>> particularly in terms of the health of the commercial corridor toward, the fact that retail is changing and that 340 square foot, that is tiny, but we want that. we want to be able to use that.

>> this would be a legally approved project and along with the sign approval so we would use whatever permits would be associated with it and we would be signing it off. we have opportunities for the building permit and this decision by our commission. >> either way. >> did you have further? >> no. >> i sure commissioner melgar's concerns and i things we should be doing whatever we can to support retail. i would second the motion but would also make a comment it feels like some additional legislation is necessary to get staff a little bit more discussion in this area under circumstances like this so it is not a one-off going forward, but the size of -- of the cost the

retailer seems out of whack with what the benefit -- from what the city would get from a smaller sight. i second the motion. >> the motion is to approve the project as proposed with conditions, not with staff's recommendations. very good. then there is a motion that has been seconded to approve this project as proposed with conditions not including staff's recommended modifications. on that motion... [roll call] >> you said there is two? >> there is one motion but there were several recommendations by staff and my understanding is the maker of the motion is for approval with conditions without staff's modifications. >> and the position and size. >> aye.

[roll call] so moved. that motion passes unanimously 6 -0. that will place us in item 16. one front street. conditional use authorization. >> good afternoon, commissioners i'm with the planning department staff. the item before you is a conditional use authorization request to establish and legalize a 5200 square-foot nonretail sales and service used doing businesses first republic bank located at the ground floor of the existing building located at one front street. office and all other nonretail sales and service uses within the zoning district require a conditional use authorization to locate the current fort. the space would function as first republic's ground-floor employee café and in addition the post proposal would include a 610 square-foot café that

would front onto market street and be accessible to the general public. the proposed 5200 square-foot café is an expansion of office use on the ground floor due to the private nature of the use. at the private café, the use is considered accessory to the principal office use. in the spring of 2016, first republic secured tenant improvement and exterior modification permits for the change of use to the limited restaurant use which is considered a retail sales and service use. however, as the limited restaurant was not acceptable to the general public, it is considered an accessory office use per the planning code. on february 27th, 2017, the department issued a notice of enforcement for the unauthorized use. on july 18th, 2018, a public hearing was held for an application seeking to establish 5200 -- 5800 square feet of nonretail sales and service use

of the ground floor. the request was denied by the planning commission under a motion in the planning commission moved to deny the application primarily on the grounds of insufficient street-level activation as required by the downtown area and general plan. off every 2,016th, 2019, we submitted a new project for a 5200 square-foot private café that includes 610 square-foot public café accessed off of market street. the café occupations two of the five visually prominent window bays facing market street and was determined to be a new project. staff finds the addition of a private café will visually anchor the building and provide a gateway like effect on marking and articulating the existing plaza entrance. it will introduce and activate the street presence for the caée with a public entrance permeating the existing market

street frontage and give the impression of street activation along the market street frontage with active uses to public café on the westernmost front and corner and the public bank and the public bank. there's one staff concerned with the 5200 accessory office being expanded over a time into a principal office use. which is a prohibited use of the ground floor and the zoning district. staff has added a condition of approval with requiring that the proposed ground-floor office remain accessory and character for the life of any approval in this concern aside, a project sponsor has made a number of revisions that have done a big usefully and substantially improved the proposal in front of you today. staff has not received any communications from the public regarding this proposal.

we find the proposal adequately activates the street-level and supports retail diversity and creates new jobs which is consistent with the objectives and policies of the downtown area and general plan. for these reasons, staff finds a proposal desirable, compatible with the neighborhood recommends approval with conditions. i am available for any comments or questions. >> thank you. do we have our presentation from the project sponsor? >> thank you, commissioners. my name is harry and i am here today on behalf of the project sponsor and first republic bank. i appreciate the staff recommendation very much and that details history which saves me some part of my presentation. i wanted to clarify one piece. i want to make it clear that the permits that were issued in 2016 , first republic bank was

clear this use was an employee cafeteria and -- there is. this is the planning department sign off on the back of the permit, which specifically mentions the fact that it is approving an employee cafeteria in the space. the space -- this permit was issued, the bank then improves the employee cafeteria at a cost of several million dollars and literally the month after it was opened received a notice of enforcement indicating a conditional use was required. we have spent a lot of time since a prior hearing, at least a couple of the commissioners were at that prior hearing and we did get the message that this space -- that the bank should do more to activate this space and incorporate some public facing features to it. this is a rendering of what the entrance to the café would be as

carolyn mentioned. it will frame the entrance to the building facing out onto the monument plaza as the signage on the window to make clear that this is a public café and as i said, it will reduce the size of the employee cafeteria by about 600 feet, 610 feet. i don't know if we can pull back on that a little bit. this shows the length of the retail frontage in this building here at the corner of market and at the front is that the existing bank branch. that is the front street frontage there. it turns around the corner onto market and there is five bays on market street. the continued retail use of the bank branch they're establishing a new public café in the retail

space and these two bays at the other end and then the employee cafeteria, the last two bays will look into the employee cafeteria witches, itself got a very transparent and active, engaging use. and then the fill's coffee space frames the other side of the building entrance. we had some -- i know there was questions in another case recently about sidewalk lighting so we wanted to speak very briefly to that. this is a very glassy front along market street. these are chairs from either end of the street at night. there is a lot of light into the sidewalk from the interior light they were left on until -- accepts between 11 at night and 6:00 a.m. in the morning when

the building, the landlord requires that be turned off for energy conservation purposes. that is l.e.d. lighting that i think makes a sidewalk environment very safe. i would like to introduce chris o'bryant of first republic bank to tell you more about the nonprofit use of the employee cafeteria and some other information about the bank proposed as part of this. >> good afternoon. my name is krystal. i am deputy chief administrative officer at first republic bank. i have been with the company over 13 years. first republic is a california chartered bank. we were founded in 1985 and have been continuously headquartered in and committed to the city of san francisco. at our founding we have 10 employees. today we have grown to almost 5,000 employees nationwide. we're very proud to be the 12 th largest employer in the city of san francisco.

with approximately 2700 employees. most of them are located in our corporate headquarters which consists of over 700,000 square feet of space across four buildings in the financial district. first republic actively supports our community through investment , lending, volunteerism, philanthropy and sponsorship as well as through our service to our nonprofit banking client. we support affordable housing and community development. we have originated a total of $4.7 billion in community development loans. we have committed a total of $1.6 billion in low income housing tax credit, we also maintain a community advisory board comprised of six recognize community leaders but offer strategic guidance on initiatives related to affordable housing and small business and economic development. >> thank you. your time is up. >> thank you. do we have any public comment on this item? i have a few speaker cards.

[calling names] please line up on my left. and everybody else, if i did not call your name and you want to speak, you may do so now. >> hello, commissioners. my name is meghan smith and i work at enterprise for youth. you have been a remarkable supporter of us. they have helped us in their training and in the internship programs. they host interns every summer and our interns often speak about having the food and how much they love it.

they had meetings with their supervisors down there and we also have several first republic employees who are mentors in the program which is a separate element of the volunteerism and they will meet with their mentee groups in their café. i think it is a really lovely opportunity to expand it to the broader community. thank you. >> thank you next speaker, please. >> good afternoon. i am the c.e.o. of the pomeroy center. we have been -- we are nonprofit that serves developmentally disabled adults and children. relocated in the southern side of the city. most people think we are in san mateo county but i can assure you we are in the city. we have been a long partner with first republic bank. they talked about allowing us to use as a nonprofit this café after hours. we serve a lot of families at and 500 families in san

francisco. many of them in areas that are far, far away from where our office is. having a downtown location would be fantastic for us for family meetings, board meetings and other uses. we support its. thank you. >> thank you. next speaker, please. >> good afternoon. i am the senior director at enterprise for youth and i want to speak to the work we have been doing with first republic bank and the trend we are seeing downtown with companies opening of these community spaces. first republic has been very gracious connecting as to mentors, as meghan mentioned, but also opening up their doors for young people to see the possibilities that they can have professionally in san francisco. they have been a great partner. i figured i would do my part by vouching for them here and i hope you approve it. have a good day. >> thank you. next speaker, please. >> good afternoon.

i am the executive director of meals on wheels san francisco. we ensure that 5,000 seniors across the city are not hungry and not alone. we have been a partner with first republic for a long time. we consider them a gold standard from board leadership all the way down to hundreds of volunteers and philanthropy. of particular note, we're building a 35,000 square-foot kitchen in the bayview on gerald avenue. and first republic has led the effort to finance and bridge that project. they are a big partner with us. we need space in off hours for volunteer activations and trainings and we support this application. thank you. >> thank you. next speaker, please. >> good afternoon. i am the assistant branch manager at our embarcadero one branch. i grew up in san francisco and i live in san francisco. i have worked at first republic bank for six years now.

i use the café several times a week. it is not only a way to save money, but connect with other first republic employees. by having a restaurant just for employees, were able to connect and meet in a more relaxed setting. we are able to see each other and come up with new ideas. we are also able to meet with clients and have one-on-one meetings with them were other people okay overhearing us. is a really nice way to connect with clients. the café is also part of our culture to have fun. i urge you to say yes on this. thank you. >> thank you. next speaker, please. >> hello, commissioners. my name is julia and i have been working at first republic bank for about two years. i work on student loan refinancing. i am a longtime bay area native and loyal bay area native. i grew up in the east bay and went to stanford and have

resided in the mission ever since. i love working at first republic , which are promise you get bankers do not say about their jobs. when i first got my job, my grandfather was so excited. he is 89 and he took bart over from oakland to meet for lunch and the place that i decided to take him was our cafeteria. it was part of my job that i was really excited to show and share with him. when he walked in, is that only god, this is amazing. then we paid and it was only $7 for the subsidy and he was really flowing away. i work on california street so i walk two blocks to get. i café about three times a week and other times i go to a local eatery. i would say from a practical standpoint the cafeteria is by far the most affordable option within my department. there's about 100 junior folks all about the average age of 25 and for the folks only team. they would say that is a financial necessity for them to have this benefit.

and then from another perspective, i think the café represents first republic's culture, which sums cheesy to say, but if you have ever walked into our branches, you are greeted with a smile and often fresh-baked cookies from that morning by our bakers. it is really collegial and it was the place. so when i have hired forever people this year every time on their first day we meet at 8:30 a.m. for breakfast at the cafeteria because i think it is the best introduction for what it will be like to work at first republic. for all these reasons, i encourage the committee to accept this proposal. thank you. >> thank you. next speaker, please. >> hello. i am sarah and i have worked at first republic for the last five years and i am also a resident of san francisco i personally use the café several times a week. along with my colleagues who also really enjoyed the space. it is by far one of the most

affordable lunch options in the area, but even though this is a great place to get lunch or breakfast, it doesn't stop me from going to starbucks and "-- other local cafés and restaurants in the area. overall the café is a really wonderful benefit for our employees, especially folks like me who are looking for affordable spots to eat. i encourage you to approve this item. thank you. >> thank you. next speaker, please. >> hello. my name is kimberley and i am the vice president at the american heart association here at our local chapter. first republic bank is one of the largest corporate supporters of the american heart association and has been a significant and meaningful catalyst in driving our mission to be a real it was forced for longer and healthier lives. they had played a significant role in many of our proudest accomplishments over the past few years and our work in our local communities should not be possible without their support.

in addition to the bank's general corporate his contributions to the aha, they have engaged their employees and seemed to have leadership in our mission. their c.f.o. chaired our heart walk in 2018 and 2019 and this past september, 800 public public bank employees joined us at the plaza to walk and fundraising honor those affected by heart disease and stroke. first republic bank has hosted a number of our local board of directors meetings which typically include 20 plus influential bay area at leaders coming from all over the bay area. the bank also hosts young professional board meetings which bring together professionals that are early on in their philanthropic careers but dedicated to the mission. if the front café were open later we would have the ability to more easily host board meetings as well as parties, networking, and donor recognition events. this would be a significant benefit given the bank's convenient location in downtown san francisco. i urge you to approve this

proposal. thank you. >> thank you. next speaker, please. >> good afternoon. my name is mohammed. i am the regional managing director of first republic in san francisco. i have been with the bank for 16 years and i am a very proud san franciscan. i just want to emphasize the café has a significant cultural component to the company. i actually don't eat at the caée is frequently, but i know that my team members view it as an essential component in a benefit to have an affordable, safe place for them to meet, congregate, discuss client events and be able to discuss things that they wouldn't be able to discuss any public restaurant. i do frequent most of the restaurants that are within the two or three block radius as well as the coffee shops around because i believe it is an essential component that is part of our culture. i would urge you to approve this

measure. >> thank you. any other public comment on this item? okay. public comment is closed. commissioner moore? >> i would like staff to explain how the café in contrast to the cafeteria works. the café being the public component, how does it work, his merchandise brought to the facility, one is it open, how does it advertise itself to the street? i would like to have a short narrative to understand the design. >> sure. included in the application is 610 square feet in the first two bays. >> could you speak into the microphone louder please? >> yes. is that better? they haven't stipulated their hours. we have a condition that is floating around that could stipulate the hours for the public café.

i don't know if you can see that , but it is 610 square feet in these two bays here. so how that would function is open ended. it is meant to be a retail sales and service use and it is described as being a café. that would be a limited restaurant, potentially a coffee shop. they haven't said who the tenant would be or whether it would be first republic. >> perhaps it would be helpful to have the project sponsor speak to those questions. >> commissioner, the café would share the kitchen with the cafeteria. it would serve premade sandwiches and salads that are made in the kitchen and they would also serve the same lunch specials that are available each day to the employees in the

cafeteria. and in response to a question that we had heard earlier, we have proposed a condition. i think it got passed up earlier saying that -- basically the employee café is open for breakfast and lunch now. between 7:00 a.m. and 9:30 a.m. and then 11:30 a.m. to 4:00 p.m. the café would be open substantially the same hours and that was not captured in the original approval motion but this is a proposed condition of approval that we passed up a moment ago that the bank is proposing to be added to the condition. we also proposed another condition to make clear the bank 's commitment to the nonprofit program that you heard some of the nonprofits speak about.

>> i will focus might question a little bit more before getting to the other explanations. cafés are basically serving an active population and the public portion of this café i hope would do the same because i really like the sandwiches that come out of your kitchen. i really like the coffee or your bakeries. i would like to be able to go there other than in a specific hours that you are identifying, which would mean the café, at least during business hours is open for you to sell what seems to be a very well-established menu. my second question is, how do you establish a price point for what you are selling when the material that you are giving to your own employees is basically, as i heard someone say, somewhat subsidized. how do you establish a price for what the rest of us will pay for it? [please stand by]

>> than the rest of the office population than than than than snrchlt! disbl rkts rks whenl had a. >> test the last question is in columns i hope but iteds hot. >> that atm doesn't t then i wanted to make sure that, in fact, the public café -- that that employee café couldn't operate unless we had the public café. so i don't know whether or not staff has had a chance to review that first condition and would

suggest -- is it fine with that, does that accomplish that, or are there any changes. before staff responds, i want to get to, first, they do a fine job in the community of financing. i think it's wonderful that they want to provide their space on a regular basis to non-profit organizations, but i think that in order to make sure that happens, that should be constructed as a condition of approval as well, if that's part of the basis upon which we're granting this. i don't know whether the language they have approved is language they're happy with or would staff want to see any changes. >> if i could speak to your first question, i'm not sure this first condition captures what you -- that's a distinct difference, that there's a public café that is different from the cafeteria. am i capturing what you said? >> i think it mostly gets there. i just wanted to make sure they

didn't say there was a public café and then it goes dark and they don't operate it. >> i do think this makes a distinction between the public and the cafeteria. also, plans are part of a conditional approval, so those get recorded as well. i do want to clarify that the second condition can't be incorporated as a condition. it can be a finding. we've been advised by our city attorney that that's -- we can make a finding and say -- make a statement to that effect one of the reasons why we are in support of the project is that they intend to do this, but we can't condition it on that. >> ms. stacey, can you please explain. >> president, kate stacey in the city attorney's office. i recommend that the second proposal be a finding that the project sponsor intends to make the employee cafeteria on a regular basis to non-profit organizations for meetings and

events. it raises a couple of legal issues as a condition of approval, both as to takings and i'm not really sure what the intent of that condition is, if it's meant to be free space to non-profit organizations or reduced rent, but there may also be some commercial rent conditions raised. so i think the commission could certainly note it as an important part of the project, that the project sponsor has indicated this intent. but i think for the city to enforce it, we would have to take a pause and make sure we can defend it as a regulatory requirement. >> may i ask a follow-up question, which is, so if they don't rent the space, if we do it as a finding and then they don't allow non-profits to use the space or if successors don't allow non-profits to use the

space, is there anything the city can do to enforce that if it's not a condition of approval? >> i think without some conditions and findings, this cafeteria caused the need for this non-profit space to be available. the city would not be able to enforce that condition. >> so as we're considering whether or not to approve the c.u.p., we shouldn't assume that the non-profit space -- that it will be used as non-profit space. it might be nice and great if they did it as a community gesture, but we shouldn't make our decision on that basis because we have no way of enforcing it? >> that's correct. >> and are you fine with the language in the first condition? >> i think, this is kate spacey, i think staff was going to propose some changes. i think as it reads, it's clear that the public café must

operate with the employee café. >> thank you. commissioner moore. >> this is a question to ms. asgod. doesn't public mean opening hours has to conform to what generally is a public use and opening hours is in that definition? >> so that's something that's up to the business operator. if they want to operate -- so we have the district standards for hours of operation. if an operator wants to operate in all those hours, they're entitled to. if they want to operate in a limited amount of time, they're also entitled to do that. so this is what they've proposed. they've proposed that they want their public café to be open at the same time that they're operating the cafeteria. does that answer the question correctly?

>> yes, it does. >> commissioner johnson. >> so i was having coffee the other day right next to this café. and i turned over and i was remembering the hearing that we had before about the potential of this café and the conversation about detonating this street. right now while you can see into that space, while it's awkward to see the tops of heads and torso torsos in the streetway, and there is this really sweet little plaza where the opening to the building is that could be well served by this café and really kind of completing the streetscape. i really appreciated the adding of the conditions that we can add. it's great that you plan to use it for a non-profit space.

i hope that you do continue to do that. i am comfortable -- i appreciate wanting to make sure that it would have been great if a small business could operate it and it were open for more hours. i think the hours that you stated, working in the financial district, those hours are hours that i would be picking up breakfast. you can go to phil's for coffee between the close and the open and after 4:00 a lot of things actually close in the financial district. so i personally feel comfortable with the hours. so i would move to approve with conditions, including the findings that were specified around making sure that the space is in general conformance and should be open to the public consistent with an employee café. >> commissioner diamond. >> so i would second that, but i

want to make clear that the first condition is approved -- that it's subject to the first condition and the language about the non-profits is included. >> very good, then, commissioners. if there's nothing further, there is a motion that has been seconded to approve this matter with conditions as have been amended, including the first statement in the conditions of approval and the second as a finding that were submitted into the record. on that motion, commissioner diamond. [ roll call ]. >> so moved. that motion passes. that brings us to number 17. 40 12th street - southwest

corner of 12th street at stevenson street, lot 004 of assessor's block 3505 (district 6) - request for a conditional use authorization, pursuant to planning code sections 202.2 and 752 for the establishment of a cannabis dispensary on the first floor and mezzanine of an existing two-story building. the proposal will involve interior tenant improvements with no expansion of the building envelope. the project includes a request for authorization of on-site cannabis consumption, including the smoking and vaporizing of cannabis. 2,634 square feet is proposed for cannabis sales, 1,195 square feet is proposed for consumption, and 1,720 square feet is proposed for accessory office use. the site is located within a nct-3 (moderate scale neighborhood commercial transit district) zoning district, and 85-x height and bulk district. this action constitutes the approval action for the project for the purposes of ceqa, pursuant to san francisco administrative code section 31.04(h). >> this is alex strouder. he's held public sector planning positions for over a decade with experien experience. he has experience in climate resiliency and more. previously he worked for the moren agency development for five years and prior to that for the delta protection commission for seven years. he mastered in landscape planning and architecture from u.c. berkeley. >> thank you for the introduction. alex westoff, department staff. the item before you is a request for conditional use authorization pursuant to

planning code sections 202.2, 303, and 754 to establish a cannabis retail use measuring approximately 5,549 square feet in an scpising two-storey building. this site is located at 4012 street which is within the nct3 moderate scale commercial transit district and an 85x height district. the upper storey is currently occupied by offices, while the lower storey served as retail commercial. the project includes cannabis sales on the lower storey and on-site consumption as well, cannabis sales on the mezzanine, and accessory office use. unpermitted facade alt vasings occurred circa 2011.

the project includes interior tenant improvements in addition to facade restoration to more closely match the property's 1938 deco character. upon submission of the application, the subject project was considered a historic resource as part of the historic district. however, only recently was the property reclassified to a c resource upon completion of the hub eir. the work had been completed while it was an a resource, and the facade is still required as the subject property is not an article 10 or 11 landmark property or landmark district, historic preservation review is not required. the applicant is a qualified equity applicant. mr. born and mr. draper have

prepared a presentation on the intent of the facility which they will present after my presentation. in terms of sensitive uses, there are no schools or other cannabis or medical cannabis retailers within 600 feet of their parcel. as such, the project was found to meet the 600-foot rule found in planning code section 202.2. the project also includes a request for on-site consumption and the floor plans include an on-site consumption lounge. we have received no comment from the general public on this matter. as the proposed use activates a store front, supports the city's equity cannabis program, and provides employment and economic opportunity for the district, the department recommends approval of the application. thank you.

>> thank you. project sponsor. >> my name is kevin born. thank you for taking the time to review this project located at 4012 street which is in the nct3 district. the project proposes a productive change of use to the ground floor storage to cannabis retail and on-site consumption. the second floor will remain unchanged. the existing envelope will be changed except -- will not be changed except to restore the historic elements. under this zoning these are permitted by conditional use authorization. by restoring the architect, this is in line with the objective 3.2.

policy 3.25, preserve landmarks and other buildings of historic value and invaluable neighborhood assets. we have exceeded our outreach requirements besides our neighborhood mediums, we have reached out to our neighbors at 10 south n.s. and shared our plans with them. we have reached out to their tenant and they're also in support of the project. we have a navigation center next to us, the civic center hotel. we had a meeting with their site manager and a number of tenants with limited mobility who are excited about the prospect. the project proposes a new cannabis retail and on-site consumption on the ground floor. further policy 114 of the market octavia plan which supports a

residential population. 1500 mission street with 550 units, 30 otis street with 360 new residential units, these are being built now with completion scheduled sometime in the next 12 months. that's 172 units come in online. 1699 market has just been completed with 160 units. 2224 franklin street was completed with 35 units. 1 franklin was completed a year ago with 30 units. another 1500 units will be added between 10 south n.s., that's close to 3,000 units within a block of this site. this conforms to the market octavia policy. this project will be eliminating

two curb pads. this supports market octavia plan policy 512, restrict curb cuts and eliminate on-street parking. this will minimize the negative impact of parking. we will be installing bicycle parking. market and venice sits at the crossroads of some of the busiest transit hubs. in addition, part is three blocks away which offers hundreds of thousands of possibilities to access transit throughout the i.

city. there are no services of any kind on this side of market. you have to cross market and access services in hays valley. this has been a dead zone for years, which this hopes to address. along with new planning codes, there is going to be additional retail space. grocery stores, gyms, drycleaners. cannabis retail could be challenging. for their approval, crescent heights on market street has struggled with 8,000 square feet of retail space. i think it just got leased recently. it's been like four and a half years. we believe that activating our space beyond the completion will help drive developers in the air. with hundreds of thousands of

san franciscans traversing the intersection per day, it will be better to get off here than to access other retailers. is that my time? >> that's your time. >> thanks. >> would anyone from the public like to comment on this item? okay. seeing none -- come on up. >> i think it's really exciting. the cannabis industry has been doing a lot for the community of san francisco. it's a great place for people to come together. it's a great, great add to any community. i think it's super brave and i approve it. i don't know. thank you. >> thank you. any more members of the public wish to come in on this item? seeing none, public comment is closed. commissioners.

commissioner moore. >> i have a question. on the corner of 12th and otis there is a large site on which a ballet school is being added. i wonder whether or not that falls under the consideration of school schools. it's under construction. >> i can say this much, that i think based on the current regulations and how we analyze it, we would be looking at a site and the school radius relative to active and open schools. so not knowing what the construction would be or the date of opening for the school, this site isn't currently precluded from the radius, since we have to analyze a proposal based on the activity of the day. >> all i know, it's a generic

question, the project is under construction, has been for quite a few months now. i'm not quite sure how you analyze approved projects that will, indeed, have a school on site. >> sorry, commissioner moore, just as a point of clarification, are you thinking of the ballet school? >> yes. >> so that's a little different in terms of what we define as a school. so a school generally has to be certified by the -- basically by the state. most of the ballet schools are considered a different kind of model in terms of the school. more of a personal service rather than a school. >> that's a good answer. thank you so much. >> i'm supportive of the retail use. i'm not supportive of consumption on site.

>> commissioner johnson. >> so in thinking about the consumption on site, i know often we think about the space, the surrounding community, whether use might spill out onto the space. i actually personally think that the location of the site could support a lounge. just thinking about this area and the businesses there, i think there wouldn't be as much impact as some of the other projects we've seen. so i'd just be curious to hear your opine a little bit more about your thoughts on consumption on site in this site. >> i think it's -- yes, there's obviously historically a general feeling i've had on that basis. you note that there's an architectural office on the

second floor next to this building. maybe they act high all the time. but the question is not so much what some people have thought. my rationale is that people will party there and do those kinds of things. i think the issue is it's very difficult to make any space air-tight. i don't care what the health department says. i know what they go through. i know their standards. they're not all that good about enforcement anyway. so the fact is it's very difficult to make spaces air-tight. if that's the case, at some point, and maybe not to everybody, at some point potentially it could have an impact on somebody else. i'm just trying to avoid that. >> question for the project

sponsor. do you guys have a -- like, a proposed set of ground rules or how would you operate if it were granted a consumption lounge. how do those usually operate? >> well, the consumption lounge is buried at the back corner of the building, unadvisable from the street. i think it mitigates the problem of people buying retail products at that space and going out onto the street. it gives them a place to use it. there is a negative hvac system going through filters. >> are they allowed to stay there all day? can they stay there for eight hours? >> there is no time limit, right. >> i might ask if the applicant could clarify what type of consumption permit are you going to plan on seeking, since d.p.h. has kind of three that they

view. >> yeah, i think it's a, b, and c, correct? it's c. >> okay. >> can you explain what c is. >> c would allow for smoking and vaping. a is the consumption of the cannabis products on site. b is both consumption of the products on site as well as packaging of it. >> i'll go for it. i'm going to make a motion to approve with the consumption lounge. >> second. >> seeing nothing further, commissioners, there is a motion that has been seconded to approve this matter with conditions on that motion. [roll call vote].

>> that motion passes 5-1. that will place us under 18a cases 3847-3849 18th street - between you will consider the discretionary review. please note that on may 9, 2019, after hearing and closing public comment, you continued this matter to july 18 by a vote of 5-0. commissioner diamond had yet to be seated. on july 18, 2019, you adopted a motion of intent to take d.r. and approve with two flats and a third ground floor unit and continued again by a vote of 5-0. commissioners fung and hillis were absent. on august 29, after hearing and closing public comment, you

continued the matter with direction by the commission of a vote of 5-2. on october 24, 2019, you continued the matter to today's date by a vote of 4-1. commissioner melgar was absent. commissioners johnson, fung, and diamond, in order to participate today, you need to acknowledge you reviewed the previous materials. >> i have. >> i have. >> actually, i think i was at one of the meetings. i was at one of the meetings. >> you were at one of the meetings, but you need to have reviewed all of the previous materials. >> planning department staff

presenting the case request for conditional use -- sorry, discretionary review and a variance at 3847 and 3849-18th street. a reminder that i am before you proposing to legalize work that has already occurred in order to abate an outstanding enforcement case exceeding the scope of work of a series of permits issued on the property, most of which were issued over the counter. as a reminder at the august 29, 2019, hearing the commission continued the item to allow the applicant to simplify the drawings and to have a pre-application review meeting to ensure the feasibility of the proposed plans. the project was continued to october 24, and at that date it was continued without being heard. in response to the commission's

requests at the august 29, 2019 hearing, they worked with d.b.i. and other departments to explore adding a third unit to the project. after a pre-application held on september 24, 2019, it was confirmed that the building classification would need to change from r3 to r2 to accommodate the additional unit, which would in turn require new building system, new fire ratings, elevators, two elevators, dry stand pipes, et cetera, in other words to comply with the standards of an r2 building. i have provided the commission with a copy of the minutes from the pre-application meeting. this includes alterations that are required to bring the structure up to the standards of an r2 building, signed and confirmed by d.b.i. and fire department. it also includes a set of plans that are hand marked to include all the changes that would need

to be made as well. there are two sets of full-sized plans in the commission's packets. the one on december 5 is for the existing two-unit structure and the second set is dated august 29, including three unit proposed buildings. that plan would need to be updated to include all the changes noted for the hand-marked preapplication minutes. this is the staff presentation. i'm available for any questions. >> commission president melgar, this is like the third or fourth hearing. >> i know, but i think i'm going to give them the full presentation time to both the d.r. requester and to the project sponsor. okay.

public comment is minimal. >> five in one? >> yeah. >> very good. d.r. requester. >> who is to be blamed for the predicament of the project sponsor? the financial hardship on the development company, employees, and their family. is it the money lender who initiated for closure, the broken permit system necessitating choke cuts and expediters. the whistle-blowers that filed complaints that went untouched, or planning commissioners and

their conflicts of interest. the party sponsor is disingenuous. in their brief they say, please note that none of our scope of work would have been properly allowed if the proper procedures had been followed. none of these violations would have married had the violations not been caught and proper permits obtained. that argument can be used for any violations forced to get a new permit documenting all corrections to existing violations. should any accommodations be given to project sponsor? project sponsor claims financial and construction challenges to this unit. they also request a variance to the front and rear yards. are there any exceptional circumstances that warrant giving of some accommodation to

project sponsor? project sponsor caused his own hardships. no one else is to be blamed. what is to be approved? the proposed plans dated from october 24 are compliant with the fire department as presented by planning staff. that's what the staff report says. add four wet sprinkler heads at the rear facade as a local equivalency from d.b.i. that was a quotation from staff report. how can adding four sprinkler heads to an existing fire prevention system be prohibitive? why should variances be granted? no other adjacent property has similar structures in the front or rear yards to necessitate variances, especially the ones that were self-inflicted. since the initial hearing in may of this year, the planning

commission has been consistent in its requirements for the project. increase density. other projects, regardless of who is to be blamed, have been subjected to the same decisions by this planning commission. 284 roosevelt way, 655 alvarado street. it would be exceedingly unfair and set the wrong precedent to make an exception for this proje project. thank you. >> do we have any public comment in support of the d.r. request? one minute. >> i'm an adjacent neighbor. i live with my family in the building next door. i want to say we love the structure in its current state. >> are you in support of the d.r. or the project?

>> i'm? support of the project. >> okay. then sit down and wait until your turn comes up. thank you. >> can i have the overhead, please. my name is jerry dratler. the developer acquired a $3 million for $2 million and converted the two equal-sized units into a single-family home. the developer admits to 13 building code violations. the department of inspection role in this project is shocking and requires explanation. why were 13 illegal acts not discovered in 26 separate inspections? why did one of the most senior building inspectors at d.b.i. sign off on three certificates of completion on the very same day for the very same building showing the building to have zero, one, and two basements.

i commend the planning commission's 18 july decision to restore the three units. the decision is fair and consistent with the commission's policy to require bad actors to put the building back the way it was. the proposal to pay $250,000 in lieu of creating three units of needed housing -- >> thank you. >> -- is ridiculous. >> next speaker, please. >> good evening, commissioners. i ask you to stand by your july decision and i oppose the request of these builders. their behavior has set a poor example of proper building procedure. i ask that they pay a fine of $250,000 in return for getting out of the planning commission's july decision. it's shocking that they should be allowed to decide what sized

fine they should pay. i think their plea of financial ruin is disingenuous. they lost money because they were in the genuine in the building. bad behavior must be punished, not encouraged. thank you. >> thank you. any other public comment in support of the d.r. requester? okay. now, project sponsor, you get your presentation. >> good evening, commissioners. my name is paul dawson. my partner couldn't be here today. he's been hospitalized due to a collapsed lung. the last two years have taken a tremendous toll on us and our families. our plea is to allow us to move forward with additional delays. we had a three and a half year planning and construction process to upgrade and remodel

two-unit residential building. since our last hearing, the lender has moved forward on foreclosure of the building. my partner and i personally are responsible for the millions of dollars we took to restore and develop this property, and as a result our 20-year construction company with 18 long-term, dedicated employees is teetering on the brink of bankruptcy. we began working with d.b.r. and the fire department to further explore the viability of adding a third unit to this property. we learned that the building classification would need to change from r3 to r2 to accommodate the additional unit, which would trigger a whole host of major changes to the building. we would essentially be required to demolish and remodel the existing structure. when we purchased the building back in 2014, there was a c.e. issued due to the presence of a small, illegal third unit at the

bottom level. we proceeded to secure a permit and submitted plans for the current two-unit building more than five years ago. in our view, the only viable option is to maintain the current two-unit status of the completed property. the package we submitted includes updated plans, and i'm happy to answer any and all questions. this process has not been fair. the d.r. application was fraudulently submitted by kevin chang using false identities, as were previous complaints regarding our project. we have had neighborhood support throughout this process. while we understand the severity of our mistakes and we take full responsibility for those requests, bebelieve we have been subjected to a range of accusations of those with compromised and undisclosed

motives. having no real ability to respond to various statements or developments during the past hearings, we truly felt like ghosts attending our own funeral. our project has been held hostage in a power struggle between d.b.i. and members of this body while charges of corruption swirl around. some say this is the cost of doing business in san francisco, but i hope we agree this is not the case. in this instance, i ask that you stand on the side of due process and approve our building permit. thank you for your time and consideration. >> good afternoon, commissioners. i'm liz bridges, attorney on behalf of the applicant. i just want to make two comments. one, i wanted to address the issue of the third unit and remind you again that this unit was -- or the building, when they purchased it, it had an

illegal third unit that had an n.o.v. on it and they received a permit to remove that unit. they acted on that and therefore that permit vested. any action to try to add another unit would be improper under that. also, i wanted to speak to the basis for the $250,000 offer that our clients have made. the calculation for that offer was determined by looking at what the in lieu fee for affordable housing would have been if they had been subject to that. so they looked at the project size and figured out the basis for that. so that's where the source of the $250,000 was. it's not out of thin air. it had some basis in city policy. we're happy to answer any questions. thank you. >> do we have any public comment in support of the project sponsor? now it's your time.

>> again, i'm a neighbor and everyone i know on the block lovs this new structure. it's a beautiful and sensitive addition to our block. the last thing anyone wants is more construction. i will also mention what we want is for the place to be occupied as soon as possible. it's a vacant building. it's been there for five years. it poses a security risk for my family and my neighbors. we're dealing with vandalism. >> thank you. any other public comment in support of the d.r. -- i'm sorry, of the project sponsor. >> this is unorthodox. i think that the project was egregious. i talked about it in general public comment a while ago. $11.7 million in the flat near mission and delores park was

terrible. you talk about wanting to put the project back the way it was. it wasn't put back the way it was because that's what you talked about earlier. it had three bedrooms on the top level and now only one. i think the $250,000 should be given to the small-sized program, and here's why. this is a project, this is a building on hampshire street. it was ellis acted. you look at this photo really close and you see an adult with a child on their lap. now, maybe the 250 can't do anything for the affordable housing thing, but it surely could do something good for the small-sized program because this building sold for $1.5 million and these people could be in their home. that is my unorthodox statement. it was an egregious project --

>> thank you. >> i'm not excusing them, but this is a crazy thing. >> any other public comment in support of the project sponsor? okay. mr. chang, come on up with a rebuttal. keep it to one minute. >> i think the most important thing about the consistency of the decision for this body is the increased density. subject to the meeting the fire department requirement, which in the staff report has indicated is possible in the october 24 drawings that were submitted to this body. that was after they had already met with the fire department in the joint hearing. so to not share the ofings an a

timely basis and to say what they shared in october is now false makes it difficult for public policy. the matter needs to be continued so we can review those documents further or kept with the krnlg third unit decision. more importantly, no variance should be given. there is nothing exceptional or extraordinary about this project that was not self-inflicted. what are the exceptional or extraordinary circumstances to this project had it come through the door before the violations happened? was it granted a variance? the answer is no. thank you. >> thank you. you get a rebuttal. >> i think we have just one request. that is, please let us move forward. this has gone on long enough. this is our fifth date. this is the fourth hearing. we need a motion and a vote. please move this forward. >> thank you.

i'm going to start asking a question of the city attorney. ms. stacey, do we have the authority to accept a contribution or a fine from the project sponsor? >> president melgar, kate stacey, city attorney's office. as i understand the offer, it's a $250,000 gift to the city. there are a couple of ways that the city could accept that gift, but i think it would start with board of supervisors resolution in accepting that gift. since it's not tied to an inclusionary housing requirement or an impact that this

commission or failing a finding by this commission that it's created this particular kind of impact on the affordable housing stock, i think it would be characterized as a gift to the city and should go to the board of supervisors. there may be another way for the mayor's office of housing and community development to use that money or the project sponsor could separately donate that money to a private or a non-profit organization. but for the city to accept the money unless we could make specific findings, it would be considered a gift. >> so suppose we accept -- or approve the project and say, yeah, the board of supervisors will accept the gift and they don't. the resolution doesn't pass, but then what happens? >> kate stacey from the city's attorney office, there is really no way for the planning

commission to enforce that gift. a gift is a voluntary offer. project sponsor can make it on whatever terms they decide to make the gift, but it is -- it would not be easy for the planning commission to enforce that gift if it were, in fact, just a gift. >> so what happens if we say, okay, you can give the $250,000 to the community land trust or some other non-profit that's working on, you know, small sites, can we do that? can that be a condition of the approval or do we have any authority for something like that? >> president melgar, i think, as we've recommended in the past, the commission really can't enforce a private agreement or a private donation. so again, it could not be an

effective condition of approval. there may be a way, if the commissioner or the staff could make findings showing that this project created a particular impact and that $250,000 was an appropriate and tailored remedy to that impact, that may be another circumstance. i haven't seen that evidence in the record. >> thank you, ms. stacey. >> so because i haven't been at any of the other hearings even though i've read the record, i have a number of questions. i would like to understand from staff where we are procedurally. if we -- let me give you a couple of scenarios. if a motion is made and we do

get four votes for it, whatever the motion might be, if the project sponsor does not like that, what are their options? >> well, i'm sorry, could you -- the first question was if there was a motion to take d.r. -- >> well, let me start with it. has there been a motion to take d.r.? >> there was a motion of intent to take d.r., but in conferring with the city attorney, you just make a new motion today. >> so, in fact, if there is not a motion to take d.r. -- >> the project gets approved. this is a principally permitted project outside of the variance. so for the purposes of the planning commission, you need to affirmativity take d.r. in order to modify the project, otherwise it proceeds.

>> there hasn't been any motion thus far. >> if there is a motion to take d.r. and to approve something, if the -- other than a continuance, but put that aside. if there is a motion to take d.r. and approve something to be determined. if the project sponsor is unhappy with that result, do they have a right of appeal to d.p.a.? >> absolutely, they can appeal to the board of appeals. >> is there any enforcement the planning department can proceed on? >> i'm happy to touch on that. nice to be here the first time with you, commissioner diamond. this permit is actually the result of the enforcement process. so the scope of work that is approved under this permit, assuming it goes forward, it is

issued, that is completed and final, that will satisfy the obligation. that will legalize the work done outside of the prior permits. >> if we don't take d.r., there is a possibility they will proceed with what you have approved through the enforcement procedure? >> correct. this permit is intended to capture all of the scope. if this permit doesn't include all of the scope they like and some of that already exists, they would have to take that away, barring some other outcome of that appeal. but one way or another, this work and the work to complete the permit would be subject to variance. . this work does require a variance, yes. >> if we don't take d.r., the d.a. could still not grant the variance, which means the permit

would need to be modified to reflect the absence of the variance? >> right. the variance decision does not have to mirror the d.r. decision. if there is some discrepancy, then the permit would have to be amended to match the variance, again, barring some other outcome through an appeal. >> thank you for all of that. that was helpful. earlier today, and you referenced prior cases, where the remedy had been to increase density and add a third unit, in each of those cases did they need to switch from r3 to r2, or is there something particular about this project that is creating problems with the construction type? >> i'm personally not familiar with the other projects. i mean, generally it's a function of units. i think commissioner fung could -- generally it's a function of the number of units in the building.

i think here going from two to three is the primary trigger, but there may be others that the project sponsor or others could speak to. >> is the issue a problem because they've already completed the project. the other projects have been demolished -- >> not the building type. under the two units that they have and they continue to propose, it would be r3, but adding the third unit would put them into an r2 classification. >> thank you. >> okay. commissioner fung. >> i think we should make a decision one way or the other, to vote it up or vote it down. >> somebody needs to make a motion. it can't be me. i will just say that i still stay with the -- our intent from

our meeting in july, that i think we should put back the third unit. i realize that it had been the, you know, legalization of taking it out had happened. i think if it were happening today, it wouldn't happen, we wouldn't permit it, but that i do think the project sponsor needs to make us whole in this. i appreciate the author paying into an affordable housing fund. i just don't see how we can accept it. i just don't see a mechanism, and you're not proposing one that's viable, through which we can have that money accepted into the city through some other mechanism. i don't see how it's enforceable. i'm one of six. commissioner fung.

>> i thought that was a motion. >> i can't make a motion. >> i'm joking. all right. just to put it on the floor. i'm prepared to make a motion to not take d.r. as part of the findings for not taking d.r., it would incorporate some of staff's comments, but also that they have made an offer of $250,000. >> can we make in the motion that we -- >> the findings. >> okay, in the findings, that we make a recommendation to the board of supervisors, that we accept it for a down payment. is that a possible thing to put in the findings? >> kate stacey in the city attorney's office. that recommendation on a gift

isn't on your agenda and it's -- it's a different kind of decision. what the commission could certainly do is note that the project sponsor has made this offer of the gift and that it needs to go through whatever appropriate city channels they are. >> that's my only point, that they've made the offer. i'm saying that can be in our findings. it doesn't mean that we're accepting anything. >> commissioner moore. >> i'm afraid that the discussion about this $250,000 shifts the emphasis of our discussion. i believe we have spent a lot of soul searching on the issue of densification, where and how. since this project also still requires their answers, which is another reward for the project, my basic position of july is

reinforced. i've got to stick to my guns and do what we do with everybody else as well. it's actually more complicated by this offer. i don't even want to talk about it because it's not in front of us, and i think it clouds the picture. >> so there is a motion. i did not hear a second. >> commissioner diamond. >> i have a question for the city attorney's office about the vested rights issue that was raised by council for the project sponsor. could you respond to that assertion that was made about those rights. >> kate stacey in the city attorney's office. commissioner diamond, i'm not sure that i understood what the vested rights issue is. when there is a permit violation, we generally don't see that they have a vested right to something that was done

in violation of a permit. or if -- and maybe the project sponsor could articulate better there or again their vested rights argument, the -- depending on what the work was and what they're stating a vested right to, it may have gone away with the permit violations or with the work that was done. i'm just not clear on what the vested rights is. >> can you please come up. i think it's about the illegal unit? >> yes. the permit that was issued to remove the illegal unit was not subject to the enforcement action. that was a prior permit that was validly issued not subject to any enforcement issues. removal of that unit was legally. does that answer your question? >> i think for, right, that was done legally, but then you had a bunch of violations and a lot changed.

where it's not possible for you to take out an illegal unit, so that's what makes it more complicated, but i think -- >> can i ask a question? >> you may ask a question. >> if, and this may be to the city attorney, is there a way to assess a fine against them for the offer amount? >> you can sit down then. do you want to opine? >> sure. through the enforcement action, once there is a notice of violation, there is the potential for penalties. those penalties are limited by the code in terms of how much they can be and how they are -- where they are spent. they go into the code enforcement fund. we can't direct those into any other specific fund. we don't have the power in the code to go above and beyond what the code allows to be more punitive in certain cases than

in others. >> commissioner diamond. >> i apologize for all the questions. >> we got to move on this.

>> it is complicated. i think the other distinction between the other cases that we have struggled with and enforced and put it back. and if you are going to go beyond, if you go beyond to add more density is that this project got a legit permit to

take out the illegal unit. and tipped back before the law changed. it complicates things even more. mr. teague, did you want to say something? >> i had a question of clarification from the motion because we have two plans in front of us today. one would two units and one with three units. i want to clarify if the motion was not take d.r. and approve the two units with acknowledgement that the offer had been made. i want to clarify if the motion was for the two units and not the three. >> that was the addendum to my motion. >> thank you. >> just to address this motion again, if you got a permit and it was a totally viable permit, many years ago to remove an

unauthorized unit, everything was legal, there wouldn't be an issue if we just showed up some years later and said get the law has changed and we are out of the blue asking you to put it back. it is different if there is a discretionary decision in front of you and in front of the zoning administrator where there is a request that can be conditioned and that's what we have before us today. the planning commission has discretion on the permit, the zoning administrator has discretion on the variance. it is not uncommon for either body to have conditions of approval. i think that is more of the scenario we are in today in terms of how it will be viewed. in terms of the variance, justice begun that a little bit, it is an interesting situation. it is after-the-fact and those can always be challenging. some of the factors that are interesting for this site is it is actually -- it is a sloping block on the downslope of the

lot and there's a very strong pattern of rear yard structures and much deeper buildings on this block. not looking at what they are proposing but looking at this property and the context of the plot, i do think there are some interesting things going on that could support some level of variance there in terms of how much of the variance and how much impact that would create. that is something we are all still considering. >> there is a motion but there has been no second. >> is there an alternate motion? >> if there is no motion, the project will move forward as is. >> that's right. >> a defect oh, approval. >> i will second the motion.

i really appreciate your opining on the unique situation that we find ourselves in. i spend a lot of time thinking about this third illegal unit that was legally removed. and weighing whether putting it back as it was and an illegal action was made and how to have us all move this into a productive decision. i would support the motion and second it. >> very good. there is a motion that has been seconded to not take d.r. and include a finding recognizing the offer from the project sponsor of $250,000. on that motion... [roll call]

the motion passes 4-2. zoning administrator, what say you? >> i will close a public hearing for the variance and take it under advisement. >> very good. commissioners, that will place us on item 19. d.r.p. at 2898 vallejo street. this is a discretionary review. >> good afternoon and happy holidays. i am david winslow, staff architect. the item before you is an initiated -- public initiated request for a discretionary review for building permit applications of 2019 for a partial infill of an existing light well on the fourth floor

at the eastside to accommodate an elevator and an accessible bathroom at this location. this addition is within the existing footprint of the floor below. the d.r. requester, the adjacent neighbor to the east of the proposed project is concerned that the proposed addition would block light to side windows and create privacy impacts to her property. to date, the department has received no letters in opposition and no letters in support of the project. the department's recommendation is based on an r.h. one zoning that requires side setbacks. the zoning administrator has heard and granted the variance for the proposed infill of the side setback. if you see the variance decision letter, i believe it is included the d.r. requester's building is setback 3 feet from the common property line. the project sponsor's building

has no side setback except at the portion of the upper floor light well. the proposed location of the elevator aligns with the rear portion of the d.r. requester's house where there are proposed three windows on the west elevation serving rooms that also face a rear yard, which also have rear facing windows. the sponsor has complied with the residential design team recommendations in relation to building meth -- massing to address issues related to light, and since the limited extent of the proposed addition, in conjunction with existing side setback from the side lot allows the requester's windows to remain access to light. staff has deemed there are no exceptional or extraordinary circumstances and recommends not taking d.r. this concludes my presentation. thank you. >> thank you. can we now hear from the d.r. requester? >> good evening, commissioners commissioners.

>> please pull down the microphone. >> my name is mary. my husband mike and i are the owners of 2880 vallejo street adjacent to the subject property i'm here to express my concerns about the impacts proposed construction will have on the light, air, and privacy to my property. on for. twenty-six, 2019, i had a variance hearing that i could not -- on february 26, 2019, i had a variance hearing that i could not attend. i e-mailed the responsible parties to inform them of my uncertainty of the impact this proposed development would have on my property as it was not adequately studied. the proposed construction is in a section of the light well at the east side of the property and into the acquired setback of 5 feet and portions of the said light well. as existing home is nonconforming to current planning codes and built to the

property line on a 50-foot wide property at the stories below, my property does benefit from a light well. the applicant is seeking to infill. i ask them to share my letter of the hearing and recommended further investigation such as a shout of study prior to the zoning administrator making a determination. i was told that shannon ferguson would keep me apprised of any new information. i did not receive any communication from the planning department until receiving the 311 notification plans and later tracking down the variance determination letter approving the infill at the light well. at that point, my only option was to file this discretionary review. the zoning administrator's findings sight exceptional and extraordinary circumstances allowing for expansion into the light well to accommodate an accessible elevator as there are practical difficulties in locating the elevator in the existing envelope of the building.

however, i listened back to the audio transcript from the hearing and cory teague stated that he saw six other locations that could accommodate an elevator and one that could reach all stories of the building. further, the very same variance determination denies a second variance request from the year -- rear yard requirement citing that while the subject building has a unique and challenging layout in regard to adding an accessible elevator and bathroom , it is also extremely large lot and home. with more than 13,000 square feet in the existing home, there are no exceptional extraordinary circumstances related to the need to add more usable floor area. the variance determination seems to ignore or at least -- the requirement to improve that granting the such variance will not materially detriment -- will

not be immaterial detriment to the public public or materially injurious to property or improvements in the vicinity. as my property benefits from this light will, the envelop may be a detriment to my light and air, which is why i request further study. can suit -- assuming the variance determination has been made and not to impede the accessible elevator and bathroom , my husband and i are willing to look past the potential impacts on light and air to our property and accept the infill of the light well. i cannot to look past the addition of a roof deck on top of the proposed infill that calls for a guard rail where -- right at the edge of the property line atop of the elevator with a deck surface some 40 feet above the grade of my property. there is no need for this roof to be an occupy able space as the home already benefits from another roof deck on the highest

rooftop. and as a zoning administrator pointed out, there is no need for additional usable floor area to an already large home. the deck unnecessarily creates privacy and safety concerns and i would ask the commissioners to consider the removal of the deck in the proposed project. thank you for listening to my concerns and my considerations. >> thank you very much. do we have any public comment in support of the d.r. requester? okay. we will hear from the project sponsor. >> good evening, commissioners. on behalf of daniel and gina i am here with the project architect and please excuse allegra as they were not able to attend as they are about to have a new baby. congratulations to them on that. is mentioned by staff, there's no extraordinary or exceptional

circumstances which ex received an approval from variance earlier today from the d.a. in may. as mentioned, staff is on the project that complies and this t line allows for the d.r. requester's windows in the living room and media room to retain access to light. consequently, staff found there were no exceptional extraordinary circumstances. they therefore, recommend not taking d.r. notwithstanding such work, we have reached agreement to reconcile the differences with the d.r. requester to avoid having this hearing, but unfortunately, we could not. they have had a history of gamesmanship requesting changes to this project and if a last -- and they have done such again here. for a little bit of background, there were two d.r. his that were made by both them and the allegra race. they have two projects ongoing of the current time. in order to resolve those cross d.r. is, the parties worked together to come up with a solution. as a result, they withdrew their

d.r. but at the last minute, they required an additional guard rail to be put on the light well that is being infilled. that created a safety concern for their children. as a result, we are here today and we have been working to try to resolve this beforehand. and since starting two months ago, we have reached out to the d.r. requester to engage in mediation with staff. it wasn't until last friday that we are able to finally have that mediation at the last minute. thankfully we had reached an agreement in principle, but like past history, the family has come back at the last minute requesting changes to be made that we just don't think -- we certainly don't know what they want at this point because i haven't put those forward. the agreement that had been reached was to include a two and a half foot planter with

vegetation at the edge at the inboard of the glass guard rail, but they indicated they wanted to make changes yesterday after we weren't able to resolve that. based on the concerns of loss of sunlight, we find their request for an addition of a planter and vegetation slightly peculiar because that would further block sunlight coming through the glass guard rail that was proposed. further, as -- just for perspective, may i have the overhead, please? the area in question is essentially at the same level as the d.r. requester's home. you can see the fifth floor level which is above -- blocks shadow and sunlight as it would come once the sun is over the median, as this portion right here is south of this area and the sun is coming from that angle. further, as part of their

project that they are in the midst of doing, they are removing the two windows that are in their elevation. here are the current windows in question that the staff is filed which still retain light within the infill. as you can see, the proposed plan for the project does not include any windows there. in addition, their plan does not include any skylights or any forms of sunlight to come in through the roof that would come from sun casting over the fifth floor roof. it is a peculiar case because we are not certain that they are benefiting much light from this given the fact that the roof is a full story above and that the infill is going above the third floor which is already built to the property line. the layout of this property makes it interesting and we

understand that there are concerns, but we are not really seeing where it is falling. that concludes my presentation. i'm available for any questions you may have. >> thank you. is there any public comment in support of the project sponsor? okay. d.r. requester, you get a rebuttal. >> hello, my name is john. i have been helping my parents through this process because i am in the industry. understandably we are looking past the light and air concerns and on to safety concerns. our request originally had been to move the guard rail off of the property line to the 5-foot setback requirement. it was something they could not accept. we proposed a secondary guard rail for the safety concerns and infilled that would landscaping. that was something they couldn't accept further. our safety concerns are that of

daniel's, talking about children playing with a ball on a deck that is 40 feet or so above the grade which would be a child falling onto my parents' property. so we are asking that the safest thing be removed the deck and don't make it an occupy able service. it is not needed. there are decks elsewhere. it doesn't serve any egress purposes or anything. that is our position. thanks. >> thank you. you have a rebuttal. >> with regard to the roof deck that is being mentioned, though it is true there are other decks , the purpose of this infill is to create an a.d.a. accessible bathroom and elevator to provide access for his aging mother and as part of that process, his mother will be residing -- excuse me.

residing over here and a bathroom here and the elevator there. the roof deck would allow her to utilize this and obtain sun without going down five floors the rear yard which is accessible only taking the elevator down through all four floors. we respect the safety concerns and understand those and that is why we agreed to put in a planter box that would provide an additional two and a half foot buffer from the glass guard rail, but with regards to removing the roof deck, there is a valid reason why it was being proposed. it was for his mother so she would be able to enjoy some sunlight. thank you. >> all right. sorry, if we have questions for you we will ask you. thank you. commissioner moore? >> i would like to ask mr. winslow regarding the a.d.a.

and elevator that seems to be in a home as large as this one, something i can easily accept. it seems to be a layout which follows guidelines for accessibility. the question i have is the roof deck somewhat caught me by surprise because i only realized when i was looking at the drawing it was not discussed in the staff report as anything that we are approving, and i do not see, since the elevator does not go up to the roof deck, how the person for whom you are creating accessibility would get onto that roof deck. i couldn't quite correlate the two items. >> that is a question for me because i'm not the originator of the program i think there was some clarity that is needed regarded -- regarding the purpose of the roof deck. it was not in reports because the focus of the d.r. request

came in as a result of light and privacy. we did have some negotiations late last friday where i thought a deal was close at hand with the barrier of the buffer between this roof deck that is at the top of this addition, the uppermost floor. >> i'm from the architect for the project. i understand the concern, but there is no perfect solution here because we are bound with the height limit. that is pretty much -- we did extensive studies for where the elevator can go. ideally we would continue it up to the fifth floor, but that is not a possibility. i think the secondary option would be going down five floors. i think between the two going up one floor rather than going down five floors i find settled for just going up one floor would help to take --

>> so, but directing your attention to drawing a, the roof deck we're talking about is in question. is that correct? it is the roof deck that is above the addition of the elevator. >> correct. >> it is not an accessible to my knowledge. that is not part of the accessibility improvements of this project. is that correct? >> correct. it is part of the area that is designed for it. >> you answer my question for me >> thank you. you may sit down. commissioner fung? >> i have a question for mr. winslow also. was the variance based upon accessibility needs? >> i believe --

>> the d.a. sometimes allows variances more readily if it is based on accessibility needs. >> the conversation that took place, the question from the d.a. was characterized as it seems like this is a big enough place for you to find multiple locations for the elevator had you explored that to the architect. and the architect and the project sponsor probably answered, know, this is the optimal from the standpoint of where it goes, to what it is serving, and where it can virtually -- vertically connect other functions in the building. if i'm not correct you can augment that. >> actually, one of the key elements of the variance was an addition to the accessibility and the historic nature of the home itself. as you can see from the overhead , there is a beautiful staircase delved into the home.

the home is an h. and the stairwell is right in the middle we went through a series of discussions with the zoning administrator that he agreed with and we created the extraordinary circumstances combined with the accessibility needs and this is the basic design itself of the home that really does limit the ability to put the elevator in a place without destroying the interior stairwell. that was a key part of the variance granting. >> my question was whether the variance, the granting of the variance was predicated on accessibility. >> i do not know the exact answer to that. part of the variance was granted as a result of the existing condition of the building. this requires side setbacks, however that zoning was applied after the building was built there and some era prior to that zoning designation. i think it was deemed it was an

acceptable exception from the code given the condition of the building in relation to the code >> commissioner moore? >> i believe that the questions that we answered, particularly where the elevator is, are sufficient. i do not believe that this requires taking d.r. and i am making a motion not to take d.r. and move forward. >> second. >> seeing nothing further, there is a motion that has been seconded to not take d.r. and approve the project as proposed. on that motion... [roll call] so moved. that motion passes unanimously 6 -0. placing us on item 20, 2169 206 th avenue.

your last discretionary review. >> good evening, commissioners. david winslow, staff architect. the items before you are three public initiated requests for discretionary review of building permit applications for a horizontal and vertical addition to an existing three-story, sickle family home. it also includes the subdivision of the existing 50-foot wide by 120-foot lot into two equally sized 25 by 120-foot lots that result in two single family homes. there are three d.r. requesters. the first are from 2159 and owners of property to the north of the proposed project. there concerning the proposed work does not comply with the residential design guidelines with respect to scale and character of other buildings on

the block and respect of the mid-block open space, and articulation of buildings to minimize impacts to light and privacy on adjacent properties. the second d.r. requester is at 2166, owner of the property across the street to the east of the proposed project. he is concerned the proposed work will -- the third floor addition breaks the uniformity of the block and is inappropriate. the project extends too far to the rear and blocks light to houses to the north, including solar panels to the building at 2159, and it is new construction it needs demolition permits. lastly it will set a precedent that will change the block. the third d.r. requester of 2163 , the adjacent owner of the property to the immediate north of the proposed project is concerned with the following

issues, that the project proposed addition raises concerns about excavation and impacts to the neighbor's foundation. that the project intrudes into the rear yard and disrupt the midblock open space and lastly, deprives the d.r. requester's backyard of light and privacy. to date, the department has received 26 letters in opposition and 15 letters in support of the project. it is worth mentioning we also had a sitdown meeting a couple of weeks ago. there was some additional issues that we all discovered in relation to the front and i will mention those in the recommendations. our residential design advisory team agree reviewed this and confirms this requires some additional modifications to reduce the mass and reinforce the scale and character of the street façade and preserve access to midblock open space. the project sponsor has incorporated the changes and has

deemed the proposal meets residential design guidelines with relation to the midblock open space scale, massing, in preservation of the street scale staff deemed the project with these changes poses minimal impacts to the neighbors with respect to light and privacy. specifically the modifications we requested were a reduction of the scale and massing of the street by one and setting the third floor for additions back to 14 feet from the front façade , eliminating the roof parapet at the third floor, eliminating the third floor parapet, aligning and proportioning the entry door and windows more in keeping with the surrounding buildings, revising the bay windows to be code compliant and aligning them over the garage doors, at the rear, the popout was reduced on the one side of the project to extend no more than 5 feet preserve the scale and access to the midblock open space