be a standard about this written in the code as residents would be happy with at least a ten-foot set back on the second floor. >> you know, in taken into account the depreciation of four to five units, and a historical building, you know, like you to consider this appeal. thank you. >> >> thank you. >> any other public comment? >> okay, seeing none we will move into rebuttal, mr. williams? >> steve williams, again, thank you. you know, we are happy that the planning commission reversed the department and said that you have made an error and give this housing some relief. total straw man argument that this could be a 40-foot building and that has what is upset the project sponsor is that he was told that he is

giving all of this up, there is no way, there is no 40 foot buildings anywhere near that dore alley. >> this is a residential area, contrary to what the zoning administrator has said. look at the maps, that i have attached, half of dore alley is residential and in fact, the residential move, zoning is only going to be two lots away from this project. and that is... you know it is disappointing to see that they have determined that this use won't even be allowed when the new land use changes come in and perhaps they are going to change that you know just to stick it to these live, work residents that seems incredibly unfair to me. these folks really will have no choice but to try to delay the permit in order to reach that new zoning. if all benefits are going to be denied them of any kind, under the policies which are already in place, remember this special

use district has been in place for a long, like five or six years now. and this has been this delay in implementation of the policies and the design guidelines around that. if all of that is going to be denied to these folks, you know, really we will have no choice but, you know, to try to get relief. and you know, for anyone to say that we are exaggerating the impacts. we have not made any outrageous claims about the impacts. but ask yourself, what kind of an impact is that? a 12 and a half foot wall flush against your deck and that is what they came up with. here is what the planning commission gave them. i mean, it is absurd. >> you don't do that to valuable housing anywhere in the city. it does not make any sense, which is why we have these design guidelines coming in to these areas. and big, they all say sensitive

and compatible. is that sensitive and compatible? it is not. that is sensable and compatible. i mean that is the way that the design guidelines work in every area, including the industrial areas. and i have the industrial design guidelines for you to look at if you want them. and it shows these rear yard configurations that fit this particular situation that should have been used by the department in this situation to advise the project sponsor, reduce it a little bit. it is not a big deal, but it is a really big deal to these people. thank you. >> thank you. >> mr. polter? >> board members, i asked for mr. kennedy intent was and i am not entirely clear. it seems to have something to do with the lost square footage, with the 3-foot set

back. and property taxes and i am not quite clear as i can make it. i apologize. >> another thing that the zoning administrator brought up was that this building's narrow width does not, or is much more narrow than the entire width of the rear patio area that they are talking about. so, the impact of this on the patio is really greatly reduced, if you look at it in plan view. there is, we are talking about something on the order of 40 percent of this entire width of that patio area is going to be impacted by this very narrow building. and secondly, the issue of

people having just moved in, whether or not that was the tenant or the property owner that spoke, or the appellants themselves, in today's letigeous society, i am sure that they were made aware of this by the realtor whens they bought their units, not this building was permitted originally in 2008. so, for them to not know that this building was coming down the pike, is a little bit, i think, unrealistic. and that is all that i have, thank you very much. >> and i am, i do have just a question, i think what efforts if any have been made to resolve or come to someplace of compromise with the appellants? >> before the discretionary review hearing, i believe that we had two meetings with the

live-work association. i was not at the first one. i was at the second one. mr. kennedy was, i believe, at both of them but he was certainly at the second one and he got up and left the room very upset at any discussion of compromise because he feels that his building is smaller than it could be already, and he does not see any reason to compromise any further. >> okay. thanks. >> i do have a question for the appellants. >> so, how long have your clients lived there at this point? >> it is different clients have lived in different areas. i believe the young man that spoke had been there less than a year. >> and so, i mean on the disclosure when he purchased it there is a box that says are

there any potential developments that would effect the value of the property. >> i don't know. i did not even represent them at the planning commission. i am fresh into this case. >> you have to speak to the microphone. >> i am sorry, you can please step up. >> they did tell us, but they said that it was going to be up to the para pit which is basically the patio, and the same size as the adjacent buildings and we were traveling at the time and so we were, you know that was... >> so did you not review the disclosures. >> we got a copy of it but it was the understanding that it will be the top and we asked the realtor, agent, you know what can you also translate this for us? they said that it was going to be top of our para pit and not a two story building next to us. >> what year did you purchase? >> i purchased it last year. >> okay >> and that question, for mr.

sanchez. >> you can stay up there when you are done because you have your rebuttal time as well. >> are these the same plans, identically that were approved in 2008. >> yes, it is my understanding that the plans did not change and the architect can confirm that. but the approved permit from 2008 stated that it was a two story auto repair facility. and it is just filed the same plans to renew and to hopefully start construction. >> thank you. >> thank you. >> so, on the rebuttal. just a few points. i think that going to the question of neighborhood character, no doubt that further down the street, it will be rezoned to residential, however, this is not and will not be located within the residential zoning district. two doors down does not make you within the zoning district. and i think that if we just

study the aerial photo she is are by and large industrial uses that are perfect for within the sli zoning district. and so, just studying the photo there and also getting to the question of the size of the deck on the low work building, this is the live, work building here and the portion that they are talking about have the working that is in there i believe was constructed as part of the project in the mid 90s and the deck, extends away from here, with the building wall ends to the end of the property, so that does appear to be a substantial size patio area and this is quite narrow as you can see. and again, this is looking at it more from the west so, you know, when the sun is never going to be really due west here because of how far north we are so the sun will always be to the south. i just don't see the real shadow impacts and also going to the changes that were made, i think that if we study, the

changes that were made, you know, the patio is quite substantial and it appears to be more than 15 feet in depth and for the residential properties in the city, the minimum rear yard requirement is going to be 15 feet. if you come to a small lot and you can do, you know, no less, you can do no less than 15 feet. so it seems to have a substantial sized yard and if you also do have a fence in a yard and just say that you live in a residential district and each one in the single family dwelling, you are allowed to have the fence up to ten feet in height and not too different from what we are seeing here with the higher mask being set back further this is not directly to the west, it is to the north east of the property. i think that for those reasons this seems like it is actually a reasonable proposal. it is less than what was approved in 2008. and you know the appellant has just in his presentation just made it clear that they may do whatever it takes to delay this project to stop it from

happening. and they have their rights, they have the processes and the appellant and i know that he knows very well what the processes are and would not... you will be hearing with this board and the appeals and there is definite ways that it be delayed. and that is their choice, but if they chose not to respect the decision of this board if the board choose to up-hold the permit and with that i am available for questions. >> thank you. >> thanks. >> the matter is submitted. >> >> i will start. he was correct in saying that i was there at the genius of the live-work program movement. however, i was not there when it was implemented. that was the next administration. and at that time i was wearing a different hat and being on planning. and i was not heavily in favor

of the program. i was not against the concept of live-work, i was against a alliance that was pushing it and that led to what is basically political and demographic jerry man dering, one is the rights of the owner of putting up a building that he wants it is relatively inocuous small building. and the issue of the appellants, obviously relates to what they view as impacts upon their units. the problem with their units are whereas the fact that they are non-conforming.

besides whatever the discussion is on how the zoning is going to change and everything. if it became housing, that building could not be done in its current configuration. and density. therefore, the question is whose rights are a little bit better, stronger? who's then needs to be protected? in this enstance i am going to support the property owner and the permit holder, given the fact that he has a relatively small building, it is for his own use and that there has already been a bite taken out of it by the planning commission. >> >> okay. i have similar leaning. i have definite sympathies for the individuals and the people who reside in the stage house

building. but i think that in this instance, i think that what was very lucidating to me was the comments of the zoning administrator and the visuals provided with respect to the actual impacts. i think that in reading the materials from the appellant's brief, i just disclosed it, and i actually read his briefs. and i was under a different impression and one that where the impact would be much more severe. so for those reasons and some of the reasons that commissioner fung stated my leanings are to uphold the permit. >> yeah. for me it is a little difficult case because of the fact for one i sympathize with any obstruction of this kind,

especially in even if it does not directly block the sunlight, i think that there is going to be an impact so i am sympathetic to that. but what is more troubling to me is the fact that there are these land use controls that could potentially effect this kind of building going up at this particular location. but i do also recognize mr. sanchez said according to existing regulations, it is a valid permit. so i feel constrained to vote to uphold the permit. >> i'm old too, i remember when this building sold for a million and three, the whole building. >> yeah. >> and so, yeah, my day job is

a realtor. most people are aware of that. and i do definitely, definitely, sympathize with the people that are in the building. at the same time, i believe that the potential developments should have been adequately disclosed when you purchased the building. the gentleman, the permit holders have gone through the process, and as commissioner fung has stated, they have given up a chunk of their building already. and so i am going to agree with my fellow commissioners. and uphold the permit. >> do you want to make the motion? >> i have never done that. >> so i would like to make a motion to uphold the permit that we agree with what was said by the zoning

administrator scott sanchez. >> okay. >> so the motion has been to deny the appeal and uphold the permit on the basis of the zoning administrator's testimony. >> on that motion, from commissioner honda, to deny this appeal and uphold this permit on the basis of the zoning administrator's testimony at hearing. >> on that motion, to uphold, commissioner fung? >> aye. >> president hwang? >> aye. >> and commissioner hurtado? >> aye. >> and the vice president is absent and the vote is upheld on that basis. >> we will move on to item

number 9, appeal number v12-154. are we calling this item? >> yes, and then we will take a break after this. >> afterwards? >> okay. >> the appellant is david cao and this is against the zoning tracinger and the subject property 209 prentiss street and 1201 court land street. appealing the conditions placed on the lot area, and rear yard and mass reduction and parking variances granted on november 28, 2012, adjust the existing lot line and construct the new single family dwelling on the resulting new vacant lot. variance case number, 2011-0793 v. and we will start with the appellant. the agent, miss tan. >> overhead? >> just refer to it in the microphone. >> if we could have the

overhead, please? >> all right. every time that you want to use it just refer to it. >> okay? >> ready? >> how do i? >> if we could have the overhead, again. >> there we go. okay. >> right now it is small. >> do you want it out? >> is that okay? >> you have to hold. >> because i have other pages that might... >> okay. >> well that is the right lighting. >> okay? >> do you want more? >> that is as far as it will go. >> okay. >> so, you know, camera and restarting your time, ready?

>> hi, i am representing the appellant, the owner, and i am the architect of the project. and so, this is the project that the corner of cortland and prentiss and it involves two lots. >> so the main reason for this is we tried and we have two lots, existing. and there is a house in the middle of the two lots. so we tried to do an adjustment lot line adjustment permit to have the lot divide differently. and then this configuration of

the shape of the lots is causing problems and we have to... and there is a few that we have to go through for the public hearing. and all of them are okay except for the mass reduction and we are trying to fight for a hardship on that with the zoning administrator. so i would like to kind of show an explanation on the process of the numbers that we have all

along on our building. when we first meet to planning, the square footage was 2,215 square foot. and after march, when we have our assigned panel on board, we have the height adjustment balancing process and then the design of the process and then at the end we still got approval in june and that is where we have the 2044 square foot. then, when we start with the mass reduction with the diagram explanation, we tried to... what we... what i work with, the planner is we try to work

out the numbers, that are according to the mass reduction calculation, we are only allowed to build the 2000 square foot which is caused by the irregular shape of the lot and we tried to keep for hardship. but we never... but, the zoning administrator, during the hearing, still expressed that he is to turn down the mass reduction whirl wind approval because he think that our building is too big and we try to expedite to reduce it even though we have already pending approval. we try to reduce a little bit to 1898 square foot. but then at the end we were still different in the number

that we have to do a 1495, which is not exactly in the calculation from the mass reduction. and then, that is too small a house that we could have in order to meet my client's investment return. so, we then we go for the appeal and i have in december and january with the panel, our way of calculation. i still get the numbers up to 1100 square feet only. but then from the respondent's brief, last week, it seems that certainly we were different the

number 1 720 square feet which we don't have any supporting that was given us how that is calculated. because certainly the number from... it is different from what we expected or tried to fight for. we already reduce it to 1800 square feet. and we want to see if we could just keep that because we don't understand how those numbers comes up and we really insist that we feel this is a hardship case. so, >> you are saying that you don't understand how the planning came up with 1750? >> correct. >> actually planning. >> you don't know how they

calculated that? >> you don't know how that calculation of square footage took place? is that what you said? >> because i have attempt to calculate our irregular lot and then i also provide another diagram at the hearing to propose for a regular lot. we could still build like 2529. but then we don't get any feet back at all and then it is just lay there in august. and it was given us a number of 1495. and that is the maximum to build. >> you don't know how they arrived at that number. >> i don't know. >> okay. >> we will hear from them. >> thank you. >> mr. sutter are you handling this case?

>> okay. >> excuse me president hwang and members of the board and i am with the department staff and just to rearticulate the issues on appeal right now. this case does not involve a lot line adjustment and subsequent construction of a new single family home on the resulting vacant lot. because of how the appellant has chosen to adjust that and configure the new lot, four separate variances are required from the planning code. three of those four were justified. and we granted them. those were variances for rear yard, parking and lot area requirements. the granting of each of those variances acknowledged the unusual geometry of the resulting lot. and allowed what we felt and continue to feel is the

necessary flexibility to design a building that is responsive to the neighborhood and to the lot and to the context. the fourth variance, however, this is the mass reduction variance, was not justified. and we did not grant that. going to the appellant's point i think about confusion regarding the mass reduction variance, mass reduction is an unusual requirement. it is a requirement that only applies in the bernal heights special use district and i think that it is appropriate that we are straight forward with you saying that it is complex and there were some miscommunications between our staff and the sponsor. we did calculate the appropriate mass reduction requirement and related that to the sponsor relatively recently. i think that it is good to

notice that it results in a building that was larger than the appellant was previously under the i impression. how that is and how we arrived at it. it is one that limits the square footage of a building in bernal heights to 650 square feet of floor area less than the hypothetical maximum biggest tallest building on the site. so we arrived at that 1750 figure by figuring out the square footage of the biggest possible building under the planning code that could be built and taking away 650 square feet in this case it worked out to about 1750 square feet. now that figure is 100 fair feet larger than the buil