>> welcome back to the august 134, 2013 meeting of the san francisco board of appeal, we are calling item 5c which is a rehearing request, the subject property is at 730 crestline drive, the board received a alerted from kenda macintosh requesting rehearing for appeal number number 13 f 062 t.p.e.n.a. versus dbi, pda, decided july 17, 2013. at that time, the board voted 4-1 commissioner fung dissented, to grant the appeal and overturn the permit on the

following preserve and protect the character and stability of the vista francisco development and it will not be an orderly and beneficial in-fill project in the vista francisco development, 2, the project if approved will result in an inappropriate precedent or expectation for similar in-fill projts elsewhere in the vista francisco development and 3, the board's authority pursuant to article 1 section 26 of the san francisco business and tax regulations code to consider the project's effect on surrounding properties and residents. the appellant is twin peaks east side neighborhood. we will start with the appellants. >> i'm here on bemaf of the project sponsor, i was retained shortly after the last hearing and i'm here to ask that you grant a rehearing request.

to begin, i want to emphasize the gravity of the board's revocation of a fully code compliant pronlt that was approved by the planning commission. before my compliant embarked on a four year permitting process that cost 300 thousand dollars, he sat down with a meeting with the department of public works and talked very specifically about open space restrictions on the property they were told there were none, they then came before this body and had it revoked, regarding open space restrictions, i think it's fair to say the decision to revoke a permit for a fully code compliant project is a bit of a shutter through the development community, it's both extraordinary and manifestly unjust to deny a code compliant project, the decision is made without full development of the facts, with uncertainty or misinformation about the project's compliance with

city's laws, the decision to revoke the permit i believe was made under these circumstances. at the last hearing, which i watched online, i was struck by the number of questions posed to city staff which were answered with a qualification like "i'm not 100% certain", or i believe but can't confirm 100%. to be clear, i'm not faulting city staff for being unable to answer all of your questions on the fly, even for the encyclopedic mr. sanchez, that could be a tough call, the regulations are complicated but i do think the board should have full information and clear answers from city staff before it makes a decision like the one it made. in particular, i'm referring to questions about the proper sequencing of building permit and subdivision applications and bl the project complied with zoning without a lot split.

you had a planning department staffing report, the one you based your decision on that stated the property exceeded the property limit unless the lot is split, this is in fact not true, like the board, my client had relied on the expert judgment of planning staff and wasn't aware of the error at the time of the first hearing. there was also a good deal of disorder regarding ccnr's and how those affected the proposal. we've put the ccnr's into the record, we'd like to brief you more fully on those before you make a final decision. finally, doi think the decision you made had pres d*eshl value or pres d*eshl effect to find 13 other property own necessaries the neighborhood that have similar properties, i think if you're going to make a decision like that, it's incumbent on the board to give them an opportunity to participate. >> thank you.

>> counselor, yes, you did provide a ccnr in this brief. when i look at the parcel maps that were included with them, this particular site is outlined in a dark, heavy line. when i reference back into the ccnr's, and this is an issue that nobody could provide specific information on which was referenced many types was the planning plan as originally intended for this subdivision. what did that dark heavy line for that particular lot represent in the ccnr's? >> i'm not prepared to answer the question. we were retained on this case shortly after your last hearing.

it took us a good deal of time to track down the information that we presented. we haven't had time to fully analyze it, but i will point out to you that the planting areas that are discussed in the text of the ccnr's are areas that are supposed to be maintained by an association. they maintaining the planted areas is a burden on the association, not necessarily a restriction on any individual property and i think there has been an effort to kind of convert one into the other, but again, these are first impressions based on limited exposure to the information and i think that part of the reason that this case deserves a rehearing is because there is a complicated record.

the city has given us advice, the dpw gave us advice at the outset that there were no open space restrictions. i think we would like a rehearing so we could come back with the benefit of further information from dpw so you could have advice not from me as an advocate for my client but from your own staff to really resolve these issues finally. >> okay. >> okay, thank you, we can hear from the appellants. >> good evening, members of the board, iem donald bait man, co-chair of the east side neighborhood alliance, the request files far short of the standards and rierpt that is would warrant a new hearing under the board's rules, by upholding the conditions and the crepts of the vista san francisco subdivision number 1 approved by the board of

supervisors in 1962, that caoe aided the open spaces throughout the development and required their maintenance, the board's decision on july 17th does not create any defact toe easement on any party nor does it constitute any regulatory taking or manifest in judgment, the conditions or crepts of the open green spaces were clearly established not only in the vista francisco subdivision number 1 map following the recommendations at the time of the planning commission as shown on our exhibit a, page 1, but were also set forth in the developer's protected covenants recorded with the city in 196.which is exhibit d with the perp's holder request, both have these open spaces to be maintained nrfr the permit holder has no vested right to develop on the open spaces, only a responsibility to maintain them, thus the board's

decision to deny the permit does not take anything away from the owner because he never possessed it. that is the right to construct a building on the open green space, such construction would violate the tenants of both the subdivision number 1 and the protected covenant, the permit holder asserts there are no facts that have arisen, the protected covenants of 1963, these are not new facts, only ones not brought forward by the permit holder in the original hearing. the recently produced protective covenants support the appellant's position in this matter as it's general planting areas map that mr. fung referenced provides the specific delineation of the open spaces to be maintained, one of which is the open northern section of the property at 70 crestline where subdivision and construction were proposed. lastly, the permit holder has a

right with no explanation as to why the covenants weren't offered into evidence on july 17th, that explanation is explicitly required by the board's rules. in conclusion, none of the board's requirements that would warrant a rehearing are found in the permit holder's request, for the reasons discussed here tonight, as well as other reasons cited in our written response, we respectfully ask the board to deny the request. thank you. >> mr. [inaudible], in your brief, you indicate that -- and you referred it again in your oral testimony just now that the documentation provided by the rehearing requestor -- well, maybe that's too strong a word, showed what was the original planting plan, i believe you referenced that. are you saying that the parcel

maps they had which indicates the planning areas is the original planted plan? >> we can state that for certain if we can find the preliminary planting plan, however our physical inventory of the development which is where we got our mark-ups in our first submission and brief matches what's shown on the map with the covenants, so i think the two support each other and in the absence of the preliminary planting plan, here's the green area, there they are on that map. >> thank you. >> thank you. >> okay, mr. sanchez? >> thank you, scott sanchez, planning department, there was inaccurate testimony in the last hearing, i want to apologize to the board and to the parties because i did

misstate facts tat last hearing regarding the density and i think this board knows in my years, i've tried to be accurate and responsive to the questions that i receive from the board, however, i did misstate the density issue at the last hearing, so the subject property the proposal could be built without a need for a subdivision, the density would allow up to 22 dwelling units on the property i think they're currently at 14, so the subdivision issue is really a secondary matter and again i apologize and i really try to hold myself to a high standard coming before this board, you need accurate information before making your decisions and aapologize to everyone for misstating that, it was something i had reviewed from the staff report and so after receiving the rehearing request, we ran it through the process again and from line staff up to the director, the staff actually, that was an error in communicating in the

case support, he knew it was within the density limits and we talked to staff all the way to the director and the change in the staff report would not have changed the planning department's recommendation, it was made with the construction in the area we believe should have been retained as open space for the development, while i was inaccurate, i apologize and that said, that would not have changed the planning department's recommendation. i don't know if that would have changed the board's determination, i leave that to you, i believe the finding did focus on the construction of the open space, and leading on to that and also the subdivision question, yesterday morning, i received word from bruce stores who's the surveyor for the city and county of san francisco and they were reviewing the subdivision application which was filed for the project and they have made a determination that the

original subdivision for the project would not allow construction in this area, that what's called a building setback line that would prohibit that and they would be prepared upon issuance or approval of a subdivision that it would contain a condition that the area which is subject to this permit, they could not actually build upon as part of the subdivision, so i received a letter today, i've given it to the parties and i don't know if the board would like this letter, it's a brief letter. >> i would like it. >> are you saying that the entire triangular piece is not buildable? >> that's my understanding. >> the setback? >> it's shown on -- if you look on to the -- if we look into the appellant's grief and we see the current plot plan here, the subdivision map, there are

shown, and i believe it's in reference to the hatch lines, so they have it, i can put it on the overhead. >> that is all one sheet? >> i think it's a single sheet, yeah. >> the color is not quite right, but in any event, it's this line, so this is -- this is the subject lot, i believe, we have vista and crestline and the green is something that was added by the appellants to demonstrate the open space and i believe that this is the demarcation line of the building setback and that's what the department of public works has said cannot be built beyond that line and the area of the project is the area in

green, that's my understanding, we have received this letter today from dpw, yesterday is when i first heard about this and so that they would -- the subdivision could still potentially move forward, i mean, this is new information to us and i would want to discuss this with our director about how to proceed, the subdivision is code complying under the planning code for lot size and lot area but if the newly created lot itself would not be able to be built upon, i think we would need to review na as a department and see if that meets the general plan in terms of a subdivision, this is newer information and i apologize for the lateness of it to the board, but we were made aware of this yesterday. >> we're recommending you grant the rehearing request then? >> i don't know -- right now, the board -- if anything, reaffirms the board's decision to deny the permit, so i don't know if this is new information

that would change your decision. >> well, shouldn't the appellant or the rehearing requestor have the opportunity to litigate this or present on this issue? >> this is a decision that is made as part of our subdivision application, and so i would assume that there's some level of due process forwarded to them through that process, it's my understanding that the decision of the county surveyor is in and of itself not appealable, that document would not be appealable. i believe that if a subdivision is issued with these restrictions, that potentially could be appealable. i hate to give the qualifications again, but i do like to let the board know when i'm not 100% certain of something so i'm letting you know that in this case, so there may be some processes there the courts to resolve that at the very least, so i don't know if this is new information that you would want to see as part of a rehearing

and be more fully briefed upon and if it would change your decision to deny the permit which does not allow construction where public works says there should not be construction. >> okay. >> i have a question to mr. sanchez, so if the permit holders have been working on this for the last four to five years, why -- is it because they just started the subdivision process or why is this letter so late in the coming? >> they did not file the subdivision until after the planning commission had taken action on this. i know the appellants have kind of been prompting when is the subdivision going to occur and it occurred late in the game and perhaps had this been started earlier, they could have had official word from public works earlier to answer that question. i think it was filed in june maybe, the subdivision. >> okay. >> june or july. >> commissioners, my understanding is that the decision about the subdivision,

the conditions placed on it would be appealable to the board of supervisors, not to this body. >> thank you. >> okay, mr. greco, anything from dpi. commissioners, the matter is submitted. >> is there public comment? >> i'm sorry, yes, of course, there's public comment. public comment. please step forward. >> i'm nancy o brine, i'm a resident of vista san francisco and a member of the group that's been pursuing this, as i pointed out at the last hearing, i didn't know it was called a building setback line, but i read it as meaning you can't build beyond it, right there. and mr. hurtado, with all due respect, you asked if they had a chance to litigate it, wasn't that what we were doing two weeks ago, they could have brought this in, they spent

four years on this project and they never found the subdivision map, it was one of the first things we found and we don't know what we're doing, they had plenty of time to find this. the subdivision map was passed by the board of supervisors, they have not amended it, the vista san francisco association, the home enear's association has not amended the protective covenants that supports the board of supervisor's position, they had their bite of the apple, how many chances do you get. they could have been here with their guns loaded last time and they have given no reason why they should be given a second chance, the map is clear, the board of supervisors passed it, that's the law, that's how it goes. thank you. >> next speaker? any other speakers? >> good evening, madam president and members of the board, i am don beer min, the building owner at 74 crestline

drive which is next door to the crestline building, as an owner of the building, this proposed project, i'm representing my business partner and my tenants, i strongly object to the building of these units on this property. this project would reduce our sunlight from our building, number one, obstruct the great views that myself, my business partner and my tenants have, reduce the space between the two buildings which i brought up the last time, and most of all, it will reduce the value of our building that i have owned proudly for 29 years. as stated by the board last month, the developers are allowed -- if the developers are allowed to build on the property it would be a given that they certainly would build in the other open areas in the twin peaks area, that would open up the possibility some day of building on the peaks

itself, you know, i don't put that past anything, and that would be a total environmental crime. i support the requirements of the vista san francisco subdivision number 1 approved by the board of supervisors in 1962 that provided for the creation and maintenance of certain open green areas of our community. it was my understanding when we purchased the building from my broker and the previous owners that when i purchased the building in 1984, that this was open land -- that this triangle, this open space there was landscaping only and would never be able to be used for any kind of building of its kind or there would have been the possibility that i would not have purchased that building.

that's why i bought that piece of land, i went over it and over it and that's what i was told. i am here to represent and protect my tenants and the environment in the twin peaks area, my business partner and myself from this terrible proposed project. i have wondered why -- this is my last part, i have wondered why the owner f this building at 70 crestline has never showed up at any of these hearings in person to show his face to us first of all and why he's not here to protect his tenants. i therefore as an owner contend that the rehearing should not -- that this should be the end of this thing and it should end right here tonight. thank you and i thank the board for hearing me. >> thank you. >> thank you, is there any other public comment, and thank you, step forward.

>> good evening, i'm mar tha* gorsky, a resident of 70 crestline, and thank you for this opportunity, i want to briefly say on the original subdivision map that was provided for -- at the july 17th hearing, the building setback lines at every single one of naoez green spaces, there are some there, so this is not new information, also the subdivision, the owner had applied originally to subdivide in 1998, so why all this information now is why he couldn't find it back then and why this information wasn't presented to me seems like they're trying to stall this process. i understand there's a lot of money invested but our group has spent many hours