it looks like 8 feet or something, on all floors, so there is a passageway all the way to the backyard so that some might gets directly into the windows -- so that sunlight gets directly into the windows. that is not something the department is ever required, but the idea is that could take the volume they are losing their and then put it on the other side of the building where the residential design team has asks them to put a 5 foot setback on the upper floors, because he does not see the necessity for having that set back. commissioner antonini: okay, i think i get that, but we're not talking about bring it all the way to the ground floor but the second-floor up? >> i am not exactly sure what the d.r. requestor 1 at. that is not something the department usually requires. commissioner antonini: maybe i

could speak with someone who is project sponsor. that seems to me to be a compromise. but i know that you have made a lot of compromises already, but it would seem to me that if we could shift that a little bet and open up a bigger light well on the other side and gain some space on the other side, i realize that you move these rooms around a lot already, but that would be something i might suggest as an alternative, consistent with having -- i see no issue with the site, whether it is 32 or 36 feet. i don't think that is the impact. the impact i have heard is about the light will issue, and that could be addressed, we might have something that to be addressed. >> regarding the light well, the reason that the planning apartment originally asked us to put that where we did, which responds to the building to the east, because his building is shorter.

the way to respond to it and the mid block open space was to not have that location because it opens up the mid block of the space correctly. by placing it on the other side of the building, creating a solid wall is actually closing off the mid block open space more. in addition, by moving that not to the other side of the building, what the d.r. requestor and joe butler is suggesting is we make that baker said that it extends well into and connects with the other light well. so it is bigger than the notch that we already have on the east side. it would be enlarging it. that is a stumbling block. i agree with you, however, on the difference in height. he said a 36 foot tall building compared with 31 feet is incremental, and the objective is to be able to fit to fittwo

-- is to be up to fit two three- bedroom family size houses. commissioner antonini: thank you. i would suggest this to the maker of the motion, and basically i think they make a good point of trying to create two family size to three-bedroom units, which i think is good to do their and adds to the housing stock. but what i would do is require them to match the light well, as was suggested by one of the d.r. requestor is, but in return they get their 36 feet as designed. commissioner borden: the neighbors said they actually would walk away, that this would not be appealed or anything else. my point to the neighbors is that if the light well changed enough for you, is that good enough? for me, i am just trying to get this project done today so everybody can go home and never

have to think about it again, you guys start building next week or whenever. but i don't know that the incremental suggested that commissioner antonini put forward its us to that place. commissioner antonini: maybe we should ask somebody. mr. butler, if you want to speak for the d.r. requestors, i am not sure they've acquiesced to that, but if so, that is fine. a>> the 31 feet, is that measurd from the rear yard or the front yard? it is very important. commissioner borden: just tell me what your preference is. just tell me what your thinking is. >> if this building measured 31 feet at the rear of the property, 9 foot ceilings, but 10 foot floor to floor -- commissioner borden: just talk about the height.

>> the light will start at the ground and it goes through the roof, ok? so we took the 14 feet 3 inches of his light well and we put it next to the five-foot side yard setback on the pop out. that is what the code requires. when you put a matching white well by shifting it back to match the pop out, that is what we want. but measured at the street, our proposal is 25 feet. we could go to 27 feet, that would be fine. at the back of the lot, are envelope is measured by the planning code at the street, 31 feet in the back. each of the stories could be more than 10 feet, measured floor to floor, if a light well and the heights or 27 and 31 at the back. we would all go away. commissioner borden: so your position is that changing the light will is not enough?

>> the question is what the would be ok with just 36 feet with just the light well change. >> no, because it -- >> then the answer is no. commissioner antonini: anyway, that was my suggestion as a compromise measure. commissioner borden: does not sound like it is a compromise. commissioner sugaya: could i ask a question? i still don't understand the light well. there is a light well on the adjacent property we're trying to match, correct? >> there is a light well that is a little over 14 feet. commissioner sugaya: in addition to that, according to mr. butler, there is an additional set back under the residential design guidelines? >> there is the light well.

maybe if we look at the plants, it be easier. darrius 814-foot light well, and then there is -- there is a 14- foot light well, and then there is 5 feet. after that, you could do to store a pop out if you have 5 feet on each side. if they did not have the variantce, then there is another -- i am just guessing, another 5 feet to go that would have to be set back, and then you would match the light well another 14 feet. commissioner sugaya: what would it take to increase the square footage if you did not have the setbacks but matched the light well? would have to get a variance?

>> the compromise, i don't know what it would be apples for apples, but the compromise would be to get rid of the 5 feet on the other side of the residential design team on the third and fourth floors. it might be second and third, i don't know. there is a space trade off. whether it equals exactly, i don't know, have not done the calculation. commissioner sugaya: okay, i still don't have it in my brain, but -- president miguel: commissioner moore? commissioner sugaya: let me give it one more try. we're trying to provide as much square footage as we can get, not just by moving the setback to the east, is it, -- >> yes, we're taking it away

from the east. commissioner sugaya: and can they also gave variance if they do not have to provide the setback on the west side? >> they can get a variance for that. that is not with the d.r. requestors has wanted. bucommissioner sugaya: i am just trying to get to what we can preserve, and matching the light well on the other side from the ground up. basically, filling in the back. >> you would need a significant variation from the planning code to get the square footage from the fourth floor. commissioner sugaya: ok, thanks. commissioner moore: i am tired and confused, and i don't believe this discussion should be held by us negotiating what

we have asked these people to do with each other. i believe that two architects not being able to understand the code is not wanted here. both of them are registered architects in the state of california at they should both know what is required to code and fire requirements. i don't want to listen to that. we had a huge hearing, 6:00 time certain, and we're still sitting here with additional complications to come. i am frustrated, irritated, and at what was into this project and i don't want to listen to this anymore because we have been given clear instructions what they should do with each other. he didn't show up and she didn't say, whatever, i could not care less. that is your responsibility. we are here to help you. we did not deny the building last time you were sitting in front of us. we tried to mediate the

differences. as far as the windows on the side and polite -- and the light, i remind the commission about three months ago a project on shock well. you remember what we did? we basically required that the light well pass all the way from the ground floor in order for the livability of the older building to be retained. the windows on the side on the west side are not arbitrary windows which somebody has put in there and ask for a variance or did it illegally. that is the way the building was designed way back when. nor buildings which, the block have to respond to that in one form or another, and i did not want to believe that either. i went to that building and i realized it was the recommendation of the department at that time would have stood,

the entire building would have been un-little ball. it our way to intervene last time, asking the parties to talk to each other, was only based on the fact we wanted to create the abilities, support labor, support buildings, we wanted to support a viable building in the context of older buildings. and that has not been done, so i am not sure what to do. i still want these guys to succeed, i still want them to have their building, but the way it is in front of us, i cannot. as to whether or not this is the only way to do that, that is all i have left at this moment. iis up to you. if this does not work for you, nobody engaged each other in a way that there was a constructive solution which we could support. ii leave it up to you.

but if you don't get what you want, i will partially have to assume you did not do your homework. >> on the motion to take d.r. and limit the height to 31 feet, shifting the volume to the east -- [roll call vote] so moved, commissioners, that motion passes, six-one. >> was that 31 feet in the front or the back? president miguel: the back. at that up, thank you. -- >> ok, thank you.

commissioner sugaya: i think as measured by the planning code. we don't measure height from the back of the buildings. we measure height from the front curb. >> on the matter of the variants, the public hearing is closed. at to make sure i understand commission's wishes, the mass that requires the variants that is located on the east side -- the west side of the property will be shifted over to the west side of the property -- the east side of the property and will require a variance in that location? ok. so with that, we would be amending the variance application and allowing the mass to be moved over to the east side, as per the commission's condition that we would be granting that very

subject to the commission's conditions as well. president miguel: thank you. we are taking 15 minutes. no, let's go through the rest of this first. let's go through the next two. >> commissioners, that places us on item 16, case number 2009. 1152dd, 456 urbano drive, request for a conditionald.r. if everybody leaving the chambers could do so quiet that, we would appreciate that, thank you.

>> good evening, president miguel and commissioners. the case before you is a request for discretionary review of the building permit to legalize construction exceeding the scope of work that was previously approved in 2007. the previously approved d.r. included a staff d.r. as well as two public d.r.'s. the subject property is located at 456 urbano drive, between alviso and moncada way. the previously approved permit

included a one story a vertical addition, one storefront addition, and one story rear addition. the commission asked to reduce the overall size of the rear addition. the prime sponsor deviate from the approved plan and received a stop work order. in addition to building numerous features beyond the scope of the previously approved a permit, they also added a substantial amount of dirt around the house, adjusting grade. this make it the department of building inspection job to verify the height difficult. haft prepared a side-by-side comparison -- i have prepared a side-by-side comparison, which are included in the end of the pact, to clarify and prepared the as built from the previously compared plan. the scope of work that bebe gets from the approved plan includes the height of the vertical addition being 1 foot 9 inches taller than the previous approval, the size of the front

deck, which results in a reduction of the depth of the roofline, modified roofline of the entryway, the window pattern, bed and location, and the chimney material. the department does not find these as built features consistent with residential but design guidelines and thinks they should have them corrected. ingleside terrace home association agrees they should not be approved by the commission. in addition to the ingleside terrace homes association, the department has received comments from six members opposed to the as built features. the department recommends the commission take d.r. and disapprove the project. additionally, in order to make the department of building inspection job easier when they're out and field, would like the commission to also reaffirm the maximum height of the building shall be 22 feet tall as measured from the top of the first floor at the front of the structure to the top of the finished roof. because the grade was adjusted,

this is one of the only data points that has not been changed and is the only clear preference point on the previously approved plan. this concludes my presentation and i'm available for questions and comments. thank you. president miguel: thank you. d.r. requestor? >> good evening, commissioners. i'm here on behalf of the hillside -- ingleside terrace homes association. my family came here in 1840. today i speak to you as a member of the board of directors of ingleside terrace homes association. i speak for the entire neighborhood and ask you to please take our comments very seriously. this case is pretty simple from our perspective. the owners of this property have

been the owners for about 30 years. six years ago they apply for a permit to build up their home. after many hours with planning, the were finally given a permit. unfortunately, from the very beginning, the disregarded the process -- they disregarded the process. they built with the wanted, not what the permit allowed. this brought about several stop work orders which were likewise disregarded. they continue to build even would stop work orders in place. this kind of action is terrible. we're very concerned that in the event their application for another permit as allowed, that the precedent that is said is absolutely going to be seen by contractors throughout the state of california as permission to go ahead and build what they want despite the permit allowances. in their rebuttal, they stated that their costs are out of control. and frankly, they caused every

delay and cost overrun themselves. they consistently have refused to follow the letter of the laws in many ways. we stand in opposition to their request to grant a new permit, which would allow them to continue with have done. height, built, bulk, with openings, and some of the deviations from the permit are just building bridges the beginning of a truly awful situation. simply put, itha please would you commissioners to disallow the permit and confirm the discretionary review permit process. we also ask you to place a time restriction on them that would force them to not only reduce the as-built to the original permit, but to finish the project. it is an eyesore. you would not believe it. his history what the california

state license bureau is lengthy. i included parts of that and are filing. those that i included deal only with properties within itha that he has done work on. the many notices of violation actual point to a total disregard for the rule of law. thank you for considering this very difficult situation that has been caused totally by the hubris of the owners. again, we ask that you did not the application and place a time line up completion of the project. we ask that you denied the application employs a timeline on the completion of the project. we hope that you listen to our neighbors, who will keep it short. this is a terrible situation for our neighborhood of 750 homes. the board strive to help our many neighbors understand the entire issue at hand. it is terribly unfortunate this has gone on as long as it has.

thank you. president miguel: thank you. speakers in favor of the d.r.? >> good evening. my name is ellen sandler. i will briefly remind you of a prior situation, or the owner was the contractor for a major remodel in 2007. the house is located -- and it is also on a different part of urbano drive, located immediately behind my home. within days of the sale of that home, i was aware that a major construction project had begun at the house, which i have a completely unobstructed view of from my house.

having just completed the permit process myself, i notified my neighbors my intention to add a small deck. i wondered how this project had started so quickly after the house had sold. at the final approval of my deck, the building inspector said the permit had been obtained. winning or rick, i found out that -- on inquiry, i found out that in over-the-counter permit had been obtained. as soon as the roof came off, i knew that this was no kitchen and bathroom model. the bedroom floor was reconfigured, removing a former back door and stairway, and framing was added for huge windows across the back of the house. neighbors had not been notified. during the next several months, the building department issued several stop work order is based on the fact that it exceeded the scope of the original permit, but the construction continues

seven days a week. it several neighbors reported this repeatedly. during that process, he disregarded the rules. and finally we file the case with the appeals board to stop the project. the board ruled new plants had to be submitted with careful scrutiny by the building department and that the 311 process needed to be completed. eventually, work continued on the project, the house was completed, but what about an 18- month delay. history seems to be repeating itself at the courthouse. -- at the correct house. the building of the project was stopped entirely because of his disregard for the rules. thank you. president miguel: think it. -- thank you. >> i live cattle corner, right behind the project on urbano. that house is a big box and it

is way out of proportion with the other houses nearby, and i urge you to support the d.r. thank you. president miguel: thank you. i>> good evening, commissioners. my name is aileen carter. i have suffered from private sponsors disobedience and noncompliance to the 2006 permit. the project sponsor overbuilt, causing both solar and property line encroachment for me. as a result, have suffered a loss of solar access for my panels as they have exceeded the height, approximately 18 inches, and the extent of damage still needs to be ascertained. second because of the little fireplace chimney, another violation of the permit, the

product sponsor widen their driveway 4 inches with papers which now sit on my front yard dress line. this was done to accommodate his illegal widening of the premises, precipitating the third properly aligned rigid property line to speak. the project sponsor does not pay any attention to any laws. he has no respect for the laws put in place. the only solution is to support the d.r. enforced. sponsor -- ended for the project sponsor to follow the letter of all with the original permit into the and 6. thank you for your time. president miguel: thank you. >> good evening. i purchased the house at 60

urbano drive in 2007, which had been remodeled. last summer, a hardwood floors in the basement family room: curled. it was determined that the concrete poured by mr. winn around the staircase to the basement crumpled and allow moisture to seep under the floor and calls the bubbling and curling. the hardwood flooring and the concrete floor basement cell walls -- some walls and basements there was had been removed and replaced. the cost of this repair was approximately $9500. mr. winn should conform to the plans originally approved by the planning commission for 456

urbano drive. thank you. president miguel: thank you. are there additional speakers in front -- in support of the d.r.? if not, project sponsor? >> i am the project sponsor. we had the approval to build the house with a total height of 25 feet 6 inches back in 2006. the actual building height is 25 feet 11 inches. which is about 5 inches higher than was approved. what we had to go through in order to prove that the measurement is only 5 inches, back in april, 2009, when the building inspector said the building was