the top floor? >> of the top floor. it reduced the side yard from 5' to 3.7'. and it reduced the top floor by the average of the two properties. so if it's 12' 6, reduced it to 6 x 3 and that is the offer we made to the neighbors carrie and andrew and they accepted it. >> if you kept the 5' and reduceded top floor back 6', how does that reconfigure? do you lose a bedroom up to be? >> it makes a little bit less optimal to use as a bedroom. there were some odd corners in the bedroom and removed the rear encroachment and the actual 3. , it didn't go down two storis,but went and the way down to grade. so there was an entire -- so right now as you can see, the first floor does not have the 5' by 12'

setback. >> thank you. that is where i think we have done some good things like the 5' setback but my biggest concern is on the top floor. i think someone showed the case that the board appeals you step back and respect the neighbors, which i think works. here in it case they are also offering that 5' side setback when i think helps the neighbors. so i would be inclined and i think dr -- taking dr is appropriate. my focus would be on that top floor, perhaps, the 69' reduction, setback on the top floor. i will hear what others have to say. >> commissioner moore. >> the top floor reduction of 6' would be on the living floor

not on the roof deck. i find the roof deck completely and totally inappropriate for the entire area and talking about said the backs, i would assume that the roof deck, which we already pretty much felt uncomfortable last time around would disappear. i think roof deck is highly inappropriate for the overall building forms in the area. people are already on the slope and already have the long views and plenty of windows to do so. so i i think the roof deck, i think if i recall correctly, we all had already advised for that not being part of our discussion today. >> i don't recall that, but i see your point. >> do you remember? >> yes. >> the other thing, which i think we always try to work with is if we have buildings of different depth and different

height, that we are using the adjoining buildings connected to lines and ask for the new building not to protrude beyond that line. that is at least one way to create a datum that you are not getting 5', 4' or 6', but basically saking that the building has to operate behind that line as it's given by the adjourning properties across. we have done that many times before and i would think that is the minimum by which we should consider of how the building needs to hold back. do you see what i am saying? at this moment, even a sliver of the building protrudes, i think the building has to operate within that particular line.

>> understand. >> we have done that before in a number >> is the project architect clarify that figure? >> tell us the drawing that you

referenced? >> i'm [skpwhr-uft/] looking at floor plan. >> which sheet? >> >> 0, 0. >> okay. i'm just looking at it from the point of the top floor. third floor. and the two adjacent residences. >> you are taking the existing condition drawing. >> she is talking about this top floor, given the average.

>> should we continue with commissioner comments? >> i'm sorry he is just explaining but he has to go to the overhead and show the rest of the commission how it is done. >> is there any questions for me? if we were expandsing beyond the 45% requirement, we would do the averaging. with the two adjacent residents. in this particular case, because it's not going beyond that point, it wouldn't

necessarily be required to be measured in that manner? and we do try to come up with an average based off of the appropriate -- the appropriate footprint of the adjacent homes. >> so i hear you saying is that if you took that, you would -- the extension of the third floor would go back halfway between the two adjacent houses? >> that is probably accurate -- >> it pares to be 6', i don't know. >> >> you are just talking about the third floor? >> i'm talking about the third floor. >> the floor is between 465 and 461 back wall. >> so a 6'? >> 6' 3" yes, that is correct. >> 6'3". >> thank you.

commissioner moore, do you have further comments? >> i would like the commission to have mr. washington explain that and consider that in terms of how we modify the building? i think in order to come to some level of compromise of where not only a large vertical, but horizontal expansion changes the neighborhood to the extent that these new buildings look overwhelmingly large and i think we have the responsibility to modify it in a way that is comparable. my consideration for what i am saying also includes that the rooftop is not being used, because that equits insult to injury. >> as i understand commissioner, remove of the roof deck and on the third floor is how we would be coming with a compromise with a reduction in the depth of that third floor to an average which

appears to be 6'3-4". and then the lowerthe second floor reamains at its current depth. >> and if the gain by eliminating the stair creates additional living space, which is automatically will, then any kind of additional variation in modifying of the second floor could be appreciated. there will be changes in the way that the building comes across and i think it's in the interest of the building, there will be a more interesting building if it is not as just an extruded maximized mass. >> commissioner antonini. >> yes, but it's been represented that they are aren't even filling the available space, is that correct, as far as what they could be filling? as far as what the zoning envelope? >> actually, i think they are pushing it to the rear.

>> okay. >> the rear setback. >> so they are not triggering anything that would need a variance. >> but they are close to it. all right. so while i don't agree that the impacts on the neighbors are that greet, i'm probably going to be supportive of some modifications to try to get a compromise in place and certainly say if we took 6. , there is a roof deck proposed for the very top of the building. is that what they were talking about eliminating? which i think we don't need that, we have other decks already and i would say no more than 6' off the depth. it would allow the architect. >> please just leave the

door. >> commissioner moore.

>> the accurate dimension will be established by planning staff, because the line between the two buildings has that dimension, 6'3" that is what the basic proper interpretation of the rule is. so if that is acceptable with the apcan, i would appreciate the motion made, i would appreciate you noting that . >> i want to talk to the -- that is fine, i would like to talk to project architect to see this is obviously doable i guess, but if you want to come up and tell me if you understand? >> i understand the commission's request and their concerns. i don't think i fully understand the roof deck. there is a roof deck adjacent at 455. it's setback a little bit. so maybe you can have some consideration to set the roof deck back [shr-eubgt/]ly from the edge if that is a concern.

as far as the 6'3 off the floor, i think it's a workable solution and i think we could support that. >> let's continue with commission comments? >> i was still speaking on it and still had a point to make. you would like to ask that the actect i did closes and commits that the boyding is not a black building? i believe that the materiality of the building, it's hinted here, but that indeed it's a building that is very much in harmony with the majority of lighter buildings on the black, particularly the dark-color of the adjoining building makes the building significantly larger and unfriendly. i think as you are now making the gestures towards the neighbors i would appreciate that the colors are being kept within the pallet of colors

prevailing on the block. >> that is fine with us, natural wood and no dark colors. that is okay with us. as far as the overall. >> commissioner richard. >> mr. washington, just a quick question. the 6' taken off the 3rd floor if you counterimpose what the neighbors proposed exist 10% reduction? >> i couldn'tgy -- it's is a compromise. i couldn't really give you an accurate comparison of the two i don't have the actual measurements. >> a compromise of the alternative? >> it's a compromise of the alternative. >> yes. >> so it doesn't go as far. >> no. >> commissioner antonini. >> i was just going to say that i would agree with what commissioner moore had said as far as determinationing the demising line and have staff make had a determination on the amount that that third floor has to be removed. >> and the color? >> yes.

>> is that acceptacle? >> yes. >> if there is nothing further i have a motion and second to take dr and approve the project as amended by removing the roof deck, reducing the depth. third level by approximately 6'to be determined by staff and that dark colors would not be permitted for mass of the politicianing commissioner antioni. >> aye [stkpwr*-pblgts/] commissioner mill [skwr-eus/]? >> aye >> commissioner johnson? >> no >> commissioner moore? >> aye. >> commissioner richards? p. >> aye commissioner fong? >> aye. >> commission president wu? >> aye. >> that motion passes 6-1 with commissioner junson johnson voting against. we'll take a minute to allow this case to clear for those persons that are in the -- well, just one second. if i could have the

interpreters, the spanish and chinese interpreters, please?

if commissioner wu you were present for the beginning, to leave early and you reviewed the remainer of the morning and commissioner moore youbut you had and falls within a 40

district. as mentioned the project was initially heard october 16th 2014 and continued to today. after significant public testimony, both in support and opposition of the project, planning commission continue had had item to raise a number of issues to discuss a number of issues including the concentration of ncds in the exkelsior neighborhood and potential enforcement issues of existing ncd with respect to storefront transparency and compliance with conditions of approval. and also the discussion to potentially increase the green zone in the likelihood that recreational use would be legalized in california in 2016 the planning code section requires any ncds seeking to locate within 500' of another

ncd may be allowed as conditional use provided that other are also met. under current log ontoion, they would have require a conditional use authorization to be located in close proximity to one another. based on preliminary staff analysis, only a small area would fall outside of the 1000' radius of school and another ncd within the excelsior mission near the intersection of mission street and geneva. a map was enclosed with your commission packets which discloses these areas. up up to two more ncds would be located that [speaker not understood] currently three ncds are in operation in the neighborhood and two applications are pending including the subject property. there are other neighbors with other relatively high concentrations of ncd including soma, mission with 6 ncds and

the outer commission with three. according to dph staff there are 28 active ncds in the city. due to zoning rostrictions the location of ncds is limited to neighborhood-commercial district causing the concentration to feel much denser in the outer exexcelsior neighborhood and in con from the and ncds are permitted to locate nearly anywhere in the soma district. while staff and police department have received correspondence and comments expressing concern about the existing and proposed [tph*-bgtd/]s, enforcement staff recounted no formal complaints have been received from the neighbors or police department for the existing ncs. staff reviewed conditional use on mission street and permitted site visits to determine compliance. the three same conditions of approval were placed on both ncds namely safety and security plan, lighting, green area and storefront maintenance and i

can ethe loan elaborate on these if commissioners have questions. both ncds were found to be in compliance with safety and security and lighting conditions. the ncd at 5234 mission street was found to be non-compliant with the landscaping requirement and enforcement case was opened november 1, 2014. additionally the ncd at 5234 was found knob non-compliant with storefront tranceparence requirements and enforcement case for this was opened december 1. from the pubed case report our staff determined that it's also non-compliant with storefront transparency guidelines and a case was opened december 8., 2014. with respect to the green zone, currently ncds are limited to their proximity to school and community facilities primarily serving youth and legislation change or restrictions of ncd and lower density neighborhoods

must be passed in order for the green zone to expand. i just wanted to communicate that for the record. if and when the ballot measure more recreation marijuana passes staff will conduct analysis and work with the planning commission and board of supervisors to determine the appropriate regulations and guidelines. since the hearing on october 16th, planning department received a packet from the outer mission merchants and residents association which include a petition opposing the project with approximately 165 signatures. staff also received a coordinatence expressing discontent about the provided militarization of the block from security guards and proximity of ncds to elementary schools and associated concerns to safety of children and finally, a letter -- rereiterating concerns about behavior concerned near existing ncds excluding alleged drug dealing and consumption of marijuana on streets and inside businesses. the department has received over 210 letters of support for the project since the october

16th hearing and 40 remain from the out irmission and excessior neighborhoods and coming from immediate adjacent neighbors, et cetera. since the publishing of this report, the memo commission has received -- staff received approximately ten more letters supporting the project. in order for the project to perceive, the commission must decide whether or not to take distribution review and approve the proposeded nct at 5420 mission street pursuant to planning code section 791.141 and 745.84. the planning commission should only take discretionary review if the commission finds that profitity of the proposed [tph*-bgtd/] to existing ones are extraordinary and are exceptional circumstances to justify review of the project. and/or to approve the recommended conditions or to improse conditional ones.

the planning department staff's review is generally limited to the location and physical characteristics of ncds to ensure their compliance with the zoning code. accordingly staff recommends approval for the following reasons: the ncd complis with all standards and requirements of the planning code, 5400 block as well served by transit, it's more than a thousand feet from primary and secondry schools and any known active permitted youth services facility. and employment levels are estimated to be between 24-30 part-time employees and the following conditions have recommended for imposition on the project col cot the operator shall mantain the main entrance and sidewalks abudget the property in clean condition and maintenance shall include minimum daily sweeping letter pick-up, disposal or washing of the main entrance and abutting sidewalks once every month. project sponsor shall main tare

odor control methods, and you enclosed garbage area. all garbage containers kept within the building until pick-up by disposal company. the establishment shall implement a security plan and review the proposed surveillance system with the police department to ensure it's adequacy for evidentiary purposes. the commission may impose other conditions for good neighbor policies that have been practiced with other establishes such as restaurants and bars. this concludes staff'srencing presentations and i'm happy to answer questions. >> project sponsor. >> he with preciate the five minutes tonight. we will be very efficient with that time. i will turn the podium over to robert jacobs and talk about the neighborhood and what has happened since the last

meeting. want to talk about two legal issues and the first is the standard of review that we don't really talk about much, but it's very important here and second leads into clust ering issue that is going to be of importance tonight. it's really critical to keep in mind as we start this hearing, keep in mind this is say permitted use. that is where we have to start - we're here before the planning code does require this hearing. it's a mand ory -- >> i'm sorry, andrew, if i could just pause your time? people, we need to turn off the phones, because it's very disruptive and inconsiderate to the people who are presenting, as well as the commissioners. if you don't know how to silence your mobile deviolation, just turn it off or go outside. thank you. >> huenga. >> sorry andrew. >> thank you. to continue on, the critical issue that we're going to start is this a permitted use. the planning code in the new zoning districtez mcds are permitted uses and we're required to be here for

mandatory discretionary review hearing that is for sure, but this is not a project approval hearing. in a project approval hearing like others you have heard today and you hear every week, cu u conditional use authorization and 309 applications the burden on the applicant to prove to you that their project is worthy you have your support and that is the way the procedure works. discretion are eye review isre very different. the burien is floton the applicant. you start with the premise that is a permitted use. what we're here to talk about is whether are there are extraordinary or exceptional exceptions presented by the case that and that is the key? i think there might have been confusion whether there was a conditional use authorization or a burden or there were obligations and indeed the applicant needed to come forward with certain types of findings. that is just not the case here. this is like every other dr case, it'