when it was raised to me and i don't know if they were in communication with him about that, but certainly not brought to our attention. certainly with regards to dpw i wasn't provided a letter of issued by bruce about this property in february. the first time i saw the letter was in the appeal of the condo map and important to clarify that and of the zoning administrator. i do have the ability to revise letters of determination. i did it in other cases. in terms of authorities to do this there are examples where similar properties have similar facts and subdivided after 1946 but for a substantial amount of time and building permits and other things, and it's clear in the letter it's just because a building permit is issued that doesn't legalize the lot but i think that is evidence. it's

evidence there may have been determination missed because why was the department issuing the permits if they didn't have authority to do so? i do consult with the city attorneys office and take advice. i don't do what they tell me to do. certainly the letter of determination was issued on my own authority and not direct the by any outside party to do so and again i reiterate i feel it was fair to the appellants because they could have the matter brought before this board. again there is something there is a precedence of the zoning administrator issuing letters of determination to establish the legallallity of the lot and i carried that over from the previous administrator and it's something i continue to do. i defer to the board of appeals and if you find this is an inappropriate process we can stop doing that. however i don't know how we can require, even in this case, the

appellant going through this process with a process they don't own or have title to. that's all. my time is up. thank you. >> mr. sanchezs, i don't see the initial request made to you in the correspondence from mr. mr. lawrence badiner in terms of the specific request to you. you reiterate to you in your letter of determination what the request was, and it's pretty much the same in both letters in the sense that they -- if i could paraphrase it the request was -- the planning commission's approval process in the 1950's for that subject property. all

right. the september 11 letter you went beyond that request, and it appears there are probably a number of reasons they wanted the letter that way and give you substantial amount of paperwork to lead you in that direction. isn't the main issue here not that history, but the fact that you really have an enforcement issue? >> i don't quite understand. >> some time back in the late

50's or 60's somebody had lots that were correctly done. >>i think it's important to take the planning department resolution out of this because that was for one particular project abandoned. >> no, no. the final one that allowed them wanted to create three equal lots and that was approved, but now you have implementation from that of three lots that didn't conform to the planning commission resolution. >> so the planning commission resolution dealt with a proposal -- i will put it on the overhead . , so on the overhead where they would create two lots. 25 by 50 and 75 by 50 lot and this larger lot would contain an apartment building.

that was denied and a new proposal was made a year later to do less intense development, not apartment building, but three operate lots so approved with the 35 by 50 lot and at some point after that the lots were created in the current form. >> right, but that was the approval, the three equal lots was the approval of the planning commission -- >> no, it wasn't not. it was staff approval. it didn't require approval by the planning commission. the only documentation we have in effect is contained in the appellant's brief and dated i think october of 1955 from mr. gill department staff that says the proposal meets all of the planning code requirements so that would have established the 35, the 32 and a half, the 32 and a half foot. certainly if they came in for proposal for that lot before

1960 it would need variance from the planning commission and after that from the zoning administrator, but i will the history of the facts established we can make a determination like other cases it's a legal lot for purposes of the planning code. >> then i misread that in terms of what the original planning commission resolution was then. >> i think i have the planning commission resolution i can put on the overhead if that could be helpful. so the last exhibit -- he aggress with my position this was action on the previous project and didn't take to take action on the 1955 and this was

denial. there is no approval of the planning commission for the three lot alternative because one was not needed. >> okay. >> they had requested in august of 1955 they proposed the new three lot alternative and they were going to do two dwellings on the new lots, single family dwellings on the new lots and october 19, which is exhibit f of appellant's brief and city planner had written back to them "please be advised your proposal conforms to the lot size and appreciate that" and submitted so that was approved. there was no planning commission action it was in violation. >> okay. i misread it. are

you finished? >> i am here for any other questions. >> okay. i guess i have to allow him to say something. >> i'm sorry. first i agree with the zoning administrator and it dealt with a variance case at that time and it was because they were proposing a 50-foot by 25-foot lot. it was just individual dwelling and the planning commission denied for various reasons. the most important thing is the action of approval for the two dwellings south to subject property where the planning department staff and specific person said this is okay as long as you keep a 10-foot strip between the two buildings, and the existing building to serve as a rear yard for the existing building, and what i believe the zoning administrator's determination

that is before you has done to effectively wipe away that stipulation that the rear yard be maintained for the benefit of the corner lot, and that would be something that would be considered in a variance. generally -- i will go back. if i were the zoning administrator i would have been asking what attempt did you make to correct it by either acquiring the property or getting a stipulation that's on the property records for both properties indicating this is open space. it is relevant to the corner lot as well as the other property. >> okay. >> commissioners, the matter is submitted. >> i'm not sure what the final outcome will be, but i actually

think that za went beyond what he was requested to do, and you know the request was to deal with that history and what occurred in the approval process before that and what stated today should have been the basis of that letter of determination. >> why are you saying that they went further than he was requested to do? i am looking at comparing the august and september 11 in terms of what was restated and requested. it looks like the same request is set forth in the first paragraph. >> yes and what was requested

from what i read into it is that the za provide a letter of determination on the planning approval process that occurred for these lots back in 1950's. >> okay. >> all right. which then is reflective of what the za just said. that is they came in with such a submittal, with a hirer density apartment house and disapproved and administratively they approved a subsequent subdivision with a lower density, et cetera, and that would have been the basis for his issue, but what he actually wrote in september 11 went beyond that and talking about it's a legal non conforming and not requested of him.

>> i guess i am still unclear to the net effect of the revised letter. i gather that the purpose is to maintain that strip as open space, and i'm not certain how the revised letter under mines that. >> i'm not sure even when appeals one own action. >> well, no, i am of the mind that the zoning administrator was well within his discretion but i would like an answer to that question from understanding the practical impact here. there is still a challenge. i mean i understand there is the 10-foot strip that is important to the appellant but can you help us. >> that is under the planning code and have to go through the

neighborhood notification to develop in that area. >> they meaning the owners of the other lot. >> correct, yeah. the adjacent property. >> i'm confused. your letter is developable. >> there is nothing as far as i know from stopping someone from the adjacent property to develop in what is essentially their side yard -- yeah, i mean it's on their lot. it's when we look at the parcel maps it's their property so this just clarifies the record. >> so again the difference -- the fundamental difference or effect of your revised letter versus the original letter. >> so the revised letter again was something that we did i think to clarify the department's position this is a legal lot and give in the ability to appeal it here, so i

guess that is more meaningful to have the board make a decision whether or not the zoning administrator has the authority or abuse the discretion saying this is a legal lot under the plang koatd, the 25 by 50. if it's a question of i wasn't asked the question so i didn't answer t the question is still out there and needs to be addressed for the board of supervisors so i would appreciate that guidance. >> commissioner -- okay. tell us the different -- i mean what other than making a determination that it's legal non conforming, the 25 by 50, but as to the other lot -- i don't remember the number but the adjacent lot, you were addressing that in the september

revision -- the revised lod, but to what extent was that addressed in the prior if at all? it was not? >> no. the first lod and i think essentially the same the first three quarters of it. we added on to note the determination and legality of the law. that was just a determination on the approval process, the first part, so that was distinction between the first and second letters. one was just the approval process, and actually i think in the original letter, and i am sorry we didn't share the original request from may with the board, but provided all these facts and they argued that the original subdivision didn't comply with the planning code and didn't have information about the old planning codes and that was part of our research. we actually determined what was proposed then of the three lots it did comply with the planning code

and so -- i don't think it made much difference to the appellant whether it complied with the planning code or not. what was important to them is what happened after and not part of the original request, but we thought it was important to address that given the appeal on the condo map that we should give them the ability -- since our typical process is the letter of determination. that's what we have been doing recently and having the board make a determination if i errorred in my discretion and given it was this lot for 50 years and permits were given and i think it's a fair process, so -- >> okay. >> thank you. >> go ahead. i feel like i've heard you quite a bit but go ahead since i gave -- sure. >> i appreciate the extra

minutes. i want to address commissioner lazarus comments because i think they're good ones. the key difference is gives a variance and we never requested it and the impact of it says clearly that our lot, lot 33, is only 25 by 50 and not have the adjoining strip of land, and what it does clearly then says that the adjoining lot which is now called lot 38. because that strip of land does belong to them then according to the planning department through that september letter means they can build on it. they would able to apply for a permit and would have the possibility to apply for that permit. >> so is this a dispute who owns that piece of land? >> it's not a dispute about who owns the land because right now that is not within your jurisdiction. you can't decide that. >> i am asking you what the

point is. >> yes. we believe that land definite exchange -- nobody disagrees there were letters exchanged. the planning department gave approval for the two buildings in exchange for that strip of land being part of our property. the corner lot, lot 33, and the reason they're issuing the september 11 letter and giving that variance and changing the august letter, the reason they're giving the variance is exactly what commissioner fung said. they're trying to correct an enforcement decision. they didn't enforce their own decision from 1955. they didn't follow through on the process that land be deeded to the corner lot and the planning commission wanted it to be open space and we are ask that nobody build on it, us or the neighbor and the key question is why did the zoning

administrator revise the letter and give the variance that no one requested. >> the variance isn't on your property. >> excuse me? >> the variance isn't on your property. it's on the adjacent property. >> why give it to them. >> i'm not going to argue with you, but i'm understanding better now, so is the condo appeal that you have then would address the question of whether that 10-foot space is yours versus the adjacent property? >> no. >> okay. >> and that's a subdivision map issue that is definitely beyond the jurisdiction of this body. >> i'm talking about the issue before the board of supervisors. is that an issue before the board of supervisors. >> the issue of whether or not it's a legal lot as defined by the subdivision map is an issue before them. >> okay. >> did that answer your question commissioner lazarus.

>> thank you. >> i think as i said earlier i think that the za went beyond what the request was and the first letter approach is more of what was requested of him. however, additionally i am not prepared to make any conditions on whatever decision we make today. whatever they want to do they're going to have to fight it out their own way either through the courts or through the department. i would support the retraction of the september 11 letter, and the acceptance of the first letter. >> i'm less inclined to think that the zoning administrator abused his discretion in issuing the second, the september 2012. i do think it's within the

zoning administrator's discretion to address an issue that is presented in reviewing documents relating to what's within the zoning administrator's jurisdiction. i guess i feel this is throwing us into a battle that we don't really belong. one of you said probably ultimately going to end up in a different venue anyway, so with that in my mind i'm not sure what action to take. i think it is to up hold the zoning administrator. >> we have to find abuse in discretion and if you think the discretion was abused in issuing the letter then we have to provide grounds for it. >> well, i guess i don't. >> i don't either. >> okay. do you have a motion? >> i would move to uphold the lod at issue on the grounds

that i did not find abuse of discretion. >> or error? >> or error. >> okay. >> so we have a motion from the president to uphold this revised lod on the basis there was no error or abuse or discretion on the zoning administrator. on that motion. vice president fung. >> no. >> commissioner hurtado is absent. >> commissioner lazarus. >> aye. >> thank you. the vote is two to one. >> again it fails without enough votes but operation of law. lod is upheld. okay. >> okay. then we will call item

number nine, appeal nicholas andrade and james mcdermott versus the zoning administrator. the property is at 498 hoffman avenue and letter of determination addressed to allen sowle regarding the legal dwelling unit count for the subject matter. matters is on for hearing. you can begin with seven minutes. >> good evening madam president and members of the board. i am allen sowle and the attorney for james mcdermott and nicholas andrade who live at the property along with their tenants. following extensive water damage to the lower level of the property a request for a building permit was sought by my client's architect at which time they represented to the building inspection department that the building was a three unit building. the planning department objected saying that no, we have a document in our file that says this is a two

unit. my clients bought this as a four unit building and and was originally -- and altered to a three family dwelling according to city records. the records handed to my client by the planning department indicate that the owner at that time applied to allow the property to be subdivided into three separate parcels. it was originally 85 meet wide. those parcels were allowed to be subdivided if an agreement reached if they're

two here and i would like to show you the special restrictions and what you probably can't see is something that is relevant -- >> turn it so it's in the same direction that you would look at it. >> okay. what is relevant about this document it was recorded against block here lot 11e. that's the originally legal description before the property was subdivided. the consequence of this erroneous filing and erroneous legal description is -- this document just applied and this was recorded and only affects 11e and not the parcel

lot on hoffman and the lot split and lot 32. the consequences when my clients buy the property for fair value and the title search shows nothing of the restrictions and nothing shows up on the correct legal description of the property. because the special restrictions were erroneously recorded by the planning department years ago it's fatally defective. my clients nicholas andrade and mr. mcdermott and the owners are not bound by these restrictions but based on the planning department notes these restrictions were in place. they ruled that this property was a two unit building rather

than a three unit building. in fact a review of the history of the building permits issued on the property show it was consistently recced as a three unit building. in may of 2012 a report by the building inspection and three family dwelling. 498 hoffman and building code occupancys is r2 which is three residential units or more. although it's in a zoning district rh2, house to family, so in other words it was recognized recently as may of this year that this is a non conforming use but legal use as a three unit building. many other building inspection department permits were issued. in 1947 this is listed as a three unit building. in 1986

was listed as three unit building. the housing department shows it as three unit building. in 1999 an application was issued showing description of building, three units. less specific and i want to be honest with you is a report in the san francisco report data in 1997. it shows present authorized use unknown while the building occupancy of r3, two units of less, and 1999 permit application saying that the building was one family dwelling so we have a few anomalies in a pattern of three unit building. we have erroneous recording of special restrictions reducing it down to three units. we have more importantly tenants that are relying on a place to live and my clients who made a huge

economic choice in buying that three unit building. the general plan of the city of san francisco is we don't take units off market. we encourage units to be maintained on market and we don't want merger of units which is what will happen if this is ruled to be a two unit building. therefore we think that that the board should over turn and disapprove the decision of the planning department which disregard the decision of the building inspection department and further confirm that the legal dwelling count is a three unit residence. i want to point one more thing. it's the policy of the planning department to accept the decisions of the building inspection department as truth. previous letters from this planning deme