>> we are ready to resume the meeting of the board of appeals. colorado item five d please -- call item 5d, please. >> it is the potrero boosters neighborhood association versus the zoning and administration, decided november 3, 2010. at the time, the board voted 2- 2-1 to uphold the granting of the variance. >> could i use the overhead

please? the words of the statue you hear a lot. one of the things that is important for justice is that you be told the truth. we are sworn in at the beginning of this. the statements, but are not true. from the boosters' point of view, there was an important statement made by mr. brown was not true. he represented to you that the project sponsor had offered to put the coral road access road back into its natural state. that is not true. what i put on the overhead here is the proposal that was made on mr. brown's letter head, showing that what they propose to do was fix the road, but there were going to build themselves a better -- they were going to build themselves a better access to the garage on the open space.

as soon as the planning department said no garafgge on the open space, all of their good talk was gone. there is something in the law. something is not telling you about -- if something -- if somebody is not telling you the truth about one thing, they are not telling you the truth about another thing. it would take an hour-and-a-half to go to every but misrepresentation, but that is the big one that hit us hard. to address president peterson and commissioner garcia's points about the lack of impact on the open space from the proposed development -- president peterson had concerns about pupother people building up to e same height as the same project.

i just want to show you what that would look like. i have here the space as it is now. you can see that these buildings right here -- it is two stories in the back. they have maxed out their height. you still cannot see them because of the slope of the terrain there. once you give this variants -- variance to the project folder and allow them to build as high as they are asking to develop, then you have other property owners saying it was good for them why not good for us. that violates every bit of the general plan, every bit of the open space development. this board should reconsider its role in upholding the variantce.

thank you. president peterson: thank you. mr. costa? >> president peterson, members of the board, albert costello, architect for the owners. -- albert costa, architect for the owners. we respectfully disagree that the case should be reheard. the issues stated in their briefs were not new material. there are no new facts or circumstances that were not previously submitted in their briefs before. i have with me in front of me -- this is my folder of the briefs submitted already to you guys. there are 10 separate briefs that have been submitted to you. inside here, the issues that were raised regarding the policy

to 0.3 -- policy 2.3 have been thoroughly exhausted. we rely on the interpretation of the planning department. we think the zoning administrator did an accurate job at the previous hearings. further, the issues of the easement and what was said before the not have a bearing on the requested variance. there was a lot said in the past about the owners could do this or that. there was a lot said. i do not have enough time here to go into that now. the main fact is that in terms of having a rehearing, we feel there is no new evidence. we respectfully request that you deny the request to have a rehearing. thank you. commissioner garcia: what is the owner intention as regards the

easement? >> it has shifted. the owner intentions are to extend the street down at the bottom, which would automatically abandon the easement. commissioner garcia: that was my understanding. i am not saying my vote was based on a quid pro quo. but it did seem that representation had been made. you're stating that will be fulfilled. >> we are pursuing the extension of the street. we have actually received a letter of support from members of the open of directors. it is the first very good move we have all agreed on. commissioner garcia: the answer is yes? >> yes. we have to go through a process and the fire department is very much involved. commissioner garcia: thank you. people president peterson: -- president peterson: mr. sanchez?

>> scott sanchez, planning department. i do not think there is anything in the record that warrants a rehearing. i think all the issues were addressed accurately at the two appeal hearings this board had in the item. there was also a discretionary rehearing before the planning commission. all the issues have been thoroughly vetted. i do not see how the arguments are directly related to the item on appeal before you. the issue of how it was raised. that is a residential plan guideline issue that should be addressed to the building permit, which would also be appealable to this body. we cannot approve it until the final action is taken on the variance. that would encompass the entire project. i am available for questions. president peterson: public comment on this item?

>> how much time did you want to give for public comment? one minute per speaker? >> i am in the community. my children attend school near the open space. the open space -- i am very familiar with it. this is an area with views that are unparalleled in the city. it is very good for the children who attend their and the children who live in the area and the housing development nearby. they do not often get to see a lot of the city, which can be viewed from the open space. you can see the bay and the golden gate bridge. you can see the outlook. to not be able to see over, given the encroachment of the rear variance --children are

currently able to go and look for ladybugs and run freely. students are able to go out and the other leaves -- and gather leaves. i think this would create a big impact that should be considered. commissioner garcia: if i may, anybody is allowed to say anything want, but the issue before us is whether or not to allow this project -- it is not whether to allow this project, but whether we should grant a rehearing. you might do better to address that issue. president peterson: speakers can please step forward, as well. next speaker. >> i would like to put a picture on the overhead.

president peterson, i would like to put a picture on the overhead. president peterson, commissioners, my name is but a green. i have a 17 year relationship with star king open space. my main issue has been caring for the land, creating firebreaks or picking up trash. this time around, the stewardship of our open space entails dealing with a tall building at the margin. if built as planned, this building would be the highest in the immediate neighborhood. i urge the board of appeals to rescind the decision to grant a variance. this will help to diminish its huge presence from the top part of the open space. equally important in rescinding the decision on the rear yard variance is the influence this

may have on neighbors to the south. those in an existing san francisco home most often -- president peters president peterson: you can finish your sentence. >> expanding most often happens by building up and out from the rear. president peterson: thank you. next speaker, please. >> i am the -- i was president of the petrero booster for years. i need to tell you the history of this project in the neighborhood is one of misrepresentation. what is happening in front of you has also been happening at the planning department. at the commission, there was no discussion of this variance

because the hearing was at the same time as the dr and we had to do all of that at the same time. we never had an opportunity to discuss the particular issue of the variance or the fact that you are not supposed to be granting one that is building on an empty lot. you are not supposed to grant one unless the cannot build it under code. that is obviously not true. there is nothing special about this project. we have not had the chance. the history of the project has been misrepresenting what the boosters have said, what the neighbors have said, they are continuing to do that here. we need to have a full hearing. president peterson: thank you. next speaker, please. >> my name is caroline baird. i am president of the star king open space.

i believe there was significant misunderstanding last time about the topography of the open space. president peterson, i believe you understood that it sloped downward so that the neighboring house would not -- if there were built up, would not block the height. as you hopefully saw when it was up there, these houses are all level. this looks like it was the neighboring house but it is on the property that will come down when the new house goes up. the second thing i want to speak to is the misrepresentations that chris spoke of. there were several missed proves the last time. i do not have time to go in to them. they have been poor storage of the land and have not worked with us. their husband a lot of evidence return to work with them beyond that letter, beyond requesting the come to the community board on several occasions. the third thing i would like to talk about -- thank you. president peterson: would you

like to finish that last sentence? >> we have over had use of the yard that show us that contrary to what we were told to believe last time that all houses adjacent -- there is a small shed next door. other than that, the only one is that tall house, the one building anywhere in the open space that threatens the views. we are afraid it will be a book and. -- a bookend. commissioner hwang: can i ask for a clarification on one of the points you made? the stated that the misrepresentation on that point -- you said beyond the letter that mr. brown mentioned you have had no common ground. you were speaking so quickly i could not follow you. >> sorry. earlier, albert costa referred to a letter saying it was our

first common ground. we wrote a letter in support of the variance back in may saying supported an extension of the street. we send out a settlement agreement to work with them and also suggested community boards giving the information. we have talked to them, but nothing has come of it. we have tried to be available to work with them. obviously, we have very different positions. commissioner hwang: in other words, outside of those areas, you are not in favor? >> we are not. we feel the project is very inappropriate beyond the rear yard issue. but we are trying to come to supplement an agreement. commissioner hwang: i thought that was what you were saying but i was not sure. president peterson: any other public comment? seeing none, the matter is before you.

commissioner garcia: i hate to be the first one to go. the standard for a rehearing with the manifest injustice. i suppose everyone that loses feels as though manifest injustice has taken place. i do not feel as though any evidence was presented to cause this commission to feel as though that had happened. the other standard has to do with new material that has arisen since the case that would affect the outcome. it was not knowable at the time of the original hearing. i was somewhat confused about the issue that was raised by one

gentleman who spoke having to do with the fact that the variance has never been heard. i thought that was what the hearing was, to hear the issues to do with the variance. i do not feel anything was presented that would cause me to want to grant a rehearing. commissioner fung: the information that was presented related to the impact on the open space, both in terms of the you blockage and shuttling -- we did talk about that. -- both in terms of view blockage and shadowing --

we did talk about that. the easement was also discussed. even though i voted against the appropriateness of the variance, i see no new information that would -- not necessarily change my decision, but in terms of calling for a rehearing. vice president goh: i would agree with commissioner fung. the standard is very high -- manifest injustice or new facts. we heard the facts of the tree coming down and miss troo beingr steroids -- of the tree coming down and misrepresentations with regards to the board being forced to words -- being poor stewards of the land. i say that reluctantly because i

voted against the variance. president peterson: -- commissioner hwang: i appreciate the clarification on the possible topography changes. it is always a concern. you try to predict the future. it was one of the factors. it is still have practical. i think listening to the standards we have, i would vote to uphold the variance. president peterson: i have nothing but to echo the comments of my fellow commissioners. i move to deny this rehearing request. >> >> on the motion to