tried to buy it. what did tndc get? they got a subpoena for all their records. that's why they are not here and for the planning commission. the planning commission was told that but somehow it escapes their attention. they were told to let go. this lawyer keeps writing back and completely unresponsive. the size, it is certainly over 5,000 square feet. the way condos and coop's including the deck belonging to that 1 unit. >> thank you, would the variance holder care to speak under rebuttal? okay, there is three 3 minutes for the zoning administrator. >> thank you scott sanchez

planning department. i will be brief. first there were no valid ceqa or conditional use operations. it was unanimously approved by the planning commission. there have been substantial changes made over time. the planning commission did deny this project twice before approving it. in regards to mr. fung's question about whether or not we received code compliance, in regards to the department's design goals we would prefer to have the department in the corners here and require at least a rear yard variance. that would have been some direction that we would have been providing in this case. lastly, and regards to commissioner honda's question, i want to clarify in terms of the project not really relevant to this project because the environmental application was filed so long

ago in 2004 that it was under previous code requirements for affordable housing. that's why the 17 percent would be for current project for lufey. it was filed. so with that, i'm available for any questions that the board may have. >> i have a question. the impact of these variances is sort of on the units and ultimately of the people dwelling on the units as opposed to something visual from the street? >> absolutely. you wouldn't see those from the street. the only thing you would see from the street, the appellant has stated they support and that is to have against the building wall is on clay and larkin. most impacted obviously the impacted by the

unit and those which immediately abut and they are supportive of the project. >> so arguably the variances to cut an interest to the developer that say this is a cut back? >> we can talk about planning code. but it's similar to other buildings that are existing in the neighborhood already. that may have been built under previous code requirements but are still there and part of the fabric there today and part of the character that the building is attempting to match. >> a lot of it is driven by the corner lot? >> yes. >> thank you. >> isn't it though, along the same line, the reason these things are coming forth is

because of your urban design, the criteria and what you wanted this corner to be, a code compliant solution would have had a continuous rear yard that would have been erect ohlin ear in ratio. the impact upon the only one that would impact potentially the tenant is where the distance to the rear yard is the subject. the other is in terms of light and air. you have windows and looking at open space. i don't see much difference there. is that correct? >> yes. i think that's an important point too and also considering maybe our urban design codes have evolved but

the planning code has risen up. this is an example of the code provision that is right for reevaluation. in neighborhood commercial districts we would be able to handle a corner yard with a rear modification. there are different findings that are made. this is an rm district not similar to an mc district. maybe we should look at that and how we can align the planning code. >> since there have been four corner lots an appealed to this body in the last 2 years, although one was different because most of the corner lots have a ratio of roughly square. >> that's correct. >> commissioners, the matter is submitted.

>> i will start. evidently the property has evolved since it's initial inception. i think they have done a great job in working with the neighbors. i like the project. it is probably going to be a price expensive per square foot and because they are prior to propc they are providing more for affordable housing. i would deny the appeal. that's what my feeling would be. >> i think for us to make a cogent decision, we need to look at what decisions are actually before us because

the bull k exceptions were part of a conditional use process. that is not appealable here. however, there is sort of a gray area when you talk about the composition of the design, it's size, it's nature of rear yard, it's nature of exposure and other things. it's sort of all works together. i had that argument with the city attorney before about when we look at a permit, it does encompass many of the same characteristics that conditional use deals with. however, in this particular instance, i agree with the department that from the urban design point of view, i think probably it's something that needs to be codified at the department that a building

should continue along the entire corner. the open space should be where it is continuous than a potential mid-block open space which means it's not going to be linear, it's not going to be along one side which would make it code compliant currently. i'm in agreement that it makes accepts -- sense from an urban design point of view and the way we want the city to be. the issues then are called variances, but these variances don't necessarily entail changes in the entitlement level where you would see for a variance for elimination of potential parking or increase in parking, variances on potential increases in setback or reduction of setback. these

variances to be are related to the fact that if you buy the urban design concept as to how a corner to be. therefore i would not support the appeal. >> i don't have anything more to add to commissioner fung's articulate explanation. so i would not support the appeal. >> i would just doubt that i sounded interest in the public comment and opposition and the appellant testimony was more about alternative purchasers and developers of this site and really didn't address the issues of the variances and whether they the zoning administrator had abused it's discretion. i would go with my fellow commissioners. >> who is going to make the motion? >> i will move to deny the appeal based on the reasons stated in this zoning

administrators brief. >> typically these types of appeals are looked on error abuse of discretion. >> there was no error on abuse of discretion. >> we have a motion by commissioner hurtado to deny this appeal and uphold the granting of the variances on the basis that the zoning administrator did not error or abuse his discretion and on the basis of the record in the brief. on that motion, commissioner fung, aye, president is absent, lazarus aye, honda, aye. the vote is 4-0. the granting of this

variance is upheld. >> i will call item 11. sf 11 sulpicio marino. 530-day street protesting the issuance on october 16, 2013, to martin slatary. >> geepg, -- good evening. at this point i have nothing to

add to statements in my brief and there is nothing also that i wish to emphasize on those statements although i stand firm with my statements. >> sir, in reading your brief, one of the things you brought up is that you want the sky light to be fixed and not retractable? what changes do you want made in your appeal? >> that there is no access at all to the retractable skylight would allow access to the roof for the roof deck. i initially was contesting the roof deck and if the retractable sky light is to

be present that would be the only way for the access to get to the roof. >> okay, we can hear from mr. santos. >> good evening, mr. santos. construction started in may of 2013. we took substantial and vertical opposition and proper notice was made and no complaints or -- appeals filed and with the course of construction of this roof deck. we recognize in the planning code that you would

trigger notification. but we felt we can achieve the desired the intent which is to create a retractable skylight and roof deck which will meet the requirements of a non-notifiable roof deck. that's what we proposed. we submitted it to the planning department and again all the proper permits and proper procedures were followed. our client urged me to contact the appellant which i did. i met him at the property. we like him would want him to be part of the neighborhood and my suggestion to him was that we would consider a couple of modifications, one we use glass railing, we potentially use the size of the deck. he felt adamant about the fact that he was going to be

losing privacy. i stated to him that his view towards the east happens to rely on the windows and not only that but there is an actual lot between us. it's conceivable that in the future someone may choose to develop that lot. those issues are going to be a lot more complicated for him than this small roof deck. again, our desire was to make sure that this deck is small and compatible with the size of the house and at the same time we wanted to introduce a small system as possible to minimize any visual impact. i urge you

to deny the appeal and ratify the proper planning permit in regards to the roof deck. thank you. >> mr. santos, a couple of questions, one is this the elevation at the exterior wallet -- wall at that point visible from the appellants house, it varies from configuration. i couldn't tell from the drawings why it did that? >> you are talking our western wall? right. there is a small portion that would create it

where the retractable skylight is. so this is a small section of the railing. that's the only modification or irregularity in terms to the western wall. >> there is actually 2 pieces, isn't there on different sides of the building? >> i haven't been to the site lately but i can check on that. the intent was to minimize the over all height and make it as small and least intrusive with regard to our neighbors to the west. >> did you consider if you had reduced the size of that skylight so it's code compliant in terms of distance you wouldn't have to have the

fire rate of per pit? >> we did not consider that. >> and then i have one question, mr. santos. is there a reason why the roof deck was not in the original design? >> it was an afterthought. i think potentially my client may have had conversations with the realtor and he may have been told that this will have a significant positive impact with regards to sale? >> thank you. >> thank you commissioners. >> mr. sanchez? >> thank you, scott sanchez planning department. the subject property at 530-day street. the appellant is located one property removed at 530-day street. this is a sloping lot so the property

is higher than the permit holder property. also as the permit holder noted there was a 2011 building permit application for addition and to add a garage and that went through notification. and there were no discretionary review requestcious , the building permit was issued last may and after the issuance of the building permit, they decided to add the roof deck and access to that roof deck. based upon the plan, that is code compliant and would not require notice. it would be allowed without section 311 notice as well as the railing that is proposed. that said, there are a couple of discrepancies that i did notice in the plans which maybe something that can be

addressed as through revision process. when comparing the roof plan and third floor plan, the location of the retractable skylights do not lineup. there is also a proposed stair from the deck at the rear of the building that goes on top of the retaining wall in the rear yard. that's shown, i think on the floorplans but not on the site plan. the fixed skylight that shows on the roof plan, i did not see those on the plan that would not allow for the notification. that is not to say that it wasn't added after that time and the additional notice is required. i think there are several changes here from what was originally noticed and may not be accurately represented. all the changes that are here would meet the planning code and not require new notice, but it maybe useful to have the discrepancies rectified and also to have any changes

from the previously approved plans clearly noted. i think it's bubbling where many of the change are. that is my presentation. i'm available for any questions. thank you. > when planning staff reviews the document do they review the planning? >> no. >> let me rephrase this. the original -- 311 drawings these, my question was when your staff reviews the final

permit do they compare the permits that was against the proposed 311 as to what the changes were? >> yes. typically what the process we would undergo, we would have a project that meets the guidelines and then send out a notice and if there are no discretionary reviews we would submit that for notice. as you know in the process, it may be reviewed and that plan went to notice before signing off but in this case we have a provision notice. sometimes the project sponsor will provide and they should provide the main permit that is being revised and we can compare it against that, but we rely on the permit holder to identify and cloud those changes and what's

being changed. >> then the follow up question is based upon your knowledge, the permit set minus these changes conform to what was presented in notice sent? >> i believe the original permit issued on the 2011 permit complied with the notice that was sent out. that would be my understanding. >> mr. duffy? >> commissioners, on this permit application it's under appeal from the building code point of view and from a building department issuance position. it appears that it meets all the requirements of the building code. it was properly filed and reviewed by our department and isht on

october 16, 2013. i have looked at the plans and i didn't see anything on there that was untoward. i did see the walls, i can see where the skylights are located, that would be a question for the designer. i think that's where you were getting a. if there wasn't a power pit, that would be for the neighbor. if there is a way to do that but i'm not sure that's the case because of the stairs and location of the building. i'm available for any questions. >> what was the code requirement for the fire rated para pit distance wise to glazing? >> i believe we can do it to 3 feet from property line. it's based on the percentage of the length of percentage of

openings in the exterior walls. i think they can do this on 3 feet. i'm pretty confident. >> okay. thank you. >> is there any additional public comment? seeing none, public comment is closed. we can take any rebuttal. mr. mariano if you have anything to add. you have 3 minutes. >> i moved into my home in 1989 and up to this time i have not filed any permit to do any work at my home. meaning that i don't know where ms. santos when he explained that my window is facing the east are on the property line. to my understanding, the windows in the front part of the house

is at least 3 feet away from the property line. the property line is oblique, runs narrow as it goes to the rear of the house. that's the only thing i wanted to say. >> thank you. >> mr. santos, anything further? >> commissioners, thank you for the question, commissioner fung. typically when we go back to the building department to get a revised permit we will bring copies of the previously approved permits. when we sit down at the counter we are showing what was previously approved and what the proposed modifications would be. of course there is no such thing as a perfect document. so mine were not clouded. that included everything. the intent was to make the planner aware that we were modifying

something that was previously approved. thank you. >> anything further from the department? no. okay. commissioners, unless you have questions, the matter is submitted. >> i guess you know the there is two issues here. one is that whether the revisions changed enough to have warranted some type of further review and therefore some discussion as to how those revisions could have been

incorporated with a little less impact. that's one issue. the second issue which is different from that is really whether those revisions if they had been in the original packet would have warranted any changes and therefore modification. i don't think that those changes would have warranted any further changes or impact from the departments. the problem for the appellant really is when the intervening lot gets filled in which is going to create further issues for him. this home won't even buy visible -- be vipt -- visible at that point in time

and that is not before us yet. so i'm weighing those things and satisfied with the question that due process occurred in terms of the comparison with what was the 311 notice set and the scope of what was in the permit set. and as the appellant had indicated previously and in his brief, he did not object totally to that although of was obviously a change from what he had been used to. at this point, i think my position would be that these changes probably would not have warranted any further revision if they had been an original set.

>> i agree. can i make a motion. i make a motion to deny the appeal on the fact that the department did not error in their discretion. >> it's a notable standard. if you think it's code compliant. >> yes, i do think it's code compliant but i think we should have some kind of language in there that the permit holder worked with the department to clean up some of the languages with regard to the work that was performed that may or may not be on the permit. is that what you said earlier? >> thank you. scott sanchez, planning department. perhaps directing the project sponsor -- what is your recommendation? >> the discrepancies on the plan are not material to our review, but i