Transcripts For SFGTV Board Of Appeals 20240713

Administrator and representing the Planning Department and commission. We expect joseph duffy senior building director and the Principal Environmental Health in inspector. The board requests you turn off or silence all electronic devices. Please carry on conversations in the hallway. Appellants, permit holders and Department Respondents are each give enthree minutes to present a case. People affiliated must include their comments in the three or sevenminute periods. Parties not affiliated have a chance for rebuttal. For rehearing request the parties get three minutes each. Four votes are required to grant an appeal or rehearing request. To assist the board youre asked to submit a card when you come up to speak. Please note the board reserves the right to not call an item after 10 00 p. M. If you have questions about a rehearing or schedules please speak to staff during a break or come to the office at 1615 Mission Street room 304. The meeting is broadcast live and rebroadcast on fridays on channel 26. The video is available on the website and can be download from sfgov. Org. If you intend to testify and wish to have the board give your comment evidentiary weight, please stand up to affirm the testimony you are about to give will be the truth, whole truth and nothing but the truth. Commissioners we have appeal 20002 subject property 1502 do do doleres street. Does anyone member of the public wish to speak on an item not on the calendar . Please approach and identify yourself. Thank you. Good evening and welcome. Thank you. Gary witman and speaking to you as a friend of ms. Sheryl hogan. For those who dont know me to acquaint you with my background i was General Council in the white house under president s nixon and ford. Associate slolicitor under president carter and at another time director of the office of staff attorneys at the u. S. Court of appeals ninth circuit and taught environment law at all the uc law schools in northern california. Last fall you rejected ms. Hogans appeal when she asked did approval of a small wireless facility installed 12 feet from her window. She provided a peerreviewed of Scientific Evidence by uc berkeley. I understand you referred that binder for comment but for whatever reason now eight months later i also understand neither the board nor the public has received any comment or evaluation of those studies. Back to ms. Hogan, shortly after installation of the facility on or about november 20, she became ill and was diagnosed with a fastgrowing brain tumor, a blast toe blastoma and undr went surgery march 2 and as i wrote this document she was still in the intensive care unit. All her friends have their fingers crossed. My first request is for the love of god help provide humanitarian help. Please turn off the power to the facility right outside of her window so the can go home and recover from this devastating experience at home. Second, we would ask you remove this facility entirely since it is almost certain to promote the growth of her brain cancer so long as she resides there. So we know one cannot with 100 certainty say the cancer was caused by this particular installation, on the other hand 30 seconds, sir. Thats three minutes . 30 seconds more, sir. The probability was it was caused by that particular installation and investigation i think would verify that. There was a you had a chance to make a decision at the time you were told the World Health Organization classified this has a possible carcinogen and at this point we ask for humanitarian help for this woman. Your time is up. And make her home safe for her return. If you can give a speaker card to mr. Longway, please. May i make a comment, please . Pardon . Please do. First and foremost obviously this board sends their best wishes to ms. Hogan for her recovery. You know if youve participated in our board activities you know you have very sympathetic ears to the subject because of the request remade to the public of health which as you note has gone unfulfilled and not gone unnoticed by this board and i would like you to inform them one of our appellants has suffered an illness which may or may not be related to the installation of the piece of equipment but most importantly, once again we request for mally they show a great sense in urgency in following up what has documentation from at least some as a very Urgent Health issue. Thanks very much. I will do so and were very sorry. I will followup since therell be more public speakers. Unfortunate unfortunately, the board is not hearing the mobile antenna cases in the bulk were were prior. Some of our power has been stripped in regard to the mobile towers isnt that correct . Yes, the permits no longer required on many poles in the city. Because the permits theres no required permit theres nothing to appeal that comes before this body. Secondly, this body has repeatedly denied permits and repeatedly repeatedly we lost in court as were liable for hour decisions as well but thank you for your Public Comment. I hope you can nevertheless authorize the thing to be depowered. I thank mr. Swig for his statement. Thank you. Welcome, next speaker. Good evening. Members of board swig, thank you for your humanitarian outlook. Mr. Honda, thank you. I came in because shes a friend of mine too but i would like to talk to you about science because i have more sympathy than some given its taken a long time to get it done because its been tied up with the covid 19 and since were aware here i think all of us from sheryls work for one the United States governments nation institutes of Health Toxicology program has affirmatively determined theres a direct cause between the radiation type and the root cells of g glialblastoma and threes a neurological impairment suggested and i hope youll look at this and that in light of the city of San Francisco has issued a state of emergency for covid 19 the fact well be spraying the entire city and inhabitants on something we know will have an immunological experience we go to whatever forum we can reach and i heard about the limitations of your powers but were just citizens trying to make the best presentation we can and supply the best information we can. Certainly cheryls thick binder which you have, has a lot in it. The central idea and one other thing i want to say, weve all been conned including me. To find out what i mean by that please look at the march 29, 2008 theres an article how big wireless convince the us cell phones are shake articulating the work of joel carlo retained by the Cellular Association and kicked off after he determined in the mid90s its carcinogenic and march 29, 2018 edition of the nation magazine. Its well worth looking at. Got carried away thinking about cheryl but given the National Institutes of Health Position and massive data showing its a du documented risk and immunological risk and looking at the Washington School of medicine and the work of dr. Martin paul Washington School of medicine theres no question of causation here. Sometimes all we can do as citizens is make a statement and all can do as members of the board is do the same but upstairs. If you can stick around i think the board of health is before us on another case and well have a chat with them. Trust us. Well hear from the next speaker. Welcome back. Thank you, i know youre attentive to what you say and we appreciate you inviting us to the department and we provided dr. Argon the information he need and followed up with him every week from that point forward to make sure he had all the experts and help and instruction needed in order to make sure the San Francisco county and city did the right things for its residents. We have a disaster here, folks. Youre all pointing fingers the other way. Its not going work anymore. Now that were damaging and killing people its all fallen on everybodys desk. Its all here at the San Francisco board of appeals joining hands at the San Francisco department of health and public works all headed by mohamed narud being investigated by the fbi for corruption and corruption isnt far from verizon lied and said false information about. Its all established in the Public Record yet you tolerate those lies and dont look at the truth very hard. And you need to look at the truth really hard now. You really are damaging and we really are killing people here and why are we doing this . Oh, our jurisdictions not good enough, i dont know. Its not my problem. Were too busy. Are these the reasons why were not doing what we should do . Let me tell you what i did today, i wrote a letter and went to the radio on monday and i told the world about whats going on in San Francisco dr. George carlo told me how the guideline happened back in the early 90s. Its a scam. Its been a scam from day one. It was to beat the europeans to an auction. Theres no scientific basis at all for the guideline. M this information was given to thomas argon. He has it all. Youre rubber stamping oh, now you dont have to do it. Now the Wireless Industry changed article 25 and doesnt come before you anymore. Those days are over, folks. Its coming right back to you. That article 25s gone away. We have to join hands and say we have a problem and all play a role in it and everybody who hides behind their jurisdictional issues has to say its my problem too. These are my people. You have a precautionary principle. You dont give it due mr. Brad russi. Take a look at it. It was told to you in many appeals. Thank you. Your times up. Thank you. Thank you. Is there any other speaker here for general Public Comment . Okay. I would also like to add one more. Im sorry. Please come forward. Is there anyone else here for Public Comment . We just have one more person . Okay. Can you call maintenance and have them turn on the air. We called them and they were looking into it. Again . Its on or off and right now its on. Welcome back. Hello. Hello board members. I wasnt emotional before but i am now and i apologize. I know cheryl and im also electrically sensitive and unfortunately ive had to sell a building and leave the city because of burning feet and headaches. So what we have before us which i know was delivered very strong to you and im trying to say to you again just the precautionary principle is something that any government person can use to help the situation. Its really getting out of hand. The 5g is so prevalent and i can drive certain parts of the city where im hit so hard my feet start burning and i get headaches and otherwise im okay. So next week ill be up in mendocino red woods enjoying a little bit of a reprieve to come back and spend time with my family. Excuse my emotionality, please. Guys, i understand where youre coming from and appreciate you listen to us and you have a tough job. You have so much stuff to look at but you do the precautionary principle. Really look at it because its principle of law. Its a principle of law you can really hold and do something with. You know, it cannot be preempted. Theres no preemption for the cautionary principle for the sit distance and residents of San Francisco. Seriously, you have to rereally push on really push on the other people youre in contact with and im just asking for to you do so especially on behalf of cheryl hogan. Thank you. And im just asking f do so especially on behalf of cheryl hogan. Thank you. Just asking for to yo especially on behalf of cheryl hogan. Thank you. Asking for to you do especially on behalf of cheryl hogan. Thank you. Thank you, sir. We received an email from ms. Joy bianci. The board denied the appeal and upheld the appeal and denied the removal of two trees and she said the concrete has not been treated and is buckling. Since that was on my watch id like to as president id like to respond to it and think its appropriate. This is not paying attention to the board of appeals night it seems. Not only do we have a department of health, its not paying attention to us, which by the way really pisses me off and gets me angry because were trying to do a job for you and if a department doesnt follow through its upsetting because we dont do this for the big bucks. We do it for the public. So moving back to dph sorry, to boa lets ask for an email and formal response from them regarding this alleged inaction. A time line when supposedly the work has been completed. And what happened and whats the time line. Did they adhere to the order or not. And then if we can put this on an agenda in some fashion. Dont know how we agendize something where we created an order. Its like a court order. Were a quasijudicial body and made an order associated with an appeal. Thats four to find out for you to find out. We can agendize it for the next meeting. Im sure myself and the board would like to hear a response and get their side of the truth and resolve the issue to what the board has already resolved for them in formal hearing and with a formal vote. Thank you. Okay so item 2 is commissioner comments and questions. Were in the public often and have lots of employees. Theres a coronavirus please wash your hands for 20 seconds and wash every time and disinfect if you dont have access to soap and water. If you feel sick, stay home or contact a medical facility. Some are prepared to test and treat and you dont want to go to all of them. Please be aware and hopefully we can all stay well if we co these things. Is there Public Comment on this item . The push we made to dr. Thomas argon was to have a rational preparation for a population that is going to experience covid 19 Community Spread. We know its coming. Its already happening in other communities. So to do that washing hands makes sense and taking care of yourself with diet and rest. These are things people can do. Cities can make choices too. Heres the choice you can all make. Recognize theres 12,000 studies established science telling you small cells at 1,000 and 7,000 watts at radiation covid 19, you have an opportunity right now to take a look at turning them all off in order to not immunosuppress your population and give them the chance to sleep as well as possible to fight this disease as much as possible and what youre doing is weakening your population right before a Community Spread of covid 19 because the department of health isnt looking at the science and the logical choice yeah, would piss off verizon and at t but also save your population. What are we doing here . Are we keeping our Business Partners happy or are we doing more for our people and whats the department of health going do about this great idea. Its all out on the papers and on the radio. Whats going on . The world wants to know if are you or are you not going to turn off your small cells and wed like know and would like to know this week and were watching and social medias big though we just had a super tuesday you have no idea how its trending. Were all watching San Francisco. Are you going turn them off or not . Thank you for bringing up the covid 19 issue which i have aaddressed. Ish wish to note people have different styles. I think thomas argon is a good person in a tough spot. I personally think this board wants to do the best it can. I sympathize and paul drove me over here its hard for me to walk. I dont agree with this condemnative approach and i want us to be loving and kindly and i want to mention that. Thank you. Next speaker please. Hello again. I want to update a little bit of something i recently read in research thats been done. As the rather interesting i dont know how totally valid this is but the circumstances are very interesting. The origination is also the place the heaviest amount of 5g in china and there could be a relationship to the mutation of the virus as a result of the Millimeter Waves going on. But what they did further was they linked it to several other events that have happened once we had wireless turned on. And each time we ended up with what you might call major epidemic like victorian flu and things that cause a lot of problems. There is literature that also tells us once again not only is our immune system in danger but remember the electromagnetic field is involved in everything from the atoms. Electrons to protons have the same force as the planetary relationships and theres the same resonance and vibration of not just the sun, the moon, the earth but of all insects, people, everything. So theres this extreme sensitivity that is really been changed a lot a result of the electromagnetic waves. Thank you. Is there any other Public Comment . Now item 3 before we move on the adoption of the february 25 board meeting. Cain can i get a motion . Motion to approve. We have a motion from commissioner swig to adopt the minutes from february 5. Is there Public Comment on that item . Seeing none, on that motion well take a roll. [roll call] now moving on to item 4 a rehearing request. [reading item] did you have an opportunity to review the materials . I did and i arched watched the video. Thank you. I have as well. So well hear from the requester first. Thank you, mr. Patterson. Im on behalf of the appellant. As you may recall this was an appeal and as we got in the appeal hearing there was a shocking revelation that my clients driveway may not in fact belong to my client. And theres two rectangles and in playing on the flag lot. On that basis the board denied the permit because the pipes were being installed on the permit holders property not mine. Sometimes things are as they seem. As we went back and investigated the new issue that was raised at the hearing, we found in fact this property does belong to my client as we had believed all along. We also had a survey prepared to confirm the location of the pipe and Property Line. Heres the map itself which shows the line here for the flag. There is confusion and ambiguity in the process of the lot split but as a matter of law the personal map controls. The subdivision map act states filing for record of a final parcel map by the county recorder shall automatically determine the validity and shall construct notice thereof. This meaning recording of the map is the final determination it complies with the state law and local ordnances. It was not challenged in the statute of limitation, which is short for those things. The property was bought and sold on that basis through the years. The fact of the matter this is the clients property and the pipes were installed and cant be installed on someone elses property without their permission. Id like to ask if we can verify the survey map on the overhead here. Im ben ron 3 seconds. I verify it looks like that. I surveyed it. Thank you. We presented copies of the map for. Thank you patterson. Thank you. Well now hear from the permit holder. Good evening and welcome. On behalf of the permit holder jamie patent. We heard about order lines shift now but thats not what the whole hearing is about. Its a hearing about a grant of permit to install a new bathroom. Thats all there is. Theres been no manifest injustice. There were claims in the appellants brief that somehow this board slandered title. This board doesnt have the capacity to make lot alteration. Thats a city or Court Function and if that needs to be worked out its probably within the bounds of neighbors to work this out. This is a situation where Scott Sanchez from the Zoning Administrator looked at the documents. He saw that no variance has ever been allowed to create a lot that is less than 25 feel in width. Based on that the recorded Property Description is illegal. This is a giant mess up from 20 years ago. Almost 40 years ago when this lot was taken from one single lot into two. My clients want to work with their neighbors to get this worked out but the fact is that this rehearing has certain requirements. They have to show manifest injustice and there is none. Nothing has happened in regard to their lap properties. You have not said anything that alters the property they have. They have to provide new information that wasnt previously available. Theyre giving a rehash of documents they already presented to this court or providing a brandnew document that to explain why it wasnt presented before. And given that the crux of their previous argument was that my clients pipes encroached by an inch over the Property Line and the eaves encroached it should have been relevant and present the at the first meeting and it wasnt. If this evidence could have been presented earlier and wasnt, the rehearing must be denied. Thank you. Thank you, counselor. Well now hear from the Planning Department. I love when you come up smiling. Thank you. Wow, fear the beard is gone. I figured the only person who should have a beard is brad. This is a rehearing request. At the last hearing regrettably i didnt have all the information. It was information only discovered the last minute when i was getting up to give the presentation. Two separate issues. In regards to the lot configuration, it was recorded with the flag configuration. That is correct. Thats how the lot was recorded. Its the Planning Departments position it was in error because it was never reviewed by the Planning Department. The Planning Department approved through the variance process a subdivision with one lot in the front and one in the back. During the review the Department Building inspection said it was not appropriate. The following year it looks like in 99 it was revised based upon those department of building inspection comments and the flag lot configuration was created. That was never routed back to the Planning Department for review had that been done, we would have required a new variance because that lot at the front is getting smaller and more substandard and less compliant with the planning code. Regrettably the lot was recorded in this configuration and were reviewing what options we might have in terms of properly documenting this in the future. But it is correct what the appellant has stated in terms of the flag lot configuration. That is whats recorded in the city records. Its the Planning Departments position that was improper and lacks variance but it is what was recorded by the city after all. Second, we have the rehearing request which is the main reason were here tonight. With the information and clearing the status of the lot if the board feels that new information or clarification of that information is relevant and feel that warrant a new hearing you can grant the new hearing request and may change your decision on the matter. But again if this is information that wouldnt have necessarily changed your opinion or dont feel it meets the standards for the rehearing request you can deny it and your decision stands. Its a matter for some time. Theres two neighbors that dont quite maybe have all issues where others were raised at the previous hearing but these are pipes that are replacing existing pipes that had been there before because it was a remodel or modification to the bathroom we dont have issues with how the permit was issued and nothing has changed with our position on that and im available for questions. If the coo or cof was issued in error, does that mean can you just ref kate and have them revocate . Are you referring to the subdivision . Correct. Theres a different set of standards. And theres no vested rights to a permit issued in error. Theres a whole different set of standards when it comes to state law and subdivision and i cant speak with authority with those i just understand those distinctions do exist. Thank you. Well now hear from the department on building inspection. There are other issues there theres eaves and this is attached to this building thats a lot of stuff that needs to be so sorted out but if we do anything with the permit under appeal its going to hold up the cfc and sign off the original permit because its tide together. My advice would be figure it out in a different form and theyll be back with Something Else but obviously theres a lot going on and id encourage them to Work Together but to hold up a permit after a bigger permit thats now going hold off the signoff doesnt make sense to me because it would mean if we wanted to sell the property and the permit was not signed off it brings bigger issues. I just wanted to state that. Thank you, senior inspector. Thank you. Is there any Public Comment on this item . Seeing none none the matters submit. I dont see new evidence that has been submit had was not available at the time this was heard. I dont see a reason why this survey couldnt have been performed before the hearing part of the argument theres argument for a new restaurant pipes. Thats the issue disputed where the lines are. Im not sure why you were prevented from provide survey previously. And i dont think the board had any false in that or the city so i would not support the rehearing request. So in hearing this case last time, it came that that the plumbing already existed to encroach over the line and the bridge. What also came up in the last hearing through the briefs was theres a strong dislike between Property Owners. Is there manifest injust and there is not. I recommend to your clients they sit down and figure this out because its a bad thing for something as silly as this. The pipes were there under a previous remodel and yes, they add more infrastructure there but at the same time they were there when they purchased the property. I move to deny the rehearing request on the basis theres no manifest injustice. We have a motion from commissioner tanner to deny the request on the basis theres no manifest injustice. And on that motion . [roll call] the motion carries 40 and the request is denied. Were moving to item 5. [reading item] this is pursuant to San Francisco health code. This is i. D. Number 103428 and well hear from the appellant first. Good evening and welcome, sir. Im here on behalf of the appellant. Before i dive into my legal argument id like to address some items. They did not become the owners of the subject property october 28, 2019 nor of the subject business, the sale of the subject business is currently still pending in escrow. Secondly i would like everyone to keep in mind that appellants are not asking the department nor this honorable board to exercise beyond its discretion and be used to uphold provisions of the federal and state constitutions which preempt local law and the appellants never said they fit in the exceptions of article h. The core argument is there is a 2014 density cap amendment thats applied to them and as a matter of law cannot ab emplo d employed be applied. Nortd in order for a law at issue to be enforceable it has to meet substantive and procedural requirements. Due process is complicated but ill try to simplify it. We reviewed the 2014 well call it density amendment as it pertains to this case and we believe substantively it meets requirements. Looking at the procedure or process by which those who the law impacts ie the permit holders were given notice of the changes. Thats where the issue occurs. For the most part the department has done great job enforcing applicable laws and theyre efficient and diligent but at the same time they have in light of the sheer number of businesses and laws they have the duty to oversee and regulate, mistakes are not uncommon and thats okay. Thats what you guys are here for to rectify issues that do occur. Here the previous permit holder helped the tobacco permit before the amendments went into affect. Thus the Legal Framework were talking about for all intent and purposes are for preamendment article 19h. In order for the department to make the amended provisions enforceable it needs to satisfy the procedural due process requirement. In simple terms they have to give sufficient notice to the permit holders that its a change in the law that will significantly affect your interest as it pertains to this permit. Its a fundamental property right and by virtue of this notice potential buyers such as my clients, the appellants are given notice. Theres a myriad of case law that reiterates the point that essentially says when a state actor fails to give sufficient notice of a law that impacts a fundamental right its unconstitutional to apply that law to them. I dont believe this point is disputed by the department nor should it be. So how does the department meet this requirement . This is exhibit i overhead, please . Im sorry . Were talking to the people downstairs to control the overhead. Can you zoom out a little bit . Retail tobacco permit. Tobacco products and the key word is notice notification at the end. Id like to correct the characterization. The question is did the department give sufficient notice to the permit holders at 1801 fulton street . In order to answer that question all we have to do is take a look at this exhibit which is the notice signed by the permit holder we have an individual who signed it who is not a permit holder or authorized agent of the corporation at the time. Just an employee who, by the way, speaks very little english. Id also like to direct your attention to the date may 29, 2017 almost three years after the law was adopted. So as you see here the notice of the future sales restriction was not signed by the permit holder and i dont want to speculate but the inspector who executed this, mr. Prado, walked in on march 9, 2017, did not find the permit holder available and instead of coming back at a different time somehow talked the employee into signing this thus presumably binding the permit holders at the time to the changes and giving them the notice required continuationly constitutionally at the fate and federal level and this was not brought to the appellants attention until after the initial permit application was denied. Had they been given notice or had Due Diligence or discovered it we would not be here today. So id like to this is respondents exhibit g. It showed the sole basis for the denial was that the denial is in a supervisory district with 45 tobacco permits and thats the sole basis for denial from the amendment. Given the fact the appellants were not given sufficient notice this does not apply and if this does not apply and we reconsider the application they would be grant the permit for tobacco. Thank you. Thank you. We will now hear from the department of public health. Good evening, welcome. Good evening, commissioner. Im jen callaward the commissioner of the tobacco and smoking program. We received as mentioned the application. The ownership of the property was based on the Tax Collector records of establishing a business in San Francisco. And this was the date october 28. It was found in our records. The Department Lacks the authority to issue permits to locations in supervisoral directs with two or more other active permits. Its 71 in district 5, i believe. And in regards to the notification of the density ordinance, as were calling it, this is an educational and outreach piece when the law passes in exhibit i believe its i. You also have the initial notification that was dated august 5, 2015 when the original permit holder prior to the appellant applying received the notifications. So the notifications were designed to be given to the current permit holders to let them know the restriction of a tobacco permit for future Business Owners just to clarify that piece. We as a department do not have the Legal Authority to issue a tobacco permit contrary to the local law. The appellant also didnt qualify for the exceptions listed in exhibit f. And therefore we had to deny the permit and we ask you uphold that department denial based on these facts. May i ask a question . Are you done . Sorry. If i own a food store and have a tobacco license and go to sell the food store that tobacco license is not transferrable to that even if theyre in the supervisoral area and a cap of 43 . Theres a couple scenarios but thats the basics of it. That is true but theres the exception route whether you are an owner of that store between 2010 and 2015. And you held the permit in january 18, 2015, then you would have the opportunity to fall under the exception of 19h6, which, unfortunately, the permit holder that had the permit like your describing, they didnt get the permit until 2014. That is correct. Maybe im still seeing this as confusing somehow. If you had to have the permit from 2010 to 2014 or to 2015 but if you got a permit within that window then you dont qualify for an exception . You had to have it from before that . Its two pieces. So you had to have had the tobacco permit when the law went into effect january 18, 2015. So thats step one. Which they did have . Yes, they did. Then, in addition to that they would have had and owned the business for five years prior to the law going into effect. So they had to have owned the business, that permit holder from january 18, 2010 to january 18, 2015 so two steps and both have to be yes. The Business Owner currently have a permit of the business issued in 2014, that permit is still valid or no for that Business Owner if they continue to we heard testimony the permit is it still in escrow or under negotiation. If they dont want to sell they can continue to sell their products and wait eight years . Im trying to understand. They could. If the permit holder that had it wanted to wait it out until there was less than 45 permits the five years doesnt matter anymore . Its specifically the window of 2010 to 2015. Right. They dont do exceptions so now have to wait or the density option. Fundamentally whats going to happen in this city is that as theres turnover in businesses like this, that there will be a natural attrition because anybody who now buys a business that again didnt fit that qualification of having the owner didnt get the original license between the fiveyear window, correct . Correct. And as a successorownerer than any successorowner, the successor to them will certainly not be entitled to get that tobacco license as long as theres over 43 permits active in their area . Thats correct. Thats how the law was written by the board of supervisors for the equity of extreme inequity and that was the design. The sidebar victim is the small Business Owner who got the tobacco license the first time according to the law but lose the privilege of transferring the license undermining the value of their business significantly. Thats an editorial observation. From being the Senior Member on the board ive been on it almost eight years, initially we heard quite a few cases of this. Also as a small Business Owner i was quite appalled but at which point there was a distribution you can see where all the Tobacco Products were being sold in specific districts in San Francisco. Thats a decision the board of supervisors made. Did it hurt Small Business . Yes it did. What do you plan to do if the supervisoral districts change . How will you determine the density in the future the lines change or different boundaries . So the law speaks to the supervisoral district. We would go with what is written in law. So whatever those boundaries would be thats what wed have to abide by. I could check in with council but theres no specific language in our law about boundaries moving. It just says supervisoral district. So if it ended up being five instead of 11. Not so much less but as we do census and if theres population changes so not so much consolidated but direct 5 boundaries could not be the boundaries of the future so something to think of to be equitable to Property Owners to be in a district with no density limit but could not be the case in the future. Just a curse curiosity. [please stand by]. California state and federal constitution. Im not sure how much weight we give to the constitution in 2020, but for what its worth, its a really important requirement, and it has to be met. Its like equivalent to your car being to to you to w for parking past the time you paid for. Due process says there needs to be notice posted in order for you to know if you park in this spot, your car can be towed as opposed to ticketed. Its the same right to property. And i did have a representation from the department of health that permits are decreasing at a rate of one permit per month on average. And theres several methods that the appellants and the previous permit holders can take, they can keep escrow open, they can hold off on the sale, they can just wait it out. But i think its just a waste, the city will be losing out on tax money and theres hundreds of neighbors who have been going to this establishment for almost 30 years who signed letters of support. Im sure you guys got some emails. And lastly, the density is that important, then we got to consider the fact that we are not adding to the density. We are just replacing the name of a permit to a business with another. And i think thats really important to consider, especially when were talking about a quarter Million Dollar investment, for what its worth. And the previous permit holders, hell tell you he did not receive this notice. And it was not signed by him. We can ignore it but its an issue for appeals. Thank you. Excuse me. Did your client also attest he did not receive the mailed notice dated august 5, 2015 . We havent received anything. If there is a certified mail, we would like to see it because he didnt receive it. Can you help me understand something . Your client is the buyer . The buyer, yeah. They want a permit correct. And it was denied. Correct. At the time they negotiated to buy this shop, they were aware of the density requirements, right . They were not aware that it restricted that specific store, because why not . Because there was no record of it. They looked at all the requirements that were 500 feet from a school or church, that was met. But youve said tonight that you dont dispute that this store, this permit that your clients would like to essentially inherit, you dont dispute that permit doesnt qualify for any exceptions. They dont need an exception. Why . Because the amendment cannot apply to them by virtue of the notice that was not given to the previous permit holder. Are you saying the law requires there be an effective written notice this particular density bonus law says we are going to do a notice. If you dont get the notice, say we never managed to give you the notice then the law doesnt apply to you . Absolutely, yeah. Why else would the department go out of their way to make sure they get acknowledgement and receipt of these nices bause they know im not asking you to argue by analogy, im saying does the law say that . Does the law say the density requirement applies unless the Department Fails to give you notice . Of course not. So your clients when they did their Due Diligence, they were aware of the law they were aware of the law. They entered into a negotiation for the shop and understood none of the exceptions apply to this permit. Correct but they also did not know about the restriction. Thank you. Okay. Do you have anything further . Thank you. I just wanted to add that the department had reached out. This is in the phone log in exhibit j that calling the appellant back, asking about the tobacco permit and, you know, giving the appellant information about that they needed, needing to contact them, apply for the permit. The appellant did not do that. And when the inspector had arriveed in november, they were selling Tobacco Products without a permit. So i just wanted to add that piece. And then i think thats all. I have a couple questions. So how accurate right now you said theres 71 locations that are distributing Tobacco Products in that district . Is that what you said . Yes. Okay. And how accurate is that count and how often do you survey that . So we get we update we have an Online Public interactive map of all tobacco permits. That map is updated on a quarterly basis. We get Tax Collector permit records every two weeks. So first we consult with the permit mapping system that we have. If we are getting anywhere near the 45, then staff will investigate using the ttx data and do an initial investigation. We also offer services if an applicant thinks that potentially there is less, we would look into that. So when the legislation took effect, how many tobacco locations were there in that district . In that district . I would have to check. So theres 71 now, the target is 45. And its been in effect for four or five years . I mean, it would be nice to see how many have what the number has gone down to. So we do have archived data, and we have a graph, but its on a citywide level. We have tables on a supervisorial level, but i dont think ive graphed out every district to see the change. So you have no idea . I dont, no. Not since the law was passed. Okay. Thank you. Thank you. Then just as i mean, since the basis of their appeal for your denial of the permit is that they feel that its required to give notification, can you explain how that works from your department . And since the law took place in 2014, and then someone came by in 2017, what was the reason for that to happen . So its not required by law in this law, in many of our laws, to provide notification. We take it upon yourselves at the department to reach out to businesses, to educate. So this is a big change. So it wasnt 2017 that every business was receiving their notification. Every single tobacco location received a visit in 2015 when the law came into effect. So what was inspector doing in 2017 when he went and got employed a sign . He was doing an inspection. And as a followup, so we had change in staff. So as we were doing inspections, we were having the notification again because of the confusion, the constant confusion of change of ownership, who qualifies, who cant, as you all know, it is not clear. So as an additional step, we added another notification as part of inspections. And then this is also given to new permit holders when they first get it. So like they get their permit and then they would get the future restriction. Even if they have fallen to the exemption. Thank you for clarifying that. Youre welcome. To be abundantly clear, sorry, i am going to be redundant but its for the issue of clarity since this is the point which the appellant is hanging their hat. Unlike many activities like a 311 notice because somebody is adding onto their house, unlike a installation of Telecommunications Unit 150 feet around the telephone pole, everybody has to get notice, theres a clear notice process. There was not a clear notice process as a result, created as a result of this law . So the notification went to the current permit holders. We dont know who wants to buy the future businesses. So we wouldnt have their addresses. Of course. We have put all of the information on our website. We have created the interactive map thats searchable by address so you can put any location in in the city that is also part of that information Public Information notification. The question is could i speak . So is it a fair assumption on your part, and assumption is assume and assumption are dirty words in many conversations, or at least they are dangerous words. But it would be the departments assumption, and im not being argumentative, in fact im being supportive, that if a new Business Owner was doing proper Due Diligence, then as far as that Due Diligence, they should learn about the laws which may be in place that might be affecting their consideration to buying a new business. This would be one of the laws. Is that true . Thats correct. Yes. So its the responsibility in doing proper Due Diligence for any new Business Owner, especially where cigarettes are involved or maybe its Liquor License or any controversial license or delicate license, not controversial, delicate license, it would be with responsibility of the potential buyer to understand what they were getting into and the laws that would pertain to them in a transfer . Yes. Okay. Thanks. Sorry. Okay. Thank you. Thank you. Commissioners, this matter is submitted. So i dont see any merit here. The law is clear. The answer to the last question is what the fact is if any of us were hopefully buying a business, we would understand the business that we are getting into, we would do our Due Diligence and understand the legalities and restrictions for amateurs, whatever, legislation is affecting that business, and based the acquisition of the business on knowing that. The process was done according to the law. There was, whether it was registered mail or not, there still was notice. It was a very public process to refine this law in 2015. So i think process was done. And so the laws the law, and i would deny the appeal. I concur. As i mentioned earlier, i was on this panel when we heard multiple, multiple, multiple cases in this regard. Unfortunately its like the taxi cab licenses, the value went down when the legislation was altered. Is that your motion . That is my motion, based on the fact there is a law in place and that law was properly considered. I second. Based on . Based on the law in place and that law was properly considered in the nonissuance of a permit okay. So we have a motion from commissioner swig to deny the appeal on the basis that the law prohibits the permit being issued in these circumstances. On that motion, [roll call vote] that motion carries 40 and the appeal is denied. We are now moving onto item number 6, this is appeal no. 19143, marlene kramers have the department of building inspection. Subject property is 2242 35th avenue, appealing the issuance on december 16, 2019 to gene lau of an alteration permit, violation numbers 201965971, add 11inches on top of existing retaining wall. This is permit no. 2019 11 14 7331. We will hear from the appellant first. Good evening and welcome. Thank you. We need the overhead. Can you lower the microphone please . Or you can go to the other microphone. Its shorter. Thank you. Can i be heard now . Good evening. My name is marlene kramer. I live immediately next door to 2242 35th avenue in the sunset district. Im here to ask you to deny alteration permit number 201911147111 exhibit 1. My reasons for requisting this denial is based on the laus noncompliance with requirements specified in violation 65971. They did not install the window windowed and they worked far beyond the scope. The evidence i share with you tonight will demonstrate how the laus and their hired contractors and workers have taken advantage of over the counter permit processes. Overhead, please. The first sorry. The evidence i share with you tonight will demonstrate how the laus and their hired contractors and workers repeatedly have taken advantage of over the counter permit processes and sfdbi. The first set of evidence i will show you addresses notice of violation 65971. They failed to install the type of windows indicated on their original permit in exhibit 4, page 9. Instead, despite their issued permit, these are the windows they installed. They have no real divided lights. When we complained, the workers glued strips of wood resembling real divided lights. As you can see highlighted in exhibit 5, page 10, the permit holder has had ample time to resolve this issue. It was only when second order of abatement was posted on 11 113 did permit holder toni lee file this permit application on 11 14. The second set of evidence addresses the requirements specified in notice of violation, 65741. This violation is based on construction of a retaining wall completed in december of 2018. In order to construct this retaining wall, and without prior warning in 2017, tons of earth were excavated from under their house and into their rear yard eventually requiring a 3foot 9inch retaining wall. This retaining wall was completed in december of 2018. The permit application transcribed by staff stated this was a replacement retaining wall. Originally there was no wall to replace. The rear yard had a slight slope. These drop cloths are on the ground next to the rear house. I want to also emphasize that excavation was permitted for ten inches and not for over three feet. Our properties are built on sand. During sixweeks of excavation, they were moving tons from sand from their lower level and into their rear yard adjacent to my property, caused my house to constantly shake. I was literally in an earthquake six to seven hours a day, for six weeks. Stress fractures occurred in my walls. In may of 2019, the lau family added another 11 inches and two steps to the previously completed retaining wall, again working far beyond the scope of permit to landscape. In addition, i would like to present evidence related to exhibit 2, page 7, in my brief. It involves a suspended permit from the board of appeals on march 20, 2018. On june 18, 2018, the permit was canceled at the request regarding a new deck at rear stating work was not being done. However, after canceling the permit, to put in a deck, the famine stalled sliding glass doors and second level, deemed part of the rear deck, we submitted a complaint, and the doors were eventually replaced with windows. And now i want to address this original over the counter permit application process by staff at sfdbi. It is in your packet, but i want to highlight the conflicting scrawls, scratchedout mess apparent acceptable by some at d. B. I. I hope the lack of details in this one dismays you as much as it does me, especially when you consider some of the history i just presented. The p. A. Lacks information regarding the notice of violation of front windows. It also has conflicting information regardingarding height to existing retaining wall. Exhibit 4, page 9, transcribed by sfdbi staff describes a permit issued on february 2, 2019 with the same landscape information scratched out on this permit. If this permit dated 11 14 states add 11 inches on top of existing retaining wall. It also states add 12 inches to the top of existing retaining wall. What is the intent of the Property Owners at 2 the 242 35th avenue . This work was done far abeyond the scope of their permit. I am requesting that new permits be denied, and the original permits be followed. Im also requesting that added height to existing retaining wall be removed and originally to the originallycompleted retaining wall in december of 2018. If it is at all within the purview of you as commissioners, please require a permit application that meets the highest standards expected from honest contractors and Property Owners, inspectors should be able to constantly monitor ongoing work by the lau family without awaiting a call from them to inspect work. It has consistently been missing in action unless complaints are filed. Please give me another minute or two. Please request they can no longer take advantage of over the counter permits suggesting work without plans is acceptable. The laus have obviously taken advantage of this since they gutted the entire interior in 2017 on a permit to repair minor cracks, transforming a twobedroom onebath home into a fourbedroom, four and a half bathhouse. Ms. Kramer, youll have more time in rebuttal. Your time is up. Thank you. Well hear from the permit holder, mr. Lau. And we did get an interpreter for mr. Lau. So just for clarity, because normally we double the time if theres an interpreter to 14 minutes. But is there going to be testimony in english as well . Because it will be in chinese. Okay. Great. Thank you for interpreting this evening. Thats mr. Lau and this is the contractor. So who is going to speak . Please start. You have 14 minutes. If the interpreter can speak into the microphone when you translate, that would be helpful. This one . Sure. Or maybe everyone can move over a little. So there was approval for a previous permit. It was approved from march 2, 2020. So the permit for the retaining wall was also approved by the city. If you like, sir, you can use the overhead when you are showing documents. Why dont you go in the center . You can speak into the microphone. Thanks. This is the approval for the window permit that was approved. Can you speak into the mic, even though theres a translator, thats the idea that he has to speak into the mic. So the window was approved and signed off. We cant see that from our view . Can you zoom it out, please . There it goes right there. Thank you. Maybe a little more. Okay. Can you hold it closer . The permit for the retaining wall was also approved by the city. And the permit for the remodeling has been completed. This is dated december 3, 2018. 4324155. Theres a permit thats been issued for the landscapeing. The reason for canceling this is because we want to install the windows in the style of aluminum aluminum. Thats all the permits that i it would be best since you didnt supply a brief, to speak in your own words to what the situation the currently regarding. Please tell me in your words why youre here. Because they want to suspend our permit. And weve been meeting the citys requirement, following the instruction of the city. Regarding the front window, we have been following the requirement of the city in completed work. I think maybe you can let him know that specifically requiring about the retaining wall in the backyard. Maybe he can describe what was there and what is now and what the permit for the retaining wall is regarding. [speaking foreign language] because when we were doing that initially, we didnt expect theres so much soil. And when we added the 41inch, we didnt expect the 11inch, we didnt expect we would need a permit for that addition. Now that we understand this requirement, we have applied for the permit and comply with the city requirement. Okay. I think thats good. And then the department will speak after you, unless you want more minutes. Youll have time in the rebuttal if you have any more comments. Thank you. You can fill out your name and speaker card. We know you, mr. Lau but your contractor. And give it to him when youre done. Thank you. We will now hear from the Planning Department. Batter up. Enlighten me, oh wise one. He never lets me go first. Didnt want to touch this with a ten foot pole joe duffy, d. B. I. So just trying to make sense of all this. We heard from the permit holders. There are different types of permits on this project. What i saw on the overhead was some work on the rear yard. Youve heard me speak before in these types of projects. You can do some work in the rear yard, landscaping. When you get in a situation where theres walls that are more than four feet in height from the bottom to the top of the wall, thats when the permit kicks in. And we call it retaining wall, and obviously some soil got moved from the inside of the property during a previous remodel, which weve ultimately signed off on. If im surmising what happened is there was a permit in 2017 that d. B. I. Signed off on the third of december, 2018 and relocate a bathroom, add one new and a half bathroom, close the light port out. You also had skylights, two bedrooms, two bathrooms, media room, relocate laundry facilities. Replace a water heater and furnace to comply with an earlier complaint. That permit is signed off. So it sounds like they did work on the ground level. A lot of times theyll do that, getting rid of the sand. Youre maybe going to move it into the rear yard. There is a grade in the rear yard, you need to retain that so ultimately permits are required for that. Im thinking thats what happened just from using the permit tracking. I think then sorry to interrupt you. Go ahead. Did they excavate the bottom level . Thats what im thinking add down there . That sounds like what happened. That permit signed off. And theres no there are two active complaints on the property, with regards to the neighbor, i assume it was the appellant or some other neighbor, but basically d. B. I. Received a complaint on the 24th of june, 2019. And after final inspection on a 2017 permit, Property Owners continued to add concrete for the retaining wall in the backyard. It sounds like the 11 or 12inches that got added to that. D. B. I. Went out there, we didnt notice an issue of violation for that work. We did issue a notice of violation june 2019 for a window installation, window observed or single pane. They did get a permit for that. And that permit is signed off as well. So im not sure. Im available for questions. But it sounds like retaining wall, rear yard, they had that for height, and thats why did this permit, to get the height up. If i was a building inspector going out there and you had a wall in your rear yard and said it was four feet, and we could measure it at five feet, we would need it to reflect additional height. Im not sure why they added the height. I didnt get that part when they were explaining it. Obviously they did. I dont know what the appellants objection is in respect to the work apart from sometimes youll hear its a view issue, its light, its whatever. Im not sure what the actual reason for the appeal is apart from that she didnt like the wall. And in regards to the house shaking and any undermining that would have been done, we would expected to have been contacted and dealt with that in field. Im not sure if that happened or not. I didnt check closed complaints. But it looks like from what i gather you might want to ask, i think theyre pretty well done at this property. But this is the end of it. And they needed to theyve obviously added height to a wall that needed a required permit that then got appealed. Again just to reiterate, anything under four feet does not require a permit . From the bottom of the footing to the top. Unless people do some landscaping work. As you know, we have had many, many cases here that involved we see it all the time. We get a lot of complaints on it. Not all work requires permits. Theres about 26 items exempt from permits. We have it documented and retaining walls is number two i believe. So there is a lot of work that you can do. Fences under six feet. The city doesnt charge you for something . Really . So there are exemptions for work. This reached over that point it sounds like. Obviously the first permit they got was over four feet and they added 12 inches. I saw something from the Planning Department that said 1e 12 inches. Im not sure its a big deal, but it could be fixed on some sort of a permit, but its one inch difference. Thank you, senior inspector. A question for this permit, even though the wall the is above the height, is it still over the counter . Whats the review for this if you can describe how permits are handled. Its over the counter approval. Theres no notification approval. It would require drawings from an engineer. You cant add height without a set of drawings. Is this to remedy the notice of violation, so in order to remedy the violation, they need this permit to authorize the work and to this work has been performed but it would get inspected and they did reference two notices of violation. The 5971 notice of violation was for windows. But they put that on there anyway. And 5741 was actually for the retaining walls. But they put two notices on there, but its not a big deal. Its a clerical thing. The other violation was already addressed to a different permit. I believe you said that. So there is some errors in terms of documentation but theres a permit to correct the windows, this corrects the n. O. V. For the wall. And thats those are the two outstanding n. O. V. S for the property . I think youre right in saying that. The permit thats under appeal has two notices that comply with n. O. V. 5971 and 5741. That was for windows that didnt need to be on there but it is. The other was a complaint that someone made about the wall being a little bit higher. So they referenced that on the permit. So it has two numbers on there instead of one. Not the end of the world. The other thing is they point the out in the permed it said on the back of the permit, approve 12inches and then it said 11. That was a oneinch difference. Im not sure thats important but if it needs to be corrected we could correct it with some sort of board of appeals. Does it need to be on the plans if it was 11 or 12 inches . I dont have the plans. We have visited this property before. You were conjecturing why this seems like a simple thing, why we bothering with a fourfoot retaining wall. Weve dealt with many things before that. And you are also conjecturing. It looked like everything was smooth. In testimony from the appellant, the appellant said that this started as a twobedroom addition, and it turned into a fourbedroom addition. And im trying to remember, maybe scott when he comes up can refresh my senior memory. Why did we hear this before . And something thats echoing in the caverns of that senior memory is that there was maybe the problem here is residual from overstepping the bounds in the first initial permit and maybe the concern about the appellant that the behavior might be continuing. Im just trying to figure out why were here for a threefoot wall. I might be able to help you with that. There was some permits counseled after they were appealed. They decided not to go ahead with the deck i believe. Were they at the board of appeals earlier . Yeah. We heard this. The permits were suspended and canceled. They decided not to go ahead with the work on the deck. What i recall, again, in the caverns of my memory, and i really need you guys to refresh that memory with your facts, is i recall that we saw this house before. I recall that there was great fear by the appellant that her house was going to fall down because suddenly there were tons and tons of sand being dredged from under the house, and she was worried that her house was going to fall down because the foundation was undermined at which point i believe we got the duffy lecture on, which we have heard many times before, and i value it tremendously, on undermining the responsibilities and issues related to undermining the next door neighbors foundation. But also, and what i want clarification on is did you find evidence at that point, and its not valid, quite frankly, on this permit, so i dont know why im wasting my time, im just trying to figure out why we are here for a threefoot retaining wall. Straw that broke the camels back. But four feet. But it may have been before that there was an accusation of serial permitting and how a permanent twobedroom expansion got up to four bedrooms. Ive been chatting a lot so scott can look it up and find out the answer so he can brilliantly thats why he went second tonight. The avenues are all over the city, to be honest. People remodel the rooms of the house and dont have the ceiling height to excavate down. Im not going to give you the duffy lecture, but that permit is gone, its signed off already. I heard allegations of cracking in the walls. I didnt see an engineers report in the brief that we would typically see. Was it last week, last month, three years ago . We need to know that. Bringing that up tonight when the permit is signed up i think what happened was we had a permit and in 2018 which was a revision to a 2017 permit, it said interior room configuration, replace two front windows in kind with aluminum clad windows. That permit was suspended in march 2018. And then it was canceled and it was canceled by the appellant, they decided not to go ahead with the work. It might have been heard, and maybe it was supposed to come back in the meantime they canceled the permit. So it did the appeal disappeared because there wasnt anything to hear. I think thats what happened. But im not sure. There was a canceled permit that was originally appealed that ended up not being, the work didnt take place. Which makes sense with the doors going in on the back on the second level and the deck not being built and they put the windows back in, so maybe they didnt want to go through the appeals process and all that. Which some people do. I do see that permit was appealed. That might have been before us. And some time between a rehearing or a site visit or whatever they decided, we are not going to go ahead with this, and they didnt. Theres no deck on the back. And that might become apparent in the rebuttal, because they might know better than us. For me its a simple enough project, and theres obviously issues going on there. I dont know, again, what the basis is for not wanting the permit, apart from you dont want to have someone having land scaling walls in their rear yard. So invoke the ghost of ann lazarus, she would remind us that we are not here to talk about anything else that happened. We are here to talk about a wall. And i didnt look up too much of the past. I was focusing on the permit thats under appeal and the other one. Okay. Thank you. Thank you. We will now hear from the Planning Department. Divided glass. Is that a planning thing . True divided lights. So ill maybe ramble through some of the history of this and hopefully some of it will stick and make sense. From what i can tell, the current owner bought it in 2017 at which time they pursued a series of permits to do various improvements on the property. They did some improvements without permit in 2017 is when complaints started on the property as well. I think there were about 20 or more complaints in the Building Department system. Many of them as inspector duffy noted, closed and two active. There were two complaints that were made to planning, one related to windows and one to interior demolition. The interior demolition was reviewed two years ago and found not to be a violation. The window was found to be an issue. In terms of the window that they did seek a permit to legalize that, but in that permit, which was issued i think early last year, they stated they were going to do true divided lights, which is when you have separate panes of glass. You think of a stained glass window that has individual panes of glass held together. That is not what they had installed. Is that whats required, mr. Sanchez . No. Because that would be very expensive. Its what they sought. What was there before and they were going to do an inkind window replacement. They didnt. They got this permit to legalize that saying we are going to do windows with divided lights. They didnt do that. Then just last week they sought another permit to approve what they have there now, which are windows with they appear, they read from the street as divided, but they are not truly divided lights. It is approvable and it was approved by staff. This is where it goes to, its much easier if everyone were just to be honest and do everything up front the first time around. If we had everything clear, accurate permits from day one, sometimes even like a brief . Briefs help too. Im not saying that was the case here but i think people often get maybe scared of the permitting process, and they dont say exactly what they are going to do. They think they are getting around something. A lot of times you can do what you want to do, you just need to go through the appropriate process. The windows have been addressed by a permit last week. I think the 15day approval period hasnt been completed yet. I think it was the 28th of february. The other issues that have come about, they werent complaints made to planning but i did see issues, just to give context of the series of complaints that were received. There were complaints about the size and height of the fence of being more than 6 feet at all. If its more than 6 feet tall it needs a permit under the Building Code. Its still allowed in the rear yard. I think d. B. I. Closed a complaint saying they had to lower the height to six feet so they didnt need a permit. There was a fence that was more than three feet, and you can have a fence in the front set back. If its solid, it can be no higher than 3 feet. And they have addressed that as well. I think whether its honest mistakes or Something Else, i cant say. There are also complaints about cooking. There are complaints about odor from cooking in the kitchen. And these complaints related to that. The people didnt like the smell of the food being cooked. But Building Department investigated that and found the duct work was appropriate and proper. So theres, again, there are a variety of issues that were raised. Regrettably, we dont have i dont have the plans. There was no brief submitted. I tried to find the plans for this. And they are not available at this point, given that its such a recent permit. So in terms of the discrepancy why the plan says raise 11 inches and it was Planning Department staff that wrote the 1246inch, i dont know if the 12inch, i dont know if that was a mistake or if the plans said 12 inches and then the permit said 11 inches. Theres an unknown there. And maybe the permit holder that has the plans here tonight that they can show and we can get some answers on that. But generally it helps everyone if all materials are submitted. Its a complicated case but two years ago in may of 2018 there was appeal on the deck and also subject to that was the room, part of the room down, that i wasnt here for that hearing. That permit was canceled the week after the appeal hearing from what i can see in the record, so i dont know what transpired transpired. I havent been able to look through it. The scope i saw in the permit would have been approvable over the counter, the deck of ten feet or less. So i dont know why they canceled it. I cant speak to that tonight or right now. Thank you. Youre welcome. Thank you. Is there any Public Comment on this item . My name is constant. Im a friend and neighbor of ms. Kramer. And shes living in that house since 1975. And to my knowledge, shes never had any concerns with anybody else who was her neighbor until this family moved in. And listening to you guys, im like why do you bother with permits . You can always, oh, we are going to write another permit and well follow that permit. Its kind of depressing because her concern is that there were alterations in the permits. And that what they said they were going to do as far as the windows, they didnt do. And then as far as what they were going to do with the retaining wall in the backyard, they didnt do. And they were also planning on having a planter box three feet wide, 11 feet, five inches long. The height is not known. And ms. Kramer is concerned if that is touching her property, she doesnt want it to because her house is stucco, could lead to creating a dampness that would create dry rot, mold and mildew. So shes a wonderful woman whos never complained about anybody and now she has complaints. And shes brought up about these perms and how they were not followed permits and how they were not followed. I dont understand why they were not followed. And i dont understand why you can just get another permit when you are caught violating a permit. Im confused by this whole thing. I would love to hear some answers. Thank you. Can you turn in a speaker card . Next speaker, please. Good evening and welcome. My name is mary blake, im a friend of marlene kramers and have been for quite a while. I think when you hear a history of what happened what you also need is a timeline and a little more information. The permit application for repairing cracks, for Something Like 2,500 was what was approved when the work was done to convert a home from a twobedroom, onebath to a fourbedroom, four and a halfbath plus office plus Entertainment Center home. Then when there were complaints from neighbors, the permit was applied for to convert it too to do the extra work. It wasnt that the permit for that work came first. When the permit for the deck was appealed here, and i did get to be here for that one, it was agreed because we raised the issue a ton. You were not exaggerating. It was tons. We saw the trucks leaving. Tons of earth was removed under the house without signs of a Structural Engineer, without signs of a permit, without signs of a hint of inspection. Following complaints from the neighbors, a permit was applied for and approved 11 inches under the house. A retaining wall that hadnt previously been needed was three feet then four feet. It wasnt we need to remove earth, lets get a permit, lets get people who know what they are doing and look at it. Thats why this is important for them to do what they say they are going to do. It has gotten tiring. Im going to do the overhead. Overhead, please. The permit applied for this said a planter box. And you can see its not a planter box, it doesnt fit within any sort of scope of whats allowable in front of houses, and it touches the appellants home, which if it is a planner box, if it is going to have water in it, its definitely not a good thing. So i have to turn in my card. Thank you very much. One more thing, sorry. The reason that the deck was canceled, we had agreement from mr. Duffy that they were going to inspect the work done under the house when the deck was canceled, that inspection was no longer required. Okay. Did you by chance have any pictures of the work performed prior to being completed . With that ongoing photos that we have done at the first appeal yeah. Because im trying to we are seniors so we sometimes mix the addresses up and im trying to figure out which one this was, to be honest. There were and i actually calculated for the first appeal how many tons were probably removed based on the size of the trucks and how many feet were probably removed. We can bring that back up for you. If you had that handy it would be great, even though its not in front of us, it does have some subject matter. Thank you very much. Thank you. Is there any other Public Comment . Good evening. Thank you for hearing us. My name is riva, im a neighbor on 35th avenue. Ive lived there for six years and ive been side by side with marlene this entire process. I cant add very much to all of her other supporters but i can echo that it has been a catandmouse game where they do work, we submit a complaint, they get a permit for the work they did. And thats gone on and on from the beginning of fixing a crack and submitting a complaint and all of a sudden oh, we are not fixing a crack, we are expanding the livable footprint of this house all the way up to this point. And it is extremely frustrating to continuously go through this. I started out perhaps naively with a lot of trust with the city and at this point i have very little trust given this has been going on for now we are coming into the third year. I would also say you are maybe surmising the dirt removed was going into the backyard. The dirt that was removed was removed through trucks. So the backyard is actually still the back part of the backyard is at its original height. The front part of the backyard because the downstairs has been excavated doesnt require a retaining wall. They subtracted so much dirt that they require a retaining wall to hold up the rest of the backyard. As they continue to add height to the back retaining wall, that will allow them to potentially add dirt at height and require potentially a new fence. The fence would be much higher from marlenes side of the yard. So from their side it may be 6 feet, from her side it could be 8 feet which could impede her sun as that is on the Southern Side of her property. So we have concerns they continue to add height to the retaining wall and we are going to get a new 6foot fence, which is within reason and that would be shading out her yard. So its this continuous back and forth. And along with the divided lights, well, we didnt do it, we are getting a new permit, these are all homes built in the late 1930s, approximately 1937 and have historical value. Some of these homes have been on the San Francisco historical homes and some of the pictures in that booklet as well. So we just have significant concerns and very much a lack of trust of the lau family unfortunately as well as some of the permitting process. Another thing i would like to add is the family has been extremely rude to marlene. They have taken at this point to flipping her off when they see her on the street. And to my knowledge, the wife is calling her a bleeping bword. So that is really also inappropriate. I know thats not something that weighs on this piece but i think its something that i think is valuable that they have not necessarily been Good Neighbors in this. Thank you. Thank you. Any other speakers . Any other Public Comment . Well move onto rebuttal. Ms. Kramer, you have three minutes. Ill speak and think as quickly as some of my friends and neighbors. I would also like to add to this. Overhead, please. Overhead, please. This is my fence. This is the height that they have included in their rear yard. Yes, some of the higher fencing has been removed, but they have not done the rest. I have seen in regards to inspector duffys summary, the board of appeals hearing in 2018 was i dont know how to phrase this. It was canceled. Inspector duffy was going to do some research. But then they canceled the permit so inspector so my appeal became moot and inspector duffy didnt have to present the research to this board in march of 2018. Ive also reviewed some of the more recent drawings by lawrence regarding the front setback and mary just showed you the fence that was put up. They do not include this recentlybuilt fence dividing our front setbacks. I would also appreciate it if you would request this front setback fence be entirely removed. Additionally, the drawings of the threefoot wide, 11foot 5inch long planter box adjoining my property does not include height. I request any planter box not touch my property. Dampness damages fragile stucco, instead of adding muchneeded green space, they are limiting some of it. Given the present state of affairs given f. B. I. Investigations into persons at b. D. I. , im not surprised how the lau family has been able to avoid careful inspections. I would request the representative from the city attorneys office, mr. Rossy, to toward this information to dennis herrera. The time is now. I think he would be dismayed at more information regarding the lau family and their son, kevin lau, who has not appeared this time as his translator, and you may recall, kevin lau was mr. Laus translator two years ago. So i think you helped me refresh my memory. Yes. Would you help me refresh my memory, please . And you have to help me refresh mine too. Okay. Now i think we sat here, and we were discussing the fact that all this stuff had gone on in this house, and there had exactly as described, the building had gone on. Oops, i dont think we got a permit, and then they went back, and they were able to get a what do you call it, joe, when you revision permit. Thank you. And then we all looked in dismay and appalled and became appalled when we saw this huge hole that had been did you go with all the dirt coming out because there was going to be a deck. And it became clear to mr. Duffy that there may be problems related to the foundation. We can all go back and at the film and verify this. Yes, i reviewed that film over and over again. And i believe that there was a great deal of fear in your mind and in your heart that your house was going to fall in because there were no engineering theres no engineering study, there was no plan, and what had happened is in a cavalier fashion, my word, all this dirt had been did you go out without any planning whatsoever had been dug out without any planning whatsoever. And we asked mr. Duffy to study this. And why this comes to a grand halt is they cancel their permit and therefore theres nothing to discuss anymore. So the abuse, alleged abuse, goes unresolved and unstudied. And now i see why were back here, because i wouldnt trust anything either, if that but i dont think you can fault the city, because unfortunately, and joe can confirm this, that if a permit is canceled. Then the game abruptly stops until theres a notice of violation, and they have to go back and look at it again. Well, its ongoing is my point. They have paid the extra fees. They have unlimited funds, shall we say, to go back and get an extra permit and resolve the notices of violations and thats why im here today to, indeed, refresh your memory. And given ive been warned not to say this for fear of reprisal, but i think i have to. And on july is she answering your question or is she continuing her rebuttal . Hold on a second, maam i think we are in the world of continuing the rebuttal. Unless theres how much time . You have two seconds. The rebuttal time is over. Sorry, your time is up, maam. Well save you from your reprisal. Okay. So we will now you can be seated. Thank you. Your time is up. I have a question, though. So what do you want to have happen with this retaining wall specifically . I want the added part to be taken back down to what the original retaining wall was completed and approved of minus the 12 inches is what were. I cant hear. Subtract the 12inch addition, thats what you are saying . Im sorry. Youll have to. Take the 12 inches off, the added 12 inches and you are asking to take the 12 inches off . Yes, the original december 3rd approved 2018 retaining wall. And no longer be able to go through over the counter permit processes, which require no plans form 8. They dont have to turn in plans. They know how to play the game. They have run the red light for three years, and without complaints, the inspectors dont check up on them. And it goes on and on and on and on. Thank you. Can you explain retaining wall of that size is permitted. So under four feet. So the permit was approved. Why shouldnt they be permitted to build a retaining wall of that size, in this case because they have added on to the completed one from december 3, 2018 without a permit. Okay. Thank you. Until a complaint was filed. Thank you. Thank you. You can be seated. Okay. Well hear from mr. Lau. Can someone come forward, please . He has three minutes if he wants to address the board. Does the board have any questions for them . Would you like them to approach . I do have several questions. Okay. So we have a couple questions for them. So mr. Lau, can you come forward, please . Thank you. So mr. Lau, are you aware that one your permit was appealed, you were supposed to supply a brief, either by you or by professionals so that we understand whats before us . [speaking foreign language] im following the instruction of the architect that tell me what to do and i file a permit based on that. Who is your architect on file and contractor on file . And have they been the same people consistently . Toni d. The first contractor was sun ye e tang. Because at this point although what is before us is just the footings in the back thats been added, im really tempted to ask this board to continue this case and ask for Additional Information and plans just so that we can see what the heck is going on there, to be honest. Go ahead and translate that. Because to me, personally, this board frequently deals with people that ask forgiveness rather than permission, and im quite appalled that this has been a continuing situation, and concerned that the rules have not been followed since day one. Im not accusing you of anything personally, i just at this point would like some clarification into what is going on, because evidently you have neighbors, people that live side by side, that whether they live there a week, a month or 40 years, thats their personal space. And by doing construction without permit and not following the rules for multiple years, is very concerning. Everything ive been doing, ive been following the citys instruction and requirements. Okay. Thank you. Does anyone else have any questions . All right. Thank you, sir. Thank you so much. Thank you. We will now hear from the department of building inspection. Questions . Why dont you go finish your rebuttal, and then ill ask you. I dont have a rebuttal. Okay. Do you have plans for this house at all . Do you, on file yes. Have plans for this house and all the construction that has gone on . Yes. Okay. And did those plans compostconstruction or preconstruction. Which plans are you referring to . Any plans. Of course theres permits signed off. And for people to come up here and slur people i work with on a daily basis that they want them investigated by the f. B. I. , im getting sick of it. I looked up who signed up, hes a highlyrespected building instructor. He was working on the transbay as well and certain projects downtown, big projects he was probably floating and signed it off. But im more than happy to go to this ladys house and look at the cracks caused by the damage. Did these guys do the right thing . Absolutely not. Go ahead and take the 11 inches off. I dont think its a big deal but i dont know what the bother is here but im happy to go investigate this for the board of appeals if it makes them happy. The major work signed off in 2018, december 2018. So theres a lot of there has been a lot of permits. When we come here, i did my study on the permit under appeal which was 11 inches, we are happy to go back. If there was a permit counsel and i didnt get an opportunity to go out at that time, there could have been an appeal, a complaint filed with d. B. I. , cracking in someones building next door is a serious issue. If theres cracking in this building, i want to see it. I want to go write a report, and ill bring a Structural Engineer with me. So i asked the question, not to be combative but rather just to establish a fact. I recall when we all sat here, and we all observed that a lot of dirt had been taken out of a previous under a house. And there wasnt necessarily the proper documentation associated with that possibly. Okay . At that point, we ceased the hearing, because of that lack of documentation, because there was concern. And you yourself were going to go out and be the lone ranger to see if there was a problem. Well, conveniently, game over, because the permit was pulled, right . Which preempted any opportunity for you to see that issue. That is, for me, thats not a fault of yours, its just suspect behavior on behalf of the permit holder. But they have the right to cancel their permit. So thats what i think, and im trying to find the nuances and why the appellant is a little freaked out. I get it. And i remember that we were all a little freaked out on that. My followup question is when a situation arises that theres been significant excavation, and a backyard started at one level and then, through what may have been a nonpermitted and unforeseen excavation, which i think is what we experienced and what we were concerned about in the last hearing, suddenly what was a the legal height of a fence suddenly the legal gets changed, because the depth of the ground has shifted, and those things can happen. So what happens in that situation where when the original condition was such that one fence is illegal and then the condition changes cosmetically. I think mr. Sanchez addressed that. We expect people to come in with accurate, truthful declarations on their permits to show changes in grade. We want to see that, we want to see the original grade, the adjusted grade line. And then does that impact heights in yards which you heard the young lady speak about the height of the fence. That should be reflected properly on the drawings by the engineer. Though its not under discussion tonight, we have the also the concern that something was illegally, possibly illegally construction in the front, and this is a, what looks like to me, a fence that separates a one property from another that may have crossed over the Property Line. Whose responsibility have you seen evidence of plans for that . Have you seen evidence of a permit for that . And what happens when somebody might build a fence that may be called a planter that turns out to be a fence that may or may not be on a Property Line . How is the neighbor protected . We open a complaint and investigate it and see whats the issue. If a code violation was cited. I didnt even look at the closed complaints. I can certainly look into that for you as you continue it, and ill get back to her. Im quite happy to go to this ladys house, ill be there at 2 00 tomorrow if you want to meet me, happily, bring another inspector with me. We need to get to the bottom of this. People i work with being challenged here and its not okay for me to hear that. Im sorry. Inspector duffy, just to interrupt you, theres no one on this board that would be challenging anyone from the department of building inspectors. I understand that. When you dont like it, yes or no when i get up here and then suddenly you go that way with it, its just hurtful. So we have a yes and no in d. B. I. , and we had this discussion today on a different case. When you dont like what you hear, you automatically assume, you go investigate. And thats not fair to people i work with. Nobody on this board, mr. Duffy, is interested in unfounded allegations, and nobody on this board is making any decisions based on them. Thank you. I think the issue here is that because the permit holder did not supply a brief, one, you are having to rely on my human brain, first of all. Mine too at which point i think the best case is we cease and desist and continue this case until we get further information. I would love to get to the bottom of this. If there was an appeal and it got dropped and the subsequent followup didnt get done at the right time, i apologize for that but just for the neighbors point of view, never mind the appeals board. If someone at d. B. I. Didnt follow up that there was structural issues, damage to the property, thats not okay with me. We need to look at that. And if thats something we need to look at, i would like to get to the bottom of it. I think these people have gotten the permit and asked for forgiveness later. I just didnt see much about adding 11 inches but i get that the neighbors are upset because they keep adding stuff after the fact. I expect to see an almost finished property when i go there. So what happens . Is this a im interested just in general. If we have a scotts law out there, not that there would be, ever, someone who would consider breaking the law, and im accusing the permit holder of breaking the law either. But if we had an appeal that came in here, and we all noticed, and we have noticed before, that a few rules were bent, if not broken. And then the permit holder says, realizes, aha, ive been discovered, and then they walk in the next, and in this hearing, we had observed in the context of moving the permit forward or not that certain things had to be done, if the permit holder drops cancels the permit the next day, do all those concerns that we had the night before go away because theres no longer a valid order, an order attached to a valid permit application or suspended permit that needs to be reviewed . No, they should have probably still be a followup on it. It is an issue. There could be something there. But i think at that point when the deck permit was in, i believe that that permit for the work may have been a long way along in my opinion. So it might have been the deck may have come later after the excavation had been done. I would like to look up the complaints. But the time the work was taking place in the ground floor to see what we have done or didnt do or were we informed about it, that would be more that i would like to look into and get back to you on that. I think moving this to a later date after your investigation might give peace to everybody. It gives peace to the appellant and also gives peace to the members of the board. How much time do you need . Four weeks or so. Im going to be gone for a week at the end of march. So maybe around the end of april. So lucy will be happy. I can do it around the end of april if you want i can come back. As i say, i do need access to both properties, and im going to need drawings, im going to need permits, im going to need job charts. Well figure out what went on there and see if theres something. If somebody at d. B. I. Didnt do something, im happy to look at that. Thats not what we are about. We want to be there. We want to make sure we are protecting people. And i know they have been in touch with our chief. Im pretty sure he has. So there might be a followup as well. Ill speak to him next week about it and probably myself and patrik will probably go to the property and spend a couple hours and have a good leak. I do expect to see finished rooms on the ground floor because that permit has been signed off since 2018. The work that would have been done. I would be interested if that the work is all what was said and what was done right. And if there was undermining and was settlement under the building, we should see damage on the property. So i want to see that as well. So im going to have to get in to see that too. The buildings are there. Youll have an idea of how low they have to go and how much they have to take out. Its finished. The inspections are cleared. We dont know. For this work, im interested in the fences on the side because it sounds the planter box and look into that as well even though thats not part of what this appeal was about, but we have no problem looking at it. We want general cleanup. I would like very much. Can we move it to the yes. Mr. Sanchez, do you have anything to add . No. Youll take a pass. Ill wait for the next hearing. But thing. Thank you. Commissioners, this matter is submitted. Im going to just one second. Given the language limitations of the permit holder or the ill be very clear. I would really let me finish here, if you would, please. Mr. Duffy said i need to get entrance into the property. I want it made clear in front of us, can the permit holder please come to, with his translator, please come to the podium . Would the translateor please explain to mr. Lau that mr. Duffy, that we most likely are going to extend this hearing to a later time and that mr. Duffy will require, require, that means it is not an option, to gain entrance to mr. Laus home for to inspect anything that mr. Duffy needs to inspect with regard to current and past permits. Very important. [speaking foreign language] okay. So im going to motion it for next month. What does our calendar look like . We can put it on april 15. Thats my favorite day, actually. So april 15. And the reason why, like you say so you are going to come back here on april 15. At which point, the department, whether planning and building or planning or both, will reach out to you to do a site visit of the property just to see the Current Conditions and make sure that its not affecting the immediate neighbors. We are not accusing you of anything, and i apologize if thats the case. Its just because there was not a brief supplied, unfortunately, we have to go to these measures to make sure that everyones happy. [speaking foreign language] thank you very much, sir. So that would be my motion. So that the Building Planning or both, whatever inspections they require, just to make sure that the permitting was properly issued. Mr. Lau can be seated if he would like. Thank you, sir. Thank you so much. So we have a motion from Vice President honda to continue this matter to april 15 so that d. B. I. And planning, if necessary, can conduct an inspection of the subjects property. And did you want to add the appellates property . Correct. For the purpose of inspecting the property is to determine whether just to clarify the permit conditions. To clarify permitting conditions and d. B. I. Will review all permits and complaints. Fuss for clarification, please just for clarification. Ms. Kramer, can you step to the podium for one second . Im making the assumption that you will provide mr. Duffy access to inspect your home and notice any cracks or any impact that has been made by the constructions next door . With pleasure thats all. Yes or no. Oh, yes. Thats all. Thank you. Well be back. Well be back. And we need to check. So ms. Kramer, april 15 fine with you . You are going to come see our Smiling Faces again. I hope my face is more smiley and less saggy too. Well get some clarification. Thank you very much. Okay. So lets make the motion, then i have one more thing to say. So on that motion, [roll call vote] that motion carries 40. The motion is continued to aprit be canceled. Can we take a break, please . Sure. Like about 10, 15 minutes. Thank you for your patience. We are taking a 15minute break. Okay. Quarter to 8 00. Welcome back to the march 4, 2020, meeting of the San Francisco board of appeals. We are now on item no. 8. This is appeal no. 20003, Debra Chatman versus the department of building inspection and Planning Department approval. Subject property, 765mangels avenue, appealing the issuance on december 23, 2019 to david joseph and Marianne Asher of an the ration permit, demolition of existing concrete block retaining wall and associated footing, break them into rubble onsite, rubble to fill a new wall system not to exceed four feet in height, additional work is to install a solid fence, required by planning above gabion wall not to exceed ten feet. We will hear from the appellant first. Ruhr coming up first . Are you coming up first. Can you raise your right hand . Do you swear or affirm the testimony you are about to give will be the truth and whole truth so help you god . Thank you. He we will hear from appellant first. Good evening and welcome. Thank you for being patient with us. Of course. This is a threshold matter. I had plans i was hoping to submit. We had a survey map, i believe how many copies do you have . I have plenty to go around. Good evening, commissioners. Im here on behalf of the appear land, Debra Chatman. This appeal is about safety, Property Protection and protocol. Permit holders characterized as a troublemaker who has spent too much time fighting with her neighbors. The fact is its taken years of pushing, negotiating and Legal Process to convince the permit holders to do the right thing, what they should have done all along. Appellants primary concern is safety, not only for her property but neighboring properties. And as for the permit holders, this is a situation of their own creation. They chose to take shortcuts by undertaking a project without permits or ad Quality Engineering adequate engineering, and now they are trying to take shortcuts again. Appellants family lived at 775mangels avenue since the early 1970s. Some fun photos for you here on the overhead. This is not appellant. For many years, the backyards on the avenue were mostly open to one another as you can see from the photos here. The yards open onto one another. The subject property, 765, is adjacent to an uphill from 775. Since permit holders purchased 765 in the early 1990s they have had a long history of unpermitted projects with corresponding notice of violation. This time around 2007, they embarked on a large backyard renovation project as owner buildings that included multiple retaining walls, installation of hard scape and changing the grade of their yard. Permit holders changed the topography in ways that no one really knows and changed the water flow in ways that no one really knows. They constructed two retaining walls partially on appellants property without the benefit of surveys, permits, engineering or drainage. Heres the photo of the wall in between the two properties. Permit holders were cited by d. B. I. For construction without permits in 2007 as a result of a complaint made by another neighbor. In 2013 for constructing an encroaching retaining wall among other notices of violation. The subject permit is to demolish the existing deficient concrete block retaining wall and build a gabion wall. Heres an example of a gabion wall. They are wire cages filled with heavy stones and their integrity comes from the waiting and distribution of the fill. Using construction rubble is an unusual application because the rubble is not uniform, and purchased fill would be. The weight is indeterminant because its being created for this purpose onsite. Permit holders selected this option because they dont want to pay for the removal of the existing wall that they constructed and this is the cheapest method to avoid it. They dont want to haul the demolished wall off the property. The subject permit authorizes work on appellants property without a permit to do so. So permit holders argue that appellant granted access to her property through a Settlement Agreement. That doesnt give d. B. I. The authority to issue a permit on her property without her authorization. Nor will this permit accomplish its stated goal of abating on the subject property and not to mention the companion n. O. V. On 775mangess. Two permits are needed to abate n. O. V. S. I would like to introduce permit expert Pat Buscovich to complain this further. I was retained formerly. Im here as a matter of a citizen. Im not being confiscated but i didnt want to do it during public and get yelled at. So this is an 8inch thick 11 inches across Property Line. The wall is on the neighbors property. When you do construction on a structure that straddles a Property Line or part of it is on this property and parton this, you do one drawing, get two permit applications and you get this from joe. You get two permit applications. You submit the drawing, you circle the portion on this lot and say this work is being done under this lot and on that same drawing you say under separate permit here and then you do a matching permit application that does the opposite. You submit both of them at the same time. They are interlocking so you have a permit for both. Thats not whats happening here. You got a permit to do work. And its referencing the complaint but the complaint is because you straddled the Property Line. So this is a mess doing it this way. Appellant is not trying to prevent permit holders from removing and replacing their retaining wall. She would like the current deficient wall off her property but its important for the appellant and other neighbors that the wall be soundly engineered and constructed and that the process itself not cause harm. Permit holders are proposing to break up the wall onsite. This raises safety concerns about the the debris, dust in general and in particular, silica dust. I would like to introduce mr. Paul, a Structural Engineer and has reviewed the plans for the property and can speak more about the deficiencies of the wall. In the meantime i will tell you the wall itself has some deficiencies, in particular that the rubble has not been calculated in terms of the weight, so there are deficient calculations with regard to the engineering and the gabions are not low enough in the soil per the plans. So theres a discrepancy between what is being built and the manufacturers plans for how these are meant to be installed. My name is mr. Paul. Im a licensed Structural Engineer in california. I googled the permit application and the plan as approved in the Building Department. And i find a number of deficiencies in the design. Because when you design it, you can test to satisfy criteria like stability. Thank you, sir. Your time is up. Youll have time under rebuttal. Available for questions. Okay. Thank you. Thank you. We will now hear from the permit holders attorney. Good evening and welcome. Good evening. My name is jim, im here on behalf of the permit holders david and Marianne Asher. I wont go into the eightyear history between these neighbors, neither of whom actually reside at the properties but ill give you the three reasons why the appeal has to be denied. First of all, the parties have been here and done this. If we were in a court of law the appeal would be thrown out under collateral estoppel because this was done earlier. This board heard it and unanimously denied the appeal and lifted the suspension of the permit. So nothing has changed with the building cold or with d. B. I. This is still a law that is not going to exceed four feet. So nothing has changed. We unanimously won five years ago. Nothing has changed of my same decision should happen. What weve heard, though is some concerns about this wall that are really unfounded. Spite wall, no. This is actually the best thing in these days and times where everyone is concerned about the climate when youre actually reusing materials and not taking them to the dump and adding to the landfill. So my client is throwing in the towel in terms of civil litigation and agreed to settle the case, take the existing wall down, at his cost, which, by the way, one piece of history, what was there before, and i think i saw it in the appellants brief, was an n. O. V. That said take it on the original construction. The original construction were cinderblocks on top of each other, not engineered, not even put together. So he took that down at his own cost and put this wall in the same place. It encroaches from one inch at one point to 11 inches at another. Its not 11 inches the whole way. Its a minor encroachment. But to get the lawsuit settled, he said fine, ill take it down. The agreement i provided soso you have a history of why we are here, and really the issues at this point arent right. We are in the wrong venue. If you look at the Settlement Agreement, my client had a specific time to get a permit, a permit of his choosing, wall of his choosing, and from that point hes got 90 days to pick a contractor to get structural and drainage dealt with. We are not at that point yet. So for these issues to come up now and say you need to cancel the permit, thats not what ms. Chapman agreed to in court. Thats not what my clients agreed to in court. So i dont know if that makes sense or not, but the point is we are not at that stage. My engineer has responded to mr. Pauls concerns about some of the issues. But the other issues really are for my client in the next 90 days to find his contractor. Hes not going to be an owner builder. Thats in the Settlement Agreement. Hes going to hire a licensed general contractor. Hes going to have an engineer do what an engineer needs to do. And again, all of this is not required for a wall four feet or under. Thats what this is. He is doing this to try to buy peace. So those are the reasons this appeal should be denied. The answer isnt to kick out the appeal. The answer is to let this process go forward. I have a question. So in the settlement was the encroachment agreed upon between both Property Owners . Because he said 11 inches. In terms of the settlement he, we did not dispute that. In terms of the Settlement Agreement youll see my clients agreed to move the wall back at least one incheon to their property, which the plans actually call for twoinches, and when its done, they are going to hire a surveyor to resurvey it to make sure and give everyone peace of mind that this new wall is not encroaching. So at which point this was negotiated in this, and thats why the board in 2015 evidently i was here, that is it took five years to turn into reality . Yes. Okay. Thank you. And of course the obvious question, maybe you just answered it, but i didnt hear it clearly. What comes first, the chicken or the egg. It seems the survey should come before the damage is done. I mean, why risk encroachment in the first place . Well, the agreement that we went through was i understand your point, and i guess maybe i could take that to my client. But the agreement was we build the wall then resurvey it. We have the old survey. We know where the line is. Thats what they agreed on. What we agreed upon. And if he does it wrong, well be back in court. Well be back in court. Can i ask you use common sense. Do you interpret the release in the Settlement Agreement to bar their decision to appeal this permit . Yes. And can you point me in the release . I was reading it, and i was trying to understand sort of which aspect would cover a challenge in a venue or forum like this. Its not expressly stated. What i will say is when we negotiated the terms were very clear that my clients could build any wall that they wanted if they could get a permit. And they got a permit. So the challenge to the permit surprised me. But here we are. I could take it to court and fight it there, but thats going to be more money for my client. It does say any claim whatsoever of any kind in any forum. The obvious outcome is that could be we didnt have the meeting of the minds and we dont have a Settlement Agreement, and i dont think any party wants that. Thank you. This has been going on eight years. Thank you. College money. Thank you. We will now hear from the Planning Department. No . Nothing . Well hear from the department of building inspection. Joe duffy, d. B. I. This address has been pretty familiar to a lot of us at the office. Weve been dealing with it for quite a while. I think i may have done a deposition on this just late last year and a few other staff as well. And the permit itself seems to be fine with what it is accomplishing. I do agree with mr. Buscovich. Typically we just had one, i think we had 99 sandra main. Do you remember . Yes. So traveling Property Lines, we do one set of plans and do two permit applications. So maybe they can address it as a second rebuttal. But there might be something for 775 mangles required to say remove the wall. But that probably is something. But the problem you run into is 775 going to hold that up so 765 can comply . So we dont know. Theres been so much animosity between these people, and and they both live in different places. Can you imagine if they lived next door to each other . It would be like the kl ampets and the is that policy or Building Code . Its because some of the work is on the other side of the property. You would want to document it. Is that your policy or is it required that there be two Building Permits . Any work. You are not going to find that specific language for this specific case, but the understanding is that all work shall take place in any work on a property or a lot shall take place inside that lot under that address. So technically here we have from one inches here to 11 inches thats on the other side, so some of the work is on 775. But it should have been this should have been talked about in the settlement i would imagine. I dont know if it got missed or whatever. It should have been something that both sides probably realized needed to happen. 765 went ahead and got its permit. And maybe theres something needed for 775. What im trying to say is i dont see anything wrong with this permit. May they just need to get the other one for 775. Thank you. Are you done . Yes. Youve got a question . Be my guest. Weve talked about this before which is happened when someone tries to take out a permit for building on your property and you dont know about it, right . I believe when we had that case, your answer was essentially thats a civil matter. We try not to knowingly issue permits for work on someone elses property, but at the end of the day if somebody shows up at your house and trys to do something to it, thats a civil matter, thats not your job. So why is this any different . We have a Settlement Agreement that entitles them to do the construction. We have a Building Permit that is properly issued. The complaint about why didnt you get some other permit seems to be a separate question that isnt really before us. I think there might be a different case from the way im looking at it. We can look at it three different ways here. Typically if theres something adjoining or something going across the a Property Line you typically get two permits for it. I hope i havent misrepresented that in previous cases. I think the ownership of the permit is a different thing. The Property Owner for 765 would maybe get the permission of 775 to obtain the permit on their behalf. Thats the ownership of the permit and permission for one neighbor to get i couldnt on my neighbors property, id need their permission and a letter saying i have the right to obtain that permission. Would the settlement not be permission from the neighbor to obtain that permit . So if the permit holders come in and have this settlement and say okay, we need that other parallel permit, theres the agreement from that neighbor saying we can get it. They went and did the civil thing, got it sorted out, have the agreement in writing that everyone said this is how we want to go forward and d. B. I. Can say great. It needed, the settlement should have said get two permits. That seems to be a technicality yes, it is. If two permits are required its two permits for the same work so this is permission to go forward and so construct this work, do it in a certain time period. They have authorized access to property to do it. I mean, i would see it seems to be the permission that one would need to get that permit for another property. Mr. Buscovich is bringing up that some of the wall is on a different property. My question would be you just said the permit holder would need the neighboring propertys permission to get the permit on that property, correct . 765 has taken a permit out on 775 my question is is not this Settlement Agreement that permission . I dont know. Im not a lawyer. How would d. B. I. Get the permission . What would that look like . Just a letter saying so the settlement, signed from the yeah. It could be. But there is no permanent place yet for 775. Thats the problem. Its a court order, we have to recognize court orders from what i believe. Ive had a few of those before. If a judge said this is what you do, thats what we have to do. I think thats what happened on so what about materials . It says building any wall of any kind that you want, but what about materials . What about the reuse of brokenup cinder block for the convenience that it was already there . Is that appropriate, advisable or permissible . Well, it was approved by our engineers. Okay. I mean it was reviewed by a Structural Engineer. I see that on the writing. So i assume it was. The drawings would have reflected that that it was suitable, unless they missed it. But i assume it got reviewed correctly. And reusing of the materials would seem to me to be fine. Thats what people do now days. Im not an engineer im not a lawyer im not an engineer, but i assume that got reviewed at b. D. I. They can still come back after this and file that complaint with their department that they dont think its structurally sound. We can look at that again and take appropriate action if the permit was up held, for example. And what im afraid will happen here, and i think you are as well is the stumbling block of the permit for the other property, saying how did that stop the work going ahead on that one. Theres nothing wrong with this permit the way it is. I just dont think, we shouldnt be here another eight years trying to figure out why 775 wont give permission to 765 to take the inches away which would be ridiculous. I think well have that discussion later because theres no question associated with my comment. Just to be clear, mr. Duffy, your opinion is that in an ideal world there would also be a second permit but there is nothing wrong with this permit . Correct. Right. Thank you. Thank you. Thank you. Is there any Public Comment on this item . We will move onto rebuttal. Permit holders are arguing that appellant waived the right to Settlement Agreement. The Settlement Agreement doesnt say that. You wont see that stated anywhere in there. Thats not an accident. This is an eventty that was considered eventuality that was considered at the time. It was not the understanding we had in terms of what this means. I think the agreement means what it says in terms of the design and what is going on with this wall. Its distinctly deliberate and appellant did not waive her right to seek oversight of this board. The proposed plans are squarely within this boards purview. We also argue the permit holders have argued they are paying for this wall and appellant waived rights to complain about it because she is not paying for it. But she has provided alternative plans which is what you have before you, those engineering plans are an alternative proposal that have been provided to permit holders many times over the course of the last five years since the last time we were here. The permit was goper five was improper five years and still is now. They dont want to give involved with the civil matter, and that has been is he solved. Here we have a permit application, item number 22, building extend beyond Property Lines, the box is checked no. Thats not whats going on here. There will definitely be work occurring across the Property Line. Its not indicated on the plans. Its not indicated how they are going to remove the existing wall. I would also state that or ask that if board is inclined to approve the permit, we ask the board will include conditions that will protect neighbors from the process such as dust and debris containment and soil testing requirements. I will turn it over to mr. Paul for any last thoughts on the wall itself. So continuing my previous comment that work in concrete will not displace between the pieces. So that is industrialgrade crusher for defining a size, so they can get maximum weight requirements for the wall to slide, prevent it from sliding. And normally from an engineering standpoint, the wall is at least 12inch below finish afraid. On the other side, removing the existing footing, which is like an 18inch below and then they didnt say what kind they will have to fill in the space. I have a question for counsel. So if you have these plans, why were these not in the brief in your package . If they had these plans for years . It did not occur to me that perhaps until later on the board might want to see the alternative proposal that we have been pushing that we sent five years trying to get. The second question is who handled the settlement . Did your firm handle the settlement . Yes, we did. And so are you not happy with what you accomplished . No, i dont think thats an accurate statement. I think what we accomplished and what we were able to resolve was a significant i mean. Because generally, usually when you go and spend that much money and time, that when you have a settlement you dont see another venue like this if its been successfully created. I would point out there was more than one issue in this litigation. This wasnt just about 11 inches, it was about a lot of other things. The last question is in your brief, you state that the one owner lives in hawaii. Did your client live at the property . She does not. Where does she live . New york so we have. Nice. Hawaii and new york. This is wonderful, with all these paid experts. College money. Whats the dust concern . That they are going to be breaking up concrete to create the rubble to fill the cages but there wont be anyone there . There are occupants. I believe at both properties at the moment. The concern about damage to her fruit trees and garden as well. And the alternative design, thats your complaint is you are worried about structural, which i think we have discussed at length, you are worried about you dont like the design, and you are worried about dust, is