and then the applicant came in and applied for a permit. commissioner garcia: then, sent out to the neighbors is something to do with a description of the project. they would still at that moment have the right to appeal the project itself without any consideration of whether or not it needed a variance? >> correct. commissioner garcia: so that was available for them. maybe ms. connor -- it has to do with the variance. let us assume for a second i am satisfied with everything having to do with the building. i am still a little confused about the hardship issue. it seems as though in the paper submitted by the permit holder there is a shift in what the hardship is from the hardship had to do with the fact that it is already built to, and i am saying this with respect and

concern, we now know that the wife is very sick. permanently disabled, i think is the term. would that ever be a hardship considered by planning? >> kate conner, planning department's staff. i do not believe when that variants was granted that it was taken into consideration. looking back, we had the first building permits legalized. the applicant did go to the right procedure. there was a little bit of bigness in the notice. it did exceed the scope by about a foot and a half. they came back in with new permits and legalized that. the notice was a little bit vague. the plans were correct. at that point, they needed the variance. that is for the foot and a half. as for the hardship, the effect

on other properties was taken into account. the variance is a minor amount, 18 inches. commissioner garcia: the heart ship had to do with the fact that a lot of other people enjoy the same right? the hardship would be if you do not get to enjoy the same right, it would be a hardship? is that a reasonable interpretation? >> i would say so. commissioner garcia: if someone were to have trouble with that, when the findings have to be met, is it met on a preponderant basis or by each and every one? >> i believe that each and every one of them has to be met. let me grab the lead to real quick. commissioner garcia: -- let me grab the letter real quick. commissioner garcia: i think i knew the answer. >> each and every one of them

has to do that. commissioner garcia: that is all for now. vice president goh: i have a follow-up question. i am looking at the one where the existing condition is written and it says no change all the way down. it is attachment c. then there is handwriting. is the handwriting -- did that come in the course of the planning department reviewing this and fixing it? >> i believe the handwriting was from the appellant. this is actually what was noticed was the and no change. vice president goh: you are saying the sheet is incorrect but the plans that were attached were correct? >> the plans were correct. i think that currently it would have been a little more clear. i think the existing would have been existing prior to the illegal construction. this is proposed construction.

it still needs to be legalized. even though it already exists. vice president goh: they are meaning the existing condition including the illegal condition? >> exactly. commissioner garcia: let me ask you this question. when one writes a check -- i do not think anybody writes checks anymore. i am trying to remember which want a bank would rely on. if there is a discrepancy between the way the number is written -- if i write 100 with a dollar sign in front of it or if i write out one hundred. in planning, is there a -- if there is a difference between the 311 notice, if there is a discrepancy between that and the description of the plans, this one take precedent over the

other? >> i think correctly it would have been noticed slightly differently. but as betsy was saying earlier, the project description is still accurate. it is not going beyond the building. the second story edition -- addition extends to the wall. there is no change in those building requirements. this notice could have been more precise in saying there was a second story horizontal addition being legalized. it is tricky to be able to encapsulate exactly what is happening, especially when it is within the same building footprint. commissioner garcia: under most circumstances, and this is hypothetical, if there is a material difference between documents we are referring to, would planning say let's do this over? or would they say it is taken care of in the description, or it is taking care of in the 311? >> typically, we want them to

match. that is our goal. typically, we would re-notice. in the second case, the appellant had contacted him. that was when there was a typographical error. at that point, someone else had complained the decision was made, because it was not the typical part, that it was ok. people had found out about it and there was still not a dr filed. typically, the department wants the notice to match the plans. president peterson: thank you. mr. corn field, anything further? commissioners, the matter is submitted. commissioner fung: for me, the

crucial point here is where that existing wall was. the photos do not provide definitive answers for me either way. i think the entire variance is premised on the fact that that existing wall was located at a point around 23.5 feet from the property line. i am not convinced that is the case. i do not have enough documentation that demonstrates that to me. therefore, how i view the variance is dependent, i think, on exactly where that rear wall was, or whether that rear wall disappeared at some point in time. i do not think that the 311

notice was fatal in terms of the information it needed to provide it to adjacent neighbors and the appellant. however, if the existing rear wall was not located within that distance of 23.5 feet, i think then that the -- my take on the variance would be entirely different. i need additional inspiration from all parties, including whatever photos they have, especially of the rear. the photos provided only show what is there now. i do not know what was there

before, and therefore i cannot ascertain exactly that the second-floor addition was built their on the existing outline of the property. vice president goh: can i just pose a question? i understand we do not know where the rear wall was. don't we know it is the foot and a half further out than it was? commissioner fung: know. it is a foot and a half less than what is required. vice president goh: ok. >> if i could make a comment, a lot of questions are about the 311 notice. that pertains to the underlying building permit, which is not before you. only the variance is. it gives question as to whether the appellate would give a jurisdiction request to that permit, which was issued in

january. she had the right to do that. commissioner fung: my comments are purely based on what i think is germane to the variance. >> if the board has an interest in going to tinker with the extension itself, that is not before you. that would need a granted jurisdiction request. vice president goh: i think the measurements are relevant because we are trying to get a handle on what they are trying to get a variance for. but you are right. thank you for that. a jurisdiction request would be the avenue for the appellate to go if she was interested in us having a look at the building permit. commissioner fung: i would recommend that we continue this case so that the commission can have additional information from all parties here, however they

want to prove or try to prove exactly where the existing rear wall was located, whether it is through photographs or permit drawings from the original construction. however they want to try to prove that to us is what i would like to see. commissioner garcia: i am sorry to do this at this stage. i have a question for mr. kornfield. this is all over a foot and 2 inches. i am probably asking you a little bit about procedures having to do with planning. really, what i want to know is how hard would it be for the project sponsor to chop off a foot into insurance and create some steps that would become compliant and not extend into the rear yard?

>> cutting off the rear wall of the building? commissioner garcia: it is a wall? >> i am not sure. i am having a hard time understanding what it is that is extending. i presume it was the rear wall. commissioner garcia: it is the rear wall itself, not anything having to do with the steps? thank you. i guess my feelings about this is that, you know, there is a part of me that says all of the process we have gone through right now, all the chance this project sponsor might walk out of here having to tear down some of this building is possibly deserved. you do not start a project without a permit. anybody watching that would hopefully say it is probably not a good idea. a lot of these problems would

have gone away had everything been done correctly. in spite of all that, in spite of being very sympathetic to the appellant and her situation, quite frankly it feels a little over dramatized. it is going to destroy the internment of her property, have some affect on her garden? she is talking about the whole project. we are not talking about the whole project. we are talking about the foot and 2 inches extra. we heard from planning that under the 10% rule, had they chosen to, administratively they could have said they varia varne is not even required. i am not trying to reward someone for doing things without a permit. i am not totally satisfied there are not to units here. we do not have any proof of

that. it meets the standards of their not being two units. -- of there not being two units. there are questions of how hard ship was arrived at. maybe, after all we had been through tonight, someone would clean up some part having to do with the hardship and shift the emphasis. i feel as though the necessary ingredients were met. i feel like it is a very modest variance as a function of the degree to which it exceeds what should be allowed. as of right now, pending the comments of my fellow commissioners, i would be opposed to a continuance and opposed to overturning. commissioner hwang: i am kind

of leaning the other direction. if a continuance will not make any difference, i would not vote for it. but i am interested in hearing more evidence about where that rear wall had been. also, remember that the rear yard neighbor was told it was just a dec replacement. there is some sort of bad action going on here. it may be a foot of -- it may be a difference under other circumstances would not make a difference. maybe in this case it does, particularly for these members who are angry. i would be angry. i started to write down the language. it is so unusual that we hear this language coming from the department. we heard in this measurement a

number of times. we heard it was -- we heard mis- measurement a number of times. we heard the notice was on correct. we heard from the planning department that it should have beenre- and noticed -- it should have been re-noticed. the two-units box was checked. it says no change when a change was to be made. stacking it up, it does not look very good. the idea that the hardship cannot be something created by the appellant -- it certainly was, even in the administrator'' own language. i am not saying that individuals from the department here are trying to hide something, and yet it does have the feel of that. they work for the same departments. maybe that hide something.

i do not know if that is good language. but there is something amiss here. there is something unusual. maybe it is a miss enough to return. that is the way i am leaning. -- vice president goh: commissioner hwang: i think commissioners fung and goh have nailed it for me. i lean to either go with a continuance or overturn the variance. i think there are so many problems with this. i am very troubled with not knowing with the questions of footprint. the variance is premised upon -- 16 inches or whatever it is may seem insignificant, but not when you're adding it on top of 7

feet, if that is really the case. that is significant overreaching, whether it was the fault of the department or misstatements. there are too many problems with this project. the other piece of it, the standard on the overturning the variance, i agree that the hardship -- it seems to me that on finding number two on the hardship that the hardship was borne by the permit holder. i think finding to was in error. that is where i fault. commissioner garcia: just to expand on what i feel the way i do, and not to attack any comments made by the

commissioner, it was the neighbor that said he thought a deck was being replaced. the 311 notice pretty clearly states there is going to be an addition that is not replacing a deck. just to read into the record, the proposal is to construct a second story addition above the existing one story portion in the rear of the building. the edition -- the addition will extend back no further than the rear wall of the existing first floor deck. i do not know. i get from that that they are expanding a room, not that they are replacing the deck. most of the comments that have been made, again, go more to the issue of whether or not this project should have been approved. there are a lot of sloppy things about it. but to concentrate on the variance -- that's relatively

clean. we now know why mr. sanchez chose to go to europe when he did so he would not have to be here to defend this particular project. commissioner fung: i am going to continue this to october 20 to allow all parties to submit whatever documentation they think is going to demonstrate exactly where the location of that rear wall was. >> may i suggest that this concludes exhibits only, no additional briefing? commissioner garcia: is there any other way to do it? i am going to vote for your continuance, the more i think about it. are photographs all we are going to be able to have? commissioner fung: i indicated whatever documentation, whether somebody could research existing building drawings for

the original building. if they want to produce -- what are those maps called? whatever documentation that would give us good clues as to exactly where that rear wall was. president peterson: this would be due the thursday prior to the hearing? commissioner fung: that is correct. president peterson: call the roll on that motion, please. >> the motion is from commissioner fung to continue this matter to october 20. the public hearing is to allow time for the party to submit additional information pursuant to the board comments. no additional briefing is allowed, only plants and pictures. -- plans and pictures.

president peterson: and other documentation. >> all that would be due on thursday prior. vice president goh: aye. commissioner garcia: aye. >> the matter is continued. >> there is no further business this evening.

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