is by one half, and the other is that if you're within 10% of the variance, then you therefore do not need to go through the various hearing process, and that is very rarely utilized because of a 10% rule. it is rarely utilize. commissioner garcia: so in some technicality, i am looking at this that they may not even have been required it. -- been required. commissioner fung: the two separate entrances, when i look at the plants, thereu entrance of the stair, and then there is one entrance that goes into the garage. the planning department does not normally look at the as an independent --

>> that is correct. so when i was speaking about rooms down, that is absolutely the worst case scenario. if you are determining that access through the garage. however, if allowed access to the unit, that would be the worst-case scenario. in direct access to the street. street. actually, i correct myself. you would have the same. commissioner garcia: on the variance itself, at some point,i it needs to be addressed, and i guess now is as good as any time. the issue was raised about being an exceptional, extraordinary, and the hardship issue. the point was raised by counsel that any hardship that exists by the project >> that is .

i do not know that we would dispute that. the hardship was created because of not having a permit, but as i said before, without having the knowledge to go through the process, or doing it on purpose, we do see people doing alterations without proper permits, and they come in retroactively, trying to get the permit process going. ytdepending on the death and the extent of that construction, this is only 1.5 feet. it was not found to be a significant impact. commissioner garcia: and i thought that the appellant's counsel had said that could not

be used as a condition of hardship. >> i do not remember. vice president goh: ?hcan you point me to wear the active zoning administrator points -- deals with the hardship -- to where it is? i thought the unnecessary hardship had to be an unnecessary one and not a created one. >> attached to the preliminary statement of appeal, i think, the variance? vice president goh: yes, that is what i am looking at, and let me just take one peak at that. and while i am doing that, it does seem that cases like this come before us, and it seems that sometimes the planning department does meet the individual do what is done. i am remembering a case that involved windows that someone replaced without a permit, at great expense, and the planning department did require that a homeowner to change it out, even

though it was extremely expensive, so i am just wondering about the allegations of who you know makes a difference. >> obviously, i cannot speak to the windows case that you were speaking about. i do not know that case, but in this particular case, it is my understanding that the impact of 1.5 feet is so insignificant that making them reduce it would not really benefit the public well -- realm, so, therefore, that would be the decision. vice president goh: is not discouraging people from doing work without a permit one of the goals, as well? -- it doing work without a permit one of the goals? >> to educate and help the permit holder to legalize. vice president goh: ok. thank you.

commissioner fung: i was going to wait for the building department, but let's bring up some of the issues in this case. mr. fu, part of it is related to planning, all right? the original planning summary that reflects your review and the contractor for the permit holder talked about errors, and then there was a second one that was done that supposedly correct the errors, but when i reviewed the document from planning, it does not match with the plans. >> that is correct. that is correct.

commissioner fung: when you look at the permits that is 66 feet, and supposedly, that was built within the envelope of the building. why is there a discrepancy? >> 2 staff oversight. it pretty much comes down to that. then there are the rear yard dimensions. that is what it reflects. the actual description and the purpose of the permit is for the rear yard, and i agree, i agree.

that number should be corrected. that is not just a staff oversight. commissioner garcia: but does that rice to the level of negating the quality of the 311, -- i guess what i am thinking right now, what is troubling is had the appellant in this case, the appellant is appealing the variance, but it seems that she is also trying to appeal the process itself, and she might have used that right and availed herself of that procedure had she gotten proper 311 notice, and i guess what i'm questioning is whether or not you feel that is right. >> the department does not feel that the notification is flawed. it describes accurately the type of work that is being done in

the area that is actually affected. that is correct. and that is why the decision was not made to reassure the notification. oftentimes, we do make mistakes, and we do send out the 311. that is when the products described was incorrect. in this case, the rear yard was cut in half. commissioner garcia: i guess what i am saying is -- >> that is the 311. commissioner garcia: i am a neighbor. i want to object to this project. if i knew the full scope, i could object to it. i guess she could look out and see it was not existing. i wonder why she did not question the 311 to begin with. it seems there are times when there would be an advantage to build without a permit because then you could put down something that already existed.

it short circuits some of the possibilities available to a potential appellant. >> i do not disagree. however, the project description is correct. the updated notification is there as well. we are there and available to clarify the project. the form itself is created in such a way to describe and communicate information. if there is a discrepancy or confusion, that is what we are here for. commissioner garcia: i am not trying to say i want to make you all do this. it seems to me you have a 311 noticed properly done. if someone builds without a permit, you have a different form that says here is what is here now, and we are going to continue from here, or are just trying to legalize what has already been done.

if you want to appeal this, here is your opportunity. you would not have to hope to get your issue heard under a variantce appeal. >> that would be fantastic. commissioner fung: in defense of the planning department, the second notice, even though it misstates this, the misstatement is not necessarily germane to the appeal in the following way. the first notice actually is closer in reflection to the existing building. therefore, when the second notice went out and showed expansions to that existing building, i believe what the planning staff is saying is

that the critical portion is the rear yard set back. that was accurate in the second notice. vice president goh: i wonder if it is not possible to consider it cured by just looking at the rear yard. if a person looks at whatever calculation they have looked at, is misled, it declines to appeal, and the variance itself relies on the fact that the thing is already built in the variance decision, the person had a due process violation. they forwent their right to appeal. the exception to the variance is

based upon the thing that was built with that the permit. i do not know how we can fix it particularly. it does not seem quite fair to the neighbor. >> it is interesting. in my personal experience, i have had laid -- had neighbors filed just in case, as opposed to not filing just in case. vice president goh: is that the system we want? i think that is a system we really do not want. >> that is correct. vice president goh: are telling the city with -- when in doubt, file a dr? >> people are more comfortable when they know they have a safety route. commissioner fung: i did get this from you. but we are saying is the first notice was filed much closer to the actual situation. then the question is twofold. one is whether we feel that the

1'6" or 1'2" -- is that a significant amount with respect to notice and appeal rights of the neighbor? the second portion to this is whether it was actually constructed on the existing footprint. vice president goh: i think if we looked at all of it with the eye -- if she had known this properly and had appealed to us, we would be looking at that 1.5 put before it was built. we could have made the determination that it needed to be pulled back. commissioner fung: well, from the timelines i have heard from both sides, it is possible that that one puts something did not even show up until afterward. whether it had been appealed on

the first 311 notice -- i am speculating, but it would have been on the project itself. vice president goh: likewise, if we had had the project itself in front of us in an early stage, the miss measurement might have come out. -- the mismeasurement might have come out. >> lawrence cornfield with the department of building inspection. the planning department is often faced with people building without permits. it is a real problem. our building permits typically say what is the legally proposed use so we can clarify that in the permit text itself. we try to address that to

legalize some things. it is a problem with this intermediate step. things tend to get lost. similarly, we get plans, both from the planning department for their various review, as well as the building department permit review sets, where we have to rely on the permit applicants and their agents for preparation. we do not go out and verify the height of the building, the lot lines, and the way it is drawn. we take their licensed professional plant at face of you. when we go up to do inspections, which similarly do not verify all of these many dimensions. we look at the construction and has been proposed and approved and make sure it is built the way it was supposed to be built. it is unfortunate when there are errors or omissions. we are not measuring that.

it is good that someone points that out. it is unfortunate it has to be a neighbor who finds that out. we are informed of that. we write a notice of violation and require them to get a permit to sort that out. it is a significant problem for us, not just in this case but everywhere. in this case, i talked to the senior inspector, who has been in the department for many years. he personally went out for the job. in reviewing the complaints that have been received and the allegations of us not doing a good job or somehow not doing a proper work, he said he was out there three times. there is no second unit in this building. there is a kitchen in the lower floor. he looked at the construction and said it was in accordance with the plans that we have, but he did not say anything about measuring lot size.

i can only relate to you that there is no second unit very clearly from this inspection. the building department feels very strongly there clearly are errors made by the permit applicant in the dimensions and so on. but we do not think that leads to the conclusion there was impropriety. i and my colleagues personally do not believe that is the case. commissioner fung: one of the primary issues here is whether the actual construction was built within the footprint of the existing structure. in terms of the addition and any other minor details, is it

department opinion that that addition was built within the confines of the existing structure? >> i cannot answer your question because i do not know where the existing structure is. i can only tell you, speaking with the senior inspectors, what we built is what was shown on the plan, whether that was or was not within the existing structure. commissioner fung: then the crucial dimension of the rear yard -- the department concurs it is in the range of 23.5, somewhere in that neighborhood? >> i actually have the notice. give me one second. i think i have the notice hear about that.

perhaps. permit detail application. a revision from 25 to 24. so i do not see any more. the horizontal and rear of the building has been encroached 1 foot in a 25 foot briard setback. it does not let out any more detail. commissioner hwang: did you see the photographs, with respect to the footprint question? >> i saw some photos. commissioner hwang: does that help you? i think i am looking at attachment e or d. d. >> i have that here.

commissioner hwang: i am looking at e, the previously existing house. if that was the previously existing house, and the bill out house ouilt out house on d -- it appears that is far beyond the existing footprint, at least from these photographs. what do you think? >> i really do not understand the last out. commissioner hwang: you do not understand the layout? >> i do not understand what we are comparing it to. commissioner hwang: i will ask the appellant to clarify on rebuttal. i might be misunderstanding it too. president peterson: is there any public comment on this item? please step forward.

>> my name is charles stange. i am the property owner directly behind 48 newton. i am here to support the appellants, only because of the history that has happened with the construction that took place. from the very beginning, i was led to believe there was going to be a replacement? . in a week, the whole back of the house was torn down and there was a room addition attached. that was two years ago. since then, there has been no out reach by the permit holder, no communication whatsoever. basically, that is it. i would just like to remind the board that there is a history of

problems with the property. commissioner fung: where are you behind? >> directly behind. commissioner fung: did you watch the construction? >> yes. commissioner fung: the plans indicate there was an addition at the second floor that now matches the edge of the ground floor. >> i recall initially that there was a dilapidated deck right outside the back door of the home. from there, there was a room addition. that was torn down. the whole wall was torn off. commissioner fung: the ground floor wall was torn off? >> i am a little confused about ground floor because there is a second-floor addition, but it is not very tall. it is not like a two-story

building. there is an underground level, it looks like to me. there are probably five or six stairs and down to the room addition from the backyard. under that i am not sure what there is. commissioner garcia: but there is nothing above that? >> no. vice president goh: and you had mentioned that you were led to believe that it was a replacement back? >> i am in my backyard a lot. i garden and i talk to the neighbors over the wall. all of a sudden, one day there was a crew there. i said hello. the crew said, "we are replacing the deck." within a week, there was a whole room additions lapped up. president peterson: thank you. any other public comment? please step forward.

sir, why don't you do that after you speak? >> mining is patrick -- my name is patrick haggerty. president peterson: speak as part of ms. kenney's time if you like. we will start rebuttal now. >> there have been some mistakes, especially with the notice, whether it is by the planning department oversight, whether it is this your presentation by the contractor. regardless, we have misled neighbors into what the situation is right now. the situation is a zoning violation. the code does not provide for a

granting of variance in the case of mistakes made by either side. if it is extraordinary or undue hardship, that is the situation where we grant a variance. hear, the remedy is to deny the variance and to allow neighbors to pursue damages or punishments. the solution is not to say there were mistakes made all around but it is not that big and we will just grant the variance. whether it is a foot and a half, it is a variance. while the planning department might have a policy, section 305 of the code does not provide for that. it is very clear. the case law the board mentioned -- it is a california

decision. in that decision, the court explicitly said that there can be no finding of undue hardship if the applicant created the hardship on him or herself. that is the situation here from day one, starting the construction without a permit, misleading ms. kenney to the expansion of the footprint. this is the sort of thing we do not grant variance for and allow civil remedies to be pursued. if i can make comments about potential violation for having a two-unit home, there may be criteria of whether they are bathrooms or kitchens, but just looking at the house from the exterior only you can tell there are two units on this place, whether it is the doors or the to mail slots that were installed post the construction.

i think it clearly indicates this is a two-unit house, especially with the two satellite dishes. most of the time, those are multi-unit apartment complexes. if you want to have tvs that control more than one channel, this solution is separate receivers. you do not have to satellite receivers unless you have separate billing accounts. that is the only situation in which you have multiple satellite dishes. thank you. commissioner hwang: i have a question of you or your client. with respect to the photographs, could you help me out? going to the question that commissioner fung asked of the pbi, with respect to the

existing footprint, i looked at attachment e. can you help me understand that picture? what is that? commissioner garcia: you can move the microphone so you can speak into it while you are over there. >> it is a picture of my daughter in front of mr. patel's house. you can see that his house and at the steps where our house is. is three or 4 feet to the fence. where the lattice was was a deck. commissioner fung: from that photo, you are implying a relationship would establish the rear wall of the building as the spot with the steps. your other photos do not show

those steps. >> but i also have -- commissioner hwang: you had it right the first time. commissioner garcia: move the microphone. commissioner hwang: where would your daughter be standing, with respect to these pictures. ? >> she is standing near our door to our garage. commissioner garcia: you have to point to the picture for us to understand. the other picture. >> she is standing probably down here a ways. commissioner hwang: you are saying the existing building would have been -- that whole part of the building to the side is mr. patel's building? was that completely nonexistent?