commissioner santacana. commissioner tanner is absent tonight. i'm julie rosenberg, the board's executive director. we'll also be joined by representatives from the city departments that have cases before the board this evening. up front, we have scott sanchez, acting deputy zoning administrator, representing the planning department and excision. we expect joseph duffy, representing the building inspection. leo is here for san francisco public works. and we expect chris buck, irvin forester with san francisco public works, urban forestry. the board meeting guidelines are as follows. the board request that you silence all phones and electronic devices. please carry on conversations in the hallway. the rules of the presentation are follows. people affiliated with the parties must include their comments within the 7 or 3-minute period. members not affiliated have up to three minutes and no rebuttal. please speak into the microphone. you are asked but not required to submit a speaker card to board staff when you come up to speak. they're available on the left side of the podium. four votes are required to grant an appeal or jurisdiction request. if you have questions about questioning a rehearing, speak to the board staff during the break, after the meeting or call the board office. we're at 1650 mission street, room 304. this meeting is broadcast live on sfgovtv, cable channel 78 and will be rebroadcast friday. the video is available on our website and can be down loaded from sfgovtv.org. please note that any member of the public may speak. if you intend to testify at any of tonight's proceedings and have the board give your testimony evidencery weight, stand and say i do. do you swear or affirm the testimony you're about to give the truth, the whole truth and nothing but the truth. thank you, please be seated. okay. we are moving to item number 1 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 anyone here for general public comment? okay. we'll move onto item number 2. commissioner comments and questions? >> president swig: commissioners, anything? >> propose that we adjourn the meeting in memory of those who died on september 11th. >> i agree. thank you very much, commissioner. >> any public comment on that motion? please approach the microphone. good evening. my name is nancy star and i would like my husband dan kreps to stand up. he was in the next building on 9/11 in new york city and five blocks away when the first tower fell. thank you. >> thank you. is there any other public comment on that? okay. seeing none, we move onto item number 3, the adoption of the minutes. commissioners, before you for discussion and possible adoption are the minutes of the august 28, 2019 meeting. i would like to make two additions. for item number 10 i would like to add that the basis for the decision to prevent intrusion into the common area. and for item number 11, i would like to add that the basis for the decision was that the parties agreed to the revised plans. >> president swig: thank you. any other comments? motion? >> move to adopt the minutes as amended. >> okay. we have a motion from vice president lazarus to adopt the minutes as amended. on that motion, commissioner? so that motion carries. 4-0. the minutes are adopted. we'll move to item number 4. this is jurisdiction request number 19-005. subject property at 15 nobles alley, marc bruno is asking that the board take jurisdiction over the alteration permit which was issued on march 27, 2019. the appeal period ended on april 11, 2019. and the jurisdiction request was filed at the board office on august 23, 2019. the determination holder is paul boschetti. it's to comply with violation, reference approved application. renovation of existing bath and kitchen in unit 2 on the third floor. so for jurisdiction requests, each party gets three minutes with no rebuttal. we'll hear from mr. bruno first. >> i think we have to wait for joe. >> okay, we're going to have wait for the representative from building department of inspections. >> he's like the key people. move onto item number 5? >> if we could, please. so item number 5 is daniel kreps versus san francisco public works bureau of street use and mapping, subject probably, 2035 laguna street. of >> personal wireless service permit. construction so far a personal wireless service facility in a zoning protected location. this is permit 18wr0130. on june 12, 2019, the board voted 4-0 to reschedule the appeal at the request of the parties. >> good evening, welcome. >> good evening, president swig. vice president lazarus. commissioners. >> overhead, please. and just face it as we're looking at it, sir. thank you. >> okay. this is just for like a point of reference. i'll refer to it in a moment. thank you for the opportunity to appear before you this evening and make our case regarding the applicant permit to install a personal wireless facility outside your home at 2035 laguna street. this is my wife nancy star. our appeal is not based on radio frequency emissions. contrary to the claim in the applicant's brief and to the inaccurate report of d.p.w.'s hearing officer who recommended denial of our appeal to d.p.w. in a hearing exactly seven months ago on this incorrect basis. however, we were not provided a copy of the hearing officer's conclusion until last week when they delivered the brief and exhibits for this hearing. the hearing officer's conclusion 0 can be found buried on the 130-page submission. what i argue exactly said months ago today, the evaluation contained not one statement of fact based on actual analysis or testing. and that its opinion that the operation of the node proposed by verizon wireless, that it will comply with the standards for limiting public radio frequency energy is without merit. we contend this is still the case and further more additionally contend that our appeal to d.p.w. was improper denied. however, as made clear in our written submissions for this hearing, we're not requesting that you deny the applicant's permit, but you approve it with certain reasonable conditions. we were pleased to read in the brief on age 2 and 6, that the proposed facility is to cover localized gaps in 4g service. and that the facility at 2035 laguna street serves 4g, not 5g. further more on page 6, the applicant states the facility cannot be altered without further review by the city. this condition is totally acceptable to us. but we request the board of appeals make it clear in this ruling that the proposed facility will not be used to transmit 5g without a new application that would be subject to appropriate safety regulations relevant to 5g. as the worthless boilerplate statement by edison, as worthless as it is, it contains one key assumption that deserves to be noted. item 6 states that verizon proposes to operate the facility up to 220 watts. we would prefer to see the statement more clearly and forcefully stated as verizon will not operate from this facility with a radiant power greater than 220 watts. we would note that they confirmed verizon wireless must comply with all terms and conditions of the permit and for any increase in the effective power, a new review must be conducted. again, we concur. but finally, we raised the issue of actually measuring the r.f. emissions from verizon facilities. the applicant's brief states on page 6 that pursuant to longstanding requirements of the city, the actual r.f. emission will be measured after the facility is installed and is online. our question is, why not now? as you can see from the overhead, there are already 10 operating facilities within about a three-block radius of the proposed facility outside our house. in fact, we've taken it on ourselves to look at a few of these using this device. which we purchased. it is an r.f. radio frequency measurer. and we'd like to play a video of just a few seconds. if you can plug it in here? is that -- well, it won't have the sound. if we can put it on here, it would be better. >> can you stop the clock for him? >> we're going to plug it in over here. >> i don't know how to do this. again, there are two facilities, both verizon -- >> hold on, we stopped the clock while we're trying to get this working. >> okay. okay, the hearing is resuming. >> i'm about half a block away. two sites. now we don't claim to be experts. or that this represents any really scientific analysis or results, however, if you take this thing or any of these things, it lights up. so it's clear that these facilities are already producing significant radio frequency emissions. whether they are within the outdated fcc guidelines or not, we can't say. however, according to the manufacturer of this device, the frequency emissions that we recorded from currently emanating facilities are within the range of what they consider extreme concern. therefore, prior to the applicant's permit being granted we request that the board require an independent studiy analyzing to determine whether the assumptions about the level of emissions are accurate. our appeal regarding this permit is not and -- [bell ringing] -- it's about whether the applicant has sufficiently demonstrated that their facilities will actually comply with the guidelines. we strongly believe that the applicant that not demonstrated this case and independent analysis of the existing emissions is called for. thank you very much. >> president swig: thank you. >> thank you. we will now hear from the attorney for the permit holder. >> welcome back. good evening. outside council for verizon wireless, i have hammond edison, if you have questions about meet understand and testing, he may be able to respond. this really is about r.f. emissions and concerns about r.f. emissions. and we understand the important need -- and it's one of the conditions to have verizon wireless available to provide or educate with respect to r.f. emissions. and that's certainly one of the reasons that the test is prepared, the d.p.h. does the careful review and the reason we do post installation testing and all of that information is readily available. i think the appellant reduced his concerns to two points. sounded like he was not concerned about the 220 watt facility going above 220 watts for going to 5g without further review by the city. that's correct. that is contained in the approval for the department of public health and department of public works, any modifications approved has to be reviewed by both of those agencies. the other issue i think is what is the current ambient r.f. level, the current levels at the site prior to the installation of our facility. and under the guidelines created in 1996, based on 30,000 without macro sites, the city determined that 100 feet was a substantial distance where you would not have any appreciable r.f. emissions. as you know that's because of the inverse square rule. the power of the density of the signal depletes by a square factor, a distance of two depletes the r.f. by four. and as a consequence, in order for there to be any measurable amount that would be relevant to this facility, you would have to have something, because this facility only puts out 20 times below the r.f. level at their house, something that was 95% of the standard in order to get anywhere near to the fcc limit. and that's why it's physically impossible to have facilities that are farther away that would create that situation. that's why the rule exists today. the meter, i have to confess my wife has one of those meters. i shouldn't keep talking about my family. the kids use it too to look for ghosts around the house. it will go off at any number of things, some of the sources are the sun. i want daniel to say something about the meter. we'd ask you to please recognize that this is related to r.f. emissions, to confirm d.p.h.'s review and uphold the permit by d.p.w. i don't know if you have questions for daniel about the meter. >> hello, daniel, engineer at hammond edison, we prepared the report. familiar with the meter that the appellant brought up. one of the issues, we've bought several of these meters, as experts we feel we should understand the i.q. one of -- equipment. one of the key problems with that meter is doesn't measure exposure at the level that the fcc sets. the manufacturer uses an arbitrary much lower level and it beeps erratically as it goes over the much lower limit. as they brought the meter out and measured the exposure level, i have doubt that the actual measures levels were below 1% of the fcc exposure limits. any questions? >> president swig: are you done? i have a couple of questions. so the antenna in question, its capability is 4g, does it have the capacity to do 5g? >> it does not. >> it would be have to be a whole new antenna? >> yes. >> regarding testing, i believe that you upon a request, you will send engineers in to test. explain that process. >> sure, not even upon request. just after verizon installs the site, our firm and other firms involved in the work will measure the r.f. exposure levels and go up to the antenna and measure the levels at the antenna. see how far away it is. it's usually less than a foot. upon request we go into someone's house to measure there. >> president swig: so if someone wanted to find out what the r.f. exposure is from their particular are the? >> right. thank you. >> thank you. >> we will now hear from the department. >> welcome. >> hello. >> good afternoon, president, vice president and members of the board. i'm leo, representing public works. we believe that this permit was issued in compliance with the permitting procedures defined public works code for wireless facilities at the time of issuance both departments determine if this article complies. public works subsequently issued an approval and then posted notice of the approval. public works held a public hearing to consider protests. following the hearing, the director approved the permit and notice of the determination was distributed to the public. if the board has questions, the health department is not in attendance, but is available to take questions and respond through e-mail. >> >> commissioner honda: question. so the appellant had said in their comments that according to the permit, that if verizon wanted to upgrade to 5g or increase the power of the wattage, explain that process. what would they have to do? >> so, it's an interesting process. due to -- well if they wanted to do it now, they would have to actually go to the pole owner and speak to them regarding the process for modification to include a 5g antenna. as of effective monday, we actually do not have jurisdiction -- >> over metal antennas. >> over city-owned poles. puc streetlight poles. if this was a pg and e pole, it would be reviewed. one of the requirements for the permit is a radio frequency study to make sure it meets the hub health compliant standard. >> since you reminded me as of monday, a lot of these permits are no longer appealable to this body, correct? >> well, there are a few permits that have been appealed that are puc poles. i think it's up to your discretion. you have jurisdiction over those. if you guys wish to uphold or deny those permits. >> okay. thank you. >> i just want to formalize and wrap the issue. so the appellant said everything is fine except we want to be assured that this is not automatically upgraded to a 5g or over 200 -- >> yes. >> so what -- i want to hear it from you. we've heard from counsel, but i want to hear it from you. so it seems there is no need for us, if we -- if we agree with the appellant, because they're saying it's fine with him now as long as. we don't have to condition it because the condition is built into the legal statute as it is today? >> yes. >> so we don't have to condition. good, thank you. >> mr. sanchez? is there any public comment on the item? please approach. how many people are here for public comment? two? okay, please, sir, come up to the podium and start speaking. >> welcome. >> my name is barry hermanson, i'm a small business owner and homeowner on the west side. i know nothing about this particular project, but my question with all of this is, really to the process. is the city reviewing a study or measurement that the industry is providing to you? or is there an independent study that is actually going on? and as a concerned citizen, i would hope that would be an independent study. thank you. >> thank you. next speaker, please. sir, do you mind filling out a speaker card? mr. hermanson, if you don't mind, so we can get your spelling correct. thank you. if you could give it to us. >> welcome. >> hello. board members, president swig, just about the ghost meter. the meters are set for international standards. that's why they beep at much higher level. so august 28, the board of appeals meeting denied your request by ron ragner having to do with a cell tower being placed. and the reason by board member santacana, it was preempted by the supreme court upholding article 25. however, we are aware that imminent harm is possible and further determination is being made by the department of public health as expressed by the board of appeals. so the precautionary principle has two rules. one, it is not pre-emptive. therefore, article 25 cannot stand in its way. second, it is not conditional. therefore, there are no conditions restraining its action. it's there for the sole purpose of protecting society from harm. and e.p.a. consider wi-fi a polluta pollutant. we recognize the -- the authorities recognize it as a thousandfold too high. so there is also confusion regarding evidence. first of all, there is a difference between human effects and biological effects. biological effects, you find by biological studies and humans effects are defined by health studies. so the studies require certain protocol. the health studies. and that is you have to have a control group and then you have to have a group that is exposed to the pollutant. and what has happening is that the biological studies have already proven over 17,000 biological studies recognized that the exposure produces leukemia, cancer, dna damage, major cellular leakage and mental and suicidal problems. therefore, no formal human health study can be performed since it's already proven that it causes cancer. so it's forbidden by law. fortunately, we have amassed a large database of human effects proving its harm. so i'm just curious, when the board of appeals is actually going to enact a mandate as a precautionary principle and place a moratorium on new cell tower placements? thank you. >> thank you. can you please give a speaker card. any other public comment on the item? seeing none, we move on to rebuttal. mr. kreps? >> thank you. for the record, i appreciate the public comments. i have no connection with these gentlemen. i have not -- decided not to pursue those kinds of approaches. your hands are tied, i've heard it as many times. what i really wanted to do, and thank you president swig for being direct, make this issue of 5g and 220 a matter of public record. i think we've achieved that. the one gentleman who asked whether the city has ever done an independent study, no. he's absolutely right. the information you get is provided by the applicant. there is no independent study of the effects of the r.f. emissions. so that's the answer to his question. i was also pleased to hear i guess there is studies. i don't know where they are. and would love to see them. but to my mind, it hasn't been done. yesterday when i was out, went around checking out, some towers as i noticed, a truck, car, van, at&t. and this guy was sticks the van out going around like this. he had an 80,000 machine. this thing cost 300 bucks. he was looking. somebody in apparently the building next to us was creating a disturbance that was affecting at&t's service. now you can't tell me there is not ambient r.f. radiation in that area, but there has been no study of that. so i just wanted to that point. thank you. >> commissioner honda: are you finished? >> so you're aware the permit holder said after its done, you can call in -- >> yeah, actually, you know, from the beginning before we had the first appeal before the department of public works, we said why don't we do an ambient? we don't know what is already there. nothing. so if as soon as it's put in, we certainly will be requesting that study. and certainly we've got our little rod. for all of the imperfections. i agree it's just a $300 piece of equipment. and it gives a different scale. micro meters, micro watts per square meter not square -- center meter. so we will be requesting a study once it's put in place. >> thank you, thank you. >> thank you. >> thank you, i'll be brief with respect to your time. edison is an independent engineer. they're qualified independent engineer for the city of san francisco. and they represent cities, san bruno and others. they're not part of verizon. it's an independent review. i mentioned that the department of public health bought a meter. in one of the matters in north beach they did a cumulative measurement around washington square. they've done it in other areas of the city. so there are multiple opportunities for independent review. and we're confident about the levels of our emissions in the city. always vigilant of course. there are studies for the poles that mr. kreps is talking about. d.p.w. requires hammond to do studies for any of the poles. if he wants to see what the projected emissions and the subsequent emissions from any of the poles in his neighborhood, 5g, in addition to requiring new antennas requires new radios. not just antenna, it's radios as well. that's it. >> president swig: one question. so regarding the emissions, so is there an ambient emissions test prior to the equipment being installed on the poles? or is it just a test after the equipment is installed? >> the test is after. so prior to the pole being in place, of course, there are no emissions from the pole. so it's a calculation. it's an fcc prescribed calculation. >> president swig: do other ambient r.f. emissions, are they involved? >> yes, that's the whole point of the 100-foot requirement in the checklist put together. hammond does the review. it's a 11-point checklist designed by d.p.h. they review the checklist to come up with their facilities. the 100-foot limit is to capture any effect on the location. >> president swig: that answers it. hammond edison is independent. who pays them? >> that's a good question. it's actually paid for by the consultants who are hired to do the turnkey preparation of the pole itself. so in this case, it's modus and then revise reimburses modus. that's how it's paid for. >> thank you. >> thank you. anything further? okay. commissioners, this matter is submitted. >> i'd like to ask the city attorney a question. given the statute that went into effect on monday, strikes me that this is actually moot. and if i'm correct, what is the best way to handle this? >> i think it is up to the board's discretion if you want to reach the merits argued here tonight. it's true that the legislation changed recently and verizon no longer needs to seek a permit from public works to install the facility on this particular pole. given that this one is actually gone through the entire process and the parties have briefed and argued all the matters, verizon has not made the argument that the case is moot. there is no harm in the board finding that because the legislation has changed, that it denied the appeal on that basis. >> thank you. >> for the second that we -- two out of three weeks, the concept of precautionary principle has been brought up and we haven't gotten a legal reading from you on that issue. are you prepared to talk about that today? or can we ask you for a little written memo later to advise us? >> i can address that question today. the precautionary principle does not put any binding obligation on any city official to take any particular action in a particular case. >> thank you. >> i think you did advise us of that a few weeks ago. >> perhaps. >> perhaps, my senior memory. before i ask anyone to move this forward, i think it's responsible for us to respond in this case a little bit to the public comment in regard to the independent study aspect. we as a body have requested that d.p.h. address and update a report that they made in 2010. i have to consider that d.p.h. is an independent, or at least has a fiduciary or responsibility to the citizens of san francisco to get it right. so once again, we have been told they will respond. we will continue to bug them about that response. and at that point, as part of their study, should address all of the issues or broad-based. normally, it's commissioner honda who gives this speech, but we feel with these hearings all the time, we are governed by article 25. this was not our idea. this was the state legislature who decided this was wise to pass. and i don't like to kick the can. i don't like to create excuses, but this is something that really -- we'll hear from d.p.h. on the subject. i personally brought it up to assemble man tinge. this comes up on a regular basis and maybe his constituency should be heard. i would also suggest that you call senator chu and bring it up since his constituency is heavily weighted to -- >> is he a senator? >> assembly member. so this is -- this is a state issue. they made this. we have to abide by it. and even though sometimes we scratch our heads, too. so anybody want to move this forward? >> i'm ready to move to deny the appeal on the basis that the permit was properly issued and moreover as of september 9, the permit is no longer required. >> okay, we have a motion from vice president lazarus to deny the appeal and uphold the permit on the basis that it was properly issued and on the basis that as of september 9, a permit is no longer been required for the pole. on that motion, commissioners? so that motion carries 4-0. appeal is denied. so we're going back to item number 4, which i read for the record. and we will hear from the requester first. mr. bruno. you have three minutes, sir. >> welcome. >> thank you. is there somewhere i could plug in an answering machine, because it's something i wanted to present here was an answer -- rather a telephone message from mr. duffy on my machine. is that possible? i have to plug it in. thank you. it's nothing embarrassing. it's recognition he was going to speak to me on the subject. let's see if this works. >> are you ready to go? we can start timing when he starts speaking, if this makes sense. it's a short message, but the context. >> wednesday 7:35 p.m. this is joe duffy at dbi. i'm not sure why, but i'm happy to set up a time to meet with you next week to resolve any issues or bring up anything to do with the board of appeal case. >> last night. so you might have missed the name and mr. duffy can confirm who it is that i was asking to speak to, maura chaplain i believe is her correct name. she's responsible for the approval of plans on floor 5 in the building department. why that is significant to this case if you recall, that on december 5 and february 6, you asked the permit holder to come back on february 6. they presented, the same permit holder who is here today, as the respondent plans on the grounds that there was an extra unit in the building and moreover they had the right to refix the unit. you might recall that i showed you all the tenants in the building at the time. they were sitting behind me. one was paul law, whose primary language was chinese. and he was keyed in on a plan that was a false plan, but he was living in the unit, never been asked to leave. so there were many problems with the plans on december 5 when you initially reviewed this project. and then you asked them to come back on february 6. which they did. and you then denied the permit. you denied the permit because the plans were so screwy, frankly. the next day, you noticed it said thursday, joe duffy said the meeting was the night before. he called me, because i contacted the approval department for the plans and maura chaplain is the person who is responsible to do that. because i asked her by phone and mr. duffy as well, what are the consequences for permit holders coming here to the board -- remember to come here to the board with the plans, they've already submitted the wrong plans, whether deliberately or negligently, to the city. and yet all of us rely on the permit holders to be honest and do it correctly. all we're asking here today, is that we be given a chance to review their new plans? we know the new plans are incorrect and do not describe the facts on the ground. i have a picture here, which i can put on the overhead, you'll see that -- >> overhead. >> sorry. how does that work? okay. so this picture and all these pictures, i'll submit this if i may, mr. swig, may i submit the photos? >> yeah, they can be shown. >> this is the main one taken by mr. yee. >> your time is up. thank you. >> can i ask you a question? >> can you identify anything that the city was required to do that it failed to do in causing you to be late to file an appeal? >> yes. so if you see this photograph. you know, you just saw it. it's missing all the plaster between the unit that is being restored and my unit above. and because of that, this project falls under the lead based paint ordinance and there is no adequate notice on our buildings to tell us that. so the city was remiss in letting us know about this application in the context of the lead based paint ordinance, because our building is so old, we fall within that -- mr. russi can explain it, but we're a hazardous site because any time you break through the ceiling, as you see in the photograph, or a wall, you have gone through lead based paint. so it emits things in the air. this photograph was taken by the city. >> the notice that you're describing is a notice provided by the permit holder, not the city, right? >> well i think the city has to make sure it's done. mr. duffy can address that more directly. >> okay, i'll ask him. >> thank you. >> we will now here from the attorney for the permit holder. >> i'm here for the permit-holder. just briefly, i did not hear any information that was set forth in the papers that were provided to me that indicated that the city did anything improper with regards to providing the appropriate notice. the permit was taken out based on new plans on march 29, 2019. as you indicated, the appeal period expired on april 11. the work began in august. the work is almost completed. i provided photographs indicating what the work was done. it's a simple permit alteration to complete work that was started prior to the ownership of the building. with regards to putting in the kitchen and the bathroom. and i went by the property today. i noticed that the drywall is now up. it's been taped. the walls have now been primed. they're ready to be painted. the only additional work that needs to be done to final this permit, to get this unit available to rent to the public, is to put in new flooring. thank you. >> thank you. >> president swig: thank you. mr. sanchez? mr. duffy? we'll hear from the department of building inspection. >> you have a sexy voice on the answering machine there, inspector duffy. >> so you say [laughter]. as long as i can be understood. t the building permit is unit number 2. renovation of existing bathroom, kitchen, unit number 2, 15 nobles alley on the third floor. there was notice of violation to clean up the permits. which i think this is almost trying to do. as you know, we did get through the hearing on the previous permit and it was denied because of the drawings. this permit here appears to have been properly issued. it went through various divisions, dbi, plumbing, code enforcement, housing and building. land check. the review of the plans if mr. bruno wanted to review them, he could go to dbi and look at them. and there is no notification required by dbi for the issuance of this type of work. we do add notifications on certain types of projects, but this wouldn't fall under it. it's a minor remodel. regarding the lead paint, the onus is on the contractor-owner of the property to provide any notification postings, et cetera on their building. failure to do that, the tenant could always file a complaint with dbi, with the housing inspection services. we have a lead abatement program. someone could go out and investigate that, but dbi does not do a notification on a building permit such as this. i'm available for any questions. >> commissioner honda: in the appellant's brief he mentioned he has bb on the property, this would not affect this particular permit? >> no, because it doesn't go through the planning department. this type of work doesn't go through planning. >> okay, just wanted to clarify that. >> any public comment on this item? okay. >> hello. thank you for your time, president, vice president and city attorney. with your permission, i would like to read a letter from anthony guenter, attorney and native san franciscan. may i read the letter? >> go ahead. >> you don't mind my time starting as i start to read. >> there are three reasons i believe the city erred in failing to give notice to the tenants at 15 nobles alley. the permit application is not new. it is instead based on prior application. as noted in the agenda for tonight's meeting. that prior application resulted in the notice of violation which is also noted in the agenda. the notice of violation is still current. as far as i am aware has not been cured. for this reason alone, tenants in the building should have been noticed by the city. the city knew there was a history of something seriously wrong with the underlying permit. the tenants there should be allowed to review any new applications before they were approved. or are approved -- excuse me. second, the work site at apartment 2, 15 nobles alley, is a hazardous one. signage on the interior. the consequence of another notice of violation indicates that the city knew the project at 15 nobles alley includes work that disturbs or removes lead-based paints. the city erred by not telling tenants at 15 nobels, that the new application was being considered at the same hazardous site. giving photos to the unit -- given photos of the unit to interior. it also seems the new application is not only for restoration, but includes possible demolition. the permit-holder appeared on two prior occasions before the board. december 5, 2018. and february 6, 2019. on both occasions, the permit-holder presented plans which subsequently altered the facts on the ground, including the assertion that the building includes seven units rather than six. and that some units occupied by tenants were about to be rebuilt. without even notifying the tenants in those units that they were in danger of losing their homes. that same attitude seems to prevail with the new application. they present one thing to the city, but act differently on the premises so long as he can get away with it. units at 15 nobles alley is very small. the floorboards in mr. bruno's apartment are uninside -- >> sir, your time is up. thank you. is there any other public comment? okay. commissioners, this matter is submitted. >> president swig: mr. duffy, may i ask you one quick question, please? are there any open notice of violation on this property? >> yeah, there is one for expired building permits, but they need to renew permits, cancelled permits. i think it was by the previous owner though. >> president swig: that doesn't have -- it's not important to this hearing tonight? >> no, i mean what we have here, we have a notice of violation issued on the 27th of february, 2018. so this permit here got issued in 2019. application, there is a list of permits here. i'll not read them all. they have expired. stop all work until permits have been renewed. so -- >> it was from the prior ownership, right? >> exactly. there is older permits, expired permits. i think there is several permits for unit number 2. there was the permit that got denied. i went down to the building, it's a six-unit building. this unit, it's empty. i tend to agree with the lawyer. i'm not biased here, but it's an empty unit. we need housing. it should be remodelled and i think the work is substantially finished. i respect the right to complain regarding his quality of life in the building. and this permit looks to be on the road to cleaning up multiple, you know, older permits. and just trying to get to a close on this. so i would say that as well as if this permit -- if the request was denied and the work was allowed to continue, in addition to closing out this permit, they should work with us to get old permits cleaned up and get a cleaner permit history on the building. >> president swig: thank you very much. commissioners, any motion? >> to deny the request on the basis that they caused the requester. >> we have a motion to deny the request that the city did not intentionally cause the requester to be late on filing the appeal. that motion carries 4-0. the request is denied. so we're now moving onto item number 6. this is marc heng versus department of building inspection, planning department disapproval. we have larry and pamela baer. the property at 610 el camino delmar. appealing to marc heng of a site permit, extension of existing terrace and railing at main living floor. no alterations to front of house. the project was disapproved to the planning commission. there are extraordinary or exceptional circumstances in the case with respect to previous agreements between the neighbors for the same proposal dating back to 2011 that should be honored. this is permit 2018-04-25-7347s. >> welcome. my name is jeremiah armstrong. thank you for having us this evening. president swig, vice president lazarus and members of the board. i'm here with my client marc heng, the appellant in the matter. there is a lot to cover, so why not dive in. first thing, the commission determination, their exercise of discretionary review was flawed for three reasons. one, there was improper interpretation of the 2011 contract. two, the commission never considered the merits of the project. and three, the commission never provided any substantive rationale for why there was extraordinary and exceptional circumstances. i think it's important from the outset to address falsehoods that continue to be perpetuated by the baers. this is mr. heng's primary residence. they say it's in asia. it is not. he bought this house to be a primary residence. he bought it into 2010 for the purpose of having his children, to come here. since he moved into the house full-time, august 2013, he has been outside the united states only 82 days. his children and his wife are both u.s. citizens. his children have attended schools in the bay area throughout middle school and high school. mr. heng himself has attended night school at the local community college here. and i don't know how they've raised this before, but mr. heng is not from taiwan. he has no family that lives in taiwan. so there is that. second of all, the falsehood that no timely notice was provided. department records show that notice was provided both through mailings in july and august of 2018. and then, of course, there was the poster at the property in august of 2018. further more, neighborhood meetings were unnecessary because this lacks any vertical additions to add seven or more feet to the existing height, nor any horizontal additions to add 10 feet to the building. another falsehood, that the basement encloses a swimming pool and basketball court. that is wrong. in 2012, the swimming pool was removed. the play court here, which was installed so that mr. heng's children had an opportunity to play basketball and have some activity space, since there is practically no backyard there, that is really what precipitated this issue. when the pool was removed, it became apparent there was a water leak. next, the falsehood, the assertion that mr. heng resorted to machinations during the negotiations. that is false. all three versions of the contract were drafted by the baers' attorney alice barkley, who many probably know is a very experienced real estate lawyer in san francisco. the baers were copied on all of the e-mails. the baers lawyer accepted that the request that the successor and signs be removed. it was clear, based upon the clear reading of that contract, that contract was not designed to preclude further development on the property. now, first of all, if we go back to the commission's decision to exercise discretionary review, first of all, it was inappropriate for them to even interpret the contract because that is for estate court, not the planning commission. the planning commission's role is to evaluate whether or not this project is compliant with municipal ordinance, building rules and of course the residential design guidelines. 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