d rh-3. this means they are going to develop a vacant lot. i cannot understand how there are any reasons for any variances of any kind, that there are any hardships. in a vacant lot is very easy to develop. if you do have any reason for v ariance, i am creating the hardships or my client is creating hardships. it is a simple thing. they have an ideal lot with a view. there is lots of open space behind it or beside it. nobody is going to be imposing anything on them. i do not understand how they cannot build within the parameters of the planning code and the building code, and i think they should. this has been going on many years. i do not understand at all. the boosters do not understand

it. star king open space does not understand it and that is why we have been hanging in there. thank you. >> i am audrey cole. i was first introduced to the open space through a garden club which i am also involved with which is on that same block of the property we are discussing. this location had a regular garden, a regular back yard. it opened out onto the open space, both the backyard and the open space. i do not know if you have been there, but it is a marvelous benefit. it is a gem for potrero hill.

it is unique. it is therefore the neighborhood to take advantage of. i do not see any reason why this new building needs to have a variance for the yard at all. none of the other places abutting the open space do. i am against the variance for that reason. thank you. president peterson: mr. kohl, are you finished with your time? >> one minute 38. >> we have plenty of time. let me get started a little bit on the easement so it is on your minds when the developer talks. we attached copies to the opening brief. i briefed it extensively. an easement is a right to use land in a limited manner.

hear, the easement is quite limited. you can use it. the property owner can use it to access the property through star king open space and park no more than two cars on this property. the developer would have us ignore that and say this is just a private agreement among property owners. that is not what this is at all. this was hard fought. it is a superior court order. it is as binding as anything could be. it is a property line. the rights of the developer to use the open spaces are limited to that. they cannot use it to bring in construction materials. the cannot use it to stage construction materials. they cannot use it to park construction vehicles. the cannot park three vehicles on it, although they do. it is something this board should take into account in its

broad discretion in deciding whether this project could be built. if it is going to be built, put a condition on it. do not make us come back and always try to enforce that. thank you. >> mr. williams? >> good evening, members of the board. i am steve williams. i am here representing star king open space. i am also going to give time to a member of the board of directors. as you heard, the most striking aspect of this case is that it has already been decided. apparently, the zoning administrator was not aware of the fact that this previous variance application was made in 1989. the decision was not issued

until 1993. they waited until the litigation was resolved in court. but it is not mentioned. it is not reconciled in the new decision we have from july of this year. in 1993, the za decided that not one of the five mandatory conditions for a variance could be met. not one. this present decision finds in favor of all five. nothing else has changed. the law is the same. the site is the same. the only thing that has happened is the project has gotten tremendously larger. if you go through the fault decision from 1993, added to my reply brief. , it cites the alternative of building to the front of the lot. that still exists. that is a general finding not particular to any project. it finds there is a predominant

pattern on this lot of buildings on the front of the lot. if you look at my exhibit four, from the department, you will see that pattern. you will see that each locket provides the mandatory rear yard except for the subject lot. if you look at the sanborn maps, every lot on this block base provides that mandatory rearguard, with the exception of that one building which is a historical anomaly in this case. the other properties in the vicinity do not enjoy this sort of intensity of development in the rear yard. that was a specific finding made back in 1993. they also do not enjoy this kind

of lot coverage. if you look at what they are proposing, that are proposing a 70 foot foot print. that is what they are proposing right there. compare that to all the other buildings. 15 feet in front, 15 feet in back on a 100 foot lot. no other building has that. this is absurd. this building has the most visual impact on the open space, and to provide additional rear yard coverage goes against the general plan. it goes against prior decisions by the department. it goes against the planning code. you are supposed to have 45% rear yard. you can build on 55 feet there. they are asking you for 70. do not overturn the previous decision. at a minimum, let us reconcile. have the department reconcile these diametrically opposed decisions just to keep them

honest. i am going to turn over the rest of my time to the president of the board of directors of star king open spce. >> my name is caroline bird. i am the president and a neighbor. we are a 3.5 acre protected grassland. it is publicly accessible, a volunteer run, and enjoyed by residents of the neighborhood and beyond. there is no reason for a rear yard variance. the property faces the same challenges as the other properties along that side. a variance will stop the public use of that space. it is an oasis in the city. 1521 is prominently positioned in the highest spot -- 1321 is prominently positioned in the highest spot. the rear yard provides a

critical buffer between the buildings they showed you on the map in the open space. without that buffer, it will bring the big and bulky proposed building over 12 feet closer to the open space. it is going to stand up properly -- prominently as being out of line with the others. it will also adversely affect the priorities of the san francisco master plan, which protects parks and open space and their access to some light, air, and this does. this is the side view in this picture, an image of what this is going to look like. this will be a large building as viewed from the open space. the building closer to the rear of the yacht will increase shadows and will decrease the views of twin peaks and the city skyline. the developers have designed the building to protect the light, air, and views of their

neighbors, and we applaud and appreciate that effort. but it does not need to be at the expense of the open space. the light and air and views on to open space need protection as well. this lot is already oversized versus the prevailing 35. steve mentioned the extraordinary lot coverage. they can protect the neighbors as well as the open spaces with other design options. finally, in 1985, when the open space was created, it was done as mitigation for the overly dense property at park view heights, to the south of the open space. it is already serving the purpose of buffering overly dense development. it is not available to fill in irresponsibility of homeowners. you cannot not have a rear yard there because the open space exists. people come here to walk their dogs and let their children run

around. we already struggle with cars on the open space. our buildings indicating they are not respecting the easement and entering with cars from the open space. essentially, the front of the building will end up being the open space. this is our place for children, people, and dog walking. there are a lot of people in this neighborhood who are going to be impacted. thank you very much. commissioner garcia: how else could they access this property other than through the easement? >> through de haro. the road would need to be extended. it is a possibility. it can easily be done. the current building, because it was already there before the open space was created, they were granted an easement of parts shipped across the open space. in the language of the easement,

if at any time there is automobile access from de haro, the hardship will have been solved. if this building is demolished and a new one is started from scratch, which still strongly the entrance to be from de haro, stopping the presence of cars on this public open space. vice president goh: you mentioned that development on the southern part. i did not catch the name. >> park view heights. vice president goh: when was that developed? >> that was developed in the '80s. the land that star king is on as well as purdue heights was originally government housing and then public housing. when the developer purchased the land, because of the extreme densities of park view heights, there was an agreement to protect the other half of the land with open space for the

neighborhood. president peterson: mr. costa? >> i represent the owners. 1321 de haro street is an exceptional property. that is why we are all here tonight. the existing 1913 structure sits on the top of the hill. it is right on the property line at the east and north of the lot. it has often been confused as the front. the structure was built from the top.

its access has always historically been from the top. the front door, and garbage, and recycling is collected from the top. there have been a lot of disputes about this. it is a steep site. it is steeper than almost any property in the area. that is probably why de haro street was not able to be continued through, or 24th street. it stops short. there is a rock outcropping in the topography. if these streets did go through, it would be like this property would be a corner property. but that is not the case. anyway, this is a new project. it is not like the old project. it has been vetted for a long time. it is one of 45 residential properties that create a perimeter of the open space. it is at the end of a block.

it is very unique in terms of that it is at the end of an rh-3 block. it is the only property that is landlocked and has no vehicular access. that is why back in 1992 it was proven to be exceptional to a court ruling. it was granted to keep its historic access. in a supervisor maxwell's office, she has a picture of this old house, showing its access and how it was used. this law can be distinguished as exceptional simply by its topography and lack of access. we started in 2007. we had an application meeting. we met with many parties. we learned there was a group at the bottom and a group at the top.

we did designs at the bottom and at the top and met with the neighbors. it was a lot to digest. we had great feedback. one was to step the design down the hill so that it fits with the hill. it kind of mimics the hilt instead of being vertical or a box. that is what we tried to do. we are really here tonight to talk about the rear yard variance. one of the things that happen during this process was we got to meet with the next door neighbors. their house is set back 30 feet. it is a two-unit structure set in the middle of the property, not counting their rear yard structures. when the owners and i sat down and met, we were asked if we would not mind slighting the

project back to maintain and create the light there that they would want on the front of their house and maintain their view. then and there -- this was a long time ago -- we agree that that was where we would plant our flag and that is what we would do. we move this project back 12 feet. it encroaches into the rear yard 12 feet. that is what we are here about today is a 12 foot encroachment to the rear yard. what is interesting is that the house that exists right now is fully in the backyard. the whole thing is property line to property line. it creates shadows. it is way back there. we are planning on increasing that. we are going to create a rear yard where there was never a rear yard. we do feel planning staff -- we had a lot of guidance with planning staff. we do feel it was reviewed and

assessed inappropriate manner. our design ended up in the middle of the lot. we are set back on all sides. front, back, side, and side, even on the open space side. they are our biggest neighbor. we do not want to forget about the little neighbor next door to us, the physical house. they will have tremendous impact. that is actually the predominant reason that we -- we moved the design back to accommodate the next-door neighbor, to be approximately in line with their house. we encroached into the rear yard 12 feet. interesting enough, the appellants' briefs do not even mention that. they do not even talk about that.

why don't we talk about what we are trying to do now as opposed to something that happened a long time ago? it is a different project. they say we do not meet any of the findings, yet we are very concise about the findings. the next door neighbors appreciated us pulling our building back. it is quite a distance, 30 feet from the front. let us talk about the open mid- block space. 1321 de haro has an exceptional circumstance in that it is not a standard block configuration. the idea of a required rear yard is to create an open mid-block space. president miguel of the planning commission echo the sentiment that it is a very unique situation. it is one-sided. the requirement for a rear yard

is not exactly the same as it is on other properties in the area. i want to make that a note. and in terms of technically speaking, i want to also mention that the lot is very steep. per section 144 of the planning code, this up-slope lot is greater than 20%, somewhere around 40% by our survey. the lot falls under an exceptional circumstance and an exception to the planning code due to its steepness. the 12 foot encroachment into the rear yard is very similar to section 136c25. i could show it to you. it says a box is allowed to encroach into the rear yard 12

feet, set back 5 feet. this is what we are asking for. what was granted is very similar to this exception. let us see. in closing, i want to mention that there are other properties that enjoy rear yard structures. next door, four properties over. we do not have the largest footprint. our footprint, because we stepped down the design -- it is what happens when we do a step. it became the long dated. we are set back on all sides. when you actually calculate the footprint, i forgot what it was, but it is not that great. in closing, we had a lot of supporters when we went to the planning commission. we brought a couple here. all in favor of this variance,

raise your hand. in the essence of time, i am going to ask them not to speak during public comment. i want to say that this granted variance decision i believe was correctly reviewed and assessed. our primary consideration was for the next door neighbor, and we slid this project 12 feet into the rear yard. we could easily slide it forward and be within the code, but it is not right for this site. this is an exceptional circumstance. i am hoping you can see that this is not a normal site. we really are trying to do the best we can and we appreciate your time. maybe theodore brown would like to say something. is that true? >> my name is theodore brown. we work together in an architectural firm. one of the things i want to point out is that if you look at the plans that were submitted

there were 10 different revisions to these plans. i think the good news about this is the design got better as we met with the neighbors, as we met with the boosters. they would bring up comments. the result of this design is not caused by us just thinking about a design and throwing it on a plan. it was developed over a period of time. we continue developing with the planning commission. we met commissioners on the site. there were a number of commissioners who wanted to meet us on the site. almost every planning commissioner look at our plans and a model in great detail. been one of the things we tried very hard to do is to create this design almost as a landscape element. right opposite this is a house

that has a straight wall that is 40 feet high. it has a required rear yard, but this wall -- here is, if you can see it. this straight wall -- not one window in it. nothing done to it. it does not relate to the open space. we took a landscape approach to the side of our building, zigzagged it in and out, which meant we had to set it back to not create one solid plan but to enhance this open space with the building. i think the results are very successful. i want to thank the boosters for helping us with that, and also the planning commission. the planning commission really took a serious look at this. they did vote 6-1 in favor of this project. i think i will just leave it

right there unless there are any questions. commissioner garcia: i have a question, mr. brown. if you were to do this project in a way that is code compliant without a variants, what would the difference be in the cost, absolutely or in terms of a percent? >> if we were to slide it back down the hill? there is not a cost. for the next door neighbor, it would be like putting blinders on one side of their building. commissioner garcia: it seems as though -- and you will have time in the future to address this, but i want to bring it up -- it seems as though a variance is being asked for that will benefit the neighbor at the expense of a lot of people who are still in this room. >> i think they are concerned about it. the rear yard at the top -- if you go to the top and work around their -- and this is why

the planning commissioners spent a lot of time looking at the back of this building from the top. one of the requirements was that the height of the back of this building not be any higher than the existing structure even though it is set back into a rear yard. that was brought up by the president. we measure that structure and used that on our plans as a guideline. they felt like when they sit on the top they did not want this structure blocking any more even though it was set back. commissioner garcia: just for clarification, your point would be that the impact on the open space will be no greater than the existing structure? >> exactly. in fact, it is less because we do have a rear yard. vice president goh: i have a question. it was my understanding that the plans were in front of the planning commission and included

a raw space. -- garage space. >> that was based on the fact that we had a garage entry at the top. we were going to dig up coral street, dig up the existing access, and plant that, consistent with the rest of the open space. we are going to have access through a road that would allow plants to grow in between the tracks so you could not even tell it was a road. vice president goh: what happened to your garage? >> the planning commission decided they did not want a garage at the top. they said it wanted one at the bottom, that would be fine. it was approved without a garage for the planning commission. vice president goh: that is rock.

you are talking about digging down deeper than the existing house to put in a garage. >> in the structure following the grade, you do not have to dig as deep as if you took a 40 foot high structure. actually, the digging is pretty limited compared to a normal structure. it is not really hard rock. you can dig it out. commissioner garcia: how are you going to overcome the fact, if i understood correctly, you are not able to bring construction equipment to the lot through the easenebment? >> we had a mediation to the judge we both agreed to. it was the same judge who made the decision. he wrote a brief. he basically disagreed with the

fact that we could not bring construction equipment there. he said to access the lot you have to be able to use that area. commissioner garcia: thank you. that is probably not an issue before this board. president peterson: with the planning department care to speak? mr. sanchez? thank you. >> thank you. scott sanchez, planning department's staff. this is a complex case. i have brought diego sanchez, a staff planner. i think the permit holder has done an excellent job in outlining the design considerations. i would like to focus on the process. the building permit application -- that building permit was submitted in april 2008. subsequently, this variance