>> let's say you are saying you want us to look at substance over procedure. the conditional use process is one that goes down a whole different path. we don't review those. so it would never come back to us. >> okay. >> and yes, okay your architect can ask us. >> architect for the project. could you repeat the question? >> is there any argument to contradict to what the zoning administrators mention to its applicability to your clients situation. >> actually i tried to refer to code section 180 through 186.2. the zoning administrator is referring to this code section if the fringe financial surface using it they move is subject to those code sections. a lot, yes, it's subject to code section but it doesn't mean it's non-conforming use. they refer to nop conforming use to the regulation but they do not say this is non-conforming use and you have to use this code section. they say, this is something we want to you do and refer you to that code section for regulation. we never realize that's a non-conforming use. we just you use regulation a, regulation a to regulate b. >> are you saying you don't agree that that's an applicable section. you disagree in >> i disagree that's non-conforming use. >> you disagree? >> yeah. >> okay. >> i guess i have a question for mr. sanchez. did you say that there was an explicit provision in the 2008 legislation for businesses that were already in existence before 2008 as fringe financial services? >> can i have the overhead to show up on 249, it's actually included in. >> we can't see that. why don't you read it? >> okay. thank you. this part of the appellant's brief 249.5 continuing existing prohibited fringe financial, exhibit 2 of appellant's brief and it's referenced to the code section. so any fringe financial service subject to the restrictions setforth continue planning code of section 186 following and when you refer to 186.1 allows for any non-conforming use may allow within that commercial district only upon approval of a new conditional use application with according to the this article 3 code. >> you have rebuttal if you would like to use it. >> i have nothing further to add. >> okay. >> i have trouble in spanish. >> commissioners, the matter is submitted. >> all right. any comments. >> i have a comment. commissioners, i think the crux here is really whether the use is non-conforming or not. i think it's quite clear that the legislation says that there are no new. this is not a new one. yes, the issues of relocation based upon a non-conforming use triggers 186, however the question is still not clear in my mine that it's a non-conforming use. >> i didn't see that in the statute. >> it says, the za is saying that because it's a non-conforming use that it's a restricted use for relocation. >> i didn't hear it that way. >> i didn't either. sorry. >> sections under 249 existing prohibit financial fringe uses may i continue in accordance with planning code section 186.2. if it's referring to the sections that relate to non-conforming uses and it says that it may i continue in accordance with those provision and only allows relocation through cu, i think it's clear enough that it is a non-conforming use because it's no longer allowed in the zoning district and when it's prohibited in the zoning district it's a non-conforming use. so, but also refers you specifically to the section that allows through a location to a cu. >> i would agree if it was a not allowed use. it would be a non-conforming for one that is continuous. however the legislation is quite clear in saying no new. it does not say that the existing uses are prohibited which makes them non-conforming. i guess that's the point i'm trying to make is that your argument and in fact the appellant's argument centers entirely on that definition of whether it's non-conforming or not. this facility has been in operation for 20 years. it's not a new use. therefore and the uses still allowed. it's a conforming use. that's how i look at it. >> isn't the district, maybe i'm missing something here. isn't the provision in this conditional use, doesn't it make that existing use non-conforming by virtue of being in this new legislation? >> when i read the new legislation in the code it clearly states no new uses. it does not prohibit. >> where are you reading it? >> when they created the fringe financial district. it says i don't highlight like you guys. on page 2 subsection c 1 it says no new fringe financial business be for use. but an existing one is allowed. it's permitted. >> under only the following provision which requires, but that's continuations of existing prohibited, fringe financial. the prohibited ones are the new ones. that's your interpretation. >> that's the way i interpret it. this continuations of existing prohibited fringe financial service uses. so the prohibition according to commissioner fong is the only prohibited fringe financial service uses are new ones. that's why they intended to let this forever. >> there is multiple fringe argued in the city. north of market is one also. i believe there is probably what, four or five, mr. sanchez, fringe financial rud's restricted use districts? >> if i'm out of order. >> you are out of order. >> i would equate it to when had a, let's take an example of a building that extended to the property line and the residential district. the rear property line. that at one time may have been allowed, but as a code change, that is now prohibited. therefore that is a legal non-conforming use. this is a legal principally permitted use because it's not a new use. >> i actually still stick with my original interpretation. i think what it's trying to say and not very well is that the existing fringe financial services that existed prior to the legislation are now prohibited because of the legislation but can be legalized under the cu process. they shouldn't have put prohibited there but that's what they are trying to say that they are now prohibited, but this is how you fix it. >> that's not what the za says. he says if they move. it's not that it's a prohibited use. he's saying the cu, the existing uses do not require a c u at this point in time as long as they are not moving. is that correct, mr. sanchez? >> thank you. yes. one that lawfully existed at the time of the legislation went into affect would be allowed to be maintained and would not need a c u. the cu is only triggered when they are changing locations which it refers you to. i think the language under e, it does talk about continuations of existing prohibits fringe financial service uses. it's not saying continuations of permitted financial. >> yes. i think that's the point. if they are principally permitted then they are in non-conforming use. >> i get what you are saying. >> all right. at the risk of complicating this a little further. >> don't. >> i just want to draw your attention to section e 2, e 1 and 2 which suggest perhaps that, well, i should let you read it for yourself. >> like all legislation this is not clear. >> let's read it. >> which my interpretation they meet. >> i would actually like to hear from the appellant since we gave mr. sanchez an opportunity to give his interpretations. >> i certainly agree that that legislation is confusing and i agree with commissioner fong's argument that the business was never a non-conforming business, but it appears from again to studying this statute and looking and that subsection e which we are all looking and at subparagraph 2 under that and i can see that it will be argued both ways. but the logical inference, the more logical and more fairway to interpret the statute is the way we are asking that it be interpreted that simply the change of location within the district, not increasing the number of businesses, not opening another shop but the change of an existing location does not trigger the requirement sections that are argued by the za. the language of the statute isn't very clear about that. but i think it's clear referring to what was just the referred to. there is not a break in continuous operation. it's been operating continuously. >> but it says provided that location. >> i'm trying to make a substance over form argument is that a block 1/2 change because of the requirements of landlord where the character of the neighborhood is exactly the same. it's simply less than two blocks away, is that fair to interpret that as a change of location in the sense that what the city was trying to accomplish with the legislation >> i think you make some good points but i don't think this is a place where we change the text calling this point over substance. >> can you say where you are headed now mr. wong? >> i appreciate the can dor of the attorney in if we want to get to where he's going we would then sort of just view the one 1/2 block change is not a location change. so i think we can't get there because maybe they are ultimately two blocks from the original site but they have moved all over. i appreciate the arguments and you have made very good points with respect to the policy and the concern that this legislation was attempt to go address and it may not quite fit what your client's situation is but i do think ultimately the zoning administrator's interpretation is one that i would follow. >> wouldn't a move be a moot point in a district. why would you talk about a move because if you are moving out of a district you couldn't operate anyway, whether it's a half a block, it's a move. otherwise you are out of business, right? unless you go one of these other districts. >> otherwise it's surplusage. >> after going over, are we done? >> i'm just going to read it one more time. >> do you have a comment to make? >> no, we've seen similar cases on a building that was pretty much rarely used or abandoned for 20-30 years. in this particular case we have a business owner who was renting prior has now become his own landlord and control of his destiny and personally i'm leaning to letting him continue. he's had a business since 1994 and before the legislation was created and nothing brought up at that point. what the legislature was trying to accomplish or not, i think the business owner has been in business for quite some time and to have him go through this cu process could be the end of his business, personally. >> i don't want to speak for commissioner fong but it would seem that approach flies in the face of what you were getting at earlier which was if we let the zoning administrator stand we are obviating the role of the commission. here in support of the administrator says it will go to the condition and if there is a problem they get their conditional use. >> i would personally deny the appeal. >> i would accept that. i don't think there is a necessity for extra process if it's not required. it's just not across the broad spectrum for any type of decision. i still go back to not necessarily that point but i still think this is a conforming use and principle permitted. >> not to dominate, but if we have issues about the interpretation i would perhaps give the city attorney an opportunity to weigh in. this is his code. >> it's not the city attorney's code. >> i think the question is and i'm reading it again, i want to come up with the right, the one i can stand behind as well. it's just whether or not e applies. even if 2 seems to be the applicable provision, if it's what commissioner fong is saying, it's not an existing prohibited. i think we got that confirmed from the zoning administrator. >> we have to find a use of discretion in the interpretation of the law and that is the high standard that we have to meet. >> okay. commissioners, just to remind you, you have the option to uphold or over turn, you also have the option to continue this case if you want to allow the appellant time to accrue so they won't have penalties. >> what are the penalties? how much are we talking about penalty wise? >> scott san , the penalties are $250 a day. they have not been closed because of these proceedings. they can continue open through the process. i have concerns about continuing the violation of penalties. that provides very little incentive for anyone to actually file an application. they do have a 10 day hearing request period. we advised them since december to file a c u. i would hope they have prepared a c u application and filed within 10 days and if they file within the 10 days before it becomes final and diligently pursue the c u application i would with my authority suspend the penalties as long as they pursue that application. i would be willing to consider that. however i do have concerns that if it's just an open-ended continuation. >> i think what's being suggested is that we uphold the z a and allow the 10 day period for rehearing in which the z a stated would it drop the penalty if they are put in during that 10 day hearing. it's an incentive to get them moving in that direction. a big incentive. $250 a day since december? >> no. the $250 wouldn't be occurring until the final decision. if they file the procedure, they have zero liability and still have to face liability in the future. >> okay. i don't know where it was going to go. but the, i'm still not accept ing of that position and i don't think that section e there applies. >> i think that while i may have some questions in my mind i can't say with certainty that the zoning administrator abused his discretion because this is legislation that planning department has implementing. so that's where i'm going with that. >> i don't think he abused his position. i think he ---erred though. >> okay. >> i will make a motion. i'm going to move that we grant the appeal and over turn the za's decision on the basis that the appellant's use is a conforming use and is not a non-conforming use that triggers the requirement that is indicated. >> we have a motion then from commissioner fong to over rule this notice of violation in penalty with these findings as read into the record that the use is a conforming use at the subject property. on that motion to over rule president fong, no, ton oh no, lazarus? no, honda? yes. the vote is 2-3. the motion fails. required to return a departmental action. unless there is another motion, this would be held by default. >> i would then move to continue this to allow them to file a conditional use application. >> commissioner fong is that to a specific date? >> let's give them two months. >> to june 19? >> okay. >> is there a reason why you would go that route? >> i just think that they should be given a chance. >> they had the chance. it's denied. right? >> well, i think the statute is unclear enough that maybe they should have exerted their right to have this interpret. all minds in this room differ about what it means. i think it's fair to give them a chance. >> but my thinking is i thought we heard that they are going to be given a chance. they have a 10 day period with which to have a rehearing or file a c u application? >> if i can just briefly add, if they filed a rehearing request and submit their c u application, they could then withdraw their hearing request. i would give them more than 10 days. if we can ask the appellant if they can file their c u application within 10 days. >> can the appellant file within 10 days? i think we can do an agreement that they can file within a 10 day period. we have a scheduling period which can take two weeks but i would wave that and they can submit it to me. if they fail to submit within the ten days they can file a rehearing request. >> okay. i think it works either way. i don't -- >> i believe i have a motion on the floor. >> yeah, he has a motion. just wanted some discussion. >> understood. >> call the roll? >> we have a motion from commissioner fong to continue this matter to june 19th. that's to allow time for the appellant to file for a conditional use authorization. on that motion to continue, 3 votes are needed. president wong, no, ton, yes, lapis zarus. the matter is continued to june 19th. >> meeting is adjourned. >>everyone to san francisco's planning commission regular hearing for thursday, may 2nd, 2013. please be advised that the mm