>> good evening and welcome to the august 15th, 2018 meeting of the san francisco board of appeals. the board president will be the presiding officer tonight. he is joined by commissioner lazarus, commissioner honda, vice president swig, and bobby wilson will arrive later this evening. to my left as a deputy city attorney who will provide the board with legal advice this evening. at the controls is our legal assistant. i am julie rosenberg. the board's executive director. will be joined by representatives from that city departments that have cases before the board this evening. the acting a zoning administrator will be representing the zoning admission.

we expect senior building inspectors to be here. and urban forrester of san francisco public works and urban forestry. the board meeting guidelines are as follows. the board requires you turn off or silence all six phones and electronic devices so they will not disturb the proceedings. please carry on conversations in the hallway. the rules of presentation are as follows. they are each given seven minutes to present their case and three minutes for fart rebuttal. people affiliated with these parties must include their comments within the seven or three minute periods. members of the public are not affiliated with the parties have up to three minutes each to address the board and no rebuttal. please speak into the microphone. five are rehearing requests, the request or responding party in responding departments are given three midland -- minutes to address the board. to assist the board and accurate preparation of minutes, your aspen are required to submit a speaker card or business card to board staff when you come up to speak. speaker cards are available on the left side of the podium.

if you have questions about requesting a rehearing, the board he -- hearing or rehearing schedules, call or visit the board office. this meeting is broadcast live. cable channel 78 and will be rebroadcast on fridays at 4:00 pm on channel 26. dvds off this meeting are available for purchase. now we will swear in or affirm all those who intend to testify. any member of the public may speak without taking an oath. if you intend to testify at any of the proceedings and wish to have the board to give your testimony evidentiary weight, stand, if you are able, raise your right hand and say i do after you have been sworn in or are affirmed. please stand. do you swear or affirm the testimony are about to give will be the truth, the whole truth and nothing but the truth? thank you. ok. we will now move on to item

number 1 which is general public comment. this is an opportunity for for anyone who would like to speak on a matter within the board's jurisdiction but that is not on today's calendar. is there anyone here file for public comment? ok. we will move item number 2 at a later time on the agenda. so that commissioner wilson will have an opportunity to provide some comments. we will move on to item number 3. commissioners, before you file for discussion are possible adoption of the august 8th board meeting minutes. >> president fung: any comments or corrections? >> we have a motion from commissioner lazarus to adopt the minutes of the august 8th, 2018 board meeting. are there any public comments on the minutes? seeing then, on that motion, president funk we ? >> that motion carries.

we will move on to item number 4. this is an appeal. the subject property is 128 lc street. michael and joanna carter versus the zoning administrator. appealing the issuance on july 3rd, 2018 of the suspension request regarding building permit application -- applications. they were approved by the planning department on march 29th, 2010 to allow construction of a four-story, no basement single-family dwelling pursuant to variants issued on april 8th, 2010 regarding the front setback, rear yard and curb cut at the subject property. however, this permit was not issued until may 22nd, 2015. three years after the variance decision which rendered the variance decision void and cancelled. the planning department is requesting that the permit be suspended to allow the property owner time to submit a new variance application for the project. we will hear from the appellant. you have seven minutes. >> i need to make a disclosure.

good evening. i wish to disclose that i am a partner in a project that was hired as an attorney. the appearance this evening will not have any effect on my decision. although i wish to disclose that although the disclosure is only one year, i was a builder, developer and seller five other property which is directly across the street. i have the knowledge and i have met with all the neighbours prior to that time. >> thank you. >> good evening commissioners. my name is mike. i am the architect and a previous owner thought about this property. i will give you a little history about the project and the nature of the variance. my wife and i brought the property in 2002. the idea was for me, and architect to design a house that we would build and move into. designing a house that infidels between the two onto adjacent are exceptionally desperate just in size and emplacement on the respective lots was challenging.

in working with the neighbors, we decided that if i were to apply for for a variance, i could better afford both properties and more privacy and light. with the support of the neighbors and the neighbourhood, i applied for a variance. unfortunately, while working on the construction documents, our family's financial situation changed and i decided to go out on my own, right before the financial crisis and my wife went through two job changes. we always hoped for the best as we kept extending the permits. finally, unable to obtain financing for the project, and knowing we would be empty-nesters before completing the house, we decided to sell the lot and the breeding -- building permits. we sold the project to a developer who is building a

house up the street. we were unaware his adjacent members -- neighbors were having problems with him. he seemed to understand the issues and he would conduct an outreach before construction. surprisingly, a short time thereafter, the project was sold again. as we are no longer a party to sail, we had no information about the new buyer. i assumed i would be contacted by the new owner to discuss the nuances of the project i designed. unfortunately, the new owner who is here with us today contacted me on july 16th asking about the suspension request. this is the first time i had heard about it. it was quite a surprise. i thought i would be contacted about the design. anyway. since we've met, just as i did with the first owner, i impressed upon joe the importance of the neighborhood concerns regarding construction on this part of the street to. in particular, they need for flag meant to be delivered -- to

be posted for deliveries -- for deliveries. i invited the neighbors in to hear and address everyone's concerns. he agreed and held that meeting last thursday. at the same time, joe was arranging five other preconstruction meeting, i posted a letter to the e-mail string of lc street which reaches way beyond 150 feet range of this appeal. i explained to all the non-- neighbors new and old about the history of their project, the nature of the variance and the suspension request. i offered additionally to meet anyone who might have any additional questions or concerns about the appeal. no one has contacted me with any questions at all. i have been extremely proactive, upfront and transparent since the beginning of this project. now i will just turn over to my colleague.

>> good evening. i'm representing the appellant. on the overhead i have a very quick summary of some of the key dates which is the variance approval in 2010, the three year deadline, expiring in 2013, the permit addition and 2015 and the permit suspension in 2018. and then the d.b.i. extensions to the permit over a number of years. there are a number of equitable reasons why we are asking you to rescind the permit suspension. and then there are also reasons and precedent as to how and why you can actually do that. by paying the extension fees and complying with the d.b.i. notices, the appellants did not realize there is a separate variance deadline that had already passed. they assumes that everything covered by the permit would remain valid with the extensions of the permits. if you look at exhibit i in our brief, there is only an administrator that had himself grievously held when the conditional use authorization is extended by the planning

commission, the separate variance is deemed to be subsumed in the extension. there is no need for separate variance extension. by analogy, it should be subsumed by the repeated permit building extensions. further, variance decision generally is not subject to code or charter required deadlines. the planning code section three '05 expressly states that if a zoning administrator decides to impose a time limit and the time limit or any other condition is not complied with, that may, but is not required to constitute revocation. however, if you turn into exhibit k, the zoning administrator has previously determined that in the ecu context, and approval shall not be automatically void if the timing deadline has not been complied by and in order for due process to be served, a public hearing is required to revoke an authorization. the prior determination does apply the c.u. approval.

however, it does require a separate revocation hearing. but that has also, in practice, been applied to office allocation approvals. lastly, and most importantly, the zoning administrator does have full authority and power and precedent and extending the decisions. the typical scenario involving extensions is one where there are delays in the permit review and that results in an extension. however variance in the past have been extended after the fact, and also due to project sponsor reasons including financial reasons. if you turn into exhibit m in our brief, you will see one example where the zoning administrator extended a variance decision due to permit holder's financial decision and that was granted after the three year variance. had already passed and before the building permit had been filed. in this case, the overall theme

is there is no controversy or disagreement about the variance itself. the variance allows for certain setbacks that are five of the benefit of the neighbors. at the variance is considered to be invalid, the outcome could be a redesign of the project without the setbacks that the neighbors want to. that is not a scenario that we want. so we treated the suspension appeal and we are concerned like neighbors. we would be happy to go into more detail. those have been addressed sins and we will continue to address. if you would like a couple of additional letters of support and what we have done since then, i would happy to grant them at your discretion if you want to see them. think you. >> i would like to further clarify, the reason why i brought up my prior experience on the block was, after going through their brief, some of the questions i have would indicate that i was the developer across

the street. that being before this, we will have no decision and -- it will have no effect on my decision this evening. >> thank you. we will hear from mr teague. >> good evening. i am from the planning department. again, the subject property here for this case is 128 elsie street. it is a vacant lot located in the rh one zoning district. quickly on the background, the variance application was originally filed in october 2009 for new single-family home on the lot. on april 8th 2010, the variance was granted, providing the rear yard front setback and curb with requirements. the subsequent building permit in 2009 was approved by the planning at approximately the same time that the variance decision letter was published. and then that permit was approved by d.b.i. on march

3rd, 2011, less than one year after the variance was granted. however, for reasons are the appellant indicated, the permit was not issued at that time and multiple extensions were granted for at the permit while it was approved, until it was eventually issued in march 2015, which was nearly five years after the variance had been granted. more recently, the planning department received a complaint from a neighbour on july 3rd of this year, concerning the permit and its current activity and a notice they received about the development occurring on the lot. once at this issue was looked into by the zoning administrator, it was determined that the permit had been issued after the variance that authorize the permit had expired. they determined that he had no discussion in the matter and drafted and issued a suspension request on july 3rd, 2018.

the variance decision letter language was clear and it represents language that we have used for well over a decade in that no site or building permit has been issued within three years. the variance decision is determined to be void and null. however, that language is not located in the conditions of approval section of the letter. many, many years, that has been located in the body of the letter at the end. the result of that, as i -- as was mentioned in the appellant's brief, the associated notice of special restrictions against put on the property does not actually have the three year expiration information in the nsr even though it is in the letter and that is a standard that has been used for many years. as was mentioned by the appellant, there is no will planning code requirement about a performance. or if or how or when a variance

will expire. just that the zoning administrator may set such limits and may apply conditions if they are violated and may result in repercussions for at the variance. the letter, as drafted by the zoning administrator makes it very clear that based on that letter, if the permit is not issued within three years, it is null and void. it essentially forfeits any discretion to consider it at that time, except five of the issue that was raised, it is consistent language that they may extend the variance approval. if there are issues related to other city actions that have delayed the project or appeals that have delayed the project. in this situation when the zoning administrator had this information before him and determined that, in fact, the variance had expired prior to the permit being issued, he determined that he did not have any discretion in the matter to

grant any type of extension and that's why the suspension request was issued. i don't think any of the context has changed since a variance was issued. to my knowledge, none of the three planning code sections of the project received variances from have changed in any way. it is still a vacant lot with the same topography and same development context developing it as it is today. but just again to the point of what the organization may do, the appellant listed two specific examples referencing a planning commission action and the variance being subsumed into that. in that situation, that was naught not making the determination that the cause -- the planning commission action was extended. therefore the variance was also extended. what happened was the variance was issued at a time before the planning commission had the authority to make that

modification themselves. after the fact, the planning commission had that authority, used that authority to make the exception, at once they took that authority and were able to do that, the variance except -- essentially became moot. the other one that was included in the brief included the n.s.r. it did not include the letter. we did not have that letter in our systems. i'm not sure what that letter said. again, i'm not sure what that letter said. again, to my knowledge and based on past practice, the standard language in the variance letter has been to have the three-year requirement and it is a hard expiration upon that time. one issue was raised in the brief was that, obviously, there was no notification that was automatic in any way to the project sponsor or the property owner or to d.b.i. once the expiration occurred.

and also, the building department continued to grant extensions to the permit. i understand that can be confusing. we are a separate department and separate actions. we do not currently have the technical means to provide an automatic notification like that, conditions of approval for any type of approval given by the zoning administrator. i generally want to the owner and sponsor to maintain and follow, unless we specifically put active monitoring measures on them. having said that, it is understandable how that can be confusing that the permit could actually be issued and extended even if the variance had been expired. again, that is just the history of the project. the zoning administrator did not feel he had any discretion in the matter. but also it does not appear any of the complications to the variance has changed.

thank you. >> president fung: i think we all have questions. >> just to clarify, if the complaint had not been filed a month ago, a few weeks ago, which planning have become aware that the variance had expired clique. >> i can't say that for sure -- for sure. there'd be no other normal method where we would have been made known. in situations like this one something like this is occurring after the fact, it usually is related to a complaint or just some other happenstance where we stumble across this information that is, again, this is an unfortunate byproduct of the fact that the planning department implements a planning code and d.b.i. influence a building code. some of our provisions are implemented through a building permit, which after we approved and scent to d.b.i. for at their review and issuance, is out of our hands and we do not actively monitor that. there would have been no specific reason for asked to be made aware of this issue if the

complaint had not been filed. >> secondly, i have to think about how i want to phrase this. what is accomplished by issuing the suspension? >> what is accomplished is, technically, the permit required a new variance. if it was going to be issued in that manner. because we are the law of today. the law applies up to the plan of -- up to the point of issuance. that is the technical importance of that. i do want to mention, also, i think i mentioned this earlier, i did mention the fact that our variance letters do not include the three year expiration language as a condition of approval, like specifically in the bullet point condition approval of the letter. it is in the body of the letter in the -- at the end. but the cause of this issue and

being discovered in this way, we just recently updated our variance template so that now that language will be included in the conditions of approval. it will be clear on the n.s.r. which is what gets adopted on the property. >> president fung: ok. mr teague? do you have any idea why the change occurred to the time limit -- about a decade ago? >> i'm not sure if you understand the exact question. which change? >> president fung: let me restate this. the variance runs with the property. in the old days, there was no time limit. about a decade ago, the planning department instituted a time limit on the variance for finalization of it.

why did that occur? >> i am not sure of the exact timeline. i am not sure of the exact ten year timeline of when the three-year hard stop hop into. i have seen variance letters that were much older than that that had similar language. >> president fung: has both of the examples that were provided by helen, was issued by the previous e.a. has this e.a. issued any extensions on the variance? >> i'm not aware of any that have been granted. again, i don't have -- i'm not necessarily in a position to be knowledgeable of all of those if they had been issued. >> president fung: thank you. >> i have a question. regarding the neighbour, was it anonymous or an immediate neighbour? >> i do not know off the top of my head if it was an immediate neighbour. the e-mail we received was not

anonymous. >> regarding the n.s.r., understanding that the planning department and building department are two separate entities, and n.s.r. is a deed restriction. student that come up since we are computerized? if there is a hard date expiration, shouldn't that be noted when the authorization is given so future departments don't, i mean, it seems unfair to the permit holder that they have gone through this additional process only to find out that potentially this is null and void. >> sure. we have not had that digital capability in the past. those are the kind of things we want to be able to get out of the new system once we are fully coordinated on that system. know, we have not had the capability of having that type of digital notice in the past. but i can understand why it can be confusing. it is not on the n.s.r.

again, the n.s.r. on the property is specific to the zoning administrator's decision and the planning department approval and not to the building permit itself. >> but like i said, a condition given by the zoning administrator that runs concurrent with the property's ability to develop, under that scenario, i would imagine the planning department has a system, that if you are not supposed to build, if there is a new do not build on the planning department, is there something that flags the billing department not to issue permits on it? >> no, we do not have an automatic flagging system based on timelines like that. under the new system that is under development to, that is a kind of thing we hope to be able to accomplish. >> on the complaint from the neighbor, ages -- is it an immediate neighbor? >> i honestly don't know off the top of my head. >> ok. thank you. >> mr duffy? do? do you have anything to add?

>> what a nice surprise. they introduced mark wallace as being the inspector for this evening. >> mark is here in addition to me as well for at the case on some technical stuff. good evening commissioners. joe duffy. d.b.i. this is a planning appeal but i heard in the reference for the building permits. this is for the building permits. this is a common enough occurrence at d.b.i. when we see a permit application with -- may be nine or ten years ago and then there has been delays. i will state that the permit applicants seem to have taken advantage of the building code in relation to extensions on the permit. they came in and paid their fees and they complied with the building code in relation to not letting the permit to be cancelled, file for whatever reason. is in the building code that you can do that. there's various reasons why people do it. it is not our favourite choice, but it is in their. i was looking through the permit details when i read the brief and i do see that the other

thing that struck me is when the addendum got issued in december 2018, had based called file for a start of work inspection and broken ground, that would have been an issue of the building permit and therefore i don't know if the variance is the term soffit that. i want to let you know, we deal with this a lot at d.b.i. people come in and we always warn them. be careful with your variance and the planning department approvals. you may have run out of time on that. be careful with its. i agree with you on the question on the complaint. had the complaint not have gone to planning, this building would be out of construction. it seems they got caught in the middle. i do understand the neighbor's complaints. if they have not called file for a start work, i'm not sure if mr teague would agree with me, but that initiates the permit and any sort of work at all start that process. i just thought i would add that.

>> president fung: you noticed we are not discussing your new system here? [laughter] >> i don't know much about it, to be honest with you. i will save comment on that. thank you. >> thank you. is there any public comment on this item? please approach the microphone. how many people are here for public comment? ok. you have three minutes, plea. >> thank you. my name is jeremy daley. i moved in a year ago to the lot immediately to the front of this lot. i am on winfield. 141 winfield. is significantly below elsie. obviously, you would know that. file for us, we were concerned to hear about this. we only heard about it through the postcard system. our neighbors on winfield to our immediate sides are concerned about this. and they heard about it because we talked about it on the weekend. my concern is partly that we

were unaware of it until getting the postcard. in terms of consultation, we did not know anything about that. the other thing that i am very concerned about and this is a lot of it in my head, our lots are in an active landslide zone according to data s.f. the city and county recognition of seismic hazards. i'm concerned about having a four-story building immediately behind us. the lots are very small, which you know as well because the streets become more narrow as they get closer to the corner. which means all of the backyard, limited as it is, will be covered by the shadow of this building. we wanted to say we were not aware of it until the postcard. i am concerned about it because of the zoning. the seismic hazard and concerned about the height. thank you. >> commissioner honda: i have a question. are you a renter or do you own? and you bought the property under the area of disclosure, did indicate there was any future developments? >> indicated there was a plan, but we had been told it would be

in existence for several years and probably had expired. that is with the realtors told us. our neighbors, to our immediate side, had been there for several years and they were not aware of it. >> commissioner honda: but it did indicate there is potential development? >> yes. >> commissioner honda: thank you. >> thank you. next speaker, please. >> hello. my husband had submitted. >> commissioner honda: i'm sorry. can you speak closer into the mic? >> my name is yvette's. my husband submitted the letter that i will briefly read to you for at the record. dear board of appeals, we recently received a postcard that was mentioned before regarding the appeal of the building permit at 128 elsie located on the hillside immediately above and a couple of lots to the south of our single-family home that we own. we generally support and felt tight development as it is most

sustainable land use policy in this age of environmental, stress and climate change. however, any multistory in this case, it is apparently a four-story building that i just read about, and has the potential to impact every recently purchased and installed rooftops and our solar panels. at our home on winfield street. this was installed by the way in april of 2017. california plaza civil code ensures that neighbors may voluntarily sign silver easements to ensure that proper sunlight is available to those who operate solar energy systems. we would support the permit process for development if an easement was granted to ensure continued access to sunlight for our solar system as well as any other neighbors in the same situation, which relies on a clear line to the sun in the winter months when it lies to the south of our home. we hope you and the applicants of this building permits will consider our request to grant an

easement to ensure our long-term commitment to renewable power in san francisco is not compromised by this project. we would appreciate that the planning commission on the board of appeals would take that into consideration. >> president fung: thank you. >> commissioner honda: i have a question. how long have you been on winfield? >> since 2,000 at eight. >> commissioner honda: were you aware of the development? did they send you plans? there was a 311 notification at that time? >> we were just aware of this issue when the postcard mystery dish received. a couple of weeks ago. i don't recall that we received anything like that. >> commissioner honda: when they initially sent out plans you never received them? >> when would that have been sent out? >> commissioner honda: went in 2011, i believe. >> i would need to, on my husband. what is the reason for the question. >> commissioner honda: when someone was doing -- did she receive plans. and she asked me, whether relevance was. when they scent 311, it would

indicate there was a four-story structure being potentially built there. >> then we proceeded last year that would stall with the goal is of the has established in terms of encouraging renewable energy. i would say that would not have conflicted with any previous knowledge. this is something that the city encourages and something that is very important. >> commissioner honda: ok. thank you. >> thank you. >> thank you. 's or any other public comment on this matter? we will move on to rebuttal. we will hear from the appellants. >> i will just take a quick moment to speak about the variance and what we are actually trying to do with the variance and how it affects or doesn't really affect most people. this is an elevation of the street that the shaded buildings are the adjacent properties.

122 elsie is the two story box like structure cited towards elsie street. 132 elsie is a smaller cottage that is below the grade and cited towards the rear of the property. going to the site plan, that want to adjacent were shaded in blue. my project footprint is in the grey. had we not applied for variance, the setbacks are superimposed in red. the idea behind the variance is working with this neighbor and taking this portion of the property, sliding it towards the front to match theirs, and at the same time, in similar leap towards this cottage, taken that piece and sliding it back. doing a shift to better meld with the two projects. thought for the person in the back, they did get, or i was asked by the previous owner to

send a long electronic copy so they could included in disclosures. also i just want to point out that the building is only going 14 inches further than what would have been allowed without the variance. it is very, very minor. it is only on the first floor. i don't know if you even see it over the fence. as far as a shadow on the neighbor's house, i can't imagine that we cast a shadow that far. i don't know for shore. this is the first time i have heard about it. if you have any questions about the variance, i can go further. >> the bottom line for s. is the restarting the process, you know, it would only delay the construction. and from any one perspective, it would be against a city policies about building more housing. i think there's been a lot of initiatives lately in planning and building to expedite housing projects and sending this back to the beginning of a process

will result in delay. truly, without any true benefit since a variance itself as something that was creating in order to accommodate the neighbor's properties to begin with. what we are asking is a fairness as you decide this case. i don't think there requiring the commencement of the process again will benefit anybody. and given that there is no code requirement for that three year performance condition, i do think that they have the power to extend these deadlines. there has been president to extend it both by the form at the ca and the current zoning administrator. we are asking you to please uphold the variance decision. thank you so much. >> i have a question. are you the current owner, or the previous owner? >> we are the previous owner. we are representing the prior

owner and the architect of the project. they went -- they sold it to the current developer. >> the current person is not here? >> yes, he is. he is available in the back for any questions you might have. >> president fung: on what basis are you asking this board to reverse the suspension? >> a couple of different things. number 1, the zoning administrator does have the power to extend those variance decisions. and the fact there is also precedent that has been done. i recognized that the typical scenario is an extension where something happened in a city process that cause delays. there have been other occasions too. there is another exhibit in my brief -- >> president fung: let me rephrase the question. are you asking us to find that they dared? or are you looking at this as if it is a noble -- >> we are asking for off up the suspension to be lifted so that

the variance will be held and it will be valid so the project can proceed. the concern here is about the construction management, the communication with the neighbors. >> president fung: thank you. >> thank you. >> thank you. mr jake? nothing further. mr duffy? nothing further. >> president fung: mr teague -- spee with -- >> commissioner honda: mr teague? >> president fung: didn't we hear this case? >> i apologize for for the ladybug delay there. i am not aware that this case is heard. the variance is not appealed and the building permit was not d.r. it and the building permit was not appealed. at the time, the variance was a very grand table based on the conditions of the site.

there was no variance letter stating that there is no opposition submitted to the variance. again, when it went up for 311, there were no d.r.'s filed and i'm not aware of any opposition in general to the project at the time. in the context has not changed in sven. >> president fung: thank you. >> commissioner honda: additional question. how often has the current administrator extended the variance? or has he? >> i am not aware of that happening. obviously, mr sanchez would have a better idea himself. that was not something i was able to? from our system. i do know that to -- from our knowledge, it does not happen unless it is within the context of what the letter says. which is a lawsuit or appeals.

if there had been discretion, that the zoning administrator would have strongly considered using it in this situation because of all the reasons we have mentioned. nothing has really changed. they basically got it ready to be issued within a year and when they were ready to move forward with it and the issue with the n.s.r., not including the three year requirement which we have not changed. if he felt he had that discussion he would have strongly considered using it. but ultimately it was his determination that he did not have that determination. >> commissioner honda: a comes to mind, we had eight brotherhood way that had not been active on the permits for 15 or 20 years. we voted to allow them to build. that was a planning issue in regards to a variance.

>> you may have been. i do not know the specifics of that project. >> president fung: at the risk of opening pandora's box, it is good education for us. so you stated in the previous testimony that nothing has changed in the conditions surrounding this. but indeed, we had a neighbor stand up and say the conditions have changed. we invested in a solar panel and a solar electric facility. and we had exposure to the sun. that would be a change. that is the first time since i have been on the board which is relatively limited by comparison to six years.

how should we consider that without a shadow study or is that something that is a consideration based on other guidelines of light and air and those don't count, necessarily if all other things are equal? >> a few things there. one, i was specifically referencing the code sections that the variance were obtained for have not changed on those requirements are the same. they are not proposing to change the building and any other way there. the context of the site is still the same and the immediate neighbors. they are are probably some new people who live in the area are people who have different opinions and may then maybe they did back then. the specific issue raised by the speakers tonight was about

protecting solar panels. we specifically cannot take that into consideration. i think she mentioned that the state of all the private agreements something they can discuss privately and come to an agreement to amend the project to help preserve late to the solar panels. it is not something that is taken into consideration. >> commissioner honda: i asked for two reasons. one, how should we deal with it tonight and if it comes off again, we all know what the position is. thank you very much. >> ok. the matter is submitted. >> president fung: commissioners? >> i am not sure what is accomplished by allowing the decision to stand. arguably, if the variance goes away, they have the option to

come back and build something that would be code compliant and not accommodate the neighbors. and simply not go for the variance. i also think that there was a lack of clarity and the fact that building department continued to reissue the permit or extend the permit and take fees, that is another action by a city department. i am bothered by this. >> again, as i disclose, i developed a property across the street. the neighborhood district is one of the toughest and strongest neighbourhoods in the city. they have further restrictions than the planning and building codes. and dealing with the neighbors, if it did not get complaints, it means that the previous owner has worked very closely with the neighbors. i agree with my fellow

commissioner in what is accomplished. also the fact that the planning department is going to change their language indicating that n.s.r. indicates that there is some potential confusion and potential error on the department's behalf. i would allow the build. >> president fung: i am angry -- in agreement with commissioner lazarus. >> i am sort of in between. >> president fung: i am not usually the one that would require additional process, however when i raise the question to the appellants about on what basis the rational -- rationale though they brought forward were not that strong as

compared to how definitive -- definitive requirement is written in the letters. i'm sort of in between at the moment. >> vice-president swig: it would not have been discovered but for somebody filing a complaint. just to say we are starting construction. it is very very late in the ga game. >> commissioner honda: plus as inspector -- >> president fung: they were in the middle of construction as they found this. >> commissioner honda: we have seen this here as well, it is a big mess. i think the process has gone through and, you know, i do feel some empathy for at the newer neighbors who are not involved in that process. it was a lengthy process. also to consider that 2008-2012 in san francisco was quite devastating, and a lot of projects were delayed or

postponed because of that money constraint. >> vice-president swig: this is a question for the city attorney. we have a not missing but a conflicted member. does it still require -- >> the only time that are to require less than four votes if there was an agency on the board. depending on the vote we may have to wait -- >> we have a property conflict. >> commissioner honda: we would still need for? >> he would still need for until there is a vacancy on the board. >> we can take a motion. we can take a vote and we can decide to continue, correctly. >> commissioner honda: can i ask a question? i am prepared if commissioner lazarus makes a motion.

but i'm thinking in terms of contingency, can this variance -- can there be a rehearing request on the variance? so that the same variance -- so that is everything -- so that everything expires. >> president fung: you can have a rehearing request on the suspension case. >> commissioner honda: ok. i just wanted to know where we were going in case there was a difference in opinion. >> president fung: if there is a motion, go ahead and make it. >> i will move to grant the appeal and overturn the suspension request on the basis that the zoning administrator aired in his decision. >> do we have to address the variance in this motion? >> i do not think so.

>> you may want to provide some additional facts to support the basis. like perhaps the zoning administrator abused his discretion by not considering the extension of the permit, and also as evidenced by the fact that they've changed their procedure following this case. >> i would have -- i would be happy to include all of that in my motion assuming that it was captured. >> ok. we have a motion from commissioner lazarus to grant the appeal and overturn the suspension request on the basis of the zoning administrator error and abusive discussion by not considering the extensions granted to the building permit and the changed procedure with respect to the variance decision letters. including the three year deadline within the commissions -- conditions. on that motion, president fung?

>> yes. >> yes. >> yes. >> that motion carries. the appeal is granted. ok. we will now move on to item number 5. this is a rehearing request for for the subject property at 826-827 central avenue. martin is the appellant and is requesting a repeal. they decided to -- in july. they voted 5-02 denied the appeal and uphold the denial of the open space at exposure variance on the basis that the findings required under the planning code have not been met. the variance description was to add one dwelling unit in the ground floor that does not provide any existing unit and

the proposed dwelling unit fronted onto central avenue does not meet the minimum exposure requirements. we will hear first from the requester. you have three minutes. >> hello commissioners. thank you for at the opportunity request a rehearing. i am the appellants. my reason is is to prevent manifest interests and omission of different material facts. that if presented, would present a change of the variance. i have applied for two variances. one for exposure and one for open space. to present an affordable unit on the lower level.

at the appeal hearing, the president stated that the reason he would vote against the variances is because neither the appellants or oral arguments prevented the variance. these criteria are different material facts. they are. one, why extraordinary circumstances for my property because it was originally one property and then split into three. and my property is on a northward slope. two, why the enforcement of the code leads to practical hardship to me and it would be cost prohibitive to give up a new

affordable unit otherwise. three, why i am deprived of a substantial property right that similarly situated other property owners had. for, why granting the variance will not be materially detrimental to the public welfare or materially injurious to the property of improvements in the vicinity, because i also have an easement on my neighbor's property. five, why the granting of the variance will be in harmony with the general purpose and intent and will not adversely affect the general blend. this was an oversight that the

area presented last time. i did not do due diligence but i requested council on multiple occasions to present the highest criteria in both brief and arguments. i requested council to present the five criteria. i sent in the first draft -- >> sir, your time is up. thank you. we will now hear from the zoning administrator. >> thank you. >> good evening commissioners. i do not really have anything to add to this case. i am available for any questions that you may have. think you. >> is there any public comment

on this item? seeing none, commissioners, this matter is submitted. >> commissioners? >> i did not feel this met the criteria for a rehearing. i did not hear anything that was different. >> president fung: or that couldn't have been submitted earlier. >> commissioner honda: i agree. although i empathize with the project sponsor, this has not reached the bar for manifest in just. >> president fung: i am not in full agreement, but i am sensitive to the fact that the president, you did say, you didn't address the variance. but that was their opportunity. that was their opportunity as commissioner lazarus. they didn't do it. >> commissioner honda: in my

case, even if they did, i don't feel my opinion would have changed. >> president fung: is there a motion? >> commissioner honda: i will make a motion to deny the rehearing request on the grounds that there was no manifest in just. >> so we have a motion from commissioner honda to deny the request on the basis that there was no manifest injustice. on that motion? >> yes. >> yes. >> yes. >> that motion carries and the request is denied. we will now move on to item number 6 a and six b. this is appeal number 18-049 and 18-050.

leonardo and veronica bronco versus the department of building inspection. protesting the issuance on march 28th, 2018 of an alteration permit to comply with nov. to change three illegal windows to three legal windows with w. 60 fire resistant rating. and they are protesting the issuance on march 28th 2018 to the alteration permit to comply with n.o.v. and change a legal window to one legal window with fire resistant rating and a one hour rating. this is application 201803153781. on june 6, 2018, they voted for-1.

they wanted to continue to monitor and revise the structural and architectural plans to meet all the requirements. with the accurate sport scope of work to be determined by d.b.i. on july 18th, 2018, the board voted 5-0 to continue this matter to allow time for for the party to submit additional briefing to explain how the plans can -- work. and how they are exempt from the cdc. per the president, we will hear from the permit holder first. >> good evening. >> i'm sorry. you have three minutes.

>> replacing framing and changing size or location. there is no change of size or location. the windows will remain unoperable and it is fully compliant with ab009. notwithstanding the presence of these windows, when the complainants acquired the a joining property, they are appealing the permits on a few merit less grounds. i will not repeat anything we have submitted in our brief but would like to respond to their brief. the august 9 the brief, cannot support the appeal on the points raised by them. number one, the brief asserts, without any evidence, that none of the windows is original to the building and some were added as late as 2011. however, google imaging shows the windows existed