we live together as a team. we want to share this open space as a collective backyard, and we enjoy it and wanted to be there for everyone. thank you. president peterson: thank you. next speaker, please? >> my name is paul. i am just a humble resident of potrero hill. i am sure the project sponsors are good people. i think they have done creative things with a very unusual sight. i agree that it is unusual, but that does not mean we should engage in unnatural acts to impinge as much as we do in the west were facing a few -- west were facing a view from the open space, which has a dramatic effect. i have here on a drawing on the overhead. could we zoom in? you can see the current building

envelope, and in fact if the proposed project will be dramatically higher in that location. i object to adding that much height. let them build up the slope, but not far and in hand into the required rear yard area. president peterson: thank you. any other public comment? seeing none, commissioners, the matter is submitted. would you like to start? go ahead. commissioner fung: i think there are a couple of things, in terms of some of the comments that were made, i don't find too acceptive. one is the shadow impact on the

open space will not change that much, whether it is this building line or at the required setback. that wall faces east, and therefore there is the mass of the building that will be about the same. second, the visibility over that is also not going to change. weather does conform to the setback. it is not just the height of the building, it will be about the same, where it occurs now compared with whether it would occur at the required setback. the other interesting thing about this comet if one took into consideration the financial aspect of the project, the first project probably would have made

a lot more money. the construction costs would have been a lot less. it added quite a bit of money. the question is whether it is the difficulty of the site, the difficulty of building on it to a certain extent the added variants. -- variance. the question is neither fin impact of this building upon the open space, which i find to be minimal, whether it is as

proposed or required by the setback. the real question is whether the front setback justifies the rear yard variants, because it allows views by the adjacent home. i am not a great fan of variances purely for the basis of one particular neighbor. i think the variants has to be based on not just some of the language of the site criteria, because some of those are very difficult or subjective, but i find that this variants does not satisfy the five criteria i. vice president goh: i agree with

commissioner fung. just put my thoughts on the record, i don't see the hardship, i see the hardship of their own making. we deny variances and have also been interested in the case law and cannot be hardship created by the owner. i find residents do not enjoy this proper configuration, building on 100-foot lots. i also find it is detrimental to the public welfare, and the height of this and the proposed building was striking. it is this enormous mass of the proposed building.

i find that i agree with one of the speakers that it will affect the public view. also, a lot of the project sponsor applicant says it was a substandard a lot, but it was actually a larger lot in this 33-feet wide, not 25 feet, and also the questions are asking the park view heights neighbors, that that super-dense development was built with this open space in mind, substituting for their backyard. which are very tiny, from the photographs. so why would definitely vote to overturn this. president peterson: i guess i am

of a different inclination, and i thought, as commissioner fung said, the project really does not change that much in terms of its impact in terms of shadow or height in terms of what is now. so it really does seem to be more of a fear of what happens to be the properties nearbyó< it is the only property adjacent to that could possibly be the same. i find it a unique property because of its landlocked nature. i praise the practice sponsor for moving the massing into the middle. -- i praise the project sponsor for moving the massing into the middle. commissioner garcia: i feel as though the variance is justified.

partially for the reasons stated by president peterson, having to do with the fact of whether it is code compliance, not required variants, the issue would be the same in terms of the impact on the open space. reason for mid block open space requirements is to create a sense of airiness, space. that sense of space is created to the left of this property and behind his property to begin with. i think the main reason for the various probably has more to do with the fact there is some severe engineering challenges for to be moved forward rather than just the issue of are we going to make so many people in this area on happy -- unhappy in order to benefit the neighbor to the south. i am troubled somewhat by the fact that it seems as though it is difficult to reconcile this

particular zoning administration decision from ones made in the past. but it was not published until 1993. whatever reason. but is a different project. i think the real issue has to do with the size of this particular project. in every way, that issue is code compliant. it is a challenging piece of property on which to build. i have all due respect for everyone who is here, gave up their evening to come here to speak. but when i listen to some of the people who spoke, you almost get the impression that this project is going to be built in the open space. people talk about loss of open space and dramatic effect it

will have on them. with all due respect to these neighbors, i don't see it as being that traumatic, and i intend to uphold the variants. -- variance4. and i would so move. >> we have a motion from commissioner garcia to uphold the granting of the variants. c9÷>on that motion, commissionr fung -- commissioner fung: no. >> vice-president? vice president goh: no. >> president peterson? >> aye. >> the vote is 2-2 to uphold the variants. four votes are needed to overturn any department action, so by default this variance is

upheld. >> do we need any other commissioners vote? >> it would not make a difference. should we move forward? president peterson: we will take a short break. >> ok, thank you.

president peterson: we are ready to resume the meeting of the san francisco board of appeals. please call item six? >> calling item 6, appeal number 10-099, academy of art university forces zoning administrator. property is at 460 townsend

street. it is the appealing of a notice of violation and penalty dated august 25, 2010, regarding the operation of an unauthorized educational use at the subject property. president peterson: thank you. you have seven minutes. >> hello. my name is david cincotta, and i am here on behalf of the academy of art university. the zoning administrator has determined that because we don't have an institutional master plan or conditional use permit

for for under 60 townsend, that the academy is occupying the building illegally. what am i asking you to do? what i believe -- as i have said in my papers, we have an institutional master plan, and the department has not wanted to recognize it. i'm not going to stand here and tell you that we have a conditional use permit. we do not. but we have been unable to have a conditional use permit reviewed because we don't have a valid institutional master plan, as far as the planning department is concerned, so there is nothing to review it against. i want to point out that an institutional master plan, under the code, what i'm asking you to do is to determine by looking at the record in the planning code that there is a valid institutional master plan. this is based on what was

submitted in december, 2007. that institutional master plan was worked on for over two years, with several meetings with planning department and staff. at the december 6, 2007 hearing, the planner got up and stated that the department is determined that the imp has met the basic requirements of section 304.5c. the other provision of the code, that is in the record. we did not make that up. we did not force him to say that. he said that, it meets requirements. the planning code itself says, and very specific 304.5e, and institutional master plan should be considered accept it when the commission hearing is

closed. no other revisions, no other conditions. when the hearing has been held and closed. and that is what happened that day. how significant is that? what does that mean for us? what happened, the planning department is trying to tell you, we had to have additional transportation information. but the commission asked for additional transportation information. the only requirements for transportation was to include the circulation around the site and parking. that was done. that is in this document. this is the document that was submitted in november of 2007. i am not going to ask you to review this for compliance. you don't have to. all you have to do is look at the record and look at the planning. but they keep moving the finish

line. we believe -- they believe there is additional material required, that is why the master plan was never valid. the additional document here, this was submitted in 2009. this is the additional management plan that was asked for, and still they believe more is required. none of this is required under planning code provisions. you know, they keep moving the finishing line, and it is because they are not happy with the academy of art. that is a separate issue. it would be like major-league baseball sang to the giants, you are from the west coast, we meant to tell you that you had to win 5 out of 9. that is what they keep doing, and i k