misstate the density issue at the last hearing, so the subject property the proposal could be built without a need for a subdivision, the density would allow up to 22 dwelling units on the property i think they're currently at 14, so the subdivision issue is really a secondary matter and again i apologize and i really try to hold myself to a high standard coming before this board, you need accurate information before making your decisions and aapologize to everyone for misstating that, it was something i had reviewed from the staff report and so after receiving the rehearing request, we ran it through the process again and from line staff up to the director, the staff actually, that was an error in communicating in the case support, he knew it was within the density limits and we talked to staff all the way to the director and the change in the staff report would not

have changed the planning department's recommendation, it was made with the construction in the area we believe should have been retained as open space for the development, while i was inaccurate, i apologize and that said, that would not have changed the planning department's recommendation. i don't know if that would have changed the board's determination, i leave that to you, i believe the finding did focus on the construction of the open space, and leading on to that and also the subdivision question, yesterday morning, i received word from bruce stores who's the surveyor for the city and county of san francisco and they were reviewing the subdivision application which was filed for the project and they have made a determination that the original subdivision for the project would not allow construction in this area, that what's called a building setback line that would prohibit that and they would be

prepared upon issuance or approval of a subdivision that it would contain a condition that the area which is subject to this permit, they could not actually build upon as part of the subdivision, so i received a letter today, i've given it to the parties and i don't know if the board would like this letter, it's a brief letter. >> i would like it. >> are you saying that the entire triangular piece is not buildable? >> that's my understanding. >> the setback? >> it's shown on -- if you look on to the -- if we look into the appellant's grief and we see the current plot plan here, the subdivision map, there are shown, and i believe it's in reference to the hatch lines, so they have it, i can put it on the overhead.

>> that is all one sheet? >> i think it's a single sheet, yeah. >> the color is not quite right, but in any event, it's this line, so this is -- this is the subject lot, i believe, we have vista and crestline and the green is something that was added by the appellants to demonstrate the open space and i believe that this is the demarcation line of the building setback and that's what the department of public works has said cannot be built beyond that line and the area of the project is the area in green, that's my understanding, we have received this letter today from dpw, yesterday is when i first heard about this and so that they would -- the

subdivision could still potentially move forward, i mean, this is new information to us and i would want to discuss this with our director about how to proceed, the subdivision is code complying under the planning code for lot size and lot area but if the newly created lot itself would not be able to be built upon, i think we would need to review na as a department and see if that meets the general plan in terms of a subdivision, this is newer information and i apologize for the lateness of it to the board, but we were made aware of this yesterday. >> we're recommending you grant the rehearing request then? >> i don't know -- right now, the board -- if anything, reaffirms the board's decision to deny the permit, so i don't know if this is new information that would change your decision. >> well, shouldn't the appellant or the rehearing requestor have the opportunity to litigate this or present on this issue?

>> this is a decision that is made as part of our subdivision application, and so i would assume that there's some level of due process forwarded to them through that process, it's my understanding that the decision of the county surveyor is in and of itself not appealable, that document would not be appealable. i believe that if a subdivision is issued with these restrictions, that potentially could be appealable. i hate to give the qualifications again, but i do like to let the board know when i'm not 100% certain of something so i'm letting you know that in this case, so there may be some processes there the courts to resolve that at the very least, so i don't know if this is new information that you would want to see as part of a rehearing and be more fully briefed upon and if it would change your decision to deny the permit which does not allow construction where public works says there should not be

construction. >> okay. >> i have a question to mr. sanchez, so if the permit holders have been working on this for the last four to five years, why -- is it because they just started the subdivision process or why is this letter so late in the coming? >> they did not file the subdivision until after the planning commission had taken action on this. i know the appellants have kind of been prompting when is the subdivision going to occur and it occurred late in the game and perhaps had this been started earlier, they could have had official word from public works earlier to answer that question. i think it was filed in june maybe, the subdivision. >> okay. >> june or july. >> commissioners, my understanding is that the decision about the subdivision, the conditions placed on it would be appealable to the board of supervisors, not to this body. >> thank you.

>> okay, mr. greco, anything from dpi. commissioners, the matter is submitted. >> is there public comment? >> i'm sorry, yes, of course, there's public comment. public comment. please step forward. >> i'm nancy o brine, i'm a resident of vista san francisco and a member of the group that's been pursuing this, as i pointed out at the last hearing, i didn't know it was called a building setback line, but i read it as meaning you can't build beyond it, right there. and mr. hurtado, with all due respect, you asked if they had a chance to litigate it, wasn't that what we were doing two weeks ago, they could have brought this in, they spent four years on this project and they never found the subdivision map, it was one of the first things we found and we don't know what we're doing, they had plenty of time to find this. the subdivision map was passed

by the board of supervisors, they have not amended it, the vista san francisco association, the home enear's association has not amended the protective covenants that supports the board of supervisor's position, they had their bite of the apple, how many chances do you get. they could have been here with their guns loaded last time and they have given no reason why they should be given a second chance, the map is clear, the board of supervisors passed it, that's the law, that's how it goes. thank you. >> next speaker? any other speakers? >> good evening, madam president and members of the board, i am don beer min, the building owner at 74 crestline drive which is next door to the crestline building, as an owner of the building, this proposed project, i'm representing my business partner and my

tenants, i strongly object to the building of these units on this property. this project would reduce our sunlight from our building, number one, obstruct the great views that myself, my business partner and my tenants have, reduce the space between the two buildings which i brought up the last time, and most of all, it will reduce the value of our building that i have owned proudly for 29 years. as stated by the board last month, the developers are allowed -- if the developers are allowed to build on the property it would be a given that they certainly would build in the other open areas in the twin peaks area, that would open up the possibility some day of building on the peaks itself, you know, i don't put that past anything, and that would be a total environmental crime. i support the requirements of

the vista san francisco subdivision number 1 approved by the board of supervisors in 1962 that provided for the creation and maintenance of certain open green areas of our community. it was my understanding when we purchased the building from my broker and the previous owners that when i purchased the building in 1984, that this was open land -- that this triangle, this open space there was landscaping only and would never be able to be used for any kind of building of its kind or there would have been the possibility that i would not have purchased that building. that's why i bought that piece of land, i went over it and over it and that's what i was told. i am here to represent and

protect my tenants and the environment in the twin peaks area, my business partner and myself from this terrible proposed project. i have wondered why -- this is my last part, i have wondered why the owner f this building at 70 crestline has never showed up at any of these hearings in person to show his face to us first of all and why he's not here to protect his tenants. i therefore as an owner contend that the rehearing should not -- that this should be the end of this thing and it should end right here tonight. thank you and i thank the board for hearing me. >> thank you. >> thank you, is there any other public comment, and thank you, step forward. >> good evening, i'm mar tha* gorsky, a resident of 70

crestline, and thank you for this opportunity, i want to briefly say on the original subdivision map that was provided for -- at the july 17th hearing, the building setback lines at every single one of naoez green spaces, there are some there, so this is not new information, also the subdivision, the owner had applied originally to subdivide in 1998, so why all this information now is why he couldn't find it back then and why this information wasn't presented to me seems like they're trying to stall this process. i understand there's a lot of money invested but our group has spent many hours researching to really substantiate our claim that all of these green spaces were the conditions for this development, and all of these new ideas with the setback

lines, also on the subdivision map, every single one of these green spaces is part of private property there is no public or commonly held -- so, for the subdivision map, when it was approved, it was with the understanding that private owners do own all of these green areas, thank you. >> thank you. is there any other public comment? mr. santos, are you not a paid agent for this project? >> i am. >> so, you can't speak under public comment, you need to speak to the time allotted to the party. any other public comment? >> good evening, i'm john hiko, i'm the other owner of 74 crestline. i've lived there since 1985 in one of the apartments there, and

i oppose the rehearing. we're against professionals here, they've had four years to do their job and figure out how to get this done and it didn't pass and i don't think they deserve a rehearing on this. thank you. >> thank you. >> any other speakers? okay, seeing none, then commissioners, the matter is submitted. >> madam president, on this new letter issued by the city server, i think we should allow both sides to comment briefly on this letter. >> so, a continuance on the hearing? >> no, i'm asking them -- >> right now? >> i'm asking them right now to give us -- >> wasn't that issued today or yesterday? would you prepared to comment on it today?

>> [inaudible]. >> okay. are you prepared to comment on that today? >> yes. >> okay. >> thank you, commissioners for allowing me to speak. i am the structural engineer of the project, the first step that we took was a meeting with the city surveyor, bruce stores, which happens to be the individual that wrote the letter that we just received today. when we analyzed the plans, he noticed a line, it's called a building setback line, and he wanted us to make sure that we go back and look through all the history and all the paper work on the subdivision to ensure there's no restrictions on the construction of that particular site which as someone commented is owned by

my client, green space is owned by my compliant, that was the first step that we took. we have e-mails, communications with mr. stores. after an extensive reengineer, we found no restrictions on our ability to build on that particular wedge, no restrictions at all. in fact, that comment that i'm just making was supported by the july 17th appellant's consultant, the zoning enforcer, he could not find any restrictions of my client to construct a four unit building, no restrictions at all. we took all the legal steps, surveying steps and engineering steps to make sure that we can build this building. my client is not a masochist, if he was told he could not build on that site, we would

have not pursued this. once we obtained the information from dpw, we brought the design to the planning department and we worked very closely with the planner, mr. tom wang, and i have great respect for mr. wang, he acted with us all throughout the process, he liked the design, he thought it was a very well thought out design. we're preserving a five foot setback between buildings, we're maintaining the stairs in perp taout, at the planning commission, the commissioners were surprised as to why planning staff hadn't supported this job. they thought it was a great design. commissioner hillis was not in attendance and i would have spoken to him afterwards, he would have voted for it, we

would have had a 6-1 vote, but tonight all we're asking is due process. all we're asking is for us to have the ability to bring all the information on a rehearing, nothing else, you don't have to like the project, but i think my client deserves an opportunity of due process and fairness. >> mr. santos, if this letter was just issued, then your research didn't close the loop with them. >> i consulted with mr. stores, he's going to look at all his archives and look at all the e-mails and communications we had. he was surprised and i reminded him that i had communications with him four years ago. i have a great deal of respect with mr. stores, he deals with a lot of surveys and i did contact him as soon as i read the letter. >> thank you.

>> mr. bateman? >> just a couple of points, the building setback line and the interpretation given to it yesterday by mr. stores at dpw simply supports what's in the vista subdivision number 1 map, just to give you a little background, after the planning commission decision last november, we found that, if my memory serves, that the planning department could not at that time or had not at that time found the original vista subdivision number 1 map which we presented as one of our exhibits last tile, i imagine the same thing happened with dpw and mr. stores in those discussions after how many years it's been, he may not

have had benefit of that original subdivision map either that both had the delineation of the setback lines swes the preliminary areas to be created and maintained. we brought that to the planning department as we were preparing for this hearing and waiting for the building permit to be issued. i'm very curious as to when were these covenants that are now brought forward, when were they found, just in the last 10 days or is it four years before that there's been so much work going on, and i think there's been a lot of focus, is there any language in anything that says thou shall not build here, and we conceded in our last hearing that there perhaps is not that specific language, however, there is language that says thou shall maintain these green areas, thou shall create

and maintain them, putting up a six story building on top of green space is not maintaining it for the rules and the citations and the crepts of the subdivision number 1, and we've also had discussion at the last hearing why the sponsor delayed application for the subdivision until july 15th two days before the hearing. obviously if that chicken had come before this egg, we wouldn't be here today because the whole dpw would have addressed the subdivision as they did yesterday and perhaps there never would have been a building permit application submitted, so a bad decision decision and presenting things now that could have been presented at the last hearing does not constitute under your rules a reason for rehearing. thank you. >> mr. bateman, you know, i

read through the ccnr's, i didn't study them extensively, but do you recall where they talk about building setback line? >> they don't talk about building setback if you're referring to the covenants. >> yes. >> that's not mentioned, that's part and parcel of the subdivision number 1 map, that instrument. what the covenants do from our read on them is that they support the planning areas that were referenced to be created and maintained on the subdivision map that was approved by the board of supervisors. there are also other parts in those covenants that speak to thou shall not build a fence, a wall, etc., etc., that obstruct sunlight and views, they use that nasty word views, so obviously a building has walls.

that's my point there, a building has walls. >> okay, thank you. >> it seems like we're between a rock and a hard place. the issue is whether there's new information for our decision, correct? >> i was the one 4-1, so i think everybody else can speak their mind.

>> i guess i have a question in my mind about new being something that could have been discovered prior or really is sort of new to light. >> the standard is they could not have been presented. could we have the -- >> yeah, i would like that. >> sure, i'll read it, except in extraordinary weiss, the board may grant a hearing question if different or material facts of different circumstances have arisen where such facts and circumstances if known at the time could have affected the outcome of the original hearing, the written request shall state, one, the nature and character of the new fact and circumstance, the names and witnesses and the description that you produce and why the evidence was not produced tat original hearing, then it goes on to say, failure to provide due diligence to provide new facts and

circumstances should be deemed denial of the new grant or request. >> there clearly is one piece of new evidence which is the letter, but again i believe that would only be valid if it were to -- to cause us to think it would change our decision. >> and supports our original decision, so the only other new piece of evidence are the ccnr's which i did not hear why they were presented to begin with. so, that's where i'm struggling. >> right, me too. >> i'm a little surprised that that wasn't discussed in the presentation. >> did we miss that in the argument? i'd like to give you 30 seconds

to tell us why that wasn't provided. >> yeah, so when we got this case in our office, one of the first things that we did was ask our client for a title report, and when we got the title report, the ccnr's were not on it, so we called another title company and asked them for another title report and that is where we got the second document that went into the -- and i'm look back at my soc to confirm i'm not speaking out of turn because this was her work. >> okay, but that doesn't address why they weren't presented at the original hearing. >> and that's with reasonable diligent, i mean, so when you purchase a piece of property and you do your due diligence, you get a title report and a title insurance policy, you get one, and so if you get one that

isn't complete or accurate, you know, that that's really kind of an abnormal situation. >> can you address -- it seems to me that you don't have the knowledge or information to really address why it wasn't present given that you're not retained until after -- do you have the answer to that and you're creating an argument. >> the client report did not have all the information we included in our brief. we after getting the title report from them -- >> you were -- you did represent them at the last hearing? >> i did not, but we were newly hired after your last hearing. >> so, you don't have any basis to tell us why it was not included at the last hearing? >> because they didn't have it in the title report that he had at the time, and so they -- after they hired us, we ordered a second title report and got

that information independent of our client. >> okay, thank you. >> okay, but one more question, and can you explain to me one more time how you think the ccnr's support your position now? >> yes, so there is a reference to planting areas in the ccnr's, but it is really the discussion of the planted areas are about duties of the association to provide maintenance and, you know, and basically to bear the financial burden of doing certain things in the planted areas. there is no restriction that says these areas shall in perp tao*ut remain planted areas, there is every indication that when the ccnr's were drafted, that it was, you know, they knew how to create easements,

there are easements in the ccnr's for access, those easements are forever basically. they didn't establish open space or planting easements, they provided for planting areas to be maintained by an association. that association ceased to exist in 1982. i don't see how a maintenance burden or a maintenance duty that was assigned to an association now becomes a restriction on my client's ability to build on those planted areas always and forever. i don't see that in the ccnr's. >> okay, and then can you address the letter from today, how does that affect -- apart from the ccnr's, how does that affect your ability to build? >> it's obviously a problem and it is something that came to us

again today which is contrary to prior discussions that mr. santos and others had with bruce stores at dpw, and to me, it highlights the need for a decision to be put off because we got the letter today, we got it without any communication in advance from dpw, it contradicts what we've heard before, so we would like to understand how this decision was arrived at, and you know, and preserve the opportunity to proceed with a project if dpw eventually determines that this letter was issued inner ror. >> your remedy is to appeal to the board of supervisors, isn't it? >> yes, certainly, but the problem is that if