Board of Appeals - Regular Meeting

Okay, good evening, and welcome to the January 28th, 2026 meeting of the San Francisco Board of Appeals. President John Trusvino will be the presiding officer tonight, and he is joined by Vice President Jose Lopez, Commissioner Rebecca Soroyan, and Commissioner Robin Abad-Ocubillo. Also present is Deputy City Attorney Jesse Minardi, who will provide the board with any needed legal advice. At the controls is the board's legal assistant, Alec Longway, and I'm Julie Lamar, the board's executive director. We will also be joined by representatives from the city departments that will be presenting before the board this evening. Up front, we have Corey Teague, the zoning administrator representing the planning department, and Joseph Ospital, senior building inspector with the Department of Building Inspection. We also have Gregory Slocum, commercial permit manager with the Department of Public Works, Bureau of Street Use and Mapping. And we expect Kyle Thomas, manager of port security, who is with the Port of San Francisco. The board meeting guidelines are as follows. The board requests that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings. No eating or drinking in the hearing room. The rules of presentation are as follows. Appellants, permanent holders, and department respondents are each given seven minutes to present their case and three minutes for rebuttal. People affiliated with these parties must include their comments within these seven or three-minute periods. Members of the public who are not affiliated with the parties have up to three minutes each to address the board and no rebuttal. Time may be limited to two minutes if the agenda is long or there are a large number of speakers. Mr. Longway, our legal assistant, will give you verbal warning 30 seconds before your time is up. Since we have a vacancy on the board, three votes are required to grant an appeal or to modify a permit or determination. If you have questions about requesting a rehearing the board rules or hearing schedules, please email board staff at boardofappeals at sfgov.org. Now, public access and participation are of paramount importance to the board. SFGov TV is broadcasting and streaming this hearing live, and we will have the ability to receive public comment for each item on today's agenda. SFGov TV is also providing closed captioning for this meeting. To watch the hearing on TV, go to SFGov TV, cable channel 78. Please note that it will be rebroadcast on Fridays at 4 on channel 26. A link to the live stream is found on the homepage of our website at sfgov.org forward slash BOA. Now, public comment can be provided in three ways. One, in person. Two, via Zoom. Three, by telephone. To attend via Zoom, go to our website, sfgov.org forward slash BOA, and under the calendar, click on the link next to today's date, and then click on Zoom link for hearing in the blue rectangular box. If you want to attend by telephone, call 1-669-900-9128 and enter webinar ID 989-4744-2814. SFGov TV is broadcasting and streaming the phone number and access instructions across the bottom of the screen if you're watching the live stream or broadcast. To block your phone number when calling in, first dial star six seven, then the phone number. Listen for the public comment portion of your item to be called and dial star nine, which is equivalent of raising your hand so that we know you want to speak. You will be brought into the hearing when it is your turn. You may have to dial star six to unmute yourself. You will have two to three minutes, depending on the length of the agenda and the volume of speakers. Our legal assistant will provide you with a verbal warning 30 seconds before your time is up. Please note that there is a delay between the live proceedings and what is broadcast and live streamed on TV and the internet. Therefore, it is very important that people calling in reduce or turn off the volume on their TVs or computers. Otherwise, there is interference with the meeting. If any of the participants or attendees on Zoom need a disability accommodation or technical assistance, you can make a request in the chat function to Alec Longway, the board's legal assistant, or send an email to boardofappeals at sfgov.org. Now, the chat function cannot be used to provide public comment or opinions. Please note that we will take public comment first from those members of the public who are physically present in the hearing room. Now we will swear in or affirm all those who intend to testify. Please note that any member of the public may speak without taking an oath pursuant to their rights under the Sunshine Ordinance. If you intend to testify at any of tonight's proceedings and wish to have the board give your testimony evidentiary weight, raise your right hand and say, I do, after you've been sworn in or affirmed. Do you swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? Okay, thank you. If you are a participant and you're not speaking, please put your Zoom speaker on mute. Commissioners, I just would like to announce that for the record that item number six, the rehearing request for appeal number 25-036 at 1942 and 1960 Folsom Street has been withdrawn by the appellant. Consequently, that matter will not be heard. So if you came here for that, you're free to leave and also free to stay. So we are moving on to item number one, which is general public comment. This is an opportunity for anyone who would like to speak on a matter within the board's jurisdiction, but that is not on tonight's calendar. Is there any member of the public who wishes to speak on an item that is not on tonight's agenda? I don't see anyone on Zoom either or in person. So we're going to move on to item number two, the election of the officers. Article 1, section 1 of the board rules requires the annual election of officers at this time of year. Thank you, President Trusbini and Vice President Lopez, for your help and service this past year. So we will be starting with the Office of the President. Are there any members of the board who would like to nominate a colleague or themselves for the Office of the President?

Yes, I'd like to nominate current President Trasvina for another term as president.

OK. Are there any other nominations for this? OK. And President Trasvina, are you willing to serve another year?

Thank you. I want to thank my colleagues. It's an honor to serve. Pending the outcome of the vote, I would be honored and happy to serve again as president. Thank you.

OK, thank you. So is there any public comment on the motion to nominate President, to elect President Tresvena, to re-elect him into the president's position? Anyone in person? I don't see anyone on Zoom. So on that motion by Vice President Lopez, President Tresvena?

Yes.

Commissioner Soroyan? Yes. Commissioner Abad?

Aye.

OK. That motion carries 4 to 0. Congratulations. We are now moving on to the Office of Vice President. Are there any members of the board who would like to nominate a colleague or themselves for the Office of Vice President?

Yes. I'd like to nominate Commissioner Soroyan for the position of Vice President.

OK. And Commissioner Soroyan, are you willing to serve in this capacity? Thank you. Is there any public comment on this item? I don't see any public comment on Zoom or in person. So on that motion from Vice President Lopez to elect Commissioner Soroyan to the vice president position. President Chesvena?

Aye.

Commissioner Soroyan? Commissioner Abad aye that motion carries four to zero and congratulations Everyone.

Thank you Okay, so we're gonna move on to item number three Commissioner comments and questions Thank Thank You miss Lamar and first I want to thank Vice President Lopez for his fine service as vice president over the past year and his continued service as a respected and knowledgeable board member, and I look forward to working closely with Vice President Soroyan in her new role as Vice President. We have a number of items on the agenda tonight, but I do want to bring members of the public and my colleagues up to date on a matter that we took up under advisement at the last meeting regarding proposed legislation that would restrict and reduce our jurisdiction over certain permits. We heard a lot from members of the public. We've seen a lot of emails and letters. Similar emails and correspondence has gone on the public record. to the Board of Supervisors and elsewhere. I want to just report that as we have taken under advisement, we have taken those views and others and had some good conversations with key people on this throughout City Hall. And we will continue to do so. But I wanted to bring people up to date as to where we are. And I appreciate all the public interest and correspondence that has been received. Commissioner Lopez.

Thank you. I just wanted to note that I was sorry to miss the last meeting. I'm sorry to miss any meetings, but regretted the last meeting in particular because I missed the first meeting of our newest addition to the board, Commissioner Abada-Cubillo. And I just wanted to say your reputation precedes you, and I'm very much looking forward to serving alongside you. Thank you.

Any further comments? Okay, is there any public comment on this item? I don't see any, so we're going to move on to item number four, the adoption of the minutes. Commissioners, before you for discussion, possible adoption of the minutes of the January 14, 2026 meeting.

I move to adopt the minutes of the January 14, 2026 meeting.

Okay, is there any public comment on that motion? I don't see any. So on that motion, Commissioner Lopez? Aye. Vice President Soroyan? Aye. Commissioner Abad?

Aye.

Okay, that motion carries four to zero and the minutes are adopted. So we're now moving on to item number five. This is a special item, Board of Appeals budget priorities for fiscal years 27 and fiscal year 28. This is an opportunity for members of the public to provide the board input on budget priorities pursuant to section 3.3 of the administrative code in advance of the board's consideration of fiscal year 27 and 28 budgets. So there is no discussion or action by the commissioners. Is anyone in the room? Would anyone in the room like to comment on the board's proposed budget? Anyone on Zoom? I don't see anyone. So we will move on. Commissioner?

Ms. Lamar, I don't want to comment on the substance of what has been presented in the special item, but I do want to help elaborate and explain to the public. This is a process that we want to hear from members of the public about our posted budget priorities. There will be an opportunity at a subsequent meeting for us to discuss it. Usually we don't get any comment, but it's certainly something that if people want to take a look at at the next subsequent meeting, Let it let us know we certainly want to hear that Obviously you can read the newspapers and you say it's a limited budget year But it's certainly important to have public comment on this matter. Thank you and vice president Soraya

I actually have a question about the budget, more of a point of information. Is that appropriate at this time?

A substantive question? That wouldn't be appropriate. But you have a procedural question about when we'll hear it? It's about the estimates for this board surcharge. Do you have a general? I think I think we should wait for the discussion in February. I'm happy to talk to you offline, too Okay. Okay. Thank you So we are now moving on as I previously mentioned item six Has been withdrawn so we're gonna move on to item number seven. This is appeal number 25-0 4-0 and SAVIOR MICKALEF VERSUS SAN FRANCISCO PUBLIC WORKS BUREAU OF STREET USE AND MAPPING. THIS IS A REVOCATION OF A STREET VENDOR PERMIT APPEALING THE ISSUANCE ON SEPTEMBER 18, 2025 TO SAVIOR MICKALEF OF A PUBLIC WORKS ORDER. THE PUBLIC WORKS DEPARTMENT REVOKED STREET VENDOR PERMIT NUMBER 250012 BECAUSE OF A HISTORY OF NONCOMPLIANCE AND VIOLATION OF CITY RULES AND REGULATIONS BEGINNING ON OCTOBER 7, 2023. THIS IS ORDER NUMBER 212110. Note, on November 5, 2025, upon a motion by President Trasvina, the Board voted to continue this matter to December 17, given the late hour. The Board at that time further asked the parties to submit briefs addressing the following. One, the notice provided to the permit holder for the underlying hearing and the Board of Appeals hearing Two, what transpired at the underlying hearing. Three, the process of the hearing officer's recommendation to the department, including what was communicated to the permit holder at the underlying hearing. Four, the notice given to the permit holder after the hearing officer made a decision. Five, whether suspension can be imposed instead of a revocation and the impact a suspension would have on the permit with an explanation of the logistics of the suspension. And six, logs of all communications that Public Works had with the permit holder about the revocation hearing process. This matter had to be rescheduled twice due to busy calendars. And here we are today. So thank you, everyone. Welcome, Mr. Michalak. You can come forward. You have seven minutes to address the board. Let us know if you need some help. I think that microphone will work for you by the laptop.

This one right here?

Yeah. Is that fine? You can use either microphone, whatever you prefer.

All right. And before we get started, I just want to thank all of the parties involved in this matter for accommodating our schedule. We've had a lot of matters over the past couple of months, and I appreciate your being able to be here today. Thank you.

OK, thank you. So whenever you're ready, you can begin. You have seven minutes to address the board. And maybe can you help them adjust the microphone?

OK, I'm fine. Well, I got documents. This started, I've been a vendor since they opened up the stadium at Pac Bell at that time. Now it's Oracle Park. You know, outside vendors, we've all been there for the guys that sell the souvenirs. We've all been there for a while, and we all had our own spots. When I met the person from the port, Kyle, he told me that his job was to close one part of the stadium up and move those people somewhere else, right? Because McCovey Cove part of the stadium was closed. For his job, he told me that's what he was supposed to do. So he brought four of the vendors there and brought them over to the side where I sold, which is the opposite side, left field side, on Embarcadero by Pier 30. and you know by high dive underneath the bay bridge and i said okay well we could work it out you know so he put two people there and he says hey you didn't sign up for the the spot uh we have you have to go to dpw and sign up and everything he goes i said so what do you want me to do he said uh well uh Go ahead sign up go on the other side for a month until you sign up and and you're good for next month so I did that and Then when I get there, it's like a lottery and he doesn't tell me everything what to do in advance He just told me go do that for a month come back and now it's like a lot of you for every day of the game so I I figured out and I did the lottery thing and I And it's like every couple of days. And then the next year, beginning of the season, I go out there. I try to get the permit. They say, hey, they have a list. And there's a few people that he doesn't want to get permits. And I said, OK. So they said, wait a week before and see if you're on that list. And they said I wasn't on the list. And beginning of this last season, It was Fan Fest before the game season even started. And I went out there to work, and here comes four police officers, and they put yellow crime tape all around my spot. And I'm going like, hey, what's going on? He goes, well, we're taking all your merchandise. You don't have a permit. I said, here's my permit. They gave it to me last week. I was trying to get it a couple months ago, but they said they had a list. And they thought I was on the list, but I'm not. So here's my permit. And they got crime tape. I'm selling out there. I've been selling out there for over 25 years since they opened the stadium. And I know fans. And they know me for years. And I know their family. And they're going, what's going on? Crime tape means somebody got hurt or shot or something. And I'm going like, I don't know, these people are trying to make a big thing out of it. I got my permit and I got my booth, but he writes me up for something. I had a couple of people helping me and they left something on the cement and they gave me a parking ticket and I was still unloading. But I just try to work and I've been working with these people for 30 years at all these games, my friends that worked on the other side of the stadium. We get along and even his people that work for him, they say, I see you guys all getting along. So they put us all three of us in one side where I've been working by myself and for the whole year. And we got along and it's kind of difficult to make money. They have the same items I have and we're all three next to each other, but we worked it out. And it's just, you know, it's been difficult. The other guy that was on the other side went to the appeals court. And they granted him back over there. And that's on McCovey Cove. So he was one of the five people. And he's back over there last year. So I'm hoping that maybe the board will see that these two people can go other places, not next to me. I've been there for 20 years, 25 years. But one of them could stay there because he has different items. But the other one shouldn't stay there because we have the same items. So I'm just asking the board maybe they could see what happened to the other guy, because he's been there for 25 years. They granted him his space back on McCovey Cove. And I was wondering if the board would grant me my space that I've been there for 25 years back. And the other person could be next to me. And the other three people are all on my side. So all five people came to my side the first year. And I know it's a new program, and you've got to work kinks out. But I don't think it's fair to me that all the other three guys are next to me. One guy could stay. But the other guy has the same items I do, and I've been there since they opened the stadium. So that's what I just got to say to the board. Otherwise, I know it's a new program, and I'm trying to follow the rules. It's kind of difficult at the beginning of the season last year, there was a guy selling hats in front of us for $5 each. And one of the guys from the port says, hey, we're going to get rid of this guy. But he stayed there the whole season. It's like, okay, we're trying to make money. It's difficult that there's three guys selling similar items and we're right next to each other. It's difficult to make money. But you got another guy that's been out there every game, 80 games a year, right in front of us selling hats for half price. So I'm just saying, I know it takes a while and we're all trying to work together. I know the guys that sell on the other side that were next to me,

for years and we get along but that's all i gotta say okay thank you i don't see any questions at this time so we will now hear from public works you can okay thank you thank you sir

Can you hear me OK?

Yes. Thank you. Welcome. You have seven minutes. We won't start the clock until you're ready to go.

All right.

I have some slides I prepared. Sometimes people lift up the laptop. I don't know if you're fine.

Hi, my name is Gregory Slocum. I'm the commercial permit manager with Public Works. I am here to present appeal 25040. This was continued from November. We had two street vendor cases that were before this body, and there were some questions. We had provided a brief for the November hearing, and we were asked to provide a supplemental brief that provided clarity on six topics. The notice provided a permit holder for the underlying hearing and Board of Appeals hearing. What transpired at the underlying hearing? The underlying hearing, by the way, is a public works hearing. That was a public hearing that occurred in August of 25. The process of the hearing officer's recommendation to the department including what was communicated at the public works hearing. The notice given to the permit holder after the hearing officer made the decision. And then additionally, we had whether a suspension can be imposed instead of a revocation. and the impact of what a suspension would have on the permit, as well as logs of all of our communications that we had with the permittee about the revocation process. We have provided a supplemental brief that includes the requested information. I can also say in the course of examining our materials, at no point did our process run afoul of our typical process, which is to say there is a defined process for public works hearings, for noticing, and for recommendations and decisions. And in the course of examining these policies, it was found that our staff followed them. So today, I am seeking and I'm asking to uphold the revocations of the appellant street vendors permit. Public works in the port and my colleague Kyle's with me here today, undertook 10-plus enforcement actions between October 23 and July 2025. Enforcement actions can be verbal warnings, they could be written warnings, and they can also encompass formal notices of violation. The appellant committed four violations within 12 months per Section 5911 , which reads, in addition to any other authorized enforcement activity, the director may revoke or suspend a vendor's permit for the remainder of its term upon a fourth violation within 12 months. So our initial violation actually, I believe, dates back to May of 24, and that's likely the FanFest comment that was made. And then we also had additional enforcement action in August of 24th. So actually, in total, there were, I believe, six violations. We require four within 12 months. There were subsequent violations in March of 25, in July of 25, in July again three days later. and then on the 13th as well. So the nature of concerns have been varied. Violations have included selling alcohol without a license, vending without a permit, which was remediated through obtaining a permit, and selling counterfeit goods. There are two images that we've included One is from July of 25, the upper image. The lower image is more significant. This is August of 2024. And you may notice that concrete bench, which I'm told is approximately 60 feet long, covered with merchandise. The permittee was frequently exceeding the scope of a permissible vending setup. When there are materials and merchandise on that bench, it precludes any public use. You'll notice on the bottom of this slide, there are three squares. And those reference the defined spaces that the port has designated for vending. And then to the left of that, you'll notice the bench where the appellant had been setting up merchandise to vend, despite repeated warnings or requests not to. The justification for this enforcement, the appellant ignored multiple verbal warnings. They continued vending citations. At one point in time, they were asked to break down and move, and they were told that the port security would be back shortly. Port security came back two hours later. The setup was exactly how they left it. They asked why it had not been broken down, and they were told, we've been too busy with customers to follow the direction we received. This noncompliance undermines fair vending practices. And then to the board and the service of public interest, upholding this revocation encourages lawful vending. And it also protects public space and pedestrian access. As indicated, we have a 10 by 10 allowance over there. The bench that they were setting up on is like 60 feet wide. So it's not... barely exceeding the scope it's substantially exceeding the scope and There's also hope that by upholding this revocation. We may defer deter counterfeit sales of merchandise In conclusion, the appellant's conduct meets revocation criteria. They had four violations within 12 months, which, as enumerated in the code, is a basis of revocation. Then they had two violations that preceded those four. Public Works, therefore, acted within its authority, and the board should affirm the permit revocation. Based on evidence provided by the port we're seeking to maintain the revocation of the permit due to non-compliance article 5.9 That will conclude my remarks, but i'm happy to answer any questions you might have

Thank you. President Ciasvini has a question.

Thank you for your presentation. I'm going to have a series of questions and I want to encourage my colleagues to hit the request to speak button because I don't want to take up all the time and I want to make sure they have an opportunity and I can come back and ask further questions. When we asked for supplemental briefing, we focused on the issue of did Did the vendor have adequate notice? And as you know from being here and making presentations before, we're concerned about due process. So we're not, we are, and in the words of our vendor earlier, he said, hey, what's going on? That's kind of the question of due process. And your presentation focuses on we followed the process that we always do. We followed our rules. For me, as I look through the 329 pages that were presented for this case, my questions are about due process, about notice. And I focus on just three pages. So I don't know whether you have them up or available.

I have a hard copy in front of me.

Well, it's page 52, 55, and 59. Page 52 is the, I can give you the page number that is written on there. It is the public works order itself. 55 is the statute or the ordinance. And 59 is the chart that your staff presented. that encompasses the violations. So on the issue, it would help if you have it up. If we can get up on the screen, that would be helpful for my colleagues. But they have access to it. Page 52 is the public works order. 52. It's Public Works order number 212110.

Thank you for your patience. I have it in front of me.

Thank you.

This is order 212110, is that correct?

Yes. Dated September 18, 2025.

Yes.

And this order is ultimately presented to the vendor notifying him that the department has reviewed the case, correct?

So this order is issued following the public hearing that the appellant is invited to and essentially is an issuance of our director's determination following that hearing.

What does the director? So is this a hearing officer's determination, or is this encompassing what occurred in the hearing?

The latter. And you may notice I'm looking, but this is executed by our director on the second page of the order, 53 of.

So is the director the hearing officer, or is it a different person?

It's a different person. The hearing officer represents the director's office. They oversee the case. And this is all outlined in the procedures that we sent you. This is an official procedure. And then they provide a recommendation to the director. The director has discretion, as outlined in the code and as referenced previously before this body, to make their own determination.

They may- Does the director hear only from the hearing officer or from the vendor as well?

The director, I can't make assertions on their behalf. I'm not omniscient, but I can tell you that they would entertain any public correspondence, or if someone reached out to them, they would have an equal avenue therein. So if an appellant, I've had many instances in which appellants or subjects of public works hearing engage the director directly.

And how do they know that that's their right to do so?

the same they would emailing anyone else. It's not a part of our formal process. There's nothing to discourage them, and there's no formal protocol for encouraging them. It would be no different than a member of the public seeking to address the president of the Board of Appeals to that effect.

OK. And in this order, It describes the public works presentation in the third paragraph, rather than the second paragraph, with some specificity. All it says for the appellant's presentation is the appellant spoke, and two members of the public commented. without saying what the appellant's position was. My question is, how does the vendor know on what basis the decision was upheld?

I think it would be the basis of noncompliance in the history that was asserted in the second stanza. Public works staff provided a history of noncompliance and violation.

But do they ever know whether the hearing officer or the director doubted their credibility or said, everything you're saying, we believe you, vendor, but it's not in compliance with the law?

I don't know how to answer that respectfully. You're asking me to speculate if a third party held doubt in their mind to any effect. That would be very challenging for me to quantify or articulate to you.

Yes. I was just about to say the same thing.

So the hearing, for what it's worth, is open to the public and then additionally is offered to this body. It's available online. So if anyone was curious as to what had transpired or what the contents of the hearing was, it's accessible to the public. if it's helpful for any situational awareness on your part. I can't really speak to the doubt that a third person may or may not possess.

Right. That's what I was hoping. That's the point I was trying to get to. So on page 55, we have the ordinance. And the ordinance is very specific. It's the Part C. It's broken down into two branches, let's say. One is for violations other than lack of a permit. And then the second one is vending without a valid permit. Correct?

Yes, I believe so.

So C1 is for violations that have something to do with the vending itself, there's a progressive path. First violation is 100. Second violation is 200. Third violation is 500. Fourth violation is, in a sense, why we're here, because there was a revocation. In contrast, the other branch, is for lacking a permit. And that is a separate track, 250, 500, 1,000. And then after that, it's presumably another 1,000. And each has to go within 12 months. Am I understanding it correctly so far?

When you said 12 months, you mean four violations within 12 months. Is that what you were asserting?

Right.

Then I believe you're understanding it correctly.

OK. And so it's four violations of something other than lack of a permit that brings you to potentially revocation.

Yes, and I believe in the original brief, all of those violations are enumerated and referred to them in an itemized fashion.

Right. Well, you have it on page 59. You have your chart prepared by someone in the city, correct?

So this is a document. Kyle, does this look familiar to you? Yeah. It's a document that the port prepares. One moment, please.

We could share it on the screen.

I need to look in the original brief one moment. So the original violation in August of 24 that constitutes one of the first of four was for two issues. It was for vending without a permit, failure to provide proof of merchandise, and then refusing to cease vending. So to that effect, that first violation would have straddled both of those sets of violations that you referenced. They did three things wrong. They got one ticket for it. Of those three violations, one was for vending outright without a permit, and then two had to deal with vending merchandise without proof of ownership. And that's impermissible in the program. And then additionally, that 60-foot bench that we referenced was covered with merchandise, which would exceed the scope of a permit, even if you did have one to vend there.

So are you saying that One of your inspectors can go up to someone and say, oh, I see all these things wrong. You've just committed four violations. Or is that one violation?

They would issue one notice of violation, and then they would cite the multiple rules that it ran awry of. I would want to take a look at the original notice that was actually issued. And I don't work in inspection, so I don't want to make an assertion on their behalf.

OK. So I'm sorry. You said the first one was August?

They had multiple encounters prior to August. But if we're timelining the 12 months, four violations within 12 months, then that clock starts on August 15, 2024. Prior to August 15, 2024, they received a ticket for vending without a permit in May. refusing to relocate or cease vending right but and then prior to that they received additional verbal warnings and then prior to that on April they received a written warning which requires them to obtain and and display a permit in April they were cited for unpermitted vending and then prior to that and October the California ABC cited them for selling alcoholic beverages without a license at Pier 33. So there's one two three four Violations I have five violations between October 7th 2023 and April 24th

OK, but your ordinance, your job, the law that you are enforcing talks about four violations from the date of the first violation. And you just told me that the first violation was August 2024. So whatever happened before then, while it's bad and we don't want to do it and you guys go out and educate people about how not to do it, doesn't really relate to this track of one, two, three, four, and you're potentially at revocation. Correct?

Incorrect. Because that history of noncompliance, one of the questions that was raised last time was distinguishing why we would revoke versus suspend. And so if you have a history where we have four violations before we've even run the clock, that would, again, inform revocation versus suspension. So I do think that while they predicate the statutory period outlined in the code, they are not at all inconsequential. And it also demonstrates a pattern of outreach and a good faith effort on the part of our inspection and enforcement staff that they're not targeting enforcement, that they're not being arbitrary or capricious in applying their enforcement. that they're seeking to educate, that they're seeking to inform, and that they're seeking to guide a change in behavior for compliance, which we did not see in this case.

I don't know how anybody knows that, but I'll take you at your word that it's written somewhere. But isn't that relevant only when you get to the fourth violation? Then when the director is using his or her discretion about revocation, suspension, doing nothing. That's when you load up and you say, oh, well, look at the bad history going on here. But you still have to get to four violations after August 15. From what I'm reading, it says,

Yes, so those were all enumerated, those four violations, after August 15. They happened on March 8. They happened on July 9. They happened on July 12. And then the fourth and final one happened on July 13. All is enumerated in the original brief and all referred to with corresponding titles, i.e., fourth notice of violation, third, second, and first.

OK, so I'm looking at your chart on page 59. Presumably. If I'm understanding correctly. First violation August 15th, 2024. $100 fine. On your chart it says $500. For a police case and. Well, it's just a citation of $500.

For one of those, they had a van parked on the sidewalk. So in addition to being cited.

Does that count as one of your violations?

No, but it might explain why there's an accessory citation for that date.

Well, no, I realize that the police were after him for parking on the sidewalk. But a first violation is supposed to come with a $100 fine. And I don't see that in your record. I see $500.

There are multiple citations dating back. And then additionally, some of those citations were issued.

We're only talking about this date. You told me earlier that it's one violation, one notice of violation with multiple charges, but it's one notice of violation.

I said I'd have to look, and I told you I didn't work in inspections and enforcement. The other question that I would have, and I would defer to our inspections team, is whether or not the violations, if you've been warned once, if that impacts how they assess fees or anything to that effect. If you were issued a correction notice but not a formal notice of violation, and you were issued multiple correction notices, does that at all inform how they assess a violation? If you wanted more information on that, we could get it for you, but it would require us to reconfer because I'd want our inspection team. Kyle helps out with the port and oversees a lot of inspection, but wouldn't be responsible for our notices of violation.

So let's leave that aside. And again, I don't want to dominate all the time. So when is the second violation? After August 15th.

Okay, I'm going to repeat myself. August 15th, first violation. March 8th, second violation. July 9th, third violation.

Okay, let's stick to the second violation.

July 12th, fourth. And then we had a subsequent one on July 13th.

Right, so the second violation, you said, is March the 8th.

So if you look at the last four dates, they all occur within 12 months. And then additionally, we have one on the 15th that predicates that. which is when we started the clock. So really, by doing your math, we have five within 12 months.

I'm not doing any math. I'm asking you questions. So I'm asking you about the second violation. The second violation you've stated is March the 8th, 2025. Correct?

Correct.

And it says $500 citation, right? $500, that's the fine?

Yes but I would want to clarify if that was obsessed by PD for obstructing the sidewalk or if that was from our team and then additionally for fines and fees we have a street vendor program that has those prescribed amounts but if someone's obstructing the sidewalk and they're asked to move and they don't cease and desist as enumerated it's a sidewalk obstruction which could be an issue if you were parking a truck on the sidewalk or a scissor lift and it had nothing to do with vending. I would want to dive deeper with our inspection team on the fee assessments you're asking about so that I could give you the most accurate information.

Because what I want to know on that particular matter, on the second violation, going back to page 55, it says, and again, we don't know whether this is a lack of a permit violation or a vending violation of too much space, in 12 by 12 instead of 10 by 10. So it could go in either one of these categories. But if it's a second violation, then it's $200. Or it's $500. If it's $500, then it's not on the track of going towards the suspension. We're still at a first violation, right?

I'm not following.

Well, so you're telling me March is the second violation? March 9, second violation.

I don't see March 9th on any of these materials.

All right. March 8th, 2025.

No, as we stated in our brief, the August 15th is when that clock started.

Right.

And then March 8th is a subsequent one.

So the second one is, on this chart, the next one after August 15th is March the 8th.

March 8 is referred to as the second notice of violation in our original brief. And then for some clarity, that was for parking the car on the sidewalk in addition to violating the public works code. The appellant failed to display a permit to vend. He had applied for a permit days earlier. And Public Works cited the appellant for exceeding the permissible use of sidewalk under a vending permit in violation of Public Works Code Section 5.98b and port vending regulations. Okay. The appellant later received the permit that they had applied for that was ostensibly waiting in the queue or under review while they were cited.

Okay. So the second violation is that time. And according to the ordinance, the second violation requires or the subject to an administrative fine equal to $200. But I don't see anything in here of a fine of $200. And then I'm looking for a third violation, which would be in July, I suppose, right? I don't see any. So we go back to page 55. The fines for a third violation are 500. If it's going to go towards the I may lose my license, it's going to be a $500 fine. for a third violation. But instead, he got a $1,000, $100 fine. And then later on, he got a $1,000 cease and desist. So it's either a new first fine, or it's in the non I'm going to lose my license category. Am I understanding this?

I don't know that all of the fines. So the graph that you're examining is a document that Kyle creates to track? It does not represent an invoice, or it does not specify the body that's issuing those fines. So for that $500 instance, like I said, I'd want to double check. Did they get $500 for parking on the sidewalk, or was it vending related? So we have about three jurisdictional bodies assisting in inspection and enforcement, the police, public works, the port, and some instances, but less commonly, public health. Each of those jurisdictional bodies may have their own fines and assessments. And when I'm looking at the tracking document, it asserts that a fine was levied and it has an amount, but it's Kyle's tracking document. It may not represent an invoice from Public Works, and it may lack some of the specificity as to which jurisdictional body issued that fine. So again, I would need to reconfer if I were to give you the most accurate information possible therein.

OK. And these fines, so just so I'm clear, a police fine, parking on the sidewalk, I think was one. a police code section referenced in the chart. That counts as a violation of 5.9.3? Or is it...

It can. Typically, when a law is violated by one of our permit users, i.e. they're selling stolen merchandise, they could have a street vendor permit, but they may not have an ABC license and they're selling liquor or something to that effect. If we're informed that another violation has occurred, WE CAN BASICALLY COUNT THAT AGAINST THE VENDING PERMIT. AN EXAMPLE OF THIS AND THE MOST COMMON EXAMPLE WOULD BE VENDING OF COUNTERFEIT GOODS. THE PUBLIC WORKS TEAM DOES NOT HAVE A SCOPE OF EXPERTISE TO EXAMINE COPYRIGHTS AND ENFORCE COPYRIGHTS. ALTERNATELY, THERE ARE MANY ATTORNEYS AND POLICE THAT ARE CAPABLE, IF THEY SUBMIT TO US A VIOLATION OF ANOTHER CODE OR LAW, One of our catch-all clauses for all of our permits is typically something to the effect of this does not allow you to break other rules, and you're bound to follow all other rules while operating in the public right of way as it relates to state, local, federal.

OK, I think I'm getting to understand it. Thank you. Commissioner, Vice President Soroyan, I yield to you.

Do you have any further questions at this time? No. OK. Good evening, Mr. Slocum. So I'm curious as to what is the status now of the vending permit? Is it still in suspension mode, so he has not been allowed to vend? Or what is the current state?

Well, typically the permit, you know, when someone's appealing our revocation, that determination's suspended. But I'll tell you candidly and in actual terms, as the appellant has stated previously, they're most interested in baseball season. If we didn't go to Board of Appeals until November and we're here still in December, there's been no baseball season. They haven't been compelled to vend or interested in vending. So while the permit has been... and our determination to revoke may be suspended. We've also had renewals in November that we need to catch up on. So ostensibly, if this permit was reinstated, we would have to take a look at the timeline, see if they have to be renewed, and get them credentialed. And the lack of baseball means that we just haven't had interest in those lottery sites. As mentioned by the appellant previously, we, in conjunction with the port, there's a lot of demand to be close to the ballpark. There's limited space, especially because there's street closure. There's high pedestrian volume. So we've worked with the port to try to promote equitable access to the most desirable space through doing lotteries. And we try and do it a month out so that folks can plan accordingly. But I would hazard a guess if we were doing a lottery for those subject sites that I pulled up, those three squares earlier, I don't know that we would get much feedback on it yet. If you check back in in June or July, it would likely be a different response.

During baseball season?

Correct, yeah.

Yes, I like the Giants. I'm not that up to date on the calendar. So if... Let's say, for example, tonight we decide to uphold the suspension, or sorry, ratification of the permit. Would there be any prejudice on the part of the appellant to reapply for a new permit?

I don't know that I would say there would be prejudice, but there's a stipulation that they have to wait a year to apply, one year from revocation. And one thing that I would double back with the attorneys or that I would want to confer is if revocation, if the date of revocation and the reapplication date is in late August of 25 when Public Works officially revoked it, or if the revocation date is reflected in today's determination, in which case they wouldn't be able to apply until January 28, 2027.

OK. Let's just play with dates here. Can you walk me through how that would work? Let's say the permit was revoked January 1 of this year, and then the effective date of the revocation is January 1. then how would that proceed?

Then that would mean that they would not be able to vend under that permit for the duration of time until January 1. They could submit an application to us, and we would process that. Now, depending on where they're asking to vend, There are spatial restrictions. There's been capital projects at the port that have impacted availability of that space. So if those three squares that were available today are somehow impacted by improvements, it might not be necessarily the same situation a year or two from now that it is today. But there's nothing that would preclude their ability to submit an application. And our team would not treat it any differently to that effect.

OK, maybe I missed something. I thought you said that if it was suspended, or sorry, revoked for one year, then it's revoked for a year, and then they can't reapply for another year.

It's one year. It's not two. So it's revoked. You're not able to vend. And then upon the date of revocation, you're not allowed to apply until a year elapses from the revocation date.

OK. So let's say the permit, somebody has a permit. And we'll just forget the GIANT schedule. Sure. January 1, 2025.

There's a bunch of hearings.

I'm sorry. Do we have people? Please don't speak. Do we need to put people on mute? OK. Sorry about that. I have no idea where that came from.

OK. So just help me understand. So let's say the permit starts, one year starts 1-1-2025. Fast forward June 1, 2025. There have been four violations. There's a hearing. Director makes the decision to uphold the hearing officer's decision. to revoke the permit effective July 1, 2025. What happens from July 1, 2025? The permit's been in effect for essentially six months.

OK. I'll provide some additional context that may be helpful. For our street vending permits, we have a universal expiration date. I believe it's November 16th. If it's not exactly November 16th, it's in that mid-November window. The reason being is our staff has to do these renewals in huge batches, right? So it's September. We're sending an email, get ready to renew. Everyone's permit expires in six weeks. Those permits that expire in mid-November expire in mid-November regardless of whether they were obtained in the preceding December or if in the preceding May or so on and so forth. So what that would mean is that the permit that was suspended actually would expire in November and then we would look at the date of revocation and say that you're not allowed to apply for a successor permit until a year's elapse from the revocation.

So again, if we say that July 1, 2025 is the date of the revocation, and that permit expires in November 2025 with all the other permits, it would be for one year, so presumably till July 1, 2026.

And then they come in. They could ask for a new permit. It's good for four and a half months or whatever.

OK. So all the permits expire no matter when they're applied for in November.

Yeah. I think we've had situations where Someone came in on November 10th for a permit and we said we can give them 370 days instead of 365 because by the time we would process a second one It it's a waste of our time, but practically speaking we got to push them all out on one date Because otherwise the team will be playing whack-a-mole with a unique expiration date for every single permit that we have and It just wouldn't be feasible For us to administer.

Okay. Thank you for clarifying all that. I

Thank you. Commissioner Lopez?

Thanks. So we've had similar matters before us before. And I think some of us have the benefit of that context, but it's a different board than the last time you were here. So I just wanted to ask a couple of clarifying questions. Can you just go over what the impact of a suspension versus a revocation is?

Yes. So one of the questions that was brought up last time, the code enumerates that the director may suspend or revoke. And there was some question as to when one action might be informed versus another. And again, it's a challenging question for me to speak to because it's director's discretion. So it exists intentionally. for them to apply or administer a determination on a situational basis. So there's not a litmus test. If there was a litmus test or if there was a very clear path that distinguished revocation from suspension, we wouldn't have to have the director make a determination. We would simply point to the subclause and say, this is where you fell off. So in this instance, as I mentioned, there was a history of noncompliance that predated those four violations within the calendar year, which would lend itself to a revocation versus a suspension. And we also discussed with our council this notion, and something else that they put out there would be that a permit that we had an issue with, it's September, and the permit expires in mid-November, and we all know it expires in mid-November, a revocation versus a suspension is consequential to that effect. If I got my permit on December 1, and it's good until the following November 16, a suspension is almost tantamount to a revocation. The biggest distinguishing factor between the two would be that cooling off period. being allowed to reapply versus just waiting out the duration of your suspension. So I think that, again, the code specifically says that the director has discretion in applying a suspension versus a revocation. If you were to ask me at large to enumerate a litmus test for one versus the other, I'd be at a loss. If you were to ask me situationally, as discretion is to be typically exerted, as in this case, situationally. Why did the director recommend a revocation versus suspension? Without putting words into their mouth, I would say we had a history of noncompliance that had to deal with the same place, the same issues, the same people over and over. And our outreach and education efforts did not result in a mitigation of issues on site. Is that helpful?

Thank you. Oh, go ahead. Sorry.

No, is that helpful, or did that answer?

No, that's very helpful. Thank you for addressing both in the abstract and in this instance. With respect to, I think, one of your exhibits, I think it may be Jay, that it's another spreadsheet that outlines communications with the appellant, essentially related to notice you know, giving notice with respect to hearings and different proceedings. And we also see the schedule that was, that you discussed with President Trasvina with respect to the citation kind of records. And I suspect we may want to talk more about that amongst ourselves later. Back to your exhibit, Jay. I'm trying to get a sense for placing the appellant within the broader collection of vendors that the agency interacts with. And I see that you were able to put together this schedule of the notice comms. With the agency's data collection and record keeping, is there a similar kind of spreadsheet where you all collect any kind of enforcement conversations that you're having with individual vendors? So not just related to, hey, there's a hearing coming up. That's going to impact your permit, potentially. But hey, even the first conversation that you may have with any given vendor, hey, this isn't right.

I don't know. I'd defer to our inspections team. The exhibit that you're referencing was a document that was created uniquely at the behest of the board because it was requested as a supplemental brief item. So I can tell you that it's a one of a one to that effect. It was created just for you. But that's not to say that we don't have other materials. I think page 55, the graph that I mentioned is a pretty comprehensive directory of Kyle's touches with them. But I would want to talk to our team as well. If they were issued a correction notice or a notice of violation, we would have a record of that. And that would be trackable. And then if we did any type of mass mailing, as we often do, so like we have the Super Bowl coming up. There's a special event at Moscone. No one's allowed to vent in front of Moscone. we've already started doing outreach in advance. Heads up, your permits pursuant to a special event, you're not allowed to vend in this area. So if that constituted communication as well, we could probably itemize our big mass mailings and we could create a document. If they received a correction notice or an NOV, we would have a log of that. But this is unique, kind of encompassing everything. And I would want to double check my records before confirming.

That's good to understand. I think just vocalizing what I'm interested in and appreciate you're not a member of the inspections team and don't have that data at your fingertips. I think what's interesting to me is essentially quantifying what you've shared is that the individual, from the agency's perspective, has a history of noncompliance. And I think what would be helpful, just speaking as one commissioner, I would love to see that quantified, to see, hey, we have X number of vendors. We have Y number of violations in any given, you know, vending permit period. this individual is responsible for x percentage of those violations, or how they may stack up and compare vis-a-vis other vendors in terms of the number of.

KELSEY HALL- May I ask my colleague a question?

KELSEY HALL- Sure.

Good evening, Board of Appeals. Kyle Thomas from the Port of San Francisco. I'm the security manager, and I think I can help answer that. So the documents, and I believe it may be one of the annexes to this, we have documented approximately 517 stops of vendors. We do not always get information from them. Some people choose not to give us their information. We do not press that issue. But we've had approximately 517. Of those 517, we've had 31 that have been multiply talked to and given notices of violation or warnings. And of those, our top person that has been given 12 over the entire time that we've been running this is Mr. McAuliffe. So there are four people sitting at 11, but he is number one at 12. The other issue that was brought up last time was I say I've talked to someone 100 times. So in 2024, and we've done this before 2024, but in 2024, we did 91 operations, 46 of them at the Giants. In 2025, we did 92 operations, 53 throughout the Giants. That's essentially 100 times in documenting fashion when we all go out together. That's not including 23. Those are all documented. Every time we go out, we write a report. We take pictures. We document what was taken, what was cited, pictures of people that don't want to give us their information, because some people don't want to. But I still want to be able to identify them in the future. And we keep all of this at the port. And I believe part of this should be in one of the annexes. So yes, we do document every time we go out. Yes, we do document who. we bring to this, and it's not technically this, but it's the Department of Public Works request for revocation. So far, we've only asked for four. But Mr. McAuliffe is the number one person on that document. If I could address you, Mr. President, one of the things that you asked about was, how did we get to 500 on that certain day that appeared to not be the first within the 12-month period? And I think the answer is, we've been contacting him formally since 2023. And so when we go out as a team, if it's the first time we've ever contacted someone, it's always a warning. We give them information on how to become a vendor. There's brochures in multiple languages that we give to them. We usually have a Spanish speaker with us because a lot of our vendors are Spanish speaking. So we always want to educate first. That's our goal, bring people into compliance. After that, though, and unfortunately his first contact was actually an ABC violation, so he doesn't get a warning for that. But we begin doing warnings. We begin doing minor violation warnings. And then the citations start lower, and then they ramp up. So yes, in the last 12 months, he was at 500. But before that, he was at warning, warning 250. And I think there was a 100. He might have even got additional warnings. And it's always up to the discretion of the Department of Public Works employee to decide. Because I see he was given a 500, and then all of a sudden he was given a 100. So why is that? That is the Department of Public Works officer's discretion to give that. And then the other question that you asked was, was the police department's monetary values part of my record? The answer is no. So the citation, when it has a number next to it, a dollar amount, those are what the Department of Public Works chose to give him that day. The parking tickets, those are all separate. And again, those are all documented copies in each of our operations. And just lastly, if I could say, so our operations involved a port. They were a number of locations that were identified well before I joined the port. I've only been there about two and a half years. And those were locations that were identified based on space available, locations that people would want to then. We tried to make it equitable for everyone. So we have places down in the Bayview, all the way to the Endaport property, the 7 and 1 half miles, and Fisherman's Wharf. So there's designated locations. The highest value ones are typically Ferry Building, Fisherman's Wharf, and then when giant season, it's obviously giant season. So what we decided to do is ask Department of Public Works, who's been given the authority to run our program. So the mayor, London Breed, said, we can't all be giving out permits. So let's have one agency give out permits. So when she did that, she said, One of the things that we did is say, let's make it more equitable, and let's begin a lottery. So that way, there's not a spot for Savior on the property. It has a lottery because there's multiple people that want to vend Giants merchandise. So we try to make it as fair as possible. And again, so that group that goes out, port, police, Department of Public Works, Department of Public Health, fire department. We used to have MTA with us. But we realized that was kind of duplicative with the police being there. So they'd kind of issue some of the citations that Department of Public Transportation would. So it's a very big group. And again, I have absolutely talked to Xavier 100 plus times. I see him every game. He's at literally every game. But unfortunately, he has been the top noncompliance person since we've been documenting this. And again, he's leading the pack at 12.

So thank you. Thank you for that. That's helpful. I think the other The other aspect of this that's interesting to me, anyway, is the response from the appellant to these various conversations and citations that have been documented. And I'd love it for you to contextualize the context or the response, rather, the appellant as compared to, I'm sure you're not just talking to the appellant, you're talking to many other vendors as part of these rounds. Is the appellant's response to these conversations materially different than other vendors? Or have other similarly situated vendors responded more towards compliance once these things have been flagged? Or what can you tell us about that?

So I would say that he is one that has really kind of thumbed his nose at enforcement. We have obviously asked for four revocations. Again, we've totaled and talked to 517 people. So that's a lot of people. And again, always trying to bring him into compliance. I would love to see him, and I've told him this a million times, I would love to see him be successful. but he can't sell counterfeit merchandise, and he has to follow the rules. I don't make up the rules, but I talk to him about this all the time. We have some other vendors, because we have asked for three others. This is the fourth. People's permits to be revoked. And again, we're only going after the people that have total noncompliance. Most of our vendors, and I would share this with you. I could show you a picture from 2023 where we had 800 feet of vending on Little Embarcadero at Fisherman's Wharf. And then I could show you the picture today There's three vendors and three pergolas that are 10 by 10 each, and there's no more unpermitted vending over there. And that's because we do hold them accountable. We have given them tickets. We have brought them to revocations if necessary. But again, we go out there. We try and work with people. We try and educate them. We try and get them into compliance. It's not our goal, because I understand things are hard. Things are difficult. He's been doing this for a long time. Some of our other vendors that we have asked for revocations, this is what they've kind of done their whole lives. The problem is that I don't make the rules, but I do need them to be enforced while on port property. I'm willing to work with you. So that's why we have numerous conversations, and that's why I think probably discretion has been shown. We're not trying to throw the book at him. But at the same token, you have to work with us and come into compliance. And a great example is that 60-foot section that he takes up. And you just look at the photographs. You don't have to take my word for it. Just look at the photographs. He's taking up 60-plus feet of space that people can't sit down, people can't walk by. He takes up the sidewalk. He parks his cars on the sidewalk. And then that's on top of his little vending space that he actually has. So it's 60 feet, plus he usually has a little tent out there. So again, we are only going after the people that are extremely non-compliant. No one has ever been asked for in their fourth revocation or fourth citation. We get to four maybe in a year, and I think this time we have five. But no one has ever, here's your $100, here's your warning, here's your $100, your $250, $500, boom, revocation. That's not what we're trying to do. Again, he's our top person that we've had of all 517 contacts. Thank you.

OK, thank you. President Tresevino?

Yeah, I have another question. You mentioned that you may or may not be in the position to know this. So you mentioned that there's discretion about if you see a violation, maybe you'll give a warning, maybe you'll give a written warning, or maybe you'll give a fine, and the fine could be of any amount.

So the Department of Public Works are the ones that actually issue the notice of violations that has the prescriptive dollar amount. So they are the ones that have the discretion as to what the violation was, what the amount was. They do not just... They don't do it...

So what were you describing earlier? You mentioned there's discretion about a warning or an amount. Tell me if I misheard this. I thought you were explaining the reason why it wasn't a certain amount is because sometimes you give a different amount.

So they have discretion to issue those different amounts. What I was, I think, talking about earlier when we talked about was 500 the first one, because that's the one from the 12th month. The answer was no, because we'd contact him so many other times prior to that, because we always start. You look at his first one, that is not a...

Okay, and when you say... We, are you speaking on behalf of the port, on behalf of the public works, or?

So I would say, so obviously I'm not an enforcement official. I have put together this group that goes out. I'm usually with this group, not always. So we collectively, but I don't, I can't tell public works, write him a ticket for X, Y, and Z. They're part of that. Because it might be a health code violation. It might be a parking violation. So all the groups that go, it might be a fire code violation. The port leads these because it's port permits. We typically have the documentation. For example, when we come across someone.

Please don't give me so many examples. What I want to know specifically is when you say you have discretion, But you're pointing to Public Works actually does the fine. Who are you representing?

So I represent the port. DPW has discretion to give these notices of violation.

So you don't give?

I don't give anything.

You and your port people don't give these notices?

No. We do not give them anything. We document. the collective group, what each one did, whether it's the police department, the fire department, public works, or public health. But we do not give any paperwork other than we tell people how to get permits.

So when you say you give warnings, that's not you. It's Public Works.

Correct, but we are a scrum. We literally travel as a big merry band. You're a what? We're like a scrum of people. We're a big merry band of people that go out together. So we all go together. We're all walking together. Police officers, fire department, public works, public health. So when we get to the first vendor, I usually engage them because I know them. But I don't give them any of the citations.

So if one of you can answer this question, if there's a departure, from the $100, is there a departure from the $100, $200, $500? You're saying there's discretion, but you don't do it. You do it.

So the way it says violation, it doesn't specify a notice of violation. I don't have the text in front of me. So it may be that that initial violation is met with a correction notice or a warning, and it may be that the fine I'm not going to fine you $100,255. I'm going to warn you twice, and the third time I'm going to get you with the $500, which may be a greater deterrent. mitigating bad behavior, meaning that $100. So all the citation that we've issued to the appellant, they've paid. They haven't contested. You'll even look in their own brief at no point in time do they contest the veracity of our claims as it relates to noncompliance. Do they say that they were issued anything erroneously? They don't contest any of the fines. In fact, basically the attitude has been like that's the cost of doing business, which is one reason why we're here, because if a $500 citation does not deter you from taking up 60 linear feet when you're allowed 10, we're at a loss. We hit a point where there's not much else we can do but take

Okay, so you've answered my question, is that your officers have taken upon themselves discretion, maybe it's a warning, maybe it's a fine, and the fine could be of some unknown amount. It's based on how they assess the individual and the infraction.

Can I answer part of that?

Well, they're your people, so let me ask you first.

amounts within the code for various offenses, meaning sidewalks, obstructions. In this code, they cite 5.9 violations, and they have a perspective amount. If there was an amount that differed from any of the prescribed amounts, I would want to know more about the nature of the violation and if it was a violation of 5.9 or another code. But I don't agree with the assertion that they're just pulling a random amount out of there. It's not $73.41. If it would be $250 or $500, it would probably go back to a code in sight. But again, without being a manager for the inspection and the force used, If you wanted me to give you definitive information, I would have to defer to them.

And believe me, I'm not casting aspersions on their work or their coming up with random numbers. There is a sense of, perhaps potential arbitrariness, but I don't consider it a nefarious effort to say, oh, you're wearing red shoes, so I'm going to make it 80 instead of 100. But you started by saying there is discretion, and you're saying there is discretion other than what's in the statute.

I'm saying what's in the statute when they talk about those violations, okay, there's not verbiage with capital proper nouns, i.e. a notice of violation, a police citation. It says violations. That's the way it's written. That's the way it's interpreted. That's the way it's enforced. Okay. If you would like to continue and if you would like me to get some additional resources from our inspection agency.

Okay. Well, it'll be up to my colleagues as we get to this, but I wanted to make sure that you had the opportunity also to respond because you wanted to respond.

So one of the things that we always carry with us is our list of people we've contacted in the past. So oftentimes a DPW enforcement officer will ask me, John Doe, have we ever contacted John Doe before? So we can go through our list and go, yes, we've contacted John Doe five times. These are the five things that he has been cited for in the past. This is the location. And these perhaps were the fines that were given on that date. So we can give that information to them so they then can make a decision as to how to proceed. So they're given that information on seeing, and we always have that with us.

Thank you. Commissioner Abad. Thank you.

I want to thank the appellant and department staff for coming and helping us get the context. I wasn't here for when this was brought before us maybe the first time, nor was I present for other hearings we've had pertaining to the sidewalk vending program. It's, you know, it's obvious that this is a really complex territory. There wasn't a regulatory program for sidewalk vending before. There's, as staff have mentioned, you know, there's footfall, there's traffic, there are all kinds of conditions to manage in the public right-of-way and it's part of our duty of care to ensure that the vending, the pedestrian activity, all of the stuff that happens on our streets, you know, is done safely and and that nobody's hurt, nobody's violating any laws. And so upon hearing staff and looking at the packet, I feel pretty satisfied that the department has attempted to conduct diligent outreach, to do education. And that there's a history with this particular operator of noncompliance with that. So obstructing the public right of way, making certain public facilities inaccessible. And so I don't think that I need any more information, any more spreadsheets or data from the departments to sort of have a strong sense about what what is fair here. I do think that the departments have exercised their discretion, you know, judiciously, and that the director, upon recommendation from the hearing officer, this went through due process within Public Works, made a decision based on the facts, and that's reasonable. So that's all.

We're not in deliberations.

No, we're not. We still have public comment and rebuttal, but that's fine. Everyone is just discussing this, so that's fine. So thank you. You can be seated. We're now moving on to public comment. Is there anyone in the room who wants to provide public comment? Anyone on Zoom? I don't see anyone, so we're going to move on to rebuttal. Mr. Mikaleff, you have three minutes to address the board.

OK. I guess I'm ready. So they said about the first year, they said they gave you proper enough time to, like he said, I gave you a warning. I tell you how to apply for the permit and all that. They didn't do that. The two people came. It was a guy and a girl right away. And they said, hey. I go, who are these guys? And they go, they got a permit. You don't got one. That's how I got introduced to him. I said, wow, that's fair. That wasn't fair. I've been there for 20 years. And these people came from the other side. And they got permits already. Well, you got to apply for it. Go next month. That wasn't fair. So he lied right there. Second of all, they... But the second of all, when I came back, they said, OK, you're here for today. And then next day, there's a lottery. They did away with the lottery because it didn't work. And I understand. It's a new program. And they figured it out that we just put these somewhere. So last year, they didn't do the lottery the whole year. And I stayed in our box. All three of us stayed next to each other. You know, so it worked out. No lottery. No, you know, I guess it was lottery and just, I didn't go back to that area where I rebelled because they didn't give me, he told me after one month you can be here and it didn't happen. That was like me rebelling. I went back to where I used to set up for years, for the whole 20 years. I said, look it, you told me I was going to come back in a month and I came back for one day and then you kicked me out again. You know, what's going on here? And that's why they did away with the lottery. So we all got along all year. We all sat there. But then there's favoritism, just like I brought up with the other gentleman at the last meeting, where they would give me a penalty, and then they'd find something else, and the other guys next to me, they'd give them a penalty. whatever, like the $100 fine. And they got the $300, $500. And then I even hear them asking him, hey, I never even paid the $100 fine. He's just giving them fine but not making them pay. So it's basically the guys next to me, I've known them for 30 years, they tell me, hey, Savior, they promised us. They promised us a place over here. That's why they brought us from the other place. So they're pretty much trying to boot you out of here. And I could see it because all the penalties. And I didn't have, like, first of all, I didn't sell alcohol. I never sold alcohol. I don't know where they say that from. Second penalty, it was, I was at, it was, I was working the Giants game. It was at the, when they do the 4th of July show, or I think it was 4th of July, the The fleet week.

Thank you. That's time.

And I worked in a spot there before.

Thank you.

Mr. Mikulov, thank you. Your time is up.

I have a question for you, though. I want to thank you for your testimony. My question is, we've heard you described as Violating multiple rules at the top of the list among the vendors of not following the rules. Do you have anything to add? I want to give you the opportunity to tell us otherwise.

I just think I'm being targeted, obviously, because like my friend said, the two guys, they said that... They promised us a spot on this side. That's why they're both over here. And they kicked them out from the other side. They brought two other people behind me, which is fine. And then they tell me, oh, you're getting fines. We're getting the same fines. We got $500 fine, but we never even paid $100. And I know these guys. I'm traveling with them this weekend. We're going to Seattle for the Super Bowl. And I know these guys very well. I've known them for 30 years. They said they're trying to get rid of you, Savior, because they have to bring us somewhere. They could put them somewhere else. There's places by the bone alley. There's places by Safeway. But why do they have to go right next to me? Because they want to be. That's like the second best place. I used to be where they were. I left there because there's so much corruption going on over there.

I think you've answered my question. Thank you. Okay, thank you.

No further questions.

Any other questions? Thank you. No further questions. Thank you. I'm being upset, but it's like I'm feeling I'm being targeted. Thank you.

We will now hear from Public Works. You have three minutes. Anything further?

No, but overhead...

Overhead, please. Overhead, please.

Thank you. This is a citation that we have for alcohol sales that was just referenced.

You can zoom it out. Alec, can you help him, please?

Oh. It says quite clearly in the middle, sells alcoholic beverage without a license, and it was issued to the appellant. I have no further additional comments. If there are any questions or concerns I may entertain, I'm happy to. Thank you for your time tonight.

Thank you. President Trasvinia?

With regard to the document you just showed us, is there a document of that being adjudicated?

Not that I'm aware of. Thank you.

OK, thank you. No further questions. So commissioners, this matter is submitted.

I want to thank everybody for their testimony and for the voluminous material that has been provided. I think by my questions, I I hope I did not indicate any doubt or suspicion on the quality of the work of the department or the intentions of this important program on either side, either from the appellant or from the agencies. But I equally, obviously, am very troubled by the notice and the information that goes to the vendors and their ability to understand what their requirements are. I asked the agency representatives, and they say, how are we supposed to know what's in the mind of a third party? When I asked about the hearing officers and the directors. Well, I would ask, how does the vendor know? How do vendors know in general? When we hear, for example, that, well, maybe you get a warning. Maybe you get a fine. Maybe the fine is different. The statute says administrative fine is equal to. an amount. It doesn't say up to. It doesn't say it's anybody's discretion. If there's a violation, here's the fine. Somebody would, a vendor would expect to be on a track of OK, 100, 200, 500, now I'm open to losing my license. Or 100, 250, 500, 1,000, and now I'm up to potentially another 1,000 fine. But there is a very strict track and ladder of fines, progressive fines, that is in the statute. second we hear about things that have occurred in the past and yet the the agency says this started the the the in order to uphold a violation the fourth violation dates back to the first one and the first one was in 2024. if if things occurred in 2023 if the bad conduct if there's bad interactions about between the vendor and the staff, I don't see anywhere in the statute or anywhere in the materials that it says that those things are relevant or that it matters. It is relevant. I haven't seen it, but I give full credence to the notion that when the director gets to decide between revocation and rescission or revocation and suspension, then any kind of thing can come in. We've heard about the alcohol violation. We don't know whether it was challenged. We don't know whether the court upheld it or not. We've also talked about, in our interest expressed at the first hearing, we expressed concerns about notice and due process. I asked about how does the vendor have any input on the review by the director of the hearing officer's decision, a decision that we may or may not reflect anything that the vendor said. How does that director evaluate the hearing officer's report? And how does the vendor get to challenge that? Well, we don't know. It sounds like there's not, because the answer from the agency representative was, well, they can write in. How is anybody supposed to know that? And how do we safeguard due process rights? And I would say this is a responsibility of this board. There are times in our rules where the board can, on their own motion, seek a rehearing. Not because a party wants a rehearing, but because the board says, for whatever reason, we need a rehearing. I'm not saying this is a rehearing territory, but my analogy is we have responsibilities to make sure that the process is fully protective of the rights of the San Franciscans, of the vendors, the people who are vending and seek permits. So with some hesitancy and with some disappointment, I don't think that the agency is ready to go forward on their fine process. And again, as was stated at the very beginning, this was done, in effect, not these words, but this was done by the book. The process was followed. The problem is not with any individual in the process. The problem is with the process itself. This hearing, the documentation has demonstrated to me that there are some weaknesses and some holes. So I feel that I could not uphold this fine and suspension. So I would, at an appropriate time, I want to make sure my Here I hear from my colleagues and we are all informed by their views I would be prepared to make a motion to grant grant the appeal colleagues Commissioner Commissioner Lopez, thank you. I I

I see this, there's a lot that I see the same way, is what President Tresvena just described. I think I'm a little bit more open to to denying the appeal, potentially. But I think I would like to kind of close the loop on the agency following the latter that's described in 5-9-11. And I take the point from the representative from the department that 5911 subsection C1D, violation is not capitalized. It's not a proper noun. It's not limited to an NOV. But just given a plain reading and interpretation of the text, When you're saying that it requires a fourth violation within 12 months of the first violation, and then you have in subsections 5, 9, 11, C1A saying equal to 100 for the first. Subsection C1B equal to 200 for the second. Subsection C1C equal to 500 for the third violation. I think it stands to reason that you need fines equal to those delineated amounts in order to qualify for the hammer that comes in subsection C1D of the revocation or suspension. And as we saw in the schedule that was prepared, the amounts didn't line up with the latter, the quote unquote latter. And I'm not throwing this out based on that schedule. We've heard testimony from the representatives from the city that the schedule may not line up with exact amounts in actual notices and that there's discretion and that there's just more color to potentially fill in on that schedule. We've heard testimony that wasn't prepared by the relevant department. So I'd like to learn more just to make sure that Section 5911 has been followed. But if it has, just speaking for myself individually, if this process has been followed, I am inclined to support the department's conclusion because I think the questions that I had about quantifying the appellant's behavior with respect to compliance and coming into compliance, I think those questions in my mind have been answered. But it is the job of us on the board to apply the facts to the law. And when the law outlines a ladder, we need to make sure that that ladder is followed. So I'm inclined to continue to see if we can get the support for the ladder being followed.

Commissioner Lopez, I'm sorry, how did you leave things? Did you want to hear from the department again? Yeah, that's... Is that where you're leaning? That's where I'm leaning.

I wasn't quite sure what you're... Yeah, sorry if I wasn't clear. I'd like to continue. The representative from the agency I think had hinted as much that it'd be possible to collect some more kind of specific background on the nature of the violations underlying the events that are summarized in that schedule that was prepared. But I'd like to get some more information.

My impression is that, as Commissioner Abad so appropriately said, this is a very complex system. It's a newer program. I think the department has done everything in their power to properly document and present the information. understand that the appellant, this is his livelihood. And if we're going to uphold the revocation of the permit, especially this is, I think, the first time that we've had a matter of a revocation in front of us for a final decision. Is that correct, Ms. Lamar?

We've had revocations before.

For this permit program?

Yes. In November, we had a case. You weren't there.

Okay. And what did we decide there?

In that particular case, the appeal was granted. OK.

So I would support my colleague's request for a little bit more information for the underlying violations. I appreciate the matrix that was provided. But I think, as President Trasvina pointed out, lack of clarity, at least in our minds, as to the step-by-step following of the code and the associated penalties. Is that something that the department would be able to provide? Or is it the department's position that you've done everything within your ability to present? I'm curious.

So none of the information about the fines or penalties is revelatory in so much as that was included in our brief in October, and it was included in this hearing as well. So there's no new information that's been introduced which makes me doubt my confidence that I can adequately answer your questions. Alternately, if we had a member of our inspections and enforcement team here, these are the folks that are responsible for issuing fines, tickets, penalties, and would be most likely to be undertaking These field encounters so I would be happy to get a member of that team in here before this body I don't want to waste their time I don't want to waste any more of your time because we're gonna be on like a four months since this appeal was originally submitted so if there's anything I can do to address concerns today, I'd be more than happy to. And I don't want to kick the can down the road just to trip over it. If it's worthy and we can inform this board and it's helpful in the name of public service, I'm totally happy to. Alternately, if there's a desire to uphold the appeal, That's your job, and I'll let you do it. And I won't tell you stop, wait, hold on, one more thing. So that's my general attitude. We could probably get you more information. I don't know once you get that info how it will go over, because I've already provided so much in advance before this hearing. That's all.

CHRISTOPHER COLEMAN- Commissioner Abbott. CHRISTOPHER COLEMAN- Thank you.

Creating a new public program is an art, right? So is the enforcement. We're working with folks who in some cases have been engaged out on the street for many years, and some newer folks are coming on. It's my understanding that our city really needed a regulatory program to rationalize and keep safe and articulate a set of rules and standards that everyone could understand and apply themselves to. And so I don't feel compelled to have to know why the enforcement officer decided it'd be 100 this day or 200 the next day. I trust in their ability to make that determination in order to achieve our shared goal, which is compliance. Let's do this safely. Let's not block the public right of way. So depending on who you're working with out in the street and what the conditions are, the code gives the enforcing officer kind of discretion to, within bounds, to try and get to that effect. And I think what I'm seeing is that even before this 12-month calendar timeline, there's just been repeated difficulty with helping to make sure that this one operator could abide by the same standards that all of the other vendors on the street. So, again, I think I'll just reiterate, I don't know that I need any more information or that it's really going to alter my attitude towards this issue.

Thank you, Commissioner. And I think we've heard good testimony on both sides. And if the department can only give us what they can give us, if they have given us everything they've got, then I think they've fallen short. For example, there's a lot of question in my mind, and I tend to agree with Commissioner Lopez that this needs a continuance. For example, a basic question for me is, Some might say, as you just said, it depends on the officer who's out there. Well, we've heard testimony that there's favoritism. We've heard testimony that there's ruse. I don't know that. And I don't know whether we're in a position to resolve that. But one question that we can get resolved by the city attorney, not tonight because I don't want to just put them on the spot, is the ordinance says an administrative fine equal to blank for a violation. It doesn't give discretion. I'd like to know from the department what's the legal source of their discretion. And the reason that's important is because the person who's being fined may or may not know that they're up against the wall on this. And so that's one issue. The second issue is we are assuming, taking at face value, taking it as dedicated public servants, the testimony that, well, he was selling alcohol. What do we have in front of us? We have a ticket. for selling alcohol. We don't know what happened to that, but we're hearing testimony they take that history into account. And we don't know whether that's a valid history or whether it occurred or whether it didn't occur. So I think there are a number of questions that Commissioner Lopez's suggestion of a continuance would help get us to the right point. And just one final point, which is that this is not wasting our time. I admit it's an inconvenience for the people who are farther down on the agenda tonight. But we're talking about starting a program, give it leeway, but we're also denying somebody's job opportunities and their income for the better part of a year. And that seems to be a very strong penalty. So we have to make sure that the city is doing it right. That is the essence of the Board of Appeals, making sure the city does it right. So I would join Commissioner Lopez in his request for a continuance.

Is that a motion?

I will move to continue this matter. But as we have done in previous meetings, hearings, we should enumerate what it is that we want and give both sides the opportunity to present on those issues. So for you, Commissioner Lopez, you said you would like a chart enumerating the violations and the amounts. And for me, I would like the legal analysis of whether a violation is, as was stated, a violation of multiple charges or whether you can have multiple violations within the space of on one ticket. And third is the legal authority for departing from the fine schedule that is in the ordinance. Are there other matters that Commissioner Sorana, Vice President Sorana, would you like something else on the list? Yes.

I would like to know if the fines were paid and when they were paid.

You need to put your microphone on. Oh, thank you.

Yes, I would like to know if the fines were paid and when they were paid. And I'd also reiterate that I support your question regarding authority and discretion of the officers that make the citations.

Commissioner about anything you want to add it to this list. Okay. Thank you. This is Lamar. Is that an adequate?

Yeah, I think I'm gonna first why don't we just select a date? Would March 11th work?

We could March 11th For the appellant are you available March the 11th for this great and our city representatives and

That one yes, and Okay, and then I just want to clarify for the record with respect to Commissioner Lopez's request Do you want them to take this chart which they had included as an exhibit and to? flesh out the nature of the violation underlying all of these I

Yeah, my understanding was that that schedule was prepared by the Port Authority. And so what I'd like to understand is, since we're revoking a permit on behalf of DPW, I'd like to have the DPW enforcement authorities who actually issued the citations to weigh in to confirm that information. And I think what we're looking at is dates the underlying violations and the amounts of the citations.

OK, thank you. And then, President Tresevenor, with respect to your request, those are primarily directed at our deputy city attorney, which the legal, you want, is that correct?

The legal basis for departing from this schedule

OK, so you want that from Public Works?

I assume they have city attorney services, so.

OK.

Unless Mr. Minority wants to do.

What do you want from our city attorney?

I would prefer it to come from the Public Works deputy because they're more familiar with it. But Jesse, is that the right way to go?

I think that's appropriate.

OK, and then lastly, Commissioner, excuse me, Vice President Soroyan would like to know if the fines were paid and when they were paid.

Yeah, so in the same chart that's providing more detail on the basis and the amount of the fine, if they could add a column if the fine was paid and when.

OK, great. So we have a, now who made that motion? President Tresvena. OK, President Tresvena, we have a motion from President Tresvena to continue this matter to March 11. And on that, for the reasons previously stated on that motion, Commissioner Lopez? Aye. Vice President Soroyan? Aye. Commissioner Abad?

Clarification question. Can I abstain?

Pardon?

Can I abstain from voting on the matter?

I believe you have to take a position.

OK, nay. Thank you.

OK, thank you. That motion passes 3 to 0. Do we want to clarify for the record any briefing for the briefing that's led?

I think it's 3 to 1.

I'm sorry, 3 to 1. 3 to 1. Do we want to clarify? So you just want the chart from them? Did you want the appellant an opportunity to provide further briefing? Or no? We've had two rounds of briefs already.

Well, I think the appellant should be able to see what's provided. And if he wants to respond, we would give him.

OK. So how much time would you like him to respond to that? A week?

Well, we're talking about March the 11th. So that's five weeks from now.

Right. We have to post everything Friday in advance.

What would be an appropriate time for the brief to be due and responded to?

I will work out that schedule with them. We don't have to do it right now. So, okay. And so I'll reach out to you folks tomorrow and we'll talk about the timeline. Thank you so much. We are going to move on to item number eight.

I think we've had a request to take about a 10 minute break.

Okay. Thank you for your patience. We're taking a 10 minute break.

We'll be back. Thank you.

Mm-hmm.

SFGov TV, San Francisco Government Television. SFGov TV, San Francisco Government Television.

WELCOME BACK TO THE JANUARY 28, 2026 MEETING OF THE SAN FRANCISCO BOARD OF APPEALS. WE ARE NOW ON ITEM NUMBER 8. THIS IS APPEAL NUMBER 25-054, SIMON AND KATHERINE LITTLE VERSUS THE ZONING ADMINISTRATOR. SUBJECT PROPERTY, 20 BURNSIDE AVENUE. APPEALING THE ISSUE ON NOVEMBER 21, 2025 TO SIMON AND KATHERINE LITTLE OF A VARIANCE DECISION. THE PROPOSAL IS TO REMOVE THE EXISTING APPROXIMATELY FOUR FOOT TALL FENCE AND CONSTRUCT A NEW SIX FOOT TALL SOLID FENCE AT THE FRONT OF THE PROPERTY CONTAINING A TWO STORY SINGLE FAMILY BUILDING. PLANNING CODE SECTION 132 REQUIRES THE SUBJECT PROPERTY TO PROVIDE A FRONT SETBACK EQUAL TO THE ADJACENT PROPERTY WITH THE SHORTEST FRONT SETBACK. THE REQUIRED FRONT SETBACK AT 20 BURNSIDE AVENUE IS APPROXIMATELY 7 FEET 6 INCHES FROM THE PROPERTY LINE. The proposed fence would be within the required front setback and exceed the three-foot-tall solid fence permitted by Section 136C17. The proposed fence is fully within the required front setback, is six feet tall, and is less than 75% open to perpendicular view. Therefore, a variance is required. The zoning administrator denied the front yard variance. This is case number 2025-003868. And thank you so much for your patience. We'll hear from the appellant first. Welcome. You have seven minutes.

Hi. Thank you so much for the opportunity to present to you all. Thank you for giving your time to hear this appeal. My name is Simon Little. I'm the only one along with my wife, and we have two young kids, a toddler and a newborn at home. And we're appealing this decision. It may seem like a small matter for the commission, but it's actually a very big and important matter for us and our family. I want to start by just raising a statement from the zoning administrator in response to our appeal. He states, this type of variance request for a solid fence taller than three feet within the front setback is proposed from time to time. The consistent outcome of such cases is that this variance is denied. So that has been our experience with this application, that essentially the case was predetermined. And if you decide upfront that these are going to be denied, then ipso facto, the criteria can't be met. So there seems to be concerns about setting precedent. But our understanding is that the variance process is meant to look for unique and exceptional circumstances. And our concern is that these weren't addressed in our specific case. So I'm going to try and take you through and show you why we have exceptional circumstances. The zoning administrator characterizes our lot as just a little bit shallow. But in fact, we have no rear yard. We're set below street level. We're on multiple very unusual, unique multiple high traffic routes. We're opposite a school. We're one block from Glen Canyon Park, the main entrance. It doesn't have any parking, so we serve as the parking yard for that very popular park. We're on the Crosstown Town Trail. And we're also on a public artist's work, the Burnside Mural and Steps. Without this, we don't have any private outdoor space. This is a hardship not faced by typical district properties, and I'll show you evidence of that to come. So we're just trying to seek to restore our rights to those of our neighbors. We're not asking for anything extra. We're not trying to elevate ourselves. I'm a physician working in the city, and my wife works to raise funding for nonprofits in the city. We're really committed to our community. All of our neighbors, adjacent neighbors, have written in active support of this variance. It's a very modest increase, and we think it's in general harmony with the plan. The zoning administrator says these are always denied, but there's actually precedence that I'm going to show you that this is not always denied, and he himself has granted Bigger fences than this in very similar circumstances. This is a precedent on Elsie Street in Bernal Heights when an eight and a half foot fence was granted by the same zoning administrator. He cited the validity of security and privacy issues. He found that this was consistent with residential design guidelines. And to quote his approval letter, he said, granting this variance will allow the subject property to appropriately and modestly respond to the unusual context

I'm so sorry. Would you mind slowing down just a little bit? I know it's a little nerve-wracking. Sure.

Would you mind slowing down? The Zodiac Administrator said granting this variance will allow the property to appropriately and modestly respond to the unusual context and that this would improve privacy and security for the property. So validating that these are valid concerns, which was not the case in our application. These were dismissed. It says this represents a substantial property right in that case, not applied to us. There's another case I cite from Shotwell Street in the Mission where it was stated that the variance would improve and expand open space. And no neighborhood opposition at that time was used to support criteria four. There's no detriment. In our case, that was dismissed. So this is an aerial view of our local area. I've counted all the houses on here, 255 houses. As you can see, we're virtually unique. Everyone has a rear yard apart from us. We are the red dot surrounded by four houses. These are the four adjacent neighbors, all of which have given written support of our proposal. Along the same block, there is high fences on yards that abut onto the streetscape all the way along Paradise Avenue. This is the existing aerial view. I want to show you that we have no rear functional yard. We have an odd elongated lot where the front facade is not parallel to the streetscape. And that's the same for our neighbor. We're recessed down from the elevated elevated sidewalk, and there's only a single adjacent neighbor. We have no oversight because we have a school opposite, so we don't get that informal security you normally get from living on a double-sided residential street. Our car keeps getting stolen as a result. It's been stolen numerous times from outside our house. So we have real concerns about security and privacy. The zoning administrator made recommendations saying that there's easy alternatives that would suffice, suggesting that we could grow vegetation. But that doesn't work for us with our young children now. It takes many years to mature. In the winter, the leaves fall off. He suggested putting the fence on the setback. That would be giving a third of our front yard back. But more importantly, because of the elongated shape of our lot, that would actually be putting a fence fence on a line which is slightly recessed back from our neighbor and not parallel with their front facade. So we came up with a compromise solution which we thought addressed all of his concerns, that we would create a fence that was parallel and aligned to our only adjacent neighbor who's written to give support. I've blown it up here. The idea was that we'd actually give back some property to the public. We'd create a planting space in front to negate the concerns about having a big blank wall. We don't want that either. and create public benefit that way. And be very much in keeping with the ideas of the code to align sight lines across houses. So just to say, again, that we feel that this is less than variances that have been granted before, asking for six feet rather than eight feet in this unique situation where we don't have any private space, as well as offering more to create this public planting space and the wedge solution, as we called it. So just to sum up, as I say, we have support from every adjacent neighbor. This is the neighbor who is our closest adjacent neighbor, the only person that faces Burnside next to us that would be potentially affected by this variance. She says that... It makes the point that her house is an elevated level. So her living space is elevated. So it would be above any fence anyway. So it won't affect her. 30 seconds. And she makes the point that it is standard for the community to have private space, backyard space. And she also says that the fence that we're proposing fits with what we already have in the neighborhood. So we have exceptional circumstances. The lot, the situation of our house in a highly trafficked area, The compromises, the alternatives don't work, and so we ask you to overturn the decision. Thank you.

Thank you.

Okay, thank you. I don't see any questions at this time, so we will now hear from the zoning administrator.

okay um good evening president trust vina commissioners corey teague zoning administrator for the planning department um again before you is the appeal of a variance denial for 20 burnside street and this was um to replace the existing approximately four foot tall uh front fence within the required front setback at the front property line um with a six foot tall uh solid fence Obviously, the letter goes into the rationale. The brief went into the rationale a little bit more. I do want to say that even at the hearing and after I had a meeting and other communications with the property owners after that hearing, I think everyone worked in good faith. I appreciate that. how they have communicated and worked with me on this issue, even though it wasn't the outcome that they decided on. It was communicated to them, I think, through the process that this was going to be a really challenging variance. And that's not to say they are predetermined. It's just that when we have a lot of examples and we have conditions that have consistently been determined that way, we do want to let people know that up ahead. We always inform people that we're not going to give people 100% yes or no before the hearing, because we want to allow the due process to occur. We allow the public hearing to occur. New information, new arguments may be made. And we want to take that all in before any final decision is made. I do have other examples of within the last few years of other similar proposals where those variances were denied. I'm happy to give you those in more detail if you want. There have been a few examples over the time where slightly taller fences have been permitted, solid fences have been permitted for very specific circumstances. The 152 LC Street example wasn't provided in the brief, so I wasn't really prepared to address that one specifically. I'm not going to spend too much time on that one, only to say that one had some extremely unique circumstances that were very different from this case, which goes to the point that they're not predetermined. Each case is separate. The rationale here that was made in this variance determination was that the circumstances for this property were not such to kind of rise to that bar that they were exceptional and extraordinary or they created a practical difficulty or unnecessary hardship that warranted the variance. And the reason these other variances in kind of similar situations in the past have generally been denied, and the same one here, is because the city's codes and policies kind of address this issue of what we want at the street front. And our code and policies really push for the opposite of a solid six-foot wall or an eight-foot wall, whatever that may be, because there is a desire to not kind of have a defensive architecture at the front and to have more of a transition from the public realm to the private realm. As was mentioned, there is... language in the residential design guidelines around trying not to create new scenarios, especially with open space and decks, et cetera, that are going to create privacy issues. We don't necessarily have language in the code or our design guidelines about authorizing fences or other solid walls and structures to specifically for privacy from the right of way. Not to say that that's not an understandable and desirable thing for people to have, especially if you are in a higher traffic area. But it's also a concern that if the rationale is that the exceptional circumstance here is that it's located in a high traffic area or next to a school or next to a well-used park, that's going to apply to a large portion of the city, as we have many schools across the city that are typically in residential areas and surrounded by homes. And we have many wonderful parks and open spaces and other attractions in the city that are surrounded by residential areas. And so while I understand, again, a very specific perspective from the property owners, in the realm of looking, is this an exceptional and extraordinary circumstance where we would feel that a solid six-foot fence at the property line would be warranted? It was determined that did not rise to that level. I'm not going to belabor that point, but I believe that is the crux of the scenario. Excuse me. Again, I do have other examples of other cases with photos if we want to look at that. I don't know if that's necessary, but I want to make you aware of that. I think the rationale was laid out fairly well in the letter itself and in the brief, so I'm not going to belabor any of those points. I think the variance was reasonably considered, and I think the denial was... consistent with similar cases in the past and was a reasonable determination to land on, especially given concerns about how the rationale for granting the variance could be used in a high number of cases in the future if it went the other way. But with that, I'm available for any questions you may have.

Thank you. President Chesvena, then Commissioner Abbott.

Thank You mr. Teague both for your presentation here and what and what you have written I read all the materials and I guess kind of jumping to the bottom line is what's the best the city can suggest that doesn't require a variance a and B what variance would be what what more could they get with an acceptable variance and in terms of protecting their privacy, in terms of the type of fence, and its height.

Sure. And thanks for asking those questions. Both of those issues are addressed in the letter and the brief. So one of the rationales also for the denial is that, this particular family wants this level of privacy. And if this fence goes up, it's likely it's going to be there for a very long time. Whereas there are alternative options being either some form of landscaping, which would provide a certain level of privacy behind their existing fence, or a co-complying fence, which would be set back approximately 7 and 1 half feet. It's understandable that that's not their preferred option because it limits the usability of some of their property, although some of that is on a bit of a slope. So that would be the other options available to them. There may be other options. Those are just the ones that... We kind of discussed, as I mentioned in the brief, the use of landscaping to help with privacy is actually pretty common. This comes up, although typically, more in kind of a roof deck and rear deck scenario, but similar concept in the sense that sometimes you want a feature that would help improve privacy but is not a solid and not a permanent feature, per se. And so landscaping has been used both by the Planning Commission and this board in the past to help with privacy concerns. What we were looking at for a potential slider variance is that their uphill neighbor is a corner lot that has a property line fence that's a little taller than theirs. And we discussed maybe a continuation of that line down to a co-complying scenario that would maybe give just a little bit of a wedge and a design nod of carrying that and with a similar design down, I think ultimately that proved insufficient for their needs and that they were not interested in that. So the result was just a straight variance denial.

And is the current fence at the maximum allowable height, or could that configuration be higher without being a flat, solid wall?

The current fence, so the planning code allows a solid fence of up to three feet. The existing fence they have now is a solid fence of approximately four feet. So their existing fence is already approximately one foot higher than what would be permitted under the code.

And a fence with 75% perpendicular visibility, something like that? How high could that be? Like a lattice?

That can be seven. And typically, it's some kind of grilled fence. So that tends to be more for security, a little less for privacy, because it has to be 75% open. But whether you see gated fences and grill work, that's typically what that kind of fence is.

And that could be seven feet, you said?

That can be six feet.

Six feet. Thank you.

Sure.

Commissioner Bodd?

Thank you.

Thank you, President Transvino. You anticipated some of the questions I had. So I just wanted to level set on the sort of criterion that sort of triggered or at issue noncompliant. One is location. So the fence line, its alignment, its proximity or setback from the street. The other is height. And the other is permeability. And so I guess my question was, which of those factors could be dialed up or dialed down to help the appellant get as close as possible to a condition that feels acceptable. And it sounds like there has been conversation either before or after the Planning Commission hearing, I'm not quite sure. But there has been some brainstorming that's happened around that already. Is that correct? Sure.

And I don't want to speak for them. I think they could speak to that. I think they could speak for themselves in terms of what are their specific needs and desires there. My understanding was that it was a combination of privacy and security maybe the privacy first which is the need for the solid nature of the again if it was purely security you can do a six foot tall one um as long as it's um again 75 permeable um to use that terminology um but i would i would defer to them to see specifically what you want to do that i would say for the six foot fence obviously It has a 75% requirement. How you move the massing around for what is the 25% and the 75% is not dictated under the code. People can have different designs that they may want to use for that. Although, understandably, that only having 25% to work with is probably still not going get a privacy, meet a privacy standard that they would have.

Yeah, right. I see the current conditions like a picket. There's spacing. You can see through it. It's kind of permeable. It might not, if you've got small kids running around the yard, it might feel to someone like a little bit exposed. The appellant also shared a a quick sketch a little bit earlier. And I'm just curious if that had been submitted or if the department opined or if there was any collaboration with that particular configuration.

I'm not sure if I'm referencing the same thing, but I believe what they showed was that was their proposed plans for the fence.

there are proposed plans in our packets but i think there was a fresh there was a second okay i'm not sure if i saw that when i might have been writing all right at that point in time i apologize yeah yeah just trying to get a sense of what kind of collaboration has happened and so we've also noted that at 951 chenery on the corner there is a solid fence that's visually impermeable it um that is at the property line and comes right out to the edge of the sidewalk, the edge of the right-of-way. And so I think that's just something that I'm thinking about, you know, if we've got that condition directly next door. Sure, I think it's maybe Chenery's side yard or backyard.

The rear yard, sure. It's a corner lot so that the front's on Chenery and not on Burnside.

OK, so there's an existing condition there that, OK, there might be a different way we would interpret how that condition is or isn't acceptable, depending on whether or not it's the rear yard or the side yard. I guess my question is, why is the condition just next door of a solid impermeable plane that goes up to four feet

okay and how does that how do those conditions change or those parameters change when we get to the sure yeah i mean under the under the planning code i mean the way it's set up right now is again for property how it fronts the street like it's frontage that's what we're talking about um for corner lots you're going to have you know your frontage which is typically designated for code purposes because we treat front and rear and sides differently But also, it's functionally different. It's typically where the existing building meets the street and responds to the street. And corner lots are unique because instead of having your rear yard tucked in between other lots, it's along the street. And the way the planning code regulates that now is that it doesn't treat those rear yards on a corner lot differently than any other interior block rear yard when it comes to the height of fences that are permitted there. So that would be purely just a design issue, but typically that's why you will see it's not uncommon for corner lots to have a taller solid fence for their rear yard than three feet. And that's different than what's permitted for a lot frontage under the code.

The neighbor, I believe it's to the, is it the west or the south? The opposite, on the opposite side of the house, of the frontage from 951 Burnside, has, I guess, their principal floor is elevated off the street. I can't remember if they're above a garage or something. We know that they are one of the neighbors who submitted a letter of support for a different fence condition. And I think I overheard earlier that one of the neighbors One of the rationales for that is that from within their house, this fence next door doesn't obstruct a view. Or are neighbors' sight lines out the front to the street ever a consideration in terms of our objective design standards? Sure.

I mean, I can say that that's not a concern or an issue raised in any of our adopted guidelines or planning code controls when taking these things into consideration. because the finding number four in a variance is not specific. It basically states that in order to grant the variance, you have to find that the project would not be materially injurious to properties in the vicinity. That's a big term. That's a large phrase. It's at the discretion of the zoning administrator. To make that determination, of course, we try to be consistent in the principles and the factors that we use over time. To my knowledge, I don't know that that's ever really been a factor when considering these types of variances.

Okay. I guess just noting that the neighbor is in support of a different condition and maybe the one that the appellant has depicted in their application. Okay.

And this is a conversation we have with applicants somewhat frequently, which is we love for applicants to work with their neighbors. We love to have neighbor support. It's obviously preferred to the opposite, not working with your neighbors. And opposition can be challenging. But that's also not a guarantee that the project is going to meet the required findings of a variance.

Certainly, I guess if an injurious condition is something that's under consideration, we do have a property next door saying we don't feel injured by this.

And it's also worth noting that when we're looking at that too, We're not just looking at the existing residents or occupants. We're also looking at that condition as it will exist long term, no matter who lives there. And so sometimes those issues are a matter of preference based on who's living there now. And that's why a lot of our design guidelines, the residential design guidelines, are really based on the underlying principle of the design guideline and not necessarily the preference of a neighbor who may be there at that time.

Great. I think those are most of my questions. And I guess I'm just coming back to it's a variance of some combination of location, height, and permeability. Like there could be some, we could dial any one of those up or down and get closer to what the, I guess, the objectives of the design standards are and maybe what the appellant feels like satisfies their privacy and security needs. That's okay. Thank you so much. Sure.

Thank you, Commissioner. Vice President Stroyan?

Good evening, Mr. Teague. So I am, as you know, I'm new to the planning code. So forgive my questions, because if they seem. So variants, you have these terms, exceptional, extraordinary circumstances. Are those defined in the code?

And I think we've had some level of conversation about this in some of our previous variance appeals. They are not defined in the code or further defined. Those findings are in the charter, and they're not further defined in the planning code either.

So they're subject to discretion of whoever holds the position.

Correct. Yeah, the zoning administrator is the person charged with making the determination. Yes. And so how that is kind of interpreted either consistently or on a case-by-case basis is at their discretion.

And I found your variance decision well-reasoned, and I understand. But I... as someone who's raised a family in this city, find that there actually may be exceptional and extraordinary circumstances here, given that there's a school across the street, there are young children, there are many cars, there's the potential for a young child who's playing in the front yard without a high fence to potentially get through the fence, to be in front of a car. And so I think that... What strikes me now is that we want our families to stay in San Francisco. So if there are things that we can do within our discretion to allow them to thrive here and raise their families, it seems within, I don't think it's an unreasonable interpretation of the words exceptional or extraordinary circumstances to perhaps consider a variance, maybe with some compromise. I'm just saying, maybe it's a five-foot fence. Or we've seen in some cases where there's a lattice, or it's covered with roses, or things like that. And you've been doing this much longer than I have, and I respect your decision. But it seems to me that exceptional or extraordinary is subject to interpretation. And then when you go into the second criteria, practical difficulty or unnecessary hardship, to me, I would focus on not only privacy, but safety and security of those young children. My daughter went to a school that was across the street. It took up a whole city block. And fortunately, there weren't young children running across the street. And I think that what I would be concerned about is, God forbid, the mother's in the house, the kids are there, and one of them dashes over the fence or something like that and gets hit. I mean, that's playing it out to an extreme. But I think I can see how there could be hardship there. So while I understand your position, I do see the appellant's side of it. And I think that extraordinary and exceptional could be interpreted differently. And minding the fact that you're very aware or conscious of setting precedent, however, this is Glen Park. This is a unique situation. And there are many factors, multifactorial here. And so I might encourage the department to work again with the appellant to using those three factors to design something that might work.

Sure. One thing I would want to point out is that, especially on the safety side, one of the issues you raised there was the potential for a child inadvertently leave the property, especially a young child. And right now, you have a four-foot-tall solid fence is pretty effective at that specific scenario that you called out. Obviously, a four-foot fence, a six-foot fence is not going to keep people out who want to try to climb over it. A six-foot is better than four. But on the safety front, pretty much almost every single variance we've had proposed for this, the ones that have been denied and the ones that ended up revising their project because they didn't think they had a very good chance of getting the variance, to a T, all of them were basically safety. Because it's the front of your home, right? And so there's kind of always a safety argument that I want to prevent people from breaking into my home. et cetera, et cetera. And again, not to discount that concern, because of course, we all want to feel safe. And of course, we live in a very urban city, and so property crime is a real thing. So there's nothing against that. Only to say that those issues are known, and the Board of Supervisors has still purposely for decades not allowed these fences taller than this. This is not an unknown issue, and it's kind of a universal issue. I understand that living across the street from a school is different than not living across the street from the school. And again, this is obviously up to the board's discretion. Now it's before you. But when I was reviewing it, it was not something kind of higher traffic in an urban city, higher pedestrian traffic in an urban city, unless there's something really extreme or unusual, didn't rise to the level of exceptional and extraordinary.

In your experience?

Yeah, sure.

Okay, thank you.

Thank you. Commissioner Lopez?

Thank you. So the appellant included a number of granted variances in the presentation. And I believe you said that one of them was not as familiar to you. But could you, to the extent that you could speak to any of the others that were included in the presentation that we just saw, how would you distinguish this property from those?

Sure. The only one I saw in the presentation, and again, I didn't catch every single bit of the presentation because I was also doing some review myself and writing some things down. The only one I saw in the presentation was 152 LC, I believe. And the thing that made that one fairly different is that was in Bernal Heights and a situation where the road and the sidewalk splits. And it was a very narrow context. And I think technically the fence height from grade was like eight feet. But from the property line to grade, there was a retaining wall, so it was a drop. So above the sidewalk, I think the fence was only... maybe three to four feet above the sidewalk. And it was a very small home there that was set back not very far. And it was a very unique sidewalk function, where also the front windows of the home were also, because it was sunk, but very close, and you have this very small sidewalk. It was a very unusual circumstance there. And I can't remember all the exact details, because I wasn't prepared for that one before. But effectively, it was... a much more unique scenario than just kind of a, you know, this isn't like a perfectly flat property. And it has the issue that the building is set back a little bit, and it's not a super deep lot. But otherwise, the front setback context isn't really particularly unique in this case relative to that one was an extremely unique scenario.

And then if we took a different tact, because I think you were prepared to discuss other somewhat similar variance requests that were denied. But could we take a different approach? Could you, to the extent, and this is kind of putting you on the spot here, but only to the extent that you're prepared to discuss. Can you think of any somewhat similar variance requests that have been granted?

No, actually, I can't. Again, there are a couple. I can think of maybe two, including the Elsie one, where the effective height at the sidewalk was closer to maybe four feet. It was a very small difference from three to four. And this isn't to say that in the decades of granting variances, none have ever been granted, because I obviously am not aware of the full the details of the four archive of variances granted. I can say during my tenure here, I'm not familiar with just a six-foot solid fence being granted a variance within the front setback. It's possible that it's out there, and there may be some really unique scenario that justified it. I'm just not personally aware of it.

And the ones that come to mind, you're essentially saying that, the factor that was notable or determinative was the grade, essentially? Oh, the LC1.

Yeah, it was a combination of the grade both on their property and the grade in the public right-of-way. And also, it was an extremely narrow sidewalk scenario situation as well. OK. Because you had the, it was, Because in Bernal, you have some of the blocks where the roadway actually departs from the sidewalk, as opposed to them being essentially at the same plane. And that combined with it being Bernal, you had a little canyon alley of a sidewalk there, if my memory is serving me correctly on that one.

Got it. Can you speak to the... So I'm hearing that the grade and the dynamic between the sidewalk and the street, those are compelling factors. But can you speak to the testimony that we've heard about not having backyard space and essentially being somewhat, I think from the perspective of the appellant anyway, having a unique circumstance in that most of the other neighbors have backyard open space and this lot does not.

I guess it kind of depends on how you look at it. And obviously, this is just a discretion to determine if this is exceptional or extraordinary. I think within the residential context in San Francisco, we have huge diversity. We have single-family homes that have nice front setbacks and nice rear yards, kind of almost like a suburban context. And we have multi-unit buildings with no yards and no decks and no real open space for anybody to use. And then we kind of have everything in between. So I think that's where I was saying that some people don't have any yard, some people only have a front setback, some people only have a side, or some people only have a rear. We have a very diverse... residential context here in the city. So that's where it's like that in and of itself was not seen as something that would be exceptional or extraordinary, especially relative to what was permitted along your front setback.

And so we had a little bit of discussion about, hey, exceptional and how it's not defined. And obviously, it's discretionary. Is the department's practice to assess whether something is exceptional within the context of the full city versus within a neighborhood? Or is there guidance on that? Or is that essentially depending on who's in the chair?

Yeah, there's no guidance provided. The only guidance for variances are literally what's written in the five findings. There's no other guidance provided either in the charter or the planning code. And I don't think there's necessarily a standard for whether it's always a review that's considering kind of citywide versus neighborhood versus immediately adjacent. I think it's something that's reviewed on a case-by-case basis depending on what's being proposed and the arguments that are made. Got it. Thank you.

Thank you, Commissioner Bodd.

Thank you. The existing condition on the site, I think it is short pickets. There may be 36, 48 inches tall, and they're spaced. They look like they might be six to eight inches wide, and they're spaced maybe three to four inches from one another. That is right on the property line. I don't have a spec on the height, but is the current condition just as it is, which encloses the entirety of the front yard? It's right up against the sidewalk. compliance?

No, right now it is basically a picket fence. I don't, I mean, there's, I don't think there's any real separation, much separation between the pickets. It's effectively solid. And I haven't measured it, but what's represented on the plans and what bears out, I think in the pictures is that it's approximately four feet high.

Okay.

So I think the, you know, if that was only three feet high, it would be co-complying as exists. I think it's about a foot higher than what would be permitted. Okay. Thank you.

Thank you. No further questions. Does DBI want to weigh in on this case? No? OK. We're going to move on to public comment. Is there anyone in the room who wants to provide public comment? Anyone on Zoom, please raise your hand. I don't see anyone. So we're going to move on to rebuttal. Mr. Little, you have three minutes to address the board.

Could you show the screen?

Computer, please. Thank you.

Thank you. So I want to address the four key points from the zoning administrator's response. Firstly, our circumstances are exceptional. The zoning administrator says our circumstances are not uncommon, but he's looking at factors in isolation. How many properties have all of these factors combined? No functional rear yard, an elongated lot, a steep elevated streetscape directly across from a school, one block from a major park entrance with no parking provided, on a cross-town trail, and on a historic walking tour route. We've reviewed the 250 neighboring houses. That's a lot of houses. And we can find virtually none that have no real yard. And so we think our property genuinely is unique and exceptional. This does obviously create hardship. The zoning administrator characterizes our lot just as shallow, but a shallow rear yard still allows a 10-foot fence as a right creating an area of privacy. We have no functional rear yard, so no location anywhere on our property where we can achieve outdoor privacy. That's not a shallow lot. This is a lot with no outdoor private space. The suggested alternatives don't work. The zoning administrator suggests landscaping. We've talked about that, or building outside the setback. but our lot geometry would place the fence behind an angle to our neighbor's facade, creating exactly the visual discontinuity that the code aims to prevent. We proposed a compromise solution which we discussed, which is a wedge setback with public landscaping in front of the fence aligning with our only neighbor's front facade. This was rejected without substantive analysis. The zoning administrator claims these variances are consistently denied, but the record shows otherwise. We're not creating precedent. We're following precedent already established. I refer again to this picture on Elsie Street. You can see I'm six foot three tall. That fence goes two feet above my head from the sidewalk. That's an eight and a half foot fence from the sidewalk. We also have a sidewalk which is elevated from our house over three feet and a very steep grade. So in that case, they approved an 8 and 1 half foot fence, citing privacy and security. At Shotwell in 2023, they approved over a 6 foot fence, finding the front setback was the most practical area for enclosed open space. We're asking for less than this, 6 feet versus 8.5, while offering a lot more, a fence aligned to our neighbor's facade, landscaping that others haven't provided. 30 seconds. TO OFFSET CONCERNS ABOUT A BLANK WALL AND UNANIMOUS ADJACENT NEIGHBOR SUPPORT, SUPPORTING THE FACT THERE'S NO LOCAL HARM. SO OVERALL, THIS IS A MODEST REQUEST TO REPLACE A TERMITE-DAMAGED, ALREADY NON-CONFORMING FENCE. EVERY NEIGHBOR SUPPORTS IT. NO ONE IS HARMED. AND WE RESPECTFULLY ASK THE BOARD TO GRANT THE VARIANT.

THANK YOU. WE DO HAVE SOME QUESTIONS, MR. LITTLE. IF YOU COULD STAY THERE, PLEASE. FIRST FROM COMMISSIONER ABBOTT AND THEN VICE PRESIDENT SOROYAN.

Apologies, I think my hand was still up from before so okay Commissioner vice president Sorian Do you do you have this picture yes, can you bring it up, please?

Computer please.

Thank you All right, so is yours the light yellow house yes, okay, is it possible to zoom in on the fence Alec No

I think it's a set photo. I could put it on the laptop or something.

I can. It looks to me as if there might be some space between the picket, between the posts.

About an inch between. It is effectively a solid fence.

And when you say that Part of your compromise was to follow the line of your neighbor's fence. Is that the brown wood fence?

No. So the brown wood fence is the property facing Chenery. So they don't face us. So they're, for the intents and purposes in the planning department's case, not relevant here. What matters is the house on the other side, the purpley blue house. The blue. They're the house where the code is designed to protect their sight lines, et cetera. So our compromise, if I can bring that up, was to essentially align, because they're angled as well, their house is angled relative to the streetscape, so the solution that we proposed was to put a fence that is exactly parallel to their front facade that would create this wedge of green space that we would give back to the public and plant on. So our idea was that this, by being exactly parallel and aligned to their front facade, that is the intention of the code is to have continuity of the front facades of houses and also to protect sight lines. And so that's why we proposed that.

But there's a gap because you've got your front steps and the garage. There is a gap, yeah. I don't understand what you mean when you say wedge. Oh, sorry. Because a wedge is connected. This is like a wedge with a break in the middle.

The wedge here is the area of space that was previously within our yard that would now be outside of our fence, and that this area would be now part of the public space that we would plant in.

I see.

To create. So we'd be giving back some space to the public. We'd plant in this area to obviate the concern about having a big blank wall. And then this line here of our front fence would be perfectly aligned. Actually, it's better shown on the big one. Would be perfectly aligned with the front facade of the house so that there's no concerns around sight lines.

OK. OK. Thank you. Now, you showed us a picture of the alley.

Yes.

In an ideal world, that's the fence you want. I understand. No.

No, that's bigger than we want. That's an 8 and 1 half foot fence.

But that's the kind of wall you want. Would you consider something less imposing than that? Would you consider alternative?

Well, this was our idea to make something less imposing by planting.

Oh, this might work. But if you go back to the shot well, right? This.

Yeah.

Is that what you want?

The original variance was a step down fence, so five to six feet. It continues the style of our neighbor on Chenery, but not exactly that. And obviously it's less than that. And you raised the concern about kids running out of the yard. Our other concern is like adults getting into the yard, seeing the kids taking kids. So that's more of our concern than kids getting out of the yard.

Let me ask you this. Would you be open to consider alternative solutions that might work for both parties? I know you have been.

We have been. I can show you the solution that was kind of offered to us.

Sure.

Here shown here, this is a picture from the zoning administrator who said that we could have a 57 inch single panel that was six feet wide on the edge of our fence that would not restore privacy or security. So that's why that was rejected by us. That's shown in red here.

Yes.

So a single panel. at 57 inches, which is only nine inches higher than the current fence, on a single panel, not the complete way across, does not restore privacy or any security or safety for our kids.

However, both sides were working to compromise just didn't make it to that point yet.

So that was what was essentially offered as a compromise by the zoning administrator with a clear direction like that's the limit of what could be offered. I see.

OK, understood. But you'd be willing to have other conversations if something other than this were presented?

Absolutely. We think that we're looking to find a compromise. We propose something we think is in the spirit of the planning code, gives back some space and some land to the public that we could plant in that would look beautiful. negates concerns about sight lines because it would be perfectly aligned with our neighbor's front facade. And that is what we think is an appropriate compromise.

Thank you so much for answering my question.

Thank you.

OK, thank you. No further questions. You can be seated. Thank you. OK, we'll hear from the planning department.

Thank you again, President Trasvinia, Commissioners, Corey Teague again. A couple quick points, then just a few photos. One, the reference to... variance letters stating no public opposition and finding number four. Basically, every variance decision letter, finding number four, because it's talking about impacts to properties on the vicinity, we always list what the public comment was there, whether it was no opposition, whether it was some opposition. Sometimes there's opposition that we document there, but we still grant it. We still say... Despite the opposition, it was still. So just to be clear, that's not a unique factor there. The other thing I want to point out is the concern, which is we have an appellant here. Again, I completely understand what they want. So there's nothing against anything there. And they worked in good faith through this whole process. But part of their justification is finding a different variance that was granted. to justify as theirs, which if this one is granted, the next person finds both of those to justify as theirs. And then you see how that happens. That's what I'm concerned about. I feel like the photos that are provided for the Elsie Street one, it's a little challenging to see exactly how that is from that photo. And also, I wasn't prepared to discuss that case. But it was a very different scenario than what we're talking about here. And so what I would like to do is just, I did have, I'm going to put on the overhead here, three of the ones that were denied in the last several years, just to give an example of those.

All right, please. Thank you.

So here is basically a gate and a fence above a front structure area for this building that was already built and is proposed to be legalized. Solid fencing that was denied earlier last year. This one is only kind of a wall and a gate that was over six feet tall, even though it was open grill. And that one was required to be brought down to six feet in height, but 75% open. And the solid nature was primarily required to be opened up here for that entry. And then... This is an example on Shotwell Street from several years ago, where a six to seven foot fence had been installed without permit. And the variance came in, proposed to legalize it. And this was also denied. And so I always wanted to provide those examples as kind of part of the rationale, what we're thinking about for similar cases and for this case as well. But I'm available for any questions you may have.

Thank you. Is there a question? Commissioner Lopez has a question.

Just to return to Elsie, so the appellant's deck Well, that doesn't slide. Sorry. The appellant's slides had a quote from, I think, your variance decision on LC, where it seemed like the language suggested that the exceptionality of the proposal was assessed based on the surrounding I think the slide said something to the effect of compared to a similar class of district.

That's in the finding. The finding basically, we could open it, but the findings themselves one or two of them, maybe the third one is, the third finding is whether or not the variance is necessary to ensure that the property maintains a substantial property right similar to other properties in the same class of district. So that's language. I don't think that would be language that I would have used to respond to how the finding was met, but that is in the finding number three.

I see. So that's related to the property interest prong and not the exceptionality prong. Correct. Correct. Got it. That's it.

Thank you. I don't see any further questions. You can be seated. So Commissioner, this matter is submitted. Commissioner Abad just stepped in the back for a moment. So we'll just wait for his return.

Are you asking me to dispense until Commissioner Abad? No, no, no.

Let's just pause. I believe he's coming right back. So this matter is submitted. Instead of going into recess and disconnecting from SFGov TV, I think we should just wait a moment.

Yeah, right. I'll dispense until...

Yes, I think we should wait until he comes back.

I can go check. OK. OK.

Thank you. So Commissioner Bodd, this matter is submitted and discussion will begin. Thank you.

Thank you. And I really want to thank the appellant and Mr. Teague for their presentations, my colleagues for their questions and the dialogue. Mr. Teague has struck me over the period of years that I've been on this board as someone who makes the presentation of, in the body language of, if I could do it, I would do it. Open to suggestions, open to ideas. Right now, the barrier seems to be the requirements for the variance. And I want to contrast this matter with the one we just heard, where in the one we just heard, language such as a violation shall be equal to, a chart, very specific matters. Here, in contrast, we have a variance. By its nature, an exception. And as has been stated, the zoning administrator has a lot of discretion and my colleagues have brought out a lot of these points. And the operative language to me is exceptional or extraordinary. Not exceptional and extraordinary, exceptional or extraordinary. And Vice President Soroyan has brought up the issues of families. The zoning administrator said there is no actual guidance on this. At the same time, but he's guided in part by by past decisions, approvals and disprovals and variances. Those came at various times in the past. We are now in the present, 2026. If you're looking for guidance on families or on trying to maintain communities, the Board of Supervisors and the Mayor have just come to an agreement on zoning legislation that talks about family-friendly amenities. Not that that applies specifically to this, but it's certainly an indication of where the legislative body and the executive body of the city stand. We've got the state saying, San Francisco, you need more housing. We need to keep families intact, not make them choose to move or be forced to move. So as we are trying to reach a decision here, I'm very much informed by that orientation to the zoning administrator does have discretion, could look to those matters that were not present in the past, but those are policy decisions enacted by the city. And I will ask my colleagues, particularly Vice President Soroyan, for some thoughts on where we go from here, whether we continue this so that the city and the appellant can have more time to work things out, or whether we try to take our hand at coming up with something tonight. Vice President Soroyan.

Thank you for your guidance, President Trusvinia. I think you're right on the money. And I feel that Mr. Teague is always well informed, and he wants to do what's right for the city and the public. And here I think that I'm inclined to follow a path that we followed with a variance. I think a meeting or two ago where the family came before us and they asked to put in a staircase into their backyard, which wasn't something that had been approved before, but given the circumstances, the family situation, some flexibility in the code, they were able to work with the zoning administrator, I believe, to redraft the variance to approve the homeowner's desire to add the staircase and here potentially a fence. So I would lean towards that. rather than heavy-handed to allow the parties more time. I don't know if we need a continuance. I think in that case we perhaps, how do we manage?

We continued so that it would give the parties time to draft findings that would support the issuance of the variance. So the appellant would work with the zoning administrator and I would look it over and then it would be presented at a meeting in the future, either March 4th or March 11th if that's enough time, and then you could adopt that

I'd be inclined to make the same recommendation, but I'd be open to my colleagues' thoughts on the matter.

I think the zoning administrator wanted to add something to this. I think it would be beneficial if we yield it to him for a comment on your idea.

OK, thank you, President Tresfino. The only point of clarification I would ask for is that there's kind of two very objective options right now, which is deny the appeal or grant the appeal and approve as proposed. What I'm hearing a little bit, though, is maybe a middle ground option C, which is grant the appeal and find a compromise. That's not fully what was proposed. So if there was a desire to land on a compromise, if this was going to be continued, we would need some guidance from the board as to what that what are the parameters of that compromise? Because otherwise, it would just kind of be left to us without really understanding what the board's intentions were, desires were, as to the nature of that compromise. So I just wanted to make that request.

I've got one for you. So first, I meant to ask this earlier, and it's in my mind. So can you confirm that the diagram that the appellant showed with a continuation of the step fence for essentially one more panel, was that something that you had proposed or discussed as potentially viable?

Yes. I mean, I can't, like, confirm the 100% validity of that. But we were on a, you know, a Teams meeting together or a Zoom meeting, and we were kind of drawing on the screen. And that does look like one of the things we talked about. One of the things that I referenced, which was kind of like a compromise that was going to be kind of a continuation of the stepping down of that adjacent fence pattern, just to the extent to allow that transition to happen. And that was kind of a level of compromise that was offered. But again, that was deemed kind of insufficient by the applicants.

And why wouldn't continuing that step down for additional panels, why wouldn't that work from the city's perspective?

Well, if you keep stepping it down, you get to a co-complying state. So we were okay with that. That's essentially what happened was... Once it steps down, then you're meeting the code-acquired height, or maybe it was in the existing height, allowing that to maintain the existing height. I can't remember the exact details of that. So that would have been fine. That option didn't move forward because the applicants determined that wasn't sufficient for their needs.

All right. Thank you. Thank you for clarifying that. Sure. No problem.

I am considering making a motion to grant the appeal with the proviso that the parties meet or sorry the appellant meets with the zoning administrator to redraft the variance decision to meet the city and the appellant's needs with the guidance that using the appellant's drawing with the wedge shape to continue the sight line as well as finding a compromise on the height of the fence.

I would recommend that you continue it, as we did the last variance decision, so that they could work together.

We didn't grant or deny.

We just continued. We continued it for the purpose of the parties working together to draft findings that would support the issuance of a variance.

I agree. Yes. OK.

And Vice President Soroyan, would it be helpful for your motion to include that the board is seeking the promotion of privacy for the family and elements in the variance that would highlight its uniqueness?

Yes. But I think what Mr. T was trying to get from the board is, You're saying compromise. They tried working on it. They didn't compromise or inclined to grant a variance that would support a six-foot fence that's solid across. They need a little direction.

I think I'd like to hear what the appellant would be willing to accept, given the reservations of the zoning administrator.

Yeah, I think what I'm hearing is a changing mood in the city that recognizes families and trying to keep families in the city. And I appreciate that. We would be very happy. And I think that the compromise that we already promoted, which is on the sight line aligns the front facade, we, of course, would be happy to accept. That would be a great starting point to discuss. The picture that I showed was actually from an email from the zoning administrator and that's a single panel at nine inches higher than current six feet. That's way insufficient because that won't create the privacy that the commissioner president mentioned. So we would be willing to accept something that respects the planning code. We'd be very happy to accept something that respects the intent of the planning code, recognizes, as you say, the exceptional unique circumstances of our property. And I think that probably the best starting point is to go back and look at that compromise solution that we did submit but was never really fully assessed, and we never got formal feedback on why that doesn't meet the code requirements. So we would love to start there and think that that was formally submitted, but we've just told a blank no on that.

All right. But I think what you need to consider also is if what they proposed is three feet continuation, that wasn't acceptable to you, but is somewhere perhaps between five feet and six feet. I'm just positing some of the thoughts. Your six feet was acceptable.

Well, really to achieve privacy, like the Commission President said, we want something that is solid up to the average eye level, essentially. And also we have this very slopey hill where people can look down the hill. So we want to achieve privacy and we'll work with a zoning administrator to achieve that goal of privacy. We will give some space back, but we don't think we should give a third of our front yard back. to create a solution which is not aligned to the Planning Code's original intent, because it gives a wonky line between our neighbors and our fence.

Yes, we understand.

OK. OK, Commissioner Bodd, did you have something further?

Yes, just maybe a couple ideas to help get closer to what you proposed, Director Lamar, which is some more specifics to help our two parties really work around something. So the considerations are height, location, so relative to the front property line, and permeability. So it seems that there's probably not all of those are going to be satisfied, perhaps. There's going to have to be some compromise between the property owner and and the planning department along those axes so maybe it's as high as you need it to be and it's more solid but it's set back a bit further really than you'd prefer that's kind of what we've already proposed yeah so yeah right so um and i think you clarify you answered a question that i posed earlier was which is did your wedge diagram was that ever formally discussed or presented. It was unclear, in the collaboration that you so far have done, where that landed, whether or not it was assessed. So I think those are three helpful factors to think about in terms of what the envelope of, you know. I lost my train of thought on the other item for the variants, but I think those would be helpful for the two parties to be thinking about as you bring this back to us.

So I can clarify that that was submitted, but it was rejected without feedback. Okay. Thanks for that clarification. Of those three factors, we did move on the location. Essentially, if you go back into your behind the setback, you can have as big a fence as you want. So we've already compromised on location, giving planting space back to the city. To sustain privacy, there has to be a certain height and a certain solidity if you're going to have privacy to have unsupervised play for your kids. Yeah. So we'd be happy to work on that position. Great.

Thank you for that extra clarification. So I'm excited that there'll be some conversation, some designing. And I did recall the other thing I wanted to offer, which is that I think the continuance should emphasize privacy and safety for kids and also that we should acknowledge that sort of the public impact is a consideration that's why we you know part of generating the objective design standards and the interpretation of those so maybe there is some language you know that for example your wedge the wedge configuration offered more planting area for the street right so there's a softer edge rather than just a hard plane just abutting the sidewalk so I don't know that the way that it was depicted, none of the drawings we've gotten are to scale, so it's hard to know really how far back it needs to be pushed. My heavily pregnant wife drew them. Parallel or flush with your neighbor's facade. I don't know that those lines always matched up in the sketches that we saw. But I think consideration for impact to the public realm, softening the edge, a la some of the suggestions the zoning administrator had for vegetation. That's all. Thank you.

Before I recognize Commissioner Lopez, I just want to say I am confident that the appellant and the zoning administrator are hearing our interests, concerns, priorities, and they don't need to be all memorialized in the motion.

Commissioner Lopez. Thank you. I think you're free to be seated. I don't think we have further questions for you. Thank you. Mr. Teague, just to clear this up, the wedge proposal is what you looked at and rejected. Is that correct?

Thank you, Commissioner Lopez, for the question. Yes, it was reviewed and considered. There wasn't a substantial conversation about it because it's not substantially different from the original proposal. It just provides a slight angle and a little bit of expanding setback from the front setback. But effectively, it wasn't fundamentally different from the original proposal.

Got it. Thank you. So yeah, I would say, just to echo what President Terzina just said, I think we want to make sure that both sides are clear. If we saw no issues with the current proposal, we'd be granting the appeal. So I think we're saying along the dials to adjust that Commissioner Abad pointed out, high setback. permeability, there needs to be some adjustments. And then with respect to the ZA, I think it's clear that maybe if the proposal were a little bit different along those three dials, we would have been ready to grant the appeal. Because there is that sensitivity, from my perspective, to the uniqueness of this property. And I'm hearing a lot. And as a parent of six-year-olds, I'm sensitive to the challenges of raising young kids in the city. And that's loud and clear coming from other floors in this building. And so we'd like to see some of that, you know, concern, I guess, or attention applied to those questions. But I just want to echo, you know, it's not going to work if we just get the same proposal again. The wedge has been considered by both the ZA, by us, and it doesn't quite get there. And so I just want to make it clear that the the continuance will only be successful.

I think if we get something Different than what we've already looked at Okay, thank you and we're looking at either March 4th or March 11th to the parties have a preference Fourth does that work for the zoning administrator? OK, so we have a motion from Commissioner Soroyan to continue this matter to March 4 to allow time for the appellants to prepare written findings in consultation with the zoning administrator to support the issuance of a variance taking into account the promotion of privacy and safety for children, and also considering the impact on the public, and taking into consideration the height, setback location, and permeability of the fence. On that motion, Commissioner Lopez. Aye. President Trasvino. Aye. Commissioner Abad aye so that motion carries 4 to 0 and the matter is continued. Thank you We will now MOVE ON. THANK YOU SO MUCH FOR YOUR PATIENCE. TO ITEM NUMBER 9, THIS IS APPEAL NUMBER 25-055, MATTHEW GEIS AND SANDRA GROOM VERSUS DEPARTMENT OF BUILDING INSPECTION PLANNING DEPARTMENT APPROVAL SUBJECT PROPERTY 678 VERMONT STREET APPEALING ISSUANCE ON NOVEMBER 26, 2025 TO JASON O'CONNOR OF AN ALTERATION PERMIT REVISION TO PERMIT APPLICATION NUMBER 2025-06309746 FULL IN KIND REPLACEMENT OF THE EXISTING REAR DECK LOCATED IN THE REAR YARD SET BACK PER San Francisco Planning Code Section 188.1, minor floor layout and structural modifications. Update the heating to a boiler for radiant floor heating and domestic water heating. This is permit number 2025-11240260, and we'll hear from the appellants first. Welcome. You have seven minutes.

Thank you, commissioners, President Trevisna and Vice President Ceroña. My name is Andrew Catterall. I'm appearing on behalf of appellants Matthew Wayne Geist and Sandra Groom. They're the owners of 674 Vermont Street. Appellants are appealing the decision of the Department of Building Inspections issuance of the building permit number 02511240260 at their neighboring property at 678 Vermont Street. Permit number 0260 is a revision permit to permit number 9746. Permit number 9746 was issued in July 11, 2025, and included a rear deck repair not to exceed 50%. The deck at issue in this appeal is a rear deck that was built at some point without permits and does not include the required setbacks. So it goes flush with the neighboring property line. Prior to the issuance of permit number 0260, the permit that's being appealed here, in mid-November, the permit holder had already demolished 100% of the existing deck and the deck that they were supposed to be repairing and had started building a brand new deck. This is despite the fact that the permit that had been issued at that time was a permit simply to repair the existing deck up to 50%. At some point, the permit holder apparently realized that either the neighbor or the DBI was onto the issue. And then what they did effectively at that point is they took the old wood that had already been demolished from the deck and was lying in the yard, built it back up, sistering it to the new deck. gave the appearance that there was a deck repair that had occurred rather than the demolition of a deck and the building of a new deck. This was prior to the DBI's November 19 inspection. And following that inspection, the permit holder then removed the old wood again and revealed underneath it the brand new deck that had been constructed. In furtherance of their efforts to build a brand new deck under the existing permit, on November 26, The permit sought a revision to the permit that they already had. This is the permit that's being appealed. And this permit seeks a full inclined replacement of the existing rear yard deck located in the rear yard setback per SF Planning Code 188.1. At that point, when they applied for this permit in November 26, the existing deck had already been demolished. It no longer existed. And the new deck had been built. Not only that, but the Planning Code Section 188.1 was only enacted in September of 2025. And so at the time that they had started this project and sought the permits, they couldn't have legally used that Planning Code Section. Appellants have subsequently learned from the DBI in its brief that the DBI believes that the project was approved in error and that any deck, quote, that they should seek approval for a new deck, maintaining all required fire separation distances from the property lines. We've also learned from the planning department in their briefing that the replacement deck should have included the required three foot setbacks to be consistent with the residential design guidelines. Appellant's request that the subject permit be revoked and that the permit holder be required to seek and justify variance under the law applicable at the time the work was completed and permitted. Appellant Matthew Geist will now testify for the remaining time and will show some photographs of the project using the computer. Thank you, and I'll be available for any follow-up.

Thank you, Commissioners, President, Vice President. Would you be able to show the document that

We paused the time.

Which document? Pardon? Which document?

The one that I emailed you.

It should be on there, right? Wasn't it?

I can see the one for the previous agenda item.

That one right there?

Yeah, that's not us. Yeah. Thank you. OK, I'll try to navigate through this. These are some pictures that show sort of the history of the project. Here's the deck as it existed in July, taken from a bedroom window. And I guess before I go into that, I would say, sorry to get out of order, but we're here because good neighbor negotiations failed. They fell absolutely short. When we knew they were going to be doing work on the deck, we asked our neighbors if they would consider please allowing for privacy by creating a setback and respecting residential building guidelines. And it was a hard stop in that discussion. What we were met with was, how does that benefit us that only benefits you? The deck is already there. That seems like an excessive request. So with that, we realized that's not someone we're going to be able to work with. And they didn't have any regard. But the reality is this creates a huge, it's a very large looming deck. It takes up about 60% of the entire rear yard. And it's elevated above ours, so it eliminates a sense of privacy in our backyard. And then it's at the same level as our teenage daughter's bedroom. And so it provides very clear access into our room. So that's a picture taken when they were doing the work from her room. Again, from her room. That shows how big the deck is right there. It also shows the complete demolition of the deck. Same day, November 14, construction of the deck. That's the new deck. The sistering, which is just basically taking old corrupted wood and joining it, creating a veneer.

More construction.

And then the new deck. This right here is how it looks looking up from our yard. You can see how wide and how far it extends out. Looking to the north, you see the compliant decks. There are still decks you can enjoy, but they don't create a fire hazard. They don't create a privacy issue. On our corner of our block in recent years, three houses have had major fires, ours being one of them. So fires do happen. I know people sometimes think, well, it's not really a hazard. It's absolutely a hazard. The one you see right there, the top one, that was rebuilt by a retired firefighter after he had a fire in his home. And so there's an acknowledgment that these things do happen. And the rework of the deck, it presents an opportunity to do the right thing. The building codes and the residential building guidelines, at least in my read of it, they don't exist to create bureaucracy or cause problems. They exist for reasons like protection of privacy, safety, light, et cetera. 30 seconds. Thank you. This creates an opportunity for any neighbor to do the right thing by bringing something into compliance. This deck has been there for a long time. It's always been a hazard. It's always been a privacy issue. It's an opportunity for a long-term solution to a longstanding problem. And that's what we're hoping to attain here. Thank you.

OK. Thank you. We will now hear from the permit holders.

Welcome. You have seven minutes. Good afternoon, President and Board of Appeals members. My name is Leanne O'Connor, and I'm here today with Jason as the homeowners of 678 Vermont Street. As we're aware, there's no brief submitted by the appellant, so it's a bit difficult for us to prepare what to say here tonight or anticipate what would come up, but we have prepared as best we could. Although this appeal claims that our deck work was fraudulent and exceeded the scope of our permit, we think it's important first to step back and provide insight into ongoing challenges we've experienced with the appellant since our remodel began. What had begun as a friendly neighbour relationship changed significantly once we attempted to begin permitted construction. From the outset, we made a sincere effort to be transparent and upfront with our neighbours by sharing our proposed plans with them before construction and asking for their permission to infill a light well in our shared property. We did this in good faith, believing that open communication would help avoid misunderstandings and foster a cooperative relationship. Unfortunately, this transparency was later used against us. After sharing our plans, the appellants told us they would not be happy if we enclosed the light well. As a result, we agreed to cooperate with them and we preserved a 3 foot by 7 foot light well to maintain light and ventilation for their property. Shortly after we agreed to this, we received a letter from the appellant's attorney threatening that if we did not agree to other demands which are totally unrelated to code compliance that they would appeal our permit. This was Exhibit C in our brief that was originally submitted and the email was received in July 2025. Among these demands is a request to remove long-existing windows along our shared property line, windows that have always existed, and it's also notable that the appellants themselves maintain windows in the same area of concern. This is picture one in the email I had sent earlier.

It should be on the computer. I can help you.

Thank you.

Okay, so this is picture one. These are the two windows that were in the light well as existed. You can clearly see they have windows on their property as well, which look directly into what is now our bedroom and our bathroom. We did not believe it was fair or reasonable for us to be asked to remove our windows while the appellants retained theirs. Nevertheless, in an effort to cooperate and act in good faith, once again, we removed one of the windows on the left. and reduce the size of the other window, and we decided to apply privacy for them. Despite this accommodation, to their concerns, the efforts only marked the beginning of ongoing conflict that was to come. The use of an attorney letter as a primary form of communication, particularly after we had already accommodated their multiple requests, felt aggressive and inconsistent with good faith and ablety conduct. They began ignoring calls, texts and knocks on the doors. Since demo began, we have experienced persistent interference, including a complaint filed within one hour of demolition starting, repeated complaints to the city, confrontational behaviour towards our subcontractors and Norcon special inspectors, refusal to grant access needed to waterproof our building, to which we've still never got a response, and ongoing harassment documented by video evidence in our possession. This appeal is not based on legitimate fire safety or privacy concerns. Instead, the appellants allege that we failed to comply with permits and engaged in fraudulent work. Claims that are contradicted by the fact the project was reviewed and approved by multiple city departments and inspected at several stages. If the appellants genuinely believed that we were exceeding the scope of our permit or engaging in fraudulent work, they could have requested an immediate site inspection or sought a violation during construction. They did not do so. Instead, our work proceeded openly under active permits and with city inspectors visiting the site and expressing satisfaction with the work performed. Neither the planning or DBI identified any fire or safety issues prior to or during the permitted work. Taking together, it shows that the appeal was filed despite our full compliance with city approvals and appears to be an attempt to use the appeal process to advance private interests rather than to raise genuine code or permit concerns. This rear deck has existed in its current location since well before 1995, long before we purchased their home, before the appellants bought their home, and not to mention before we were even born. This is supported by our neighbours' letters of support that they have sent to the board This deck existed for decades without complaint, enforcement, action or any objection. It is not new. It has not been expanded. Its size, location and use have not changed in any way. Our initial permit was limited to an in-kind repair intended solely to address deteriorated conditions and bring the structure into compliance. The deck is significantly safer today than it was in its prior condition. A DBI inspector visited a site before the initial 50% repair work began, again after that work was completed, and again after the revised permit was issued and work performed. Most recently, the inspector visited during the week of January 19 and expressed satisfaction that the work has complied with permits. We purchased this home when we were 26 and 27 years old after years of working hard and saving in San Francisco. It represents a major milestone for us. It's our first home and we've approached our remodel with care, responsibility and full respect for city rules and processes. We followed required permitting processes and complied with all applicable codes. We relied on good faith approvals by the planning and DBI. We were genuinely excited to live in this neighbourhood and we've built positive relationships with many surrounding neighbours, all of whom we get along well with. In fact, we've received support from several neighbours who view the work as meaningful and positive improvement to the home. The appellants, however, appear to be the only neighbours who've raised repeated objections and filed ongoing complaints with the DBI, despite our full compliance. Constant emails, complaints and interference over the course of construction has made this process extremely difficult and stressful for us. The appellants have raised concerns regarding privacy, yet privacy was not an issue when they first purchased their home, at a time when this deck has already existed for many years. Moreover, the appellants themselves maintain a deck on the shared property line that faces directly into our bathroom and bedroom. Rather than pursue any enforcement, we chose a co-operative approach by installing privacy film on our windows to address the issue ourselves. Throughout this process, our goal has always been to create a safe, code-compliant home. A partially repaired deck would not meet that goal, which we realized during our 50% repair. We want a fully compliant, structurally sound deck that's safe for anyone who uses it. It's clearly evident in pictures two and three.

Computer booth, thank you.

Third picture, and this is the second picture. It is clearly evident that the prior condition was unsafe, and work performed corrected that. We had to replace deteriorated dry-rotted decking with premium Ipe wood, which has a Class A fire rating, making the deck significantly safer than before. San Francisco is an exceptionally expensive city in which to purchase a home and undertake permitted construction. We relied on all city approvals and invested significant resources to complete this work lawfully and responsibly. Requiring us to now alter or scale back the deck would impose a material and unjust financial burden, despite our full compliance with city approvals. For these reasons, we respectfully request that the Board deny the appeal and allow the permitted work to remain as completed. Thank you for your time and consideration. Okay, thank you. Jason is here as well to answer any, like, if you have any specific questions. I don't see any questions at this point. Thanks.

Thank you. Okay, we will now hear from the Planning Department.

Good evening, President Trasvinia, Commissioners, Corey Teague for the Planning Department. So as was documented in the brief, this is a little bit of an unfortunate situation in the sense that clearly there was a permit that is appealed before you was a permit to demolish and replace this deck. mostly in-kind, actually a bit of a reduction in terms of the partially enclosed portion to the south, but the deck area and the height essentially is the same. The planner in their approval reference, Planning Code Section 188.1, and this was referenced a little bit earlier, essentially The way the planning code works is if you have an existing deck or stair structure, you are similar to DBI, you can repair that, and that's not considered demolishing and replacing it, and that's up to 50%, and that's what happened in the first permit that was issued earlier. In the appeal permit, they proposed to fully demolish and rebuild. When you completely voluntarily raise and rebuild a structure, you're subject to current code, whatever that may be. In the past, because this is in the required rear yard, to demolish and rebuild this deck where it is would have required a variance. There was legislation that was adopted last year that essentially said if you're a legal non-complying structure in the required rear yard and you want to replace it like this, along with whatever building code requirements may come with that, such as a firewall, you can do that without getting a variance. Similarly, at the same time, there was a planning code amendment that looked at somewhat like an amnesty program for rear yard structures that have existed since before 2003. Maybe they were not permitted, but it existed and it can be documented since before 2003, could be legalized without the need for a variance. So that is the primary change. That's what kind of allows this type of project to now be approved over the counter where before it would have required a variance. What that planning code amendment did not do, though, was make these projects not applicable or make them exempt from design guidelines or other policies we may have, such as the residential design guidelines. And the issues of rear decks have come before this board many times in the past. We've had other times in the past where decks were approved over the counter without a three-foot setback on the side, and that was not caught. And this is another scenario where, technically speaking, whether the deck was legal or not legal from the planning code perspective is not going to have a huge impact. amount of relevance because they would have been able to replace it either way essentially in kind and either way it still would have been subject to their residential design guidelines and no variance requirement so I think especially on the northern side where the appellant is that side in particular the three foot setback would have typically been been required on the south side it's a little bit I think it's it's less clear if that would have been required given the context there and the fact that what's actually happening there is um a reduction to the massing on that side because the enclosed portion um so that's the from the planning department's perspective that's kind of what was missed here is that at least on that northern property line there should have been um a three foot setback required there um And but otherwise, this permit would have been, and even with that, it's a completely co-compliant permit under the planning code. It's just from a design perspective, that three foot setback would have been required. So obviously, it's up to the board to determine, given all the You know, the facts of this case, if that should be warranted in this case or some alternative options be considered. But I believe that covers everything under the planning code side. And I'm available for any questions you may have.

Thank you. President Trasvinia?

Thank you, Mr. Teague. A question I had is about the photograph that was shown that the deck very seriously compromises the privacy of the young woman's bedroom. Is that part of something that is code compliant or not code compliant? Sure.

The code requirements don't really raise privacy. Again, the code would allow it to be built to the property line. It's the residential design guidelines that get into the privacy issues there. And that's why our deck handout kind of provides that guidance it's not universal but the standard the starting point what typically happens if you're building a rear deck there's going to be a minimum three foot setback to address both issues typically the three feet is going to negate the need for a firewall which is a kind of a massing light and air issue and also it's going to give you know it's going to give some level of additional privacy obviously You start going really far. You don't have much to work with. There's only so much that can be done. But that's where that requirement will come from.

So is it fair to conclude that the compromised privacy, the best that we could do to address that problem would be to require a three-foot setback?

Yeah. If we were looking at this as just like, what typically happens for a rear deck when it's being built new or being replaced is that three foot setback would be required to be consistent with the residential design guidelines okay thank you thank you commissioner bod

Thank you. And forgive me, I can't seem to locate in the materials what the dimensions of this deck that has been rebuilt in kind are. Do we happen to know, zoning administrator Teague, is it how?

I don't know off the top of my head. I mean, I think it is on the plans. And my laptop is charging, so I don't have it open right now. I might defer to the permit holder to provide those exact dimensions.

Just trying to understand, how big is this thing? And what is a three-foot setback? What percentage of the current deck would a three-foot setback amount to? I see.

My understanding is that this is a typical 25-foot wide lot, and the deck is essentially full lot width right now is property line to property line.

Sure.

Okay.

So it touches property line both north and south.

In terms of total depth, I'm not sure what the depth of the deck is.

What's the current usable habitable area? So that's just one question that I guess we can pose when we maybe get back into rebuttal or if we have any information from DBI. I'm not sure. Okay. So the Setbacks, three-foot setbacks afford a couple outcomes. That condition tends to increase privacy or create more physical separation between close neighbors, where they're hanging out, where they're having friends over, where you're trying to sleep, maybe do homework. as well as there is a fire safety impact to having structure like a deck with an open underside and set back from the property line. Do I understand that correctly, right?

Correct. I mean, I think from the planning department side, Our regulations aren't getting at the fire safety issue because that's covered by the building and fire code. I think for us, it's more the privacy and the reduced massing, like not having the firewall is going to keep it more open in the rear to allow more kind of light and air to flow through.

Privacy, light and air, and fire safety. OK, thank you. That's all.

OK, thank you. Vice President Soroyan?

Hi, Mr. Zeke, again. So am I to understand that the deck that was existing It's taken down, and then a deck, the same exact dimensions, was rebuilt.

My understanding is that the permit that was granted was for an in-kind deck, so same dimensions, same height, same width and depth. Yeah.

OK. Thank you.

Thank you. No further questions. We'll now hear from DBI.

Good evening, commissioners, President Transvigna, Vice President Saran. I've waited a long time to get up here tonight. Anyway, the permit or the appeal in front of the board tonight is appeal number 25-055. ALTERATION PERMIT APPLICATION NUMBER ENDING IN 0260. THE PROJECT BEFORE THE BOARD THIS EVENING IS FOR THE FOLLOWING. REVISION TO PERMIT NUMBER ENDING IN 9746, FULL AND KIND REPLACEMENT OF EXISTING REAR YARD DECK LOCATED IN THE REAR YARD SETBACK PER SF PLANNING CODE 188.1. MINOR FLOOR LAYOUT AND STRUCTURAL MODIFICATIONS, UPDATE HEATING TO BOILER FOR RADIANT FLOOR HEATING AND DOMESTIC WATER HEATING. After a thorough search of available records at DBI, there were three plan sets in our records. They were all dated 2025. So there was no set of plans that represented the property with or without a deck prior to 2025. No permit for the actual initial installation of the deck in the rear yard was applied for or issued. So I went from our archives for plans, and I went into our archives for our permit applications. And I went as far back as 1937, and I could not find an applied for permit from then to the present, other than the last two permits that were for the property that had any mention of a rear yard deck. Therefore, the deck in question, although physically existing, is not considered an existing deck per DBI and the building code, as the installation was never approved and finaled. The project was submitted with plans for over-the-counter approval. The project was reviewed and approved by SFDBI and all applicable agencies based on the information provided by the design professional of record. And that's an important statement. The conclusion, Department of Building Inspection believes that this project was approved in error based on the information provided by the design professional of record who cited an existing deck. Whereas if it's not finaled or a certificate of final completion, the building code doesn't see it as existing. which makes a difference as far as the language goes. DBI recommends the appeal be upheld and the permit be revised to indicate the scope of work for the deck be as follows. Reconstruction and legalization of rear yard deck located in the rear yard setback per SF Planning Code 188.1, maintaining all required fire separation distances from property lines. and then go on to say minor floor layout and structural modifications, which was the original language of the permit. And that's DBI's recommendation. I'm available for any questions.

Thank you. I don't see any questions at this time. So you can be seated.

Oh, I think I have a question.

Oh, OK, yes. Commissioner Abbott.

Thank you. Sorry, I was slow to the trigger there.

do we do we know what the dimensions are the floor area depth i i i didn't pay attention to the depth of the deck which you know from the house into the rear yard because Yeah. The important thing for DBI's consideration is the property line setbacks. Now, the debt goes from property line to property line. Sure. And there's a required three-foot setback for fire safety reasons. Understood.

Yeah. I mean, is that information that we could quickly acquire? This is a DBI permit. Is it not we have a plan set someplace that we could quickly look up? I can do my best with...

Thank you, Corey. The deck is 24 foot 1 by 12 foot 3 inches. Thank you. Okay. Any other questions?

I don't see any further questions.

Thank you, Commissioner.

Thank you. So we're going to move on to public comment. Is there anyone in the room who wants to provide public comment? Welcome. You have three minutes.

Thank you.

Good evening, Board President, members of the Board of Appeals and Board staff. My name is Joe Duffy. I'm here tonight as a friend of Jason O'Connor, the permit holder. I've known Jason for several years through Irish football. I used to coach him. I always found him a person of good character, honest, hardworking and running his own business. Myself, I retired from DBA two years ago after working there for 25 years, including 10 years representing the department at these Board of Appeals hearings. Tonight I'm speaking as Jason's friend. After Jason contacted me, I visited the property to examine the condition under the appeal and the overall project. Jason and Leanne just recently purchased the property, which is commendable for any young couple in today's market. They're remodeling to make it their long-term home. Like many San Francisco construction projects, there were some early issues, but they appeared to have been resolved through communication. After the site visit, I noted that the DBI inspections are current and up to date. The project is moving along very well and the other neighbours seem to support it. The existing rear deck. The deck existed when they purchased the property. They were unaware of any issues with the existing deck, apart from the fact that it was over 30 years old. And they wisely decided to repair it. From a life safety standpoint, that's definitely the right decision, given our city's unfortunate history with collapsed decks. I want to commend as well the Board of Supervisors and the Planning Department For the changes that they've made in dealing with existing issues such as rear decks in San Francisco, their streamlined process makes sense and avoids lengthy variance applications. Exceeding the scope of a permit is a DBI issue. Had the neighbours decided that it was exceeding the scope, they could have called DBI, had a building inspector come out. who would have issued a notice of a violation for work exceeding the permit if that was the case. That did not happen, as far as I know. Again, the inspections are current. If there are any existing significant construction issues, the inspector would have noted them. He's been there several times. I think Jason and Leanne, they just want to finish the project and kind of move on with life and enjoy the home and get along with everyone. Thank you very much for your time.

Thank you. Is there any further public comment from anyone in the room? Anyone on Zoom? I don't see any hands raised, so we're going to move on to rebuttal. We will hear from the appellants. You have three minutes. Thank you.

Thank you. I'd just like to address a few of the comments brought up by the respondent. As far as the claim that there was a concession made regarding a light well, they did say instead of doing the full infill on the bottom floor, we could infill partially. We decided we'd see what happened. If they did that, they didn't. They had the permit to do the full infill on the bottom. They did a full infill on the bottom, which actually encloses an area that previously offered us light, air, and a place to put our dryer exhaust. Now we have to reroute that. That's a whole problem for us to solve. On the top floor, they said they gave us a concession of two feet or three feet. They didn't give anything. They tried to do a full infill on the light well. Planning said, no, you're not allowed to do that. So those have been misrepresented as facts. They aren't facts. The picture that showed that there's visibility into their house from ours That's above us. We can't see up into their home. Conversely, they're above us. They can see right into our home 24 hours a day. I acknowledge we did stop talking to them. And the reason it happened was because during construction, there was a constant pattern of carelessness and disregard regarding litter, trash, debris falling over, and ultimately What one could argue, what a structural engineer argued, was unprofessional shoring up or lack of shoring up when they excavated the garage, which caused about $10,000 of slab damage and other unseen possible damage to our property. The respondent's answer to that was, well, we don't really know, and we can't ascertain for sure what caused it. So we could maybe fix it for you, but we're definitely not paying anything. I'm not comfortable managing my neighbor on a job or having the person who caused the damage be responsible for the repair. It's not fair. It puts me in an awkward position. Refusal of access. DBI recommended, do not give access until they address the slab. So we're just following DBI's recommendation on that. Other neighbors might be in favor of it. We're the neighbors who are impacted by the privacy concerns. They're above our yard. They're not above anyone else's yard. They're below everyone else's yard. Privacy has always been an issue on this one. Ms. O'Connor said, oh, it hasn't been an issue in the previous 20 years. There was a deck there. And so it was already existing. No one was doing work on it. There was no opportunity to actually make the repair.

It was rented out.

And it's not an unjust burden. The whole permit cost on all the deck replacement is $12,000, plus boiler, everything like that. It sounds like they're connected with some people that give them bargains. And that's great. That's fantastic. And also, they shouldn't have continued the work anyways. So the repair isn't unjust. And finally, There were some accusations of harassment by my wife. She was looking to see what further damage had been done when the respondent said, stop looking at my house.

OK, thank you. We have a question from President Pesquina.

I have a couple of very brief questions. I was very struck by the photo that you shared with us regarding your daughter's bedroom. Does the three-foot setback that DBI says would fulfill a requirement of the law, would that help the privacy situation?

It would absolutely help. I mean, we live in San Francisco. We live in tight spaces. And I understand. I've lived here for 30 years. There's no perfect solution. We're all on top of one another. But there's a difference between being nearby and being almost in someone else's bedroom. So the three-foot setback would make a massive improvement, both for the downstairs and the yard, as well as her room. And conforming to rear yard guidelines would also help too, considering the depth of the deck.

Thank you.

Thank you.

Thank you. No further questions. We will now hear from the permit holders.

Excuse me.

Oh, I'm sorry.

I have a question.

Oh, you have a question?

For the appellant.

Okay. Your name's not coming up, so please, if you can come up again. Okay.

Yes. Hi.

This deck has been there since you've lived next door, yes? It has.

Yes.

So what makes the reconstruction different? And why is this a trigger for you at this point in time? I understand that they applied for a permit, which you could appeal. But if it's the in-kind deck, she had the same bedroom, why is it an issue now?

That's a great question. In the time that we lived there, the previous tenant didn't use this deck because it was a hazardous deck. He stored a few things on it, but it was no area for recreation. The new deck, it's an awesome looking deck, and it's right off the proposed kitchen. So it invites a lot of use and presence out there.

Is it used?

Well, the house is under construction. It's not being used currently.

But you haven't been in a situation where it was used frequently?

I've been in situations where workers are on the deck unloading construction debris. And so I've got a very good idea of exactly what it looks like when there's anyone on the deck, whether they're doing construction work or they're just enjoying one another's company.

OK. Thank you so much.

Thank you. No further questions. We'll now hear from the permit holders.

Thank you for giving us the opportunity to speak. I would like to briefly respond to a few key points. First and most importantly, this Dec was in place prior to the Appellants acquiring their own property and has existed for decades without any prior complaints, enforcement action or objection, and no time before our ownership was this long-standing structure challenged or alleged to be non-compliant in any way. Again, the appellants have lived here for around 20 years and they have never ever addressed any privacy issues or to us or any fire or safety concerns. This has been our question throughout that you've just raised. Why has there never been an issue before and there seems to be now? The appellants did not appeal our original permit which allowed up to 50% repair of the deck which would have kept the exact same dimensions as is right now. The permit was reviewed and approved based on the existing conditions and no fire separation or setback issues were identified at the time. It raises a fundamental fairness issue on how could the same long existing deck be compliant for 50% repair and no appeals but suddenly problematic for 100% repair when the size, location and use has not changed. We did everything we were supposed to do. The work was reviewed and approved and constructed in accordance with our permits. Given that the project was lawfully permitted and inspected, it's unclear why we should now be required to undo or alter any completed work that was reviewed and approved, which would result in significant and unnecessary financial hardship. This deck is much safer now than it ever was before. The prior structure was deteriorated and contained dry rot. We replaced those unsafe conditions with premium EPA wood, which has a Class A fire rating. This results in a structurally sound, code-compliant deck that improves safety. We have consistently acted in good faith as cooperative neighbours. The appellants maintain a deck directly on our shared property line facing into our home, yet we chose not to pursue enforcement and address privacy concerns ourselves. This reflects our ongoing effort to resolve issues cooperatively rather than true enforcement. In closing, we respectfully ask why should we bear the financial and practical burden here when we followed all rules, we relied on city approvals, and we improved the safety. The deck is unchanged in size, it's fully permitted, it is inspected, and it is compliant. It would be unequivocal to impose financial consequences on us when we acted responsibly and in reliance with all our permits. In going back to the deck being demolished, the deck was never fully demolished. We had the repair up to 50%. We then realized how unsafe it was and knew we should apply for 100% for the railings and floorboards to be safe and up to code. For these reasons, we respectfully request that the appeal be denied and the permitted work be allowed to remain as completed. OK. Thank you.

Okay, I don't see any questions at this time. Thank you so much. We will now hear from the planning department.

Okay. I just wanted to show him.

Thank you, President Trasvinia, Commissioner Corey Teague for the Planning Department again. I kind of failed to realize that the plans weren't actually in any of the briefs. So I apologize for that. I made reference that they were in the brief, but they were not in the briefs. But I did want to just show a copy of kind of the before and after and the dimensions, which we already provided the dimensions, but I wanted to be able to just show that.

Overhead, please.

So this is kind of what was the existing condition before construction started, which was the deck full lot with 12 feet 3 inches deep into the rear yard, two bedrooms at the rear. The permit authorizes essentially the same deck. the same deck, and there's a reconfiguration so that the deck is adjacent to the kitchen and dining room. So that's the context we are discussing here for this deck. I didn't have any additional information to provide, but I'm available for any questions you may have.

Vice President Soroyan has a question.

Mr. Teague, remind me, what was your recommendation?

So the recommendation was to require the three-foot setback on the northern property line. And I think the southern property line, we were kind of comfortable maybe without it, given the context there, because the primary issue tends to be the northern property line. But the remainder of the deck is completely code compliant, and we would not recommend any change to that.

Okay. Thank you. Thank you. Commissioner Lopez?

So just with respect to, you know, obviously they had permits that were approved. And it sounds like there were some mishaps. What do we do in those situations? Do we just say... Sorry, but tear down or is there any kind of allowance or? compensation or something that's provided in those scenarios? What happens?

Sure. I mean, the short answer is no. There's no kind of compensation or anything like that. I mean, technically speaking, permits get issued in error sometimes. Sometimes things are missed, unfortunately. Of course, we don't want things to be missed on purpose. So when we find that something has been missed, the typical remedy is to correct it. Obviously, there is a difference between different things that get missed. Some things are missed that are much more substantial code requirements. Some things are more discretionary design issues. And so those determinations are made kind of case by case. Sometimes alternatives are considered to what have been required by the design guidelines. So I think it's kind of a, the general answer is that from a code requirement perspective, the permit would have to be, there would have to be steps taken to bring that into code compliance unless you got a variance. That's kind of not an option. Here, it's not a code compliance issue. It's a residential design guidelines three-foot setback issue. And so that's why the recommendation is if someone would have come in If you forget the rear yard issue and the potential variance, which doesn't apply now, and either propose a new deck or propose to rebuild this deck, our standard requirement would have been to set it back three feet off the property line. Thank you.

Thank you. No further questions.

Anything further from DBI?

Thanks again, President Transylvania, commissioners. I just wanted to kind of provide, I don't want to concede that this was technically missed only because of the way the project was represented when it was applied for. Again, it was represented as an existing deck. An existing deck is something that's existing and conforming. I had a conversation with the design professional, and I let him know my stance. I said, I told him that it should have been represented on the drawings as an existing nonconforming deck. This is what we're going to do. If they want to build it to property line, they could provide a firewall on either property line side that goes 30 inches above the finished deck surface, and then whatever they need to do to make it 42 inches for guardrail. So the question came up from the permit holder that, yes, they got the approvals. But again, the approvals were based on the information provided to the Department of Building Inspection. And on an over-the-counter permit, We're limited to an hour's review. And it's very difficult to go into a building history and try to go back 100 years of building history in order to provide the over-the-counter service that we do. And we're one of the few jurisdictions that provides that type of service. And sometimes things get missed. And that's why you guys are here, and that's why I'm here at 8.30 at night. I'm available for any other questions.

Thank you. President Trasvinia?