have [unintelligible] that is not common, but it does occur. there are many other sources of information which often use when either people cannot find documents or contest the determination we make of legal use or construction. one of those we find very useful is the assessor reporter's office maintains a paper copy of a file that is the result of a field inspection by an assessor sometime during the course of the history of the building. they went out and took pictures and recorded. this is a snapshot of time, recording the area, the number of rooms, the number of sinks, and so on. that is typically on file at the assessor reporter's office and is updated by them when there is a permit or some other change. there are also many other sources of information that can help us understand changes to utilities -- power companies,

utility companies. in this case, where we have an addition to the back of a building, many buildings in san francisco develop these incremental additions where they start as a porch or a washroom or laundry and gradually get in close. next thing you know, you have an addition. it has been very common. it is common that you see additions being built on to those additions, in some places two or three of those things. the way we often track them is that we have block books and other sanborn maps through the years where we can look at the changes, which are basically looking bird's eye view, not necessarily photographically, of additions made to the buildings. those are extremely accurate. there were done for fire protection and insurance purposes. we and the public library have a collection of historic sanborn maps. they are more or less every 10

or 12 years. finally, there are photographic surveys, aerial surveys done. the documentation takes place through the last 50 years or so. much of that is available through aerial photographic resources, not necessarily in the city. i know there is one in hayward, somewhere in the east bay as well. there are many sources of documentation including building department records. vice president goh: you just listed many of them and it seems it would require a lot of resources to go down that list and do those. dbi does not do that in a case like this, is that right? >> we do not do that. we often have conflicts with property owners or other persons to say, "i believe i have three units." we say, "you go do the research and show to us how we are wrong.

we can consider correcting our effort." we provide research information. we do not actually do that research. at the assessor of recorder pep office, only the property owner by law is allowed to get a copy of that. we are restricted in some ways. vice president goh: the fact that there is no permit on file for the rear addition suggests to you that there was no permit for that addition? >> that would be the building apartments position just like it is the planning department's position. there is no permit, therefore it is not built with a permit. it is incumbent on the property owner to go to those other sources and show us it was built at a certain time. vice president goh: let us say that the lumber was old, and it

did happen that there was a port and it was in closed 40 are "years ago. there would not have been permits pulled to do that sort of work. -- was enclosed 40 or 50 years ago you do not require the property owner to take that down. >> it is a problem. just because it got done without a permit does not make it ok. we do actually have to take action. normally, things do not get taken down. they go to the permit process. they have to get a permit and either meet today's code building plan or they have to document and either come to this board or otherwise document in some reasonable way why we should apply some previous code. president peterson: i am good to interrupt you. for fire code reasons, we need folks to sit down. sorry to interrupt you.

>> over the years, this board has said, "we believe this was constructed in approximately this era," and may have directed the building department to apply the codes that would have been in effect at that time. it is a difficult problem for us all, no doubt about it. commissioner garcia: in testimony, you heard him. the issue arose as to when this was built. if we were to say it had been built in 1970, it would not have required a variance, but would have required a permit. that was terrible. you touched on that now. how is that curable? >> what can we do? we have to solve the problem somehow. they can get a permit and comply with today's codes, or this board can say we believe it was built approximately in this era and therefore take some action to cure it. commissioner garcia: obviously,

what ever they are going to do in the disputed area -- that would be current code in that they are doing it now? >> that is correct. commissioner fung: according to the building code. commissioner garcia: that is what i mean. >> the board requests you take your seat unless you have a medical condition that requires you to stand. president peterson: you mentioned additional members of the public came. can we have a showing by hands who has come here and who is for the project and who is against it? additional comment on 10 lundys lane. who is here to speak? i see five hands. these people have not taken an oath. let me ask you this. additional public comment on 10

lundys lane, who is here to speak who is not -- who has not spoken yet. commissioner garcia: it does not matter whether you are for or against it. president peterson: whether or you are for or against it, just raise your hands. commissioner garcia: how many people are for the project? how many people that hewlnewly showed up are opposed? it looks like no one showed up late who is opposed to the project. president peterson: we would have to administer an oath. i think we have a good sense of the good character of your clients. if there were further opposition, i think we would have to have a comment. i leave the call to you.

>> i think you get a sense of the support. you have a long calendar. i would defer to you and your sense that it is a long evening and go with what you want. i do not think it is necessary for each one to speak, unless one is a witness. if someone here is a witness to events, as opposed to speaking in favor of the project, i might turn and ask that. it if there are any, they might want to speak. but i doubt there are. president peterson: i think that might be a confusing question. i think we are fine. >> thank you. commissioner fung: i think you would know if you were a witness, don't you think? >> i would probably know. not in every case, but i am doing my job. president peterson: good to hear. i am going to call mr. sanchez

back up. vice president goh: i have a question for mr. soto, and then i would like to borrow the architect -- the picture you showed with the green and yellow and blue, if you do not mind. mr. soto, i would like to put on the overhead the picture we had on the overhead before and ask you some questions about that. we heard that the dotted line on the right-hand side, the footprint of line, the rear dotted line is not the exterior rear envelope, but rather it would and the new construction -- construction would end at the blue. that is your understanding as well? >> yes. vice president goh: i thought

from the briefing the expectation was it would go further than that, but that is your understanding also? >> yes. vice president goh: you said earlier it extends 20 feet beyond the required rearguard open space. you are talking about the blue area behind that first dotted line. is that right? it is within the blue on this drawing? >> the original court was 6 by 14 and now it is 20 by 25. vice president goh: ok. thank you. >> can i make one comment? the sanborn maps -- commissioner garcia: i think your time is up unless someone wants to ask a question. >> i just wanted to say the

sanborn maps are on file. president peterson: any questions for mr. sanchez at this point? vice president goh: i am looking for the sanborn maps. if mr. sanchez knows where they are in the brief, if he could tell me. >> i have one i can put up on the overhead. vice president goh: i was looking at that, and it looks as though the rear addition was a pop out, but the drawing the architect put up showed it going to the side property line. >> that is correct. what is currently there is the

whole lot, and it extends past either wall of the neighboring properties. vice president goh: say that again? >> what we see in the plans here does show a setback from the side property line. what is currently there -- what was on the plans is a full two stories and extends past the rear wall of both of the adjacent properties. vice president goh: could you draw a line about where it is, and could you also tell me what year this sanborn map is? >> i am estimating with the lot lines approximately where that reporar wall would come out. these maps are generally considered accurate for the building footprint, but not for the lot lines. vice president goh: could you draw the lot line where it actually is? >> in this case it might be -- vice president goh: that is

better. thank you. >> this is the accurate lot line. the sanborn maps -- the last there were updated for our records may be 1988. they are not updated regularly anymore. vice president goh: this is 1988? >> i would estimate the '90s. vice president goh: the line you drew is where the property is? >> that was one of the factors that led our decision to issue the stop work order, that and the permit history. vice president goh: thank you. >> commissioners, the matter is before you. both matters are before you. president peterson: it probably is worthy to consider matter ca10 first, regarding permits.

commissioner garcia: go-ahea ah, frank. commissioner fung: i am sorry. there is no dispute that the rear portion of this building was in existence for a substantial length of time. the question is whether -- one question is whether it was in existence at the time of the code change. the letter from the previous owner indicates that it was. we have had some testimony that perhaps portions of that rear might have adjusted in size and type during the course of the

last couple of decades. there is no question that what is being constructed is, for building code at least today -- some of that might require mitigation is with relations to sound, and a more intense use than what had been there previously. whatever we act upon, and whatever doesn't determine that this particular owner and family are going to be there forever -- therefore, what ever we determine will establish either a land use for them or send them through quite a bit more process.

the question then also seems to be related to -- it occurred i guess from reading all the documentation that relates to the density of two units, the fact that there is no garage. this is a small alley, in essence, with a dead end. there is probably a number of concerns related to phase two. however, that is not before us. what is before us is based on essentially a single-family home. does it conform to the current bernal heights special use district codes? it does not. however, i could find it a modest non-conformance. the fact that the objectionable

part is in the rear, in terms of what may have been a handy man or owner-initiated construction. that it has been removed, i find a acceptable, and that leads to my decision to support the legalization of this addition as a legal non- conforming use. my suggestion to the owners is i think they may have a more difficult time going through phase 2. vice president goh: this is a hard one. this is a hard one. i hear commissioner fung. i hear your comments, yet i do think we have evidence in front of us indicating that the better

part of the illegal addition was done in the '90s, and we heard from the neighbor who has been there 10 years, so it is even possibly more recently than that. then we looked at the 1990 sanborn map which mr. kornfield suggested as part of a device for doing the research, and mr. sanchez showed us a line of where the existing building is, which is far away from a little pop out that the map shows. i mean, it does seem like there is a great family here, and a family that would participate in the community and act as good neighbors. they would be my neighbor, several blocks away. but i am having trouble with it. on the other hand, as mr.

vested rights. we heard it conforms to planning codes prior to 1978. i cannot say i am persuaded by either policy. we need to do whatever we can to keep families here in the city. i would be inclined to uphold the permit. with that, i will make a motion

to do so. commissionr fung: with findings to come? president peterson: do i need findings to come? commissioner ungfung: would we say this predates and becomes a legal non-conforming? president peterson: very well said. vice-president goh: just three votes? >> it would take three votes for the motion to pass. if there were two votes and no additional motion, it is a

matter of law. vice-president goh: i am trying to decide whether i can say in my undecided place. i think i can. commissioner garcia: this is about upholding the revision permits? >> that is what is before you. commissioner garcia: we uphold that. >> the stop work order is not before you. what is before you is this revision permit. the motion that is on the floor right now would deny the appeal and upheld the permit. commissioner garcia: depending on what the vote is, the planning department could rescind its own stop order -- stop work order? >> got sanchez, planning department. if the board finds it is a legal non-complying structure, the department would rescind the stop work order because we would have nothing to stop work on at

that point. there are many reasons i am sure you can find to justify that, if the permit was lost, perhaps. it is up to the decision of the board. commissioner garcia: now the question would be that because we are just going beyond upholding the revision permit -- we are trying to conclude the fact that we consider this to be a legal non-conforming. do we still need only a simple majority vote or do we need four votes? >> 3 votes to uphold. four votes to overturn. you can stay with three. >> the motion is to uphold the permit on the basis of the prescription -- on the basis of the construction predating the code change, and it is a legal non-complying structure.

president peterson: a permit may have existed to do that work prior to 1978. there is evidence that is reasonable to believe the permit may have existed but has been lost. vice president goh: with the motion stated in that way, i would vote against it. i do not think that we heard credible evidence indicating that it was -- that the addition was done in the last 10 years, certainly. but you do not need me. is that right? if you need me, then i want you to keep talking. commissioner fung: the issue -- some of the construction you were talking about, as referenced by the architect and the neighborhood -- is ok -- was related to the water heater.

we know that portion was added perhaps later on, but that portion is being demolished and not being rebuilt. i am not comfortable with that last finding either, because i cannot say that we know it was lost or not. i would prefer that we go ahead with the bases that we find -- the basis that we find it was built predating 1978, when the code change. therefore, we find it to be a legal non-confining structure. president peterson: we did hear testimony it could have been lost. commissioner garcia: even if it was built them, it would not have required a variants, but we need to do with the fact that there was no permit. it can be non-conforming, but it cannot be legal. commissioner fung: if we are

saying that we believe this was constructed predating the change in the planning code, whether it had a permit or not, we are now finding -- now doing findings that it has become a legal non- conforming -- the non-conforming portion only relates to the more recent code change, the more restrictive code change. president peterson: will the findings need to be if it were more of a vested right basis? madam city attorney? >> i believe what the planning department has said is that you need to make a finding that this is legal non-complying to get a variance to proceed with this work. commissioner garcia: we do not need to find that a permit

existed? vested would seem to me it is based upon a legal permit having been issued. >> i would defer to planning and building department as to whether legal non-complying require some evidence of a permit having been in existence. >> scott cinches, planning department. the fact is that it is a legal non-complying structure. that is the finding we would need to have the board make to rescind hour stop work order. commissioner garcia: we can leave the part to do with the permit out? >> commissioncommissioner fung:g to the planning department. >> commissioner garcia: that is who is here. president peterson: we would find that it was built before the change to the planning code and is a