commercial use for a sculpture studio, and nothing was mentioned about that at the last meeting or this meeting, as well, and i am hoping that we can at least make a decision on that. commissioner garcia: i agree. it would be unreasonable to have another hearing and then have this issue arise. i think the person to weigh in on that would be the planning department. >> thank you. scott sanchez, planning department. a variety of uses are allowed for a legal dwelling units, and there are certain provisions. you cannot have members of the public coming and visiting. you cannot have signs up, display that you are essentially

operating as a retail store. commissioner garcia: so i would say the answer to your question -- >> if we can at least have that -- president peterson: this is a logical person appeal, so we are limited to those issues. commissioner garcia: i would say you are safe. >> i would like to recommend another date, because our calendars are quite full. commissioner garcia: two days after valentine's day, maybe there will be more love in the room.

commissioner hwang: i would like the briefing that was requested at the prior hearing. mr. pacheco, do you have that? secretary pacheco: for the permit holder to go first? president peterson: we want to make it extremely clear that any briefing you choose to submit up to 3 pages in the exhibit, so the noise study, whatever play and you have for where this is going to be, whatever permits are required to fully install this.

>> you want this? president peterson: yes. is it a question? >> the architect failed to mention what was going on. that 85 decibels, i contacted the manufacturers, both of the suppliers to handle this equipment, and the manufacturer has not tested this equipment

under u.l. testing, and their best was 85 decibels on the low end and that it is likely higher than that. president peterson: that is likely a response you can submit. >> we would like them to submit something from the mfg. giving the actual wage of the equipment so we can have a representation. vice president goh: i have a question for you, sir. did i hear you that when they turned the compressor on is when they were doing the ambien to? >> last thursday, it was on for two minutes, but they were supposedly taking readings, but that information was not provided. vice president goh: i have a question for the permit holder? >> please step forward. vice president goh: did you have the test with the compressor test on -- with the compressor

on? >> i just did a reading. commissioner garcia: and you might include in your brief the manufacture ratings. >> sure, i can do that. commissioner garcia: think you. president peterson: i would like to hear about ways we can get a representative at the time of the testing. this is so that each party can look at the rating.

vice president goh: is there a motion on the table? that they did the test and that the numbers were not good, and then we did not hear about it, jimmy, that suggests that there is no reason for us to continue this. we gave them a chance. we asked for it very explicitly. they did not do the testing and then provided us only here at the hearing with only ambient results. i mean, 82.3 is to allow. -- too loud. commissioner fung: that is when it is outside. excuse me. we are not taking testimony. it is up to you. if you want to call for a vote. vice president goh: let's see

what happens with the continuance. i am unlikely to vote for a continuance given that we have the numbers that we have. commissioner hwang: the reason i am moving for a continuance is that the process was not proper. even if he had the data that was requested of him, it was not supplied on time. and this is coming off of commissioner garcia's suggestion, and this is where i am coming from, as well. >> as the permit holder stated other hand, it has not been covered with the sound insulated cover, structure, rather, and that should reduce the db's.

president peterson: why do we not go with you vote? secretary pacheco: the motion is to continue until february 16, 2011, to allow for the permit holder to conduct additional acoustical tests and review permit issues. additional briefing is allowed at three pages per party. it is due prior. on that notion, commissioner fung, vice president goh, commissioner garcia, president peterson. the motion is continued. president peterson: mr. pacheco, thank you. we are ready to call item no. 7.

secretary pacheco: i think he has another question about the directive? president peterson: the parties have left. you can call me. here is my card. secretary pacheco: item number seven, appeal no. 10-110, john horvers and f. joseph butler,

1269 lombard, versus the zone in the administrator, protesting the grading on a two-for-one, 2010, for the rear yard variance disconcerting demolishing the existing two story single- family building and constructing two new buildings at front and near -- we are of a lot. >> -- note the front and rear of the lot. >> good evening. john is not able to come this evening. his mother, unfortunately, his 91-year-old mother in arizona was hospitalized, and he had to go down to arizona. i note will do like to point out that he did ask mr. gladstone to continue this, and he refused.

i say shame on mr. gladstone. however, we're going to continue with the process. i happen to also live in the neighborhood. all i am out1251 and 1249 lombard. -- i am at 1251. how did this new project get as far as it did in the approval process? it is seemingly far in excess of anything that as allowed in the code. there seems to be an assumption that a developer or project sponsor has a right to two units. and there seems to be an assumption that it is compatible with the neighborhood. talking about requiring of variance in the back of the yard.

you can put a two-family dwellings. that is a dwelling unit, not two units, not anything else. 2019-g says the in therh-2 zone, you need a conditional use district. it does not meet the code. you cannot put two units on this lot. you can only put one unit on the lot. when we talk about the neighborhood compatibility, there were all kinds of comments made by the zoning administrator that this is compatible with the neighborhood. it is not compatible with the neighborhood. there are seven lots in the east

of this project, all zoned rh-2. there are single-family homes. there are two in front and some else. and this is 1800 square feet in the back. this is not compatible. we take the remaining lots that are east of this project, and one happens to be my property, including one entirely in the rear of the lot. i have to make the other thing clear that all of these range in size from 3400 sq. ft. to 5400 square feet. this is the smallest lot on the block. the two properties next to this

project, each one has a two- family dwellings and a cottage in the rear. the cottage adjacent to this property is 850 square feet. they are proposing to take a 975 sq. ft. noncompliant building that is in the rear and replace that with an 1800 sq. ft. building that is next to a 850 sq. ft. building. the cottage next to theirs is a 1100 square feet. both of those properties are 1.5 stories tall. the rear yard building is three stories tall. 188-a of the code talks about this.

it says if a noncompliant building is destroyed or damaged through an act of god, you can replace it, but only within the existing envelope of the building. it says you are prohibited from expanding. 188-b says if it is not an act of god, you can replace it with a noncompliant building. this building in the rear yard is noncompliant. so, a, it does not fit the code and is not compatible with the neighborhood. c, there is a residual effect on the neighbors up from it, and has an effect on the adjacent lots.

on the horvers' building, they are looking at a light well that allows light into only the lower unit. there are two units on the main floor. there are two, and one would be entirely blocked. if this is not material, i do not know what is. this is not in harmony with the coach. it is not in harmony with the history of zoning in this neighborhood. other things that i talked about earlier, my property was built in 1876. when they finally brought in zoning in the city, 75% coverage of a lot was allowed. this was changed in 1972, and

the zoning was changed to rh-2, which it is now. however, rh-2 has been constrained even more, and requires a conditional use permit, and you need to have one unit for 1500 square feet. this simply does not meet any of those requirements. and may i make one closing statement? i have given you the facts of the code. there is something even more important.

this certainly seems to go beyond fairness. commissioner fung: which is yours? >> mine is the third lot. i have the garage. they say mine dates back to 1876. i would have to say that mr. gladstone made some references. he mentioned something from 1972 which had nothing to do with it. commissioner fung: thank you. president peterson: thank you. mr. butler, the time is up. >> i understand time is up. the permit holders were not in the room during the swearing-in.

secretary pacheco: if you intend to testify during this hearing, please stand and raise your hand. do you solemnly swear the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? president peterson: mr. gladstone? >> ok, my name is tom. it was a company my father founded 32 years ago. it is a small private lender. this property had to be taken back due to foreclosure. he stopped making monthly

payments. we feel that the tick advantage by not following certain rules by leaving the site in an unpleasant state. the developer also took the advantage of us. he lost all of this money that was invested with us, as well. there is no money or profit to be made on this foreclosed property. the picture in the middle is it. there is the historical report from the best known living historian who had been retained by mr. butler himself.

there is the owner of the building to the east. we were disappointed that we could not satisfied mr.horvers. we are pleased to have created a large light will open on one side that will allow. this was for their benefit. >> mr. gladstone.

of course, we feel sorry for mr. horvers and his mother, but another has spoken for him before, and we knew from mr. butler that the appellate would be here. here is what this looks like. you try to make everybody happy, but there are people on both sides, and we did what the planning commission required us to do. this is one that does the very least amount of harm to the livability of the unit, and is one that was proposed, which we will show you with mr. butler,

and he got what he wanted, the light will the we are doing right now. a huge amount of time during the relocation. the planning commission in its judgment thought it would be better to put the big light well opposite that today, and we have. there is no negative impact, and the condition that we have created here will give them more or less at the same light impact as to property line windows that face another building. it is an extremely typical condition. it has been done for generations and is still done today. by the way, the light well the we are doing is open ended in

the rear, unlike most light well as in san francisco, which are enclosed. it has the same set back as the one proposed a by mr. horvers, and it has the same depth, as well. this is in 1998 and is shown now. and the one that they are proposing today, the one approved by the commission, is shown here, and you can see the same light well as before. 7 feet off of the line, 18 feet in length. -- 17 feet off of the line. >> do we pause for a moment? commissioner hwang: the one on the right is, i think, exhibit f, right?

>> the one on the right is exhibit f. and the one on the left -- let's see where it is. well, if you look at exhibit b, and you look at the top of it, you will see it at the top. commissioner hwang: ok, thank you. >> so continuing on, i wanted to point out that their rear window, the very real one, will not have any structure close to it at all because it extends beyond the length of our building. if you look at this building, the front of it gets all the light. the bottom gets no light because the existing structure is on our side.

this would give tremendous light to this portion of the facade. this and would indeed be blocked but this is an illegal french door for an illegal crossing. they realize they don't have an easement for that window to reach our property. we have prepared a chart that shows that just about every number that was used is incorrect. his building alone is three stories. this is more like 4000 square feet rather than the 2000 that he states. the gross square footage of the rear building today is 1830.

they are completely wrong in saying that our existing building is 975 sq ft. thank you. >> mr. sanchez. quarks i would like to address some of the issues that were

raised regarding the planning code and clarify some of the planning code requirements. we have had this same question come up before the board. you are permitted two dwelling units, that is the base can city, no matter what your lot size is. if you have a 6000 square foot lot, and you can petition for a conditional use to go up to four dwelling units. they are in compliance with the density requirements of the planning code. this is a good location given that this is close to call st., major transportation corridors.

we think you'll be possible to have two dwelling units. it is true that you cannot demolish and rebuild a noncompliant structure unless you have a variance. that is what they are seeking. that is what they are building in the required rearguard. there has been the typical community process in this section 311 notification. there was a mandatory discretionary review hearing because of the demolition of the existing building. additionally, there was a zairian steering -- a variance hearing.