also, the proposal to move the non-conforming use designation to the middle flat is contrary to code. the third unit was the last one in, that is the non-conforming one. under section 181, the non-conforming use shall in the be enlarged intensified extended or moved to another location. under your zoning administrator's bulletin, the prohibition against moving the non-conforming use shall not apply to relocation within the same building provided it occupies the same or less area. and it's not intensified in many other way. so the move would occupy a greater area and violate your bulletin, because the flat is bigger, 1375 square feet and the garden apartment is 505. so under your zoning administrator's written interpretation on your website, moving the non-conforming use to the bigger unit is an intensification that is prohibited and the zoning

administrator said in an email to the supervisor he didn't know of any guideline and i'm going put that in the record, the email. also, in the future, he shouldn't be allowed to move the non-conforming use designation, the planner says they can flip it, move it up, move it down by applying to them this the future and paying a fee. and it seems to me that if you allow it to be moved you ought to say that he should have to leave it where it is on the second unit or at least provide an opportunity for a notice, hearing and vote of the commission as to whether he should move it down again? because otherwise it just provides a ruse any time you want to alter the non-conforming floor you just move it down. and so that is essentially the position that they are taking and planner said i should ask you for notice. so i'm asking you for notice and a hearing if you allow this? i have another point. he is not measuring from the ground level wall. he is measuring from the top wall.

he is 10" over. the 12' you are allowed to encroach in the rear yard. and is i ask you to remove that as well. we have a strong pattern. we have five houses in a row that have stayed the same way since 1949. and i ask that to mitigate the effect on the mid-block open space, you could allow him to allow it just fill in the 3' overhang or 7.5', which he said at the pre-application meeting. >> unfortunately you are time is up. >> thank you very much. >> thank you. other public speakers in support of the dr? >> are you part of the dr requester's team? >> no. >> okay. >> thank you, commissioners. i'm greg scott president of pacific heights resident associate. we support the dr and this should not be permitted.

the in[to-eurp/] stairway with the door at the bottom is a wink of an eye, the dwelling unit merger issue and we have seen this before. and we think that should be stopped. people are plague games with dwelling unit mergers by putting internal stairways with doors it they leave open all the time and defactor units. and moving around non-conforming use within the building is absurd. we had a similar issue on jackson street and then zoning administrator pospass morsaid they could not expand anything outside of the existing building envelope of the non-conforming use because the entire building was subjective to the ability of pro[h-eubs/] on expansion. if they permit them to move the non-conforming use from the garden apartment to the second floor flat, it should be stateds a condition of appeal that they cannot move it back to another unit [th-fpt/] is too many gamesmanship going on and it's an insult to the

neighborhood character and encroachment to the rear yard space. this should be stopped. thank you. >> thank you. next speaker. >> if you begin speaking sfgov will put it up. >> i'm chair of the land use committee and first i would like to distribute letters from the land use -- jonas, can i have a copy? at the land use commission, it

says dear commissioners, jonas -- that is mine. sorry. i'm sorry. my time is almost up. can you start it over? >> go ahead. >> the proposed construction will affect the merger of two unit because the new second internal staircase would run -- will internally run from the upper unit garden apartment to the direct connection to the unit above. the garden unit is currently a non-conforming units which cooperate be enlarged under planning commission's -- plasing code section 181 and cannot be moved to another location. the proposed move of the non-conforming unit upper unit is contrary to planning code section 181 a and 1991 interpretation of the zoning administrator.

on this overhead, you can see that -- this is in regards to the addition. at the pre-apmeeting notice, the addition was 7.5'. and that is what changed to 10'. and also, the measurement of the addition was taken not from the rear wall as required. it was taken from the next level, the second-story pop-out and that is incorrect. it should be measured from the rear wall at the ground level. so that is something that is critical to this case and i hope that you would change that addition to 7.5'. also what i have for is from

the richmond review, the planning board of supervisors decision to overturn your approval of 26 avenue and clement. and it was decided that the preservation of affordable units was more important than new units to be added. since so many new units are being added anyway, affordable units are being lost at 1,000 per year. but most importantly, please -- measure from the rear wall. >> thank you next speaker, please. >> san francisco tenant's unit. tenant's union supports preservation of the existing garden-level studio apartment at 16a iris avenue. and opposes the request to add

an internal spareway between it and the 16 iris flat above. the new internal stairway with the door at the bottom would not genuinely maintain the current separation of the two units. the planning department initially recommended that the building permit be denied and admited that the proposal was a merger before the internal door was proposed. the 505 square foot garden apartment in question should not be made less affordable by effectively adding 470 square feet, contrary to the intent of major directive 13 01 and the planning department's own guidelines. interesting point about the richmond review article that you just got distributed from the prior commenter, that was unanimous vote at the board of supervisors. so the mayor's executive directive is filtering through the commissions and the legislative branch and now we're seeing some sort of

uniiimity about the imperative to keep the units that we have got. we're lowing a couple thousand the last two years. it may even be accelerating. we don't have stats on that, but there is a grave condition about maintaining the affordable units, not having them demolished or merged or lost, and the affordability crisis is real and the bodis are taking cognizance of that. the tenant's union was been trying to sound the alarm for this for years and we're delighted to see that the city is taking notice of this problem and taking actions to deal with it. so it may be a small matter, but there are only two units involved at 26 and clement, but it caused the notice at the bdr. ureau of board of supervisors.

thank you. >> additional public comment? >> i i'm a member of the cataloging for san francisco neighborhoods land use committee and i will just go over a few points. i don't mean to be represent repeatous, but it's timely for this to come before you, earlier on in the agenda you talked about having affordable units and people creating 200 units in one place and all over the city there are in-law units and even if built 200 more units piece by piece, if they disappear it may become a zero-sum game. the proposed internal stairways between the garden apartment and level above, 16 and 16a iris, even though the plan's description says it's a merger, they are saying now it's not a merger. this thing has moreovering for

the last, three, four, five days and it's very hard to keep up. if you look at page 82.1 of the plan submitted by the architect, it will show there is still the two stairways that some of the other people have alluded to. planning code section 181 prohibits enlargements or expansions of -- the zoning administrator prohibits moving the non-conforming use designation to a larger unit. if there is an unwritten practice of moving non-conforming units around the building, there could be many more mergers and continued lack of affordable housing. and this is going to become very crucial and especially the low density neighborhoods of rh1 and rh2 and rh2s and 3s abutting 1s. the department proposes to allow the project sponsor to record a notice of special restriction, designating

non-conforming units and i'm concerned that the project sponsor can apply to change the nsr by applying to the planning department without any notice or public hearing and should require to change the designation of the non-conforming unit written notice of proposed change must be given to all owners and residents within 100' of this project. planning commission as duly noticed public meeting must decide whether or not to change the nsr and require a showing of extraordinary circumstances -- you already heard about the ground rear wall not used and instead the cantilevered section being used. urge the planning commission to take the dr and disapprove as to all ma that was mentioned earlier. >> thank you. additional public comment? seeing none, project sponsor, your team has five minutes. >> good evening, president wu and commissioners. i am the architect representing my clients jim and ana mary and their two young boys.

i have represented many case before the board over the years and many times i had clients pushing for the most aggressive designs to maximize. not in this case. from the beginning jim and an mary asked for just enough of an expansion to accommodate their family's needs. our design discussions centered around if we setback the massing along this side to minimize the potential impact of thisnable neighbor? if he setback the guardrail it, it decreases the concerns ofprive cirrus for this neighbor and the entire focus focused on compact design latow. we could have expanded wider. we could have expanded deeper. we could have expanded taller. the proposed design however i think is best described by the residential design team quotes "the proposed addition say one-story permitted obstruction of modest size and reasonable depth and does not disrupt the

mid-block open space." the seat bac is sensitive to the adjacent building in terms of mass, privacy and sight lines. the proposed deck is setback from the adjacent property to the north and addresses potentially privacy and security concerns." commissioners we don't have massive volumes of legal responses to the dr requesters partial citations and inaccurate -- but what we have is a hard-working san francisco family trying to make the most of their modest accommodations. we have a eleven letters of support and i have a map here of those letters of support, which should be included in your packages. and the design that vestained in size and sensitive to context and fully compliant to the planning code. hopefully we'll have your your support as we encourage you to dopt staff's recommendation. thank you for your time and i'm available for any questions. >> thank you. >> is there public comment in

support of the project sponsor? >> good evening. mark stall stahl. i live at 18 iris. we're the upstairs neighbors of jim and ana maria. i have to assume we are most impacted by their request. and i, my family, like many neighbors as you just saw are fully behind and support a modest adjustment that is in front of the you to be able to see san francisco stay? san francisco. i grew up in the east bay and went to college at uc davis and probably lost about 95% of my friends who viewed that san francisco was unlivable, unfriendly for families. parts of it is perception of the public schools. my kid goes to george peabody in richmond -- we need to change the culture and the perception.

this modest request is going to potentially allow a very good family in laurel heights area to stay in san francisco. my wife and ana maria went to the laurel heights improvement association about this specific request. they were told that had they asked first they would fully support this assignment. so i find if very hard to believe that because their decision-making process was based upon who asked first really has a negative view about this project. thank you. >> thank you. is there additional public comment? okay. seeing none, dr requester you have a two-minute rebuttal.

. >> thank you. i just submitted the 12 letters of opposition to the project including from the suzuki family, whose garden is right behind it and the louie family who is next to me. i'm on the executive committee and the laurel height as the association did not say it had anything to do who was there first, because they would have told me. i didn't get to mention that he wants to expand on the second floor and wants to deem the second floor non-conforming and bring a deck out to encroach into the year regard. that is an intensification of the non-conforming floor and he is trying to have his cake and eat it too. so the deck should be taken out, because that is an enlargement of the non-conforming on the second floor. now he has got 505 square feet he wants to add about 370 for 00. 900 and that is bigger than

your norman normal apartment. he is going to cut down a couple hundred of feet and still have 600, which is just as big as anything. and clearly, in your memorandum, staff indicated that this was the non-conforming apartment. here is the [prao*-epl/] application. they didn't check the deck and the architect knows how to minimize things. he has got quite a large apartment now. he has already has a bed and doesn't use it and says that the merging would allow for better use and access to the downstairs space and allow the family to better utilize it. it's really not critical and your prior document, which i cannot find definitely said that the bottom one was the non-conforming. the code doesn't talk about designating it at all. the non-conforming space is the last one in.

and so this is basically they are just letting him to do whatever he wants to do. here it is. >> thank you. >> your two minutes are up. >> if you could please have a seat towards the front, in case commissioners need to ask questions. >> sure. >> thank you. >> project [spo-epbs/], sponsor, you have a two-minute rebuttal? >> instructor: don't really have a rebuttal. i think the planning staff that is here can adequate answer to the planning code. i think you have heard a lot of interpretations, but they are probably the best ones to answer definitively. >> thank you. >> hearing that, the public hearing portion is closed. commissioner moore. >> i would like to ask the architect, why you didn't consider coming in with a

complete remodel and expansion of the lower unit on its own? because what is in front of us is the same set of drawings that we had when we approved -- when we considered your unit merger and for the obvious reasons that didn't fly. but between then and now, and just by coincidence i saved the old set. nothing new has been added except expanding one more to indeed enclose a stair, which in and of itself doesn't serve any purpose. would you talk a little bit to the idea why the stair is to be there? the lower unit did and will have an external, completely independent access, so the internal stair is not at all necessary. >> it's not necessary, it's a great accessory to getting from the garage up to the unit. there is also access to the laundry, which is now enclosed in the vestibule there. >> i would disagree with you on that, because you have the

common stair, which is the external stair that gets you out of every unit right in front of your washing machine and literally was in steps away from your car. so i'm really wondering are the stairs extensive and require quite a bit of space and for me, it's a little bit disingenuinous to see the same stair because this commission and i'm talking about other builds that expand, we see a stair, which does not clearly separate the function of the intended use, that we basically are saying you need to have in the lower unit completely independent. and since, just by coincidence this came in as a merger and the drawings haven't been changed i think the logic of leaving the stair is a little bit difficult for me to fully accept. because going to the laundry or going to the garage with the

amount of stairs that are already there isn't really a logic i can buy. >> understood. >> i just want to say that, and also, kind of let you know that with no reworking of the plan, including the furnishings on the inside, this whole story does not carry. you are an architect and you have been around and you know the sensitivities and you had enough time to reconfigure and work on the unit, unless you are coming forward and applying for an independent cu to create really two independent units. >> we didn't feel like it was necessary to redesign everything. we complied with the planning code to create separate, independent units and that is the intention, is to continue to have them as independent units. we put a kitchen in there and have doors that separate out the units and have separate entries. >> well, they are not independent to the extent that

the vestibule for the lower unit is indeed a private space and it a fully functioning unit and by coincidence, the upstairs neighbors want to come down and access the washing machine or their car. that for me is kind of a little bit of a giveaway for a quality independent unit on the lower floor. >> commissioner richards. >> i want to go on record as supporting families in the city and i support legal expansions of residences where we can to keep families in the city. i guess the question i have for staff, there were a lot of bulletins and planning code items cited in the documents that were given us. is there anything that is materially factual inaccurate that jumps out at you? anybody? >> good evening commissioners,

corey teague, there are a couple of issues brought up, one was about whether or not the ground floor unit specifically out of the three in the building is the non-conforming unit out of all of the units? this notion that because it was last one added is therefore the non-conforming units. that is not actually the case. when all three units were added even if they were added at different times they were all conforming. at eight later date they all become non-conforming at same time, essentially and there is nothing in the code that is correct about which unit -- which units of density are the non-conforming units and that is why it falls to the owner once they become non-conforming to designate which are non-conforming and at that point they are treated as such.

that goes into the issue of can they be moved around in the future? that doesn't gently happen. it's not impossible. but the onus would be on the property owner to demonstrate that if you are changing which non-conforming unit, that you are changing it to a units that has not changed or basically has been treated as a non-conforming unite since the original designation. specifically about expansion, that was raised as well. you may remember a year or so ago there was one before you passed by the board of supervisors dealing with residential mergers and dwelling unit conversions and another housing-related legislation and one of the chings had came out of that was the non-conforming unit or a non-conforming unit or units within a building could be expand as along as they stayed within the existing building envelope as of january, 2013. so can expand the units as along as you stay with within

the building envelope. lastly the planning code doesn't address it specifically, but it has been the interpretation long standing that the addition of a deck is not considered an expansion of the non-conforming unit because it is not habitable space. it's not gross floor area. so usually it's an amenity to the often non-conforming units don't have a lot of open space because they are over density. so that -- i think that answers a few of the questions. >> i have one more about the fact that you put a staircase in and you have a door on both ends accessible as commission moore to the washing machine and the car, et cetera. would that be in your mind considered an independent unit? >> well, if they have -- if they have had independent entry to the exterior, which these do, i think this issue is more of a design and intent issue and less of a code issue. >> thank you. >> if feels like a dwelling

units merger to be honest with you. we had the issue with the cu on mission street where they wanted to turn a unit into a business. we had the dr on cesar chavez where they wanted to take the kitchen and 26 upand clement upheld by the bdr and made the same arguments about building more family housing versus having two smaller units. it still feels like a merge unit to me. >> commission antonini. >> i support staff's position. i don't support the dr, but i have to agree with some of the comments by project sponsor that you are backing this family into a catch-22 situation. i mean, you have zoning laws. this happens to be rh2 and they are trying to become more conforming by merging the units. and eliminating the problem of whether they are enlarging a non-conforming unit or not?

but then when they try to do that, you tell them they can't and now you are saying we want you to run outside to get into the other unit that you are use fog our own purposes which i'll not quite sure how all of this is constitutional. you should be able to use your own property that you are occupying in the way that suits your needs? it's not their problem that somebody decided to throw an in-law in in 1973. one of the dr requester's attorneys spoke about five unites being the same since 1948 and you think they are the same and they are all two units except for this one, where they put another unit in there. so i mean this a neighborhood of one unit or two-unit builds and not a neighborhood that has a lot of multiples. however, merger is not before us. all you will do by taking dr and disapprove it is make it more difficult for this family trying to stay in san francisco and trying to be comfortable with two young children and have enough space that they can live well.

it's never going to be a rental. it hasn't been rented since they own it and it's just foolishness taking this position without allowing these people to at least enlarge the lower unit to make it a little bit more family-friendly, even if they have to run around because we won't let them eliminate parts of it that they don't need. so i'm in favor of not taking dr and approving the project. >> commissioner hillis? >> so we talked -- the question of the stair, i don't have any problem with the expansion. i think it makes sense. you know, if you are going to stand a unit, this is unit you are going to expand, if you expand the top two units and leave this as the non-conforming unit, you are creating kind of a cave down there. what about just eliminating the stair, the internal kind of stair? i think that would? >> can i address it? >> yes. >> i think if that is the only way the commission would support it, we would do that. i would like to oasis suggest

adding a stair in the future doesn't require planning approval. it would designation of two units or three units and would not require a merger. it's still three units either way without the stair or was the stair. it adds convenience for my clients, but what is critical here is to get expansion pore their living space. >> okay. i think that would be any preference to take dr and remove the stair and approve the project. >> is that a motion? >> yes. >> thank you. >> second. >> commissioner moore? >> this is an extreme case and i would still like zoning administrator sanchez to come back and fill us in a little bit of where some of these oversights were or where people come forward and they are not inexperienced people, we have to all admit that, come forward