Transcripts For SFGTV2 20130801

N e. July 31, 2013, board of appeals, the preceding officer this evening is board Vice President ann lazarus and joined by commissioner fung and honda and hurtado. At the controls of the boards legal assistance, and im cynthia the boards director. We are joined by the departments that have cases before the board, Scott Sanchez is here and he is the Zoning Administrator and representing the Planning Department and Planning Commission, creco, is here, the chief building inspector representing building inspection. If you could go over the meeting guidelines and conduct the swearing in process. The board requests that you turn off all phones and pagers so that they will not disturb the proceedings and carry on conversations in the hallway. The boards rules of presentation are as follows. Appellants and permit holders and Department Representatives each have seven minutes to present their cases and three minutes for rebuttals. People affiliated with these parties must include their comments within the 7 or 3minute periods. Members of the public who are not affiliated with the parties have up to three minutes each to address the board, but no rebuttals. To assist the board in the accurate preparation of minutes, members of the public who wish to speak on an item are asked but not required to submit a speaker card or Business Card to board staff when you come up to the podium. Speaker cards and pens are available on the left side of the podium. The board also welcomes your comments and suggestions and there are Customer Satisfaction survey forms on the left side of the podium. And if you have questions about requesting a rehearing, the board rules are hearing schedules please speak to the board staff during the break or after the meeting or call the board office tomorrow morning, 1650 Mission Street room 304, this meeting is broadcast live on San Francisco government television, sfgov tv, cable channel 78 and dvds are available for purchase, directly from sfgovtv and thank you for your attention and at this point in time we will conduct the swearing in process and if you intend to testify at any of tonights hearing and wish to give your testimony weight stand and raise your righthand and say i do after you have been swear in or affirmed. Please note that any member of the public may speak without taking this oath purchase su ant to the rights under the sunshine ordinance in the administrative code. [swearing in thank you. Commissioners i have two housekeeping items this evening the first has to do with 4 b which is a jurisdiction request, the parties have requested that the matter be moved to the august 14th agenda in order to allow more time for a discussion of a possible settlement and we need a motion in order to move the matter to that date. So moved. Thank you. Is there any Public Comment on this item . Seeing none, if you could call the roll . On that motion, commissioner fung to reschedule 4 b, to august 14th, president hwang is accident. Lazarus . Aye. Hurtado. Aye. Honda . Aye. The vote is 40 and this matter is reschedule. To august 14th. Thank you. We also have received a request commissioners from the parties in association with item 6 which is peel number 1 3067, protesting a Building Permit at 1045 to move this item to august 14th to allow for the parties to discuss the resolution. So moved. Okay. Again, is there Public Comment on this scheduling . Seeing none. If you could call the roll please . We have a motion to reschedule item 6. Aye. Aye. Aye. That is schedule to august 14th item one, which is Public Comment to any member of the public who wish to speak on an item that is not on the calendar tonight . Anyone here who wishes to speak on an noncalendared item . Seeing none we will move to item two which is commissioner comments and questions. Commissioners anything . No. No. Okay. Sxit em three. Which is the adoption of minutes, commissioners for your consideration are the minutes of july 17th, 2013. A motion to approve . So moved. Thank you. And any Public Comment on the minutes . Seeing none, if you could call the roll on the minutes please . We have a motion from commissioner hurtado to adopt this july 17th 2013 minutes, on that motion, commissioner fung . Aye. President hwang is absent. Vice president lazarus . Aye. Commissioner honda . Aye. The vote is 40 and the minutes are adopted. Okay. We will start then on the next item which is 4 a to the request. 706 Mission Street. Requesters are asking that the board invoke the subject matter jurisdiction of the matter and adoption of findings under section 295 in consultation with the recreation and park commission. Dated may 23, appealed both actions and planning code, section downtown, highrise authorization that the board office accepted an appeal of the planning code section motion which also calendared for the meeting this evening as item number 7. So, if we could hear from the requestors first. You will have three to present your case. Thank you members of the board for the appellant and the requesters on the request. I dont have much to add to the papers. We believe that the 295 section, determinations by the Planning Commission are appealable because they are assumed within and included within the section of 309 and determination 3609 b1 and section 309 b2 and we also believe that the decisions made by the Planning Commissions are permits. And because they do entitle the developer to develop or to build higher than otherwise he would and so it is a land use entitlement and therefore a permit. And to a dispute as to whether thes a permit is technical. There was one factual misunderstanding, the pros ject sponsors brief request on july 8th and in fact it was made on july 5th and i just have to the board a stamped copy of the jurisdiction request and the opening brief and shows that it was stamped on july 5th and therefore within the time period that the project sponsor alleged we had not or the request would end, and other than that i have nothing to add to what we have said in the papers. The Board Members have the copy of the stamped filing with that. Okay, thank you, we can hear from the motion holders. Good evening, Vice President lazarus and members of the board of appeals, my name is margo bradii and a partner representing the sponsor, the plaintiff filed the jurisdiction request that the board takes the jurisdiction over the planning code 295 actions related to the project. And behalf of the project sponsor we would like to respectfully request that you deny those or that request for the following reasons, first they have not met the standard for a jurisdiction request under your rules, the request can be granted on a four, fifth vote of the board where the city has intentionally caused the appellants to be late in filing their appeal. In this case they have failed to show any intentional city action that caused them to be late in filing, and they are represented by counsel that could have filed the appeal and that the decisions were not appealable and there is no basis for granting jurisdiction and if the appeal were not late, the section 295 actions as indicated in the City Attorneys Office that have been given to you are not appealable under the boards rules. And first the board does not have jurisdiction under the charter 4. 106, which authorizes you to hear the appeals of permits or licenses because the determinations made under 295 section regarding the increase in the shadow budget and the significant determination and allocation for the project of that budget are not permits or licenses. And likewise there is nothing in section 309 itself that creates an appealable action for those actions 295 actions, as we will get to later in the agenda, it is certainly a consideration under the 309 process and that is something that will be properly before you, and that does not create an independent right to appeal the Planning Commissions actions outside of the 309 on the 295 actions. And so for these reasons, we request that the board deny the jurisdiction, thank you. Counselors . Did you research what the ability to hear the appeal has to be specifically stated in various portions of the charter . It is my understanding that you do need to have specific authority to hear an appeal. Most of that authority is found in the charter section that creates the board and creates jurisdiction over particular items and there are other areas in the code where specific authority is granted outside of the charter, for example, the sections 309 appeal that will be before you later, section 309 itself has a specific provision in it that authorizes the appeal of section 309 determinations to the board and so it can exist outside of the charter and there is nothing in either section 309 or the prop k for the section 295 actions. Thank you. Thank you. Mr. Sanchez . Thank you, good evening, Scott Sanchez Planning Department, the reasons in the brief for supporting the executive directors determination not to appeal the filing of appeals 295 determinations and planning code 295 does not contain any appeal language in it that will allow an appeal to the board and it is not a permit it is not a license, it does not allow construction, and so, having a determination and section 295, does not allow one to go out and construct a building of this height, of course a Building Application needs to be sought and received in order to have that happen, there will be a subsequent Building Permit application on this and also a 309 application that will be up for appeal shortly after this item. With that i am available for any reasons, questions. I believe that the appellant referred to the determination as the equivalent as an entitlement. That is not the case, it will not allow someone to construct the project, to a license or a permit that dates back to the City Attorney opinion from 1984, which shortly after the adoption of prop k, which we have the section 295 of the planning code. Thank you. Mr. Sanchez if it is not a license or a permit what is it . It is a determination, review and a requirement of the planning code but it is not in and off itself allows any Construction Activity to occur, and so you know, it is part of a determination of a larger project and that larger project is the Building Permit and that is what stated in the City Attorney opinion from is 1984 is that the entitlement is really the Building Application or also it could be the section 309 application and it says in the City Attorney opinion from 84 that you could consider shadow i am impacts and other things in the Building Application but not a section appeal of a section 295 determination, that is what the appellant is speaking here, they are seeking not only an appeal on the application but also an appeal on section 295 determinations and all getting at the same argument, which can be made under the 309 or under the Building Permit application. Thank you. Is there anybody here who would like to speak under a couple of comments on this, if so raise your hands. Okay. We will take Public Comment and i want to just remind people that because this request was filed on behalf of two associations as well as individuals, that any officer of either of the associations friends or 765 Market Street Owners Association and the individuals cannot speak under Public Comment, they can only speak as part of the time given to the requestor or the counsel. Given that restriction, if anyone would like to come forward and speak please do and anyone who is not first, if you would line up on the far wall that will help us to move the process forward more quickly. You will have three minutes to speak for the member of the public. You need to line up on the other side of the room we need to keep that clear because of the fire codes, thank you appreciate that. And if you not already filled out a speaker card and you are willing to do so, ask that you fill it out before you come up to speak or after, it can help us and you can hand it to him when you come toup speak. Good afternoon, i am a former president of the association in San Francisco and being an attorney for the last 30 years and i have been in the San Francisco Community Resident for approximately 19977 and, so that makes it 30 years or so. I am here, not to argue whether in fact there is jurisdiction or not, and whether my particular interest as a res did resident of San Francisco is just the housing in San Francisco. I think that it is admirable and ideal that the Downtown Developers are thinking or even more Community Conscious and seek to allow and include community organizations, Community Service organizations such as the proposed Mexican Museum. This county, to city and the state owes a great deal to our contributers in the past and i can go as far back as the russian resident. As well as spanish and mexican and irish and as well as italians and well as others living in San Francisco and contributing in San Francisco. And allowing a museum that gives the new development to permit the people from out of town to see San Franciscos commitment to diversity and San Franciscos commitment to the historical routes and if you do have jurisdiction to rule on the item to be an asset to San Francisco. Next speaker please . Good evening, lazarus and commissioners, my name is inaudible and i am a former president of the San Francisco Lawyers Association and also a life member. I am a former assistant District Attorney in the city and county of San Francisco. I am here comment on behalf of 706 mission and the Mexican Museum. Those of us who have been members of this community for so long, the Hispanic Community about been waiting for a very long time to realize a dream. You can be assured that the appeals are brought without permit, and they are indeed, frivilous on behalf of the Lawyers Association and the Hispanic Community and in San Francisco california, because we dont have a history here and in other states. I am here to urge you that you would deny the appeals that i speak for it and by doing so, you will enable the project to continue forward to become a reality and to serve the community. And where people who visit San Francisco can see this community at work. Thank you for your consideration. Thank you. Next speaker, please . I am sorry, could you speak into the mic . Okay. Good afternoon, commissioners, my name is inaudible , and i am a member of the latin o inaudible and club, and i am here to speak on behalf of the 706 Mission Street Mexican Museum project. Our organization represent the interests of the Latino Community in San Francisco, we have followed the various city processes before the various commissions. On the vote and the supervisor relative to the appeal before you. And they have been a fair and open process, of all levels of City Government from the planning classes to the Historic Preservation to the Mayors Office and the board of supervisors. For example, the eir, for the project was approved by the Planning Department and the opponents appealed to the board of supervisors and the board rejected the appeals and the er r, and certification by 11 to 0 vote, and just last week, and just yesterday, they were against voted inaudible to approve the height of the project. Please, do not be fooled by the opposition false allegations before you. The truth is that the first residents and they viewed the block. And they are not protected. This truth is that all of the city entrances have done an excellent job in possessing it over the project and please do not let a few nay sayers, try to allow these well sought out, and worthy process through a frivolous appeal. And please reject the appeal before you. By doing so you will empower the Latino Community to finally realize the dream of building the Mexican Museum of the garden art district. Thank you very much. Next speaker please . Good afternoon commissioners, my name is inaudible and i am here as a member and representative of the latino leadership committee, our Committee Works hard to request the best requests of the community in San Francisco and particular to the best interests of our children and youth. We want to assure you that the Mexican Museum is a beacon of light for the children and youth and families and it is time for the museum to take its place at the garden art district. Our community does not own deserve it but we have earned t many of the people and Artist Community leaders have worked countless hours for years to make the long held dream a reality and our art and culture deserves the place in one of the best locations in the city. And finally the amazing Art Collection that chronicles much of our history will have a home and i ask you to urge, and i ask you to urge you to reject the appeal before you, which ends to derail the Mexican Museum from being built and our Community Demands and respects that it deserves, 11 to 0 vote at the board of supervisors and please do not let a few get in the way of what is the right thing to do which is to support the Mexican Museum and please vote no to the appeal and let our community proceed to build the Mexican Museum. Thank you. Next speaker, please . Good afternoon, my name is pete inaudible and i have been in the mission all of my life and i was there and i lived in there when it was first conceived and i know the history of it and i have been watching what has been going on with this whole process. And for me what it boils down to is inaudible and good luck. And simple as that. And some people dont want this project to go on and it will be in the backyard and using every resource to come up to create good luck to stop it. All of the commission and Planning Commission and they all approved it and know what is going on here and it is about we have deep pocket and fight it and fight it until someone believes and hopefully we will get our way and we got to put an end to this in the city and this is the kind of thing that just tears a city apart and not only in this issue but on other issues but we are not washington, d. C. , you know, we dont have all of these lobbyists and paying all of this money to force their way. This is San Francisco. And i want to repeat what everybody has said you know what the deal is, please, support the Mexican Museum and the project and lets stop this madness. Thank you. Any other Public Comment . Seeing none, commissioners, the matter is submitted. I have a request for counsel for the appellants. In your research on the various City Attorney opinions did you find anything beyond the 84 opinion . No. Nothing . No. That is the City Attorney opinion. It might have been doing land use law for 25 years and these motions do not constitute a permit is absurd. Thank you. Commissioners in reviewing and having to remind myself about prop k and the various processes that were installed to deal with that and the fact that it crossed jurisdictions with multiple commission its was clear