opportunity to meet and confer. the work has already been stopped on the issuance of the violation order. they will not be doing anything. president peterson: so is there agreement to the march 9 date? do they need agreement? >> you can do it without them. president peterson: is there any public comment on this matter? >> marjah- -- march 9 is fine with me. president peterson: move to march 9. >> thank you. president peterson: call the

roll, please. >> on the motion from the president to reschedule the jurisdiction requests to march 9, 2011 -- commissioner fung: aye. vice president goh: aye. commissioner garcia: aye. commissioner hwang: aye. "matters are rescheduled. no new letters go out. president peterson: thank you. we are ready for fiveb -- 5b/ >> it is a rehearing request. the subject party is to -- is 460 townsend st., the academy of art university versus the zoning administrator, decided november 3, 2010. the board voted 4-0-1 to uphold the subject of notice of violation and penalty on the basis that the zoning administrator did not air or abuse his discretion.

-- err or abuse his discretion. >> hello, commissioners. my name is david sincata. i am here on behalf of the academy of art, requesting a rehearing. this is to allow justice to occur not only for the academy of art but to 755 students who will be displaced from taking 65 classes in this building. it is impossible for us to try to relocate all those clauses and students in two other facilities. it would be easy to say this problem is the creation of the academy of art, but that is not the case. that is just because the academy of art did not file a conditional use application. the city planning department is at least equally responsible for this injustice. i think it requires a rehearing

to consider these matters. this matter is created by the fact that the department made a determination under section 304.5 that we cannot submit a conditional use application because there is not an institutional master plan. that institutional master plan determination was made without an opportunity to appeal it. that is why we have tried to raise these issues during the last appeal. there are at least six to nine other institutions that have been reviewed since then that have all had hearings. all have had expected their institutional master plans without any action. i would suggest the beginning of what we have found already. it is only the academy of art who has been determined to have a disapproved institutional

master plan. that is in the materials you received from the zoning administrator that it was being denied because of enforcement actions, which is not an element of any institutional master plan. secondly, for transportation reasons. the materials that every other hearing -- the san francisco art institute. the minutes and agendas for each one of these items read "no action required." section 304.5 is clear. it's a specifically no approval or disapproval of an institutional master plan that occur by the planning commission. that is what occurred. it specifically says you can only take public testimony. i urge you to allow us to bring these materials before you, bring institutional and permission to bring justice to these students who may not be

able to finish their program or classes. i want to point out it is not an unsafe condition that are in. this building -- safety hazards have been improved in this building. there are not unsafe conditions. we urge you to give us the opportunity to present this to you. thank you. commissioner garcia: is the planning code -- does it provide for review of appeal of the nile's of institutional master plans? >> no. commissioner garcia: as far as i am concerned, we have a pretty narrow issue. was the academy of art operating with or without a cu? if they were, that was the extent of our authority. there were operating without one, and therefore should have won. i do not see how we get to have overview of the planning commission having to do with its

policies and practices around the issue of imps. >> that was the issue are was trying to raise. we have not been allowed to present a conditional -- a conditional use application on the matter without it being recommended for denial because we do not have an institutional master plan. that is why i felt the decision as to whether or not the code says what it says -- i am asking you to take a look of the code and see if it says what i think we all believe it says, that there is an institutional master plan was to have a hearing and it is closed, and it is acceptable. i can point to even abbreviated master plans which are shorter than all others that do not have to have a hearing. if they bring a hearing, the same standards are applied. there is no approval or disapproval of an institutional master plan. the must only be taking public

testimony. commissioner garcia: you have gone beyond my question. >> i am sorry. i get excited. commissioner fung: i am looking at your letter of request. you brought that same position fourth at the hearing. at first i thought you were trying to make an argument that this body has the ability to review a non-action by the planning commission on the imp. but commissioner garcia brought forth that is not what you are saying. >> i am saying this board has the right to interpret the planning come -- the planning" acted on by the department. that is what i would like to to do. -- the planning code acted on by

the department. that is what i would like you to do. you have interpreted the planning code under other circumstances. you have granted variances. you have interpreted the planning code and challenged the interpretation of the zoning administrator. i am asking you to do that again. i am asking you to do that to prevent this injustice. commissioner fung: thank you. president peterson: mr. sanchez. >> good afternoon, president peterson, members of the board. scott sanchez, planning department. the academy argues there is a lack of justice to the students, that they have illegally moved into the subject building. this is not the first building the academy has acquired and converted without benefit of permit. this is just one of the most recent ones. as mentioned in the last hearing, the department has

taken an approach to this. properties that were acquired and converted before they had their environmental impact -- we are allowing them to go to the process. those which were applied afterwards -- no one can say they did not have do notice. they knew very well the could not acquire a property and conferred it without going through this process. the acquired the property last year, moved students in. they did give the courtesy to the planning commission of sending a letter that there were going to do this, but they did not require -- they did not apply for acquired permits. their attorney has said the building does not represent a health and safety hazard. that is not because of the academy voluntary actions. that is because the department had a consolidated joint task force the fire department and other agencies go to these properties and find those that were in violation. many of them were. this is why they came in to address the safety issues. the academy would like you to

believe this is simply about the imp. we addressed the issues with the imp at the last hearing. they do not have a cu. i am the first to say the sport has broad powers, but it does not have the power to grant a cu. additionally, there is no environmental review that has been completed. it is not a matter of waiting for the imp to be completed. the appellate has stated we would not even accept a cu. we have not said that. they have not filed a cu. they could file at any time. that is what -- that is within their right. they have declined to do that. this injustice was not brought upon it by the academy itself. they made the choice to move in the students without the proper permitting process. the action of the board here

will do, if it denies the rehearing request -- a notice of decision order will be issued, and penalties will begin to accrue at $250 a day. we're not going to attack the building. penalties will be accruing. the will have to pay $250 a day on one of their buildings with 20 outstanding use issues. the respectfully urge you to deny this hearing. i am available for questions. commissioner garcia: if we were to deny the rehearing request, will the clock starts to take on the penalties? >> as soon as the board issues the decision. to this point, no penalties have yet accrued. they would start until the abate the violation. if this is getting towards the end of the semester, i imagine

-- if they were to move but the students and abate the violation in january, i think that would be easily addressed. commissioner garcia: thank you. commissioner fung: mr. sanchez, has there been any interpretations or clarifications related to the imp process? >> i do not think there have been interpretations. the code itself was amended about two or three years ago, some of the language about the health planning requirements. i cannot think of any imp interpretations. commissioner fung: thank you. president peterson: is there any public comment on this item? >> sue hester.

i think mr. sanchez give an excellent summary. i want to go back and point out to things. this project was not in the institution master plan. because it is not, it cannot get a conditional use. this is not the only project that they have consciously acquired, knowing that they had to first get an institutional master plan and permits. this is a repeated strategy of the academy of art university. this is the first time it has come to a head and someone is being asked to say you have to follow the law. i think this board should do what you did at the last hearing. say that that is the case and do not have a rehearing. thank you very much. >> any other public comment?

seeing none, commissioners, the matter is before you. commissioner garcia: the reason for a rehearing is new information or some indication of manifest injustice. i do not think either one of those has been raised. it is pretty clear-cut. i would be in favor of not granting the rehearing. vice president goh: i agree with commissioner garcia. commissioner fung: is there a motion? commissioner garcia: so moved. president peterson: call the roll, please. >> on that motion to deny the request for a hearing by the appellant -- commissioner fung: aye. vice president goh: aye. president peterson: no. commissioner hwang: aye. >> thank you. the boat is 4-1.

a notice of decision shall be issued. president peterson: call item five, please, the item we tried to address earlier during housekeeping. >> calling item 5c, the subject property at 10 lundy's lane, soto versus dbi. on november 3, the board voted 3-1-1 to uphold the subject permit on the basis that the construction predates the 1978 planning code change and is a legal non-complying structure. >> it does not appear they are here.

the commissioners, if he would vote to continue this item to the date of your choice, my recommendation would be the 19th. commissioner garcia: is there a possible reason they are not here? >> it may be that they are simply not invested. commissioner garcia: you are pretty confident they are not going to still show up? >> right. commissioner fung: would this make more sense to do it to the call of the chair? we have no idea when -- >> it is calendar before the board of supervisors on january 11. we know the date it is supposed to be heard by the supervisors. commissioner fung: i move to continue to january 19. president peterson: any public comment? seeing none, please call the roll. >> the motion is from

commissioner fung to continue item 5c to january 19, awaiting the outcome of the ceqa appeal. on that motion -- vice president goh: aye. commissioner garcia: aye. president peterson: aye. commissioner hwang: aye. >> the vote is 5-0. this item is rescheduled. president peterson: call item 5d, please. commissioner hwang: >> we are ready to resume the meeting of the board of appeals. colorado item five d please -- call item 5d, please.

>> it is the potrero boosters neighborhood association versus the zoning and administration, decided november 3, 2010. at the time, the board voted 2- 2-1 to uphold the granting of the variance. >> could i use the overhead please? the words of the statue you hear a lot. one of the things that is important for justice is that you be told the truth. we are sworn in at the beginning of this. the statements, but are not true. from the boosters' point of view, there was an important statement made by mr. brown was not true. he represented to you that the

project sponsor had offered to put the coral road access road back into its natural state. that is not true. what i put on the overhead here is the proposal that was made on mr. brown's letter head, showing that what they propose to do was fix the road, but there were going to build themselves a better -- they were going to build themselves a better access to the garage on the open space. as soon as the planning department said no garafgge on the open space, all of their good talk was gone. there is something in the law. something is not telling you about -- if something -- if somebody is not telling you the truth about one thing, they are not telling you the truth about another thing. it would take an hour-and-a-half to go to every but misrepresentation, but that is

the big one that hit us hard. to address president peterson and commissioner garcia's points about the lack of impact on the open space from the proposed development -- president peterson had concerns about pupother people building up to e same height as the same project. i just want to show you what that would look like. i have here the space as it is now. you can see that these buildings right here -- it is two stories in the back. they have maxed out their height. you still cannot see them because of the slope of the terrain there. once you give this variants -- variance to the project folder

and allow them to build as high as they are asking to develop, then you have other property owners saying it was good for them why not good for us. that violates every bit of the general plan, every bit of the open space development. this board should reconsider its role in upholding the variantce. thank you. president peterson: thank you. mr. costa? >> president peterson, members of the board, albert costello, architect for the owners. -- albert costa, architect for

the owners. we respectfully disagree that the case should be reheard. the issues stated in their briefs were not new material. there are no new facts or circumstances that were not previously submitted in their briefs before. i have with me in front of me -- this is my folder of the briefs submitted already to you guys. there are 10 separate briefs that have been submitted to you. inside here, the issues that were raised regarding the policy to 0.3 -- policy 2.3 have been thoroughly exhausted. we rely on the interpretation of the planning department. we think the zoning administrator did an accurate job at the previous hearings. further, the issues of the easement and what was said before the not have a bearing on the requested variance.

there was a lot said in the past about the owners could do this or that. there was a lot said. i do not have enough time here to go into that now. the main fact is that in terms of having a rehearing, we feel there is no new evidence. we respectfully request that you deny the request to have a rehearing. thank you. commissioner garcia: what is the owner intention as regards the easement? >> it has shifted. the owner intentions are to extend the street down at the bottom, which would automatically abandon the easement. commissioner garcia: that was my understanding. i am not saying my vote was based on a quid pro quo. but it did seem that representation had been made. you're stating that will be fulfilled. >> we are pursuing the extension of the street. we have actually received a

letter of support from members of the open of directors. it is the first very good move we have all agreed on. commissioner garcia: the answer is yes? >> yes. we have to go through a process and the fire department is very much involved. commissioner garcia: thank you. people president peterson: -- president peterson: mr. sanchez? >> scott sanchez, planning department. i do not think there is anything in the record that warrants a rehearing. i think all the issues were addressed accurately at the two appeal hearings this board had in the item. there was also a discretionary rehearing before the planning commission. all the issues have been thoroughly vetted. i do not see how the arguments are directly related to the item on appeal before you. the issue of how it was raised.

that is a residential plan guideline issue that should be addressed to the building permit, which would also be appealable to this body. we cannot approve it until the final action is taken on the variance. that would encompass the entire project. i am available for questions. president peterson: public comment on this item? >> how much time did you want to give for public comment? one minute per speaker? >> i am in the community. my children attend school near the open space. the open space -- i am very familiar with it.

this is an area with views that are unparalleled in the city. it is very good for the children who attend their and the children who live in the area and the housing development nearby. they do not often get to see a lot of the city, which can be viewed from the open space. you can see the bay and the golden gate bridge. you can see the outlook. to not be able to see over, given the encroachment of the rear variance --children are currently able to go and look for ladybugs and run freely. students are able to go out and the other leaves -- and gather leaves. i think this would create a big impact that should be considered. commissioner garcia: if i may, anybody is allowed to say

anything want, but the issue before us is whether or not to allow this project -- it is not whether to allow this project, but whether we should grant a rehearing. you might do better to address that issue. president peterson: speakers can please step forward, as well. next speaker. >> i would like to put a picture on the overhead. president peterson, i would like to put a picture on the overhead. president peterson, commissioners, my name is but a green. i have a 17 year relationship with star king open space. my main issue has been caring for the land, creating firebreaks or picking up trash. this time around, the

stewardship of our open space entails dealing with a tall building at the margin. if built as planned, this building would be the highest in the immediate neighborhood. i urge the board of appeals to rescind the decision to grant a variance. this will help to diminish its huge presence from the top part of the open space. equally important in rescinding the decision on the rear yard variance is the influence this may have on neighbors to the south. those in an existing san francisco home most often -- president peters president peterson: you can finish your sentence. >> expanding most often happens by building up and out from the rear. president peterson: thank you. next speaker, please.

>> i am the -- i was president of the petrero booster for years. i need to tell you the history of this project in the neighborhood is one of misrepresentation. what is happening in front of you has also been happening at the planning department. at the commission, there was no discussion of this variance because the hearing was at the same time as the dr and we had to do all of that at the same time. we never had an opportunity to discuss the particular issue of the variance or the fact that you are not supposed to be granting one that is building on an empty lot. you are not supposed to grant one unless the cannot build it under code. that is obviously not true. there is nothing special