to the open space, yet is not recognized by the strict enforcement of the code. this is really a unique property. i am not going to take up all of my time. instead, about two letter answer any questions you may have. we made a commitment years back to set this back into the middle of the site. we are committed to see it through in a good way. this complex project was reviewed by staff very carefully. the zoning administrator not only walked the site, but he met with all of us on the open space prior to the variance decision letter. when i say he met with us, this includes key members of the open space, the board of directors, booster members, the owners, and the president of the planning

commission. this has been looked at very carefully. the decision was carefully considered. i give the rest of my time to my partner architect. >> good evening, my name is theodore brown. instead of talking about the architecture, i want to talk about our clients, who think are very special people. when they first purchase this property, they met with the neighborhood and they spent a lot of time. they spent twice a week meeting with neighbors. the neighbors were complaining about the trash and garbage on the open space. they worked together and took out 10 loads of trash on the open space. garbage, and just trash. also, it is a big dog walking area. they have provided a trash can right next to their property for the people to drop their doggie

doo. they've been very good about cleaning up the open space. also, we met with a famous geologist and botanist to see how we could naturally improve the area, and we offered to do a pre-master plan for the site and help keep the nature of the site. we were turned down by them. they did not want that. we offered to dig up the concrete, tear it out, and put it back to natural. we were turned down on that. we have tried to be good neighbors, work with them, and improve the area. we have asked them for their support. we have sculpted the building, lowered the height. they did not want to be 40 feet. we have also not received any support. we ask them to receive the extension of de haro street, and

we have been denied that. president peterson: thank you. mr. sanchez? >> thank you, scott sanchez, planning department. the last hearing, there was confusion about what product was before this board. there were several deliberations that were developed by the project sponsor, the most was no parking to the building. they have withdrawn the request for a parking variance, and the variance decision that is before the commission was based on the decision of may 3, 2010, submitted by the project sponsor, showing parking in front of the building, accessed off de haro street. that is the product before you. this is the project and concept that was approved by the planning commission last october. the building permit is planning -- is with the planning department because it is not new for -- because it cannot move

forward until this variances reviewed. the full scope of the development is something that would be able to be appealed that a future date. with regards to the variants that was applied for in 1989, granted in part in 1993, this is a completely new project. it was not contemplated in the 1993 variance decision. even if it was the same product, the law allows the application to be made again. iyou can, and more than one year later, and that is conceivably could get a different outcome in get a different decision -- and get a different decision. i think the appellant would tell you it is set in stone, they cannot do anything more to the site. that is not true, we have to

review this on the merits of the project and move away from the previous variance decision letter. i think the private sponsor has addressed some of the unique considerations of the site, a top-loading a lot, the setback of the adjacent property that abuts to decide on the open space. there has been discussion about the impact on the light to the open space. it if that impact is something that is going to happen regardless, if the building shifted forward, there would still be a building next to the open space and that would be something that could be considered under the building permit application review. those are some of the points that i wanted to address it, and i'm available for any questions. vice president goh: last time, mr. kornfield said something about requesting to change the address from de haro street to

carolina so it would be addressed in the rear. i am just wondering about that. how would that help or hurt or affect the variance request? >> this variance was granted for a very specific project for a project that hasa garaghe fronted on de haro street, so we would have to review it all over again if they want to change the product and try to seek somehow -- and we would have to change the project and try to seek somehow. i think it makes sense to have this be reviewed with the project frontage and parking on de haro street, and adding three units per it -- and adding three units. vice president goh: thank you.

commissioner fung: mr. sanchez, the d.r. hearing had a number of points. do you feel that those points have been addressed in this particular iteration of the design? there was the garage parking. the other was the drop in the stairway enclosure, to reduce it to the minimum required by code. >> yes, the department's staff worked extensively with the project sponsor at the combined hearings that were held in october, before the planning commission, and it took a while to get all of those changes made. they were made to the satisfaction of department's staff. commissioner fung: in conformance with all the comments made? >> that is correct.

president peterson: it seems there is still some concern there would be a snowball effect in all projects would be of the same height, but because of the downward sloping, i concede that is the case. >> one is the worry about the snowball effect of rear yard variances. as we have seen before, variances are unique by definition. just because there is one granted for this property does not mean variances will be granted for all properties in the vicinity. i don't think there is the potential for a snowball effect there. and then the full public process for variances anyway. about the height, the code allows the building 40 feet height in the zoning district, and given that it is an upward sloping lot, it could follow the grade of the slope of the lot. that would be subject to neighborhood notification and

discretionary review. the product would have to be reviewed by the residential design team. there is a lot of review that would be given to this project. president peterson: thank you. commissioner garcia: mr. sanchez, the representatives for the variance holder architectural firm, the project sponsor, stated the footprint was not the largest. does that hold true also for the massing? >> i don't have those calculations before me. i would not want to give you an accurate information. i did not have that before may. commissioner garcia: it seems the real issue has to do with the size of the building and has to do with the variants and shadowing. >> it would be contemplated under the building permit application, as reviewed by the commission. commissioner garcia: so if it

was significantly larger in comparison to houses in the area? >> that is correct. commissioner garcia: thank you. president peterson: we are open to public comment. i would like to remind you that if you are with potrero boosters or others, your time to speak was with your representatives. we're sticking with one minute per speaker. if there are other speakers besides these two, please lineup wall over there. >> my name is loretta lynch. i live within eight houses of this house. we use the open space. the owners of 1321 de haro street have never offered to meet with us. you should not uphold this variance because it does not uphold exceptional and

extraordinary circumstances. is that from apple because it will degrade the ability to use the adjacent open space. it that open space is the only open space on the south side of potrero hill. all others are to the north and east. degrading this open space makes it harder for much older and challenge neighbors to have that open space to enjoy, thus the open space is not in harmony with the intent of the planning code to provide open space in our very dense neighborhood which is about to become denser. thank you. president peterson: thank you. next speaker, please? >> hello. i am a homeowner of the park view heights association. we have backyards. our backyards are substandard,

very tiny. i have a jack russell terrier who loves to run around. i take him to the open space every day. we just enjoy that area. it is very close by. it is our neighborhood. i'm very emotional about this. i think of our park view heights as the 2010 giants. we are a team. i think the owners of 1321 are the. bonds era of the giants, all about them. we live together as a team. we want to share this open space as a collective backyard, and we enjoy it and wanted to be there for everyone. thank you. president peterson: thank you. next speaker, please? >> my name is paul. i am just a humble resident of potrero hill. i am sure the project sponsors

are good people. i think they have done creative things with a very unusual sight. i agree that it is unusual, but that does not mean we should engage in unnatural acts to impinge as much as we do in the west were facing a few -- west were facing a view from the open space, which has a dramatic effect. i have here on a drawing on the overhead. could we zoom in? you can see the current building envelope, and in fact if the proposed project will be dramatically higher in that location. i object to adding that much height. let them build up the slope, but not far and in hand into the required rear yard area. president peterson: thank you. any other public comment? seeing none, commissioners, the

matter is submitted. would you like to start? go ahead. commissioner fung: i think there are a couple of things, in terms of some of the comments that were made, i don't find too acceptive. one is the shadow impact on the open space will not change that much, whether it is this building line or at the required setback. that wall faces east, and therefore there is the mass of the building that will be about the same. second, the visibility over that is also not going to change.

weather does conform to the setback. it is not just the height of the building, it will be about the same, where it occurs now compared with whether it would occur at the required setback. the other interesting thing about this comet if one took into consideration the financial aspect of the project, the first project probably would have made a lot more money. the construction costs would have been a lot less. it added quite a bit of money. the question is whether it is the difficulty of the site, the difficulty of building on it to

a certain extent the added variants. -- variance. the question is neither fin impact of this building upon the open space, which i find to be minimal, whether it is as proposed or required by the setback. the real question is whether the front setback justifies the rear yard variants, because it allows views by the adjacent home. i am not a great fan of

variances purely for the basis of one particular neighbor. i think the variants has to be based on not just some of the language of the site criteria, because some of those are very difficult or subjective, but i find that this variants does not satisfy the five criteria i. vice president goh: i agree with commissioner fung. just put my thoughts on the record, i don't see the hardship, i see the hardship of their own making. we deny variances and have also been interested in the case law and cannot be hardship created

by the owner. i find residents do not enjoy this proper configuration, building on 100-foot lots. i also find it is detrimental to the public welfare, and the height of this and the proposed building was striking. it is this enormous mass of the proposed building. i find that i agree with one of the speakers that it will affect the public view. also, a lot of the project sponsor applicant says it was a substandard a lot, but it was actually a larger lot in this 33-feet wide, not 25 feet, and

also the questions are asking the park view heights neighbors, that that super-dense development was built with this open space in mind, substituting for their backyard. which are very tiny, from the photographs. so why would definitely vote to overturn this. president peterson: i guess i am of a different inclination, and i thought, as commissioner fung said, the project really does not change that much in terms of its impact in terms of shadow or height in terms of what is now. so it really does seem to be more of a fear of what happens to be the properties nearbyó<

it is the only property adjacent to that could possibly be the same. i find it a unique property because of its landlocked nature. i praise the practice sponsor for moving the massing into the middle. -- i praise the project sponsor for moving the massing into the middle. commissioner garcia: i feel as though the variance is justified. partially for the reasons stated by president peterson, having to do with the fact of whether it is code compliance, not required variants, the issue would be the same in terms of the impact on the open space. reason for mid block open space requirements is to create a sense of airiness, space. that sense of space is created

to the left of this property and behind his property to begin with. i think the main reason for the various probably has more to do with the fact there is some severe engineering challenges for to be moved forward rather than just the issue of are we going to make so many people in this area on happy -- unhappy in order to benefit the neighbor to the south. i am troubled somewhat by the fact that it seems as though it is difficult to reconcile this particular zoning administration decision from ones made in the past. but it was not published until 1993. whatever reason. but is a different project. i think the real issue has to do with the size of this particular project.

in every way, that issue is code compliant. it is a challenging piece of property on which to build. i have all due respect for everyone who is here, gave up their evening to come here to speak. but when i listen to some of the people who spoke, you almost get the impression that this project is going to be built in the open space. people talk about loss of open space and dramatic effect it will have on them. with all due respect to these neighbors, i don't see it as being that traumatic, and i intend to uphold the variants. -- variance4. and i would so move. >> we have a motion from commissioner garcia to uphold

the granting of the variants. c9÷>on that motion, commissionr fung -- commissioner fung: no. >> vice-president? vice president goh: no. >> president peterson? >> aye. >> the vote is 2-2 to uphold the variants. four votes are needed to overturn any department action, so by default this variance is upheld. >> do we need any other commissioners vote? >> it would not make a difference. should we move forward? president peterson: we will take a short break. >> ok

president peterson: we are ready to resume the meeting of the san francisco board of appeals. please call item six? >> calling item 6, appeal number 10-099, academy of art university forces zoning administrator. property is at 460 townsend street. it is the appealing of a notice of violation and penalty dated august 25, 2010, regarding the operation of an unauthorized educational use at the subject property. president peterson: thank you. you have seven minutes.

>> hello. my name is david cincotta, and i am here on behalf of the academy of art university. the zoning administrator has determined that because we don't have an institutional master plan or conditional use permit for for under 60 townsend, that the academy is occupying the building illegally. what am i asking you to do? what i believe -- as i have said in my papers, we have an institutional master plan, and the department has not wanted to recognize it. i'm not going to stand here and tell you that we have a conditional use permit. we do not. but we have been unable to have

a conditional use permit reviewed because we don't have a valid institutional master plan, as far as the planning department is concerned, so there is nothing to review it against. i want to point out that an institutional master plan, under the code, what i'm asking you to do is to determine by looking at the record in the planning code that there is a valid institutional master plan. this is based on what was submitted in december, 2007. that institutional master plan was worked on for over two years, with several meetings with planning department and staff. at the december 6, 2007 hearing, the planner got up and stated that the department is determined that the imp has met

the basic requirements of section 304.5c. the other provision of the code, that is in the record. we did not make that up. we did not force him to say that. he said that, it meets requirements. the planning code itself says, and very specific 304.5e, and institutional master plan should be considered accept it when the commission hearing is closed. no other revisions, no other conditions. when the hearing has been held and closed. and that is what happened that day. how significant is that? what does that mean for us? what happened, the planning department is trying to tell you, we had to have additional transportation information. but the commission asked for additional transportation information. the only requirements for

transportation was to include the circulation around the site and parking. that was done. that is in this document. this is the document that was submitted in november of 2007. i am not going to ask you to review this for compliance. you don't have to. all you have to do is look at the record and look at the planning. but they keep moving the finish line. we believe -- they believe there is additional material required, that is why the master plan was never valid. the additional document here, this was submitted in 2009. this is the additional management plan that was asked for, and still they believe more is required. none of this is required under planning code provisions.

you know, they keep moving the finishing line, and it is because they are not happy with the academy of art. that is a separate issue. it would be like major-league baseball sang to the giants, you are from the west coast, we meant to tell you that you had to win 5 out of 9. that is what they keep doing, and i think that is not appropriate. so it is because of the other enforcement issues that i think the department has confused those matters on other buildings to the issue here. find -- what i am asking the commission or the board to do tonight, to find that there is a valid institutional master plan. it allows us to get into the situation where we can submit conditional use permit.