somewhere and sent along. it is the same scope of work that is being proposed currently and this is where it says the unpermitted deck. this is a concern to us because we know the appellant raised this issue in their brief. we didn't have any supporting evidence of that. i have been in communication with the permit holder. they said maybe that the tenant would say they built it but there was otherwise no evidence of it being unpermitted. that is why i was surprised there were plans prepared by the property owner that show unpermitted light well. when i asked about that toed they said, no, they are not aware of plans that show this but there are plans in the lock box. i can only report to the board what i am aware of. i am telling you everything i am

aware of. it is unfortunate in this case that is complicated. maybe i could provide two orbits of information for the board. there is questions about property line windows. it looks like there are two windows on the permit holder's property adjacent to the light well. they appear on one of the sheets but not both of the sheets. second and third floors. also i have the 1938 aerial photo if the board is interested. it sounds like everyone will agree it was built in 1990s or late 1980s by the current tenant. i am available for questions. >> vice president swig. >> show us, please, the 1938 photo and that is not my

question. can you give us, can you orient us? >> it brings me joy to share the photos. this the one of the best inventions our staff put together. on the right appellants property with the light well. you can see to the left the permit holder's property. large light well square. you can see the firewall, that light line between the two properties. you can see the shade structure overhead. going back to 1938 aerial photo, this is where i am saying with shadows and resolution it is hard to tell if there is anything in the area. if there had been a firewall up to the roof it would have at least shown as white line in that area but it looks like there is probably some shade structure here which is where the door is into that light

well. there are stairs that go to the ground level, this doesn't, you know, indicate to me there is a deck in that area. that is the best that we have on that. >> no permit history that indicates prior to 2002 there were any other permits issued for something that might impact that area? >> no, a permit from 1991, no other permit for work in that area. >> there was a claim and this may be a joe duffy question as opposed to yourself. you are referring to a firewall. there was mention in testimony that that is not a firewall that is plywood. if we moved forward and approved this permit and i am not saying

we are. if we did because you have already told us it would be otherwise legal, wouldn't that show up -- wouldn't d.b.i. or somebody find out in the process of construction that was not a firewall and would that not trigger an nov? >> that would be for deputy director duffy to answer. >> thank you. >> now we will hear commissioner lazarus. >> thank you. this is more of a legal question. if you don't want to answer it that is fine. maybe based on your experience with these things. we seem to have an admission of somebody having built something without a permit. whose responsibility is it then to fix that? >> it would be the property owner's responsibility for any work on the property.

department of building inspection determines that the structure is not permitted then they could require the property owner to obtain a permit to legalize that work. it is the responsibility of the property owner ultimately to make sure the property is code compliant. >> second question. this may reveal my ignore ranges about the structure. if the issue seems to be around the illegal deck, is it possible to do this project and subsequently deal with the deck or does that interfere with the building of the extended firewall? >> i mean i think it is hard for me to understand what the real concern is here as well. i think that the issue seems to be the neighbor and maybe now they have more information about the firewall and deck that are there now that they don't like

it. certainly the property owner wouldn't be obligated to legalize it. they could remove the deck for the third floor and go about some other project at their level, second level where the office is. we would need to review whatever proposal they were to come up with. as we reviewed this we found this to be code compliant and ditch require notice based -- didn't require notice based on the information. now there are new questions calling into question our decision on the permit. >> from a structural point of view. am i clear if we approved the permit can you deal separately with the deck? >> the deck is the roof of the room underneath.

i don't know exactly what their construction plans are there. i doubt they are going to retain the existing deck. i think they will remove it and replace it with a new roof. that is the roof of the office below it. they can address better the property owner can better address their methods for the construction. maybe even the firewall will come down and get rebuilt. i don't know if they have more details to share on how they will construct the project. the deck is right above the room below. they are infilling the room for the office on the second floor. the roof of that is the deck. it is hard too separate the two. >> thank you. >> president honda. >> we are way deep in the weeds in this, to be honest.

they are infilling that light well and then they were retaining the deck, is that correct? >> the plans show the deck will be retained in the new project. at the end of the day a deck for the third floor unit and there will be the room below. that is the end results. >> it was mentioned earlier there is previous permits and there was previous. >> construction, yes. >> i believe it was stated that the tenant also did illegal construction at the rear of the property. that was found and abatement was started under the previous ownership. >> thank you. >> we will hear from the department of building inspections. >> commissioners, d.b.i.

i just the more you get into these cases the uglier they get. it is unfortunate when we deal with older buildings in the city of san francisco and all of the buildings and i talk about that. this is obviously sometimes you can live your life and nothing is never said about your building. unfortunately in this case we have neighbors that brought up issues. the problem is for the property owners having the date with this. you get into the mix d.b.i. and planning looking at records and can't find anything. we don't have anything in our system. we are not going to get an answer or he wills we get the answer there was no permit. what do we do? you know, it is a case-by-case basis.

you are not going to run a notice of violation right away. this was 30 years ago. i thought we were going to hear that. the concern there was a deck built at some point not designed by a structural engineer and architect. that is great. you know if you were building that deck today and come in with the permit for new deck because it is so close to the property line it would require a foundation at the ground level and 1r firewall continuous to the level of the deck probably to the roof level. that wall is for your foundation you can easily they are made out of 3 by four studs. you are putting sheetrock on either side and building paper and siding the whole way up. the point of structure, to be honest. that is what you are building today. like i said at the start we know

sitting here from week to weak people bring up issues all of the time, a fence, window or some appendage on the building that may have got built in the '70s, 80s or 90s without a permit. what do you do? this is unfortunate situation. maybe they need to rethink the infill of the light well. i printed the plans on my desk. i didn't cedi tail for the -- didn't see any detail for infill. as the permit is sharoned. the only part 1r is the middle infill. the rest would remain noncomplaint. it seems there is new information. i am available for questions. i could talk all night. the permit holder brought up

something about the other building not right sprinklers. >> that is your time. thank you. >> please finish. >> i will over rule and let you finish. >> it is good you stop me. the other building, those again these buildings are 100 years old. i appreciate scott putting up the 1930 photograph. when those buildings were built, i see even the house i live in like this. at one time everybody was open to each other. the light wells were open. two stairs going downsides by side in both buildings. you could have jumped to your neighbors. as the years go on people put up walls, plastic sheeting over them, they don't want water coming in. 100 years ago the water and rain came in. that is the way they were built.

that is why they are floor drains. over the years this is more install issue. it is really unfortunate. it is something the owners have to deal with. one way or the other tonight or through a complaint at d.b.i. we will deal with. >> questions from all of the commissioners for you. >> thank you. we will hear from vice president swig. >> i want to take a chapter out of commissioner lazarus' song book and state to the task at hand which is the filling in of the light well. this is not about a deck. this is about filling in the light well as well as the other elements of the permit which are not under question at the moment.

mr. duffy, if this board approves this permit tonight and the construction began and you sent folks out to inspect the light well portion of the permit and they discovered the site as it is today or they stumble upon something else and you said something that is really important that was brought up as something that it was unacceptable. you just accepted it which is i think you said that the firewall above and the firewall below are accepted as noncompliant. did you say that? >> what you meant was that if you were going to inspect that if this project was approved, if the work doesn't show you are upgrading those, you are

probably going to be okay with it. that is not part of what was approved. from what i am reading i don't say they are demolishing the existing wall and rebuilding from ground up. this looks like 6 by 10. that is what they are talking about a partial firewall less than 10 by 6 feet. the inspector might bring it up, you know, you can't make them rebuild it again if you are looking at an approved permit. >> i will cut you off. i think you answered my question. really what we are dealing with the an inspector went there yes or no, if inspector went there to in that infill wall which is the subject of this permit, the inspector would say construction on assuming it was built right,

the insulation of this new firewall as infill is appropriate and legal and we notice that above and below are noncompliant period. no notice of violation, no nothing, correct, yes or no? >> you said noncompliant. nonconforms is the word. you have a lot of nonconforming. you have looking at something that is existing already approved by the inspector. you might look at other structural issues to say i don't like the look of this. get the architect and revisit this. it is a possibility we would bring it up. because 90% of that wall is nonconforming you are not going to make them knock it all down. you could. depends on the condition of the wall. we are not going to let

something go that looks unsafe. we didn't hear that tonight. if the wall above and the wall below are in good structural condition and no dry rot or failure that is evidence to the inspector he is going to look at the new infill and say this is fine and notice that the two other walls are nonconforming. the fact that there is an illegal deck on the top has nothing to do with this permit in this case. >> it all depends. again, if i go out there and i am inspector talking about my own personal experience. you are looking at a deck. if i saw the joints under sized you are going to ask that question, you are the inspector. it could come up in the inspection. >> but the portion of that

portion which is the infill portion of the wall would be approved and the inspector might say i am approving this portion of the construction and by the way have you ever heard the term nov? if you haven't i am going to introduce you because i noticed there is an illegal deck that might be illegal. should expect a notice for you to take action on that deck. that would be separate from -- this is where i am going -- separate from what we hear tonight. is it okay to do that infill? >> well, it is going to create a room that wasn't there before. i am looking at the drawings. there are questions about the structural detail on the drawings. not partial infill. this is a question for the permit holder. it is portrayed as partial

infull. the drawings show enough infill. i don't know enough forecast if they are intending to rebuild the wall the whole way and what is going to support the whole new room there. i am not seeing the roof detail on the plans. there are definitely questions about the drawings. >> can we deviate and digress from mr. duffy and ask mr. duffy's question of the permit holder, please. >> of course. if you have a question. ms. hu. >> so when we had the approved plans we assumed everything was a firewall. it is correct that i think within the recent investigation period leading us to this appealing we have reason to believe some of those firewalls are just plywood.

>> the question is -- mr. duffy would you ask the question complete infill or partial. >> are you building a new wall from the ground to the roof that is a wall or infilling 10 by 6. >> we want a full one hour wall. we thought that it would just be the 10 by 6. i think we have to redo the wall that is potentially not a firewall. the intent is a full firewall. does that answer the question? if not i can clarify. >> that is not on the plans. it is good to know. that is another permit you need. >> absolutely. we would file an addendum or another permit as appropriate to paysicly rectify the site

position which is our intent full firewall. >> i am done. >> president honda has a question for deputy director duffy. >> i will let my fellow commissioners ask questions first. >> commissioner lazarus and commissioner chang. >> mr. duffy, under the circumstances and with everything you have heard what would be your comfort level with continuing with this permit as is. >> i am not sure you can go ahead on the current plans i am looking at. there are details missing that are required anyway. i am not too sure. mr. sanchez did say about taking the light well. but the light well, i think that

is creating an office on one floor. you are getting a new roof. if there the other work they are willing to do and address the light well under a new permit that is the best for them, the best option. as you heards the permit holders speak there is going to be another permit required. maybe that should be to construct 1r firewall and legalize deck and go through the process with that. i am not hearing that. that might be the way to go. maybe they do that on this project. >> your comments about the details that weren't providing or missing information, should that not have been determined or observed when the permit was approved by your department? >> yes. >> i will stop there. thank you.

>> commissioner chang. >> commissioner duffy, your question about the infill versus full firewall. how does that change how you would have otherwise observed this or do you just state it that you would recommend that the permit holder submit a new permit altogether in order to construct or have the entire firewall from the ground up be approved. >> if it is missing details. now we hear somebody built the deck without a permit. there are a lot of unanswered questions about the permit. [indiscernable] the language of kitchen and bath

remodel. they want to do work there. this light well area seems to be the bone of contention. you know, i don't like to be put on the spot what i would like. that is what the commission is for. i definitely think if we would do inspections on the project there would be questions about the extent of the light well, of the firewall and how it is going to be built and stuff like that. i see some structural details on the drawings but i think there is stuff missing on the drawings in that area. you know, that does happen. in answer to commissioner lazarus' comment. the inspectors are good about i noticed you have the permit the drawings are good but no detail.

you have to go back get revision permits. they are common. they are something you will see. if there is something missing on the plan the architect missed there has to be detail for firewall on the plans. >> if i may, deputy sanchez. if i understand correctly what was initially presented to the planning staff was the permit request to infill a level that was underneath the deck and therefore because it was a small portion that had little to no impact to the adjacent property it could be approved without notification. now with the new information about the deck being permitted that is what would otherwise

give the planning department pause because in order to have it fully legalized you would need both the light well and the deck to be legalized. in that case, how would the planning department typically process such a request? >> thank you, commissioner chang. you are correct. we viewed this as basically filling in a 6 by 10 opening in an existing wall. if now what we are hearing that wall itself is not properly permitted and would need to be legalized that would trigger notification. it wouldn't be full 311 owners within 150 feet. it would be a notice to the adjacent property. we would apply residential design guidelines on the infill and generally look at setting it back at least 3 feet the wall

from the shared property line to match the depth of the light well on the appellants property. there are cases where maybe we would allow them to build to the property line. for example sometimes we get a project where the maybe says we are filling in our light well, too, and they come in towing and we allow them to both remove the light wells. that is not the case here. at the end of the day if we look at legalizing that wall we will set it back three feet to match. we didn't review that. would would need to bereviewed by the staff on the permit application. they may come to a different conclusion. i am stating what is likely to happen. that being said while there is a lot of discussion today about the illinois legality of the deck it is possible permits

could be found and the deck determined to be legal or has that been ruled out as possibility? >> it would be difficult given the testimony this evening. the person is still there, they built the deck, they were a relative of the property owner at the time which i wasn't aware of. it seems that i would find it unlikely there is a permit for that. >> president honda. >> first of all, we have gone way into the weeds here and got offline. what is in front of us is a fully approved project by both parties. because of the last minute testimony of the illinois legality of the deck which came from an individual that said he rerecalled andrew it by total recall which i don't find that to be truthful myself.

one question is if the deck is illegal, then does the permit older are they required to remove it. that is one. anybody. >> president honda, you know the language that d.b.i. uses in these legalize or remove. we give them the option to remove it. >> since it was illegally put on the permit holder has the right to remove it? >> you can remove it. as property owner, as i tell people you can do that. >> we have spent at least an hour just on the legality and illegal part of it, right? no one proved it is illegal,

right? we have photographs from before indicating it was there on the last known photograph we took and prior to that. how do you tell me if it was legal on my building that it is now illegal. we don't have the original plan on file? >> no, we don't have a plan, no, no, no. high rise buildings. >> i will ask if question to the person that supplied the photographic memory drawing. are you still online, sir? >> he is here eugene anthony. >> question for you, sir. >> yes. since you built this illegally and besides the drawing or architectural rendering you recreated yourself, what evidence do you have that this