office that this was being used as a business office. there was an expansion -- inspection. they confirmed that and they conferred with d.b.i. and they did access it. they determines there was a location at that time. kitchen was installed by july 13 th of this year. but in august of this year, additional complaints were received that even though the kitchen had been installed, it was still being used as an office space and not being used for residential purposes. that led to the issuance of the notice of violation that even though the kitchen had been reinstalled, it was actually not being used for residential purpose and was being used as an office space. that helped clarify that if there is a kitchen in there to some degree, how that kitchen is laid out or set up or included is not clear. >> what is the penalty for candy -- continuing to use the space as an office outside of code? >> for any violation in the

planning code, if you fail to abate the violation, the maximum penalty is up to $250 a day from that point on, as long as the violation continues. >> even with the permit, the notice of violation can be satisfied by the office use could continue. what would happen then? >> it cannot continue, essentially. it has to be used as a dwelling unit. now that the notice of violation has been issued, and it was abated, because of this permit and assuming some other associated documentation, the notice of violation has been issued. if the violation continues, than these can begin to approve. >> thank you. >> i have a question. sorry mr teague. the property, evidently, by the tenants that are on the property , say it has been vacant since 2015. in san francisco, we do have vacancy controls. aren't they supposed to -- and

then the other thing is, they are a block book notification -- is there a black book notification. >> not that i am aware, but i can check. >> is bbn only good for building permits are planning staff? >> it is for any permit or any other application that requires review by the planning department. >> if there is not, it is recommended somebody gets a b.b.n. so if the owner were to file any permits that they will be notified. >> true. but only if it requires planning department department review. this permit, this is subject -- he did not require planning department review. it would have not triggered the notice. >> thank you, very much. >> thank you. okay. >> there are plans. two sets to appeal the kitchen. sorry about that. i misread it. >> thank you. we will now move on to public comment for this item.

okay. if you can please approach. how many people are here for public comment on this item? okay. may be not to eat too many. if you can be prepared to speak. go ahead. >> my name is john. i am a neighbor at 90 alta and i was going to represent diane english for seven a and seven c. but since that -- we are not doing that tonight. i just want to make clarification on this remodel in unit five. the notice of violation was for an office and they complied with that notice of violation on the permit. the permit application to comply

with results. they put a kitchenette unit. a refrigerator. so the original part was nice cabinets and refrigerator, stove , you know, normal set up. and to comply with the notice of violation, they put in a kitchen , sink unit and a refrigerator. that is why the permit was abated. i don't know. oh,. overhead. it is not showing up. i'm sorry. anyway, so this new permit here for the kitchen remodel is actually, everyone keeps saying it is a kitchen but it is actually the reading of the permits as kitchen and bath replacement.

a renovation of kitchen and bathroom replacement of a partition wall. so they said they did have plans for that. i can testify that right now that the apartment is totally demolished as far as walls go. they tore out walls and they tore out sheetrock and it is in the middle of construction. i want to clarify that situation >> thank you. >> you are saying the property has been demoed prior without a permit? >> it was probably demoed with this permit but they have not done any work to restore it. >> thank you. >> next speaker, please. public comment. maybe if you could come forward to be prepared. thanks. >> thank you very much. my name is roxanne davis. i live at 40 alta and i have

been there since 1981. this is just to show how duplicitous the owners are. the units that -- the whole thing with the office, a tenant died and then they called it a temporary office that they tore out -- the reason they tore out the kitchen. they tore out the kitchen and put in seven or eight computers. we paid our ranch they are. it was the office for almost three years. -- we paid the rent they are. it was the office for almost three years. out of the 12 units, they have four of them and they are keeping two off the market and the owner, when he moved in and bought the property, he was really dismissive to say this is just an investment property. [please stand by]

e >>clerk: thank you. next speaker, please. >> teresa flandrick. i actually work at senior and

disability housing and policy. this whole situation here came to me at a point where i'm actually very familiar with jerald balzer, the owner. back during the first dot-com era in terms of he bought a home on my street on lombard, and he pushed everyone out, saying there were renovations. and one person fought to get back in. but with these remodels, this building became commercial rentals for many years. the neighbors still look out across the street to what's going on. this was very important to our tight knit north beach

community. when we see also with balzer riding on his secretary of state statement -- see, he owns several buildings. the problem is is he's also said that he has an office in 567 lombard. this is, again, the seven unit residential building on lombard street. so he has that address in one place, he has another address as his principle business address being 517 lombard. he also has a service of address address at 429. he immediately upon buying that tried to negotiate buyouts with the tenants. the building is now vacant, the

four tenants that had live ind that building. this building is empty, but this might be his other business address as well as his 567 lombard and 579. so the point is we see all of those inconsistencies. how can you have so many different addresses, and which are your actually business places, and does this mean units at the lombard street building are also being turned into office since they were -- had to close down the alta street one. so i just really want you to please make sure you are monitoring this? the joint commission, the planning commission, and building inspection, they talked about this exact same thing on

april 12, alterations without building permits. >>clerk: okay. is there any further rebuttal? okay. miss duffy, you have three minutes. are you going to take the rebuttal time? >> yes. >> sue hester again. i'm asking this board to continue this item to january so that briefs can be prepared, given the craziness of this situation about unit five. unit five is office and not office, and the developer is doing construction and has had a lot of permits that he's applied for. this owner seems to be very proficient in doing over the counter permits that never get

routed to planning. planning commission has jurisdiction whenever uses change, has to go to planning. they just ignore that, do it on their own. there needs to be an opportunity to give this board the information on what is happening on unit five in the context of this really ridiculous stairway evictions that weren't real until today, when they got a permit to cancel the permit. i ask you, you have jurisdiction over b, which is unit 5 and 50 -- 50 alta. planni planni planning should meet with the neighborhood people and understand what the hell is happening. there's all kinds of end runs being done on this property, on other properties that are similar to this by this same

owner, evicting the tenants. we're losing housing in this manner that is bit by bit, but it's real, and the people are moved out of the city. and you have the ability to say what happens on unit five? i ask you to continue this hearing until january if it's convenient for you, just to have briefing done that no one was able to do because all of this stuff at the last 24 hours was not briefed. the developer has never submitted a brief, he just gets permits from d.b.i., and he gets permits from d.b.i. without plans. we don't have plans. thank you. >>clerk: thank you. okay. is the permit holder's

representative, it's rebuttal time. do you have anything to add? >> commissioner honda: i have a question, counselor, please. so, sir, i understand that you did not supply a brief for a and c because you felt there was inconsistencies in that. is there a reason why you did not supply a brief for item b in regards to the kitchen. do you not need a kitchen? >> i'm sorry. is the question -- >> commissioner honda: why did you not supply a brief for item b? >> i didn't feel i needed to supply a brief. i was instructed by the client not to submit a brief. >> commissioner honda: how many ellis acts are you in the process of doing or have you done recently with this client? >> i haven't done one ellis act for this client? >> commissioner honda: okay. and is that a service that you

would normally provide for him? >> our firm provides ellis acts for our clients. >> commissioner tanner: were you aware of the acts received in unit five? >> i was aware there was an m.o.v. but i was not involved. >> vice president swig: you seem to be representing a client that you know nothing about. everything you say, i don't know anything about. let me get more specific because you're asked how long you represented the client. i believe you said sometime in july or august? >> well, that was for this assignment. you're asking me -- >> vice president swig: okay. thank you. i didn't say anything, because i'm kind of upset. is there somebody in your office who has represented this client on this matter? is there somebody in your office who is aware of the n.o.v.? is there somebody in your office who has participated in ellis

actions in this or other properties of this client? >> i'd have to go back and look at this client's file. this client has been -- >> vice president swig: thank you. obviously, you can't answer -- you're being disagreeable. >> no, that's not true. now you're asking me a bunch of broad questions. >> vice president swig: no, i'm asking you very specific questions. >> no, no, no, no. >> vice president swig: yes, yes, yes, yes. >> you're asking me of doing an ellis act for this client. i do a lot of ellis acts for clients. i don't know of one pending for this client. >> vice president swig: fine, then that would be you don't know of an ellis act pending for this client. >> fine. >> vice president swig: then that's your answer. is there somebody else in your office since you seem to know nothing about your client which has participated with your client on this property and participated in any activity who

would have nothing of the n.o. -- nothing of the n.o.v. and any activities at this property? >> i cannot speak to the meetings that mr. wiegel and this client have had, so i'm not going to speak to that. >> vice president swig: okay. >> commissioner tanner: what did you imagine was going to happen when you came here tonight? >> this exact circus that happened here tonight. >> commissioner honda: and i'm sorry. i've been calling you counselor. are you an attorney at law? >> i am. >>clerk: okay. [inaudible] >> president fung: excuse me. you can't speak from the audience, but you guys have the time. if you guys want to present something representing the permit holder, you're welcome to use your time. >>clerk: well, they --

[inaudible] >>clerk: right now, we are on rebuttal. how much time do they have left, gary? [inaudible] >>clerk: okay. so we have three minutes for rebuttal. if you want to have the property manager speak during the rebuttal time, that's fine. >> well, maybe we better approach -- >> president fung: no, no, the question is do you want to use your rebuttal time? >> sure. >> president fung: okay. then start the clock. [inaudible] >>clerk: he was answer questions. please don't have a seat. >> i don't have a prepared statement. >>clerk: and if you could identify yourself, please. >> my name is renee england, and i manage property on behalf of jerald balzer and have done so for the past 11 years. i'm happy to answer questions but don't have a prepared

statement. >> commissioner honda: i have a question. so how many ellis act has your client done. >> one. >> commissioner honda: and reporting o.m.i.s or client evictions, has he done any of those? >> not to my knowledge. >> commissioner honda: okay. and were you aware that they were using that particular space, unit five, as an office rather than a rental dwelling unit? >> i was using that space. the purport was that the -- purpose was that the elderly gentleman who had occupied that unit for 50 years without any unit renovations had passed away. and rather than keep another dwelling unit off the market, we chose to go in there while we tried to work out some logistics for remodelling that whole building and making it a better place for the people who

currently occupy it w. was really not a habitable apartment in our opinion, not to the standard that mr. balzer likes to provide housing for, you know, for the residents of san francisco. >> commissioner honda: do you help your client with the permitting process here in san francisco. >> no, not directly. >> commissioner honda: were you aware that that -- by changing that to an office was in violation of our city and county laws? >> no, and we really didn't change it to an office, but i understand the distinction at the time, and then, we did everything we could to comply with the n.o.v. by installing a kitchenette and ultimately just vacating it altogether and filing permits to completely renovate it so we could return it to the housing market. >> commissioner honda: and then, were you aware that a permit was required when you removed the original kitchen and converted it to an evening office?

>> yeah. so there was a little kitchenette unit in there to begin it. it was an all in one contained -- it was a stove top with an oven and refrigerator all in one, and most of it wasn't functioning. the refrigerator no longer worked, the stove elements didn't work, and the oven didn't work. so i didn't even think anything of it to remove it. and then, when we had to reinstall or got the n.o.v., we got another kitchenette type item and put it where that renovation was. >> commissioner honda: okay. and then, the question was has there been any work done to the property to your knowledge, period? >> yes. >> commissioner honda: and are you aware that permits were gotten on each one of those or you're not -- >> the only one that i'm aware of that didn't -- from what i heard of the discussions today

was miss english, one of the appellants, before i started working there, i believe it was after shortly mr. balzer purchased it, took it upon herself to install some windows. it kind of created some conflict. >> commissioner honda: looking at the pictures, i don't see just one unit, i see multiple units with replaced windows. >> it's a 1950's era building. we've rebuilt a couple of window frames, wood window frames that rotted from weather, but nothing else to my knowledge. >> commissioner honda: okay. thank you. >> how long have you been working with this company? >> so i'm an independent property manager, and he has been my client for about 11 years now -- just over 11 years. >> and do you have this other property and other properties, as well, that you manage? >> yes. >> thank you. >> and to clarify on the unit five, you said you're doing a

bathroom and the kitchen. and is the intention then to put it back on the rental market? >> yes, absolutely. once that work is completed. it may be logistically that stairs or some sort of service is interrupted, but ultimately, yes, that's what we want to do. >> okay. >> commissioner tanner: and were you or other members of the company using it as an office there? >> i was using it as an office space, yes. >> commissioner honda: thanks. >>clerk: okay. mr. kern, do you have anything to add? okay. commissioners, the matter's submitted. >> president fung: who'd like to start? >> everyone looks at me. >> president fung: well, i'm going to propose that we need to see the drawings, and i think we need to see what the scope of work has been done there, and how it matches up with the drawings, so i'm prepared to

continue -- make a motion to continue this case. >> support that. >>clerk: okay. and we have january 23 or the 30. >> president fung: 23. >>clerk: okay. so -- >> president fung: does 23 work for both parties? >>clerk: do you want to clarify when you want the plans submitted? >>. >> president fung: yes. we'd like to see copies of the permit drawings, and we'd like to have d.b.i. do a correlation either through a site visit or review of the documents with what has been done on-site. >> may i ask a question -- well, first of all, mr. kern, can you step up.

just trying to alleviate a car crash here, which is probably going to happen any way, so what the heck. how -- the new permits -- the permits that were suspended or -- and administratively flushed down the toilet earlier this evening, when -- those have been reapplied for at this point? >> yes. >> vice president swig: all right. based on typical timing or your own vision of possibilities, when do you see those permits probably getting appealed? >> as soon as they're issued. as soon as they're issued. >> vice president swig: so i can see what's going to happening. i think if they issue them, we're going to appeal them, but think cleaned up the language as far as the verbiage. that was the reason they put

down for the cancellation. >> vice president swig: regardless of that, you probably pretty much see that they're going to be appealed. so now i'll turn to president fung. if these items are going to be appealed, shall we try to get them linked as they were originally, in their original form, to the overall -- >> commissioner honda: scope of the project? >> vice president swig: scope of the project. >> if i may, it could take longer to do it that way. i don't know. planning might want to weigh in because they might have to get involved with the stairs, if there's any difference with rear yard set backs. there's structural aspects that have to be looked at. i think the drawings that they would submit for the stairs would be a little more complicated and involved. >> vice president swig: okay. i'm just trying to see if we can prevent serial hearings so that we have these -- you know, so

that everybody isn't coming back week after week on -- you know, on a series of hearings on the same -- on the same property where they might be linked. that's all. so maybe i'm using common sense, which is fundamentally wrong. >> commissioner honda: can i jump in here, mr. president? the situation is looks like a duck, quacks like a duck. this permit holder has reached out for multiple permits. can we stop any permit on this project? >> president fung: i think we need to deal with the permits, which we're not doing currently. >> commissioner honda: okay. >> vice president swig: yeah. >> to answer mr. honda's question, we have an address restriction, so no permit can be

issued until they're reviewed by us. >> commissioner honda: okay. thank you. >> it seemed like there has been work performed without permits prior to this notice of violation and trying to correct it beyond just the office, removal of the kitchen. is there something to really investigate, like, what has happened here? i've heard there's walls taken down, and what kind of permit somebody needs to get for the percentage. >> i don't know if we can look back in time, but we can ascertain a site visit to see if it was within the bounds of this permit before it was suspended. beyond that, we can issue a notice of violation for the penalty of that work involved. >> commissioner tanner: okay. thank you. >>clerk: okay. so president fung did make a motion to continue the matter till january 23, 2019 so that

the board could review copies of the permit drawings and d.b.i. could do a site visit for this permit. so we would want these plans the thursday prior to the hearing. and are we going to allow any additional briefing? >> president fung: yes. >>clerk: yes? and with what page limits? >> president fung: this would be our -- on our abbreviated schedule, so they can have three pages. >>clerk: three pages. with exhibits? >> president fung: yes. >>clerk: so on the motion -- so that would be a motion to continue this matter to january 23 so we -- as i previously indicated the reasons. and on that motion -- [roll call] >>clerk: okay. so that motion carries, everyone is aware of the limitations in

the briefing, and you need to serve the plans on the -- all the parties, okay? and the board, 11 copies prior -- on the thursday prior to the hearing. >> president fung: okay. let's take a break. >>clerk: okay. we're going to take five [ gavel ]. >>clerk: welcome back to the november 14, 2018 meeting of the board of appeals. we are now moving onto item number eight. this is appeal just 18-131, subject property 898 north point street. serge etcheverry and etcheverry l.l.c. versus the zoning administrator, protesting the granting on september 21, 2018 to waterfront management, l.l.c. of a variance decision, a modification of a prior approval of a variance decision by

removing condition number one, which required the portion of the subject property that was transferred from the adjacent lot through a lot line adjustment to remain as pope ace in perpetuity. up to a maximum height of 13 feet. any decks and associated railings above this first story must be set back at least 5 feet from the shared property line. and we will hear first from the appellant. >> actually been quite a while since we've seen you, mr. williams. >> yes, it has. not long enough, but good evening, president fung, members of the board.

steve williams on behalf of the etcheverry family, and they're the owners of 3030 larkin street, and they're the property that own the subject variance. waterfront management, l.l.c., does not have standing to make the application that's in front of the board. a variance is entitlement that belongs to the property. this seems to be a lot of confusion from waterfront and the acting z.a. on this point, and their briefs did not address this at all, other than to say the z.a. has ability, but this isn't their property area. this is brief 20. 11 was the original etcheverry

lot, and 10 was the original waterfront lot, and this is the area that they gave up that the etcheverry owners that that owner deeded over to the waterfront owners. and it served as the open space for the property since that time, for the last 47 years. if you looked at the original configuration, lot ten was too small to develop, and the owner at that time specifically asked if he could use this area from lot 11. and he agreed, at a huge discount price, because it couldn't be developed. and he had already built the application -- the apartment building, so he said yeah, and that's why they both decided to share it. so the transfer of that portion

was made strictly conditional, strictly conditional on that lot remaining at open space -- as open space, and it has done so because this lot was too small. the corner property did not need a variance, and it was not granted a variance. it has no right to effect this particular variance. as the idea that it was held jointly or the variance somehow is belonging to both properties is just not true. it's simply incorrect. so if you look at the variance, it was granted specifically at 3030 larkin street, and it can only run with that property. and that's why the department has been completely unable to come up with any similar cases. i served a sunshine request saying, you know, you did not use my argument of outstanding to make this application. show me one other case where this has ever happened, where a neighboring owner has been able to change a variance owned by a

different property. that does not happen. a variance is a permit that's issued to another property in lieu of other permits. so just as the variance runs with the etcheverry property, the n.s.r. that was put into place as a condition of the transfer of it also runs with the waterfront property. and when waterfront purchased their property in 2009, they were given actual notice, and they admit that in their brief for the first time, that they did receive notice of that n.s.r. in 2009, and they had it again in 2015, when they submitted another notice for the etcheverry variance. the title report that waterfront got also said that.

so if you look at exhibit 15, you'll see that the variance is clearly in the city's records, it's on the map. it's listed specifically, and so this is a case of fundamental fairness to give both parties exactly what they purchased, and what they received statutory notice of. so in addition to the notice and the standing issues, the new variance decision is fatally flawed, as well. first, it sites the existence of the variance in the n.s.r. as the hardship. if you look at exhibit 2 on page 4, you can't do that. you can't buy a piece of property that has an n.s.r. on it, has a variance on it, and has a notice of that, and then say noeroh, that's a hardship. i need a new variance.

second, the job of this board is to determine if there's substantial evidence somewhere in the record in front of you that supports the findings of the z.a. and whether the findings meet the threshold that's been met. the new threshold is based solely on parking. there's nothing, i mean zero evidence of any kind that supports that decision, zero. it was never mentioned in the application, it was never mentioned at the hearing, and none of the briefing mentions it at all. and to grant a variance on parking for this new project is directly contrary to all of the new city policies. and in fact in two weeks, all of the minimum parking requirements are going to be completely eliminated. and specifically, this is in the waterfront special use district. section 161 creates an exception for this. you don't even have to have

parking there. so to say that this doesn't cause harm to the neighbors, to say we can grant this variance because it doesn't cause harm to the neighbors is completely and utterly wrong. this is going to cause devastating harm to many of the next door who are here tonight, long-term rent controlled neighbors that are in the etcheverry property of the one of the properties in the back, and the occupant of that is here. one of the apartments in the back is going to be rendered uninhabitable space due to exposure issues, and that's not been addressed by the department at all. so you know, this -- this new variance that was granted should have never been taken in by the department and should have never been granted. i hope you had some time to spend with my brief. i know it was a dense one, but this was incredibly important to the etcheverry family, and they're entitled to have that variance. it's in the city records, and they paid for it.

thank you very much. >>clerk: thank you. now is the attorney for the determination holder present? maybe you can raise the microphone, too. thank you. >> hi. jeremy schab of schab architects. the hu's request that the members of the board affirm mr. teague's decision. the hu's purchased the property

in 2009, their site permit was approved by the planning department in october 2015 and issued in 2016. our addendum drawings were filed in february 2017. that april of 2017, we discovered our site is hindered by an n.s.r. requiring the northwestern part of the lot must remain open as open space stemming from this old variance decision. in 1970, our adjacent owner to the north wished to subdivide his property. george imperiali wanted to sell a large portion of his lot, and arthur court, the preceding owner of our property wanted to buy that property as mr. williams stated. the subdivision would cause 3030 larkin to be in violation of several requirements, yet a variance was granted.

the 1970 decision transferred an area to our ownership as an area to remain an open space in perpetuity. that's depicted here. 3030 larkin, the appellant's property is now over here. subsequent lot adjustment created a new lot, lot 22, and that created our new parcel, 24, which is the subject site. to address mr. williams' concern, the variance was on all of this property. we now own this, so we have standing. i don't know how that's hard to understand. because of all these reassignments, the records were muddled to say the least. before preparing plans, the architect and i went and searched at every building permit on the hu's property. we looked at every building plan and researched the entire city

history. the simple fact is that neither the hu's, the architects nor variance city employees saw the recorded restriction. at that point, the hu's acted in good faith and notified the planning department that there was a discrepancy. here's the p.i.m. map and project planning application that i printed out yesterday. we sought this variance to modify that old condition of approval. had we known about the n.s.r. back in 2014, we still would have pursue this had change. our hardship is not due to overlooking the n.s.r., assist based on the excessive size of the open space and the corresponding reduction in the buildable envelope.

this is our proposed site plan right now. this is what it looks like with the recorded n.s.r. area in the hatch. at a hearing this requirement would mean cutting 10 foot from a number of residential levels, the ground floor and basement would be reduced by 30 feet, effective effectively eliminating almost all of the commercial and parking levels. this may make a small mixed use project economicallien feasible. at this time, the hu's have a fully entitled project and are fully ready to bid construction of the building. another change may take years. this amount of hardship warrants the variance modification. one main ambiguity is the definition of open space under the n.s.r. the 1970 decision states the apartment building on lot 11 is not developed in a manner using open space that would be transferred to lot ten other than as light and air to windows

on the south side of the building. the transferred area was never usable open space as we currently understand it. instead of the promised open plaza, the area has served as a surface parking lot. it does provide light and air to the etcheverry building. we understand mr. etcheverry is concern to light and air in some apartments in 3030 larkin, as would be the case in almost every development. without such an easement there is no statutory right other than what the planning code acquires. our plan had provided a fully compliant 20 foot year yard and yet we have continue today revise the plans. our latest building plans which were attached to the variance decision show a greatly reduced volume in the rear of our building. this was the approved building, and this is what we have currently worked on with the

zoning administrator. sorry get that above the closed captioning there. we've moved the -- removed part of the commercial space and replaced it with residential, so we have a full 20-foot rear yard with appropriate deck set backs. perthe z.a.'s new decision letter, the revised plan is consistent with the letter and all sections of the planning code. the city and its residents are not wronged by this modification. mr. etcheverry's building continues to have access to light and air and his 1970 variance still exists for his noncompliant building. unlike the original decision, this project seeks to remedy code discrepancies instead of creating them. that variance created self-imposed hardships. you have seen letters of support from 24 neighbors, some of whom

are here to speak tonight. there are many reason for the board to affirm this vision. if major reason for the open space was future commercial development, this restriction is no longer valid. most importantly, given the hu's proposed kblg complies with alternate and current planning codes, we ask that you uphold our variance. >>clerk: thank you. we will now hear from the zoning administrator. >> good evening, again, president fung, commissioners. cory teague from the planning department. this is an interesting case. i know that you have three lengthy detailed briefs that were submitted. i really do hope that you read them all. i'm not going to even be able to come close to address everything that was raised.

i would disagree with the appellant's statements that the decision letter and the briefs submitted by the planning department do not address any of the issues raised. i feel like they address all the issues that have been raised. the variance decision letter was more detailed and lengthier than a typical variation letter precisely for this reason because it is a complicated situation. i will just try to give a little bit of background and information and will definitely be available for any questions you may have and try to cover as much under rebuttal as i can. the proper here is 898 north street. it's currently zoned c-2 in a 40-x height and zone district. it's a multiunit residential building that fronts only on north street which is not part of this proposal. as was discussed originally, the property owners submitted a building permit for demolition of the commercial building and new construction of a five story

unit and because this property is located in the c-2 district, a commercial district, assist not subject to neighborhood -- it is not subject to neighborhood notification and also not subject to preapplication meeting requirements with the neighbors. however, the property owners did conduct a preapplication meeting in november 2014. the owner and residents of the appellant's property at 3030 larkin street were invite today that meeting but did not -- invited to that meeting but did not attend. the plan was subjects quently reviewed by the planning department and issued by d.b.i. in february 2016. that permit was not appealed. as was mentioned, the permit holder was going through an additional subdivision process after the site permit had been issued when at that time they discovered the n.s.r. on their property regarding the original variance from 1970. as is mentioned in the letter and the briefs, because the

variance actually provided variances to specific code controls for the property at 3030 larkin street and did not grant variances to 898 north point street, our on-line record provided variance information for larkin street property but it did not show up on the 898 north point street property, so that is why staff did not see that. and ultimately it was not brought to our attention until after the site permit had been issued, and it was clear that pera condition of approval for that 1970 variance, there was this 30 feet set back open space requirement at the rear of 898 north point. just quickly, that variance as it was described was required because of a lot line adjustment between the two properties. and with that lot line adjustment, the property at 3030 larkin street got smaller, and

it was already essentially over density. so it required a variance from lot density and from recovered usable open space. so the actual variances grants were only for that property at 3030 larkin street. however a condition of approval applied to 898 north point street. the permit states that any variation at 174 is a requirement of the code. it's subject to the code, just like anything else. if someone gets a condition on their property that says there shall be a 10 foot set back in the rear, it's tantamount to a new rear yard. any quantitative control of the planning code can be varied by the zoning administrator with some exceptions. so in this situation because the proposal here was to only modify

the condition of approval which created this 30 foot set back or open space area on 898 north point and did not propose to change in any way any of the variances that were granted to 3030 larkin street, it was clear that the property did have standing to file the variance. once you get over that hurt will, the primary issue turns to what are the impacts to the property at 3030 larkin street? and the original proposal from the applicant was just to remove that condition completely. we weren't comfortable with that approach. we thought it was reasonable to relook at this development in the context of today as opposed to a development context 50 years ago that didn't actually come to full fruition. if you look at what was approved, it is a code compliant project that is very similar to this lot configuration in the

city, and you have basically a ground floor level in this lot, and basically a subterranean level going to the other lot. there are two units in 3030 larkin street that would be somewhat affected by this. both those units have their primary windows fronting on larkin street and at the rear. the windows are small and secondary windows, and the light well is an interior stairwell. so given that context, and the fact that you do have this sloping lot and there are limits on where vehicular access can go on this lot, the determination was made that if that is made, the absolutely lowest it can go and still allow vehicular access from the lot, that that would be a reasonable state for this property. again, there are many other issues that have been raised in

the appellant's brief, and here today, i'm happy to address any of them, but we do feel that the five findings were met to issue the variance. thank you. >> vice president swig: mr. teague, i'd like you to sort something out for me. >> sure. >> vice president swig: so last week, we heard a -- an item, and it resulted in approximan n.s.r the n.s.r. was a space within a new residential building will be continued as a small manufacturing and in perpetuity. >> 19 street, yeah. >> and that means forever, that's going to be small manufacturing space. it's not going to be office, it's not going to be anything else. in -- in this case, there's another n.s.r. which would mean something -- if an n.s.r. is forever on the other place, this would be an n.s.r. forever on

this. but are you saying that this n.s.r. was juxtaposed to the larkin street building, it was a requirement placed on the larkin street building as opposed to the north point building so that when -- as part of the transfer so that when the north point building transferred, they had the right to come back and say okay, we don't want that n.s.r. anymore that we required when we did the transaction in 1970? is that -- >> i'll try to answer that the best i can. so one thing that's helpful to keep in mind is that an n.s.r. is not the actual restriction, it's just a notice of the restriction. so the n.s.r. is just a tool to make people aware that there's a restriction on this property. it does not serve as the actual

restriction. the actual restriction lives in the variance decision letter that says this variance is granted on the condition that. so in the planning code, just to switch gears a little bit, because this is more a planning code issue than a variance issue, if you get a conditional use authorization for anything, maybe hours of operation, sometime in the future, you can come back and request that the plan commission modify or -- planning commission modify or remove that condition of approval. the general principle is no current zoning administrator or no current planning commission can kind of tie the hands of a future zoning administrator or planning commission for various reasons. so in this case, the reason the n.s.r. was recorded on both properties is because there were restrictions on both properties. even though 3030 larkin street was the only property to receive

the variance because the lot line adjustment did not trigger any nonconforming situation for the 898 north point street property. it only created the nonconforming situation that triggered the variances on 3030 larkin street, but because the decision did include a condition of approval that was a quantity thaitive restriction on 898 north point, then the n.s.r. was also recorded on that property because that restriction was documented or was made part of the variance decision. >> vice president swig: so does that mean that, for example, going back to last week, we were fairly furtive about saying okay, we -- we will go ahead with our support of this development, but, you know, forever and forever, this space has to be, you know, small manufacturing. but does that mean that when we're dead and gone, let's see, how many -- that's 45 --

>> 50 years. >> so probably 50 years from now, won't be around. yeah, you may be around, but when the next zoning administrator comes in, that he could pull that restriction on that property that we dealt with last week? >> not the zoning administrator. the planning commission, yeah. two years from now, the property owner could apply to have that condition modified. that would -- they'd have the right to do that. now, clearly, the planning commission at that time would have the full context of the situation on how the condition came to be, that obviously plays a role, but in terms of what is their legal ability to do so, they would have the option to do that. and the same is true for conditions of approval for a variance. >> vice president swig: so basically, restrictions are at the -- at the will of the -- the planning commission and -- i mean, in this case, let's say

that mr. etcheverry and the owner of the north point property -- sorry, just forgot his name -- decided okay, one thing we're going to do, we're going to keep this space open. we're going to make it a restriction on this property, and so that really -- they were pipe dreaming because along comes 50 years, and some successor planning commission can say well yeah, they did that, and that was fine for them 50 years ago, and so things have changed, and so we're just going to blow it off. >> well, in this case, at this time, the property owners may have been amenable to the condition, but the decision was the zoning administrator's to grant the variance or not vagra the variance or apply the permit

or not. >> vice president swig: they were ill advised by counsel probably, and they should have gone to an easement if that's what they wanted to achieve. >> we're talking about this 50 years from now. i don't know if that was on anybody's mind at that time. there was a proposal for commercial redevelopment of the site, so i can't speak to what was on their minds at that time, but that would have been another option if they wanted to have a control over that property that was outside the realm of a decision by the zoning administrator or the planning commission. >> vice president swig: so mr. williams' point of view really doesn't matter whether mr. williams is right or wrong or it does -- that the hu's or right or wrong. it is up to the planning department 50 years later, and placing a new context and

responding to a request in this case from the hu's as to how the use of that property is going to be. is that the bottom line? >> the restriction only exists because the zoning administrator adopted it as a condition of approval to the variance. the variance is still in play. 3030 larkin still needs that ra variance. >> commissioner tanner: just to clarify, so the -- the larkin street property, and this was approved and the project is dlt, do they need -- built, do they need additional variances in order for their project to be -- it's not conforming because of the variance, but is that still okay? >> that's the