president goh, and my reasoning is going to be i think they should be made to go through the normal process. bacon come up here andand we mao do that. and if they have some new evidence or something that would rise to the level of requesting a rehearing, or if we ourselves would want a rehearing, i might vote for that. but i intend to vote against this motion and wanted to explain my point. >> may i be heard on that comment, commissioner? commissioner garcia: i do not think so. commissioner fung: i do not think so. >> considering that, adoption of findings to remain on next week's calendar. vice president goh: no. commissioner garcia: no. president peterson: aye.

commissioner hwang: aye. >> 3-2, that remains on next week's calendar. president peterson: if you could give multiple copies to our board office? thank you. commissioner garcia: i worry about the future. president peterson: we are ready to move on. please call item 5a. >> calling item 5a, multiple jurisdiction requests. the subject property at 171 lee avenue. we have an attorney letter asking that the board to jurisdiction over 2 you will permit applications which were issued on november 16, 2009, and

december 30, 2009. the appeal period ended, and the permit holder is chio leng cheong. >> lawrence cornfield, department of building inspection. -- kornfield. i had the chance to speak with the building older and appellate about this complex problem. there is a problem because the plants showed that the windows being proposed are 3 feet from the property line, which is ok. but there was a service provided in the appellant's documents that shows it is part of the building that is closer than 3 feet from the property line. it is 2 feet. because of that, they are both agreeable to a continuance where i can go back and reconsider what this project should actually include that would be

compliant with the building code and a satisfactory to the neighbor. they are both here and i think that are both willing to continue this while i sort it out. with your approval, you can hear from them. commissioner fung: that is fine, mr. kornfield. however, part of the question relates to the validity of the permit. if they are intending to ask for a position from this board on the validity of work and the scope of work, then we need to see the documents. the permits. >> would you need to see that in order to have a continuance? commissioner fung: no. i am saying if there is no resolution prior to this case, before that next during we would need to see the permits. >> of course. would you like to hear from the parties? president peterson: how long on

the continuance? >> i would have to ask them. president peterson: ok. >> good evening, commissioners. jeffrey chen for the permit holder. good evening, commissioners. >> john chiao for the repellents. we do request a continuance. my client's architect will be dropped plans to see if we can have some kind of drawing complies with building goals. the idea would be to submit to the city and the neighbors for their approval and then resubmit to the board for determination. there could be revised permit issued. commissioner fung: how long of a

continuance? >> 60 days? commissioner fung: is that agreeable? >> how about 90 days? commissioner garcia: who is representing the project sponsor? >> i am, your honor. commissioner garcia: thanks for calling me your honor, but i am a plain old commissioner. if you are satisfied with 90 days, we will give you that, if that does not harm your client. >> i think if there are some problems withdrawing these plans, we need some time to come up with an idea. >> i think providing more time will serve everyone's interest. i also want to make a note before the board that the external envelope has been

compromised. as you can see, the wall has been opened here. the exterior. here is an image of the wall. commissioner fung: are we talking about continuance, or do you want to argue the case? >> i just want to make sure that with possible continuance that the wall is patched up. commissioner garcia: i do not think we can do that until we hear the case. >> i am sure my client wants to patch it up for the protection of their property. president peterson: you are the jurisdiction requestor, right? and you are concerned about the property owners building? >> it is directly facing my client's property. it is esthetically and pleasing

-- unpleasing. and there are concerns when they go in and out from that. president peterson: it sounds like 90 days. commissioner garcia: so moved. commissioner hwang: i would ask that both of you work together to submit a rescheduling request for the other people attending as well. >> i would also like to remind the board that there is on calendar on january 12 of next year two permits that are being appealed on the calendar. to make sure that all for permits are being written -- all of your permits are being addressed -- president peterson: those are not on the board calendar right now, but you can usually request a rescheduling. are you familiar with that form? you can work together to submit a form to reschedule those

matters as well. that would be appreciated. i would be happy to speak to you about it if you like after the meeting tomorrow. >> this confirms that no further work is to be performed or extended until -- >> if those permits are on appeal or suspended, the jurisdiction does not suspend -- those are not suspended. continuance does not suspend an item. if you have an agreement, that is a separate matter. but continuance does not suspend the permits that are the subject of the jurisdiction request. >> well, we -- my clients to agree the will not continue work during this period. >> earlier, we have an opportunity to meet and confer.

the work has already been stopped on the issuance of the violation order. they will not be doing anything. president peterson: so is there agreement to the march 9 date? do they need agreement? >> you can do it without them. president peterson: is there any public comment on this matter? >> marjah- -- march 9 is fine with me. president peterson: move to march 9. >> thank you. president peterson: call the roll, please. >> on the motion from the

president to reschedule the jurisdiction requests to march 9, 2011 -- commissioner fung: aye. vice president goh: aye. commissioner garcia: aye. commissioner hwang: aye. "matters are rescheduled. no new letters go out. president peterson: thank you. we are ready for fiveb -- 5b/ >> it is a rehearing request. the subject party is to -- is 460 townsend st., the academy of art university versus the zoning administrator, decided november 3, 2010. the board voted 4-0-1 to uphold the subject of notice of violation and penalty on the basis that the zoning administrator did not air or abuse his discretion. -- err or abuse his discretion.

>> hello, commissioners. my name is david sincata. i am here on behalf of the academy of art, requesting a rehearing. this is to allow justice to occur not only for the academy of art but to 755 students who will be displaced from taking 65 classes in this building. it is impossible for us to try to relocate all those clauses and students in two other facilities. it would be easy to say this problem is the creation of the academy of art, but that is not the case. that is just because the academy of art did not file a conditional use application. the city planning department is at least equally responsible for this injustice. i think it requires a rehearing to consider these matters.

this matter is created by the fact that the department made a determination under section 304.5 that we cannot submit a conditional use application because there is not an institutional master plan. that institutional master plan determination was made without an opportunity to appeal it. that is why we have tried to raise these issues during the last appeal. there are at least six to nine other institutions that have been reviewed since then that have all had hearings. all have had expected their institutional master plans without any action. i would suggest the beginning of what we have found already. it is only the academy of art who has been determined to have a disapproved institutional master plan. that is in the materials you

received from the zoning administrator that it was being denied because of enforcement actions, which is not an element of any institutional master plan. secondly, for transportation reasons. the materials that every other hearing -- the san francisco art institute. the minutes and agendas for each one of these items read "no action required." section 304.5 is clear. it's a specifically no approval or disapproval of an institutional master plan that occur by the planning commission. that is what occurred. it specifically says you can only take public testimony. i urge you to allow us to bring these materials before you, bring institutional and permission to bring justice to these students who may not be able to finish their program or classes.

i want to point out it is not an unsafe condition that are in. this building -- safety hazards have been improved in this building. there are not unsafe conditions. we urge you to give us the opportunity to present this to you. thank you. commissioner garcia: is the planning code -- does it provide for review of appeal of the nile's of institutional master plans? >> no. commissioner garcia: as far as i am concerned, we have a pretty narrow issue. was the academy of art operating with or without a cu? if they were, that was the extent of our authority. there were operating without one, and therefore should have won. i do not see how we get to have overview of the planning commission having to do with its policies and practices around the issue of imps.

>> that was the issue are was trying to raise. we have not been allowed to present a conditional -- a conditional use application on the matter without it being recommended for denial because we do not have an institutional master plan. that is why i felt the decision as to whether or not the code says what it says -- i am asking you to take a look of the code and see if it says what i think we all believe it says, that there is an institutional master plan was to have a hearing and it is closed, and it is acceptable. i can point to even abbreviated master plans which are shorter than all others that do not have to have a hearing. if they bring a hearing, the same standards are applied. there is no approval or disapproval of an institutional master plan. the must only be taking public testimony. commissioner garcia: you have

gone beyond my question. >> i am sorry. i get excited. commissioner fung: i am looking at your letter of request. you brought that same position fourth at the hearing. at first i thought you were trying to make an argument that this body has the ability to review a non-action by the planning commission on the imp. but commissioner garcia brought forth that is not what you are saying. >> i am saying this board has the right to interpret the planning come -- the planning" acted on by the department. that is what i would like to to do. -- the planning code acted on by the department.

that is what i would like you to do. you have interpreted the planning code under other circumstances. you have granted variances. you have interpreted the planning code and challenged the interpretation of the zoning administrator. i am asking you to do that again. i am asking you to do that to prevent this injustice. commissioner fung: thank you. 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 safety hazard. that is not because of the academy voluntary actions. that is because the department had a consolidated joint task force the fire department and other agencies go to these properties and find those that were in violation. many of them were. this is why they came in to address the safety issues. the academy would like you to believe this is simply about the imp.

we addressed the issues with the imp at the last hearing. they do not have a cu. i am the first to say the sport has broad powers, but it does not have the power to grant a cu. additionally, there is no environmental review that has been completed. it is not a matter of waiting for the imp to be completed. the appellate has stated we would not even accept a cu. we have not said that. they have not filed a cu. they could file at any time. that is what -- that is within their right. they have declined to do that. this injustice was not brought upon it by the academy itself. they made the choice to move in the students without the proper permitting process. the action of the board here will do, if it denies the

rehearing request -- a notice of decision order will be issued, and penalties will begin to accrue at $250 a day. we're not going to attack the building. penalties will be accruing. the will have to pay $250 a day on one of their buildings with 20 outstanding use issues. the respectfully urge you to deny this hearing. i am available for questions. commissioner garcia: if we were to deny the rehearing request, will the clock starts to take on the penalties? >> as soon as the board issues the decision. to this point, no penalties have yet accrued. they would start until the abate the violation. if this is getting towards the end of the semester, i imagine -- if they were to move but the students and abate the

violation in january, i think that would be easily addressed. commissioner garcia: thank you. commissioner fung: mr. sanchez, has there been any interpretations or clarifications related to the imp process? >> i do not think there have been interpretations. the code itself was amended about two or three years ago, some of the language about the health planning requirements. i cannot think of any imp interpretations. commissioner fung: thank you. president peterson: is there any public comment on this item? >> sue hester. 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. president peterson: call the roll, please. >> on that motion to deny the request for a hearing by the appellant -- commissioner fung: aye. vice president goh: aye. president peterson: no. commissioner hwang: aye. >> thank you. the boat is 4-1. a notice of decision shall be issued.

president peterson: call item five, please, the item we tried to address earlier during housekeeping. >> calling item 5c, the subject property at 10 lundy's lane, soto versus dbi. on november 3, the board voted 3-1-1 to uphold the subject permit on the basis that the construction predates the 1978 planning code change and is a legal non-complying structure. >> it does not appear they are here. the commissioners, if he would

vote to continue this item to the date of your choice, my recommendation would be the 19th. commissioner garcia: is there a possible reason they are not here? >> it may be that they are simply not invested. commissioner garcia: you are pretty confident they are not going to still show up? >> right. commissioner fung: would this make more sense to do it to the call of the chair? we have no idea when -- >> it is calendar before the board of supervisors on january 11. we know the date it is supposed to be heard by the supervisors. commissioner fung: i move to continue to january 19. president peterson: any public comment? seeing none, please call the roll. >> the motion is from commissioner fung to continue

item 5c to january 19, awaiting the outcome of the ceqa appeal. on that motion -- vice president goh: aye. commissioner garcia: aye. president peterson: aye. commissioner hwang: aye. >> the vote is 5-0. this item is rescheduled. president peterson: call item 5d, please. commissioner hwang: could we take a short break? president peterson: my apologies. take a short break.