presiding officer is commissioner honda and we are joined by and joined by vice president commissioner fung and commissioner ann lazardus. >> commissioner swig commissioner bobby wilson that be absent to my left is thomas owen for legal advice at the controls is gary the boards legal assistants boards legal assistants executive director. we're joined by representatives from the city departments that have cases before this board. at the table in front is senior building inspector joe duffy dbi providing the advice for the department of building inspection and joined when i scott sanchez the zoning administrator who will be representing planning department and planning commission and carli short the bureau of the department of public works as well as chris buck forecast with the the public works please be advised the ringing of and use of cell 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 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. we'll conduct our swearing in process. if you intend 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 now do you solemnly swear or affirm the testimony you're about to give will be the whole truth and nothing but the truth? >> i do. >> okay. thank you very much so item nun on the boards calendar is general public comment an opportunity for the people to address the board on the jurisdiction but not on tonight agenda any public general public comment seeing none, the second item is commissioners questions or comments. >> commissioners anything? let's go warriors. >> okay 83 and ethiopian item 3 the minutes commissioners. >> any additions, deletions, or changes if not a motion to accept. >> move forward you any public comment on the minutes to adopt commissioner fung commissioner honda commissioner swig thank you very much that item passes with a vote of 4 to zero the next item is one that is going to be done i understand that the nellie win is here are you with the person who great please begin the interpretation of the item and everything that was said during the item that needs to be interpreted. >> madam director prior to be starting because of the length of our calendar and the amount of cases to be heard we try to get this we cut the public comment to 2 minutes across the board so we can get to the later cases in the evening. >> okay item 4 a jurisdiction request the subject property on rectifying a letter from the jurisdiction of the building permit application which was issued on february 19, 2016, by department of building inspection is evident and the jurisdiction was filed at the board office on may 22, 2016, the project to add two bedrooms and relocate the bathroom on the first floor and one full abandonment on the 72 hour and one remodel on the second story start with the requester step forward and because you have an interpreter we'll give you 6 minutes to speak to the board. >> but you'll need to speak into the microphone when it is time. >> so, please begin. >> we're ready yeah. >> (speaking foreign language.) >> my name is ann win. >> (speaking foreign language.) >> i'm at the address 221129 avenue, 2002. >> (speaking foreign language.) >> so i live in the house for 14 years and seeing i have it from the first moment the house included all the windows. >> (speaking foreign language.) >> this neighborhood is very safe and my neighbor is very nice and gentle. >> (speaking foreign language.) >> during the 14 years. >> (speaking foreign language.) >> so mr. can bought the house on river street i knew he didn't spend any time there before. >> (speaking foreign language.) >> so mr. can have paperwork to permit the construction but he did not let me know about it. >> (speaking foreign language.) >> that's why i have to delays when i you know when i submit my letter to the field. >> (speaking foreign language.) >> mr. can fixed the entire house included the inside and outside. >> (speaking foreign language.) >> i don't know if he fix the house to live in or rent out or to sold it. >> (speaking foreign language.) >> that the fact that he built the deck effects any families a everybody else around it. >> (speaking foreign language.) >> especially for my house location. >> (speaking foreign language.) >> sorry a minute. >> (speaking foreign language.) >> because the location of the deck is directed to any room i feel like anyone standing on the deck you know can see straightforward to any room. >> (speaking foreign language.) >> and i he from views in the credit cards to have the ocean views i love the fresh air. >> (speaking foreign language.) >> my children love to hang out in the garden and play in the garden. >> (speaking foreign language.) >> plus my child has asthma so my child's need more clear air that helps with the situation. >> (speaking foreign language.) >> and i want to say that building the deck is very inconvenient and make me feel very uncomfortable for my privacy for me and my family. >> (speaking foreign language.) >> once again for the safety and the health of my family's and all the people around the neighborhoods i ask if you, you can consider the permissions of building the deck thank you very much. >> thank you. >> okay. thank you we'll hear from the permit holder now. >> good afternoon. my name is derrick the designer and permit holder we're the architect that drew up the plans for 1915 rectifying i'll start with the design of the deck the deck height is 9 feet one hundred and 13 inches off the grade and in the planning code nothing under 10 feet not requiring the 311 notices it is 10 feet including the stairs and subject property 1915 river it is one across from the avenue in we're invading the two 22 privacy we're invading through someone else's backyard our adjacent neighbor which is on the map is 1909 rivera. >> now on the subject property the deck itself is if or 2211, 29 after the windows that facing our decks are property line window on the property line are those windows permitted? are they ever you know on permit or there, there before or existing we do know i can't say they're not they might be but they're a property line window and regarding the avenue yards did yards so close to an open space but it is enclosed with a patio it is we have a picture it shows the enclosure with those windows installed and the property line in san francisco i believe there are no real - i believe we're not blocking any sunset and open space of 22, 11, 29 avenue and we got our plans approved based on code compliant and it was issued and we built according to plans. >> thank you. >> i've got a question, sir so looking at the brief wasn't clear that is a side yard you said a vacant lot between. >> that was a vacant lot it was on rivera street that is the same lay out, same deck we're basically flush with our property. >> okay. your the third house from the corner. >> side third from the corner. >> can you thrum what you're lot size. >> it is by one hundred square feet our zoning should be 25 percent rear yard variance within that rear yard area. >> thank you. >> anything from the department the jurisdiction request. >> sew scott sanchez planning department this is in the rh1 the deck is code compliant and a notification would have been required i'm available to answer any questions thanks. >> mr. duffy anything. >> good evening joe duffy dbi the building permit mr. appeals to have been issued properly by dbi a typical remodel on the ground floor rooms at the deck and rear didn't require the firewalls the deck has been pulled in from property line a current approval and we - the building is second story and we did the structural notification and there is an open complaint on the property i on intersections it is filed by the appellant and it was the deck was blocking the view i can't see my room in the window in the yard so we investigated that the complaint is open the inspection on the deck and permit was on unapproved plan many it's updated prior to the suspension of the permit i'm available to answer any questions. >> your notice only goes to the adjacent. >> that's correct. >> doesn't go to the. >> no. >> the appellants property. >> right a structural notification for both sides. >> subject excuse me - to this hearing the nov will it be abated. >> not an nov we issued a - from the permit is upheld we certainly have no reason to keep it au open. >> it was hard to look at the pictures from different angles but properly lined windows if the appellants. >> yes. >> is that legal or not legal. >> there are very hard to say you'll have to do a thorough investigation to see what the original permit you're allowed the property line windows under new construction and they have to be 3 quarter fixed windows in the metal frame you give up all relevance if someone want to build against you a lot of buildings have property windows many, many years ago we don't get that many complaint unless something like that couples they're hard to investigate you're trying to keep bodies happy those windows are there for 40 or 50 or 60 years you're not popular. >> we'll had a couple of those cases here. >> right depending on how things go certainly on the neighborhood the permit holder not - and warrant the jurisdiction. >> right. right we can look at it. >> just asking. >> thank you inspector duffy any public comment seeing none, commissioners, the matter is submitted. >> >> i might explain for the appellant the standard of review in a jurisdiction is whether the department erred most of the discussion was on the actual issues of the case itself notice was properly given notice that of required properly given i don't find that the department erred. >> i agree. >> i concur would you like to make a motion. >> move to deny the appeal the permit was properly issued. >> okay. thank you so the motion then by commissioner fung 0 deny the jurisdiction on that motion commissioner lazarus commissioner honda commissioner swig okay that motion carries with a vote of 4 to zero he wanted to ask from the parties for item number 8 on 21st street are in the room if you could raise your hands are you expecting many patterson who is not in the room we'll move on and try to get to you soon, we'll take item 5 panning ramp versus the urban forestry on mission street requesting the denial retrieval and denial to not plant 60 inch box trees at the subject property it was held on october 2015 and on for further consideration on october 2015 that was continued to allow time for the parties to talk about - to appear before the board to address how americans with disabilities act impact this permit on 2015 that was continued to allow time for the party to further discuss the city's requirement for the site and try to develop a plan so i'm hoping that the parties to this case are here this - it public works in the room wonderful i on intersections we should hear from the departments and see we're tasked with action and then we'll hear from the appellant. >> commissioner honda shall we give each side 3 minutes? okay. thank you >> good evening across the city bucking urban forest urban forester thank you for recapping the history this is a lengthy case the original permit to remove 5 trees 2 were very large and to replace with 5, 60 box replacement trees that didn't we were not able to sign off since the october hearing we met with mr. jensen onsite with the sfmta kevin jensen i have his e-mail i'll put it on the overhead his concern with the layout was that the last second sfmta once the building is inhibited they changed the code marks don't line up so the last several months the applicant the appellant had to go back to the sfmta to get permission to modify the color curve so that's been done at this point and i do have an e-mail interest kevin jensen he sent the other day to - overhead please. he says thank you for the confirmation it is depicted as discussed, in fact, sure the appellant stated see below the screen shot the highlighted areas we'll fill in a planter concrete to accommodate you we've agreed upon upon site and kevin jensen is acceptable our ada issues are addressed and the appellant is waiting for mta to color the curbs but the ada issue was addressed at this point, i on intersections we're circling back to the - one idea to start over move the utilities it sclft with those trees and other option our department suggested is a way forward is they planned 36 inch boxed trees and this is 29 hundreds to install a 6 manipulative box tree is $5,000 so times 5 trees $10,000 plus a fee the board is tacked how to come up with a penalty this is not a penalty this is what was planned not arbitrary and one way to move forward this is the one remaining issue we have no other issues on site regarding this permit. >> thank you, mr. buck. >> thank you we'll hear from the appellant now. >> that's correct across the city across the city kevin and i met onsite as chris said we respect to sfmta and applied for the white curb and as a result kevin wanted a loading zone we accommodated that and made i paid all the fees kevin from ada is okay with that and given us the green light to move forward i might add that overflow room we had committed to doing 5, 60 inch box trees but planted 9 as you recall that was dictated saying the landscape was - we followed the better landscape plan we planted 9, 36 inch trees we thought that was sufficient the result of plan check confusion within the department as to how we end up with that we are cognizant of the fact that you know we should have come back to the board of appeals and clarified that but those projects tend to be pretty complicated what you know executed them and had a number of permits that was one of '75 permits we got the drawings stamped so the 9 trees i guess you have to review those as part of plan check so in an effort to close this out i on intersections we left off talking about the difference and the other thing from dpw is paying the in lui fee which is 18 per tree i heard a total of 5541 we can do a check for that you know, i on intersections that chris agrees the site looks at great the trees as we see the projector we had brought up our landscaper architect says that within 5 years a 36 inch box tree will fill out what a 60 inch box they trithis is in 5 years a 60 box tree would have been we're looking to the board to close it this out we're in line with dpw and ada and fta this site looks at good we're looking to close out at the direction of board tonight thank you. >> thank you thank you. >> your number is different than the d s he said 5 at 21 hundred. >> that was the delta so i think the confusing thing with the board is trying to follow kind of a rule book book with the city an in lui fee which is 1890 and the delta of planting a 36 inch tree and a 60 inch my understanding the 36 tree is 29 hundred to plant and a 60 is 5 thousand that is the delta of 10 thousand 5 hundred we were supposed to plant 60 inch but if you calculate it a number of ways the 5 for 5 the delta is 10 thousand nine hundred or add up you know the total that we spent which is 9 times 2 nine hundred versus 4 times 75 hundred we're looking for a way to close this out and have the board make a discussion how we want to do so. >> are you fine with the 10 thousand 5 hundred number that the department has come up with. >> yeah. i mean we spent a bunch of money applying to sfmta and phil the concrete taking down existing trees so i on intersections ideally we would like to have it be lower but if this is what the boards decision we can commit to that. >> okay. thank you. >> thank you public comment on this item okay seeing none, then commissioners, the matter is submitted. >> and again, just a reminder what is before you is an appeal of a denial to not plant the 60 inch box trees okay. >> perhaps a further response from mr. buck. >> based on your presentation we're down to the number. >> thank you, commissioners chris buck with public works whenever a new building constructed a number of trees are assessed to be required to be planned this site is required to plant 14 trees to the right-of-way in the end there's a planning department of 7 trees so 3 of the trees, 4 of the trees are even substitute skulk landscaping for required trees 7 trees planted landscaping totally the equivalent of 4 trees and paying 3 in lui fees to meet the planning code that is where the 5 thousand plus comes up that is charged regardless of 60 inch box issue a total separate fee just to clarify that is the simple price differences between a 36 inch and 60 inch box tree the difference is $2,900 per tree so $10,000 san francisco public works has an adopt a tree fund in lui fees are adopted we have a mechanism that money is literally a lockbox for tree not purchasing new tires or trucks but towards the planting of new trees we want to commend clarify that amount. >> so you'll be accepting the po and owner o overturning the denial that $10,000 plus will be paid into our tree fund. >> yes. and for the record our preference is the 60 inch box trees, however, i will say that the 36 inch box trees were planted a year ago they're in the ground 36 inch trees and establishing well i can say that the site is doing well it is performing well it is a little bit of a consolation a learning curve when we head into some of the cases but to move forward and based on the number of months we've worked to continue this it seem like indirectly another message to applicants to adhere to the rules of board otherwise the approvals will not accompany we will be okay this treatment. >> listening to you is the 10 thousand 5 total or plus the 10 thousand. >> it would be $10,500 specific for the tree size the other matters is a separate fee that is taken care of okay. thank you. >> thank you. >> if cliepdz to make the motion there ought to be a price to pay i don't consider that a huge amount. >> commissioner swig was not here but the three of us were here. >> i was here. >> yeah. so. >> i will make the motion to grant the appeal overturn the denial of the department and condition that would be payment of $10,500 into the b u s tree fund. >> okay. thank you so we have a motion in the vice president to grant the appeal and overturn the appeal by the department on is condition that $10,500 be paid as an in lui fee is that acceptable commissioner lazarus commissioner honda commissioner swig that motion carries with a vote of 4 to zero thank you very much mr. >> i don't see him. >> no. >> okay. we'll move on to item 6 appeal number stephen gains versus the urban forestry the property on 95 norway do have street to, llc the tree removal moving a tree to the rear of the property and this is on for hearing tonight we'll start with the appellant >> you wish to say i have retained reuben, junius & rose on a project reuben, junius & rose representation appearing before this board will not have an effect on my decision this evening. >> you have 7 minutes to present are your case. >> overhead. >> commissioners good evening i'm steve my wife and i are the appellants on 49 next door to the project awhile i testify on my own on behalf of i have snatches for people 0 wishing to enjoy the redwood tree and where it exists the neighborhood associations represent thousands of families surrounded the tree i have a roomful of neighbors that care i want to talk about the tree a 50 coast redwood as noted in the brief less than 04 percent of trees are native to the city this is a privately owned tree visibly within the public realm because the proximity to the public right-of-way that is designated under the public works code the city staff described as one of the largest trees in the neighborhood providing shade and character the evaluation was for the denial of the original application the trees location is important it is indirectly dribble behind the park and it is essential to one neighborhood important neighborhood intersection with the two other nearby redwoods one landmarked it is one of the last visible reminder of golden gate park in the. >> can you stop, stop the time have you been trying to use the overhead we need to have the overhead you if wanted to use the overhead you have to ask in the microphone i did not hear you, you're on the overhead now go ahead. >> on the same evaluation board the dpw said the tree is healthy and sustainable we marked the tree it showed excellent color this tree is healthy it is covered are new growth and shows inform sign it is in danger or peril the arborist declared the tree now that the sponsor wants to move the tree so healthy it can sustain it's roots it is bold and moved and placement attached to the platform in a new construction site we ask you consider this reserve all of opinion the trees are laid out in article 16 lacking from the section is the term relocation it speaks of removal in fact, no where is relocation mentions whether you rove a tree or you may not roach that no section of relocation in the brief you saw the staffs response to the acquiring the application no place form for relocation so the staff instructed the sponsor to use a removal form and change the name no circulation and no legislative authority although the adopted application the notice to the community regarding the permit was about relocation in order for this for roaming of a redwood but the actual permit was for removal of a street tree under section 806 not a street tree the tree is on private property by the sponsor as a significant tree you'll hear from the sponsor that authorizes dpw to allow for the removal of trees that's open a half-truth it established the procedures whether or not significant trees thereby removed we believe this is no legislative authority and only conditions that will protect the tree and the neighboring properties if you believe that relocate can be considered it must be considered in the standards that apply to the removal of a significant tree this tree exceeded protection and has been denied permit and full removal by dpw it was ruled final by this brotherhoods in 2015 which changed nothing other than the sponsors arborist, however, such a permit because the unsafe conditions the sponsor this have a geotech report of soil removal to have soil engineer and structural engineer study this undertaking on the historical single-family on norwdoff - and have the sponsor pay for the residence of 49 to the offsite housing during this event keep in mind this decision has no public input the period of time discussions were take place the decision was made i tried to contact the department 17 times only after the written notice on the other hand, the lobbyists exchanged 49 phone calls and used the arborist as the only person with the expert opinion no outside independent kourlts i want to move on to the tree has to go so the city can be provided with four new housing units that is untrue first if you approve the dpeemgs of the historic home and the subdivision of prominent lots and third the construction of 4 new believes in the exact location no way to know whether or not this will happen and if we influence that it will not happen bus the tree is important in the current location in the brief we printed in the record out rules used for 4 unit of housing in different configurations a decision not reserved whether or not a tree is removed in the past didn't matter f eve they move this tree the tree is healthy determined by multi arborist and dpw it is healthy moving it it the only thing that put united states it at risk for 4 units without toughing the tree please don't make this decision thank you. >> (clapping.) no- please thank you. >> a procedural question i know you limited it to 2 minute but people wrote for 3 minutes. >> the problem we say several long cases they've not come into the room if we go to 3 minutes we'll not be able to finish the evening. >> thank you we'll hear from the permit holder now. >> mr. duffy. >> good evening commissioner honda and members of the board tom reuben, junius & rose on behalf of the permit holder and property owner, llc as we see the it appellants raised 3 main issues the first, the legal authority of the department of public works to authorize it and the replanting of the tree this clearly is addressed in the urban forestry ordinance together authorized department of public works to and through the urban forestry to both remove and plant trees planting can be done on its own accord or the mitigation of the resolve them a tree in this case the removal and replanting of the same tree a difference without a distinction the bureau is clearly authorized to issue the permit second issue environmental review and in this case the larger project was granted categorical exception and that project included the remove of the tree it is important to understand what the categorical exception that didn't mean no environmental review first is a determination of whether a categorical exception even applies and second there as a determination whether the project results in any significant impacts nevertheless, and in this case, the project was studied including the removal of the tree and the hectic value of the tree and of the home and the planning department determined no significant impacts the only change in the project now that the tree will be replanted an environmental benefit we submit the environmental review was proper the third concern was really the technical and physical ability to successfully roach and replant the tree with that we have our expert david cox of the environmental design inc. to speak to that issue i'll is the world renowned and removing and replanting trees this is a 98 percent success rate they've removed trees in the white house we have our tree arborist mr. roy for any questions thank you. i'll turn to mr. cox. >> good evening. i'm david cox with viral design based out of houston, texas we are the large tree removes we've removed significant trees of this size and larger for on the united states capital ground the white house, the supreme court, we've done work in many area he moved the tree for soma and work in trashing moving a 65 inch a different species to move and currently working in santa fe on several projects and basically remodeled projects and preserving and replanting them on the same prompt that's primarily all we do we don't remove trees or do tree removals with the open up for public comment we're specifically a tree transplanting in business since 1977 hold the world record for the biggest distance of move and the diameter and the tallest you name it, we transplanted the tree on peaceably beach in the year 2000 because of the tree the pine trees dying from the disease a significant history in the civic county and area if there is any technical issues you want me to discuss i'm available to answer any questions. >> thank you. >> thank you. >> we'll hear from the department now. >> good evening, commissioners carli short san francisco public works i said to make a couple of points i on intersections we wanted to emphasize the fact that the department approved the relocation of this tree on this after reviewing the proposal way are concerned initially the tree might not be successful in its relocation we want to see the tree preserved we actually felt this was a win-win i hate to say it we've yet to see a tree not removed and when a development project is at stake we thought that preserving this tree onsite will protect most of the concerns raised by the community and the concerns the tree is not significant we addressed by requiring a notice of special restriction on the property so we felt this this was actually a good solution to preserve this tree visually with all the environmental benefits that come along and many of the benefits to the community i want to address the idea the briefs are saying we have a secret active progress we brenda over backwards when the tree - in conjunction to the board of appeals rather than having that addressed at that the body loan we agreed that the most transparent concept to be to a new thirty day notice on the tree and held another public works hearing and that was appeal able to the board of appeals this was not done in secret we felt the public should know that is the best way to get the notification out to the public by following our typical process and lastly the suggestion not consistent with the code addressed by the permit holders brief you know relocation of a significant tree the code requires we plant a tree of the equal value or obtain a fee if that is not possible relocate of a significant tree to a different spot on the same property is in our mind the most ideal equitable of a tree we feel that is consistent with the code so again, i on intersections that the departments perspective we would love to see this tree retained the initial denial we want to see the tree retained relocating to a new recognition arguing having better ground it is constrained because of the exist property and the sidewalk we felt was a good solution to maintain the benefits of the urban forest we're charged with and maintaining most of benefits the community and preserve and protect this tree the regret i have it tree is not visual to the public that's the one thing we can't achieve through the solution but that roves that we felt this was a win-win given the proposed development project on the review and the existing location of tree. >> thank you. >> ged. >> is there any use of consistency in the actual permit itself neither location where google brought up by the payment. >> we followed the process of removal process we felt that we were trying to communicate as clear as possible we said the tree was removed and we expected people to be concerned so i on intersections that essentially we're following the code with the tree removal process our use of term relocation we were not approving the out right removal but relocated within the property. >> commissioner swig. >> how old is 12 tree. >> i never like the guess the age. >> a range of restraining order years. >> like range 50 to one hundred. >> how old is the neighborhood. >> i don't know perhaps the planning department will know. >> i'm trying to establish which came first, the chicken or the egg era the significance of that tree and what i'm wrestling with a bunch of other stuff is changing the character of a neighborhood it is clearly a tree when establishes a character in this neighborhood and one of the briefing a couple weeks ago on things that go wrong or right or wrong with the jauflts to home renovations the key elements which is remote is changing the character by renovation of. >> house changes the character of a neighborhood or inconsistent with the character of the neighborhood it seems to me this standard will apply with this tree i am not this is a i'm wrestling with the importance of this tree and the character of the neighborhood is that part of character of the neighborhood do you on intersections. >> absolutely i on intersections that any large tree is the character of a neighborhood and certainly this from the does i on intersections that our concern that the tree with the out right removal by perceiving it within the neighborhood and within the basic property footprint we felt was a better alternative than out right removal of tree. >> i'm wrestling we believe the tree is the expert his success ratio is good but am i willing to take the risk the tree will live or die what happens from the tree didn't make it. >> from the tree didn't make it the requirement for an 84 replacement tree seller not as larceny as the tree by honestly given the amount of resources investing in the relocation i don't on intersections anyone will be intentionally spending that much money for the tree not to survive. >> it is a one hundred plus-year-old tree i'm old i if i got moved i'll suffer for a one hundred plus-year-old tree deeply rooted and established there is risks. >> certain i'll emphasis you know that someone brought up why not angle outdoor arborist the staff has oovshtd we've condominium our lives to preserving and protecting trees that's why we're in the business we reviewed that carefully i was initially resistant and if you read through the material you'll see we were concerned initially about whether or not the tree could successfully be relocated after reviewing the proposal and the success rate of firm and how they do it we believe it can be successfully ronald. >> our decision to whether to upheld the appeal or deny the appeal we're taking the risk to move the tree will live or die; right? >> no, i mean i on intersections you're taking - >> taking on the risk. >> sure okay. yeah. >> okay. thanks. >> i'll note this board has on many occasions approved the removal of trees. >> again to see you by the way. >> good to see you in the appellants brief their concern the relocation and specific relocation of where it will be put in not a good place could you explain that to me. >> well, we accident as a response to that concern raised at the departmental hearing met with the adjacent property owner he looked at the site where the tree will be relocated our feeling a good location not a conflict with the neighboring trees in many ways a better location because of the existing site constraints of the sidewalk very close. >> and the 4 o'clock that's my next question. >> i have a question the conditions does that literally mean the permit is not issued until the conditions are satisfied. >> yes. so i should also note our approval constituent conditions that all the necessary planning and building permit be satisfied the tree will not be loudly to be removed until the other conditions are satisfied. >> if they get the approval that will changing change the character of the neighborhood as well so damn if you do damn if i don't. >> thank you. >> thank you. >> okay public comment can we can see a show of hands of how many people wish to speak under this item. >> okay. i'll ask you to do a couple of things line up on the far side of the room and if you haven't filled out a speaker card do so before or after you speak and hand to other collect the person to speak step up to the podium. >> so two minutes. >> i'll do any best. >> good evening my name is dr. evelyn rose fwlerp i'm - the residents of any neighborhoods are the ones that know their neighborhood the collective voices on nordoff street has been loud and strong for the past 15 months those neighbors one hundred strong are in keeping this at its location and opposed to remove it 10 different neighborhood associations who have signed petitions to protect this tree neighbors have signed the current written e-mails to the city and overwhelming support to protect this beautiful redwood and keep it in hits current location commissioners please no personal interest in helping to maintain the character of our neighborhood or protecting the redwood monarch that is to the neighborhood glen park has a activism since the 19 hundred have ripens to ask for equal assess and find a way to obstruct the freeway invasion and once again to protect the safety of those homes and trees in close proximity to this move one husband calvin built this in 1908 is honored by the neighborhood as one of the urban forester outlet community activists and established in 1908 and ladies lead the activities the history glen park activism grins with the historic stillings home in the redwood monarchy is helping to establish the spirit of. >> thank you your time is up. >> he /*. >> next speaker. >> good evening. i'm eric i reside at thirty stillings director opposite the rear yard of norway off the department of public works declared this tree to be significant pursuant to the passage of board of supervisors a significant tree located within 10 feet of public right-of-way and meets one of several criteria with size bus the common factor in any designation is they're close to the street that's why a large tree is significant it is because it can, seen from the sidewalk and enjoyed from the sidewalk it operationally is on part of visual environment of the streets in this case, the most striking feature of that part of avenue in you move a significant tree away from the street 85 feet away it takes away the since and what's the point of go designating the tree this remove sets a bad precedence to preserve the significant trees the sponsor states their brief at the removal and replanting allows the tree that residences much the visible project in advance but how can it be that way when there's a 4 story building straightaway it and o dissipating it and in fact the neighborhood enjoys this that will be destroyed matters in the the title of the tree will be retained but meaning also this is significant many people sfwak with that tree. >> outside my window it had destroy the character of a neighborhood entirely please reverse this thank you. >> thank you very much. >> next speaker please may i have the overhead please. commissioners i'm i live on stillings after across the street from the tree one of the the key points removing the tree the only way to put 4 units on the site this is simply not true for the relocation applying f states you can vary the lot slogans it is 1 hundred square feet per lot a blind movement to design homes as cluster development group housing around landscape amenities i can't that on intersections of a better site around stillings section f allows this to happen and the sponsors earth all firm is the right one to do this from the sponsor didn't like cluster how about the dwelling unit in section c-4 the space that - it is eligible a unit that is affordable by design if you read the sunday paper you may have seen two important articles with an the plight of san francisco school teachers moving out of the city and the other was an accessory units supervisor peskin is in the process of making the accessory provisions favorable citywide they're with 9 history house on norwdoff - a for senior and retired teacher with the san francisco public schools one of those options will help san francisco so have affordable housing none of those have been by the sponsor and . >> thank you, ma'am, your time is up. >> >> next speaker. >> asking for it. >> overhead please. okay good evening. i'm greg he live on according con go a block from our redwood tree the process that is followed by dpw and the sponsor lacks transparency fairness and common sense in any limit time i'll try to raise two points it appears the urban forestry council has been shut out of the process this is the document that shows section for public works code and shows the duties of urban forestry to make the recommendations to the director on appeals of applications for tree removal and then this from the environmental code the scope of the authority the urban forestry council subsection 3 it shall consider the issues that retails to trees on private property the urban forestry council has not been sought in contradiction and contradictory to the entire purpose of the urban forest council and moving to a different point i find harsh and hate to see that happening the decision to approve the application seems to have been made before the application was submitted to a non-public input before it was made and removing the hand of transparency i hope you see are a couple of e-mails and friday, october 30th the project sponsor informally submitted the application even though the rules require the application in person with a fee paid and the language applies it the discussion was discussed in advance on monday november 2nd early in the morning dpw staff said they'll approve the application for less than one - this whole process took place i hope you see something wrong with. >> thank you, sir, your time is up. >> >> next speaker. >> please. i'd like the overhead please. thank you commissioners for entertaining any comments i speak as a concerned citizen and neighbor that live these on intersections the same block and speak as a member of the california bar that values procedurally fairness the sponsors brief states the discretionary action subject to the california environmental quality act and deals with the situation we believe he's one thing wrong on both accounts of the public works code sites 9 purposes for the urban forestry ordinance and letter g to recognize that trees are part of aesthetic environment and their remove removal of important trees should be with the correct dialogue with the california environmental quality act this specific purpose was added by this board of supervisors in 2006 to document why the tree legislation was ceqa was not an afterthought when the ceqa documents for this project was completed last year only contained the tree removal a evacuation of the site as construction the relocation that requires up to 5 hundred cubic yards of evacuation so dig a hole large enough to accommodate the man made basis it is attached to the tree the sponsor indicates in his brief the 50 cubic threshold is applied you see this down here this is not true in san francisco the 50 cubic are threshold applies to every lot with a slope of 25 percent or more the guidelines changed from an average over the 20 percent 20 percent on the lot as you can see from the check list the term average is removed from the check list. >> i'm sorry your time is up. >> next speaker please. state your name for the record susan. >> next speaker >> have the overhead please. commissioners good evening nominees a tom christian i live on north avenue a half block away from the property i'm a native san franciscan went to high school and raising my family here and i on intersections we have a chance to save the character of the neighborhood it is important to the neighborhood to retain that the graphic on the machine here is page four of the sponsors brief he himself quotes public works section 8, 10 action only referencing has to do with with removal no section 8 a with the authority over planting of significant trees the reference 10 a is for removed so this is either a relocation that must be denied because dpw has no authority to permit the rezoning or a removal which was previously - the second graphic is let's see here - >> highlighted in yellow down here section 806 stated the directors action shall be final he was denied did permit last year the sponsor appealed and went to a hearing how many times does he get to apply to the same permit type that causes questions those call records and e-mail logs that was put on the screen were shocking seeing those showing all the calls not returned and e-mails and the lobbyists getting respond to was shocking you have call that into question commissioner honda - >> (laughter). >> thank you. >> next speaker please. >> i'd like to use the overhead please. >> hold on a second your overhead is up and down. >> face it is as though you're looking at it. >> oh, i see. >> surprise. >> reset please thank you. >> commissioners good evening this is my agenda we live on congo street we have standing before you to emphasize the developers have a huge credibility problem what they're saying what we do to support the ken tension that has a history of declaring bankruptcy thai they have liens and restraining orders we stand before you because of history of the section and the bankruptcy because of the nordoff, llc was heading on the project this project was full of problems the mortgage company filed for breech of the contract and specific performance and judicial foreclosing it was stopped bus of the improperly permits making disadvantage and ufltd the property was taken and the contractor had a history of - a problem of developments that james has federal and state taxed and multiple lions and foreclosures on given avenue and penalty railroad approved by the board of supervisors when the judgment were made he declared bankruptcy the deceptions continued the plans by the nordoff that the - >> can we have. >> this is an area. >> overhead the tree size. >> ask for the overhead. >> can i have the overhead please. the reis the witted canopy is across this area 32 times the size and half the companion. >> i'm sorry your time is up there we go. >> i'd like the overhead please. i'm jennifer for the record second the developer pa claims by resolving the redwood no cost to the construction it is unlivable the redwood fragile is only one foot unaware away from the foundation the true canopy overlaps with the depiction of the - third, the house at 49 stillings is 39 feet the canopy is 45 feet wide the branches will not be trimmed but the trim is testified they're not going to significantly cut back the branches of the tree figured out this is really where i want you you guys to focus it turns out the sponsor fabricated for - we'll directing your attention to the projector the sponsor submitted 22 letters for removing the redwood tree those letters are not from neighbors 12 more than half from other real estate brokers and spouses monthly in the project sponsors cold well banker office and from other contracts this includes letters from the project sponsors family and more concerting the second time the letters were submitted with the appeal the signatures don't match someone signed those letters fabricated both times why are redoing this we want you on the board to exercise caution this sponsor has not proven itself to be successful with the prior developments that didn't require the relocation a much more serious undertaking and second reiterate our request for bond support because - >> okay your time is up. >> now thank you. >> proerj please. good evening, commissioners my name is a james i'm the - i live directly across from the tree there is no relocation permitted for significant trees only a removal permit that was denied and not denied filed under the public works section 3 c in the sponsor wanted to take on the volunteerly relocation the time was done at the previously schedule under 9 removal of permit denial the sponsor says that refers to a section that green house gas emissions the authority to dpw to regulate the removals and planting that is for the authority for relocation second 8, 10 a only allows the removals not allow planting the word planting is not mentioned once in section 8, 10 a my graphic of 806 b rather 806, 10 is for the progressing fee the dpw to authorize the removal it states only covers street trees planting that's in the public right-of-way not private it says the appropriate form must be used the sponsor has not applied for a sponsor form and not in those provisions are authorized the relocation of any tree much less a significant tree on private property the removal of tree must be denied the time and place to talk about taking on the conditions of loopholes was at the previous denial if this new removal of a tree - >> thank you for your comments your time is up. >> thank you next speaker please. >> good evening commissioners i'm stuart i live on congo around the corner i walk under this tree everyday i just want to brought to your attention to a few misleading false statements in the sponsors brief month have been touched on the sponsor starts out stating the reason for removing the trees is for the health and longevity i think the real reason we should register the plan to remove a second and dangerous tree was denied my second point they state twice the tree residences it's visible prominence trigger not only shows you have to be thirty feet away the sponsor says there's support by 22 letters of support i'll not touch if you go into the immediate neighborhood you'll find support for keeping the tree the tree is under stress due to an inadequate water supply that is because of the drought and states 6 to 8 feet from the sidewalk those measurement are not quite right and should be checked a justification for moving the activities can damage the root and true but digging it up and moving that 58 feet neither will taking the proper prognosticates and they site the executive drifshg to unreasonable impacts on residential development i'll note that prioritize 100 percent permanently affordable housing and those are not that. >> thank you for your time. >> next speaker please. >> thank you. >> good evening, commissioners i reside an nordoff immediately in the vicinity of the current development in question relocating the existing tree pose danger for any and the properties with a falling branches and so forth i on intersections the tree will be better where it is right now in terms of community appreciation of the tree and i suggest that we should give attention to that. >> thank you. i have a question your at 69 nordoff street your property is directly behind the tree that is removed. >> right this is the demonstration area and that's my property here. >> and this is the property in the back so actually, i will be in conflict that the relocation. >> so is the tree would be next to a building or next to your rear yard. >> if that had been in the rear of the existing development in conjunction with any property i will be impacted by it. >> okay. thank you very much. >> thank you. >> other public comment? any other public comment on this item >> okay. seeing none then we'll have rebuttal starting with the appellant you have 3 additional minutes. >> can i have the overhead. >> seeing here the trees from a photo in the 1900s were in the area wooded area back then commissioners, i want to begin any word with the urban forestry staff in their e-mail which he we got through the public records quote we're losing a significant tree the tree will exist but no longer be considered or considered significant hidden by a total of three houses then continues we can stick to our original denial and have the tree remain where it is end quote the decision to grant that was clearly not in concerted with the recommendations not legally authorized and no carefully administrative standards and not subject to environmental review it was the decision was made before the paper application was filed and made it was made for an application type of that didn't exist a legal challenge cried out advertise it i'm sorry, i have to speak from my heart i'm going to disheartened i'm a proud san franciscan and lived in the city when the director of dpw denied the redwood permit it reconfirmed we're a community full of folks more than maximizing investigators profit when i heard who the urban forest was i - the decision was reaffirmed i was shocked what makes it worse looefrg e leon about the backroom negotiations hillside in the public the system that allows 44 e-mails because it is possible not because it is do the right thing to decide that a significant tree was two important to remove at one point and then now not worthy for the public to enjoy we adjoin with the neighbors of the groups around the tree in obviously to have this redwood tree removed he leave with i the words of staff of the urban forestry i on intersections this is they can pull off something like that but you do not why waste those resources when it may not be possible to retain the tree and continues from a sustainability statement- is from a sustainability why invest in the watering just to pull off this transplant thank you. >> thank you, mr. gains. >> a question. >> do you want to tell us who the authority was of that memo you quoted from. >> if you want me to i will it was chris buck. >> thanks. >> thank you. >> okay. >> mr. cox. >> i wanted to speak mostly about the health of the tree itself as it currently exists i mean you've heard all kinds of dimensions from the sidewalk you need to know also there is a stairstep going down the side of the tree that is also constricting it's roots that was planned you asked how would the tree it is 70 so 75-year-old but lived in a constricted with the soil for the tree to sustain itself it is amazing it made it through the drought through there was rain in the process of transplanting the tree we do some corrective bruno u pruning in the canopy of the tree it was broken 3 times in the top i do not know if from winds or degrading woods but that will be corrected and the root system in moving large significant trees that are sometime 5 hundred and one thousand years old i've moved trees 2 thousand-year-old by setting them in a new environment and giving them a maintenance procedure a 3 year maintenance in place those trees can regenerate new roots and gives them a second lease on life whether or not you let me elect to remove the tree if it stays in its current position someone needs to do something mainly water it i'm not from this area i find the poling all the people are concerned and nobody is give e given it a gallon of water in the last 5 years the long term benefit of this tree so preserve it. >> my name is jim keating with the 5 nordoff, llc i wasn't planning on speaking but i want to let you, you know, i'm a lifetime san franciscan and live and work in 2, 3, 4 town since 16 and been involved in construction i'm 45-year-old i've built literally over hundreds of units never had a problem yes when the housing crisis i got hurt but never had a problem with going back on promises if i known that testimonies was coming i could have brought people with me i made promises to - i wanted 0 clear that up thank you. >> i have a question for the tree guy - sorry permit holder. >> tree roveer sorry, sorry. >> i didn't see pictures of the site are you able to transplant without assess from the adjoining property owners. >> yes, sir. >> not on their properties. >> not at all in fact, we have a new banned method we actually can transplant very large and this tree will weigh in the neighborhood of one hundred 60 to two hundred thousand pound we do that through a unique method of airbags. >> okay as long as any other question i mean so i can get a sense we know this is about money. >> sure. >> what is the cost involved in moving a tree this size. >> typically and tree this size will move for 75 to $100,000. >> thank you very much. >> okay rebuttal from the department ms. short anything further. >> carli short public works a couple of points i'm going to finish reading the last statement that was read in an e-mail to chris buck to myself after saying we could stick with our decision to deny and state our preference to have the tree remain where it is the final sentence not read out loud the public works gives the director of public works i want to clarify seems like maybe some misunderstanding the bureau of urban forestry is we work for the direction of public works and the code gives the public works the authority to make those decisions we hope he does that bans staff recommendations but ultimately the directors i would note that i on intersections if there is a little bit of selective read of record they submitted an e-mail and that i had written to the director regarding it is clear that the project sponsors in preparation for the previous board of appeals hearing proposed to the director a relocation the initial intent come to the board hope to have the department in agrment as often the board send this it out to reach an agreement their intent can we go to the board with an agreement the director asked us to review it he believed this was possible and support of relocation of the tree at this point we said we on intersections the most transparent process to go back to the community and start of the public notification all over again, i just really want to be clear we followed the most transparent process not a process that is in the transparent i think the other thing to that they suggested the decision was not authorized legally the director of public works is given the authority to make those recommendations and the staff recommends to him or discussions no matter ourselves to make a recommendation not made by the department. >> i on intersections oh, one last thing i wanted to say someone said the discussion was made with or without input from the public it is always made once we go to the public we are denying we follow the same process with every tree removal or relocation thank you. >> ms. short. >> i don't get a sense he get a sense that the advocacy position has been let's work very good hard to build those four houses on this site and the compromise we'll move the tree. >> as opposed to how are we're going to keep the tree here and build a house or houses on this site what happened to the tree advocacy i hear a lot about the developer advocacy. >> sure. >> how do we fit 4 houses on the site i don't hear and mr. buck is my hero he gained any respective tremors what about the tree what about let's keep the tree and build three houses or two houses what he said to the tree huggers. >> can i respond. >> sure. >> i will say we felt the best way to have the tree relocated having i have been doing that for 12 years before mr. buck took in my previous position we've denied the removal of a tree before this board or any other entity and have that tree ultimately be preserved we think of we've been routing overturned by the board with a development project whether or not that that project is sent back to the board or a proposal we've agreed repeatedly and some of the fellow commissioners are aware why want make the project sponsor we design we've lost every of those cases so your decision was could we safe this tree if we relocated it we thought the odds were better if it was removed than continue and have a removed entirely that's y where the advocacy went. >> there's always a first time. >> i'd like to see it in 12 years i've not been successful. >> i have a question ms. short severalty the public complained about unfair e-mail and correspondence can you shed headlight. >> it was public record like i said the original board of appeals approached the director of public works would he support a compromise when he asked staff to review the proposal and you see all of the public communications in that we said surprising we on intersections this is feasible at this point the most transparent process to go back to the public i on intersections that would have been less transparent to go to the board only narrow three hundred foot notification for the board with our process we put notices on the tree and the corners of block so many people that walked the block and again live immediately adjacent get our notifications that's the intention asia and the last question anymore procedural since that cack before the board maybe a question for the city attorney as well if that came before the board and denied for a tree removal. >> didn't come before the board that was withdrawn. >> that was in the department. >> yes. >> okay. is there a specific form - so right now an approval for removal than approval for relocation. >> a condition and you know the code actually referenced the tree removal process for street trees in restriction to the significance of street trees we require a replacement trio this would be the replacement tree would be the same tree. >> and my very last question have you seen the site i mean one of the public lives directly behind you ask the tree removal if this property is effected he said no is that realistic to you. >> yes. i've been to the site personally on several occasions as mr. buck we were directed at the after the public works hearing to go look to address that chris met with the just a minute neighborhood as a result we fallout imposed a condition the tree is rotated a quarter term to give the best possible site we feel that is feasible in the promote location. >> the appellant had mentioned he felt that in his opinion the retaining wall was required you don't on intersections the retaining wall is required. >> it not required for the new planting but in terms of impacts for the soil removal that's how i understood that. >> commissioners, the matter is submitted. >> anyone? >> i'm conflicted and i am as well the key phase the character of neighborhood that is a significant tree the photo of the stilling house was seemingly taken a century ago had that tree in the background and didn't look like a young tree which was a century ago i asked the i wonder in the tree expert for the project sponsor was correct about it is a significant tree and significant character that the unfortunate neighborhood and this might - my recommendations would be that find a compromise point that keeps the tree in piss position and allow the developer to develop homes there awhile sustaining the health and integrity of tree i'll move to deny the appeal. >> i on intersections you're right. >> uphold the appeal sorry. >> make a motion. >> i on intersections i did. >> commissioners you want me to call the roll. >> we need to continue this case and i think so two actually. >> you'll need four votes roll call on the vote first. >> ideally if it you think this matter needs to be continued it would be best for us to know without taking a vote whether or not that is necessary so we can formally poll the board where our leon and misinformation or vote wasn't make a difference in the outcome if you propose a continuance. >> if any perception is right. >> you'll say you'll not vote. >> let's go to round b. >> i'll move for a continuance until the fact that the commission is not fully in place and a fuel vote is critical to the outcome of this decision. >> you wouldn't want more information from either party whether or not they're continuing you mate not get the 4 with the additional commissioner. >> you have suggestions commissioner fung. >> i'm going based on where i hearing the sentiment on the board and therefore what you are own procedures are in impasse. >> go for it. >> it seems then the question i think might be there is disagreement between commissioner swig and the vice president from the other two commissioners are in general agreement with commissioner swig then we'll need to hold this over that commissioner wilson can participate in the one of the commissioners not in agreement with commissioner swig we'll call and role and this matter could be resolved tonight so i on intersections the board is listening to you to make an indication to continue the matter or whether. >> i on intersections continuing at the same time maybe the project sponsor and the appellant can have conversations in the meanwhile as well i'm for the inclined to go that way we'll not get that done this is a very big issue that is about the relocation i mean i'll move well, you have a motion do you want to withdraw it. >> and withdraw and . >> i move to continue the item before 7:30. >> we have a commissioner wiener on that night no i'll not recommend any new items on that night is july 13th or 20? >> i move to continue to july 20th are the appellants and the project sponsors able to attend that night july 20th. >> what is june 29th. >> i'm not here. >> oh. >> and i'm leaving around 7:30 on both nights. >> you want to look at july 13th then. >> okay july 27th? that would be helpful to know august 17th act back on the 16. >> august 17th go 10 we'll go to september 14th. >> they're back on the 16 they can come on the 17. >> you know what there is plenty of times i'll move to continue to august 17th i on intersections that september is ludicrous and the project sponsor have you able the appeal to move the appeal so august 17, 2016, and that is to allow time - allow the missing commissioner to participate in the final vote no additional public comment or no additional testimony that matter has been heard no preparation of new material and on that motion then by commissioner lazarus commissioner fung and commissioner honda and commissioner swig okay. thank you so that item has been continued. >> so commissioner honda we should move forward with item 7 which is appeal - versus the san francisco public works of urban forest and the property on 33 protesting the denial open march 4, 2016 a tree removal denial to request with roll call vote of two trees adjacent to the property and start with the appellant. >> go ahead. >> good evening, commissioners from reuben, junius & rose here on behalf of the appellant for the. >> i apologize. i didn't recognize you as a person from reuben, junius & rose so i need to make a disclosure wish to disclose i'll hired reuben, junius & rose on a project reuben, junius & rose representation of the equity before the board will not have an impact on the my decision. >> i'm here with the professional arborist that elevated the trees i'm available to answer any questions the owner has requested that dpw remove two city trees on adjacent from his property as is arborist will explain those trees are two large species for the narrow sidewalk this is creating a number of property owners problems that warrant their replacement most concerting is the impact on pedestrian safety the large roots are push and a at the sidewalk with the damage it is reoccurring and perhaps were left unraider and january order in this matter dpw is acknowledged it is limited the growing room for the species but stated the sidewalk can be repaired a repetitive cycle is not a reasonable conclusion and not good for the taxpayers dollars additionally the large canopy of the trees block lighted if street lights that promoting safety concerns in the neighborhood a sleeping bag and clothing were found between the hedge and the house and a neighbor safety concerns lead her to add lighting also have concern the room systems for the serious threat of the case the damage to the line that is property damage is costly to repair removal of the trees is wrarnd they're a nuisance and the tree branches are encroaching on the house and causing damages to the roofs it escapes and the trees drop leafs and accommodate on the sidewalks and swept into a pile the owners fails to clean the leaves and when wet a hazard because the trees are maintained by the trees the project sponsor lacks the authority to trim them back as discussed in the brief there's a double standard in play dpw stated in the january order if someone want to plant new trees staff will not allow the sidewalk is two narrow this means that dpw and order has refused to replace the trees that shouldn't have been planted in the first place and finally has not transferred responsibility to the property owner he offered to plant new trees in the finally removes the current ones the other trees provides a precedent for this situation for those reasons we ask that the board grant the appeal and require the replacement of those trees with that, i'm going to turn it over to to our arborist to share his observations. >> good evening my name is roy i'm a consulting arborist those trees are a black wood arcacia roughly is foot each for the species that be relatively small and young and planned in baseline 2 and a half by 3 feet against the curve one is less than one foot from the sewer service and one right by the ground water and gas lines these trees are pushed the curbstone into the street and ripped the asphalt the sidewalk both old sidewalk that was not repaired a year ago and the one that was repairs is cracked and broken the trees are sending shoots into the property side the trees are run out of room a big species and small areas they're nice and green and healthy their confined let me have the overhead i'll show - overhead there we go. >> as you can see they're utilities such here and the sewer line right here very small spaces so these trees are not in the sustainable location the repair circle 19 psychological is extremely short creating hazard and unsafe sidewalk conditions this space allowed for pedestrians is substandard and didn't meet ada and i on intersections this is just a practical matter of those trees need to be replaced because of the small spaces allowed thank you. >> thank you. >> we'll hear from the department now. >> good evening commissioner chris buck with san francisco public works we denied the removal for the two black wood arcacia the arresting cash are still relatively healthy a big part of - that was the denial of the staff level that was appealed by the mr. president, and that decision was upheld by the department large based the fact the sidewalk is two narrow to require the replacement trees we would like to grant permission for the replacement trees for any site this sidewalk with this 5 feet 4 inches so to replant this site we'll have a 4 foot path of travel and with a 7 foot sidewalk sometimes sometimes 2 and a half tree baseline and that will require 6 and a half foot sidewalk so in terms of the site and the potential for a replacement the big issue the sidewalk is two narrow for the replacement trees tree number one on the right when our facing it and viewing it from the street within a lens a foot of the sewer lateral one not replantable because of the sewer line and tree number 2 by default we'll not allow to be replanted the sidewalk is two narrow the diamond height i've had ouch referred to a armageddon the landscaping pattern in the neighborhood is to have landscaping of different types in the front yard setbacks and a lot of people did a lot with that limited area there are street trees be planned that's what i mean and - and sense of earth is getting there. >> so the city agrees okay developer if you subdivide this neighborhood the city will that maintain the responsibility i wish i was there even the decision to plant any trees in the neighborhood itself what we're doing a case by case basis if respond has a sidewalk that is wide enough we'll require that the replacement trees be planted under there are a few sidewalk areas that are wide enough but a lot of the sites that have existing trees the sidewalks are two narrow the species itself is ones we watch closely in san francisco au cash we no longer please be advised the ringing of and use of cell phones, we evaluate those trees not large compared to what the species had had widen is keeping the height in check the sidewalk is currently ban repaired so the walk currently didn't need repair at this time 0 at the departmental level our decision was deny the request removal we understand that is a narrow sidewalk we understand the species can, problematic but we don't have existi existing sidee - the hardest decide you can't replant one inquiry a completely reasonable inquiry so put trees in planters not have the trees with sidewalk. >> a key part the sidewalk has to be wide enough with a 2 feet space is between the curb and the start of planter we do have not just an internal staff person saying you can't put at that particular time in the public right-of-way with advocacy groups and ada unfortunately in addition not room for street trees not room for any trees in above ground containers that's why the departmental level issued the denial to remove the two trees. >> i have a question. >> thank you yes. >> in dpws brief the trees are young and healthy how old are the trees right now. >> i should have checked our database we might have a planting date in there but the wind is probably keeping them shorter they look younger than they really are anywhere if 20 i mean from 10 to 15 or 20-year-old. >> but the project sponsor said the concrete is a done but showing signs 7 breaking again so currently not allowing a tree to be planned there because of sewer the sidewalk is narrow and directed that particular species of tree yet denying this person to remove with we're removing lots of healthy trees from the missouri sonic i learned to skateboard on the street i'm two old but the permit holder is trying to replace it because the both trees are causing so many hazards to this particular property those you know that is a iconic block that's a anguish making those protective on san mateo; right? >> that's right so commissioner you raised a couple of good points we generally denied the removal of healthy trees and do so the trees as more permanent infrastructure with the sidewalk the sidewalk you can replace in kind with no value cars you drive it off the lot the moment you do it reduced to 50 percent value and trees they cost money they do a greater than benefit one thing to note the current maintenance responsibility has been with the san francisco public works so many, many cases before you the trees are the maintenance the adjacent property owners we are responsive despite budget cuts but you do raise a few good points we acknowledge the narrowness of the sidewalk and the phase right tree right place we felt the departmental level knowing no possibility of replacement we want to see those trees remain longer. >> you may or may not know that do you know the latest the city pruned the tree. >> i don't have that record. >> but generally the pruning is. >> the pruning is every few years we don't get out interest on that kind of a basis we are out there 5 to seven years. >> all right. thank you. >> i have a question in the appellants brief given the dwp the baselines are the same size and the sidewalk identifiable is it true. >> some sites have been replanted again, it is always case by case so frontages surveyor. >> a wider sidewalk that is subtle not that obvious when i start with the department 11 years ago we phone number get rid of planting 18 inches one foot and a half foot 2 by 3 really we're saying we need a 3 by 3 bear minimum basis on intersections it is but. >> that particular block the one side is a home across the street is a more of a townhome and their sidewalk is absent larger than across the street. >> some of the younger trees are they've been replanted a while ago maybe more than 10 years ago it - their remaining relative small i call it armageddon. >> the big valley behind so. >> i have conversation somewhere in the last six or eight months in the last year the commission on first down from harrison on a small alley there was an advocacy by your department to take out trees and replace them as part of a development and acknowledged that at this time they were healthy trees but in the spirit of the character of the neighborhood correct me if i am wrong you advocated to pull the healthy trees out it was more appropriate for that location the precedence for pulling out a tree a healthy tree and putting something in to me correct me if i am wrong secondly, again within the last 18 months i can't recall the results a tree open fulsome street that was the same way situation the tree had become much to large in the opinion of both the property owner it had gotten to the point it sustained damage to the sewer they have sewer backs up it was sew - and whether to take out the tree and replace it i'm project by project probably not appropriate if those trees grow we have another situation on that site and another you think happy property owner can you help me out how do we depend on full name street and pulling the healthy trees. >> your memory is accurate so the first example on first and harrison was 4 lansing that permit holder they were looking at trees adjacent to the gas stations one minor correction the proposal had the block a shared street that became so what happened in that case the sidewalk created was reduced 6 inches or so and the rolling row of species were pepper so in this case knowing that the major improvement permit was approved by this board of supervisors and everyone on the block really wanted that shared street model based on the assessment of the street a grade change that allowed us from an arborist perspective you know what you're on the sampling what we know about the species is dropping the grade 6 inches to meet the level of road it is a new haven starter for that species so fulsome you're right repeated sidewalk damage and in that case we were able to meet in the middle i suggested if it looks like this will get approval can you require the owner to install additional landscaping to mitigate the loss of tree that was ultimate approved by the commission with the condition they replace that with a reasonable tree and additional you know partially shaping to gunmen the community but have the issue of ongoing damage maintenance and challenges. >> in your opinion can we get to a resolution or compromises fulton street and no room to add landscaping in the sidewalk i on intersections for your body to consider it is fair to say the landscaping a lot of landscaping setback over off the sidewalk we acknowledge our goal for accessibility for pedestrians that's why we'll not allow those thabe replaced in that sense this is not a case that i would say we feel strongly about and that's why we wanted to pattern the plain clothes and acknowledge the challenges that created for that whole neighborhood. >> thank you, mr. buck. >> thank you. >> any public comment on this item? please step forward. >> my name is carol. >> i'm sorry speak spot microphone and i'm carol i live adjacent to the property in question at 20th century and my waterline was in one of the photos between 2 feet of the trees in question where the sidewalk that reoccurring damage since repaired last year our waterline is in two feet and it requires a 3 feet distance i feel it is appropriately sized for this space along with the others that spoke this evening we have a 2 and a half foot tall sucker in the front planter bed that grew a foot since the last hearing the interests tree has a fairly aggressive root the canopy that is conservatism on the neighborhood roof is now encroaching on any roof it is not a problem now but a concern about this growth of this tree and it is inappropriate size i'm speaking to remove the tree and replace that with some landscaping that's more appropriate whether a tree sounds like it will not be feasible today but some sort of landscaping thank you. >> is there any additional public comment? >> please step forward. >> hi other george a resident next door at 24 street listening for the conversation with the imperative and our neighbors subsequent our experts seems like we're stuck in a sidewalk where the dpw is requiring you know our neighbor to basically keep to the trees and can't replace the trees so we're looking and the situation the trees had continue to be there until they destroy the water or lateral sewage line and have a conversation with the neighbor didn't seem like an opportunity to replace the tree or only one one side and offered to pit them into planters the most reasonable logical thing to remove the tree and allow him it replace the trees or one tree into one side of the sidewalk they narrow i also recently just two doors down a tree of similar size allowed to be cut down it seems like it is a no win situation for you know our neighbor and for ourselves so i offer my support of removal of trees he's offered to replace the trees i hope you'll do the logical rational thing and allow that is there any additional public comment? >> okay. seeing none rebuttal if you have additional comments 3 minutes. >> thank you, commissioners overhead please so two quick points i'd like to reiterate that is the property owner because these are city maintained trees has from authority to keep them under control so the dropping the roof encroachment and a lot of the both ground problems that our city mitigated he is not able to take on the pruning secondly, i'll let roy talk about the alternative transportation landscaping option we're happy to try to accommodate. >> we've been doing a little bit of creative discussion awhile mr. buck give his testimony we came up with an idea where i have the pencil pointed a property line in t planter bed between the gentleman's property and neighbor and there are gas and waterlines and all kinds of utilities underneath that planter bed and a root over below but my sense is that there might be room for a planter with an above ground small drought tolerant that adds landscaping function wouldn't be a full blown street tree but maybe something along those lines and so that's a suggestion might want to incorporate that and also there was a question that was posted to mr. buck about when the city last pruned the trees he asked the gentleman he built the building in 1990 and he said no pruning i on intersections that is true looking at the trees they don't looked pruned those are the facts and hope that helps you in our decision. >> thank you okay. mr. buck anything further. >> good evening chris buck san francisco public works a couple of points i appreciate commissioners time i'll try to get this back to a conclusion a couple of points the two trees we're talking about are relatively healthy there was a tree on one way it was posted for removal without replacement and you know we do there's not a lot of great opportunities to landscape the front setback it's well maintained a sewer line on one side and water on the other than landscaping in the setback this is one suggestion but a coach moving pieces something not necessarily going to be a real legal condition just something to promote and then lastly ada guidelines they allow us to have pinch points are limited tree basins with any sites no problems in the future that's it and appreciate the discussion we've had already thank you. >> thank you. >> commissioners, the matter is submitted. >> knowing the block pretty well and an at&t trim i'll allow the pertaining to remove the trees i'll not make that a condition. >> can't win didn't seem to matter who owns the trees i'll go along with intimation the city has not maintained and two that's e they'll not allow a tree in this location so why should we allow this today. >> you have a motion. >> my motion to uphold the appeal. >> grant the appeal. >> on the basis that ada. >> so our moving to grant the appeal over the department and allow the removal of two trees on. >> correct. >> on the basis. >> for pedestrian safety and ada. >> improving pedestrian safety. >> correct. >> okay. >> okay. so then on to motion to overturn the department and allow the trees to be removed. >> commissioner fung commissioner lazarus and commissioner swig that motion carries with a vote of 3 to zero. >> thank you the next - 4 to zero. >> which one of us disappeared. >> this is the next gretchen and robert and trashing versus the department of building inspection with the planning department approval the property on 21st street appealing the issuance on february 2016 and with an alteration to add a army basement and family room and second story with the dining room and kitchen and three story - roof deck and replace and install the sprinklers that was heard on april 2016 and continued for to tonight to allow times for the parties to discuss the dormers dine i believe that commissioner swig was absent that night. >> i've reviewed. >> you've reviewed the video and i believe the parties have reached an agreement to present that. >> sorry mr. patterson it's been a reuben, junius & rose evening i wish i've hired reuben, junius & rose on a project and reuben, junius & rose representation will not have any effect on any decision. >> okay gentlemen start your engines. >> thank you. (laughter) good evening commissioner honda bryan patterson i was recently brought in to help to negotiate a settle as pointed out this out and i'm happy to report we were able to reach an agreement >> thank you to the gentleman and his client like to read the terms into the record and from the board choose to support that we will ask you grant the appeal and uphold the conditions would be the settle terms we've negotiated. >> so i will go ahead and ask for your permission first to file 3 documents one a revised set of plans the second is a list of settlement points and an e-mail including the other two appellants i don't recommended if that's okay. we have 11 copies. >> i on intersections you need to describe what happened first before we are going to accept any documents. >> okay. >> the party sat down and meet before and after trying to resolve the two primary concerns which were privacy for the neighborhood and these proposed dormers the dormer proposal has not changed so that rather than having two dormers side by side and commissioners on the overhead like to see what that looks like. >> and mr. tuney can describe that that will be on sheet 87 point so 0 showing the revised dormer plan and also looks like our time is almost out but i'd like to with our permission read the sum of the terms. >> go ahead and do that. >> so a list of items i don't think i'm going to have enough time maybe mr. tuney can finish is one item is not going to be in these revised plans it's keeping the existing cherry tree and adrc mature trees at that description the screening in the backyard will consist of planting 5 italian trees with 24 gallon box 8 feet tall their grow during the construction we are general obligation bond general obligation bond to replace them the tree in the backyard will be kept it is what it is. >> go ahead and continue mr. patterson. >> provide the landscaping in the back of the property as requested and described incorporating the exit mature trees remove the railing and sliding with the case the with the size and reducing - with flannel panel see with a simple piece of tempered glass will discourage people if rubber in the case the neighbors and replace the upper windows that creates privacy for neighborhoods to - when they're on their deck and replace the metal rail with glass and those will make more sense hopefully, when you have the plans in front of you to remove one of the dormer windows and east side which i understand they're not instead users obscure glass with the discrepancies at the roof deck and redesign the dormers and additionally term that planning asked for is retaining the existing window locations as proposed in the dormers rather than a triangleer part that mr. tuney can speak to and the privacy of the neighbors and all new windows visual from the public right-of-way or wood or aluminum played windows so those are the terms set out in a chain of e-mails between the parties and planning this afternoon and the second i'm i'd like to roared and put on the overhead is from the other appellants that is robert trashing and cherry holder consenting to those terms thank you for your time i'll be happy to answer any questions you may have. >> commissioners you want to hear from mr. tuney you have anything to add no the department has nothing to add okay. >> maybe just- >> thank you scott sanchez planning department so we reviewed the plans and as described we're accepting those changes that have been made i will note some confusion about the rating of the building a potential historic resource that was listed in the 1976 survey but not in here today a separate resource i placed the two at the last hearing this is a non-hectic resource. >> the building the hearing many of the items were not decided in terms of the line item they popped up in new york city by 3 big items one was whether the dormers were appropriate for that area and two the orientation of the glazing with these to one adjacent neighbor and 3 was the cut out in the back of the gable roof for the deck i did not hear anything. >> i reviewed those with the previous proposal with the preservation tina and the residential design team and all the staff was fine with the project as previously approved the project sponsor is responding to the concerns raised and worked that the neighbor that addressed their perhaps their concerns that the board had related to the size of dormers and having both of them on one side the building but we really - i guessed wrong. >> thank you. >> any public comment? okay commissioners, the matter is submitted. >> on your desk. >> it seems to me in harmony between the parties action speak for them. >> i want to applaud the project manager that was a willingness to work with the neighborhood and the neighborhood with the property owner do you care to make a motion. >> before you entertain a motion consider not sure how we enforce any altercation related to trees with the building permit so. >> i was going to respond that is not in any hearing i'm willing to make the motion i'm going to move to grant the appeal and condition the appeal on - with the drawings that show the changes with respect to dormer shaped glazing i'm not going to include the components on the trees. >> this there was a long list of conditions do they all you're saying all except the trees are covered by dormers and glazing would that be - >> reflect our understanding. >> scott sanchez, planning department typically if so best for our department that is board grant the appeal and adopt the revised plans certainly tln then a question how specifically i want to condition if they want to come back from the future and change from o pack to clear glaifgz do you want that to come back to the board of appeals versus just on revised plans then. >> then we'll have to deal with that. >> i on intersections in this case we were anticipating that your adopting the realized plans and move forward with the plans. >> perhaps we can restate in the sense we would condition it on the adoption of the revised plans as provided with the exception of trees. >> okay. so we need to cvs those plans submitted i'd like to know if they're dated today, i can reference them in a motion. >> or submitted at the hearing. >> ryan patterson son inundated plans i'm assuming their revised date. >> as submitted at the hearing that's fine and anything in those plans that addresses the trees? >> i'll show on the overhead briefly there are trees shown a-1 point zero shows the existing mature tree remove the cherry tree needs to be stricken as is parties discussed. >> is that included. >> it needs to be stricken so happy to make that change. >> that will help staff can we do that on the set one set you don't need to an all of them and commissioner fung is a motion on the condition that reflects the condition of the parties so the motion to grants the appeal and issue the permit only the condition the revised reflective of the plans submitted at the hearing and on the condition that on the basis that it reflect the agreement of parties. >> so on that motion commissioner lazarus commissioner honda and commissioner swig okay. that is a vote of 4 to zero and that take a 10 minute break. >> board of appeals before we call the next item i want to ask if norman is in the room for items 10 ab commissioner honda i want to ask if you agree we call 10 ab next to. >> i agree. >> no briefs submitted either so - >> we'll will move on to item 10 ab we will be heard together normal versus the department of building inspection are the planning approval the properties on grand avenue appealing the ordinances on march 15, 2016 to one 50, llc for a three story over garage single-family dwelling with three bedrooms and shoring the evacuation and under construction of second story over basement with three bedrooms at rear of lot under separate permits as well and with the appellant missing we'll hear from the permit holder. >> perhaps over there. >> are those gifts with purchase. >> (laughter). >> good evening commissioner honda and board members i'm jim i'm a multi faceted contractor and one of the property owners along with my wife and two from the company with me together tonight we hope the resolution is simple to you as us there are 3 main points to discuss and described in our brief first, the permit approval for the most important that is properly and permits performing issued the patent has no argument for documents and second the appellants stated the issues presented by the appellant we'll talk about are you think fount and don't apply to the case and 3 overriding issues the appellant has with the seattle that sold us the property at the end of the day the filing of appeal we'll talk that most importantly the approvals as agency architect and build in san francisco i've been working and done over one hundred projects with the permit process i feel that the projects has the procedures and requirement and fully reviewed by the rdt and reviewed by scott sanchez planning department the variance was you think contested and submitted without conditions and compliant and meets the requirement of the planning codes in the residential design guidelines and satisfying the general policy finding we conducted all the neighborhood notifications and made outreach hold neighborhood meeting above and beyond the preapplication gardening the support of neighbors we held a saturday open house with two neighborhood groups agreeing to support the project we invite over one hundred people showing the model and answering question a dr filed at the rear the building they filed a dr against blocking their light and air and have the model let you make a discussion we came to a resolution they retracted their dr didn't have the lecturer of presenting to the commission the main point no proprieties with the approvals that were issued and second i'll address the appellants stated objections in piss appeal planning commission i stated two concerns the building is quote/unquote too big for the property and if reserves more affordable housing no presentations he's not submitted a brief we're vested and have the appropriate response i bring the model to help to illustrate i'll not go into the detail to fit into the neighborhood the response described the scale and massing the building to the rear are large 3 and 4 and 5 unit buildings and the property to the east has 5 unit over here and then two doors away is a building that led us to doing the scheme two attached buildings right here built around 2002 the pattern of the neighborhood has led to the solution we have also the appellant if participate in the lengthy approval process as far as he didn't attend any meetings and most importantly not willing to, directly impacted and somewhat in the neighborhood about 10 or 12 blocks away the stated objection we considered during the progress and considered we the zoning administrator and the appellant has not factual evidence to substantiate his performance and the second requesting that be reserved more affordable housing unheard of in a rh or rh1 and the one that requires serious k is for the applicable to this project the appellant's claims with not applicable not provided any evidence and kind of interesting almost fun except it affects us the motivation is his listed property i won't go detail i provided detail but fighting the satellite and filed multiple lawsuits and to the point there is 22 pages in one of the legal documents i provided illustrating the complains against the estate this appeal is in the nuisance he is involved in and somehow back handicapped a way to get back at the estate question feel that is to despite the saels so in conclusion you should deny the appeal and uphold our presentation petition how many of the neighbors appeared. >> we were there for a morning and set up a table and brought in the table and had to sro people and supporter from the adjacent neighbors effected people there's a 5 unit building next to us and for the occupants supported our building and occupant of that building supported our building and jonathan any partner lives here the neighbors supported the project. >> okay. thank you. >> mr. sanchez. >> thank you scott sanchez planning department i'll be brief just to restate the project has met all the design with a variance that was issued in july not appealed that decision is finally a discretionary hearing and the dr was withdrawn otherwise that meets all the design requirement grabbed to the variance thank you. >> mr. sanchez that's unusual lot coverage pattern. >> well the explicit circumstance the top debris and the mid block pattern the design they proposed the way to develop on the properties in. >> what that is consistent and harmonious. >> so of these parcels built at the top viewed driven or. >> i think those lots are a bit shorter as well as which causes that circumstance those loots behind are about 70 - >> i'm talking about look at the parcels go directly next to the one the 3 parcels away. >> the street is done at the bottom. >> i mean it is unusual but i think what is unusual the buildings up above which is from on i forgot the name of the electricity shorter lots 70 feet deep with highly densely developed. >> thank you mr. sanchez. >> mr. duffy anything okay any public comment? okay. seeing none mr. zach anything else to add 2, 3, 4 rebuttal commissioners, the matter is submitted. >> so we cut to the chase. >> go for that. >> no statement no appellant the process was fully vetted by the appropriate pa parties i'll move to deny the appeal. >> two appeals and two permits. >> yes. both. >> thank you very much. >> commissioner lazarus so that on on that motion to uphold the permits they were properly issued. >> commissioner fung. >> commissioner honda and commissioner swig thank you so that carries with a vote of 4 to zero and move to item 9 jurisdiction request subject property on market street with a letter if chad poter and naomi, period of time and adams and others chad poter and naomi, period of time and adams and others chad poter and naomi, period of time and adams and othersf chad poter and naomi, period of time and adams and othersro chad poter and naomi, period of time and adams and othem chad poter and naomi, period of time and adams and others (calling names) requesters asking the board take jurisdiction over this was issued by the department of building inspection the appeal period end on 2013 and the jurisdiction request was filed on april 29, 2016, on market street, llc and the project is to comply point notice of violation demolition of office from 5 to first story and we'll start with the requesters you have 3 minutes. >> thank you, commissioners steve with the white house clinic essentially the permit applicant didn't disclosure to the department of building inspection that the permit would remove 70 units of affordable rent-controlled unit that resulted in the department inadvertently issuing a permit over-the-counter the board recognized in the hearing a year ago that the permit application didn't correctly disclosure the work to be performed a requirement of the planning code section 106 a .3.1 subdivision one not disclose or not disclose the work to be performed properly more the uses of property and as the board voted defective under the building code section the department is required to refer the permit to other departments but that didn't happen because there was no trigger for that to happen for planning code - planning department review no loss residential housing disclosed in the application to planning review didn't happen in fact, not clear whether the housing inspection reviewed it to be responsive to the notice of violation so without planning department review there was no discretionary review wyoming be a likely loss of 70 units of affordable housing in san francisco question we have a link standing policy the discretionary review for removal of affordable units in the city and the preliminary person didn't respond under the planning code they were applying for a permit to demolish their housing with the civil code was in place the tenants wasn't have been notified introduce a discretionary review application if they were the stakeholders also in the california building code two occupancy so they would have been the department should have required the permit be posted and to our smimgsdz indicate according to the permit holder that posting affidavit was forged by the department and therefore the permit holder never said unit be resolved that note that forgery happened the permit holder would have disclosed the illegal units were removed and the posting would have taken care of base the department inadvertently fails to follow the requirement if i might beg the commission for a little bit more time to address. >> you'll have - how much long. >> one more point. >> if i may have the overhead. >> thank you. >> i wanted to point the applicant indicated that there were september 13, 2013, e-mails to the tenant provided the notice i want to just to be clear when you read the operative provision the unfortunate results is that due to a long-standing notice of violation we have been forced by code compliant to get a building permit to change the unit configuration entirely per the city orders the building must be vacant that's the only mention not the permits was obtained or it simply says they're required to get a building permit it is unclear whether a permit was objected and therefore didn't provide notice to the tenants in september that a permit was actually objected. >> mr. collier why comping to us now. >> okay. that was addressed in the belief he only had 3 minutes by happy to explain. >> please. so the permit holder or applicant appealed this board decision from a year ago and went to the supreme court in a writ in the preceding just jackson cack and said the issue of whether the permit was defective was not properly before the board so the board had not issued not grand lastly jurisdiction over and over on the permit issuance but no requests for lastly jurisdiction in our brief once the permit was suspected was no for seeable need to seek the jurisdiction because the tenants had been involved in every appeals two appeals one by the permit holder against the suspension remained the same argument and the permit holder dismissed the appeal because they were going to work with the city on legalizing the use again, no reason for us to be appealing if they'll work with the city and a new attorney the new attorney decided to have either the permit revoked or approved then the zoning administrator sought a to have the suspension released we appealed that in this board ruled the permit was defective no reason to appeal jurisdiction at that point because the court is remanded we want to get the request in now. >> thank you we'll hear from the permit holder now. >> >> andy on behalf of the permit holder and obtain take care to the - the city in no way caused the patents appellants to not appeal with the timeframe under the board's rules the permit was issued in 2013 at this time no requirement of notice to those individuals and they found out about the permit in the fall of 2013 there was no request to lastly justice they were aware felt permits issuance when on appeal was filed by any clients in intuitively they were certainly aware the issuance of the permit when we themselves appealed the listing the suspension what occurred a strategic decision to not file a lastly jurisdiction request i'll point out when we were here more than a year ago i was arguing the board exceeded the jurisdiction in the decision they had a resounding hearing and i made that argument no reason the request couldn't have been made at that time on the overhead any brief in april of 2015 the braid reflected the argument it acted in excess of its jurisdiction went to the a prevailed their remedy not to come back here the remedy so go across the street to the board of appeals and passion or prejudice the decision of just jackson pending no judgment in that case and post-trial cases before judge jackson an position of having two separate appeals over the same permit by the same folks make sense no sense most importantly judge jackson in her decision issued a narrow distinctive to this board if her decision is upheld this board will look at the narrow issue it didn't consider the original appeal which is the issue of whether or not there was an abandonment of the use which i think a majority of members of this board rejected one can make a strategic jurisdiction and litigant over a 3 year period and losses in court and cack before this board we want to do offer and go back in intuitively whether we clearly had notice of this permit that is an unprecedented request it would set a dangerous cyclist precedent for permit appellants and lulled in the city we don't go back 3 years and reinvite the decisions that coffin made and incorrect decisions those folks had counsel counseled at every step of the way by the best lawyers in san francisco no late jurisdiction and i think consistent with the jackson decision and inconsistent with the boards own rules and a dangerous precedent to allow it at many late date i'll be happy to answer any questions you may have. >> thank you. >> thank you mr. sanchez. >> thank you scott sanchez planning department so the subject property on market street is before you for a jurisdiction request currently this item has been before you a couple of times in the past in onthd of 2013 our department issued a suspension because of the permit had not been routed to the planning department we had concerns about the permit in terms of compliance with the planning code pr bunt there ever interim controls that require the conditional use authorization for the removal of unauthorized units that were in place for sometime those controls lapsed and did our review that position was appealed but withdrawn by the appellant by the permit holder so the suspension is in effect we did review it we determined that the office use was national abandon and issued a use of suspension that was appealed to you by the tenants of the building as you recall at the hearing at the appeal hearing we argued that you should grant the appeal and over turn the decision by that time new interim controls that required the xrufgs for the illegal units and interim controls with permanent controls from the planning code under section 317 their clear and unambiguousus to their use for the - suspected by the city or the applicants rights were not vested this is the matter before you the permit remains suspected the planet has not vested rights we firmly believe that the permitted controls we don't see any way out of the conditional use for the theory subject to the conditional use process and don't see how the permit can be released for suspension it is not before you but outlining that suspension remains and not port that until they get the correct conditional use authorization today they've innovate so you get there are other concerns raised about the value outlet of working on the permit and my review i concurred with the issues raised and the requester in terms of the wording and one could easily misunderstand the scope of the permit geneva the wording i understand how this impacted the ability to understand what the permit did about with that, i'm available to answer any questions and joe duffy department of building inspection is here if you have any questions. >> thank you. >> inspector duffy. >> supervisors joe duffy dbi basically i'll read the wording on the preempt and tell you that was a formulate over the over-the-counter permit it was issued and suspected and the wording to comply with the notice of violation 20071840 demo of office walls on the first floor i'll prefer if anyone has any questions that's the best way to handle this from the dbi point of view. >> thank you. >> i think i have a question for mr. sanchez to. >> mr. sanchez. >> is it it correct to say there's a change in the keyed since this is all kind of started because of the permit has never not been issued then comes under the purview of the new code. >> that's correct as the code is written and there have been two interim controls and now the permanent controls they're to the applicability and this permit was issued and remains suspected as such those controls apply so the conditional use is required for those preempts thank you. >> i think we need to be careful with the terminal the permit was issued. >> yes. the permit was issued and suspected by our department. >> i understand. >> the fact it was suspected means that whatever happened in the intern that was applicable to the permit to permit that are suspended. >> thank you. >> not at many moment i'll ask we take public comment next is that okay. >> i'm sorry misquoted. >> public comment would be good. >> can we can see a show of hands of how many people wish to speak under. all right. so whoever wants to go first please please step forward >> (inaudible). >> that's correct no one not a named requester that wants to speak okay. so then no public comment? all right. so then it's up to the board whether you want to entertain further discussion from the parties otherwise commissioners, the matter is submitted. >> >> mr. saks i'll be interested in hearing. >> i'll be brief judge j recognizes we're a landscape in the property her order reprimand the matter to the board in the board denies the request for late jurisdiction the board will not on intersections deprived to rule on that question the reason we're here vigorously that judge jackson orders was clear if this is the issue and not the other issues the board has i think correctly decided so the questions that commissioner lazarus asked suggested perhaps the board not have the authority that's - >> what very, very contrary this matter. >> i'm asking about the set of circumstances to look at the permit if it comes back. >> it is obviously for another day in our view thank you. >> mr. collier you want to - we'll give you equal time. >> yes. thank you a few other points first of all, inform evidence any strategy plan on trying to - >> i mean i'm sorry this is sou sounding rebuttal. >> mr. saks argued that judge jackson we could seek jurisdiction before we still could he said and we sought that in our exhibit so he took a different position from the judge. >> i'm for public health department i'm not sure how are we commenting now. >> we are. >> i'll also punt we have litigations not fully implemented the judges order is not- the judge made an order but opposed to hearing motioned that means it is still open and so anything we do tonight maybe for nothing our ill con accepted the judge has not completed her work i'll move to continue this item until the judge as. >> entered a ruling. >> rendered a final rules of law that will not have any opposed hearing motioned. >> we're thinking. >> the judge's order is actually more multi faceted than that that than presented by taser for the permit holder the question of whether we take jurisdiction is not necessarily tied to the legal case and i'm sure they're going to take that has far as they president in an ongoing manner if i looked at this that you recall as a jurisdiction regardless of the amount of time regardless of the various things that occurred i would liking look at if in the following way and properly not change from what i said before is the actual permit an established condition effective or not i find it still the same so what are you recommending. >> by then take it from that the question how to traffic signal from the translate /* translate from the department erred i find if didn't happen the type of information should have been in the purview therefore the department erred in accepting that. >> the reason he was going after the information now a now whole set are circumstances so, i mean any intimaticlinatio it comes back we'll tale with that, i can jump to conclusions but i don't want to do that and i on intersections we all could but are you sensitive of a continuance. >> let's go that to the call of the chair. >> basically, we not know when it comes back. >> i'm curious if you want this sent to the call of the chair until such time the matter is reprimanded if it is or the other matter the appeal or i think that commissioner swig i mentioned until a final decision is made which could be a long time after that if there are further appeals outside of you know after what happens. >> a good question. >> a good point. >> i'll argue some soft - any i think sting the to the call of the chair the other appeal that reprimanded you do you want to make that. >> i'm i'll move to continue the item to the call of the chair which will be issued when judge jackson formally reprimands the matter before this board ; right? >> taking judge jackson outline i out of that and saying the associated appeal returns. >> that's fine that's fine. >> on that motion from commissioner lazarus to continue this to the call of the chair until the related appeal returns to the board commissioner fung commissioner honda and commissioner swig okay 0 so that will be moved to the call of the chair with a vote of 4 to zero item number 11 gore, llc verse the deserve the property on 660 third street street on 2015 of a notice of violation and penalty alleging planning code that the first and second story the subject property not authorized for office use and we'll start with the appellant. >> again, i apologize i need to make a reuben, junius & rose disclosure wish to disclose i've hired reuben, junius & rose of counsel on a project reuben, junius & rose of the entity appearing before the board will not have an effect on any decision tonight. >> you've done that before. >> a couple i think the whole firm is here tonight. >> is there not a reuben, junius & rose case. >> that's a good thing good evening commissioner fung i'm jim rebecca reuben, junius & rose with the owner ever 66 third street street and try to look at this presentation and hope to save you time by stimulating now that the first 7 pages out of 10 submitted with fewer sites are correct there's no dispute over what that record says but unfortunately as almost always the situation involving 20 more years of history permits don't tell the true story i recognize the planning department and the da must live with the record but hopefully to explain a little bit more of that and convince you it is right to provide relieve ♪ case the owners the properties are the raven family and managed by the folks danny and others nanny a hidden me an urban raeven bought this as raeven auction house over 60 permits since the 1980s and they say front office those permits include seismic fire safety and ada upgrades in 1980 bernard were partners in the burt field action house that moved in and opted out the building into the early 90s toept at the time it was mc-2 and office building was lout you can read but the building was fused i used more auctioned that fell accessoryy there is inform arguing the fact that building was office as lout in 1980 and not used for anything other than office except a piano store in 1990 it was rezoned didn't allow office and the building was a legal non-conforming office with burt field and butterfield the political climatic change is change but without controversy in 2013 investigating or less taken over management danny and arey talked about the building the building was used for office and non-conforming to allow for the legal office to make sure the records were clear to any it was clear if he were seeking to do the right thing clear up city records and pay the fees and move on as a result i went through the options with them, they were multiple first do nothing the building was running smoothly and a variant of the finishes the central soma zoning district westbound pending and designated this block as office with the wait for central soma and then do whatever the process that central soma called for to turn it into office a third option to tampering the legitimate process program excuse me - which was ceron amnesty for some business owners i sunshine had experience and find if difficult not completely clean rift history a fourth option seeking a letter of depreciation if the zoning administrator determining the building was grandfathered as office but that is problematic because of the number of permits effectually finally it was to seek a conditional use to allow the office under the planning code sections which allows office in historic believes in the zone that's what we did we researched every prior applications was approved by the planning commission ironic across the street 665 in any order was approved in october of 2013 when sue hester speaking in support of the restriction this was the right way to do office conversions i explained the risk was minimal if any by third street on 2013 our hearing which was may one 2014 only 6 months later had a problem in showcase square hit hike a tsunami that is was successful 9 times in the past we became collateral damage by the time the dust settled settled we had 40 at the 80 feet no implication and wonder in the building qualified flat planning code sections wait the rational for half approval with the political atmosphere we were just unlucky dan and arey were drying to do the right thing and clear up the record and reached the planning commission 6 months earlier we would have an approval like third street where do we go from here the planning department has issued the notice of violation as it must it is directed as one and two the central soma plan is preponderance of the evidence and a pending and now both floors will be office if you upheld the enforcement danny and arey will have to end this even if in the central soma plan passes office uses will once again be allowed we request you hold this in abeyance until the rezoning a approved it only has attended for office in a year we're here only because danny and arey are trying to do the right thing >> mr. reuben i want to clarify i went through a conditional use authorization. >> correct. >> it was granted. >> true. >> to occupy those two floors. >> yes. >> no appeal of that decision. >> that's right. >> that's because- >> the political atmosphere. >> i made a jewish-american judgment call and illegally occupied the others floors. >> in no there never a tenant. >> but instead we're moving overseeing office tenants because you were not supposed to occupy those until the planning code found you in violation. >> that's right. >> when do you think the central soma rezoning is going to occur. >> we're told maybe scott sanchez has a better idea the second thing if you're not amenable to delaying the kworment of the rezoning that will cure a lot of the problem. >> i do not hold off you are rebuttal one last question is related to italian-american to ask the same question as the da eastern neighborhoods legislation rezoning had a mechanism for maintaining the previous zoning based upon notice to the department; is that correct and not that i'm aware of i'm sure you're referring to something didn't ring a bell. >> that would have been - >> anything like when the conversion from mc-2 to s l i. >> i don't think so santa monica might know the answer. >> one last question question over how much turnover has there been in the office use of floors one and two offer the period of time that the zone was on the property in instant turnover a series of leases or related to a single contributor entity. >> not a single contributor tenant and pretty stable i can get you more information specific about the turnover any particular tenants. >> so in instant turnover or is that consistent. >> can i have the - and i'm dabbling raeven thank you for your time we don't have one tenants since 2005 and the majority. >> sorry could you speak closer to the marching and effective if i'm botching the dates one tenants since 2005 and one tenant this space turned over before we had our hearing with the planning commission and then we had one tenant that we recently put under there complies with the recent zoning. >> okay mr. sanchez. >> thank you scott sanchez planning department so don't i don't know where to begin that is an appeal of a notice of violation and penalty i think our appeal brief is clear to the history i appreciate the parapet says the history is true and correct the legal use has been recommended that the appellant on the multi applications the use of property is or was as a warehouse use and in the 1987 so you get an application to convert for retail uses a variance was required for parking because the retail use had a more dense as the parking requirement as the office use there was a notice of special restrictions which specifically noted they can have a very small amount of accessory office space but anything else is needing planning code permission and coagulate back to the early 1980s impact fees with the conversion from the chair to office for transportation and, in fact, those beginning if 1985 and 86 office variances for this building as well subsequent to the 1987 authorizations that permit was perfect with the seismic and exterior work that was the final inspection and a converted to sympathy or prejudice office space with the office and never sought a permit to subject to the planning code requirements the planning code did change in the early 90s to make office permitted prohibited in that to allow for office space but never sought that would have been suggest to the office allocation but not sought it we appreciate they came to try to legalize those uses and appreciate that you know they have different expectations and our department recommendation was for approval the entire building with the historic preservation commission which had reviewed that and signed off on that once the planning commission with hearings ultimately had a recommendation for maintaining part of building as industrial use and part of building as office to benefit to reduce it to a small cap authorization we have limited excuse me - limited in the cap for the projects 50 thousand square feet and more but for projects that contain 25 thousand because we have itch more availability and our office kept the program that he usa vails themselves the small cap program that was more reeled available to maintain the pdr on the ground floor and the commission took the action on 2014 public policy that they did go though the appropriate process and paid the fees and legalize the upper second story and with the office attention didn't appeal that and continued to occupy the building in violation we have enforcement and sensitive to the displacement issues raised by the patented but note it is almost two years since the planning department decision we have tried to provide time for them to comply with the decision we're at the appealing hearing they clearly are in vision of the planning code not providing argument that demonstrate point building was legally converted to office in violation and uphold our notice of violation i'm available to answer any questions. >> so the other building that was mentions across the street is it 6. >> 664. >> this building was approved no violations fully appropriate how would you characters that believe and this building. >> hard to distinguish the differences it was the timing and having a public hearing and hearing the public comment made the decision we're now implementing. >> and that's where i have the issue why is there i hesitate to use the word discrimination when across the street you said there is no no difference. >> what am i missing. >> those are arguments for the appeal decision but the decision that is final and that's what we are obeying. >> and so i'm asking firing advise from the building across the street and this building are the same what are the steps if they're the same you're saying that that building here and this building here are appropriate for the seam use how do you get a small business operators small to memoranda seller family business how to get them to, yes to the seam status as the building across the street that's where i'm skrechd i don't know. >> no, i know the appellants have the same thoughts and questions i don't know all the details in xaern of 665 to 660 looking at 660 the commission found the lower levels could be used as used with the underlying zoning perhaps pdr uses the building across the street i don't know the same potential and it had historically been a warehouse all warehouse building at one up to this point in time i don't know the history of that this but the fact we have a final planning commission decision not challenged and the position we are applying. >> thank you. >> can you shed light reference to the new zoning potential. >> yes. the central soma plan that has been sometime in the making anticipated adoption by the board later this year but looking more spring as the timing for that which could make that perhaps for perspective not a use the use is allowed through a process they went through the process and the commission said no. >> i understand. >> i don't know if it will change anything come next year with the zoning controls that make it easier perhaps a conditional use is not required but an office allocation so still need planning commission approval for an only a year if now or today. >> i scratch any head put an office building many if hoax the confusing part with a series of preempts for a long period of time this building has been operating as an office building and nobody raised the red flag the community and neighboring community is fine none made a serious phone call in the middle of the night with a violation against it i believe mr. reuben want the raven family is seeking to make everything clean so they can get everything clean and operate as an office building and suddenly penalized that doesn't make sense. >> they were operating without the permits and paying the appropriate impact fees for the use they've established there so they bend for quite sometime without paying the fees that the everyone in the city pa pays. >> is there a solution i'm looking for a solution rather than making a bumpy rode not necessary a solution where impacts historic impact fees are are paid and how is that possible to turn this around and make you a happy camper. >> it's not me but the planning commission has the authority to approve that i don't have the authority this was before the planning commission and they said no to the bottom two supervisors if they said, yes they have or would have paid did impact fees and you know we're here on the in violation because they've not come mrirld with the commissions decision. >> what are the fees for continuing to operate. >> the penalties under the planning code i think 200 and $50 a day for each day the vision is unabated. >> there was a process in the eastern neighborhoods you could have locked somehow the preceding use before it was zoned. >> eastern neighborhoods program that is now expired and called an amnesty program to answer your question mr. krooub reuben a similar program when the 346 to the south of market mixed use zoning district i'm aware of any litigate or legalization permit that was legal at that point that was unclear when the uses chang's changed the permit is 87 and called that has a warehouse with the retail and the auction it is unclear exactly had the current tenant came in we saw the permit in the mid 90s more more office to office and perhaps the appellants can discuss the wave of that unopted out building. >> the central soma rezoning you're saying probably not impact the potential use. >> it may make office more permissive but a whole host of things in central soma it could make office more per administrative and pressure the replacement of pdr i mean, i don't know that it will be any necessarily any easy or better or change things much not do away with invokes and do away with the office allocation process. >> thank you, thank you. >> any public comment on this item? okay. seeing none we'll have our rebuttal. >> so the office use that building started in 1962 and raeven bought that and remained as a office building an auction house auctioned on the ground floor and on the 3 floors always been office you can find a lot of setup stuff number two the planning commission unless we've done that 50 times in any office very a large volume of work from the appearances here the planning department takes the position not grandfather the office until you have a permit like some use as what is a or retail was the use exist use intended use office that covers the scope of work that covers virtually the entire building with a sign off on the back that's a unicorn they don't exist i don't blame the planning code from wanting to protect themselves that stuff good evening ever happen i'll be precipitated in that board two or three buildings work themselves with that system the conditional use application a difficult process 4 signatures from supervisors or you need to get the signatures of 10 percent of land use owners the board of supervisors had just passed malia cohen passed a law prohibiting landmarking that hemispheres on 665 and our building 630 we're not getting relieve from the planning commission no point i'm not sure we could have gotten through not a freebie but signatures the central soma plan the map if you look at central soma right now there is our building the scheduled to be mixed use office entirely office, of course, i don't actually on intersections that scott was direct that's what it says anything can happen we know that but if you read the plan it is office in terms of the fees ravens don't have a problem with paying fees they'll pay them with the opportunity i had pictures here of the two buildings 66 o 5 directly across the street was over 100 percent thousand feet or 80 mr. reuben. >> flush out for me a little bit in terms of the specific details when you talk about the auction house being office versus the retail sales that the folks incorporated as. >> so you know, i think that the image that people think a a auction house a great big area where auctioned are held not the case most of work is dub in the office or consignment and deals with people in the con assignments. >> give me an idea of percentage of square feet. >> 60 thousand this is an 80 thousand foot building 2 and 3 and 4 floors are office with ground floor with storage and some occasional auctioned. >> what was the split. >> i'll ask danny who visited the store there there were auctioned to draw a lot of people they did them elsewhere and the storage for the con stimulate was the office for butter field and butter field shingles 1962 i've told you about 1980 and no fees for office use scott the va is referring to the tdif was the transit fee and glad to pay the fees. >> so where we are - well, you want me to get the answer. >> >> gave me enough. >> where we are an enforcement action i get it and understand it was inevitable we've appealed central soma will rezoning district the area and office again and if we have to evict some tenants in a year from now we'll go georgia back to the same tenants a they'll be - not fair we choose to do the thing that worked 100 percent of the time in the past and in the planning code tipping the goals goal to allow the owners with historic building. >> i'm sorry was your time up. >> thank you. >> oh, i thought i got to answer a question. >> mr. sanchez. >> sorry i interrupted his time. >> scott sanchez planning department so again as was stated in their application from 1987 listed the use of warehouse and had an office listed as office lowered they're parking requirement and maybe not seek and justify a permit putting chair actually puts a lower parking requirement as part of environmental review there was a site visit conducted and need the building was partially occupied with chase and wine and 4 floor administrative office for the auction company and the variance they noted that the action company dealt with large and bulky items a pamphlet with trademarks and equipment that are available for auction even in the appellants own application for the conditional use authorization they listed the former auction abuse as being clarified as wholesale of good ideas and customer storm this is the light wholesale part i understand they're seeking to try to justify this is as legal office space not in the documents overflow room and the concerns of paying fees it would be great if even paid the fees when necessary converted the office and now they're coming through the process unfortunately for them the planning commission did deny their application and it was half available for them i don't know what difference the moh they feed to go back to the planning commission for the office allocation he process may say no, not allowing them to convert if moh or not so plus whatever provisions may get added to the central soma plan so again, this is illegal office space not through the process and didn't pay the fees he understand there is some frustration about this we've gotten complaint over the last year or two with the illegal conversion they've not paid the impact fees we want in this process to bring people into compliance and some cases we can legalize and there was a path to the legalization the commission said 2 stories of office two stories have to comply with the zoning and i'm available to answer any questions you may have. >> i request a have a quick question n s r was filed on october 2015 and want the enforcement notice was someone paying attention and . >> we were getting complaints photocopy from the community the people came out and spoke in opposition and follow-up of the status of enforcement case the commission was interested i've been reported back to the commission that the status of enforcement and we now will report to them tomorrow. >> a silly question you got enforcement and a fee if they don't comply potentially legislation that takes effect maybe in a year to two years what happened if necessary stay out the compliance and pay the fee until that new legislation comes into place. >> you know this is just not the first time that has happened we have enforcement issues with final penltsdz accrue and typically if we have non-response to the penalty and people are not compliant the city attorney's reviewed it and takes the predicament action. >> 40 thousand square feet and 2 led hundred and 50 day penalty. >> this can you please the concerns you can have one hundred square feet building with illegal and paying 200 and 50 day penalties is not an incentive that is raised as an issue. >> thank you commissioners, the matter is submitted. >> i'll be clear where i stands. >> go go ahead i kind of know. >> it was the planning commission decision i think that was not adhered to there was a violation i think that need to be upheld. >> so let's talk through through what happens if we make that what's the next step from there, i on intersections that goes the same way either way. >> what happens next is not our issue. >> yeah. yeah. as. >> a reminder this was an error standard. >> well the planning department have their own procedures and temps timeframes when they pass it on - it's hard to fully accept some of the points made regarding the political compliment climate- i don't know why you're raising our hands the point had i looked at the permit i do so a lot of the permits and so there was a pattern involved in the use there and i'm not sure that i'm willing to make that determination that it is office space in any form or manner we don't have that particular authority but have the authority to give them a little bit of breathing room we could continue this - >> penalties will still accrue. >> no and he'll have to make they're on business decision based upon what may or may not occur with enforcement. >> i will lean towards a continuance but not towards for the penalties to not keep on accruing. >> yeah. yeah. >> we have. >> money is not the issue at this point. >> right but. >> i think it is timing they're going to have a make a decision they need to determine gives them some ability to - >> i'm with ann the decision was made they know or knew the decision. >> i'll not support a continuance. >> i don't know - >> commissioner lazarus. >> pardon. >> what did you say. >> i'll not support a continuance. >> okay. >> i'm kind of with commissioner fung and why i rays my hand you referenced the political atmosphere that is the problem here we're facing it completely unrelated issue you know we have to conjecture but i pointed to the building across the street which is the zoning administrator completely agreed was a similar project seems to have sailed through and then across town there was the interest effect and an emotional political issue even sued and i don't see - that's what bothers me and i don't know how to get over that but that's why i raised my portion there was political emotion i'll support the continuance b it gives us more time to figure this out continuum. >> but the gel climate they've owned this since the 60s and lirnd. >> i i understand but the initiative to recognize the conditions and to come out and try to resolve those conditions and then there's the emotionally april climate. >> if a decide made by the planning commission with the process that's what the decision was that's also true. >> i think we all understand that quite well, that implies. >> well, let's i'll move to continue this for a period of 6 months. >> you want to. >> on the ground. >> excuse me - >> (laughter) do you want a november date or december date are available. >> i mean 6 months is november, november 9th and 16 and december 7th and 16. >> december 7th. >> december 7th okay december 7, 2016, do you want to say why you are continuing to that date what you want to see happen between now and then or not. >> not. >> okay (laughter). >> yes. you you can the motion by the vice president to continue the appeal to december 7, 2016, commissioner lazarus. >> no commissioner honda? commissioner swig okay that motion carries with a vote of 3 to one >> okay then the next item is item 12 appeal castro hill boosters versus the planning commission property at arkansas protesting to martin building copy of the planning code large project authorization to allow the new construction of a 5 story weekly with exceptions for rear yard pursuant to the session dwelling unit with the section off street loading and pursuant to planning code 207.6 this is on for hearing this hearing for this matter was reschedule at the request of the parties. >> what a surprise i need to make a disclosure wish to disclose i've hired reuben, junius & rose on a project as counsel reuben, junius & rose representation as a entity before the board will not have an effect on any decision. >> i'm glad we can do this i'm representing the appellant in the matter you're asked who the exception to the eastern neighborhoods the second does the respondent meet that standard in depends on the answer to the first, we ask you overturn that mixed use project and the large project authorization be conditioned on the mixed use requirement if our unable you overturn or continue the appeal so the planning commission may have time to legislatively clarify the code relating to project it is helpful for interpreting say we should look at the mixed use with the statutory framework from the languages is more one litter interpretations that results in the third consequence look to the protective history reasonable to read the code with the variance project mixed use exception the context supports this screening approvals in the eastern neighborhoods are split according to size the zoning administrator makes the desertion and the planning commission makes the sdergz sdeshgsz it together the mechanics for large project and provides the expectation to the code read as a whole section provides a fraction states the applicable in the mixed use cross-reference other code and so forth the standard and looking at those closely the standard used by the zoning administrator parallel each other the provisions allowing the expectation to the parking ratios and open space and on-street parking loading zones requiring the large and small projects they should be read and this state the unit mixed through the variance process so forth in section 304 or 329 through the procedure in celebration this is minimally unclear we're not reading in celebrati isolation - the eastern neighborhoods mixed use district maybe misdemeanor pursuant to the section 329 the rear yard requirement in the eastern neighborhoods mixed use maybe misdemeanor by the zoning administrator pursuant to the procedures in section 307 paraphrasing criteria met as unclear with the mixed use language and unclear in exactly the same way and large project handled by a different department they see, yes the large project authorization authorization quotes the same provisions and makes philanthropic decision the commission and planning department prepares the motion and the city attorney's found the same criteria under the section has applied to the zoning administrator with small projects the code is not clear it is responsibly to follow did fraction for the standards to be the same we're not asking. a novel use of reading but a reading that conforms to word it in the provisions the application of the criteria recalled find project size is consistent with the code and therefore reasonable any doubt have not meaning of the status look at the history for guidance further accepting the respondents interpretation is an absurd consequences when applied to small projects no criteria whatsoever will apply to large projects >> the unit mix has to insure we maintain the living rarmentd and not shut families out of the arrangement those with large project and open door to the mixed use awhile requiring the minority projects to approve the net under the variance criteria it is absurd and undermines the purpose of the unit mixed requirement we look at the protective history and found last december was amended striking the language that says it applies to large project the prior version left no question we must determine why the legislation intended to grant that exception well the legislation purpose was clear and intended to correct the errors and add the language update the code with provisions to simplify the text and put another way to make substantial clean up changes that the code shows the intent to move the criteria many argument should be rejected a - something gesture should be read at the same kind of specifics update the code to update in a nonsubstantive ways the history shows this is the appropriate reading the legislation the text amendments quote explained because prior code quote various error and cross-references and lack of clarity and grammar mistakes and other errors to correct those errors with the language no mention of the unit mix or any other new substantive changes in the developed new planning code given the purpose of the history no change was intended in the criteria should be continued to be applied the language maybe reasonably read for the criteria for the mixed use exception a career reason is absurdity and the protective history no material changes from the clear prior version were intend we ask you apply the criteria and revoke the mixed use exception thank you. >> okay. we'll hear in the motion holder. >> good evening commissioners thank you for happening in there prpg commissioner honda andy with reuben, junius & rose representing the martin building company thank you for your attention the legal arguments are clear that was one clear simple idea do appellant is they can't pick and choose the planning code they apply to the project it is coming down to that simple there is really no dispute about the facts and part of amendment the 329 changed in many version the planning code what the planning commission and planning department staff look at it and approved the project that is today's planning code not finding of any kind to grant this expectation on interesting pattern by the way, really not that unusual that the planning code is riesdz in 2014 over 20 new all the times many 201532 code amendment and there are 8 with 14 more pend if we got into an argument 0 nothing would be settle we point back to this and that shouldn't have been changed the appellant says - again, this is the way the code was written in 2015 and not read the day we had the hearing before the commission and still not there appellant cites no case law and logic that supports that and allows them to point to another code and let go back in time we don't know what the applications would have done the - that is speculation none knows what the commission would have done from the code was in effect then those finding were not required the code changes were lowering the commission to proceed on the thirsted that issue do of neflthd bedrooms you'll hear in patrick a bitter of a convoluted history the exception an interrogation by the zoning administrator late in 2009 is part of conversation here i'm leaving it to mr. sanchez to explain the history but note that during the commission hearing the planning commission specifically asked mr. sanchez what if that are interpretation good evening exist and mr. sanchez clarified by saying this exception didn't exist that interrogation the exception would not be required but again none of this changes the fact in finding were required by finding were certainly made the law requires them to be made from the planning code didn't provide guidance the commission makes the finding they did on page 14 the planning commission goes and say, however, given for recent changes with the dwelling units reminder equitably the department is conducting a comprehensive view that may result in future revision and the department researched and was in consultation with beginning request the mayor's office of housing with other city departments and other jurisdictions where this nestled bedroom was going they said research and conclusion in consumption with other city agencies shows consistent support for the nestled bedroom there is a two bedroom unit this is at the heart of the issue the appellant eve the code changes back when the interpretations goes away will in the near future is mute those are two bedrooms you'll hear from mr. patrick in a second to sum up commission did the iconic no. nothing has been presented that changes that result so i'm going to turn it over to to patrick to talk about the nestled bedrooms. >> good evening patrick of martin building company just for a moment elaborate on the nestled bedrooms we've been building for almost 25 years built hundreds of overseeing units indeed hundreds in the eastern neighborhoods and in the south of market they are - we do that because we are passionate about great design and something we've held on to strongly their creative inner solution for one bedroom and two bedrooms units we certainly, if is to hold onto this component we asking could have changed the design this is a aspire design and it is validated by our occupant resident and owners of those units and have had dozens and dozens of families paved and present living in the units i continuing hearing nothing but positive february on the configuration we know the of all the evidence bedrooms are a solid evaluation so i want to say oftentimes they hear about the nestled bedrooms their ideas are going to something like a windowless room and converted walk-in closet if i could have the overhead. >> it is difficult to see but you'll see the large windows and doors that impact with the living space here's a good example the living room it is a tremendous amount of light as you can see this is a general configuration where the outside wall is this wall here and the bedrooms are in bound and face on the living space paw tremendous amount of natural light they're nice more au currently the entertainment commission applauded this design because of the nirlt use anyway and want to do in conclusion with this project we are definitely stakeholder and condominium to doing high quality work and committed not only in the $2 million fees we pay we volunteered over $500,000 in payment to jackson playground and improvements in the jackson playground across the street and the project is voluntarily increased the affordable from 14 to 20 percent affordable so there's a lot of merits to this project i ask for your support and denying the appeal thank you. >> thank you. >> mr. sanchez. >> thank you scott sanchez planning department so the real as i said two issues that are here first, as the and i applicable standards whether or not it was the review criteria of section 329 or the variance in 305 section c it is true that prior to last year and with the code amendment it referred referenced that was removed and our staff identified one other reference to 305 c as something needs to be removed for the relevant and went to the city attorney for drafting they removal the provision we'll address that by having legislation that be people's exhibit 10 pending before the board next month and reintroduce them to add back into the code so is a discussion about the criteria but applying the law that didn't have the 305 criteria and in regards with the kind of unusual i'll say it is usual as part of 305 process that is the only provision we don't do that are inform a downtown project with the various project the zoning administrator administered i can't recall another findings on the 905 k it is unusual and coming to the commission i'm surprised to hear that is a possibility but that is what what in the code not in the code currently and take it back to the planning commission to have a public hearing to provide what the employment standards showcasing should be that will be addressed and been reviewed by this project the appropriate standards to see the laws in effect today and the second item the mixed use requirement the issue is but with the exception is about in 2008, we adopted the mixed use as part of market octavia so today a project certain size percentage of two bedrooms and if you don't mc that or three bedrooms that an exception and the market octavia large project authorization and it could be through the 329 process then the question of what is a bedroom and which is a great question and in 2009 wen in the eastern neighborhoods plans which followed by year the market octavia plan it was brought to our predecessor zoning administrator that i think was raised that the brad had changed went to the international building code much different standards with light and air and early versions the san francisco code and application of the didn't have things like requiring natural light so i know there were concerns about what the quality bedrooms we would see at that point an interpretation was only for eastern neighborhoods so everywhere else in the city the bedroom the interpretation didn't apply only in the eastern neighborhoods and for in particular and for the mixed use requirement i revised this in 2014 to make that more flexible we find if over time after the negotiable adoption of international building code bring backs to the use for the local code for light and air and quality for bedrooms and for sleeping rooms so we kind of made the interpretation that more flexible and had firefighter discussion about doing away with that and had discussions intense discussions with dbi about adopting their procedures we're still working through that but on the path towards removing this interpretation the code version applies still have to is where bedrooms but more towards what department of building inspection says is a bedroom rather than a different definition so we're headed that makes the need but concerns the neltd bedrooms if done well, can be good sleeping spaces the planning commission found that granting ass will be quality bedrooms not a question of not providing those rooms it is but it will be absent different style so we're working through those the finer details but we expect it so change with a flexible interpretation if not completely with the building code application and the provision something that might modified only slightly so that's where we are on intersections of the planning commission appropriately reviewed this project and recommended approval of that and did have discussion with concerns with the project sponsor they've addressed all of those and the planning department and planning commission approved the proximately so i'm available to answer any questions you may have. >> thank you. >> thank you. >> so can we can see a show of hands of how many people wish to speak also want to make sure that folks if you're an officer the association the appellant our time to speak is with the attorney and not under public comment but none not an officer of potrero boosters neighborhood step forward. >> good evening. i'm drew i live others arkansas just a couple of blocks up the street also introduce for 14 years and lived in the 200 block for a year i'm familiar and love the neighborhoods i have a 5-year-old and 9-year-old daughter and a heavy user of jackson playground i said to just provide a neighbor perspective and specifically address did nestled two bedrooms owe had the opportunity to actually go look at one of the projects in the neighborhood castro in the dog patch and taking into account and what that would look like i thought that the throughout the lay out was great and instead of sacrificing the light and air and put that bedroom inside i guess from a dads perspective a little bit darker at night but those bedrooms still have a lot of light and air during the day so i thought person lovely his ceiling heights appear higher they're beautiful and as a neighbor i'm excited about folks living around the park and making that more satisfactory so specifically to the liveability and desirability is a positive thing i noted when we were i came to the planning commission to hear the dialogue how careful this was thought throw by the planning commission from a neighbor's perspective he want to show support for the nestled bedrooms thank you. >> as a parent of a daughter no outside assess good job. >> next speaker please. >> i'm this parents of a daughter and son and i'm raising two kids in the city and jackson playground is a critical piece of green space in the eastern neighborhoods and objective 2.3 requires a significant number of units have two or more bedrooms and encourage family units especially located in close prompt to parks this is not just any space a space with a park in the eastern neighborhoods and we need housing which is more accommodating to families in the eastern neighborhoods when i look at the documents that was approved by the planning commission there the project includes one hundred and 27 units 5 of which have two bedrooms and one thousand square feet a greater number of bedrooms with a smaller square footage 2 and 3 bedrooms complying but tiny units and they really does not afford family living this is a space which really needs real family apartments and that is what this variance should be required - required and the units mix is critical to the community taking advantage the amenities that eastern neighborhoods have and we don't have very much open space at all so i would the parks fraternal this is the safety park there is franklin park but not let my kids play interest the playground was not properly designated as wildlife refuge they needed more window space this was circle to the building requirement. >> would you care to state your name for the record. >> i've talked with social their skeptical for adoption. >> next speaker please. >> good evening my name is alison i'm representing castro responsibly he urge you to uphold this appeal the eastern neighborhoods plan established a high threshold for expectations to the dwelling unit requirements as the zoning administrator he described during the planning commission hearing the eastern neighborhoods place was nearing completion with nestled bedrooms were allowed in other neighborhood plans then as now there was concern about our ability to build housing for families it allowed did nestled rooms for the plan that was approved by the board of supervisors did not allow those rooms to count towards the requirement of 40 percent of requirements with 2 or more bedrooms in the objectives that specifically requires a significant number of units in the new developments have 2 or more bedrooms the expectation with the mix is part of planning code since 2008 and not challenged until now the project sponsors have you belief refrj those to intentionally correct an error in the original plan and it was part of a large package of technical corrections and remove now appears the planning department is now acknowledging it and we've learned they've initiated the large project authorization to roar the 305 finding your decision to uphold the appeal will confirm the law since the package of the eastern neighborhoods plan that will sure all developers are treated equal we we retain the only tool to encourage the family-friendly housing thank you. >> any other public comment seeing none, we'll have our rebuttal starting with the appellant. >> thank you you can there is a tough case in a lot of ways the issue is not nestled bedrooms that is fine if nestled bedrooms were there in addition to the bedrooms required from the eastern neighborhoods ublt mix requirements the issue is certainly not jackson playground as the developer said that the project density will not change if they went to conforming bedrooms the same comedics will still be in play what is at issue in this case is what is riders for an exception to the unit mixed requirements and you know contrary to the respondent i cried the code incorporated versus the city of a los angeles we have to look at status and harmonize the parts if you look at section 329 b here b-6 d-7 reads the same way the zoning administrator will use those criteria and the planning commission used 329 in the case of 7 they apply the same criteria with those newly enacted legislation on small projects and then they don't have a criteria to apply that doesn't make sense and not harmonize the code according the case i've cited we need to look at the protective history that is this is a mistake the legislation mistake lee struck part of code the planning department is trying to fix this and the stakes have happening this mistake came up with the approval the project on ministry the planning department because we've been through the process with those conversations looking at a project for 2 of the two bedrooms units in code compliant and recommend they recognition the mistake and not want it going forward there is discussion about the changes for the zoning administrator whatever nestled bedrooms will quality that's it putting the cart before the hours or horse a progress to determine how nestled bedrooms any count towards accident eastern neighborhoods unit mix requirement right now the law says they don't count that's why with the exception pro go to begin there. >> and there is oath moving pieces if we need to continue this process until the planning department made the derpgz but i'll suggest we let this project go on as code compliant for the eastern neighborhoods right now. >> thank you. >> sir. >> to with a few closing rakers first of all, the characterization of clean up versus substantive this is interesting i will note that while i don't doubt the have a right majority was clean up that was fixed it wasn't all that way and in fact, 10 different substantive changes in light 2015 are not substantive issues. >> i think the second issue the point here from our perspective this about nest bedrooms with two bedrooms units not the two two bedrooms units based on the street an different design about the layout not about anything else you can i suppose he could come up with a situation the planning commission could have a situation their predicament evaporates a high standard in a case where 88 arkansas and mr. tuney was trying to do many studios you better have a pretty good reasons and meet the variance to get that kind of strange project approved in the eastern neighborhoods that's not the case here technically because we need the expectation for the two bedrooms but not bedrooms or two bedrooms nestled if you walk through the plan they are two bedrooms and patrick mentioned additional idea so i think that would be a much easier call for argue for studios but this project as two bedrooms in the project and the final point it is really not that unusual for not to be criteria for none of those exceptions in fact, the process has about 10 or so expectations that can be requested that don't dr. criteria including that one not like? is the most steering wheel uncommon the code is back if the old days very little combines more guidance now but ever code section didn't have the guidance that's the case here thank you very much. >> thank you. >> mr. sanchez. >> hi scott sanchez planning department just to note a couple of things with regards to the project that was referenced we recommend this approval the mexico planning commission actually did approve the project with the unit mix exceptions and with regards to the section 329 provisions it is actually across the board for smaller projects the eastern neighborhoods created the 329 projects received by the commissioning not dissimilar to downtown projects with downtown review or in other parts of large lots for development the commission can consider a broad range of exceptions for the p u d the commission is grant expectation pretty much to everything downtown is more restricted for the 329 a set list - so for the 329 railway i can't on intersections of a says i'm there for a variance and they're considering the project on 329 is different so but the variance process is in place for smaller projects not eligible for the large project authorization so if you have a smaller project not big enough you don't net the code compliant there are a couple of exceptions processes but most likely you'll go through the evaporates not usual with the last have perhaps hard to achieve findings with the variance process that's the way the code is set up true not every provision has the criteria it is frustrating as someone to implement and make the decisions we wonder what they were thinking a general criteria at the beginning of 329 is speaks to you know look at the unusual location and topographic factors so pretty broad it is criteria something that the commission can look at as part of their review so with that, i'm available to answer any questions thank you. >> thank you commissioners, the matter is submitted. >> not everyone alter one time. >> well, i've been kicking off most of them i haven't heard anything to lead me to on intersections that the commission erred i'm inclined to deny the appeal. >> me, too. >> motion. >> move to deny the appeal and uphold the planning commission on the decision that never erred and adopt environmental vengd. >> can you please put overseein on the overhead the draft environmental finding for this matter are those the ones your proposing. >> yes. >> thank you. >> so there's a motion by the commissioner lazarus to deny the appeal and uphold the motion on the basis the commission in error. >> on that motion commissioner fung commissioner honda commissioner swig that item passes with a voted of 4 to zero commissioner honda there's no further business before the board

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