this is a small alley, in essence, with a dead end. there is probably a number of concerns related to phase two. however, that is not before us. what is before us is based on essentially a single-family home. does it conform to the current bernal heights special use district codes? it does not. however, i could find it a modest non-conformance. the fact that the objectionable part is in the rear, in terms of what may have been a handy man or owner-initiated construction. that it has been removed, i find a acceptable, and that leads to my decision to support the legalization of this addition as a legal non- conforming use. my suggestion to the owners is i think they may have a more difficult time going through phase 2. vice president goh: this is a hard one. this is a hard one. 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 so. commissionr fung: with findings to come? president peterson: do i need findings to come? commissioner ungfung: would we say this predates and becomes a legal non-conforming? president peterson: very well said. vice-president goh: just three votes? >> it would take three votes for the motion to pass. if there were two votes and no additional motion, it is a matter of law. vice-president goh: i am trying to decide whether i can say in my undecided place. i think i can. commissioner garcia: this is about upholding the revision permits? >> that is what is before you. commissioner garcia: we uphold that. >> the stop work order is not before you. what is before you is this revision permit. the motion that is on the floor right now would deny the appeal and upheld the permit. commissioner garcia: depending on what the vote is, the planning department could rescind its own stop order -- stop work order? >> got sanchez, planning department. if the board finds it is a legal non-complying structure, the department would rescind the stop work order because we would have nothing to stop work on at that point. there are many reasons i am sure you can find to justify that, if the permit was lost, perhaps. it is up to the decision of the board. commissioner garcia: now the question would be that because we are just going beyond upholding the revision permit -- we are trying to conclude the fact that we consider this to be a legal non-conforming. do we still need only a simple majority vote or do we need four votes? >> 3 votes to uphold. four votes to overturn. you can stay with three. >> the motion is to uphold the permit on the basis of the prescription -- on the basis of the construction predating the code change, and it is a legal non-complying structure. president peterson: a permit may have existed to do that work prior to 1978. there is evidence that is reasonable to believe the permit may have existed but has been lost. vice president goh: with the motion stated in that way, i would vote against it. i do not think that we heard credible evidence indicating that it was -- that the addition was done in the last 10 years, certainly. but you do not need me. is that right? if you need me, then i want you to keep talking. commissioner fung: the issue -- some of the construction you were talking about, as referenced by the architect and the neighborhood -- is ok -- was related to the water heater. we know that portion was added perhaps later on, but that portion is being demolished and not being rebuilt. i am not comfortable with that last finding either, because i cannot say that we know it was lost or not. i would prefer that we go ahead with the bases that we find -- the basis that we find it was built predating 1978, when the code change. therefore, we find it to be a legal non-confining structure. president peterson: we did hear testimony it could have been lost. commissioner garcia: even if it was built them, it would not have required a variants, but we need to do with the fact that there was no permit. it can be non-conforming, but it cannot be legal. commissioner fung: if we are saying that we believe this was constructed predating the change in the planning code, whether it had a permit or not, we are now finding -- now doing findings that it has become a legal non- conforming -- the non-conforming portion only relates to the more recent code change, the more restrictive code change. president peterson: will the findings need to be if it were more of a vested right basis? madam city attorney? >> i believe what the planning department has said is that you need to make a finding that this is legal non-complying to get a variance to proceed with this work. commissioner garcia: we do not need to find that a permit existed? vested would seem to me it is based upon a legal permit having been issued. >> i would defer to planning and building department as to whether legal non-complying require some evidence of a permit having been in existence. >> scott cinches, planning department. the fact is that it is a legal non-complying structure. that is the finding we would need to have the board make to rescind hour stop work order. commissioner garcia: we can leave the part to do with the permit out? >> commissioncommissioner fung:g to the planning department. >> commissioner garcia: that is who is here. president peterson: we would find that it was built before the change to the planning code and is a legal non-conforming structure. >> on that motion from the president -- the vote is 3-1, the permit is upheld on that basis. >> commissioners, we still have the jurisdiction request open and before you. ipresident peterson: i will make a motion to deny the jurisdiction request. >> ok, thank you, if you could call the roll on that. vice president goh: what was this jurisdiction request for? commissioner garcia: the original permit, not the revision. vice president goh: 1 1/2 years ago? >> yes, is remodel the envelope. vice president goh: i got it, thanks. >> on the motion from the president to deny the jurisdiction request, commissioner fung? 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 behalf of the potrero boosters. we got the supplemental submission. i don't think there was anything particularly new in it, except for the fact that the permit holder now is saying that they are not going to put their garage on de haro street, so the whole time that we spent talking about the easement, we don't need to talk about that because it is not going to be on de haro street. but we do need to talk about the fact that even though it is no longer going to be in the back of the building, and it was what was presented to the planning department, the permit holder still wants to keep the same two stories in the back. i assume it is going to be a living space. one of the things the finding from 1993 was a much smaller addition would tower over the open space and would create problems with views and it was not necessary. we did a little bit of a sketch on the plans that were submitted by the permit holder. if we could turn on the overhead? you see what we have done, in the black lines, the existing dwelling, and the rest of everything is the proposed building. what the permit holder said was the proposed building will be the same height as the existing building. you see from this sketch that is misleading as to the effect that the new buildingp6 have on open space. it is going to be massive. it is going to be and the variance area as its slopes up the hill. it becomes even bigger and intrudes more on the views and a shadow on the open space. the recreation and open space element talks about the need to have some light in public open spaces. that is what we have here, the need to preserve some light and public open spaces. there is no need for the various area to be two stories. it is should not be in the variance. they've not establish the need for one, but if there is going to be something, they don't need to spaces. they took out their broadcast -- they took out their garage, and they have more living space. vice president goh: i have a question about that drawing. could you put that back up, please? will you show me on the drawing where the rear yard setback should be? i think you have it written there, but it is hard for me to read. >> it is hard for me to read. vice president goh: we can see it on the overhead if you point to it. >> i have asked that the gentlemen who did a drawing, if that is all right with the commissioner, to have him come. vice president goh: i think so, because he is pointing to a line. >> he is also an architect. if he could show as the variance. >> the old building, the existing building is in the rear yard, but it has the whole front. so now the new building is taking up the front as well as the rear. >> mr. will? >> good evening. i will share my time with the president of the open space. you have in front of you two variants decisions on the same lot, and we have never heard an explanation as to exactly why they are the opposite. there was no extraordinary or exceptional circumstances found in the 1993 decision. there were found in this most recent decision with no reference to the old decision at all. it was written as if it was in space and the old edition never happened. it says the nature and the siting of the adjacent property is what creates the problem and this extraordinary situation, which is a hardship that has to be overcome by doing away with the code minimum rear yard. that is just not true. the rear yard is the same for every building except this one on that lot. this building across the open space is in the exact same situation as the current building. there is no reason why that line should not continue all the way across. that is all the way it -- that is all i have to add to my briefing. i will give the rest of my time to caroline. >> good evening. i will follow-up on what steve just said. the drawing on the overhead it again? this shows from the open space we have sweeping views of twin peaks and of the city. this is over the rooftop of the houses. you notice the one place where the views are obstructed is as it currently exists. that is because that is in the rear yard area and therefore much further of the steep hill. the proposed building, they talked about the height. the height we are measuring is from that peak, but horizontal. it will block more. a big concern is if this house is granted a rear yard variance, the next house will have that as precedents. if this gets covered with rear yard variances, we will lose that entire view. we talked about the definition of public and open spaces. it it should be granted on the master plan. the open space belongs to the community and it is for the use and benefit of all. that is the definition of public in the webster dictionaries. that is often supported by government funds, that is not what makes them public. it is created with the assistance of the city government as mitigation on overly dense development nearby. it needs protection. what you saw on the drawing is significant. this is adjacent to an elementary school and also to public housing. there are a lot of people who cannot get access to parks outside of the city, nature, and all of that. we're hearing more and more about children not having access. thank you. vice president goh: i have a question. you mentioned this last time in just touched on it now, he said it was created as mitigation for overly dense development, and you are talking about the building on the south side of the hill, adjacent to the open space? >> yes. vice president goh: i am familiar with the area. those appeared to be some kind of townhouses are something that are built on a road that was created for that development. could you talk more about that? >> originally, that land and where the open space is now was all government housing, and then later public-housing. it was torn down. my understanding is the developers to purchase that prop. one it to do very dense development with the rear yards -- the developers who purchased at property wanted to do very dense development with the rear yards and half of the land was set aside with open space. essentially, the rear yard of the house is that occupied part view heights, to balance out the lack of rear yard. it was set up as a non-profit, volunteer board, to govern for the neighborhood. vice president goh: looking : looking2, there is a photograph -- looking at looking2, there is a photograph and you could see the development. there does not appear to be any backyard. >> there are some people in the audience who live in park view heights. vice president goh: maybe they will speak. it is the agreement that was made it to keep this property open and mitigate that ultra- dense development, is that written any place? >> i know and are articles of incorporation is a nonprofit. i dunno if they say it is direct mitigation, but the articles of incorporation made clear that the land is to be undeveloped and unencumbered and maintained by a nonprofit board. vice president goh: okay, thank you. commissioner fung: the photo that you showed that looked at the roof of those homes, from that point, the hill slopes up words, doesn't it? >> that was looking west, and little bit north? commissioner fung: yes, the open space slopes up from that, doesn't it? >> that was pretty much where i was standing, when i took that photo, it is the main flat zone, the open space slopes down, with the same slope the buildings are built on, adjacent to 1321. the open space goes to the side view of the house, as seen from the open space. it commissioner fung: thank you. president peterson: thank you. you have six minutes. >> thank you. i am the architect for 1321 de haro street. we have an exceptional property here. unique circumstances. the property is not like any other property in the area. that is landlocked with no street frontage. it's it's on a hill -- it sits on a hill. it is more like a backyard and it has a side yard facing an open space. this property does not fit the standard residential what configuration -- what configuration, and therefore should not be held to the liberal enforcement -- the literal enforcement of the required rear yard code. r five at various findings which are before you are clear and concise.