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Board upholds Cap Street site permit as issued after narrow 3–2 procedural vote fails charter threshold
Summary
Appellant Elaine Whitney urged changes to the permit to avoid a second‑story deck at the property line; commissioners voted 3–2 to require a 3‑foot setback but the condition lacked the four‑vote charter threshold, so the permit stands as issued.
Elaine Whitney, who lives in a rear cottage at 378A Capp Street, appealed a DBI site permit to replace rear stairs and add decks at 372–374 Capp Street, contending a proposed second‑story deck would reach the property line, require firewall protection if within three feet, and substantially reduce her privacy. She said the small cottage serves as her primary residence and she feared the deck would meaningfully affect her use of the space.
Owners Phyllis Chen and Darren McCool said the stairs are a safety necessity and the deck is modest; they described long planning, mediation and discretionary review discussions and said they had volunteered a temporary privacy screen during mediation. Planning staff said the deck is within the buildable area and consistent with design guidelines and that a 5'9" setback was provided for other portions; DBI inspector Ron Tom confirmed that openings within three feet of a property line require protection under the building code.
Commissioners considered a motion to modify the permit by requiring the second‑story deck to be set back three feet from the property line. That motion carried on a 3–2 vote (Albright, Knox, Holland in favor; Fung and Garcia opposed) but did not meet the four‑vote charter threshold required to impose modifications; the board therefore left the permit as issued with no new conditions. Commissioners encouraged post‑hearing mediation and noted the technical feasibility of setting the deck back three feet without a firewall, but the charter vote requirement controlled the outcome.
The board adjourned after the decision.
