are no subsequent units that add that back and doing so would be violation to the planning code and only allows two units on the property and the original lot was 11e so the title inspection -- i mean if they failed to go back any further than 20 years on the property -- or 30 years on the property that is more bit of issue for the title insurance company because it does have history before that. so they missed the other 85 years that the lot existed but it was clear it was roared on the mother lot. that lot was retired and new lot numbers were given to the property, so they had instead of one and three buildings and had two unit buildings and complied with the zoning and in 1997 when the current owners bought the

property there is conflicted testimony from the appellant and they did the three hour report. it's clear. it's in the appellant report. number of dwelling unitses, unknown. the evidence it does give the building occupancy is three and which would have been correct because clearly on that report is notice of that permit that was pulled earlier to reduce the number of units from three to two and again there has been no subsequent permit that restores the number of units and i believe today there are four units in the building, so i mean there are units here and i don't think there has been any indication it was three units. i think by the appellant's own knowledgement and some of the say three units and they were

illegally renting out the fourth unit and i think there was a complaint on that and how this process was originated but they're allowed two dwelling units in the building and condition of approval for the subdivision and potential to build the two new buildings. now there was a permit from 1997 which the appellant did not provide -- or sorry, 1998 and new door and that listed as single family dwelling. that appears incorrect. and probably a t building at the time. that would have been applied for the current owners of the building, so i don't know who came in with the permit and put that on there and in 99 there

reroofing permit and the history is unclear from the 90's and 2000's but what is clear is the cfc which stands and the conditions of approval which stand from the 1985 subdivision. they did request -- at our request a new update the three hour report. i believe it was issued in error and yes it is generally department policy that three hour reports are given weight. they're legal documents but not when they're wrong. i mean we have obligation to enforce what we know to be the truth and we know there is a t and building here and two units and there is no indication it went from the three. >> there wouldn't have been a permit. >> exactly. we believe that the letter of determination is

correct. we believe that the three hour report, the current one is incorrect. arguably the one from 1997 was correct and noted that the building code occupancy was r3 and up to two units so maybe the senior building inspector can address that and the record generated by the building inspection but i am available for any questions. >> mr. sanchez, just to see if you can concur that the sequence was as follows. when the developer got his approval and then recorded the nsr on lot 11e which was a single lot at that point and time. the subdivision map that created the three lots came after that. is that correct. >> that's correct. >> now based upon your

knowledge of how that block notation works is there no transference between nsr's on the larger lot down to the smaller lots? >> in our records generally do that but again this would have gone to the assessor's office and do the title search. i think they failed to look under the original block number for the property. if they looked under the recently created lot number they failed to do the complete research. it's up to the assessor's office whether that is record audio. >> they will show up on your maps also. >> >> yes they do. >> what do your maps show? >> that there is 498 hoffman and notice to restrictions and

family use only. >> for 498. >> yes. >> does it show a lot number for it. >> lot 32. >> 32. okay. perhaps this question is better for mr. duffy but in terms of the 3r report how does that information change? >> i will let -- >> okay. >> -- discuss that. >> commissioners i will answer your questions commissioner fung. on the three hour report and i think i know why there is three family dwelling and reroofing permit and the 3r report. personally i think this should have been unknown on this one because there is a dispute

with 87 permit and two family dwelling and 98 permit for addition of existing door with it and says on that three family dwelling but there is no record in the brief of the permit which tells me in 87 the last permit that we give said two legal dwelling units. if that permit come in 98 it would have to say going from two units to three units to change the unit count. if someone filled out an application then and we should have flagged that because that's not right in 87 the last permit was for two units and we have one that says three. now i don't have it in front of me but i betd it says existing three units and it got missed missed

and there was the other permit for the reroofing that said existing three units, so i would say of the 3r report probably need to be reviewed and corrected in my opinion but i haven't had the chance to speak to our record staff. >> okay. so what you're saying is the 3r report gets modified by every new permit? >> it should, yes. >> it should. if it is consistent but the 98 permit is in my mind and change from the 87 permit going from three to two units and converted and the rear floor and breakfast area and remove third unit and two family unit with garage and two family dwelling and 98 we have a new one for three family dwelling but no description on

this report and converted back to three units and i don't think would have been allowed anyway and what mr. sanchez said and because what we issued for the dormer and there is a report saying single family dwelling and i don't know what's that about. i would need to see the permit for 98 and existing and proposed is the number of dwelling units. i mean we don't have that before us tonight in this package. >> okay. thank you. >> is there any public comment? okay. seeing none move into rebuttal. >> we do have a process forthat

and maybe that's the process they want to go into. >> thank you. >> members the board most respectively i have quote this gentleman before me. this is muddled up and exact determination and it wasn't due to my client's fault. they applied to remove the fourth unit down stairs and repair the property due to water. they came upon a series of permits dating back to 1947, 1986, 1999 saying it was three unit building. we have the admission it was a three unit building from the planning doesn't. we

have the fact even after the notice of special restrictions against the wrong property description the san francisco building department inspection issues two more three hour reports and one saying unknown and one saying three unit building. we think that the planning department has clearly established position on relying on the building of inspection to determine the history and legal use for residential dwelling buildings. you should please hold these departments spfnlt they can't say "well, we need to update our records". my clients are hurt by this erroneous determination. you should find there is abuse of discretion to ignore the 2012 3r reports that

indicates this is 3r building and rule this is a three unit building count. i am available for questions. >> i will go back to my first question to you, and i don't know where my fellow commissioners are going to be on this, but i would consider looking at -- to be able to maintain the housing stock and i'm not sure these units are affordable, but i will willing to consider that if you could demonstrate whether it's through separate metering, whether it's water bills, or whether reverse directive -- >> (inaudible). >> will you let me finish please. >> certainly. >> that way to demonstrate that there was always three units

throughout this period of time. i would look upon that as something that may mitigate the record history. >> yes, sir. i could provide mr.and draid sworn testimony's right now to the fact there are 3-meters. >> i would need more than that. >> vice president fung are you saying you need documentation and this is a legal use and prioring to the zoning and restrict to two units? >> that would be part of it, yeah. >> thank you. >> all i can provide -- >> which i would lean towards a continuance. >> you believe you are able to provide that type of evidence? i think it's beyond showing some meters. >> i would be candid with you i'm not sure i can provide that. i can provide a sworn declaration that are currently

in usage. >> currently but how far back. >> yes, ma'am. we can get the pg&e records. >> i don't know where you folks are on this. >> we can hear the rest of the rebuttal. >> sorry. >> mr. sanchez. >> thank you. scott sanchez planning department. so i like to show what is the map for the subject property and shows it's a two unit building. again it's record that is available to the appellants. in the highlighted it's showing two residential units and with the other two unit residential buildings that were built after it was subdivided pursuant to the zoning allowing two units on each of the lots so under the general plan we have the obligation to preserve and protect affordable housing. however we also have obligation to preserve neighborhood

character and matters of density for the subject neighborhoods so in approving the subdivision it was very clear it was limited to two units because that's all the zoning allowed and i appreciate vice president fung's comments here. had there not been a subdivision associated with this and maybe ones of removed but in this case it was removed for the purpose for them to have development potential of subdivision and creating new lots so if that wasn't tided to it i would understand the board's discretion and carefully reviewing this and seeing if it was valid and i have concerns in this case because we don't want people displaced from their homes and maybe in the future there are ways of legalizing this in the planning code .

the planning code is constantly influx but right nothis determination should stand and i request that the board up hold it and two unit building and testified by the subdivision and by the cfc and failure of any permit to add a third unit in violation of the zoning. i think that is clear in the facts here and respectively submit those facts to the board for consideration. >> commissioners, the matter is now submitted. >> i feel barely persuaded that the lod is appropriate and should be upheld. okay. >> is there a motion? >> i move to uphold the lod on

the grounds there is no abuse of discretion or error on the part of the zoning administrator. >> okay. so we have a motion from the president to uphold this letter of determination on the basis there was no error or abuse of discretion by the zoning administrator. on that motion vice president fung. >> no. >> commissioner hurtado is absent. commissioner lazarus. >> aye. >> thank you. so we have similar situation from the last vote. the motion fails but the lod is upheld for lack of three votes absent another motion. no other motion? okay. >> okay. >> we move for a continuance

with more evidence -- >>i think we just made our decision. >> i think he said absent another motion. >> by us. >> okay. >> thanks. >> okay. so i will call item 10 appeal lori lewis versus the department of building inspection with approval at 4077-4079 23rd street and altering and the strong building and no roof and not attached to building and no permit required and application number is listed. this matter is on for hearing today. are you here for this item? okay. so there is no one here then for this item and commissioners i have indicated to you previously i

had some indication from the permit holder that she was interested in canceling this permit although -- i think mr. duffy can speak to this but i don't believe a formal request was submitted. >> did you receive any further communication from the appellant? >> i have not received any communication from the appellant whatsoever and have you? >> no. di. when you were on vacation the appellant requested this rescheduling for the same reasons she had been told she believed that the permit holder was going to cancel the permit. >> okay. >> but nothing has come about it. >> i lead to believe but we didn't receive paperwork before the hearing and we didn't get it and it was indicated this matter was resolved in a court case apparently with the permit holder losing or something, so

they're not -- i don't think it's an issue. >> was he representing the appellant or the permit holder? >> the permit holder at that one time, yes. >> perhaps madam director maybe continue it to the call of the chair and if they pull it, it disappears. >> we can do that. first -- i guess there is no public comment. okay. i'm more inclined to -- this is a no show. >> that's right. >> they have full notice and we understand people have been -- >> uphold. >> uphold and if they -- well, yes. >> [inaudible] >> we can uphold and they can still cancel the permit. >> all right. >> no, if you up hold -- that's right. the permit is gone. >> yeah. >> do you want to continue?

>> once the board makes a decision i don't know if they can administratively cancel the permit. >> my understanding -- just my understanding is that the -- as inspector duffy stated this permit was requested pursuant to arbitration that was taking place. the permit is actually not required for the work that was contemplated on the face of the document it's not a required permit. >> okay. >> just for my efficiency, correct. >> then you want to overrule it. >> i don't have a preference on how the matter is handled rather than just being disposeed. >> if we overrule it eliminates their arbitration of this. >> yes, i think i go with the vice president fung's -- sorry. >> of course if you take an

action there is 10 day hearing request period and if either party is unhappy with the action they can come back and explain why they didn't show up today. >> okay. >> mr. duffy. >> i am wondering if it would help if i contact them -- if they're not going ahead this permit should be canceled. they're not doing the work and go ahead. if t. -- cancel it -- >> your suggestion -- >> just give me more time. >> continue it. >> if you give the parties until january that is more time to seek cancellation and dbi will go out and verify no work is done. >> and then it disappeared.

>> and at that point if no one shows up in january they will certainly have notice -- >> okay. >> and anyone can show up or not show up in january. >> there is the safely the property and always good to get the permits out of the way and expire in our system and it's someone else's problem and encourage them to cancel it. >> move to continue -- let's say january 16. is that all right? >> yeah. >> so we have a motion then from the vice president to reschedule this item to january 16, 2013, and it's to allow time for the permit holder to seek cancellation of the permit. on

that motion president hwang. >> aye. >> commissioner hurtado is absent. commissioner lazarus. >> thank you. the vote is three to zero. this matter is rescheduled to january 16. >> okay. so commissioners since items 11a and b have been dismissed there are no other issues pending. >> thank you. we are adjourned.

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