representative. scott sanchez in the front row is the zoning administrator. duffy is here senior building inspector representing the department of building inspection and urban forester representing the bureau of urban forestry. mr. pacheco, please go over the boards meeting guidelines and conduct the swearing in process. city clerk: the board request that you turn off all cell phones and pagers. please carry on conversations in the hallway. appellants, permit holders and department representatives have 7 cases to present their cases. speakers must conclude their comments within the period. public comment has 3 minutes but no rebuttals. to assist the board in accurate presentation of minutes, m members of the public who wish to speak on an item is asked to please fill out a speaker card. the board also welcome your comments and suchlthsz -- suggestions. if you have questions about a hearing, please call the board office tomorrow morning located at 50/50 mission street room 304. this meeting is broadcast live on san francisco government television sf gov tv. thank you for your attention. at this time we'll conduct our swearing in process. if you are going to testify, please stand and raise your right hand and say i do after you have been sworn in or affirmed. please note that any member of the public may speak without being sworn with the sunshine ordinance. you'll do you solemnly swear or affirm that everything you will speak is the truth and nothing but the treetsdz. -- truth. >> we have item 6. requests a tree removal. i understand these parties have asked for rescheduling to see if a resolution maybe worked out. we need a vote in order to move that. >> i move to continue. >> thank you. is there any public comment on the rescheduling of this item? seeing none, mr. pacheco, if you can call the roll. >> on that motion from commissioner hurtado to continue this meeting until april 30th. on that motion commissioner fung, hwang is absent, vice-president lazarus, honda hurtado. this meeting is rescheduled. >> next item is no. 8. requesting an alteration, the parties are asking this hearing be rescheduled to may 14, 2014. mr. fung, i hear you have a conflict in this case and should not participate in a vote about this even though it's about a rescheduling. >> for the record i have financial interest within 500 feet of the subject site and therefore ask the board to recuse me from this vote. >> i would move to continue until may 14. >> thank you. is there any additional public comment? seeing none, public comment is closed. mr. pacheco? >> on that motion from commissioner hurtado to reschedule this matter, 13-175 to may 14. commissioner fung is recused. the vote is 3-0. this matter is rescheduled to may 14. >> thank you. lastly as item no. 10, appeal no. v 14 has been withdrawn and will not be heard this evening. we can move to item no. 1 for any matters none on the calendar. is there anyone wishing to speak under general comment? seeing none. item no. 2 is the election of officers. when this came up you asked it be continued until we have a full house and i wonder how you would like to proceed tonight? >> that would be my preference. unless there is objection from anyone else. i would like commissioner nwankwo -- whang to be here. >> i would prefer to vote. >> the last time it was on calendar and she knew she had to be out she said it would be fine to proceed. yeah. i got a text from her as well. >> shall we proceed then? great. so this is pursuant to article 2, section one of the boards rules and typically the board starts with the office of vice-president. if you would like to do that again we can take nominations for office. okay? >> i would like to nominate hurtado. >> great, is there any other nomination? seeing then commissioner hurtado, are you willing to accept this nomination? >> yes. >> we should take a vote on the nomination of the vice-president. before we do this, is there any public comment on this? mr. pacheco? city clerk: with a motion from commissioner honda to elevate commissioner hurtado to vice-president. on that motion, commissioner fung, vice-president lazarus and commissioner hurtado? aye. the vote is 4-0. and commissioner hurtado is the new vice-president. >> congratulations. moving to office for president. >> i would like to nominate lazarus for president. >> any other nominations? is there any additional public comment? seeing none, public comment is closed. >> mr. pacheco, if you can please call the roll. >> aren't you going to ask me? >> are you willing to serve? >> yes. i appreciate that very much. >> mr. pacheco, on that motion from commissioner honda to elevate vice-president ann lazarus to presidency of the board, on that motion, commissioner fung, commissioner hurtado? aye, and vice-president lazarus? aye. thank you, the vote is 4-0 and ann lazarus issel elevated to the presidency of the board. >> congratulations. and let me this you in advance for helping me and the board for the next year. i really appreciate your willing innes to serve. >> okay. we can move then to item no. 3 which is commissioner comments and questions. anything, commissioners? >> my only comment is that on march 13th is our scheduled meeting? >> the 12th. >> i have a flight out to the east coast. so i will have to leave about 9:00 p.m.. so everyone knows. any other commissioners? any other public comment? seeing none. then item four is your consideration of board minutes for january 19, 2014. any additions? a motion to submit the minutes? >> so moved. >> is there any additional public comment? seeing none, public comment is closed. >> okay. we have a motion from the vice-president to adopt the february 19th minutes. on that motion, commissioners fung, commissioner hwang is absent, president lazarus, and commissioner honda. the vote is 4-0. those minutes are adopted. >> item no. 5 on the boards calendar is a closed session. the first item under that is public comment on all matters related to the closed session. is there any public comment on this item? >> good evening, steve williamson behalf of the appellant. i would like to urge the board not to go into closed session. as the board of appeals you conduct a public business and you are residents here m san diego. closed sessions take away the public right to know what's going on and takes away the transparency. the decision that you reached in this particular case was reached in the most public matter possible in a very large public meetings attended by dozens of people who gave testimony and broadcast on television at the same time. your deliberations and your decision was also done in the full light of day whether right or wrong or whether agreed or disagreed with it was open and transparent. i urge you not to change that now. don't move the process behind closed doors. the public will end up what's happening now and i don't believe if you look at the statutory language that this is a situation that even calls for a closed session. if that true language is very specific because of the disfavored nature of closed door meetings and the administrative code of 67.10 mirrors the state government code sunshine ordinance says a closed session maybe held but when required by legal council and motion vote to open session to assert attorney-client privilege and that's when you would go into closed session regarding pending litigation. the definition of pending litigation is obviously if a proceeding has been filed in front of some tribunal. that's not the case here, or if a point has been reached in your deliberations where litigation seems, there is a significant exposure of litigation is what the statute says. i don't think that's present here. the administrative process hasn't been exhausted and there hasn't been a rehearing. what you got is a mere legal argument not on the findings and incorrect legal argument and the party who made that legal argument is not here to support it or defend it. you are given a threat of litigation, there is no litigation pending and i don't think there is any significant exposure that would drive this board behind closed doors into closed session. >> thank you, any further public comment? please step forward. >> thank you. behind key, resident. i would echo mr. williams point and say that really this is no the a complex legal issue as i put on here. both the statute and the case law here are very clear. in the appellate court set out a process for determining whether or not the haa applies to a project like this. your first it has to be determined that the project is in fact complies with zoning guidelines. >> excuse me for a minute. isn't this related to the issue of closed session and not the matter as agendaized? >> i think we can allow him to comment as to why he thinks we shouldn't go into closed session. >> basically this is a fair instance where the statute not applying here because you have already made a decision that the project does not comply with the residential design guidelines and you had 13 policies that you cited for that. as such you don't even follow into statutory framework. this project is not protected by the haa. furthermore, one last point is that the haa only applies to housing development projects and the haa very clearly defines housing development project if it's a mixed use project as one where the non-residential uses are related to neighborhood and commercial uses. the neighborhood commercial is defined as small specialty stores. this is going tools to have a restaurant and a restaurant is not a store according to the land use guidelines. as such the project is not housing development project and not subject to the protections of thehaa. thank you. >> any other public comments on the closed session. seeing none. commissioners the next item is to whether or not hold a closed session. if you wish to hold a closed session you need to do so. >> on advice of council i would move to go into closed session based on the attorney-client privilege. >> okay. mr. pacheco will you take roll on that. >> on the motion from the vice-president to enter into closed session. on that motion commissioner fung, aye, commissioner huang is absence, commissioner lazarus, commissioner honda. the vote welcome back to the wednesday february 26, 2014, meeting of the san francisco board of appeals. we are still with item no. 5 which is a closed session. the board has reconvened in open session and under item 5c there is no action taken during closed session and the board needs to vote on whether or not to disclose any or all discussion that took place. >> do we need a motion? >> okay. i move not disclose what was discussed in closed session based on the attorney-client privilege. >> mr. pacheco if you can cal the role, please. city clerk: on that motion to not disclose content of the closed session. commissioner fung, commissioner hwang is absent, commissioner lazarus and commissioner honda. the vote is 4-0 to not disclose the content. >> item no. 6 was continued to april 30, 2014. we'll call item 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. sglsh 1234 item 7 c, d: 7cc appeal no. 13-097 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7dd appeal no. 13-098 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions.1234 >> >> they are all deal with the property at 1050 advance -- valencia street and holding a demolition permit to demolish 1 story restaurant building and issue for the trust due holdings of a permit to e erect a building 12 story building. the public hearing was held on december 11, 2013. this matter is on for further consideration today and for board as consideration of findings and conditions. >> so i believe what we'll do with the president's consent is to have each party briefly address the board on the additional written arguments that they submitted starting with the first appellant, the marsh whwill have three 3 minutes and the next appellant will have three 3 minutes and the department holder will have 6 since they are combined matters. >> i want to make a correction to comments i made in an earlier hearing that there had not been any meetings in 2012 after the planning commission hearing. just in the last few days she found a record of two meetings subsequent to that hearing. it was after that second meeting that the marsh was notified about encroachment onto the property. mr. rose did complete additional research and i wanted to clear the record. now to the matter at hand. i told them that the burden of proof shouldn't be the burden as is that and we needed four votes to prevail and then the vote would shift and also has to prove manifest or injustice or some new evidence and he needed four votes. he asked me after the first hearing, does that mean the burden has shifted but of course i had to say no because it was hard for know explain why. but since, mr. rutsdzberg doesn't want to define the position. he wants to over turn your vote. i am reminded of the movie ground hog with bull murray. his day doesn't go so well and next day it's ground hog again. the rest of the movie bill murray goes on over again until finally his day was over. it's as if mark rufrsberg is bill murray and the hearing is the date. mr. rufrsberg first date didn't go so well but he was able to do it again in january and he was able to wake up and have a third crack tonight all without having the burden of proof shift to him and without having to approve manifest injustice and without having to garner four votes. please do not let him become bill murray. you voted on december 11th. your subsequent votes must be on the findings and conditions. thank you for your time. >> we can hear from mr. williamson behalf of the other appellant. >> good evening again, steven williams. i tried to exhaust the issues from the board thank you for the time to do that. the law cited by mr. genius last time government code section 65589.5. the housing accountability act has been the law in california for more than 32 years. let me say that again, 32 years. in my brief i discussed every case which is touched on or interpreted that code section. and there has only been seven of them. let me repeat that. there has been 7 cases in 32 years. it's not applicable in this case. improper and incorrect legal argument made on the merits of the case during the findings portion of this particular hearing. so, the state law had completely supplanted all local authority on the cases of dire health and welfare, it would be front page news. there would be hundreds of cases, not seven. the case he referenced and i don't know how to pronounce it. there is a consonant that an appears in the case. there were no findings in fresno and that's why the court's reversed it and said you have to have some findings and that's not what happened here. in this particular instance it does not apply. one, because the board specifically found that this particular project does not comply with the general plan, design guidelines. that's where all projects start. the general plan lays down a wealth of design issues. that was exactly the findings you made. that was part of the statute that mr. jans omitted. he left off reference to design guidelines and that's what your findings why. in order to meet the statute you have to meet all the prongs of it. the second prong is the board would have to deny the project altogether or reduce it's density. the board didn't do either went of those. the board in fact just reduced the project in correspondence with the general plan and the missionary plan which requires compatibility with existing neighborhoods. as i showed in my brief, the density and affordable housing can still be put into this project. it not forbidden and he can meet the bedroom requirement of the missionary plan. i urge you to stick by your decision. it was a brave and right thing to do. >> thank you, mr. rutsdzer fird. >> good evening. i guess first i will address the three prongs. the project come applies with his argument that the project was determined by the board to be out of compliance. the law reads the project must be compliant with the objective general plan and standards and criteria at the effective time of the project application was determined to be complete. by our calculation that was may 7, 2012. it also says that the objective standards, i didn't really see any objective standards in your findings with all do respect. the second prong, board ruling did not disapprove the project or conditional approval on the conditions that it be constructed at a lower density. if you r e move the top floor reduce the project by 677 skwaeft his argument that we can squeeze 12 units into three floors that goes against one of your findings which was that as and i'm quoting as a 5 story structure with 12 residential units the project would have a density significantly greater than the surrounding residents. it directory continue disabilities one -- contradicts the appellants argument. we obviously don't agree with that but i don't see how we can have it both ways. then lastly the project does not meet the definition of housing development project. the planning code doesn't define small scale general or specialty scores with goods and services. restaurant, but according to planning staff, a restaurant would generally be considered a neighborhood serving commercial use on article 7 of the planning code and 62 says that restaurants are part of neighborhoods retail uses. i don't know how you reached the conclusion that this law has never been used. i can't see where it has been used at city level, city councils or boards like this. anyway. thank you. steve will be up here. that was three minutes.3 minutes. >> a question for you. during the pro curing of the land entitlements -- we reduced it from 15 units. then it was reduced to 12 units, that's right. we reduced it in order to comply with the set backs and this type of thing. >> during the planning entitlement the housing accountability act was not brought up. >> no, this is the first time before this board. >> i have a related question. we heard at the last hearing that it was not feasible to conduct the small floors. >> steve is prepared to answer those questions in detail. you would basically be making an sro and one of the objection is that the properties are too dense and too small. that's what they are saying the whole time. if the issue is to just make it ha