and so, just studying the photo there and also getting to the question of the size of the deck on the low work building, this is the live, work building here and the portion that they are talking about have the working that is in there i believe was constructed as part of the project in the mid 90s and the deck, extends away from here, with the building wall ends to the end of the property, so that does appear to be a substantial size patio area and this is quite narrow as you can see. and again, this is looking at it more from the west so, you know, when the sun is never going to be really due west here because of how far north we are so the sun will always be to the south. i just don't see the real shadow impacts and also going to the changes that were made, i think that if we study, the changes that were made, you know, the patio is quite substantial and it appears to be more than 15 feet in depth

and for the residential properties in the city, the minimum rear yard requirement is going to be 15 feet. if you come to a small lot and you can do, you know, no less, you can do no less than 15 feet. so it seems to have a substantial sized yard and if you also do have a fence in a yard and just say that you live in a residential district and each one in the single family dwelling, you are allowed to have the fence up to ten feet in height and not too different from what we are seeing here with the higher mask being set back further this is not directly to the west, it is to the north east of the property. i think that for those reasons this seems like it is actually a reasonable proposal. it is less than what was approved in 2008. and you know the appellant has just in his presentation just made it clear that they may do whatever it takes to delay this project to stop it from happening. and they have their rights, they have the processes and the appellant and i know that he knows very well what the

processes are and would not... you will be hearing with this board and the appeals and there is definite ways that it be delayed. and that is their choice, but if they chose not to respect the decision of this board if the board choose to up-hold the permit and with that i am available for questions. >> thank you. >> thanks. >> the matter is submitted. >> >> i will start. he was correct in saying that i was there at the genius of the live-work program movement. however, i was not there when it was implemented. that was the next administration. and at that time i was wearing a different hat and being on planning. and i was not heavily in favor of the program. i was not against the concept

of live-work, i was against a alliance that was pushing it and that led to what is basically political and demographic jerry man dering, one is the rights of the owner of putting up a building that he wants it is relatively inocuous small building. and the issue of the appellants, obviously relates to what they view as impacts upon their units. the problem with their units are whereas the fact that they are non-conforming. besides whatever the discussion is on how the zoning is going to change and everything. if it became housing, that

building could not be done in its current configuration. and density. therefore, the question is whose rights are a little bit better, stronger? who's then needs to be protected? in this enstance i am going to support the property owner and the permit holder, given the fact that he has a relatively small building, it is for his own use and that there has already been a bite taken out of it by the planning commission. >> >> okay. i have similar leaning. i have definite sympathies for the individuals and the people who reside in the stage house building. but i think that in this instance, i think that what was

very lucidating to me was the comments of the zoning administrator and the visuals provided with respect to the actual impacts. i think that in reading the materials from the appellant's brief, i just disclosed it, and i actually read his briefs. and i was under a different impression and one that where the impact would be much more severe. so for those reasons and some of the reasons that commissioner fung stated my leanings are to uphold the permit. >> yeah. for me it is a little difficult case because of the fact for one i sympathize with any obstruction of this kind, especially in even if it does not directly block the sunlight, i think that there is going to be an impact so i am

sympathetic to that. but what is more troubling to me is the fact that there are these land use controls that could potentially effect this kind of building going up at this particular location. but i do also recognize mr. sanchez said according to existing regulations, it is a valid permit. so i feel constrained to vote to uphold the permit. >> i'm old too, i remember when this building sold for a million and three, the whole building. >> yeah. >> and so, yeah, my day job is a realtor. most people are aware of that. and i do definitely,

definitely, sympathize with the people that are in the building. at the same time, i believe that the potential developments should have been adequately disclosed when you purchased the building. the gentleman, the permit holders have gone through the process, and as commissioner fung has stated, they have given up a chunk of their building already. and so i am going to agree with my fellow commissioners. and uphold the permit. >> do you want to make the motion? >> i have never done that. >> so i would like to make a motion to uphold the permit that we agree with what was said by the zoning administrator scott sanchez. >> okay. >> so the motion has been to deny the appeal and uphold the permit on the basis of the

zoning administrator's testimony. >> on that motion, from commissioner honda, to deny this appeal and uphold this permit on the basis of the zoning administrator's testimony at hearing. >> on that motion, to uphold, commissioner fung? >> aye. >> president hwang? >> aye. >> and commissioner hurtado? >> aye. >> and the vice president is absent and the vote is upheld on that basis. >> we will move on to item number 9, appeal number v12-154. are we calling this item?

>> yes, and then we will take a break after this. >> afterwards? >> okay. >> the appellant is david cao and this is against the zoning tracinger and the subject property 209 prentiss street and 1201 court land street. appealing the conditions placed on the lot area, and rear yard and mass reduction and parking variances granted on november 28, 2012, adjust the existing lot line and construct the new single family dwelling on the resulting new vacant lot. variance case number, 2011-0793 v. and we will start with the appellant. the agent, miss tan. >> overhead? >> just refer to it in the microphone. >> if we could have the overhead, please? >> all right. every time that you want to use it just refer to it.

>> okay? >> ready? >> how do i? >> if we could have the overhead, again. >> there we go. okay. >> right now it is small. >> do you want it out? >> is that okay? >> you have to hold. >> because i have other pages that might... >> okay. >> well that is the right lighting. >> okay? >> do you want more? >> that is as far as it will go. >> okay. >> so, you know, camera and restarting your time, ready? >> hi, i am representing the appellant, the owner, and i am the architect of the project.

and so, this is the project that the corner of cortland and prentiss and it involves two lots. >> so the main reason for this is we tried and we have two lots, existing. and there is a house in the middle of the two lots. so we tried to do an adjustment lot line adjustment permit to have the lot divide differently. and then this configuration of the shape of the lots is

causing problems and we have to... and there is a few that we have to go through for the public hearing. and all of them are okay except for the mass reduction and we are trying to fight for a hardship on that with the zoning administrator. so i would like to kind of show an explanation on the process of the numbers that we have all along on our building.

when we first meet to planning, the square footage was 2,215 square foot. and after march, when we have our assigned panel on board, we have the height adjustment balancing process and then the design of the process and then at the end we still got approval in june and that is where we have the 2044 square foot. then, when we start with the mass reduction with the diagram explanation, we tried to... what we... what i work with, the planner is we try to work out the numbers, that are according to the mass reduction

calculation, we are only allowed to build the 2000 square foot which is caused by the irregular shape of the lot and we tried to keep for hardship. but we never... but, the zoning administrator, during the hearing, still expressed that he is to turn down the mass reduction whirl wind approval because he think that our building is too big and we try to expedite to reduce it even though we have already pending approval. we try to reduce a little bit to 1898 square foot. but then at the end we were still different in the number that we have to do a 1495, which is not exactly in the calculation from the mass

reduction. and then, that is too small a house that we could have in order to meet my client's investment return. so, we then we go for the appeal and i have in december and january with the panel, our way of calculation. i still get the numbers up to 1100 square feet only. but then from the respondent's brief, last week, it seems that certainly we were different the number 1 720 square feet which we don't have any supporting

that was given us how that is calculated. because certainly the number from... it is different from what we expected or tried to fight for. we already reduce it to 1800 square feet. and we want to see if we could just keep that because we don't understand how those numbers comes up and we really insist that we feel this is a hardship case. so, >> you are saying that you don't understand how the planning came up with 1750? >> correct. >> actually planning. >> you don't know how they calculated that? >> you don't know how that calculation of square footage took place? is that what you said?

>> because i have attempt to calculate our irregular lot and then i also provide another diagram at the hearing to propose for a regular lot. we could still build like 2529. but then we don't get any feet back at all and then it is just lay there in august. and it was given us a number of 1495. and that is the maximum to build. >> you don't know how they arrived at that number. >> i don't know. >> okay. >> we will hear from them. >> thank you. >> mr. sutter are you handling this case? >> okay.

>> excuse me president hwang and members of the board and i am with the department staff and just to rearticulate the issues on appeal right now. this case does not involve a lot line adjustment and subsequent construction of a new single family home on the resulting vacant lot. because of how the appellant has chosen to adjust that and configure the new lot, four separate variances are required from the planning code. three of those four were justified. and we granted them. those were variances for rear yard, parking and lot area requirements. the granting of each of those variances acknowledged the unusual geometry of the resulting lot. and allowed what we felt and continue to feel is the necessary flexibility to design a building that is responsive to the neighborhood and to the lot and to the context.

the fourth variance, however, this is the mass reduction variance, was not justified. and we did not grant that. going to the appellant's point i think about confusion regarding the mass reduction variance, mass reduction is an unusual requirement. it is a requirement that only applies in the bernal heights special use district and i think that it is appropriate that we are straight forward with you saying that it is complex and there were some miscommunications between our staff and the sponsor. we did calculate the appropriate mass reduction requirement and related that to the sponsor relatively recently. i think that it is good to notice that it results in a building that was larger than the appellant was previously

under the i impression. how that is and how we arrived at it. it is one that limits the square footage of a building in bernal heights to 650 square feet of floor area less than the hypothetical maximum biggest tallest building on the site. so we arrived at that 1750 figure by figuring out the square footage of the biggest possible building under the planning code that could be built and taking away 650 square feet in this case it worked out to about 1750 square feet. now that figure is 100 fair feet larger than the building south of this property and 600 square feet to the building to the north. it is bigger than any adjacent

property. nonetheless, the appellant would have you over turn our denial, and allow the construction of what was represented in the variance application of a 2200 and that contains three bedrooms and three and a half baths and a work space and entertainment room and while that is really just to illustrate the scale of what we are talking about the fact of the matter and what does matter is that the appellant has not provided the justification or the basis to add on about 450 square feet of bonus space that is not allowed under the planning code. >> the configuration of the new lot is entirely of the appellant's own making and while that new configuration does suggest flexibility, in the application of the code standards and what we have granted that with respect to the yard and lot area, and

parking. those, regranted variances are balanced by the mass reduction requirement. so we are granting flexibility, but it is important to maintain a building that is ultimately in character with the neighborhood. with that commissioners, i thank you for your time. we do urge you to uphold our decision on the only one of these four variances requests that was not granted. >> could i ask you the question, what is the purpose of the mass reduction requirement? >> in general terms, we have interpreted it in the pass to be the reflection of the very kind of bernal character which is a fine grained small buildings and narrow streets environment. it is very unique in that it is, i think in my view any way, kind of one of a kind. the buildings are very small and the character is fine grained.

>> got it. >> very fine grained? >> is that what you said? >> fine grained. yes. >> it was a slightly different reason. >> i might use that on my next marketing statement. >> fine grained. >> the reason is because berno had one of the few supplies of a lot of lots and really small buildings left it became a place where people wanted to develop and they started to develop, three stories over garage flats, huge buildings. >> and then there was a lot of stuff in the beginning and appeals here every week. and planning also, and eventually, there came with this, and which is unique because i had never heard of it before until it showed up at bernal. you know? >> i have a question.

on the 1720 to 1750 square-foot calculation, that is interior space? >> yes. it is sort of a generalization, and the formula is a little bit difficult to articulate. given the fact that there is no voids in the house, it is a three level plan, 1750 gross square feet. >> interior. >> gross is exterior wall. >> okay. thanks. >> >> okay, thank you. >> i don't believe that there will be any public comment on this item. so we can move into rebuttal. miss tan, you have three minutes of rebuttal. >> i'm not fighting about his

trying to keep the size small. but i'm asking about why in june i be sending the way to calculate even the hypothetical way to calculator regular lot, this is what i have for regular lot. and that i have proof that, that we could build a over 2000 square foot house even if we do after the mass reduction. and this is our lot. because of the regular size, we cannot count the 1000 square foot as our maximum square foot and this is since june i

present and i argue but there was no feedback and then at the end in august, they went as a 1495 that is coming from nowhere. and then, i talked to my owner and then he just say that it is too small and so that is why we go for appeal. and then after the appeal, it does something good. yeah, certainly in february, we were different, 1720 to 1750. so yes, my owner with the own are i talked to him and he said yeah if we were given that in the first place we might not wasted time to do the appeal. we maybe would just go ahead and try it. it is only like 150 square foot. i try to redesign and i can do it. but because of before they want me to cut 400. i cannot with the three bedroom

house, i cannot do anything. >> miss tan, do you want to withdraw your appeal? >> no. i don't. because at this point, i think we were being, we will suffer from that unclearness until now. and why was that 148 square feet of difference, why not just let us do the 1898 which actually for one, i am not sure how to calculate the 1720, from what i did is the 2500. but i don't want to spend time doing or arguing that. if we could just go ahead and get work. >> 1750? >> no. 1750. is just accepting something, some number that they just throw out, there is regulations

in the mass reduction. i follow how to do the calculation and i verified it with the panel. and i never could see the zoning administrator. it is always the panel just go between that do all of the calculations and all of my drawings go from her to the zoning administrator to come back to give me a answer or a number. and i don't know why we were not given the chance to explain if my diagram was wrong, why am i, like, different number. but at the end. after we appeal and then we were given a number and so at this point, i tried to fight for my, for the owner to why not, unless, yeah, maybe you explain how it is calculated. >> otherwise, >> yeah. >> the set backs and stuff i do

the calculations that way. >> are you finished? >> then, you are faced with the following situation. >> you said as one amount, and planning is saying that it is a different amount. why should we take either? >> because i think. >> we could make it less. >> isn't that just a calculation. it is not just a number. >> i was... i was trying to get to a point but maybe i should not have said it quite that way. let me ask you another question. did you call the planner and meet with them? >> i did. >> and how did you two resolve the calculations? >> i work with the panel with my calculation. but then at the end it is not