Board of Appeals - Regular Meeting

Thank you, Ms. Lamar. I want to welcome those of you who are here in the room and those on Zoom to our Board of Appeals meeting for this evening. I want to bring my colleagues and the public up to date on a matter that we discussed last week, a special item. That was at that time the board voted unanimously 4-0 to direct me and with the assistance of our executive director to write to the Board of Supervisors regarding at that time pending legislation, it's still pending, that would limit the board's jurisdiction over certain city-initiated tree removals. We turned around and crafted a letter,

Ms. Lauer, I'll move the approval of the minutes, but I wanted to make a comment about the part that describes the action that we took in Special Item 5. I'm not going to seek an amendment to what is there, but I want to make sure that as people read it, when we talk about our comments in opposition to the pending legislation as it relates to the elimination of the Board of Appeals review that our action was to oppose that part of the legislation. We did not take a position on the entire legislation, but only sought an amendment. So the language in the minutes is accurate as to the legislation

No, I just want for anyone to look back at this to know that to clarify that the language here is correct. We did oppose the legislation as it relates to the elimination of the board's review, but we did not oppose the legislation itself. So with that explanation, I'm not seeking an amendment to the motion.

Thank you, Ms. Saltman, for your testimony and the materials that you provided. I don't want to minimize your statement or the personal traumatic pain that you've gone through already. That's very clear from the record. But I do want to ask you about Matt Nichols and the Deep Elm construction. Yes. His letter seems to be the most authoritative part of the record, frankly on either side, about the potential safety, risk, and danger. So what I'm wondering about is Matt Nichols, is he an engineer?

Thank you. Okay, thank you. Vice President Soroyan.

Good evening. Thank you for your testimony. A couple questions. So was there ever a discussion about the cost of the tree? Do you think that it was cost prohibitive? Did you ever talk to the department about what an estimate would be?

I understand. And I'm not trying to get you to spend more money, but I was looking at the... I'm looking at the brief for... Oh, my God. Wait. It's the city's brief. And... You know, your pictures show safety concerns of the retaining wall. And interestingly enough, it doesn't have page numbers on it. It says, if the appellant has an engineering report they can produce, the department believes that the Board of Appeals should use it in their deliberation. BUF inspectors are not engineers and cannot speak to this point. Do you have... Has anyone mentioned getting... An engineering report to you?

But I was wondering if in your preparation or if there's a neighbor that's an engineer or anything like that.

Right. And my other thought is the Bureau of Urban Forestry, they're overseen by Department of Public Works. Did they send an engineer out? As far as I know, they did not. Because last week, we had a hearing that the Bureau of Urban Forestry was removing a tree. But then Department of Public Works came to oversee the removal of a tree. So it's interesting that they haven't sent anyone, an engineer, to actually.

Tree inspectors only. Nobody from Department of Public Works. CAROLYN J. That's what I know of. CAROLYN J. OK. OK. Thank you so much. CAROLYN J. Anything else?

Thank you. I just have one follow up, Ms. Haltman. And I wanted to just be clear for the record. You said you had a friend who was an engineer, came out to look at it, and it looked terrible. Is it the wall or it the tree?

Thank you. I see my question or your answer has attracted the attention of Commissioner Lopez and Commissioner Wong, who now also have questions. Commissioner Lopez. Thank you.

Thank you for your presentation. And sorry to hear about the accident as well. I'm not necessarily expecting you to have done this, but I'm just curious in terms of understanding the landscape and where the various city agencies may fit into this issue. But have you been in touch with the Department of Building Inspection at all with respect to the wall? OK. That'll probably tee up another question from me to the department, but thank you for that.

Thank you for presenting. I just wanted a little bit of clarification. So I know that it was mentioned that the Bureau has only come over twice to review the tree. When was the last time that they came to inspect the tree?

Okay. And then the photos that you showed today, were they taken more recently? Yes.

Okay. And then just based on your estimate, I know that this tree has taken a while to grow to this height. Has it kind of stayed at this height in the last few years, or has it actually increased in height?

Yeah. It does look significantly over your two-story house. So I definitely noticed that. I'm just trying to think about the growth pattern and if it's going to continue to grow. But that may be a question.

OK. I will ask that of the city department as well. Thank you.

Thanks. Welcome back, Mr. Murphy. Thanks. Interesting other side of the coin. Last week we heard a case about objections to the removal of a tree.

Yes, we are on both sides of the point tonight. So I'm going to go back to this. I mean, because DPW has a lot of engineers, and would it be possible to send a DPW engineer out? I mean, last week what we heard was that Bureau of Urban Forestry was only able to make a decision on the health and safety of an actual tree, and that DPW would make the determination about the structure surrounding those trees or the sidewalk. Is there any way we could get somebody from DPW? I mean, I do think it's a significant concern that the retaining wall is cracking due to the roots from the tree.

Because the reason, I mean, again, Ms. Saltman is here because I think it's within 10 feet of a public sidewalk that she needs to apply for a removal.

I actually would be sort of curious about having a city engineer come out to look at the retaining wall, since you nicely address it in your report. The other question I wanted to ask or bring up is, it's kind of the flip side of things. I think San Francisco has many tree ordinances, and I'm actually looking at the definition of hazard tree from the Department of Public Works. And it says, hazard tree shall mean any tree that poses an imminent hazard to person or property. The director, here again, is it Ms. Carla, Ms. White? Short. Short, sorry. Yes. The director may determine that a tree is

Is that what your arborists determined? Did they actually write up that it's not a hazard?

But this doesn't seem to imply that it has to be one of those categories in order to, I mean, it says or likely to fall or poses any other significant hazard or potential hazard. So it doesn't equate your definition of fair with the definition of hazard tree is my point.

So the arborist has said that the tree is in fair condition? Yes. Understood. However, I don't think that our code definition of hazard tree contains a definition that encompasses whether there's a determination if the tree is in fair or great condition. It seems to focus on other things, like poses any other significant hazard or potential hazard. That's what I'm saying.

So the arborist did take into account the definition of hazard.

Yes, that's what I'm saying. I mean, you could argue that this tree poses a significant hazard or potential hazard to the residents of the block if it were to fall over. That's my point.

Could they fall on pedestrians? The fronds? Correct.

Okay, thank you so much. But I do think it would be interesting to have an engineer from DPW go out.

Thank you. Thank you, Mr. Murphy. So kind of going down the same path that Vice President Sorin was just going down with you with respect to looping in engineers from DPW, with understanding that we'll see, but it may be that because this is in private property, the DPW engineers say, hey, that's outside of scope. But in that scenario, are there ever situations where you might loop in DBI, for example, if the threat to public safety exists on private property such that there might be a code violation on private property?

Thank you, Mr. Nervik. Can you just repeat the last part of what you said? You don't believe anybody on your staff believed?

Just the pictures, OK. You've described the arborist report on the tree. Yes. But it wasn't presented to us. It's not referenced in the underlying hearing by the underlying hearing officer. So is there a report?

So I guess as you come in new, you review what's there, I would encourage you to consider what is the member of the public going to know or not know in order to not only make their case, but also to feel comfortable with the department's decision about the disposition of a tree one way or the other. Because for right now, You've described a report by an arborist. You haven't seen the tree itself. You're going on what's in the record somewhere, which we don't have.

Well, whatever you're relying on, it would help for the board to know and for the public to know, here's what they found. In the same way that we've asked Ms. Saltman for an engineering report, and the department said, if there was an engineering report, we'd certainly look at it. Well, we would certainly look at things from both sides, both parties, as to what's there, what's not there.

And can you describe the impact this tree has on The house, the block, the neighborhood?

I don't know what you're asking of me. As part of, as I read the department's case, the department says, we have a really small canopy in San Francisco. And we've got this grand plan to increase the canopy. And I'm trying to get a sense as to what part of. The city's canopy. Does this tree involve and what is the benefit? Of this tree. 2. The homeowner. Passers by on the block. The neighbors. Yeah.

Okay. All right. Well, I am taking that from the brief and from what we've heard about the city's plan to increase, recognizing that we have a small canopy, and presumably we need a larger one, and we need a larger one for certain advantages and certain needs. But you've answered what I need to know about this particular tree. And... I'll yield to Commissioner Wong.

Thank you. Similar to the questions that I had before for the appellant, can you talk to me about your familiarity with this type of tree and how quickly it grows? I'm trying to understand if it's one step away from being a good tree. then technically it's also one step away from being a poor tree, right? Like, it can go either way. So I'm trying to figure out for the growth of this type of tree, in your professional assessment as a tree expert, can you walk me through, like, what that could look like in the future?

And then this tree in particular, it looks like it's in the front yard, which is a little bit smaller. So proportionality-wise, based on the photos, because that's what you've seen, how much more do you think that this tree could grow, given the limits of the front yard?

Yeah, I think I would have loved to have a better understanding, like somebody who has actually gone to the site, reviewed it, gave us more of a report. And it looks like the most recent review of this tree was last year. Is that correct? OK. And then I also saw in the brief, there was a mention of denial because you're removing a tree without a replacement. Is that a possibility for the owners to be able to replace a tree if this Mexican Palm is the one that they want to remove. And it sounds like they've planted eight trees on their property since they moved in. So clearly they are tree peop

Okay. And then more, not necessarily for you, but what type of review are we doing tonight? Can I get a clarification?

Thank you. That's the same definition I was using. But my question is, does that even apply to this particular circumstance? You may not be able to answer it.

Thank you. And which is why I brought it up because I wasn't sure if that consideration had come up in BUF's or Department of Public Works analysis. There was no discussion of it. So thank you, Mr. Minardi.

And Vice President Shroyan, if you would yield, I think one answer to your question may be that in the definition of hazard tree includes the tree obstructs or damages a street, sidewalk, or other existing structure. So at least according to the appellant, there is the damage to the wall.

Mr. Murphy, I'm wondering whether the arborist took into account the impact on the wall.

So there are findings from the arborist?

I realize that. Well, what I'm asking for is, is there a finding by the Bureau or by the arborist that the tree will not have a catastrophic impact on the wall?

I'm sorry. Did you say palms or all trees? Palms.

I was just trying to clarify your testimony because the acoustics, or maybe because the distance between you and the microphone, I couldn't tell whether you were saying trees or whether you were saying palms.

And was that one of the findings of the arborist? This palm and this wall?

I'm just asking whether the arborist found that the tree was not causing the damage to the wall.

Thank you Commissioner Lopez I Changed my mind. I'll I'll yield Okay.

I thank you all for your written testimony, your presentations tonight, and the public commentary as well. I think in this case, I will yield to any of my colleagues who'd like to go first. I'll have some comments. But if there are any to anyone else who wants to start, I'd be happy to yield to you. Vice President Soroyan, thank you.

So I think there's three things I'm thinking about. To be honest with you, if we were to deny the appeal, I don't think I have enough information. I think that if we were to grant the appeal, I might have enough information. But I don't think I'm ready to deny the appeal. I've focused on the engineering report, potentially that. I also like, I mean, I think Commissioner Wong, your question about if the tree is removed and the property owner has agreed to pay for a replacement tree, that could be a solution that doesn't seem to have been explored, analyzed, looked into by the city. And Possibly

Yeah, I think that's why I asked the question about the replacement planting, because I understand the San Francisco doesn't have a lot of tree canopy and coverage. It does sound like the appellant is somebody who cares about trees, and they've already planted eight, right? I think I'm in a similar vein as Vice President Sorayan. I would also want to know, like, if there's a possibility to go maybe Google Street View or something where we can see when the retaining wall started to fail and kind of see if that tree is the cause. Because retaining walls, like, over time, there's just degradation

Commissioner Lopez, do you want to proceed?

Sure. Thank you. Just my initial reaction to kind of opening the door Appellants property owners, you know paying for replacement tree I'm a little bit reluctant to go down that path just because I think we've seen over time that the city doesn't have a great record of actually planting the trees that has the money to plant But on on kind of the four corners of the appeal I'm inclined to believe that and trust the report of Buff with respect to the health of the tree. They're the tree people. And I think absent the retaining wall question, I'd be inclined to deny the appeal. But I do think tha

Thank you, colleagues, for the breadth of views on this matter. I see this as a growing nightmare. For a member of the public. Had a terrible unfortunate. Situation with the tree prior to this, which is. At one level, legally, it's not relevant. On another level, it is relevant as to the harm and trauma that she has expressed in her papers and that she obviously has, as she shared with us. My first trial, I've been a lawyer now for 43 years. My first trial was representing a tree that fell on Golden Gate Park when I was a young deputy city attorney. And I know a little bit about this matter, b

Well, I'm happy to hear my colleagues' thoughts on whether there's a replacement or not in lieu fi or not. I'd also hear from the department as to what it would have had it granted the removal, what its position would be. So why don't we start with the department's position on what would What would accompany a granting of a tree removal request? So Mr. Murphy, can you help us with that?

The question is, had On a request to remove a tree, what is the typical, what are any typical requirements on the homeowner to replace it or to pay a fee and whether you might be able to, if you can, opine on what would be appropriate in this particular case if the tree were a granted removal?

Okay. Thank you, Mr. Murphy. Commissioner Wong.

Two part questions. One actually for the appellant. Ms. Saltman, would you be open to planting a tree in that location?

Thank you. And then the other piece, she had mentioned that she already planted eight trees, eight trees since moving in. Could we recognize that as a reason to waive an additional tree planting?

OK. Commissioner Wong, it sounds like we are able to make our best judgment on this matter. The department is, in a sense, leaving it up to us, and they have their parameters. I think we're not in the best position to do that. If it were possible, I would ask the appellant and the department to work out something that's mutually agreeable on whether it's that we could, and as you note, at least from the appearances, this appellant seems to be doing more than her fair share for providing greenery. And maybe that should be taken into account, but I don't think we're prepared to make that kind of

Thanks. Yeah, I'm a little bit uncomfortable with granting the appeal, just because I'm looking at the precedent that this could open us up to. I would say one guy's opinion, I think that this appellant is, I think, extremely conscientious in a way that I haven't seen with a lot of appellants trying to get rid of trees on their property. Many of those are not out planting trees. And yeah. At the end of the day, we still have before us the tree people saying that this is a healthy tree. And I'm also not bothered by the, before I get to that, I agree that this is not the banner performance that

I appreciate your comments, Commissioner Lopez, and even though you're currently not an officer of this board, you certainly add value through your seniority and your experience on these matters because you've given me a lot of things to think about. In particular, I think in terms of the precedent. The precedent that is being set, I believe, is that the department, any department, must present its case and be persuasive to us. In this particular case, on the issue of the wall and of safety, we have a statement from a construction professional. It's not based on. We don't know his qualificatio

I want to recognize, President Trasvinia, your motion to grant the appeal. But what I'm hearing collectively from my colleagues is that perhaps we're not quite there yet. So I would make an opposite motion. I don't know if we need to vote on President Trasvinia's motion first, but I would move for a continuance on the matter.

I don't see anyone who seeks to be heard. I would say two things. One is I will withdraw my motion for now. But I also wanted to say, because I was intending to say this earlier, just to reiterate, that my comments about the department are about the department. They're not about the representative who's come before us tonight. He inherits this case from many months, perhaps longer than many months. But I want to make sure that the message that goes back to the department is in terms of an institutional perspective and not anything about the individual who comes before us. So your motion is now

I'd like to move to continue. And if we want to add to the motion to continue in terms of what exactly we're looking for, I would suggest that we ask for further analysis, perhaps from the city, regarding the safety of the retaining wall. without infringing or creating additional costs for the appellant. And I would also ask for more information from the Bureau of Urban Forestry in regards to if there were notes that the arborist made that perhaps could be shared with the board so that we could have a greater perspective on the report. And Mr. Murphy, I just want to say thank you to you for yo

Point of information, Julie, why do we need this on the 23rd?

I mean, I think it's appropriate to give the department time to answer the question. I think he's equivocated because he doesn't know the answer. I'm happy to give him some time to find out if that's feasible or not. And then if not, we can reconvene this matter and make our decision. Okay. I mean, if the... if they're not able to provide it then that's okay i mean at a minimum he could provide the arborist notes yeah he could provide the arborist notes and if we don't have an engineering report because the city won't provide it or isn't able to that's uh that's fine so mr murphy she's she wou

I haven't. It doesn't matter to me. I would like to keep it as early as possible. We have a member of the public who has been waiting. And it's her house. It's her wall that's in danger, potentially. So the department has, according to the record, has taken quite a while on this. The department should know Between now and September 23rd whether it can do that can do the work and and they should be able to get this done if they're not willing to or unable to Or for whatever reason then we should know in three weeks what what the answer is going to be Okay, so do you want to make I see Commissio

Let me just ask, or you may want to ask the appellant if she is available on September 23rd.

Well, then we need even further delay if we're going to go down this road of continuing because we need both parties here.

Ms. Lamar, just to be clear, it's not just to determine whether they can do it. It's to do it. So if they say, I don't want them to come back on the 14th and say, oh, we can do it. And then there's no time. We need to know if they can do it and do it. If the answer is yes, they can.

You have brought as an issue that the tree is causing damage to the retaining wall. Right. You have your witness providing testimony. We are now giving the... city the opportunity and put in the requirement to give its expert as to whether the tree is causing damage to the retaining wall.

Well, that may be, but we need an answer from them.

That would give the, well, the appellant should have the opportunity to respond.

We have a request for a five-minute break.

YES. I'M DISCLOSING FOR THE RECORD THAT I SERVE ON THE PLANNING DEPARTMENT'S COMMUNITY EQUITY ADVISORY COUNCIL WHICH ADVISES THE DEPARTMENT STAFF ON STRATEGIES TO ENGAGE DIVERSE COMMUNITIES. THAT WORK HAS NOT INVOLVED THE APPELLANT OR THE PERMIT HOLDER IN THIS MATTER. I DO NOT ACCEPT ANY HONORARIUM OR PAYMENT FOR MY SERVICE ON THIS COUNCIL. I do not believe that sitting on the council will impact my ability to be fair and impartial in this matter.

Vice President Cerrone is recognized for a question.

Thank you. I'm sorry, Mr. D. It'll just take a second. So if the appellant has filed for an application to comply with the notice of violation, does that make the appeal moot?

Thank you, Mr. Teague, for providing that context and further information. Can you... I'm looking at the Notice of Violation and Penalty Decision, where it just says at the bottom of page 5, the responsible party shall abate the violation as follows. And Mr. Chen has described that they intend to legalize the UDU, and they've taken the first step of applying for the approval, correct? Correct. What else do they need to do in order to be in compliance?

So it would be obtaining planning approval and then obtaining the building permit.

It's three things, at least. Obtain the planning approval, obtain the building permit, and obtain the CFC. Correct. What else do they need to do? That would complete the abatement. What about the conditional use?

So you're clear with me. I'm hearing you. I hope Mr. Chen and Ms. Chen are hearing you that what they need to do, obtain the Obtain the permit, obtain the planning approval, which they've applied for, right? Obtain the building permit, do the work, and obtain the CFC. And from your standpoint and your expertise, what's a reasonable time for that to give them to make that happen?

If Ms. Chen did not obtain the CFC in 12 months, would you consider that just all things being legal? Would you consider that legitimate progress going forward?

Commissioner Lopez wants to be recognized for a question.

Thank you, Mr. Teague. Just to make sure I'm understanding correctly, the enforcement deadline, would that be then 30 days after today, or when is that?

And so what's the enforcement deadline in this situation since they have appealed?

OK. And just to make sure I understand what you presented correctly, so during that, I guess, post-Day 31 enforcement time frame. The administrative penalties would essentially at the department's discretion be paused as long as they're maintaining their progress on the project and any fees Aside from those administrative penalties would be time and material, which would apply either way. But otherwise, as long as they continue to make progress, the administrative penalties would not be assessed.

Thank you. So in the notice of NOV penalty decision, enforcement fee says $5,476 and some change. So that's what you mean?

I see that. So the $5,000 and change would be owed, but then what you're saying is if they continue the process, there won't be up to $1,000 a day penalty. Correct. OK, thank you.

I'm not sure whether DBI has said anything yet. So I don't have a question based on.

To get to the permit process before the work is done, or?

Right. Would you have an estimate as to how long the entire process would take before the CFC is issued?

Yeah, I have a question for Mr. Chen. I know that you have an architect ready to go. Do you also have a general contractor to actually do the work?

Okay, so the timeline would then, for our understanding, the timeline would be likely longer as you look for a contractor to do the work before that final approval could happen, correct?

And I I have a question for you, Mr Chen. Did you? Did you hear my exchange with Mr Teague about the things that need to be done? In terms of the planning approval. Obtaining the building permit and the CFC. Yes, we're we're pretty aware that's how the process works and and and that those are your responsibilities in order to complete the process successfully.

Thank you. It's taken a while to get to this point. And I'm a little bit surprised but appropriately reminded by the department that there's not much actual work to be done, but there's important work to be done. And those are the three things that we have enumerated. We could go One we could go one of two ways. We could. Decide what's the reasonable amount of time for the work to be done and continue this matter until that time. And and. And at during which there would not be any penalties imposed because it's a continued matter. And ideally, everyone comes back and it's done with approval of

I concur. The first notice of violation was in 2022. So I believe that the appellant has had the benefit of patience for four years. And I think, you know, at this point in time, it seems long enough to understand what their rights are, what they're responsible for doing. And I don't see any particular grounds to grant the appeal. I think they've exhausted their ability to appeal. And we've listened. We thank Mr. Chen for appearing. And I would be inclined to grant a motion, sorry, to approve a motion to deny the appeal.

I want to concur in your statement. I did leave out the option of granting the appeal when I was enumerating the two options. Yes, there is the third option of granting the appeal. I was talking about granting a continuance or denying the appeal. But you're correct. We could grant the appeal. I agree with you that there's not a basis to do that.

Yes. Okay, so on that motion, Commissioner Lopez?

There being no further business, we are adjourned at 718.