>> clerk: she's joined by vice president honda, commissioners santacana, chan, and swig. at the controls is the board's legal clerk, and i'm julie rosenberg, the board's executive director. we will also be joined by representatives from the city departments that will be presenting before the board this evening.

mr. longway, our legal clerk, will give you a verbal warning 30 seconds before your time is up. if you have questions about requesting a rehearing, the board rules, or hearing schedules, please e-mail board staff at boardofappeals@sfgov.org. so public comment and participation is of paramount importance to the board, and every effort has been made to

replicate the public process. sfgovtv is broadcasting and streaming this hearing life. sfgovtv is also providing closed captioning for this meeting. to watch the hearing on t.v., go to cable channel 78. it will be aired on friday on channel 26. or you can go to the the board of appeals website. or you can join by phone by dialing 1-669-900-68233, and enter the webinar i.d.

883-2025-3184. dial star, nine, which is the equivalent of raising your hand so you can speak when it is your turn. you will get a notice 30 seconds before your time is up. it's very important that people calling in reduce or turn down the volume on their t.v.s or computers, otherwise, there's feedback in the meeting. now, we will swear in or affirm all those who intend to testify. please note that any member of the public may speak without

taking an oath pursuant to the sunshine ordinance. if you wish to testify at any of tonight's proceedings, stand and raise your right hand if you're able, and answer after me. i swear or pledge that what i say tonight will be the truth, the whole truth, and nothing but the truth. we are moving onto item number 1, which is general public comment on items that do not appear on tonight's agenda. okay. so we have the caller whose

phone number ends in 8029. are you here to provide general public comment? we can't hear you. try star, six. hello? okay. we're going to go back to that caller. how about the caller whose phone number ends in 1186? i see two hands raised for public comment. the caller whose phone number ends in 1186, 1186, we can't hear you. >> hello? hello? >> yes, hello. >> hi. are you here to provide general public comment? >> yes. >> okay. so this is not for any item on

the agenda, right? >> no. >> okay. please go ahead. you have three minutes. >> hello, commissioners. my name is steven, and i live in chinatown. i'm not sure which community is objecting to the restaurant, but chinatown has been too quiet these days. >> i'm sorry, sir. you're here to speak on the item number 6, i believe, so it's not time for public comment on that. this is just general public comment. if you're here for the chinatown restaurant, it's not time for public comment. if you could lower your hand. okay. i'm going to have to check with the other callers if they're here for that item. the caller that ends in 8029, are you here to provide public

comment on an item that's not on the agenda. okay. can you dial star, six and try to speak? maybe you can send a message in the chat function? >> can you hear me now? >> yes. are you here for just general public comment, as long as your item is not on the agenda? >> oh, no, i'm for a case? >> i'm here for one of the agenda items? >> okay. well, you have to wait for that item is called, and then you have general public comment. you need to put your hand down, please. >> can you tell me how to do that? >> yes, it's gone. okay. now we're just going to try for the caller whose number ends in

1186. are you here to provide general public comment? i can't -- that person doesn't seem to be able to communicate. if you can send a message -- well, i guess they're not on the computer. the phone number ending in 1186, if you can hear me, you can send an e-mail to boardofappeals@sfgov.org, and we'll try to get you in, but at that point, president lazarus, i don't -- >> operator: do you want me to lower the hand? >> clerk: yes, please, at this point. maybe you can try calling that number, alex, and we'll see what they're here for. >> operator: okay. >> clerk: okay. so it doesn't appear that we have any general public

comment, so we are going to be moving onto item number 2, which is the election of officers. article 1 requires the election of officers this time of year. i want to thank president lazarus and vice president honda on for your help and service this past year, and we are now going to start with the office of the president. are there any members of the board who would like to nominate a colleague or themselves for this position? >> commissioner swig: yes, please. i'd like to nominate vice president honda for the position of president of the board of appeals. >> clerk: okay. is there any further discussion? okay. is there any further discussion to elevate vice president honda to the position of president? and vice president honda, i just want to confirm that you're willing to serve in that

position. >> vice president honda: willing and able for the second time around, sure. >> clerk: okay. so on commissioner swig's motion to nominate vice president honda to the president's position -- [roll call] >> clerk: okay.

it's unanimous. congratulations, president honda. and we'll move onto the vice president. >> president honda: yes, i nominate commissioner santacana for position of vice president. >> clerk: okay. is there any further discussion? on the motion to appoint commissioner santacana as vice

>> clerk: okay. the motion carries unanimously. congratulations, commissioner santacana. any further questions or discussion? >> commissioner swig: yes. i'd like to congratulate commissioner lazarus for her service as president. >> clerk: okay. we'll move onto item 4, discussion of the minutes. commissioners, before you for possible discussion with the discussion and possible adoption of the january 13, 2021 minutes. >> commissioner swig: motion to adopt those, please. >> clerk: okay. is there any public comment on the motion to adopt the minutes? okay. seeing none, on the motion to adopt the minutes of the

january 13 meeting -- [roll call] >> clerk: okay. so that motion carries 5-0, and the minutes are adopted. we are now moving onto item number 5. this is a special item. the board of appeals -- i think we need to mute somebody -- item 5, board of appeals budget priorities for fiscal year 21-22 and 22-23. this is an opportunity for members of the public to provide the board input on budget priorities pursuant to section 3.3-b-1 of the administrative code in advance of the boards consideration of the fiscal year 21-22 and 22-23 budget. this is the opportunity for the public to provide input. if you want to provide input, please raise your hand.

okay. i don't see anyone wishing to provide input, so we will move onto the next item, which is item number 6. this is appeal number 19-123, malcom yeung versus the zoning administrator, subject property, 838 grant avenue, pealing the issuance on october 29, 2019 to malcolm yeung, of a letter of determination, determination that the nonconforming restaurant use on the fifth and sixth floors of the subject property has not been discannoted or otherwise abandoned pursuant to planning code section 183-a. the determine is based on the fact that a building permit was submitted within the three-year discontinuance period to significantly renovate the restaurant space, additional

permits were subsequently issued for additional work for the restaurant use. all of these permits are still active and the authorized work and associated inspections have already begun. as a preliminary matter, president honda, i'm just giving you a reminder about disclosure. i can't hear you, president honda. >> president honda: sorry, i'm unmuting. i'm a partner in a project that hired the firm of reuben and junius. their representation in this case will not have any effect on my decision. >> clerk: okay. thank you. so the parties will have three minutes each, and then, we'll have time for public comment. so we'll hear from a representative for the appellant first, mr. thomas gersey, i believe, will be representing the appellant.

>> that is right. thank you very much. i am a member of bright line defense, representing malcom yeung. as far as a status update, we regret to inform the board that the sides remain far apart after negotiations between alan law and mr. reuben. while negotiations are on going, we still believe that the letter of determination should be overturned. there's been no actual use, and it would be ripe for the board to make a decision of abandonment at this time. thank you. >> clerk: okay. thank you. we will now hear from a representative of the property owner, mr. reuben. >> can you hear me?

>> clerk: yes, we can. welcome. >> thank you. i wish i could say it's nice to be here. it's been -- this appeal was filed in november of 2019. a lot of water has been under that bridge, and as you all know and remember, the restaurant is signed off as complete and was basically open before the pandemic closed. i keep trying to remind. i don't think i really need to remind you, but to rein the hearing of the zoned administrator on its face. that's what you're being asked to judge. the restaurant had a permit before the three years. it had a permit on both the fifth floor and the sixth floor. i'm going to yield my time to

john yee, who is the owner of the restaurant and the person that i communicate with, and he would like to say a few words to the commissioner. >> clerk: okay. thank you. >> good evening, commissioners. am i on? >> clerk: yes, you are. thank you. >> the project sponsors sole purpose to purchase the empress project and to turn the restaurant. the banquet hall was never in question until the group learned that the restaurant was never for sale for any press. we have sat silent long enough. with today's fourth hearing upon us, the truth needs to be told. after a failed attempt to take the building, they resort to blocking all my permits for the

empress restaurant, blocking one effort after another. we did reach out to the community. we have reached out to them numerous times. we have been trying to negotiate to remodel for years an existing restaurant, four years, but we are still inclined to work with them, to work with the community and also again to bring the parties together on table, and per commissioner honda's request, we reach out to the appellants once again, and their demands are as follows: provide a 25,000 banquet space 50 nights a year at a reduced cost. there's no business that can operate on a fixed cost for 25 years. i ask you, commissioners, to

uphold the sponsor's right and make the lawful decision to end this appeal tonight. >> operator: time. >> thank you. >> clerk: thank you, mr. yee. we will now hear from the planning department. >> good evening. scott sanchez, planning department. we've had multiple hearings on this item. we maintain that the facts in the letter of determination are correct and that the determination is appropriate and just to reiterate, i think what was discussed extensively at the previous hearing, if the letter of determination appeal were to be upheld, and the letter of determination is found to be in error, that would mean that the fifth floor of this restaurant would no longer be able to be used as a restaurant, so it would remove the community banquet space, which the appellant is trying to preserve.

there's no guarantee that that would happen, and there's no guarantee that the owner would be able to restore it as such. we would respect that the board uphold the letter of determination. as noted by the letter holder, there's been extensive work and in fact the business has been in operation. this was a letter of determination that was requested. it's not part of the normal permitting process, but after all the appeals had lapsed, it was -- all the delays had lapsed, it was an appeal generated by the appellant. we determine that this was correctly determined and respectfully request that the board uphold the decision. i'd like to congratulate the board for their successful and peaceful transition of power, and i'm available for any

questions. thank you. >> clerk: we do have a question from commissioner swig. >> commissioner swig: yeah, thank you. scott, good day to you. there are no open issues on this. all the permits are -- there are no -- other than this appeal, everything has been baked in; there are no n.o.v.s, no open issues with regard to inspections? everything is done? >> i'm not aware of any outstanding issues. i believe that, you know, the department of building inspection has completed and closed out the relevant permits. there's certainly no planning violations with the property. >> clerk: okay. i'm sorry. commissioner swig, we can't hear you. >> commissioner swig: i'm sorry. if mr. duffy is going to speak after you, he may consider this a question for himself. >> clerk: okay. so we are now moving onto

department of building inspection. mr. duffy? >> commissioner swig, what was your question again? i'm sorry. i just missed the other. >> commissioner swig: are there any outstanding n.o.v.s, inspections, or is there all complete? >> from the last hearing, we had signed off all of the permits that i understand mr. sanchez and i were on the site visit. i believe there are no other items outstanding, and if there are, we can easily work them out with them. just tell the business owner to make sure that they follow up with all of their permits, check the website, or contact me, and we can definitely make that. but i don't believe from when i was there, it was a well remodelled space, and it looked like it had been for a period of time. >> commissioner swig: thank you. >> clerk: thank you. deputy director duffy, did you

have anything further? >> no, sorry. i'm done. thank you. >> clerk: oh, okay. thank you. so we are now moving onto public comment, and president honda, i just wanted to confirm since this was the fourth time this is before the board, i understand we have a long agenda, will we be limiting the time? >> president honda: we will be limiting public comment to one minute as this item was previously before the board, and as mentioned, we do have a long agenda this evening. >> clerk: okay. i see a few hands raised, so there's an unidentified caller. if you could please go ahead. it says you're identified as call-in user three? can you press star, six? >> hi, is that me or can you guys hear me okay? >> clerk: yes. you have one minute. >> all right. i'll try to make this brief. i'm jin, and when i learned that a restaurant would be put into the iconic empress of

china building, i thought there could be no better use. i thought we could drive there, but we're going to drive out to open chinatown, but me and my friends come to chinatown once in a blue moon. if you bring in more food traffic, this restaurant would bring in business. if you don't want a restaurant, you don't have to go, but don't ruin it for the rest of us who are anticipating the reopening of this destination spot. i speak on behalf of my friends and family who are all in support of a restaurant being returned to the building. thank you for your time. >> clerk: thank you. we will now switch to the caller whose phone number ends in 8029. please go ahead. we can't hear you, though. press star, six.

go ahead. >> all right. good evening, commissioners. my name is karina fong, and i'm calling you to support to keep the restaurant open to the public. chinatown merchants will have more business because there will be increased demand for ingredients and business. [inaudible]. >> there is no logical reason to prevent the empress restaurant from opening. i hope you can deny this appeal and support the restaurant. thank you. >> clerk: thank you. we will now hear from the caller whose phone number ends 3151. 3151. >> okay. >> clerk: yes. thank you. welcome. >> okay. can you hear me? >> yes. >> okay.

okay. okay. so my name is tony. i'm here to support the restaurant, and stumbling upon this hearing most recently, i have to give my input. the owner said it clearly was planning to bring a restaurant back to support the community. we clearly all want that, so what's the problem -- >> hello? >> operator: 30 seconds. >> clerk: i think we lost that caller. >> operator: do you want me to pause that time or move forward? >> clerk: let's move forward. i guess we can -- i don't know what happened to them, so the person whose phone number ends in 8029, you've already spoken, to if you could lower your

hand. i'm going to lower your hand. rosa chan? >> hello. i'm rosa chan. the board of appeal has already heard about the many concerns that will be raised for our community. we know that zoning has a long history of inequity especially when it comes to low-income communities of color and it just shows that those who have the money get what they want: pushing the communities aside. this restaurant is going to be key in saving chinatown and our community roots. we will be losing more of these spaces if we don't protect them now. thank you. >> clerk: thank you. we will now hear from the caller whose number ends in 0355. please go ahead. 0355.

i see that you've unmuted. the caller whose number ends in 0355. >> hello? >> clerk: yes, you have one minute. >> hello. my name is michelle wong, and i've been in the building many times before they closed. i saw the christmas lights and decorations during the holiday season, and it was just so beautiful. i never expected to see anything like that in chinatown. the sponsor clearly knows what he's doing, and i can only imagine when the empress restaurant opens up, it will definitely bring people into chinatown, and that's what we need right now, so please, please deny the appeal, commissioners. thank you. >> clerk: thank you.

we are now moving to call-in user number two, an unidentified number. please go ahead. okay. we can't hear you -- okay. please go ahead. i see that you've unmuted, so you can speak now. >> oh, can you hear me? sorry. >> clerk: yes. you have one minute. >> good evening, commissioners. my name is bella lamb. my mother is runs a small community store in chinatown, but she doesn't speak english well, and she wanted me to give a statement. just had my mother -- in my mother's circle of friends, there were lots of grandma and grandpas who were excited at the idea of another restaurant

in chinatown. we live in the communities, and we would love to have the option to go into chinatown. please deny the appeals. thank you. >> clerk: thank you. we will now hear from the caller whose number ends in 6487. >> yep, hello, can you hear me? >> clerk: yes, we can hear you. thank you. >> yeah. good evening, commissioners, and thank you for giving me an opportunity to speak today. my name is samuel wang, and i am here to voice my current concerns about the empress in chinatown. we are currently in a pandemic and the streets are empty, but it doesn't have to be this way. we can be part of the solution instead of the problem. [inaudible]. >> we should not be making it harder to increase [inaudible]

allowing this restaurant to permit only aids our community and those who are looking to invest in it. [inaudible] which the last thing that we should be doing. we should be for the community, not against it. please save chinatown's restaurants and businesses and allow the -- >> operator: time. >> clerk: thank you. we will now hear from the caller whose number ends in 7724. 7724, you can go ahead and speak now. you can go ahead. 7724? yes, go ahead, please. you have one minute. >> hi. my name is rachel lee. my parents were one of the many people who had their wedding at the empress building. i was very happy to hear the project sponsor is planning to make that happening here with

the banquet hall. it's really sad to know that people are trying to prevent that from happening. please keep that from happening. thank you. >> clerk: thank you. we'll now hearing from call-in number 6. >> hi. >> clerk: hi. you have one minute. >> hi, commissioners. my name is jennie wang, and i was born and live in the heart of chinatown. all the businesses are closing left and right, and there's completely absolutely no foot traffic on the streets right now. the chinatown needs this restaurant to open in order for our community to be thriving once again. hopefully you deny the appeal and let the restaurant open.

thank you for your time, commissioners. thank you. >> clerk: thank you. we will now here from elizabeth su. miss su, elizabeth su, you can go ahead. we can't hear you. elizabeth su? >> hello? >> clerk: hi. you have one minutes. >> [inaudible] a small business owner and a san francisco resident. i know firsthand now how hard it is to open a business in the city. covid-19 has made it even harder. no one wants to open a business in san francisco because it's extremely difficult. i am terribly impressed and very moved that there's still people who are willing to open during this economy even in the

midst of this pandemic. i'm asking for the commission to deny this appeal and give the owner a chance on this appeal. if this appeal is upheld, we won't have anything really to look forward to in chinatown. thank you. >> clerk: thank you. we'll hear from the caller whose phone number ends in 1085. okay. we're going to come back to this person. call-in user number six? okay. let's try the phone number ending in 7548. please go ahead. looks like -- please bear with me. i see four hands raised.

if you would like to provide public comment, this is call-in user number six. i need you to unmute your -- your phone. i'm -- >> clerk: okay. we'll try call-in user number seven. please go ahead. >> okay. i'm hoping this will be quick seeing as the planning committee and everyone else has been giving cut and dried points. my name is cindy, and i'm calling in to say that i would like the appeal to be denied and allow the empress to reopen. it's truly iconic to chinatown, and it's something that we've

been looking forward to. as i'm sure you're aware, we're the oldest chinatown in the country, and with rising xenophobia, this will bring our life back into the community, so i'm reiterating what a lot of people are asking, which is to allow the restaurant to reopen. thank you for your time. >> clerk: thank you. we will now hear from the caller whose number ends in 7548. 7548, if you could please go ahead and start your public comment. unmute yourself. >> hi. can you hear me? >> clerk: yes, we can, thank you. >> yeah, my name is kim chong. i live in chinatown for 30 year, and i really looking forward to have a restaurant where i can have a good time.

thank you. please open the restaurant. appreciate it. >> clerk: thank you. we will now hear from the caller whose number ends in 8537. 8537, if you could go ahead, please. try pushing star, six. phone number 8536. -- 8537. >> hi, can you hear me? >> clerk: yes, thank you. go ahead. >> hi, good evening. everybody. my name is albert lui, so i'll make this really short. in the previous hearings, the project sponsor took all the necessary steps and procedures he needed to open the restaurant, so by my understanding, he has abided with the law and obtained all the work permits needed.

as mentioned in the last hearing, there were individuals who inquired about obtaining a banquet hall, but isn't that what the project sponsor doing? given all that we're facing, a new restaurant in chinatown is exactly what we need. please deny the appeal and allow him to open. thank you. >> clerk: thank you. we will now hear from the caller whose number ends in 1805. 1805, go ahead, please. >> hello, can you hear me? >> clerk: yes. >> hello. my name is ella. i'm here to support the restaurant, yeah. as growing up, chinatown has always been where i go to do [inaudible] and attending the family gathering?

i am see so many businesses come and go, but there has been more [inaudible] in the later year, so it's really exciting new that there's a new restaurant open in this area, so i hope you can allow for this new restaurant to stay. >> clerk: thank you. we'll now hear from call-in user number six. please go ahead and speak. >> hello? >> clerk: it's possible this person has spoken before. press star, six so we can hear you. star, six. okay. i do see a hand from jeremy schab. mr. schab, i believe you were

involved in this project previously, so i don't believe you can be involved in public comment. >> just advising the board i'm here if there's any questions. >> clerk: okay. we'll try one more time with call-in user six. if you've called in, please press star, six so we can hear you. okay. we have another caller whose number ends in 6339. if you can go ahead and speak. 6339. >> hi. >> clerk: hi. >> hi. can you hear me? >> clerk: yes. >> okay. i'm [inaudible] and i'm calling to let you know i am an immigrant from hong kong, and i grew up in san francisco chinatown, and i am really glad to hear that the empress restaurant would be opening again? i have many fond memories of the empress of china growing

up, we had a lot of celebrations and parties there. my grandmother's 80th birthday, marriages, and [inaudible] members our families and a lot of really happy celebrations there, and so i'm hoping that i will be able to take my children and my grandchildren to empress, so please allow the owners to open, and please stop this senseless delay and let the restaurant open so that we can go. thank you very much for your time. >> clerk: okay. thank you. and i believe we already heard from call-in user number six. if you're here for public comment and you haven't spoken, please raise your hand. okay. at this point, i think we are done with public comment, so commissioners, this matter is submitted. >> commissioner lazarus: i'm

prepared to make a motion unless there's further discussion. >> president honda: go right ahead. >> commissioner lazarus: i would move to deny the appeal and uphold the letter of determination on the basis that there was neither abuse or lack of discretion. i'm -- >> clerk: error or abuse of discretion. >> commissioner lazarus: yes, thank you. error or abuse of discretion. that's my motion. >> clerk: okay. i don't see anyone raising their hand, so on that motion from commissioner lazarus -- [roll call]

>> clerk: okay. so that motion carries, and the appeal is denied. so we are now moving onto item number 7. this is appeal 20-085, spencer gosch versus the zoning administer, 945-947 minnesota street, appealing the issuance on december 2, 2020, to reed and aleena moulds of a variance decision. the proposal is to reconstruct an existing noncomplying rear stair and to add a new rear deck and roof deck with a spiral stair connecting the two deck areas. the rear yard is required to be

33' 4" and the proposed rear stair and spiral stair will extend into the required rear yard and result in a rear yard of approximately 17 feet, therefore a rear yard variance is required, the zoning administrator granted the rear yard variance. >> the de novo made it sound like you wanted to hear it new and you didn't want to hear the decision issue. okay. very good. >> clerk: okay. thank you. >> operator: julie, santacana has left the meeting. >> clerk: okay. thank you. so commissioner santacana has left, so we'll proceed.

>> proceed. okay. thank you very much. commissioners, thank you for your time and consideration. my name is spencer gosch, and this is very difficult for me, and i believe there's some issues of malfeasance being involved, but first, i want to thank alex longly for putting photos to my brief. the developer bought this property just four years ago, and nothing serious has happened on it -- well, some serial permitting. this is a permit that'll probably release the construction, and my problem is that there's existing illegal construction on this site, which is occupying the rear yard set back and the mid block open space, and the illegal

construction has now deteriorated to the point of being demolished, and i think it should be demolished, and i think what gets built back should be a code complying structure independent of the unrecognized illegal construction. and the planning department refuses to recognize the illegal construction in spite of my efforts to do so. you'll see my exhibits, i think there was a d -- c, my demands to the city attorney they post this building for the illegal construction, which they refused to do. well, this is my problem. i think this building is too large and should be reduced, and with that, i would like to take a look at my exhibit a, if i could, please. >> clerk: okay. one moment. >> president honda: pause the time while we're doing this. >> clerk: yeah, if you could

pause the time while we're getting ready, alec. >> operator: okay. i was -- did you submit them prior or are you talking about what's on your briefing? >> attached to the brief? >> operator: so i requested that you asked that you -- i asked you to submit anything you would use at the hearing, otherwise we would have to pull it off the website. >> clerk: yeah. we require notice for the hearing. >> i'm sorry. so none of my exhibits will be available? >> clerk: no. they're -- you had a practice meeting? >> no, this afternoon. >> operator: we did this afternoon, but when i sent out

the e-mail to send in the materials, i didn't get a response. it'll take me a minute to get that. >> thank you, and i'm sorry. >> president honda: and just so you know, the commissioners have your brief in front of us. >> i'm glad of that. thank you.

>> clerk: thank you for your patience, everyone, while we deal with this virtual format.

>> president honda: vice president santacana misses his first meeting and all of this happens. >> operator: okay. i'm back. >> clerk: okay. thank you, alec. >> president honda: and thank you for everyone's patience. >> clerk: okay. shall we resume the time? >> yes. >> clerk: okay. thank you. >> thank you. here's the back of the building, and the illegal construction along the building is pretty obvious. it's pretty dilapidated. you'll see to the right there's an additional one-story addition, also illegal, and

both of these additions are suspended from the ground on posts. this is all going to be demolished, and my argument is if it's all illegal construction that's going to be demolished, i think we should build back with what the neighbors have and complying with the current code. it seems like the argument made by the zoning administrator and the project -- mr. shitara, the architect, is that sure, we'll just get a variance, and that'll all be code complying. well, one of the problems is this illegal construction is not included in the variance application. so i'm a little bit frustrated with how the whole thing's playing out, but that's why i'm here, i guess. so there's the issue about the illegal construction, and unless the planning representative can come up with

the permit or the plans, this construction is illegal. they haven't recognized that fact, and they refuse to post the building. okay. another important concept here is that this illegal construction is blocking the rear yard set back requirement and it's also blocking the mid block open space, and this is my argument of why it should be removed. all of these amenities are to be shared by everyone on the block and is to be kept open. now i'll ask to see exhibit e. it's probably very near the end. what i'm looking for, it's very near the end. keep going -- keep going. >> clerk: no, this is exhibit e. >> there's more. keep going to the end of it.

there's two diagrams. let's go back to b-1. this didn't come out too good, but our mid block open space, what little there is, is under siege. it is an oversize lot that separates our mid block open space from the rest of the mid block space. you'll see the lots numbered 9 through 16 are -- five years ago, were all part of the open space. if we can go to the next attachment, b-2, you'll see the they've rezoned the property and we're down to our four little lots, and you can see the amount of space the illegal construction takes up. i'd like it removed and that mid block open space restored. what are some other issues here is that mr. shitara is not what

i would say a truthful person, and part of that is the issues that i've outlined regarding his plans under the discretionary review attachments are extensive, and furthermore, i'm looking at this variance application right now, and under his variance findings on page 6, he's basically lying. he says the lot is only 24 feet wide. folks, the lot is not 24 feet wide. it's shown on this plan as 25 feet wide, and these block maps are 99% correct, so i'd be surprised if it's less than 25 feet. if mr. shitara has a survey to prove that otherwise, that might be interesting. now, the other thing interesting about this lot, the zoning administrator makes his own decision and comes up with

his own arguments. and at this point, i'd like to go back to exhibit b, please. there we go. okay. so here, we have a copy of the sanborn map, and it shows its little bit of an addtion with the rear stairs. hello? >> operator: you have 30 seconds. >> 30 seconds, so you'll see the construction identified as number 3 and number 4, and these -- mr. zoning administrator tries to conflate what's sewn on the diagram with what's shown on the sanborn map. folks, this illegal construction does not go back to the sanborn time.

>> operator: that's time. >> thank you very much for your time. >> clerk: okay. thank you. i just wanted to confirm, did president honda have a question? >> president honda: i've lowered my hand. i'm going to wait for the zoning administrator to give this. >> clerk: okay. thank you. so we will now hear from the determination holder. mr. shitara, will you be representing them? >> yes, i will be. >> clerk: so you have seven minutes. >> well [inaudible] and i'll take the latter half. >> clerk: okay. >> i'd like to look at the context -- >> clerk: i'm sorry. there's a lot of interference. do you have two items open, like two computers or a phone? >> let me just lower this. >> clerk: maybe it's mr. mould's -- did you put yourself on mute? i just saw -- okay. i think we're good now. [please stand by]

>> bring it back into the dog patch historic context. we went through two or three 11 notifications processes and and the preservation as well and we're trying to be as so we started off with a remodel and therefore we needed a foundation permit and the siding was open and tried to pull a permit for a siding replacement on the south side primarily and in addition to that we talked to planning and this building you should go through the entire historic preservation process of the we went accordingly including the back portion which is part of the unwarranted area.

i'd like to go to some of the photographs that i presented. there were some in my brief and there's some additional ones right here. so, this is more of the context of -- this is the front of the building and then if we go to the next slide, we can see the buildings in context with the right building, next to the institutional area, is the building in question 945 minnesota and the building to the left is the residents of where he has an apartment there. you can see the mid block open space and to the south which is further beyond that existing buildings on either right and left. you can see that the mid block open space is consistent with all the buildings, as a matter of fact, the building right behind our building to the south, it extends a little bit

beyond the portion that was added which is the area beyond the first pair and the rear stairs are dilapidated and to the point where they do have to get rebuilt. this is another view, as a matter of fact, spencer's building, the building in the back there tries extended decks and an extended department bell oat deck so it open space is fairly consistent with all four buildings next slide. can you see it's context with the parking area for the institution building to the left of 945 minnesota. next slide. this is some of the exploratory demo. we have to look out to expos the material underneath the siding that was put on after the fire.

next slide. this is the area in the back under the two-storey addition. that's why it's built and the area we want to infill, which is part of our variance so the lower level area becomes more useable and brings more light into the unit. and is a better living condition. next slide, please. that is more of a lower under side. next slide. and the stairs that have to be rebuilt and they're pretty bad shape. next slide. and you can see the stairs. our intention is not to tear this down and rebuild it, it's to restore it. why think our plans reflect any kind of full demolition on this back end. that's all i have for my presentation. i turn this over. >> thank you. >> thank you. >> thank you. and thank you for the opportunity to speak. i don't have as much time as i

thought i might. i just wanted run through and quickly add a little perspective on some of the findings, obviously staff did a comprehensive job on the planning commission granted the variance based on the findings. we have slight low more perspective to add but, really, i just want to remind everyone, we're here for a simple reason to review the finding and the appellant hasn't address proper standard review in his brief. it's one of the challenges in working with him, it's hard to follow what he has been asking for. we spoke with his landlord and we did make design accommodations in response to the concerns with privacy. originally the deck were in response to our own desire for privacy. we have a very unique condition right next to our rear yard where there's a parking lot and we thought that the elevated decks would provide privacy as we tried to explore ways to have more access to outdoor space in

the pandemic. we're working and schooling from home and we have three kids and we need outdoor space useable and so that's why we've done this in this manner. without those rear stairs, he proposed to take down, we would have no secondary means of egress so it's an impossible thing to do and we wanted to point that out as well. honestly, this is something we're trying to restore for the public benefits. this is been a long, overdue restoration and the building is in bad shape. and we've had great support from our neighbors on minnesota street with whom we've lived among for five years and we're hoping we get a chance to see this board uphold the variance and allow us to restore this project, mitigate the risks to propose as an attractive nuisance, right now and have

a -- >> that's time. >> you have three minutes in rebuttal to address the board. ok. >> thank you. >> thank you. we will now hear from the planning department, mr. sanchez. >> hello, scott sanchez, planning item. the item is an appeal of the rear yard variance at 945 minnesota street. located within rh-3 zoning district and is a known historic resource within the dogpatch historic district. there was a variant and a certificate that were submitted for the project in april of 2019 and related building permit application in october of 2019 and the 311 neighborhood notification occurred over the past summer. at least between july and august there was one discretionary view filed. the certificate of appropriateness was heard by the preservation on

august 19th which they granted that certificate of appropriateness and there's no appeal made of that decision. the planning commission heard the discretionary view in a joint hearing and hearing the variance and planning commission considering the discretionary view and it was the planning commission did not take discretionary view. and the zoning at straight or granted the variance before you. not every time you have multiple permits is serial permitting is an issue where you are using multiple permits to get something you couldn't otherwise get with one it's not uncommon for an applicant to break up a project and especially if there's a scope of work they can do sew so i don't see any issues

on the face it with with the fact they have multiple permits there were four per writes on file and i've been concerned raised about the legality of the structure and i think as the board knows and we have another matter, finding whether the permitting history on building snow squalls somewhat of ayar due us task and not always possible. this building was built in the records of the 1900 which means, general as i understand it, records were lost in the 1906 earthquake and that's because records may have been lost and this building has existed for quite some time and i think some of the list was outlined by the parties but i'll attempt to use my screen share and show some of the historic photos that we've used before. all right. so you should be able to see an

areaal photo. this is the current view and 2018 the issues raised by the appellant are concerns that this porch at the rear, the haller one and shorter one is one that is two-storeys over post and one that is over some posts and the stairs and the concern is those may not be illegal the map those structure in the two-storey one and in the aerial photos which is still this is the schoolest feature you can have, you can see the shadow there so that larger two-storey structure which the appellant claims is not legal existed in 1938. you can see it's a different roof form and that thing was the original construction and there was a fire in 1975 that damaged the building and the roof was

flattened at that point to the current situation so, we don't have clear evidence and this and we don't have perfect records on all of the properties and not enough for us to definitively say this is an illegal structure and so we wanted highlight that, also, in reviewing the permitted history i did not find plans of the, i'll troy to go back to share something else. i didn't find plans that clearly showed this and all the plans are in fire are mow recent not plans, i did find a permit from 1962 which stated retair rada and porches and that was in a flurrial so let me see if i can, my technology skills are not the best.

apologies. >> come on scott, you are feet good at that. >> here we go. so this is the from 1962 and the description of work repair of the stairway and porch zoos in 1962. it's in the aerial photo and 1962 it is porches and there was the fire in 1975 and the repairs of that building and i would assume that had that been an issue it would have been identified and our complaints would have been made earlier than october of 2020 which is when the complaints was made around the same time as the d.r. hearing so, we agreed it doesn't show every detail. they're not always 100% accurate and we're considering all the facts and they were comfortable determining this is a legal, non

complying structure. that said, this is dilapidated as everyone agrees to end with caution and the mer might holder and doing the work. the variance does not authorization the reconstruction of those porches so it shows and keeping those as is. and i'm sure they'll be very close attention to the work if it progresses if the boards allows this project to move forward there's close attention to the work and they should pay close attention and ensure that all work is properly. replacement of a non complying structure and required rear yard even for dry rot would require variance and that scope of work is not in the variance that is before the board tonight. the comments and they look at

the findings they make the final findings within the let they're is on appeal to the board and we've maintained that the and i'm available for any questions. thank you. >> thank you. >> we have a question from commission swig then president honda. >> so i got a couple questions. i'm trying to wrap my arms around what i want to ask first. what, if these structures existed and the building doesn't seem to be growing from what it was, it's strictly an improvement or renovation albeit massive, why was there a 311 notice because it's not occupying -- is it because of the variants?

>> i believe the 311 was triggered by they're doing the addition of a deck within the required rear yard which has a fire also so the volume is increasing in that area and generally the replacement and kind of stairs that are required second means of erase the main scope here that is triggering the work and i can double check those after my friends but there's a spiral staircase and a new fire wall on the deck that's going to be on top of that lower roof and they're infilling under the structure but that is allowed as long as it's not higher than 10 feet but it wouldn't trigger it. the scope of work triggering everything is relatively minor i believe. >> normally, you know, we see a 311 notice it's because someone

is adding -- not a massive amount but 300 or 400 square feet and that's a good clarification and good piece of education and this is in bad, bad shape and if i were in the neighborhood, i would welcome significant renovations would

you please repeat the pitfall that may become these owners show we approve moving forward with regard to careful don't do too much because you find yourselves of notices of i'llization and furred. >> the cope of work should be respected and that should be done when we're getting into situations of non complying structures, we advise more caution because if the scope is exceeded, then, to replace that be a var see ant. even if it existed, even if it existed legally, you can repair it that's allowed but if you

replace given the condition that has been discussed of the structure and it's very experienced in being matters and having a lot of experience working in the city so i high standard and extensive dry rot and continues they didn't anticipate and they need to replace it they will file that revision which will no doubt please mr. duffy as well as the planning department that people come in and row actively change the scope and go through the process ahead of time reared than wait to go get caught. >> to give them a tangible example of what i am talking about.

the permit holder here or the applicant here may wish to review that case. as a kind of benevolent advisory to be careful what you wish for because, it may come back and so, thank you very much. >> similar, i was thinking of the duncan case as well. that was very insightful, commissioner swig, the permit that hearing just so they avoid the pitfalls that those -- it

was different. those were spit fires. these are people that live in the home and are doing the improvements and question to mr. so, besides the sanborn map what was on the city and number of apps and when you and i've done that to the extent and that information and after my comments i can troy to take a quick look at that. and under determination. >> it should. the city assessors' legal interpretation of properties, right. we have a three-hour report and we have a tax record that indicates legal square footage and number of bedrooms and baths and as the project sponsors' professional indicated that they were going to do an interior

remodel and not go beyond the scope of the building but they found out later that was non warranted but the square footage, when they purchased it indicated that how much lower amount than that should have indicated and that poverty being non permitted. >> looking at the report right now that the summary appears to state there are 11 rooms, two bathrooms and 3,148 square feet as the summary that is available to me. >> thank you, miss. >> thank you. deputy director duffy, we're moving onto the department building inspection. do you have anything to add? >> thank you. this is a plan ago peel but he

had also contacted d.b.i. and filed a complaint back in october regarding the illegal additions and i want to let him know i will update him separately and we have our team doing some research on permits and et cetera. we are aware of the 1960s we permit. we speak of these building this is san francisco all the time and mr. sanchez showed it very well there on these maps that we go off. the problem is with older permits, we didn't have plans a lot of the times so when dbi are planning or looking at this we're looking at permits and approvals and looking at words, porches, stairs, and someone might have come in and did something on a saturday and put it into something else. i respect the complaint being filed but they are difficult to actually nail down exactly what it is and commissioner honda

also speaking about the square footage. can be off as well. i do not -- i do look at this a lot as well and our investigations but we don't always -- they don't always show us exactly everything that is there. i do think the permit itself, you know, there are a few issues i had with the back stairs being too close to the property line and no wall and things like that and they need to clean up it. there would be another opportunity to appeal probably with the permit so i may be speaking on this again and i may have more information and if anyone has questions and by the way, congratulations on the appointments. >> when do you become, instead of acting deputy director, when do we remove the acting portion of this? >> the announcement for the

courtroom nant so i have to apply and i'm sure there are other candidates and we'll see what happens. just kind of help out along here to get us through this thing, you know. >> thank you. >> let me know if i can vote. >> >> thank you. thank you. >> so we're now moving on to public comment if you would like to provide public comment i see one caller is raised their hand for the phone number in 4447 and if you can go ahead and speak. maybe dial, tristar 6. we can't hear you. the phone number ending in 4447. if you called in, please dial star 6 to unmute yourselves.

this is the night of technical problems i guess for the callers. maybe we can try to give them a call. >> hello. >> hello. please go ahead. >> good evening, commissioners. i'm a neighbor of spencer and i've supported his efforts to

appeal the variance for the rear yard at 945 and 947 minnesota street. this is a historic property that has been neglected by the historic reservation commission with a choice to make history and approve the roof becks and the increase footprint into the rear yard. i question the increase in size to the project as a historic neighborhood of working class homes with small yards. to ignore the history for the increase size, you loose forever, the history of the neighborhoods. and i understand the families can increase their homes to be much more livable space, however, i do find that, you know, the use of the gable roof would have given them the extra space at least living space inside and they could still be

having a useable rear yard. that said, i appreciate the ability to say something about the building. thank you. >> o. thank you. >> thank you. is there any other public comment on this item? please, raise your hand. if you dialed in, press star 9. >> his pictures indicate the substantial delapietation of the building which is why or the back of the building, which illegal additions which will be torn down.

and, scott sanchez of course, this is a problem and it really irritates the non complying structure when a non complying structure that is legal with the adoption of a different code. i assure mr. duffy and mr. sanchez, no permit and no plans equal illegal construction and i didn't say it before but i was a building inspector for 25 years in san francisco and i know that statement for a fact. no one has a permit and plans and they're illegal. i don't think it's an arduous task to determine the legallality of it, no permit and no plans equals illegal. in this open space, this is a big issue. once this space disappears, it will never come back. this is not about the current family moving in, they'll be moving out at some time. i'll be moving out or dying. there's going to be a flux of people. everyone who has access

including those lots who have been precluded have having open space, they would like to have their windows open to a little space. i think it's, you know, this is not being addressed properly in this variance nor the permit application. thank you, very much for your time. >> thank you. we will now hear from the determination holders. mr. molds. >> thank you so much. well, i just would say -- [please stand by]

property, and relocating windows and such. exterior will be modified, and it's reflected in the building permit that got approved by planning, and it's about to go to the building department for its review and approval. >> president honda: just want to make sure that you're aware because you evidently have an ex-building inspector who lives across, and everyone has a camera on their phone today. >> yes, and i'm ware of mr. gosch, and forgot his name, but he was head of housing for many years. >> president honda: it would be nice to see this not come

before us again. >> i would like that, but hopefully mr. gosch sees the -- you know, the fruition of a hopefully successful project here and will not appeal us again. >> president honda: thank you. >> clerk: thank you. we'll now hear from the planning department. >> good evening. scott sanchez, planning department. while the planning department does a great job maintaining those records, records don't exist before the 1907 earthquake, so we're left to do our best with the information that we have. we have, you know, an aerial photo from 1938 showing that structure there. we have a permit from 1962

referencing shares and porches -- stairs and porches from the rear. we have the 1975 fire damage and repairs of the damage, so it's not as if so work has been done to the building in this time, and that gives us the confidence and the comfort inn saying that, you know, we believe that this is a noncomplying structure based upon that information. of course, this is a de novo hearing on the variance, and the board may find differently, but we have to do our job in a reasonable manner based on the job that we have. sometimes these discretionary calls need to be made, and we feel this was an appropriate determination. if the board, if they feel differently, they may change or modify the variance. in discussing this with the zoning administrators this afternoon, the context is appropriate for the variance in

this location. there is not an impact on the mid block open space. you have, in the middle of the block, this large institutional use. you have the parking lot adjacent to the property. the zoning administrator felt this property was appropriate, and we'll leave it at that, and we've already advised of the care that needs to be taken in the work on this property. i'll leave it at that. thank you. >> clerk: thank you. we'll hear from the department of building inspection now. deputy director duffy. >> i'm okay. thank you. >> clerk: okay. commissioners, this matter's submitted. >> commissioner swig: i find

nothing wrong with the exemption. i feel that it fulfills all five of the criteria points, and so it will make a great project and a great addition to the neighborhood, replacing a blighted building with a fully occupied and wonderful family in san francisco, which is what we're hoping for, is more homes. i would move that we approve the -- uphold the variance and deny the appeal.

>> president honda: i am slightly challenged with this, but i am satisfied that both departments reached out plenty for the determination that this is a nonconforming space, and are there any other commissioners that would have anything else to say? so i guess that would be commissioner swig's motion. >> clerk: okay. we have a motion from commissioner swig to uphold the variance and deny the appeal on the basis that it upholds the five findings. [roll call] >> clerk: okay. and that motion carries, 4-0, and the appeal is denied. and i am going to request that we take a two-minute break. is that possible, president honda? >> president honda: why don't we take a five-minute break.

>> clerk: five minutes. okay. thank you. we'll be back in five minutes. >> clerk: we are now moving onto item number 8. this is appeal number 20-087, edmund louie and mary constance parks versus zoning administrator. 482 16 avenue, appealing the issuance on december 9, 2020, to mark sole, of a variance decision. the proposal is to legalize the construction of a rear deck and stairs. the demolition of the previously existing deck was approved by the planning department in may 2012, however, the deck was reconstructed to be larger than previously existed and the stairs were shifted from the middle of the lot to the

northern property line. therefore, both the deck and stairs require legalization. the subject property has a required rear yard set back and the zoning administrator granted the rear yard variance. >> president honda: prior to starting, i need to make a disclosure that i'm a partner in a law firm that hired the firm of reuben junius, and it will not have any impact on my decision. >> clerk: okay. they are not representing anyone in this case, but that's okay. you already made the disclosure earlier. >> president honda: we're on 16, right?

>> clerk: 16 street, yes. >> president honda: all right. i could have sworn i saw something from them. >> clerk: okay. >> my name is mary parks, and we're the neighbor of the applicant. and i'm going to be sharing some visuals, so i'll need to make sure that we've got that. >> clerk: can we pause the time, please, alec? >> operator: time is paused. >> this is a long story, and we

have a lot of -- can you hear me okay? >> clerk: i think you have two -- a phone and a computer open. you need to close one of them. there's interference. >> okay. can you hear me now? >> clerk: yes, it's better. we don't hear the echo anymore. >> okay. so we have several -- this is a long story, and we're not going to go into the long story, but basically, this has been before the board before. we just want to talk about what the structure is like, misrepresentations in 2016, and then, current concerns about the variance, as well, which has been granted and we're seeking an appeal of. i'm just going to make these larger -- okay. so what i'd like to say, before they built the structure, this is what existed. this is from 2011. as you can see, there's a deck that is -- extends kind of just

right at the same distance as the back of our house, so it doesn't stick out or go in or anything like that. and then, there is a staircase going down through the middle, and then, you can see the basement underneath. and what you see next is they did a very large reconstruction. it's my understanding that they didn't have a permit to demolish the rear of this house. this shows the demolish of the rear of their house. the stairs are gone, the deck is gone, and you can see holes that have been put in our fence in the midst of their

construction. after that, you see the structure pretty much as it is today, so it doesn't have any finishing or anything to cover up the fire well. this is what it looks like. then, you can see here -- oh, i just wanted to point out -- no, not there. so here, you can see that when we're in our bathroom in the extension, if we open the window, we can see directly onto their staircase. here's another view.

and there's space between that staircase and the adjacent staircase. this is a photo that they had in the variance hearing, so you can see in the property what they showed. you can see the staircase and the basement and the staircase coming up. those concrete stairs had not appeared in any plan to date. once they had done it, so the

other picture did not show what the yard looks like. you can see the larger window off to the side, and our struck sur is behind the privilege see fence. and this is just, again, the concrete stairs up the middle, coming from the basement. so yeah, jumped ahead. so the next thing we wanted to present was the misrepresentations in 2016. in 2015, we had filed a complaint, and they filed a response showing a change, so we came to the board to appeal the permit. i won't read that appeal number because that was then, but we were really confused about the

hearing because we kept hearing things like it doesn't violate, it doesn't go into the rear yard set back. we were confused because scott sanchez says the deck that was built was smaller than the original. and then, also, like, mr. sanchez had said in the hearing that the deck that they actually had now is actually shorter than what was approved in the 2012 permit. and when we heard that, we didn't understand why he was saying that, and then, we heard mr. duffy say it would have been approvable if they had submitted plans in 2012. and we thought wait a minute, wasn't there supposed to be something if they built it outside of the buildable area?

so we went and had it investigated, and what we found is that they had submitted drawings -- i thought we had the drawings here. oh, well. they submitted drawings that shows that the deck was way, way smaller than the deck that was built, and that the staircase didn't go very far out. >> operator: 30 seconds. >> okay. we just wanted to say, at that time, there were a lot of concerns that we had. and then, in the drawings themselves this time, i'll just show that, for example, in this drawing that you see with this red line, it is definitely -- we think it's more at that

height. and then, we have a drawing that shows it more further out. >> operator: that's time. thank you. >> clerk: thank you. okay. we have a question from president honda? >> president honda: so i actually vaguely remember you guys before us in 2016. so looking at the brief, there's been a lot of versions from definitely appealant and permit holder, but it you tell me the conversations that you've had with the permit holder nath [inaudible], and we looked -- holder [inaudible], and we looked at it, and there were a whole bunch of

representations that she made in that letter. we include the letter with our exhibits, and we also included our reply. we went through her letter point by point and showed, you know, where she was in error, and then, at the end of the letter, she offered nine accommodations, one of which seemed very -- seemed very serious to us. in fact, they were all sort of problematic, and we felt that almost all those accommodations she offered were things that we could have just done by ours. so they weren't really offering anything. we also let them know that we dug into their drawings from 2016, and we found that there was a great discrepancy that up, took some pictures.

you've seen some of them. and we took some pictures of what was actually done, and we sent them off to mr. duffy, mr. sanchez, and cynthia goldstein. and at that point, mr. duffy, he went on-site. he wrote up a notice of -- he found that there was a discrepancy, and he wrote up a notice of violation, so there we are. >> president honda: and then, so have you -- besides speaking with your -- the permit holder's counsel, have you spoken directly with the property owner, that they live there? is it rented? >> the only time we spoke with them was when they had a meeting at their house for the variance last year. >> president honda: thank you guys very much. thank you. >> clerk: thank you.

we will now hear from the variant holder, mr. sole. >> indeed, thank you very much. good evening, commissioners, and madam president, and commissioner honda. congratulations or condolences. i don't know which is appropriate. i'm on a very bad internet connection, and my wife and i are sitting here, so i'm going to go ahead and turnoff my video, but what i would like to do is share a copy of our plans that we submitted as part of the variance because i think those may be helpful as well as a google shot. in short, because we want to try and save as much time as we can for later in comments, we concur completely with the zoning administrator that the

variance has merit. we think it meets all of the five key tests. primary factor in our complication that we think the zoning administrator agreed with was because we do have a short lot, that the permissiveness of the deck that preexisted preconstruction, was necessary. we concur completely with the deck that we have built, and the louies were gracious enough to share some pictures from our side and their side. the deck is, for all intents and purposes of similar size, well less than 100 square feet, and it is recessed behind their bumpout. we understand and indicate that our drawings here may have

improperly depicted the size of their bathroom window. we now believe and would be happy to correction the drawings that the window is greater and perhaps down below the fire wall that we depicted, but i would like to be brief such that we can share any concerns that the commissioners may have. we feel quite strongly that the planning department, mr. sanchez, and the sewning administrator have made the proper adjudication in this -- zoning administrator have made the proper adjudication in this case, and we thank you for your time. >> clerk: okay. we have a question from president honda. >> president honda: okay. i'm looking at the one of the pictures submitted in the brief from 2011. it looks like it's even with the wall, whereas when i look at the pictures now, it looks like it's gone farther.

so the deck that you rebuilt, was it larger than the original deck? >> i think the answer has to be yes. i will tell you, the reason we have to replace the deck was there was a significant amount of dry rot. let me just give you a bit of history. my wife and i were born and raised in san francisco. we scrimped and saved to be able to purchase this property, and we wanted to rehabilitate this property. when we did so, we discovered extensive dry rot, and as we went farther and farther and farther, what we discovered was that much of it needed to be replaced with like construction. so as we did so, there was an infield change made by our contractor to reroute the

stairs, and it turns out that the deck was, in our estimation, principally of original size, yet as if you look at the plans, the plans say that the deck was actually proud of a bumpout, so we put a deck that was actually of similar size. >> president honda: i read the brief that you were trying to save the tree. the question is, you know, like i said, i don't -- 100% senior moment -- recognize this in 2016, but from the direction you gave the board last time, it appears that it wasn't completely followed. let me just finish, please. what conversations did you have with the appellants after we instructed you to have this? >> so what we were primarily

addressing for the appellants, and what they really wanted us to address was the issue of the legality of the stairs and the issue of the property line. so what we did was in writing and verbal communications and as recently as the 311 and meetings with them in our garage, we offered them what we thought was really, really reasonable things to ensure their privacy to ensure that the fire wall is conforming. we think that the louies are not concerned about the deck because the privacy issues related to the deck given that they have a deck on their property and can easily peer into our property, their concerns are not with the deck but with the fencing and property line. we addressed issues related to the privacy with relation to our stairs and the materials

that were in relation to the deck that was there. >> president honda: and same question that i asked the appellants: have you guys just sat down and had a conversation? you guys live next door to each other? is. >> yeah. i can say that we want -- we've made ourselves repeatedly available. this is a contentious issue, but there's been an effort in writing and subsequent e-mails to this, and in the run-up to the 311, we as a family in the richmond, would like to have this matter resolved, and for you, commissioner honda, we did our best to make sure that this issue no longer exists. >> president honda: and you had professionals on your behalf -- you had -- i mean, i see a

picture in the brief of pat buskovich here, so when you built your property, were you aware that you were not compliant with what was supposed to be done? >> well, let me specifically address pat buskovich and whether or not we had professionals. i think this goes back to the state that the house was in in 2012. so yes, we had professional contractors, we had a professional engineer. we did not use an architect, and david bud was the engineer. the only reason we retained pat buskovich was involved at that time is literally he happened to be in the building at 332 pine that i am in, and i happened to mention to him in an elevator in a casual way, we had this issue.

so pat buskovich was only involved -- pat buskovich made some mistakes, and i think quite frankly, what we have here are slap dash in whether or not the number of stairs were incorrect or the dimensions were incorrect. if i may quickly add, you will not see pat buskovich involved in what we think are very precise drawings that are shared on my screen that are exceedingly detailed to the inch. >> president honda: okay. thank you, sir. >> you're welcome. >> clerk: thank you. we will now hear from the planning department. mr. sanchez? >> thank you. scott sanchez, planning department. so what we have is an appeal for 482 16 avenue. the lot is a little shallow

than the average lot. while a relatively simple scope of work, this has a relatively complicated and convoluted history that has led us to the point that we're in now, and to briefly recap, you know, in 2012 was the initial permit to do rehab to the subject property. unfortunately, these plans did not accurately show, i believe, the conditions of the lot in a couple of respects, didn't accurately show what the rear yard requirement was. it showed what was the existing deck i think inaccurately that had it projecting further from that popout than what appears

to be from that window in 2012 that shows that it's just about in line with that pop out. you know, subsequent to that, the deck was reconstructed in a manner that was not consistent with how it was. i believe mr. buskovich was then involved at that point and actually submitted the plans with those. i think were fairly accurate in terms of the existing deck, but it did not show the proposed deck nor did it accurately show the rear yard requirement. we went to the board of appeals with that as the appellants had some degree of confusion. they were wondering why i was saying certain things and in the 2012 plans, that's where the error was. it wasn't getting smaller, it was getting larger because the 2012 plans didn't accurately show the previous deck.

and then, during the course of that after the hearing, we discovered that it really had fatal flaws with that permit, so they withdrew or cancelled that permit and left it as they were going to go through the process to legalize. it took some time for that to happen, and this application i think was only submitted last year to legalize this and they're going through the process now, you know, of what was kind of at the relevant -- you know, the complaints raised by the appellant here. the issue is perhaps -- the window does, i agree with the appellant. it doesn't appear to accurately represent the relationship, and if i could have the rear elevation, alec, that would be great, and the next one of the proposed conditions should be the next plans in the set.

now we don't know exactly if this is a fatal flaw, and because of representations by the variance holder, everything is accurate, but maybe some of the details are off on maybe some of the details on the adjacent building. >> president honda: okay. scott, can you pause? we're not getting anything -- we have it now. >> okay. do you have something -- >> mark sole is sharing his screen. i paused the time for you. i don't know if he wants to show what you're discussing. >> i don't know. i thought that was you, helping me out from beyond, so if i can replicate my ability to screen

share, i will. >> operator: i disabled -- i took his screen share off, so you can share your screen, scott, what you wish to share. >> being on. thank you. >> okay. so these are the plans submitted with the variance, the plans existing here. one of the issues that the appellant has raised, in the photos, we see this fire wall where my cursor is at, the top of the fire wall, the top of the railing of the stairs and the deck. it shows it much more close in line of the bottom cell of that bathroom window, so there's something that appears to be off with that adjacent property. i think we had a clear understanding of what that was, but this was an oversight, an error and should be corrected

by the variance holder. so that was one kind of point of concern we had with the plans and making sure that was accurately reflected. the second issue which was really new, and i hadn't been aware of before, in the appellants brief, they show the photos in 2012 from the rear popout, and they show it being removed completely and replaced completely. it's gone in one photo, and it's all new framing in the other. i reviewed the plans from 2012, and all of them show that portion of the building to be maintained. it's new siding, new windows, things like that, but nothing about the reconstruction of it, which, you know, had we identified that as being reconstructed and also had the plans for the rear yard, it would have been a reconstruction. it wasn't a complaint made in

2012, it wasn't a complaint made in 2016, it wasn't even in the materials submitted now, but i felt it was something that needed to be addressed now. i really look for the board's direction here. the reconstruction occurred ten years ago without complaint. it technically required a variance. this is a variance, but we didn't have that -- it was never identified as an issue. it could have been addressed in this variance that is before you now. we never did the notice for that, it wasn't contemplated by the zoning administrator, and i think the zoning administrator is following it by the book, we should have a new hearing. this is a de novo hearing, and it's up to the board. i'd like to get your feedback on that aspect of the project.

the second aspect before the board is about that relationship and the fire wall, and if the stairs need to move, can they remain where they are with some changes? we really need the board's help to unpack some of these issues because it's not going to end here. we still need a building permit. >> president honda: this is like 46 duncan. >> it is, and in that case, the devil is in the small details. >> operator: that's time. >> thank you. >> clerk: thank you. we have a question from commissioner swig and then commissioner lazarus. >> commissioner swig: so great segue on the 46 duncan mention because i was going to ask, what do we do now in asking for your advice, scott, but we

determined on 46 duncan, if you build it, it might not stay because it was not legal, and so in this case, you have a -- in fact, in this case, i think the intrusion on the next-door neighbor is significantly more serious than it was on 46 duncan, but that's if i was living next door. but so i was going to flip it onto you, the using 46 duncan as a start, and a recent occurrence where we asked the property owner, i believe, to redo it and get it back into compliance. is that your recommendation? >> when faced with that, it's the position of the planning department that a variance is required to legalize the reconstruction of that popout,

and that is, you know, that -- in addition to kind of getting the board's comments, do they need to go back to the variance drawing board to legalize the popout, how does the board feel about the deck and the stairs, and, you know, does that need to change in some way or is it okay as is because i think we need that leadership from the board. if the board has a different opinion than the zoning administrator, we would like to know that today. >> commissioner swig: well, am i getting this wrong or correctly? there was a plan and a zoning hearing, and a deck that came more from the middle of the property than the property

line. and under that assumption, representation, the neighbors said okay, and they expected a deck that was the same as the last deck, and they expected stairs that were [inaudible] to the property and to the property owner's -- based on the property owner's commentary, it was a -- i forget what he said, but it was an infield or in-the-process decision by the contractor to move the stairs. so i was the next-door neighbors, and in good faith, i had accepted that the stairs were going to be in the middle, that the deck was going to be at the same spot based on drawings, based on testimony, and then, after it was all said and done, that's not what was

so, i'd kind of be upset and so if i was the neighbors, i'd think should we take action of what occurred here, a la 46 duncan? >> i don't know if there was an expectation on the part of the appellant because they weren't necessarily given anything to expect because there was no notice back in 2012, 2013 from the work. there was the deck as it was, and now, the deck is different, so they never had any expectation that it would be removed or replaced or anything. it just happened, and so i don't know if they had any communication individually, but the department didn't do any notice because they didn't submit any permit application for this. >> commissioner swig: i'm sure we'll hear about this in rebuttal. thank you. >> thank you. >> clerk: okay. commissioner lazarus? >> commissioner lazarus: yes,

thank you. i think this is along the lines of commissioner swig, but i'm just trying to get a little bit more -- well, again, flipping the direction from you, i guess, could you clarify. potentially, there are flaws in this application for the variant that was granted, and there may be additional issues, so what would our options be today if we agree -- i mean, the findings may have still been correct but based on plans that weren't totally accurate, so that's where i'm getting a little lost. >> yeah, and i think that the accuracy issue with the plans as i understand it and see it, that it was really about a project that hasn't been built yes. in this case, we had photos of all the conditions.

unfortunately, the plans did not perfectly match those photos. i discussed that with the zoning administrator today, and he was basing it on on the plans. the changes, the errors wouldn't have resulted in a different opinion of the department of the zoning administrator, but this is a de novo hearing, and the board is considering those facts and, yeah, the location of the stair and the impacts on the neighbor, and that's what we need to know? >> president honda: okay. commissioner lazarus, did you get your question answered?

>> commissioner lazarus: i did, thank you. >> president honda: okay. scott, i don't think we're going to be able to do anything other than continue because we're now aware that there was illegal demoand building of a nonconforming space, correct? >> well, our position is that that needs to be addressed through a variance. if the board disagrees in a de novo hearing, and you feel you don't have an issue with that, that's up to the board. i don't want to presume to speak for the board on that. it is a little bit different than duncan -- >> president honda: there's been issues straight through, and it wasn't before this body six years ago, and the direction that the body gave the permit holder was not really done. >> and i think the board kind

of being clear to the parties about what the expectation is for that -- >> president honda: at this point, i don't think we can go further because there's an illegal demo to a property right now. >> well, that demolition construction needs a variance, and this variance is flawed because it doesn't show that? >> president honda: and does it need a variance? >> the construction in the rear yard needs a variance. >> president honda: so that means that the construction going forward was flawed because it took place illegally, so we're voting on something that took place after the fact on something that's illegal. >> so that was, like, jiu jitsu or something. if the board determines it needs a variance, we could

start on the variance process. >> president honda: do you recommend denial or do you recommend issuance? >> if the board wants to take up the popout issue, we need to go back and have a new hearing. we need to revise the issue and go back to square one. >> president honda: and we haven't heard from our deputy director for building yet, so i think i'm going to wait and defer until i hear what director duffy has to say. >> any feedback on the deck and stairs would be much appreciated. >> president honda: okay. thank you, mr. sanchez. >> clerk: we'll now hear from the department of building inspection. >> yeah. joe duffy. this project has been on our radar for quite a while you

know, demolition is a big word to be used in san francisco because it is definitely beyond the permit, but when you use the term illegal demolition, people kind of freak out that it is the whole building. there was demolition involved, obviously, from mr. sanchez' comments there, and i don't think that was gathered originally as part of the violation, but i think they can clean it up, and it is very similar to duncan, where they're living in it now. now they've got to take care of it with regard to permits, and as we go, we're finding out a little bit more. they've got to start and make sure they get everything covered once and for all so that they've got what they need to bring it to, you know, d.b.i. planning and the board

of appeals, obviously, with the neighbors upset with the works that was done. d.b.i. have brought it as far as we can, which unless we submit it to the city's attorney office, they're not going to take it because it's a rear yard deck on a building which isn't a big issue for them. but it has a cost for property owners, refinancing, trying to sell the property, kind of getting in the way of that. i'm available for questions. the reason that commissioner swig mentioned the stair in the middle, i can't remember exactly the circumstances, but there was a lot of discussion about why that stair couldn't go in the middle. i think it has some history, but i can't remember. i just -- we would -- d.b.i.

would like it resolved property once and for all, so that's... >> clerk: thank you. president honda has a question, and then, commissioner chen. >> president honda: -- commissioner chan. >> president honda: okay. if you look at the drawing, the stair was located in the middle originally, and if you're building back in kind, why wouldn't it be able to go back in the middle? >> good question. >> president honda: and then, the other question, inspector duffy, just like the case we had before, and everyone is mentioning duncan over and over again, they had an illegal structure -- i don't mean to alarm everyone, illegal demo, but there was a portion of the house that was there, you know, that what i've understood is you can do repairs to that with a permit, but once you remove

it, then you ultimately lose it unless you apply for the appropriate permits to get it back, and in this case, that would require a variance that would have to go toward the five findings as to what to do with it. so the issue i have, and maybe you can help me, if we approve the stairs and the deck, how can we approve that when the bumpout is in question right now? so the same question asked to you was asked of mr. sanchez. can we continue it? because in this particular case, i'm leaning towards denying the variance because it's attached to something that

is not permitted correctly. >> yeah. what i said was when you're fixing something like this, you want to get it right so you don't have to go through it again. if we did allow -- and mr. sanchez can speak to this, as well, if you allow this to go through, you're still going to be dealing with the construction of the building, which is a whole other process and whole other construction, which may not be good for the owner who goes back to the architect and says, hey, we've just learned about something else [inaudible] whenever it was before the board that oh, someone brought in a photograph that showed us something we didn't see. >> president honda: that's the same thing that happened at the last hearing. >> but you know, in fairness,

the people on duncan, they've gone back and quite happy to fix what they're supposed to fix, and probably come out with the building -- i believe we've got a t.c.o., a temporary certificate of occupancy, and there might have been a new buyer, and d.b.i. were able to work with them on that. it's all to do with the motivation of the permit holder to get this resolved, and, you know, probably this is good for them to find this out for them tonight. in a weird way, that's a good thing because they know now that it's something that they should have dealt with probably originally. i don't know what happened in the field out there. sometimes these structures, the building inspector, he's out there, the next thing the wall there, it's the same size. i don't even want to turn the clock back at this point. we signed off on the main permit, and just trying

encapsulate everything on this variance, so maybe starting again and having them include the construction of this deck and the rear stairs is the way to get. maybe if the board things the construction of the stairs is more fair to the neighbors and where the stairs are located on the side, that needs to happen, a source of annoyance based on e-mails that i was reviewing from 13, 14, 15, 16. okay. >> president honda: thank you very much. thank you very much. scott has his hand up. >> yeah. i just wanted to add what you said about the middle stair option, from the previous issue back in 2016, there's a couple of issues with the tree, and the deck will extend out

further than it was before, and there's a question of the rise and run of the stairs. maybe they're older stairs, and they didn't meet code, and straight run stairs may run into the tree. i think there was also an issue with steps because of the floor below i think has rooms in there, and so there was some steps in that area that come up from the -- that ground level kind of where that stair -- the middle stair used to be. that was my recollection of the options that resided with the middle stair option before. >> president honda: but as the permit holder said, the new drawings are professionally done, and i believe they would be accurate, but unfortunately, in 2016, you know, we had those pencil drawings, and it didn't look like it was followed, to

be honest. >> yeah, there have been issues with every set of plans, to be -- honestly. >> president honda: and you heard inspector duffys recommendation or partial recommendation. what is your advice on this? >> i mean, honestly, i think that gets us to the resolution. what would be optional for the parties is if the board could give some very precise feedback as to the stairs. and if the board denies the variance, the fact that you could say that there was reconstruction on the popout not included in this variance, and what you think of the stairs and deck, then, the zoning administrator could consider that when this matter comes back to them for the popout legalization. >> president honda: i think commissioner swig had a question. sorry to jump in like that. i apologize. >> clerk: we can't hear you.

>> commissioner swig: sorry. so i want to thank mr. duffy for starting the conversation up again, giving us solid direction on what he would do, and thank you, scott, for embellishing. i knew somebody had to prime the pump. thanks for extending that conversation, and we have to go through the rest of the hearing, but maybe you can, at the end, as we are trying to get to where we're going to get, just remember those thoughts because i'd like your prompting, please. thank you. >> clerk: thank you.

commissioner chang? >> j. chang: hi. thank you. i think i'll wait to ask my question until after rebuttal. >> clerk: okay. we're going to move onto rebuttal. miss parks? >> okay. so this is our drawing representing the -- what we saw when we saw the plans in 2016.

and then, in the new -- sorry. i need to get over to something else. >> president honda: will you pause her time while she finds that, please? >> operator: i have paused. >> president honda: thank you, sir. >> yeah, this is it. this'll do. okay. so i just wanted to point out that there's a difference in

terms of where that 45% thing is, that line, and so we do have questions about -- like, which i'm still kind of confused of hearing everything. my understanding is the staircase extends too far into the yard. it's too far inside the buildable area. we'd definitely like -- when we left the hearing in 2016, we thought that we were going to be negotiating where to move the staircase because it sounded to us that that was what we were supposed to be negotiating, where would we felt comfortable with it. you know, 3 feet from the property line or back to the center. that was taken off the table by them. they only have been willing to talk about other types of things other than substantially talking about the movement of it, and i just wanted to point out that this has not been ten years, but it's been eight years. just -- i wanted that cleared up, that the construction was in 2012, and it's only been

eight years, not ten. and -- i don't know. did you want to say anything else? >> yeah. as much as this is about the stairs, it's also about the truthfulness of our neighbors. they submitted drawings that were fault in 2016, and they testified to those in front of you. you have video to that, and then, mr. duffy made a site visit and wrote them up a notice of violation. and so that's all documented. i just don't feel as if you should ever reward someone for bad behavior, and if you allow this variance to go through, i think that's -- >> operator: 30 seconds. >> thank you. >> and i would only add that it does -- it does -- we would

like to see it moved, you know? basically, that's our problem. it's right next to the property line. all the other things that have been brought up about a popout and all that, our issue is with the staircase and deck sticking out onto the property line, and we don't have privacy, and we don't have enjoyment. thank you. >> operator: thank you. that's fine. >> clerk: thank you. we have a question from president honda? >> president honda: so the question is the stairs are on the property line and there's a line of sight into the bathroom. how would you feel like to have a -- you know, here a privacy screen between the two properties? this probably could have been averted from 2016 by more

communication. the permit holder, they said they've reached out to you guys, and so in their defense, i mean, the property's been built, and i understand how you feel, mr. louie, that there's been some deception and inaccuracy in plans here, but the property's been built, and i don't know which way this body is leaning to go, but going further, you guys should sit down and really have a talk because there's a lot of cost involved, and potentially having a -- you know, an opaque glass or screening between the property line offering you light and giving you privacy might be an alternative. >> i mean, if i may -- i don't know if you're asking a question. >> president honda: i'm asking a question, would that work? at the end of the day, this is going to come back to this body, and we're going to make a decision, so it's nice if you

guys work together in creating that decision or if you can't work together, we just craft the decision ourselves. >> first of all, they did not contact us themselves. our lawyer -- >> president honda: okay. ma'am, today is a new day, and you're in front of the board. again, i don't know which way the board is going, but we're probably leaning toward a continuation or cancellation, but i would like more likely for you guys to sit down with your neighbors and to be civil and to figure this out. so i'm going to probably propose a short continuation so that we can get going on this. but if you're not going to be reasonable and they're not going to be reasonable, we can go forward and make a decision for you. >> i don't want to speak for

everyone -- >> president honda: my wife speaks for me all the time. >> for me personally, i don't feel that i trust the neighbors. >> president honda: so that's in the past. i think i've got my question answered, but i'm going to let everyone else ask the questions. >> what i was going to say, don't trust the neighbors. >> president honda: yeah. >> don't trust the neighbors, and so if i was asked, when we were asked to negotiate with them before, we felt that they did not negotiate with us in terms of what we understand the board was telling us to do. >> they've never negotiated -- >> president honda: no, and i understand that, and that's been presented to us before this evening, but that ship has already sailed at this point. whether you have -- we are now having control of this thing. it's not leaving our hands at this point. all i'm asking, and i asked you

the question already, but i've got my answer from you. >> mm-hmm. thank you. >> thank you. >> clerk: okay. thank you. we will now hear from the permit holder, mr. sole. >> thank you, and i appreciate all the planning department from the building department, and my apologies. this is a matter that, really, we wish had been behind us. i did want to address one question. the reason for the stair ultimately being moved, deputy duffy was correct. if you look at the plans, you will see that there was a set of stairs that do go down to the rear building for forms of egress. those were on the original plans, and so where those were positioned, the decision was made to just put the stairs. when we came to the understanding and this was an infield decision that required a corrective permit, we immediately went to the city, and that's what began our

odyssey to get this permitted. we originally believed and believed all through the variance, that this was all permissible. i think going back to 2016, when we were before the board once before, we'd very much like to have the matter behind us, so we would be happy, as we indicated in writing, we'd be happy to change the privacy screens on the stairs as they exist on the property line. we believe that of course we've got to have accurate plans and we'd be happy, as mr. sanchez has stated, to correct the plans so that they are all correct. we want those plans to be completely accurate, and to duffy's point to finding all of this out now, we'd very much like to have all of this behind us, so if there's anything else that we can do to permit these issues and get these issues done, we'd really like to get

it done so we can go back to the house that we enjoy. >> clerk: okay. thank you. president honda? >> president honda: so, sir, have you been a part of the project since the beginning? >> yeah. so i'm an owner build. we were owner builders. i have never done a project like this, so we -- i was here from the beginning. >> president honda: so, i mean, are you a contractor by trade or do you do this regularly? >> i paid my way through college in a contractor job. my dad from alaska was a contractor, so i guess i'm a novice, and i've done my share with habitat through humanity, so i've done my part on the labor side but not the other side. >> president honda: i hear that. i've done my work on the other side, too. were you not aware that redoing

a deck that that would require a permit? >> when scott sanchez addressed that issue with me, of course we want to get it addressed. as to the issue of the deck, as we put it back, the entire deck is actually, as we came to understand, technically unpermissible, the deck and the stair and the fire wall were unpermissible because we live on a short lot, so our best effort, honestly, was to get the matter behind us. we sought the variance because we thought that would address the issue of the legality of the deck. we want to get this behind us. we don't expect we'll be best friends, but we want to get the matter resolved. we've offered things like privacy screens or painting or

bushes. we would happily have the city come out and spend time on the property. >> president honda: having spent time on in, it's refreshed me and i'm remembering it very vividly. what i recall and what i remember from last time, it looks like some of that direction was not followed. as you heard me talk to the louies is i can't say what the board is going to do. my recommendation would be a short continuance to allow you guys to talk, but other than that, you heard my comments in regards to permitting something that's not legal, i personally have an issue with that. >> that, i totally understand, and scott just brought that to my attention. i think we want to address that issue. i think a continuance totally

makes sense. it doesn't make sense to address one issue to have another issue came up. >> president honda: but as i mentioned, a heartfelt recommendation is you guys sit down and talk, and at the end of the day, if you still don't agree, this board is going to sit down and make a decision for you, and one or both of you is not going to be happy. >> and for the record, when president fung basically asked that same question in 2015, i really did take that to heart, which was come together, come to resolutions. we wanted to do something that was short of having to move the stairs from the property line because we were told that it was permissible. with you know, with the variance, it is permissible, it is legal, and we were told that was the case, and short of moving the stairs, we were prepared and are prepared to do anything and have it resolved with the neighbors. >> president honda: hopefully

you do that, and that president fung guy, we don't talk about him anymore. he left us. [laughter] >> thank you. >> clerk: commissioner chang? >> commissioner chang: well, i think both the permission holder and termination holder both acknowledge that the plans are inaccurate, and i think with inaccurate plans, it's hard to determine what's fair and reasonable and what should be done in the case. i appreciate the permit holder's willingness to address the inaccuracies and prepare accurate plans. i think that's absolutely

needed in order for everybody to truly understand what the situation is. regarding the location of the stairs, it sounds like this is the one sticking point for the permit holder, but it also seems to be the sticking point for the appellant. and forgive me for asking this, but this case has clearly had a long history, and a complicated one, so if i understand the drawings correctly, in 2014, there was a rear deck and a stair that was adjacent to the property, and then, the property owner was required to to address the notice of violation, and what happened

was the stair needed to have a fire wall, and now there's a stair that's both taller than expected and more proud of appellant's property than seems to be the case.

>> as the deputy duffy will, i'm sure advise, the fire wall is much preferable on the property line because it was more conforming, and even if we had built a deck exactly as it was even if we have the

variance we have today, it probably would have been better done to code with the fire wall that we have, so the fire wall that we have is conforming, is below 10 feet, yet it is because of our short lot, outside of the buildable area. so the variance was to permit the deck in its entirety. if we didn't get that, no deck would be permitted in our house, and we would have to rip it all down, including the stair. is that helpful? >> commissioner chang: yes. and i guess what i'm getting confused by is the understanding that the deck -- so -- so you didn't end up building the deck and the stairs to the 2012 permit. this was a change that occurred in the field. >> correct. >> commissioner chang: you recognized in the field that this needed to change.

>> correct, for which we sought a corrective permit when it was brought to our attention that that was the case, and the corrective permit was sloppy, hand drawn by somebody who's no longer in our employ and was derelict in some material components, and that is what we were -- president honda is correct. in 2016, when that was brought to our attention, we pulled the permits, and president fung, whose name shall not be used, said, did you want to take the time to correct this with your neighbors because it would be in your best interest to do so, and we sought to do that. and here we are, with another recommendation by the planning department to get a variance for the deck inclusive of the stairs as it exists today. >> commissioner chang: and is there no other location to

place the stairs. >> so to the -- could you bring up the drawing of the stairs? >> clerk: is that okay with you, commissioner chang? >> commissioner chang: yes. >> alec, you want me to share the plans? >> operator: yeah. i think scott sanchez was sharing the plans. >> yeah. if you could do that, that would really help. our contractor at the time said because we are putting the stairs that are built into the l-footing location and the tub that goes below lower level egress, those stairs are on the, and they are depicted as

dotted lines in the upper plan. those stairs were poured into the foundation because we replaced all the foundation with an l-footing foundation, 18 inches with a 3,000 r.p.i., and it made sense not to put that stair to the lower tub of the exit deck on our space, to put it on one side of that mature japanese maple tree or the other, and the recommendation was made, for drainage reasons, not to have that at the property line because you'd get twice the drainage. so it made more sense to put that closer to the building and obviated height requirements.

we would likely have to reengineer the entire concrete lower level and the stairs. we do believe that we made our house and our neighbor's house significantly stronger by using a fire wall and an l-footing at the perimeter. >> commissioner chang: thanks, scott, for sharing that. >> sure. >> commissioner chang: may i ask one more question? >> clerk: sure, go ahead. >> commissioner chang: so it sounds like you would like this -- if the permit holder had come to you, knowing everything that you know today,

with some proposal for relocating the stairs -- you shows images of the deck slightly shorter, is something like that amenable. >> president honda: are you talking to the permit holder or the appellants? >> commissioner chang: the appellant. >> please ask the question again. >> commissioner chang: can you clarify what it is you hoped to achieve with the stair location, knowing what you know today? >> so our understanding in 2012, they were going to be

building a deck -- we [inaudible] that's what we expected because that's what was in their plans. when that didn't happen, you know, why they didn't ever submit plans, they're claiming that there was a decision in the field. it's very extensive what they did. i mean, i don't know. i don't know if they really, you know, had a change of plans. and today, i mean, we've been living with this for eight years and are very uncomfortable with it and would like to see it moved. we were never given an opportunity to look at this the

right way, and it triggered a variance. all of those things that should have happened, we would have had our opportunity to state our concerns per accurate plans, and we would have talked about it -- >> it would not have been built. >> or we would have not -- or they would have been granted variances. all of that could have happened, but it never did. when they were in front of the board in 2016, they said that the plans -- you know, they said as built that it was inside of the buildable area when it wasn't. they suddenly discovered recently that it was outside of the buildable area -- i don't know. >> commissioner chang: and -- thank you. and do you have anything?

>> yeah. the plans cannot even be used because it is just a looming presence. my parents bought this house in 1961, and i have lived in it since that time, so i know what things were like when the stairs were in the middle of the yard, and those fine, you know, because we were able to just live our lives, you know, as we wanted to, but because -- it feels like as if they've turned our yard into a prison yard because they can see everything that we do. we had plans to do a lot of landscaping, but we had to almost abandon those plans because we feel that, you know, this is just such a huge

intrusion, and we would like to get -- we would like to get this settled, and -- and the way to have it settled is to move the stairs away from the property line. >> commissioner chang, could i respond to that because, unfortunately, that's not true. >> clerk: commissioner chang, you don't have to. everyone has had their time. we're just going back and forth. >> commissioner chang: yeah, i think i would prefer to move forward, and it's not my intention to drop people back, i'm just trying to better understand -- respond to the zoning administrator's request to get direction from the board. i think that commissioner honda

and commissioner swig's idea of granting a small continuance so that the plans can be accurately drawn and to allow the neighbors some time to discuss and come to, ideally, some sort of agreement for what to achieve with the board makes sense. i appreciate what the zoning administrator shared today and also the permit holder's willingness to rectify that, so to me, that means that you will move forward with getting a variance. it also means that the appellant has the ability to, you know, attend that variance hearing and all of that is how i understand that to be the case. in terms of what is -- is before the board today, i would

be in favor of what my fellow commissioners have suggested. >> clerk: okay. but we still have to hear. we're still on rebuttal. >> commissioner chang: sorry. >> clerk: no problem. we'll here from the planning department and building inspection. mr. sanchez, anything else? >> yeah, just briefly. scott sanchez from the planning department. it was inaccurately shown in the plans that mr. buskovich erroneously prepared, but even on the plans that are before you, i just realized that it says 45%, but then it also says

38' 5," so in terms of what needs to be corrected, i would note that 45% and numerical figure should be shown on the plans. i think there's already been a lot of discussion about this over the last, you know, i think six years that this has been on going. i -- i don't know that that's going to happen, that there's going to be a resolution. i think it's so retractable. the appellants want the stairs moved, and the variance holder want the stairs where they are. in this case, i don't know that it's going to be a fruitful -- but i always hope that i'm wrong, if that's the case.

thank you. >> clerk: thank you. deputy director duffy, do you have anything further? >> just really quickly, . president honda, regarding the constructions on the rear yard, it happens unknown to the contractors and the carpenters and the workers doing the work, they don't know about that 45% [inaudible] they see a wall -- that means they probably have a window and a couple of extra studs. and a lot of the time i'm not sticking up for anything that was done out here. but this is what we're dealing with, and when we're dealing with five years later, it is

painful, it's expensive, and it's time-consuming, and it just ends up here, so thank you for that. >> president honda: thank you. >> clerk: thank you. commissioners, this matter's submitted. >> president honda: if i may, commissioners, i'll start. so what i would propose is a short window of continuance. what does our schedule look like, madam color? >> clerk: well, how short of a continuance are you proposing? two weeks? a month? >> president honda: two weeks to a month, whatever accommodates our schedule the best. >> clerk: and the purpose of the continuance is what? having them correct the plans. >> president honda: yeah, having them correct the location of the appellant's window and the 45% lot line, just to make sure that the plans are accurate. so what does our schedule look like coming forward? >> clerk: well, we could put

it on in two weeks, no problem. we could also put it on february 17, in three weeks. >> president honda: so this question is both to the permit holder and the appellants. what i'm suggesting is a two-to-three-week continuance specifically to correct the inaccuracy of the plans and have a conversation about the wish list. unfortunately, we leave in san francisco, and we're earshot and eye sight of everyone. i would sincerely like you guys to work with the project sponsors going forward. we're not expecting you guys to be best friends. i'll supply a bottle of wine if it would help. so time frame wise, what is

enough time for both you and the permit holder to sit down and have a conversation, and a real conversation. is it going to take a week? is it going to take two? is it going to take three? anyone? >> i apologize. my laptop is dieing. i've got to move it. >> president honda: and i understand, you're in the richmond. the richmond has the worst cellular service and internet in the city. >> we may take you up on the bottle of wine, but we want to address straightaway, and i so appreciate you, scott, bringing the windows. we're going to make sure that that window is exactly right, that it is correct, and we're confident of the measurement, so i think two weeks. >> president honda: okay.

to -- two weeks. what about you? [inaudible] >> president honda: so what i'm asking is for you guys to sit down and have a chat, and they're going to fix the inaccuracy of their plans, and you guys are going to talk about the staircase. honestly, i think it's going to be a really tough move for the scare case to be moved personal -- staircase to be moved personally, and if you stick to your guns and don't agree to the staircase to be moved -- >> well, i wouldn't trust them to trust my property. >> president honda: we're

talking about maybe putting a privacy screen. >> well, i don't want a privacy screen. >> president honda: so you want us to settle that? >> i think the height of it is not inaccurate. >> president honda: so is two weeks accurate, ma'am? >> do you want to try to talk to them? >> commissioner swig: darryl, before we go -- >> president honda: yeah, i'm not going forward. we'll still have discussion. >> commissioner swig: i'm going to be your dissident.

>> president honda: commissioner swig, why don't you tell me what you're trying to figure out? >> commissioner swig: i'm trying to figure out whether leaving it in the hands of the neighbors, the two neighbors, is the best thing to do or i would like to ask, again, the zoning administrator, since he had joe to bail him out the first time, i'm going to give him another chance to give us some strong advice. is it -- is it -- are we setting ourselves up for failure because we're going to let two neighbors figure it

out. >> it's going to be back at the board no matter what, but i think if the board already makes a decision on that, i think you already have all the facts that you need to make a decision on that, so i think if

the board gives that input now as to the deck and the stairs, does it need to move, does it need to stay in the same place, but even if we go back to start this process again, at least we have that direction from the board that everyone can try to rely on. >> commissioner swig: so if darryl is of the opinion that the stairs are fine where it is, and i think i had a position that if i was the next-door neighbor and an objection to the stairs and the stairs were put in the same place, i wouldn't necessarily support president honda's position of maintaining the stairs where they are. so should we, rather than creating an argument between myself and president honda and also leaving it to neighbors to figure it out, should we just

throw the baby out with the bathwater at this point and then deny the variance and have you work it out appropriately and professionally in your office, metaphorically, and then, i'm sure we'll hear it back or maybe we'll be able to sort it out. what -- >> i think we'd like to see the board battle it out and come up with a position on the deck. if that's an option, i think that sounds entertaining for all. maybe i'll take back what i said about the peaceful transition of power. except to the extent that we can get that clarified, the board's position, because it would take four votes to overturn it. and the zoning administrator's position has been, considering all these facts, the stairs are fine where they are.

>> commissioner swig: okay. you just said -- for me, you just said the most important thing, which is -- and you know, i always support you about -- most of the time, and your opinion. >> president honda: hey, rick, you're falling off your seat. >> commissioner swig: yeah. i realized i had a cramp in my leg and i needed to standup for a second. and you know i support you all the time, which is why i ask you for your point of view. and if this was going back to you, and you would say to the parties, okay -- and to the public that the stairs are okay to move, then i would take back -- my feelings would still be hurt if i was the next-door neighbor because you're still saying it is appropriate, and

with some tweaks to the plans and adjustments, then our day is done, correct? >> it's legal to the extent that it's in the rear yard and it needs a variance and to comply with the residential design guidelines. through this process, we found it to be approvable through the variance process. so if we go to start over and add in the popout, i think it's likely that we're going to come back with the same position on the stairs since the parties have come up with that once, and so if the board has a different opinion, i think it would be good to get that out there now. >> commissioner swig: and then one follow up. i've given up my position on the stairs -- i'm going to go with your position on the stairs because, again, i value your opinion. but what about the -- what would be your suggestion and direction in trying tofluence a

discussion between the two neighbors with regard to the fire wall and those related issues? and i don't have a position on it, so i'm really seeking -- you know, what are their options? what should they be discussing? >> i mean, i think if the board says the location of the deck board and stairs are acceptable, it's the position of the parties, what can they do to mitigation the impacts of the current location? it comes down to the privacy wall that president honda mentioned. if you're okay with the stairs in that location, then maybe that motivates the parties to look at other solutions. it's this is where the stairs are going to be. what tweaks can be done to reduce the impact? >> commissioner swig: okay.

i'm going to agree with commissioner honda, i'm going to agree with yourself, and i'm going to propose, unless commissioner lazarus and chang differ, to keep the stairs in the same place. if that ends up being the board's direction, what would you suggest, if we're going to have a postponement of a resolution of this tonight, what would you suggest to the two parties, that the options might be to resolve their issue with regard to privacy and the fire wall, and material, size, just start the conversation for them so they facilitate some help so they're not in a void, if you would, please? >> yeah. i think if we can look at -- it's a preference, right? some people would want to have something that provides privacy, a mostly solid wall, but some people don't want the

obstruction. i've heard the concerns that the problems are about privacy and construction, so i think the appellants will need to figure out which should they address or prioritize, and then, the visual impact on their property and the finished fire wall, can they be finished, can there be siding? so i think there's no trust, but if there's something that can be worked out with what gets done. >> president honda: and we can memorialize this, but before we get to far, commissioner lazarus has had her hand up for quite sometime. >> commissioner swig: thank you. >> president honda: commissioner lazarus? >> commissioner lazarus: thank you. mr. sanchez, if we were to find that the variance requirements have been met, how does one deal with the fact that there's flaws in the materials that support the variance? >> well, i think, ultimately,

it might have to be that the board denies the variance, and then, we go back to the drawing board on the variance and, you know, legalize the popout, have a process for that, and then, that could incorporate any changes to the fire wall that they may agree on. >> commissioner lazarus: okay. so that potentially would be your recommended course of action? >> yes. >> commissioner lazarus: okay. because i personally don't think that a continuance, for purposes of a discussion, is going to be productive, and i also do not find it to be germane to the issue that's before us, and frankly, i need to analogize it to the first matter we had on our agenda, which had to do with the restaurant and the determination and trying to get parties to discuss things that really were not specifically related to the matters on that permit. so my -- my inclination is to

do exactly what mr. sanchez just described, deny the variance and have them go back and work out technical details and any other details that perhaps can be negotiated. >> president honda: thank you. and the only reason why i'm even suggesting a continuance, and it seems all parties are thinking that's not going to work is if we had the continuance, it stays amongst -- in front of this board, and we -- we could probably approve the variance and condition it upon the approval of -- the variance of the stairs and condition it on the approval on the variance of the popout correction. >> commissioner lazarus: i'm not sure that we can condition a variance decision. madam executive director, maybe

mr. russi can speak to that. >> clerk: we can revise a decision. >> president honda: we can revise? >> clerk: yes. >> commissioner lazarus: okay. >> commissioners, brad russi from the city attorney's office. i think commissioner honda's position is to grant the position on the variance holding getting a second variance for -- >> president honda: potentially. potentially. >> i've never seen a decision like that, and i'd need to ask the zoning administrator for guidance on what they would do? >> president honda: ping pong. scott, you're up. >> yeah, the board would be acknowledging that there's an

issue that would need to be addressed through a separate process. we're dealing with legalizations, so we've dealt with taking one legalization, the legalization of the deck and stairs through the end of that process, and then we'd be saying oh, there's another issue, and you need to file a variance to deal with that. given that it's a variance and a violation, i think that we could have a process like that is hopefully the same process and money if it's going to be in front of us. if it's going to be the exact same process, then maybe we deny it and everything starts afresh. but hopefully, we'll have a solution in two weeks, and hopefully, it saves some process for the permit holder.

is that an accurate -- >> yeah. it's bifurcating the scope of work through this deck, and you would have a second variance that dealt specifically with the legalization of the popout, so the issues would be isolated. i think that's a reasonable approach and a somewhat -- i don't know. it's late, but a good one. >> president honda: and so who -- would you be personally involved in this or would it go to a different planning -- >> it would probably go back to the staff that dealt with the original. you know, they would file either a new variance application and a -- kind of a revision to the variance application to have this second variance. >> president honda: i'm looking for an amazing planner or our commissioner who did this. >> we have an amazing planner who worked on this, matt dido,

who worked on this and would be able to. >> commissioner swig: commissioner lazarus, what would be your motion? >> president honda: yeah, that would be my question, too. >> commissioner lazarus: well, a new wrinkle just got put into this, too. so is it a motion to uphold the variance? >> clerk: well, you previously said you want to deny the variance, which means you would grant the appeal. >> commissioner lazarus: i would like to go with what mr. sanchez suggests it; i just don't know how to word it. >> commissioner chang: if i may, isn't the proposal to give the appellant and the permit holder a couple of weeks? the permit holder, i do think it would be unfair to proceed

without accurate drawings, and i think the permit holder should absolutely correct the representation of where the rear yard exists. i think the appellant should have the opportunity to review those. i think that both should act in good faith, and i think it's really unfortunate that there's been, you know, trust that's been lost here, but i think that that -- that that absolutely needs to happen. and then, assuming that there can be some compromise on the finer details that the z.a. mentioned, such as the treatment of the fire wall, the potential beautification of it, especially on the appellant's side of the house, if there are issues like that that the neighbors could come to terms on, then this board would be

open to hearing them. and then, it sounds like the board would potentially be open to upholding the variance and issuing a new variance altogether. i mean, that's what it sounds like to me. >> president honda: yeah, i agree. i agree. giving them two weeks to put their fate in their own hands. and maybe they're not happy; we give them their option to pick your poison, and then, it stays before this board and before this body, and potentially, we can approve the variance and revise the conditions to reflect the new variance required for the reconstruction or the reconstructed popout.

>> commissioner lazarus: so you're back to a continuance? >> president honda: yeah, i'm still back to a continuance because if we deny it, there's a lot more process. i figure two weeks, give them -- they get to bring back just corrected drawings, any way. that's my proposal, but you know, if everyone wants to go another way, i am open. >> commissioner swig: okay. i'll support that. it just lengthens the runway to the guillotine and prevents getting there, so let's give them some more space, even though i'm not sure they can resolve their issues. >> president honda: i'm not sure, either, but they have their own voice. as both parties can hear, we're leaning towards approving the variance and keeping the stairs, so i would advise open conversation on both sides to make everybody happy, so if the stairs are there, try to make

the neighbors happy with some sort of privacy wall. so with that -- >> clerk: i do see a question from commissioner chang. [please stand by]

>> welcome to the san francisco planning meeting remote meeting for january 28, 2021. the planning commission received authorization to reconvene remotely through the shelter in place. this is our 39th remote hearing. they require everyone's attention and patience. if you're not speaking mute your microphone. to enable public participation we're