versus the prevailing 35. steve mentioned the extraordinary lot coverage. they can protect the neighbors as well as the open spaces with other design options. finally, in 1985, when the open space was created, it was done as mitigation for the overly dense property at park view heights, to the south of the open space. it is already serving the purpose of buffering overly dense development. it is not available to fill in irresponsibility of homeowners. you cannot not have a rear yard there because the open space exists. people come here to walk their dogs and let their children run around. we already struggle with cars on the open space. our buildings indicating they are not respecting the easement and entering with cars from the

open space. essentially, the front of the building will end up being the open space. this is our place for children, people, and dog walking. there are a lot of people in this neighborhood who are going to be impacted. thank you very much. commissioner garcia: how else could they access this property other than through the easement? >> through de haro. the road would need to be extended. it is a possibility. it can easily be done. the current building, because it was already there before the open space was created, they were granted an easement of parts shipped across the open space. in the language of the easement, if at any time there is automobile access from de haro, the hardship will have been solved. if this building is demolished and a new one is started from

scratch, which still strongly the entrance to be from de haro, stopping the presence of cars on this public open space. vice president goh: you mentioned that development on the southern part. i did not catch the name. >> park view heights. vice president goh: when was that developed? >> that was developed in the '80s. the land that star king is on as well as purdue heights was originally government housing and then public housing. when the developer purchased the land, because of the extreme densities of park view heights, there was an agreement to protect the other half of the land with open space for the neighborhood. president peterson: mr. costa?

>> i represent the owners. 1321 de haro street is an exceptional property. that is why we are all here tonight. the existing 1913 structure sits on the top of the hill. it is right on the property line at the east and north of the lot. it has often been confused as the front. the structure was built from the top. its access has always historically been from the top. the front door, and garbage, and recycling is collected from the top. there have been a lot of disputes about this.

it is a steep site. it is steeper than almost any property in the area. that is probably why de haro street was not able to be continued through, or 24th street. it stops short. there is a rock outcropping in the topography. if these streets did go through, it would be like this property would be a corner property. but that is not the case. anyway, this is a new project. it is not like the old project. it has been vetted for a long time. it is one of 45 residential properties that create a perimeter of the open space. it is at the end of a block. it is very unique in terms of that it is at the end of an rh-3 block. it is the only property that is

landlocked and has no vehicular access. that is why back in 1992 it was proven to be exceptional to a court ruling. it was granted to keep its historic access. in a supervisor maxwell's office, she has a picture of this old house, showing its access and how it was used. this law can be distinguished as exceptional simply by its topography and lack of access. we started in 2007. we had an application meeting. we met with many parties. we learned there was a group at the bottom and a group at the top. we did designs at the bottom and at the top and met with the neighbors. it was a lot to digest. we had great feedback.

one was to step the design down the hill so that it fits with the hill. it kind of mimics the hilt instead of being vertical or a box. that is what we tried to do. we are really here tonight to talk about the rear yard variance. one of the things that happen during this process was we got to meet with the next door neighbors. their house is set back 30 feet. it is a two-unit structure set in the middle of the property, not counting their rear yard structures. when the owners and i sat down and met, we were asked if we would not mind slighting the project back to maintain and create the light there that they would want on the front of their house and maintain their view. then and there -- this was a

long time ago -- we agree that that was where we would plant our flag and that is what we would do. we move this project back 12 feet. it encroaches into the rear yard 12 feet. that is what we are here about today is a 12 foot encroachment to the rear yard. what is interesting is that the house that exists right now is fully in the backyard. the whole thing is property line to property line. it creates shadows. it is way back there. we are planning on increasing that. we are going to create a rear yard where there was never a rear yard. we do feel planning staff -- we had a lot of guidance with planning staff. we do feel it was reviewed and assessed inappropriate manner. our design ended up in the middle of the lot. we are set back on all sides. front, back, side, and side,

even on the open space side. they are our biggest neighbor. we do not want to forget about the little neighbor next door to us, the physical house. they will have tremendous impact. that is actually the predominant reason that we -- we moved the design back to accommodate the next-door neighbor, to be approximately in line with their house. we encroached into the rear yard 12 feet. interesting enough, the appellants' briefs do not even mention that. they do not even talk about that. why don't we talk about what we are trying to do now as opposed to something that happened a long time ago? it is a different project. they say we do not meet any of the findings, yet we are very

concise about the findings. the next door neighbors appreciated us pulling our building back. it is quite a distance, 30 feet from the front. let us talk about the open mid- block space. 1321 de haro has an exceptional circumstance in that it is not a standard block configuration. the idea of a required rear yard is to create an open mid-block space. president miguel of the planning commission echo the sentiment that it is a very unique situation. it is one-sided. the requirement for a rear yard is not exactly the same as it is on other properties in the area. i want to make that a note.

and in terms of technically speaking, i want to also mention that the lot is very steep. per section 144 of the planning code, this up-slope lot is greater than 20%, somewhere around 40% by our survey. the lot falls under an exceptional circumstance and an exception to the planning code due to its steepness. the 12 foot encroachment into the rear yard is very similar to section 136c25. i could show it to you. it says a box is allowed to encroach into the rear yard 12 feet, set back 5 feet. this is what we are asking for. what was granted is very similar to this exception.

let us see. in closing, i want to mention that there are other properties that enjoy rear yard structures. next door, four properties over. we do not have the largest footprint. our footprint, because we stepped down the design -- it is what happens when we do a step. it became the long dated. we are set back on all sides. when you actually calculate the footprint, i forgot what it was, but it is not that great. in closing, we had a lot of supporters when we went to the planning commission. we brought a couple here. all in favor of this variance, raise your hand. in the essence of time, i am going to ask them not to speak during public comment. i want to say that this granted variance decision i believe was

correctly reviewed and assessed. our primary consideration was for the next door neighbor, and we slid this project 12 feet into the rear yard. we could easily slide it forward and be within the code, but it is not right for this site. this is an exceptional circumstance. i am hoping you can see that this is not a normal site. we really are trying to do the best we can and we appreciate your time. maybe theodore brown would like to say something. is that true? >> my name is theodore brown. we work together in an architectural firm. one of the things i want to point out is that if you look at the plans that were submitted there were 10 different revisions to these plans. i think the good news about this is the design got better as we met with the neighbors, as we met with the boosters.

they would bring up comments. the result of this design is not caused by us just thinking about a design and throwing it on a plan. it was developed over a period of time. we continue developing with the planning commission. we met commissioners on the site. there were a number of commissioners who wanted to meet us on the site. almost every planning commissioner look at our plans and a model in great detail. been one of the things we tried very hard to do is to create this design almost as a landscape element. right opposite this is a house that has a straight wall that is 40 feet high. it has a required rear yard, but this wall -- here is, if you can

see it. this straight wall -- not one window in it. nothing done to it. it does not relate to the open space. we took a landscape approach to the side of our building, zigzagged it in and out, which meant we had to set it back to not create one solid plan but to enhance this open space with the building. i think the results are very successful. i want to thank the boosters for helping us with that, and also the planning commission. the planning commission really took a serious look at this. they did vote 6-1 in favor of this project. i think i will just leave it right there unless there are any questions. commissioner garcia: i have a question, mr. brown. if you were to do this project in a way that is code compliant

without a variants, what would the difference be in the cost, absolutely or in terms of a percent? >> if we were to slide it back down the hill? there is not a cost. for the next door neighbor, it would be like putting blinders on one side of their building. commissioner garcia: it seems as though -- and you will have time in the future to address this, but i want to bring it up -- it seems as though a variance is being asked for that will benefit the neighbor at the expense of a lot of people who are still in this room. >> i think they are concerned about it. the rear yard at the top -- if you go to the top and work around their -- and this is why the planning commissioners spent a lot of time looking at the back of this building from the top. one of the requirements was that the height of the back of this building not be any higher than

the existing structure even though it is set back into a rear yard. that was brought up by the president. we measure that structure and used that on our plans as a guideline. they felt like when they sit on the top they did not want this structure blocking any more even though it was set back. commissioner garcia: just for clarification, your point would be that the impact on the open space will be no greater than the existing structure? >> exactly. in fact, it is less because we do have a rear yard. vice president goh: i have a question. it was my understanding that the plans were in front of the planning commission and included a raw space. -- garage space. >> that was based on the fact that we had a garage entry at

the top. we were going to dig up coral street, dig up the existing access, and plant that, consistent with the rest of the open space. we are going to have access through a road that would allow plants to grow in between the tracks so you could not even tell it was a road. vice president goh: what happened to your garage? >> the planning commission decided they did not want a garage at the top. they said it wanted one at the bottom, that would be fine. it was approved without a garage for the planning commission. vice president goh: that is rock. you are talking about digging down deeper than the existing house to put in a garage. >> in the structure following the grade, you do not have to dig as deep as if you took a 40

foot high structure. actually, the digging is pretty limited compared to a normal structure. it is not really hard rock. you can dig it out. commissioner garcia: how are you going to overcome the fact, if i understood correctly, you are not able to bring construction equipment to the lot through the easenebment? >> we had a mediation to the judge we both agreed to. it was the same judge who made the decision. he wrote a brief. he basically disagreed with the fact that we could not bring construction equipment there. he said to access the lot you have to be able to use that area. commissioner garcia: thank you.

that is probably not an issue before this board. president peterson: with the planning department care to speak? mr. sanchez? thank you. >> thank you. scott sanchez, planning department's staff. this is a complex case. i have brought diego sanchez, a staff planner. i think the permit holder has done an excellent job in outlining the design considerations. i would like to focus on the process. the building permit application -- that building permit was submitted in april 2008. subsequently, this variance application was submitted in may 2008. it went out for a neighborhood notification. it was heard before the planning commission on october 15, 2009.

the planning commission did approve it with a six-one vote. commissioner olague was opposed. there was a condition that parking not be at the rear of the building. that was the planning commission action. after that hearing -- at that hearing, the zoning administrator granted the variance that is before you today. after that hearing, they did submit revisions that included a garage at the front of the property. this was the subject of a variance hearing in june. during this time, after the notification went out and before the hearing was held, we took a second and third look at the plants and realized it had not complied -- it was determined

that a variance was not required. at this hearing in june, the project sponsor and one or two members of the public attended. we announced that after reviewing the plans that no variance from the front setback requirements were required for that parking. there have been issues raised about whether they have perking now or not. what would be a co-complying project under this would be that they have the parking provided within the front setback as a permitted obstruction. that was provided to the department in june. there has been discussion about a complete parking variance that would not provide any parking at all. at the hearing, that was

discussed by the planning commission and the zoning administrator. they said they would entertain a parking -- a variants that would remove entirely the parking requirement. i believe a new application was submitted in august. however, it is an incomplete application. it was going to be calendar before a hearing later this month. as it is not a complete application, it is not scheduled for hearing. we requested the provide evidence to us they have exhausted all their means to locate the grosz up front. -- the garage up front. it is a burden. they do have to expand de haro street to get access. that brings us to today. in terms of the easement, if we had been advised by the city attorney's office that we could

-- it is something the commission had excluded in their decisions. in regards to the 1989 variance, there was a case from 1999 that finally decided 1993. that is precedent. that they got denied once and can never come back again is simply incorrect. it is clear that when you get denied from a permit you can reapply after one year. it is not president-setting. it does not mean you can never get this thing. -- it is not precedent-setting. it does not mean you can never get this thing. this is a very different

project. the thing we submitted was a complete copy of the decision letter. what was submitted in the first brief was to select one or two pages that did not provide context and did not really explain that it was not a complete denial. it was partially granted because there was an illegal structure at the rear of the lot and it granted that. they did get to legalize the structure at the rear. they have also proposed to add a second floor, which is in the required rear yard almost entirely. that was denied. what is being proposed here is providing a rear yard. it is not the full co-required rear yard. that is why they need the variance application. it could be seen as an improvement from the previous project. in regards to the project

itself, this is an rh-3 zoning district. it is relatively uncommon to have such a large front set back requirement. they have a large front setback requirement. that is one impact on the property. although they say they have worked with the neighbors to try to mitigate their concerns, they have addressed that by building back further. we feel it is appropriate that the findings for the variance have been met. we would be available for any other questions. commissioner fung: mr. sanchez, when the planning commission reviewed the design for the dr

hearing, there was a set of drawings, i presume, provided to them. >> no. the variance hearing in june -- commissioner fung: the first one. what has been appealed is the first variance, not the most recent one. >> there is only one variance that has been issued. it has plans that are slightly modified to the original that were considered because of the commission's decision to approve the discretionary review. they took discretionary review and had the condition that they could not have parking at the rear. that necessitated the change in the relocation of parking to the front of the building. that is the change in the plans from what the zoning administrator heard in october of last year.

the planning commission was clear in saying that parking should be at the front, or if they needed to do a parking variance they could pursue that. they were adamant in not having parking at the rear. the rear yard variance has not changed. the encroachment is identical to what was reviewed in october. commissioner fung: now you have me confused. let me approach this differently. the variance letter does not reference the particular design in terms of documentation. >> yes. we go through exhibits a, and

those would be the plans. commissioner fung: i did not see that in the letter itself. but anyway, those plans were the ones submitted for the discretionary review, were they not? >> the plans that were submitted -- the plans that were submitted at the joint hearing june of 2009 had the parking at the rear of the building. the plants are revised plans that have not parking at the rear but have converted what was the garage to that space and have relocated the garage to the front of the property. commissioner fung: we do not have that. the plans that we have have no parking. vice president goh: could i jump

in? commissioner fung: i am not finished yet. let me try to track this through. >> the project sponsor can address that issue. they submitted plans directly to this board. >> albert costa, architect and agent for the owners. at the commission hearing, it was six-one approved, but they did ask us in terms of taking the garage away -- they did ask us that we would work with staff and sculpt and kind of gives it a little more -- commissioner fung: i just want to know what documents i am looking at first. i do not want to know the reasons why get. the documents that we have --