required to do a new foundation at this particular time. am i right about that, mr. sanchez? >> i can't speak completely about that, but i understand what commissioner moore is saying. a lot of these things could be triggered and probably are triggered because they are adding the fourth story. the sprinklers would be required because of the foyerthtion story addition as well as the foundation, i would imagine that might be necessary in order to support the additional story. ~ fourth excuse me. certainly the benefits to the building and the improved safety of it, but they may also be required, it's not necessarily voluntary as the elevator in this case is voluntary. it is not a code requirement. >> but the windows, all-new windows for the building which i assume will be double payne and in the character of the existing windows are a big improvement for all the tenants and that would not be required by this addition, i don't think. >> it may be required in order to satisfy title 24 requirements, but i would --

the architect is shaking his head no. so, it sounds like that's voluntary upgrade. ~ the other units are not being expanded so, [speaker not understood]. >> so, i see this as an addition for the owners of the building. they want to make a space that's big enough to accommodate their growing family. there is no way -- if they took out and merged units, then there would be outcry of five people to say they were combining units and taking away rent controlled units. they're not doing that. they're using one unit and adding a top to it. there could be some debate about whether this addition on the top is too large or too small, but it sounds like it's compliant with setbacks. am i right about that, staff members? >> it does require a rear yard variance which is why i'm here to hear the rear yard variance. >> that's correct, there is no front setback requirement under the coyed. however residential design guidelines and the rdt review is suggesting a 15-foot setback. ~ code

there would be no legislative required side setback requirement but their pinching it in at the sides and having a three foot setback on the sides on each of the sides. but they are extending into the rear by 6 feet 11 inches for a portion the building at the rear which is where the living room is. >> yeah. and then the commissioner was talking about a noncomplying building. what is noncomplying about the building? >> the building, portion of the building extends into the required rear yard. the building was built in 1907 before any planning code requirement. the lot itself conforms to the lot planning code. it exceeds the minimum lot size requirements. it is wider than typical. it's 30 feet wide. it's shallower than the typical 100-foot lot we would see. this is only 87-1/2 feet deep lot. this is one of the smaller -- not the smallest, but one of the smaller lots on the block. and many of the other lots, mid-block 137-1/2 feet deep. so, some context about this

lot, it is shallower. >> much like bernal heights lots where we have different requirements for them because of the fact their lots are so shallow. so, okay. well, i think that's the main thing. but i also hear that -- and i don't know if this was correct, but project sponsor represented that the neighbors wouldn't participate in meetings to try to mediate some of their concerns. views we know are not protected. apparently 50 -- 12 out of 15 buildings in the neighborhood have garages so this would not be extraordinary. it sounds like the addition is going to only take up about half a parking space because it's merged -- it's right next to existing curb cut. so, and we've heard nothing about -- other than the fact that this is going to continue to be -- the other units are rental units. all these other presumptions about what might come in the future is not before us. so, i don't think that has anything to do with this discussion. i think this addition is fine. i could see a case being made.

of course, this is more for the zoning administrator as far as whether the extension should go out there into the rear yard or not. but other than that, i think it's a good addition. >> commissioner hillis. >> so, i guess i have three issues. -- for the addition. ~ i think you've answered the tenants and what happens with the tenants. it's your intention to maintain the three existing rent controlled tenants during -- if you want to talk about that more, that's fine -- during construction? >> sure. so, we have no intention of losing tenants. ~ we need tenants. we can't afford to live. we also have no intention of -- i think mr. williams implied in order to justify this cost, it must be a tic, it must be a condo conversion. we have no intention of that.

the existing vacancies, we bought the building with three vacancies. we have kept those vacant. this is killing us and the lost rent, i mean it's been a year and a quarter. with no rent that's crushing us and we're doing it with the sole intent of being able to move tenants around to install sprinklers and sheer walls within the unit. >> it is your intention during construction to retain -- we are trying to. i mean, we'd love to do that. it would suit them. i know it's very expensive if we would try and move people out and fund all of that. we would love to keep them if we can. >> thank you. that is not something we can require as part of -- my second issue is design. if you were here for the last item, it's not that we oppose kind of a more modern design, but i think it somewhat over shadows the existing building in the neighborhood.

it is an addition that's not meant necessarily to be seen. you know, with the setbacks, but it's a little highly designed i think and could be more contextual, you know, without the overhang and a little less of a modern design. and this is from someone who appreciates things kind of designed well, but i think it's not meant to be kind of shown off on the upper floors. my other issue is the variance. i guess the question is if this project were not to require [speaker not understood], how far would it need to be setback from the rear yard? how much of the building they are currently proposing would need to be lopped off in the back? >> it's not significant. on the third floor at least in my mind, if not significant, on the fourth floor, pro poed fourth floor, you'll see the living room has about a 6-1/2 or so -- 6 foot 11 inch by 15

foot 7 inch extension and that is the portion that requires the variance. and, so, it's not as significant. i can provide my thoughts on the variance if you would like. may we jump in a bit there. so, i am a bit torn on the variance question itself. as i noted it's a shallower lot than typical 37-1/2 feet deep, but it is a little bit wider than typical. it has a significant front setback of more than 15 feet. the building was built in 1907. it's a potential resource. so, one of the factors that is pushing that fourth floor addition back. they are also pinching it in at the sides. these are all factors that justify a variance. however, one of the things that i do look at when reviewing the variance is the actual layout of the unit. so, seeing what they're doing here in adding this additional -- having existing two-bedroom

compact two-bedroom unit, that is only half of the width of the lot on the third story. and adding a very substantial fourth floor. the net result is only one additional bedroom. they are also adding an office. there is substantial pantry, the elevator that's been mentioned. there is the large living room and i was wondering if that floor plan can be reconfigured and made into a code complying alternative. you know, but again, we are hearing about a family who wants to have a unit that they can grow in, expand in, maybe have their parents living there as well. maybe that helps explain the elevator. i think as commissioner antonini noted, they could seek to do a dwelling unit merger or reduce the size of one or the other dwelling units. i don't think that is a good answer either. so, it's a balance here. i mean, they're trying to maximize and having a family

oriented unit and that's why i'm a bit torn on this. it has been -- i'm fine with the design, fine with the fourth story, i'm fine with the addition of the garage. and those are really things that are more before you than before me on the rear yard variance. but i guess i'm a bit torn about the functionality of that layout whether it can be made compact and code compliant and achieve the programmatic goals of having family housing. that's what tears me. >> i guess that cuts to the chase. i would support taking dr where we've kind of made that code compliant so we -- would you issue a variance or even ruminate about a variance? an aspect of the design be kind of made more -- make it more contemporary and not stand out so much in the neighborhood. so, that's where i would lean on this. >> commissioner sugaya. >> yes. i guess to staff, when i first read this and i saw noncomplying, i thought, well,

how can it be that they can expand a noncomplying -- what is the other term, nonconforming. >> nonconforming. >> so, but i still have a question in terms of -- i know under nonconforming you're not supposed to expand the building, but that's in a different kind of situation because it's actually a use question and this is actually a complying use. but if the building itself is too large for the lot -- >> exactly. >> to echo commissioner moore's concern, i think that compounding it by granting a variance for the rear yard just makes it worse, i think, in my mind. and i think that commissioner hillis's approach, which i also penciled in here to bring that portion of building back at least to the conforming line of -- it's 20 whatever percent or feet, whatever it would end up being. >> 25%.

>> it's indicated here on the first page of the drawing set. ~ as to where that complying line would be. so, that would be my preference if we're going to actually approve the project. >> commissioner wu. >> if i can ask the project sponsor. commissioner hillis touched on existing tenants. could you let us know how many units you intend to rent if the renovation goes through? sure. so, there would be five rental units. it's currently a six-unit building. we would be standing the top right unit into the town house. the remaining five units would all be rentals. >> okay, thank you. i would also agree i think with the sunset if we're going to allow the addition, that it definitely should be pulled back to where there is no variance required. those are my comments. >> commissioner antonini. >> yeah, i would go along with what commissioner hillis was talking about.

we would take dr. we would bring, i guess it's the living room back, although the rooms could be reconfigured to the conforming line. and then also we would try to work with the architect and work with staff about the style to make it kind of blend in a little bit more, even though nobody really see it much from the street. if it fits a little bit more with the building, it's more contextual. that would be my motion, to -- to take dr with those changes. or that change, the other is working with staff. >> commissioner sugaya, i think i accidentally -- >> no, no. >> okay. commissioner moore. >> mr. sanchez, [speaker not understood], could you explain to us in what form we are protecting the rent controlled units? construction will require that the tenants move out. this building has three empty units and three rent controlled

units, and once the unit is empty, once the building is completed, they would be going to market at regular rate, is that correct? >> there are certain protectionses for the three tenants that are remaining in the building and they're subject to rent controlled protections. that would be for the rent board. but in terms of, yes, for the three that are vacant, when those are returned to the rental market after all the construction, those would be at market rate as any unit that is vacated in the city that is subject to rent control returns to market rate when it's vacated. then once the tenant occupies that, they are afforded rent control protectionses in the terms of the amount that the landlord can raise the rent every year. so, those units will all remain rent controlled, the sick units. and it would have to be -- i think they would have to -- any building that has a cfc after 1979 is subject to rent control. if this building were to be

demolished and rebuilt, they would get cfc and post 79 and not subject to rent control. this building is still going to be subject to rent control given the scope of the work that they're doing. >> mr. morris, could you answer a question for me, please? we have a family with three children, i heard. there is no possibility that you shift people within construction from one side to the other because it will be very difficult for people to stay in the neighborhood with language problems, et cetera, and just being moved around until at some magic date this building is ready. have you thought that through? this commission is very concerned about that. we just had conversation with the contractor about the feasibility of that and we think it is possible. [speaker not understood]. >> during construction. >> i have lived in buildings where there is construction and you might have to go through a dusty corridor, but it's kind of like cordoned off and you

can still live there. i am concerned the opportunity be created knowing how difficult it is for people to stay in the neighborhood or even find something remotely similar to fit their needs. and i think that is a very important consideration which we would like to -- for you to consider. i don't think we can make that a part of the condition, right? we can only encourage it. >> i mean, we can certainly -- take them at their word they said they were going to keep people in the building. certainly the tenants can go to the rent board and show this recording where the owner is standing up and saying they're going to keep them in the building. it's at least on record. >> commissioner antonini. >> so, i had a motion to take dr. i didn't hear a second yet. >> i'll second. >> okay. >> commissioner antonini, would you be so kind to repeat your motion? >> my motion is to take dr and make the project become code

compliant by narrowing the extent of the, i would think it's the living room to bring it into conformance. >> [speaker not understood]. >> modify the fourth floor addition so it complies with the rear yard requirement. >> and continue to work with staff on design to make it more contextual. >> do you still second that? >> yes. >> commissioner hillis, anything else? okay. >> commissioners, on that motion to take dr and modify the addition on the fourth floor to comply with the rear yard requirement and to continue working with staff on design, commissioner antonini? >> aye. >> commissioner borden? excuse me. commissioner hillis. >> aye. >> commissioner moore? >> aye. >> commissioner sugaya? >> aye. >> commissioner wu. >> aye. >> and commission president fong? >> aye. >> so moved, commissioners, that motion passes unanimously +6 to -0. >> on the matter of the variance, i close the public

hearing, denied the requested variance because we got [speaker not understood]. if anyone would like a copy of the decision order please contact the staff planner. >> commissioners, that places you on your final item, number 17, case no. 2010.0272dd for 1235 40th avenue, two requests for discretionary review. >> president fong, members of the commission, michael smith, planning department staff. i have before you two requests for discretionary review for 1235 40th avenue. the project is proposing to construct a three story accessory residential structure at the front of the lot and demolish the existing detached garage structure in that same location. the structure would be accessory residential use to the existing residential dwelling at the back of the lot. the dr was requested by the adjacent neighbor to the west

who is concerned about the existing structure being in the mid-block open space as well as the presence of two separate structures, one with a kitchen on that lot and thinks that would be easily converted into an illegal dwelling unit. the other dr is requested by the adjacent neighbor to the north who has windows on the side of his building that would be impacted by the construction at the front of the lot. that dr requester has since sold his property and is not pursuing this dr, but the current owner of the property has shared the same concerns that were raised by that dr requestor. commissioners, this is a very unique case in that we are dealing with a rh-1 zoned lot with two structures on it. there are many site constraints to this property. one, it's an rh-1 district. generally when we have these cottages they're at the back of the lot and they're usually an

rh-2 in the district and it allows you to construct a separate detached unit at the front of the lot. this is rh-1 so technically only one dwelling unit can be on the lot which makes that a little bit difficult. two, the location of the existing structure within the mid-block open space makes this very challenging. any expansion of that structure would require a rear yard variance and would not comply with the residential design guidelines or it would exacerbate the existing construction within the mid-block open space. three, the building itself is really small. we're dealing with a 750 square foot cottage here. four, the adjacent building side windows make it difficult to develop the subject property within the buildable area of the lot. the neighbor to the north supports the project. as the sponsor agreed to setback the building from the north side property line three feet and lower that building height to 29 feet 6 inches.

as represented in the plan before you. i had a conversation with commissioner moore earlier this week and she expressed deep concern about the presence -- about this project and how it could easily be converted into a illegal dwelling unit as we have two structures once again on one light, garage 1. the kitchen would remain in the existing structure at the back of the lot. the department shares that concern and we're looking to the commission now for some guidance on how to develop properties like this as we don't come across these too often. the department has received three letters of support and a petition signed by 77 neighbors in support of the project as well. this concludes my presentation and one last thing. commissioner moore did ask for floor plans of the existing building. so, i will show you though on

the overhead and pass them around if you'd like to see them. all right. so, there is the existing floor plan of the building at the back of the lot. so, two, three-bedroom structure that's been added that you see right here. that's proposed for removal, but you can see the 750 square foot structure with two bedrooms and an attic bedroom. this conclude my presentation. thanks. >> thank you. dr requestor, first dr requestor. good evening, commissioners. my name is don house and my wife and i live in the property behind the subject property.

i brought a picture of the property a we see it if that can be seen. another view of the property from our back, the back of our house. first of all, i'd like to say that we welcome mr. clark's intentions to improve the property and we have been working with mr. crock since his first application notice three years ago. ~ it should be noted that mr. crock submitted plans in 2009 that were not included in material sent for this hearing. those plans sent to the neighborhood in march of 2010 of the subject of our dr and included the removal of kitchen and lower remodel of existing building. at that time the planning department had advised mr. crock that demolition of the existing building was the

preferred development option. the option -- that option was pursued at the behest of the neighbors behind the property, but determined as not financially feasible by mr. crock. at a meeting we attended with -- by michael smith on february 13th -- excuse me, of this year, mr. smith stated he would make the recommendations to the sponsor, that demolition was the preferred development option. this has been a very frustrating experience for all with many delays, failed attempts at approvals of modifications. and in 2010 we had a concern about two dwellings and no improvements planned for the existing building. we're here today after four modifications to the project followed by our final approval of the plans in october of 2011

. in august 2012, we were thrown for a loop when after 9-1/2 months of no communication we received an e-mail with plans to leave the kitchen in the existing dwelling, which brings us to our opposition and concerns. given the kitchen is already on the existing building and there will be no kitchen in the new building, we oppose the approval of the project as proposed. permission to proceed will allow for the opportunity of an illegal development of dwellings on an rh-1 zoned lot. the reasons we oppose this is we think approving this project creates the opportunity for future conversion of one of the buildings into a dwelling unit and the structures are detached from one another. the use of accessory building to describe a plan to construct a three bedroom, three bath,

three story building seems out of sync with any definitionses we've been able to discover from the sf planning department general planning information. for example storage room home office, recreation room with a bathroom. the proposed remodel of the existing dwelling will result in a two-bedroom one bath with kitchen and play room and this would be the primary residence versus the three story three bedroom three bath new dwelling. this one doesn't make sense to us. it seems the concerns to the neighbors of the north are reflected in the change of plans, but our concerns don't seem to be taken into account after -- other than promises by mr. crock and the nsr placing an nsr on a property does nothing to prevent illegal building and places a burden of reporting on neighbors.

we feel the residential design guidelines should be established before approving the proposed plan. in conclusion, it seem that the planning department has, has not been as helpful as they could have been in arriving at an equitable solution in this case. we feel there has been a lack of proactive communication by the planner to all parties due to the unique [speaker not understood] lot, lack of guidelines and the rear building -- rear dwelling. this morning we received an e-mail from mr. crock to michael smith that he was withdrawing his application and would be pursuing the preferred development option of demolition of all existing buildings and building a single dwelling. so, we called mr. smith to see if this hearing would be canceled, but he said [inaudible].

to get the guidance of the planning commission. thank you very much. we hope you'll take dr, factor these this morning's events into -- >> sir, your time is up. thank you very much. >> thank you. are there any speakers in favor of the dr? second dr i think has dropped, is no longer. >> the second dr was not withdrawn, but he's not pursuing it because he no longer owns the property. >> okay. so, are there any speakers in favor of the dr? this will be in favor of the dr request. in opposition to the project. ~ i'm in favor. >> right. okay. so, project sponsor is up.

good evening, commissioners. my name is stephen crock and i'm the owner and occupant of 1235 40th avenue. i appreciate this opportunity to speak with you today regarding my project and ask for your approval for this addition to our family home. the plan before you today has received the recommendation from the planning staff and is in full compliance with the planning code. my family and i have worked very hard over four years to develop the plan and it would be good for our family and our neighbors. we have followed the rules and complied with all zoning regulations. our plan includes the construction of a new building component along the 40th avenue which creates a strong street frontage, preserves the rear historic cottage and maintains an attractive mid lot open space. the property is and will remain a single-family dwelling. our goal is to have my parents live in the rear cottage while

my wife and i reside in the new addition. we have met with the dr applicants and discussed many times the issues raised and have tried to offer solutions in the plans to address their concerns. this plan was created in an effort to reduce the impacts to the north neighbor by proposing a two component plan which provides a reduced front building footprint, provides a further reduced height of front setback, and a three foot side setback preserving light and air for the neighbors' southern windows. at the same time we have tried to address the concerns with the dr applicant to the rear concerning the existing cottage which cosmetically in need of improvement is structurally sound building envelope. i intend to provide upgrades which will reduce bulk and return the cottage to its original conditioning, removing the penthouse and setting it back from the rear property line. i'll also include yard improvements to add greenery to