not going to know that particular song by the fourth note. and that is our encore on tour. by the way. i am proud to play it, we are from san francisco. we are going to play that piece no matter where we are. >> all are we all set? >> ready? >> good evening and welcome to the september 12, 2018 meeting of the san francisco board of appeals. board president frank fung will be the presiding officer tonight he is joined by commissioner lazarus, vice president swig and we expect commissioner commissioner on dirt shortly.

to my right is the deputy city attorney who will provide any legal advice this evening. at the controls as a legal assistant. gary catera and i'm the board executive director. we will also be joined by representatives from the city departments have cases before the board this evening. the zoning administrator representing the planning department and planning commission, kim, the principal planner preservation officer, chris, urban forrester of san francisco public works and bureau of urban forestry. the board requests that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings please carry on conversations in the hallway. the board process rules a presentation are as follows. appellants, permit holders and department respondents each are given seven minutes to present their case and three minutes for rebuttal. people affiliated with these parties must include their comments within the seven or three minute periods. members of the public who are not affiliated with the parties have up to three minutes each to address the board and no

rebuttal. please speak into the microphone for rehearing request, the requester or responding party and respond a department teacher given three minutes with no rebuttal to members of the public have up to three minutes to address the board. to assist the board, you are asked but not required to submit a speaker card to board staff and you come up to speak. speaker cards are available at in the left side of the podium. if you have questions about requesting a rehearing, at the board hearings or board schedules, speak to board schedule -- we are located at 6050 mission street, room 304. this meeting is broadcast live on ss agave t.v. and will be rebroadcast on fridays at 4:00 pm on channel 26. the video is available on our website and can be downloaded -- downloaded. we will swear in or affirm all those who intend to testify. please note that any member of the public could speak without taking an oat -- an oath. if you intend to testify at any

of the proceedings and wish to have the board to give your testimony evidentiary wait, stand if you are able, raise your right hand and say i do after you have been sworn in or affirmed. for those testifying, please stand. do you swear or affirm the testimony you are about to give will be the truth, the whole truth and nothing but the truth? thank you. please note, given we have a board member vacancy, the board can overrule an action or grabbed a rehearing request with three votes provided in charger section 4.106 and business and tax regulations code section 16. we will move on to item number 1 which is general public comment. this is an opportunity for anyone who would like to speak on a matter within the board process jurisdiction but that is not -- that does not want to make's calendar. is there anyone here for general public comment? we will move on to item number 2 commissioner comments and questions. >> president fung: no. >> ok. we will move on to item number 3 the adoption of minutes.

discussion of a possible adoption of the minutes of the august 15th, 2018 board meeting. >> president fung: any additions or corrections? if not, we entertain a motion to accept. >> we have a motion from commissioner lazarus to adopt the minutes from august 15th, 2018. on that motion. [roll call] that motion passes 4 -0. we will move on to item number 4 this is a rehearing request for the subject property at 408 cortlandt avenue. the appellant is requesting a rehearing of the appeal. the appellant versus san francisco public works from july 25th, 2018. the board of vota 3-2 and president fung and commissioner honda dissented to deny the appeal on the basis it was

properly issued. the permit description his approval of request to remove to privately maintain street trees with replacement of 124-inch box sized tree. the location of the species of replacement tree subject to final approval by public works. we will hear first from the requester. >> good evening, commissioners. i am the attorney for the appellant. he is here today. we are back here today to ask for a rehearing of the appeal, which concerns the planning of two trees at the location on cortlandt. this has been a procedure that has been ongoing for quite a while and in our negotiations with the bureau of forestry, the appellant has decided that he would like to plant a columbia variety of tree. at the hearing on july 25th,

the commissioners decided to deny the appeal. at that hearing, we ask permission to present additional evidence that the request was denied. the grounds for the rehearing are set forth in a brief that the appellant filed. if i can focus on the main argument for the request, it has to do with a study that was prepared by the appellant's arborist. the study specifically identifies the growth right of different varieties, including the columbia. that was done because of the forestry's expressed concerns about the columbia being too large. in doing research on literature on the columbia, the arborist was unable to find studies on the growth right of the columbia and therefore he took it upon himself to prepare that.

that study was not completed at the time of the initial hearing on the appeal which was february the 28th. it was presented to the bureau of in four of -- of forestry. they considered it, however, the board has not -- we are asking the board to reconsider the appeal in light of the study. in addition, we provided evidence showing that the columbia is actually quite frequently used and a plant a tree in san francisco. it seems like not a day goes by that another columbia is planted more recently, along the median strip on the redevelopment of masonic avenue, next to seven -- the roads of club -- there are rows of columbia trees there. because of the boat being 3-to, that appellant believes it's feasible that had the commissioners being provided and had an opportunity to review the study, it is very likely that

the vote could have been different and in favor of the appellant. at the rehearing, the appellant which briefed the issue, including the study and would be also argued by the arborist and also supporting arborist to review to the report i can concur with the findings. we believe it is a compelling study. it helps the commission decide whether or not the appellant is correct that this is an appropriate tree for the location. >> thank you. >> president fung: thank you. >> we will now hear from the department. >> good evening, commissioners. i was san francisco public works bureau of urban forestry. many streets in san francisco have established species pattern of 2-3 species. or a single set species on a block. and a decision regarding ed replacement species is not often left open for the fronting property owners. on port -- on cortland, there is

a mix in a variety of species and not a pattern. we are open to discussing a range of replacement species with the property owner. if the tree size with maturity was appropriate with the sidewalk and proximity to the streetlight. a medium sized tree or smaller. the april tent meeting with the appellant and the representatives, was made clear there was no interest on their part to discussing medium stature replacement tree species as recommended by public works and the resulting director's order. instead, there is a doubling down at insistence that too large replacement trees be allowed to be planted adjacent to the 25-foot wide property. needs to be noted that the two trees, the subject -- that hours subject to the removal our english author and trees which are considered small stature species at maturity. there's not enough room in the public right of way to go from two small stature trees to two large stature trees at this particular site.

medium-sized trees was a reasonable compromise that we were willing to consider. we review to the report regarding the growth right study of cultivated varieties of these trees, specifically columbia, contrasted to e.r. which. the report was reviewed by the urban forest or, myself, the superintendent. this was reviewed prior to the correspondence to the appellant on april 30th. the report was not reviewed between mr shortt or mrs. crawford and they do not agree that it be considered a medium-sized tree at maturity. the reports that the he produced could have been produced front -- prior to the ferry 28 hearing the original application for removal was received back in september of 2015. as it is, the bureau of urban forestry rejects the conclusion that columbia is mis- categorized and should be classified as a medium-sized

tree at maturity to meet the needs of this particular case. i have said in other examples where this is planted across the city. the insistence that the spacing between the two potential replacement trees is the only problem that the appellant needs to overcome fails to address to other key problems with the request. 21 feet required clearance from the large stature tree from a street light and the of the sidewalk. our department respectfully respects the board denied the request for rehearing so the two parties can move forward and set on which a plant to the single columbia species, a the site furthest from the streetlight or a new location between the planting locations. thank you. >> president fung: thank you. in regards -- i'm not sure if i assess in the last hearing, regarding classification of trees such as the columbia, where does that actually come from? is that each city has their own

classification or is there a universal diet? >> i think each city has its own guide, ultimately. they make their own decisions. in response to the growth right study, i found 20 cities and nonprofits and nurseries that actually grow these trees and showed all considered, it is a large stature and a couple are considered a medium stature. in san francisco, we consider it a large stature tree maturity along with oakland and several other municipalities. >> president fung: thank you for your complete brief as well. >> vice-president swig: i thank you made a statement that there is no disagreement within the department. >> there's no disagreement within our department. they respectfully declined to meet in person and i felt we had already accommodated the applicant by allowing one large stature species. a very narrow sidewalk. we will have a large stature tree growing up against that building quite a bit.

we felt like that, when i provided an update, they felt like i had already given in quite a bit by allowing a single platen is to be planted there. at that point, they felt like you are the urban forest or, these are decisions you get to make. the director supports this decision. unfortunately, i will politely decline the request for the meeting. >> can you keep the door clear, please. it is a fire hazard. thank you. >> thank you. >> thank you. is there any public comment on this item? seeing none, commissioners, this sight -- this matter is submitted. >> president fung: commissioners? >> the bar for a rehearing is quite high and i don't see any new evidence that was not presented in the last hearing that would change my view. >> i agree. >> president fung: do you have a motion? >> to deny the rehearing that there was no manifest injustice?

>> ok. we have a motion from commissioner hondo to deny the request on the basis there is no new evidence injustice. on that motion? [roll call] >> that motion passes and the request is denied. we will now move on to item number 5. this is appeal number 18-087. john moran versus a zoning administrator. the property is 1776 in vallejo street. the issuances on june 13th 2018 at the rear yard variance. a proposal to construct a two-story single-family dwelling that is entirely within the required rear yard of an existing building on the lots. this is case number 2016001466. i believe commissioner honda, you asked me to remind you about a disclosure. >> commissioner honda: i need to disclose that i am in a partner that was hired in a project that has retained reuben

and junius. they appear before this body tonight and will have no effect on my decision this evening. >> thank you. we will hear from the appellant first. >> good afternoon, commissioners my name is john moran. i am the owner and steward of the birdhouse which is directly adjacent to the proposed construction. i filed the appeal because the proposed project has a large glass window that reduces our privacy and many of our rooms of the house, as well as three of our kid's bedrooms. the ten by 14-foot glass floor to ceiling window looks directly into those bedrooms. also, the position of the proposed construction is right up, very close to the property line, and it diminishes the public's view of our house which has a large frontage along

vallejo street. it will limit the amount of viewing by the public. those are the primary reasons. there are a number of other reasons but those are the primary reasons i filed the appeal. i hope that they can move the building back further from the property line. thank you. >> evening, commissioners. i am here for the appellant. this is a variance case, commissioners. as you no kak the board reviews variance cases which gives you greater discussion than the regular discretion standard. commissioners, on the overhead, please. this is a flat rectangular lot. extra space is added later onto the lot by the owner. giving it additional rear yard space. is this a hardship?

that is what this case is about tonight. the variance is inappropriate for four reasons. that is for out of the five mandatory findings that have not been met. first, at the space here is not a hardship. it is a bonus. it was added to the lot in 1971 by a prior owner who sold it to the family that sold it to this applicant. this is not one of the triangular lots on market street corners that was originally drawn that way by the city. this was done on purpose by a prior owner back relatively recently as an amenity for the property. this applicant catch now turn around and call this amenity a hardship. even if it were a hardship can't is attributable to the applicant and therefore legally disallowed second, the variance is not necessary. the architect will explain, the applicant could add a second unit to the existing structure which is not a reeded historic resource. even if it were deemed historic, that is not a hardship.

agencies follow the normal rules for consistent textual additions third, the variance is materially injurious to my client's property. it's massive lot line windows and rear roof deck face into my client's windows, including looking into his children's bedrooms. this is a very significant privacy impact and it totally is unnecessary. the appraisers reported the pockets -- reported in your pockets affects the property value to my client of roughly half a million dollars. if that is not material injury, i don't know what it is. forth, it conflicts with the general plan by adversely affecting the house, which in as a san francisco landmark number 31. that is my client's house. it blocks public views of the house and threatens a significant tree that the historic preservation committee has marked for landmark status. it does not even discuss the status back on the overhead is an arborist report and she is here tonight as well. the risk to the tree has not

been mitigated and it is because the structure's too far forward. same with the blockage of public views of the house. it is too far forward. we have offered a compromise to the project sponsor that we would withdraw our opposition if they simply shift the proposed structure back by 9 feet. they have this massive rear yard shift it back a few feet and add a directional glass to the floor to ceiling windows in the front so they still have their views out of their property but don't look straight into our windows. now for the architect. >> good afternoon president and the members of the board of appeals. i am a licensed architect. the variance should not have been issued because it is not necessary for the addition of a second unit. it would end up packed -- impact the public privacy and the historic landmark. first, the l-shaped lot is not a hardship to add a unit incomparable square footage for

the variance. the permit holder has alleged that this would be difficult because the existing building is a potential historic resource. that is an overstatement. the existing home has not been evaluated by a qualified historian and as a historic resource, it may not be a resource. the building is not a well-known example. in any event, they allow for changes to historic buildings including additions. san francisco allows additions to minor historic buildings that are hidden from the public view. major additions are often allowed provided the front part of the building is preserved. this is possible for the current building as you can see in the plan. this area here, without using the regular rear yard requirement captures a 1300 square foot addition that is comparable to the unit that they are proposing. no variances. second, the project will have privacy impacts on the appellant the large floor to ceiling willing -- windows look into their house bedrooms and living

areas. if the viewpoints shown in these diagrams were self-selected and self-serving. there we go. anyone standing in the windows or edge of the deck will have a direct view into their house windows. the historic evaluation of the project impacts on the mansion was completely inadequate. the planning department did not require or undertake a formal evaluation of the impacts of the project on the house. the zoning administrator stated there was no impact. there is no basis for this finding. the proposed project obscures a large section of the wall of the house from the public way. the existing wall of the building on the corner of the block competes less with historic resource because it is in obtrusive and further away. the diagram is not adequate and accurately showing the extent to which the view of the house will be restricted as depicted in my report. the project is jarring to the historic house contrary to the contract holder's assertion. this is not comply to the sec.

standards of of rehabilitation. the buildings adjacent must be compatible and differentiated. not compatible or differentiated this requires careful consideration about the context and design of the historic resource which is not apparent. thank you. >> thank you. we will now hear from the variance holder. >> good afternoon president fung and members of the board. we represent the respondent and the developer. san francisco's residential grade is based on city blocks consisting primarily of 25 by 100-foot lots and some sections of the city, the lots are wider and deeper but the grid is similar. as far back as there has been a planning code in san francisco,

the code has been based upon that regular grids. however, also, from the first planning code, the planners understood that for a variety of reasons, there would be exceptions. that is why the code is always including in a variance process which places discretion in the hands of the zoning administrator. as you know from your service on this board, there are a series of criteria to be evaluated by the zoning administrator in connection with a grant of a variance and it is their role and duty to exercise that discretion clearly. our d.a. has been acting on variance decisions for many years. he understands the criteria and the precedent. this board has broad powers but we think it is better not to disturb the zoning administrator 's recent decisions , except in the case of error or abuse of discretion, which we don't have here. as i understand, the appellant was just legal argument, they acknowledge the subject lot is a regular and that a variance would be the proper procedure to address the abnormality, however they then seem to argue that the d.a. abused his discretion in

finding extraordinary or exceptional circumstances or hardship because the applicant should be held responsible for the fact that the lot is l-shaped. every parcel of land in san francisco has created some point through some deliberate human action. in our case, the creation of the l shape of this lot occurred over 50 years ago by an unrelated prior owner, three times removed in the chain of title. if the appellant's argument is to be taken seriously, there would be no grant a variance is ever in similar circumstances. the case decided by the appellant is where the applicant personally bore some direct responsibility for the creation of a situation requiring the variance or were put on notice through some reported notice on title. in our case, mr emerson has no relationship with the prior owners nor any responsibility for the current shape of the lot i would like to share my time with louis butler who will talk about the design and the

sighting and address some of the other issues. thank you. >> clear the doorway, please. thank you. >> good evening, commissioners commissioners. i am the architect for the home of. i will respond to the proposal first that you are just shown to be 11 seconds. this plenty of seats. please take a seat. >> i will respond first to the proposal that you are just shown by the other architect. by noting that the two buildings that formed the compounds that he referred to, and were specifically built by descendents of the family, two sisters in a 1939 and 1940 and they were designed by an extremely important architect. they were highlighted in the film or in the last six months. they have been one of the five most important houses in pacific heights along with four other beautiful houses. it is a two house compound and one of the houses is divided into two units. not only are these historical

houses but they are executed by the family in exactly the way that the family wanted them. the same family is on both sides of this issue looking at this historically. i remodelled one of those homes and it is a tremendous example. i want to point that out as well as the fact that there is a significant magnolia in that backyard. the canopy would be severely or severely impacted by any proposals that would move into the backyard. we want to retain rear yard open space and that is why we are not sliding the building into the back because that would be in direct violation of rear yard open space. our proposal is for a 1,690 --dash 1,695 square foot unit with a creative floorplan floor plan that anticipates the needs of many different potential occupants. the house, and these are new renderings for you. this is a planning commission -- the house achieved and natural which. it is meant to be an example of how you create a new frame for a traditional house.

our house is natural. it receives into the canopy. it shields the not very attractive apartment building on the left. it is my contention that the way to view this as we are actually elevating the mansion by giving it a proper architectural frame and a politely contrasting manner. that is the way the city is developing it and that is a very good way to approach it. the lot is 91 feet wide. the house itself is 44 feet wide over 50% of the lot is open to allow one to appreciate going down the public right-of-way. it is very handsome on that lot. it is very well viewed after our proposal process executed in the perspectives. our original arborist report recommended removing the tree at the front of the law due to the fact that it is diseased and we have evidence of that. by moving the building back, we have managed to preserve the tree and it is our intention to preserve the tree. i think we are all in agreement about the tree. we want it to stay and that is our long-term plan.

we worked with two of the directly affected neighbors. both in the apartment building in the west and the related house to the south. they were previously in opposition and now we are in support. we do not see any opposition at our planning commission hearing. the d.r. and i had several meetings. we have known each other for a few years. at no time did he say he was against the meeting. is only serious concern at the time was the preservation of the tree at the height of the building. moving back is something relatively new and relatively difficult because it goes in direct violation of the section of the code that protects rear yard open space. the height of our proposal is 2. the height limit is 40 feet. we are 16 feet below the height limit and the house is 38 feet and 4 inches high. almost 15 feet higher than we are. this building will in no way threaten the stature of the mansion. why don't we go straight -- the very next block face. i will skip that slide in terms

of time and show you perspectives going down the street. this is from the west, showing our proposal behind the tree. it is barely visible. let us go to the middle. you can see because of the mature trees, our proposal hides off to the last of the mansion. it is fully displayed and more covered by its own street trees than any others. and then as you approach the property from down the street to the east, this is what you see. the allowable height limit is up here. we are down here. i think we are actually stepping back nicely on the side and shielding the apartment building to create a nice frame for the house. i will conclude with that for now and speak a bit more during the rebuttal. thank you. >> thank you. we will now hear from the department. mr sanchez great folks, please keep the door clear. find a seat. thank you. >> good afternoon members of the board. the subject property has fronts

on gough street. the project began in 2014 with the project meeting with planning staff to determine the feasibility of adding a carriage house at the rear of the subject property,, fronting on vallejo street. in 2017 -- 2016, a variance application a building permit application were submitted. the hearing was heard on december 7th, 2016. the neighborhood notification was performed earlier this year between january and february. one request was filed during that time. the planning commission heard that the item on may 24th of this year and voted not to take discretionary review, proving the associated building permit application. that letter was issued in june of this year and appeal to you. in regards to the subject lot, i do believe that this is an exceptional and extraordinary circumstance. not only in the shape of the lot

, but also just looking at the depth of the lot, mr patterson had quit over a rectangle saying this is a standard lot size, even this as just a rectangle, is not a standard lot size. the standard lot size is 25 by 100. just a rectangular portion of this lot is 25 feet wide but only eight any -- 82 and half feet deep. it is quite a bit shallower than a typical lot. the building on that lot was constructed in 1961. that is noted. it is a potential historic resource and therefore, would require additional review for any exterior changes. one of the things that complicates in addition to this, because we do see additions to potential historic resources, given the narrowness, the building of the front is quite narrow. it is only half the width of the lot and expansively gets to the rear. a vertical addition that is not visible from the street would be complicated by the shape and the configuration of the building on

the lot. also, the project architect said in addition at the rear would potentially impact the mature tree at the rear of the lots. there is a potential landmark tree on the property. that fronts on vallejo street. it has been raised as a concern before. to clarify a couple points about that, the tree itself was already considered a significant tree which means you have to have a tree protection plan. you have to avoid impacts on maps. the nomination as a landmark tree, and the nomination of a landmark tree by the h.p.c. bestows upon that tree the rights of a landmark tree during that process. so right now, you will be considered a protected landmark tree until there is a final resolution as to whether or not it will be nominated. it is only temporary whereby we apply the landmark tree requirements. that is additional requirements but related to removal of the tree.

the project is proposed to remove the tree and we propose to maintain the tree. in effect, there is no difference whether this is a landmark tree or a significant tree. in both cases, the tree is to remain protected by the applicant during this process. the five findings have been met and this will allow for the addition of the second dwelling unit on the subject property in a manner which is compatible with that of the adjacent neighborhood. the historic preservation did review the application and found the setback and the size of the building makes a subservient look at the adjacent building of the landmark site -- landmark site and for that, the department did support the planning commission -- they did support it and recommended for approval of the d.r. hearing. with those comments, i will be available for any questions but we do believe the five findings have been met for the variance. are there questions?

>> vice-president swig: when you have a historic resource like this, how are -- how is the historical nature of a building like that, including the sightlines, including the setting, you know, the whole picture preserved? what are the legal, legislated, on the record guidelines? not personal opinion, but what is there on the books to preserve something as important as this house? so if something is not built, even though it is not on a property line, or, you know, by -- in any other circumstance, if

it was to watch what modern houses and not protected houses, it would be fine. but in the case of a historical resource, it might not be fine. is there any distinction? is there any legislation or guidelines with regard to something that is a historical resource and how it is protected , more than a typical house might be protected? >> under the planning code, the landmark site is protected. it is designated. there is a very specific things and it calls up the specifics of that property and work on that property would require additional review. work on adjacent properties would not be subject to those regulations. but staff would look at it to see how it could potentially impact the historic resource and a likely tim fry is here this evening so i could see if he may have something additional to add about the review for similar projects. >> vice-president swig: i was just concerned with the issue

related to how far the proposed property comes out and if you are viewing -- it was clearly obscure. it adds to the historical nature or certainly, the charm, which is not a legal term of the property. the second thing is, correct me -- i just had a slip of memory, is the property, on which the tongue of the property on which the house is being proposed to be built upon, his is that now part of the parcel which is the other part of the l, or is it a separate parcel? >> it is combined. is one parcel. it is one l-shaped lot. i will refer to tim on the other

preservation questions, but there is no specific dimension. there is no setback requirement of certain amount of feet. >> vice-president swig: so the reason for my question is, if i am a real estate speculator, and i'm not accusing mr emerson of being a speculator, but if you build another house on bear and now you want to buy just bifurcate that tongue from the rest of the property, now you have a separate parcel and you have something that has been separated for sale which could be quite valuable. what are the restrictions? are there any restrictions related to buy for casing the property and creating a separate for-sale building which this building might be? >> the variance required to subdivide the lots because the tongue portion that this building will be built on we didn't meet the minimum requirements of the planning code for that area.

>> vice-president swig: final question. it is an extraordinary block. i drove by and i also went on google earth and i looked at it from above. it's a very, very special. it is incredibly particlelike. it is something that is not normal, every day at san francisco block. how does that fit into the variance requirements that if this little slot is built upon, that it changes the character? we talk about the character of the neighborhood. does that piece of the variance require it to fit into any one particular block where the character of the block may significantly be changed because of a significant change in the

density, and therefore the character of the block? which this block is real special >> the character of the block would be reviewed as part of the variance decision in determining the impacts on the adjacent neighbors and whether compliance with our design requirements. will be the same thing that the planning commission would look at and we agreed that it is a special block at a special site. it has been designed in such a way to minimize impacts. if anything, the building which has the most impact as the apartment building at the corner we think that the project that they propose here would maintain the tree of the front and minimizes the impacts on the adjacent properties but still adds the second dwelling unit that is allowed by the zoning. i will see if tim wants to add to the preservation discussion. >> vice-president swig: thank you. >> someone else might have a question. >> vice-president swig: i will let tim speak first. >> it even, commissioners. i'm historic preservation officer for the san francisco planning department. to your question, there is several factors that we would

consider. one is a context but too is, our preservation policies are not looked at in a bubble. we have to naturally balance all policies and goals of the city. the goal to provide extra density and additional housing has to be coupled with our historic preservation policy. as you correctly pointed out, this block is fairly unique. the landmark site has greater setbacks than you would normally see in other parts of san francisco. i would believe that the preservation plan or reviewing this would have looked at those setbacks as sufficient to preserve elements of that site. meeting the 17, almost 18-foot setback from the front property line of the new building, and the ample side yard of the landmark property. so you would still, while not have the widest perspective of that site elevation, as we do

today, in the future, it still doesn't preclude the casual observer from the street to view that through that ample side yard. those factors would be how i think the preservation is reviewing this at that time. that is not to say that it is a specific formula. certainly we are responding to the elements of this project that was proposed. if another project was in front of us, we may reach a similar conclusion with different setbacks. >> president fung: thank you. >> vice-president swig: similar question. my question is, when you're preservation planner looks at it and when you have such a difference in the façades, what is the reasoning for allowing -- i understand there needs to be density, but doesn't need to be that contemporary next to a building that has a very older look? >> sure. that is a great question. i think here it is because of

the context and you have a very mid century building adjacent on one side and then you have our landmark on the other side. i don't think our standards or our design review team would dictate a particular style for this building, considering the immediate context. but that's not to say a more traditional, early 20th century style could not fit very well here. i think it just happens to be a matter of taste of the project sponsor. >> commissioner honda: last question. in regards -- we have had several cases recently regarding property line windows. our property line -- our property line windows allowed? >> they are not protected under the code for my understanding due to fire and life safety issues. but i understand that certain provisions are provided for side property line windows as long as a property owner knows that, in the future, those may half to be removed to deal with life safety

issues. but the zoning administrator may have more information. >> commissioner honda: like i said, we have had recent cases when property line windows have been in question. are those completely co- compliant. >> on new projects you can't have property line windows. >> vice-president swig: have to acknowledge they may be blocked or removed in the future they can be used to satisfy requirements of the building code or your light and air requirements. it is not uncommon to see property line windows that look out. i see one from our office every day in a building that is going up on market street. the code does allow it. >> president fung: thank you. >> vice-president swig: while you are up but now you are down. sorry. i have one more thing. when i was looking at this and i saw the added -- i will refer to it as the tongue, when it was added to the property by virtue of an acquisition and then whatever it took to combine the property, my thought was, one of

two things happened. because why would one buy something 15 or 20 feet wide? you can't put a major house there. and my thoughts were, well, they were looking at access to the existing house or they were really wonderful people who, forever, wanted to have open space between one building and another so the world can enjoy the sidelines. that is my idealistic view of that. is there, in the files, was there, in the files, any record packets or any record of why that individual bought what was, at that point, thought of as undevelopable? was it for the purpose of gaining access to the existing property, or was it for the

betterment and beautification of san francisco? is there any dialogue in the files origins or does that just go poof into the universe? >> i don't have any information about the motives of the property owner at that time who merged the lots. in terms of whether or not it was their active goodwill to preserve that in perpetuity as open space, i think that whether they could have, perhaps, recorded an easement to say that that would be no build and dedicate it to some adjacent property, i am not sure about the legality of that. but i don't know that there's nothing to that extent. it is not as if there's anything documenting that there should be nothing to build in that area. nothing to that does nothing to my knowledge. >> vice-president swig: it could be the alternative. if we buy this strip of land, we get access to the back of our house. that is wonderful. it may not have been idealistic for the beautification of san francisco. i was just wondering if there's

any records in the files. >> except they parked their car there is what has been happening typically the setback is 12 feet 10 inches. just to clarify what the setback of the proposed building is now. >> vice-president swig: thank you. >> thank you. is there any public comment on this item? seeing none, we will move onto rebuttal and hear from the appellant. >> ryan patterson for the appellant. i think the commissioners have hit the issue right on the head here. i will respond briefly to the applicant attorney statements that every lot is created by some human, deliberate act. that is true. but for most lots, that city is the actor. this was a lot, in recent memory that was put in this condition by the owner. this is the predecessor in interest of the applicant. and heard the planning code, if

the hardship conditions, the unusual condition is either created by or contribute to bull to the applicant to, the variance cannot be granted. here, as i was trying to note, the original primary portion of the lot is rectangular. it is not unusually small for the neighborhood. there are several other lots cited in the brief that are comparably sized undeveloped. and while the current owner didn't do it, the predecessor in interest did it. we can expect that whatever condition was created there, it reflected the price when i sold it to the next owner. when that owner sold it to this applicant as well. this is why the lot set up this way so you don't get a windfall by buying at discount. and dead low and behold since you are a new owner, you get a variance of build up the development potential again. back to our proposed compromise, they are not entitled to this

variance. that much is clear. we are willing to compromise. if they slide the structure back 9 feet and saw the privacy issues in the rear, you solve direct -- install directional glass. here is a sample. if you look through in all directions, except for the appellant's windows, it is clear you look backwards toward the windows and trusted to. it is a great project. put that in the light to line a window. slide it back 9 feet and it solves a problem. what is the objection to that? they say you cannot do that because you need a rear yard variance to do which. that is what we are here talking about. all you would have to do is impose a condition that they slide it back 9 feet and put in privacy glass. to answer the commissioner posed this question about what is required for historic preservation, you cannot conflict with the general plan. 2.4 of the urban design element states that evidence to -- they

should extend to the surroundings as well. the planning code requires the development and maintenance of appropriate settings and environments for such structures and in such areas. this is a san francisco landmark this is not just any historic building. this is something entitled to a higher level of protection and commissioners i hope, will do that. >> president fung: mr patterson? >> yes, sir. >> president fung: the permit holder mentioned two things that they mitigated. one is a size of the windows and two is the privacy wall of the deck. in your comments related to those items, are you talking to the original proposal or to the revised proposal? >> i am talking to the proposal currently before the board. there is a few study eight that is submitted and i have a copy here. included in the applicant's brief which shows -- on the

overhead. this shows the views fuse release floor to ceiling will endorse windows here and to my client's window. you will see the viewpoint is chosen as the middle of the room if you use the rest of the middle -- of the room, you're looking directly in the same for this wall that they have installed here in the rear deck. that doesn't block the view into the rear of my client's house into their bedrooms. they are choosing that viewpoint deliberately. if he stayed closer to the edge of the deck where everyone naturally stabs, you are looking backwards into those windows. >> thank you. >> thank you. we will now hear from mr rubin. >> and mr butler. the purchase of those lots, commissioner swig, was 1971.

the seller was the same family for the same lots and the timing was very close. they may have been sold together they did enclose it exactly the same time. that is all we know. i feel like the appellant has done a pretty good job getting us to chase this red herring of who is responsible for creating the l-shaped lot. as i said before, it was 1971. it was in recent memory. that was over 50 years ago. and approximately 50 years ago. it is done by somebody three times removed from this buyer. louis butler will speak to some of the questions. >> a couple of quick background items, richard emerson, my client -- my client owned a frank lloyd house for over ten years. he understands historic preservation and i believe i do too. we also understand the nature of

this block. that is why the building is short and stepped -- setback. it is sent back 12 feet. i want to talk a little bit, if you could put the overhead on. these are examples of how preservation is handled in a very sophisticated level this state -- these days. that is in new zealand, a city the same age as san francisco. it is to -- it has a tremendous victorian heritage showing side-by-side modern and victorian. this is a great thing. this is positive. i don't understand the stylistic argument framed in a negative way. go to the library in new york, a very modern and understated building between two traditional buildings. this a state-of-the-art preservation in a sophisticated city. we see examples, on the far right, this is the gardner museum. on the upper right, stunning modern addition to the museum. and my favourite example oath --

of all is a holiday building in san francisco. built in 1916. the architect of many traditional buildings. this building was absolutely controversial when it was built. it became a designated san francisco landmark one year after the mansion. this old and new type of architectural process has been happening in older cities for centuries. in our city now for decades. it is an intergenerational approach to architecture. i don't think the segregation of old and new is actually a productive way to view this. i urge you to look ahead at the way that this is being handled and i think it's a very positive thing. thank you and i am available for questions. >> i have a question. two things. one, in regards to setting the property back an additional 9 feet back and then the second question is, in your examples, do you have an example of modern and new in a residential setting in san francisco? >> every new modern building built in san francisco, and

they're all over the place, is in fact a modern insertion in a traditional setting. i did not want -- bring one specifically to show you today, but you see it all over the city and see it in pacific heights. you see it in the avenues. you see it in the haight-ashbury it is not a rare thing. it is quite common speed through the reason i asked is because unlike -- anything over 50 is considered potential historic. this is a registered number 31. it has protected as a historic resource advance of -- in san francisco. you presented lovely examples in foreign countries, but since you are building in san francisco, i was wondering if you had brought an example for san francisco. >> how they build it as an example. it is exactly what we are talking about in 1916. that is why i brought that example. i realize it is not residential but it does point to the spirit of the exercise. >> president fung: to my second question, the appellants

had requested a potential 9-foot setback. how would that affect or why was that not looked at more? >> that puts the rear of the project directly into the rear yard if a potential historic resource. it would be, i think, very detrimental to other houses. i don't think it improves the a privacy between our proposed project and the house either. certainly not at 9 feet. i think 9 feet is not the right number. i think what is hard to appreciate here is that the front setback of this building, as proposed, is far more gentle than i think is realized because of the massing of that apartment building on the corner dominates everything. as you pass that building and the mansion comes into view, the combination of the apartment buildings and the trees and the reveal of the mansion, it is really the apartment building and the trees that are the dominant view blockers they are. not the proposed house. that is why we kept on sliding

it back. we are in favor of the mansion being appreciated by everyone speedily what about the directional view glass, which have never heard of? >> property line windows are permitted. they are not permitted to be operable. i will have to see if it comes in a fire rated product. if that is desirable, i would be open to that discussion. i will certainly not draw the line there. >> commissioner honda: thank you. >> thank you. we will now hear from the department. >> thank you. planning department. to touch up three points, in regards to general plan compliance, all projects in the city are required to comply with the general plan. this variance doesn't apply to the general plan. in the planning commission found that plan complies. second in regard to commence

your honda's question about finding an example in san francisco, one of the important points to look at it as we are looking at a nationwide application of the secretary of interior his standards. i think the other examples are relevant even though they are not necessarily local but they are looking at applying the same set of standards that we apply here. they apply nationwide. it is my understanding that they are silent on style. there is nothing inherently wrong with a modern building being next to a more traditional building. that may be offensive to some to see, but there's nothing that -- it doesn't violate the rules. lastly, in regards to the discussion about there have been two separate lots and now it is one lot, one herb ways of looking at this, what if the lots had never been merged? this variance to be just as supportable to build a building on this lot. again, the five findings have been met to justify granting the variance to add a single-family dwelling, bringing this up to two units on the lot and

available for any questions. thank you. -- can you comment on that issue? >> well, this is a hearing where the board can have a conditional on those lines. i would say that i would think it would be in my opinion inadvisable to move anything beyond lining up with -- there's a point where it will intersect

the side property line where the main building is. and i think that what the concern that has been raised by the property owner, i think rightly so, is that pushing it nine feet will actually push this further back such that it will overlap more with the main building on goff street. and i think that it would be reasonable to push it back three feet or so but anything further would have adverse impacts on the mid-block open space. there's also the issue with the large tree in the yard and the tree has been a concern and would we want to see those maintained? and i don' i don't know if thern analysis of impacts if it were pushed back further, an additional six feet further. but my concern would be having it go back any further than the line that is drawn by the side property line at the building that fronts on goff street. >> but addressing the question as it was asked, is there -- with a nine-foot setback or

maybe rephrase, with what setback would there be enough rear yard space to make it -- forget the aesthetics and forget the infringement on other original property, what is the legal nature of the backyard open space with a further setback? >> i mean, this is a rear yard variance and if you move it a foot or three feet -- >> it doesn't matter? >> i think there could be a concern potentially with regards to usable open space if it's moved back too far back. for the usable open space. but, i mean, i think that it were to be moved back nine feet it wouldn't become -- it wouldn't violate the code in other manners other than the rear yard which is the variance. >> vice-president swig: which is before us anyway. thank yo.