Department of Building Inspection

Building Inspection Commission

MINUTES

The meeting of the Building Inspection Commission was called to order at 1:15 p.m. by President Fillon.

1. Call to Order and Roll Call - Roll call was taken and a quorum was certified.

COMMISSION MEMBERS PRESENT:

Alfonso Fillon, President
Denise D'Anne, Commissioner, excused
Bobbie Sue Hood, Vice-President
Esther Marks, Commissioner
Roy Guinnane, Commissioner
Rodrigo Santos, Commissioner
Matt Brown, Commissioner
Ann Aherne, Commission Secretary

D.B.I. REPRESENTATIVES:

Frank Chiu, Director
Amy Lee, Assistant Director
James Hutchinson, Deputy Director
William Wong, Deputy Director
Sonya Harris, Secretary

2. President's Announcements.

The President had no announcements.

3. Director's Reports. [Director Chiu]

a. Update on status of seeking assistance from the Department of Telecommunications and Information Services (DTIS) to evaluate DBI's information technology goals and objectives.

Director Chiu said that this item was to give the Commission an update on his meeting with the Director of DTIS two weeks ago. Director Chiu stated that he asked the Director to assign someone with a high level of knowledge in the MIS area to get some assistance in getting a baseline and then looking at DBI's goals and objectives. Director Chiu said that the DTIS Director is going to get back to the Department about getting somebody from DTIS for a month or two to get a better assessment of what DBI needs to do to improve the MIS. Director Chiu said that he would report back to the Commission on this later.

b. Report on the status of 1660 Mission Street security services with DBI's union representatives.

Director Chiu said that he wanted to report on how the Department was doing in meeting with staff and the unions on the subject of security. Director Chiu stated that he had been meeting with staff regarding security issues because the current security contract for 1660 Mission Street has expired and stated that at the last several meetings of the Commission he had reported that when he approached the subject of trying to revisit the real need of what security is needed for 1660 Mission, the staff, meaning the unions, invoked it as a meet and confer issue. Director Chiu said that he has been meeting with the unions and said that he had attached a summary of the meeting. Director Chiu said that basically the majority of the staff felt that, in view of the stabbing incident that happened last year and the 911 event, more security is needed. Director Chiu said that staff was aware of the fact that this would cost more money, but still felt that the Department should work harder to see what could be done to provide additional security. Director Chiu said that he has tried to summarize what staff is requesting and stated that he had not begun to work with Real Estate to see what this would mean in terms of additional costs. Director Chiu said that generally speaking the Housing Inspectors on the sixth floor have some concern about the different types of customers that they deal with and felt that there are tenants and owners that already have tension between them when they come to the building and staff feels threatened by this. Director Chiu said that one idea is to see if the Department could look at the security system that is built in on the second floor, even though that system was initially instituted to try to minimize lost plans. Director Chiu said that the third floor expressed some concern about security, but generally the Building, Plumbing and Electrical Inspectors, since they don't spend that much time in the office, are not as concerned. Director Chiu reported that the sixth floor and the ground floor, particularly in the clerical area, staff there felt that there should be higher security and some measure to block off public access to certain areas. Director Chiu said that he has been working with staff and the Real Estate Department to see what that means in terms of dollars and cents. Director Chiu said that he wanted to remind the Commission that several months ago he reported that Planning Department staff has expressed concerns about similar security needs. Director Chiu stated that this is an MOU, meet and confer issue, where the Department has to work with Real Estate and the labor unions. Director Chiu said that he would be happy to report back as this issue continues.

Vice-President Hood asked if staff was thinking of such things as metal detectors like the ones at City Hall and checking every person that comes into the building. Director Chiu said that there was some discussion about the need for metal detectors and some of the people felt that one security guard in the daytime from 8:00 a.m. to 5:00 p.m. is not sufficient. Director Chiu said that it was discussed to have the one security guard on the ground floor and then have an additional roving security guard walking around to the different floors; it was also discussed about having a security person from the Sheriff's Office rather than the type of security people that are now doing the job. Director Chiu stated there are a lot of ideas that have been raised and so many issues that it will take time to work with the Real Estate people to see what is reasonable. Director Chiu said that he did want to commend staff, particularly from Building, Electrical and Plumbing because they realize what they are wishing for is going to be costly, but at the same time they don't want to spend that kind of money if it would result in layoffs. Director Chiu said that this is a huge issue and said that he had not had the opportunity to speak with the Fire Department staff, but in the past they had expressed that, at a minimum, they would want to continue with the current security system that is in place. Director Chiu said that there was some concern about having after hour's security in place because of where the office is located and there were concerns about vandalism or whatnot.

4. APPEAL PURSUANT TO SECTION D.3750.4 OF THE CITY CHARTER:

Appeal of Mr. Barry Kane, of the Department of Public Works' Approval of a Minor Sidewalk Encroachment Permit, DPW Order No. 173,948 for property located at 315-319 Edgehill Way.

a. Report, discussion and possible action regarding the Building Inspection Commission's jurisdiction pursuant to Section D3.750-4 of the City Charter over this appeal.

b. Presentation by parties including witnesses.

c. Deliberation and possible decision by the Building Inspection Commission.

President Fillon announced that the Commission would hear from DPW first and then from the appellant. President Fillon asked that anyone who was going to be speaking on this issue stand to be sworn in. Court Reporter Doris Levine did the swearing in.

Commissioner Marks said that there was a question of Commissioners having to recuse themselves from this matter. Deputy City Attorney Catharine Barnes stated that if a Commissioner were going to recuse themselves from a matter it would be done at the beginning of the issue before any testimony was given. President Fillon said that there had been an issue raised that two of the Commissioners might have a conflict and stated that the representative from the City Attorney's Office was present to give input on this matter. Ms. Barnes said that she was not giving specific advice because she did not have specific facts, but would give general guidelines. Ms. Barnes said that the Commissioners had a duty to be fair and impartial and at the same time the Commissioners had been appointed to a position, which they are expected to undertake if they can be fair and impartial. Ms. Barnes stated that the Commissioners would have to balance between recusing themselves based on simple appearances of impropriety against their obligation as an appointed Commissioner. Ms. Barnes said that there are specific State and local laws having to do with when one must recuse themselves and those are found in the State Political Reform Act and in the local laws, which encompass the State Political Reform Act. Ms. Barnes stated that specifically, based on the facts that have been set forth in the package, ones that might come into play are the laws for any Commissioner who has at least a 10% ownership in a business, if this business has been employed by an appellant, perhaps in any case, but certainly by a property owner who has the same matter before this Commission; and if a Commissioner has received income from that employment within the past twelve months or is currently under some kind of arrangement to work for that person. Ms. Barnes stated that this would be considered a financial conflict of interest and it would be appropriate for a Commissioner to recuse themselves. Ms. Barnes said that it is not required by the Political Reform Act for one to recuse themselves because some other member of their family at some time in the past may have had an economic benefit from the same property; so if it is true that the parents of a current Commissioner at one time owned a piece of property a number of years ago, particularly more than a year ago and sold it, that would not necessarily be grounds for a Commissioner to recuse themselves unless the Commissioner felt that he or she could not be fair or impartial because of that fact. Ms. Barnes said that it is unlawful for a Commissioner to sit if the Commissioner does recuse themselves and it would be grounds to attack a Commission action. Ms. Barnes said that on the other hand, if there is no conflict then there is no obligation.

Commissioner Marks said that one of the issues, aside from Commissioner Santos being the Structural Engineer in the case, was the allegation that Commissioner Guinnane had owned the property before it was sold to the current owner. Ms. Barnes said that she attempted to address both of those issues and with respect to the ownership of the property, if there was any income or financial benefit from the ownership of the property that had occurred more then twelve months ago, then that would not necessarily be a conflict of interest and would depend upon whether the Commission felt that he could be fair and impartial or whether he felt that the appearance of impropriety was sufficient that it would be more appropriate for him to step down. Ms. Barnes said that if the Commissioner had sold this piece of property within the past twelve months her advice would be that it would appropriate in all cases to step down, but the mere fact that he or the members of his family may have received financial benefits from owning this property some time in the past does not. Commissioner Guinnane said that in addressing the actual concern of Commissioner Marks, he owned this property in 1979 and had it for quite a few years and then sold it to his father who kept it for about four or five years, then around six years ago sold it to Spiers Construction. Commissioner Guinnane said that he received no monetary gain out of it and had no involvement in the sale, nothing at all. Commissioner Guinnane said that it was his position that he could be fair in dealing with this appeal, as he does not know the parties other than having seen them in front of the BIC. Commissioner Guinnane said that he did not see that he would have to recuse himself because it was more than six years ago and he received no benefit out of the sale.

Commissioner Santos said that he is a Structural Engineer and said that Commissioner Marks was correct in stating that he is the Structural Engineer for the two houses, but said that he is not the Structural Engineer for the encroachment and is not the Structural Engineer who came up with the structural drawings that are in front of the Commission. Commissioner Santos said that he felt that he could be fair and impartial, but at the same time, he heard the input from the City Attorney advising that this may appear to be a conflict of interest. Commissioner Santos stated that he could be quite fair and said that some of the issues in front of the Commission were going to be quite technical in nature and said that he could offer some light into what those issues are. Commissioner Santos said he was not the Structural Engineer on the encroachment, as that happens to be Shure Engineering; he is the Structural Engineer on the main houses and the Structural Engineer on close to 5,000 properties in the City. Vice-President Hood asked Commissioner Santos if he had received any payment for those services within the last year. Commissioner Santos said that he would have to check that, but probably not. Ms. Barnes said that the test would be if he had received any monies for a business in which he had more than 10% ownership. Vice-President Hood said that if Commissioner Santos was not sure, it would seem that if the Commission wanted its action to stand, much as the Commission would like to have Commissioner Santos' input, it might be better for Commissioner Santos to recuse himself, unless he was sure that he had not received payment. Commissioner Santos stated that ordinarily he would recuse himself, but the fact that this project is so technical in nature he felt that he could add to the understanding of the Commission. Vice-President Hood asked if Commissioner Santos could check with his accountant. President Fillon announced that the Commission was going to take a five-minute recess for Commissioner Santos to check on his status.

Commissioner Santos stated that he had called his accountant and was informed that he had received payment for his structural services within the last five months so it was his obligation to recuse himself from this hearing. Commissioner Santos left the podium. President Fillon stated that first the Commission would hear from DPW and then the appellant and each side would get seven minutes to state their case. President Fillon said that then the Commission would hear from members of the public who would be allowed three minutes each, followed by a three-minute rebuttal from DPW and the appellant. President Fillon asked that all speakers adhere to the three-minute time limit out of respect for the Commission and everyone else.

Mr. Seth Todd Huntington introduced himself as the Deputy Bureau Manager for the Bureau of Street Use and Mapping which is a part of the Department of Public Works. Mr. Huntington said that it was his organization that issued the permit that is presently in question. Mr. Huntington said that he would be brief and would not need seven minutes. Mr. Huntington stated that the Department was satisfied that it provided the proper review and oversight for this particular permit and said that it meets all of the rules, regulations and policies and said that his Department was willing to stand behind the issuance of this encroachment permit. Mr. Huntington said that the Department felt that the permit should stand and said that he would provide some background on why DPW feels this is so. Mr. Huntington said that the Department has boiled this encroachment permit down to three items; the condition of the existing soil; the widening of the roadway and the hearing that DPW conducted. Mr. Huntington said that this issue has been going on for a number of years, meaning the Edgehill property improvement. Mr. Huntington said that the building permit was issued prior to the DPW permit and the building permit was appealed to the Board of Permit Appeals; the Board of Permit Appeals opted to support that permit with conditions. Mr. Huntington said that one of the conditions was that instead of the two frontages along 315-319 Edgehill Way be widened, it was requested that all properties that were going to be developed in the future be widened at this time. Mr. Huntington said that he believed that was six properties, so it went from two properties being widened to six properties being widened. Mr. Huntington said that by widening he meant the roadway. Mr. Huntington said that at the present time the Department of Public Works and the City has an easement on that property that is considered a public right-of- way, however the maintenance of that roadway is the responsibility of the property owners and they would be represented in some part by the Edgehill Neighbors Association. Mr. Huntington stated that DPW received the request for an encroachment permit while the building permit was under review and opted to hold the encroachment permit back pending the appeal of the building permit. Mr. Huntington said that there would be no point in his agency reviewing the widening of a public street if the building permit to allow the proposed development was not approved. Mr. Huntington said that the decision on behalf of the Board of Permit Appeals stated that they requested that a bond be imposed on the developer and that the roadway be widened. Mr. Huntington said that to that extent, the developer was to underwrite the cost of any roadway widening. Mr. Huntington said that the crux of the matter boils down to what he thought was three items.

Mr. Huntington stated that he would start with the soils and said that this particular neighborhood is somewhat geologically sensitive and to that end an ordinance was placed in the Building Code, which had to do with the Edgehill slope conditions. Mr. Huntington said that because of that, it was recommended that a Structural Advisory Committee would have to review any building permit. Mr. Huntington said that he understood that the building permit was reviewed and the building permit was subsequently issued. Mr. Huntington reported that the Department of Public Works does not follow the Building Code, but does like to support its sister agencies so the Bureau of Engineering, which is a department within the Department of Public Works, reviewed both the soils reports and also the proposed construction in that area. Mr. Huntington said that he would boil the soil situation into a simple statement, "The Department of Public Works, Bureau of Engineering found that the design for the construction was adequate to meet their requirements." Mr. Huntington said that as far as the widening, the permit initially was for two lots where the roadway would be widened in that area by the developer, but the Board of Permit Appeals placed the condition that six lots be widened so to that extent the permit changed. Mr. Huntington said that the basic design, which DPW had already reviewed for the first two lots, was substantially the same. Mr. Huntington stated that this was not to say that over time DPW did not find some things wrong with the design as there was a case where with the tie anchors, the screw anchors that would be used to hold the retaining wall that is going to support the load of the widening of the street, their extended length was going to go into private property. Mr. Huntington stated that the neighbors indicated that they wouldn't allow that and DPW saw that this condition was not part of the plan. Mr. Huntington said that DPW is satisfied that the widening to the extent of the screw anchors does not occur on private property and therefore it was found that this was in keeping with DPW's policies and regulations.

Mr. Huntington said that there was a question regarding the hearing and said that the hearing officer, Mr. Rich Cunningham was present at the BIC. Mr. Huntington stated that DPW never developed a Director's order. Mr. Huntington said that typically in DPW once a decision is made at a hearing, a recommendation is made to the Department of Public Works Director who then would send out a statement regarding what the final conclusion was. Mr. Huntington said that in this case because the building permit was in the process of appeal, DPW opted not to send that letter out, so while a letter was drafted the Department never made a statement that they had concluded its review. Mr. Huntington said that it wasn't until February that DPW concluded its review of the project and were satisfied that the project meets DPW's structural requirements. Mr. Huntington said that the hearing was unusual, in that rather than having a document to provide what the determinations were at that hearing; essentially the meeting was left in the situation that the permit in question would not be issued until the building permit had been approved and conditions met from the Board of Permit Appeals.

Mr. Huntington said that DPW's position was to ask the BIC to support the issuance of this permit and said that there were DPW people in the audience such as John Kwong, DPW's Permit Service Manager who spent a lot of time on this project to provide any additional information as questions might arise. Mr. Huntington stated that he was available for any questions.

President Fillon asked to hear from the appellant and said that there would be questions after the Commission got through all of the comments.

Mr. Michael Phillips introduced himself as an Attorney at 305 West Portal in San Francisco representing the appellant Barry Kane who lives at 14 Edgehill Way below this project. Mr. Phillips said that he wanted to say at the outset, that in principle his client was not opposed to the widening of the roadway, but wanted to be sure that the geologic and engineering issues that relate to this are adequately reviewed by this Commission that has the expertise and skill to pass on these issues. Mr. Phillips said that he noticed that one of the items that was listed in addressing this appeal was a question of jurisdiction and said that he wanted to briefly note that this Commission does have jurisdiction under Section D 3.750-4 of the City Charter that is quite explicit in saying that the Commission shall have the power to hold hearings and hear appeals on all decisions made by the Department of Public Works regarding permits under one or more of the Codes enumerated in this section and on sidewalk or encroachment permits. Mr. Phillips said that furthermore, it is provided in Section 723.2 of the Public Works Code that there are two alternative procedures if someone is going to appeal the issuance of an encroachment permit. Mr. Phillips said that in the alternative, when the encroachment is related to building construction, rehabilitation or maintenance, any person may appeal the encroachment permit decision to the Building Inspection Commission. Mr. Phillips said that it was quite clear that this Commission does have jurisdiction and said that he wanted to explain why his appellant wanted the BIC to have jurisdiction over this issue. Mr. Phillips said that he would use an analogy and stated that he had the highest regard for the California Medical Association, but said that when he has a knee problem he goes to a knee specialist, the people with the expertise and the special skills to address the technical issues. Mr. Phillips said this is why the appeal was filed with the BIC to have this Commission pass on the geologic and engineering issues and review the work that the Public Works Department has done and make sure that these issues are addressed within this body that has the expertise to do it. Mr. Phillips said that he was open to any questions.

President Fillon asked for members of the public to come forward to comment on this item.

Mr. Tim Colen introduced himself as President of the Edgehill Way Association. Mr. Colen said that it was left to him to make the case in three minutes. Mr. Colen stated that this was a cynical attempt to deceive the Commission, and as such, it shows contempt for the Commission. Mr. Colen said that it did not escape the Association's attention that the appellant did not have the courage to show up to speak to this issue, as this is only an attempt to preempt the Association's ability to appeal this in the widest way possible. Mr. Colen said that, number one; the Association still had issues regarding the fairness of the Commissioner sitting on the BIC as the Association still had questions about his ability to vote fairly. Mr. Colen said that because of this the Association would strongly urge the Commission not to take any action on this until the Commission had the chance to consider widely what the issues are that are at stake here. Mr. Colen stated that the lots in question are covered by the Edgehill Mountain Slope Protection Act, enacted by the Board of Supervisors specifically for this area and what it says is that in areas of chronic and known repeated geologic instability the City will require an independent review of large construction projects. Mr. Colen said that this is a large net that has caught many people including the appellant and asked if he was going to argue against it now. Mr. Colen said that the law applies to this and was written for this. Mr. Colen stated that a simple reading of the minutes from the Structural Advisory Committee held in 1999 to discuss the building of these properties expressly excluded the road-widening project while the plans weren't even available. Mr. Colen said that it only covered what was inside the property and not what was in the public right-of-way and said that this might seem like a technicality until it is considered that the plans that were submitted, the first time around for the street widening project, were just illegal as they showed encroachment under private property. Mr. Colen said that this was something that the neighbors would not agree to and this escaped DPW's own reviewers. Mr. Colen said that the Association had to hire their own geotechnical engineer to discover this. Mr. Colen said that the Association's engineer submitted a letter outlining five deficiencies that he identified in the original street widening project. Mr. Colen said that to his knowledge not a single one of these has ever been addressed by the City. Mr. Colen said that DPW says that this design is identical to the last one, therefore it is okay with DPW and said that the Commission should understand why the Association has problems with this. Mr. Colen said that the street widening is going to take affect fifty feet from the location of a massive slope failure in 1997 and said that the Commissioners should all know where this is if they have seen the lots. Mr. Colen stated that it is clear that the plans were deficient when they were submitted to DPW at the hearing in 2001. Mr. Colen said that what the neighbors were told at the hearing was that since these plans were no good as written, no action would be taken on them until the building permits were approved and that is the case now. Mr. Colen said that the Commission should read the law as the Edgehill Mountain Slope Protection Act was written to cover examples like this and other people are required to comply and so should the applicant for this project. Mr. Colen asked that the Commission not take any action until they were much better informed about what is going on, as this is a very, very cynical act.

Ms. Beth Alberts said that she was speaking on behalf of her parents, Bruce and Betty Alberts and on behalf of the Bards who live next door to them and are the owners across from this project. Ms. Alberts said that she believed that there are still serious unaddressed concerns regarding the tiebacks, specifically which according to the plans are to extend all the way through the public right-of-way to within six inches of property lines. Ms. Alberts said that this would make them a total of 31 feet, 6 inches long. Ms. Alberts said that the neighbors have had a significant education about tiebacks after the landslide in 1997 and said that it was her understanding that in order for tiebacks to work they must be embedded in solid bedrock. Ms. Alberts stated that when Dames and Moore stabilized the road just adjacent to the proposed building site, after the landslide, they discovered that most of the tiebacks had to extend at least forty feet before they hit solid bedrock. Ms. Alberts said that, as a result, many of those tiebacks had to extend into her parents property. Ms. Alberts said that the engineer on this current project says that twice as many tiebacks, half as long, will be able to secure the road, but if these tiebacks don't hit solid bedrock at that length what will happen. Ms. Alberts said that common sense tells that the result is a perforated hillside that will therefore be further destabilized. Ms. Alberts said that these were some of the immediate concerns and said that they have been stated before, but not been addressed. Ms. Alberts asked if this permit would allow Spiers Construction to build an unsafe structure with short, ineffective tiebacks or will Spiers Construction be allowed to abandon the project if they can't build the retaining wall up to Code, thereby leaving the hillside a destabilized mess. Ms. Alberts asked if this would become an emergency situation, whereby her parents and the Bards would be forced to grant easement rights, as this was the case after the landslide. Ms. Alberts asked if Spiers Construction would be required to re-engineer the road so that it would be safe without the use of trespassing tiebacks. Ms. Alberts said that basically for her parents and the Bards they wanted to know what was the backup plan. Ms. Alberts said that the likelihood that of the fifty tiebacks at least one might have to extend six inches into their property is pretty high as far as they were concerned and said that she believed that City law required that this project be reviewed by a Structural Advisory Committee. Ms. Alberts said that this would allow for the neighbors to have a proper forum to deal with these issues, as there are too many unknowns. Ms. Alberts said that when she was in high school many years ago, there was a similar situation with Mr. Guinnane as the opposition and stated that she felt that there was a real conflict of interest. Ms. Alberts said that she wanted this to go on record because the conflict about developing these lots went all the way to California Superior Court with Mr. Guinnane as a defendant.

Mr. Raymond Adams Dudley of 365 Edgehill Way said that he is a physician and dad of a sixteen month old and said that he did not know anything about all of this law stuff. Mr. Dudley stated that his son, Carson, loved fire trucks and said that part of the reason that his son knows so much about fire trucks is that there is a very old population on the hill and in the last three months there have been two ICU admissions and one person getting CPR up on the hill from emergency vehicles. Mr. Dudley stated that a problem that had not been addressed is that this is a one-way hill and a one-way loop. and in order to enter that loop there is an incredibly tight hairpin turn where fire trucks going the right way have gotten stuck and have had to be removed by crane. Mr. Dudley said that now suddenly a permit is approved and there is still the same problem as to how emergency vehicles can get up to this place where literally people have died on this hill recently. Mr. Dudley said that if the only way on or off of the hill is cut off for emergency vehicles it seemed to him as a physician that the City is rolling the dice with a population that he would not want to roll the dice with, as it would come up as a bad number. Mr. Dudley said that this is the kind of thing where after something horrible happens everyone would say how could this possibly have been done, except it hasn't happened yet and there is the opportunity to prevent it. Mr. Dudley stated that he would ask the Commission to not approve anything until there is a clear cut plan as to how throughout construction, emergency vehicles will be able to get up there and get around. Mr. Dudley said that there are people over 90 and people over 100 up there and actually in the Board of Permit Appeals hearing the Board said that this would have to be addressed, so he could not understand how permits could subsequently be approved without it being addressed.

Mr. Greg King said that he lived at 345 Edgehill next door to the proposed construction site with his wife and daughter. Mr. King stated that he was not an expert in City government, but said that he had been learning more over the past three years since he bought his house about the due process. Mr. King said that he was baffled by the fact that he as a resident, next to the property, never received notification that the application was being considered and that the new designs were in place and were being looked at, so that they he could provide feedback. Mr. King said that this was called a minor sidewalk encroachment and said that to him this did not seem like a minor sidewalk encroachment, but seemed like a very massive production process to put this new road in place. Mr. King said that he had nothing but respect for Mr. Spiers and his brothers and his partners in this project, but said that he looked at this as a very large massive project that is controversial. Mr. King stated that he was told in an earlier review process that there would be an opportunity to give input to these designs and to see what was going to be happening. Mr. King said that the only notification that he received was that an appeal had taken place for a permit that had been granted, and said that he never received notification that the permit was going to be granted, but only received notification about the appeal from a neighbor that lives one-half mile away from the property. Mr. King said that he did not know what to call this, but it did seem somewhat suspicious and somewhat of a shenanigan as to how far this is going through. Mr. King said that he thought that the neighbors should have the right to be able to review the project and look at it. Mr. King said that DPW mentioned earlier that this a dedicated public road and a fire or safety road and questions from earlier hearings have never been addressed properly about what happens if something happens to this road during construction or after construction has been completed. Mr. King asked who would be liable if something went wrong and said that the Contractor could not be held liable in ten or fifteen years, but said that he would be sixty-nine by the time his house would be paid off as this is a lifetime investment. Mr. King said that where this lifetime investment and real estate right now was going was kind of scary, but if something were to happen on this property, whom would he sue because he could not afford to go bankrupt on a house because a hillside slides down next to him. Mr. King said that it was amazing that the City could even look at a project like this and let it go to a private contractor and not step up to the responsibility of it. Mr. King stated that the neighborhood community is kept in Limbo about this thing because they can't give any input for this design, but are liable as a neighborhood community if something happens to the road that has been there for forty years. Mr. King said that he would appreciate if the Commission would take a look at this and look at what was decided earlier which said that the neighbors were going to be able to go through a review process. Mr. King said that the Commission should push this back to DPW and let the neighborhood look at the design, and look at the plans to be able to understand what the implications of these things are before a decision is made.

Mr. Harry O'Brien said that he was present for the applicant, Spiers and Forest View LLC. Mr. O'Brien said that the work contemplated by these encroachment permits have been thoroughly engineered in connection with the investigation that was done before the Structural Advisory Committee as the Spiers obtained the firm of Cotton & Shires. Mr. O'Brien stated that these are very well respected geologists, the very same people who were retained by the City to stabilize the hillside around the corner where the quarry was previously. Mr. O'Brien said that a Geotechnical Engineer, Harold Lewis did the geotechnical engineering associated with both the homes and these permits and Carl Chain of Shure Engineering was present with the Structural Engineer on these permits. Mr. O'Brien said that the Department of Public Works had carefully reviewed the permits. Mr. O'Brien said that the Structural Advisory Committee was concerned about differentiating these sites from the area around the corner that was the site of the former rock quarry and affirming that the geological conditions were different, as this is not the same as the quarry around the corner. Mr. O'Brien said that the Structural Advisory Committee was convened pursuant to the Building Code and considered that with exhaustive detail and satisfied itself that this area is safe for construction. Mr. O'Brien stated that to do a new Structural Advisory Committee to review the uphill construction of the road immediately adjacent to the houses that it already reviewed makes no sense whatsoever. Mr. O'Brien said that he would submit that it is not really the neighbor's interest here, but the neighbor's interest is in further delaying and adding cost to this development. Mr. O'Brien said that the neighbor's interest is in acquiring this property for open space and said that the neighbor's have made that clear. Mr. O'Brien said that the City had actually made an offer to acquire this property for open space and the developers are in negotiation with the City, and it is possible that it might be acquired for open space. Mr. O'Brien said that this would not be an appropriate thing for the BIC to consider and to be swayed to add additional review time to delay the process so that it might be acquired for public use. Mr. O'Brien stated that this is completely inappropriate and that is the neighbor's real concern in doing this, as there is no engineering evidence before the Commission that this is inadequate. Mr. O'Brien said that one of the neighbors testified that this is just common sense and said that it is not common sense, it is engineering and some of the best engineering professionals in the business were retained to do this and the Department of Public Works carefully reviewed the work product. Mr. O'Brien said that what was particularly galling about that is that one of the neighbor's testifying today against this work was as recently as about a month ago doing work in the public right-of-way without any encroachment permit at all and without any review by the Structural Advisory Committee. Mr. O'Brien said that the road that is there today has not been reviewed by the Structural Advisory Committee. Mr. O'Brien stated that every single neighbor on this street has an encroachment and none of them have been subjected to the process that this property has been subjected to.

Mr. Jim Keith said that he wanted to address the Commission because there had been some talk about a cynical ploy. Mr. Keith said that he thought that the cynical ploy was that everyone on Edgehill has an encroachment and whether they have permits for those encroachments or not is another matter. Mr. Keith stated that Edgehill Road is on paper showing a public right-of-way of 40 ft. wide, but the road is only constructed to approximately 10 to 16 feet at its widest width. Mr. Keith said that everybody has to get from where that road is currently constructed over the public right-of-way to their house and everybody has either driveway encroachments, or retaining wall encroachments and none of them are built to the engineering standards that this project has gone through. Mr. Keith said that Spiers Construction has gone through a rigorous review and gone the extra mile. Mr. Keith stated that in talking about the Structural Advisory Committee, the project sponsor drilled large diameter bore holes, two foot wide holes, and lowered geologists down into the hole and let the neighbor's geologists go down the holes. Mr. Keith said that the smoke and mirrors and the cynical behavior is on the side of the neighbors because the project sponsors have gone the extra mile and filed these permits in 1998 and been through the most exhaustive review process of any permit that he was aware of for a single family home in San Francisco. Mr. Keith said that this is unfair and these permits should go forward and the appeal should be denied.

Ms. Penny Runyon stated that she lived at 255 Edgehill Way. Ms. Runyon said that she would like to address the gentleman's comment that all of the neighbors encroach the road. Ms. Runyon said that she wanted to remind everyone that the homes that were built on Edgehill Way were built prior to 1945; almost all of them so this rule was not in place and this is a private road that the owners are responsible for maintaining. Ms. Runyon said that the City does not even come up and sweep it clean, and have only done so on rare occasions, but said that she did not think that it had been swept in the last five or six months. Ms. Runyon said that the gentleman said that the law must review it and said that the building permits for the houses have been reviewed, but the road plans have not been reviewed and asked that the Commission take that into consideration as they made their decision.

Mr. Pat Spiers of Spiers Construction stated that he had been at every hearing for many years now and at every hearing the neighbor's come up and say that it is impossible for the construction company to build a house because the road is not safe and is not wide enough. Mr. Spiers said that now he is willing to widen the road and again the neighbors are saying that it can't be done because it won't make it safe and stated that the neighbors are talking out of both sides of their mouths. Mr. Spiers said that at one meeting the neighbors say one thing and at the next it is another, but the truth is that this will be the best road built on Edgehill because the finest engineers have gone over it with a fine toothcomb. Mr. Spiers said that this is crazy and said that concerning safety during building there is no problem as there is a plan to be implemented to get vehicles in and out. Mr. Spiers reported that there would be an 18-foot right-of-way by the time they are finished. Mr. Spiers said that the neighbors are asking who is going to fix the road and said that he didn't want to get to it, but asked who is going to fix the road in front of their house. Mr. Spiers said that he was not going to fix it just because he owns a piece of property up there without a house. Mr. Spiers stated that his construction company has a bond that will be put in place when the road is constructed so that is another situation that he has dealt with that the neighbors have not had to deal with. Mr. Spiers said that, as his partner said, all of these neighbors have an encroachment in front of their houses and the hypocrisy here is absolutely mind-boggling, as he has been listening to this for six years now and it is getting very difficult. Mr. Spiers stated that he would have a spot for four cars with each house having two cars in and two in the driveway, not on the sidewalk. Mr. Spiers said that the people sitting at the meeting do not have any spaces in their garages as the garages are filled with crap and then the cars are sticking out onto the sidewalk so to get around a person has to walk in the street in front of their house. Mr. Spiers said that everyone has a right in this City, but the process is being stepped on time and again by this group and enough is enough. Mr. Spiers asked that the Commissioners go with the facts, with the engineers and the Codes that indicate and dictate that this project should go forward. Mr. Spiers said that there is no doubt that this appeal should be denied.

Ms. Gertrude Rault of 375 Edgehill Way said that she wished that all of the Commissioners would go on Edgehill Way either today, tomorrow or any time they had time to see the big holes that are on the highway from the huge trucks that come by. Ms. Rault said that eventually everyone that lives on Edgehill Way would have to participate and pay for those roads. Ms. Rault stated that someone said that they were going to build a road, but okay he is going to fix it by going into someone else's property. Ms. Rault said that this was done before and a beautiful round house was lost up there that fell down about five or six years ago and was destroyed by the City because they thought that house would fall down. Ms. Rault said that this is on the same side that the Spiers plan to build on now. Ms. Rault said that she would be honest and say that if anybody wanted to put rods underneath her house to support it, she would go to the Supreme Court to fight it because she thinks it is wrong because the hills cannot stand anymore. Ms. Rault said that if the Commissioners would go there she promised that they would see something that they never saw before in San Francisco with the holes in the road. Ms. Rault stated that when she built her home in 1960 she had to go through all kinds of trouble to build a driveway and had to obtain permits; when she put the sewers in she got permits and got permits for everything that she did. Ms. Rault said that if the Commissioners were to go up the hill to see things that have been done by other general contractors, big general contractors, the Commissioners would be surprised. Ms. Rault said that what the project sponsors are talking about makes her sick and thanked the Commission for their time. Ms. Rault asked that the Commissioners please go to Edgehill as she would appreciate it and said that she would be more than glad to meet them.

Mr. Joe O'Donoghue of The Residential Builders Association said that the Residential Builders did not get involved in this project at the Planning Commission or at the Board of Permit Appeals, but the fact is that the project sponsor has the right to build two single-family homes. Mr. O'Donoghue said that if the Commission takes Tim Colen's argument that by building and widening a road it somehow jeopardizes the stability of the hill; therefore if there is a smaller road already with traffic still going over that road, that hill because of the road being unstable according to him is already in jeopardy. Mr. O'Donoghue said that what exists is that there was a requirement put on the project sponsors against their will, that they had to expand the road at their expense, including putting up a bond, and then maintenance of that road comes out of their assets not out of the assets of any of the property owners. Mr. O'Donoghue said that the project sponsor was required to expand that road for six houses, two presently that are approved and four that would be approved in the future and this is the issue. Mr. O'Donoghue said that the issue as to engineering has been beaten like a dead horse in past hearings because he has watched them on TV, but the fact is that 500 neighbors in that vicinity, including on that street, supported this project and this expansion. Mr. O'Donoghue stated that the fact is that the majority of those people, when they supported it, knew that if reasonable people remain reasonable maybe the other four houses will not get built because then the City will be able to negotiate in good faith, in other words the project sponsor could in fact go ahead and give that land to public space at public expense. Mr. O'Donoghue said that he resented the fact that people are able to dip into the coffers because they are wealthy on wealthy hills and can then take from a fund, money for their enjoyment. Mr. O'Donoghue said that the fact is that the project sponsor already donated a vast amount of his land to open space and made a deal that they would not even cut the trees down. Mr. O'Donoghue stated that these neighbors, and said that fortunately there are only a few within the neighborhood, are continuously complaining, as they are the hard core and that is what the Commission is hearing today. Mr. O'Donoghue said that this project, as the project sponsor has said has been gone through the gauntlet and the Commission needs to bring closure to it. Mr. O'Donoghue said that the remark by Mr. Colen that Commissioner Guinnane is somehow compromised out in his position here today shows the bias because the fact is that six years ago a transaction occurred, not by Roy, but by his father, and he got no monetary value from that. Mr. O'Donoghue said that if that argument were taken there would be no work done in this City and this appeal needs to be denied.

Ms. Yolan King was sworn in by Court Reporter Doris Levin and stated that she lived at 345 Edgehill Way. Ms. King said that she had three points to make, the first being that her family is not wealthy as she had been recently laid off and said that her family lived in a 1,551 square foot home, which is substantially smaller than the development that is being proposed. Ms. King said that secondly, the point has been made that all of the neighbors have encroachments with respect to their sidewalks and the only reason there is a sidewalk is to attach the property to the road, but the road was never widened, which is the real issue. Ms. King said that the specific areas that are being talked about, due to the slope and the angle of the land there that would cause serious concerns. Ms. King said that the third point that she wanted to make was that the point was made by the developer that there is a safety plan that has been put in place and that after it is completed there will be an eighteen-foot roadway. Ms. King said that her questions are when would it be completed, how long would it take and how is all of the staging and the equipment going to be handled. Ms. King said that with construction it has been her experience that it has never finished that quickly.

Ms. Betty Alberts was sworn in by Court Reporter Doris Levin and stated that she was the owner of 300 Edgehill Way and 350 Edgehill Way so her properties front this road that is being talked about. Ms. Alberts said that she has been very concerned about the condition of the road for many years and said that on the one hand she certainly does not oppose the shoring up of that road; however, stated that she was concerned about the way in which it will be done. Ms. Alberts said that the pinning of the road still leaves her to question whether those pins have to extend underneath her properties. Ms. Alberts said that none of the neighbors are Structural Engineers and said that she was not a Geological Engineer so her concern is to make sure that whatever happens, that the oversight of what goes on is incredibly well done, and that there is not just one part of the City bureaucracy that takes care of buildings and roads, but the oversight committee which is the SAC which looked very carefully at the hill. Ms. Alberts said that she understood from people that the construction company has a bond and said that she appreciated that, but said that she was not trying to come down on the construction company, as that is not a fair thing to do. Ms. Alberts stated that she did feel that technically this was going to be a rather difficult issue and having lived through the 1997 failure of the other road it isn't as simple as being able to say that there are going to be spaces for cars and easy access because the City guaranteed this in 1997 and the neighbors lived for two years with a very tenuous and dangerous situation. Ms. Alberts said that this was her point and said that some of the neighbors live at the top of the area so there is a whole private area for cars and what happened in the past was that people from the City ended up storing their cars up on that private property because there wasn't any access. Ms. Alberts said that these are the conditions she was concerned about; safety for the hill; safety for whatever kind of construction that will go on to improve that road which she believes is in danger of possibly falling, and looking at what the neighbors need for their ability to live their peacefully.

President Fillon asked for DPW's three-minute rebuttal.

Mr. Todd Huntington of DPW said that he met the contractors and several people that live on that hillside and found them to be very fine people who just do not happen to agree on this. Mr. Huntington said that as far as the site, DPW grants that any development there is a difficult situation for the neighbors; given that DPW has made its best efforts to review the property. Mr. Huntington said that he wished that he could say that suddenly the permit was just issued, but for DPW it has been a long haul trying to find a fair process for the neighbor's concerns and also to take care of what the department is responsible for on the technical side. Mr. Huntington stated that he was satisfied that the nature of the work is such that it is appropriate to the site. Mr. Huntington said not to take his word for it, as he was present as a spokesperson; however, he thought that there had been adequate testimony and DPW has documentation that some of the best geotechnical and structural engineers have reviewed and put their input into this project. Mr. Huntington said that in addition the Edgehill Neighbor's Association helped the City and themselves by finding some fault with the plan and that has been corrected. Mr. Huntington said that in terms of rebuttal he hadn't heard anybody come up with any technical issue that would change his mind into thinking that perhaps DPW had not been prudent in the decision to approve this project. Mr. Huntington stated that he relied on the engineers to make those decisions and said that he was satisfied that they had made those decisions properly. Mr. Huntington said that DPW never explored the legal system in terms of jurisdiction and DPW accepts the authority as the appellant, as it is in the DPW Code. Mr. Huntington said that he thought that someone was protesting because of jurisdiction and said that DPW accepted the BIC's jurisdiction and said that he was proof positive of that. Mr. Huntington said that there was another item about the Structural Advisory Committee and said that it may be that this particular requirement is not applicable because in a way this is public property on a public right-of way. Mr. Huntington stated that he was not present to suggest that this is a reason why the City should not be concerned about the commentary today, to say that it might turn out that this is something that could be included in some way to reject the project that it didn't have review. Mr. Huntington said that he is a very hands on manager in his department and said that he talked with a number of people as he mentioned at the onset of the rebuttal and one of the things that he asked the developer to do was to have one of the persons that stood on the Structural Advisory Committee, Mr. Hom, review the project subsequent to DPW and let DPW know if he had any concerns that were noteworthy. Mr. Huntington stated that the developer did that in the last month and DPW received a copy of that letter. Mr. Huntington said that, having said that, he was not suggesting that the Structural Advisory Committee has sat to review this, but he could say that one of the individuals that is on that committee looked at it and had some minor, minor corrections or suggestions for DPW.

Mr. Michael Phillips for the appellant, Barry Kane, said that he would be brief. Mr. Phillips said that he did not know why it would be cynical for him to visit his knee doctor when he had a knee problem rather than going to the CMA and said that he made this point earlier. Mr. Phillips said that this matter was respectfully submitted before this Commission that has the expertise to determine these issues. Mr. Phillips stated that he noted earlier that any person may appeal this decision under the statute to the Building Inspection Commission and said that his client had done so because he wanted the BIC's independent review of this record, so that the Commission is satisfied and could hear the public comment and the testimony of people and the Public Works Department. Mr. Phillips said that this Commission has the expertise to make these kinds of decisions and his client, who lives in the immediate area, who is a friend of his who he went to high school with trusts Mr. Phillips' judgment to represent him on his behalf today and seeks the BIC's independent review and determination of this matter.

Vice-President Hood said that she had a question about the district of Edgehill Way, which requires the review of the Structural Advisory Committee. Vice-President Hood said that she understood that the SAC reviewed the plans for the house and those plans showed the design for the road and said what she was trying to get clear in her mind is what the requirement of the district is. Vice-President Hood said that she recalled from 1997 setting this up and the issues that were involved in that circumstance and said that she had been up on Edgehill many times. Vice-President Hood stated that she wanted to verify that the technical reviews by the SAC occurred according to the ordinance. Vice-President Hood asked Director Chiu to address this issue.

Director Chiu said that he did not have the Code in front of him, but stated that he did initially sit on the Committee. Director Chiu said that he did not remember that street improvement was part of the requirement that would be imposed by the SAC, as it was his understanding that it would be imposed whenever there was a proposed structure or building enlargement and those were the issues where the SAC would be required to look at the project. Vice-President Hood said that Director Chiu understood that it just applied to private property. Vice-President Hood said that this was really her question, as she wanted to know if it applied to private developments or does it apply to things that occur such as this street, which is a very gray area because it is a private street. Director Chiu asked the City Attorney to speak to this issue.

Ms. Barnes said that this was really a legal question that was being asked and stated that it is the opinion of the City Attorney's Office that this ordinance applies only to structures and buildings within the private property and does not apply to a street widening, public project. Ms. Barnes read the language of the order that said, "it applies either to construction of new buildings or structures or alterations that involve substantial increase in the envelope of an existing building or structure." Ms. Barnes said that the word "structure" is referring to things that happen on the private property, not a retaining wall that might have to do with the street.

Vice-President Hood said that she had a question for Todd Huntington of DPW. Vice-President Hood said that it was a follow-up on Mr. Huntington's statement about John Hom, who is a Structural Engineer on the SAC, reviewing the roadway plan, as it wasn't a full meeting of the SAC, but at least it was a partial peer review. Vice-President Hood asked if Mr. Hom particularly looked at the issue of the shortened tiebacks and whether or not there would be sufficient friction resistance in the stone that was available for them to give the design integrity. Mr. Huntington said that the short answer to that would be that he did not ask that question nor did he have a conversation with John Hom of that nature; however, Mr. Huntington said that from notes that he made before coming to the meeting he could state that on December 6, 2002 DPW originally reviewed and approved the project. Mr. Huntington said that one of the things that DPW's engineer picked up was a concern about those screw, rock anchors so on January 22^nd, Mr. Lewis, the Geotech, sent a letter to DPW stating that the shortening of those anchors may often result in the fact that there would be more anchors necessary, so in other words if there were ten anchors it might now be required that there would be twelve or fifteen if they were shorter. Mr. Huntington said that Mr. Lewis indicated that inasmuch as each one of these anchors must be tested, the true test for the structural integrity of those anchors is based on what they test out at. Mr. Huntington said that Mr. John Kwong, DPW's Engineer was present, but stated that he believed that it was either 1.5 or 1.25. Vice-President Hood asked Mr. Kwong to come forward.

Vice-President Hood said that she was particularly concerned in case the anchors do not achieve the required resistance within the public right-of-way and what is the fall back structure there. Mr. Kwong said that Shure Engineering is the engineering group that designed this retaining wall and the associated tiebacks. Mr. Kwong said that based on their recommendation that should they test the associated tiebacks and if any one of them should fail they would add an additional tieback between the current spacing and again retest to add the additional strength requirements. Vice-President Hood said that this would just be adding more tiebacks. Mr. Kwong said that was correct, as needed. Vice-President Hood asked if when the geological testing was done and the holes were drilled that people could go down and look, did they believe based on that that they were going to hit bedrock within the public right-of-way. Mr. Kwong said that he would have to defer to Shure Engineering because they are the designer of record in this case specifically. Vice-President Hood asked if the Commission could hear from Shure Engineering.

Mr. Carl Chan of Shure Engineering said that he was the Engineer of record for the retaining wall. Vice-President Hood asked if Mr. Chan was a Civil Engineer or what was his expertise. Mr. Chan stated that he was a Structural Engineer. Vice-President Hood said that Mr. Chan reviewed the geological reports that were prepared and asked if his structural engineering was in conformance with the geological recommendations. Mr. Chan said that he wasn't quite sure what the questions was, but said that each tieback, every single one of them, will be tested to 150% of the design load so that is a 50% factor of safety. Mr. Chan stated that the demand on the tieback is like 3,000 lbs. per foot of tieback. Mr. Chan said that he knew that it could be easily achieved with a competent contractor; for example Mr. Chan said that he has observed the testing of tiebacks in a landfill area on the 200 block of Brannan Street and the tiebacks were tested to that demand. Vice-President asked if Mr. Chan was saying that he believed that the Contractor could achieve the design value for the tieback within the public right-of-way. Mr. Chan answered definitely, because the fall back plan is to put in extra tiebacks, but said that he did not expect that this would be needed. Mr. Chan said that he had experience up at Knockash Hill because when the landslide happened a couple of years ago he was retained a Contractor, Granite Excavation and Demolition, to stabilize the round house that was ultimately torn down. Mr. Chan said that he knows that building somewhat because he had seen a plan of that building. Mr. Chan said that one big difference with that building was that it was not supported by drill casing, but was just on spread footing and that is much different that what is proposed on this project. Mr. Chan said that on the major landslide repair, he was the Structural Consultant for Con Shire and has worked with them before.

Commissioner Guinnane said that up on Edgehill when the road collapsed a few years back the City stepped in and put in a retaining wall and rebuilt the road. Commissioner Guinnane asked Mr. Huntington, who took that cost, and was it assessed to the owners by DPW or did the City pick it up. Mr. Huntington said that he did not have first hand knowledge of that. Commissioner Guinnane said that if it was a private road he could not figure out what the Department of Public Works was doing up there preparing the road. Director Chiu said that he did not understand exactly what happened but said that it was his understanding that the City took care of the cost. Director Chiu said that he did not know if this was ultimately billed back to the private property owner. Mr. Jim Keith of Spiers Construction said that Dames and Moore picked up the cost of that, as 90% of the cost was picked up by the engineer who did the work for the road down below.

Commissioner Marks said that in the text it indicated that the street is considered private property and is not public property. Mr. John Kwong of DPW said that the current Edgehill Way is defined as public right-of-way for a 40-foot segment, a public right-of-way, but unaccepted for maintenance and this falls under Article 9 of the Public Works Code. Mr. Kwong said that this Code says that the frontage property owner is responsible to the mid-point of the public right-of-way specifically.

Vice-President Hood said that she wanted to make an overall comment on this and said that it seemed to her that from the review and the testimony of the people who have spoken, and said that she understood the concerns of the neighbors as she had been on that street many times and is very well aware of what it was like when there was the old church down below, but said that everything that has been done here has been done with the utmost attention to the dangers that are involved. Vice-President Hood said that it seemed to her that everything had been done to the best level of engineering available to solve the problems, which are admittedly considerable. Vice-President Hood stated that the other thing that struck her, and this is from driving up there, is that the road is not very stable right now as it looks as if with a very hard rain more of the road would be lost. Vice-President Hood said that she did not think that there was any doubt that when this improvement is made it will be much safer. Vice-President Hood said that it seemed to her that there was a very good plan during construction never to close it off so that vehicles will still be able to go one-way around the hill. Vice-President Hood said that she thought that once this was done it would be a safer situation and said that she thought that DPW had met all of its requirements to go through an adequate process. Vice-President Hood said that it was her opinion that the Commission should uphold the permit and said that she agreed with the condition that the Board of Appeals placed on this project where they didn't just let the developer improve the road right in front of the two lots that he wants to build on, but they made him improve on all of the lots that he has. Vice-President Hood said that she thought that this was very good and went beyond what he would have typically had to do so it is sort of like an additional guarantee of safety by his property. Vice-President Hood said that now that the clarification for the responsibility for the road is made, it says the road in front of the property whether there is a house on it or not, so that makes a lot of sense from that legal description. Vice-President Hood said that her inclination from what has been said is that this permit ought to be upheld.

Commissioner Brown said that he had a question for either Mr. Keith or Mr. Spiers. Commissioner Brown asked what was the width of the road at the point at which the Contractor proposed to widen it to eighteen feet right now. Mr. Keith said that the current road, the length of the improved road in front of the property.... Commissioner Brown interrupted to say that he was not speaking about the length, but was asking about the width. Mr. Keith said that the width of the road, the improved part of the road because the right-of-way is forty foot wide, is only improved to 10 foot wide currently. Mr. Keith stated that for a point of clarification that ten-foot starts at the centerline of the paper road and is back toward Mrs. Alberts so currently the road as defined, just the mid-point of the road as it currently exists now, is the responsibility of the uphill property owner and no responsibility to Spiers Construction. Mr. Keith said that Spiers Construction was actually giving a great benefit to the property owners because they are improving that road to the uphill side where really it is not even their responsibility. Commissioner Brown asked if when the road was going to be widened was it going to be closed for any amount of time. Mr. Keith said that Spiers Construction did not anticipate having to close the road without having routes that traffic could come through. Mr. Keith said that the public right-of-way is forty foot wide even though it is only built out to ten and that leaves a great expanse between the subject property and where the road is constructed. Mr. Keith stated that Spiers Construction planned to do the retaining walls and stage the construction in such a way that vehicles will be able to pass continuously.

President Fillon asked for any further discussion or for a motion.

Vice-President Hood made a motion, seconded by Commissioner Guinnane that the Commission deny the appeal based on the previous comments that she had made.

The Commission voted as follows:

Commissioner Marks No

Commissioner Marks said that when she had gone out to the project on Shotwell Street with Commissioner Santos, Commissioner Santos had commented that if anyone is willing to spend the money anything could be done in terms of structural engineering. Commissioner Marks stated that obviously this is a case that is an example of that, but said that to her there are still so many challenges, even though obviously the property owner is willing to spend the money to move this project forward. Commissioner Marks said that for her there are just too many challenges and questions and said that she did not think that it was worth jeopardizing the safety for the other residents who own the homes there now.

President Fillon Yes

Vice-President Hood Yes

Commissioner Brown Yes

Commissioner Brown said that he was voting yes because of the evidence that was presented at the meeting today.

Commissioner Guinnane Yes

Commissioner Santos Recused

The motion carried by a vote of 4 to 1.

RESOLUTION NO. BIC 012-03

At this time 2:40 p.m. the Commission took a brief recess.

The Commission reconvened at 2:55 p.m.

7. Update, discussion and possible action regarding the Community Action Plan for Seismic Safety (CAPSS). [Assistant Director Amy Lee; Chief Building Inspector Laurence Kornfield, Technical Services Division]

President Fillon announced that one of the staff presenter's daughters was in labor so the Commission would skip to item #7 so that the staff member could do the presentation and leave as soon as possible.

Assistant Director stated that she had written memos to the Commission on February 14^th and February 3^rd. Ms. Lee said that the last time this issue was discussed there was great debate and concern raised by the Commission about whether, in light of DBI's revenue downturn and economic circumstances, the Department should move forward with CAPSS. Ms. Lee said that she did not think that any decision was reached at that BIC meeting however, it was decided that Ms. Lee would continue to review the invoices. Ms. Lee stated that there was a dollar amount cap of $25,000 for the continuation of Phase II and that is why the two memos were written as she felt uncomfortable, not in approving the invoices because Laurence Kornfield had approved the invoices in terms of the programmatic services and she would look at the details of the invoices to make sure that the numbers matched. Ms. Lee reported that some of the costs were justifiable, but stated that she did raise some concerns. Ms. Lee said that she was seeking some direction from the Commission on whether to move forward with the continuation of this program so that she would feel comfortable approving the invoices. Ms. Lee stated that per the contract DBI, absent a thirty day written notice to the vendors, must pay the invoices and continue to incur costs. Ms. Lee reported that she had given oral notice to some of the vendors and had told Laurence Kornfield to give notice to the vendors that given this controversy at the Commission and the Department the vendors might want to slow down their work because of the concerns about cost. Ms. Lee said that DBI had not given written notice to the vendors formally, that the Department might or might not suspend this contract or choose not to use services anymore depending on what is decided. Ms. Lee said that she was asking for the Commission to make a decision so she could give some sort of written notice to the vendors.

Commissioner Guinnane said that he had two quick questions and stated that he was the one that had tried to put the $25,000 limit on this contract for Phase II. Commissioner Guinnane said that now the way things are looking obviously it is a lot more the $25,000 and asked what was the true number. Ms. Lee said that she approved and paid August and September bills in the amounts of $26,263 and $94,000 respectively. Ms. Lee said that she had three invoices that needed to be paid per the contract; November's invoice in the amount of $20,000; October's of $22,900 and one more invoice for $26,000. Commissioner Guinnane asked what was the total. Ms. Lee said that DBI still owed $64,000 and had paid approximately $120,000 so between the time that no decision was made the Department had already incurred $184,000.

Vice-President Hood said that she thought that this project was put on hold. Vice-President Hood requested that the Secretary bring out the minutes from previous meetings, as she understood that the Commission made a motion to put this project on hold and stated that she wanted to review what happened. Ms. Lee said that this was why she felt a little uncomfortable because there was a lot of debate at the Commission, but the only motion that was made was that she would review the invoices. Ms. Lee stated that she did not know what kind of direction that was. Vice-President Hood said that she was at that meeting and stated that she thought that the BIC said that all work on this should stop. Commissioner Guinnane said that he could say unequivocally that he tried to put the $25,000 cap on the project and it was shot down by the Commission. Vice-President Hood said that maybe she wasn't at the meeting. President Fillon said that a few of the Commissioners tried to put the project on hold and it got shot down. Vice-President Hood asked who shot it down. President Fillon answered that it was the Commission. Ms. Lee said that was why she was asking for some direction. Vice-President Hood said that she would move that the Commission immediately stop this contract and allow no more billings under that contract. Commissioner Guinnane said that he would like to hear more public testimony and said that then maybe the Commission could look at temporarily suspending the CAPSS Program until the Commission could get a handle on where DBI is regarding income. Vice-President Hood said that she would rather be more specific because she thought that the Commission was specific the last time and it did not turn out that way. Vice-President Hood stated that she did not want to temporarily suspend, but wanted to suspend the contract. President Fillon said that the Commission should hear public testimony first. Vice-President Hood said that she was just making a motion and the BIC could still hear public testimony on it. Ms. Lee said that she wanted to clarify that in between the last discussion at the BIC meeting and now over $120,000 had been paid and the Department was still obligated to pay another $64,000. Ms. Lee stated that once she reviewed all of the invoices she would be moving forward to pay this $64,000.

Commissioner Guinnane asked if Ms. Lee could emphasize to the BIC where the Department was at today with the surplus because he had been on this issue for months and now all of a sudden this big huge surplus is dwindling down. Commissioner Guinnane said that soon the Department would have an upside down number and the Department of Building Inspection cannot go over and get money from the General Fund. Ms. Lee said that two years ago the Department was looking at $11M in the surplus account along with $10M in deferred credit and a $5M-$7M capital budget account, but now the Department is looking at a $3M surplus. Vice-President Hood asked if the total two years ago was $23M. Ms. Lee said that it had to be looked at as several different accounts because DBI does not have access to the deferred credit account unless DBI earns the monies; some of the projects have been refunded and the Department has not necessarily earned those funds so that is something that cannot be touched. Ms. Lee reported that if anything, the Department has been earning at the pace of $1M-$3M a year from that account. Ms. Lee said that about two years ago the Department had about $11M in the surplus account and now that is down to $3M because the Department has used $3M in the prior fiscal year and $5M for this current fiscal year and it is not yet known how much will be needed to close out this fiscal year. Vice-President Hood said that she felt that this was an emergency and said that for that reason the BIC should not just suspend this contract, but should terminate it and if the Commission wants to start it up again later when times are better, fine, but stated that to her this is the handwriting on the wall and she would stick with her motion. Ms. Lee said that she was just seeking some direction.

President Fillon asked if there was a second to Vice-President Hood's motion. Commissioner Guinnane said that he would like to hear a staff report and get some input from the public, but to be fair to his fellow Commissioner because he has been on this for a long time, he would second the motion.

President Fillon asked if there was any further input from staff. Ms. Zan Turner of Technical Services said that in working with earthquake preparedness she felt that this project is really worthwhile and stated that the Department had not yet reaped the total benefits of it because it is heavily loaded on the rear end. Ms. Turner stated that she would hate to see this dumped after so much effort had been put into it. Ms. Turner said that the risks have been identified and the methodology for moving forward to set Code requirements and repair requirements as required by FEMA post earthquake; the project would establish cost effective mitigation measures that could be recommended to the public. Ms. Turner said that she was aware that there is difficulty with the budget situation, but said that she hoped that the Department could still go forward with this project. Commissioner Guinnane said that about four months ago this item was in front of the Commission and stated that he was led to believe that to wrap up Phase II, which was pretty much done except for a printing issue, would cost about $25,000. Commissioner Guinnane said that he tried to come up with the $25,000 number to cover all of Phase II and asked how this had now gone up from $25,000 to $180,000 if it was only an issue of printing that was left to be done. Ms. Turner said that she was not sure what the status was of the numbers from that point, as she was not privy to those four months ago. Vice-President Hood asked who was privy to that information and who was looking at what these bills were for and saying that the Department was going to pay for them or not. Ms. Lee answered that the normal procedure, and what was happening, was that she was working very closely with Laurence Kornfield and Lou Aurea of his staff who would work with the contractors or vendors to review what they had provided, especially in programmatic issues and the projects that they had submitted, and approve the invoices if the vendor had achieved whatever they should have. Ms. Lee stated that Laurence would then sign off on the payments and then she would review in detail, not so much as whether or not programmatically the vendor had achieved their goals, but more in terms of whether the numbers matched and should DBI be paying for certain things. Ms. Lee said that this is why she was confused as to what the Commissioners wanted her to do. Vice-President Hood asked who was looking at whether or not the intent of the Commission, as was made very clear by Commissioner Guinnane to spend only $25,000, was being done; instead ten times that amount had been spent. Vice-President Hood asked who was looking at that. Ms. Lee reported that nobody was looking at that and that is why she was concerned. Vice-President Hood asked who in the Department should be looking at that, as certainly it should not be Laurence Kornfield, as he wants to do the whole project, so he can't be the only one who approves the expenditures of a quarter of a million dollars.

Commissioner Marks said that the Commissioners should recall that many times Ms. Lee reported that all of the invoices had not been submitted, so Ms. Lee could not really give an accurate picture of what vendors had not submitted their bills. Vice-President Hood asked why Ms. Lee would not know that. Vice-President Hood stated that she had administered contracts for millions of dollars and what she has to do when she submits a bill to the City is to show what services were done for that bill, what percentage was done and this is then reviewed by the Project Manager, who in this case would be Mr. Kornfield, and then reviewed by his boss whoever that might be, and then the accounting people come in and they look at it. Vice-President Hood said that she did not understand where the breakdown was here, but said that she felt that it was occurring many places, not just on this contract. Vice-President Hood said that this was an egregious example because the Department is in financial difficulties and now the Department is looking at a very bad situation. Vice-President Hood said that DBI was very lucky to have this budget surplus that other Departments in the City don't have, so this is really translating into people losing their jobs who are needed to do the work of the Department. Vice-President Hood stated that she was really tired of this happening and said that she was tired of finger pointing and stated that she wanted this to stop. Vice-President Hood said that she wanted to have some sort of double or triple review of these expenditures, not after they are done. Vice-President Hood said that what this sounds like to her is that people are out there running the meter and nobody is watching. Ms. Lee said that she would disagree because at the last Commission meeting the Department did bring it to the attention of the Commission. Commissioner Guinnane said, that to be fair to Ms. Lee and fair to the staff, the Commissioners had a lot of conversation on the CAPSS project and he put the motion forward to put a $25,000 limit on there and the Commission voted it down so a lot of the blame comes back to the Commission and not necessarily to staff. President Fillon said that people came from the AIA and the Structural Engineers and the Commission was swayed by public testimony. Vice-President Hood stated that she is a member of the AIA and said that the AIA was looking at this from their perspective and not looking at it from the perspective of the Commission's responsibility to the citizens of San Francisco and to the more global concerns of being able to enforce the Code. Vice-President Hood said that she did not believe that she was present for that vote. President Fillon said that Vice-President Hood was present for the vote and those issues were raised at that time. Ms. Lee said that was why she was bringing this to the attention of the Commission today. President Fillon said that Vice-President Hood voted it down. Vice-President Hood said that she was drawing a blank and if that were true she would blame herself. Ms. Lee said that she would take responsibility. Vice-President Hood said that there needed to be something that is black and white today because she wanted the spigot turned off.

Commissioner Guinnane said that there was some discussion about a trigger in the contract about terms that had to be met and stated that he thought that there was a thirty-day trigger to terminate the contract. Ms. Lee said that it was a thirty-day written notice and no notice had been given. Commissioner Guinnane asked if the Commission acted on this today and the notice went out today, how much more money would be spent in the next thirty days and how could that be controlled. Ms. Lee said that the bills had not yet been received for January or February. Commissioner Guinnane asked if the letter could say that all spending was to immediately cease. Ms. Lee said that the Department could not do anything retroactively; Commissioner Guinnane said that he was talking about tomorrow. Ms. Lee said that she could write a letter giving a thirty-day notice saying that as of April 5^th the contract would be cancelled. Vice-President Hood said that even if the Department gave a thirty-day notice could the services be stopped as of the date of the notice. Vice-President Hood said that she would like a copy of the termination clause. Ms. Lee said that she did mention before in looking at the contract that all the Department had to do was to give thirty-day notice and this Commission decided not to give that written notice. Vice-President Hood said that she was asking what the notice would say, as many contracts have a thirty-day notice, but the vendor stops working on the project on the day the notice is received and the Department would not finish paying the amounts or there is some penalty for the remaining time of the contract. Vice-President Hood said that she just wanted to know what the notice paragraph says for the conditions of termination. Ms. Lee said that it requires the Department to give thirty days notice to terminate. Vice-President Hood stated that there should still be some control as to how much was being spent, as the vendor could spend the rest of the contract in the thirty-day notice period the way the Department is running this job. Vice-President Hood said that DBI had no concept as the Commissioners were sitting in the meeting today what people are doing for what services. Ms. Lee said that the Department did know what was being done. Vice-President Hood said that one month it was $100,000 and the next month it is $25,000 and said that no one in the Department had their finger on this spending. Ms. Lee said that Laurence Kornfield was in charge of the contract.

Commissioner Guinnane said that there was one way to settle this issue very simply. Commissioner Guinnane stated that the contract had X amount of dollars and there is X amount spent to date and asked what the difference was between the two. Vice-President Hood said that the Department had no idea what that amount was. Ms. Lee said that Laurence Kornfield was not present and stated that Mr. Kornfield had all of the figures. Commissioner Guinnane said that he thought that it was somewhere around $600,000 and $430,000 was spent when this item was last discussed and this is why he tried to put a cap on it. Vice-President Hood said that $160,000 had been spent in the meantime so the contract is actually over the budgeted amount. President Fillon said that this should be agendized as a special item to look into where the money went and how it was spent.

President Fillon said that the Commission had a motion in front of them to terminate this contract. Vice-President Hood said that she wanted the contract to be terminated as quickly as legally possible and if the amount is over she wanted the people who are responsible for that overage to be responsible for paying the amount, not the people of San Francisco. President Fillon asked for any public comment.

Mr. Joe O'Donoghue of The Residential Builders Association said that it has been brought to the attention of the Commission that DBI is in a total budget crisis and employees are going to be laid off. Mr. O'Donoghue stated that he was shocked that the unions were not present at the meeting to speak on this matter. Mr. O'Donoghue said that he used to be associated with the unions and that is why he always speaks on those issues. Mr. O'Donoghue said that layoffs are impending so therefore with arcane studies such as this, expenditures have to be halted. Mr. O'Donoghue stated that he agreed with Commissioner Hood that DBI should cease this contract because much of the data that the Department is going to be provided with is already available in the Planning Department. Mr. O'Donoghue said that prior to the Loma Prieta earthquake he remembered Art Agnos' Chief of Staff coming to him and asking how many people were in the research department of his organization because they took from the Planning documents all of the seismic problems based on the earthquake that happened in Mexico City. Mr. O'Donoghue said that the earthquake happened one hundred or two hundred miles away from Mexico City before the buzzwords became true. Mr. O'Donoghue said that all the Department would be getting from this study is data that will tell how many buildings are in various stages of danger and when FEMA came into the Marina at the time of the Loma Prieta earthquake they did an extensive, exhaustive advertising about what should be done regarding tie downs and graded the buildings. Mr. O'Donoghue said that this study was coming back with the same information. Mr. O'Donoghue stated that there was a time when the Department had money, but now the surplus has gone down from $11M to $3M, and the Mayor's Office including the Board of Supervisors are looking to lift that $3M that DBI has in its funds. Mr. O'Donoghue said that Supervisor Jake McGoldrick is looking for a way to borrow that money and if it can't be borrowed is looking at other ways to get it, so this Department, which has been very efficiently run compared with other Departments, is going to be punished for its efficiency. Mr. O'Donoghue said that now the Department needs to cut out any deficiencies or any largesse's that were given out in the past because if he had to decide about holding an employee in their job or giving it out to some subcontractor in the private sector, of which he is a member, he would want to hold the employee in their job and that is what the issue is coming down to. Mr. O'Donoghue said that he thought that Ms. Lee could put into the letter the fact that, while the Department might not have the legal right to do it, there should be a clause or a phone call to the vendor saying that unless the vendor really has something happening out there, a cap should be put on it voluntarily.

Vice-President Hood said that it appears that the contract amount has already been exceeded so those people should have to eat the rest of it and still have to produce the product. Ms. Lee said absolutely and stated that orally she informed staff as well as the vendors that the Department wanted them to halt spending. Vice-President Hood said that part of this was Ms. Lee's responsibility because there has to be a balance sheet for the whole contract. Ms. Lee said that the Department did have that information. President Fillon said that there were a couple of more members of the public that wished to speak.

Mr. O'Donoghue said that in conclusion he wanted to say that the Department has a work in progress contract and by calling cessation to it today it does not mean that the Department has lost the product. Mr. O'Donoghue stated that DBI had the product up to the point of full payment so therefore, if the Department should decide in the future to start up again the research and data is available so nothing is lost by cessation.

Vice-President Hood said that she knew that there was a long presentation, but her understanding was that the written report had not been made by the vendor.

Mr. Chris Rojahn introduced himself as the Executive Director of Applied Technology Council, the prime contractor on this contract. Mr. Rojahn said that he wanted to shed some light on where the project stands financially and said that he thought this would make the Commission feel better because there is some information that has been given that was incorrect. Mr. Rojahn said that it was unfortunate that Laurence Kornfield was not present because he has the information. Mr. Rojahn stated that he was at the BIC in December when the Commission was making some decisions about the total number and the estimate at that time to finish the Impact Assessment was up to $430,000. Mr. Rojahn stated that as of the end of December $417,000 had been billed; the invoices that Ms. Lee was talking about were six months old and they were finally getting paid. Mr. Rojahn said that as of the end of January, Applied Technology had billed for a total of $419,000 and they had cut way back because the January invoice was actually $2,200. Mr. Rojahn stated that the December invoice was about $18,600 so the current spending at the end of January Applied Technology had actually billed the City for $419,000 thru the end of January. Commissioner Guinnane asked where the billing was through the end of February. Mr. Rojahn said that he did not know the answer to that. Commissioner Guinnane asked Mr. Rojahn to give him an estimate. Mr. Rojahn stated that he would guess around $430,000 and said that he had projected out until the end of March. Mr. Rojahn said that his company was waiting for a volunteer committee to give feedback. Mr. Rojahn said that he felt that they would finish at the end of March and his estimate of the total expenditure would be $437,000 and the contract amount is $634,000. Mr. Rojahn stated that this was the exact data on the invoicing. Vice-President Hood said that the Commission did not have anything in writing to show this and the story keeps changing. Vice-President Hood said that she appreciated Mr. Rojahn clarifying the invoices, but said that it would be really important for DBI's Accounting Department to have the same information and said that the notice should include that whatever phase the project was on that stopped at $430,000 should be the shutoff. Vice-President Hood stated that if the $430,000 is what has been spent the BIC has not had a chance to review the product from that phase, etc. etc. and the Department is giving the notice now that this phase will be the end of it. Vice-President Hood stated that when the Department gets the product and it is reviewed, at some future date when the City is flush again and the economy improves, DBI might start the project again. Vice-President Hood said that if there is not anything that is not clear about this and if she needed to amend the motion to make this clear she just wanted to know who was going to be responsible for transmitting the information to the vendor so it is clear. Vice-President Hood said that she appreciated Mr. Rojahn speaking up to let the Commission know the economic situation because it gives clarity as to what the motion needs to be. President Fillon asked Vice-President Hood to please allow Mr. Rojahn his three minutes of public comment without interruption.

Mr. Rojahn held up a summary that Applied Technology was preparing for the public that was going through a Project Advisory Committee review and stated that there are some very interesting and unexpected results in that effort. Mr. Rojahn stated that he did not want to pass the summary out yet because the numbers were still being scrutinized, but said that one of the unexpected results or the high numbers of expected losses was in dwellings for the Sunset and Excelsior regions, which was a total surprise to the Committee. Mr. Rojahn said that this was a reflection of state of the art modeling and the inventory that was done, so the project is producing some really important information that he thought would be very important to public safety eventually. Vice-President Hood said that she wanted to ask, as a matter of information, if this is a document that is being prepared for the public and the Commission has not seen it yet, what is the relationship between the client which is the Department and the Commission and documents that are going out to the public. Vice-President Hood said that she would like whoever is monitoring that to get up and address the subject. Ms. Lee said that unfortunately the person who is in charge of this is Laurence Kornfield and he was not present today. Ms. Lee said that she wanted to clarify that in terms of project summaries, guidelines, time frames and project plans, it is being done by DBI as Laurence Kornfield has been working closely with the various vendors in monitoring the project and making sure that the invoices are appropriate and this is reviewed by his Supervisor. Vice-President Hood asked who was Mr. Kornfield's Supervisor. Ms. Lee said that William Wong is the Deputy Director of Permit Services. Vice-President Hood asked if Mr. Wong was present to speak to this issue. President Fillon asked if there was any further public comment on this issue and on the motion.

Ms. Janan New of the San Francisco Apartment Association said that she was a volunteer on the Citizen's Committee that had been referred to and said that she was alarmed to see this item agendized for today's meeting. Ms. New stated that she did not know where the Commission or the Department was going with this because she received the draft report that is being referred to about a week ago and said that she had a brief chance to look at it, but certainly had not had a chance to weigh in or pass it around to let some experts look at it. Ms. New said that this was going to impact the rental/housing industry tremendously on the landlord and the tenant side. Ms. New said this is what she came to the meeting to speak about and to ask for a slowing down of the process so she could absorb and look at this first phase. Ms. New stated that after coming to the meeting she was absolutely shocked that this amount of money has been spent on this project, so she would highly agree with a couple of citizens that had spoken that in light of the current budget crisis the Department should perhaps stop the project until the City and the community is better funded. Ms. New stated that is was hard for her to believe that she had been volunteering her time in these meetings for about a year and said that perhaps she was in the wrong business in looking at the amount of money that was being billed. Ms. New thanked the Commission for their time.

President Fillon asked if there was any further public comment. Vice-President Hood said that she still had a few questions. Commissioner Marks said that she had a few comments to make and said that Vice-President Hood had dominated the conversation so she would like to go first. Commissioner Marks said that she was not at the meeting in December when the Commission voted not to stop the program. Commissioner Marks said that it was her understanding that the issue was that the vendor had gathered this data and when there is an earthquake the Department is now at a phase, because this data is available that was never available before, where the Department can come up with recommendations to mitigate potential losses that the City knows are going to happen. Commissioner Marks said that for her, the idea of totally shutting down this project is totally unconscionable considering the status of the project. Commissioner Marks said it was like paying money to go and get a diagnosis for a medical problem and then saying you don't have the $.50 to pay for the pills so therefore, even though a person might have cancer or some terminal disease they can't afford the treatment. Commissioner Marks said that this is why, fortunately, people voted not to stop the project in December. Commissioner Marks said that she could not understand why all of a sudden Vice-President Hood doesn't remember what happened. Vice-President Hood said that she was going to get copies of the notes because she remembered at the original discussion people at the Commission expressed their concerns and then it was continued to another meeting. Vice-President Hood said that what the Commission found, from somebody not in DBI but from outside, is that they are approaching the end of the$430,000 Phase of the $600,000 that will provide a document. Vice-President Hood said that she was suggesting to stop at this phase, review what the Department has and move on from there. Vice-President Hood said that she would also like to get a copy of the draft that has been circulated to the Committee and said that she would like to be more involved in this process. Vice-President Hood said that apparently there was also a draft of the announcement to the public and said that she would agree that this was very important and said that she was not saying to stop this information from being developed, but a lot of this information really was available elsewhere. Vice-President Hood stated the amount of money that it has taken to put together sources that were available elsewhere is very large and that is what was concerning her. Vice-President Hood said that she was not saying that this did not need to be done, but was saying that this Department doesn't have the money to fund it any further than the $430,000 that has been spent. Commissioner Marks said that she wanted to point out that she was on the Commission when this project was first presented to the BIC as a concept and so was Vice-President Hood and all of the Commissioners gave the go ahead for this project because the information was not available. Commissioner Marks said that now all of a sudden Vice-President Hood was saying that this information was available elsewhere and Commissioner Marks said that she would doubt that. Vice-President Hood said that at the time the way the project was presented it might have seemed like the information was not available, but the more she learned about the project the more she realized that a lot of it is duplicating other efforts. Vice-President Hood said that at the time the project was approved DBI had a $14M surplus and had the money. Vice-President Hood said that to use Commissioner Marks' example, if someone is diagnosed with something, but it costs more than insurance or anybody will pay for maybe treatment has to stop and the person has to hope for some other less expensive way of solving the problems that come along. Vice-President Hood said that the Department does not have unlimited funds and the Commissioner has to be realistic about this.

Deputy Director Amy Lee said that just because she was not able to provide the information does not mean that DBI and staff did not have the information because as she mentioned Laurence Kornfield was working very closely with these groups and had all this information as well as providing it to his Supervisors. Ms. Lee said that she just wanted to clarify that staff was monitoring this project.

President Fillon said that he would like to have this issue agendized for a future meeting so the Commission could get a full report on how the money was spent, what invoices came in, what sub-contractor or consultant they came from so the Commission could see exactly what had happened in the last few months.

Commissioner Santos asked if the report that had been talked about by the citizen, who happens to be one of the prime contractors, was available. Ms. Lee said that it had been given to Laurence Kornfield, the Director and herself and the Permit Services Director has worked with Laurence Kornfield as well as his Supervisor. Ms. Lee stated that the Department did have some reports, but it is just not officially issued. Ms. Lee said that she believed that copies had been given to the Commission. Secretary Aherne said that it was a thick book that all of the Commissioners received. Vice-President Hood asked if it was the white book that was being referred to and said that she believed that she had received it, but said that it sounded like there was a more recent edition. Vice-President Hood asked if it was the one that the vendor representative referred to. Ms. Lee said no. Vice-President Hood said that was the one she wanted a copy of, the draft of Phase II. Ms. Lee said that the Commission had all of this information. Vice-President Hood said that she wanted to see a copy of the pamphlet as the Commission had trouble with this sort of thing in the past. President Fillon thanked Assistant Director Lee and said that there was a motion before the Commission.

Commissioner Guinnane said that if the Commission went back and looked at the minutes regarding the spending he had asked numerous times for copies of all of the billings, the individuals involved who are actually getting the money and copies of all of the contracts. President Fillon said that he was talking about having this on the agenda as an item, but said that he thought that the Commission had enough information to vote on this now.

Commissioner Brown said that he wanted a point of clarification and asked if the Commission was voting to have this project suspended at the end of this phase because it appears that this phase is almost completed. Vice-President Hood said that this is what her motion is amended to. President Fillon said that he had problems with that because of bills that might be submitted in the meantime. Commissioner Guinnane said that Vice-President Hood's motion was to suspend it effective immediately, give the thirty-day notice and if at all possible to suspend all work tomorrow so as not to incur any billings. Commissioner Guinnane said that this would mean not to wrap up Phase II, but to stop it right now temporarily until the Commission has a handle on the spending effective immediately. Commissioner Santos asked if it was Commissioner Hood's intention not to complete Phase II. Vice-President Hood said that what she heard from very kind gentleman who reported to the Commission and what she would presume to be the truth about what is going on, that the vendor had effectively until today spent about $430,000 through the end of February. Vice-President Hood said that she would presume that the spending was not much beyond the $430,000 until today's date and that figure was also conterminously what the current phase is so what she would like to amend her motion to is to say that Phase II will be wrapped up with the maximum amount of spending to be $430,000 and give the thirty day notice that the contract will end thirty days from now, but in the meantime no further work will occur because the Commission will be reviewing the output of the $430,000 phase. Commissioner Guinnane said that this motion would be contradictory because Vice-President Hood was saying to wrap up Phase II, which is completed as there is a draft out there with the final number for February being $430,000 and that is saying two things. Commissioner Guinnane said that it should either be wrap it up and take whatever it takes to complete the final declaration or stop right now with the draft and don't go any further until the Commission can look at the project. Vice-President Hood said that Mr. Rohajn was saying that as of the end of February 2003, $430,000 has been spent and that was five days ago. Vice-President Hood said that the $430,000 was to buy the current phase including whatever wrapping up or publication or whatever as that was the maximum amount for that phase. Commissioner Guinnane said that was totally wrong. Vice-President Hood stated that this is not what Mr. Rohajn said. Commissioner Guinnane said that Mr. Rohajn said that the total amount of the contract was $630,000. Vice-President Hood asked Mr. Rohajn to come up and clarify the matter. Commissioner Guinnane said that there was still $200,000+ left and this is why he tried to put the $25,0000 number on it to finish up Phase II. Vice-President Hood said that Mr. Rohajn was saying that Phase II has already been done and it was finished by February 28^th. Vice-President Hood said that the Commission already had a contractual milestone at which to stop. Vice-President Hood said that the draft had been done for the $430,000, the Commission would stop the project and give a thirty-day notice, but during the thirty days the Commission would be reviewing that draft so no further work would be done. President Fillon asked what was the difference between that and saying just shut off the faucet now. Commissioner Guinnane said that Vice-President Hood is saying to finalize Phase II for the final document. Vice-President Hood said that if the Phase II work is not complete, the vendor has to complete it and said that the Commission would review the draft, make sure it covered the scope of services and if there are any comments that the Commission would like to have included those would have to be done and this would give some time for that final review.

Secretary Aherne said that she wanted to remind the Commission that at the previous meeting it was mentioned that printing was not included in the contract and that is why Commissioner Guinnane came up with the $25,000 because it was not part of the $430,000. Vice-President Hood said that the gentleman already said that this money has been spent for other things and hasn't been spent for printing. Mr. Rohajn said that was correct, no money has been spent for printing. Vice-President Hood said that the budget has been exhausted and she wanted the project to stop and enough copies could be made for the Commission to review the product of that phase and somebody other than Mr. Kornfield should be looking at that to see where the Department stands. Vice-President Hood stated that she did not want to authorize $25,000 to print something that may not meet the scope of services of the contract. Commissioner Guinnane said that he wanted to clarify that Vice-President Hood was saying that effective today Amy Lee or the Director would give the vendor a thirty-day notice to terminate the contract and all work is to cease effective tomorrow and the draft is out there with no other work to be done. Commissioner Guinnane said that there was a number of $430,000 and assuming that there were only five days for the month of March that should come out to another $3,000 or $4,000 so it should not go over $433,000 which would be the drop dead number. Ms. Lee said that she would reread the contract, but just because the invoices were submitted and were paid on the reliance from Laurence that he saw the products and was satisfied with them, the Department still had the discretion of reviewing the work that was done within those invoices that Mr. Rohajn was talking about up to $400,000. Ms. Lee stated that she was not saying that the money was completely gone as she would look at the contract again and review them with the City Attorney, but if someone does not provide satisfactory service the Department does not have to pay the invoice just because there is a contract. Vice-President Hood said that the $430,000 was to purchase a certain scope of services in the contract and before the Department would pay all of those it would be like a 10% hold back. Vice-President Hood said that the Department should make sure that it got everything that was in the contract. Ms. Lee said that information could be reviewed by not only Laurence and his Supervisor, but this Commission as well who could then direct Ms. Lee to pay the invoices individually each month. Commissioner Santos asked if the wrapping up process would cost the Department anything. Ms. Lee answered that it should not cost the Department anything because everything has either been billed or the expense has been incurred already.

Mr. Rohajn said that Applied Technology were the only people who submitted a bill as all of the other subcontractors report and bill Applied Technology and they in turn bill the City of San Francisco so there is only one group that the City is dealing with. Mr. Rohajn said that his company goes through extensive audits every year by the Federal Government because they do about $2M - $3M of federally funded work a year, so the books are very tight. Mr. Rohajn stated that he wanted to repeat his estimate because Applied Technology had not done any invoicing for February yet. Mr. Rohajn said that he was estimating $430,194 and said that what Applied Technology was waiting for and the reason the BIC did not have a final draft was the volunteer, Blue Ribbon Committee, of the Structural Engineers Association of California who are volunteers, to give a decision on their professional opinion on three issues. Mr. Rohajn said that he was trying to set up a meeting today with that group within the next two weeks and when the group gives their decision then the report will be finalized. Mr. Rohajn said that his estimate of the final cost to give a final report that is in excellent shape and in their opinion publishable is $430,000 assuming that it is finished by the end of March. Mr. Rohajn said that he thought that this was a number that Applied Technology could stand by. Vice-President Hood asked what the contract said to get to that benchmark. Ms. Lee said that she believed that the contract required a certain amount of deliverables for the different phases. Mr. Rohajn reported that there were two primary tests of the contract, one is the impact analysis and one is developing guidelines for the repair of damaged buildings of which 25% of the work has been done on that effort. Mr. Rohajn said that the contract includes management of the project and quality control and that kind of thing that encompasses the entire project. Mr. Rohajn said that there is a budget that was turned over to the City originally which the billings are in accordance with and includes Task I, which is Project Management Quality Control and Work Plan Development, and Task II, which is the Impact Assessment and Task III Guidelines for the Repair Effort. Mr. Rohajn said that there were budgets for each of those tasks and said that this is looked at each month to see where the project is with respect to the budget and estimate, where they should have been today versus where they are with the project and said that this is all very tightly controlled. Mr. Rohajn stated that Applied Technology is totally, at this point in time, consistent on a pro-rated basis with the total contract and the total contract time period.

Commissioner Brown asked if Applied Technology was three potential edits away from completion of Phase II. Mr. Rohajn said that Applied Technology was going to ask the volunteer advisory committee, which has the Building Inspection Department's permission to review this document, to go through another review of what Applied Technology gives them and calls the draft document and then based on that input will finalize the document. Mr. Rohajn stated that this is not usually a very lengthy process and said that the committee has been looking over Applied Technology's shoulder for the past year and a half so there should not be any big surprises. Commissioner Brown asked if that was going to cost $6,000. Mr. Rohajn said that he was estimating that amount, as there is a lot of production work to be done. Vice-President Hood asked what the contract said the amount would be to get to that point and asked if there were reimbursables like printing that are not included. Vice-President Hood said that she did not understand why the Department does not know what the end of that phase is and asked if it was $437,000 or $430,000. Ms. Lee said that it was set out, but stated that she did not have the information handy. Ms. Lee stated that William Wong or Laurence Kornfield would have that information. Vice-President Hood asked if Zan Turner or William Wong were present at the meeting. Ms. Turner stated that she did not have the information. Deputy Director Wong said that he did not have the binder with him, but said that he could certainly review that information. Commissioner Marks said that she had the binder with her. Vice-President Hood asked if Mr. Wong could look at the binder to find the information about the amount. Commissioner Marks said that the CAPSS billing was included in the binder that had been given to all of the Commissioners. Ms. Lee said that she had written a memo on February 3, 2003 to the Commission, the Director and the Finance Manager, and primarily to Laurence Kornfield on some of the issues that she saw in reviewing the invoices as she felt that some of the items that were charged to DBI were inappropriate. Ms. Lee stated that Laurence Kornfield, as the Program Manager, signed off on this invoice first and then she wrote a memo saying that if Mr. Kornfield felt comfortable signing off on it, then that was fine, but there were still some concerns raised. Ms. Lee said that some of the invoices were general, for example, there were professional services for Task II and that was all that was listed with $3,500 charged for those services. Ms. Lee said that she felt uncomfortable because of the general delineation in the invoices and noticed that DBI was billed for cellular phone bills between two offices of ATC west and east coast locations and DBI was also charged for e-mails that were sent out. Vice-President Hood asked if DBI could just reject those items. Ms. Lee said that this is what she thought the Department should do. Vice-President Hood said that she saw this as Ms. Lee's role because if there is not enough information or a description to tell if an item is agreeing with the contract, then the Department should reject the bill. Ms. Lee said that she was not charged, to review in terms of the project regarding reports and programs, as she was just charged with this responsibility at the very end and since the Commission charged her with that responsibility she was happy to be doing that now. Ms. Lee said that she has been doing this with all of the invoices, but prior to that she was not charged with that responsibility. Ms. Lee said that she believed that her staff was reviewing it; both Laurence and his Supervisor as well so now that the Department knows what the BIC is looking for all of the invoices could be brought before the Commission with all of the issues highlighted.

Commissioner Guinnane said that there was a motion to be voted on. President Fillon said that he would like the motion to be simplified because there had been so much discussion on this item. Commissioner Guinnane said that he wanted to pull back his second on the motion and keep it very simple. Commission Guinnane stated that he wanted to put a motion forward to suspend the contract, effective immediately, give a thirty-day notice today and for all work to completely cease effective tomorrow and then it could be brought back to the Commission to look at it down the road. Vice-President Hood said that she would second that motion.

Commissioner Brown said that he thought that this motion made more sense because suspending versus termination is better. Commissioner Brown stated that the one key component that the Commission is missing is Laurence Kornfield. Commissioner Brown said that he felt that the Commission needed to ask Mr. Kornfield questions about this contract before there is any decision to terminate and suspension is a very good way to do this.

Commissioner Marks said that the other thing that the Commission really had to look at is that people are talking about when times get better and said that she thought that it was going to be at least a year before times get better and wanted to know if the information that has been gathered is then going to become basically unusable if the Department waits one or two years. Commission Marks asked how long this information would be valid. Ms. Lee said that this is why she thought that Commissioner Brown made an excellent point because she felt that it was really important for the Project Manager who has been monitoring these activities day to day, and reviewing the reports to give recommendations on his perspective on this project. Vice-President Hood asked what suspend meant to Ms. Lee. Ms. Lee said that it meant that the Department was going to end the contract until further notice. Vice-President Hood asked if this meant that no more money would be billed after that date. Ms. Lee said that was correct. Ms. Lee said that by suspending the contract she felt that it would open the door for more careful review and discussion with Laurence Kornfield and the vendors. Vice-President Hood asked if the contract allowed for suspension, as there was usually a penalty for termination. Ms. Lee said that she believed that there was always language for termination. President Fillon said that this came up at a previous meeting. Ms. Lee said that the City is really careful about the way that contracts are drafted regarding termination or suspension. President Fillon asked if Vice-President Hood was now withdrawing her original motion. Vice-President Hood said that was correct.

Ms. Lee said that she had a copy of the contract and stated that the Commissioners had all been given copies of the contract. Ms. Lee stated that in Section 21, one of the subsections dealt with termination and stated that upon notice, etc. etc. halting the performance of all services or other work under this agreement on the dates and in the manner specified by the City, so the Department did have that option.

President Fillon asked for a roll call on the motion. The Commission voted as follows:

Commissioner Marks Yes

Commissioner Santos Yes

President Fillon Yes

Vice-President Hood Yes

Commissioner Guinnane Yes

Commissioner Brown Yes

The motion carried unanimously.

5. Update on Litigation Committee Meetings. [Commissioners Brown, Guinnane & Santos]

Commissioner Santos said that Commissioner Guinnane was not present at the last Litigation Committee meeting, but stated that the Committee was presented with some favorable news about two settlements of a fairly large amount. Commissioner Santos said that there was a pending notification regarding another settlement that the City Attorney's Office will keep the Committee informed about. Commissioner Santos said that the meeting was a very successful one because of the news that was presented of the large amount of money that was awarded to DBI and said that the City Attorney's Office made a pledge to send the corresponding amount of money to the DBI funds as soon as possible. Commissioner Brown said that some of that money could be used for Phase III (of the CAPSS Program).

6. Update on MIS Committee Meetings. [President Fillon & Commissioner Guinnane]

Commissioner Guinnane said that the Committee met with Director Chiu and was trying to get a handle on the MIS as it seems to be a big problem, a problem that has been plaguing DBI for years. Commissioner Guinnane stated that he felt that finally there was going to be some time and effort put into the MIS as there is a new Acting Manger in place. Vice-President Hood asked who that was. Commissioner Guinnane stated that the Acting Manager's name was Sukh replacing Marcus Armstrong until the outcome of whatever charges there are pending against Mr. Armstrong. Commissioner Guinnane said that right now the Committee was trying to come up with a plan for the future, not for just six months or one year down the road, but a plan for five or ten years down the road because of the growth of DBI and the City. Commissioner Guinnane said that he wanted to try to get some good software in the Department and stuff that would be very compatible. Commissioner Guinnane stated that he wanted to look at companies that might give DBI free software in order to get the licensing. Commissioner Guinnane said that right now the Department was not spending any money until it could figure out where to move ahead and then the Committee would come back with a plan to the Commission.

Director Chiu said that he wanted to thank President Fillon and Commissioner Guinnane for their valuable time and support in making sure that from here on in the Department will have Committee discussion and approval. Director Chiu said that the Committee did discuss the two phases that had not gotten completed. Director Chiu stated that under the contract with GCSI, as of today DBI had only received one portion of the three portions that was paid for. Director Chiu said that it was important for DBI to continue with the remaining portions, which was the bar coding system to eliminate misplaced plans, and the application merge project, which were not completed. Director Chiu said that the Committee agreed to move forward to at least find a way to complete those two portions, but the Committee also agreed that before anything was done staff would continue to work with the Committee and then the Committee would report back to the Commission. Director Chiu said that to move forward with these two projects, the Department has to start from ground zero, meaning that the Department has to go through the RFP process and would have to make sure that any payments and all those things would have to be properly reviewed to make sure everything is in a contract before it is approved. Director Chiu said that right now he and Sukh have been trying to put a package together to move on with these two items, but DBI would not be moving on with any new projects until the Committee gave approval.

Director Chiu said that at the meeting he gave the status of DBI's online permitting. Director Chiu said that the Commission was aware that two years ago the Department had implemented online permitting, but that contract expired. Director Chiu said that DBI had the online permitting for plumbing, electrical and some simple permit, but without any cost to the City because the developer came in and hoped to make some money on the surcharge cost and that trial period was ended, so now the City is working with a new developer. Director Chiu stated that this was not under DBI's lead, but DTIS is taking a lead in trying to get this implemented again. Director Chiu said that at this point, he and Sukh were reviewing that project as DTIS wanted to launch this in December and Sukh was not happy with what was in the content and stopped the project from moving forward. Director Chiu reported that DBI did not have any control over that project as DTIS just took some of the money that was allocated for another project and ran with the project and are doing this for DBI, but again DBI is monitoring the project to make sure that all of the bells and whistles are in place. Director Chiu said that this was being monitored to make sure that it was correct before it was given to the public. Director Chiu stated that the reason he brought this up was because according to the paper the online permitting went south because of something that happened and that was not the case; it just got terminated because the previous developer was no longer able to provide the service.

8. Review of comparison table prepared by DBI staff regarding Unlawful Residential Demolition Requirements versus the proposed Major Exterior Alteration Ordinance. [Deputy Director William Wong]

Deputy Director Wong said that the Commission had in front of them a comparison chart that was requested by Vice-President Hood at the last meeting. Mr. Wong reported that the left hand side of the report showed the current Code requirements, the middle column showed the text of the new proposal and then the third column was the comparison. Mr. Wong said that for ease of identification he had asked staff to put the text of the proposed ordinance in bold text and asked the Commission to take a look at those areas to see what the major impacts would be. Mr. Wong said that he wanted to report that the Code Advisory Committee did review the chart at their January 15, 2003 meeting and said that he had some handwritten notes from that meeting with recommendations that he would read into the record. Mr. Wong stated that the Code Advisory Committee and the Administrative General Design Subcommittee considered the proposed revisions to the Unlawful Residential Demolition Code in San Francisco Section 103 and basically supported this unanimously with some comments and recommendations. Mr. Wong proceeded to read the comments and recommendations. Mr. Wong said that the first one was to clarify the Section Title to reflect the content and to make it clear that the provisions apply only to residential buildings so it would not involve commercial buildings. Mr. Wong stated that the second comment was to confirm that the new Code requirements included submitted drawings of existing and proposed conditions. Mr. Wong said that the Code Advisory Committee noted that it might be hard to microfilm the required photographs so their recommendation would be for DBI to have the hard line drawing with dimensions. Mr. Wong said that the third recommendation was to confirm that the new Code requirements would include exterior elevations because in the past this has been lax so the Committee wants more specific information about the elevations and also would require that they were fully dimensioned. Mr. Wong said that the fourth comment was to replace the language where there was a pre-inspection requirement, not just having the District Building Inspector to do it, but leaving it more general to allow any qualified DBI personnel to perform the inspection. Mr. Wong said that the person doing the pre-inspection would be able to verify the existing site condition as this is a new requirement that this proposed ordinance is asking for. Mr. Wong said that the fifth comment was to include in the development of the required Administrative Bulletin issues related to requiring notices to other departments responsible for notification. Vice-President Hood asked if it would be possible for the Commission to get a copy of Mr. Wong's notes so that the secretary could fax them to the Commission as they were quite long and it was difficult for the Commission to follow. Vice-President Hood said that this would be very helpful. Mr. Wong said that he would have the notes typed up. Mr. Wong stated that on the same item the Code Advisory Committee wanted clear guidance as to what constitutes the removal of walls, which is still kind of vague. Mr. Wong said that the sixth comment was to replace the language in the Planning Code from issuance of the Certificate of Completion to final approval of the project. Mr. Wong said that the final comment was to remove the word "unlawful" from the title in that particular section.

Mr. Wong said that these were the comments from the Code Advisory Committee and stated that he reviewed the proposal with staff and said that he wanted to go through some items quickly. Mr. Wong referred to page one of the comparison chart and said the Code Advisory Committee wanted to explain the definition of demolition a little bit better and a new definition was included for Major Exterior Alteration. Mr. Wong said that the new definition said, "A Major Exterior Alteration means the removal of 75% or more of the exterior walls of a building or 50% or more of the building facade facing the street." Mr. Wong said that this was a change from what was proposed before, as it previously stated "principle portion" and that was always interpreted to be 2/3 or more. Mr. Wong said that in looking at this, staff wanted to first of all give notification to the neighbors so that they know what the existing conditions are and what the final product is going to be. Mr. Wong stated that the staff felt that by putting 75% or 50% really didn't improve over the principle portion idea because if a builder is replacing less than 75% then technically the builder is not into a major exterior alteration. Mr. Wong said that someone could come in at 74.9% so they would not have to go through the notification or all of these special requirements, but the problem is out in the field when the builder starts to tear things down and discovers that three more studs have to be removed. Mr. Wong said that by replacing those three studs it would take the project over the 75% and asked what would happen at that point, does this trigger the whole thing and the project has to stop with the builder going back to Phase I and submit all the additional requirements. Mr. Wong said that staff felt that this was just going back to where this was before and thought that it would be better if someone was coming in with some major exterior alteration that could be defined by saying that there is a vertical or horizontal addition. Mr. Wong said this would be categorized as a major exterior alteration and the process would begin. Mr. Wong said that when the builder goes to construction he would not have to worry about taking out those two or three studs that might kick him over the percentage. Mr. Wong said that staff had the same issues with the 50%. Mr. Wong said that there was no clear explanation as to how to calculate the 75% or the 50% and there was concern about how much more staff time would be used. Mr. Wong stated that the Department would also be requiring additional information from the designers; this is not an exact science and on the plans at such a small scale one could say that they have 74% and this is kind of vague. Mr. Wong said that enforcement of this proposal would be very difficult and said that he wanted to emphasize that point.

Commissioner Marks said that the direction from the Commission was not just to do a comparison, but also to have a category of what the Department recommends for this legislation. Commissioner Marks said that as an example, one of the things that she remembered being discussed was that Director Chiu said that the whole issue of vertical and horizontal would not be included as a major alteration even though the affect of it is a major alteration. Commissioner Marks stated that this was an example of where the Department should give various suggestions on how this legislation could be improved.

Vice-President Hood said that to follow up on what Commissioner Marks was saying after having listened to so much public testimony 75% could be overwhelming to a neighbor and could seem like a demolition. Vice-President Hood said that the issue was that the neighbors wanted to know what was going to happen and in getting into the two or three foot horizontal or vertical extension, sometimes that two or three feet might be upsetting to a neighbor. Vice-President Hood stated that the idea was to put some specific number on this so that it would trigger the notice, but would not be reliant on whether the builder found two rotted studs or not because that was sort of irrelevant to what the neighbors cared about. Vice-President Hood said that the neighbors cared about what was going to happen. Mr. Wong said that the reason he brought up this point was because of reports that he gets back from the field that those are exactly the problems that are occurring. Mr. Wong said that the plans that are approved even under the old Code section are not an unlawful demolition by definition, but what happens when the Inspector goes out into the field is that there is more stuff being torn down so once that trigger mark goes over this principle portion thing then that is when the problems come up and neighbors get upset. Mr. Wong stated that still in looking at from getting to point a to point b the objective is to find out what point b is because the Department does not really care how the builder gets from point a to point b. Mr. Wong said that staff felt that enforcement would be an issue because unless the Inspector is out there doing continuous inspections, there is no way that the Department would know how many studs were replaced and how much of the wall was removed. Mr. Wong said that one idea would be to require special inspections to have somebody certify how the project is proceeding and that would be at a tremendous cost to the developer and there would be a question of staff being able to handle the additional workload. Mr. Wong stated that these are some of the conditions that the Department is looking at.

Mr. Wong said that this process was started a long time ago and neighborhood groups, Planning and DBI staff looked at it and pretty much raised the same issues and commented on this before, but somehow this process got elevated to the Board of Supervisors' level and DBI was not really included in the process at that time. Mr. Wong said that a lot of the comments and concerns that had been submitted previously are still showing up in this proposed legislation. Mr. Wong said that the Department expressed concern over enforcement. Commissioner Santos said that the sub- committee was struggling with these same issues. Vice-President Hood said that the sub-committee went over this for months and each time the neighbors would agree with it, as it really seemed to solve their problems. Vice-President Hood said that she did not think that Supervisor McGoldrick was necessarily getting that picture on these issues and said that there should be some way to communicate that to him without going through the Code Advisory Committee because they were looking at other things and perhaps they did not have the benefit of hearing all of the neighbor's testimony. Vice-President Hood said that she thought that the Department could just submit additional information with what the Code Committee is doing. Vice-President Hood said that the Board was going to pass whatever they were going to pass and the Department would have to live with it and enforce it as best they can, but if the Department could just focus in on the points from the neighbors perhaps there could be some progress.

Mr. Wong said that he thought that the Code Advisory Committee saw this legislation as a very positive step and in looking at the extra requirements that are being asked for such as the photographs and additional drawings to the same scale, those are all good things. Vice-President Hood said that these items came out of the sub-committee. Mr. Wong said that in looking at the additional requirements the Department had to look at them from an enforcement point. Commissioner Marks said that she thought that the Department needed to make their comments in the form of a recommendation. President Fillon said that he wanted to see a comment from Department staff on each one of the items, as to what the repercussions would be, because there were some pretty draconian measures against violators. President Fillon said that the Department should take some responsibility and stated these changes would affect the Department whether they are good ideas or not. Mr. Wong said that generally the enforcement would be a burden on the staff because of the pre-inspection requirement and more scrutiny of the plans along with monitoring the project more carefully. Mr. Wong said that almost anything could trigger this ordinance. Commissioner Santos said that the only way to keep on top of a project would be to require special inspections and that would be a very expensive process.

Director Chiu said that he was repeating himself, but the item he had the most trouble with was how someone could propose to add two stories to an existing two story building because a structural engineer or an architect would know that the Code would require a larger foundation. Director Chiu said that the first thing a project manager would do would be to add a new foundation and when someone is required to put in a brand new foundation they are going to have to prop up the walls and does that mean that this is a temporary move. Director Chiu said that if that is the case, this could not be done anymore. Vice-President Hood said that all of the two by fours would have to be two by sixes to meet the new energy code and other things and then all of the exterior materials would have to be removed. Director Chiu stated that the point he was trying to echo of what Deputy Director Wong was saying was that initially the Department knew that this kind of thing would be a nightmare for enforcement because the Inspector would have to stand there for twenty-four hours to make sure that the wall is not temporarily removed or the walls are not increased by 1% or 2%. Director Chiu said that the Department was looking at the final product and if someone wanted to build one story over an existing two-story building, it is a major alteration and therefore, all of these requirements would have to be met. Director Chiu said that this ordinance should not get into how many walls could be removed or temporarily removed. Vice-President Hood said that once again this would encourage slight of hand. Commissioner Marks said that the main thing, rather than the BIC continually talking about this, is that the BIC should make recommendations. Mr. Wong said that these same items were at the very beginning of the discussion about this legislation and the Department made the comments, but the same things are back and it seems that things are going around in a circle. Vice-President Hood said that someone needs to get to Supervisor Jake McGoldrick to explain this to him and not just send a document over. President Fillon said that he thought that the first step would be to have something in writing that addresses each item and this would just be the Department doing its due diligence to the community. President Fillon said that the staff at DBI are uniquely qualified to assess this legislation.

Director Chiu said that he would be happy to work with Deputy Wong to draft a letter for the Director's signature raising some of these issues, as there are really only two issues that the Department has a problem with. President Fillon said that a letter should just focus on the facts that are technical. Commissioner Marks said that she thought that a letter was the way to do it and in fact thought that this had already been done as she had asked for a copy of such a letter. Commissioner Marks asked what was the status of the legislation. Director Chiu said that the Supervisor was waiting for a response from DBI and said that he thought that Commissioner Marks wanted the comparison first to agree on what to do. Director Chiu said that he thought that the Commission wanted a side-by-side comparison first and would then submit a letter. President Fillon said that the comparison was great. Director Chiu said that the Department would send a letter attaching the comparison. Vice-President Hood stated that she thought that the Director should send the letter and then do a lot of hand holding with them to make them understand that the BIC overall supports what the Board is trying to do, but if these two things could be changed then it would make DBI's task easier and the neighbors would be happier.

Deputy Director Wong said that he thought that the letter needed more than just the support of the Department given the context of the legislation and something should come from the Commission. President Fillon said that the Department should come up with something first and then the Commission could endorse it. Commissioner Marks said that she thought that the Code Advisory recommendations should be attached. Vice-President Hood said that this legislation should include the words "major alteration". President Fillon said that one thing that disturbed him was the part where if a builder exceeded the limit of the permit then that portion would not be able to be legalized, but it would have to be torn down and rebuilt as it was before. President Fillon said that he thought that this was a little harsh. Mr. Wong said that on pages three and four it states that the Department would have to stop an entire job and normally this is not done; the Department did not want this legislation to be overly restrictive. Mr. Wong said that this legislation was also saying that there could be no over the counter permits, period. President Fillon said that this was almost like a three strikes and you're out kind of legislation. Commissioner Marks said that it had been mentioned that after a First Notice of Violation people would try to slip through by getting permits over the counter. President Fillon said that this seemed as if the Department was going after somebody that they already had in mind and that is not what this legislation should be doing, it should be serving the public-at-large, as there are other ways to go after people who are bad apples. Vice-President Hood said that the sub- committee thought about this for a long time and said that she was willing to go through each of the points one at a time and maybe an entire meeting should be scheduled for this item. President Fillon said that there should be a workshop.

Deputy Director Wong said that the Commission needed to look at the penalty portion; the ten- year thing and no over-the-counter permits, as this may be overly restrictive. Vice-President Hood said that there is so much cheating and once something is built and the only penalty is that a builder may or may not get caught then this is actually encouraging people to do things without a permit. Vice-President Hood stated that she has seen people go over the height limit and get it O.K.'d because they know once it is there it will stay and right now the burden of appeal is on the neighbor. President Fillon said that this was the same kind of thinking that if someone is caught stealing and you cut off their hand they won't do it again and President Fillon stated that he did not agree with this kind of thinking. President Fillon said that he wanted to move on. Commissioner Marks said that Director Chiu still looked puzzled and said that she did not think it was clear what the Commission wanted staff to do. Director Chiu said that initially he thought that the Commission just wanted the Department to send a letter, but now it seemed as if the Commission wanted to give more input. President Fillon said that this item would be agendized for another meeting. Director Chiu stated that he thought that it would be fair for Deputy Director William Wong to draft the comments outlining all of the staff's concerns and recommendations for the changes then the Commissioners could address the concerns. Vice-President Hood said that she thought this item should be on the agenda by itself.

9. Review of Communication Items. At this time, the Commission may discuss or take possible action to respond to communication items received since the last meeting.

a. Copy of letter dated February 13, 2003 from Director Frank Chiu to Assistant Director Amy Lee regarding the Mayor's Fleet (City Car Policy Letter).

b. Copy of fetter dated February 11, 2003 from Director Frank Chiu to All DBI Staff regarding 2003 Travel Reimbursement Rates.

c. Copy of letter dated February 24, 2003 from Eleonora Bletnitsky to Director Frank Chiu regarding properties at Block 1377, Lot 001 and 002, City of San Francisco. Ms. Bletnitsky's address is 107 - 17^th Avenue.

d. Copies of thank you letters received from the public commending DBI employees and Director Chiu's response letters to the public.

Ms. Eleanora Bletnitsky said that she wanted to comment on item 9c. Ms. Bletnitsky stated that she had written a letter a couple of weeks ago to Director Chiu regarding the issue of a dispute between two neighbors on an easement. Ms. Bletnitsky said that from information that she was getting from Ann Aherne, the BIC Secretary, she was aware that her neighbor had been complaining about her property for over eight months saying that there were violations. Ms. Bletnitsky said that this was the first time that she had come forward to complain because she was getting tired of continuous harassment from the other side and said that she never complained about the neighbors. Ms. Bletnitsky stated that her neighbors moved into the property a couple of years ago and said that she had lived in her property for more than twenty-six years. Ms. Bletnitsky said that this Mr. Riley, who the Commission had probably heard from for months and months, lives at 17^th and Lake and moved in a couple of years ago, but is not actually a full owner. Ms. Bletnitsky said that Mr. Riley is only part owner and said that she believed that he was brought into this property illegally even though this issue was probably not open for discussion at the BIC. Ms. Bletnitsky said that she wanted the Commission to understand what kind of people she and DBI are dealing with. Ms. Bletnitsky said that the owners were brought in under the title by Mr. & Mrs. Fong in 2000, but moved into the house as tenants in 1999, and as soon as they moved in they started to complain. Ms. Bletnitsky stated that she replaced the foundation on the back of her house which was done with a permit and still the neighbor complained and the Inspector came and checked that a permit was issued and that everything was under control. Ms. Bletnitsky said that the Inspector left the property at that time and then the neighbors started to complain about other issues on her house and said that she was too busy with her own life and did not complain about any of the issues on her neighbor's property. Ms. Bletnitsky said that there were a lot of issues on the neighbor's property and everything that was done on their property over the years starting from 1964 has been done without any permit and she never complained about them. Ms. Bletnitsky said that the neighbor continuously complained about the easement even though she has lived in the house for many years and the owner she purchased the house from used that alley before her. Ms. Bletnitsky stated that she had an in-law apartment at the back of her garage, which is actually an original apartment. Ms. Bletnitsky said that her property was a two-unit house that was converted to a single-family in 1958, but the apartment was still there and that is how she purchased the property. Ms. Bletnitsky stated that over the years she has paid taxes, property tax, IRS and State tax on this apartment and never had any problems until this new part owner started to complain about her. Ms. Bletnitsky said that she found out, even though when she purchased the house she didn't know any better, that this was an illegal apartment and over all the years like any other citizen she rented it because she purchased the house with tenants in the apartment. Ms. Bletnitsky said that she paid taxes, but when these neighbors started to complain and she found out that the apartment was illegal she decided that she would legalize it. Ms. Bletnitsky said that she hired a facilitator who was trying to help her to facilitate legalization of this apartment so drawings were submitted to Planning, but because of the easement the drawings were not approved, pending a lawsuit that her lawyer served to these neighbors. Ms. Bletnitsky said that the lawsuit was about the easement that she used for so many years, so it should be a legal easement. Ms. Bletnitsky said that her lawyer has sent these neighbors a number of letters and they have never responded to any of the letters, even now when they have filed a legal complaint through the Superior Court their lawyer did not want to accept papers on their behalf. Ms. Bletnitsky said that the neighbor's lawyer asked her lawyer to serve the papers to a second family who live in a different state. Ms. Bletnitsky said that she just wanted to explain to the Commission what type of people she was dealing with and said that she was in a catch-22 situation because she could not legalize the apartment. President Fillon reminded Ms. Bletnitsky that the public was given three minutes to speak and told her that she was about a minute over the time limit. Ms. Bletnitsky said that she was just asking for the Commission's help because she did not know what to do with these people. Ms. Bletnitsky stated that she started to complain about the neighbors just a couple of weeks ago and probably that was the reason they were not present at today's meeting.

President Fillon said that the Commission had received Ms. Bletnitsky's letter. Ms. Bletnitsky asked what the Commission's recommendation was and what could she do to remove the condition.

Commissioner Brown said that he wanted to respond to this issue and thanked Ms. Bletnitsky for taking the time to come before the Commission. Commissioner Brown said that Mr. Riley had come before the Commission on this very issue and said that he wanted to relay to Ms. Bletnitsky what the Commission told Mr. Riley. Commissioner Brown said that basically Mr. Riley was complaining that there was an easement issue and brought up the issue of an illegal unit in Ms. Bletnitsky's home. Commissioner Brown stated that the Department's position on this and the feeling of the Commission is that the Commission is not taking any affirmative action to require that Ms. Bletnitsky remove that residential unit. Commissioner Brown said that what Ms. Bletnitsky might think of as an omission is actually in her favor. Commissioner Brown stated that there are a lot of issues that surround this which sound like they are being dealt with by the two parties' attorneys and the Commission really can't get involved in that. Commissioner Brown said that as a policy, this particular Commission is required to follow the Codes, but the little asterisk with that is that the Commission is not in the business of trying to take away units that are serviceable in San Francisco and the Commission understands that Ms. Bletnitsky's is one such unit. Commissioner Brown said that the Commission told Mr. Riley that there are easement issues that should be dealt with in the courts and said that it sounded like someone gave a key a long time ago to use, but those are issues that the Commission is not dealing with. Commissioner Brown said that he was not sure if his answer responded to Ms. Bletnitsky's particular concern, but that is basically the message that the Commission gave to Mr. Riley; the Commission did not want to recommend that Mr. Riley cut off the easement, or number two that the unit that Ms. Bletnitsky was renting as the lower unit of her home be removed from housing use. Ms. Bletnitsky stated that she was not renting the unit now because Mr. Riley is continuously complaining and now she has violation notices from the City. Commissioner Brown said that this was unfortunate and said that he was saying that as a Commissioner because one of his main issue on the Commission is that units that are serviceable in San Francisco be used as housing units, but that is her choice. Commissioner Brown said that with the easement issues and things like that, unfortunately the BIC couldn't make any decision. Ms. Bletnitsky said that she wanted to make it a point in front of this Commission that she was complaining about Mr. Riley because they do have many violations that she complained about recently and they are not even allowing the Inspector into their space.

Ms. Bletnitsky's son said that he wanted to add something. Mr. Bletnitsky said that his concern was the fact that the neighbor has been complaining over the years and the Bletnitsky family has not done anything, but the moment that the Bletnitskys did complain nothing is being done. Mr. Bletnitsky said that he was concerned whether it is unfair treatment or not, they don't know what the situation is, but know that they have been complained about and have been properly inspected. Mr. Bletnitsky said that now that they are complaining nobody is inspecting the neighbor's property. Commissioner Marks said that the Inspector did identify violations. Director Chiu said that Deputy Director Jim Hutchinson had some information on what the Department is trying to do. Mr. Hutchinson said that he was able to go out and meet with the owners with his staff; Chief Inspector Wing Lau and Assistant Director Amy Lee had both been out to the property and Mr. Hutchinson met with Mr. Riley. Mr. Hutchinson said that he became aware of situations where now the neighbor that Mr. Riley has been complaining about has pointed out that there are equal deficiencies in Mr. Riley's property. Mr. Hutchinson stated that DBI had been attempting to work with Mr. Riley to gain access to the property and staff was still trying to do so, and his understanding from a Senior Inspector is that DBI has been denied access. Mr. Hutchinson said that many times the Department would get into this type of situation where there are cross complaints so he would not be surprised if Mr. Riley came in complaining about harassment issues, as that would be typical. Mr. Hutchinson said that the way that the Department deals with this is that the Department has to investigate both complaints and would be trying to get into Mr. Riley's property to look at this to make sure it is fair situation for everyone.

Commissioner Brown asked what the situation would be in that case and would the Department go to court to ask for some sort of warrant to gain access. Mr. Hutchinson said that in eighteen years he has never had to ask for a warrant and said that he hoped he never had to. Mr. Hutchinson said that typically the Department would not ask for a warrant on an illegal unit, but in this case he thought that there were a number of violations and the Department would continue to work with Mr. Riley to point out the fairness aspect. Mr. Hutchinson said that the Department would say to Mr. Riley that if the Department investigated the neighbors based on Mr. Riley's complaint then Mr. Riley should let the Department clear the records and show the property to the Department. Mr. Hutchinson stated that the Department would go back and get the permit history to do what it can without gaining entry, but the Department would try to gain entry. Mr. Hutchinson said that with some of the long standing issues that were discussed briefly with the Litigation Committee he was hopeful that the Department could set some more standard policy. Mr. Hutchinson stated that he did not want the Bletnitskys to feel that the Department was going to ignore their complaint as the Department was definitely trying to follow up on it and would be responsive. Commissioner Santos asked what would happen if Mr. Riley refused entry into his property. Director Chiu said that at some point the Department would have to go through the City Attorney's Office to seek an inspection warrant. Ms. Bletnitsky said that she just did not want to be harassed. Commissioner Santos asked Mr. Hutchinson to give the Commission a short explanation of exactly where this issue stood. Mr. Hutchinson said that most importantly, there is the allegation that Mr. Riley likewise has an illegal unit on his property and that is the primary concern along with about eight other items. Commissioner Santos said that the Commission has listened to Mr. Riley on a couple of occasions and now the Commission has heard from Ms. Bletnitsky. Commissioner Santos stated that Mrs. Bletnitsky was absolutely correct because ultimately he was certain and optimistic that Mr. Hutchinson and DBI staff would be able to get into property and deal with these issues.

Ms. Bletnitsky said that she is a government employee and deals with this business so she knows how hard it is to respond to these complaints and that is why she is not in a position to complain, but stated that she did not have a choice. Commissioner Brown said that he wanted to make a suggestion because Ms. Bletnitsky and Mr. Riley would probably spend a lot of money on attorneys. Commissioner Brown asked if Ms. Bletnitsky had made an attempt to mediate this. Ms. Bletnitsky said that Mr. Riley has not responded to any letters from her lawyer. Commissioner Brown asked once again if there had been an attempt to mediate this issue by going to a community board or anything like that. Ms. Bletnitsky said that she did not know anything about any community boards. Commissioner Brown stated that Community Boards is an organization in the City that is involved in mediation. Commissioner Brown said that he thought that this issue is one person who has made a complaint and then it sounds like an eye for an eye kind of thing because now Ms. Bletnitsky is making a complaint. Commissioner Brown said that the Department was going to do what needed to be done under the Code and Ms. Bletnitsky is certainly entitled to make a complaint, but it seemed that a better way around this would be to try and mediate it between neighbors and not have both sides spending many thousands of dollars for something that might reach the exact same place where both parties were before. Commissioner Brown said that he did not want to go back and forth with Ms. Bletnitsky, but just wanted to make that suggestion. Ms. Bletnitsky thanked Commissioner Brown for his suggestion and said that she would try anything that she could to solve this problem.

Commissioner Santos suggested that Ms. Bletnitsky buy five feet of the neighbor's property. Ms. Bletnitsky said that it was not even five feet, but the neighbor would not even talk about anything.

President Fillon thanked Ms. Bletnitsky for appearing and Ms. Bletnitsky thanked the Commission for their time.

10. Review and approval of the minutes of the February 5, 2003 BIC meeting.

Commissioner Santos made a motion, seconded by Commissioner Brown that the minutes be approved. The motion carried unanimously.

RESOLUTION NO. BIC 013-03

11. Review and approval of the minutes of the February 11, 2003 Special BIC Special Meeting.

This item was continued, as there was not a quorum of Commissioner present who had attended the February 11, 2003 meeting.

12. Review Commissioner's Questions and Matters.

a. Inquiries to Staff. At this time, Commissioners may make inquiries to staff regarding various documents, policies, practices, and procedures, which are of interest to the Commission.

b. Future Meetings/Agendas. At this time, the Commission may discuss and take action to set the date of a Special Meeting and/or determine those items that could be placed on the agenda of the next meeting and other future meetings of the Building Inspection Commission.

There was no discussion on this item.

13. Public Comment: The BIC will take public comment on matters within the Commission's jurisdiction that are not part of this agenda.

There was no public comment.

14. Adjournment.

Commissioner Santos made a motion, seconded by Commissioner Brown that the meeting be adjourned. The motion carried unanimously.

RESOLUTION NO. BIC 014-03

The meeting was adjourned at 4:30 p.m.

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Ann Marie Aherne Commission Secretary