Department of Building Inspection

No public comment

Commissioner Staples: Item 4a. Appellant for appeal # 00-01, Ms. Sotelo, was asked whether they wanted to continue their case. They indicated they wished to be heard today. They were advised if their case was heard today the decision would have to be unanimous in their favor.

Item 4b: Appeal # 00-03. Appellant indicated they wished to be heard today.

Item 4c: Appeal # 99-16. Appellant indicated they wished to be heard today.

Item 5a: Appeal #00-04. Appellant requested a continuance. President Stables stated that the hearing will be scheduled for a future meeting.

The Court Reporter swore in all people who will be testifying.

Appellants were advised of the two part process concerning the agenda.. Part one to decide whether to have a rehearing. Part two is to have a rehearing.

Item # 4a: Hayes Valley Apartments. Appeal No. 00-01. Rehearing request.

Staff comments were requested regarding item # 4A.

Todd Jackson indicated that the department does not have any new information. Commissioner Baltimore requested a briefing and Todd Jackson restated the details of the appeal and indicated that the commissioners did not choose to allow the appeal to be granted at the prior hearing.

Dalila Sotelo, representing the general partner in the Hayes Valley partnership, indicated that the property is publicly-owned by the Housing Authority and a private partner is leasing it but indicated that they are privately funded. They wish to present new information. Testimony will be made by Mr. Kim Blackseth, Mr. John Thomas and Ms. Hasmai Ahmid.

Sotelo: Of one hundred and ten units, sixty-six are for prior public housing residents. The seven units in question have seniors living in them and it would be an extreme hardship for them to move out and the bathrooms to be reconstructed.

The new information is basically the oral testimony and a narrative of the economic hardship they have endured due to not having the Certificate of Final Occupancy since March of last year. They are willing to set up a reserve for compliance for each of the seven units into what the Building Department is saying is a fully accessible unit and that they have twenty-five other units on the site that are fully accessible in which to move the disabled.

Ms Sotelo indicated a desire to have the rehearing today after inquiry by President Stables. Ms. Sotelo reiterated what the new testimony would be about including details of the economic hardship indicating that the partnership has endured $150,000 of economic hardship due to delays.

Todd Jackson responded that the project is entirely new with a new street and that it is important that the code be met without hardship.

President Stables inquired if there was public comment. There being none he placed the matter before the commission.

Commissioner Baltimore made a motion to open it for rehearing. The commission voted 3-0 to rehear this appeal.

Ms. Sotelo presented eight copies of information to the commissioners.

John Thomas, Architect, presented testimony that the bathroom space was accessible and in compliance with the 48 x 36 space requirement due to use of the space under the lavatory and that in light of Mr Blackseth’s testimony that there is accessibility. Also, that the additional space under the lavatory is indicative of equivalency.

Mr. Blackseth, consultant and ex Plan Checker for the City of San Rafael, City of Sausalito, Mill Valley and other Marin Cities, made the same determination that Mr. Thomas made that the spacing question is compliant with the code section. The interpretation that is used is that as long as there is 27" and when 27" ceases, that you cannot go any further. He was in only one of the units, but that unit was the most restrictive. He acknowledged that local code interpretation would prevail. Also, from a practical standpoint that transferring is difficult but that if he can transfer he considers the space usable. He was in the bathroom, which was without grab bars. After twenty-one years in a wheelchair he would say that it would have to be a pretty substantial disability that could not use the space, from a special standpoint. In terms of whether there was space provided to get a wheelchair up and to make a transfer: there in fact was.

Ms. Hasinah Rahim, manager and resident of the Hayes Valley Apartments, indicated that it would be a great hardship on the residents to move out and move back in again because they have already gone through a relocation period.

Ms. Sotelo indicated that if the tenants have to move out, the commission must consider that they have a point of turnover.

Commissioner Baltimore inquired if this is a thing that can be done from the City Attorney’s office?

Ms. Stombler indicated that she had limited experience in this matter. That she does know that we have entered into settlement agreements with property owners in the context of abatement. She does not know if that has been done in the case of Certificates of Occupancy. She would like an opportunity to meet with the Department to create the necessary paperwork that will be binding on the owners and partnership and would request direction from the Commission to consider what is meant by turnover. She asked whether the Department had any experience with this agreement.

Mr. Jackson stated that the Department does not track the vacating of units until there is remodeling. He agrees with Ms. Stombler that some sort of recorded document on the deed or title is probably the only way and that we would be taking it out of the Department’s hand at that point for enforcement.

Commissioner Baltimore stated that first; she did not hear anything that changes the initial facts as presented to us, secondly; that a tenant is moved out and then allowed to move back in. Looking at the numbers, it would probably be cheaper to bring it up to code that it would be to go ahead and leave the money and not receive the Certificate of Occupancy. The amount being $160,000.

Ms Sotelo stated that the cost of redoing it would be about $70,000 as of six months ago. The $150, 000 represents the money that has already been lost. So that would be in addition - $150,000 plus $70,000.

From a partnership level, they would respect and honor a memorandum of understanding, especially if it is recorded. The economic hardship has already been lost because they have not received their Certificate of Occupancy. She would anticipate that if they do get a memorandum of understanding recorded that they would get a Certificate of Occupancy and that it would be cheaper than having to spend another $70,000 to remodel the units and pay the cost of relocation of the tenants.

Commissioner Baltimore expressed concern of the agreement becoming lost and costs of construction escalating in the future.

In public comment Mr. Behan, of the Mayor’s Disability Council, asked why, if the units were built for wheelchair accessibility, they are not being used for that purpose.

No further public comment. Public comment was closed.

In rebuttal: Mr. Jackson indicated that the code does not allow for equivalent facilitation for this section. An exception would be to switch the 36" and 48" dimensions. The commission has very broad authority.

No comment from commissioners.

Commissioner Baltimore and Vice President Lim expressed concern for the time limitations for compliance and Vice President Lim thought it will be cheaper now and that she wants these units in conformance now and available for wheelchair people.

President Stables stated that he was glad to see that they all are in agreement, that the appellants are not in compliance and he has not seen one agreement that allows the dimensions to intrude on the lavatory space. He is opposed to having outside agreements, extended bonds, and things like that.

Mr. Jackson indicated that DBI cannot signoff the permit unless the conditions are accepted.

Commissioner Baltimore stated that they could not approve it and that they do not have the authority due to it being new construction.

Motion by Vice-President Lim: 1/4to deny on the basis that what has been presented is inadequate for us to accept.

The motion passed unanimously. 3-0

Summary by Mr. Jackson

Ms. Parker stated in response to inquiry by President Stables that she would not be requesting to be heard today.

President Stables asked what new information would be presented today.

Ms. Parker stated that one of the issues was the speed of the elevators and the other was Appeal # 00-04 and its continuance and the quantity of bathrooms being required for that property. Most importantly, she thinks, is the precedent setting ruling concerning the Embarcadero Center in 1998 in which six floors were required to have four compliant bathrooms and the other bathrooms considered substantially complying.

She feels that, proportionally, 353 Sacramento is required to provide many fully complying restrooms. At a minimum she is looking for clarification as to whether or not the determination really requires every other floor to be upgraded, or whether or not the intention is to not have it, more than one floor to get to a restroom because that would leave significantly less restrooms that would have to be upgraded than the literal written determination or every other floor.

There was no public comment.

Mr. Jackson stated that front and side transfer are considered equivalent facilitation and that he could not comment on usability.

President Stables stated that he personally thought it was unnecessary, that by the charter and the law these appeals are basically arguments appellants have with the Building Department. There are always two parties. There may be an ’instigator’, but then the complaint becomes a Notice of Violation1/4 this Department has taken action and the appeal is by the building owner or a tenant. To give the third party as much testimony as the two parties is sort of weighing this very strongly in one direction or another.

There was no public comment.

There being no further business the Access Appeals Commission adjourned at 2:23 p.m.