advice and gary executive director. we're joined by representatives from the city departments that have cases before this board. at the table in the front is scott sanchez the zoning administrator and he's representing the planning department and planning commission i expect weep be joined by snickering joe duffy representing the department of building inspection and deputy city attorney ann pierson is here representing the department of health and street electronic devices are prohibited. please carry on conversations out in the hallway. people affiliated with these parties must conclude their comments within 7 minutes, participants not affiliated have up to 3 minutes - no rebuttal. to assist the board in the accurate preparation of the minutes, members of the public are asked, not required to submit a speaker card or business card to the clerk. speaker cards and pens are available on the left side of the podium. the board welcomes your comments. there are customer satisfaction forms available. if you have a question about the schedule, speak to the staff after the meeting or call the board office tomorrow we are located at 1650 mission street, suite 304. this meeting is broadcast live on sfgovtv cable channel 78. dvds are available to purchase directly from sfgovtv. thank you for your attention. we'll conduct our swearing in process. if you intend to testify and wish to have the board give your testimony evidentiary weight, please stand and say i do after you've been sworn in or affirmed please stand the testimony you're about to give will be the whole truth and nothing but the truth? >> i do. >> okay. thank you very much so number one on tonight's agenda for general public comment for 0 anyone that wants to speak within the subject matter jurisdiction not on tonight's cleared up any general public comment okay. seeing none item 2 is commissioner questions or comments. >> commissioners anything. >> item 3 is the boards consideration of the minutes of the december 7, 2016, meeting. >> any he during the course or additions. >> move adoption. >> okay. is under any public comment on the minutes. >> no public comment on that motion than by commissioner lazarus to adopt the minutes commissioner fung commissioner wilson is absent and commissioner honda and commissioner swig okay. thank you so that motion does carry the next item i think vice president we need to wait. >> let's wait. >> until commissioner wilson arrives i'll call the item and this is item 4 appeal 16 danish versus the street use and mapping on 1590 sacramento street the issuance of the residential to the wireless box for the wireless facility permit the public hearings were held in july and phenomenon for further consideration on july 20th that was continued for the department of health before the board to clarify the standards in their review of wireless box permits on july 27, 2016, the board voted four to one commissioner lazarus dissenting with the non- inclines was returned to the agreement of the parties and once commissioner wilson with the vice presidents ken sent. >> oh, commissioner wilson you're here. >> magically welcome. >> thank you. >> now that commissioner wilson is here we can move forward with this and give each member parties 3 minutes to address the board i think given the reason for the will continuance we might want to start with the department. >> that's fine. >> ms. higgins. >> good evening. i'm amanda higgins with san francisco public works and director does this stated this case was continued to the board from july 2016 the ruling of the matters after the number one compliance issues with public works and the planning department as of today they have three hundred and 68 wireless facility permits the first permit was in 2010. >> of the use of the approved permits none have before found to think non-compliant with health reasons all facilities met the public health article 25, however, as discussed in july you 201623 of these permits were found to be non-compliant with design the installed fats had disconnects that were a couple of inches larger lane the disconnects that are shown on the approved plans this disconnect which is required for wireless facilities that are insulate on pg&e owned wooden telephone poles they're a safety mechanism to insure the electrical circuit is prove or disprove energized and additionally 23 had go equipment installed at different size of the pole for the example the equipment was insulate in the southern side of the pole and in september 2016 they required their notice by physically moving the equipment so it the constructed facility was compliant with the approved permit they also received written approval from planning to keep the larger disconnect switches go public works closed the notification in september 2016 and none of those non-compliant went to the board of appeals and we believe that we issued this permit correctly in accordance with article 25 for the reason we urge the board to deny the appeal thank you. >> thank you mr. sanchez did you want to speak on this item. >> thank you. good evening commissioner fung happy new year scott sanchez planning department. thank you for your assistance in helping to resolve this as you may know at the time they were 23 sites out of compliance the department implement through assistance with the public works and the project sponsor to bring those sites into compliance there were cases where unpermitted changes were found to be in compliance or allowable and minor changes my understanding from staff those sites are not in compliance and available for any questions you may have thank you. >> we'll hear from the permit holder now. >> and hear from the appellant. >> just to confirm permit holder not appellant also here thank you for hearing us tonight commissioner fung mr. condemning has been civil and met with the representatives on occasion has been concerned this facility might not not conform with the fcc guidelines we filled the applications and then substantially an equipment change that modifications the wattage so additional reports were prepared and mr. congest pointed out technical difference the site will comply that the fcc guidelines and the department of health is concerned and their certificate and we encourage you to move forward and include that i know to the repeat this is testing at the bay window and the fire escape so after installation the gentleman has assurance they'll comply that the fcc guidelines and condition to maintain the process or mechanism foreign further testing should that be necessary a small discrete facility approved by the board of supervisors and through the public utilities commission to provide this excellent high speed services to the community we're thankful to bring deficiency 0 they match all drawings that were submitted again, we hope you can approve the project we're here to answer any questions and bill of the edison is here 3 did all the report if you have any questions he can answer those technical questions. >> thank you, mr. condemnikem hear from the appellant now. >> may i put this down here. >> okay. >> all right. >> this is the site this is where the facility it is going to be installed this is my living room almost in my living room when the original permit was filed this drawing was filed with that you will notice in the bay windows on the picture are not on the drawing they've been omitted those bay windows would have been within the 6 foot prohibited area specified by the department of health in the original application when i called this to the attention of dpw department of health a second approval was orientated reducing the 6 foot minimum to 4 foot there by making that possible to do the installation that was done despite of the fact the operating capacity of the antenna was increased not increased in a small way it went from the fcc r f c approved percentage of 23 percent to 66 percent doubled. >> and in reviewing both letters which you have in the brief from the department of health one dated one from 2015 and one from 2016 you'll find inconsistently sisters that can't be reconciled we have a situation where someone is coming to you and this was another approved permit for something else like an extension on someone's kitchen we got the measurements all wrong and left off half the building and increased the capacity by 20 percent please approve our permit you would say yes, of course, we will and stamp it used nails when you put it together in the original facility under the original permit is not the same facility we are talking about now in minimum i would suggest that verizon internet file a new permit with measurement that reflect the operations of the facility they prop this is reasonable. >> thank you, sir. >> any questions. >> not at this point. >> thank you any public comment on this item. >> if there are public comment please step forward. >> good evening my name is kevin i'm a third-generation californian i've lived ♪ glories state all my life my second tour in san francisco over 14 years i want to start with something though i bought my first cell phone in 1985 and my carries was g t e-1 of the few carriers in the bay area any cell phone is not what it looks like today, this is the size of an office phone in your office the battery was a converted motorbike battery and the weight of the cell phone was 26 pound why do i start with that being a person who is very much into the high tech industry owning a cypress was important to make calls if you're from my generations any type of emergency if you happen to be driving you had to pull over to the side of the road and find a cypress now in 1985 it predates something that happened a few years ago later in 1989 october i was in my office at the time and there was a large quartering that hit and shook the building i was working in silicon valley that was $45 million away from my home in portella valencia those of you that went through that in 1989 all phone service was stopped all landlines were unavailable from any office i couldn't call my home to find out if my family was okay phone services was 6 hours cypress services that is rather young at the time was restored one thirty minutes i was able to call my wife who had a cell phone and established corrections she was safe the emergencies the way their handled so handled in such a different way in thinking how to manage the emergencies is different one of the problems in the 1980s was driving down the 20dz was constantly losing any connection in the event that emergency happened i lost any call >> thank you, sir your time is up. >> >> oh, all right. >> any public comment on this item step forward please. >> yes. i wanted to say that mr. kemp is reasonable they put in a proposal for what we want to install personally i wouldn't want that apparatus close to any living room and no one else would either. >> do you care to state your name for the record. >> no. >> any point comment okay commissioners, the matter is submitted. >> commissioners this item has been in front of us 4 times we need to put it to rest. >> the regulations are quite specific our ability to modify those are limited i found no basis to accept the appeal and it is denied. >> i'll concur. >> so do you have a motion. >> move to deny the appeal on the basis the permit was properly issued. >> thank you. we have a motion from commissioner lazarus to deny the appeal and uphold the appeal that is properly issued commissioner fung commissioner honda - commissioner wilson and commissioner swig that motion carries with a vote of 4 to zero thank you. >> next item. >> is item appeal at san bruno avenue on the appeal for the massage establishment attraction, llc on for hearing and start with the appellant. >> who has 7 minutes to present. >> good evening my name is shawn this is fred barker we represent the owner of the attraction spa i want you know know she's not a prostitute not a any public comment? this is a mom and worked her entire life in china and came her for herself and family and saved her savings to start this business three years ago attractions spa not once did the police find sexual nature as my client was giving - should had no idea what was going on in her spa while i was giving birth people from the deducting entered her business inspector kim and and then and another inspector dpw and permit inspector donald duffey and city attorney dwight moore san francisco fire department mary and sergeant of the sfpd and jason sergeant antonio flores and interpreters came there to fast forward human trafficking and child prostitution they found masseuse and gentleman in a private room engaging in private conduct appeared as though the woman was engaging in prostitution as soon as my client found out they termed terminated the employment and she's used her power to prohibit this i have pictures of her spa it is very beautiful and clean and her intention not to operate a house of prostitution not true. >> this is one incident that occurred and the city attorney is relying on website reviews from the website called road maps for those of you who don't know this web site and back page.com are one of the two websites that promote prostitution and the feel of back page was arrested for pimping the website said the cannot - on the first page unknown whether those reviewers are the pictures depict the location or the reviews are facial a disclaimer on the website i don't know if you've been read the reviews some of the reviews the comments say those reviews are fake i know this is not a court of law but this type of evidence is not admirable in the court of law and one case the court disallowed this type of evidence and cited a federal case shrimp company and in this case the court held people looked to the internet for communication the court continues to review that largely as one large catalyst for rumor and misinformation so not to mix words the court reiterates this web provides no way of verifying the augment city and nothing that under oath or subject to independent verification to take away this woman's livelihood based on reviews on the internet is not fair i ask you approve her permit and given the fact she's having a baby she didn't want to continue with the business if given the permit she plans an selling this place thank you. >> thank you. >> so because at the day i was giving the birth to my baby i--i don't know what happened and my permit fees and called me and said they have some problems and then my attorney said she didn't gave me in anything but i said if i found something you can't work anymore and start yeah - and then terminated her work because i case here and went to the place and i traded firm before and saved money to open this massage parlor and want to get the better life and want i don't want to engage with anything with prosecution anything so if right now and they terminated my permit and i can sell my massage shop so i want to have my - and given the permit for the san francisco permit and then he can sell - sell the massage shop. >> thank you we'll hear from the department now. >> good evening members of the board my name a ann deputy city attorney i'm appearing on behalf of the department of health and here where sergeant lee from the san francisco police department the department of health manual program is probable for reviewing and there was certain circumstances 9 department is required to deny the permits specific no permit shall be initialed in the bits will be or operated in such a manner to endischarge the health of employees or an employee conducting illegal behave her permit was pending an inspection took place you'll hear 23 sergeant lee and during that inspection the officers walked into a room and observed a massage practitioner performing a sex act on a client no where for clients to perform the sex acts in the course to engage in illegal conduct the conduct was observed during the inspection provided them a basis to deny the application for a permit as you've heard in the brief and tonight the appellant argues an isolated event first of all, the business owner is responsible for whatever onsite or offsite being absent is no accuse and gathered from a website call.com on - was far if isolated thirty reviews talk about the men that are not or went to the spa and engaged with sole practitioners in sex and those reviews are continent and graphic and they dispel the notion a one-time kurnls now it is true that those are hearsay but the attorney for the appellant this is not a court of law an administrator venue for this type of evidence is admirable and it's negotiable we're allowing this for to the support did eyewitnesses testimony when the eyewitnesses on this sergeant lee we ask you consider the totality of the evidence and sustain the denial of permit application. >> good evening board my name is randy lee i'm a police officer with san francisco police department to give you thank you. >> - just to give you a little bit of background about myself i've been with the police department for 18 years and promoted to sergeant 5 years ago i've currently assigned to conduct human trafficking versions in the special victims united unit i'm part of the mayor's office tasking on may 20th of last year a inspection was conducted in san francisco we were operating undercover officer capacity meaning i was in plain clothes and not in uniform me along with other city departments entered the attraction spa i entered with any partner and identified ourselves as police officers and had our police badge displayed i went in first and opened massage room number 2 close to the business as i opened the door i observed an asian male completely naked lying on the manual table and the masseuse can say of ways giving him a blow job as soon as the masseuse saw me lift up her head and covered the asian males that he news with a towel the asian male was contained and interviewed afterwards we interviewed the masseuse. >> that's all thank you very much. >> questions we have a couple commissioners. >> sergeant lee our state you wrote the statement that utilized in the couple of these reports; is that correct? >> yes. >> the exact words was appeared but the documentation submitted by the city attorney's office and by the health department was a little bit more definitive can you talk about the word appeared. >> it is just my writing style that's the way i write but i'm testifying to the fact that i did see a sex act took place and i also want to clarify when i opened the massage room number 2 which is a small room no obstruction for me seeing the massage table and the asian male consumer and masseuse the room was small and i was maybe 6 to 8 feet away from the masseuse and had a view of the sex act. >> counselor the the decision that was made also includes permanent baring this 3rr8d on what basis. >> i'm aware that was order by the hearing officer and there was no order for that portion. >> say that again. >> that portion of the order was in the hoff hearing officer and i'm not sure that was the basis to include that in the order. >> can you clarify are you done commissioner i'm sorry. >> just opted to a door for a question on my mind two penalties noted and associated with $11,000 fine and the suspension of a permit and no ability to reapply is that in the documentation from in documentation of related to the statutes the word may is used as opposed to shall may is a wonderfully ambiguous and shall is clear that's it and is this a may or is that a shall is this standard procedure if - when this is not the first time i'm sure sergeant lee as walked in on a problem and is this an automatic football met for 15 yard penalty and our out of the game or an arrest try measure the football analogy is lost on me but the denial not a permit revocation that probably comes before you this is a situation where the the establishment was not permitted and yet already in operation that is a limited circumstance and with the inspection of that establishment before that was permitted so what we need to do look at the code that talks about the circumstances under which 9 department should grant or deny a permit under the circumstances the language is going mandated a permit shall not be awarded among them from the department finds a business is operated in a way thmakes that a risk to th public it is a shall. >> okay. thank you. >> not quite sure how to phrase my question. >> so a.d. milling those reviews are hearsay no question and what did you give them frankly they're not the most trustworthy source you're thinking there was so many of them what weight should we give that. >> they're not unlike the yep reviews people have little incentive to lie i think they going on and say their gender and i can't imagine yep has a road map we cannot verify the adequacy but i can't imagine most online reviews have that disclaimer the weight you give it will be influenced by whether you think this on, on the site had a reason to lie i can't think of one thirty reviews and steering wheel consistent in the reports of what occurred they're specific so the breath of them and the number of them and consistency the fact that i'm hard-pressed to find a reason someone would be motivated to lie might cause you go give them great weight we offer that because of eyewitnesses testimony and offer that in support of that. >> i can say why they'll lie but the internet provides aminity people firemen because of no consequence you know making a statement about someone none so say you're a liar or challenge you sometimes like in yelp reviews other things that are not the truth one last question was that thirty over time. >> over the course of two years. >> thank you. >> i was going to wait to hear the rest but to hear rebuttal i did have a question probably as the member of this board heard the month of these cases going back to the 80s historically the department has not taken such an action on a first time situation we've had situations were there were fines, there were conditions placed has the statute changed. >> the statutes was amended in 2015 i don't know that was amend in a way that addresses our question i do think that most often those cases come to the board concerning a permitted establishment and the department is seeking to suspend the permit or impose and penalty here we're at the point this business has not yet been given a permit and the department has reason to believe it shouldn't be the language at that stage the permit shall not be grant if they make the finding. >> how was she operating all that time without a permit. >> the law was changed no 2015 prior to that time massage establishments could be opened and now they need a local permit a grass period to the businesses that were open you can continue to operate if you apply for one and stay in operation until if so r0e6 resolved. >> so this is labor intensive how many of you at the establishment as you. >> probably 10 to 15 people. >> different agencies. >> so you're all looking for different things when you're at the establishment. >> that's correct dpw is looking for their violations and fire and we're looking for human trafficking and prostitution sex violations. >> so this was a route inspection based on the applied for a permit to make a recommendation whether they should or shouldn't receive a permit. >> sfpd didn't come pile a list where inspectors to be conducted that of those on the on this particular day on the list i don't remember exactly where this massage parlor was on the list but that was on the list and did several inspectors during this day. >> thank you. >> any public comment? please step forward. >> yes. i came down to actually comment on this case because i live in the neighborhood and when the establishment came into being i look at the you know title and it said attraction massage and then i love getting manuals but attraction massages sometimes those place have prostitutions all over the place attractiveness what does that has to do with with a attraction only between the masseuse and the consumer along with the logo a beautiful woman with long, long hair a sexy logo this gave me the feeling hey, people that is for prostitution not don't come in here for a back massage i love getting massages i thought that place was closed to me but to me that is glaurgz saying for the other purpose and on the ground floor the entire front is covered with sheer curtains you can't see inside a male place would be open see in the window that is going on and welcoming door open and everything i happen to do any laundry directly across the street and waiting for my cloths to dry i see a single man going on and it seems like the door is locked and he's looking around like he's kind of embarrassed that is evidence and yeah. the bus stop is there, too so i've been out there you know, i see you know a little bit of what's going on that's my impression i worry because i hope women have not in there diagnose prostitution and not against there will i would feel horrible for them. >> any public comment? seeing none, rebuttal then. >> my name is fred barker attorney i would - in a case there's no the court should - the commission should give this woman to get a permit and sell the business questions you were asking the attorney and the police police it seems like there are doubts there was an actual sexual activities i think the commission. >> can you speak into the microphone. >> the commission to lovely those doubts and allow this woman it get a permit and sell the business. >> also like to appoint i like the yelp reviews the road maps to assess the reviews or write a review actually i've become a member and pay money and tried to do that last night and there is an incentive to write reviews that are based on things i think this body should look at what actual evidence that is presented before it i don't think those reviews should have any bearing to your decision an extreme measure to revoke i know it's not a revocation of her license she was legally permitted to operate this massage establishment and my client was mentioning that the front is never covered i don't know if this lady is confusing that with another place. >> i think almost. >> talk into the microphone. >> yeah. and we have so many women consumers almost everyday we have women customers in the neighborhood and they came and have a manual and then they sometimes they say hello i don't think and - we have the windows because the permit department not allowed to close the window outside people can see the inside. >> the question ms. adjoining do know own the building. >> no. >> anything in the department further. >> i have a question when ms. yanki yang. >> permits are not transferable she has no permit to transfer. >> even if she got the permit back. >> even if she got the permit that is non-transferable. >> commissioners, the matter is submitted. >> commissioners. >> so a couple of things having spent about a few decades in another hospitality business selling hotel rooms and operating food and beverage establishment there especially in the alcohol area there are significant statutes that are very, very clear and if you put up you sell a glass of beer after 2:00 a.m. and there happens to be somebody from the abc there's no forgiveness if you sell to a minor and someone from abc there and catch you or the police your gone that's the way it is and regardless of the proprietor is there or not is not a standard that's the providers responsible for what goes on twenty-four hour a day or during the operation of the in this case a bar or my analogies and my feelings for a massage parlor the provider has to be responsible foreign their employees the issue related to i'm semi sympathetic to the issues of online commentary again, the hotel business and other you tourism businesses are subject to commentary on trip advisory or yelp and confer with helens council that sometimes they're not accurate sometimes rendered out of the despite and maybe the person didn't get the room rate arrest discount on extra beggar shortcake they write something bad i've learned over the last especially 10 years when or over thirty years revaefl guests comments where there is smoke there's fire if we get if a breeder hotel gets consistent comments on rough towels we will have rough towels and if the same thing with ever incident although this would - i would not rely on the com try of the internet site as the basis for a finding i would still consider where there is consistent smoke there is fire but certainly when a member of the sf pd telegraphs he saw with his eyes what we saw this is against the rules and law and the penalty apply and that's my point of view. >> question for city attorney the issue before us is the permit. >> ; is that correct. >> the denial of the permit correct. >> the other issues the other penalty imposed by the health department is not for our jurisdiction is that accurate. >> i think there is an argument that it could be before you i don't know what the departments position is on that point however, the charter does say the granting of a permit you have jurisdiction. >> the city attorney is saying with respect to the permit but the sign is not before. >> we understand that but the hearing order has been appealed the hearing order for all 4 of the conditions. >> it's the denial of permit. >> the permit. >> that's not what it says in their letter is say there are a basis for appeal of everything in front of that. >> the board didn't have the authority to hear an appeal of the sign and i agree all right. the question is on the other appeal. >> the other 3 being the denial of the permit the permit bar and is there another - >> oh. >> so if we were not 9 appropriate body for that lets say we take an action for hypothetical purposes a pulse of denial do we have another resources in terms of how that applies because it she's permanently barred can she go to court on that issue. >> possibly and can apply for a permit and then have the permit barred. >> because you know the code does say we can't reapply for a year after that; right? >> that's been the position we understand that. >> the code but if i'm reading the hearing order everything there has been appealed. >> that may or may not be appropriate gown. >> i'm sorry but that's what happened from the department should have separated their decision they made a decision that they felt was appropriate their perspective it was the purview at the time to deal with all the matters. >> the fact they all got bundled up when it came to us i don't feel it is germane and continue i'll be inclined to deny the appeal and support the department in the denial of the permit period. >> i would concur. >> i don't disagree with that as a course of action but agree the department has made a case that the online reviews they have representatives the violation. >> you're saying you're not supporting the department. >> no, i'm not either with any motion. >> i'm saying i think there was a legitimate i think legitimate act that occurred that was witnessed and collaborated and this is the position to deny the permit so that's my motion. >> and my position says the same thing that i'm not take into consideration the online reporting as evidence but clearly the evidence of the sfpd sergeant walking in and - and that's enough. >> yeah. >> as a clarification to the original report no question i think the issue for me is that if you can't appeal the for them active banning equip in a court of law where are you. >> another way to appeal it wait the year and reapply those two options the court - and i understand i don't accept that that the department what make that kind of condition and not have appealed somewhere and like the fine it is appealed in the course of a year. >> i understand what you're saying i still doesn't understand that. >> there's a motion and a basis for that motion. >> that there was a such evidence to support the denial of the permit based on the work of the task force. >> is that sufficient. >> based on the finding the task force okay. >> the task force a motion from commissioner lazarus too did to depend on the basis of the findings by the task force on that motion. >> commissioner fung. >> president is absent commissioner wilson. >> deny the appeal and uphold the appeal on the basis of the finding made by the task force. >> the issue before the board is whether - >> the finding the task force which i believe was separates from the evidence on the website; right? i appreciate that that's my understanding. >> that evidence was added by the department in their brief yes. >> commissioner swig. >> okay be that motion carries with a vote of 4 to zero thank you. >> we'll move on to item 6 ab which will be heard together both jurisdiction requests for 28 plus point street filed by diana taking jurisdiction over this the others is filed by patricia and scott asking the board take jurisdiction over the permitted that permit was approved was issued by the department of building inspection with the planning department approval and ended up in 2016 - the jurisdiction request was filed and the gwen's was filed with the board on december 19, 2016, the permit holder is the partners the project to add 13 plus by one story at the rare and endangered one story on top at the endanger the eastern lightwell and roof deck on top of the new story and reconfiguration and give each requester 3 minutes and give the other parties 6 minutes. >> hello, i'm diana i live only north point next to the building in question i ask you on the appeal period so i can file the appeal on november 7th and issued on december 5th i was out of the country from november 10th to december 4th immediately my return i came down to the board of appeals to see what can be done to submit an appeal since the date passed the appeal was posted november 9th and didn't arrive added any home until november 10th i was out the country i had no knowledge the permit was issued to check to see when the permit was issued i did try i called a couple of times since the dr in june and sometime you you know it was december before it was issued so i did try to call a couple of times to planning if get a response to when it was issued the my neighborhood the gwen's so i asked did board of appeals why i've to the received anything they told me i invited to check with planning i immediately went to the planning department they showed me the letters that were sent and the the gepz were on the mailing list no letter was sent an error by the planning department they didn't mail to the quinns the periphery was reluctant to change the actual dates the november 7th of the permit so you see the subsequent letter showing december 7th but the letter to the quinns and reconcurring letter to everything else that was involved on december 5th so that's basically, it i'm asking you to reopen so i can file an appeal so thank you very much. >> appreciate it. >> okay. we'll hear from patricia and scott quinn kaepd my name is scott quinn i'm here with my wife patricia i apologize for the resolution illustration on exhibit one that is the letter that was sent we're adjacent neighbors to the project and the date is december 5, 2016, it has a permit 11, 7 clearly the window expired on the 22 therefore we received a notice after after the appeal window had been expired we besides that is a requirement that adjacent neighbors be notified we're adjacent neighbors also identified in the place here i substantially written mr. ed sweeney and asking him to send a letter to the board certifying the notice was sent a copy of the response response is from david young he managed the issuance board and investigated the matter and received it on december 9th a clerical error we want to file an appeal if you grant the request within the 5 day period two points we intended to appeal the approved permit that is currently enforced one of which on the basis of an error on the part of commission secretary who graciously acknowledged the error including the fourth roof terrace it was not excluded from the permit you'll see in my submission will there was a fourth floor and the gentleman september i believe a copy to the board as well as the corrected discretionary review that includes as item number 3 the eliminations of the fourth floor terrace so that's one of the basis we expect to appeal the other one to further enforce the finding of the dr commission to improve the privacy we have in fact, a lack of privacy we will receive in the permit includes the extension of the first level roof terrace is continues we'll push back on it and made a generous offer we think to the preordain to allow them to build did lightwell 18 by 5 feet reducing our light in order to allow them to reduce that terrace and approve it as well as expand to the full width to the property line so we think we're trying to resolve this matter and hope reach a rule with that party before we come back to the board of appeals. >> thank you your time is up. >> okay. we'll hear from mr. sunny. >> good evening members of the board tom tony on behalf of the permit holder as you may know we've conceded at the quinns so i think we have a procedural question here as to how the appeal hobo structured i understand from staff that once jurisdiction has been granted to one appellant then the party that was prevailing party at the discretionary review is appealed automatically becomes a party to the granted appeal; is that correct. >> there is is something in the code an adjacent neighbor that is successful in whole or part in a discretionary review would be considered a party to the appeal this is in the business and ethics regulation code. >> so the only issue at this point is that the planning department has issued a corrected discretionary review action memo and as mr. quinn allowed to hopefully, we'll come to a resolution of the matter and settle with both neighbors we wanted to be make sure we did whatever was necessary and maybe the zoning administrator what weigh in to be sure should the appeal go forward it is the appeal will concern the revised permit that complies with the new discretionary review action memo i'm sorry that's probably all confusing but the zoning administrator maybe can explain that and i think he'll understand the question. >> well, he'll have an opportunity to speak but - i say short we do not oppose the quinns jurisdiction request a clerical mistake to the appeal is justified. >> i thought part of your question if we grant jurisdiction then that is open to appeals from anybody was that part of your question. >> no, no then if appealed then the other jurisdiction requester in this case because they're in an adjacent neighbor they might have had may have had her jurisdiction request denied but so theoretically she couldn't appeal but according to the board's rules an adjacent neighbor and paralyzed at the discretionary review hearing becomes a party to the appeal filed by the quinns anyway. >> all right. >> according to the business and tax regulation code not outdoor rules. >> are you finished? >> that's all i have. >> mr. sanchez. >> thank you scott sanchez planning department. so rejectable two errors the city made first on issuance the required notification not given to all neighbors the department notifications that was one for one of the property and intum it was done but not a new appeal period and second the permit shouldn't have been issued at all because our planning department didn't a properly note the krefk hearing and we appreciate the whole the neighbors brought that to your attention we would have caught this the first time around but staff reviewed the hearing and minutes and did confirm there was an additional condition that is reflected in the corrected discretionary review memo that was given to you yesterday with that i'll be happy to talk to them they'll need to make changes there are two packets moving forward first, the appeal route that seems to be you know where things are going in the jurisdiction is granted the appeal period and enough to bring the matter before you this board can correct the error and impose the conditions imploded by the planning commission and second if no appeal filed justice a provision requirement that corrects the project brings it into compliance a operate building permit that has a separate appeal period that's not up to our department but the process moving forward but certainly the most straightforward perhaps for the jurisdiction of the project is granted and the project sponsor agrees to a - that will suspend the permit and bring to toss board and request at the hearing grant the appeal and impose revised plans that adopt the planning commission decision. >> any other thoughts or comments or positions that you will have about the project. >> so that's would be our observation at this point and apologizes for the confusion and delays. >> the permit that is submitted shows a fourth floor. >> the permit does not comply and the fourth floor terrace that should be removed. >> i have two questions. >> go ahead. >> go ahead. >> how was it determined despite on a list for a letter the letter was not sent. >> that's department of building inspection we have different mailing process so maybe the neighbor came in and saw the mailing materials in the department for the section 311 we'll list the owner occupied by the 311 but not the list which is a separate notification that occurs with the building permit is issued and not handled by our department. >> a question for inspector duffy. >> if we go forward and grant jurisdiction and the appeal is filed i believe i heard one of the appellants and dr requesters suggested further modified what is going on so is there some probably that can be worked out as well. >> absolutely and this board will retain full jurisdiction over the permit you have the right to overturn the conditions by the planning commission so you could say that one or more of the conditions that those the commission imposed were improper we are requesting the board and project sponsor agreed to this would - at the minimum will rise the project and be - >> and minimum and go beyond. >> thank you. >> thank. >> my question is simple and let the city attorney - if a breeder notice for a permit goes out and it stating the wrong facts forgot forget the fact that the didn't state the facts correctly why don't you just nullify the whole act and reissue that the notification was proper proper information because anybody aside from the neighbors anybody that has a potential interest in this when the permit was issued and the notice was issued was provided with misinformation so since if it was already clear and admittedly misinformation why not just why isn't the act cancelled and restaged and the notice in question was issued by the department of building inspection so they'll have jurisdiction over issuing public school but my understanding it was a matter of the equity not involved. >> but a summary of what of the permitted including a deck that was not part of the deal; correct? that's my point. >> this is based on - once a project is submitted the project gets submitted and a - there's a project depiction son day one of the planning department has no ability to change that project description when there are changes solely one the purview of the department of building inspection to modify or change any project description we don't have the ability to change the notice and certainly the responsibility of the project sponsor and the department of building inspection to update any description is accurate we rely on- this is not uncommon i mean the scopes change often we rely on the not the product description what is on the plan not in the written project description. >> unfortunately. >> i'm looking at it from the citizens point of view not the department i understand your point of view clearly if i'm not a professional in that area i live next door behind the the subject property and have an interest and provided with misinformation to make a decision as to whether i'll appeal or not for me, i think this is an important issue. >> i agree asian-american the record should be clear. >> and for me that would if it was me sitting next to that project and i was provided misinformation i would probably be cranky i was provided with that and ask for a reboot. >> i understand. >> i thought your question why couldn't the planning department ask for the permit to be revoked based on issue of error. >> the whole notification process be redone so that the people who with fair information and accurate information could make a fair and honest judgment as to appeal fort worth the time but appealing the project. >> i agree the product description should be accurate we're not responsible and don't have control over the description and certainly this is another option just brought to your attention into the request process through the application at that point, we it and it has an error rereached to the project sponsor and in my opinion the hearing dates was approaching we didn't have the dr action until yesterday to come to the hearing and explain to the board and generally the project sponsor was aware of it being an issue and we're on notice go ahead and start work and build what was approved as an error if we were not going to accept that. >> okay. >> okay. thank you. >> inspector duffy. >> good evening, commissioners joe duffy dbi i agree with everything on the 90s if dbi and mistake on one of the queries they didn't get the letter when it was issued in november it was substantially corrected he agree with that and want to make a comment on mraunz was spec about we see the permit when their issued it is a great source of frustration inch brought that up with people over the years the description is put on on day one through the process that project may change and the eliminations of a roof deck and maybe a floor but the description of the permit sometimes most of time fact of the matter didn't get changed the permit goes out the door what you end up with not a little underway flaw in the system i was trying to get it fixed but even - and mr. sanchez said dbi has the power to change that if it changes during the planning process may be planning as well as to let us know and payroll my old inquires this is has to go 0 computer people it is a big deal and a legal thing you know the permit applicant needs to be involved it is highlighted i've seen this happen before and on permits believe it or not a number of these building you commit to a 50 floor and up to 52 that's not changed the inspector has to agree with that so that's me agreeing with the point and i'm available for any questions from a dbi point of view. >> questions more a point of curiosity if a breeder site permit than doesn't that notice still go out for it structural. >> yes. >> even that's part of an addendum. >> you can appeal only the site permit that's our opportunity and i think that with dbi the structural notification by the way, the reason not 80 t the three hundred but for the purposes maybe someone will excavate next to our property line and the neighbors give them an opportunity to look at it and or foil an appeal in we are to your question done at the time of the site permit and any public comment on this item. >> seeing none, commissioners, the matter is submitted. >> and remember two questions that should be considered. >> yes. >> comments. >> i think i've made mine. >> i'm somewhat inclined that will be used to deny the first jurisdictional request. >> is that your motion then. >> do i have to do all the work tonight. >> the chair didn't. >> we have separate motion. >> yes. probably. >> okay. >> then unless someone else wants to i will move to deny the jurisdiction request for 6 a on the basis that the department did not cause the jurisdiction request to occur okay. >> okay. on that motion is from commissioner lazarus to deny the request under 6 a our commissioner fung. >> commissioner wilson commissioner swig okay so that request is denied. >> and move to grant the jurisdiction request on the basis that the department erred and caused the appellants to miss the deadline. >> from commissioner lazarus to grant the request under 6 b on that motion commissioner fung. >> commissioner wilson commissioner swig okay. so that request is granted thank you, commissioners. >> move on to item no. 7 appeal - >> commissioners need to take a break. >> sure. >> we have a short break. >> to gavel out vice president. >> sorry. >> are we ready. >> yeah. >> we're resuming the meeting of board of appeals for wednesday, january 11, 2017, we're on item no. 7. >> appeal number 16 jane black versus the department of building inspection with the 1 juice avenue appealing december 2nd to clay ton of an alteration with a new upper and lower deck and we'll start with the appellant 7 minutes to present your case. >> hi my name is jane i live on this avenue that is a 75. >> would you speak into the microphone please. my name is jane i live here and i lived in the 75-year-old duplex and like to see that everyone is on the same page about duplexes which i presenting can i have the overhead, please? with the existence definition of a deluxe and show how the deck we are appealing is completely out the character and much too wlarg larger for the space i've lived ♪ duplex for almost 25 years my parents bought it in 1960 and we intend to stay there as a family i have if trust quite a while and myself had the deck built and when i had the decks built i took great pains to have careful plans made by actual architects and i have plans with me if you like to see them they question my numbers excuse me - i have a cold and this is one that i have the architect is very famous and has nothing about good recommendations and had a survey of our property this one imply stan a paramount surveyor in the city and a lot of these good recommendations and we went ahead and had those decks actually had been there but over rotting away had them repaired and the entire house gone over by those two experts so i made sure my property lines were correct with a fence and everything in my house hadn't been up to code ways brought up to code and done by proper architects if you want to see the drawings i have them here and can hand them over with a rural you can check any figures we're asking here is two simple, 3 simple things one we want to have the size of the deck smaller and separated from the actual home because it is just not going to be possible to have any kind of shrubbery i have an aerial photo here of our the duplex and as you can see the roof are together this is mine at the 455 and my neighbors and we're completely twins we're like is he messes twins it is difficult - what is beautiful for the environment and have someone disrupt the whole thing with a landing pad for an aircraft besides taking the backyard and in event the reason i brought up this permit should not be passed through because there is so many mistakes on that if you can notice in the first line there's 3 mistakes and a price of $30,000 to do a deck that actually 5 hundred and 65 square feet altogether it took i paid $35,000 to have just my porch and so i think that will be very disconcerting to the coffers when this is passed because that will never get that kind of money first there were 2 stories and there's only one story many of those things have been changed and construction is only to be for an upper and lower deck at the rear of the building so it was just passed very quickly throwing without the correct information they said they having had an architect and engineer but none on this if you want to check that i have in red it can be shown and on the drawings which are very - well, i guess you can say inadequate the fingers are incorrect the size of the house had not been exaggerated and all the figures are off here's another example where what figures are wrong i think that the planning department had gotten the correct figures it will not have put this over-the-counter and rubber stamped is one the claims that deck is going to be the same as everything that the rest of the tab on the block that will show that the rest of us do have much smaller decks this is the deck proposed it is at least twice as large and anything else so this is showing the proportion of the house what the deck needs it takes up the same amount of house as the deck itself 75 percent of the house size and this is what is shows that will look like to us with people coming down the stairs if you want to change to the odds our walkway this is the people one foot away from our terrace walkway and not even shown on the plan so we are going to - >> ma'am, ask the stairs be changed. >> ma'am, your time is up. >> you'll have rebuttal time to continue ouyour position. >> good evening. i'm clayton a homeowner so we are the owners of the home on 19th street it was approved over-the-counter on december 2nd and extend on december 20th we've notified her a month before the permit was approved of the our intentions with the rear yard deck with the deck in her backyard and she had no objection we met and actually her daughter our contractor in our homes for an hour, however, we understand they're two fold our project about jeopardize their project subsequent communication we tried to explain to them our roof deck was smaller than her house on the odds of us and structurally save from is an engineering point of view and hired a professional with expertise and information for the feasibility of our project - we show in the presentation that our project didn't compromise her privacy and that compliments our project and it is safe and show that she has two projects without permits i'll explain the violations in my presentation the suspension is greatly - we were set to start this project last fall we have a 90 day business contract would have been finished by now and nonetheless we have been working on, on project and request our permit. >> shown here is my home on the left and her on the right in the homes that are facing the homes single-family homes the ground floor is at street level but the rear is two levels above grade and next to each other the privacy is compromised they'll see into their neighbors backyard and come close to each other and - >> our project was designed by a licenses architect and engineer under the planning code and the upper panels show the current site elevation and here shown the proposed i'm sorry can you hear me. >> use the other microphone. >> raise if you want. >> sure our upper will be 90 square feet and the view - the view from the neighbors at the 5 - we have a letter from them we discussed with them they center no objection to our project. >> so this is our home in the middle with the neighbors property on the left and right any intention by design we limited the scope and scale to be permittable we want to get the permits over-the-counter and be allowable buildable area and kept the height of the deck less than 10 feet so over-the-counter to minimize the process our neighbors have not been restricted the size of their deck and this is extended so - >> she's requesting a couple of modifications one that we - oh. >> one that he reorient our stairs the stairs are in the orientation they've been there for the last 75 years and increase the distance between the perhaps we don't on the modifications will increase their privacy. >> she was concerned our lower deck would be higher than her lower deck our lower deck is in the middle of that it - so the rest of the presentation has concerned her belief her home is a duplex we share a common wall they believed this is this the case for the - be unsafe from an engineering perspective this is not true the copy of the global permit a single-family home and it is a separate building. >> this is the sanborn map. >> we tore a piece of panel that covers the place in the backyard wrg our side walls meet so show we have separate walls there was work on the 2006 and the permit was more my home we shared a common foundation. >> if we shared a common foundation you expect our walls to be in line but though - objective the stairs location this is those stairs will be replaced with something we- and her privacy is reorienting not effecting her privacy. >> so when she had a rear deck they were done without a permit she was issued a notice of violation the decks were legalized by added those fences to the upper deck not part of plan. >> and this is my view of the - >> you'll have time. >> so we're - okay. >> thank you maybe i can remove our papers and hear from the department. >> thank you scott sanchez planning department. to review the plans associated with the the subject property permit the project is fully code compliant an rh2 didn't encroach into the rear yard some of the materials argument that it violations the section this is not relevant we can extend to the property line up to the last 25 percent so the provisions for the setback and the pop but is not relevant we allow a deck no higher than 10 feet not requiring a session 311 notification one thing that would be good to see the the subject property permit when you look at the just a minute property rip it makes the project more supportable we think to do something similar but larger than it has naturals we novelist done a complete investigation to the legality that came around the 1992 notification that talked about the decks that permit was scheduled cancelled and not issued so there was a invoked to variance but that permit i don't have the plans but the proper construction was $4,000 i don't know if it computed a deck at the rear but on the merit it is code compliant and they're close they were to go 10 feet they need a notice of violation but they're showing on the plan it was properly issued and looking, however, it relates to the adjacent property and the appellants property i don't have a problem with the design elks. >> mr. duffy. >> commissioners joe duffy dbi the building permit for the construct for the upper and lower deck at the rear the building was reviewed by our dbi plan check that was over-the-counter approval and i have reviewed the plan and the plans are pretty good and everything looks plenty of good details and inspectors and everything we want on a set of drawings it was well done one thing the appellant brought up about the application sometimes you get mark outs and sometimes, people put in it wrong it is typically done wrong that is a numeral system they come to dbi we fixtures it i'm used to seeing this the engineers should have been on the building permit but by the bureaucracy and permit applicant over and over the engineer writing a letter to make that to the dbi record there will be is an engineer of record i think the building has a basement that is not on the permit but again, we sometimes see that that is documented on property through the one-story building i suspect a basement on there not noted on the plan and permit again not - a big deal blank could mean zero should be property story one basement other than that, i don't see any other issues from the building department i'm available for any questions. >> mr. duffy can you discuss what the building department will do in event a common framing and or common foundation. >> we do plans thanks for asking that question the roof deck will not matter in this case but typically and see sometimes on residents in san francisco where maybe in the 20s or 30s seen developer in the 1920s or 30s the developer built a row of homes and not uncommon to put the foundations we need the engineer to get involved and discussions between the property owners i have seen it before it is just got to work a little bit more carefully and take into consideration the other perso foundation i think we've had appeals on 3 avenue that was brought before us on this same issue it is we do ask the engineers to monitor it and they can't go in there and jackhammer it, it is the roof deck it won't come into play hopefully, you'll agree with me. >> i know you're more of an expert it is a san francisco thing a zero lot line for construction. >> thank you. >> any public comment on this item? seeing none, rebuttal from the appellant 3 minutes. >> i'm glad it scalp about they're being a combined foundation i have a letter here from i guess one of those non-recommendations for the engineers that is being used in this case mr., sir and it said please don't use this man he's not good with his plans i also have something from the building department a complaint because of the construction was overdone was not done on the foundation in the back which is very weak and i can't believe that the department is going to allow this huge deck the size of an aircraft carrier to the attached to this little tina foundation i can show you is totally attached to the one of my belief this is my building this is they're building as you can see it is cracking and falling apart the planning department person can see this with his own eyes would want further people look at this is the going to be very unsafe and blow this and very steep location have not been notified this is a huge deck if there is an earthquake not abiding by the standards that our deck was made which is the 4 by 4 all the way down into the bedrock they had those little tiny things on very top with a little bit into the loss soil the man that owned it before shoveled out his basement and put dirt into there not in the bedrock or the hard soil it is going to be something that they want to complain about they call this a fence this is what we see if i don't - have those privacy barriers the people that lived there before begged me saw into their windows all the way to their halls i had a very good contractor with plans to make that attractive and now we're getting complaints i'm sorry - >> thank you. we, have rebuttal from the permit holder now. >> so there was foundation work by prior people in 2006 side foundations were repaired and the rear foundation was replaced 24 was permitted and in the section so no issue with that foundation. >> again, the view of the upper deck not part of plan from my kitchen. >> we're civil grand jury mindful of profess a picture from a couple of years ago we've maintained a publish garden and board we share with a common property line with we intend to do something similar in the back. >> i have a question in the photo that you showed with the cracks is that a current photo. >> you said you have that repairs. >> the repairs were done in 2006. >> yes. >> why not finish your presentation. >> are you done. >> basically yes. >> all right. >> okay. then anything further from the department? no, yes? >> joe duffy dbi just on the cracks that is the appellant want to file a complaint with dbi we'll look at that matter and may end up looking at the briefs some of the photos of the appellants deck he recommend you not look at the followed out the fence was tilted sometimes we go out and writing up both sides for issues if there is cracking and without the engineer of record we'll not get a report if make concrete flat work we can look at that no problem. >> i hope you don't create further problems. >> inc. we're aware of that. >> commissioners, the matter is submitted. >> something else speak up. >> i understand the concerns that are come forth when something new occurs unfortunately, the project appears to be a reasonable project i don't see that as creating the same issues that the appellant has therefore i find that the permit is appropriate issued. >> i would concur. >> i'm move to deny the appeal on the basis that the permit was properly issued. >> thank you on that motion then from the vice president who denied the appeal on the basis it was properly issued. >> commissioner lazarus commissioner wilson and commissioner swig. >> thank you that that motion carries for the vote of 4 to zero and move on to item 8 city core versus the deserve the property on 333 fremont street of a letter of determination regarding whether additional parking by operating a valet service within the existing parking garage we'll start with the appellant. >> thank you. good evening mr. vice president and members of the board david legal counsel for city core and fremont venture the zoning administrator dereliction we've appealed ♪ issue before you is an error it applies to the rincon hill parking in the parking garage and because of that rincon hill don't and the determination will need discretion and ask the board set it aside the planning commission approved this for 88 unit and parking garages that was expressly as and so forth in the planning commission subject to the zoning prior to the rincon hill zoning that was our c four happened shortly before the board of supervisors adapted the rincon hill zoning even though approval multiple times said the property project is for the subject to the rincon hill project the code at that time, only regulated parking spaces it didn't say anything it limited the number of cars or vehicles that can use the parking spaces the code later changed to regulate the cars or vehicles that shows you that the prior regulation of those thing was intentional and was known but there is no limit in my applicable regulation to the project the design regulations that applied at the time or the approval as to the number of cars that can use the parking garages the zoning administrator determination attempts to apply the rincon hill zoning but that's an error the city's brief says this is a new approval and this is not exempt from the rincon hill and a new approval is subject to the rincon hill zoning we disagree was that this applicant appellant is not asking for any approval they've not requested a permit they're simply asking for clarification they can use the 88 space parking garage to park more than 88 vehicles which no code or regulation prohibits even if the operative item were parking spaces the code at a time requires 8 spades but allowed up to one .5 for accessory parking so code 51 that exist loudly up to one and 32 parking spaces ♪ garage the approval for 88 the valet parking spaces don't count against the parking requirement but again, this project was approved under regulations that required 88 parking spaces allot you up to one and 82 and placed inform limit on the vehicles that can use of parking spaces the appellant want to make the best use of underground parking spaces that constitutes the parking garage and be able to park cars when residents might be gone and for people that come to work in the area with valet parking you can make more efficient use of parking spaces i'll note a number of projects in the neighborhood that are residential projects that have a similar arrangement and 38 bryant and that 3 beal and main are other works in the neighborhood of residential projects or projects with residential components that allow valet use of parking garages again to maximize the efficiency and effectiveness of parking garages that appellant is asking for clarification it can use the approved 88 parking garages for more than 88 vehicles again, the regulations that were in effect at the time that was approved in 2005 the approval for the planning commission approval of

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