tenant if you're intending to demolish but you're taking it out of use giving notice to the tenant that's coming it also cards with that a possibly statutory fine of $2,500 to the property owner so in the caution it's been our policy to issue those to protect your client from the possible fine. much has been made about the intent of that permit but the real intent in this circumstances is the intent to exercise our rights under the administration code 379810 which allows us to permanently rove a unit from the house use as well as we have the good faith intent and comply with the statutory provision of money help. whether or not a stove is pulled out pursuant to a plumbing permit and the building that unit is reconfigured to a planning permit or either way the landlord has to have the unit empty the removal of that unit renders it unhabitualable. so i guess my final point is whichever procedure it determined the actual intent of my client is to remove that unit from housing use >> question why now. >> what triggered it. >> i pointed out this in my brief there have been several complaints made by lack of use in the building there are in that specific unit. my client was tried to he'd that and been unsuccessful and, in fact, the last notification from any folks were from pg&e when they established the unit at the request of the tenant and certified it didn't meet their standards. my client because of the configuration of the building being one legal residential unit above the commercial space simply to get even though heating that will satisfy pg&e and the planning code it is going to cost a minimum of $10,000 or more my client was determined given the recent series of events it is simply impractical to keep that unit as a residential unit that's why he's determined he wants to legalize that unit but again that is a decision that is left to the discretion of the owner it's not mandatory. >> and so the owner attempted to work with the tenant in some satisfaction for additional heat or heat. >> yes. >> and all attempts of the tenants were just not satisfied. >> that would be my. >> i'd put it that way. >> and you understand the issue we're seeing is that the permit maybe issued correctly it looks like it will change the usage change and the zoning so it permit by itself will not stand alone. >> i'm not ready to speak to the issue of whether or not there's a planning i can see the use change as mr. duffy pointed out. >> i'm looking the fee of the appellants brief it says the notice it hereby given that your client intends to apply for the permit to demolish or audits permanently remove this unit from houshgs use is that the intent of your client to apply for that permit. >> to permanently remove. >> but to apply for the permit. >> yes. maybe a little bit classification that language is for per verbatim from the section. >> okay. >> and it's placed in there. there's some legal agreement whether or not in some circumstances a permit is necessary to remove a unit period, however, if a permanent is do required then to get the necessary permits removing the unit pursuant to a plumbing unit and it's our good faith intent to remove this from the housing use it's appropriated under the circumstances >> so it's your clients position if there's a debate to the planning department it's required is it your appellants position not required. >> it's my position now, it's not determined given the testimony given here today particularly by the representatives of the city it's not been determined whether or not a further permit is needed if the city says yes, that's exactly what we'll do. >> okay. thank you >> thank you. >> anything further from the department. >> mr. duffy i'll say the attorney wanted to hear from the city a permit will be required i'll say yes, a building permit is required we see the documents where the area has been remodeled and i don't see any permits so we've got that issue and the plumbing permit we need a building permit in my opinion to show what the true intent is in the area and if you want to keep it as a legal use or whatever you need a building permit to show that and that will forever be on the record but the plumbing permit we can't do that. >> okay. okay commissioners the matter is submitted >> my take is that it should be continued because the permit itself the plumbing permit the permit holder should have time to get the necessary permits required to complete the plumbing permit work does that makes sense. >> that's my hunch i'm interested in hearing from others but seems like it is an adequate in and of itself to say the department heads are saying it is required because of the tint removal of the unit i appreciated what the attorney said let the chips fall where they may the unit can be properly moved moved of removed but it should be removed properly and trying to get it in this manner through a plumbing permit is proper. >> i'm going to say why not remove the permit. >> it permit was not issued in error but it requires something else. >> i wouldn't say it of the issued correctly otherwise we wouldn't be continuing it is it being used in a manner that's improper because i think it's been used to circumvent another appropriate processes from what of the stated that's where i'm at. >> i think both sides are using those processes improperly but to use this board in dealing with the plumbing permit is another way how they're to use the processes the question is whether this permi was illegal issued and it was not. i think both sides clearly know what they're going to do next there's another venues and they have litigation >> i held my tongue on the types of action i'll contemplate and i'm sure the attorneys representing the clients are trying to help their respective clients. i know if we were to uphold the permit that is otherwise on its face in isolation not improper i think we would be advancing not advancing the interests of the public in - and i think continuance where i'm removing like commissioner honda stietdz in order for the public to have their interests represented and allow the parties some time to do it right >> i would agree in general if it was truly de facto but it's not de facto. >> why not. >> the parties knows exactly what's going on. i don't see an, an example i would use a slightly different example if someone had a water heater go out you know they leak all over your garage and something goes in for an over the counter that water heater it out. i don't 7, 8, 9 to read into all actions of the city. other things that have their own venues for resolution >> i think normally that thinking surely where the red board has jurisdiction i agree we don't want to step into that roll but we've got a permit and that's the most compelling to hear if mr. duffy and mr. sanchez about what they would like to see and haven't seen it's clear what is intended by this. that's - i don't know if continuance i don't know what others think about continuance >> continuance to the call of the chair until they decide if they're going to get a permit or go further with what they're planning on doing. mr. duffy. >> may i. i guess i'm going back to the question i asked before what was was this permit perhaps erroneously issued >> i'll try to find. >> if we continue f this that's information you'll supply. >> if people are going to be coming in and getting plumbing permits for the purposes of making illegal units i'm not a fan i agree with commissioner fung we can't surmise what people are doing it's not right in my opinion that's not the way to do that we typically and mr. sanchez and i have seen this before the board the proper way to remove an illegal unit get a permit and if they want to appeal it they'll be going there to planning commission but when i look at the permits our department issues several permits a year and permits are taken out in good faith by contractors and homeowners and we don't think anyone in this case was to remove a stove in an illegal unit and maybe this one is the case we'll use to if we're going to see that i wouldn't want to be here every week doing this i don't think it's at - if that's what they're doing in my opinion not right. >> i think you said before or maybe mr. sanchez said it 2340i9s typical i don't think mr. sanchez stated you don't normally see the stand alone type of permit without the benefit of a building or permit to accommodate a removal of a unit. >> in this case it would be issued in error it will change the usage that requires another permit. >> the city attorney if this permit was taken out for the permitting use it's part of the process but you need the building permit with it. >> by removing the stove it changes usage. >> no. >> no that is . >> what was the use. >> removing something that the building code requires then, of course, it would be chang the use. >> okay. >> a stove does not set that condition. >> yes. we don't know what the use is we know it's a 94 permit for the space on behalf of it was the top floor being used for a commercial use and conferred back to a residential use there's nothing it on the building permit that told us what the use is. >> okay. thank you. you know what we have the housing inspection services with the open complaint maybe let them do their investigation >> i think there's no doubt there will be multiple actions. >> question is what action do we take. >> suggestions commissioners. >> we can continue to what mr. duffy said wait until after the housing inspection process. >> do we want to have to the to the call of the chair. >> i'm leery of having this go on too long. >> inspector duffey how long will the take to estimate for the housing inspection investigation to conclude. >> oh, they do a thorough investigations it could be a month or two but the other thing i could do if we continue with this we'll check with our chief plumbing inspector and all be it the building permit would they typically give that permit i can't say yes or no the person i spoke with today, the plumbing inspector didn't seem to think it was a problem but if the i would like to speak to someone at a higher level to get that answered. >> okay. >> but time wise probably a month would be enough and let them know it's part of the process and do our research a little bit quicker. >> i don't know if the housing inspection services i'm not sure where their coming up with their information. >> we can put heat. >> especially, if increase a deadline i can definitely tell them that. >> perfect. >> director. >> do you want to propose it. >> i'll suggest a date in october perhaps the second or third meeting in the month. perhaps the 15th. it's easy for chris to say and why not do it a little bit sooner >> october 8th. >> okay. i'm not sure who's motion. >> okay. i'll make the motion to continue to october 8th for the housing inspectors to continue and conclude its investigation as well as the department of the building inspection to explore whether or not the permit at issue should have a building permit. would you want any additional briefing? no >> no. >> she wants lots. >> i'm leaving this for everyone else mr. pacheco. >> we have a motion then from commissioner hwang to continue this to october's 8 any public comment? 2014 the public hearing has been held to allow the dbi time to conclude it's analysis. on that motion and no additional briefing is allowed. commissioner fung. no. the vice president is absent. commissioner president lazarus. commissioner honda. thank you. the vote is 3 to one the matter is continued actually october 8th >> we'll take a 5 minute break. >> welcome back to the wednesday, july 23, 2014, board of appeals there is an overflow room available for people not able to find space in this room room 421. so i want everyone to know we're calling item 8 greg vs. the department of health on the issuance of may 23rd to the wellness health center for the medical cannabis dispensary hearing i want to swear in the individuals that want to testify at tonight hamburger that were not here previously i'm wondering if people in the halfway can come into the room if you could invite them in to the extent we don't violate any fire codes. >> some people are coming in office of the city administrator not all are going to speak act at this time we're to conduct a second swearing in process if you wish to have the board tell our testify explain stand and raise your right hand after you've been sworn under please note any member of the public may take this without oath according to the sunset ordinance. >> no one worries about to take the oath. >> dvd dvd. >> thank you. thank you >> so we'll start with mr. robert for the appellant that has 7 minutes. >> good evening chair and the members of the board of appeals we're here tonight an, an nc d permit that was issued to waterfall wellness to operate an mc d the board need only consider the simple facts not get imbroiltd with a lot of extraneous stuff decide the litigation too the permit and the commission and really don't need to entertain a dispute between the parties. the motivations don't matter what we have a simple case should the city entrust the gentleman and it's stepdaughter with an mc d permit they are the urban relieve before mr. shep came in and began operating the waterfall wellness at the location. i'm sorry, i have a couple of things for the overhead. and, of course, >> you had it correct the first time. >> now again, you don't need to get into the disputes between the parties are those issues that are being litigated between them we know in 2011 shortly after the location had a fire caused by unpermitted i uninspected electrical work throughout the building and an, anlogically grow specific to conditions the planning commission placed on the permit the upstairs unit was to remain an residential unit the d b.a. staff mr. larry who ran the mc d program made a recommendation as the doctor that this operator you can see should be barred from operatidispensary they fou they were stealing power and bypassed the pg&e meter and had installed the grow contrary to the grow permissions in state law and caused the fire that endargd obviously everyone in the neighborhood he essentially and the building burnt so it was red-tagged by the dbi. to my understanding and from there the place was closed down and dbi issued the notice and post fines and dph thought they addressed the issue to water wellness and mr. shep and the permit from north cal was revoked in the initial attachment to our brief. so we know about that history that's not stuff you need to obtain from newspapers or need to look at unscrub i cannot obligations only from the staff stay and the dph and city police department and i guess those are those 3. now you is well, that was several years ago why should we take away the permit now mr. will there are a number of reasons the first this is is an overwhelming need to treat that as a business as the city attorney put it a lack active business because of personal income tax those are personal debt that create a need for a potentially great amount of money those taxes have been taking care of by the way, in fact, the documents submitted to this board clearly shouz shows we are talking two different tax more than 1/3rd of a million dollars a substantial amount balloons to the city was unpaid by the time he burned down the building and now he summits a document showing a zero balance owed on a different sales account don't be fooled there's a liability but at the time waterfall was run by mr. shep it was more than a 3rd of a million dollars there's a compelling reason you shouldn't trust it as a nonprofit that the state