joined by frank fung, hurtado, and lazarus will be absent this evening. the department city attorney is here and victor pacheco and i'm the executive director. we are joined by the city of the department that have cases before the board. scott sanchez is here, the zoning administrator and representing the planning commission, and senior building inspector, mr. duffy and bureau of urban forestry and department of public works and john kwaung the manager of street use and mapping. mr. pacheco, at this time if you would please go over the meeting guidelines and conduct the swearing in process. >> the clerk: the board request that you turn off all phones and pagers so they do not disrupt the proceedings. please carry on conversation in the hall ways. appellant and permit holders have 7 minutes to present their cases and 3 minutes for rebuttals. people affiliated must include their comments within the 7-minute period. members who are not affiliated with the parties have up to 3 minutes to address the board, but no rebuttals. to assist the board in preparation of the minutes, members who wish to speak are asked, but not required to submit a speaker card when you come up to the podium. speaker cards and pens are available on the left side of the podium. the board also welcomes your comments and suggestions. if you have questions about requesting a rehearing board rules or hearing schedules, please speak to board staff after the break or call the board office tomorrow morning. the office is located at 1550 mission street, between van ness avenue. this meeting is broadcast life on sf gov. tv. san francisco television cable channel 78 and d v d's of this meeting are available for purchase directly from sf gov. tv. sf gov have tv. if you wish to give testimony, please stand to be affirmed. please take note that any member of the public may speak without being affirmed according to the sunshine ordinance. thank you. do you solemnly swear or affirm the testimony you are about to give to be the truth, the whole truth and nothing but the truth. >> thank you, item no. 1 is general public comment. anything not on tonight's calendar. is there any additional public comment? seeing none, public comment is closed. item 2, commissioner comments and questions. commissioners? none there. so we'll move to item 3 which is the board's consideration of the meeting minutes for january 29, 2014. any modifications? i move their adoption. >> any public comment on the minutes. seeing none, mr. pacheco call the roll. >> on that motion from the president to adopt the january 29, 2014, minutes, commissioner fung, hurtado, honda, the vote is 4-0. those minutes are adopted. >> thank you. we'll move to item 4. item 4: 44 appeal no. 13-135 michael shaffer & richard tsai, appellanttss vs. dept. of building inspection, respondent planning dept. approval 801 & 803 kansas street. protesting the issuance on october 09, 2013, to chris cobb, alteration permit repair/replace existing stairway and porch at rear of building; new decking for required means of egress; add firewall; provide new support footings to porch and stairway; comply with nov no. 200996781 and 2007909733. application no. 2012/10/30/3118. for hearing today.>> thank you. we'll move to item 4. sf 41234 >> i believe commissioners this matter came before you briefly in the past and continued to allow time for the permit holder to revise plan in correspondence to an agreement reached with the appellants. so we have the permit holder and the appellant here tonight. they want to address you together perhaps to confirm the settlement and the revised plans are in your packet. >> i'm chris cobb. i'm going to have my contracts speak for me. >> i'm michael schaffer. we've seen the plans they have submitted and we supposed them. >> again, as long as he supports them, i have nothing to say. >> okay. that's great. is there any departmental comments on the plans? no. okay. is there any additional public comment? seeing none, public comment is closed. okay, i think you can sit down and we'll hear from the board. we'll hear from the department. mr. sanchez, i know you substantive comments but can you confer these are with the code. >> thank you. scott sanchez, given the subject zoning it appears the stairs would comply with the planning code. so, i don't see any planning issues with this. >>president hwang: is there a date on those? >> the date is january 2014. >> in all fairness they did submit them last thursday. okay. so the matters is submitted. i would move to grant the appeal subject to the plans dated january 30, 2014. >> okay. mr. pacheco. the clerk: on that motion from commissioner hurtado to grant the appeals with the revised plans of january 30, 2014, on that motion commissioner fung, aye, president huang, aye, commissioner honda, thank you. the vote is 4-0. this permit is upheld with those revised plans. thank you. >> great, thank you very much. and with the president's consent i think we are taking the next item out of order and hear item no. 6 because there is another settlement. item 6: 66 appeal no. 13-176 panoramic interests, appellanttss vs. dept. of public works bureau of urban forestry, respondent 1321 mission street. appealing the denial on december 18, 2013, of tree removal permit denial of request to remove three [3] trees, and approval of request to remove one [1] treee. order no. 182021. for hearing today.sf 61234 oh i believe that item is here and the appellant is here as well? great. you can step forward and explain what it is you would like the board to do? >> good evening, president hwang. department of public works. our director felt the sponsor had not fully demonstrated they had explored all alternatives to remove of these trees. the trees are truly exemplary for the species with very good structure and very good health so the department was reluctant for the removal. however with discussions with the project sponsor about what alternatives they did explore including moving some of the utilities to reduce the impact of the trees or asking the mta for their exemption for a normal policy which they occasionally grant because they granted that up the block, they did not feel this case. the department did not feel they would survive the construction impact and the plan to replace all of trees, that is substantially larger than we would normally get. we recognize that and we have reached that agreement if the project sponsor, if a condition can be placed we would ask the board to over turn the department with conditions that all replacement trees be a 60-inch box and we would happily agree to that. >> yes. that's correct. thank you very much. >> would you state your name for the record? >> my name is patrick. project sponsor. >> what happens to the trees that get removed? >> unfortunately in this case they are very large trees so they would not survive any effort to transplant them. they would be composted. >> no effort? >> the amount of root mass that would need to be preserved would involve digging into the street in order give them a good shot at survival. it's not fiscally possible to do that. >> okay. thank you. is there any additional public comment? seeing none, public comment is closed. commissioners, the matter is submitted. >> >>commissioner fung: commissioners i grant the appeal and accept the revised program. >> okay. mr. pacheco? >> the clerk: just to be clear, the order reference is four trees, there will be four replacement trees of a 60-inch box? >> five replacement trees with the agreement. the clerk: so we have a motion from commissioner fung to grant this appeal, to modify this order and grant a permit to remove the four subject trees on condition that five replacement trees of a 60-inch box size. correct? >> yes. >> on that motion, president hwang? aye. commissioner hurtado? aye, vice-president is absent. commissioner honda? aye. the vote is 4-0. >> we'll call item no. 5. item 5: 55 appeal no. 13-173 irving zaretsky, appellanttss vs. dept. of public works bureau of street-use & mapping, respondent 2853 broderick street. protesting the issuance on december 10, 2013, to pamela whitehead family trust, minor sidewalk encroachment permit construct new warped driveway for new garage entrance that will encroach 3'-9" into the 15' public right of way; maintain existing planters fronting the subject propertyy. permit no. 13mse-0158. for hearing today.>> we'll call item no. 5. sf 51234 this is on for hearing tonight. we'll start with the appellant. mr. zaretzky. you have 7 minutes to present your case. >> i'm irving zaretzky. before we get started i had asked ms. goldstein. i had a history prepared for this particular project. she mentioned to me that it would be up to the board if they would accept it and if they do i should come up with 11 copies and i have those. if you would allow me to leave that. >> did you say it's a chronology? >> partly narrative and partly chronology. >> how many pages? >> it's about 7 pages. >> did you just now prepare it? >> i prepared it before and submitted it and ms. goldstein told me she told the other side that they could not submit in a letter and then both of you should prepare and leave it up to the board and the board will be able to decide whether to accept it. >> does anyone care for it? okay. >> i don't have a problem taking it. >> okay. that is other side seen it? >> yes. it was e-mailed to you. it is what was e-mailed to you. >> let's leave it out for now. >> it's true. >> okay. >> why don't we set it aside and if we need it for our deliberations we'll ask to view it. >> okay. ladies and gentlemen, this is a case that has become quite iconic. this is a third time this case is before you. the last time it was september 12, 2012. this is the first time before you to be able to address the fundamental issues. we are asking you to revoke or suspend the permit of dpw. i believe this afternoon, the department of city planning and zoning administrator scott sanchez suspended this project and asked to allow to resubmit for reevaluation. we joined mr. sanchez at the original hearing in requesting that a judgment be withheld pending the evaluation by city planning and dbi. we again join scott sanchez in his request that you allow city planning and dbi to work through the entire permits. this is a case that began with a fundamental deception. a 311 notice was sent in 2011 to the neighbors about the work that was to be done. it turns out the permit, their plans were fraudulent. the measurements of the height were entirely fictitious. the architect later on informed us by e-mail and he said no survey has been conducted on the property by the property owner to determine the height or before being raised since the proposal to trays existing and changes to the building envelope. therefore what happened was a plan was sent to the city by all the neighbors and the building height was stated as 34. they didn't know what it was. this was no the an error, this is simply an invention. we think it was targeted to aly the fears of the neighborhood that it was going to be too high. it turns out the building was over 3 feet higher than stated on the plans. our problem with that is specifically that this prevents due process for the neighbors because when plans are sent out by the city, every citizens expectation that they are true. when it's not true, it acts as a filter. some don't respond because the numbers are not real. therefore to avoid this prejudice to the neighborhood and filtering process you must submit the plans that are absolutely accurate. since then, those plans went to the planning and to you and the board of supervisors on the ceqa, back to you and then a permit was issued. at all times the other side swore took an oath that they were all true. it turned out that swearing was perjury. at all times they knew they didn't have the measurements and they nonetheless swore that it was true to the detriment of everyone in the neighborhood. what happened then was at the ceqa level, supervisor farrell and stephanie worked out a settlement. i have never seen as public servant as effective as supervisor farrell and never seen someone like stephanie work so hard to try to reach a settlement. we thought we did. at the end we presented both the plans and the agreement of settlement to supervisor farrell, we signed them just before the board of supervisors met. he took it to the board of supervisors, and he presented the agreement and the plans and they approved it. john of rubens and rose, the attorneys representing her, shook hands with us and said may i take this to the board of appeals to hand in so a permit can be ensued. we did. turns out the materials never reached it. what was handed in was the plans and at no time was there a serve ability. they decided what they were going to submit to you. what you voted on in september 2012 was an incomplete agreement and the agreement was left out. we don't discover this until a year later when the building is lifted from september to about april the project lay fallow. the mother permit that was issued in march, 211215319. when that was permitted, the building was lifted. we asked the project sponsor for the markings on the agreement and none was done. we asked to is you -- survey the building and we found out the building was more than 16 inches and over 40 feet. the question then arose of is there a valid permit? you were supposed to approve with the board of supervisors approve and send to you and it was never turned in. i went to supervisor farrell and he seemed shocked that this was never handed in. the question now becomes is this: was there, i'm leaving aside the legal question and the professional misconduct question which might go to the state bar of an attorney making an agreement asking to deliver the papers and never delivering them. that's the separate issue. the issue before you is, is there a legitimate permit, if you didn't accept what the agreement was, there is no standing at this time to address the issue. what you find essentially is that you've got a no meeting of the minds between parties, you don't have an agreement and therefore the whole case unravels back to the 311 notice originally in 2011. you can't have an agreement that the board of supervisors passes that isn't passed onto you as a basis for giving a permit. this permit of dpw is derivative. it cannot stand on its own. only has validity in relationship to the underlying permit which gives you the height of the building and the work to be done. >> thank you. >> i still at some point would like to leave the information. >> we may. we can hear from the permit holder now. before you start, i'm interested about the letter that was requested to submit. you all requested to submit but was not allowed. can you tell me about that? >> i'm pat pam white. the project sponsor. the question again? >> the question was about the 2 pages of briefing that i rejected. basically the two page letter was concluded in the briefing and prepared by the permit holder. it was basically argument and exceeded the 12 pages. >> okay. >> it was not acceptable and if she wanted to present it tonight she can ask you to accept it. i believe mr. zaretzky prepared a response to it and it passed the deadline so he can ask you to submit it. >> that's okay. it's not necessary because we kind of did our share of what we put together and steve did his and he kind of put everything together and brought it to cynthia. i think there is too much. it was in error altogether. >> okay. >> so, i'm sorry? >> starting your time. >> okay, thank you. one thing that i wanted to say is that i brought this set of plans that we signed that were stamped with the board of appeals and it shows the driveway. we are getting off the subject, i think. this is about a driveway encroachment and a curb cut and the existing planters that are there. this is a signed copy. i wonder could it be passed around. >> you can put it on the overhead. >> okay it just shows that we were all in agreement. there is no -- i actually wasn't the owner of the property when these plans were drawn up. an 83-year-old woman was at the time. i inherited the plans. i had nothing to do with the plans previous. i actually bought the property with approved plans and an approved permit and an appeal that i didn't understand at the time because i had never been through before. so i guess my first question is that we've already gone through appeals and i have the driveway approved. there is no new news here and we did have an agreement. i'm trying to recollect. i think i brought everything to the board of appeals and i remember trying to give the settlement agreement to, i forget who was there, and they said it was a private agreement and we could not accept this. so i'm new at this and i didn't know what was acceptable and what wasn't. but i was told it was a private agreement and not a party to public files. so i have the settlement agreement with me. and a couple things that the settlement agreement, that's what i have been told is a private agreement says. it says "any increase in the building height beyond maximum of 36 inches from it's current conditions which already includes tolerance by the building inspection and building code." it does not list heights of what it was, it is. at the time i thought the building was 34-37. apparently there was a mathematical error on steve's part. however he did pick the building close on the three sides. there is no mischievousness going on. i have known her since i was four and i can't see her going to steve and saying we are trying to get away with something when there was no reason to. it's still beyond the height limit permit code and below the 40 -foot. i have the documents and i think i included this em in the file of the certification from my is -- surveyor. i have the original copy if you would like to see that. in addition, it calls into question, i have the letter from martin ron. they say in july 5, 2012, their service crew measured and irving, the things he's trying to say about us, he knew more about my building than i did back in july of 2012. so, anyway. i just want to say this is about a driveway, an encroachment for a curb cut. it's not encroaching any further, it's actually less than it was now. i have pictures. so here is the historic planters that have always been there and the trees. the curb cut is between the trees. the curb cut wouldn't exceed into the sidewalk in fact they did exceed less and the driveway starts after the planters that are there now. so there would be no impact on the sidewalk whatsoever for any passerby. and one of the things i want to say is that this whole thing, the notice that was sent out by the dpw, their letter clearly stated which i didn't include may 20th, it said, "please be adviced that your letter must consist of practical improvement of this permit" that's what we are dealing with here. i don't believe the dpw found any engineering issues that are apparent to not letting this move forward and letting me have my driveway and curb cut. i will let steve speak from there. thank you. >> i'm steven, the architect for the building. i'm actually here because of the accusations of the neighbor that are unfounded. it's really an appeal for a curb cut and the encroachment on the sidewalk and i really only have to say to second what pam said that it's incomplete compliance with dpw, dpw