Board of Appeals - Regular Meeting

Okay, good evening and welcome to the April 15th, 2026 meeting of the San Francisco Board of Appeals. President John Trusvino will be the presiding officer tonight and he is joined by Commissioner Jose Lopez and Commissioner Lily Wong. Vice President Soroyan and Commissioner Abad are absent. Also present is Deputy City Attorney Jesse Minardi, who will provide the board with any needed legal advice. Deputy City Attorney Sarah Fabian will be joining us on Zoom to provide any needed legal advice for item 5. That's the jurisdiction request number 26-1 at 158 15th Avenue. 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 Carrie McElroy, senior building inspector with the Department of Building Inspection. 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. Appellants, permit 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. For jurisdiction requests, the parties are given three minutes each with no rebuttal. Members of the public who are not affiliated with the parties will have up to three minutes to address the board and no rebuttal. Time may be limited to two minutes if the agenda is long or if there are a large number of speakers. Mr. Longway, our legal assistant, will give you a verbal warning 30 seconds before your time is up. Four votes are required to grant an appeal or modify a permit or determination or to grant a jurisdiction request. 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 p.m. 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 at 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, please call 1-669-900-9128 and enter webinar ID 91840134173. And SFGovTV 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 for your item to be called and dial star nine, which is the 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 the 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 Longley, 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 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? OK, thank you. If you are a participant and you're not speaking, please put your Zoom speaker on mute. So item number one 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, so we'll move on to item number two, commissioner comments and questions.

Thank you, Ms. Lamar. I want to welcome everyone to tonight's meeting of the Board of Appeals. I particularly want to welcome our parties and members of the public who are here on the matter regarding 850 Corbett. We've had an extended difficulty scheduling this matter, which is unavoidable. But we're pleased to see you here, and we will do justice on this matter. I can assure the people interested in that matter, as well as the other matters, that this commission, we come prepared. We read the materials that you have provided. We listen and ask questions, look for answers, and we're doing our best to make sure that justice is done at the Board of Appeals. I have also the great pleasure to welcome our newest member of the Board of Appeals, Commissioner Lily Wong. We had a vacancy for a bit of time in the Board of Supervisors, President Mandelman, nominated Commissioner Wong. And I was pleased to testify on her behalf of the Rules Committee. And she was voted and approved by the Board of Supervisors. I believe it was unanimously. And it should have been if it wasn't, but I believe it was. And we're very pleased to have Commissioner Wong join us. We have five members. We have three tonight, but we have five members of the board. And Commissioner Wong brings a tremendous expertise, tremendous insight. I think it's great to have many different perspectives on this board. That's one of the reasons why we have multiple numbers of people to hear your matters. Commissioner Wong is a proud product of our public schools, Horseman Middle School, Lowell High School, like me. And beyond that, she's been involved with a number of different organizations here in San Francisco, the Chinese Cultural District and the Sunset, the Wanmei School, as well as other organizations. And she has, while Commissioner Lopez and I are attorneys. Commissioner Wong is a graduate of Pepperdine Law School in alternative dispute resolution, which brings a particularly valuable set of skills to this commission. So I'm very pleased to welcome Commissioner Wong. And Commissioner Lopez, would you like to say something?

Yeah, I just want to echo those comments. Commissioner Wong, we're so happy that you're here. It's been a long time since we've had a full five-member board, and so that's very exciting to me. And I just want to echo what President Trezvena said about being just excited about the perspective and experience you bring.

You know, I've heard great things about you prior to your appointment and look forward to serving alongside you Any further comments Okay, thank you, is there any public comment on this item I Don't see any public comment So we're gonna move on to item number three the adoption of the minutes commissioners before you for discussion of possible adoption are the minutes of the March 25th 2026 meeting

I move to adopt the minutes of the March 2026 meeting.

Okay. Is there any public comment on the motion to adopt the minutes? Okay. Seeing none on that motion, Commissioner Lopez?

Aye.

Commissioner Wong? Okay, so that motion carries 3-0 and the minutes are adopted. We are now moving on to items 4A and 4B. Marco Farina and Julia Mazza versus Department of Building Inspection, Planning Department Approval, Subject Property, 850 Corbett Avenue, appealing the issuance on December 4th, 2025. TO TWO SEPARATE PERMITS, ONE TO JOHN ORLANDO OF UNIT ONE AND THE SECOND PERMIT TO DEBRA LIANG OF UNIT TWO, AND THIS WAS TO CORRECT A NOTICE OF VIOLATION OF 2025-45. 537 and 2025, 45865, legalizing an existing 7-foot, 7-inch tall wood fence at the rear terraces at the first floor, correcting unpermitted electrical lighting installed in the common areas. The fence length is 13 feet, 6 inches. The first permit is 2025, 1125, 0415. The second one is 2025-1125-0415. And as President Trezevena noted, this matter has been continued a number of times due to quorum issues, and so that is why we're hearing it today. So we will hear first from the appellants, and because there are two appeals, they get 14 minutes to present their case. So welcome, and thank you so much for your patience with us.

Thank you. Good afternoon commissioners and thanks for finally hearing this case. We start with some background on how we got here. So since the beginning of our ownership in 2019, we have been trying to find collaboratively with our community a lawful and co-compliant resolution for the common areas mentioned in the permits under appeal. a rear yard in the back of the building, a lightweight side terrace, all of them a ground floor. So slide one shows how they were originally built in 2003, and slide two shows how they were modified over the years by the permit holders. After new internal efforts over the years failed to produce action, we filed a complaint with San Francisco DBI in November 2025. Independent DBI inspections resulted in the issues on notice of violations requiring demolition or correction of various non-compliant installations with a pattern of concerning violation in multiple common areas, including unpermitting electrical work in the site terrace, which has already been addressed by DBI with an order of demolition of the last installation to redo the property, so that is already settled, and fencing in the rear yard, which is the matter under appeal today. So that's why it's also mentioned in the appeals. So to abate the fence relating of the permit holders requesting a permit over the counter to legalize the unpermitted fence without our review and consent. Despite our more recent requests, we have been requesting to address this issue for years, but despite our... More recent concerns since October 21, 2025. The paper plans were not anticipated or reviewed with us before filing the permits, which did not address our concerns for planning, building and file safety codes. After the permits were filed in November 2025, we notified the building inspector that they were requesting without our consent and approval. So the inspector initially posted approval requesting planning review which is shown in the top part of the slide showing the permit tracker on the website when the inspector posted the permit requesting planning approval. In the middle of the process, the HA board also refused to allow questions on this ongoing matter in an upper board meeting. We were discussing to discuss this matter with the association because it's not just an interpersonal dispute, it's a community matter. At that point, permit holders sent on December 4, 2025, the written authorization from the HIA Board, with which they worked offline without us being involved, to the building inspector for unblocking and pushing the approval. So you can see that the permit tracker changed from requesting planning review, which was skipped, to approve based on HIA authorization. So, in reality, you can also see the authorization letter for these board of directors. The names are there. They are giving authorization to Unit 1 and 2 on a common space, which the planning code is an open common space for four units. So, why they're giving authorization to only two units, describing this area as exclusive use areas. In reality, per the Convenance Conditions and Restrictions of the Association, an alteration of ownership or configuration of common areas would require a unanimous vote by not only all members, but also the related lenders. This was also confirmed in 2021 when the H.O.A. got guidance from Annie Sirkin, one of the foremost attorneys in this era of law in San Francisco. the lower units tried to propose the conversion of the common area into exclusive use which we rejected for the same reasons why we filed this appeal. My title insurance carrier and my lender have in fact separately acknowledged that these violations would implicate permanent property interest to our unit, underscoring that the interference at issues affects also insured property rights and it is not merely interpersonal conflict. So this is just to provide all the facts. Some of them are related to civil matters. We're focusing today on compliance, but we want to provide the full picture of facts. Now, let's deep dive into the fire safety code violations certified by the fire department and the department of building inspection. It's not our opinion. They're on the records. There are three categories of violations at play here. Issue number one, the rear yard is only no street access open space between several adjacent buildings. Fire responders will rely on that stage for staging and containment in case of fire-related emergency. Blocking or limiting its accessibility would materially increase its risk to occupants and fire responders, not only for our building but also for the surrounding ones. The permit was originally approved by the fire department without its critical knowledge solely on isolated paper plan review without looking at the context, without a site visit by a senior inspector which we requested during the process and it was skipped. So we really need to push hard to present to the DBI all the facts which were eventually acknowledged. But per Permit Solder brief, the fence even includes an internal metal railing as part of the barrier which would make it even more difficult to overcome by firefighters as needed in case of emergency. So for all these reasons, it's not surprising that after an inspection for the Bureau of Fire Prevention, which we requested, On January 28, 2026, a notice of violation was posted publicly in front of the building for fire code issues affecting immediate access to critical life safety systems. Now, why Permit Toaders did not mention that in their brief on February 12? This was visible to all the residents and the board members. We were notified by the fire department at all times to use the initial error from the department of building inspection which did not acknowledge this NOV which I did send to DPI to be acknowledged so DPI could actually change that brief before this appeal. Fire core related issue number two. Fire Department and TBI concluded the permit was issued in error also because defense compromises emergency escape and rescue openings from sleeping rooms in Unit 2. This is another example of a core life safety requirement, not distractionary, it exists so occupants and firefighters can escape and rescue in emergency without any obstacle, barrier or any sort of bottleneck. We have been flagging this to the Association since 2019. Our concerns were not addressed over all these years at the point that we needed to file these appeals. Issue number three, fire correlated issue number three. There is also another one. The doors in the back of the building corridor leading to the rear yard without street access have been staged as emergency exit security alarm with sound. It seems that safety arguments here were just used as a deterrent for other occupants not to access the rear yard rather than comply with San Francisco fire code. Initially, we were not available that that was the path to the open common space of the building area. allocated to four units. All this info was known by the permit holders and the HOA board, but it seems it was omitted, inducing DBI and fire department initially in error for permit issuance. The fence set up in the rear yard Also a recipe for disaster in case of unfortunate conditions possible in areas with risk of earthquakes and wildfires like the Bay Area. In case of emergency, fire responders arriving in the area from the secondary entry would find the barrier limiting their operation, then get back to the truck to get equipment to sew it, then find metal railings, all of that impacting critical time for rescue or fire containment. Taking a step back from fire code safety evaluation, which are several, this appeal concerns a permit issued to legalize a fence that subdivided the rear yard assigned to four units in the building and approved as common usable office space, not exclusive use, consistent with the requirements of the San Francisco Planning Code as per the Planning Department brief. The fence was later installed without permits that triggered notice of violation from DBI. During this appeal, the planning department determined that the permit had been released in error because the remaining ground level area was only about 250 square feet on the right side of the fence, as shown in the label in the picture. The other picture is the proposal that we received from the permit holders the last day before the last attempt to set up this hearing. Instead of restoring, by the way, planning concluding that this area would need to be at least approximately 400 square feet in order to maintain minimum usable common open space required for the building, for the remaining units, let alone the fact that permit holders are designing unilaterally, offline, without any H.A. meetings, their proposal to impose for their permits on our property. Instead of restoring the poor condition by removing the legal fence, the permit tool does now propose a major alteration that attempts to counter upper terrace areas as usable open space by adding stairs and clearing vegetation. Rather than a correction of the violation, converting a landscape retaining terrace into usable space represents a redesign of the project by changing the approved common open space design overall, as the terrace was not specifically approved as a part of it. In addition, the compliance of the proposal depends on counting terrace area whose usable square footage and safety conditions remain unclear once stairs, circulation and guardrails have to be considered. The Planning Department's own analysis focuses only on the ground level yard area to determine compliance for required square footage. The terrace is only being introduced now to compensate for the loss of that originally approved space. The terracing proposal also introduces additional safety risk by removing a defined barrier, a level transition since there is a retaining wall to go to the elevated terrace, creating An unguarded deep drop-off on the right side on the perimeter of the building with concerning risk of accidental falls. This seems an unprotected elevation change, not meeting basic and common sense building safety principles with trip and fall risks. There's more. This illegal fence also worsens light trespass and habitability impact for our family. The permit holders are in fact controlling bright spotlight style features illuminating all night long a concentrated area in the rear yard directly in front of our bedrooms with flashing and alternating lights installed on the fence itself. This is unreasonable. For all this reason, we would like to request that the Board uphold the appeal and require the removal of the fence, restoring the common rear yard that was originally approved for all four units as undivided common interest. We are asking for simplicity of the solution to correct the permit, fairness of the process to actually correct rather than redesign, and restoration of the original approval as shared open space after years of illegal and arrogant subdivision. Rather than a private dispute, it is a permit issued in error that compromises fire safety, zoning required open space, and firefighter access. There are notices of violation from the Department of Mobility Dispute and the Fire Department still open, which needs to be abated urgently. If owners can build first, privatize required common space, and negotiate safety or planning later, it may also undermine zoning and public safety on a larger scale in the city, encouraging illegal common area takings. We believe we have the right to have equal access to open usable common space and to feel safe in the place where our family lives with our children. As owners, we have a proportional right to common open space that is genuinely usable, not merely nominal or compliant in form only. The proposed solution seems a technical workaround to meet the letter of the code while violating its spirit. The original building approval plan shows one continuous rear yard, no fence, no subdivision. This is the condition the San Francisco Planning Department used to determine compliance for usable open space requirement in the first place. As per the planning code, the common area should be returned to its original plan for its critical safety and service functions and left clean without potential source of fire and obstacle for rescue operation in case of emergency. Allowing a new design to amend is the effective permit the right neighbor.

So property money is a reward no compliance Time in rebuttal and we do have a question from President Trasvina Thank you, mr. Farina for you for your presentation I'd like to Reorganize what you said in a different way. I If you could enumerate for me the physical changes you're asking for. Let's start with the fence. Do you want... Existing fence, do you want no fence, or do you want a third option?

So the notice of violation is about a fence, and the post-it note says as corrective action, either correct the fence, which the permit holders failed to propose, or demolish the fence. So we believe that as far as this appeal, the common open space should be restored, the fence should be removed, and then we should work together as a community on a permit from all the owners to which the usable common open space has been assigned to come back with a permit, with a dedicated permit. It seems that this proposal, yeah.

Let me just be clear. Are you asking for the fence to be removed, or are you asking for the permit to be taken away and further decisions be made about the fence?

So there are existing fire safety issues related to the fence.

I realize that, but I think I'm asking a different question. What do you want this board to order as to the fence? Do you want us to order the fence to be removed? Removed. Okay.

Yeah. Removed.

And second, on the proposal about open space, it needs to be, I think, 399 square feet. And I understand there's a proposal to make some changes to that. What do you want it to be?

So if you remove the fence, then the common area restores its original configuration. And it's a common open space allocated to four units. That was how the building was permitted in the first place. So that would be the solution to abate this NOV. OK, so if the board

goes in your direction on the fence, then there's no open space issue.

Correct. Which is how the building was originally permitted.

Great. And on the lights, do you want them removed? Do you want them changed?

So, as shown in the slides, there is a set of lights which have been added during this, as a retaliation, since we filed this appeal. Those are installed on the fence. They're colorful, they're flashing, they're alternating lights. We also showed

I don't need a description of them. I just want to know what's your preferred disposition of them. Do they go with the fence? If the fence goes, do the lights go?

Yeah. So if the lights are on the fence and the fence is removed, the lights on the fence are gone.

Thank you very much.

As to the lights, there is also another point related to the fact that on top of the lights on the fence there is also illumination on the common area which should be evaluated with respect to California energy code as we suggested to the DBI. There should be also the outdoor lighting in common areas should be also compliant with the California High Energy Code requiring light in common area to be shielded, motion sensing.

But you say your preference is no fence, no lights.

Compliance with codes, with planning code, building code, and California energy code. Thank you. Thank you very much.

Okay, thank you. No further questions. You can be seated. We will now hear from the attorney for the permit holders.

Good evening, everyone. My name is Laura Strazo. I'm an attorney with Patterson and O'Neill and represent Deborah and Christian, who live in Unit 2, as well as Derek and John, who live in Unit 1. I would also like to extend a warm welcome to Commissioner Wong. It's great to have a full board, and we look forward to hearing your perspective on these issues. The property before you today is 850 Corbett. It's a six-unit condominium project that was constructed in 2003. This appeal concerns a long existing privacy fence between the ground floor patios and the rear yard, which I think has been mentioned a little bit before. I'd like to introduce you to my client, Deborah Long, who's going to provide some additional background context. And then after her presentation, I'm going to discuss some of the issues that the city raised in their briefs. as well as the appellants and how we propose to address them. Thank you.

All right. Good evening, Commissioners. My name is Deborah Leong, and I live with my husband, Christian, in Unit 2 of 850 Corbett Avenue. But I'm speaking here on behalf of the permit holders for Unit 1 and 2 who are here with us today. And as Laura said, this is a six-unit condo building. We both share Units 1 and 2, the ground floor. And the appellants in Unit 4 are on the middle floor above Unit 1, as you can see from this picture. So we're here today regarding a rear yard configuration that dates back to at least 2011, and if not back to the existing construction of this building over 20 years ago. This is a picture from the sales brochure when our fellow permit holders John and Derek purchased their unit in 2011. So at that time, you can already see that there was a 10-foot wooden fence that had been erected next to this metal fence. And on this slide, you can see that the metal fence shown in the picture actually matches exactly the design and materials of metal railings found all around the rest of the building, which strongly suggests that this was part of the original construction of this building. And when the appellants purchased their property in Unit 4 in 2019, this fence was in place already. So in 2020, unit one and the then unit two owners obtained HOA approval to upgrade the fence to the structure that exists today in the picture. So that's the seven foot, seven inch fence. And the original metal railing still sits as the foundation to the structure of that fence. This is also the structure that existed when Christian and I bought our unit in 2023. And in large part, we fell in love with this home and bought this unit because of this private patio area. It's in Twin Peaks. It's on the first floor, so there's no view. And really, this private patio area is what attracted us to this. potentially have a place where we could start a family, have kids, and have a private area for our kids to run around. And the key point here is that the existence of this fence is the status quo and has been when each and every owner in this building purchased their unit. So removing this fence is devastating, would be devastating to our privacy and security and have material financial impact on both units one and two. As you can see in these pictures, the patios are directly adjacent to the master bedrooms for both units one and two. And there are floor to ceiling sliding doors that open up into the patio. This is where we sleep every night. And without that barrier in place, anyone can walk up to those sliding doors and look right into our bedroom windows. And removing the fence would effectively turn the most private and intimate parts of our home into a fishbowl. And on a personal note, unrelated to this, Christian and I lived in a home before this where we actually did have an intruder show up in the middle of the night in our patio looking into our homes, which was terrifying. So you can imagine that this isn't a hypothetical threat for us. This is a real threat to our privacy and security. And beyond this immeasurable impact on our quality of life and emotional well-being, there is a highly significant financial implication of losing this patio space on our property value. We purchased our unit with this fence in place and with the expectation of privacy, just like everyone else purchased theirs with this configuration in place. And this is also why every other owner in this unit has actually written letters of support for us and submitted them to the Board of Appeal. They appreciate why this configuration exists. They have no desire to come hang out outside our bedrooms. And they understand the impact to our two units should the fence be removed. And this includes our neighbors in Unit 3 who live in the middle floor next to the appellants. And we're grateful for the support and understanding we've received from this small community. So we have made considerable efforts to work with the appellants. The appellants have lived in this building for over six years, during which time Mr. Farina had served on the HOA board from 2023 to 2025, and during which time none of the issues he has raised were brought up. Back in October 2021, John and Derek from Unit 1 had worked with the appellants to address this light sensitivity concern, they agreed on installing low wattage light bulbs, and they did exactly that. And that arrangement had persisted without issue for many years. This is why we were both surprised and disappointed when we heard about these issues being raised around the fence and lighting by the appellants as part of an ongoing dispute with the HOA after Mr. Farina had been unanimously recalled from the HOA board in May of 2025. Despite that, we've made every effort to engage with the appellants directly to address their concerns and initiated a good faith negotiation. We took their concerns very seriously. We've put forth multiple proposals to them, inviting their feedback. And that included bearing the cost of maintenance for the patio. It included putting in more restrictions around light use that they were comfortable with. and ultimately, and most importantly, committing to addressing potential code violations. Unfortunately, it became clear that there was no path to a neighborly resolution when in the midst of our negotiations, they decided to file multiple complaints with the city. And I would be lying if I said this all hasn't deeply affected us a lot over the last six to nine months. But nevertheless, we remain open to finding a win-win solution that benefits all parties here and works towards healing the small six-unit community. And as I mentioned earlier, Christian and I are first-time homeowners, and we have lived in this building for just over two years. And we're doing our best to heal an issue and address an issue that has likely stemmed from over two decades ago. And together with the Unit 1 owners, we've spent considerable time, effort, and money to get the spends properly permitted. Our intent has always been compliance with city codes, and we have followed the appropriate processes to work with the city proactively and collaboratively. So immediately after we were made aware of the potential code compliance issues in September, we tried to seek feedback from the SF Fire Department and the DBI We hired an architect in early October with the intent to get the fence properly permitted. And after the NOVs were issued, our permit was greenlit by the DBI, and we obtained sign-offs from all the departments listed on this slide and even had an on-site inspection. So we followed the process and trusted that we were getting the right information along the way. And we've now come to understand that the city has raised some potential issues that our attorney will address. But ultimately, I do want to reinforce that we remain committed to safety and code compliance and are open to finding a solution that addresses these issues while preserving our privacy, safety, and property value. So we're proposing two potential solutions that we believe address the issues raised and represent a win-win for all parties. Thank you for your time and attention. I'll turn it back over to Laura.

Great. Thanks, Deborah. So as my client stated, even though the permit was routed through all the proper departments, everyone approved it, it actually received a final inspection and is a completed permit at this point. As part of this appeal, there were some additional concerns that Corey and Joe Ospital had raised to us, which we took very seriously and wanted to address. And I'm sure they'll talk to you a little bit more about what those concerns are. They're fairly minor design changes, but the... The main issues are it's an RM1 zoning district, which requires at least 100 square feet of private open space or 133 square feet per dwelling unit if it's common open space. And I just want to note that open space in the planning code is not equivalent to how an HOA looks at it. common area they're not the same thing and so today what we're talking about is you know how the planning code considers open space so i just wanted to mention that and obviously the hoa is involved in this process it is in charge of the common area and ultimately has delegated their authority in this regard to my clients in the context of this permit but they are involved and aware of the situation and what is going on Another thing I just want to note is this is sort of a problem that the developer created because they built a rear yard that just doesn't really make sense. They built patios and put bedrooms in the rear of the ground floor and it's no surprise that a fence was built because it just isn't a good design. And so When the city came to us and said, there's an issue we want to see, there's enough open space for everyone, but the city wants it to be usable. And so they came to us and said, look, you need to make more usable open space in order to have this private open space that benefits Unit 2. And we're only talking about a couple hundred square feet, so it's not a significant change, but it gives the opportunity for everyone to create more open space that works for everyone so the backyard's more usable in general. And if I could go to the screen. Here's just a floor plan to give you a sense of what the backyard looks like. I think we've looked at this a little bit already. But you can see where the patio areas are. There's a four-foot retaining wall. And there's just sort of woody, weedy vegetation behind it. It's not very nice to look at, and it's ripe for sort of a redesign anyways. The other issue that the building department has raised, and I think it wasn't quite adequately explained by appellants, I'm sure DBI will come up here and explain too, but the only issue from the fire department's perspective is providing a second means of egress or egress for the bedrooms for Unit 2. That is not a challenging thing to do. That can be accommodated just by putting a gate in the fence. or by putting a stair so you can go around the fence. So those are two options that aren't easy to do just to provide that egress. That's only an issue for Unit 2. There's no fire safety issues for any of the other units. So I did just want to mention that. So this is the option that's just looking at the stairs. And the design is not finalized. And we realized that we wouldn't be able to have a final design. So what we're asking for is just the space through a special conditions permit to be able to have direction so that we can move the process forward. Because as you heard, this is a long-going issue. This is something that started with the violation last year. And so we just want to make sure that we're moving everything forward. And so for discussion purposes, my clients, because they had extra time, wanted to create sort of like a visual of what would it look like if we created more open space. And so we sent a design like this to the appellants to start a conversation. You know, they chose to decline to engage with us on any conversation about what that would look like. So unfortunately, I don't really have any feedback from them on what they do or don't like about this idea. But generally, it would just be to add some stairs so you could get up to the space behind the retaining wall. It really makes the backyard nicer, but obviously the design of whatever that would be would be open to conversations inside the HOA and would be subject to a special conditions permit if this board was inclined to go in that direction. And the stairs obviously just have to comply with the building code. So that's just what this design here toward is to give everyone that conversation. So what we're asking the board to do today, and I'm not sure if you can, because you only have three members, but would be to grant the appeal on the conditions that the fence height be lowered to six feet, which is what, as the zoning administrators indicated, needs to be done, to add at least 266 square feet of usable common space area behind the retaining wall and a code-compliant access stair, and then just to ensure compliance with the egress requirement for unit two by adding the gate or the stairs.

Thank you. That's time.

Thank you.

Okay. Thank you. I don't see any questions at this time. You can be seated. We will now hear from the planning department.

All right. Good evening, President Trasvinia. Welcome, Commissioner Wong. It's nice to have you here. So as we've heard, this is an appeal of two permits for the property at 850 Corbett Avenue. This property is located within the RM1 A zoning district in a height district of 40 feet. It has six dwelling units in the building. The building was constructed in 2003. They are condominium units. There is an HOA. And as you've already heard, from a planning code perspective, the permits were signed off over the counter, but the issues of the fence height and the open space were missed. I will say that we don't want to miss anything over the counter in these permits. These particular issues are fairly nuanced and can be challenging to capture over the counter, especially for a small permit like this. But I do think it's helpful just to clarify what the planning code issues are for this permit. And then we can talk about what may be done to correct those so that a permit or two permits are maybe eventually issued to correct this issue in a manner that is compliant with the planning code. The planning code requires a certain amount of usable open space for every new dwelling unit when it's created, and those depend on what zoning district you're in. In this district, each unit is required to have either 100 square feet of private open space, and private open space is like what it sounds like, a private deck or a private patio or a private yard, or at least 133 square feet of common open space or a combination. So for example, if you're doing common patios, common roof decks, That's 133 square feet per unit. Again, this building has six dwelling units. The top two dwelling units, unit five and six, have their own decks at the top. So they're covered that way. The middle two units, three and four, have no direct access at that level to any decks. And then the lower two units, one and two, have direct access from the units themselves to this kind of rear yard area. And also the middle units in three or four have access through the stairs down to this. When this building was originally built, that's the way it was set up. The top two units had their own private open space. The bottom four units had access to the full rear yard area. I think even on the original plans, I'm not sure that the elevated portion in the rear were part of that. There was no fence at that time. But just to get to the fence issue, the planning code does allow a fence about 10 feet high to surround the rear yard. But if it's going to be a fence that's kind of dividing open space within required usable open space, the maximum fence height there is six feet. So that's why, in this case, if the homeowner association chose or choose to put a fence here and divide things up in a way that otherwise meet the code, as long as it's no more than six feet tall, that would still be code compliant. So as was mentioned, the permit as issued is for a fence that's a little more than seven feet tall. So to avoid the need for a variance, the fence would need to be reduced down to no more than six feet in height. And also, as kind of was discussed with the appellant through President Trasvina's questions, originally there wasn't this bifurcation of the rear patio. So that entire rear area was all common space for all four of those units, and it had enough. It had enough. That's approximately... 646 square feet they only need 532 for those four units so they had enough but once you put the fence there and you kind of bifurcate it and you take part of that patio and dedicate it as private open space for unit two then the remaining area on the north side needs to serve as common open space for three units unit one and then unit three and four on on the floor above So that's where, as it exists right now, with just the patio level, you don't quite have enough there. If you're going to maintain the fence and put all the common open space on that north side, it would require that that upper terrace area be improved in a manner that it's usable and that stairs be provided access to that entire area on that northern half of the lot could be used as common open space. Those are the two things that would need to be done to address the planning code issues for these permits. I know there's questions about configuration and lighting at the rear. Those issues, generally speaking, especially for a building that's already been built like that, are really more handled best by the owners of the property, so the HOA. In this situation, the planning department is generally not going to be too heavily involved in that. In more recent years, when we have new projects and we're seeing common open space being proposed directly adjacent to bedrooms and other things, we do try to work with applicants to create more context-sensitive designs or maybe individual private open spaces to create some buffer between some of these bedrooms or living rooms and common open space for numerous units. But that's not how this building was originally approved and constructed. So just to clarify, again, it's been brought up multiple times. The fence just needs to come down to six feet to be consistent with the code. And then the upper terrace of that northern half needs to be made usable and accessible so that the property overall has enough usable open space. If both of those happen, the permits would be consistent with the planning code. But I'm available for any questions you may have.

OK, thank you. I don't see any questions, so we will hear from DBI. Welcome, you have 14 minutes.

Good evening, Commissioner Transvenia, and welcome, Commissioner Wong. I'm Kerry McElroy, senior building inspector at DBI. The project before the board this evening is for the corrections of multiple notices of violation, noted earlier, under building permits 2025-1125-0412 and 2025-1125-0415. After review of the approved permits, DBI, after also discussion with SFFD, determined that the permit was issued in error in terms of blocking the access to the escape and rescue. So it's DVI's recommendation that the fence be modified or removed such to provide the escape and rescue that's required. I'm available for any questions.

Okay. Thank you. We do have a question from Commissioner Lopez. Yes.

Thank you. Can you comment on this light question, whether the lights that have been inserted on the fence are up to code?

Well, they would have required an electrical permit to be installed. So if an electrical permit was pulled, it would have been reviewed by our electrical inspectors when they issued the permit. So if a permit was approved, then they should be code compliant.

So essentially, you have no reason to believe that they're outside of code compliance as they exist?

As long as a permit was issued for them, yes.

Is there any way to check whether a permit was issued on that?

Well, I know there was a notice of violation to legalize unpermitted electrical lighting. I'm not sure if one of these permits was to address installing or to legalize the lighting.

OK. So why don't we, if, I'm not sure if that's possible to check in the intervening time before kind of closing reporting, but to the extent that that's possible, I think that'd be helpful.

I'll take a look.

All right. Thank you.

Okay. Thank you. We are now moving on to public comment. Is there anyone in the room who wants to provide public comment on this item? Anybody on Zoom? I don't see anyone, so we're going to move on to rebuttal. We will now hear from the appellants. You have six minutes to address the board.

We can also provide additional answers to the question about the lighting after the rebuttal if requested. But just to follow up to the proposal from the permit holders, the proposal from the permit holder shows removal of trees and vegetation, additional cell structure with limited guardrails and narrow circulation paths to connect to an upper terrace well above ground and unguarded deep drop off on the right sides of the property with concerning risk of accidental falls. new landscaping and large vertical planters with additional lighting features, all of these to retain the position of the illegal wood fence under appeal. Those are material design changes bringing additional safety structural and usability concerns compared to the original project under appeal related to the fence. For example, the retaining walls supporting solid people above becomes a structural element, not just landscaping, requiring structural evaluation and drainage requirements. New circulation structures require compliance with guardrail and staircourts for potential falling and safety hazards for our children and residents. Unprotected elevation changes with trip and fall risks conflicting with basic building and common sense safety principles. Trees contribute to soil stability with roof enforcement and moisture regulation behind retaining walls as part of the informal stabilisation system helping with water absorption to balance hydrostatic pressure behind the wall. Trees removal may change soil moisture by increasing erosion pressure behind retaining walls And, at the end of the day, if the illegal fence got the notice of violation, why the poor trees have to be cut in place where they are meant to be by code rather than cut in the fence itself? A previously planted retaining terrace instead used by residents as a new occupied deck would add live loads people, furniture weights, uncontrollable weights, and concentrated loads near the retaining wall. A retaining wall designed for landscape loads may not actually meet occupied load requirements. These modifications significantly require common space no longer equally usable by all units. effectively creating two discontinuous usable levels not in line with the original building permit, not a restoration but a functional change of the yard in different levels with an equal portion or isolated platforms. An approach from planning, merely focused on square footage extended to discontinuous upper retaining terraces, would dismiss the original entitlement or layout of the home space, thus causing loss and relocation of approved space with stairs and planters or shaped awkwardly shaped, unsafe and not practical for normal residential use. The original plans suggest instead they were not intended for free circulation or use, not indeed qualifying as usable open space free of structure to be readily accessible and safe. Emergency egress should be clear, direct and unobstructed, requiring residents to navigate elevation changes to bypass a barrier, increasing risks, particularly in low visibility and high stress emergency situations. The proposal represents a reconfiguration of required open space, materially altering the scope of the initial permit. Not a correction of a permit error or small fix, but a substantive planning change. Was the terrace ever approved as usable open space for the four units when the building was permitted? Or are we trying to fix an initial error with a new bigger error or redesign the project to make a violation acceptable by removing a defined barrier and level transitions? Longevity doesn't make a violation legal. Rather than restoring compliance of the entire approved initial plan, open common space originally credited to four units, this seems an unfair retroactive postdoc conversion redesign of the terrace into usable open space to make up the square footage lost by the community for years. Instead, removing the fence would restore the approved and compliant condition without requiring any redesign or reinterpretation of the open space. Additionally, the fence is not a neutral structure by shielding glare for the benefit owners while redirecting all night long flashing lights with alternating colors toward our unit. I wonder how this could be code compliant. Was the inspection done at night to check the lights? And the lights, by the way, were added during the appeal process. So it selected mitigated nuisance for some owners while arming others by changing light distribution patterns. It worsened light trespass with our unit bearing a disproportionate burden. There are lights peeled and grayed directly upward toward our second floor windows, not shielded and not tied to reasonable needs. This is a nuisance injurious to the health of a member of our household affected by a condition protected under California and federal law. Offensive to the census and interfering with the comfortable enjoyment of life and property as per the San Francisco Police Department recent incident reports. This is not our opinion. Everything we're saying is backed up by municipal agency. In this case, the police department who certified the nuisance from the lights. We are grateful and relieved that after all these years all the departments have finally shed light to what is called compliant versus violation of multiple codes in the building. The appeal should be upheld to revoke the permit with the demolition of the legal fence and any future major modification should be reviewed as a community and go through the normal permitting process. We should address the novier and then we should work together on a permit from all the owners to address any major modification. Propose as a community rather than a couple of owners acting with their board.

Thank you. We have a question from President Tresvigna.

Thank you for your presentation. I have three probably unrelated questions. Sure. The first is you mentioned the police department. Can you remind me, is there something in our record that is a finding of the police department about the lights?

You mean in the brief?

In the record that we have before us. Can you describe when you say the police department has... Is there a report made by you? Has the police department said anything? Has the police department charged anyone?

So a few weeks ago, by the way, we notified the HRA board and owners of the lower units about the nuisance for lights. And this is why we filed the permits, because we requested to regulate the lights at night.

OK, but my question is, is there anything in our record to show that?

the police has been contacted or that the police... Yeah, it's in the slide that I shared. After the brief, we could not add any additional. So it's...

Okay. So what is... Is that a police department record? Is that... Yeah.

So basically, a few weeks ago, we had to call the police at... What was the time on the... 4 a.m.? 4 a.m., there is also another police department for noise nuisance at 2 a.m. So we had to call the police department.

So that shows that you called the police department. Correct. Is there anything showing what the police department did as a result of your...

Yes. The incident report reports that the police department tried to contact Unit 1 owners. So this is a different one. But basically, they couldn't reach out to the owners, which left the lights on all night long. And they just added in their incident report to notify the HOA and work with the HOA.

Have you presented this document for the first time tonight, or is it already in our record?

No, it's not on your record. It's in the slide. Because I was notified that after the brief, we cannot send anything. Anything else?

So I'm sorry, I'm not under... Not part of the brief.

He submitted his brief, then subsequent to submitting the brief is when he called the police and this report was generated. And you cannot submit supplementary material.

So we're saying it tonight?

February 26th. The date reported on the incident report is February 26. I can send additional records after this hearing, but this is just for the slide.

Great. The second question I have relates to you asked about why should the fence be there, or why should the vegetation or trees be cut in deference to an illegal fence. And Ms. Leong described her sense of security, her safety, her privacy. Do you take that into account when you balance your recommendation to go for the open space and take down the fence? Do you value your neighbor's privacy, security, and safety as described tonight?

Yeah. So first of all, they have rooms also on the front. There are also other bedrooms in the front of the building where is the street. And if you have a unit, a ground floor, you will need to handle that. Then for the back of the building, the way we look at that area is a service area for window cleaning. Sometimes you need to do a remodeling project. You need an outdoor area to cast stuff. also safety. If there is an emergency, the fire department needs to have access to the area for fire containment, ladder access for rescuing us from the units. But it seems that we are Looking at the privacy, which is a reasonable concern, and there can be ways to address that.

That's what I wanted to understand from you. You consider it a reasonable concern that can be addressed some other way.

Yeah, exactly.

Finally, the last question I have is, and if you could remind me of... We've talked about the various units. Ms. Leong and her husband have the ground floor. The people sitting behind have another floor. And we're trying to get 399 square feet of common area Are you one of the three? Is it your common area, or are you situated where you already have a deck?

Could you repeat the question?

so yes we are our unit would be one that would benefit from the open space correct because we are in the middle so we do not have anything any open space but if we are if if the code requires 133 square feet of space you're one of the three units that

are entitled to that. Correct. And so therefore, you're one of three, and you object to that proposal.

We have already access to the part on the right side of the fence. And the permit holders have not reported any privacy concerns because we could have already gone there to raise privacy concerns or safety concerns. We have already access to part of the area. But the question is, are the permit holders looking at that modification to give more usable space to the other three units, which by code, it's not our opinion or my say. Because for example, when we asked permit holders or the HOA about the lighting issues, the feedback from them was very.

Now you're straying into your questions, not my questions. So let me get back to my question, and then I'll turn this over to Commissioner Wong. My question is. Asked another way, how much square feet of open space do you have access to currently?

The one on the right side of the fence, the 250.

Yeah, the 250 square feet section.

I'm sorry, how much is that?

250 square feet, the section labeled with 250 square feet, PA1, labeled as PA1.

250?

Yeah, 250. OK. So we have already access to that area. But it's not enough for three.

And by the way, the- So the area that's going to be expanded, that's not going to be your open space. You already have your 250.

No, no, no, no.

255 per the planning department's brief applies for three units. And the planning department's position is that they need to have more than that, more than 255. So that, I guess, they need 399 square feet to satisfy the open space requirement, if I'm correct, according to his brief.

We no mention to privacy and safety, because that's implied, right? So basically...

But as to your 133 that you're entitled to under the code, you've got that no matter what. Whether it goes from 250 to 399, you have that.

If you don't consider the terrace, which was not approved as usable common space by the original planning plan, three units needs to have at least 400 square feet as a common open space which is not achieved today. So initially that common space was allocated to four units like equally that we know the vision. Now if you put a fence The private part needs to have at least 100 square feet, which is met by the current fence. But the remaining three units needs to have 133 square feet each of common usable space, which for three units is a cumulative 400 square feet roughly. And that is not met at the moment. So that's why they will need to add the terrace to make up for that space.

Thank you. And Commissioner Wong?

I have two questions. Sure. The first about the lights. I know that it's not in our brief and it's submitted after the fact, but have you had conversations directly with your neighbor about the lights versus HOA and calling the police?

So could you show the... To give an idea of the level of collaboration during the permit appeal process, I'm showing a photograph depicting two human-shaped dolls. with pins and displaying inside the window of Unit 1 directly facing...

Sorry, that's not my question. I just wanted to know if you had a conversation with your neighbor. Like, when this stuff was happening, did you walk downstairs, pick up the phone, have a conversation with your neighbor about this?

So we're not comfortable because in the brief from the permit holders, we are accused of harassment. And so we are also the attorney of the permit holders, as mentioned, HOA, election. But in practice, we have been discriminated from the community. We are not allowed to ask questions in board meetings. we are not involved in these decisions and we are receiving this retaliation so we ask the board because we notify the board about these issues because we are afraid that if we directly to our neighbors. They could use our requests against us, as they did in the brief. If you look at the brief, they're saying we are not in good faith. They said there was no fire safety code. Instead, there was a note from the fire department. There is a bunch of lies. So we are concerned that whatever we say to the permit holders may be used against us as has been done in the... Got it.

So you chose not to because of this fear. Yeah.

Instead, we have notified the board, the HHA board, and the feedback that we got with them because they talk with the permit holders. There's a coalition. And the feedback we receive from the board, because eventually the board is in charge of regulating the common areas. was if it's an issue for us, if the lights, the news uncertified by police department, we send the police department report to the HOA board, and their feedback was if this is a problem for you, you can install a blackout curtain to resolve your issue.

Got it. So my other question is regarding their proposal. So we've definitely heard tonight that there's one unit has concerns about safety. We've heard about the fence height and all of that. If what I heard you bring up, was regarding the landscaping and a lot of other issues about what would happen if you change it into a usable space. If those were addressed, would you be amenable to an additional terrace as the additional open space that you would need?

Yes. I also want to bring up that Ms. Long mentioned the privacy. The privacy is also on the other side. We understand that there is a privacy concern. What we're saying is that there might be a different way, which is not a separation, which naturally it's not really common. Because even if the other side is for three units, even with the terrorists, there is still privacy concerns. So we just focusing on her question.

She asked you if you're amenable to the terrace, the new open space. Sorry, just to keep on track here to your question.

So the terrorists would pose safety concerns to us because you need to have stairs, you need to have guardrails. And our question is after we add, we calculate, what is the calculation showing that after we add stairs, guardrails, back of stage for safety, we still have 400 square feet? Do we have that?

Yeah, I think that that's where I'm trying to figure out where there's maybe a win-win somewhere, potentially, is if all these safety concerns that you brought up, because I think the drawing was a rough sketch, like a visioning that is not formal, right? If something more formal, somebody went in and actually went over the safety issues that you had, went over the dirt issues that you have, all of it, and is code-compliant open space, would you be amenable to that?

Yeah, I think that's definitely... a path for a resolution but we believe that this should be aligned as a community in collaboration mode with a dedicated permit so we we should stay focused on the permit under appeal which is we need to my understanding is that we need to make a determination about offense right whether that can be corrected or thank you thank you yeah all right

You answered her question. Thank you so much. You can be seated. We have no further questions. We will now hear from the permit holder. You have six minutes.

Great, thank you. I just wanted to clarify a couple of things I think they mentioned. I checked with my clients. The issue with the lights, so there was a notice of violation for a light in the light well. That light was removed and the violation was closed with an electrical permit. So that was what was at issue with this permit that's already been addressed. I believe now they're talking about some solar powered lights that are on the fence. that are not permanently wired to anything. They're just the ones you buy at the hardware store that you place. I don't think we were aware of any issues with those lights, but that sounds like a perfect conversation to have internally in the community. So that would be my suggestion of how to deal with that issue. There was also some communications about a police report. My understanding is that appellants called the police concerning a poker game that some of my clients were having. The police responded but didn't do anything. So just in terms of what the context for that, I don't believe it had anything to do with lights as far as we are aware of, but just for clarification about that. I did hear appellants say a lot of concerns about safety, which I think Commissioner Wong heard, which is obviously something everyone cares about. And so that's why we're asking for a special conditions permit so that these issues can be addressed through the HOA through how their governing documents work, which is not that one owner gets a veto over the project. It's that there's a process in place. And I think that's the appropriate way to handle this because I do think there are people that feel different ways and that that is how you handle sort of a governance dispute is through the HOA. And all we're asking is that that space be added and how it's added would have to be a conversation that's part of the permit that the HOA would have to authorize because it's common area. The design, obviously, would have to comply with the building code if there's a railing requirement. It obviously would have to have a railing. The stairs, there's very specific requirements for stairs, as you all are very aware of. And all those issues would be addressed through a special conditions permit. that's reviewed by everyone who's at issue, including the people here today. I also just wanted to mention again that the HOA did approve this fence and it has been in place for at least 15 years So this isn't something that client my clients went and did last year This is something that everyone bought into the property with it existing and it just would be fundamentally unfair to rip that away this long-standing condition of the property and So I think that's just really, really pivotal in how to think about this. And if the fence was only six feet, it wouldn't have required a permit in the first place. So we're only sort of here today with the building permit because that fence was a little bit too tall. But as we've already heard, we have to lower it anyways. And so that's sort of what we're here today. There's a lot of talk about property rights and how the rear yard is divided. Again, I just think that that's a conversation that has to happen with the HOA, and this is just not the proper place to think about how common area is divided up. in an HOA. I also wanted to say that the vegetation in the back is not the original vegetation. It's not been well maintained. A lot of it's sort of weedy, so it's not the case that you're tearing out something that's immaculately planted. It's just sort of re-refining the space that exists. The retaining wall is also not on the condominium plan. That was added at some point a long time ago. So there have been modifications to the rear yard over time. And it's really up to the HOA to decide how to use it as long as it's code compliant. And so just to reiterate what we're asking the board to do today is we are asking you to grant the appeal It imposed conditions on the permit to revise the scope of work, and the three asks we're asking for is to lower the fence height to six feet, to add at least 266 square feet of usable common open space behind the retaining wall with a code-complying access stair to the area, and that we demonstrate compliance with the egress requirements for Unit 2 by adding a gate to the fence or a code complying stair to the open space behind the retaining wall. And the reason why we would like flexibility in that is just because the existing fences within the fence, we don't know practically and what the HOA would want us to do in terms of those two options. But DBI has indicated either of those options would be OK with them. And so we'd like to have the flexibility to figure out what makes the most sense in this circumstance. I'm here to answer any questions that you may have.

Thank you. I don't see any questions. So you can be seated. We will now hear from the planning department.

Thank you again. Corey Teague, Zoning Administrator with the Planning Department. Just quickly, the proposal that was just laid out by the permit holder, the Planning Department would be in agreement with that because, again, the outcome there, depending on which final option to be code compliant under the building code they selected, Those outcomes would both be Compliant under the planning code and then if necessary I'm happy to go into more detail again about kind of the layout and the open space requirements But just very generally again the top two units have their own private open space and when this was originally built all four of the lower units were provided Co-complying common open space within the rear yard once this fence goes in For unit two, it's creating new private open space for that unit, which means the remaining common open space has to serve as the co-complying common open space for unit one on that lower floor and unit two and three and the middle floors, which includes, I mean, it's unit three and four on the middle floor, which includes the appellant's unit. So that rear yard area is the only open space available for those units. There are no independent decks for the middle units. But I'm available for any additional questions you may have.

Okay. I don't see any questions. Thank you. We will now hear from DBI. Okay.

Good evening, Commissioners. Again, this is Kerry McElroy, Senior Building Inspector, DBI. Commissioner Lopez, I did look up. They did pull a permit. So under one of those original permits, the 0415 permit, the scope of work was to legalize lighting. And then they did pull an electrical permit, and I checked, and it has been finaled. So that means it was inspected, and the work was done and completed. So with regards to the solutions, a gate would would mitigate the escape and rescue issues. The proposal to do the stair up to an upper terrace would be fine for the open space. One thing that they do need to keep in mind, this is a covered multifamily building. So the two units on the ground floor were covered under FHA and Chapter 11A for adaptable dwelling units. And all common use spaces that serve covered units are required to be accessible. So providing the upper terrace may require a platform lift or a ramp up to that level as well, not just a stair.

Thank you. I don't see any questions. You can be seated. Commissioners, this matter is submitted.

Thank you all very much for your presentations, both the materials you've submitted as well as your discussions tonight. I appreciate the departments weighing in. And I find particularly the planning department's analysis of this pretty persuasive. to be organized. The various issues, obviously there's a lot of concerns, there's common area, there's private area, long-standing relationship issues, HOA issues, most of which are not in our purview. What we can do is to do, as the planning department has recommended, which I would be inclined to support, which is to grant the appeal with the shortened fence and the other aspects as described. I want to ask Mr. Minardi whether we can move to a motion tonight on a modification or whether and then table it until we have the requisite number of commissioners or should that disposition await the fourth commissioner or fifth commissioner?

Yeah, it takes four votes, so it should wait for the fourth and perhaps fifth commissioner to be here.

We can express for the record that intent is to grant the appeal with those conditions. Correct.

Correct.

Great. So at least that's my inclination of a way to go. I'm happy to hear from my colleagues as to an appropriate disposition. And then once we hear from each other, if we feel that we are done with discussing it, then we will table this until we have those members.

Commissioner Lopez? I fully support what you proposed. And I regret that we have to continue.

Commissioner Wong.

I'm glad that we're here so that we can at least have the meeting, but I'm inclined to agree with you.

Okay, so the next meeting where we'll have four commissioners is April 29th.

Great. Then we will continue this matter to April 29th without any further testimony from the parties, although any matter that is

So I think we should have a vote on that?

Well, I'm proposing that we table it with those things in mind, but also to say that the public can always comment on any matter. So there is an opportunity for the public to comment at the next agenda item. So I would move to continue this matter to April 29 for purposes of a dispositive motion on the matter.

And I'll specify your intent in the minutes. So on that motion, Commissioner Lopez? Aye. Commissioner Wong? Aye. So that motion carries 3 to 0. And the matter's continued to April 29. I'm happy to talk to you about it in more detail. Do you have a quick question? Sure. I think it's been continued. You'll have three minutes to address the board at the next one.

I'm sorry. Mr. Ferreira, we have decided to push this matter over to the next meeting. And anything you feel free to tell us now, you can tell us at that point. Thank you. OK. Thank you all.

Thank you very much. We are now moving on to item number five, which is jurisdiction request number 26-1, subject property 158 15th Avenue. And as I previously indicated, we will have Deputy City Attorney Sarah Fabian advising us on this matter. And she is attending via Zoom. So Deputy City Attorney Minority will step in the back. So again, this is subject property at 158 15th Avenue. Letter from Monica McKay, the requester, asking that the board take jurisdiction over alteration permit number 2026-0209-5519, which was issued on February 11, 2026. The appeal period ended on February 26, 2026, and the jurisdiction request was filed at the board office on March 6. The permit holder is Kerry Cooper. The permit description is revision to permit application number 2022-0825-1288, foundation support. Note, on March 25, 2026, upon motion by President Trasvina, the board voted 3-0 to 1, Commissioner Lopez absent, to continue this matter to April 15, 2026, at the request of the parties. So we will hear first from the requester's representative.

Welcome back. Here I am before you again. Good evening, commissioners. Laura Strazo from Patterson O'Neill representing the jurisdiction requester at this time. So the permit before you falls squarely into your exception for extraordinary cases where the city intentionally or inadvertently calls the requester to be late in filing this appeal. Building code section 1068.4.62 describes for a permit which would authorize a structural addition to an existing building, the department shall mail written notice to the owners of properties immediately adjacent. This permit before you is a revision permit that is an expansion and extension of the building, which requires notice under this code section. I think also importantly, this is a permit for a shared foundation, which equally supports my client's property. They own the property immediately adjacent at 162 15th Avenue. This foundation supports the structural load for their building and the family that lives inside. In December 2025, after the permit holders improperly cut into that shared foundation and undermined the structural support for my client's property, DBI issued NOV 202545473. If I could show that on the overhead.

Overhead, please. Thank you.

How do you make it bigger or smaller, I guess?

OK, thank you.

Let's see. I don't know if everyone can read that or not. Maybe a little bit. If you could just kind of center the highlighted text here and here. Yes. That would be first. Thank you so much. So as you can see, this notice of violation instructed them to stop all excavation and foundation work until the associated permits on the adjacent property, including my client's property at 162 15th Avenue, were obtained. The jurisdiction requesters relied on this statement from the city of DBI that the foundation work would not continue until a permit was filed for their property, which would require notification to them as well as their consent. Instead, DBI allowed this permit to be issued for work on a shared foundation without notice to the other owner of that foundation who's affected by the work, and that's a jurisdiction requester. And this directly violates the building code section 106A.4.62 that we mentioned earlier. DBI has acknowledged that there's an issue with this permit because it subsequently issued a stop work order and a second NOV on March 5th. That's NOV202652148. 30 seconds. And that also instructed them to stop all work and no foundation work can proceed until the shoring and or underpinning of the adjacent properties, including 162 15th Avenue, is provided. Furthermore, the permit plans appear to show work that goes over the property line, which also requires permission from the neighboring property owner. And so for these reasons, we ask that the board take jurisdiction over this permit. There are serious safety concerns about this work. Thank you.

Thank you.

Okay. Thank you. I see there's a question from President Tresevino.

When did your client know there was a problem?

Which problem, I guess, would be the question to ask? The problem with this permit specifically?

Yes.

This permit was taken out behind my client's back. Permit holders notified them the day after the appeal period ran that they were planning on changing the work. Prior to that, they had been working on a shoring agreement for a different scope of work. And so they found out when permit holders notified them after the appeal period was over.

So they weren't aware that this was happening prior to that?

No, in fact, there was permits on file for a different scope of work that they believed would be the scope of work for the project.

I understand in the material from the permit holder that the retaining wall is considered on his parcel. Is that a dispute, or do you have evidence to the contrary?

Sure. So to clarify, it's a foundation. And we also have our engineer here if there's technical questions, since obviously I am not a structural engineer. The work is to a shared foundation, and it impacts the structural load to my client's property. And there's grouting proposed that appears to be across the property line. And so for all those reasons, permission from the neighboring property owner or at a minimum notification is required under the city codes.

And notification responsibility is the city's or the permit holders?

The city code requires notification in these instances. The city also created a special... Similarly to the Taylor case you decided last year, the city created this special relationship by issuing violations that said permits would be required for both properties for the scope of work and then... Allowing permits only for one side without providing any notification to the affected property owner next door at 162 So are you saying that the city allowed?

for this to go forward without the Neighbor notifying or did the city have to be the one to notify? I

The city in its own code, it's the code section that I referenced. It's building code section 106A.4.6 subsection 2 requires when there's a structural addition to existing building that notice must be provided to the adjoining property owners.

So that suggests that it's the property owner's responsibility, not the city's.

I know the city is required to give notice. I think we've seen this before. They describe them as notice of structural addition that provide the appeal information on the notice. Those are notices sent by the building department.

So then you're saying it's the city has taken upon itself to have the responsibility to notify your client, not the property owner.

In fact, it's in the building code so that it's mandatory.

that it's the city's responsibility as opposed to the property owner's?

Correct. It's actually both. There's a separate obligation on behalf of the property owner to provide notification under the civil code. But the notification that we are asking for the jurisdiction request is required by the city to give notice.

Great.

Thank you. OK. Thank you. I don't see any further questions. So we will now hear from the permit holders. Welcome. You have three minutes.

I'm Carrie Cooper. I'm the owner of the house. I've lived there for 25 years. We saved for this remodel so we could dig down. Our first floor is like six and a half foot ceiling, so we're digging down to make it livable. When we started, it took 1,033 days to get the permit.

Yeah, is that better? Sorry.

Did you want to restart the time?

Can we start over?

Thank you.

I'm Carrie Cooper. My husband and I are the owners of 158. We've owned the house for 25 years. We've saved up for this remodel for a long time. We have followed DBI's path this entire time. It took 1,033 days to get the building permit. We finally got the building permit. We started excavation in June. And we found out we had a shared foundation. We didn't know prior that we had a shared foundation. So with that, we stopped work. We worked with our neighbors to have them, the city asked us to have them pull permits on our behalf to grow out under their property. And we spent seven months negotiating, trying to come to resolution. We came to resolution with the north, but the south was really challenging. So we decided in january to go with plan b and plan b is to basically cantilever the weight of our house into the middle so we're losing some of our living space so that we don't touch their property line we did that with the city with three sets of engineers to make sure that it was all according to plan we from a you know we did we notified them at the end of the permit period that we were going to pour, that we changed our mind, and we're not going to touch their property, so we don't need a permit from them. Inspector Clancy came out and personally observed the poor so we had these we had five foot open pits two of them on their side three on the neighbors to the north filled those so that to make it safe again we sat for seven months trying to negotiate without have with open pits which was incredibly frustrating I think you know in good faith we were trying to come up with a solution and we just couldn't get there with them and the path that we have now on our plan B is the existing permit we have 5519 and We continue to try and find a solution that would make both parties happy, and we can't get there. And we want to push forward with this work. They filed both NOVs on us. The NOV was cleared on the first one pretty quickly. We did no more excavation work. The second NOV was cleared earlier today by Inspector Clancy with the agreement with our neighbors to the north. The question here, I'm not a lawyer, so I have my husband who digs in more than I do, but we want to move back to our house. We want to get this moving. We've followed every rule that DBI has asked us to do. We have three sets of engineers that have overseen this work that have said what we're doing is safe, and I just want to come home.

Yeah, and the only comment I would add is my wife says I'm one who tends to dig in. I read the requester's brief closely and followed the legal citations that they included. Nowhere in their brief that I can find do they cite the provision that their attorney is now bringing up today. Nowhere. So that's one thing. And the other thing, as Kerry said, the NOV that they referred to as of today is now lifted. The reason that originally the guidance from DBI was to seek permits with our neighbors on both sides was under an assumption. The assumption was that we would take the approach that we're taking with neighbors to the north. When we determined that that wasn't feasible in the combination of the technical requirements and the agreement with the neighbor to the south, we changed our approach such that all of the work occurs within our own property line. That's the reason that this is different. It's all work within our own property line.

Thank you.

OK, we have a question from President Tresevina.

Thank you for your presentation. And I appreciate you're not an attorney. So I don't want to ask a lot of legal questions. But what I hear from the requester is there's work being done on a shared foundation. What I'm hearing from you, and please correct me, add to, subtract to what I'm saying, is that you worked in good faith with your neighbor, attempted to try to reach an agreement with them. You weren't able to do so. And here's where I get a little bit hazy. Are you saying you couldn't reach an agreement, so you went ahead anyway? or you couldn't reach agreement and you decided to do something else which doesn't affect their property?

So it's kind of both and, because our contractor had dug in sections. So there are two sections on their property that were open, and they were open pits that were, all of it was ready to have concrete poured in it, but we stopped work. So we sat for seven months with these open pits. What Inspector Clancy said was fill the pits, make it safe, get the concrete out there. So he personally was out when we did the pour to make the concrete safe. So we have remediated the shared foundation issue by making that safe with poured concrete and rebar. And now plan B is we're not going to touch the rest of that prop. We're not digging down on the shared foundation. We're pulling it back.

So it's all on our property side. And just to clarify, that excavation she describes, just to clarify, the excavation she describes was on our half of the shared foundation. It was not on their property.

And it was permitted.

And it was permitted.

So is it accurate, fair to conclude that whatever work you did that affected their property has now been remediated. And anything now and into the future will not affect their property. Yes. Thank you.

OK. I don't see any further questions. Thank you. You can be seated. So we will now hear from the building department.

Good evening again, Commissioners. Kerry McElroy, DBI, Senior Building Inspector. I spoke with Fergal this morning regarding the project, and he basically filled me in as to what's occurred out there and informed me that, yes, the foundations had been excavated in two sections and that they sat for a period of months, and they have been since filled back in. restored that part of the foundation, and they pulled another permit to basically build a new foundation inside of that shared foundation. And he's been monitoring the situation. This afternoon, he came by my desk and told me that he had heard from the attorneys. This is what he's relayed to me, and that they had talked about a path forward. So that's the extent of what I know about that part of it.

Thank you. I have a couple of questions. One is, is it a fair characterization of what you just said that this permit is moot because the work has been restored and now they're on to other permits?

Well, so the permit in question, right, is the new permit to build the foundation inside of the existing shared foundation. So the work that was started was under the original permit. And that's when they discovered that it was a shared foundation. And that's when the notice of violation was issued to stop work because it was shared.

Okay, so this is a live permit? Yes. And my second question is, what is your view of Ms. Strasso's testimony in citing the building code 106A4D that the city has a responsibility to notify?

So I'm not aware of that code section. I am aware of 3307 I think it is. That requires the permit holder to notify. But the 106A.4D.

So in your view, there is no city responsibility to do so? Correct. To my knowledge, yes. Thank you. Your Honor.

Okay. Thank you. No further questions. So commissioners, oh, we have to ask, is there any public comment on this item? Because you're the engineer, correct? You can't provide public comment. You have to speak during their time. So thank you. I don't see any public comment. So commissioners, this matter is submitted.

Thank you for bringing this to us. I think we have a fundamental difference in legal views, one from the department and one from the jurisdiction requester, and the requirement for us to take jurisdiction turns upon whether the city did anything intentionally or inadvertently to cause Ms. McKay to not file her appeal on time. I'm wondering, our deputy city attorney, can she help us work through this legal matter?

She's here.

Good afternoon. So I was reviewing that code section, and I... was not familiar with this, but based on just a very quick review, it does appear as though it's the permit holder that is responsible, but I would need to look at this more closely. And so, and the, as you had noted, the standard is, you know, whether in order to grant a jurisdiction request, whether there is a finding that the city intentionally or inadvertently caused the requester to be late in filing the appeal. Like I said, I'm not, I still need to look at this rule further in order to determine whether or to provide advice as to whether it's really the department or the permit holder.

You could have Ms. Strazo show us where she believes in the code that the city is required to provide notice.

Well, I don't take my legal advice from Ms. Strazo. She represents the party. I look to the city attorney's office and the department to help us work through this. I believe it's a critically important matter because I think everybody here on this matter is in good faith. And I don't have one iota of suggestion that the city did anything intentionally to deny the requester information. But there's a... good case to be made that it was inadvertent because the city doesn't acknowledge that it had a responsibility to inform Ms. McKay. So I will turn to my colleagues to see whether we have enough information to decide this. If not, I would ask the city attorney's office to provide us further information on this code section and also invite the parties to do so as well. Commissioner Lopez?

Yeah, so my understanding of Ms. Strazo's position is that the code reference that we're discussing is operative because of the shared foundation question. And if we're to accept the report of DBI, which says that the current work is operating on a permit that operates solely within the footprint of the permit holder, then I'm not sure what the relevance of that code section is. And I would go on to agree that if it is relevant, then I would propose continuing to get a more clear and determinative view from the city attorney's office as to whether the responsibility lies with the city or with the permit holder, the property owner. But I'm not sure that the section's even relevant if we're to take what DBI shared is kind of holding in this case. And he's basically saying that there's an NOV for the excavation work done on the shared foundation that's since been remedied and lifted. Now we're under a different permit. And I don't think that the code section that the jurisdiction requester

Cited is even irrelevant if the the the current permit does not involve the shared foundation Thank You Commissioner Wong anything to add I Guess more questions because I am trying to figure out like the active permit It has nothing to do with what we see in the case, right? Like the holes and stuff were from the previous permit

That's what I understand based on the testimony of the permit holder and DBI.

OK. And we're focused on the second permit.

The one before the board is a revision permit to an original. I mean, if you want DBI to elaborate, it's a revision permit.

Please come back up.

Maybe if you could just give a brief explanation of the original permit and then the revision permit, what the purpose is.

So... Well, so the original permit, right, was to replace or underpin of the original foundation. And that's when they discovered that it was a shared foundation. So they were told to stop work. Then Fergal gave them the go ahead to infill and restore the part where they had excavated. And then they worked together with, we actually, Fergal was there when they looked at the permit over the counter to approve it, to make sure it was in line with the field conditions. So this revision permit is a revision to that original one to instead of replacing what they thought was their foundation, which turned out to be shared, to move what they're replacing now inside of the existing shared foundation.

Are you saying it's a modification of the existing permit or an entirely new one?

No, it's a revision to the original one to modify what the conditions that were originally shown on that original permit deferred from what were in the field. So this permit now... aligns with what they're proposing to do as opposed to what was originally proposed.

Was the original permit, would that have required notification and was notification given?

I don't believe it would have required notification at that time because it was proposed as it was a separate foundation from the neighbors. They didn't know it was a shared until they started doing the work. So if they were only doing work on their own side, they wouldn't have needed to notify if the work wasn't affecting the neighbor's property.

Any other questions?

No, thank you. I think that just reinforces my read of the situation, which was the original permit wouldn't have required notification even, as far as I understand, under Mistrazo's code reference. Because at the time that that permit was pulled, they didn't understand that it was a shared foundation. And so maybe there would have been an NOV. They may have revised that permit to then actually proceed on the project has originally intended addressing the shared foundation, which would have given rise, in my mind at that point, notification. Whether that's notification from the permit holder from the city, I think, is an open question. But given that they changed the scope of work to then operate solely within their parcel, setting aside the shared foundation, I don't see the relevance of the code section. So I'd be inclined to deny the jurisdiction request.

Would you like to turn that into a motion?

So moved to deny the jurisdiction request on the basis that the city did not inadvertently or purposefully, you may have to help me with the rest of that.

Intentionally or inadvertently caused the requester to be late in filing the appeal.

Exactly. Thank you.

OK.

If I could just add, this is a very murky situation. But in order for us to grant jurisdiction, we need to have four votes. If we have three votes, or rather, so we're moving to deny the request, how many votes does that need?

Three, typically. But if only two move it, it would, in effect, be like a denial. But the question here is, are there two members tonight who would want to grant jurisdiction? If so, then we can continue this matter to a future date when there are four commissioners. If there's only one person who wants to grant jurisdiction, then the other two would still make it three. and the other two don't want to grant jurisdiction, the vote of the missing commissioners wouldn't make a difference.

Great.

Commissioner Wong, do you have anything to add or questions?

No. I'm inclined to agree with Commissioner Lopez on this.

I don't think we're ready to vote.

OK. So we have a motion from Commissioner Lopez to deny the request on the basis that the city did not intentionally or inadvertently cause the requester to be late in filing the appeal. On that motion, President Chesvena?

No.

Commissioner Wong? Yes. Okay, so two to one, and that would mean that the underlying, that basically is a denial of the request. So that concludes, pardon? By operation of law. Correct. By operation of law.

Well, it's an affirmative motion by the board, two to one, and... Because of, so that's a satisfactory disposition of it because it has a majority of a quorum.

Typically, yes. It would act, it's tantamount to a denial. Typically, you would need three votes to deny. There are not three votes to deny. There are not four votes to grant. So the decision would basically be denied by operation of law, the request.

Well, I think a different question is, can we pass something as a board with two votes when we have a quorum of three?

No, unless it's a procedural matter under the charter 4.104. And this is not a procedural matter. This is a matter of substance.

So the motion still fails. But given that we can't pass either motion based on the votes that are here and that could be here if we had even full five, the motion fails. But the jurisdiction request is still denied as a matter of or by operation of law because there's no other motion that's possible to pass.

Right. So I just want to establish that while the motion has two out of the three, it doesn't have the requisite three members to be action. And in the absence of action, the jurisdiction request is denied.

That's my understanding, yeah.

Correct.

And I hope the minutes reflected that way.

OK.

Thank you.

Thank you. So that concludes this matter. Thank you for your patience.

Do we need to take a recess of 10 minutes?

OK. Thank you, everyone, for your patience.

SFGov TV. San Francisco Government Television.

Thank you. Thank you.

26-01-20-4180. And we will hear from the appellant first. Welcome, Ms. Hinkle. You have seven minutes.

Thank you very much for staying late and taking the time to listen to our appeals. I am not appealing for them to stop all construction. It's more to add the condition that they fix the damage that they do to my property before they're allowed to get further permits approved. This is, you know, my home in the middle is the yellow one at 138 Athens, and I'm bordered to their property. Just to give you some history, back in December 30, 2012, their home burned down. The occupants fled the home without letting anyone know. It was spread to my house. I was out of the house for over a year. until I was able to move back in due to damages. And I was diagnosed with PTSD at that time. I was having issues with memory loss and so forth. When they first wanted to fix that home at that time, I objected to... THEM BUILDING IT BIGGER AND FATTER BECAUSE I WAS WORRIED THAT MY HOME WOULD BE DEVALUED BECAUSE OF LACK OF USE AND I TRIED TO HELP OTHER NEIGHBORS WHO DIDN'T FEEL COMFORTABLE SPEAKING WITH THEIR CONCERNS AND COME HERE AND APPEAL. Because a lot of them, English was their second language, and they were not comfortable. And we had conflicting things. I was trying to present everybody else. I was having PTSD. I did a poor job. And I didn't even make sense. And I just, after that, just dropped it and nothing happened. I didn't pursue it after my first appeal. I just let it go. Okay, so that happened way back when. I think it was 2015 when they had their initial plans. I don't know why. A home wasn't tried to be rebuilt until recently. Because of the memory loss issues, I was having other issues like emotional bursts and things like that. I ended up just moving out of my home emotionally. I just couldn't take it. And I moved out, had someone, got a renter, moved out. And I just abandoned my home. I couldn't afford selling it because I just, you know, everything is. Anyways, I'm getting off track. What I'm trying to say here is to give you some background. It wasn't until April 27th, 2023, that I heard that this home was going to be rebuilt. I got a call from, I first got a text from my renter, Kristen, letting me know that the project manager for the neighboring property, 134 Athens, wanted to ask me some questions for the wall. As you can see here, I tell her, yeah, that's okay. My retaining wall is fine and, you know, about the retaining wall. So anything that they need to do, that's on them. But, yeah, thanks for the heads up. I get a call immediately by Henry Yoon on April 27th at 9.57 a.m. The call was 22 minutes in length. And it's centered around whether I He asked me whether I wanted to pay for the upgrade of a fence that can be built on top of a new retaining wall that they were permitted to build. He kept empathizing that it's permitted. And he introduced himself as their structural engineer and project manager overseeing the construction at 134 Athens. And he wanted to know, he said he would like to put a fence on top of the retaining wall that they were planning to rebuild. And he wanted to know whether I wanted to pay to upgrade it to one that maximized views. I told him that I had just quit my job. I had just quit my job, that it was a rental property, and until I get another job, I don't know if I could afford something like that. But after hearing from him the prices, I was like, yeah, if I could afford it, I would love to at one time, but I just can't do it right now until I secure another position. He tells me... He told me... He starts asking me if he can record my approval, and I start questioning him to come onto my property. And I said, if it's permitted, why do you need to go to my property? Of course I'm not going to interfere with anything you're doing. Why do you need to get approval from me if this is permitted work? He told me that when they remove the wall, there's going to be loose soil that comes off and things like that. And anything that they do would be fixed. And I said, I won't have any problem with permitted work. You know what I mean? I don't have any problem with permitted work. But so that call ends, and I text back my renter at this time. And this is proof of what it is. I tell her I spoke with engineer Henry. He was really nice. They're going to rebuild the retaining wall and asked me to put a metal rail or glass fence up on top of it at my expense, pretty much. That's what I understood from the conversation that we had. Flash forward to about August 2023. He contacts me out of the blue, and he asks me if he can.

30 seconds.

Oh, shoot.

You'll have time in rebuttal.

Yeah, he pretty much starts trying to get push. I'm excited at this point because I have a new job and I'm moving from Wyoming to Washington. I ask him and for the new job, I tell him, hey, I can afford that fence on top of the retaining wall now. And he doesn't want to talk about it. He rather I we talk about fix about. I'm sorry. I knew. I now have cognitive issues. I lost my job since then.

Just take a breath. Take a moment. President Truskini has a question for you, but just take a few breaths. Take a moment.

There's more time later, too.

I knew I was going to fail. I keep messing. A lot of information. I didn't have time to practice this because I messed up, as you knew. No, you didn't mess up.

Ms. Hinkle, you're doing fine. Let me ask you a question or two once you're ready. I wanted to, if you could help us talk about activities, actions, complaints of yours from 2026. Briefly, can you tell us what your concerns are about the current permit?

Okay, I can summarize. They ended up tearing down the wall. That wasn't what they were permitted to do. They were supposed to build a wall next to my existing wall. When they tore down the retaining wall, they also excavated into my property. I have a six-foot deep by 24-foot wide by three-foot hole in my property in the backyard. I live on a cliff. That's why I have amazing views. from my backyard. And my soil is now eroding down the back of the wall of my property. And I could not get the refill in the dirt. I couldn't refill in the dirt because they didn't put siding on their property and I knew it was going to get contracted. When they put in their new wall, they did not put something to brace me from the cliff and it's eroding downhill. We hired a neutral engineer who said that if we put in dirt,

It would the wall would fall again Miss Hinkle then the issue of the I'm sorry Do you do you Can you help us by telling us? When that problem started was it this year or was it in the past? I?

Oh, I'm sorry. I became aware of it in October 2023. I didn't know my renters are the one that first initially filed a complaint with the DBI because they were upset that their garden was being ruined and that they ruined their planter box. And they didn't tell me.

I just want to know the time in the year, which you've told me. It's October of 2023. I'll just ask you one more question and then we'll hear from others and you can come back up and think about other things you want to tell us. I just want to know if you can, tell us about current in 2026 issues that are affecting your property.

That is still not fixed. They keep lying about everything. They wanted me to sign contracts saying that I already had a hole there. I have pictures of that in there. They wanted me to sign contracts saying that they had to tear it down because the wall was failing and that I was... and that I knew about that, which I did not know. They wanted me to sign a lot of contracts before they would fix it. I went to the structural engine to see if I can get it fixed. And I was told it will cost $50,000 to $90,000 to fix just that portion alone. I also, while they were arguing with me, they were telling me that I should pay for half of the retaining wall because it was a good neighbor fence between us, which I knew was not true. And they sent me pictures. The foundation was sawed off. The shared foundation was sawed off by them in the foreground of the picture. And they also don't have siding. I am a victim of fire from that house.

They don't have proper siding. You've given me the information that I was looking for. So let's hold for now. You've answered my question. And I don't see my colleagues seeking recognition. So we'll turn to the next speakers. And you'll have a chance to come back up later and tell us some more.

Oh, and by the way, their engineer is not even an engineer, and he got fined before for pretending to be an architect. Thank you, Ms. Hinkle. You can be seated now. We will hear from the permit holders.

Representative.

Good afternoon, Commissioner. I'm the representative for the owners. Anyway, I respectfully present this appeal regarding the notice of violation and work stoppage for the project. A professional survey confirms that the infill, what happened was at the back of the houses was a deck and the infill underneath the deck. That was the big part of the project. and it is entirely within the subject property and does not encroach on a neighbor's land. The neighbor was informed of the project in advance. All the work has been done within the property and meets all codes. Both building and planning have approved the infill and also the retaining wall and I'll get to that in a minute. None of the work impacts the neighbor. Since early 2023, the owner has made repeated good faith efforts to cooperate with the neighbor, including revising agreements at the neighbor's request. Despite this, no agreement was signed. In mid-2025, a city inspector determined there was no valid reason to continue the work stoppage, and the project was cleared to proceed. All work has been performed in compliance with building codes and has passed required inspections. The appellant has provided no evidence of any damage or any code violations. On the retaining wall, there was a property line retaining wall that was failing. The good thing on the one hand, though, was that retaining wall happened to be on the owner's or the permit holder's property. So he told the plaintiff that, oh, wait a minute, this wall is going to come down. We've got to replace it. And I don't know what happened after that, but they went ahead and they took apart the wall that was there before. And they put a new wall, which is, by the way, approved by the city and signed off. However, there was some soil behind the wall, that retaining wall, that had moved away when they were putting a new wall up, the concrete wall, which is still reinforced and all that, right? Anyway, so they're doing the work on that. And so there's some soil that needs to be backfilled. That is all. And she would not allow the contractor to backfill that retaining wall that she had that was failing. So the owner had gone ahead out of his own pocket and said, look, I'm going to do it. I'm doing this work on this house. This house had a major fire, I believe, at the very beginning. That's how this whole thing started. So quite frankly, I don't see if there's any grounds for this appeal. And I hope you would deny it. Thank you.

Thank you. We have a question, Mr. Kornilowitz? No problem from President Trasvina.

Sure.

Can you explain to me your relationship to this? I see a variety of names on the brief and permit holder. I didn't quite understand what your relationship is.

I'm the agent for the owner.

You're the agent for the owner. And who's the owner?

Yeah, Louis Chow, I believe, is the owner. That's what I've got in my... I was hired by the contractor to help with the contractor.

And who's the contractor?

Kay, who's right at the back door. I forget what his company name is. Kay Tang. But anyway, Kay Tang, yes. Thank you.

So I'm just trying to get a sense of how familiar you are with this project and obviously the history that everyone here has alluded to and described. My question is I think in the brief it says that the contractor talked to the tenant.

I don't know. I don't know that. I'm only telling you what I know. I did go out because I went out for an inspection with an inspector a couple weeks back. And I have been following the drawings and the processing of the permitting. But the other stuff which you just mentioned, I don't know anything about the contractor talking to the tenant.

Well, I'm just, is that the same contractor?

That's the only one that I know of, yes.

I'd like to know what the basis was of talking to the tenant and not talking to the owner.

Again, Commissioner, I have no idea. My role is not to be discussing that sort of thing. My role is only solely to look at is this work code complying or not and was there any issues regarding the impact on the neighbour's property. That's my role here and not about discussions that anybody had with the neighbours or whatever.

But it's in the brief that... The brief comes from, do we know who the brief came from? It just says appeal brief response.

Let me just confirm.

Brief submitted by the determination holder.

Who emailed that to us? I believe the contractor did, Mr. The contractor emailed us the brief.

So then I'll ask the contractor. What communication was there? Why talk to the tenant and not the owner?

I was the second general contractor of the project. When I came in, retaining wall and also the foundation work almost done. I have no contact with the first general contractor. I was the second one. So I didn't talk to tenants of 138th.

I'm sorry, can you repeat that?

I didn't talk to the tenants of 138th and Street. I was the second one because I think the first general contractor retired. I was the second one.

Did you write the brief?

Yes, I did, yeah.

Well, the brief says that the owner's contractor notified the tenant before beginning work on the retaining wall. Is that accurate? Is that your own knowledge?

I think before that, the previous contractor did. I didn't do that. Because when I got in, the retaining wall already built, foundation already built. So I don't know about that part, negotiating, talking.

OK. Well, the reason I ask is the appellant has described a lot of problems and damage that has been caused to her property. But also, it comes from years ago. And this permit is one from 2026. So I don't want to hold you responsible for things that occurred long ago. But it's ambiguous to me as to you as the contractor or you as the representative, what kind of communication there has been to address the concerns of the appellant. Do any of you know what communication there has been with the appellant?

I'm familiar with that when I got in, when I signed the contract. But before that, I'm not familiar with that part.

Mr. Gronowitz, do you know?

What I can say is I've seen the communication between the neighbor, the plaintiff, and Mr. Henry Young, who's another person I worked with. He was involved at the time of the engineering, getting drawings done. But I saw his communication between them. I think you've seen it. If you haven't, we'll produce another time, but it's not something I really want to talk about.

I'm sorry, can you repeat that?

Well, there was some communication between the owner, I mean, the plaintiff, and...

Sorry, Mr. Young, the owner, right?

Yes. No, no, no, he was the engineer. I was working with a guy who was doing the architecture for the property owners, Shue or Chell or something like that. I just want to reiterate this one thing about saying damage to a property. I have not seen any damage. I've been out there. I have not seen it. I probably shouldn't say this, but I think we need to look at that. What is it? What's the problem? And how do we solve it? And I don't see a problem. Commissioner I don't see a problem and I saw those communications. Oh my god This was not an easy case to work with the neighbor.

Okay, so that's that's Now we're on the same page the communication with the neighbor and what I wanted to establish because the Miss Hinkle is making a lot of allegations and complaints and I'm trying to establish that Who's in charge of the site on your end, and who has addressed any of these complaints? Now, you say you've seen communication between Ms. Hinkle and the contractor, the old contractor? And Henry Young. Henry Young. And he's the...

He was the engineer on the project and the design professional for the drawings.

And the owner is this Primax Investment? Correct. And are they anywhere in sight?

I don't know. I'm not working with them. Like I said, I want to go back to I'm looking only about what happened out there. That's what I'm looking at and what I feel is fair and reasonable.

Right. And what I'm looking at is and what I see in the record and what I see visibly in front of me is a problem. And maybe it's not our problem, but it's a problem. And I'm just trying to get a sense as to what has occurred So you're helping me understand what's occurred, and I appreciate all of your answers.

Thank you.

OK, thank you. You can be seated. We still need to hear from the departments. Thank you. We will not hear from anything from the planning department.

Good evening again, President Trasvini and Commissioners. Corey Teague, Zoning Administrator with the Planning Department. I think what we've heard so far in the briefs for this appeal, there aren't really a lot of issues being raised relevant to the Planning Code and its applicability or any approvals or issues related with the planning department's review. But just to give some background, again, this property is zoned RH1, basically for single family. There was a previous single family building here that was destroyed by fire in 2013. And then a subsequent permit was issued. It was a 2014 building permit to construct a new single family home in its place. For various reasons, that permit and subsequent kind of revision permits over time have moved forward, but the construction has not taken place. The permit before you tonight that's under appeal is the most recent revision permit to that scope of work. The original building that was approved to replace the building destroyed by fire had essentially a portion on the ground floor that was a void, and the second floor kind of overhung it in the rear. And this proposal will fill in that area on the ground floor. However, The full building is within the buildable area from the beginning and also this area fill-in. So the entire project, including the expanded scope of this revision permit before you tonight, is co-compliant from the Planning Code perspective. And then because of that work is within the overall building envelope and just a fill-in on the ground floor, that is not subject to neighborhood notification under Planning Code Section 311s. So the planning department's review and approval of the permit was correct and accurate. And obviously, I don't have any comments on the other issues regarding any potential damage to the neighbor's property or any of the potential building code issues. I will happily leave that to my colleagues from DBI, but I'm available for any questions you may have.

Thank you. President Trasvino?

Thank you. As usual, your testimony and writing is very helpful to capture the issues. The only question I had is about the issue of notice. And you say it's exempt from the notice requirement And I believe in your brief, it says, based on longstanding zoning administrator interpretation of Section 311 that exempts certain fill-ins from notification requirements, specifically open area under a cantilevered room or room built on columns, so long as the height of the open area under the room doesn't exceed one story or 12 feet. But... does apply to space immediately under a deck nor to space under a room constructed without required authorization. Is that an interpretation of planning code? Like how much of that is in the planning code and how much of that is your interpretation?

So the planning code basically says in section 311 that alterations to a building, which is kind of defined as an expansion of the building envelope, trigger most of them, trigger notice if you're in a district that requires notice. And the code also provides some exemptions for that. But there are other longstanding zoning administrator interpretations about certain scopes of work that were determined to not require. Basically, they're not really considered an expansion of the building envelope. and are determined not to be subject to neighborhood notification. This is one where I don't know the exact year, but it's very longstanding. And again, the concept is because if you're filling in at the ground floor, especially under a cantilevered building portion, you're putting mass within the envelope, and it's not extending any deeper outwardly, and it's not extending at all vertically. The distinction in there on decks is because if you're doing a building addition under a deck. A deck is not technically part of the building. It doesn't carry the same mass as an actual cantilevered building addition. But that is an interpretation from the zoning administrator that's been around for at least a couple of decades.

And how does a member of the public, specifically the neighbor of a building project, know that?

Well, in terms of how they could find that out, there's a few different ways. I mean, if they wanted to know if any project was subject to neighborhood notification for any particular reason, they would either need to contact the planning department in various ways. They could access the code themselves online and review that themselves. And if that's clear to them, they can do that. Every section in our online planning code has a link to interpretations that are actual, you know, codified, issued, formal interpretations. And then separate from that, The zoning administrator issues a series of bulletins and updates those over time that creates a single bulletin on a topic and provides all the interpretations relevant to that topic. So in this case, zoning administrator bulletin number four is the bulletin for neighborhood notification and provides all of these types of special circumstances and exemptions within that bulletin as well.

And those are all available online? Yes. Thank you. Sure.

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

Good evening again, commissioners. Kerry McElroy, DBI senior building inspector. The project before the board is a revision to permit 2025 0-4-2-8-4-5-3-7-5, with the scope of work as follows. Add walls and windows below a rear deck. Enclose area below deck and build a bedroom. And it referenced two previous permits, 2022-11-30-73-70, and the original permit to rebuild a home of 20-14-03-21-14-26. The permit application and plans, I reviewed them. The approved set that was approved over the counter by DBI, building inspector and a structural engineer, and all other required agencies. And the permit was issued on 2-16-26. So just for context, the 2025 permit that was referenced above in the project description was issued to recommence the 2014 permit and the 2022 revision permit because they had expired. The 2014 permit project description was to rebuild a home destroyed by fire on the remaining foundation with a vertical extension, add one bedroom, one bath, home to have four bedrooms, three baths. In the scope of the 2022 permit, it was a revision. was to revise the floor layout, update the interior layout with no changes to the exterior. The permit description of this 2026 permit, when you read it, it says enclosed area below the deck. As Corey mentioned, it's actually not below a deck. It's below the dining room cantilever. That's cantilevering beyond the ground floor. And there's a deck that kind of surrounds that dining room. So the description is not great, but the plans clearly show it's underneath the dining room extension. So after I've reviewed the permits that were issued, I believe that the plans complied with all the applicable building codes at the time of the issuance. And it's my recommendation that the appeal be denied as the scope of work under the permit in question doesn't appear to be related to the issues that are being raised by the appellant. They're more of a kind of a field inspection issue or a code enforcement issue. And there have been a lot of complaints filed against this property. I have reviewed all the complaints, and I went through them today, yesterday and today, with Kevin Birmingham. And he looked through them, read through them all. Two of them have gone to a director's hearing and have been abated. All of them have been abated except for one that Kevin said that they're kind of leaving open just so they have some enforcement action if they need it. on the property. But he said other than that, all of the other cases have been closed.

OK. Thank you. Any questions? I don't see any questions. You can be seated. So we will now move on to public comment. Is there anyone here who wants to provide public comment on this matter? I don't see anyone on Zoom. So we will move to rebuttal. So you have three minutes, Ms. Hinkle.

The fact is that the retaining wall was removed, and it was done by someone who's not even an engineer. And the DBI was not unable to step in. Michael Chan, who was a DBI inspector, who knew about the case. When I later found out in May 2025 that they had started getting permitting and allowing them to do more work, he had did a notice of violation because of the obvious damage that they did to my property. And they were in a notice of violation. Another DBI inspector stepped in. He always refused to talk to me. They never listened to me or would talk to me. They would be out of office. It's crazy. They have a wall there that's built according to an engineer. He's not an engineer. Henry Young, I can only find a security guard license from him. I can only find with the California Board of Architecture that he faked being an architect before and was fined for it. He's not an engineer. And I will be happy for them to decide who can do the work and just let them pay for it. And they can choose the contractor. They can choose the engineer. I just want the work done right. That's all. When I put in requests and filed the complaints with DBIs, I told them I had photos. You can't submit photos at that time showing that they didn't have sighting, that they had the things that were going on. They never talked to me. And then suddenly, on December 30th, the contractor put something to disguise the fact that they don't have sighting. And January 2nd, magically, the case is closed. And they couldn't find anything. I am sorry. But I have seen the way America is going, where it's to the people who's wealthy. This is not just, I don't know why the DBA wouldn't talk to me or help. I don't know why they put the onus on me. It's turned out that I have, I need brain surgery. I found out that I was actually epileptic. I was born with a condition that stress triggers it more. It was why I was strange when I was first diagnosed with PTSD a long time ago. It's why I'm strange now. I am on medication. That makes it hard to think. I lost my job. I've been a financial advisor. I'm someone who paid for my own college. I'm someone who worked my way up, and I lost my job, and I'm going to lose all my licenses. I already lost my certified financial planning. I'm losing everything, and I'm just asking for justice. I'm just asking, you can just change it or they have to fix my property. I don't care who does it.

Just take a pause. Thank you so much. You can be seated now. Thank you.

Thank you.

Thank you.

Thank you. OK, we will hear from the permanent holder. You have three minutes. Thank you.

Thank you. I do mention that you don't have to notify your neighbors for many different projects. Like the ZA just mentioned a second ago, you don't have to tell someone for an infill beneath and an overhang on a property. It's not required. A lot of things, when you do changes inside the house, they're not required to notify the neighbors. If you change out the windows, you don't have to talk to the neighbors. None of this stuff does. You do an expansion beyond the envelope. Ah, now you're going to 311. Yes. But this you don't. I constantly hear the same story that you're hearing right now from neighbors that just don't stop complaining. Non-stop. Keep going and going and going. And you say, look, we're fixing it. There is no damage. There's no evidence of any damage to this property. It is tightly within its subject parcel and does not encroach on the neighbouring property. All construction has been performed in compliance with applicable codes and has passed required inspections. The work's stoppage and delays have been resulted from the neighbour's refusal to grant access or consent despite repeated good faith efforts by the owner. And the remaining work is minimal and can be completed promptly. According to the owner request that the board grant relief from the notice of violation and allow the project to proceed to completion without further delay and deny this appeal.

Thank you. No questions. You can be seated. Thank you. Anything further from planning? How about DBI? Nothing further? Commissioners, this matter is submitted.

Thank you, Ms. Engel. Thank you, Mr. Cronowitz and your colleagues, and thank you for the department representatives. I've done a lot of asking of questions, and I want to defer for a moment to my colleagues for their thoughts on this matter and an appropriate disposition. Before I turn it over to them, though, I think this clearly very well may be that we are the wrong place for this dispute and this longstanding dispute. But we're here because the inability to either to respond as Ms. Hinkle has stated in writing and here tonight, inability of the various departments to respond to her. We have, clearly there is a problem out there, but it's not necessarily the Board of Appeals matter before us, and we decide matters before us. So I was asking about what has occurred in 2026, what has occurred on this permit as opposed to in the past. But that doesn't mean there's not a problem. And fortunately, Ms. Hinkle is here with a colleague who's very supportive of her. I'm sure it's stressful coming up just to the city hall, let alone into a hearing. I'm sure it's stressful for many people to come before us. People need help. And I see in the department's brief, it says that there are other issues in other parts of the department. I'm glad that... I'm glad Mr. McElroy talked about how each one of the previous complaints has been resolved. But right now, you have a San Franciscan resident who is not getting what she needs from all of us in this building, which is answers to her questions. So it may not be for us, but certainly for others in City Hall to be able to help her and help her colleague help her understand what is happening. And maybe it's more people at DBI need to walk through and resolve the unaddressed matters that have been addressed in this case that are not before us but are still alive and present. Obviously, they are present. Perhaps it's Supervisor Chen, a very good supervisor with a good staff at District 11 who help out people. One of the roles of the supervisors is to help people with problems with city agencies and getting responses maybe it's a group like like open door legal started started by young lawyers to help people with civil problems but clearly there is a need for better understanding of what goes on in zoning administrator interpretations and and and in other matters but for for our jurisdiction so i would encourage the departments who are here and anyone who listens to GovTV, watches GovDT, who may have jurisdiction or may have the ability to help, to help in this kind of situation. Because this is not a matter necessarily that needs to come before the Board of Appeals, but we have it. So I want to turn this over to my colleagues for their thoughts on what is before us, which is the permit for 2026. Commissioner Wong?

I tend to agree with you. I think if I was just to go by what's on the appeal, I don't think that that would be satisfactory for most folks. I think that there's a lot of other issues at play and that especially Ms. Hinkle, I understand the stress of having to do this and I think that This process up until like the whole process even now is not built for somebody who needs additional support. And for that I'm sorry. I don't know if this city or I wish the city could do better. But yeah like I do think that what's before us today and what we can decide on I feel like it's not going to be satisfactory.

Commissioner Lopez.

Thank you. Mr. McElroy, do you mind coming to the podium? Thank you. Yeah, I'm just wondering if your records, the records that you've been able to review, I know that you're not the inspector who's showing up to the subject property, but do your records indicate communication with the appellant or perhaps any just exchange or communications with the appellant that may have been related to some of these complaints that were addressed before with the, you mentioned some of them had been abated. And I'm just curious if anything in the, in your records show that, that that's related to anything that may have originated with the appellant.

Yeah. I don't know if there's, you know, these records of the complaints in the history, right. It's a very brief statement. You know, The first one was, obviously, it was the fire damage. We always issue an NOV complaint. That's just to get them moving on the process of securing the property and whatnot. The second one had to do with overgrowing vegetation on the site after the building had been demoed. That case was closed. The next one had to do with the retaining wall. And that's one. There's 43 entries. Went to the director's hearing twice, I think. Yeah, went to two director's hearings. And then it was abated. The next one was a complaint about workers coming on the other property. It said the inspectors observed apparent violations of the San Francisco Housing Code. And again, that was a housing inspector that went out that time. The third one was a housing inspector one again. Work in progress. The case was closed.

That's helpful. Thank you. I think my takeaway is that whether or not the complaints have originated with the appellant, the records do show that the department is being responsive to these complaints. And in some instances, that's resulted in abatements.

Yes, and the final two complaints were closed in January of this year, January 26.

And I guess speaking more broadly to whether it's the appellant or anyone else following the proceedings that may have remaining issues, clearly the appellant has a lot of issues that have been flagged this evening, for example. What is the advice to anybody who has further complaints that are outside of the four corners of this permit? How can they go about having DBI look into those matters?

File a complaint with code enforcement and if they don't get a response, move it up the chain. Try to ask for a supervisor or hire up the chain to find out why the complaint's not being addressed. But it appears that somebody has gone out and looked at all of the complaints that are on record.

OK. Thank you. That was the extent of my questions. Yeah, so I think.

Sorry, were you done with him? Yes. OK, I just wanted to let him know he could sit down. Thank you. Thank you.

Thank you. Yeah, so that's what I would say. I echo. I echo.

I have cognition problems. I'm sorry.

So we're in deliberations?

Yeah, I'm sorry. This is just the time for us to deliberate what I was going to say.

They're not telling the truth. I filed those complaints. And I have emails. I don't know if it's in that presentation. I have emails in which the DBI inspector who has previously handled the case told him, stop all work. You're not supposed to do any work until this is resolved.

And then I think you're getting beyond the substance of the permit. But we want to see a way in which you can get all your issues addressed.

They have to fix my home because they keep giving them time to cover up the damage and not looking at it from my property. They're not addressing it. If you look at the permit complaints, They're not coming and visiting the property in a timely manner. They're giving them opportunities to cover up more and more damage. I urge anyone, if you...

Okay, I'm so sorry, but this is not fair to the process. You need to sit down.

Yeah.

Because you're taking up a lot of time, and the other side did not get the time. What's before the board is the validity of the permit. Sounds like you have some enforcement issues, and you have to deal with DBI on that. I called Dave.

okay so please we're in deliberation so the commissioners are speaking on that so ms hinkle does have some very ms hinkle he has a very serious concerns and complaints you should be heard you've been heard tonight you should continue to be heard by people within city hall the agencies that deal with building inspection And I know this is difficult. I can't appreciate how difficult it is for you to live there and in the circumstances that you describe. But we have this matter to deal with tonight, and we will complete it. But that doesn't mean that your concerns shouldn't be heard and aren't heard. And I want to see what can be done by DBI and others to hear you and follow up on the matters in a very logical and orderly way, which you describe which issue one, issue two, issue three. It will not happen tonight, but we want to work with you and your colleague tonight to be able to make that process go forward.

I would add, echoing what President Trasvina spoke about earlier, you mentioned the mayor. President Trasvina mentioned your supervisor. There are also open legal and other legal providers who may be able to assist. The questions or the issues that you've raised um from what i can see kind of exists outside of the four corners of the permit and our jurisdiction and and powers are are very limited and they they're limited to what's before us in the present permit and uh as far as we as far as i can see um of these issues that you're raising, whether they need to be directed to DBI, to other parts of the city, to external legal providers who may be able to assist, I think all those things are still very much available to you. But with the question that we have this evening, I just don't see a path forward to give you the recovery that you're seeking. And so with that, I'll move to deny the appeal on the basis that the permit was properly issued.

Okay. On that motion, President Trischina?

Aye.

Commissioner Wong? Aye. That motion carries 3-0 and the appeal is denied. Thank you. We are now moving on to items 7A and 7B. These are appeal numbers 26-011 and 26-013. It's Bud Ryerson versus the zoning administrator and Ross Inden versus the zoning administrator. Subject property 170, Bocana Street. Appealing the issuance on February 25, 2026 to star family revocable trust of a variance decision. The proposal is to construct a vertical addition, replace the rear stair structure, and remodel the interior of a single family home. The replacement stairs and firewall will be located within the required rear yard, and therefore a rear yard variance is required. Planning code section 242E3 requires a total mass reduction of 650 square feet from the total permitted building area. The project proposes a mass reduction of approximately 288 square feet. Therefore, a mass reduction variance is required. The zoning administrator granted the rear yard and mass reduction variances. This is case number 2024-009969, and we will hear from Mr. Ryerson first. Mr. Ryerson, you have seven minutes. Thank you for your patience.

Sorry. Mask versus hearing aid problem?

If you could speak into the microphone, please.

Oh, yeah. I was saying it was a mask versus hearing aid problem I was having.

Overhead, please. Overhead. Thank you.

Mr. President, members of the board, hello. My name is Bud Ryerson. I live across the street from this project. I also represent my wife and a community of concerned neighbors. The standard for evaluation of a property is whether extraordinary or exceptional circumstances exist such that a minimally necessary variance from the code is required to overcome a practical difficulty or unnecessary hardship that denies the enjoyment of a substantial right possessed by similar properties in the area. We believe that the law requires that findings for variance must be explicit, factual, and evidence-based. There must be evidence. The law requires the administrator to articulate and support the factors on which his decision is based. Here, under the projector. are three nearly identical contemporaneous homes on identical lots. All enjoy a reasonable residential use of their property. Two of them are recently remodeled. None require a variance. There is nothing unusual about the sponsor's property. All the lots on their side of the block are the same depth and all have a slope to the west. There is no evidence of any unique physical condition of the sponsor's land that might deprive them of a normal property right enjoyed by others. In their response to our briefs, the sponsor said they need a variance only to, quote, achieve a reasonable residential use of the property, unquote. They did not claim hardship or difficulty or the loss of any property right. And they said in an email that they were asking for only, quote, a very small amount of additional footage. We are confident that code-compliant designs for this property do exist. An alternative design might be smaller or less attractive to the sponsor, but it would still be feasible. The sponsor absolutely can achieve a reasonable residential use of their property without a variance, and therefore, no hardship exists. We also assert that granting this variance may be injurious to other properties, and there is no evidence that the zoning administrator or anyone else ever seriously considered the potential impact of this project on all nearby properties. We strongly believe that the granting of this variance will not be in harmony with the general purpose and intent of the code. And we believe that upholding the variance will undermine public respect for the general plan, the Bernal Special Use District, and the rule of law itself. We believe that a zoning administrator is hired by the people of San Francisco to represent all the people. We believe that their role is to apply the law uniformly and without favor. We understand that they have enormous discretion, but in this matter, we believe that this administrator may have exceeded that discretion. The administrator insists that the sponsor's claims are irrelevant to his decision. In his response to our briefs, he says that he has, quote, no obligation to agree with or use any proposed findings submitted by an applicant, unquote. The administrator also claims that, quote, there was no attempt to exclude the neighbors from the process. But please understand, there was never any attempt to include them either. To the best of my knowledge, this administrator did not ever call or meet with anyone other than the project sponsor prior to issuing his decision. The administrator also says that his use of minimizing terms in the VDL, like reasonable and modest, are not examples of bias. They're simply his way of describing how he sees things. But having a fixed viewpoint or a settled view of things is a precise definition of bias. While there is no evidence of hardship or difficulty to justify these variances, there is, however, some evidence that the sponsor designed their project in reliance upon assurances of approval from the administrator. Two months after the variance hearing, the planning department sent us an email telling us that the sponsor had refused to make any more changes. But four months later, we learned that they did. We've requested records, but so far we do not know when or for what considerations the sponsor changed their mind. The administrator says that he has discretion to negotiate with the sponsor. He claims that it's totally normal to confer and meet exclusively with a sponsor for a half a year after the hearing is concluded. He says, quote, this case was no different. Well, that may be true, but that doesn't make it right. We believe that the administrator's dealings with a project sponsor must be a matter of public record and should not be concealed or withheld. The administrator seems to feel that the Bernal SUD is unfair because it requires the same amount of mass reduction for every lot, regardless of size. He believes, apparently, that mass reduction should somehow vary according to lot size, and that his powers allow him to ignore or rewrite the law to suit that viewpoint. We believe that it is the administrator's arbitrary and unequal treatment of all parties under the law that is the real unfairness at issue here. Mr. President and members of the board, Bernal Heights is an island. Most people in San Francisco don't even know we're here. Some streets still aren't paved. But we like our little neighborhood, and we're trying really, really hard just to save some part of it. In the past, our community worked to get some kind of restraint written into the planning code, and they did. It's called the Bernal SUD. Today, we're just hoping to stop folks from punching holes in it. The administrator cites a long and practically unbroken list of variance approvals, case after case, year after year. We think that that is a sad commentary. If the planning process were truly fair and equitable, certainly more than one application in the last 10 years would have failed. If virtually every variance is going to be approved, then what's the point of an SUD? Where are the teeth in it? What we are witnessing is our Bernal SUD getting nibbled to death right in front of us.

I'm 30 seconds.

Well, Mr. President and members of the board, today is your day, and this is your chance to help us turn this sad statistic around. We think you'll agree that we have the facts on our side, we have the law, and we hope that you will join us and help support and defend our Bernal SUD. We respectfully request that you grant our appeal, overturn this VDL, and deny these two variances. Thank you very much for your time. We are truly grateful for the opportunity to be heard here today.

Thank you. We have a question from President Trasvinian. OK, no questions. You can be seated. Thank you. We'll now hear from the appellant for appeal number 23-013. Mr. Inden, welcome. You have seven minutes.

Thank you very much.

Overhead.

They're not all going to fit on there, so I'll just submit them to you. Never mind. Good afternoon, commissioners. My name is Ross Enden, and I'm the owner of 164 Bocana Street. a small 1906 earthquake shack directly adjacent to the proposed project. I'm here today to ask you to grant this appeal because the approval of this variance raises a fundamental question. Whose property rights are being protected and whose are being overlooked? A variance exists to ensure that a property owner is not deprived of a substantial property right due to the unique constraints of their lot. In this case, the zoning administrator has determined that the project sponsor meets that standard. But a variance is not supposed to operate in isolation. It cannot restore one property owner's rights by diminishing those of another, and that's what's happening here. My home is a small 1906 earthquake shack identified by the planning department as part of San Francisco's earthquake shack historical context. It is extremely compact. and constrained on all sides, heavily dependent on skylights, I have six of them, and open sky exposure for light and livability. This is not a typical house where impacts are absorbed gradually. Because of its size and configuration, even modest changes next door have outsized effects on my living conditions. The proposed project introduces additional height and mass within a few feet of my property line, which will reduce natural light, air flow, alter airflow and thermal conditions and fundamentally change the livability of a very small structure. I was able to obtain the notice of special restrictions recorded against my property in 1991 tied to a rear yard variance. This document shows something very important. At that time, the city allowed non-complying conditions in the rear yard, but only under strict terms. The property owner was required to accept permanent limitations, including maintaining a low-scale, one-story form at the front, removing or restricting other structures, and subjecting any future changes to additional review. In other words, the City allowed flexibility in one dimension, but only because it locked the property into a permanently constrained condition overall. That was the balance. This project disrupts that balance. If my property was allowed reduced rear yard only because it would remain small, limited, and sensitive, then introducing new height and mass immediately adjacent to it undermines the very conditions under which that variance was granted. The City allowed flexibility on my property because it would remain limited. This project takes advantage of that limitation. Now we come back to the core issue. Project Sponsor has been granted a variance so that they are not deprived of a substantial property right. But in doing so, my own rights to light, to livability, to reasonable use of my property are being significantly impacted. And I have not seen any evidence that this impact has been meaningfully weighed. So I ask, has the City simply shifted the burden from one property to another because that is not the intent of the variance process? My property is listed by the Planning Department as a 1906-1907 earthquake shack, identified within the earthquake shack historic context statement, and classified as be unknown age eligible. Under the California Environmental Quality Act, that is enough to require consideration. Property does not need to be formally designated. It is sufficient that it has been identified as potentially significant. In this case, the city has already made that identification, but there has been no formal evaluation of how this project affects that resource. That creates a gap in the analysis. And under CEQA, if there's a fair argument of impact, further review is required. Taken together, my property is small, constrained, and historically identified. It already carries recorded legal limitations, and it is highly sensitive to changes in light and proximity. The proposed project introduces additional bulk and height that directly affect those conditions. And importantly, my ability to adapt or expand my property in the future is already limited by these recorded restrictions and would require additional discretionary approvals. That means I do not have simple or guaranteed options to mitigate these impacts later. So, preserving the current livability of my property is especially critical. I'm not asking to prevent development. I'm asking a fair and balanced consideration of impacts, recognition of the existing constraints on my property, and a process that does not restore one property right by undermining another. I specifically ask that you grant the appeal or, at minimum, require further analysis, including under CEQA. This case is about fairness. A variance should not solve one problem by creating another. Right now, the approval protects one property owner's development rights while placing a disproportionate burden on a neighboring property that is already constrained, limited, and historically identified. I respectfully ask that you take that into account and grant the appeal. I don't know if it would be helpful, I can read the four findings of this notice of special restrictions I have here.

You can use the time as you wish. You have another minute and a half.

Okay. So the findings were... There are four of them. Restrictions and conditions of which this notice is hereby given are that no further horizontal or vertical additions, including additions within otherwise buildable area of the lot, shall be permitted unless granted pursuant to a public hearing on a variance application. Number two, that the design and physical appearance of the front portion of the subject building shall be maintained to preserve the earthquake shack's historical status. that the storage shed shall be removed and replaced by landscaping. And number four, that the addition shall be legalized through the filing of building permit application for all construction to the rear of the earthquake shack without a building permit, including construction of retaining wall and rear fence, blah, blah, blah. It's not really related to this, but that's that. Okay, thank you. Arrest.

Mr. Norton, I do have a couple questions for you. Sure, sure. First is the variance holder writes in the materials that we have received that your objections are based on earlier drawings and plans, not subsequent ones. What's your response to that?

My response to that is that that's just an opinion that I disagree with. There are still impacts. The property is still being raised. The height of the roof is being raised. There's going to be a flat roof that comes within a meter of my property or three feet of my property. This property is directly to the south of me. So all my light potentially could be impacted.

Let me explore that point with you. I don't want to interrupt you, though. Not a problem. The height of the roof, the variance holder says, and I believe the zoning administrator also says that it is a height that would not affect your sunlight because it's lower.

I would love to see where they came. I asked for a shadow study. I came to the original hearing, the planning hearing in October, beginning of October, and I asked specifically for that. Just show me how it's not going to affect my property. an unreasonable person. I asked for that and they chose not to offer that.

Well, you're the appellant. What is your basis for saying that it does?

My basis for saying that it does is because the roof is going to be raised. I don't know how it's going to impact me. I'm not an architect. I don't have any qualifications to determine the angle of the sun, times of year, how it's going to affect me. Is that my responsibility to determine definitively that the proposed project next door is going Is it my responsibility to do that?

Is it your judgment that your roof is higher or lower?

Oh, my roof is considerably lower. Yeah, it's a single story. I didn't bring any photos with me, but I did submit some photos in my brief.

Well, you acknowledge there have been changes in the plans. I acknowledge there have been changes.

That's actually not true. What I acknowledged was that I came to the hearing and I saw the plans that were... that had been revised. I don't know if they've been revised further or if any other revisions have happened. My next door neighbor, Mr. Ubel, claimed that I agreed that the that I acknowledged something, he emailed me and asked me literally like a day or two after the appeals hearing, had I seen the revised plans. Well, the revised plans that he's speaking of were shown at the appeals hearing, which I spoke at. And so he knew very well that I had seen them. So it was just kind of a getcha question. It got me.

Well, I'm certainly not trying to ask you a getcha question myself. But my question is whether To the extent there were any changes, do you feel those changes were in response to your concerns?

No, they weren't. I seriously doubt that because I hadn't voiced any concerns. I signed a petition with a bunch of other neighbors and then I showed up to the hearing And I spoke at the hearing. And then I met Mr. Ubel and his architect. And they expressed interest in working with me to see if we could come to some sort of terms. I got a couple of half-hearted, I got basically an email He sent me basically, all he sent me was a link to a free website where you can do a shadow study and said that the city doesn't require him to do it, so he's not going to do it. So that's it.

So the message we should be getting is that any changes aren't to address the... No, it has nothing to do with any...

If there have been revisions since the planning hearing, they may have addressed my concerns because my concerns were known at that point. Prior to that... The revised plans that he speaks of when he says, I acknowledge seeing the revised plans, those plans were demonstrated at the planning hearing which I was at and I spoke at.

So they had nothing to do with me. And you've never heard from them saying, but neighbor, we took care of it. No. Great. Thank you. Yeah.

Okay. Thank you. You can be seated. Okay. We will now hear from the planning department. I'm sorry, Mr. We'll hear from the determination holder first. Welcome. You have 14 minutes since you're responding to two appeals.

I'm going to connect my USB. Good evening, Commissioner. My name is Arun Ubale, the property owner at 170 Bokana Street. The project has gone through a thorough and iterative planning process, including multiple rounds of revisions, direct engagement with neighbors, and the direction from planning staff and the zoning administrator. The final approved project reflects substantial reduction and introduces no new impacts to surrounding properties. Today I will walk through the project evolution, the physical site condition, and responses to both appeals. The project was not pushed forward. It was refined over time. We held a neighborhood meeting early in the process and incorporated planning feedback. When adjacent neighbors Ryan and Michelle raised concerns, we voluntarily postponed the hearing, met with them directly, and made meaningful reductions. These included reducing upper floor massing, lowering height by approximately 3 feet, reducing side extensions, minimizing overall bulk. They later confirm they definitely appreciate our efforts to revise the plan in response to their concerns, and they will not oppose the revised project. Here is the exhibit I, the email from Ryan and Michelle. I think it's too, cannot see it.

Yeah, if you could make it a little bigger, perfect. Thank you.

You can see the comments at the bottom. I have made it bold. they have provided this email and confirmed their support for the revised project. After we confirmed the final plan with planning department, the zoning administrator requested additional reduction and we further reduced the rare mass on the ground floor and brought the project closer to setback compliance. This demonstrates that the final project reflects the minimum necessary variance. Regarding appellant Ross, he first raised concerns at variance sharing, primarily related to skylight and rare massing. During the hearing, we requested additional time from zoning administrator to work with appellant Ross to understand and address his concern. After the hearing, we followed up with him directly to make sure he was reviewing the correct revised plans. He acknowledged by email that he saw the plans presented at the hearing, including the reduced height and setbacks. Those plans already reflected reductions in overall height and reduction in massing along the side and rear. After that, we confirm with zoning administrator that those revised plans will serve as our final plan subject to any additional planning direction. The project was then further refined through planning review, including the removal of lower-level rare extension and bringing it into setback compliance. So the final approved project reflects neighbor input, including Mr. Ross's concern, and additional independent reductions requested by planning. The approved project is materially different from earlier version. Key reductions include removal of approximately 15 feet of front extension, elimination of front vertical addition, reduced upper floor footprint, lower overall building height, reduced side and rear massing. I will now walk through the key exhibit demonstrating that the approved project introduces no new impacts. Turning to exhibit C.

There's a microphone right there, too, right here, next to the computer.

Above the laptop, if you want to speak and manage the, yeah.

Thank you. I paused the time, too, so.

So you can see here, this is the neighboring skylight in the front. The approved plan does not have any vertical addition and the existing front building here, you can see this is my property here. So there is no vertical addition, there is no horizontal addition at the front. The approved project maintains the existing front building plane and height. As a result, no new structure is introduced that could obstruct or alter light to the neighboring skylight. Turning it to Exhibit D, where are skylights south facing? You can see here this is where the south facing skylight in the back. You can see this is an existing blind wall. This is the top of the existing blind wall. There is no obstruction to light path here. Open sky to exposure to sunlight. We are doing our sloping firewall and stairs below this firewall. There is no new upper level expansion, there is no new mass introduced near the skylight. The neighboring skylight receives light from open sky above the existing blind wall. The approved project includes no new upper-level mass at the rear, reflects reductions from the earlier design, and sloping firewall remains below the height of the blind wall. As a result, the project does not introduce any obstruction and cannot reduce light to the skylight. Now I will show you exhibit E and F, which addresses the rear yard visibility and conditions. Turning to exhibit E, This is the existing neighboring fence and this is the existing blind wall again. You can see from here. Existing fence and blind wall prevent the direct line of sight between properties. The approved project does not extend above these existing elements and does not introduce any new visibility. Turning to exhibit F. Here again, this is the neighboring fence, this is the blind wall, and this is where the south-facing skylight. The subject property sits at the lower elevation and existing wall already defines the visual and spatial boundary between properties. Proposed sloping firewall and steps remain below the height of the existing blind wall and fence. The project does not extend into open sky plain above the neighboring property. Most importantly, the approved project does not introduce any new condition that did not already exist. So these exhibits show an existing blind wall, elevation difference, and the fence already limiting the visibility. The approved project remains below this existing feature, does not extend into the line of sight, does not enclose space. There is no change to light, air, or openness. Again, the approved project does not introduce any new condition that did not already exist. Now I will show you exhibit G and H streetscape looking down and looking up the Bocana Street. Here is exhibit G looking down Bokana Street. Here you can see this is where my property here is. This is the mature tree line and this is the line of sight going down. The site's downward slope and existing tree canopy limit visibility of rare structures from the public right of way. The approved rare condition is not visible from the street and does not alter streetscape of our neighborhood characters. Here is the exhibit H looking up the Bokana Street. Again, this is the property. This is my property. Again, this is a matured tree line looking up. Even when viewed from uphill along Bokana Street, The rear portion of the property remains screened by existing trees and site conditions. Only the front facade is visible from the public right of way and the upper rear addition is not visible from any street vantage point. From these exhibits, you can see due to slope and trees, the rear addition is not visible. The front facade remains unchanged and no impact to neighborhood character. Appellant bird concerns relate to interior use and ownership. These do not relate to building envelope, height, or massing. These concerns were previously raised and considered during the variance process. Appellant Ross concerns relate to skylights, light and air enclosure, but the exhibits show no horizontal or vertical addition near the front and rear south facing skylight, no mass above the blind wall, no extension into open sky. These concerns are not supported by approved plans as shown in exhibits. The record clearly demonstrates a collaborative process, substantial reductions, and final design with no new impacts. The appeals rely on earlier versions of the project and condition not reflected in the approved plans. I respectfully request that the Board deny the appeals and uphold the approval. Thank you.

Okay, thank you. I do not see any questions at this time. You can be seated. We will now hear from the Planning Department. And you have 14 minutes, Mr. Teague.

OK, thank you. Good evening again, President Trasvinia, commissioners, Cory Teague, zoning administrator. As you know, this is an appeal of a variance decision that was granted with the property at 170 Bocana Street. The variance decision letter is included in your packet, and it has the specific findings that were adopted to justify the granting of the variance. So I trust that you have read those and have those as reference. Additionally, I'm not going to go over every issue that was addressed in the brief. The brief I submitted attempted to provide an adequate response overall and also directly address some of the issues raised by the appellants. For the purposes of time, I'm not going to go through the letter and the brief in detail. Of course, I'm available to discuss or answer any questions about anything specific in either one of those. I think it would be helpful just to address some of the overarching issues that have been raised this evening. One, I think it's helpful to understand just the context that this variance was granted within. As you know, the city has, we technically have, I think, slightly more than 100 zoning districts that cover the city. But we also have special use districts we kind of overlay on top of those zoning districts. And we have many different unique types of special use districts. And Bernal Heights is one of them. It was adopted in 1991. And as the appellants mentioned, it's primarily because Bernal Heights has a unique feel to it. It's obviously a very, it has a lot of slope and narrow streets. generally small lots. And so that, again, that SUD has been there since 1991, and it includes a control that is unique to that SUD. We don't have it anywhere else in the city, and that's called mass reduction. And what it essentially says is you take a lot and you look at what the underlying controls would allow to be built there. Let's say that would be a three-story, 3,000 square foot building. And you have to then reduce 650 square feet out of that somewhere. They provide a few rules about where that area can come from. But generally, it's agnostic about where that area is going to come from. It can come off the top, off the front, off the back, off the sides. But generally, you have to reduce 650 square feet. And... So that's been around since the SUD was first adopted. And then because there's such a tight context here, there are also sub areas within Bernal Heights that have their own design review boards. Now, this is not one of the areas that has its own design review board. But for example, there's the Northwest Slope Design Review Board. And in the areas where we have those before any permit or variance Any permit subject to neighborhood notification or any variances decided were required to get input from that design review board. I bring that up to tie into the fact that I think the appellant's implication in their briefs were kind of that This decision and this project was unique, and I would argue the opposite, which is that mass reduction is a unique control. It does also present some very specific challenges to certain situations in the SUD, and there is a long history of mass reduction variances being granted, many of which have gotten recommendations of support from those design review boards when they felt the design was appropriate. And again, that list was not comprehensive. There are some projects that may have applied or maybe didn't even apply because they felt like they didn't have a good chance of getting where it was. Many of those projects, I am sure, were revised through the process to be somewhat smaller. But nonetheless, I think it's helpful to show that the lens through which this proposal was analyzed and the outcome is not an inconsistent situation and certainly not an abuse of discretion. I understand the neighbors have a difference of opinion on the findings, but I don't believe it was an abuse of discretion. I think that's just important to lay out there. It's also important to understand just kind of the variance process. The neighbors have concerns about basically the process after the hearing happened. So as you know, for a variance, you have to have a public hearing. And so notice is provided. And members of the public are able and encouraged to provide written information. feedback about a project. They're also able to give public testimony at the public hearing for the variants. Both of the appellants did both of those things, provided written comments and provided testimony at the variants. They also provided the petition with other names, but I don't believe anyone else from the petition spoke at the hearing. And at the hearing, you know, I was very upfront about how this was a little bit of a challenging case, because mass reduction cases typically are challenging. And we can get into the reasons for that to the extent we need to. The applicants at that hearing, again, they had already revised the project down to where it was for the hearing. They heard the feedback from the neighbors at the hearing and expressed that they were willing to at least have some additional conversations with the neighbors to see if it's possible. I acknowledged at the hearing that even if that engagement happened, there may not be any movement, right? The property owner may determine that they just couldn't go any further to meet the concerns of the neighbors, but they might, and that was going to happen. And then just on my end, as the discretionary decision maker on this issue, I still needed to complete my analysis and my review of it relative to all the information that had been submitted So at that point, the neighbors and interested members of the public had had their ability and had used that ability to submit their concerns and provide those concerns. At the hearing, I felt very aware and clear in my understanding of what their concerns were. If I had any additional questions from them, I could reach out if needed. Because the process after I take a variance under advisement is essentially deciding, am I going to grant it or not? Or am I going to grant it with some revisions? It is common that there will be additional coordination between the zoning administrator and the project applicant because there needs to be some back and forth about what other revisions may be possible. What are the things that could happen Have you considered this have you considered that? Sometimes not all of those issues are addressed at the hearing and after the hearing is when that is done So I just I wanted to walk through that because I want to be very clear There's definitely no intent to ever exclude the neighbors the neighbors have the opportunity to provide their concerns, which they did The decision was made, you know fully aware of that and It's often that a decision on a variance is going to be made knowing that it's not exactly what may be concerns neighbors want and it's maybe not exactly what the project applicant wanted as well. But at the end of the day, the final decision is the zoning administrators to determine if the version of the project being approved is consistent with the five findings. In this case, just to be clear, The variance decision was issued with a condition. One of the conditions was that the rear, the firewall for the rear stair be reduced to the minimum required under the building code, so it was no larger than it needed to be. And then the revisions that were made after the hearing were a reduction to the proposed extension in the rear, because this was a mass reduction and also a minor rear yard variance. And that revision was not something that was volunteered by the project sponsor. That was something that was communicated that that revision needs to be made in order for me to be comfortable to grant. So it wasn't a situation where they volunteered that up. That was part of this coordination and collaboration once the variants had been taken under advisement. So those were the changes that were made. Ultimately, what you have resulting is about a 516 square foot third story being added. And again, I use the terms modest and reasonable, again, as a descriptor of the outcome and the result. I referenced this in the brief. There's no bias there. That is my opinion through the discretion of how I would describe that in the outcome. There was absolutely no, that wasn't a fixed determination at the beginning of the process. That was the result of the process. So there's definitely no bias there. That decision was reached after the full review process, the hearing process, and the additional coordination after the hearing. On the issue of potential impacts to the neighbors, of course, any vertical and most horizontal additions have the potential to have some impact on your neighbors. Vertical additions are always, by definition, going to create more shadow somewhere. The question is, are those impacts going to be substantial to the point that they're determined not to be consistent with the residential design guidelines or any other applicable design guidelines, or they are going to be determined to be materially injurious to properties in the vicinity, which is the finding and the variance. In this case, again, even though the project is not fully meeting the mass reduction requirement, The actual vertical addition is still fairly modest in terms of vertical additions go in the city. And the level of impact for that type of addition, the project went through full design review within the department. Our design review folks felt the project was consistent with the residential design guidelines. And so that's where the determination came there that the project was not going to be materially injurious to the other properties in the vicinity. And then I think I'll probably leave it there for now, just for time's sake. I think that overall, again, the rationale is listed in the letter. I appreciate the neighbors' input. We always go through the whole process and make sure we make as an informed decision as possible. I understand if they disagree with the decision. It was not a decision. That was out of the ordinary or made with any level of bias. It was instead fairly consistent with the history of mass reduction cases in Bernal. So with that, I would recommend that the board deny the appeal and uphold the variance. But I'm, of course, available for any questions you may have.

Thank you. We have questions from President Trasvina, then Commissioner Lopez.

Thank you, Mr. Teague, and I appreciate your hard work. I don't suspect any bias whatsoever, except I suspect that while it is approaching 9 o'clock, it's probably usual for you to be working at 9 o'clock on all these matters, so I appreciate your hard work. I'm disappointed, though, in one of your points, which one of your last points about the vertical additions. And you say, well, the vertical additions are always going to have an impact on shadows next door, yet the variance holder says there are no new conditions and the roof is at the existing plane and height, can you help me shed light, I guess, on whether it's a new roof, higher, lower, or is it the same?

Honestly, I would have to defer to the applicant to explain their analysis on that. I'm not sure if it was referencing the fact that the skylights already get shaded by the existing building and the new addition is not really going to add to that. I'm not 100% sure, but that wasn't my analysis and that wasn't my determination in the variance that there would be no net new shadow.

And on the issue of, I guess, Mr. Inden in particular, but also Mr. Ryerson raised, the protection of historic buildings, such as an earthquake shack. As I read, I think it's your submission, that there is no... that the historic building review is if the building that's being redesigned is historic, and the fact that a neighboring building is historic is not relevant to the law. Is that a correct understanding of your draft? That's correct.

When we're looking at individual buildings as resources, and it's a little more nuanced than that, too, because you know, the neighbor's earthquake shack, it is absolutely an earthquake shack. So as a matter of policy, we want to preserve those as much as possible because they're obviously very limited. From a historic preservation perspective, it's technically not right now considered a historic resource right now. Like if you look on our property information map it's not listed as a category a historic resource because all earthquake shacks are kind of worth protecting for the historic nature of them but not all of them are deemed to be at a level of quality and preservation that that their historic resources but even if it was even if it was considered a category a resource if you're just looking at individual buildings again we're looking at the impacts of that those on those actual buildings themselves So again, if he was doing an addition to his building, we would obviously care about that. If your neighboring building is doing something, that's not going to necessarily have an impact on historic property. Where that's a little bit different is if you're in a historic district, because then you're looking at not only impacts to historic buildings, but to the entire district. But this is not located in a historic district, so you don't have that broader review when it comes to preservation.

Thank you. Commissioner Lopez. Yes.

Yes, thank you for your testimony. So you alluded to one change that you suggested to the variance holder. Was that informed by kind of your kind of fresh look at the facts of the situation and the relevant regulations and guidelines? Or did that originate with something that you learned from the appellant or other community inputs?

I mean, I think where that came from is probably not unique to this case. It happens, I think, in a lot of different cases, which is, when people often propose a variance there's like different types of variances sometimes you have variances where you know you have crazy small properties or really funky shapes and you like there's no choice but to do something that doesn't meet the code and then you have other ones that are less extreme than that and If you determine that there's kind of enough there to grant something, you want to make sure that what's being granted isn't really more than the kind of needed to end up with a reasonable project that's addressing the issues but not going really further than that. And so there's usually a process there to be like, are there places we can make revisions, even if they're not going to be substantial, whether it's, you know, Reducing a height by a foot or bringing something in by a couple feet You know are there places where you can make those? Those changes and that will work and that's the kind of process that that we went through we looked at that third floor Which again the end result it's not a very large Third floor addition to see if it was reasonable impossible to reduce that more the height of that third floor is basically I think right at 10 feet it's not like Typically, if we see things like this and they're proposed, someone's doing like a 12 or 13 foot high addition, we bring that down. That's more of a nice to have, not a need to have, especially in a variant scenario. That's the kind of process we went through. And that's where, in this case, there was a proposed kind of additional pop out in the rear that was kind of deemed not fully necessary. And then that was pulled back in.

And then can you just speak to whether if any other suggestions you made or that you considered kind of originated with any of the the issues raised either during a public comment or as you were kind of reviewing communications from whether it's the appellants or other folks in the neighborhood?

I don't think there's anything really different. I mean, my understanding from the neighbor's concern is that The third floor itself, just adding a third floor is a problem. And you get it much smaller, and there's not really much third floor to add, both just physically and also feasibility-wise. So I think that's really just what it was. How much can you reduce that third floor to be a reasonable third floor addition within the design context? and not go any further than you need, because the alternative, once you get to that point, is just like no third floor at all.

So if I'm hearing you correctly, these concerns were raised by neighbors. It's within the scope of what you would have reviewed anyway, because it's one of the bases for the variance request.

Yeah, correct. I would say that the concerns that were raised by the neighbors did fall into kind of the typical issues we're looking at for these types of variances, for sure. Obviously, when you have those concerns being raised by specific neighbors, you're going to maybe look at that a little bit more specifically to that unique context. But in general, that's still the typical type of issues we'd be looking at. Right. Thank you. Sure.

Okay. Thank you. No further questions. Would DBI like to weigh in on this case? No? Okay, thank you. We will move on to public comment. Is there anyone in the room who wants to provide public comment? Anybody on Zoom? I don't see anyone, so we'll move on to rebuttal. We'll hear from Mr. Ryerson first. And you have three minutes, Mr. Ryerson. Thank you.

I'll just let you off. Look at that again, the two homes that were remodeled without a variance.

If you could speak into the microphone, please. Thank you.

I'd just like for you to look at that again, at the two homes that were remodeled without a variance and then this home that thinks they need a variance. What we're asking for isn't drastic. The sponsor himself says that he's only looking at a small amount of square footage. We're not asking him to take down a fence or a shed or a retaining wall or do anything. It's just a drawing. And we're asking for a small amount of square footage less so that it complies with the Bernal SUD and does not require a variance. As far as the shading goes, the building will be a couple of feet taller than the existing building height. But it's not the height of the building that matters. It's the shape of the building. And they really didn't discuss that because it's going to be squared off. And a squared off building is going to cast more of a shadow than a sloped roof building. It seems pretty obvious. And when the sponsor showed a picture of a skylight, the sun was coming from the south or the west. The sun was coming from the west, and he didn't show a picture of the sun coming from the east or in wintertime when the sun is low on the horizon. Now, what the zoning administrator said about it It doesn't matter whether it's an historic resource. What would matter if it was an historic district? And it's just a shame that Bernal Heights is not an historic district. It's a fact that the sponsor did say they weren't going to make any changes after the variance hearing. And the zoning administrator said that he proposed a change to the sponsor, that the sponsor accepted. We still don't know why, how he came to that decision. suggestion, that compromise, why, and how he came to the amount that he did. It's less than what the Bernal SUD requires. And where did he come up with that number? We don't know. And again, it's just a drawing. We're just asking them to change the drawing.

OK. Are you done?

Yes, thank you. You have three minutes.

I just think it's notable that nobody seems to have responded to my assertion that I live in an unusual house that is unusually constrained, and that I don't know if the zoning administrator was aware of the NSR. I wasn't until actually yesterday, and I went down and found out about it and pulled that the paperwork, which I can give you guys on that. But I intuitively understood that I was living in an earthquake shack and that I might likely be constrained and not be able to mitigate any loss of light. As you can see from all the photos, I didn't show you a photo, but as you can see from all the photos, my house is diminutive compared, even though it's up the hill, it's still quite a bit lower. I do not currently receive any shading whatsoever from the roof of the existing house. One of the reasons why I like the place is because it's light and bright. And I have six skylights, as I said. And I'm not stating unequivocally that that the changes are going to impact my light, I don't know. I think they probably will. You have a flat roof that goes within three feet of your house. It's two feet higher and it's flat now. The project sponsor claims that Because there's no change to the front of the house, then there can't be any effect on my property at all. Well, the sun is in the south. It rises in the east and it sets in the west. It's always in the south. So in the winter, it's low. Low winter sun coming across this flat roof. And parts of the day, I don't know, probably maybe significant parts of the day, my house is going to feel cold. I'm going to have to spend more money to heat it. Maybe it's going to get moldy. I used to live in Boulder Creek. And I can tell you that sun is a premium that you pay for in a place like that, in the Santa Cruz Mountains. And I know what happens when you don't have enough sun on a property. I moved from Boulder Creek to San Francisco, back to San Francisco, because I didn't want to live in the shade anymore. And now I feel like, unfortunately for me, I bought a property that can't be easily changed. And I'm OK with that. I like the place. I just don't want someone else to come along and take it away from me. So that's how I feel.

Okay, thank you. We will now hear from Mr. Ubal. You have six minutes.

Thank you. I would like to briefly respond to a few points raised. At its core, This appeal is not about speculation or earlier versions of the project. It is about what physically exists in the approved plan. The approved plan as shown in exhibit establish few key facts. At the front, there is no horizontal or vertical expansion. There is no impact to the front skylight. At the rear, there is no upper level mass near the skylight and no structure extends above the existing blind wall. So there is no possible obstruction to light or air. In the rear yard, existing conditions already define the relationship between the properties and the project does not extend beyond those conditions. From the street, the rear addition is not visible and the front facade remains unchanged. These are physical conditions shown in the record, not interpretations. Most importantly, the approved project does not introduce any new condition that did not already exist. If nothing new is introduced, there can be no new impact. The project was reviewed through a thorough planning process. It was revised multiple times, reduced in response to neighbor input, and further reduced at the direction of zoning administrator. The final approval reflects those conditions. The record supports the zoning administrator's decision. I respectfully request that the board deny the appeal and uphold the approval. Thank you.

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

Yeah.

I heard your testimony the first time about no new conditions, existing plane in height, and then I heard the zoning administrator talk about what he was aware of, and Mr. Ryan Yerston and Mr. Inden have said that one says they're not really sure, but the other says that there are changes that affect air and light. How do I reconcile your testimony with theirs?

So if you see the vertical addition that we are doing, it's not anywhere near the firewall. So here is the firewall starts from here. This is our house. The vertical addition is going to be here. So this entire part has no new mass. There is no vertical addition. There is no horizontal addition near the firewall. Wherever this entire structure, the neighbor has, has no new mass. And the sloping firewall is also going to be below the blind wall.

So when you say no new conditions, you mean no new conditions that affect sunlight?

The skylight, exactly.

No new conditions? Right.

I was addressing only the skylight and sunlight.

And when you say existing plane and height, there could be other things other than the plane and height that could affect sunlight.

That could have affected, yeah. I mean, if we go all the way extension, all the way we do vertical addition, we do horizontal addition, that could have affected. But we are not doing any of this stuff on the back and on the front, where his blind wall and his front skylights are there.

So your statements about no new conditions, there are a lot of caveats in there that could corroborate the concerns that your neighbors have, correct?

This is my interpretation. I was just giving, showing them that this is, you know, skylight is not going to get affected, the air is not going to get affected, the light is not going to get affected.

Have you shared with them any studies that would make them feel better as your neighbors?

No, so I showed him one of the site, paid site, where I did my analysis. I showed him the entire thing. Since he appealed from that day onward, I have the entire shadow study from that until yesterday. If you want, I will be happy to show you that right now. It's on my laptop. I couldn't bring it on the USB because the file is very big.

Well, it's not necessary for me to say it. We're going to make a decision. I don't know what the decision is, but we are going to make a decision. But you're going to have neighbors who... probably will not want to think that their neighborhood winked them or said one thing and did another or hid behind a particular interpretation of a word. So I would encourage you to give them as much information as possible to address their very legitimate concerns. We have people who have either lived here for years or moved back. and I know you're saying you're moving back from from from the South Bay and and You presumably all want to be there a long time. So I would encourage Greater whatever we decide tonight. I would encourage greater communication. Thank you.

Thank you Commissioner Wong So I'm trying to figure out where the sun would go at what time of day, right? And looking at the images, I think, I'm not 100%, I think that the sun starts on the opposite side of the earthquake shack and then kind of goes diagonally across the building. So the impact would likely be on the morning sun. to the earthquake shack home. I am wondering, like, based on where you would add the vertical, basically, like, how do you know that that distance or, like, what does that look like for that shadow? Because there is very clearly a skylight in the back, so any impact would be on their morning back sun. I have no idea what's in there. I don't need to know what's in there. I know there's a skylight there. Just trying to think through what that impact could be, because it really is just a small portion of the morning that would be impacted by the sun. And I know that you don't need to do the study, but I think reasonable.

As you said, sun comes from east side and it goes to west. So whatever shadow studies I have done online, all the properties on Bocana Street and all those streets will always gonna get sun because the sun comes from the east and it goes to the west. Even if it's a summer, if it's in a winter, always gonna get this thing. In winter, The day is pretty small. And as you say, sun comes from the east and our property, we have very mature trees. So even if sun comes in the morning, we're always going to get shade on that side, no matter whether sun is there or not. We're always going to get the shade on that side. And we are not doing anything on that side.

I guess my question is more about what do you know about your current impacts? Because it clearly doesn't affect his skylight right now. But if there was that distance, you had kind of claimed that it shouldn't impact because of the distance.

So we did move the front extension all the way back by 15 feet, which is, I believe, less than their skyline.

And you believe that that's based on your studies, that 15 feet is sufficient to prevent blockage?

That is based on what the planning department has recommended. They said that we have to make this extension less, and this is the distance we should do. That was, I believe, the first planning.

I might need planning to answer why 15 feet. Yeah.

Should I get done? OK.

Thank you. You can be seated. We will now hear from the planning department.

Okay. Thank you again, Commissioners. Cory Teague, Zoning Administrator. Just try to touch on a few issues that were raised. One, I mean, just regarding the immediate neighbor's property, again, they got a rear yard variance back in the early 80s to do a rear addition into their rear yard, that variance had conditions of approval. And some of those conditions of approval were specific to protect the earthquake shack. So that's why there's limitations on that property. And there were conditions, basically, the zoning administrator at that time said, if we're going to allow this extension very deep into the rear yard, much deeper than the subject building we have here, There are going to be some trade-offs, again, to help especially make sure that the earthquake shack is preserved and maintained on that property, just as an FYI. You know, the appellant kind of, again, referenced me, like, offering a revision to the project sponsor. I mean, if that language was used by someone who was describing it or the planner, I'm not sure. Again... We try to coordinate. I'm not dictating things. I'm trying to take in information, and we have a conversation about it. But at the end of the day, I'm landing on a final decision. That is my decision and the requirements for approving the variance. And in terms of how that process played out, that was part of what I described before. It was taking all the information that we had from the hearing and the written input trying to get the project in as good a shape as possible to feel comfortable granting the variance. And then we haven't really talked about that much. I mean, the plans are in your brief. We haven't shown the plans here at all. Can't do that if we need to. But again, the existing building already has like an attic level. So there is kind of a third level. The proposal is to take a rear portion of it and pop it up to a flat area. roof similar to the neighboring building. The reason it's set back the way it is, and I mentioned that our design review folks reviewed this and it went through a revision process to make sure it's consistent with the residential design guidelines. So that is something where those design guidelines basically say if there is a really strong context at the front of the street and here you have a very strong like kind of two-story or two-story with an attic context along the street here if you're going to go vertical you need to set that back so that you're doing as much as you can not to interrupt that context at the street and typically that setback is going to be requested to be somewhere between 10 and 15 feet because that's typically how far you need to set it back. So it's mostly not visible from the street. So that's where that setback, if we want these types of additions, typically we want them off the front and pushed towards the rear. And with that comes this issue, again, of, There's a lot of conversation about it's a vertical addition. Of course, there's going to make more shadow. It's impossible to do a vertical addition and not create more shadow. That's how it's going to work. There's a question of how much more shadow is it going to be, and what are the expectations? I would say that typically, there's been a lot of conversation about the neighbor's skylight. Generally speaking, there's nothing in the residential design guidelines that talks about specifically protecting or not shadowing people's skylights especially if those skylights are already in like the required rear yard where again a lot of the mass we push towards the rear so the rear yard area is generally going to be a little more effective when it comes comes to shadow so again there was no shadow analysis done for this project there was an understanding there's going to be a you know some increase in shadow the full extent we're not sure but Typically, something at the scale, the amount of additional shadow that's going to be created just across the board is generally not going to be something that's considered inconsistent either with the residential design guidelines or considered to be materially injurious to the surrounding properties, just to give a little more context on that. But again, Bernal and any place that's sloped, you know, even if you're not sloped, any vertical addition is going to create more shadow to the north, just because the sun's always going to be to the south. I mean, that's always going to be the case for any vertical addition, whether you're going from one to two stories or two to three, et cetera, unless you're completely surrounded by larger buildings and you're already completely within the shadow. So I think that covers most of the questions that came up during rebuttal. But I'm, again, happy to answer any questions you may have.

Thank you. President Shasvinia?

I had a question about the shadow protection. And if I understood you correctly, you said the sun skylight is not specifically protected. Wouldn't that be the place that you want to protect the most?

Well, actually, the residential design guidelines are really more about protecting light and air like the mid-black open space and for adjacent properties, or if you have really unique scenarios. What I was saying is that a lot of people have just roofs. Not everybody has a skylight. If you add a skylight, that's a wonderful thing to add, but it's not like a protected feature. Similar, like a property line window is not something that's a protected feature. That's not to say that in context, every project's a little bit different. There can't be a unique situation where skylight is determined to be relevant in that way. But I would say, generally, they're not. And in this case, it wasn't considered to be.

It seems to me that, as you note, skylights are not universal. That if someone's going to have one, it's because they wanted to bring in light from the sky. And that would mean that the shadow would have a big impact on having the skylight in the first place.

Sure. And I'm not trying to argue that skylights don't allow more light in. And then if you do something that creates more shadow, it impacts that light. What I'm saying is that skylight is something that people can add. But it's not a situation where if it was just a flat roof, we'd treat it one way. And if someone chose to create a skylight, we're then going to control an adjacent property more in a more restrictive way just because that property owner also added a skylight to their neighboring building. Thank you. Sure.

Okay, thank you. No further questions? Commissioners, these two appeals are submitted. We're in deliberation right now.

Well, thank you all for your presentations, your testimony, and my colleagues' questions as well. There are a lot of good questions that have been asked and presented by the neighbors. I felt that the brief from the variance holder was very strong in terms of anticipating and addressing a lot of my questions. And I think Mr. Inden asked, well, is it my responsibility to get a shadow study? Many of the questions that have been presented There don't seem to be answers, and in this process, the appellants do have a certain burden to demonstrate that there is harm or to demonstrate the impact. So given the balance of what we've heard, I have not heard enough to disturb the zoning administrator's determination, and I would deny the appeal. Colleagues?

Just a point of information, Julie, can you remind us of the standard of review?

It's de novo. And generally, if you deny the appeal, you would be finding that the variance decision meets the five findings required under Planning Code Section 305C. Thank you.

Yeah, I didn't see a basis for granting the appeal. I think the findings made sense to me. I think the record showed engagement from planning or between planning and certainly the sponsor, a lot of back and forth there. but also with the community, whether through hearings or emails in the record. I thought that Mr. Teague's responses on those questions made sense and are within the bounds of these variance determinations that we typically see before us. And then just to the substance of of the findings, I didn't find or I didn't see anything, you know, outside of the norms. And I guess more generally, I do share the view that, you know, when placed in the context of certainly other variance decisions and and requests that have come before us uh... this is this is not an outlier this is not uh... the type of build out there that uh... i would characterizes is drastic you know certainly taking kind of the body of variance decisions that have come before us as a whole. And so both at that level of just kind of the sense of placing this project in the broader body of variances that we've looked at, And the findings, the text of the findings themselves, the scrutiny that the findings have faced in this process as well, I think it all seems reasonable to me. So I'd be inclined to deny the appeal.

Commissioner Wong. Yeah, so I'm looking at it and I'm relatively familiar with the Bernal Heights neighborhood and I'm glad that you guys are here to advocate for your neighborhood. I think looking at the facts of the case where it's at, I'm also inclined to deny because I can't figure out where the core wrong was. And I struggle with that. So, yeah.

I will entertain a motion to deny the appeal. Would you like to make it? So moved.

Okay, so we have a motion from Commissioner Lopez to deny the appeals, plural, and uphold the variance decision on the basis that it meets the five findings required by Planning Code Section 305C. On that motion, President Trasvino? Aye. Commissioner Wong? Aye. So that motion carries 3-0 and the appeals are denied. And that concludes the hearing.

Thank you. There being no further business before us, we stand adjourned at 928.