deal with issues as they go on. the department now at d.b.i., we have initiated something internally in the building inspection division where an

adenda is issued, we call somebody before the project and say before you start demolition, you must get a building inspector out there and discuss how much of this building you're going to take down. if you run into an issue where you have dry rot or something that needs to come down, do not take it down, get the building inspector, we'll write a correction notice, tell you to get a revision permit and then you can go back and take that part down if you need to. since we started that, probably started last year, 2019, i'm the one that does the calls actually every month. i get a list of them and call the people. everyone is grateful for the call and we haven't had anybody else. and what we do, we document that we had the discussion with them when we make the call. put it on the spread sheet. if they come in a year and say, oops, we took down some of this, then guess what, things are going to change. it's not like oops anymore

because you were told before hand. a wall may fall down accidentally, we did get that recently, it was a big stormy weekend and the building, the shoring just completely failed, but we were able to put the wall back up. but what i'm saying, things are going to get better. we're hoping to see less and less of this. they are tricky projects, because our favorite 317, section in the planning code, keep so many of these old walls and try to building around it. when you're finished you have what is a new building anyway. from the d.b.i. point of view, we're working and discussing with planning, affidavits are coming into play and drawings where someone is going to have to undertake that they're understanding how much of this work is staying and how much is going. so there are efforts being made. i don't think we're going to see as many of these in the future thankfully. just talking about the penalty on this. the penalty on this is the holdup. the delay in getting this project done for these people, i

don't know what the situation is, but my experience is, that you hold it up, you hold it up, and they're sitting there a long time. as a matter of fact, the last permit taken out was to tarp the building for the winter. as we speak, it's on a tarp. i know they've done wrong and contractor done wrong, but hold is up forever is not the answer either because it's a just a monument with a tarp on it. they need to figure out the cost of the damage at the property next door. the permit was -- it looks like it's been properly reviewed and issued. as i said, it definitely is a troubled project, but i'm not really -- i mean, revoking the permits, where does that put you? just means another permit. and i do think that maybe when up go back to the main permit, there was no really objection to

the addition. i did hear the owner of the adjacent property speak they wanted it put back to less of a project. but that ship has sailed. they had their chance, now you're coming back four years later and asking for that again, they need to have a bit of good faith here. and that's my speech. i'm available for questions. >> i have a question. so i think that good faith went out the door when it wouldn't open. same question to you. is there a history of issues with this particular contractor? >> i think this contractor has been in business in san francisco for some time? >> i've come across cook construction before. i only know of one property, some workers went on an adjacent roof. >> i know, it involved somebody near and dear. >> but i was d.a.s. patched out

there -- dispatched out there -- >> this happened three times. >> on demo? >> well, possibly. and that did happen, i agree with that, but there is obviously -- when you hire someone like mr. buscovich, he is going to file complaints and he's right to do that. somebody is watching this one and they got caught. i don't know who is managing it. i don't know what the contractor was thinking. but if i was doing a project and i knew the neighbors next door, there was damage, you know there is going to be a lot of scrutiny. come on. i don't know if the contractor, if there is someone new coming in and they want to be doing it better. by the way, there has been nine different inspections and there was a big holdup in the project and we have been out there. we were out there in 2018. i'm glad to hear that a lot of the concrete seems to be in. the monitoring is good. if it didn't move that much,

that means the foundation didn't, it was more cosmetic. but i may be wrong. i didn't see an engineer report or recommendation. you would like to see the extent of the damage, was it hundreds and hundreds of thousands of dollars? what did the engineer recommend? and i didn't know if that was in the brief or not. >> we'll ask that question. thank you, joe. >> any public comment on the item? we will move on to rebuttal. oh, there is, sorry. >> you okay, madame director? >> the worst cold that developed in the hearing. >> i'm both a neighbor and friend of the porters. i live two blocks away from the construction site and it has been a construction site for years now. and to my knowledge i believe it's been about a year and a half of delays that occurred. and they're a growing young family and want to bring their kids there.

they have young sons they want to bring home. they have another one on the way. and they're good citizens. they're trying to do a good job. they hired someone that wasn't good. they're trying to come to resolution here and move on and get their home finished. as a neighbor, it is an eyesore. year and a half of sitting dormant is not great for anybody, all the neighbors included. so anyway, i hope that we can come to some sort of resolution to help them get their house built. >> question, if you were the neighbor, the next door neighbor, what would your opinion be? >> in regard to? >> them going further. if you lived next door and your front door didn't open and -- the reason why it's gone on for multiple years is because of multiple mistakes. >> understood. >> would you be trusting of that neighbor after that point? >> i'll answer to the trust of the neighbor, you have to know the person, right?

i don't know how well these neighbors know these neighbors on a personal basis. i know these people on a very personal basis. >> you know them well and this happened three times in a row, you'd still be, we'll be good. >> of course, you have to have discussion around it. they said they're going to move on, i think that's a sign of good faith. >> i'm just asking because you're giving a character reference. i think knowing these people, they are good people. and they will make right whatever situation happened. >> thank you. >> thank you. any other public comment? >> are you part of the association? an officer in -- an officer? >> you can approach, thank you.

you have three minutes. >> good evening. my name is lewis bowman, i'm owner of 1969, the middle unit. i wasn't going to speak until this last person came up and spoke essentially giving a testimonial for the porters. i don't know the porters. i've never met them. i saw them here tonight for the first time. because they're not there. but i do know by my involvement in the association and having followed this case obviously closely and involving communications, i can say this. that from the moment that they took control, ownership of this property, until today, the relationship between the two property owners has been extremely tense and acrid. and the primary reason is from the very beginning, if you were

going to be doing a major renovation of an adjacent property, it seems like, at least i would want to reach out to the other party and discuss the project with them. and talk about what we plan to do. and try to bring together some kind of consensus. the opposite has happened throughout the entire history of this project. and we have been treated -- we've been treated with such arrogance the entire time this project has been going on, that you have no rights, we're doing what we damn well please, and to hell with you. that has been the atmosphere since the beginning of this project. and you need to know that. and that easement issue that has been resolved is a case in point. that easement has been laying in place for 50 years since that property was condominium-ized and they through their lawyer said you will get a better bargaining position if you write a letter and disavow the

easement that puts a threat on our property from a market point of view, because the only way you can have a second fire escape is through that easement. so we had to spend a year and a half negotiating a settlement on this easement that was already ours just in order to preserve the property value of our property. this is the type of people that we've been dealing with. and you are now seeing they've broken the law three times. if you grant this permit, it will be broken again. i assure you. >> sir. question. so were your interactions only through the h.o.a., or did you deal with them directly? did you deal with them directly? >> no, i have not. >> everything you're aware of has been through the h.o.a.? >> yes, it is. >> your interactions were with

counsel? >> interactions through counsel primarily. but also they have written personal notes to the head of our h.o.a. who has shared the communications with us. >> thank you. >> any other public comment? okay, we'll move on to rebuttal. we'll hear from the appellants. you have six minutes. >> there is an old adage, that it's easier to ask for forgiveness than permission and it seems to have been embraced by the c contractor here and we're asking that the board of appeals not accept that. first i would like to address a few of the assertions that the foundation settlement, the damage there has been stabilized. that is categorically not the case. this photo that we've shown you

on the overhead, this one was taken recently and that was new damage, i believe it was december last year. so damage has continued to occur. the foundation has not been stabilized. and to address mr. duffy's question, which pat will go into detail, we're looking at damage to the foundation itself, not just cosmetic cracks. we're looking into six figures to repair it. and this quote has been with the insurance company since early last year. the survey monitoring result have shown up to a half inch of settlement to this building. and while markers were placed on the client's buildings, they were placed without knowledge and consent. it was only after we started asking questions that we saw the results. we've heard a lot of trying to blame the contractor for everything that happened here. and say well, they're not going

to work with them anymore, but as recently as november 2019 -- and this is those under appeal, cook general contractor is still listed as the contractor associated with the project. so to move on to the meat of the issue, why we believe this is a demolition, you've heard from mr. buscovich, this is very much on the cusp of one of the planning code definition of a demolition which is 50% of the vertical and horizontal elements being demolished. but because the plans are inaccurate, it's more than that. it refers back to the building code n. the building code, demolition is something involving the alteration or removal of two-thirds or more of the interior elements.

here we have 100% of the interior elements being removed. on that basis, it's a demolition under the building code. this triggered the threshold under 11b-2 which requires neighborhood notification for the removal of more than 75% of the interior elements. finally to address the really big issue which the damage that occurred to our client's property. this is significant. and to draw a line between these permits and the damage, the very real concern is that if work resumes on this project without the damage being addressed, we're going to see further damage occurring. and i'd ask the board not to trust the superior court is going to resolve this. this action was filed two years ago. and just yesterday i had to go down ex-parte to oppose one of the subcontractors trying to

push the trial out to october. so it's by no means a sure thing we're going to get relief. we're asking for the plans to be correct so that the planning department and the building department can assess what is appropriate here. and we're asking that work not resume on this project until there damage has been addressed. and i'll -- if you're not sure whether you can actually uphold the appeal on that basis, i might suggest we continue this until maybe april, after the superior court decision should have been released and we can address the next steps for the project going forward. i believe mr. buscovich wants to address you. >> counsel, i want to seize the moment. can you stop the clock? i'm getting confused here. i don't see the benefit -- can

you enlighten me as to the benefit of what you are arguing other than the money piece? i understand the money piece. your client wants to get aid for the damage. if i was your client, i want to get paid for the damage. your client wants to be assured that they're not going to have their next door neighbor finish their -- be able to finish their building and then be left high and dry stuck with hundreds of thousands of dollars. i understand that. what i don't understand is the -- if i'm also your client and they want to postpone until this financial settlement or legal settlement could be resolved, they're living next door to a blighted horrible situation. that's number one. number two, if it goes that thinks a demolition -- this is a

demolition and the next door neighbor, if they're being portrayed as the meanies that they are, i'm not going to agree with that, then if they go along with demolition, what we heard from the planning department, is that your clients could have a brand new home sf six-unit apartment building. is that what they want? so i don't understand -- i understand the money piece, but i don't understand why you want to live next to a blighted building and why you want to risk the affirmation that the demolition that would enable a six-unit brand new home sf -- affordable housing unit to be built? can you give me some feedback on that? and then mr. buscovich. >> so for my clients, it's not just about the money.

this isn't about someone writing a check. it's about the fact that for two years their home has been destabilized and that damage has not been repaired. they have a real fear based on what has happened every step of this process, that if work resumes on this project, it's going to present yet another imminent life safety risk to their property and well-being. that's why we're asking that this work not resume until the damage is able to be repaired. >> so in fact, what you're putting us in position to do is look towards a continuance, because if we find for the -- i don't understand why, but a continuance therefore would enable the superior court judgment, continuance would enable that this continuance has a stipulation that proper safety

and stabilization elements be in place to further prevent the building from suffering grievous harm, correct? >> yes, i agree with that. >> i don't understand why did your client file a discretionary review, appeal, withdraw both of those and they're here the third time deciding to go through. if they were concerned about the issues, why were those not addressed through the means available at previous junctions? >> at every step, i can assure you i don't like coming here. i would rather work things out cooperatively and my clients would rather work it out. >> that's not the question. >> why were those not pursued? >> we did pursue those remedies. i can't get into the discussions, but there were reasons why those appeals -- >> you had the appeals, managed to work it out, you withdraw the discretionary review, so you're

here now asking us to work it out for you? essentially? great thank you. >> i interrupted because i didn't trust my senior memory. >> you have a minute, 43 seconds. >> you were about to say something, pat. >> you can use your minute and 43 any way you want to. >> so i'm not here for a demolition because i'm not sure they're there. i think they're very close. if it is a demolition, what probably is going to happen, it's going back to the planning commission, they're going to say put the building back and add a unit. not six units. what i hear, they're so close, they're 72% of the floors are gone. they say they're 36 or 37 percent of the walls. i think it's 45. once you get into the 40s, the threshold to review increases. where people are looking at this building a lot more to make sure

whatever else you're going to do, you're not going to cross that line. i'm asking you to ask the planning department to look at the garage, the concrete stairs, the parapet, they're all included in the calcs and you see that the number is closer to 45, 48. it may not cross the line. if the drawings are correct, they're close enough that they should be recognized as truly where they are. they're at 45%. and scott can tell you, at that level, planning would move this building a lot closer. in terms of joe's comment, when you dig in loose sand this soil is well known, you're supposed to send a letter to the neighbor. no letter. they posted stickers without permission and settled the building. and, yes, minor cracks are okay, but these cracks are huge, the footings need to be replaced. if they get the calcs right,

they'll be paying attention to how close to work with demo. >> i have questions for counsel. for the appellants. >> you're the litigation counsel, too. >> yes. >> i think you said because the contractor is not playing ball, it keeps going place. why isn't the h.o.a. covering the damage in the meantime. >> because most insurance companies have exclusion for damage caused by earth movement and that that apparently applies even when the earth movement is caused by someone else's negligent action. >> really? what insurer is that so i don't use them [laughter]. you have an ongoing case in superior court, a judge overseeing the dispute and presumably you have evidence in that case related to the damage

and how it was caused, why couldn't you seek relief we can't provide, which is a judge overseeing the construction through some sort of injunction? >> yes. we could seek that relief. >> because we can't do that. we can't have ongoing monitoring. we can't have you come back every 30 days. we can't have experts testify. that's no what we do. >> my solution would be that the relief the board can provide is exclusive to the remedy of the board of appeals. >> if the court provides that, the only other remedy we have is revenge. essentially what your claim would boil down to. >> so the court can't order the city unless we join the city, not to issue permits for this work to occur. and so that's why we're seeking relief in this form. and i think there has been some

frustration from my clients because we're seeing insurance litigation counsel playing this proceeding against the superior court proceeding and everyone is pointing fingers in the opposite direction and our clients are here out of a sense of desperation, there has to be some remedy here and we're asking the commissioners to provide that. >> thank you. we'll now hear from the permit-holder. >> thank you. first of all, commissioner, i was not the attorney first involved with the easement issue. when i did get involved, we did address the easement issue as as fast as we could. i am not the attorney right now in the litigation. there is an insurance company can counsel. we're monitoring and encouraging a fair result. and how we do that remains to be

seen, but there is a trial in april, april 4 and hopefully the case will resolve. in advance to that, i talked to the lawyer today and encouraged continued conversations with the association. you know, the remedies in the superior court action are such that if a showing was made of interim or danger to the property, an engineering report could be provided, the court could issue an injunction and the project could be stopped. the issue here is there is no engineer's report as has been mentioned. there is a fear of additional movement. i understand that completely. i've not seen the evidence to support that. i do believe that the foundations have been stabilized because of the concrete finished, but, yes, there has been additional movement that needs to be addressed and i understand that completely. the best way to address that is to get the project started again, and get the contractors in to protect their property. i have no problem agreeing with the other side to do that.

we just want to get the project started again. we're not intending to build a larger project. we want to build a project that was permitted and the project approved by the planning department. mistakes were made. we concede those. three mistakes were made, two actually, i don't want to count any of it. we're obviously aware that if it happens again, i've got no credibility, no one has credibility coming in front of anybody. so -- but, the commitment that is being made by my clients toys finish the -- is to finish the project permitted. and if there is litigation over that, there is a process in place to cure that. as far as the demolition issue, i think we've demonstrated that the calculation on the vertical is 36.6%, i don't believe that mr. buscovich is correct in his

consideration of the garage. but if you take into account all the things that mr. buscovich, either add or subtract from the calculation, the calculation is 39%. we're not at 40%. everything i heard from everyone out at the site, my conversations is that they've looked at this with a fine-toothed comb, as well they should. and they've determined there is not demolition. and that the project should move forward. i do believe if d.b.i. or the planning department had a concern in that regard, we'd be dealing with them and they'd be telling us we can move forward. we can move forward appropriately and correctly to build the project as permitted in 2015 and to encourage and deal with the resolution of the civil case. we don't dispute the property damage. we do say that we're here to protect their property moving

forward, about but we do need to move forward. >> i have a few questions. there was assertion that the contractor that has been much maligned during this hearing was pulling from as recently as last november? >> i can. the client is in the process of selecting a new contractor. we did ask cook construction to pull the permit to protect the property in the interim. as you can imagine when you're trying to find a contractor to take over a project, it's always a little tricky. and the contractor is looking at this project knows there is challenges. >> has the new contractor been identified? >> it's not been selected yet. we're still in the process. they're in final negotiations. my client can answer that question. >> i think that's something that would, you know, under our purview, as a neighbor, from their perspective, it would be give pause if it's released to the same contractor that is the root of many of the issues. >> you can assured that i have

advised my client under no circumstances should this contractor continue on the project. >> there is assertion from the appellant that markers were placed on the appellants' property without their consent, knowledge. thankfully, they were there because it did note the half inch of settlement. can you speak to the process by which the markers were or were not placed? >> all this was before my retention. my understanding what normally happens in these projects, a neighbor agreement is entered into. you approach the -- >> you mind if i -- >> since you weren't there, can we get your client to explain. we've heard from both sides. your attorney started after. i'd like to answer her question first, but then to go into, can you start from the beginning, how you acquired the property, has happened -- what has happened, what your communications are like? >> so maybe start with -- so i

guess to pick up on commissioner honda's question there is an assertion that the relationship has not been great between the neighbors. you're not living there, so you're not there living and sleeping and being neighborly this that way. did you provide notice to your neighbors when you began the construction work, hey, we're going to be doing that renovation? >> we did. mr. honda, i'll dovetail. we purchased the property january 2015, we met a gentleman at a baseball game and he lived in the home for 30 years and was looking to sell it to a young couple, starting a family like they didn't have kids, but that's who they felt they wanted to sell their home to. someone who would enjoy it and live in it for a long time. once we took ownership, we had a couple of barbecues and everything in the back. and john, we actually had a good relationship, traded barbecue

food, wine and discuss what we were doing. we discussed in detail what we were planning on doing. obviously, i have not done this before. and as we started doing plans, you'd be working with an architect who would come up with a neat idea and we would say, well, that seems cool, why don't we add that? and we'd ask, is that difficult, does that take more time? they said, no, this is not that big of a deal. i'm a lot smarter than i was yesterday based on experiences, but you know, we were just kind of flying by the seat of our pants. we didn't have intention of filing multiple permits because they're pretty expensive. >> indeed. not to interrupt you, you moved in, you had the relationship, you began the project. did you notice your neighbors when you were beginning to the project, when the permits were issued and you started

construction? >> we discussed when construction was starting based on the date. i don't know if we gave them an official notice that we were starting. >> there was notice, because there was 311 notification. >> right, we met a couple of times at the house and the meetings were about an hour, they asked questions, what were you doing, following ahn on those. -- up on those. we sent them the plans to show them the scope of work we were doing. >> and in regards to the markers placed on the property. i don't know how detailed you were with the contractor at that point, awere you aware they placed them? >> i don't know if they did that. >> and would you say in terms of the relationship an communication improving or deteriorating, how did that go from what seemed to be an amicable relationship? it seems like you were speaking mainly through attorneys. >> right, there was an easement issue and i guess we were not

aware there was an easement on the property. and we sent -- there is a letter that went back and forth with each of them. then we got a call from their attorneys. and then immediately they served us with a lawsuit. i reached out a few different times. saw them in person and asked if they wanted to have a meeting to discuss this to see what the issues were and how to resolve this. and the next thing i knew, we had a lawsuit, that was sent to me and served with papers. after that, we tried to reach out again to try to figure out, what is going on, can we resolve this? and they just said talk to our attorneys, talk to our attorneys, we don't want to deal with you directly. so i followed suit and hired our attorney and he's been representing us since. >> can you speak to the issue with the contractor? i know it's difficult to find a contractor these days. there is a lot of competing projects bigger in scope than

yours. how is that search? >> it's going well. eve looked the a -- we've looked at a couple that we had looked at prior to selecting cook construction. we had three bids in the beginning. we dusted off the other two folks, checked where they are in stats on projects. it seems like they're both good. >> so similar question, when these accidents started happening, sir, i mean what were you thinking when the first one happened? and what was your conversation like with greg? >> i was very -- well, first of all, i was clearly very upset, but second of all, i did not know they took out more of the house than they were supposed to. >> how did you find out? >> well, i found out in the

first one, is -- i guess with the first floor, in order to dig out the basement area, they said well we've got to bring these tractors in because we can't do it by hand. i said are you sure -- >> more time and more expensive. >> right. and we went through this whole thing where it's going to cost more to have manual labor than this and we'll replace the wood, so we're not trying to -- i asked him the question, are we allowed to take out this area? absolutely, we do this all the time, this is not a big deal. we'll be putting the same wood back to where -- >> famous last words, right? >> lot smarter today than i was. that's what happened the first time. and that was the first issue. >> and the second? >> the second one, i had no idea they took out the front of the house. we were out of town that week. and all of a sudden, we came back and saw the red tag, or got the letter and we asked them

what happened? and it was a similar story. well, we were working to put this piece of steel here and in order to do that we have to do this. i said, but we've been through this once, did you have a permit to do that? they said, no method and means of construction and that is normal. i said does the city know about that idea? and i said because the last time you told me that and where are you when this happens? where are you in the room, standing up and telling them about this method and means idea. the same thing happened the second time. my wife and i both distraught, upset, frustrated, because we don't know what it means for the future of the project. and we've been working through it the best we can to get there. >> thank you. >> okay thank you. anything further? >> okay. counsel, can i ask a question? >> i didn't want to ask it of

your client because it felt inappropriate to do so. so, here's where i'm having my -- i'm not disagreeing with your point of view, but the track record stinks on this. every promise that has been made has been broken. every -- the statutes are clear. you don't take out this and yet it's been taken out. there is no reason -- my apologies to the property owner, but you know, the credibility of the property owner has been vanquished. the only leverage left to get the next door neighbors their

money to fix their building is to hold up the situation unless your client wants to arrange for a letter of credit to cover the damage personally. that's a big obligation and i'm sure your client is well overspent on this project at this point. or to personally financially indemnify the next door neighbor against further damage and damage inflicted. what other way out of it, given, you know, the credibility issues that now exist, what other way out of it is there? i wouldn't -- i would be real uncomfortable to see this project go forward, finished, these guys have a brand new home and the guys who have been damaged are still dealing with

some insurance settlement situation? i mean, i feel real uncomfortable. >> i understand that completely. again, i've said before, i don't know. the second time, it's hard to stand up here with a lot of credibility. but i do think this. a, the owner strictly liable for the damage to the neighboring property. second, there is a legal process. and the legal process is in the courts on how you enforce damage claims. i've been in front of this group before. when we talked about the difference between going to court and issues in front of this board. so we have a process in place. i communicate with the lawyer defending the lawsuit on a regular basis. i'm in communication with the insurance company. i will tell you, without getting into a lot of detail, but we have been -- and i think it was in our brief -- we've been asking for a settlement demand and a specification of the damages for months.

and we got one last week. >> i'm going to ask that question after because it was not in the brief. >> we got that last week. it's in my declaration. the demand was sent over to insurance defense counsel. directly. there have been communications as recently as today with respect that demand and setting up a process, perhaps mediation to try to get it resolve. there is a process in place. we talk about hundreds of thousands of dollars of damages. yes, i believe they're claiming hundreds of thousands, whether it's really truly -- >> what was the specific damage claimed? i'm going to say the demand was in the $450,000 range. i can't remember, that sound about right. but whether the case is worth 250 or 500, now is in a place where we can have that conversation where we couldn't before. >> where is the leverage? the leverage is the lawsuit.

the leverage is the trial. >> well, no, i'm uncomfortable at this point, and maybe you can ease my discomfort, where is the leverage if we allow this permit to move forward? i'm not saying that we didn't uphold the appeal. i'm saying deny the opportunity for this to move forward at this point. if we don't do this, where is is the leverage for the neighbors to get assurance they're going to get paid, that they're going to get their building refreshed at no cost or obligation to themselves? >> again, i would have to say -- >> forget the courts. >> well, there is two places. number one -- >> they didn't ask for this. they're not in a horse race. they have to be assured they're going to get fixed. so if the leverage disappears, we move forward on this permit,

where is the leverage that these neighbors now have? >> there is two things. leverage can be a specification that there be engineer on site to ensure that the project is built further without further damage to the property. i have no problem -- i know my client would have no problem in any kind of specification that an engineer be on site to ensure the safety of the project, vis-a-vis the neighbors. so that the only thing we're dealing with going forward is past damages and how we get the property repaired in the lawsuit. i think if you're talking about leverage and assurance you're not going to have increased damage to the property, that is one remedy. other than that, you know, again, that's why we have -- >> is your question answered? >> yeah, it would seem to me, it would seem to me that the

suggestion of postponing this decision tonight and moving this forward to later point is the only leverage that is there to keep the heat on your clients to get this thing settled an get these people paid. >> other than having an engineer on site, i think there is no control over the legal process. the courts could decide there is no room for us on april 4. there could be further continuances. i can't control that. >> thank you, counselor. >> just to be clear, your clients don't have settlement authority. >> no, they're being defended by an insurance company. and the insurance company defends, we have to stay out of the way. that's what the policy says. >> regardless of what we do, we cannot prompt them to settle sooner or later. >> last question, are your clients doing this as a spec project or they're planning to live there? >> they're planning to live

there. >> let's move on. >> thank you. we'll hear from the planning department. >> be brief here. just mr. buscovich's comments about having additional review of the demolition, this had very thorough review of the demolition calcs. they sent a lot of time there, reviewed the revised plan and with other senior staff that specialist in demolition. we're comfortable with how it has been handled on our end. second, correct the record, i misspoke earlier when i stated how that would be a possibility.

it not be because of the existing residential unit. >> i'm sorry? >> home sf would not be available to the site because of the existing residential facilities. >> thank you. we'll hear from the department of building inspection. >> commissioners, i'll be brief as well. i'm sure you saw in the brief, you know they showed the photograph of the really wide crack. the other photos, if i could have the overhead -- >> overhead please. >> this is typical of a project next door. you will get this if you live next door to someone who is digging in sand. it's unfortunate. it does happen. but it needed to be discussed before hand. this is a pretty minor crack. but it looks like -- i just -- the other crack, i'm not sure what they have to do to fix it all. again, without an engineering report, detailed engineering report, i'm disappointed not to get that and the monitoring,

that's important. the other thing i'm not sure about here tonight, are they finished pouring the concrete on that site? i didn't hear that. maybe they did. maybe they said it and i didn't understand it. are they done with the concrete? that means there probably won't be much more movement of the property, settlement. that's important to know. if they have ongoing monitoring moving forward and obviously that should be submitted to d.b.i., so we can have a d.b.i. engineer look at that as well. because we are normally on site if there is monitoring, if requested. we had one here at the board where we wanted it for the next 12 months >> sacramento street? >> i believe it was. and that worked well. >> and that was terrible. >> what is your suggestion with regards to engineering report if we were to postpone decision on this tonight, can we attach that to getting a suitable

engineering report on the project? or is it water under the bridge and we're too late? >> there should have been one already. someone has a report somewhere on the extent of the damage if someone has calculated how much it is, it's just not in the paperwork. the monitoring reports. someone said it moved half an inch. >> should we be asking the appellant or the sponsor of the project? >> whoever did it. >> the damage to the property, it's usually provided by the property that is damaged. but obviously they'll be recouped for that whenever this all comes out. >> thank you. >> thank you. >> commissioners, this matter is submitted. i want to start -- for clarity we have two matters, alteration permit and release of suspension. we have do deal with them separately. >> i'll start just kind of generally. i don't know that i'll make a

motion to start out, but just kind of to express where i am. i am not inclined to continuing these items. i'm inclined to figuring out the permits. i believe the court system is the leverage. they're going through a court process that will have the decisions heard and deal with the damage. i belief the damage is beyond the scope of this board. i don't think delaying this helps anyone. it delays resolution and has no bearing on whether or not how much is paid for the damage that has been done. so i am looking at notes made around monitoring, engineering report, ongoing monitoring on the neighboring property. perhaps even though it may go out saying, just for everyone's benefit to say the facade will be rebuilt as per plans to

reflect the way it was previously constructed. i don't know if we can think about the permit not being issued to the specific contractor, but maybe that is too much in the weeds. a liaison or project manager that the neighbor would have contact information of. so there is someone they can talk to and is the direct point of contact. those are things -- i'm not sure which permit needs to be conditioned, but that's the laundry list was making and the perspective i have. >> that would be on the alteration permit. i think. >> yeah, look, i think this is incredibly frustrating for the appellants. and really difficult thing they've been through and i think it needs to be and will be worked out through the court process. that is the most appropriate place to address past damages as well as the potential for any sort of monitoring or safety on

the site that a court can oversee. i support conditions that we can impose. -- but you know, i think they're here because they want to stop the construction period. but i don't mind adding conditions. and it sound like the permit-holder is amenable to them. >> so i concur with both my commissioners. agreed with commissioner santacana in regards to it would be pretty crappy to live next door and have that kind of damage done to your home without resolution. at the same time, the resolution that they're seeking is not in the hands of the permit-holder. it's in the hands of a third party insurance company, who they are notorious for trying to get the best bang for their buck. you know, when you come in front

of here, we look at the briefs, we look occasion. that's why i asked is there multiple issues with contractor? i asked planning and building who are knowledgeable and have been in the city for quite some time. and there really hasn't. did an accident occur here? yes. was the game significant? did they dig out so they can increase their floor height and add additional square footage to their house? no. and to me, i really despise when contractors and professionals come before us and they lie about their permits and as the counselor said, they don't ask for permission, they're asking for forgiveness. oops, we added an extra garage door. oops, we added an extra floor. in this particular case, there is no gain here.

i asked was there gain? did they get an extra floor, extra room? was there a mistake? yes. what i'm sad about is that you have to live next door to each other. that's the worst portion of it. but for us, if i felt that there was ill gotten gain and there was a reason why the permit-holder knocked down the facade or additional space, trust me, we penalize hard here. they knocked down the space, but they're not going to change the facade, to me, that makes a big difference. so at the end of the day i would not support a continuance either. i think that having a construction site on the block and create that issue for ongoing issues. having them not repair or do further work is going to cause more damage. and so what are the two permits

before us? >> we have one permit before us. that's -- it was a revision to the two earlier permits. so the second matter is a release of suspension of the two earlier permits. >> so how would that be -- >> we would do one at a time, but i see what direction you're, but i would like to ask the department of building inspection if one of the conditions was that an engineer be on site? >> i think that monitoring be done by the department, but that was kind of commissioner tanner's, but one liaison be added. even the permit-holder himself said i didn't know. >> liaison with the permit-holder or contractor? they don't have a contractor. >> that needs to be established soon. >> how much time do you need to get a contractor?

can you come to the podium, sir? >> how much time do you need -- what this board could do is continue this for four more months and you're looking at a graveyard where your money is parked. how much time do you need to actually contract and get a contractor? how close are you? >> i'm pretty close. i heard they can start in march. >> which is not bad. and are you identified three, identified one? >> two i've identified two. >> can i have the names? >> lucas eastwood, eastwood development. and we're looking at m. projects. >> okay. thank you. >> i think the monitoring, ongoing monitoring to have the monitoring that has happened and will happen also be accompanied by the engineering report, so it's not just the monitoring itself, but what is the analysis and that would be available to the department and to the appellant. is that my understanding?

>> that is your cue to come up, old wise one. >> yes. the ongoing monitoring would be good. we typically, you'd want to be getting them monthly for maybe until the structural foundation and framing is all done. after that, you can go -- it could go to twice a year. and then -- >> so monthly reports and ongoing monitoring. >> and that monthly report would be provided by a structural engineer? >> monitoring the surveyor? >> surveyor. and it's usually submitted to d.b.i. to the -- to the neighbors' engineer. >> if i understand, it should say monthly monitor big the surveyor during the time the structural work is being done. >> correct. and up to maybe 12 months after construction is completed. >> once more, 12 months after?

>> yes. >> like the pictures you've shown, even new construction after it's completed, you'll see that type of settling. i tell friends that all the time. >> just one note on the contractor of record, they want sta are the the -- they can't start the work until. it doesn't matter the time. that's on them. if they decide tomorrow to go back to work, they can't until they have a contractor that puts his name on the -- switches his name on the permit. >> do you understand that? >> your attorney is saying yes. >> you have appraising and engineering on site? >> that should be part. every time -- >> we have special inspections. >> isn't that part of the permitting? >> not always. that's just special inspections >> so when they do the pouring,

the inspector is there to make sure the rebar matches what the engineering does and they're there to test and make sure the po pouring is correct? >> i'm not sure on the project. i don't know how much they had to do. i don't want to overkill on the reports. i think we got a report from an engineer -- monthly. and the structural work was done, we got a monthly report. it was a short report from an engineer. only until we get to the -- all of the framing and structural work is done. >> thank you. >> so that is have very good point that you bring up that no construction can begin even if we move forward and approve the permit, until they have a contractor.

so this gives me some comfort because it allows time for something to get done to protect the neighbor. so would you please advise this body as to what in the intermediate period, between the thyme the contractor is -- time that the contractor is hired and puts their name on the permit, what would you advise this body as far as conditions to be placed on the approval of these items? >> they can't do any work. they won't be able to do any work. >> i understand, but is there anything in the intermediate period that would benefit the appellants? that could be done to give them some comfort and further assurance that they've covered all their bases?

>> if once -- well, that would be -- i think there is some things done by the new contractor. he has to get the faith of the people next door. that has to happen. there should be a meeting between the contractor and the guy who is doing the work. i'm a big fan of news letter or outreach to let them know the schedule of work, what the work hours are, what is to be expected. and the contractor should be definitely giving them that. and they also should have a condition that at d.b.i. be involved before any work resumes. they can't just start up again. they have to schedule another start of work inspection before they resume the work. >> can you give us -- you were about to give us specifics, but it was still too broad for me. can you give specifics as to what we should establish as d.b.i.'s involvement before construction begins again?

>> the district. they should have -- >> these are for conditions. >> a building inspect -- inspection needs to take place before work resumes, mandatory building inspection. >> anything else? >> nope, i'm okay with that. that should be fine. >> and is there anything before construction begins? >> apart from the other items i mentioned, the monitoring. >> and before building resumes and before that permit, the permit is made whole by virtue of a new contractor, is there anything that we should stipulate as conditions for the protection of the appellant? >> you might want to ask them that. i'm stumped on that. if we get this new contractor in place, he's going to have to be very good because there is going to be a lot of eyes watching. >> the reason i ask, is because you're the man who does this every single day and you know

people become vulnerable. and i'm asking you to suggest these things to limit the vulnerab vulnerablity of an appellant that has been harmed in process. >> the building inspector will be on site for inspections take place. you can't have a building inspector there every night of the week. we only go out when there is progress. i'm not sure i can give you move much more than that. i definitely think the contractor needs to have -- there should be better outreach. i don't know how you put that condition. a schedule of activities. a pre-site meeting with d.b.i. present as well. >> thank you, joe. >> same question to mr. sanchez. since we're going in this direction and given the obvious

unintended abuse of the next door neighbors, what conditions do we place upon this as you're hearing that we're going forward? that protects the abused party. >> it goes without saying, but should be said that any additional demolition, they need to first obtain a revision permit before undertaking any additional demolition of the property that they simply cannot -- >> demolition, that will turn them into a de facto demo. period. they're at the line. if they do any more demo, it's de facto -- >> highlighting that as an issue and making them aware they're close. >> 49.6. >> our calculations are little less than that, but all the same, admonished, they need to obtain the permit.

>> i think it's a good point to add even though it's obvious. >> okay. the first -- the first one was engineer on site who can provide a monthly report which is sent to d.b.i. and you want that -- >> we need to amend that. with the engineer, there is a monthly engineering report that goes to d.b.i. and to the appellants. >> okay. so strike the on site. monthly engineering -- >> to the h.o.a. >> to the homeowners association. >> up to d.b.i. and the homeowner association. and then the second one was monthly monitoring by a surveyor with a report regarding the structural foundation that would be sent to d.b.i.

>> and h.o.a. >> and that would be ongoing monthly and then ongoing twice a year and ten 12 months after construction is completed. >> okay. semi-annually. after construction is completed for one year. >> semi-annual? >> so it's monthly until the structural and framing is done. and then once they're occupied, there is one more report after a year. to see what else has happened. >> and then we had the facade would be rebuilt to the way it was represented -- to the way it's represented in the plans. pre-demolition. >> and then we also have a requirement that the permit-holder provide a liaison to the appellants. >> which include phone number and e-mail of that person. >> which includes phone number and e-mail. >> the monitoring could be done

quarterly. apparently monthly is a little severe. and that's from mr. buscovich. i was going to say quarterly because it is quite -- a you're just causing -- you know it's dinnertime. >> the survey monitor. >> you can change it to quarterly. >> i'm not going to repeat this. we have it on the record. >> and then we have a liaison, as you said, that will with the permit-holder and the permit-holder must provide the appellants with a phone number and e-mail address that they can contact this liaison. we have the additional suggestions by mr. duffy. >> construction to begin without new contractor being on file. >> right, okay. >> no construction begins until a new contractor, not cook, or any variation of cook. >> cook is cooked. yes. >> and then prior to beginning

work, there has to be a meeting with the contractor and the h.o.a. with d.b.i. present i believe. and that the permit-holder provide, or the new contractor provide a schedule of the work, the hours and what is to be expected to the appellants. and also that prior to the work commencing, d.b.i. should inspect the property. >> you're good. you were play of paying attention. >> we have one more that scott sanchez suggested. any additional demolition requires a permit. on what basis are you making the motion? >> on the basis that this is not a tantamount to demolition but these measures help to protect the appellant and the permit-holder. >> first determination. >> 6a? >> yep. >> so on that motion, commissioners, santacana aye.

honda aye. swig aye. so that motion carries. and now we're on to the next determination which is the release of the suspension of the permits. >> i think i'll move to deny that on the grounds that the permits should be suspended. >> properly issued. >> right. >> there is no irer. >> so -- error. so we have determination is properly issued on that motion, commission honda aye. tanner aye. swig aye. so that motion carries. and this concludes the hearing.

>> still a lot of people wonder since the trees have a lot of issues, why did we plant them in the first place? >> trees are widely planted in san francisco. with good reason. they are workhorses when it comes to urban forestry. we have begun to see our ficustrees are too big and dangerous in san francisco. we have a lot of tree failures

with this species in particular. this is a perfect example of the challenges with the structure of the ficustrees. you can see four very large stems that are all coming from the same main truck. you can see the two branches attached to one another at a really sharp angle. in between you can't it is a lot of strong wood. they are attached so sharply together. this is a much weaker union of a branch than if you had a wide angel. this is what it looks like after the fi c.u. resolution s limb . >> we see decline. you can see the patches where there aren't any leaves at all. that is a sign the tree is in

decline. the other big challenge is the root system of the tree are aggressive and can impact nearby utilities, and we can fix the sidewalk around the tree in many cases. we don't want to cuts the roots too severely because we can destabilize the tree. >> in a city like san francisco our walks are not that wide. we have had to clear the branches away from the properties. most of th the can canopy is one street side and that is heavyweight on those branches out over the street. that can be a factor in tree limb failures. a lot of people wonder since these trees have a lot of issues. why did we plant them in the first place? they provided the city with benefits for decades. they are big and provide storage for carbon which is important to

fight climate change and they provide shade and really i think many people think they are a beautiful asset. >> when we identify trees like this for removal and people protest our decision, we really understand where they are coming from. i got into this job because i love trees. it just breaks my heart to cut down trees, particularly if they are healthy and the issue is a structural flaw. i have also seen first hand what happens when we have failures. we have had a couple of injuries due to tree failures. that is something we can't live with either. it is a challenging situation. we hate to lose mature trees, but public safety has to always

>> directe[roll call] to always >> chairwoman: item three, announcement of prohibition, please silence your cell phones and all electronic equipment. they are prohibited at the meeting. the chair may order the removal from the meeting room of any person responsible for the ringing of or use of one of these devices. item for approval of minutes from the january 21st and