December 10, 2009

BUILDING INSPECTION COMMISSION (BIC)

Department of Building Inspection (DBI)

REGULAR MEETING

Wednesday, December 16, 2009 at 10:00 a.m.

City Hall, 1 Dr. Carlton B. Goodlett Place, Room 416

Aired Live on SFGTV Channel 78

ADOPTED March 17, 2010

MINUTES

 

The regular meeting of the Building Inspection Commission was called to order at 11:04 a.m. by President Murphy.

 

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

COMMISSION MEMBERS PRESENT:

Mel Murphy, President

Reuben Hechanova, Vice-President

Kevin Clinch, Commissioner, excused

Robin Levitt, Commissioner

Criss Romero, Commissioner

Frank Lee, Commissioner

Debra Walker, Commissioner, left at 1:20 p.m.

Ann Aherne, Commission Secretary

 

D.B.I. REPRESENTATIVES:

Vivian Day, Director

Edward Sweeney, Deputy Director

William Strawn, Communications Manager

Pamela Levin, Administration & Finance Division Supervisor

Sonya Harris, Secretary

 

President Murphy said that this was the last meeting for the year and said that he wanted to take this opportunity to thank his fellow Commissioners. President Murphy stated that things got off to a rocky start at the beginning of the year, but everything worked out. President Murphy said that it has been a rough year for the Department especially in losing 80 staff members, but said that it has been incredible what the department accomplished under the leadership of the Director; as she really stepped up to the plate and kept the train on the track. President Murphy thanked all of the Director’s Assistants, the employees of DBI and the Commissioners who served on the subcommittees. President Murphy said that he wanted to thank the Commission’s able Secretary and her assistant for their great work over the years.

President Murphy stated that the Department made some great changes including completing the fifth floor and relocating staff. President Murphy said that he was very excited about the upcoming year and said that he was very proud that much of DBI is a fine tuned machine. President Murphy said that earlier in the year with the layoffs and everything, there was a lot of contention between employees, but said that it seems like that has been worked out. President Murphy said that the Commission wants to emphasize that there should be no division within the Department; the department is one Department and everyone should get on like one big happy family.

There was no public comment on the President’s announcements.

President Murphy said that Item #8 would be moved up in the agenda as Mr. Michael Yarne was present from the Mayor’s Office to speak on the issue.

 

8. Discussion and possible action regarding a proposed Ordinance (#091251-2) amending the San Francisco Building Code by adding Section 107A.13 to establish a procedure for the Department of Building Inspection (DBI) to collect development impact and in lieu fees; to provide that the fees are payable prior to issuance of the first building permit or other document authorizing construction of the project; with an option for the project sponsor to defer payment to prior to issuance of the first certificate of occupancy upon agreeing to pay a deferral surcharge on the amount owed that would be deposited into the same fund that receives the development fees; to require that any in-kind public benefit benefits required in lieu of payment of development fees are implemented prior to issuance of the first certificate of occupancy for the project; to require DBI to generate a Project Development Fee Report prior to issuance of the building or site permit for the project listing all fees due with the opportunity for an appeal of technical errors to the Board of Appeals; to establish a Development Fee Collection Unit within DBI and a fee for administering the program; adopting findings, including environmental findings. The possible action would be to make a recommendation to the Board of Supervisors for their further action.

 

Director Vivian Day stated that she would give DBI’s take on this legislation. Director Day said that she had provided the Commissioners with a letter outlining most of the Department's concerns and a recommendation for approval of this legislation. Director Day said that this legislation would consolidate the fee collection within DBI to help developers, and to delay the deferral until first certificate of occupancy is issued. Director Day said that this legislation has been reviewed by the Code Advisory Commission (CAC) and said that a few amendments were suggested. Director Day stated that it has been forwarded to the Mayor’s Office with those amendments included. Director Day announced that Mr. Michael Yarne was present from the Mayor’s Office of Economic Development (MOED) to speak on this issue.

Mr. Yarne gave a very detailed, lengthy presentation on this ordinance explaining that about one year ago, the Mayor’s Office of Economic Development started looking at the regulatory changes that could be made to the permitting processes to incentivize development with the clear understanding that there is only so much that can be done at the local level. Mr. Yarne stated that this is sort of a stimulus package, but that there is no money being handed out, only a plan to change procedures and policies that are inadvertently discouraging investment in construction, and how those could be changed to stimulate jobs sooner rather than later. The following is some of the highlights and information outlined in Mr.Yarne’s presentation:

• Attached to the ordinance is a change to the affordable housing programs.
• It would lessen the up-front cost and create a permit 1% transfer fee on future sales.
• The employment picture, housing prices or project financing is not expected to improve in the immediate future.
• Permit review fees would be collected sooner; there would be more jobs sooner and the general fund would see revenues sooner.
• Currently almost all of the City’s development impact fees are due at the first permit issuance and that is a major barrier of entry.
• This ordinance would shift the cost backward in time to a point that is more logical in terms of the construction process.
• It aligns the fee collection with a more natural time a developer would be ready to get going and spend money.
• It would avoid the practice of having to refund large sums of money to developers if a project falls through.
• The changes take all of the development impact fees that would be relocated into one section of the Planning Code.
• The responsibility for enforcement, collection, and monitoring would be with a new unit of DBI.
• Users would have only one place to go for all impact fee related issues. Currently, there are about five places a project developer has to go to pay their fees.
• A final development impact fee report will be generated at the first issuance of a site permit that will be project specific.
• This process will be transparent for the City, the developer and the public.
• No building or site permit will be issued before this report is finalized; this creates a one time assessment and provides universal information to everyone involved.
• If there are any disagreements, either a member of the public will question the fee amount, or if the project sponsor cannot work out a resolution, there is a 15-day appeal period that will be heard before the Board of Appeals and nothing will happen until the next stage.
• The next stage is issuance of a construction permit and it is at this stage that a project sponsor could elect the fee deferral program.A project sponsor could elect to pay all of the fees up front as is the current practice.
• If the project sponsor elects the fee deferral program interest would accrue from that day forward until all of the deferred fees are paid.
• The interest rate is a blended rate.
• No Certificate of Occupancy would be issued in any circumstance unless fees, plus interest, were paid.
• DBI will not issue a Certificate of Occupancy until it is confirmed that any physical requirements, such as trees, parks, child care centers, etc. are also satisfied.
• This puts the City in a commanding position in terms of enforcement.
• This ordinance will eliminate thirty duplicative procedures.
• In addition to the economic benefits there are some positive good government streamlining measures.

• It brings together a lot of components of the process of collecting fees that has been arbitrarily all over City departments.
• It gives the up-front, transparent information about the public benefits that rest with the project; the developer knows it as well as the public. 
• Concerns that it is going to have the exact opposite affect of what is needed, which is for projects to move forward. 
• Concerns about the burden on developers at the early stages of these kinds of projects before there is any availability for loans from the bank. 
• Concerns about securing the funding into the City as large scale plans around affordable housing, around open space, take as much or more time as planning the individual buildings that are being developed.
• Programs that are already available statewide and the potential for stimulus money to be covering this.
• Deferring the money rather than having access to the money, both from the development and the City’s point of view is not really going to stimulate this growth.
• The importance of having some of the community improvements in place when people start moving into these buildings. 
• Monitoring the program for a couple of years to see if it does do what it says it will do. 
• This is just one method that can be tried to help stimulate work and stimulate the economy.
• Developers and project planners shell out a lot of money and all they do is pay out money hoping that the project will make money at the end so if payment is deferred up to the point right before they start realizing the money it gives them an incentive. 
• This legislation is elective; it is not mandatory.
• It is rational; it is smart and it needs to be done sooner rather than later. The Developer is still taking the greatest risk.
• There is no time frame within which the development actually has to happen. 
• There could be the postponement of paying infrastructure fees for years in an area that may well need infrastructure commitment because of other developments.
• Concerns about doing nothing as dollars in all of the City departments are scarce and this is a way of doing something.
• Developers in San Francisco go into business with risks inherently all the time, and to some degree some of the problems we have in San Francisco are the result of that risk.
• Concerns about digging a bigger hole.
• The people that suffer are the ones that are out there doing the work, the ones without insurance and other benefits. 
• There is no money out there and this is an opportunity to do something positive.
• There are still issues to be worked out at the Mayor’s Office and Board of Supervisors.

Commissioner Lee made a motion, seconded by Vice-President Hechanova that the legislation be sent to the Board of Supervisors with a recommendation of support.

Deputy City Attorney said that he wanted to clarify that the legislation that was before the Commission today was that was just recently amended to include the blended rate of interest.

Commissioners Walker and Romero said that there were not comfortable voting on something other than what was before them.

Deputy City Attorney Malamut stated that the Commissioners had received a memo from Director Day explaining the amendments so the Commissioners could vote and add to the motion that they were voting on the amended version.

Commissioner Lee amended his motion, seconded by Vice-President Hechanova that the legislation with the amendments be sent to the Board of Supervisors with a recommendation of support. The Commissioners voted as follows:

President Murphy  Yes

Vice-President Hechanova  Yes

Commissioner Lee  Yes

Commissioner Levitt  Yes

Commissioner Romero  Yes

Commissioner Walker  No

The motion carried on a vote of 5 to 1 (Commissioner Clinch was excused from the meeting).

RESOLUTION NO. BIC 054-09

President Murphy asked that the next item heard be Agenda Item #6.

Commissioner Walker left the meeting at this point. (1:20 p.m.)

 

Commissioner Levitt said that he was on the nominations sub-committee and said that there were many really good candidates for these positions and so these were very difficult decisions. Commissioner Levitt stated that there were a lot of really good candidates and the committee felt that most of the candidates interviewed would do very well on the AAC. Commissioner Levitt said that there needed to be some continuity and said that Mr. Nathan has a lot of great experience and expertise that he would bring to the Commission. Commissioner Levitt said that this was the reasoning behind the three candidates selected.

Commissioner Hechanova said that he was really challenged by the number of candidates that were presented to the sub-committee as many were equally qualified and would probably serve the positions well. Commissioner Hechanova said that in the category of where the sub-committee eventually arrived, consideration of others should probably be taken into account based on their merits. Commissioner Hechanova stated that ultimately it is the Commission that decides who will fill the seats, but said that he was proud in how the sub-committee was able to do this.

Commissioner Romero said that he was appreciative of the people that put their names forward to do a public service and said that he thought that for the most part the best candidates were put forward.

Commissioner Levitt thanked everyone who applied.

President Murphy called for public comment.

Ms. Roslyn Baltimore said that she was appearing before the Commission as an applicant for the public seat. Ms. Baltimore stated that she had been publicly threatened for advocating disabled access as a sitting member of the Access Appeals Commission. Ms. Baltimore said that if the Building Inspection Commission accepted the recommendations of the nominating committee all five members will be white. Ms. Baltimore stated that the public seat which is supposed to represent the public of San Francisco, which according to the U.S. census bureau in 2008 was 54.4% nonwhite and 49.1% female, would be in contrast to your potential commission of zero percent nonwhite and 80% male. Ms. Baltimore said that the majority or three of the five Commissioners will be architects, leaving just two Commissioners from the disabled community.

Ms. Baltimore said that the public seat was supposed to be different and was not supposed to represent one side or the other, but was supposed to be a neutral seat. Ms. Baltimore said that parenthetically the recommended architect has a professional relationship with one of the sitting architect Commissioners so this kind of sways it away from being a neutral seat. Ms. Baltimore stated that in conclusion she wanted to say that it has been her pleasure to serve on the Access Appeals Commission and to participate in providing access to disabled persons. Ms. Baltimore said that she considers access a civil right and takes this issue very seriously.

There was no further public comment on this item, but President Murphy asked if each candidate would like to step forward and say a few short words.

Mr. Zachary Nathan introduced himself as the candidate for the public seat and said that he is an architect and lives in San Francisco. Mr. Nathan stated that he had quite a bit of experience with disabled access and is a certified access specialist.

Commissioner Hechanova asked if there was a reason that Mr. Nathan did not show up on the day of nomination. Mr. Nathan said that he had applied previously and did come to the earlier, subcommittee meeting, but said that he honestly did not think that he had much of a chance to be selected for the public seat because Roslyn Baltimore has done a fairly competent job as the public member. Mr. Nathan said that when he applied he did not realize that Ms. Baltimore was actually reapplying for the position, but said that he felt that he could offer a lot by serving on the Access Appeals Commission and was looking forward to doing so. President Murphy said that he had read Mr. Nathan’s résumé and said that he was very qualified for the position.

Mr. Walter Park said that he wanted to thank the committee for its vote of confidence in nominating him for reappointment. Mr. Park said that the AAC were very productive in the last two years that he has served and said he would hope to continue that work. Mr. Park stated that he agreed with Ms. Baltimore about representation or parity among community members in San Francisco, but said that Zachary Nathan is eminently qualified to serve on the AAC. Mr. Park said that Mr. Nathan has done an amazing amount of community architectural work on accessibility and is qualified to be on the Commission. Mr. Park said that he was in no position to choose among other current Commissioners on the Commission as that was entirely the committee’s and the BIC’s decision. Mr. Park stated that he serves on the Board of Directors of the Disability Rights Advocates which is a legal organization that deals with disability access issues and said that he has been on that board for seventeen years. Mr. Park said that he voted for term limits and will be termed out next year as he believes there is something to be said for having new blood on a Board or Committee. Mr. Park said that if Roz Baltimore was not considered today for a seat on the AAC that he would recommend that she be considered again in the near future. Mr. Park said that Ms. Baltimore had contributed a great deal to DBI and the disability community.

Ms. Alyce Brown thanked the Commission for having the confidence in her to reappoint her to the AAC on the disability seat on which she has served for the last eight or nine years. Ms. Brown said that she hoped she had improved some of the buildings for disabled persons. Ms. Brown stated that for the last year or two the AAC has been working on the destination elevators which took a great deal of time, but said that she thought that it was finally right. Ms. Baltimore said that she would be honored to serve again as being disabled makes her very aware of the shortcomings in various buildings in San Francisco and other states. Ms. Baltimore said that she was very proud to say that San Francisco leads the way for disabled compliance.

There was no further public comment.

President Murphy called for a nomination for Mr. Zachary Nathan.

 

Commissioner Levitt made a motion, seconded by President Murphy, that Mr. Zachary Nathan be appointed to the Access Appeals Commission.

Commissioner Lee said that before he voted he wanted to make a comment. Commissioner Lee said that he would like people to think that if they are not an incumbent that the Commission will consider their résumé and application fairly. Commissioner Lee stated that Mr. Nathan’s resume was very impressive and said that he hoped Mr. Nathan would actively participate in the AAC.

Commissioner Romero said that he was a little disturbed by the comment that somebody did not show up primarily because they thought their application would not be considered which is one reason why he found it hard to do the nomination. Commissioner Romero stated that he did go along with the recommendation, but said that in the future when people apply for these positions he hoped that they trust that the Committee are actually having real conversations about all of the candidates.

The Commissioners voted as follows:

President Murphy  Yes

Vice-President Hechanova  Yes

Commissioner Lee  Yes

Commissioner Levitt  Yes

Commissioner Romero  Yes

The motion carried unanimously.

RESOLUTION NO. BIC 055-09

Secretary Aherne announced that the appointees would all be sworn in at one time.

President Murphy called for a nomination for Ms. Alyce Brown.

 

Vice-President Hechanova made a motion, seconded by Commissioner Levitt, that Ms. Alyce Brown be appointed to the Access Appeals Commission.

Commissioner Lee said that he wanted to make a comment before voting as he has concerns because there seems like there have been a lot of applicants for the Access Appeals Commission and said he was wondering if this nomination could be sent back to committee to see if there is any new person that might be able to serve. Commissioner Lee said that based on Roslyn Baltimore's comments and knowing that she is a past President he was wondering why she was not considered.

Commissioner Levitt said that he would be open to reviewing this again, but said that Ms. Baltimore was not eligible for this seat as she is not disabled. Commissioner Levitt stated that there was one other disabled candidate that applied, but did not show up to the Committee meeting.

Commissioner Romero said that he would not be agreeable to opening this up again as the Committee was chosen to make choices and actually did their job. Commissioner Romero said that this would be completely unfair to those that have already been picked. Commissioner Romero stated that he was sympathetic to what Ms. Baltimore had to say, but said that there is a process that had to be followed and that was done.

 

The Commissioners voted as follows:

President Murphy Yes

Vice-President Hechanova Yes

Commissioner Lee No

Commissioner Levitt Yes

Commissioner Romero Yes

The motion carried on a vote of 4 - 1.

RESOLUTION NO. BIC 056-09

 

President Murphy called for motion for Mr. Walter Park.

Commissioner Romero made a motion, seconded by Commissioner Levitt, that Mr. Walter Park be appointed to the Access Appeals Commission.

The Commissioners voted as follows;

President Murphy No

Vice-President Hechanova No

Commissioner Lee No

Commissioner Levitt Yes

Commissioner Romero Yes

The motion did not carry on a vote of 3 - 2.

RESOLUTION NO. BIC 057-09

 

President Murphy asked Deputy City Attorney John Malamut what the procedure would be since the motion to appoint failed. Deputy City Attorney Malamut said that since the Commission does not have an affirmative majority vote to either approve or deny the appointment it remains in stasis and could be revisited at a subsequent hearing as the position remains outstanding.

Vice-President Hechanova asked if this still allowed for the Access Appeals Commission to continue to operate and to hear appeals. Deputy City Attorney Malamut said that there is still a majority that would form a quorum and allow them to continue to conduct business until the seat is filled.

Secretary Aherne said that there are five members on the Access Appeals Commission, and there are now four, but the BIC should move to appoint someone as soon as possible because election of officers is coming up and there are cases and issues pending.

President Murphy congratulated Mr. Zachary Nathan and Ms. Alyce Brown and asked them to step forward to be sworn in as members of the Access Appeals Commission. President Murphy administered the Oath of Office.

President Murphy announced that the next item to be heard would be Item #5.

Vice-President Hechanova took over for President Murphy for five minutes. Deputy City Attorney Francesca Gessner took over for Deputy City Attorney John Malamut.

Mr. Willy Yau introduced himself as the representative of the Department of Building Inspection and said that he had done inspections on this property with Deputy Director Sweeney at the request of the applicants regarding the emergency repair. Mr. Yau stated that the Department looked at the reports compiled by Mr. Karp. Mr. Yau said that this property and the retaining wall were constructed some 140 years ago, and did go through a number of earthquakes, so the wall does have a lot of cracks, which have occurred over the years. Mr. Yau said that according to the report the walls happen to have recent movements within the last couple of years and that the cracks are noticeably bigger than before. Mr. Yau said that he did not know how often Mr. Karp visited the site, but said that the cracks would have occurred over a long period of time as gravity walls of this sort are designed to relieve lateral pressure and do not fail suddenly. Mr. Yau said that retaining walls are designed to expect to have movement to release pressure behind them, so it is not unusual that retaining walls have movement during the course when they are under additional loading. Mr. Yau said that given the conditions of the retaining wall the owners are on the right path to apply for permits to repair this retaining wall or to replace it, but that is not in the permit they applied for. Mr. Yau stated that in the meantime, the Department noticed that there has been a lot of seepage coming out from holes on the wall, and it looks like they have been going on for a long time so apparently; the valves to relieve pressure on the wall is working. Mr. Yau said that Mr. Karp claims that there is more significant movement of the wall with in the last couple of years, and said that at the time of inspection the Department saw that the drip irrigation system was making the soil on top of the wall pretty wet and asked the owners of the property to communicate to adjacent property owners not to over water their lawn. Mr. Yau said that the owners should go ahead with applying for permits for repair, so that is the conditions that were requested when he wrote the report, and the third recommendation is to monitor the movement of the wall. Mr. Yau said that if the wall happens to have additional movement, the owners should take necessary measures, but said that measures that would bypass Planning and the processing stations is not something that the Department considered. Mr. Yau stated that he and Deputy Director Sweeney thought that any further movement of the wall would be slow and would not happen in a matter of minutes. Mr. Yau said that if there was any movement it was a sign of some tension cracking from the top of the wall where movement has been observed according to Mr. Karp and that is the position that the Department took at the time of the inspection.

Mr. Carlos Bea stated that he and his wife have lived in this home for 23 years. Mr. Bea said that he had three witnesses for his case and said that the first was Mr. Karp, who will testify as to the movement and the actual breakage in the wall; Dr. Carden, who will testify that it is an immediate danger, as he stated in writing as of November 24; and Civil Engineer Kennedy, who will testify that the irrigation is not a cause of any movement. Mr. Bea said that he would let the experts have their say.

Mr. Lawrence Karp stated that he is a geotechnical engineer. Mr. Karp said that this wall is back filled with sand, and has been saturated with clay, and the drainage no longer works; there is no way to repair it without repairing the wall and the wall has failed. Mr. Karp stated that he has been involved with this issue for three years and has been to the property about 40 times. Mr. Karp said that the wall has to be repaired as it is about ready to collapse. Mr. Karp said that Mr. Yau does not know what he is talking about and said that there was no irrigation. Mr. Karp stated that Mr. Yau claimed to be a structural engineer and said that Mr. Yau is not a structural engineer, not a geotechnical engineer and just does not know what he is talking about. Mr. Karp said that this property is in Cow Hollow where all the drainage comes down and said that he has tried to explain this to Mr. Yau without success. Mr. Karp said that the wall is under pressure and has to be repaired.

Mr. Josh Carden said that he is a structural engineer and stated that he looked at the subject wall on December 5, 2007, on November 5, 2009, and this morning and said that he reviewed photographs of the wall that were taken on December 14, 2009. Mr. Carden said that in his opinion, based on what he saw, the wall is in a state of imminent collapse and could undergo a catastrophic collapse during the ongoing heavy rains. Mr. Carden said that if there were a catastrophic collapse people on or adjacent to the property could be injured or killed. Mr. Carden stated that he disagreed with engineer Yau about the opinion of water coming out of weep holes means that the pressure is being relieved; all it means is that the pressure exists. Mr. Carden said that he also disagrees with Mr. Yau’s statement that because the wall survived past earthquakes the wall is safe. Mr. Carden stated that his personal opinion is that the wall has gotten significantly worse since December 2007 and that it is in a state of imminent collapse and should be mitigated.

Mr. Francis Kennedy introduced himself as a consulting civil engineer and showed the Commission a picture of the area at the top of the wall. Mr. Kennedy said that he thought there was a misunderstanding on the part of staff regarding irrigation at the top of the wall. Mr. Kennedy stated that he was at the site on Monday and did an inspection, took a picture and said that the picture shows that there is a flexible plastic pipe on top of the wall that is a supply line only; there is no water coming out of that line into the soil. Mr. Kennedy said that there are no plants there to be irrigated and said that the notion that a drip irrigation system is the cause of failure to the wall is completely incorrect. Mr. Kennedy said that he would be happy to answer any questions.

Mr. Karp said that Mr. Yau said that there is a lawn and stated that there is no lawn and that the water that Mr. Yau saw came from the sky; it is rain and not irrigation. Mr. Karp said that there is a supply line on a neighbor's fence that goes down the hill, and it is only turned at the end of the summer for a month or something. Mr. Karp said that this supply line is 70 feet from the failing part of the wall and said it was a sacrilege for someone to say that if you turn your irrigation off in November your wall will stop moving. Mr. Karp said that Mr. Yau does not look that the brick has deteriorated as brick is nothing but clay and it has been subject to underground water pressure and seepage for 140 years. Mr. Karp stated that the only thing left in some parts of the wall is the mortar, and said that it just has to be fixed. Mr. Karp said that there is a way to fix it and said that there were two architects that will oversee this wall replacement. Mr. Karp stated that he has told by the Planning Department that they could come out during construction and that the owners will do anything that Planning would required. Mr. Karp stated that Planning will not do this even though all the fees have been paid and everything has been done. Mr. Karp asked that the Commission just allow the work to be done

Commissioner Lee said that there is no question that the wall ought to be repaired, but the question is about why the owners are appealing the denial of the emergency permit. Mr. Karp said that Planning wants to take a year to go through hearings under Article 10. Commissioner Lee said that that does not mean that a permit will not be issued. Mr. Karp said that Mr. Sweeney will not give his clients a permit. Commissioner Lee said that the owners have to go through the process. Mr. Karp said that the owners were asking for an emergency permit as the process has broken down. Mr. Karp said that he started the process on October 15^th and shared his frustrations with the procedures in the Planning Department and their practice of requiring a certificate of appropriateness. Mr. Karp stated that he then turned to DBI and DBI promised to send out a qualified engineer, but instead sent out Mr. Yau who claimed the problem was with an irrigation pipe. Mr. Karp said that this has nothing to do with irrigation; the wall has to be repaired and cannot be repaired without a permit as a contractor will not do the work without one.

President Murphy said that he took exception to Mr. Karp referring to the engineer as someone who does not know what he is doing. President Murphy stated the Mr. Yau has been with the City for many years and is a very qualified engineer who has been out to many emergency demolitions in San Francisco and has made decisions the other way. President Murphy said that this time he has chosen to make the decision to not allow the emergency demolition and said that everyone should respect that.

Mr. Karp stated that Mr. Yau said he was a structural engineer. Mr. Karp said that he investigated and Mr. Yau is not a structural engineer and that was the point he was trying to make. President Murphy said that he wanted to hear from the engineer. Mr. Yau said that he never declared himself a structural engineer as he is a civil engineer, and said that it is illegal to call yourself a structural engineer when you are not licensed as one. President Murphy thanked Mr. Yau for the clarification.

Commissioner Levitt asked Mr. Carden, the structural engineer, if the repair of this wall was in a state of emergency when Mr. Carden visited the property in 2007. Mr. Carden said that it was in imminent state of collapse, and still is in imminent state of collapse, even closer to a catastrophic collapse. Commissioner Levitt said that it has been two years in an imminent state of collapse, and it has not collapsed. President Murphy asked if Mr. Carden took any measurements the first time he went out there and on the most recent occasion to compare the opening in the wall or the cracks. Mr. Carden said that he took some relative measurements as he did not have his tape measure with him, but said that he did take some photographs. Mr. Carden stated that it was obvious to him that the movement of the wall had increased; the wall has become much more unstable now than it was two years ago. Mr. Carden said that there were two significant cracks in the wall, both vertical and horizontal cracks and said that he would assume that there is no reinforcing in this wall because of its age. Mr. Carden stated that all of the materials in the wall are in the state of failure. President Murphy said that he did a site visit prior to receiving the informational packet and said that he was torn on this issue because he agrees that the retaining wall is failing, but said that this is a Planning issue.

Commissioner Levitt asked if the Planning Department told the owners that they could not get this done because of the historical significance of the property. Mr. Karp said that Planning wants a “certificate of appropriateness” which would take about one year, but said that with an emergency permit the work could be done immediately. Mr. Karp said that there is a contractor ready to go and stated that his clients just want to put the tie backs in, start fixing the wall and go back and forth with the piers. Mr. Karp said that the way that DBI works the Department just does not want to do anything without Planning approval and to get the two sides together is very hard.

Commissioner Romero said that he had a couple of questions for Mr. Carden. Commissioner Romero said that Mr. Carden stated earlier that he had checked this wall in 2007 and asked Mr. Carden if he had seen the same problem with the wall at that time. Mr. Carden said that he saw the same system of cracks, but said that they were not as advanced. Commissioner Romero said that Mr. Carden was concerned at that time and asked why the wall was not fixed in 2007; had the wall been fixed then it would not be an emergency today. Mr. Carden said that this was true.

President Murphy called for public comment.

Ms. Louise Bea said she was the homeowner along with her husband. Ms. Bea stated that the wall was built before the house which was built in 1867. Ms. Bea said that their goal was to preserve the wall and said that that all of a sudden there was a crack in the wall that started to move. Ms. Bea expressed concerns about the wall lasting through the winter and said that the crack in the wall is only about nine feet from the corner of the house which is a historic landmark. Ms. Bea said that they wanted to attend to this now as they did not anticipate that the wall would fail and said that in a wall of this age made of unreinforced brick there is not a lot of give and take, but there is failure. Ms. Bea said that their goal is preserve the landmark and the way to do that is to fix the wall on an emergency basis. Ms. Bea said that when it is repaired, it will look exactly like the rest of the wall and asked once again that the Commission allow for an emergency permit. Ms. Bea said that the Department had been warned in writing that the wall is a danger and could fall on this landmark house.

Secretary Aherne called for a rebuttal from the Department. Mr. Willy Yau stated that he does not like to talk about his qualifications, but said that since it was brought up he wanted to say that he went to UC Berkeley to obtain his engineering degree, plus a bachelor’s degree. Mr. Yau said that he has taken the same technical engineering classes at UC-Berkeley that a lot of practicing technical engineers and geologists have taken. Mr. Yau stated that over the years, he has been working with the Department of Building Inspection going out on emergency response for landslides and distressed buildings.

Mr. Yau showed pictures of the subject property and said that there is a great amount of water and that is why he made the suggestion to turn off the drip system and keep the wall dry because at the time of inspection it was determined that water was causing further deterioration of the wall. Mr. Yau said that might not be the sole cause of the failure of the wall and the Department understands that the wall is cracked, but it is not a catastrophic situation. Mr. Yau stated that this is the whole point of trying to mitigate the situation in the short run, not to have additional wall movement and shut off any possible sources that could cause more damage.

Commissioner Lee thanked Mr. Yau for his knowledge. Commissioner Lee said that it seemed like this issue is an all or nothing fix and said that there is some question as to whether there is a lot of water coming through and moving the wall or not. Commissioner Lee asked if there was a middle ground that could be approached right now or an engineering solution that could be used to stabilize it to keep it from moving temporarily. Mr. Yau said that in these types of situations the Department always recommends that a survey be done and that the wall be monitored after a big storm to take another look at the situation. Commissioner Lee said that he was asking if there was something that could be done structurally to keep the wall from moving temporarily. Mr. Yau stated that kickers could be put in that are like a temporary shoring system. Mr. Yau said that the addition of kickers would be quite effective as a wall like this fails progressively and if it is not taken care of the deterioration happens faster and faster. Mr. Yau said that the kickers would be an attempt to stop the movement.

Commissioner Levitt asked Mr. Yau if, in his opinion, this is not an emergency situation. Mr. Yau said that these types of gravity walls are not an emergency unless there are signs of drastic movement and said that as long as the wall holds together in one piece it should perform well. Mr. Yau stated that there are a lot of cracked retaining walls in the City and they perform well year after year. Mr. Yau said that if the Department was called out to inspect this wall there would be a recommendation to repair the wall as quickly as possible, but said that it is not going to fail catastrophically all of a sudden; over time the water damage to the foundation will erode the underlying support. Mr. Yau said that over time then the cracks in the wall would keep creeping and then it might topple over. Mr. Yau said that the applicant’s structural engineer saw some cracks over two years ago and yet the owner was not moving ahead with the project for one reason or another.

Commissioner Hechanova said that he was concerned that there might be a blowout of the wall and that this might do damage to the private historic property. Commissioner Hechanova stated that the current owners are wanting to undertake corrective measures and asked if this is not what the Department wants. Mr. Yau said that he thought that Commissioner Hechanova totally misunderstood the situation regarding DBI’s position; the Department’s position is to recommend that the repair be done because this wall has already passed its useful life, but not under an emergency permit. Commissioner’s Murphy, Levitt and Romero asked why there was a problem with issuing an emergency permit for this.

Deputy Director Ed Sweeney said that this was an engineering problem therefore he deferred to the Department’s engineering staff and they do not see it as an imminent collapse. Mr. Sweeney said that the wall does have some cracks and some bulging and does need to be repaired quickly, but said that if Mr. Karp would engage the Department of City Planning this problem would be a long way toward solved. Mr. Sweeney said that some of the problem with this issue is on the approach that is being taken. President Murphy asked where the application and permit were right now. Mr. Sweeney said that he believed that Mr. Karp requested that it be denied so that the issue could be taken to the Board of Permit Appeals and said that it seemed as if Mr. Karp wanted to exhaust the appeals process. Mr. Sweeney stated that in his opinion, this would be quite far down the line right now if the owners had continued to work with Planning and responded to their concerns. Commissioner Romero said that it seems as though the owners do not want to deal with the Planning Department at all, and expediting this would get around that.

Mr. Sweeney said that the whole purpose of the emergency order is to get around the Planning Department and said that no one in the Department is saying not to repair the wall, but in all communications DBI is saying that the owners have to get a building permit. Mr. Sweeney stated that Planning has a process and the owners have to get through that process. Mr. Sweeney said that the Department has given out four or five emergency demolition permits in the past few years. Mr. Sweeney said that he did not recall ever giving out an emergency demolition for a retaining wall.

Mr. Karp said that the back wall is moving forward and unless the repair plans are implemented the cracked wall will start moving and Mr. Yau will not be there to take responsibility. Mr. Karp said that there will be a zipper affect as this wall already has a “v” in it and it is moving out; when that goes, the side wall has no support. Mr. Karp said that his clients want to make the repairs that include extensive drainage.

Mr. Carden said that he had a couple of clarifications, one being that he did not see any evidence that this is a gravity wall. Mr. Carden stated that the fact that the crack is developing behind the top of the wall suggests that the wall is relatively thin.

Mr. Kennedy said that there is no irrigation line connected and said that this wall is a complete horseshoe. Mr. Kennedy stated that the pictures show that the ground is wet, but that was because the pictures were taken after a very intense rain storm not because of any drainage system that is not connected.

President Murphy asked if Director Day could add anything to the discussion. Director Day said that Deputy Director Sweeney covered the issue well and said that she would have made the same decision if it were up to her at the time.

Commissioner Levitt asked if there was anything that the Director could do to move this process along with the Planning Department. Director Day said that Deputy Director Sweeney did talk with the Planning Department and said that if the process had been followed the process would be farther along at this time without stopping to go through the appeal’s process.

Commissioner Lee said that he thought that the applicant was misdirecting his frustration toward DBI as the frustration is more with the Planning Department than with DBI and said that the applicant is trying to go around the process by asking DBI for an emergency permit. Commissioner Lee said that the Department and the BIC cannot take an emergency declaration lightly, and cannot just say this is an emergency when it is not. Commissioner Lee said that he was not perfectly sold on the idea that this is an emergency because the cracks were noticed two years ago yet the owner waited until now to entertain fixing the wall. Commissioner Lee said that perhaps the Commission could pass a resolution that would be sent to the Planning Department to help expedite this project. Commissioner Lee stated that perhaps the Director could allow the owners to get a permit to help stabilize the wall while they go through the Planning process. Director Day said that a permit could be issued to temporarily shore up the wall.

Vice-President Hechanova said that he agreed that something needed to be done to shore up the wall and to protect the property. Commissioner Romero said that he wanted to comment on the whole idea of needing resolutions to rush things through. Commissioner Romero stated that he would vote for things like that if the BIC did it for everybody, but said that he is not convinced that the BIC is at a place where whoever comes in with an emergency of this sort, that the Commission would necessarily vote the same way, so he is opposed to those types of resolutions. Commissioner Romero stated that he was still not convinced that the report from the City engineer is incorrect and said that he does believe that there was probably an issue two years ago, and if the process had been started, the issue of an emergency permit would not be before the BIC today. Commissioner Romero said that he believed that the appellant has to go through the process.

Commissioner Hechanova said that the owners are now trying to take action now to prevent something that will imminently fail. Commissioner Romero said that he agreed, but said that the owners should go through the process of the Planning Department as DBI did their due diligence in assessing the situation and these owners have still not started the process.

Commissioner Levitt said that he agreed with Commissioner Lee regarding the owners’ frustration being misdirected and said that he understood the frustration with the process as he is an architect. Commissioner Levitt stated that in his opinion there is something wrong with a process that takes years to get planning approval to replace what seems like an imminent hazard and a safety issue. Commissioner Levitt stated that he would like to see some way to expedite this process without doing something that the Department of Building Inspection really cannot do. Commissioner Levitt asked that everybody involved get together with the planning department and approval could be gotten quickly so that the owners could go ahead and do this work. Commissioner Levitt said that he did not think that temporary shoring was the solution as the wall will eventually have to be replaced.

Mr. Karp said that his clients are going through the planning process and said that all repairs are exempt from Article 10 of the Planning Code. President Murphy said that it is the Historic Commission that the owners have to go through and that is a whole other Commission that has nothing to do with DBI or the BIC. Mr. Karp said that his clients have already paid $2,700 to the Historic Commission. President Murphy said that there are hundreds of other people in the same position in San Francisco that are caught in this web and this is a bureaucracy that DBI did not create. President Murphy said that the BIC has to stand by the Department and not go against their decisions as a Commission. President Murphy stated that the Commission does go against decisions made by the Department in some situations, but does not think that this is warranted in this situation.

Commissioner Romero made a motion, seconded by Commissioner Lee that the Commission uphold the decision of the Department not to grant an emergency order.

Deputy City Attorney Francesca Gessner asked if the motion was based on findings that the repairs to be made to the retaining wall do not constitute serious and imminent hazards within the meaning of the Building Code. Commissioner Romero answered yes.

The Commissioners discussed having the appellants file for a permit to do temporary shoring and asked that DBI help to expedite that permit. Director Day said that if the Department had a permit application submitted for the shoring and the tiebacks the Department could probably approve that.

Deputy Director Sweeney stated that DBI would need a separate application for that work and said that the owners could apply for another permit to start some of the work that they have proposed that would be allowable.

 

The Commissioners voted as follows on the motion:

President Murphy No

Vice President Hechanova No

Commissioner Lee Yes

Commissioner Levitt Yes

Commissioner Romero Yes

RESOLUTION NO. 058-09

 

The vote was 3 - 2, however 4 votes are necessary on an appeal. Therefore, the City Attorney advised that this appeal could be continued. Secretary Aherne stated that since the Commission has heard all public testimony the Commission would not hear this appeal again, but the Commissioners not present would watch a video of the proceedings and then the Commission would vote again at a subsequent meeting. Deputy City Attorney Gessner stated that the Commission would have to entertain a motion to continue the item.

Commissioner Levitt made a motion, seconded by President Murphy, that the appeal be continued.

Deputy City Attorney Gessner said that she wanted to clarify that the Commission had the option of continuing this appeal because there are Commissioners that are absent and their votes could make a difference on the outcome. Deputy City Attorney Gessner stated that if it were not continued the failure to take action here, and the failure to have a majority vote, means that the underlying Department decision would stand, meaning the denial of the emergency order.

 

The Commissioners voted as follows:

President Murphy Yes

Vice-President Hechanova No

Commissioner Lee No

Commissioner Levitt Yes

Commissioner Romero No

The motion failed on a vote of 3 – 2. Secretary Aherne said that she wanted to make it clear that the Department’s decision stands.

RESOLUTION NO. BIC 059-09

President Murphy apologized for keeping the public waiting for so long.

Mr. Jose Morales said that everyone should thank Jesus Christ for one more day of life. Mr. Morales stated that justice delayed is justice denied and said that it had been one year since he first came to this body begging for justice. Mr. Morales said that with the help of the Sunshine law he would like a short written statement from each one of the Commissioner and the President quoting the book and the laws that apply to his case, and a statement saying whether his request for a public hearing should be upheld or denied. Mr. Morales said that if it was denied he wanted to see in writing why it was denied. Mr. Morales said that then he would come with his written rebuttal in a public hearing, showing the BIC exactly, number one, documents, two, pictures, videos, three, witnesses, to show the Commission that DBI, according to the Commission bylaws, is totally wrong by not having investigated the landlords committing fraud and perjury. Mr. Morales stated that he had a letter from Supervisor David Campos asking that he be given a chance for a public hearing. Mr. Morales said that he just found out from Supervisor Campos' office that the BIC will not offer him a public hearing. Mr. Morales said that in summary and conclusion, he was trustful that with a body like the BIC there could be a simple solution. Mr. Morales said that this problem has affected him for so many months as his landlord took away his belongings and said that he has been treated outrageously bad. Mr. Morales thanked the Commission for their time.

President Murphy said that Mr. Morales would have to be referred to the City Attorney as this does not come under the jurisdiction of DBI or the Commission.

Director Day stated that the Department has provided its opinion in writing already, several times now and said that this had been heard before the Commission. Director Day said that she has given Mr. Morales copies of all the applicable codes regarding this showing that she does have the authority to make the decision that was made, and it was made by somebody several years before her. Director Day stated that the time for appeal is long past.

There was no further public comment.

President Murphy asked that all other items be continued until the next meeting: item #’s 3, 7, 9, 10 and 11.

Director Day stated that she would like to get item #9 taken care of today so that she could continue with her reorganization of the Department. President Murphy agreed to hear item #9 and continue the other items.

The Commission reconvened at 2:46 p.m.

Commissioner Lee made a motion seconded by Vice-President Hechanova to disclose the discussion held in Closed Session. The motion carried unanimously.

RESOLUTION NO. BIC 061-09

President Murphy said that there was a vote taken in Closed Session and said that the Commissioners all agreed to make an appointment for Deputy Director of Administration. President Murphy asked if Ms. Levin would like to come up and say something.

Ms. Pamela Levin thanked the Commission for having faith in her and said that there were a lot of very dedicated professional individuals working at DBI. Ms. Levin said that she was looking forwarding to working closer with them.

The Commissioners congratulated Ms. Levin on being a Deputy Director.

Secretary Aherne asked for a motion to continue items 3, 7 and 10 until the next meeting.

Vice-President Hechanova made a motion, seconded by Vice-President Hechanova to continue items #3, 7 and 10 until the next meeting. The motion carried unanimously.

RESOLUTION NO. BIC 062-09

Vice-President Hechanova made a motion, seconded by Commissioner Lee, to adjourn. The motion carried unanimously.

RESOLUTION NO. BIC 063-09

The meeting was adjourned at 2:50 p.m.

_______________________

Ann Marie Aherne

Commission Secretary