okay good evening, and welcome to the may 17th 2023 meeting of the san francisco board of appeals. president rick swig will be the presiding officer tonight and he is joined by commissioner og slumber and commissioner jr. eppler vice president lopez and commissioner trasvina are absent this evening . also present is deputy city attorney gen. huber who will provide the board of any needed legal advice. at the controls of the board's legal system long way and i'm julie rosenberg, the board's executive director. we will also be joined by representatives from the city departments that will be presented before the board this evening. corey teague, zoning administrator, tina tam, the deputy zoning administrator, and kate conner, housing implementation program manager. all three are with the planning department. and we also have

matthew green, chief building inspector with the department building inspection. now the board meeting guidelines are as follows the board request that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings. no eating or drinking in the hearing room. appellant's permit holders and department respondents each are given seven minutes to present their case in three minutes for rebuttal. people affiliated with these parties must include their comments within the seven or three minute periods. member of the public court not affiliated with the parties have up to three minutes each to address the board and no rebuttal time may be limited to two minutes of the agenda as long or if they are a large number of speakers. for cases that have previously been heard. the parties are given three minutes each with no rebuttal, mr long way our legal assistant will give you a verbal warning 30 seconds before your time is up for votes are required to grant an appeal or to modify a permit or determination. if you have questions about requesting a re hearing the board rules are hearing schedules, please email board staff at board of appeals at sf gov .org public access and participation or paramount.

importance to the board of tv is broadcasting and streaming this hearing live and we will have the ability to receive public comment for each item on today's agenda of tv is also providing closed captioning for this meeting to watch the hearing on tv go to s f g t v cable channel 78. please note that will be rebroadcast on fridays at four pm on channel 26 a link to the live streams found on the homepage of our website at .org. forward slash b away public comment can be provided in three ways. one in person to via zoom , go to our website, click on hearings and then click on the zoom link or three by telephone . call 1669 968 33 enter webinar i d. 8537812580. again. sftp tv is broadcasting and streaming the phone number and access instructions across the bottom of the screen. if you're watching the livestream or broadcast to block your phone number when calling in first all star 67 than the phone number, listen for the public comment portion for your item to be

called and dial star nine, which is the equivalent of raising your hands so that we know you want to speak. you will be brought into the hearing. when it is your turn. you may have to dial star 60 and mute yourself. you have three minutes, depending on the length agenda, and the volume of speakers are legal assistant will provide you with a verbal warning 30 seconds before your time is up. please note that there is a delay between the live proceedings and what is broadcasting live stream on tv and the internet. therefore it's very important that people calling and reduce or turn off the volume on their tvs or computers. otherwise, there's interference with the meeting. if any of the participants or attendees on zoom needed disability, accommodation or technical assistance, you can make a request in the chat function to al conway, the board's legal system or send an email to board of appeals at gov .org. now the chat function cannot be used to provide public comments or opinions. please note that we will take public comment first from those members of the public were physically present in the hearing room. now we will swear in our firm, all those who intend to testify. please note that any member of the public

may speak without taking an oath pursuant to their rights under the sunshine ordinance, if you intend to testify at any of tonight's proceedings and wish to have the board, give your testimony, evidentiary weight, raise your right hand and say i do after you've been sworn in our firmed. do you swear from that? the testimony you're about to give will be the truth, the whole truth and nothing but the truth. okay thank you. few if you are a participant and not not speaking, please put your zoom speaker on mute. so commissioners, we do have one housekeeping item and item number four. that's appeal number 23-7 subject property. 14 68 van dyke avenue. the parties have agreed to have this matter continued to may 31st and the reason for that is the board had been contemplating adopting revised plans. and since we don't have four members, uh, we thought it was in the best interest to continue the matter to me 31st so we would need a motion in a boat on that. make the motion sorry. okay okay. is there any public comment on the motion to continue this item?

please raise your hand. i don't see any public comments so on that motion commissioner limburg commissioner eppler okay, so that motion carries 3 to 0, and that matters continued to may 31st. so we are now moving on to item number one, which is general public comment. this is an opportunity for anyone who would like to speak on a matter within the board's jurisdiction. but that is not on tonight's calendar. is there any member of the public who wishes to speak on an item that is not on tonight's agenda? please raise your hand and zoom. okay. i don't see any public comments so we are going to move on to item number two commissioner comments and questions commissioners. any comments or questions or otherwise. none we'll move on. okay so we will move on to item number three. the adoption of the minutes commissioners before you for discussion and possible adoption or the minutes of the may 10th 2023 meeting and commissioner trasvina reached

out to me before the hearing and for item number five. the special item related to appeal numbers 22-76 and 22-77 at 1 46 23rd avenue. he would like to include presidents weeks, comments made to chief inspector matthew green. more specifically that president swig would like this matter reviewed by the director of b to ensure that the work was done properly and the appellant's concerns were resolved. so we would need a motion to adopt is amended by commissioner christina moved to adopt the minutes as amended by commissioner transylvania. okay. is there any public comment on that motion? please raise your hand. i don't see any public comments so on that motion commissioner eppler present swig motion carries 3 to 0 in the minutes are adopted as amended, so we are now moving on to item number five. this is appeal number 23 dash. there were 15 james lipsett versus department building inspection planning department approval subject

property 25 7 pacific avenue, appealing the issuance on march 15th 2023 to jamie weinstein. of an alteration permit. remove existing non complying. fire escape this permit number 2023 03143618 and we'll hear from the appellant's first. welcome new york seven minutes. thank you. good evening commissioners. my name is james upset. i'm one of the owners of 2509 pacific avenue. i found this appeal on behalf of my family because we oppose the removal of the fire escape as it serves as an additional means of egress from our house. my grandfather purchased the property in the 19 fifties and passed it on to its current owners upon his death in 1997, after which my father and i moved in neither my father nor i have any regulation of the fight of excuse me, nor i can remember a time without the fire escape. currently in the house or my wife, two boys four and seven years old are a pair and my father who stays on the top floor where the fire escape is connected, while the rest of us

are on the floor below. which the fire which is where the fire escape is located. with the drop ladder. the top floor only has one staircase in the back of the house. in the 19 nineties, a fire occurred in the kitchen when a toaster oven caught fire. the smoke traveled up the rear stairs and the smoke alarm alerted the occupant that something was wrong seeing the smoke. he immediately used the fire escape to evacuate the property from the top floor. upon reaching the ground. he re entered the house and put the fire out with a fire extinguisher before the fire department could arrive. even such a small fire made it unsafe to use the rear stairs and had it not been for the fire escape, he would have been trapped or had to run into smoke to escape. this could have allowed the fire to spread and instead of being contained to the kitchen could have potentially spread through the house before the fire department could have contained it. prior to the weinsteins council reaching out to us, we had very little contact with them just an occasional wave when we saw them on the street or brief email from them, generally asking something of

us. i honestly had a much better relationship with their housekeeper, as we would say, good morning and asked how she was doing when we'd see her. in january. 2023 mr williams reached out to us regarding what we interpreted as a demand to pay for half of a as estimated offense estimated to cost $21,000 which, upon a request for a proper quote the cost increase to almost $113,000 and the materials were changed from redwood slats and pickets to metal and demanded the fire escape be removed, which we have stated repeatedly we object to as it is a life safety issue in february as the weinsteins appeared unwilling to compromise in any way, as our suggestions were dismissed or ignored, and i felt mr williams emails were simply making the same demands. we retained our current council to handle the situation. in march without notifying us or council. the permit for removal of the fire escape was submitted to the city and approved we have always and continue to be willing to come to a resolution with the weinsteins and only wish they had approached us directly to discuss their concerns and plans so we could

have come to a resolution. we feel that the removal of the fire escape because of someone's personal aesthetics. they called it unsightly should not supersede the life safety benefit to not only our family, but also to the weinsteins and we oppose its removal. thank you. good evening commissioners . my name is laura stratas. oh i'm counsel for appellant and his family. so just to give you a little bit of context. um there are two properties. the permit holders properties on the left and our client's property is on the right. this is what the fire escape. looks like as you can see, it clearly crosses the property line is connected to both properties that's not in dispute. the picture on the right is the kind of a top view of the fire escape. it's actually painted the same color as permit holders house that was painted to match their property. um and so there's been a lot of talking the briefs about the

fire escape. it actually was subject to a permanent 1964. it's a little unclear if there was an earlier permit. um, but at least in 1964, there was a permit for the drop ladder. the fire escape was approved by the city, and there's a certificate of final completion and occupancy. ah! in fact, the permit holders actually made a complaint to db earlier in february about the fire escape and db. i confirmed there is no violation and the fire escape complies with the code and close the complaint. the permit holders actually had the fire escape inspected in april of this year. and the parts that were expected include the drop ladder, the path of egress as well as the systems are all inspected and passed inspection , um, permit holders mentioned in their briefs that somehow only half the fire escape was inspected. that's not what the certificate says. that also doesn't make a lot of sense given what was inspected, so i

don't think that's actually correct. they put the sticker on the fire escape. i believe it was fully inspected at that time. um and so we're here today to talk about the permit to remove the fire escape? um and as my client said they did have some discussions with the permit holders to try to find a resolution. they were able to come to a resolution so the permit holders on their own decided that they would apply for a permit to remove the fire escape. there's no dispute. the fire escape crosses the property line, and it's a fix to both properties. um the building code requires two permits for two properties. that's building code section one. oh, 68.1. that was not done. in this case. there's only a permit for their property , and the plans submitted clearly show that the intent is to remove the fire escape. um that's the picture on the right and also in the briefing. sort

of surprising to the appellant's that permit holders have changed their position on what the permit is actually doing. um they now appear to say that the proposal is just unbolt the fire , escape from their side and leave it kind of dangling in between the properties. um that's not what the permit application clearly says it's to remove the fire escape. it also would create a hazardous condition. on the property, so it's a little bit unclear why db i would allow that in final permit to create a hazardous condition. um that also violates several sections of the building code, including one oh 68.3 point 11 and one of 68.4 point one. um, with a little bit time that i have remaining. i just wanted to respond to a few of the arguments that came up in the brief um again. the fire escape is permitted. it has a cfc whether or not there's an earlier perimeter, not um you know it was permitted and

inspected in 1964 again in 2023 . it was inspected and found to be fully operational. um it has been used for emergency egress, and as my client said, it's an important means of egress for them and their family. um and there's no evidence that it violates the planning code or the building code. the code sections i did in the brief don't seem to apply at all. um and we can talk about that more in rebuttal as well. thank you. thank you have questions from commissioner limburg and president swig. thank you so much. i noted in the permit holders brief that they at least their position is that, uh, the 1964 permit that both parties attached to their briefing. ah states that ah. basically their position is that it was only a new drop ladder on the fire escape and that there was an earlier potential permit or not permit. we're not sure and it

sounds like neither party is sure about, uh, that second part . my question is because i did notice that mr lipsitz father was the name on the 1964 permit. was there a fire escape? present before that 1964 permit. um, dress, but. yes um, approach the microphone too, sir. mr lipsett. thank you. thank you. hmm. i can't say i assume there was my father had a major remodel the house, which was purchased in the mid 19 fifties. it was in some repair disrepair. i remember being in the house. i unfortunately was maybe nine or 10 when we started. i don't ever

remember the fire escape, not being there. but i certainly don't know when it was originally built. it seems to me that it would have been installed. during the remodel. prior to 1965. the house was finished right around 1960. great. thank you remodel. thank you. is there any written record over the eastman of any kind either registered with the city or hidden in somebody's file that has suddenly been resurrected. we haven't found evidence of one, but there hasn't been an extent. okay. thank you. okay thanks. second question. how many if this fire escape were too is there an alternative? uh place to put this fire escape? um serving the same portion of the house. um.

that would create another means of exit from the house. we don't know, because i've been researched. um there are some issues with the fire code because now there's going to build a fence underneath it, so i don't know what another is there another portion of the house that can handle a fire escape, as claimed in the in the brief by the permit holder. i don't know. okay, thank you. i'll ask them and all that's gonna be done. yeah, sorry. one more question. um. just help me get a better picture of this. so obviously the neighbors are the ones who obtained this permit. that's an issue today. um but it is the fire escape, currently accessible from both properties . or who is there a clear sense of whose property this is actually, the fire escape is actually on. sure the fire escape is connected and accessible to both properties

about 12 years ago, um, a contractor as part of a remodel, decided to close the property line windows on their property and chose to close off the fire escape from their property. but before that, um, and even to this day, the they have used it to access their roof and things like that. okay, so it is it clear on which side of the property line it currently is. is it entirely on the permit holders property, or is it partially on your client's property? there's no dispute that it spans both properties, and it's physically connected to both properties. okay, thank you. okay thank you. we'll now hear from the permit holders. good evening, steve williams on behalf of the permit holders rory and jamie weinstein and jamie's here with me tonight

just so much misinformation sent your way in the presentation. um there is currently a complaint out. um the 25. oh nine. they would never certified of no violation that's simply not true. um only half of it was inspected. uh recently my clients paid for it, and they refused to have their side. um those emails are attached as exhibit 19 absolutely refused to have, um, anything inspected on their side. uh you heard it from council to permits for two properties. there's no permits. for the construction of the structure. um and, um. it's not accessible from the weinsteins property and hasn't been for many years, and it never was legally because the windows that were covered up before the weinsteins bought the property. um is the bathroom and you can't legally assess it through a

bathroom. there's no cfc for this thing as claimed the cfc if you read it, it says for urban renewal doesn't reference the fire escape. at all. the permit was only for the installation of a drop letter on an existing fire escape. that's our exhibit number one. so um, you know, don't be fooled as they gloss over the actual facts. um the wise things have an absolute right to remove an unpermitted nonconforming trespassing structure. from the property. it's screwed and bolted in through their citing source of water intrusion, and it's actually a fire hazard. it's unsightly. it's ugly. um they would need, you know that's what we've established that it's unpermitted. um, you know, non conforming, etcetera. they would need some sort of overwhelming evidence. uh to deny a homeowner the right to remove that structure from the property. look on the on the flip side, you know, what would they have

to establish? um, you know, they're hoping that this board will grant them some sort of right of control and easement of some kind in the weinsteins property, because not only do they want control of the attachment to the building, they want control of the alleyway because they want to drop a drop ladder. there there are dozens of places where they could put the fire escape entirely on their property. so if i know the board often has to balance competing rights um, you know, they haven't established any part of what they would need to establish to have a right to maintain that structure. um in this case, the permit holders weinsteins. we did everything right? um you know, not only on the code, but as neighbors, you know, after the, uh, appellants unilaterally removed half of the front gate and people started coming in between the buildings. i put those those photos in the brief, weinstein said. that's okay. we'll just build our own

gate and our own fence. and he can keep his side open as they want. um we start we gave them written notice requesting their assistance. that's exhibit 589 12. i wrote to them for two months saying, you know, four different letters over that time , saying let's cooperate, courtesy and cooperation to remove that structure and construct defense. they rejected everything. so when they talk about a resolution, what's the resolution? if we give them the weinsteins property control over their property, um so i was mystified by this case, because i've never seen anything like this. and more than three decades of practice built directly over the property line attached to two buildings. i called up, deputy director joe duffy asked him how to handle it, he said, work with the neighbors if you can. we tried that. uh and then, he said, if that doesn't work have your architect file a plan. we did that that's exhibit 13 and obtain a permit from to remove

it from your building, and that's the intention just to remove it from the weinsteins building. um they can put their fire escape entirely on their building elsewhere. they could even relocate this particular fire escape elsewhere. but they should not be allowed to just sit back and control the neighboring property. so we reached out months ahead of time, follow the rules and procedures and obtained the permit correctly. so look at the structure itself. it's unpermitted on both sides of the property line. there's no permit for the construction. of these of this structure, there's no plans. for the permit this structure there's one permit. from 1965, and it's the kind of permit that somebody takes out that's trying to bootstrap that's trying to make something covered up. that's trying to legalize something that's not legal. it was to replace a ladder $100 permit to replace the ladder in an existing

structure. and again, that's our exhibit number one. it clearly says existing structure so it violates the property line violates the building code. it's not legal anywhere in the united states, any jurisdiction you can't build over the property line. it's not legal under any building codes past or present, it can't be legalized with new permits. there's nothing they could do to go and legalize the structure. um even if the parties had a private agreement. it would still violate the building code and violate the planning code. so, um, you know, hmm. it should have been abated a long time ago. um the you know the permit that was taken out. not only, uh, you know, is council put that front row center falsely in the brief it full db. i filed a notice of eyes filed a complaint against the structure back in february db. i said it said it that complaint aside, wrongly by misreading that permit, as well

as installing a ladder on an existing fire escape does not legalize it and does not create a legal structure. so um, the code requires its its removal. the building code requires its removal. the planning code references to non forming structures also require that these sort of things end uh and be code compliance so in and you know, in conclusion not permitted. no plans violates the code can't be legalized. no easement, um and very easy solution. build it on your own property. i mean, that was suggested early on 34 months ago. you know, before the dispute rose up, so this to me should have been an easy case in order to eliminate the structure and issue a violation so i'm happy to answer any questions. thank you. we have questions from president swig. then commissioner limburg redundant to the western. i asked before.

have you seen any written easement agreement, either in the file somewhere or in the city records. no sir. that was the first thing i asked. is there anything on your title? okay. no easements. nothing like that second question. can you please shut your phone off? thank you. um. mhm the second question. is i lost my train of thought. thanks to the phone. this is what happened. um so i'll go to the third question. the third question is the one that's oh, the second question. is this in in your brief? uh you stated that there were and you just said it again. i think you overstay that there are dozens of places to put a new fire fire escape. can you identify one? they could do it right where it is. just have you identified when you make it tighter for you put has a excuse me. let me make

it tighter for you. um has has a professional which your client has has engaged, given that this is an issue for them as a professional, looked at the appellant's house, and i've identified one alternative to the to the fire escape that is there now that which would allow a safe path pass path of egress . we don't have access to their house, but what i did do was put in exhibit 15 in the brief is examples of narrow fire escape structures that could easily be erected on the back of their house or on the side of their house to provide a fire escape. if they really wanted it, it's not required by the way by the by the code. thank you. final question. here's the here's the mystifying piece. that thing's been up there for 60 years. um, it's not exactly a secret. and it was attached for 60 years. to your client's house. uh you know

, one might ask. you know why? why now? other than the fact that somebody somebody obviously buys a house and said, wait a minute. this this this dog, don't hunt. um but for 60 years , this has not been a secret for 60 years. this has not been a problem until at this point. and that's the piece. that um, i'm trying to get over and over variety of fashions, and i'll give you that very softball question, mr. uh pineapple upon . that's an interesting question . you know, the weinsteins are relatively new owners. um they were always told that it was shared by the neighbor and that's what the neighbors been saying, even though it can't be access from the weinsteins home, um who knows when it was built there. i don't know that it's been there 60 years and i don't know that at some point it went over. was it originally constructed only on their property and then build over the property line later? who knows? i mean, it's unknown origin.

lord knows who build it. lord knows when it was built, uh or how it was built. uh so you know, those those are questions for the mystery, but you know, longevity in a code violation. does not make it legal. okay. thank you very much. conventional limburg. thank you . um okay, uh, same question. i asked the appellant. is it correct that the fire escape is currently on both properties? yes bisects the property line. thank you. um okay, so as far as i'm concerned, the question before us is, of course, whether this permit to your clients was properly issued, and here's what i'm i'm struggling with a little bit. um. why if the if the fire escape is shared between two properties, why are true permits not required? in your view here ? the permit would only allow us to remove it from 25 07 from the

weinstein property and then you know, because they're refusing to cooperate and work with us. we've requested for months and the you know, we've hired the two bony group sort of the gold standard. in fact, opposing counsel said he's gold star standard for contractors in the city. and you know they have decided that they can do it and we offered to pay for the removal of both sides again. they refused to cooperate. so the you know the idea is that we're going to unhook it from 25 27 patch up all the holes in the destruction and lower it slowly to their side for them to do with what they will. what good does that do anyone? well, it makes them it forces them to make a choice. they're gonna have to put it elsewhere. they can relocate that same fire escape elsewhere. the fire inspector told us that they can , uh, you know, take it off completely, um, you know, so they have their choices and they shouldn't be able to hold up the

neighbor, you know, hold them hostage, essentially in perpetuity to control their property, and that's the other choice. i well, i guess from what about that question really was, is what's the benefit to your client for removing half of this fire escape? yeah, well, they get their property back. um they, you know they get it removed from the side of the property. there's as i said, there's been some water intrusion issues where it's attached because it's just randomly attached into the siding. um and so, you know, that's uh just the right thing to do. okay and one thing i heard you argue, was the fact that it is potentially, we really don't know, because it's not in the record. but potentially because the fire escape may have been un permitted to start with back in the 19 fifties. um is there but what i heard you say, is that because it's unpermitted, it would it basically allows either

property owner to remove it. what what authority? do you have to say that because as far as i know, it's still both sides if it affects two properties that you have to have two permits for them. that's the rule well. first of all, let me dispel the concept that there may be permits for it. there are no permits for it and no plans. and we went through the permit. history is going back to when these structures both these buildings were built and i have them right there in the file, and they have them and b. i hasn't there's no permits whatsoever and no approved plans whatsoever for this structure. that's clear. um again, weinsteins are allowed to remove it from their property, and it can stay attached to 25. oh, nine. if the lips it's want to keep it, then they will have to make it work somehow on their side of the property line. i mean, that's what's fair. it's a it's a building code violation without a permit. well the issue i'm struggling with is it's

whether it's a building code violation isn't the question before us tonight. we can't make that determination. it's not the question that's being presented . the question being presented is whether this permit is was issued properly. and if the answer is that a permit should have been required for both property owners. the permit was not properly issued, and that's what i'm struggling with. and i'm i'm hearing a lot of argument about kind of auxiliary issues, but i'm not really hearing a lot regarding that specific issue, which is actually the one before us. that's the specific issue. the permit was properly issued to remove it from 25 7 pacific avenue. but if that essentially makes it so that the appellant's can't use it anymore, then that's not really true. well, it's their utilization of a structure is not up to the neighbors. they can as again they can do with it, what they will, then they can take out their own permits. you know, everyone's sort of on their own. for these things, especially it's not a required structure.

it's not a required means that i understand that, but i mean their position has been quite clearly that they don't want to remove it. i mean, i've heard them say that i've seen it in their briefing. being you know, i don't really think that's worth discussing for their. obviously they want to keep it right. the want to keep it and they can't use it because your client unilaterally obtained a permit to remove it in such a fashion that makes it unusable to them. that's really stepping groups stepping over the property line, so to speak, which is kind of the main issue here. well, actually, it's not. it's removing it from the weinsteins property, and that's what the permit. that's the only thing that permit addresses. and then the rest of it will be up to them. i mean, that's the only thing that's fair in this instance. if you're balancing the property owner's rights, i mean, essentially, you can't take away the weinsteins writes their property rights and say, all right, this is frozen in time. you know they can hold you hostage and keep this thing forever because they had it once without a permit. i mean, that's the flip side of it. it's hard

because i mean, as we learned a few weeks ago were not allowed to consider prescriptive easement. but you know, this is pretty clearly a case of that. and that is something that has to be decided in civil court. not here. but and we can't consider that. but ultimately, you know, this i mean, clearly has existed since at least 1964 . there is a permit in the record showing that there was a new drop ladder installed on the fire escape in 1964. that was almost 60 years ago. so it's i don't take your argument very well, that you know, but it may not have existed that long. no, it clearly has. there's a permit that it was really showing that they installed a new drop ladder in 1964, and we have the original property owner. who was living there in 1964 saying the same thing so i don't take your that portion of your argument very well. i'm not sure i have any more questions, so i'll pass the president twig. um mr williams. i'm i'm i have no question for you. my question is

directed the attorney. um and i think this panel needs your guidance with regard to walking that fine line between our jurisdiction and a civil dispute. um so where do you see this issue? um, moving into civil dispute territory versus where which might muddy um are. our view of making a decision on the permit, which is at hand today. and you give us some guidance. um are you muddy too? i will do my best. um i certainly think if we get into a matter of a prescriptive easement that is something that absolutely has to be determined in a civil court. this this board does not have the ability or authority to make a decision about that. what is before the board is the specific permit at

issue. thank you very much for your we need to hear from debbie ii to see what their positions and then planted grill db on that subject. okay but next steps, the planning department. good evening, president swig members of the board. i'm tina tam, deputy zoning administrator. 2507 pacific avenue is a three story over a basement single family dwelling in the rh one zoning district constructed before 1900. the property is unknown. historic resource. according to the permanent application, the scope of the work is to removing existing non complying fire escape. the permit was reviewed and approved over the counter by planning staff on march 14th 2023. the appellant is james

lipsett, the owner of the property to the immediate west at 25. oh, nine pacific avenue. the appellant alleges that the fire escape is both permitted and legal. and, more importantly , the fire escape is rightfully belongs to him as well since the fire escape is also attached to his building at 25. oh, nine. and the appellant's preferences to keep the fire escape exactly where it is. i'm gonna go ahead and show you a map of the subject property. this shows the property on the south side of pacific avenue between steiner and peers. um, below the map. it is. the street view, which i think you saw earlier showing the subject property, um on the left, 25 07 and the appellant's property at 25. oh, nine. on the

right. the fire escape is in between. these two properties. here's a close up picture. of the fire escape. it's in between the two buildings in, um what is considered the six ft wide breezeway. um that's between the property. below is a sanborn map showing the footprint of the two properties and, um purple is pretty much the location of the property line. and the highlighted sort of, um square. it's the fire escape so you can see it's straddling on the property line, perhaps three ft on one side and the other three ft. on the other. at the time.

the permit was submitted to the planning staff at the permit center. it was not made clear that the fire escape was attached to two separate buildings and two separate lots that belongs to two separate property owners. as such, the planner wasn't provided with complete information about the fire escape that's attached to the two separate buildings, so never had a chance to inquire about the process for its removal. um it's my understanding. there are provisions in the building cone regarding share features, so i will defer to building chief macarena to elaborate why the permit was issued in error. and why the permit should be revoked with that. i'll go ahead and hand off the rest of the city's presentation over to mr green. i think commissioner apple has questioned before you depart. and just just one brief one. what's the date of the sanborn map that you showed that this is from the 19 nineties? it's the

latest one we have in the city. thank you. thank you. we'll now hear from the department building inspection. good evening president, suite commissioners and matthew green, representing the department of building inspection tonight. the permit before you is to remove an existing non complying fire escape at 2507 pacific avenue. in fact, the fire escape is attached to two structures to 507 pacific avenue and to vote to 509 pacific avenue. the fire escape crosses the property line db. i does not have a record of when the fire escape was originally constructed. there is a permit, as has been discussed from 1964 for a new fire escape drop ladder. this permit was issued for 25 oh, nine, pacific . we don't in fact have permits for when either building was originally constructed the earliest permit for 2507 pacific is from 1910 and is to add to the existing kitchen. the earliest permit. we have records for is for 25. oh, nine pacific is from 1919 is to add a garage

under the house. i'm not saying there weren't any permit that just say we don't have any records before that. unfortunately db i believes that this permit was not approved and issued properly. first section one. oh six. a of the san francisco building code states, no building or structure regulated by this code shall be erected, constructed and large altered. repaired moved. improved removed, converted or demolished unless a separate permit for each building or structure has first been obtained from the building. official second, the submitted plans do not accurately reflect the situation. they do not state that the fire escape is attached to both buildings, and they do not present the layout of the building that actually accesses the fire escape to 509 pacific. um if these facts were on the plans plan checker will look at this much differently. third, i spoke with lieutenant kathy gilbert of the san francisco fire department this afternoon, she says, and i quote. unfortunately we approved the permit at the fire plan review

counter that we should not have this permit for 2507 pacific avenue 2023 03143618 was to remove a fire escape located in between two buildings. it was represented to my very new plan reviewer over the counter as an outdated structure that imposed on his property and was not in use. we approved this permit by mistake. i do have the email from lieutenant gilbert. if you like me estimate that the permit holders brief mentions that this permit was taking it on the advice of senior db official joe duffy. mr duffy is an extended medical leave, but i did speak to mr duffy yesterday about this case. mr duffy recalls a conversation but assured me that he did not and would not advise mr williams to pull a permit for one address. for these reasons, db i believe that the permit was issued in properly and that the appeal should be granted. this is an existing non conforming condition affecting two neighbors that cannot be unilaterally changed by building permit obtained by only one

property owner, um, available for any questions you may have. okay president swig. hypothetically if there was no where there there was no fire escape. as it is structured today, and, uh and we were hearing this case. because both parties. wanted to put in a fire escape and connected to each other. for all the reasons that the appellant has noted, certainly not the permit holder . this case would would a fire escape? um like this be permitted today. is it code crossing the property line property? no, we would not approve that, okay? um. in this case, therefore, so you're very clear that it was improperly issued and that gives us a strong hint as to where we're

probably gonna end up tonight. um but in in anticipation. uh of potential decisions just for this panel's information. uh so one this thing couldn't have been applied for and new constructed over a property line in 2023. that is correct today. today would not be approved. um . so uh, so what happens? in in in a so clearly at this so include clearly in this case. as what was brought up rightfully so. you have to have two permits to make this this thing come down. correct correct. you can have two permits, but they could

share the same set of plants. yes, okay. um where does this go? does this go into a civil matter? or is it is it? determined by d. b. i if we run into a situation, which clearly is we're running into which is 11 side says. i want it gone and the other sides as i don't want to go on, and therefore there's only gonna be one permit filed for and the other side's gonna say fine. you can file all you want. you're never going to get a proper permit issued to remove it. so where it is. where does this take db i with a non compliant illegal. illegal structure. i do believe it is a civil matter between two property owners becomes a silver matter, correct. i just want to know that so as we late leave this. we might leave it very,

very simple and clear and then they would have to fight it out in civil court. correct correct looking cool. thanks, commissioner limburg. is there. any legitimacy to mr williams's argument that the permit holder could remove one half of this and the other half would remain intact in your opinion. um i don't know if that's feasible, but the building permit as stated, is to remove the fire escape, not to detach the fire escape. thank you. can you turn your microphone, please? if the current permit holder filed for a permit. to adjust. the existing fire escape. and literally cut it. in half. remove it from his side. put up a, um, a restraining barrier so it wouldn't become an automatic safety. barrier could could that

be done? uh, without. well so if what what happens there? if 25 i'm just brainstorming here of 2507 were to get a building permit. to cut it in half. say yes, and put a restraining system as you said the restraining system would have to be on 25 oh, nine side then you need a permit for that. yes i don't think that's that's um feasible non is an unworkable situation within the d v. i am planning system as it stands today without a civil without going into a civil marriage. correct okay, so it's so it's not unless there's two two tickets to paradise and they're both going to go down to d b. i and involved for permits. then this is this is forever stalemated until it's resolved in civil court and the fire department as well as waited on this. okay, thanks. thank you. we will now have move on to public comment. is there any

public comment for this item? is there anyone on zoom, please raise your hand. okay. i don't see any public comments, so we'll move on to rebuttal. mr. azo, you have three minutes. great thank you. commissioners you had very good questions tonight. i just wanted to go back to commissioner sweet's question about where else you could put the fire escape. i did consult with my clients. um this is a historic resource buildings , so there's more limitations than normal for where you could put a fire escape. you could not put it on the front because it's a story resource. you could not put it on the other side because of construction limitations, and you could also not put it on the back. so the only place that potentially could go as on the side but with the new fence that's going in there. it's not clear if that would even be possible. and also for the rest of my time unless there's other questions. okay thank you will not hear from the permit holders. mr williams, you have three minutes. you know, i

really feel like we've been sandbagged by the departments. if you look at the plans that we submitted, it clearly shows they're attached to both buildings. talk to inspector green. he never once came clean with me. he talked about a continuance while he was having a private meeting with the appellant that i wasn't invited to. um you know, i've never been to a private meeting with db i just prior to a hearing. um you know, it couldn't be applied foreign constructed in 1964 65. it was never legal, and it can't be legalized now. and the permit is issued on 25 07. pacific avenue was never intended to do any work across the property line. um you know, they said they would relocate it if the weinsteins paid for it. and i have half a dozen emails from council saying, you know we can do this. we can do that they can move it. it can easily be moved anywhere. and so this board by

revoking the permit. is giving them a defect. oh, easement is giving them you know what? they haven't gone to court because they can't get it from court, right? this has been pending for more than four months. if they haven't prescriptive easement. i've invited them go to court. if you think that you have a prescriptive easement, or you have any right to maintain the structure, go to court and establish that right? and they haven't so now backdoor. they want this board to grant that to them. and ah decision setting aside this permit will do just that this will be a different defacto easement defacto grant of that property right over to, uh the lips it so you know, it's just a wrong decision. take a look at at that exhibit 13. you can clearly see the plans are clear. nobody said anything about the plans that they weren't clear. it clearly shows the fire escape attached to both

buildings. and you know, that's the problem i'm having is that we spent five or six hours at d . b. i to get this permit issued, answered every question. and you know, the architect was there. i was there, you know, we went back and forth and now to retroactively say, oh, no, we got it all wrong. and you know we're going to take away the weinsteins, you know, property and granted to the neighbors. you know, that's not fair. that's not right. and it's not an accurate reflection of the law. um you know the thing that has there's no proof whatsoever it was ever legal, and it's not legal now and it and it can't be legalized. it was. it was a code violation when it was built, and it's a code violation. now you can't retroactively permit and that's what this is retroactively permitting an illegal structure. thank you. we have a couple questions from commissioner limburg and president swig. um mr williams

again. you said that the intent was always to only remove the half on your client's property. but we just heard inspector green say that the permit actually very clearly. states that the permit was to remove the entire fire escape doesn't say that it does say removed, fire escape. nobody would interpret that as saying. remove half no. one no. one at planning or db or us on this body are going to say, oh yes, it only means do remove half of it. the permit only allows work on 25 07 . well that's that's a limitation. i and planning are both saying that the um but the permit was improperly issued was because they can't. they're what they're saying is that they cannot you cannot do the work on only one half one halff properties. correct you could unhook the contractors already who went down and counter to went down and got the permit

says that he can do it. he was going to remove it from 25 07, and the address written on the permit is a limitation on that permit. that's why you know they can't work on our side. we can't work on their side. so again. i mean, it's a catch 22. i feel like i'm i'm being gas lit a little bit. i'm literally no kidding. permit removed, exist right in description of all work to be performed under this application. what it says is remove existing non complying. fire escape. that is all. it says it can't be read to remove anything from 25. oh, nine. because the address on the permit, which is part of the limitations of the permit can only be performed on 25 remove the fire escape only from half of it. it's attached to both properties. as i've said the contractor has said that he can do it and he's going to lower it onto their property to do with what they will. he's not going across the property line. he's not going to unhook it from

their property. then they can decide what they want to do with it. so i mean, i don't know why that's such a far fetched idea. the you know the one of the top contractors in the city said he can do it. he went down and picked up the permit. and he's going to do it. so you know that's this projection ahead. oh well, you know, you have to execute this contract and this permit incorrectly. that's that's that's not fair, and that's not accurate. i mean again if the permit, said unlatch fire escape from 25 7 pacific avenue. then what you would be saying is true, but that's not what this permit says. very plain clear language. it says removed the fire escape 25 07. are you also going to tell me that if the appellant's hadn't filed this appeal that they would not have removed that your clients would not have removed the entire fire escape? absolutely there's no way to bony group is going to work over the property line and eat touch.

anything on 25. oh, nine. no way. thank you. commissioner apple er yeah, just to, um, extend upon my fellow commissioners. questioning um, so if you removed the connection of the fire escape from your side, would it then remained cantilevered off of the connections on the 25? oh, nine building. i'm you know it might i don't know i a appears to be in many parts. it might be capable of being disassembled and when it hangs straight out at the property line, i don't know. i've never climbed up there to look at it. but it looks like it could be disassembled on and this was the plan to disassemble it from 5 25 07 and then led 25. oh, nine, figure out what they wanted to do with it. i mean, they haven't had an inspected ever. you know he's spending inspected a minimum of every five years. they've never once had it

inspected ever so yeah, which is which is not necessarily an issue in this this this hearing, um, but so okay. thank you. president swig. um. so, mr williams, you're no stranger to us. you're one of the fine lawyers that come and appear in front of us and regular basis and we're very familiar with your expertise, and i respect that. um, but even i know that if. there's work to be done or work that affects across the property line. then you got to have two permits. and i mean, that's just something that we've heard redundantly and redundantly and redundantly. and we heard it again tonight from mr green. he said. there's no problem with taking this. this

structure down except it requires two permits. so that's . that's the standard that's always a standard that i've heard. so i and i think i played a bit of your case. i didn't mean to, but when i said okay, then who? who fixes the. you know who fixes the structure that that might cause it to be dangerous? when half of the item is. is removed, and that would of course, be the appellant's um need to pull a permit to do that. so no matter how we cycle around this it seems that we're going to get into the to permit world and i am what's wrong with that? asking you? why were you?

you're really good at what you do. you've done this a gazillion times. you know that. the one you know when it crosses the property line, and it gets into some, but we we've seen it examples of it with foundations . we've seen examples of it when , um, when there are two houses that are are connected, not connected, but pushing next to each other, and one infringes on the other or creates damage. yeah the there has to be if there's going to be a repair or going to be a change on the other property line, there has to be a permit, so i don't understand why you don't see this. well, i i'm giving you the opportunity, another softball, softball questions and one night . that's pretty good. what? how? how can you not see this? uh i what i see is, is the board legitimizing, you know, saying you need to permits structure wasn't built with two parents wasn't built with any permits. um and i see you know the board

projecting ahead and saying, oh, well, this contractors lying to us or this permit holders lying to us, and they're not going to do what they're saying they're going to do which is just disassembled on the 25 07 pacific avenue side because that's what they're saying. my fellow commissioner brought up a really good point. and the end of the night with the word disassemble. or disconnect. does not appear. on this, it says remove, okay, so i think this is the issue it maybe. it may be advisable, and i'm not going to make the advisory. it's not my job to re file for a permit and put proper words in there that would clarify exactly what you're going to do. and then you're in then you're in your in your boundary world, you know, so that that might be the other that by the thing, the other question that i have for you, and we just heard from mr green.

that if this was today, and these two, these two property owners were trying to do the same thing. no way. no how it's illegal. no question. i asked that question twice got the same answer. so i guess it's the right answer from db. i, uh and that's correct. i'm not arguing with that. it's an illegal structure. um but why? why does why why does not your client uh of asked for a notice of violation and create a situation where db i comes and asks, you get both parties to police remove that illegal structure. there's one pending, okay? and they wrong and that was the intent from the beginning. they only dismissed ah, a complaint that was filed in february by misreading the permit the same way and so, you know, maybe the board should continue this matter until the notice of violation is decided because

it's pending on the structure, which is, you know, clearly in violation, and then then we would come back here. you know, with that order and this permit to do the right thing, which is, you know, it's really a catch 22 . if you say oh, we have a structure that needed to permits to be built, and those permits don't exist and never did. but now you need to remove it. i mean, that's pretty brutal outcome. but it happens to be haven't seen the rules of the road. in this case, as stated by mr green twice. so um, well, we'll leave it there and we'll have discussion about it. couple of minutes. thank you. we will not hear from the planning department. anything further. tina tan for the planning department. um i'll just go ahead and put up. um the site plan for the for the permit. um

i know. mr william alleges that the removal is just for the fire escape on the subject property at 25 oh, seven. but when you look at the plans, it clearly shows the fire escape straddling on both sides, and it's actually pointing at 25. oh, nine, so it we understood it as the removal of the fire escape as well. okay thank you will now hear from the department building inspection. i just do. thank you. i just like to take exception to something. comments mr williams made. he alleged that i was colluding with the appellant here. that is no way. in fact, i talked to mr williams on friday about this case. he advised me that he filed a complaint on the website and didn't show up in the complaint tracking system. i worked with him in our management information system to find that complaint. it is now an active complaint. i wouldn't say in n o. v is pending. we're

going to investigate that complaint. i was mrs. um uh, mr azo did come into the office to talk to me on monday, and i was looking at the case saying, hey, this is kind of confusing if the um, permit holders agree? well, maybe we'll ask for a continuance. at that time i called mr williams in full transparency trying to be, you know, communicating with both sides. at that time, mr williams just started screaming at me saying there's a private meeting in proper so i said, okay. never mind. no continuance, and i hung up, so i take a lot of it exception with his comments tonight. thank you couple questions. presents questions. i'm sorry. sorry it's two meetings in a row. you get picked on. sorry about that. um if this permit had been written correctly. or written more. clearly, i'm not going to use the word correct because it's not for me to judge alright more clearly and it's and it said dis attached. instead of removed.

what? uh, what happens then? i don't. i don't know i would have to go to the police would have to explain what you're going to do and how it's going to be done. every done. plans came in, and, uh, this time was correct. in her view. and said, remove remove for me if i'm gonna remove something, it's gone right? it's very clear. but if it if it would to have said detached. uh fire escape from its attachment to hmm. the permit holders building. what what goes on what goes on there . do you think conjecture, please? i would. i would not think that would be approved because then you're creating a nuisance by a hanging. fire. scrape party neighboring property, okay? um the concept of a and notice i'm not

questioning your too. to permit point of view because it's right. um. if this, but i'm also looking for advice and resolution so we can as we try to do here, leave somebody with an opportunity to move in another direction to get to where they need to go. um. if this is in the this this structure you said could not be built today because it would cross a property line that would would this make it a noncompliant or illegal structure today. it was built today. no if it is, as it is today, built at least 60 years ago, because obviously the latter had to hang from something in 65, right? so. so if it is a is an illegal

structure today or would be in legal structure today, is it is it an illegal structure today as it stands, even though it was built 60 years ago. well or is it non compliant and it just gets to stay there in perpetuity ? well, it's non complaint. but if you walk down any street in san francisco, you're going to see noncompliance situations right if somebody files therefore, if the across the street neighbor forget, mr williams, forget the appellant. some across the street neighbor says, hey, that's that's an illegal structure. i'm gonna i'm gonna call the v i and say it's an illegal structure. it should be taken down. they file a. they asked for a notice of violation . um, does does that and it does that get a notice of violation, or does it get a pass because it's been in place for 60 years in general, we try to avoid property line disputes, but but if we were to issue knows the violation dispute it's not. it's

an illegal structure, which is which is spanning. okay attached to two buildings, which span the property line, which you said is illegal, so it's an illegal structure that happens to have a property line involved. incidentally, yes, but just looking at the history of the permits. this was looked at by the building department in 1964 . you know somebody approved it, then, um not the not the installation of the fire escape with the addition to it. the fire escape was existing. i. i'm not prepared to stay right here. and now that we would come back and say, you know, 60 years later that it was wrong. if we were to go down the path right and notice of violation. we would write it against each property. so then you'd have to notice of violations and we're right back where we started with the civil matter. yep and i'm just this is good that you're saying this because it kind of gives fodder for both sides to either. rita resolutions

amicably or go to war. um and. and and finally, um, if the permit were denied today because it was improperly issued, as you are suggesting and asking us to do i believe true. yes um then, um and. the current permit holder. the. felt that there that with different wordsmithing the and they had a different plan. uh they could achieve what their goal is without the use of the word removal, but rather the detached and adjust or some other wordsmithing. um is how long would it take for you to reissue that permit? and from

your point of view at this point, is it it is. is that worthwhile, or are we going to end up back here again? um if you wait, i'd like to get that code section one of 68 also refers to altering structures. so let me hold that one thing. thank you very much. just know building or structure regulated by this code shall be erected, constructed, enlarged, altered. repaired moved, improved removed, converted or demolished unless a separate permit for each building or structure has first been obtained by the building official. so even if it's a detachment and augmentation uh, we want you touch it. you got to get to permits. correct alright , that's all thanks to the stage, doesn't it? yes good.

thanks this one. thank you. you can be seated. thank you. commissioners. this matter submitted anybody want to start? mr grappler. i'll start because you know, i think. thankfully there were a lot of things in the briefs that were not brought up this evening because there's a lot of different issues going on here right now. and to the extent that there's frustration with their process. i think that frustration is because we are a body of limited jurisdiction, and there are issues here that are outside of our jurisdiction, and unfortunately they are the issues that will ultimately be dispositive on. the resolution of the underlying matters at hand the matter at hand before us today is the issuance of a permit. and i think for the you know, with everything that's been said tonight we will, you know, upon a motion duly made probably find that that permit was incorrectly issued. would

you like to make that motion? we can't sure suggest we need four votes. so if you pull if each commissioner here wants to vote to grant appeal and revoke the permit, i recommend you don't even have to go through that. we can just continue it. you would need them. we need a motion to continue to make 31st. final so that all commissioners can participate in the book. make that motion. i need some. remembrance deuce here. do we have to go through seven minutes , seven minutes. we don't. uh we have to allow for public comment, but then, um commissioners will review our hearing tonight. yes we will allow two minutes from both sides to elaborate on whether there have been any substantive changes since the motion to do you want to give the parties two minutes each at the next hearing

brief? not okay. okay. if there's any significant changes in. what has occurred so far, they've got two minutes to bring it to our attention. uh if not, um, we'll go straight to vote with all five commissioners. okay and we would have public comments. so do we have a motion to continue this too? may 31st and we have enough room on may 31st. we just we can make room, okay? right fine june 7th would be better, but because we're we just continued that other case that's too far out. i mean, it's not. it's only one week later. alright this seems that it won't be very long anyway, so given two minutes, two minutes and then a vote so 31st should be fine. and so we're just confirming that parties pardon parties available. mr williams. are you available on the 31st and mystery as oh, just yes or no, please. yes. it's my wife's

birthday, um, probably not available, but then we're going on vacation after that. um if he could be early in the calendar, um then i could probably make we can we can do it at the beginning. thank you. okay let me get the first item. yes, okay. so your motion presents wig motion to continue the item to enable all of a, uh an adequate amount of commissioners to provide vote voting and okay to may 31st so that the absent commissioners can participate in the vote. okay on that motion commission limburg. commissioner apple er. that motion carries 3 to 0. thank you parties. i would just like to make an announcement because i noticed some people are waiting, um in the public comment, portion item number four. appeal number 23-7 subject property 14 68 van dyke avenue that has been continued

to may 31st because i see a few people whose names look familiar. if you're waiting for that item, it's not being heard tonight. it's been continued to may 31st. okay so moving along to item number six has appeal number 23-13 ab, innit? techie versus the zoning administrator . subject property 14 35 26 avenue, appealing the issuance on march 27th 2023 to albany techie of a letter of determination, applicable applicability of state law board of supervisors, actions, planning department policies and the planning code. to the subject property. this is record number 2023 0004 to five and we'll hear from the appellant first. this one. which one is it? yeah and the and the standard. yes that's reminded the standard of reviews, error or abuse of discretion. yeah.

can we have the computer, please? okay. hello, everybody. i'm. representing the appellant and, uh, on this matter, and, uh, computer priest oh, sure. it is, uh, oh, isaka, samuel. isaac to leela leela, and, uh the pretty much everything will follow the brief with section that addresses the zs reply. uh they're probably the main issues as outlined there. are concerning zn, not answering certain city code questions on

our h one controls. and city planning's, uh uh, dispute process for sp 35 applications is invalid. and as such, were directed down a wrongful path and we have right to refund on the l. o. d s and appeals. there were two filed. this is the second one. okay also, talent believes that the first appeal the appeal number you see at the top was not properly conducted by the board and was not we didn't get a fair treatment. uh and not properly heard and considered. and so we don't feel that the result was a proper due process. um, for as outlined in the brief and it's pretty much restated on this slide. um and in short, you know, none of our

counterpoints or evidence were addressed. um z a was given automatic deference in the city attorney automatic deference without our counterpoints. um and now no president was even considered of the cited. lodz and president were completely ignored and just just did it. the city attorney in d a. and we believe that was unfair process. so accordingly. the uh issues, um at to be decided, um are, you know, goes back to that first appeal? um that the c a, uh is obligated to answer state law questions. um and if not all decided l o d s that had, um z a doing state law. uh the determinations should be avoided. uh decided ones. um did

the did the board err in conducting the prior hearing. and if so, should be reconsidered and reversed reopened. um and is the z a obligated to do an l o d on sp 35 application under the order of director hillis, who ordered the process for us? um and, uh. and is if and in the otherwise is the city s p 35 application process. invalid um and, uh did they go in there and go beyond discretion? um and, uh, and accordingly, the way we do a full refund for our elodie fees and appeal fees. uh disease reply. beautiful is quite

detailed. so it's a busy slide but felt compelled to address the different issues. um his first issue that he raised, uh, was that there were several code questions that were under his purview. um and as making us as if that's dispositive of us getting a refund. on the l. o d s and appealed. but what do you, um has oversight and understanding? is that in order to file a state law case on denied eligibility of sb 35. we have to address every potential contested issue. um in the in the project application, which includes, of course, a lot of city code. related matters, so all those must be raised to raise us a proper city state lawsuit. so of course there has to be those city code. uh in addition to the state law, questions in the l o d s, um um and. and then he said he gave us

an opportunity to withdraw. um the l rd in the l o d number one, but, um, he's misremembering that that's not what happened. we have email, email communications as well. um where, um, i told him on the phone call that there's plenty of elodie president. for him doing l o d s on state law and he says, okay, send them to me and i'll consider later on. i sent it to him. he'll say he'll he'll consider it. he'll see what he can do. um and then director hillis ordered the process that we had every reason to believe that he would end up communicating with phyllis. and it would happen. um and or there would be we would get this approved on appeal. that he would have to. um so, um so he i think he mentioned that, um as a being dispositive of getting a refund because we should have withdraw, withdrew it or something like that. but that's not at all what we understood

and expected from the onset. um then, um, he said that, um, the city and then he goes into, um, a lot of, um stating of determinations and opinions about, um, the sp 35 process that occurred and so and stating their their their views, um, which he should have done in the yellow d. i don't know why he's doing it in the in the brief, which is very odd for someone who's not supposed to talk about. anything state law. he sure got into it in his brief, um, so it's a bit confusing, but anyways, he's incorrect about just about everything he cited about what occurred. um and for example, um. he uh he says that it was it closed. you have 30 seconds, so basically everything is brief. we have evidence otherwise, uh, including the tribal notification. we have

steak code, citing otherwise, the hcg guidance we have stakeholder and the city ignored every evidence we ever did. they never had any interaction. um, it was pretty much bad faith process. um so it's not as easy a portrayed in his brief, um and then there are that's time he can rest in rebuttal if you want. yeah that's fine. the rest is in the brief that you already know. thank you, sir. we will now hear from the zoning administrator. all right. good evening. president swig commissioners. corey teague, zoning administrator. um. where to start? um a little bit of deja vu here as was referenced and you may recall back in february, the appellant had requested another letter determination from the zoning administrator that one was not property or project specific. it was generic and really, to the point of, um, asking the zoning

administrator to essentially interpret state law. um in that determination, i also determined that under plenty code section 307, the zoning administrator has the authority and the duty to respond in writing to request for determinations regarding the planning code, which i did in both cases. um but that does not extend to, um, being, um, required to interpret state law. um and that the appropriate avenue for any disputes regarding the interpretation or implementation of state law ultimately lies in the state course system. um to that effect again, the zoning administrator does not issue interpretations into the code regarding interpretation of state law does not issue bulletins on state law. separately you know the city and the department acts in a manner it considers to be compliant with state law and then, um, separate from zoning administrator bulletins, the director issues director of bulletins that gives guidance to

the public on how the department implements various state laws, and also how the department um ah. procedures the department adopts for other unrelated issues. um. because this led request was specific to the property. and even though i did not, you know, make the determinations that were offered that were requested regarding state law. i did think it would be helpful that the board at least had some context of what the project was and like what the issue was, which that's why that information was in the brief. um, that was noted in the brief that we're not making. um i'm disowning administrator is not making any interpretation of state law. but this is essentially what has happened and then the timeline and seems to be kind of the root issue at play. just because i assumed that would likely come up and it would be better if you just had that information on the front end. um um, it is true in both elodie request scenarios. i

spoke with the requester on the phone to clarify some issues both times made it clear what my determination was going to be. they had the give them the option to withdraw if they wanted to. that was not chosen, um, either time, which was their right and their ability to do that and move forward. um i could go into more. if you want . i would say that i would concede as we did in the brief that staff did inform them last year than an led was an option. um, along with also following a building permit that could then be, you know, denied. um if it didn't meet planning code requirements, and that could be appealed. i would just note that that was that feedback was kind of in the context of significant engagement with our department and contacting multiple people from our department at the same time, and our staff, including the director, spending a significant amount of time trying to assist the appellant and informed them of, um, how

the department would interpret and implement their their application. so that's why the phone calls prior to both letters being issued. we rectified that clarified that on the planet code issues yes, i will make those determinations but not on the on the state law issues. um going to the letter itself again, specifically, 68 pages 133 questions. it was substantial and challenging to fully comprehend, and all honesty. um and i made it a point. um the appellant caught out the specific questions that were in their mind very much related to planning code issues. and those were the questions i made sure to completely address, um, in an interpretive manner in the l. o d and again making the statement and the led that the state law questions would not be answered in this request. i think that covers most of the basis of, um, definitely here to

answer any questions you may have. but clearly our recommendation is that the board denied the appeal and uphold the letter of determination. thank you. thank you. president swigged and commissioner limburg has a question. errors and omissions. that is the standard. areas and omissions that that allegedly. you made in creating your president, swag error or abuse of discretion, error abuse of discretion. um i'm trying to find those i'm going to ask the appellant in his rebuttal. to be . ah either redundant to what he already stated, because i didn't get it. or because i'm trying to find those those elements that would enable us to find, uh for the appellant. um, where would you see that the errors a

missions and. error or abusive discretion. abusive discretion might have occurred. and where are you going to make us feel comfortable? that those did not. occur. sure yeah. i mean, i mean , my position is that there are no errors. um there was no abuse of discretion. the central question of the l o d, um is shouldn't the zoning administrator have to make these interpretations and if not the zoning minister than whom um, and those questions were answered and answered, consistent with the position that was already supported by the board of appeals in february, which is ultimately no zoning administrator does not interpret state law and ultimately, even if the zoning administrator issued um, a determination that was

consistent with the department practice. if he disputed that it's still ultimately the place where that would be settled is in state court that is the ultimate arbiter of state law. so um, i don't feel that there was any error or abuse of discretion in this, elodie, um and it was again based on the same principles that was upheld that were upheld by the board in february. as we have enjoyed the opportunity and i'm saying that's somewhat sarcastically of dealing with new state laws and sp 35. in particular. would you say that this ward has struggled with some of the issues that have um, muddied the water in in in our local findings and likewise has. have you been challenged by sp 35? in trying to sort out. um local

jurisdiction versus state jurisdiction. share me on on the first part. i think the board has been similar to a lot of other boards and commissions in the city and across the state whenever their local authorities impacted in a way that you know they feel hamstrings them to a bit. i think that's normal for me and all of our staff. you know any time there's a new state law or amendments to state law. there's always challenges and implementation. we have to figure out how it kind of weaves and works within our local law. um and we have a lot of great staff and city attorneys that help us do that work every day, so it's definitely a challenge. there's no there's no question about it, but we do the work. so basically your point of view is i can opine on what city requirements are what city requirement which city requirements are city guidelines are city laws are, um, city

direction is, um, but state law is a different uh, kettle of fish, and that is outside of ah , your jurisdiction and therefore ah, not in your purview. to upon which to a pine is that kind of your position where you're trying to get across to correct? yes under planning code section 307. that's where the requirement and obligation for the zoning administrator to respond in writing to requests. um for determinations, its determinations. regarding the interpretation and implementation of the planning code for stop. i don't do letters of interpretation for the building code or the fire code. um so similar concept, state codes or steak hodes. thank you, commissioner member. thank you, mr teague. you alluded to this, but i wanted to ask very specifically. how much time would you how much planning

department staff time would you say was spent on this appeal? well, this appeal is one part of the larger whole. coordinated or maybe less coordinated, but regarding this project and this topic with the appellant and his agents, um it's hard for me to know. um, i know that there's been i think at least a total of five staff who have all devoted significant time. i would say a big chunk of that time where, at least for these letters of determination they were paid for. there was a lot of work done by our staff. just in a informal consultation role that was far beyond a typical project to try to provide this guidance to the appellant. it'd be really impossible for me to say kind of ballpark guests, but it was significant. thank you, um i'll pass on my second question.

thank you. that's all i have. thank you. we will now move on to public comment. is there anyone here for public comment? anyone on zoom, please raise your hand. i don't see any public comments so we will move on tree battle. mr tallulah, you have three minutes and rebuttal. yes thank you. um so i appreciate the zs. uh feedback there. um however, believe he's incorrect on several points and i'll address uh, those, um so one is that he mentions that as far as following a building permit as another option. we were given two options. we took the z eight past elodie path. but even the other option which appears to be not legal, under state city killed lot code. but if you see on the screen the state i cite the state codes. they say the building permit is not required for an eligibility determination. sp 35 is not allowed to be required. so

that's that's not allowed either . so we didn't follow that for sure. um and as far as city codes, um he air with errors and abuses. he didn't answer. um an l o d one. this city code question. um, that's on the screen. and on elodie to this other city code question, which you can ask me later. more detail. excuse me. julie can you ask this? can you speak into the microphone? can you chase down this tam and tell her we need her for the next item, please. i'm sorry. what is your question left, and i need her for the next item. you need who? tina, who just walked out the door with her bags. okay? i think tina tam. i believe corey teague is going to be representing the next item. alright? i passed the time. thank you. sorry for the interruption. i was just okay. so you can ask me more about the

errors of not answering the city code questions and led 102, which i put up um and then, um, try to tribal notifications. you probably won't be carrying too much about. um and then the other one about where the abused its by ignoring, um, the cited precedent of, um he previously he said he doesn't ever do state code on led l o d s. but that's not true. i cited three examples and there are more where he did , and one of them what he did a detailed elodie on a b, um 15 61 . that's exhibit b one. um so he abused his discretion by doing all these previous state law l. o. d s and just on ours because maybe it hits the holy grail. and the sacred cows, not holy grail, but sacred cows are holy grail. maybe but the sacred cows of the state the city. he then switches to not do state law on

ours. that's an abusive discretion clearly. um and. and you can see exhibit b one for clear example of that, and the z a always gets advice that are from the city attorney on state law and from k. connor uh, would advise him and he's got plenty of staff that always have advised him. so he does state law all the time before and he would do this one, too, but for the abuse of discretion of not wanting to 30 seconds okay. thank you finished. okay okay. thank you. we have a question. 30 seconds. 30 seconds. you can always go on. but but i think you know, and then so this all wraps up into, uh, we just had a very unfair treatment in this process. and all those questions there shouldn't really you know, probably shouldn't go to a z a. but that's the were that's this. improper city process that put us there. z doesn't know anything about this stuff, you

know, so the city planning should have had a connor, um, answering these things as part of the process, you know, charge a fee, whatever. no, they were belligerent and just stop answering anything. thank you. we have a question from commissioner limburg for you, sir. i'm gonna do. ask this. the softest question i can, which is in. the last time you were before us that there was no property attached to your letter, said the letter of determination. this time there is it's a specific address. 14 35 26th avenue. um my question. i'm oh, go ahead and state that i think, regardless of what you're trying to do, i think you're going about it the wrong way. um but my question is, what are you trying to accomplish with? 14 35 26th avenue. what stated in the project description. you can read it. there is no project description before us there is, you know,

there's not there's 100 questions about state law implementation rj that's cited in the in the in the in the you know, in the l o d p r. j that property has a project application. that has all the description that's required and all the application was there, so that's the objective is just to get a permit on that. what? what? the permit to do what because that was not in the record that was submitted to us. so um, i'm asking. what is the permit that you're trying to seek? what are you trying to do with this property? to do except extensions, expansion of it. very short one end. i mean, it's it looks like it's a single family home, holding its to expand a building. that's the end. okay there. i mean, i certainly noted that there is a there was a question about whether 12 bedrooms would be allowable. that's just a general question. so you're trying to preempt something you're afraid of. what i'm saying. how is

that? how does that have any matt relevancy to the matters at hand? and just like your previous questions? why was an address? not putting all that? how is that relevant to the determination on whether we were put down a wrong process by city planning to go to the z a. and these are all questions in the project. um and you know general ones, and some can be general. some can be specific. once you're at it, you might throw other questions, but that's not dispositive of the main thrust. and for details on the project, you would read that it's an expansion to leela. you came here. you filed this appeal you no one forced you to you. no one forced you to file level force. we have to use me. i'm talking to excuse me. i'm talking. thank you. no one forced you to file a letter of determination. no one forced you to file a permit application and no one forced you to file this appeal. you're coming here, telling us asking us to overturn the zoning administrator's decision based

on error of error or abuse of discretion, and you have not presented a single piece of evidence as to why mr teague abused his discretion or aired in his determination. you've stated a bunch of reasons why you disagree with laws and, uh and what his answers to things are but you haven't actually stated how he aired or abused its discretion in any way and the reason i've been so hostile is because you're not. you're not making the argument that i think you think you are. and it's it. frankly i this is well i'll stop. thank you. that's all i have. right. so the simple answer if you go back to the video, thank you. that's all. yeah i just told you in the last year, minutes and abuse but you ignored it closed off to the to the arguments. okay, sir. thank

you. you can be seated. we'll now hear from the zoning administrator. thank you again. commissioners corey teague, zoning administrator. um and i do want to acknowledge the opponent's frustration. i mean, there's something there's clear frustration there. um i think there is frustration with the way the city is interpreting state law, and that's fine to have that frustration, um just to respond to some of the questions or some of the issues that were raised in rebuttal. um the department began. conversations with the appellant in 2021. and february of 2022. so this is more than a year ago . that's when the department first informed them that the project they were proposing, which is essentially a two story single family home being having a two story vertical edition and horizontal audition and adding an 80 you it was not eligible for sp 35. so this bill, and

there's there. there was not a long process there. and that was , you know, not a big process. there's been a lot of pressure since then. to get to the second appeal here, um. you know, i had the appellant sent me an email with very specific. questions that they want to answered out of the 130. some that were laid to the planning code. that's what i answered in the in the letter. um yes, i work kate conner on trying to figure out state law and how we implement it. yes the city attorney gives us advice as because we're their clients on how to meet state law . that's pretty normal. um and the other l o d s that were referenced. this is the same argument that was made in the last pure, understandably confusing. but those are situations where the city had adopted local code to implement the state law. and so that's not the case. we don't have local code implement. you know, we don't have a local sp 35 chapter of the planning code so i can

understand why that's nuanced and maybe a little looks contradictory, but i appreciate you. it's not. um and i think that addresses all the issues that were raised, and but i'm available for any other questions you may have. president swig. ah thank you for your letter determination and, um and i look for ears and abuse of and, uh deviation for all the things that you're accused of, and i couldn't find it. but what i want to i want to follow up on something that michael look commissioner talked about. um 14 35 26th avenue. the first hearing that we had on this item . 14 35 26th avenue was not mentioned. um, we hadn't no idea. had to place a context. around. um. anything that was

discussed. it was theoretical. and it was your response. to direct questions. posed by the appellant. and we made a decision. and obviously, the apparent was not happy with that decision. but tonight surfaces something that maybe we can help the appellant. with. pending are continuing continuation that, uh, we think that you did not error abuse, etcetera. um would you please advised the appellant? um, a path. aware. um he could get his project done and then if he did not. i agree. ah with the issues related to what you're going to allow him to do. what the what they recommended direction and

recommended path might be so that we can help him along and solved the issues related to his project at 14 35 26th avenue, which we have no plans for we don't have any specific dialogue about and we find ourselves in a tremendous void with pretty much no context. so could you kind of help us. could you please frame it for him and prime it for? so it can be sure can hear it to be clear. i mean, it's been framed for him. i'm happy to frame it for you all, but i like to get in public. sure so we're clear this board is clear that this that this appellant has been treated fairly. this appellant has had the benefit of expertise in direction provided by by the planning department getting his project done. so i think the one thing that's helpful to understand is that sb 35, which

is what he's attempting to be eligible for is primarily a process the interest streamlining at great, so no, sequa. um no discretion, etcetera. you still have to meet the planning code. um, so there's as he's been advised he could follow building permit for the project. like any other project in the city that's proposing the expand the single family home and at an 80 you and that will go through the process and whether or not exactly what he wants. you know what he proposes, is what gets approved based on code requirements and other processes that that's part of the project review process. um on this specific issue of sp 35 eligibility. we've been very clear that you can. that we are interpreting the department, the city's interpreting sp 35 if there's a disagreement and dispute over state law, then that would be settled in state

courts. and otherwise. and i'm trying to get the path clear otherwise. what we would be listening to tonight. if he didn't like the result of your findings related to a permit. and he appealed your non issuance of a permit. or appealed the permit. ah, asking for an adjustment. in this case in the eu. um then what we would have heard tonight is a discussion on the project. the plans. the requested. addition of an eu european, obviously his opinion would be that the eu is something you should have and your opinion, you know, let me let me do e s p on this one. your opinion would be that the according to state law, sb 35, the eu is, uh not. the

possibility to do an 80 you outside, huh? there's definitely that's what i'm saying. i mean, the 35 is less of a content issue. it's more of a process issue. um, so that's what i'm saying. like the substance of the project. i'm not gonna you know, i'm not reviewed in detail . you know, it's not actually a project that we looked at yet. but from the understanding as you said, there has been a p r j filed. it is an expansion of a single family home and adding an 80 you in principle that is something that can be permitted . in what form exactly you know that there's a process to go through there, too, when we review those projects for co compliance and design review, etcetera, so i don't know what the final form of an approved project would be. but this isn't necessarily a situation where the only manner in which this property could add an 80. you is through sb 35 which were saying goodnight hold you before. in the brief, we talk about how we offered another state law option as well that he was trying to seek a, um you know, a process

that was in some way doing better than what he would be able to get to the local process. and that was sp nine and he indicated he was uninterested in using that process, but there is just a standard city permit review. process that would allow at least in some form or fashion and 80 you to be added on the site. so at this point, uh, it would seem that the recommendation that might come from you is who police file for a specific permit with plans show us what you want to do will review that permit, offer comment and allow that permit or not? if not, it's based on what? what what? what is compliant and what is not complying? correct correct. that was he was given two options. one was to file the building permit, and we'll go to that process. and then at the time, um, you know, last year the led was also offered as an option. um which was relevant for the code questions. it was as well as for the for the state law questions, so that was the you know the original option

provided and that's still an option today. that could still happen to be back before you as a permanent appeal someday in the future. me i don't i don't know, but it's definitely an option. so that clarity is there. thank you very much for that explanation and in that context for this board thank you, commissioner. this matter submitted oppressors. make sure limburg. um i'm not hiding my frustration very well, today. um, i think. that the appellant of wasted an extraordinary amount of planning department time and i also believe that the , uh, kind of wasted our time as well. um and i would vote to deny the appeal. um just outright i'm. i'm pretty frustrated. this is not the first time we've seen this or issues like this. um, and each time it happens, it gets a little bit more troublesome to

me. where we have people trying to make new law through the use of improper channels. um and this is not the correct channel . i think mr teague just laid out a very clear plan as to how this project could proceed. um and if the project sponsors are serious about it, i hope they heed mr teague's advice. uh, but, uh, yeah, on that i would move to deny the appeal on the issue on the basis that the letter of the determination that the zoning administrator did not air or abused his discretion. initial never get any other thought. okay i'll support that motion when it's filed. and i would just, um i'll be a little less ill temper my opinion a little bit. i would say that the

appellant in this case miscalculated the direction in which he might have taken to seek a better result. and hopefully the advice that mr teague gave to the appellant tonight. we'll, uh further streamline the activity so that he can have a more constructive result to his request for his renovation or expansion. so would you please call the question? we have emotion from commissioner limburg to deny the appeal and uphold the letter of determination on the basis that there's only administrators in that air or abuse his discretion on that motion commissioner eppler president swig so that motion carries 3 to 0 and appeal is denied. we are now moving on to item number seven. this is appeal number 23-16 27 100 slope holdings llc versus zoning ministrations appealing the issuance on march 28th 2023 of the zoning administrator's

interpretation of planning code sections. 102 and 2 70 regarding measurement of bulk and planned dimensions. unless specified elsewhere in the planning code, the maximum plan dimensions per specific bulk limits apply within the exterior walls of each individual building or structure such that a single building may not have multiple vertical elements example towers, etcetera that collectively exceed the maximum permitted plan dimensions. however separate buildings on the same lot will have separate plan dimensions for the purpose of measuring bulk limits. so welcome the appellant's. you have seven minutes. thank you. before we begin. i would like to request continuance and the basis of the absences tonight. we would like i would like to request continuance on basis. the absence tonight we would like to be able to present this to a full panel. i have discussed this with the zoning administrator. i believe he's amenable to it. given appellants , um, availability and the zoning administrators

availability we would be requesting continuance to june 21st. okay typically under the rules, the rules state that a matter maybe continued, um, typically, we hear these types of cases and if the votes of the missing commissioners would make a difference to the outcome than it would be continued of course. you can also continue it. we'd have to hear both sides, though. uh with the planning commission with the is z a suffer any duress or um or a significant issue. if any other significant issue of this item were postponed to a later date to allow for a greater panel. no okay? um i. i think that i would recommend accommodating the request of the appellant. and

because there's no harm, no foul. and this and if we have a, uh a date, which has an open space. to handle a case of this magnitude, then i think we can accommodate that request. i'll let my other commissioners render their opinion as well. if they need be if not. we'll make that will take that motion. what do you think? i was looking forward to this one tonight as as weren't we all? um i mean, obviously, if the parties have agreed to it if they had done so before the beginning of this meeting, i think it would have been automatic anyway. um so i

don't see a great reason to not comply with the parties requests but um yeah. they don't know what i've got. i think mr lindbergh stated the case very eloquently there. okay so, um, we would we i know we have public comment, but is there any public do we have a motion on the table first, and then we can call you. the motion is to continue this item at the request. or at the request of the appellant with the um, with you agreement by the z, a. to june 21st. so that all commissioners can participate. panel of commissioners to consider the arguments. okay is there any public comment on that motion? anyone on zoom? okay i don't see any public comments. so we have a motion to continue . this item for the reasons stated by president swig to june

21st. on that motion commission lemberg kappler motion carries 3 to 0 and we'll see if we have any. was there any public comment? so thank you, everyone and your melinda's that correct , okay. i just haven't met you so i didn't hear your name. okay, well, nice to see you and we'll see you on june 21st. entertainment thank you. so we're always entertained. presents with this concludes the hearing, then that's a wonderful thing. thank you very much, everybody for attending and i wish my fellow commissioners, good health and a swift return. okay? thank you.

[gavel] . >> the meeting will call come to order. welcome to the may 17, 20me