president peterson: mr. sanchez? >> scott sanchez, planning department. just to reiterate again, there are two issues that have been raised by the appellants -- whether or not the project is code complying. using their arguments would change how we review mcds in san francisco. if we were to consider child care facilities, which are a separate definition in the planning code -- and we do have many definitions in the planning code. it would be common to refer to one definition for one use and another for a different use. the important thing we look at is how we would process the application. the chapter facility we will process as a child care facility in planning code. we will not process it as something else. we will not process it as a social service. i think that is an important part to make. this is a code compliant project. we did review it against the requirements of the planning code for the 1,000 foot requirement. we did not find that there were any facilities with of the defis that are prohibited in the code. in reference to the error in the code

people president peterson: -- president peterson: mr. sanchez? >> scott sanchez, planning department. i do not think there is anything in the record that warrants a rehearing. i think all the issues were addressed accurately at the two appeal hearings this board had in the item. there was also a discretionary rehearing before the planning commission. all the issues have been thoroughly vetted. i do not see how the arguments are directly related to the item on appeal before you. the issue of how it was raised. that is a residential plan guideline issue that should be addressed to the building permit, which would also be appealable to this body. we cannot approve it until the final action is taken on the variance. that would encompass the entire project. i am available for questions. president peterson: public comment on this item? >> how much time did you want to give for public comment? one minute per speaker? >> i am in the community. my children attend school near the open space. the open space -- i am very familiar with it. this is an area wit

mr. sanchez, we again apologize. that night was confusing, but we should have a parade in your honor as well. any other commissioner comments? any public comment on the commission of commons? seeing at non-, we will move on to item 3, the adoption of the minutes. before you for your consideration are the minutes of the board meeting of november 3, 2010. i move to adopt the november 3, 2010 minutes. any public comment on the minutes? seeing non-, call the roll, please. >> on that motion from the president to adopt those minutes, commissioner fund. commissioner fung: aye. vice president goh: aye. commissioner garcia: aye. commissioner hwang: aye. >> item 48 is your consideration of findings to do with -- item 4a is an adoption of finding to an appeal you heard recently. it is appeal no. 10-092, up banks versus dbi. you voted to overrule in grant the approval on the condition that the utilities be capped and maintained. these findings were drafted with your motion in mind. the parties have agreed to the findings as writ

i think mr. sanchez give an excellent summary. i want to go back and point out to things. this project was not in the institution master plan. because it is not, it cannot get a conditional use. this is not the only project that they have consciously acquired, knowing that they had to first get an institutional master plan and permits. this is a repeated strategy of the academy of art university. this is the first time it has come to a head and someone is being asked to say you have to follow the law. i think this board should do what you did at the last hearing. say that that is the case and do not have a rehearing. thank you very much. >> any other public comment? seeing none, commissioners, the matter is before you. commissioner garcia: the reason for a rehearing is new information or some indication of manifest injustice. i do not think either one of those has been raised. it is pretty clear-cut. i would be in favor of not granting the rehearing. vice president goh: i agree with commissioner garcia. commissioner fung: is there a motion? commissioner garcia: so moved. p

. >> i would like mr. sanchez to speak before myself since he is the actual respondent. president peterson: he will speak after you. >> ms. leong, are we ready? president peterson: go ahead. you have 40 minutes. >> good evening, ladies and gentlemen of the board. thank you for the time this evening. what i would like to say really boils down to this. the appellants are here trying to take a second bite at the apple. what do i mean by that? every single issue that was raised here this evening was raised at the planning commission, heard at length at the planning commission, and decided upon by the planning commission. the issues raised tonight are nothing new. that are in fact reiteration of the very same issues that the planning commission listened to, analyzed, and did not find merit. what they are trying to do through this is effectively rehear the exact same issues presented, and reanalyze and take away the discretion given to the planning commission. the planning commission is vested with the original authority to decide these matters. the board of appeals is to revi

mr. sanchez said it was only about the access, it was about the porch. this was part of the relationship. the three properties were all owned by the same family. the whole reason for pushing that development and to the back of the lot, even at the sacrifice of the southwestern light was to retain their relationship between the three buildings. the >> can you walk us through which is which? >> this is 1271. they walked up to the building and then there was an opening in the wall that they continued to climb. >> what year was this picture taken? >> this was taken in 1997 when the applications were first made. one would walk up here through this wall and then on up and as someone walked up the stair, you had to go around the porch. >> that is the same porch. >> i'm looking at the east side of the historic building and i'm standing on a lot of 1216. >> what is the white building? >> this was an addition to the back of the original building. >> that looks very old to me. >> all of the work was done -- this was actually moved here in 1915. this was probably ad

. >> mr. sanchez, we are not done yet. the project as presented in these documents reflects exactly the design presented for the variants. >> this has been presented by the permit-holding and what was approved during the various application. i believe that is the case. >> the matter submitted. >> the issue of the variance and the five criteria i believe are met. i've not felt that way about money that comes through this board. there is an unusual pattern to the developments in this block. therefore, those portions of the first three which are the significant criteria of the variants, they are met because of the unusual nature of this block. on the other question that as to the scale of the project in relationship to some of the underlined portions that are not so specific to the five criteria but underlined the various process. but it would be interesting to see whether the zoning administrator or the planning commission would consider limitations on the extent of entitlement when a variances given. i think, is close to be

sanchez knows he is obviously highly intelligent. the only thing that might be bad about his appointment is the fact that he might decide not to come here any longer and represent the planning department. i hope that does not happen. beyond congratulating him, i want to commend the planning department on what i consider to be a very, very good choice in have been chosen him for a zoning administrator. on a less happy note, the other announcement i have is that i have to leave your early tonight. i have to attend a funeral service. my daughter in law lost her mother, lisa, mary louise stewart, and the service is tonight. i apologize if this creates trouble for anyone

president peterson: mr. sanchez? >> thank you, scott sanchez, planning department's staff. this evening i am lucky to be joined by the planner, who is involved and the legislation that led up to the requirements that we have, developed in 2005. if there are issues about the intent, it maybe he can address those. there were questions that came up during the testimony. i will jump around a little bit. bear with me. i want to begin with a procedural background of the application. the property is located at 2139 taraval street, between 31st and 32nd streets. the building is a mixed use building, built in 1924. that has a small retail presence at the front, and that is where the subject mcd would be located. it has one dwelling unit at the rear. bmc -- the mc-2 zoning district is principally permitted use. people like to throw around the term as of rights. there is a discretionary review, of course. the subject application, the bill to permit application was submitted at the end of december of last year. they submitted through the review process and the planning commission heard

president peterson: mr. sanchez? >> got sanchez, planning department. i would like to begin by clarifying what the environment is under the planning code. under section 132 e, there is generally an averaging of the adjacent building walls so you would come to something in line with patterns of the block. that said, there is a maximum requirement for a setback, and that is 15 feet or 15%. in this case, the 15% gives you a different measurement. we calculated the front said back as 10.5 feet. that was the maximum they needed to provide for the front setback. the proposal will extend to within 7 feet of the front property line. it is an encroachment of 3.5 feet into the set back. the permit holder had initially applied for a building that went out to the property line. the department did not feel this was inappropriate design and initiated discretionary review, taking a matter of of the planning commission. this was considered with the variance. given the proximity to the coastal zone, it needed a coastal some permit. those were authorizations by the plann

. >> mr. sanchez. quarks i would like to address some of the issues that were raised regarding the planning code and clarify some of the planning code requirements. we have had this same question come up before the board. you are permitted two dwelling units, that is the base can city, no matter what your lot size is. if you have a 6000 square foot lot, and you can petition for a conditional use to go up to four dwelling units. they are in compliance with the density requirements of the planning code. this is a good location given that this is close to call st., major transportation corridors. we think you'll be possible to have two dwelling units. it is true that you cannot demolish and rebuild a noncompliant structure unless you have a variance. that is what they are seeking. that is what they are building in the required rearguard. there has been the typical community process in this section 311 notification. there was a mandatory discretionary review hearing because of the demolition of the existin

i show my hand by the question i ask mr. sanchez. can we received someone's rights that we received unknowingly? publicly, i would stay that i doubt very seriously that they forged the signature. i would think there is a pretty strong argument that someone would relinquish her rights not realizing that she would no longer be able to receive and come from the right that she thought she had. if they should have told her that when she ended the relationship, i don't know. i guess i would take jurisdiction is that to be part of the issue if we were to have a hearing. commissioner hwang: part of the problem with this case, and i would agree with those comments in general. but what bothers me in terms of tracking the due process, i am not even going to touch the issue of whether it was forged or not. when the sun went down, it would make anybody think about, did i do something? and i would want to check into that. the timing theire, for most people, the question would have been raised. commissioner garcia: i am not trying to be argumentati

. >> it was not mr. sanchez. >> the motion is from commissioner fund to grant the variance and that he did not abuse his discretion. >> on that motion, with that basis, vice president go? >> no. >> commissioner garcia? >> aye. >> president peterson. >> aye. >> commissioner wang. >> aye. >> thank you. the granting of the variances is -- the vote is 4-1. the granting of the variances is upheld on that basis. >> the last item on the agenda is your consideration of proposed amendments to the board's rule. for the last few months, i have been working with president peterson and vice president goh on coming up with language that might be useful to consider in order to try to clarify the rule to make them more understandable to the public, more consistent with the board's practices, and to make sure that we are operating in accordance with any relevant legal requirements. you've been provided with copies of the proposal. an overview of the provisions have been posted on the web site so that the public has been

vice president goh: at the last hearing, and maybe this came from mr. sanchez, sorry if it did, but because it needed a permit, it needed a permit because the foundation would be for rebar, anchor bolts, something called "ice a laters -- "isolators," and i do not know what that is compound but -- >> i do not think it rises to the level of meeting a permit for those elements. vice president goh: ok, thank you. commissioner garcia: mr. kornfield, is it your opinion that this board should consider the effects of noise on neighbors and tenants? >> i think that is a legitimate concern for the board, and i say that because the building code since 1974 has addressed noise concern for individual -- for residential units. noise concerns have to be addressed to reduce outside noise, between us, as well, so i think it is in the legitimate code issue, one that would be legitimately be before the board, in my you personally. commissioner garcia: maybe this is not a question for you, but if this individual is a tenant and had some legitimate lease, although the true

vice president goh: at the last hearing, and maybe this came from mr. sanchez, sorry if it did, but because it needed a permit, it needed a permit because the foundation would be for rebar, anchor bolts, something called "ice a laters -- "isolators," and i do not know what that is compound but -- >> i do not think it rises to the level of meeting a permit for those elements. vice president goh: ok, thank you. commissioner garcia: mr. kornfield, is it your opinion that this board should consider the effects of noise on neighbors and tenants? >> i think that is a legitimate concern for the board, and i say that because the building code since 1974 has addressed noise concern for individual -- for residential units. noise concerns have to be addressed to reduce outside noise, between us, as well, so i think it is in the legitimate code issue, one that would be legitimately be before the board, in my you personal

vice president goh: at the last hearing, and maybe this came from mr. sanchez, sorry if it did, but because it needed a permit, it needed a permit because the foundation would be for rebar, anchor bolts, something called "ice a laters -- "isolators," and i do not know what that is compound but -- >> i do not think it rises to the level of meeting a permit for those elements. vice president goh: ok, thank you. commissioner garcia: mr. kornfield, is it your opinion that this board should consider the effects of noise on neighbors and tenants? >> i think that is a legitimate concern for the board, and i say that because the building code since 1974 has addressed noise concern for individual -- for residential units. noise concerns have to be addressed to reduce outside noise

as mr. sanchez pointed out, they were not designed -- they were not denied the permit because of the design. they did not follow through on the process. that is the telling argument. it is not fair for them to say the permit was denied so we have to build something very small. they did not do their due diligence and did not follow the process to the end. that is why the permit was denied. also, one of the property owners on 48 avenue stated that there are no tall buildings on the block. there are. there are some new buildings and they are all taller. they are very good and they do fit in the character. i was born and raised on 47th avenue around the corner. when i was a young person, there were no taller buildings back there. but then on the highway at 48th avenue there was a massive building built, at least five stories tall. it has in many units in it. that is an example of a bad building. for the more modern renovations, they are taller but they look very good. great highway is becoming a

at the last hearing, and maybe this came from mr. sanchez, sorry if it did, but because it needed a permit, it needed a permit because the foundation would be for rebar, anchor bolts, something called "ice a laters -- "isolators," and i do not know what that is compound but -- >> i do not think it rises to the level of meeting a permit for those elements. vice president goh: ok, thank you. commissioner garcia: mr. kornfield, is it your opinion that this board should consider the effects of noise on neighbors and tenants? >> i think that is a legitimate concern for the board, and i say that because the building code since 1974 has addressed noise concern for individual -- for residential units. noise concerns have to be addressed to reduce outside noise, between us, as well, so i think it is in the legitimate code issue, one that would be legitimately be before the board, in my you personally. commissioner garcia: maybe this is not a question for you, but if this individual is a tenant and had some legitimate lease, although the true

president peterson: mr. sanchez. >> good afternoon, president peterson, members of the board. scott sanchez, planning department. the academy argues there is a lack of justice to the students, that they have illegally moved into the subject building. this is not the first building the academy has acquired and converted without benefit of permit. this is just one of the most recent ones. as mentioned in the last hearing, the department has taken an approach to this. properties that were acquired and converted before they had their environmental impact -- we are allowing them to go to the process. those which were applied afterwards -- no one can say they did not have do notice. they knew very well the could not acquire a property and conferred it without going through this process. the acquired the property last year, moved students in. they did give the courtesy to the planning commission of sending a letter that there were going to do this, but they did not require -- they did not apply for acquired permits. their attorney has said the building does not represent a health and

i see mr. sanchez nodding his head. >> i am not a ceqa expert, but probably. vice president goh: thanks. president peterson: and want to follow up on the heron. did your department look at which trees that had the impact of habitat loss? >> we did not look specifically at habitat loss. president peterson: is that not within your purview? is that some and you do not consider it? >> it is something we try to consider. i think in this case because of the condition of the trees, and there are still other trees on the block and other elements in the neighborhood, it is a little bit different than if you are looking at an impact habitat or when we do removals in areas that are more naturalistic areas. commisssioner fung: ms. short, is it the department intend to issue one contract for the replacement of all for trees? -- four trees? >> the replacement would be in house, but we would make all efforts to minimize any delays and have it ready to go. commisssioner fung: what time frame is the department looking at? >> probably if the board decision is to uphold the remo

vice president goh: -- commissioner hwang: mr. sanchez, in your reply, this submission, dated november 4, it references planning code section 790.116. you excerpt it here. anyway, right before the conclusion, you reference this multiple times, about the definition of personal service. do you have whole colt -- the whole code section? >> yeah, sure. this will take a second. to have the overhead, please? the definition, personal service, retail use efinition, l service, retail use which provides services to the individual, including salons, cosmetic services, tattoo parlors, and health spas, or art, dance, exercise, martial arts, and music classes. that is where we felt both of those centers were both best classified under that section. tha commissioner hwang: okay, thk you. president peterson: as commissioner garcia mentioned, he had to leave the meeting. when it comes time to vote on this item, it commissioner garcia's vote would make a difference in the outcome of the item, the item will be continued to allow his participation in