Transcripts For SFGTV Board Of Appeals 121615 20160111

Expect to be joined by june from that division walked in the door and also an with the City Attorneys Office on behalf of the district phones and other Electronic Devices are prohibited. Out in the hallway. Permit holders and others have up to 7 minutes to present their case and 3 minutes for rebuttal. Have up to 3 minutes no rebuttal. To assist the board in the accurate preparation of the minutes, members of the public are asked, not required to submit a speaker card or Business Card to the clerk. Speaker cards and pens are available on the left side of the podium. The board welcomes your comments. There are Customer Satisfaction forms available. If you have a question about the schedule, speak to the staff after the meeting or call the board office tomorrow we are located at 1650 mission street, suite 304. This meeting is broadcast live on sfgovtv cable channel 78. Dvds are available to purchase directly from sfgovtv. Thank you for your attention. Well conduct our swearing in process. Now were to testify and wish to have the board give your testimony evidentiary weight, please stand and say i do. Please note any of the members may speak without taking so, please stand if you plan it testify do you solemnly swear or affirm the testimony youre about to give will be the whole truth and nothing but the truth . I do. Thank you very much so well move to item one general Public Comment this is for any member of the public that wishes to speak not an calendar tonight any general Public Comment seeing none, well move inform commissioners questions or comments and anything commissioners okay item 3 is the board consideration of the minutes of december 9, 2015, meeting additions, deletions, or changes addition to the minute if not a motion to approve. So moved. Thank you is there any any Public Comment on the minutes . Okay. Seeing none we have a motion by the Vice President to adopt the minutes commissioner fung commissioner president lazarus and commissioner wilson with commissioner swig absent that motion carries well move tone to item 4 a rehearing request and the subject property is at 2027, 20th after the board get a letter requesting a rehearing viruses dbi with the Planning Department approval that was decided on the board voted it was properly issued the permit holder and the project to build an horizon addition with four bedrooms and dinging all liquifying and two car garage start with the requester maam, decorate any reason it fled inspector duffy for this im not certain we do but i think that is more about the Planning Commission then issues. Fine shall we precede sir 3 minutes. My name is allen that is my sister were the coowners the property adjacent to the property weve discovered the filing of approval by the Property Owner we find out if the sf Planning Department that was not reports by the city and the 3 impacted neighbors have confirmed in writing no neighborhood notification regarding the meeting if lee lee claimed a preapplication meeting was held and this initiations about the meeting was sent to the neighbors one can clarify it is it doesnt comply monday through friday must be conducted within 6 00 p. M. And 9 00 p. M. This invitation must be sent 14 calendar dazed before the meeting lee didnt follow the instructions many comprehensions and the validity of the meeting first of all, on the signin sheet provided by row there are two conflicting dates of the meeting one is august 2007 and the other one im sorry april 6th, under oath no printed names and addresses that are Key Information the city requires for the meeting another consistency the Something Like that sheet shows held at noriega sheet but the meeting provided by lee it shows the meeting wagon 20th avenue not noriega street and then they pointed out i wendy actually attended the meeting on wednesday august 15, 2007, i have my employers notarized affidavit i was actually at work all day didnt leave my work and also, if i had attended the meeting on the signin sheet should be my signature and here a copy of my professional license and my there showing my signature that doesnt match any signatures on the signin sheet and i also filed a Police Reports on fraudulently and the concerns of the neighbors adjacent to the property site the letters have any signature on it which didnt match the signature of my proposed on my documents so the board denied our appeal on the fact we didnt bring fourth our outlooks and didnt follow the mandatory process that allows us to voice our concerns therefore we ask the board it grant us the rehearing and future investigate the matter in revoking the permit thank you. Mr. Leon and ms. Leno leno the radius map and the address included for you both your names and the address are you saying you, you never received that. We never received the neighborhood notification about the preapt meeting and two neighbors didnt get invited we didnt get anything in the mail we didnt know about the meeting and. Your autograph answered his question thank you. Okay. Thank you. Mr. Williams anyone on behalf of the spokesman it took me and while to find that they go back to the preapplication that was held in 2007 more than 8 years ago and they skip over the fact theyve received all the other mailings i look at the references they make hartley is an architect that was hired at the time he signed an affidavit under prejudicing he held the meeting for a preapplication meeting but no explanation theyve received the other mailings only exhibit one and theres is 2, 3, 4 and 5 and the 367 notification certainly and received the notification from dbi when the permit was orchard they filed an appeal they received notification this year and 2014 and one in 2013 so they want to take you back to the preapplication meeting maybe the da can confirm the preapplication procedures have changed substantially i believe since 2007 and for all i know this was in full compliance as you can see on the mailing lists the address of their address 8023 appears and they had a hearing on the project itself at the board of appeals i dont know what will be accomplished by sending it back or making this project sponsor that has gone through the years of application first having the application rejected in 2003 and new Building Application that was rejected and this was in 2007 and was substantially detailed over a long period of time by Department Review and the neighbors quite frankly and so the preapplication meeting i believe was held and held properly under the rules in 2007 and 2006 and there would be nothing accomplished by making the project sponsor no to the pre. Commissioner fung. The affidavit and the mailing list that you provided as part of this briefing was dated 2014 i see nothing from the 2006 slash 7. Exhibit number one. Which was. Thats the see theyre talking about a preapplication meeting before the second application that was filed in 2008, so the preapplication meeting was held in 2006 and 2007 before that application was filed theyre taking us way back in history. Such not provided anything. Exhibit one. No, thats for the. Preapplication. You have a declaration from hawk lee he executed looks like about the time he filed in april of 2008 and his letter from august of 2007 thats when we held the meeting in august of 2007 you see the list only the sister appears i was guessing in my brief not his wife or sister the appellant didnt receive the preapplication he didnt live there or no interest in the property not on the first list if you look at the documents it is 2007 looks like they was held on august 15, 2007. So the affidavit was actually much later; right . Yeah. And no dates on the mailing list . No. And thats just the way i found it in the file once planning found it. And it was labeled as you can see preapt meeting. Are you finished commission. Last question any response to what they indicate are forges. Their signatures were forged i have no response about that at all again, were talking a preapplication meeting over 8 years ago i didnt have any reason to building that anything was forged or not forged i dont have by information. Thank you mr. Sanchez. Sew Scott Sanchez Planning Department i dont have much to add to note the appellant and both parties in the request hearing theyve not received the briefs are on the mailing list that the city was sending out the 311 notification not understanding why we didnt receive it theyre on the mailing list for the sending of the 311 notification and with regards to the preapplication filing it is changed but it is a code requirement it has been refined and surprised that was done in 2007 because it was really more formalized as part of discretionary review reform undertaking in 2008, 2009 but in any fefbt i understand the hearing all the issues before the project could be raised concerns about the project and the board of appeals is the final party to weigh in thats all i have to at t add at this point im available to answer any questions. So was the process extremely different regarding the preapplication meetings. Yeah. There were not standards the specificity where and when it must be held those came about in 2008, 2009 as part of dr reform process any, any event the issues get addressed even today a project comes in and were supposed to check to see a preapplication meeting sometimes that gets missed and raised during the preapplication process the preapplication is a notice before the application is submitted once the application is submitted that is hard to undo to go back and pretend it didnt happen have the issues addressed and resolved prior to submitting the application you know i cant speak to why those issues are unresolved between the parties i dont know what kind of conversations certainly a great length of time seven years since the application was filed in any events the 311 nose on our records were mailed to the parties involved. Thanks. When i indicated the Residential Design Team preserved changed around 2008 or 9 currently you wont expect a permit application unless you have a preapt. That was around 2008. Also the same. Yeah. A lot of those changes came about as part of progress for the discretionary review process with the preapplication noticed to make it earlier to go require the Residential Design Team review and standardized review that application came in around the same time before and after i cant say. Okay. Anything mr. Duffy no any Public Comment on this item . Please step forward. And because well be speaking through an interpreter okay. Excuse me. I have two pictures id like to show on the overhead. Slide them down so theyre in view. Leave the yeah. Okay. Good evening, everybody i need to translate more understanding. Okay. speaking foreign language. almost 20 years speaking foreign language. my name is simon mar, i live at 2026 avenue living here 20 years i come to object to the project on 20th avenue whereby they fill up a 3 Story Building backyard is back to back to my backyard. Okay. speaking foreign language. im here again second time here to report to you ladies and gentlemen, that i have never received any kind of information regarding this project the only letter he received the two that was designated for september the 14 of this year and november 2nd of this year. speaking foreign language. the reason why im opposing to this plan was because in 1995 i was buying my property the minute that i arrived in the morning i opened my window i can see the whole view of the transit mountains and theres a pretty and consoling view for me and my parents if this building is built for 3 stories that will become when i open my windows all i see a big wall in front of me speeding i would ask that if this is something that happened to your house would what a w would you think in our area most of buildings are older twostory at all and this particular building is a permitted will be rising for 3 stories. If they built twostory i accept but if they try to build 3 stories i oppose. Opposite. Thank you. Thank you. Thank you. The listing in the mailing list for his address shows c k is that him. speaking foreign language. yes, i am. Okay. Thank you. Thank you. Thank you. Is there any Public Comment open this item seeing none, commissioners, the matter is submitted. Commissioners. The standard for rehearing is new information or manifest injustice new information was provided on the preapt and you know rather disturbing to see things that potentially were forgeries, however, any new information on manifest injustice say was brought forth to the subject matter of last hearing the appeal of the permit no new information unfortunately. Discussion. Care to make a motion . Move to deny the request for rehearing on the basis no new information was provided. 0 on that motion from commissioner fung to deny the request. Commissioner president lazarus. Commissioner honda and commissioner wilson okay. That that motion carries a vote of 4 to zero thank you. Moving on to appeal doing business as auto versus the department of Public Health at 1200 geneva avenue protesting the hearing of a tobacco permit pursuant to the all hands on deck on the new tobacco in the primarily district exceeds 45 this light case no. And well hear in the appellant please step forward thank you. So you have 7 minutes to present our case to the board. Overhead please. Good evening all commissioners my name is insuring are you the Business Owner under San Francisco i have a young and new Business Owner if not to try to against the new tobacco law but my side of the story to all commissioners the story happened to me a father and a daughter one day after daughter graduated if college she planned to open her own business she try to borrow a lot of money to buy the business including the advertent so after the ownership the staff tell her not cleveland for the tobacco because of the new tobacco new law and on her applications was denied as a result, the daughter cant sell the large tobacco inadvertent they tried to find a solution and the daughter was disappointed how she should know about the new tobacco law since denied shes working in her business 7 a daze a week and on the 15 hours per day she tried to do a survey and asked around one thousand people including the police and stiff 19city staff and neighborhood the Business Owners and taxi drivers and others to regarding any knowledge of the new tobacco law the result is none heard about the new tobacco law the business started to file the tobacco and the customers are thinking the new Business Owner will be selling tobacco to minors or legally against the federal or city law the business reputation is impacted so, now shes asking commissioners to find a solution for that so dear commissioners if you are the parents of the daughter would you do the same as the staff did as the daughter evolved and tell her theres a new law existing or get the dollar the new law created all we know Affordable Health care act was sent in 2010 by our private by barack obama and to introduce the new law after the law created he give everybody is reasonable period to learn the new law based on on the fact and the reason we believe that this should be given the commissions a formal notice to introduce the new law at a reasonable time especially you see the evidence from the flyers which is the employee sent to me it is dates the 16th of august after the law create after seven months they sent all the Business Owners a form notice we finished our business transaction at that point we hold a lot of the Tobacco Products we cant sell because we dont have the permit so we need a solution how to deal with the large vicinity so i believe the United States democratic country leave people want to emigrated to the United States because they believe that competition ability to pursue life compared to other countrys personally im not a smoker so the new tobacco law a helpful for healthy but at the same time, i Building People also have the firemen of choice very important to rehope our commissioners can reconsider our special case to give a chance to a young Business Owner we appreciate it Merry Christmas to all thank you. Okay. We can hear in the department now. Good evening. Im june the manager of this program at the San Francisco department of Public Health and the viral Health Branch so the law governing our issuing the resale tobacco permit is of the all hands on deck the law was amended in december 2014 by a unanimous vote of board of supervisors and it was enacted in january of 2014 it is a very complicated law we work hard to get our laws as as quickly as possible we issued draft for Public Comment in may or 2014 and then it was finalize in august of 2014 thats what you saw on the overhead with our final version weve been complun along before that in this particular case the law is clear nfl for this Business Owner circumstances dont allow us to issue a new permit we dont have any discretion except in the pacific all hands on deck it is clear we follow the law correctly in the implementation it is a surprised to some stakeholders we did the department and our colleagues at tobacco free project took steven steps to make sure they knew about the change im going to turn it over to Senior Inspector jean young for her interactions with this business. Good evening, commissioners im jean young senior bickering and tonight an overview the departments effort of the outreaching and our investigations conducted to determine that previous presidio which was the sincerely didnt qualify for the one time permit exception and that the department has no discrepancy to issue a new permit under the law in december of 2014 after the law pass interest were several newspaper articles i have examples right here so thats the first thing that came out and then in march of 2015 a marital was sent out to the tobacco retailers and attached to that marital mailer was a fact sheet i have a copy for you to see. Then june my manager explained it was hard to get out rules and regulations those rules and regulations were open in posted on website in may 2015 and then become finalized in august of 2014 in short the new tobacco ordinance basic explicit allow the department to issue new permits under the conditions in district more than 45 permits within 5 hundred feet of a school or tobacco retailer or restaurant or bar the tobacco permits in the ordinance does allow one time permit expectation very, very strict criteria a grocery or Speciality Store this planning code and you have to be a owner of a tobacco shop or tavern exempted health code our staff went out to the retailers to speak to the permit holder on july 20th, 2015, the Department Staff conducted an inspection an geneva and did speak to the permit holder and owner on record at that time the owner was told that the feature Retail Tobacco permit can only be issued to the Grocery Stores or other on given would be severely restricted we have a copy of that inspection for you. So this was the previous owner and this is the letter that the staff had spoke to him issued on july 20th. What year. It was 2015 all occurred in 2015. Was this in the brief. Was this in the brief. Its not there. No. I dont think so. Unfortunately at the time of spregs inspections the Department Staff was not informed of the ownership change we didnt found out until an application was submitted to our department on august 2015 and then i conducted an inspectors myself in september 2015 to share to basic find out the information in our records so this is the picture i shared at the director department of director of Health Hearing thank you. So this is the site right here and this is the gas station part of site this is the auto repair part of site, and this is the snack shop. I also had reached and found the site is also close to two other tobacco retailers in the area so across the street we have stated market which has a tobacco permit and right behind we have the market that has a Tobacco Market in addition to being in a supervisorial district that has more than 45 permits it also has to tobacco shops within 200 feet if you have any questions. I have a question. Sure. You want to start. Let me start this time. Okay. I assume that this location was one was originally authorized was it there on 45 at this point in time. No, when the. When the law. When the law was passed 59 permits in this district. So the way the law works there could be not new ones beyond the 9 00; is that correct. Well, yes. Thats correct. Okay. And since the no copy of the law was provided to us i have a couple of questions what does it say about the rights that when you sell youre business and had a license is there anything in there about transfer . So we can have the overhead please. Overhead please. This is a copy of the rules and regulations and it is very complicated when weve defined a new and amend permit the amended permit is basically one where theres a change of name a miss spelling or Small Business someone changes the name due to other reasons a new permit is any permit that is issued to a new owner under a change of ownership type of situation and the change of ownership is defined in code and so we further begin it we took the opportunity to begin define it means 50 percent overflow room within a 12 month a transfer of 25 so this is a change of ownership which once a change of ownership happened then essential were not allowed to issue a new permit unless the very specific requirements starting with the density but some expectations and sorry i took a long time to get to the answer the competitions are the previous permit holder had held the permit between 2010 and 2015 it is if not more so at least those 5 years but then also that the establishment was a retail od market or a tobacco shop and then thats where this one failed. Because it is a candy counter. Right so the sale of a business didnt necessarily include the sale of a license then basically. Correct. Right. Its too bad timing you visited in late july but they didnt take over until early august. 0 somewhere your staff visited them in july; correct . Is at this point the transfer the business had not occurred; is that correct. So according to the tax clerks records we checked the business registered new business registered on july 31st, 2015. Okay. So who did your staff with. The original owner mr. Chin he was the original permit holder. So what was that explained mr. Chin cant transfer his licensed. Yes. That was so he basically sold a licensee knew would not useable. All i can say he was aware of july 20th, 2015, that he would not future permits could only be issued to retail Grocery Stores or tobacco shops. Okay. Thank you. Questions. I have one give that the new owner has this invent is there any way for her to held it inadvertent on a whorl basis to a tobacco store i mean a retail outlet. Have to have the license. Thats what im asking. A bit of a catch22 we thought about that the question was asked specifically and we were not able to answer that. Has this type of situation occurred any other time. Well, there was one case that was similar that was heard by this board earlier there were some differences though in that one that one was not the exceptions that were not met were different ones so this is a law that has a bunch of ors in the restrictions and part of what our job has been to figure out how to layer our assessment so that it is it is as clear as possible to the regulated businesses what the preliminaries or implementation thats why we sent out the inspectors they visited all the regulated establishment and tried to explain individually how the law would effect each one. And there will be other other. It is difficult one to implement but we do feel youre rules and regulations have established clarity for us about how to fairly and consistently implement. The problem youre stakeholders you talk about in the outreach were those who held licenses not the general Public Comment; right . Thank you. Well take Public Comment anyone to speak publicly on this no ms. Wu 3 minutes of rebuttal. My dear commissioners, i want to conform one thing as mentioned on the previous owners ref the notice about july 20th here is the evidence from the law office and we finished the Party Closing statement on july 7th which is the two weeks earlier than the sent notice i have the evidence right here. It was in your brief. Oh. It is on july 7th and they sent the notices after we finally closings after two weeks at this point, i didnt know. It is this the actual date that was transferred to you. Yeah. This office theres a letter from the lawyer. Did you get the keys for example, that day. Yes. A final deposit. I see that when did you take possession of the business. Officially right about august 26th. August 26th yes . Yeah. Officially from all the transfers. So ill let you finish. Im done. Thats the question i have the department visited on the 7 in july and i see the deposit. No later in july. August 20th to me if the Business Owner were to sell you the property but not take ownership until after that, he was aware he was selling you a license not valid and thats the concern not were not saying the departments issue but the seller that sold you the business you didnt take possession until after that. 2 30 thats why we make the final deposit we know that the Company Final approve. So thats the question im asking so i can have the deposit but what did the actual transfer of the business give you the keys so the Business Owner was aware he was not selling a valid license so newly i took possession of the business. When the first time to apply the tobacco license the Department Staff dont know what the law is then after we applied they created a problem a notice for our cases if we are not have the cases filed out maybe and later date. Fortunately with the legislation at the transfer time and unfortunately you applied in august i believe according to the department it was new to them; right . We received the business license on july 30th first. When did you physically apply for the license. Means the business license on july 31st. So this is august 4th. After that, the Business License Department tell me to apply the tobacco licensed and going to the next wave. Okay. Thank you. Im june with the Health Department so the seller and now the new owner operate a gas station and auto repair and a snack shop those are Business Operations that didnt qualify for the one time permit in the law the locations 12 hundred given in a supervisorial district that exceeds 45 toothbrush permits 5 hundred feet within a permitted so if we hadnt done our Due Diligence ill say we did but that nonetheless have no discretion to issue a new tobacco permit to this appellant. How did you folks establish 45 . A not ranking answer to that question. Take youre time. If you like come to the podium. Derrick smith from the tobacco free project we was part of group that helped to establish that was bans 20 percent above the district that has the lowest number the lowest density. Okay. Very scientific. Yeah. With no future questions commissioners, the matter is submitted. I have a question council when you have a new law and have to draft implementing rules and regulations when arguably takes time what does happen in the introoern period. Good question. Well, in the intervening perpetrator or period the law is applied unless the law is detailed until the regulations take effect less interpretation of the law until the rules and regulations are adopted. Does that happen are there instances the law is adopted and says will not be enforced. I dont recall any specific law i believe that most laws are passed and the regulation maybe adopted or shall be adopted by the Enforcement Department that is generally how it is used. I have one more question for the department you mentioned right before you finished the sellers or owners dont qualify it is the same owner that sold them the candy thing they own the gas station and serve portion. My understanding they sold the entire all 3 permits. Okay. Thank you for clarify that. I have a position. State it. The law is clear and but is it equitable in this particular instance and thats where i find that given the timing and how close that was we only are talking about a matter of days that im a little bit boshgd by the impact upon one of our citizens i would possess the following possibilities that is that we uphold the appeal and approve the issuance of a permit for a period of four months. I think the same thing. From the date that is upon which they received the letter of decision from this board. I want to make sure i understand under the law the placement cant be issued and the law was effective as of july 2015 the notice were talking about a courtesy notice from the depth so basically this is since january and didnt allow permits that will relished i issued from a district where there are four or five permit within 5 hundred feet of another tobacco established, etc. We cant allow the issuance of a priority it is the law. You understand where were trying to go do you have any cigarettes suggestions to get there. Because of close dates we feel the existence of inadvertent and there is no cle in my opinion so i believe that commissioner fong was trying to get along the lines to exhaust their inventory rather than giving it away free to someone else. A permit not in compliance with the law i believe you have been discussing certainly a cause of action against the seller of the permit whether they received the permit or not they sold a permit compliance to the law it maybe possible from the owner can see if outside of the San Francisco so transfer the inventory she has so get a permit somewhere else another way to tackle to continue the matter and see from the department can come up with should creative way to allow this individual to i mean, i would have said a month to sell the inventory as a complete inventory not to allow purposes purposes but a wholesale transaction someone comes in and takes all the Tobacco Products at one time i know youre raising youre eye bros i wouldnt have the background and experience to assess that any further than we already have on the same page with everyone in that it is regrettable situation and but it does i dont know that we have any ability. Understood. I remember. Seems like there ought to be a way. Im willing to she had the motion im willing ill move that we grant the appeal grant the permit for that a period of two months to allow her to wholesale her inventory and in order to get rid of it. The two months to run from the date of the decision from this board. But the pro problem the law indicates were not able to do that. Only if they sue us. No, but if the permit is not a valid permit i dont think shell be able to do it as much as we want to. I hear. Not a valid permit so. It makes all the ramifications to the law. I have another question to the department again so who is particularly went out and spoke to 9 person. It was inspecting john wong. At this point anything on the not the business was for sale definitely at the time they metism him that business was in contract what was effectively the seller said hey, ill selling my business the Department Person should have that in their floats i see a lapse a missing link; right . The department went out there and spoke to the opener on july 20th i looked at the escrows the escrow has been made already to an pr in the inspectors note it is for sale and able to transfer. It didnt effect. It does in a way if they didnt tell him. The error is not the issue. As you pointed out between the seller and buyer. Well, thats what im trying to get at was he made aware at this point do we have the notes available. He question ably was aware that the restrictions would be on a sale of that particular business based on the fact it was in the supervisorial district with more than 45 and candy counter. Does youre inspector take notes on the businesses especially im trying to get at the business was physically for sale at the time youre inspector visited the property. We doesnt have a way not something we inquire specifically unless the person volunteers that information but the purpose of these visits was number one enforcement of the existing the permit assuming that there is no transfer in store and also to let and maybe im for example, ive been a Small Business for a long time im selling my business and the person coming to any place of business is new to me ill sell is noteworthy anything thats what im trying to find the distinction what youre department physically told that individual and if he dropped off a letter that indicates or whether he had a conversation with the Business Owner that is important because some place has invested a lot of time and effort. Yes. I agree and, in fact, the answer to youre question is yes. The inspector dropped off a written memo explaining the restrictions under the law and then in person vertically communicated at the time of the invitation on july 20th. And the seller explicit indicate he was selling the business i dont know from the simply did the inspector didnt note that in theyre not as far as im concerned. Thank you. Dpag commissioners and ann petersen the deputy City Attorney with the City Attorneys Office i want to make one clarification that the law were talking about is the density cap law that went into effect in january of 2015 explicit go into effect in july i want to make sure that was understand. It was understood. The department become without Legal Authority to issue a permitted as of that date couldnt do 0 laughing the department did a great outreach especially and if it did none that have that the law would stand but they did a terrific job of Stakeholders Engagement so i wanted to clarify the law. A little bit of caveat. Unfortunately redress is against the adrenalins. Unfortunately. I will amend that motion to one missouri. Second. So shall i call the roll on that motion. Okay. Then a motion. By commissioner fung to grant the appeal and issue the permit for one month on the condition starting with the date of the boards decision to allow for the wholesale exchange of the inventory commissioner president lazarus. Paving no. Commissioner honda. And commissioner wilson. No. So that motion does not pass the vote of 2 to 20th century 2 without any other motion the departments decision would be upheld by default. So okay seeing no further motion next item. And the decision by the department is upheld. Thank you. We will call item 6 sidney day versus the Zoning Administrator at has to do with i didnt street protesting the issuance of september 2015 a letter of determination stating the planning code didnt allow the roof deck to be used in the rear yard therefore the subject property cant be used for the calculation of rear yard calculation. Starting with the appellant. Thank you. Im the owner sidney day and the architect mr. God man. Were putting up the viciously those are the decks on 227 the decks take of 83 percent of building and the lot on this same amount of space the issue recognizing the rear yard averaging and the code righted the location of rear yard of the adjacent building shall be taken of the greatest depth that occupies one lot line on which the adjacent building is located and has a health of 20 feet above grades or two stories from this wording we understand the rear building wall is not only the wall per say but the line of the greatest depth of the adjacent building two to intentionally choices of words by the authors of the code a rear building wall shall be taken to the line and any portion the building as you can see heres the adjacent building and a portion takes up the lot of the building and is two stories, of course, we included it we thought we should include it for the purposes of rear yard averaging and our planner told you we couldnt and the Zoning Administrator said we couldnt because of the definition of the building so that existence ignores the words taken and the line and choices choose to start at the building wall we see that beginning phrase in the code in order to define the wall it has to be stated and goes ton to define it as being taken as the line of greatest depth of any portion of building we can keep on going around and around we explained it in the brief and im going to turn it over to john to kind of flush out out im john gold man the architect the mask could have said in all cases location of rear building wall of an adjacent building shall be taken as the greatest depth of any wall that occupies half, etc. I think it doesnt say that because it is in the the intention of the writers code they wanted flexibility and the types of building that could be cord considered for the rear yard averaging this plastic deck and stair structure is a portion of building certainly a portion of building we disagree that a building has to have i mean the definition of a building has to have a roof not every portion of building needs a roof we know that many portion of building didnt have roofs not every portion buildings have to have roof this building has a roof and a position didnt thats one of the argument as an architect lets say this deck and structure didnt exist on the back of that building i said to add that deck and stair structure i could only do so to add one in a endorsed section in terms of it is treated the same as a endorsed structure the on time the decks and stairs are not treated the same when in their close to the ground theyre allowed to be an obstruction they can be nor more than three feet and and a at the level first floor occupancy decks are treated differently than building likewise stairs could not exist in a backyard unless their above grade this violates that ill not be allowed to build that will unless i build on endorsed structure in the same spot our argument if i cant build that it is treated like a building for all purposes of building it why is that ignored exwhen it comes to rear yard averaging it doesnt make sense it is going to be treated as if it didnt exist its a major structure what were saying it is not an unreasonable planning expect decks and stairs should not be counts the code didnt say that any portion of the building which is more than 50 percent the width of the lot it could have said any law they didnt write that and those are highly regulated and identical to a close portion of the building when only one story near grades on the lowest level of occupancy then can do a backyard or rear yard otherwise you cant build one in a rear yard setback if i propose that to expanding theyll say no unless an endorsed structure you cant have it both ways lets clarify the code what do we want the code to say thats what were here were here partially because of the project but i as an architect am interested in the city ramifications not clear in any code lets make that clear today or maybe this section needs to be rewritten it is not clear the way we read it is different than the way that scott reads thank you. You have 30 seconds in the letter of determination da says their tread definitely none the sections address decks over one story above grade they dont address a deck of this size and has nothing to do with with our issue the rear yard averaging. Thank you mr. Sanchez. Thank you Scott Sanchez Planning Department so the matter at hand is a question of interpreting the planning code and unfortunately, the planning code is not overall as contrary as one i would like and in and out some are rather longstanding provisions in the code for decades my positions ive been an deserve for over 5 years the application of the code and this letter of determination it consistent with the determinations ami ive made in the past ive been in the department for 17 years now and first started at the information counter to answer questions about the rear yard and the application is the same as i was taught but discussed with senior planners in the department for sometime longer than i have yet when it comes to the rear yard averaging provision that is most relevant rh2 and rh3 when looking at the nature of the adjacent building to determine what is the provision that you can use to qualify the rear wall dont count decks not part of the building that attached to the building certainly not part of building and i think the planning code is straightforward as the appellants have argued so under the general rule in such district the rear yard is averaging to the rear yard shall reduce to the rear lot line of such lot an average between the depth of the rear building of the adjacent believes that is the clearest part of code youre looking at the adjacent code building and further on we talk about the line as the appellants said raised this is in all cases the in an adjacent building shall mean a building along a side lot line and the relocating location of an adjacent building shall be taken as any just a few minutes building that occupies the width between the lot lines on which the adjacent building is located and a height of 20 feet above grade not even you know, i do understand the architects point you have a deck in the rear yard that can be built in the necessarily envelope why not count that there are things can or that can, pop outs how see a second story pop out more than half the width of the lot and at least two stories under is 34 it is excluded in the code because anything under one 36 is not allowed and purposing the general 45 percent for the rh2 and rh3 district allows to encroach the full habitual areas extend and consistently applied the rear wall to not structures if this structure the adjacent structure the deck if this was not a code compliant we want the 311 notification is essentially a variance that requires a variance or other to nova that structure again, it is about giving a greater encroachment into the rear yard and generally want to preserve the block open space it allows under certain circumstances those circumstances are are allowed only looking time building walls so inspector duffy could have a clarification my understanding the deck at the back is more a structure not a building not habitable area again something that is longstanding practices a change in there was a change in the code more straightforward a public process involved rather than kind of an overturning of a long interpretation of the code and from the public buildings we should allow for greater encroachments by counting more things towards the rear yard requirement that is something that the code can address the planning code does change sometimes a year none it shy so if it is something to be addressed legislation can be brought for the record forward to do that im available to answer any questions thank you. Commission do you wanted to hear from inspector duffy . Good evening joe duffy dbi i dont usually speak not very illegal talk to the Zoning Administrator we deal with occupancies rather than a december deck if this building we saw is a commercial building then, of course, the deck and the occupants would be a lot bigger than a singlefamily home the way we look at it is definitely different the uses rather than the zoning so to speak but certainly decks the building is a singlefamily home theres no definitive occupancy it didnt change the know or this the building didnt say r3 and that is an r3 because of a Small Office Space with a huge deco be an Assembly Occupancy it is dependent on the use but the deck we ill agree with commissioner sanchez i be that the rear wall the building is the rear wall not at back or the rear of the deck that is all this its been my experience marketing buildings certainly from a building inspection point of view so im available to answer any questions. Any Public Comment on this item. My name is silva Johnson Johnson on this item as far as 3 six the planning code is made to where that if anything structure on that building it would be very dangerous to be on that side of the planning code on that district it should be put into more like a foot planning code be on hundred and fourth in that dangerous zones for safety matters that i think that it be a whole better situations in alter planning code i think that wouldnt be anyways built not you know lowest on that long theres no shield for the stairway theres no way of this, you know, existing on this property planning code so there can be measurements done and thats the holed up for safety or thats not a safe angle. Thank you any Public Comment . Seeing we have rebuttal 3 minutes for the appellant. John gold man gold man architect i understand what about scott and mr. Duffy was saying it is not an unreasonable planning space from the Planning Department has a policy of george all decks and stair it should be written and scott and in the depth 17 years ive been practicing in the city 35 years when i recent or was doing decks i cant prove this but early residential the Planning Department counted decks and stairs i cant figure out why it is not clarified in the code no reason it cant be clearly written in the planning code it is not clear now so you know the first part of section sacramento was reading we read it to it didnt talk about the this is where walls are defined for the purposes of section and walls are defined as portions of a building a lane established by mount portion of the building 50 percent the width and two stories high not that many decks requirements but when we meet the requirement their major structures and definitely effect the mid block open space so it not unreasonable between the phases of the adjacent building with the determination of rear yard setback that is scotts position it effects the project by two feet were not here because of the two feet but i as an architect want this clarified for me and other architects. We didnt draw that on the deck the first floor scott using the existence of a roof there is a roof on the first two levels of the deck over here a plexi glass roof and a bathroom a closed bathroom. There is sofas right here and microwave oven and koichdz mr. Duffy pointed of occupancy so it is occupied bye as living space. An outdoor furnished room theyve got a whole set of furniture out there theyre using that like an outdoor place. This is the position of the building. So we think that is really needing to be clarified. Thank you mr. Sanchez. Thank you Scott Sanchez Planning Department so hopefully through that and through this letter of detection and the results youll have some finalization about this question from the board does a tremendous to go memorialized this without a code change you dont i cant speak to where theyve not documented through this interpretation but speaking to the provision of that the question about the portion of the building i think that that is in there because otherwise one might say the rear portion of my building didnt meet in provision there is as interpretation the rear wall didnt meet the requirements of this and with the width and two stories tall this is the next he deepest portion of the building so youll come in and the code and interpretation of the crossed section so come in and maybe a portion where the rear wall is one story or maybe smauj shed off the back a laundry off the back but read behind that moving towards the front find building it is 3 stories that portion of, building is counted so not the rear portion but the Cross Section of building thats why the portion is in there and an interpretation going back to 1986 and updated in 2003 that says no wall the adjacent building qualifies the Cross Section of the building then again, we look at that from the rearmost wall well looked at the wall so the condition space moving forward going to the larger part of the building and discussing that with other staff thats how interpreting and beginning that i dont believe that is a new interpretation or change in the application of code. Im available to answer any questions. You may want to tell the commissioners the net effect of the va l o director. The letter of depreciation is under planning code section someone what request a written clarification of the code the question came up maybe to my knowledge has been raised in terms of letter of depreciation but raised here and issued a letter of determination for the official ruling to answer that question and hopefully once and for all so having the standing but open for any other rulings not a private letter by the irs. No, no but the interpretation is only applicable for that it is becoming it is codified thank you. Interesting by the lack ever certain things in youre letter if this letter was reversed than that section wouldnt apply but also means that nonconforming building that extend beyond the Property Line cyber effected by the ground nonconforming. There are interpretation percentage relate to the noncomplying structures so i dont think that the most direct focus on whether or not we count decks the position youll labor market the rear building wall the habitable space thats the wall of the deck it would deal with that scenario well say the building wall is actually the deck. Okay. How about how many decks have been allowed to be constructed in San Francisco 80 through a variance. I mean certainly. A bunch; right . Certainly any deck that will meet the qualifications of half a width and stories in height if this interpretation were overturned those will count towards rear yard averaging now they does not and you know basically increase the buildable areas. Thanks. Wisdom commissioners. This is aaron and discretion. Im not going to say how many years ive been an architect more than you know but unfortunately for them this is code section has been clear to me and their arguing the code section has already been clear to me and having heard cases for too many years its always been not that everything has been consisting done or historically done planes it has to be continued but unfortunately, i disagree with the permit that was made there and in the appellants arguments and that i think the code section is quite clear. Make a motion to strike unless another discussion. Move to deny the appeal on the basis that the Zoning Administrator did for the error in his position. Thank you on that motion. Commissioner president lazarus. Commissioner Vice President honda. Commissioner wilson. Thank you that motion carries with a vote of 4 to zero. Last item on the calendar item 7 sam versus the Zoning Administrator the property on 1703 makinna and appealing the denial of a anytime loss evaporates with an existing lot 20 20 existing lots for the width and less than the riders minimum well hear if the appellant 7 minutes. Good evening Board Members im here im with the Property Owners i want to give you a short goggled this thing gentleman purchased his property in 2006 and a ended up since then under 9 hope one point an extra wide lot to be able to build anything on it over and over the last proposal to split the lot vpdz id like to precede finding by finding as to our points on each the findings from mr. Sanchez number one on his first statement he mentions that the lot is in pattern with the existing lots actually want to show you the block map and actually, the prominent lot size is 25 percent by one hundred dwooe square feet not 44 which is a double lot and in fact, that lot being a corner lot this lot size will be reduced 17 feet if you do do math that lots would be now 3 thousand 200 and 80 square feet only 200 and plus square feet be able to if you comply with the lot width it will be allowed to be two separate lots always want to point out another reason to separate the properties mr. Sanchez mentioned the existing building is so theyre trying to see a way to make sure that the new building has a sited permit approved it is separate from that aside from the obvious reasons it is independently owned by the corner for life on and on on the property finally number two we believe that an harding park given the lot are rh2 and the zones is rh2 from the lot were to be sold to have 3 legal units on each lot finding number 3 phase that this property that the right were trying a assert is not joining enjoyed by the properties there are two lots within the same lot that are smaller the lot were proposing one immediately indirectly immediately behind the proposed prompt and also within two blocks another lot 3 lots actually that are standard thirty by 47 this one on the adjacent lot thats only thirty by 50 and another block over actually, one lot thirty by 18 there is a paper in that area for substandard lots finding number 4 mr. Sanchez goes on to say that the result of the lots would be incapable with the lots in the neighborhood that may be true but i understand his second statement grant this as mentioned with the existing Building Permit site permit the Property Line will be an i think viable line i dont see how teller those had will be incredible to the neighborhood that property sold for one Million Dollars and a 800 million making that more assessable and finding number 520 to promote Beneficial Development they as owners see a potential benefit from over be able to own it separately and being able to finance that separately or sell them separately and we believe that the development has it is if if the future they decide to develop into two units rh2 that is more line with the mayor Madison Square gardens of units fortunately, i realize that creating substandard is not the most approachable way but the argument. All tints and purposes that Property Line being between the buildings will not make any problems for the neighborhood and as a matter of fact nun of the immediate neighbors came to a variance one gentleman that didnt live in the area he said he directs the neighborhood decision that hold one hundred members but i dont know. I cant attest to that but as far as the department hearing directly florida from a particular owner within the three hundred feet i believe there was none thats our argument. You have a site plan of the lot with the exit building on that. Not with me, sir. Mr. Sanchez happens to ill direct any questions. Thank you mr. Sanchez. Thank you Scott Sanchez Planning Department is the microphone open sorry Scott Sanchez Planning Department so the subject matter before you a surveillance of a wednesday, december 16, 2015, to create a substandard lot at the subject property as referenced by the variance requester an associated Building Permit for the construction of a singlefamily dwelling simulated in 2008, underwent neighborhood notification in 2013 and it was not referenced any subsection the subdivision came in earlier this year the concerns i have didnt seem necessarily to be binding to create substandard lots and it is ready for ordinances he can develop and add a dwelling unit the variance is not necessary to allow for the creation of a dwelling unit only a substandard lot that is commodity last week on the overhead and zoom in a bit so prior to the minimum lot codes back in 1946 it does appear the lot was sub divide creating the lot and there are as the appellant noticed there is a very small pattern one lot here that is showing 15 feet wide and anothers that are showing 19 feet wide but the entire block base is 25 feet wide and but typically 50 feet wide and moose are 20 and thirty feet wide i dont have the site plan from the proposal from the Building Permit showing the structure this is the exit building which is been note an Historic Resource a singlefamily dwelling unit in between this and the adjacent structure there is another between showing at the rear the lot and kind of almost a roadhouse kind of development here maybe a party wall where those buildings perhaps so again, just came to the variance hearing and innovate finding the grant of the rehearing to be met and the resale of the property for the Property Owner but not under the circumstances a factor in the finding whether or not something is working to conform the Property Owner in terms of be able to he will is property ive granted variances. Substandard lots those are when it is a clear pattern of development of the substandard lot of the mosaic in the alleys 3 lots and a evaporates for substandard lot at the rear the development in those cases but specifically you have a pattern why where there is developments on the additionally this is the exist pattern in this case, i on the variance are already built the building and plans to allow construction of the building and dont see that the granting the variance to allow a 16 foot wide loot would be beneficial to the city im available to answer any questions you may have was that the other little lot san born shows it as one lot at one time now it is already been subdivided this this property did that come before us. The san born lot are not known for accuracy but the configuration of lot and the numbering of the lot nightclub where lot one and lot one a in my experience those are lots that are created at you know in the 30s perhaps and their documented in that way in a more modern times create lot numbers so im assuming this rearmost portion for a building at the rear i would assume that was done prior to 36. We had some appeals they were tics and nonconforming two cases like that. Those are the party walls and other issues the neighbors but i dont. Theres another one with an issue of getting financing. Yeah. Because it was remember that. You recall that. I have a question i guess i miss that even if it is there, there is an existing house they have the ability to build a second house on the property as zoned and sized so this would be to be able to build essential and third granting the variance allows the construction many third this is an rh2 Zoning District so a family dwelling unit on the lot an approval of an additional. An additional one. To divide and allow the development of a new development on each the lots allow the doubling the density of the lots i mean that is sometimes hard to balance that i appreciate the appellants raising the mayors idea to create as much housing he was right but not a substandard lot. If it is a historical structure are there setback. On the rear side of building thats why the width is so narrow the property lot b maybe the requester can address that my assumes there will be setback from the proposed Property Lines. If it is 60 feet theres a setback. So how layering larger is that lot. 44 by 74 feet currently. Normally without a variance raider or raider or required was it around 4 thousand square feet. Under the code could create 2 lots of 4 hundred plus theyre on the chiropractor but the minimum lot is 25 feet so thats what the variance is because theyre having a substandard lot. Thank you any Public Comment on this item. My name is silva jury box the variance on the lot is not as according to the south west to you know pinpoint the direction of the sunny have a printout i dont know if you look at it or not it says combined two houses and one is small and one large have you looked it lastly i brought it and i already put it into to examine is to do with the southwest and sunny didnt put it on windows which is i had on one is windows and one is big ones and a long window and one was a small window which and im still as constructing more condominiums that is recent construction for attitudes and people that have you know schizophrenia additional problems this will help in this construction that im doing to reexamine a lot of this if you have alongside them lastly that has to do with with the south west opinions and mentally to pinpoint our mind to distinguished an amount of visions to you know easy roof of our pressures we got in the world this is has really created designed in arts have a lot of people that have ideas to our make our minds you know you know hardpressed with the world and drugs like islam talked about thank you. Thank you. Well move into rebuttal you have 3 minutes. Yeah. Well just like to reiterate the fact that the Property Line there given the fact that a Building Permit has been approved already i dont see how this impacts what is up there against the master plan given the fact that ive mentioned before several properties undersized smaller than this property and we can pass the installation to push for soft story allows for listens or Additional Units for added a program to legalize illegal units and this is the Perfect Property example could be welldeveloped without any additional impact of what the proposed building is going to be by creating an imaginary line people walk by and a neighbors they want to know if this is a single or double property and again, it will provide for more Affordable Housing even if the lots and the issue are developing two units on each lot is something youre looking down the line as a potential buyer in the future not the current owners their main plan they own a supermarket a couple of blocks away with the intention eventually being able to develop that it so make take their own and live nearby there so thank you. Do you have any photos of sites or buildings. No sir, i dont. Mr. Sanchez. Scott sanchez Planning Department i did pull up the property other google street and looked at the side wall of that building explicit notice any windows on this side wall briefly florida in regards to the question of affordability im an im not an economic i thought but this have result in more Affordable Housing you have one lot to develop two dwelling units and create go lots with the potential of two units on this and understand it will be used to facilitate the sale that is not more affordable by allowing a project that substandard has the same rights as the 25 by one hundred arrest larger im not sure i will know what that argument is the basis for meeting all 5 finding the variance to meet all 5 finding this is a given hearing and hope youll accept the outlines in my application and commissioners, the matter is submitted. You like to talk about variance. All the criteria or not. Well, in this case i think the faucets excuse me. Yeah, the appellants have not yielded made their case in terms of how they address the findings and you know i dont see anything written there but the fact is there what theyve presented not disspelled with the Zoning Administrator written in his excuse me. I also concur unfortunately i dont see that it meets the criteria to allow variance as well. All the months ago from the commissions. Id like to make well keep is consistent. How about go commissioner wilson. Yeah. Move to deny the appeal on the basis that the findings were not met okay. Thank you commissioner fung on that motion then commissioner president lazarus. Commissioner honda commissioner wilson okay that motion carries with a 4 to zero and commissioner president lazarus. Theres no further business before the board. Third year. Were adjourned for the year happy holidays to all i have 2 job titles. Im manager of the tour program as well as i am the historyian of city hall. This building is multifaceted to say the very least its a Municipal Building that operates the city and county of San Francisco. This building was a dream that became a reality of a man by the name of james junior elected mayor of San Francisco in 1912. He didnt have a city hall because it was destroyed in the earth wake of 1906. Construction began in april of 1913. In december 1915, the building was complete. It opened its doors in january 1916. Its a wonderful experience to come to a building built like this. The building is built as a palace. Not for a king or queen. Its built for all people. This building is beautiful art. Those are architecture at the time when city hall was built, San Francisco had an enormous french population. Therefore building a palace in the art tradition is not unusual. Jimmie was an incredible individual he knew that San Francisco had to regain its place in the world. He decided to have the tallest dome built in the United States. Its now stands 307 feet 6 inches from the ground 40 feet taller than the United States capital. You could spend days going around the building and finding something new. The embellishment, the carvings, it represents commerce, navigation, all of the things that San Francisco is famous for. The wood you see in the board of supervisors chambers is oak and all hand carved on site. Interesting thing about the oak is there isnt anymore in the entire world. The floors in china was cleard and never replanted. If you look up at the seceiling you would believe thats hand kof carved out of wood and it is a cast plaster sealing and the only spanish design in an arts building. There are no records about how many people worked on this building. The workman who worked on this building did not all speak the same language. And what happened was the person working next to the other person respected a skill a skill that was so wonderful that we have this masterpiece to show the world today. Proceedings. And when speaking before the commission, if you care to, do state your name for the record. Id like to call roll at this time. Commissioner president fong commissioner wu commissioner antonini commissioner hillis commissioner moore and commissioner richards commissioner johnson is presents and he building view in the back ambassador commissioners, the first item on your agenda is consideration of items proposed for continuance item o1 bay street modification and variances is proposed for continuance to january 27, 2016, the acting Zoning Administrator willon