>> this is a very broad potential use, isn't it? >> that's correct. it's one of the reasons we do look at the new uses and kind of new companies. the lab definition is broad and more than just biological labs, kind of like what you would think of with chemists and beakers and things like that.

especially with the way companies and tech companies are evolving today, we really do dig into what the types of products that they're using and then proving that they fall within the lab definition and not within the office definition. we drill down pretty fine grain in lay-outs, business operations, making sure that what we this doing is is consistent with what the land use definitions that we have are consistent with the codes. they go through the letter of determination. we will have the company off employ and help prove why they are, for example, a lab use or pdr use or other types. >> any concern would be different than commissioner

moore's and this is a residential district. if you put a bio chemistry lab in there and you get into the issues of toxics and other things, which may not be a compatible use. >> sure. keep in mind within the definition, the commission does have the ability to restrict portions of the definition and if the concern is bu biological laboratories to the adjacent, you can basically state that a biological laboratory should not be permitted or chemistry or biochemistry laboratory should not be permitted. but it still leaves interpretation for other things, like engineering labs, quality assurance and things like that. >> commissioner richards?

>> you are telling us a letter of determination makes me feel for comfortable and any type of lab will have a computational device on the desk i and i can't imagine one that wouldn't. i would like to approve it with conditions that tenants have to have a letter of determine augusts anationand the new tenad however you said it and i would like to move to do it. >> the commission of approval that says any future tenants must prove themselves as laboratory use. >> commissioner moore, weigh in first. go ahead. >> i am hesitant to see bio-med as a potential bio lab. we're strongly supporting

additional expansion within the mission bay corridor and you think this is an isolated occasion i would have great concerns about that. >> mr. loper, did you want to something. >> just briefly, some tenants have letters of determine augustationand if that's a condi would suggest it's written more broad and they need to get a new one. >> if the tenant had that, they would have met that condition. >> commissioner moore, did you want to say something else or second the motion? >> i would like to add that we consider excluding biomed laboratories in location. >> you who put biomed/chemistry then. >> just to be specific in how it reads, we have a category for chemistry, biochemistry and a

analytical chemistry and if you were to exclude those two, that's what i would recommend, is to defer back to what we have in the planning code. >> let's do that. >> you know, i'm not sure why woe do that. i mean, you know, we're not -- this is not manufacturing. this is not chemical manufacturing. this is laboratory use and we have all kinds of controls now to make it clean and safe. i'm not really sure why we would do that. >> if i may add to that. mission bay has a lot of labs, as well as housing. the concerns that were really in place in the '80s, when the mission bay plan was adopted to

separate that, none of that has come into play. you mean, there hasn't been those kind of issues that have arisen. >> commissioner moore. >> aren't the buildings in mission bay all billed as biomed specialty buildings? they're for a different purpose than a laboratory and for that reason that i believe that extra degree of caution in a high density residential area such as lincoln hill on spear street requires additional caution. >> what i'm afraid of is being too specific and ruling out uses that could be perfectly fine and so, i just want to understand, like, what we're doing in not painting with a broad brush. a lot of stuff that is perfectly fine. so i am sorry, steph?

i just want to add a note that this cu is technically to allow for a new nonretail self-use for more than 25,000 square feet and technically, now there are two uses of retail service use that's over 25,000, which is ise and office. >> what is ise? >> international service exchange. so if the applicant would change the use into a laboratory use, now ofnowadays, they would not e an additional use authorization. a portion of it, they can only, basically, change a portion of it to a third nonretail non-service use over 25,000 square feet that requires a cu.

>> i think you confused us more. [ laughter ] >> i think at the end, what planner leing was saying, we have a large use and they're establishing a new large use on the site. when you have established uses, we don't require you to come back and reestablish one of those uses, basically, is what it's saying. so, like, in the future, as they switch out the ic, they may not come back. >> this is why you want a prohibition? >> yes. >> mr. loper?

>> i would push back and the architect is here to explain what's going on in the interior of the building. a lot of work has to go into make these buildings ready for lab tests and to an older house and setting up some petri dishes. this is next door to a data farm and i'm not sure this is a really dense residential district in the immediate context and so the architect is here and can walk you through all of the work being done to prep this for a nonoffice noncommercial user. >> commissioner richards. >> so just like when somebody gives us a dr on a project next to them and they say, it will undermine my foundation. we say, that's a dbi issue.

i hear what mr. loper saying, if they want a laboratory, there's certain safeguards in there and obviously any urban area laboratory something could go wrong and chemicals could come out and harm people but we have these labs all over the place and i feel comfortable leaving it as is, with a laboratory use. , with no restrictions. >> there's an element of safety but an element of nuisance in laboratory buildings, but they're required to filter and they throw it out at a high velocity and therefore, the noise factor is much greater with laboratory exhaust systems than regular use.

>> commissioner moore? >> it's the detail of osha and simply regulating the detailed execution of the building, the land use decision itself is a broader issue and that particular issue. >> looks like we're in a dead-lock here. any suggestions? >> mr. loper, would you opine on the commission's discussion to limit the chemistry or biological labs from the deaf ligs or prohibit them. >> sure, and we're not prepared to volunteer a condition that

would limit the number of lab uses. as we've heard, this has worked in different parts of the city. the architect said they would like to get up here and explain what they're doing, which i think could go a long way to addressing some concerns. >> let's do that. >> the ise consisted of switching gear didn't the building next door owned by digital realty is actually cloud in san francisco. those kinds of buildings require a lot of cooling and pa part of what we've done is remove the crack units have hazardous materials and making the building if that regard safer.

the building has infrastructure far above average than any office building would have. for example, 9,000-amps of electrical power. a typical office building this size would have a third of that and it has two really large shafts and it's not ready to go for laboratory use, but it would be easily adaptable for those uses. they are controls to would prohibit those uses coming from the building. >> commissionecommission johnso? >> so i would just agree with commissioner richards and president melgar, that i am concerned about putting that extra condition, really limiting the use that could be useful in this space, recognising there are all sorts of regulations that are outside of our purview

and better understanding of what is going into the building, to adapt it. so i would personally support the motion as it was made. >> we're missing a member of the commission. if he's in the back, if he could come back, that would be great. >> i second your motion. >> who will second dennis' motion? >> i seconded it. >> that includes the condition of approval for future tenants to file for a letter of determination, correct. >> yes. >> so we have commissioner richards making a motion, commissioner johnson seconding that motion. so a motion seconded.

commissioners, to approve this conditional use with conditions, including adding a condition that any future tenant must provide proof of laboratory use through a letter of determination, on that motion, commissioner fung? >> no. >> commissioner johnson? >> aye. >> commissioner moore? >> aye. >> commissioner president melguy. >> it fails 3-2 with commissioners fung and moore voting against. >> an additional motion? >> commissioner richards? >> i move to continue this item to november 5th, whatever -- >> december 5th.

>> or november 7th. >> let's do december 5th, because we know for sure we'll have full commissioners. >> very good, on that motion to continue this -- oh, who seconded that? >> second. >> thank you. >> on that motion, then, to continue this matter to december funning? >> aye. >> commissioner johnson? >> aye. >> commissioner moore? >> no. it passes 4-1 with commissioner moore voting against. that will place us on due discretionary item 14, 106955 drp at 220 san jose avenue, a discretionary eview. review. >> perhaps we could take a little five-minute break. i'm sorry to the public. we're down a couple of

commissioners and so, it's difficult for us to go to the bathroom and do all of the thanks we need to do. so we'll take a ten-minute break and then we'll come back and hear the two drs. is that ok? >> ok. >> thank you. >> welcome back to san francisco planning commissioner regular hearing for october 17, we left off on i'm 14, 155 spaws drp at 222 san jose avenue, a discretionary review. >> one of our commissioners needs to make a disclosure before we begin listening to this item. go ahead. >> there's a paid member,

mr. buscovitz, not as a managing partner but as a structural engineer. >> that needed to be disclosed, thank you. >> good afternoon. i'm the staff architect. the item before you is a public initiated review request to constructs a two-story rear horizonal addition to an existing two-story over basement one family residence at 220 san jose residence. the dr requesters of 228, the adjacent neighbors to the south are concerned with three things, primarily. one, the proposed addition is not compatible with the residential design guidelines to articulate the building and minimize light and privacy to adjacent properties and two, the design of the height and depth of the building is not compatible with the building scale at the mid-block open

space. the dr provided a letter before the last hearing in which they allege the property had been converted from a two or more unit building into a single family dwelling didn't that was the reason for the continuance from august 22nd. the department has received two letters in opposition and no letters in support of the project. the department's residential design advisory team reviewed this and confirmed that this addition presents an exceptional or extraordinary circumstance with respect to the building scale at the rear access to the open space and adjacent to the north, which was acknowledged in the original review and accompanied by a request to provide a five-foot side setback at the north neighbor's property line at the second floor of the audition. addition. the project submitted revised

drawings for that five-foot side setback and extended a two-story four-foot deep pop-out that of coursextends into the rear yardd staff does not support this addition in light of the dr request. the addition being the four-foot pop-out. with respect to the dr requesters' property, since subject property is north of the dr requester and extends less than the depth of the requesters' building set back by a two-inch sued yard side yard,t see any extraordinary circumstances with the dr requester. the department requested a five-foot setback to ameliorate the neighbors to the north.

the dr applicant identifies the property as a two unit building was never completed. i conducted a site survey and based on that, the survey history is a single-family residence two permits from the early 1960s note three units. it goes from three to two but the permit was not final finali. the zoning is in rh3 and all records indicate that this is a single-family residence anyone 2015, spaws dbi issued a cbc and this permit noted the single family dwelling. there's no evidence of a conversion that i could see and

there's no basement, but a 30-inch high crawl space and staff also investigated records with the housing services which conducts or performance periodic inspections and found none. again, the final completion is a single-family dwelling and staff recommends that the commission take the dr and approve the five-foot side setback but eliminating the four-foot pop-out to code compliant project and this concludes my presentation and i'm here to answer questions. thank you. >> thank you, mr. winslow. we will now hear from the dr requester. >> good afternoon. my name is vanessa ginston.

we live at 228 san jose avenue for 11 years. the second floor addition will have severe impact on light, ai airflow and privacy. the project sponsors three large windows facing our you units. they areremoving a bedroom and full suite if the ground floor. if their plan is to move in elderly parents, doesn't it make sense to move them into the first floor? presidenthey have a large atticg most of the property but refused to consider this. the backyard is 70 feet so they could build out the first floor. this is removing an independent

dwelling from the ground floor which is separately occupied under prior owners. we have met with the project sponsors numerous times but no meaningful compromise has been offered. in our last meeting, we ask that the architect attend so that both of our architects to work together but they refused to bring their architect. the project sponsors countered with yet another minor tweak that doesn't address the problem and if we didn't accept, there would be no further discussion and refused mediation with david wiwinslow. this affects many neighbors and we appreciate your consideration, thank you. >> thank you. >> good afternoon, commissioners. i'm an architect in san francisco. if i can have the overhead, please. the proposed rear addition blocks direct sunlight, afternoon sunlight into the dining and culture spaces of 228 and this is the zone here. this is the addition and here is the windows of concern.

the sunlight reductions caused by the height of the wall and the close proximity to the 228 north windows. by set back the addition's wall five feet and dropping the height by using a gable roof form, sunlight is restored to the five-foot space. the current proposal using a setback on the north side but maintains the high wall and so, we're suggesting which we proposed to them, is to flip the design that's currently there and using a gable roof form and providing increased sun candlelighlight tothe northern . the angle bay form is not subject enough due to the geometry and it doesn't help. regarding the privacy issues, we

have large windows being proposed that face on to 228's windows. we're just asking that those be reduced to that the reduced privacy issues looking into bathrooms and things like that. so thank you. >> good afternoon. i'm commissioner pat buskavitch. there are no prerecords. it's a single-family house. the 3r report, every time they update, they delete the previous report. there's no record. it says it's a one-family dwelling today based on the records in 2015. if you look at every historical record, and they just line up, three units in a sandborn map, reverse phone directory, two units, a couple years later, two units, another reverse directy,

two units. they are issued by health department because housing inspection services currently under the building permit were under the health department until, i think, 1967. they didn't issue the unit to housekeeping and that's a three-unit building and why? because here is the health department's record, a report of permit of occupancy, three units. this is the city's record. so anything after that is worthless but if you want to

talk about the cfc for the current -- >> your time is up. >> happy to explain this issue. >> you'll have a chance at rebuttal. >> thank you. >> do we have any public comment? support of the dr requester? come on up, please. >> good afternoon, commissioners. >> if you could speak to the microphone.

>> i don't knomy purpose is to e commission, the board, the department planning, everybody deny the request of this subject property. i'm right next door to it and this 220 is a large -- it's actually a five bedroom, four bathroom, dining room, large stand-up attic and i know this because i grew up with full access to the house, two owners ago h ha is who is a family fri. i'm asking for denial. the stand-up attic would make a beautiful master bed and bath. they're already putting elderly parents on the second floor with an escalator to accommodate them and they could accommodate that to the third floor as well. so while 500 feet expansion does

not seem large, it is large. it puts us into a cave. it's going to affect a four-unit building and affect the house behind me. directly behind them are the romeros and their house will be affected by the big cap into their property, as well. so most of the people who are affected are right here. i understand the board wants to hear alternative suggestions and my alternative suggestion is to build on the third floor. it's perfectly reasonable, cost-wise, everyone else. it will be well beyond the value and a mansion in the mission. so i don't want to live in a cave. my tenants don't want to live in a case of cave an cave and the d not a big wall built next to our property. thank you very much.

>> thank you. >> is there any other public comment in support of the dr requester? >> thank you, commissioners. i want to thank the planning commission staff, mr. winslow, for the type spent. we'vthe time spent.we wantthe to young children and parents and we need space for my home office. we ensured our addition would be built over the existing footprint of our home and maintained or increased all of the side setbacks and retained

ample rear yard open space. projector, please. you can see this here. we've accepted rdot's proposal to the property line and recapture the space, we are recapturing 67 of the 71 square feet lost. the pop-out will be on both sides. set back seven feet on the north and five from the south. ordinarily, in property lots like ours, the code permits us to build 12 feet passed the 45% line. we're only extending four feet. in short, our proposal is significantly more restrained than with the code and guidelines and i'm happy to answer any questions about the proposal in the interest of time and costs, we haven't resigned the interiors just yet.

with a project this simple, we never thought we would be here and the only reason we are here is that our neighbors believed their north-facing property line windows should prevent us from completing a renovation that complies with the codes is guidelines. as was pointed out, property line windows are not protected with the code and do not constitute extraordinary circumstances. buthat is the case here for thre reasons. first, the property line windows in blue will be set back over three feet from our addition. second, the area with the property line windows has at least three other sources of light and air. two windows and a double glass door facing west into their backyard. you can see these windows more clearly here. and on the third level, you can see there are windows there, as well. third, the dr applicants, the

ginstons themselves built a seven-foot wide wall at the property line and this wall blocks light to their affected area as well as to our property. the wall was a consequence of their choice seven years ago to build two completely unnecessary roof decks. you can see roof deck number one and two. we deeply respect the city policy encouraging neighborly resolution and met with the ginstons six times, three times prior to the planning and three times after they filed for dr. we have, prior to 311 notifications, deletely made significant changes to satisfy the demands at their pre-application meeting and eight substantive compromises. because they know they have no merits, they are resorted to bossless and misleading augments abouarguments of us and our hom.

they wanted to deprive the benefit of a father process. in thafair process.they said wen unauthorized dwelling unit and the staff report collectively addressed those and i want to be clear here, 220 san jose was and will be a single-family home and we have never used our office as a udu and nor do we have any clarification of doing so. as for the argument we are trying to peacemeal a project, we did not our home when this was built. they and their attorneys believe it's ok to abuse this process in the interest of north-facing property line windows that are not protected by the code. even with the pop-out, our home

will be shorter in height and not extend as deeply into the yard as theirs. help us to get our project on track and approve our proposal. thank you. >> thank you. >> do we have any public comment in support of the project sponsor? dr requester, you get a two minute rebuttal. >> thank you. i just wanted to spend a moment with what we had originally proposed back when we started the conversation about alternate options and this is the option we proposed, notice the setback here and we actually had showed the bay. we didn't seem to have a problem with the bay at the time. the proposal they're doing now is exactly a follow-up of what we proposed earlier.

so that solves some of the light and air issues due to proximity and what solves the other ush of loot and ailight and air is thef form. but putting a gable roof form, using a low plate on the side, 7, 6, 8 feet, that lowers wall height allowing light in on both sides. so it's a very simple solution and it's what the group had established here and i think that this is a viable solution that solves both problems. so the issue of the legal use of the building and historic use, the research by staff is very good. they looked at the housing files on the sixth floor to see what historically was there.

the problem is, very few people understand this, that the health department had housing inspection underneath them until 1967. so if those records are after '67, they don't exist, so looking for something that was tossed doesn't exist. what does exist is this record, which is the health department permit of occupancy that says three units and what they were doing in the 62 permit was converting one to a housekeeping to match the density. if you want to -- >> thank you, your time is up. >> if you want to ask about the lawsuilatest permit, happy to a. >> ok, you get two minutes. go ahead, sorry. >> i just want to question why

we should be required to lower our roof height given the ginstons are ten feet. they have lied, mischaracterized and mislead. mr. patterson lied when he said our home was originally a three-unit building. db immineni records show it's n. if you look at the 1960's permit history, this is not a certificate of occupancy. the permit that this was attached to shows the owner considered converting 220 san jose into three units. they called the home a single family home as every other person mit filed witpermit file. they say we have trying to avoid s earningequa.

but, perhaps, the most galling is the claim that we have a udu in our home. mr. patterson made this claim in his letter and mr. winslow research confirmed this is a lie. what they are doing is accusing the prior owners of our home of defrauding us when they sold us the house. it's worthwhile to note mr. patterson has used this tactic before. he appeared before you in february in 743 vermont street using the same language verbatim to you that he used in that case. the argument was far-fetched there and utterly preposterous here. the ginstonis are making these claims on issues with no relevance to their project, north facing property line windows. i'm happy to answer my questions. we spent a lot of time researching the history of the

home, as well. thank you. >> thank you. >> commissioner richards, how can you go out and do a site visit and see no evidence of a three-unit building because of the original construction, et cetera and have us be presented with data that it was a three-unit building and how could it go from a three to a one? what do you think happened? >> i don't know. you know, you could create all kinds of scenarios and say, you know, there was a house in the '60s that had lodgers and they had their own phone lines,

hence the records of the phones. >> didn'and the health departme. >> i don't know about the health department but the evidence is a building permit application to transform to apply for a permit it claims that is going -- actually, it tiger wood was twoo one and that's the sole evidence this is three units or two units other than the sandborn map. errors lube this happeerrors lie question you're asking is to scratch our heads to to reconstruct a history conjectu conjecturally. i have photographs on my phone that show what this house is from the front door through the stairway through the rooms, including a breezeway to an

independent door that leads to a room and a bathroom that then joins to the main dining room. could that have been a second unit housekeeper's unit? possibly. it's not independent in that it does not have its own kitchen, never appears to have had its own kitchen but by all common sense appearances when one looks at this building, it looks like a single-family residence as it had been designed at the outset, that could have had a housekeeping unit? that housekeeping unit was removed at some time in the distant past, probably legally at the time and that's kind of the best story i can conjure up. >> mr. buskovitz, you heard it and sounds airtight and what do you make of that? >> well, if i had some time to

explain what happened. it was built as a single-family house. during world war ii, there was a point in time that we needed more housing in the city to put men on boats to ship them to the pacific. so the federal government came to the city and said, we need to legalize these units or we'll put them in there. there was a number of different ways they did it, including just get an address. this is one of the extra buildings they added extra units. the federal government came back to their word and created a number of programs to legalize these units. in the '62 permit, they were responding to a lawsuit that a

group of citizens did in pacific heights where the city was granting permits for more units. these are legalization of units where people were living there and they got sued in superior court for legalizing more units than the density would allow. the city came up with dwellings and housekeeping units and i believe you could have up to three housekeeping units per dwelling and they were able to say, that doesn't count against the density, the judge bought it. the fire department bought it and that became one of the ways to deal with the density. what they were doing in 62 is '63 was taking a three-unit building and converting one of them to a housekeeping unit to match the density of two units. so that's what they were doing. that permit never got finalled

didn't so they never converted the third to housekeeping. >> so the 3r report says it's a single-family -- >> let's talk about that. so in 2015, two permits were filed, a little serial permitting. the first was to excavate under the house four feet and then a month later, a subsequent permit is filed. let's convert that storage room to a garage. and that is the only document that has the c of c on it. here is the permit to convert the storage room to a garage. the special inspection -- this record right here, special inspection was a1 construction and the building inspector who looked at it were in district eight.

this is the inspection history here and this is the actual print-out of the inspection history and it was done by brett howard and bill walsh. they were the inspectors for that district. bill walsh got to a pre-final with a note about special inspection. and then, inexplicably, a c of c was issued for a garage project that wasn't changing the number of stories. not doing a change. occupancy and that cfc was signed off by senior inspector kerwin. i discussed this with the building department because they're comfortable that they changed the record. if we could see the old 3r report, most likely, we would say unknown, but if you could in and file a permit for one unit, nobody looks at the previous record. they only do it for three and

above and so, the permit was filed as a single-family house and they issued a cfc for a garage with no change. >> i think we've had enough. thank you very much. >> commissioner fung. >> there's a lot of history here didn't it's interesting how it changes through cycles. all of the information they provided 30 years ago would have been used to substantial auto extrsubstantiate extraunits. extra units was more valuable. these days everybody wants a single-family home. legally, whenever you have a

cfc, that is the status of the project in terms of designation of units. the question for me is not so much, you want to argue whether there was a merger, whether you would delete it or whatever and you accept staff's determine augustdetermination. one could tell when there's was distinct units that were combined or left alone. the other issues are whether a light in air is impacted or extraordinary circumstances related to the appellant's issues and at this point, i don't think there are. i'm prepared to support -- excuse me, except dr and the department's two

recommendations. >> second. commissioner johnson. >> i conhavcouldn't have said ir myself. >> very good, commissioners. >> a motion with modifications. (role call). >> the motions passes 5-0. >> thank you. it will place us on 2017-01239 drp at 275,823r 275,823rd street, discretionary review. >> good evening. i'm david winslow, the project is before you an initiate request for permit application 2017 09289889 to constructs