Transcripts For SFGTV Abatement Appeals Board 111616 20161120

Any Public Comment on the minutes . Seeing none, all commissioners in favor . Aye any opposed . The minutes are approved. The next item is item d, continued appeal said. Order of abatement. Case number 6823, 1024 clayton street. Owner of record and appellate frances and christine ryan. Resend the order of abatement. Also, the hearing item two at the same time. Case number 6824, 1026 clayton street frances and crineen ryan. Requested to declare the deck and stairs legal and wave assessment of cost. Believe there is not testimony this time since this a continued case so you canwe need a update from the appellate. The appellate can come forward. So, given this is a unusual circumstance 7, 14 minutes or something less . 7 minutes. Okay. Thank you. There you go. So, we think that pending permit will resolve the issues with both these cases. It is just showing that the deck area is just above this garage here. That is where the deck is. So, we have been working and resolving the issues. With dbi, so a couple dbi people came out and had a inspection and we are working on adding to the plans making more drawings. We have done the radius notifications. They were done in 2006 and 07 but doing them again in 2016. We talked about this before but had done lots of inspections last time and had a letter it was abated so we like actually the feesno fees for either case because to the best of our knowledge we havent done anything wrong and everything had been abated. We have those letters. So,and again, the architect we had emails that we believed we were doing everything right. Never the less we were told we shouldnt gotthen letter last time and everything was abated and that was a mistake so were strie toog correct any issue squz we are working along that way with the department to fix anything and make everything completely legal. Just the radius notification has been done. That is new since the last time and i provided a copy in this package, which you got which showed the radius notifications were done 4 separate times in 06 and 07. The planning email, item number 1, which gives the go ahead and reinstate the variance which is key item that allows us to proceed. With patrick reerden and joe duffy on site we are work wg them and believe we can close the matter, we just need to redraw the plaj plans. The plans were done in twnt 06 and have to redo them so need time to dathat and fulfill the requirements that have dcp have put in, that should hopefully then continue the permit process and hopefully close the matter. Thats what we are asking for now is additional time in order to redraw the plans and provide this radius notification i just showed you here, give to planning and execute through on the permit process. Any questions . Commissioner walker. Do you have a estimate of time . As you know, the city a very busy, architect squz so on are hard to get a hold ofwe will do it i will rely on the department to tell us. Yes. Thats fine. Any other questions . Can be get verification on the fee amounts . How much they paid . The penalties. Joe could probably help with that. Most thof work that has to be done here isnt building department, it is city planning. They have to go through a variance. I would suggest we can give them some timeas much time as you can comfortable with but at the end of the day most will reside at city planning t. Is just a small deck and set of stairs. You havent been granted the variance . We were granted the variance aprivilegeinally in 2006 and now reinstated. And dont believe it is reinstated, i believe they said they will honor it. What does that mean planning will honor it and fut it forth to the commission with approval. That could take time and a two year point that is out of your control. [inaudible] which is quite backed up now. But what is also in front is the fees so maybe mr. Duffy can talk about the penalties are there based around the notification that wnt out and misled and so on. Thank you. Thank you. No other questions . Good morning. Joe deafy, dbi. Just on the fees first i thing there is 1668 paid on one noits of violation and another of 312. 80 on one of the other cases that hasnt been paid yet so about 2 thousand total. And then obviously at your discretion. So, to that point, go to situation from memory, forgive me thats alright. Has it been your experience and know you have gone through a lot of this where everybody puts their hands up and thrfs a lot of misinformation that caused the situation regardless who is pointing fingers have you in the past given complete fee forgiveness before . Building Inspection Division if we issue a notice of violation, there is like a 9 times penalty or reduce to 2 times. If someone comes in fairly quickly there is reasons to drop the penalty. If the work was done by a previous owner there is a exception in the code that we can eliminate the penalty. In this case, the fees that they are talking about i believe are Code Enforcement fees for staff time that is for the time spnt on the case to date. These are not penalties associate would the Building Permit sothey are looking for relief on abatement cost for staff time and setting up hearings and that. I would say those costs are fairly accurate and would be warranted to be honest and given the fact that we have two outstanding notices here, i do understand mr. Ryan got a letter from dbi to say the violation are cleared. Knowing he didnt do anything to warrant the notice violation chs a mistake of the department and did address that and the issue was fixed and clarical error so i think he would would still known he need today do something in regards to Building Permit squz taking care of this because if you get a letter to say your violations are cleared but havent done anything, it is not reallyyou still need to take care of it. I came back because of the twnt 14 case when Code Enforcement looked back and said hold on we shouldnt have sent this letter in 2006 so that reopened the case. I feel sorry for them for that fact. He will deal with it now or they will deal with it and the site visit we had out there was pretty helpful and it gave me a better understanding of what we are deal wg. There is a roof deck and stair, which was noted in the 2014 violation. There is a connectionif i can show photographs maybe it will help understand better. If i can have the overhead, please. So, this is the picture of the front of the building at clayton street. The residential portion of the property. The property extends back to ashbury street and have a garage in the rear of the property. So, this photo here would show you a stair walkway leading from the rear the front building to the back garage so look ing at the bake wall of the garage. It is nice property. There would have needed to be a connection between the frunth and rear property because of the elevation so there are a series oof walk ways and deck stairs that go across from his propertyill put up another picture here and let you see. Again, just the doorway leading from the residential at the back. The reason im doing this is give you hopefully a better understanding of what we are dealing with. In this picture you have a stairway that goes from a lower area up to the main area at the rear between the buildings. It would be our understanding that this is part of the earlier notice of violation and not relate today the 2014 violation for roof deck and stair. Ill show you that as well. So, then we have a stairway leading from the main level up to the roof deck on the top of the garage. This is the area on the roof deck. So, we have two separate issues but we think what he needs to do is pop everything together on one permit. The notification that got sent out maybe only addressing the roof deck and stair. He will probably need to get another set of plans to show the stairway as a landing i showed as well. I think historically there was a connection between the front and rear, there would have had to have been. There were permits for repair and roofing, but there is never a permit to rebuild all these between the buildings and apart from the permit we file frd the roof deck and stairhe needs to show more on plan jz he acknowledged that and think we can get there. He is dealing with a good planner, mary woods and i also have been in contact with planning as well. I think at this point, we are dealing with time. How much time to give them to get through the process. What complicates it more is the neighbor if you can see on the picture thrrks is a new building going in next door and mr. Ryan and mr. Durkin the developer fought for a couple years over this project and now mr. Durkin is fighting with mr. Ryan so we expect appeals and objections and think there may be a attorney here for the neighbor. There is a neighborhood dispute so dont know how long it will take. If it was in the normal scheme of things maybe 6 months but this could take a couple years given thewhat is going on between the neighbors here. I think probably have question for you. Can i get clarification . There is a passage way between the main house and the garage . Correct you are saying that we dont if that is permitted but figured it must have been somehow . Yes, there is always something there but it is rebuilt and see it is new construction and well built. I have no problem with it strucktually but dont think it is shown correctly on plan and think yee need shown on a proper set of architectural plans is that walkway elevated about the grade . Yes. How far sfwh . It could be 10 or 12 feet. Really . Uhhuh. Because you have a main level and then the garagethe street is at a slope. Ashbury is higher than clayton. If it had been a Building Permithe has probably taken out repair permits but that isnt in the proper permit. If you rebuild or add it has to show existing and proposed and that is what he needs to get to of everything done on one permit and set of plan jz one notification. Where it inch brings you toi would put everything together and dont think he is hat a place. I think he is deal wg the roof deck and stair on the 2014 violation but need to consolidate everything together and needs a architect to do that. Did you have a question . No, i think im clear about what is happening. Okay. I think if we could we should have Public Comment because with this rehearing or continuation we dont have to back and forth. We can go to Public Comment. Or do we want to yes. Okay, Public Comment . Just one thing i like to thank the commission for the opportunity because it gave a better understanding where we are. We can present better and more accurately. My name is mark [inaudible] and work for mr. Durkin who is the neighbor. This isnt as much a neighbor dispute as much as it is mr. Durkin investigated what had happened with the ryans and this deck and the more you dig into it you realize it is not misinformation. It is not a misunderstanding it is very simple. It is just that when the ryans represent things they are not supported by what the truth is. For example, mrs. Ryan just said that they had emails say thg architect told them they did everything correct. That is 100 percent not true. If you look at the email that i provided in the packet on july 17, a month after the work was started the architect emails the ryans. Neither of these permits are for the scope of work i had been working on. Neither are their for the exterior stair tooz the garage roof that are now built. The architect specifically told them that what was being done was not being done per sunt to the permit they have. The deck you saw and stair structure you saw that was being built in pursuant to a roofing permit. This isnt installing a vanity or ceiling fan where there were misunderstanding this is construction done to a roofing permit and reason it was done persunts to a roofing permit to sneak it under and hopefully get signed off on. When the permit was signed off august 1, 2007, after the roofing permit was signed off on and the dry rot permit that is supposed to justify raising the power pit and installing a railjug stair structure, after both of those permits were signed off on august 1, then they entered a contract that they had been negotiating all along with to construct a rooftop deck it san self. It wasnt a improper or mistake in permit, it was done with no permit what so ever. To bree more significant the ryans worked with the contractor and the contractor said im putting in this bid proposal imet rr not bearing responsibility for the legalty or permitting of this deck you want to build and that is in the exhibit that i showed you. Is included in exhibits g. The contractor wanted a full waver and assumed no responsibility. The ryans and that be removed and the contractor said no. Ill build this but you are on your own. They assume the risk and know this was built with no permits at all because they had been signed off on 13 days earlier and said you know what, well figure it out down the road and see what happens. That is what they are trying to do now. The variance expired and violated the varerance is done legally. They took the preliminary plans since we are hearing two cases at once is it fair to make this 6 minutes . Want this to be fair. This is really simple, there isnt misinformation or confuseing things. They applied for a variance with a architect and got approval for the variance, they fired the architect with outstanding bill and took the prelim thaer plans to raise a power pit to add a two story stair structure to add a railing to the structure and add a rooftop deck, they had the contractor get a roofing permit they that twice asked for and mr. Ryan was aware of. He is very familiar with permitting procedures of dbi. He created resistference my client and well aware what happened and the fact they have no less than 10 complaints in the past evidence they know what is going on. He asked the contractor for the permit and had the permit and know it was just a roofing permit but had the power pit raised, he had the stair structureall this work built. Then the architect says all this stuff you are doing none complies with the permits that you got. The roofb permit doesnt authorize this deck and it doesnt authorize the stair tower, it doesnt authorize any of this stuff. Then they got another dry rot permit and tried to justify the work in the photographs, both of those are signed off on and while the ryans are still negotiating with the contractor to build the final deck, the contractor says fine, ill build it for you but washing my hands of any responsibility because i gonet the legalty or permitting these are not final plans, these are preliminary plans used on a variance. Contractor says i will do this but want a full waver and they asked him to take it out and the contractor said absolutely not. You are on your own rchlt they agreed to have it done after the permits were done and they are on their own now and what have they done . They try to get this done and work with somebody else and may fault my client saying this is a neighbor disbutte but everything that im telling you is backed by the facts. This is what they did. You may not applaud ply client for bringing this to your attention but none the less, the ryans constructed to have a deck built without the benefit of any permit squz know about it and said ill deal with it down the road. They are deal wg it down the road. The variance is expire squd still not approved and asking you to turn a blind eye and let it go. Wave the fees, revoke the variance. What that does is sends a horrible message to the people that comply with the rule jz people considering complying with the rules. It says is you dont have to follow the rules or get a permit, you can do what you want and figure it out down the road and not the message we should send. Thank you. Any other Public Comment . Seeing none,we are going to have rebuttal 6 minutes . 6 minute rebuttal from the department and appellate which would be the appellate is first. 6 minutes because we are hearing two cases mpt let me first address [inaudible] it is dirty liting secret and a number of you know how this operates already. Christopher durkin told me himself he didnt care about my deck but he found administrative errors in the system. I said there cant be. He said i dont care about your deck. I dont care about what is up there, im going have my own huge house, you keep quiet and dont feel against my project, dont object my project and everything will be fine, just keep your mouth closed. That is what is really going on here. He said to me, you object to my project, i will get lawyers on your case and File Lawsuits and put orders of anything against you so that is what is going on here, number one. Number two, [inaudible] happy to explain to your our lawyer did find issues [inaudible] our architect did find issues and in the last hearing i provided you this blue folder and in hereunder item 4, mr. [inaudible] is absolutely right. The actect did find these problem jz she did send an email and it is on the first page on item 4. I agree this is quite confusing. Neither of the permits are for the scope you are work on. What he failed to tell you is she went into planning and dbi in 2007 and if you look on the next page on item 4, she says to me, on july 18, 2007, dave, i did speak with joe duffy from the building department. He did confirm the nature of the twoe permits pulled. They are both over the counter and suspects did not require drawings, but will require any inspection. Neither of the permits have anything to do with scope by design is working with. She contacted dcp and planning and was given the green light. At that point if something more was needed we didnt know. Why didnt planning or dbi say, you need extra this or that . What im say sg that is the realty of what is going on here. Just the lawyer said we were trying to do the work without permit squz that is not right. We thought we had the permits that were needed. We didnt knowwe had two permits and thought that was correct. We were just trying to do everything right, we are not trying to get away with anything. The contractor standard roofing, yes he does say in the contract that he is not responsible for a permit, but we still thought we had the permits needed and it is a good company that wouldnt try to get away anything also. Just wanted to say that. I hope it is clear now exactly what is going on here. This is strong arm methodology and this doesnt happen just with us, it happened up and down that street. It is known in the vernacular at litigation hill because there are a number of cases like this where the lawyers have gotten involved and developers are going in and saying we found this problem and that problem, you keep your mouth shut about mine project you saw the size of this thing. It wasnt just us that objected. Look at the size of this massive thing. There were like a hundred different neighbors objectingyou see the massive. This effects hundreds of people and expect objections and what he told 3450e is you tell all your neighbors im a nice guy and i dont want any objections against this massive project. I cant do that. I cant tell all the neighbors to keep their mouth shut, how can i do that . He said, listen you do that or im going to bring the lawyers in and file complaints against you. I found this [inaudible] i said it cant not be squeaky clean, the city signed up and came on inspections and provided those in the blue file and folder so saying mark [inaudible] is lying through his teeth and playing technicality here to misrepresent us as people who are familiar with the building process, the planning process and so on. We are not developers or builders, he is a expert and what he does every day of the week and misrepresenting what is happening. I say please lut us continue. The department and planning supports us, please let us continue the process, it will be a long and arduous process as you can see but we are on board with planning and on board with department of building inspection and trying to get it done and close it out and will make the plans. We made that proposalnot the proposal but following the proposal to close the matter and will have precondition and post condition plans, whatever is necessary update them and satisfy everyone to the best of ability. Thank you. The department . Mr. Duffy, do you anything you like to add . Question for mr. Duffy. So, a lot of this case i already made up my mind on it, but the fees are stilli was a little biti thought you were going to say based on everybodys involvement here this was just a very misunderstanding with the communication and the 2000 fees i want to have a good understanding you feel the fees should be collected based on the fact we had the hearings even though the hearings were generated by the misinformation . Mr. Ryan filed an appeal and got a letter from dbi saying all violation are cleared and that is not right. I dont thinki think they knew that. It was a win fall but it came back to bite them. That was definitely our error and acknowledge that. This is the big problem i have, what is the point of having the paperwork if we we cant stand behind it. Maybe they could have done a better job interpreting paperwork but if i put myself in those shoes i would happy with that piece of paperwork myself. Just trying to see the fees are just i think mostly staff time for enforcement proceedings and the fees are warranted for everything that was done up to the point of the letter sent out and also what we have done on the current case as well. It is just staff time. What is reassureing where you are sitting and based on the site visit all the issues that were up in the air are being resolve squd go through the necessary departments and it will take time to do that. That is a big thing. All the arguments about the what was permitted or wasnt and the contracted should have done, all that is resolved now to detail set of plans that will clarify everything through the planning . I think so and feel we heard everything that happened in the past today and look forward to what will happen in the future. There is documents in these files going back to 2003 acknowledging there is awork done without the permit. People do work without permit, we deal with it but what we dont have a accurate set of plans with a describing exactly what was done and havent got to that opponent but that is something we will look forward to getting to. Just i glad if i can get the overhead again becauseyou may have got this as well. This is mr. Ryans property, this is the roof deck. This is mr. Durkins development. I had a question. I was looking at thedo you confidence if we give the appellates 15 months that this matter could be resolved and get the proper permits and have the work signed off because they are asking for more time as another condition and this case is going ongoes back to 2004. Curious in your expertise mr. Duffy, do you think they complete this thun next 15 months . I would say give as much time as you legally can but they need as much time as you can. That is my feeling. Only because i know thatwe know there attorney and he isnt going away. They will probably appeal the variance and notification and Building Permit. Does itorder of abatement keep goingis in what do we do with that abatement in the mean time . Do they get time when that process is being gone through . If this wasif it is their fault they are not filing the permits timely and not trying to get this done i would say they shouldnt get time but how we deal with the time for the anticipated delays due to procedures that neighborerize entitled to . Maybe the City Attorney may know. Thank you so much for clarifying. It seems to me that these action by the department and the fees would have happened anyway because the work was done without permit, so im less concerned about the fees itself instead of ongoing fees. Maybe because of our delay bureaucratic delay we dont add anymore and that we allow for as much time as we can legally, uphold the order of abatement and put a timer on when the permits areor plans are submitted so we know things are movering forward. Yeah, i have a little different spin and that is i feel uncomfortable with the fees because i feel the department did give them the win fall and they had noappeared to have no consideration that there was something wrong with the letter and had to hang their hat on it so uncomfort charging fees. The violations were in existence before our actions initially. I think the work was done on a permit not issued to cover the work. That is the truth no matter what and then if it was cast aside by the letter action stopped until it restarted again but it didnt create the problem, the problem was there in the beginning so i just think some fees apply and willing to look at reducing them. Through the chair, maybe you can answer thisthe feesobviously the testimony from the home owners is they didnt know they were in violation, right . Yeah. Not sure and then the win fall came afterwards saying they were not in violation. I think the testimony states that their contractor and the permit they had and based on their experience they thought they had the permit fee squz proceeded on the circumstances taken even though as youwe all agree a roofing contractorthe testimony when chwe all agreed we say because of the inexperience and so on we will give them a pass on that. If it was a more seasoned person pulling the permit we wouldnt. I ami remember the last testimony the last time we talked about that. It is a odd precedence. If things happened correctly, when they filed the appeal on the first order of abatement back in 03 or 04, they would have a hearing in front of the commission and that fee may have been what they were asking for relief on. You are askingnow they are asking for it later on but those fees were already in place before that. Any time the department error it is one you say maybe we should bethat is your decision. Commissioner gilman my comment was i feel giving the extension as large as we can, whatever is in the legal parameter in itself also since the case dates so far back and i have been on the commission about a year, but you have violations back to 2004 and we are in 2017 and even though they are a small Single Family owner, not a multifamily owner or someone in the trades, i feel like this is going on now forthis can be going on for 10 years and uncomfortable with reducing the fees. I think the extension of time and stopping any fees moving forward is a approach i am more comfort taking. I think it sets a bad precedent for us and department so rather see a extension of time in pause of fees and fee frz staff time. Wrun other thing to bear in mind the fees for the variance hearings and notification and permit fees for planningthey still have permit fees to play and quite a lot with the planning Department Fees with that. Do we have a sense of how much of the 2 thousand predates the 2007 letter versus what came after . Most was before the 2007 letter. The fees paid were for the earlier case. Will commissioners consider reduction in fees . Yes. What i say is there is a fee of 312 for the latest notice of violation. Fees were paid on the first of 1668 so due to collect 312 on the second one. Commissioner gilman. I thought you said they oweed us 3 thousand. 2 thousand. The total fees would have been 2 thousand but they paid 1668 and owe 312. Thank you for that clarification i think we all under a very different. They owe a balance of 312 for the second notice of violation. I want to be sensitive to people not being in the professions and what not, but dont think ignorns of construction is ever a exkoos where we reduce fees. We want to encourage people to follow the law. It seems some of the information they had as this went forward should have given them pause moving forward with unpermitted work. Im really willing to give as much time as needed to resolve this and to not incur more fees, but we have what we have here and it is violations, so i guess i think we are getting closer on agreement. I just want to make a point that a designer if i make a mistake in design and the client goes ahead and have to redesign and cant go to the clientbecause it is a mistakeask for reimbursement for redesign. I feel that is similar here because if they incur cost they incur cost and expected to pay it that doesnt seem right. What mr. Duffy said is most of thees cost came about earlier so then my feeling is we perhaps 12340 split the baby and say what is paid is legitimate and dont collect remaining 300 maybe assuming plans are submitted within maybe three months or something. Plans can be done without the Planning Department approval, correct . Uhhuh. So, you are asking for them to be filed . Right, within three months and allowing 18 months is the amount of time we allow. Upholder of abatement and collect current fee squz not incur anymore fees as this plays out. We get the plans within three months. Can i make a correction to what i stated . The fees on the 2014 notice of violation 1668, there are outstanding fees on the 2003 of 312. I got that in reverse, just wanted to correct that. They are look frg relief on the 1668 for the 2014 case that that suggests the 1600 was materialized after we sent that letter. That was for the latest notice of violation for the roof deck and stairs. Which never had a permit and correctly issued, which is now going through a permit process. Okay. We issued the permit and the homeowner filed the permit but no permit yet. We dont have apartment yet. The homeowner was under the impression it was under the roof permit . Yes, but it never was. We understand that now, but if we are going back to the testimony here we accepted the fact that they were not seasoned veterans and now they are recorrecting everything andi still think the roofer in the contract said they were doing work that want permitted. I think that againif there is something wrong and work done without permit there is work done without permits and anybody can come and say they didnt know they were doing it. That isnt a excuse. But everything you said is correct and agree but got something fwraum the department saying they were okay and that is the part im struggling with. Knowing contracts after the fact. They were told it was okay. They did it and were told it was okay but it wasnt but that doesnt change the fact it wasnt okay. We are all in agreement there. What im trying to they didnt do the work based on our letter. They did the work and then our letter came. Knowing the language we are not responsible for permits period. It is asometimes it is a protection mechanism in there for a contract because sometimes the work may exceed the permit and nobodys fault so pretty standard language and seen it in contracts. It dubtz mean you cart blaunch to build what you want, but it testimony of the ryans is they thought they had the permit, we supported that, then we undid that and we are here. This is a 2014 and makes a difference to me on the 1600 bucks there. 2004 is what we thought we were talking about. I think it fast forwards this why give them reduction in fees or give money back. Give them money back or major reduction in the fees. Or perhaps make them pay 312 from the 2004 maybe that is the way to go. Would it help 23 i read the notice of violation . It was 14 and complaint filed for unpurnlted are oof deck. A roof deck is installed untop of grad and no permits for decking and stairs at the rear of the building, obtain Building Permit with plans or permit to remove unpermitted work was 21 of november, 2014. Mr. Ryan icame to the Building Permit with roofjug repair permit and variance decision and remember meeting him and saying these are notthis isnt right. The variance decision and told you what you had to do which you didnt do and can understand if you getyou have your variance decision but need to follow up with the permit. There would have been someim okay and have a letter from dbi. Maybe some relief is warranted. Can i suggest we vote on commissioner walkers motionwe dont have to be unanimous. Want to restate the motion . We better understand i wnder if you have a different position . I dont because and feel at some point anybody can come and say they didnt know what they were doing and at some point we have to look at what is there. What was built was built without permit. Imam motion i made is uphold order of abatement and allow 3 months to file plans. 18 month tooz have the project go through permit approval with planning and building and any necessary things. Uphold fees. I will second that motion. There is a motion and second. Do roll call vote on the motion. Just want to clarify, you will grant the appeal, uphold order of abatement with the following conditions plans filed within 3 months, order of abatement held for 18 months and uphold the fees. And no more fees. Uphold the fees that are incured up to today but no more Going Forward . Correct. Clarification, they paid part the fees, not all so are we asking to pay the original 300 im not including a fee reduction. If somebody wants to make a frnd friendly amendment i may consider. What about the monthly monitoring fee . No. Wave it. Wave the monitoring fee. Just for the record, we will take vote and just want to have a chance to explain my vote because i will disagree because i feel strongly about the 1600. It is principle thing for me. It is contrary to the position you are taking but feel differently so will vote no but do a roll call vote. I want to explain before i vote is i feel mistakes may have been made on both sides and should try to share some of that. Im sorry because we are allowed to have discussion about it. Absolutely. 2004 if we give 18 month said we are looking at 14 years that this case is involved with the this department at one level or another and just seems long for a Single Family home dwelling and this level of work. I think mistakes were made on both sides i think if we wave the monthly monitoring fee and say no fees moving for ward and caught up in litigation with the neighbor they may need to come back and have furkter extension squz if the Commission Says we areope toon thatreimbursing fees paid sets a bad precedent and not to make any comments on what thavalue of 316 is for anyone, i think it is important to send a message we need more diligence to the case and that we need to insurei would give a further extension on the plans to be submitted and do 6 months as a courtesy because i think 3 is rough. We cant hire architects and engineer now the city is booming so do a friendly amendment to extend but uncomfortable reducing fee. We cant take anymore comment. Well pay the 1600. Thats a good comment. I accept the friendly amendment for 6 months for plan submittal. Giveren what mr. Ryan just offered or agreed to not request refund on 1600 do we want to collect the 300 . The motion stands. With the amendment. Commissioner gilman. Could we read that one more time . The motion by commissioner walker is to grant the appeal, uphold order of abatement plans submitted in 6 months held for 18 months, the past fees incured are upheld, the fees Going Forward are waved mpt exactly. Roll cole vote. Clinch, yes. Walker, yes. Gilman, yes. Konstin, yes, lee, no. Mccarthy, yes. Warshell, yes. The motion carries 6 to 1. Next item is e new appeal case 6827, 2185 bay street. Franklin vista llc, appellate requests the order of abatement modified to permit rooftop garden or landscape area. Good morning. Ros mary bosky chief housing inspector. To continue the theme of roofs, this particular appeal addresses a 24 unit Apartment Building on three floors of occupancy with garages on the ground floor. It is a corner soft Story Building. Built approximately 1930. As you can see, this is bay street i divisadero and two fire escapes off bay street and one here at the divisadero location. Here now is a shot of the roof area. Again, here is divisadero, bay street, a fire escape here and two at this location and the area of concern that we are going to discuss today is this area right here. This particular picture does not depict what is there as far as the receptacles and planters. I want to show you now two photos one in february and one in april of this year rchlt in february you can see that we have 14 receptacles and 10 planters. These planters are about 30 inches by 48 by 12. About 10 square feet. There are 8 of those and we go from february of this year to april where we go from 14 to 19 receptacles and as you can see, one is at the edge of the parapit of the building. These are three gallon receptacles. Now, we wrote a notice of violation that the load of these planters and receptacles exceeds the load that is intended for this roof. That notice of violations issued in march and it asked for information from the Structural Engineer, the Property Owner was very timely andsent a letter dated june 24 of this year from a Structural Engineer saying the load provided by these receptacles and planters exceeds what was intended for this roof. Now, i want to showi will go back to the other picture. This is from google and you can see this roof and you can see the roof of the other multifamily dwellings in the area. They are clear because we work hard to make them clear unless a Building Permit filed to change the use we have several concerns and it is just not load and stepping into the shoes of the hearing officers there are several things we want you to take into consideration. One is the loadthe second is the fact we obviously see a disparity between the number of receptacles. They can increase or decrease and cant guarantee how much material is in the receptacles. We see a hose and something is watered. The water materials are also adds to the load. It is a concern. We dont have proper guardrails so in this location we dont know if something can fall off the roof. Sthais soft Story Building the Property Owner filed a Building Permit to deal with that but in the event of seismic activity or fire the Fire Department may made to do something to aerate you have a issue. This is a Single Family dwelling where the occupant is in one building. Sthais large Apartment Building with a lot of people that could be effected by this. The tenant is making the appeal and have standing to do it under section 102 a. 10. I gave a copy to the City Attorney and secretary so they have that for reference. Now, the other thing i like you to consider and i believe the appellate may be here and if the Property Owner is here i think they need to be heard too. I want to direct your attention to a letter by the Structural Engineering because he outlines the same considerations. The other concern i would have is we are always fighting to make sure that these roofs are well maintained so you dont have app chur jz mold and mildew and effect the fire proofing. We have no idea what this amount of materials will do to the surface so we dont think this is prudent use or legal and not a permit and have about 800 assessment of cost. Because the Property Owner is timely trying to deal with this, we are more than happy to look and reduce that and have a itemized bill in your packet. Commissioner lee. Is there any authorization for Property Owners to secure the rooftops from being accessible . Is there any obligation that Property Owners have to keep the rooftop from being accessible to people . In this instance because there are fire escapes off the roof, it has to be accessible for that purpose but not as far as any other use unless done with bailding permit. You have information the tenant was allowed to do this in the past. That may be the case but dont believe that is substantive with safety. Calling it one thing versus another with twnt pound load we dont believe that is substantive of not being able to control the amont of receptacle of what was put in them. This was never meant to be like this. You is a issue where one can go off the roof and may be waited down but corner building, sor story. This is a older building so if a fire starts it will probably go across the attic and probably not stops toprint it and no sprinklering in the building unless it is in a garbage room or a trash chute so the building doesnt have what a modern structure would have as far as Fire Prevention and or deterring a fire from spreading. All those Things Considered we dont think it is prudent and think you should take these things into consideration and upholding the hearing officer. Commissioner walker and then commissioner gilman. So, has the Property Owner submitted a permit to allow this . No. Okay. We have not to my knowledge and just look adthat permit history this morning. We have a pretty vibrant green Roof Department and policies to encourage this, but it requires that you go and make sure the structure can hold it and gives you specific information about how many receptacles and planters to establish a proper load, so there is a process we have in the city that helps with this. In there is no permit to legalize this, is that what you are saying . Yes. Okay, thank you. Commissioner gilman. You may not know the answer to this question, but are the receptacles are for rain water . Im confused why the receptacles are on the roof . It is my understanding he is growing certain wheat grass for personal use so the materials in the receptacle would be according to our staff report to you is soil is and things of that nature. My concern is we cant control the amount of material or water not only in those receptacles that is grown but also in the planters which that is about 80 square feet. Yeah. Commissioner mccarthy. So, just on the permit issue to follow up on commissioner walkers ask there, the appellate got an engineering letter saying you space it out right it should be fine, the weight and on the legal letter it says a roofit is like a roof garden unoccupied landscape. That something you can file for permit for . Possibly but a lot will have to happen the criteria we talked about. We are incorrect if we say we cant get a permit for this. They just havent. The owner will have to do that and cant compel that. There is a urmt pprocess if they want to go through . Yeah. It is dependent on what was proposed. I dont know if the deputy directordan do you have anything youp want to add as far as the load . I read the engineer letter and you spread the weight around and get all that they havent applied for a permit to facilitate this. There is a route of resolving this if everybody want said to resolve it. That is what the notice of violation says. Knowing that the rooftop legislation is encouraging more active use for water retention and greening, encouraging the use where they are structural sound is something we want to do but not do it where it is structurally sound or safety consideration are being met clearly is not appropriate. I guess my only question beyond the facts you pretty well established is to hopefully understand really where the source of this issue is and who is responsible for it. Do we know for instance the lease terms or building standards that are used or representations from the Building Owner to his tenant, all the tenants as to whether he ever prohibited or did any specifications in there to the roof . The only information we have is appellates application which has a letter from the previous property manager saying he was allowed to have something up there. The scale of it, i dont think is clear. It is from february to april as you can see, but as far as inlease agreement i dont call if that is in there. I would lead the appellate to address that issue further. Thank you. If we can hear from the appellate now, please . You have 7 minutes. Good morning, brian sor ono the attorney representing the appellate, steve dukes who is here with me this morning. He is a tenant in this subject property. I wont argue to engage in whole scale speculation but this is rent controlled building, mr. Duke reside said there and outlast 3 houn owners and the rooftop pantders are in existence for 13 years and as some commissioners have mentioned, the Planning Department is familiar with this rooftop planting system and they asked for pictures to put it on the website. They approve of this. He is growing two things, wheat grass and sun flower seeds and used for therapeutic diet which is a core aspect of mr. Dukes lifestyle. What was left out of the agencies presentation she said the Property Owner is timely. The notice of violation was served in manch. The Property Owner did nothing about securing a structural inion ear or having anybody review the roof. He was happy to let anorder of abatement issue. Mr. Dukes had to hire a Structural Engineer who is here today and provided a copy of his report from steel head engineer. So, went windup the Structural Engineer and said this doesnt create any risk on the building and made a couple rementdation about spacing them and that addresses the pick chir put up there. You saw the number of planters went from 14 to 19, that wasnt out of spite or out of some manner to take greater control, it was to address the load concerns raised by the city and fall though recommendations of the Structural Engineer that said as long as these are spaced properly there is no concern they exceed a twnt pounds per square foot load. In fact, wuns that letter was provided to the Property Owner that inspired him to hire his own Structural Engineer and asked to provide a rebuttal which is apparent if you look at the letter and how far he engages in the speculation. I dont have a problem with mr. Homs letter. The key is whether you considered this unoccupied landscape area, which is it and confirmed by members of the city or unpermitted rooftop garden which is it not. A rooftop garden requires a Higher Standards but there is not a risk of being violated and the Structural Engineer is here if you want to ask him directly about that. There has been some questions raised about the permitting and two points to make on that. One, it is mr. Dukes cant do anymore more to comply. He is running around cathing member thofz city. The Property Owner is looking for a excuse to force him out of hiserant controlled apartment. This is a email response from ann brass from city Planning Department. Hi steve, nice talking to you today, as i mentioned you growing plant ogon the roof complies with thd ordinance. Mr. Duke has done everything he can to make sure he is in compliance. The condition existed for 13 years and wont raise the civil law issues but it is hard to stop the use based on a concern over safety when for 13 years no one had a concern about the safety. As i understand it, all other aspectoffs theorder of abatement are complied with and asking for the board to modify that directors order so that it removes the requirement to remove these planters. Mr. Dukes will continue to cooperate with anybody from the city that can provide specifications they think would provide for more safety, but there is no threat to the safety as is. In the letter from the Structural Engineer the Property Owner provided, he says well, what if they filled with rain water and increase the load. As you saw from the photograph, these have tight lids and not capable of taking on rain water. Other than speculation there is no observation or evidence submitted that shows this is a threat to anybodys safety or violates the Building Codes when they are properly applied as a unoccupied landscape area. That is code section 1607. 12,. 3. 1. The live load for unoccupied landscape area on a roof is 20 psf. In addition, the ability of mr. Dukes to maintain this planters on the roof for his dietary needs is a express agrooment in his lease and have with us here mr. Dock miles who is the previous property manager who bauts mr. Dukes first wheat grass grinder and supportive of his healthy food lifestyle. He was familiar what was going on on the roof and witness agreeing mr. Dukes will be able to maintain that. When the new Property Owners came in, they were informed of the aspect of mr. Dukes tenancy from the get go. I knowraising issues that are beyond the boards control and have to address them somewhere else and hope not to have go that route, but mr. Dukes is a long term tenant and has Legal Protection to stay there and i fear that the Property Owner has no desire to address the concerns of the city in a legitimate way because the ruling from the director will allow him to put mr. Dukes in a difficult position his protected tenancy. If you have no questions now ill submit but be available. Any question from the commission . I have a question to our staff on this. There was a email read from the planningplanner saying they did want need permits for what they are doing, can we address that squl the Planning Department and planner does not have the authority to say whether a Building Permit is necessary not regarding the Building Code. It could be there planner was referring to a permit under the context of the planning code which is something completely different. Thank you. Obviously that isue is before this commission which has the expertise of having Structural Engineer. That wasif i can proceed with rebuttal or how would you like to proceed . There is more people to give testimony. I can wait for rebuttal. Thank you. Are you done with your rebuttal then . No. She was brought up to clarify. I asked a question. Im confused, i got lost for a second. Doing math here on the weight of the bins because im a Structural Engineer. What i was going to do is wait for the rebuttal until you hear from the Property Owner. There are critical part of this. Well hear rebuttal and have Public Comment. They want to hear from the Property Owner to allow the 7 minutes as well. Good morning commissioners rchlt Jonathan Siegel and represent the Property Owner. This wont take long. First, it is disturbing my client purchased the building long after the tenantive in there. It is disturbing that the appellate now is essentially turning this into a hearing about he is a rent control tenant and the landlord is look frg a way to get him out. If the landlord was looking to do that as soon as the notice of violation issued the landlord could have served a non curable three day notice to quit based on unlawful use. And or nuisance. Landlord didnt do that. I dont think any of that is relevant as far as being a tenant and mean lan lord and that is what he is trying to turn it into and it is wrong. My landlord has serious concerns about this. The landlord hired his own Structural Engineer and that structure engineer reached a very different conclusion than the appellates Structural Engineer. Thats what happens. I notice that the appellates counsel said based on speculation and this and that and there is no evidence for that. That is just a spin and argument. I think as far as what the weight requirements are there seems to be a dif rnss in opinion as to whether this is a roof garden or not. That i leave to you. There was some other issues at the original hearing, the commissioner addressed the fact there is no permit for anyone to really go up there and assemble up there. That is a another concern. And then another issue is there would have to be a interceptor position as well as railings and various other things and at this point my client is uncomfort with the whole situation. There is a violation out there and Structural Engineer saying this is in violation and this is not safe and so for them to turn this into lard lord trying to attack tenant it isnt right or relevant. Additionally and think my client will have to come up and testify that he actually fairly recently saw a lid from a container on the ground in front of the building, so for however many floors that is, it ended up on the sidewalk in front of the building. What i would encourage is this, to stick with what the law is, what the situation is as the staff explained there is many many issues here. There is Structural Integrity issue, there is danger to the public, danger to the tenant in a 24 unit building and i would ask that is what this apule should be decided upon and not upon whether this is a long term tenant or not because that isnt relevant to this situation. He has on the phone a photograph. How much time is left . 3 minutes. Jo just wanted to show that picture and this was taken on october 14th of 2016. This was driving by the building one of the bin covers on the street level. Thank you. Thanks. Public comment. Any Public Comment . Huh . Okay, rebuttal from the appellate, please. Just a couple comments. In the first is one i dont think commissioner warshells question was answered if there was a legal agreement. For us, the issue of planning was addressed but do believe that there is a danger here with things falling off the roof. I wasnt aware of that. If a proper permit was taken out we wouldnt have a problem and that is between the landlord and tenant but until that occurs we have safety issues to how this is used now. If tomorrow a fire occurred, at night at the build{fire was trying to deal with that, this would be a problem because we got fire escapes off that so as people came up to that area to try to use the fire escape we can have a problem. Dark, smoke, etc. It was a concern and wasnt intend today be used the way it is since there are provisions from the planning code the Property Owner is free to do that if they desire but if thrai dont we have the condition and that is our concern. Commissioner gilman before you go away. I had a couple questions for you. Im sure there is a middle ground betweenobviously the owner cannot be compelled to do any of this and need to be sensitive even though it is outside the jurisdiction of a long term tenant who under previous management was given authorization to use the roof. To me that is a change in lease agreement. Is there any way designateing a area on the roof further away from the street we feel staff is more comfortable with while they work out the permitting issue or having less load or downsizing . What is happening and way to clear passagetrying to figure if there is a middle ground. It doesnt require a permit . Just shifting and having not 5 but 2 planters. I know it is a inconvenience. Maybe we do this on the northeast side of the building not near the fire escape. It is hard not being up there to see clearer passage. Just trying to figure if there something we can recommend and give a timeline to see if the owner is willing to put a permit and railing and safety measures. Someone who has many rooftop garden weez have to put all that up for safety and understand the concern, just trying to figure out a compromises. Absolutely. As far as staff is concerned, any reduction up there would be welcomeed while they look at this to see whether they can move forward or not. Based on the things that are mentioned, obviously what you are seeing here looks like a lot for personal use and i dont know what acthat looks like a lot of receptacle so if they cut that down significantly move away from the roof mpt it doesnt mean it is compliant just interim measure to give them time to work this out if they can. We encourage that. To what degree i cant tell you. Legally does the tenant have a right to use a rooftop thats not designated as a rooftop . There isnt a obligation on the Property Owner but we dont know if there was a written agreement and havent heard one fs produced. We heard there was a verbal agreement but dont know the scale. I dont know if this is there for 13 years and dont disbutte that, i dont know the scale of it. That was the reason why we do routine inspections to see the condition and address them i want to address your question. My understanding and it is not something with this body, but my understanding of rent control and as a lands lord is the tenant can go to the rent board and say he had a verbal grument and produce property manners and attest and good faith of change of use and ask for ronet reduction. The same of saying you have a swimenting pool and the ownership changed and trained the pool and say no longer can you use it even if it is verbal contract not in the lease if you can prove there are grounds i think that is what he is asesting for the last 14 years he had this. It may have grown. It seems excessive the size and scope which is quhie i see if there is a compromise to get it down for personal use while we figure the permitting issue. I think that is called petition for reduction of services. Im in accord with the line of thought suggested by my colleague. We want people to have their rights, but we cant jeopardize the safety of 24 residents and when i look at the diagrams or photos and see large plastic containers that can fill with water should lids blow auch we know that is possible and demonstrated there is at least one that had blown off and havent had a heavily storm season. It does seem to offer the potential that these read plastic large containers present some risks that are beyond the scone of what can reasonably be controlled and it would seem to me that good faith discussion as to what is reasonable. If we are talking about growing wheat grass, it is a substense thatit is a plant that doesnt have a deep root system and does not require 32 gallon containers and seems a shallow container that can accommodate it and not ever pose any threat to the weight loads with adequate drainage built into it could be that interim step which would be the good faith recognition of previous rights granted to this tenant so i think following the spirit of supporting this tenant in maintaining a long standing right he feels he was granted not doing anything that can jeopardize the safety of fell tenants is what we are discussing, so this seems to be a situation to me at least where reasonable discussion as they are trying to work out a permitted and completely safe and approved use would be most advantageous. Commissioner walker. I am in support of i think the tinner orphwhat is talked about of allowing for a timeframe of figuring out what the path is. That is out of our jurisdiction so lies with the tenant and lands lord and other tenants in the building i might add. It isnt just one tenant we are considering. These are common occurrences where you have multiple use building and one tenant is doing something, it is really not the opponent where whether they were lowed to do it or not for our purposes, it is it permitted by our Building Code rules. I would suggest that if the violation be cured and uphold it and we ask for whatever the threshold is under which a permit is not required you can have your discussion but we need rebuttal from the other side. I feel there is a way to accommodate a personal use. This seems like it expanded, i agree with that. I think we have toif there is a permit required it requires a permit. Maybe we can hear from the rebuttal from the palt. Appellate. The tenant is on board with work wg the Property Owner and or city to work things out whether it is yuss eusing smaller containers. He is not committed to 32 gallon containers and no means insisting you do it the way he does it at risk of any other tenant we just dont like the all or nothing proposition that you lose this ability to do this. Under the circumstances that we are saying it may be unsafe and thereit hasnt been demonstrated. Im a attorney and hired as a attorney to represent him so have to point out legal things. Procedureerally the notice of violation isnt talking about the threat of things flying off the roof or blowing in the wind or water drainage. Not saying we are not open to addressing those things but upholding director hearing findings those are not properly before this board or this procedure. What the notice of violation talked about is there is concern about the load on the building. Provide a report from a license Structural Engineer and that is has been done. The other suggestion that this does notany concern this exceeds the load on the building is when we mischaracterize it as a rooftop garden. Both Structural Engineer this falls below the 20 standards so as far as the Legal Standard and due process of the tenant i dont think findings based on anything else and lack of findings saying they are currently exceeding the load for the roof justified upholding the directors order as is and think modification if not overruled is necessary for that. That being said, we do think there are ways to address the concerns of safety that we are willing to comply with. Short of a all or nothing proposition that everything must be removed from the roof. Thank you. Commissioner lee you had a question . I dont have any questions. I have a comment. I think the real issue here is what is permitted on the roof and what isnt permitted. I think what we see in the photos of the 19 containers is not permitted. It isnt something we would allow on top of a roof. Whether there are ways to put containers or things on the roof without a permit, i dont know at this time. I cant answer that but im willing to give time to the appellate to work with the dbi and with the Property Owner to try to find a solution that doesnt require a permit. Until then it is in violation and not allowed on the roof. Secretary sweeney you have a comment . In the harm report he says the required liferb load goes from 20 psi to 100 psf. It is way beyond it. He says the frame is unable to support the load, which makes it a life safety hazard. So, we touched onPublic Comment. Seeing none. We touched on the safety question, but i dont think we touched on it enough. You are right the order of abatement talks about loading but we have a right to look at other permit issues and life safety issues which i think this is. There is no railing around the roof, but it is egress and why we have roof access but dont the code allows for the roof to be accessible without there being railing or a railer somewhere so it seems like it is a urgent life safety issue. It is 4 Story Building so the code requires at the time of construction that a stairway go to the roof for the purpose of evacuation of the building and fire fighting. Thats only for evacuation. If we put something as big as that it needs to be secured to the roof and means require a permit. To council for Property Ownerjust a few verification. Open space in the building, is it a full lot coverage or a backyard . No backyard. With regard to the roof how high is the parafit . 36 inches for the record. Thank you. Commissioners i think this is the very fine line we walk here. It is 24 units in the building. On the standing im trying to be compassionate about the quality of life and history the person having this in his home but 24 other people in the building so have to be considerate of them. What stops others from doing what he is doing here. I dont think there is anybody here that would like to object to the end result here but this building is designed for roofers and fireman to get up and down and it isnt designed for anything else and worries me because it d isnt designed for that. Im hitchhiking off commissioner walkers point, there will take a fantastic roof garden but that will take process and variance and planjug the only way i can see this happening on this roof here. What happened previously with whatever grument with the other owners unfortunately it doesvent a bearing today. With the old owner i would have taken the same position. I just dont see how we can support the violation here. Commissioner walker. I had the same feeling about it. These are the buildings that benefit from green roofing and there is a program now that encourages it on buildings and it does add to people quality of life if they can be around green and do that. Im hopeful if Program Provides some expediting so it isnt myered down in endless hearings at planning, but i think there is a reason why we require permits on roof. There are valid reasons and i have to speak on behalf of all the tenants in the building, not just one. There is no if we allow this anyone in the building can do this. It cant just be one tenant versus nobody else has the right to do it. I would encourage any Building Owner with a building like this to move forward and try to green as much as they can on the roof especially to provide open space, but it is separate issue and one that requires a permit. No other comment i like to make a motion we uphold order of abatement. Second. Motion and second to uphold order of abatement. Roll call vote. Clinch, yes. Walker, yes. Gilman, [inaudible] konstin, yes. Lee, yes. Mccarthy, yes. Warshell, yes. Motion carries unanimously. Item f, general Public Comment. Any general pub lm comment for items not on the agenda. Seeing none. Item g, adjournment. Motion to adjourn motion. Second mpt motion and second to adjourn. All in favor. Aye. We are adjourned. We will take 5 to 10 minute recess and reconvene as building inspection commission. Good moning today is wednesday november 16, 2016. Please turn off all electronic devices. The first item is roll call. Mccarthy, here. Clinch, here. Gilman, here. Konstin,