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 about this project. we have not had the chance. the history of the project has been misrepresenting what the boosters have said, what the neighbors have said, they are continuing to do that here. we need to have a full hearing. president peterson: thank you. next speaker, please. >> my name is caroline baird. i am president of the star king open space. i believe there was significant misunderstanding last time about the topography of the open space. president peterson, i believe

you understood that it sloped downward so that the neighboring house would not -- if there were built up, would not block the height. as you hopefully saw when it was up there, these houses are all level. this looks like it was the neighboring house but it is on the property that will come down when the new house goes up. the second thing i want to speak to is the misrepresentations that chris spoke of. there were several missed proves the last time. i do not have time to go in to them. they have been poor storage of the land and have not worked with us. their husband a lot of evidence return to work with them beyond that letter, beyond requesting the come to the community board on several occasions. the third thing i would like to talk about -- thank you. president peterson: would you like to finish that last sentence? >> we have over had use of the yard that show us that contrary

to what we were told to believe last time that all houses adjacent -- there is a small shed next door. other than that, the only one is that tall house, the one building anywhere in the open space that threatens the views. we are afraid it will be a book and. -- a bookend. commissioner hwang: can i ask for a clarification on one of the points you made? the stated that the misrepresentation on that point -- you said beyond the letter that mr. brown mentioned you have had no common ground. you were speaking so quickly i could not follow you. >> sorry. earlier, albert costa referred to a letter saying it was our first common ground. we wrote a letter in support of the variance back in may saying

supported an extension of the street. we send out a settlement agreement to work with them and also suggested community boards giving the information. we have talked to them, but nothing has come of it. we have tried to be available to work with them. obviously, we have very different positions. commissioner hwang: in other words, outside of those areas, you are not in favor? >> we are not. we feel the project is very inappropriate beyond the rear yard issue. but we are trying to come to supplement an agreement. commissioner hwang: i thought that was what you were saying but i was not sure. president peterson: any other public comment? seeing none, the matter is before you.

commissioner garcia: i hate to be the first one to go. the standard for a rehearing with the manifest injustice. i suppose everyone that loses feels as though manifest injustice has taken place. i do not feel as though any evidence was presented to cause this commission to feel as though that had happened. the other standard has to do with new material that has arisen since the case that would affect the outcome. it was not knowable at the time of the original hearing. i was somewhat confused about the issue that was raised by one gentleman who spoke having to do with the fact that the variance has never been heard.

i thought that was what the hearing was, to hear the issues to do with the variance. i do not feel anything was presented that would cause me to want to grant a rehearing. commissioner fung: the information that was presented related to the impact on the open space, both in terms of the you blockage and shuttling -- we did talk about that. -- both in terms of view blockage and shadowing -- we did talk about that. the easement was also discussed. even though i voted against the

appropriateness of the variance, i see no new information that would -- not necessarily change my decision, but in terms of calling for a rehearing. vice president goh: i would agree with commissioner fung. the standard is very high -- manifest injustice or new facts. we heard the facts of the tree coming down and miss troo beingr steroids -- of the tree coming down and misrepresentations with regards to the board being forced to words -- being poor stewards of the land. i say that reluctantly because i voted against the variance. president peterson: --

commissioner hwang: i appreciate the clarification on the possible topography changes. it is always a concern. you try to predict the future. it was one of the factors. it is still have practical. i think listening to the standards we have, i would vote to uphold the variance. president peterson: i have nothing but to echo the comments of my fellow commissioners. i move to deny this rehearing request. >> >> on the motion to denied a hearing request. commissioner fung: aye. commissioner goh: aye. commissioner garcia: aye.

president peterson: aye. >> the request is denied. president peterson: item 53, please. -- 5e, please. >> a jurisdiction request. we have a letter asking that the board takeover -- it was issued on december 14, 2009. and the jurisdiction request was received in our office on november 18, 2010. the request of the permit.

president peterson: you have 3 minutes. >> i would rather read it then talk. since the purchase of the building, my mother has been receiving payments for advertising signs of the building. we are trying to contact them, but we were unsuccessful at the time. my mother did not take much notice and was working to implement the building from mortgage. she was approached by a small company in the neighborhood with a request to expose of the side of my mother's building. there has never been a written agreement. the actual background statement

is as follows. there was a statement provided and you can review them. how was it possible for my mother to request to the number of the cancellation? she could not possibly have requested it. she doesn't know how to use a cellphone, never mind a computer or fax machine. they receive the termination letter, but it was not for my mother. the comparison of the signature demonstrates my mother's dishonesty, they say. a comparison report should have been done. with the administrative code or planning department, this is why

we immediately address notice of violation letters and we just put the sign up. with my mother receiving a small income, why would she have the privilege to reduce the and come and allow -- hugh a drive to keep the time to apply for the permit. it is obviously -- it is obvious that we did not request any determination. [unintelligible] that is it. >> this undated letter that the planning department is signed virginia