commissioner fung: mr. kornfield and mr. sanchez, once a decision is made, are very helpful, but i believe they are indicating there is no other option. i am prepared to make the motion, but i need to know which portion of the building you want on this permit. >> let us build the house. commissioner fung: then i am going to move that the permit be upheld and that the permit reflects the construction of the new structure in the front. president peterson: the permit reflects it? commissioner fung: excuse me. the gallery is in the front. the house is in the rear, the addition. vice president goh: just fyi, my intention is to vote against the motion. i am not sure if four votes would be needed. i hate to do this to commissioner hwang. commissioner fung: we have not voted yet. i am prepared to make the motion. i think i better explain to the audience that four votes are required to put a condition. if one of the four does not vote on it at this point in time, what we do is we continue until we have a full toomroom of five. commis

commissioner fung: it is about reducing part of the process for all of the people in this room, a -- including the appellant. their capability of appealing occurs on the second permit. vice president goh: i see. the appellants could still appeal. commissioner fung: it is

commissioner fung: thank you. vice president goh: i was trying to confirm the time period, because i did not understand. i am sorry. i need you to approach. the building that you just described took place over what time? >> i have only been there for about 10 years. about 10 years of it. president peterson: is there any other public comment? >> good evening, board of appeals. i am with the bernal heights neighborhood center. i am here to speak about issues of concern to the community. wheat serve the community to moderate issues such as the one you are considering right now. when people come into the community, we want them to participate. one thing sam and his family have shown is that they participate. they are engaged in the community. they are engaged in a number of issues. and we look forward to having them participate through the neighborhood center and through the bridge building we do every day to connect people in the community, to make sure people are acting as neighbors. we do not just work at these mee

commissioner fung: i think ms.short was talking about a tree that grows to that size, versus what we talk about. commissioner garcia: she is saying both. she meant both. president peterson: commissioners. commissioner garcia: i hated to reward someone, whether consciously or unconsciously, this tree was not cared for, but even if it had been, i do not know what effect it would have had on the decay at the base, and it is a significantly large tree, and were it to fail, the damage would be extreme. i do not want to success we got -- suggest we got a wink and a nod from ms. short, but i am leaning towards allowing them to replace the tree. commissioner fung: i think it is ok to banter with ms. short. i think i have been fairly consistent in supporting the rights of the property owners to replace trees and to replace trees that are appropriate for an urban setting. this one gives me pause because of the significance of the size of this tree and the fact that it represents something that is not very common in san franc

i hear commissioner fung. i hear your comments, yet i do think we have evidence in front of us indicating that the better part of the illegal addition was done in the '90s, and we heard from the neighbor who has been there 10 years, so it is even possibly more recently than that. then we looked at the 1990 sanborn map which mr. kornfield suggested as part of a device for doing the research, and mr. sanchez showed us a line of where the existing building is, which is far away from a little pop out that the map shows. i mean, it does seem like there is a great family here, and a family that would participate in the community and act as good neighbors. they would be my neighbor, several blocks away. but i am having trouble with it. on the other hand, as mr. vested rights. we heard it conforms to planning codes prior to 1978. i cannot say i am persuaded by either policy. we need to do whatever we can to keep families here in the city. i would be inclined to uphold the permit. with that, i will make a motion to do

commissioner fung: mr. sanchez, i saw your documentation, but i did not see a position by yourself or the planning department. >> our position on the rear yard is, at this point in time, we don't have any evidence is a legal non compliance structure. that is why we had issued the stop work order because we did not have any evidence it was a legal not complying structure. commissioner fung: and that was based on the permit history research? >> right. commissioner fung: okay. president peterson: thank you. it is there any public comment on this item? seeing none, commissioners, the matter is submitted. vice president goh: i have a question for mr. sanchez. if we were to grant jurisdiction in this, what would we have in front of us that we do not have in front of us in the matter that we are hearing later? >> there are several possibilities. if the board grants jurisdiction, opening the appeal went up, i imagine it would be six weeks out or so that the appeal would be scheduled. if at that time the board finds

commissioner fung: aye. >> > go > goh? jurisdiction is upheld. >> we could call item five, or i am wondering if you might want to either call that or item seven, because we have the department of public works sitting. >> i think we should go with five. >> if people could clear the item quietly, please. >> 5a? >> a and b. >> 5a and 5, appeal numbers 10084, 10085. for both appeals, 1321 de haro street. it is the protest of the granting on july 20, 2010, to bedrock structures l l c a rear yard variance. this public hearing was held and closed october 6, 2010. for further consideration today, both matters will continued to allow time for the variance holder and the zoning administrator to submit additional documents pursuant to the board's comments. president peterson: i want to make sure that everybody who needs to be here is here. i see the attorneys are here. i know the architect is here. ok, great. we're going to give each appellant three minutes, and we will give the permit holder six minutes. >> thank you, i am here on b

vice president goh: commissioner fung: 2. -- .vice president goh: thank you. commissioner fung: mr. sanchez, do not go yet. vice president goh: a swimming pool. can you talk about those? >> i do not have specific information on those other than what was presented to you. there was the permit holders' evaluation today. vice president goh: ok. commissioner fung: it was stating in here that one of your planners worked extensively with the permit holder. >> yes, as the project's sponsors indicated, it has been a process of 4.5 years. it was submitted in 2009, but there was an older variance decision, and i am a little unclear how the contact first began, whether it was a project review meeting or they first came to the department to discuss it, but it is common for members of the public to have a project review meeting, and that is when the first to engage with the department, and they will take the proposal and make changes based on department comment, and there was 2008. commissioner fung: prior, there were other levels of review it beside the single planner. >> yes, the design team h

commissioner fung: i do have a comment, a little bit late. let it be noted that i think noticed was appropriate -- notice was appropriate. i am willing to vote with granting only as a matter of potential equity, given the fact that the fines are so great. >> any other commissioner comments? >> on that motion from commissioner garcia? commissioner fung: aye. vice president goh: aye. president peterson: aye. commissioner hwang: aye. >> thank you. the boat is 5-0. jurisdiction is granted and a new 15-day appeal period shall be opened. president peterson: i am wondering if you have been able to confirm whether 421 is available?

commissioner fung: i do have a comment, a little bit late. let it be noted that i think noticed was appropriate -- notice was appropriate. i am willing to vote with granting only as a matter of potential equity, given the fact that the fines are so great. >> any other commissioner comments? >> on that motion from commissioner garcia? commissioner fung: aye. vice president goh: aye. president peterson: aye. commissioner hwang: aye. >> thank you. the boat is 5-0. jurisdiction is granted and a new 15-day appeal period shall be opened. president peterson: i am wondering if you have been able to confirm whether 421 is available? >> it is available. president peterson: thank you. just to let people know, we have to keep the aisles clear. if you cannot find a seat, we have to ask you to move to the overflow room, room 421, just down the hall. if you could call ite 5m 5a, please. >> : eye toa an fived -- calling items 5a and 5b. the appellants are the cane and tutoring centers service and the chinese gospel church -- are the canaan tutoring centers s

c9÷>on that motion, commissionr fung -- commissioner fung: no. >> vice-president?ice president goh: no. >> president peterson? >> aye. >> the vote is 2-2 to uphold the variants. four votes are needed to overturn any department action, so by default this variance is upheld. >> do we need any other commissioners vote? >> it would not make a difference. should we move forward? president peterson: we will take a short break. >> ok, thank you. president peterson: we are ready to resume the meeting of the san francisco board of appeals. please call item six? >> calling item 6, appeal number 10-099, academy of art university forces zoning administrator. property is at 460 townsend street. it is the appealing of a notice of violation and penalty dated august 25, 2010, regarding the operation of an unauthorized educational use at the subject property. president peterson: thank you. you have seven minutes. >> hello. my name is david cincotta, and i am here on behalf of the academy of art university. the zoning administrator has determined that because we don't have an instit