okay. good evening and welcome to the february 28th, 2024 meeting of the san francisco board of appeals. president lopez will be the presiding officer tonight, and he is joined by vice president alex lundberg, commissioner rick swig, commissioner john trasvina , and commissioner j.r. epler. also present is deputy city attorney jen huber, who will provide the board with any needed legal advice at the controls of the board's legal assistant, alex. and i'm julie rosenberg, the board's executive director. we will also be joined by representatives from the city departments that will be presenting before the board this evening. corey teague, the zoning administrator representing the planning department, matthew green, deputy director of inspection services for the department of building inspection and james zon, housing coordinating

coordinator, manager for department of building inspection. now, the board meeting guidelines are as follows. the board requests that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings. no eating or drinking in the hearing room. the rules of presentation are as follows. appellant's permit holders and department respondents each are given seven minutes to present their case and three minutes for rebuttal. all people affiliated with these parties must include their comments within these 7 or 3 minute periods. members of the public who are not affiliated with the parties have up to three minutes each to address the board and no rebuttal. mr. longway, our legal assistant, will give you a verbal warning 30s before your time is up. four votes are required to grant an appeal or to modify a permit or determination. even if you have questions about requesting a rehearing, the board rules or hearing schedules, please email board staff at board of appeals at sf gov. org now public access and participation are of paramount importance to the board. sf govtv is broadcasting and streaming this hearing live and we will have the ability to receive public comment for each

item on today's agenda. sf govtv is also providing closed captioning for this meeting to watch the hearing on tv, go to sf gov tv cable channel 78. please note that it will be rebroadcast on fridays at 4 p.m. on channel 26. a link to the live stream is found on the home page of our website at sf. org forward slash voa now public comment can be provided in three ways one in person, two via zoom. go to our website and click on the zoom link, which is found in the hearing section. please note um, okay. three uh, public comment can be provided by telephone call 1669 906 833 and enter webinar. id 87417867575. and again sf govtv is broadcasting and streaming the phone number and access instructions across the bottom of the screen. if you're watching the live stream or broadcast to block your phone number when calling in first all star six seven, then the phone number, listen for the public comment portion for your item to be called and dial star nine, which is equivalent of raising

your hands so that we know you want to speak. you will be brought into the hearing when it is your turn. you may have to dial star six to unmute yourself. you will have 2 to 3 minutes depending on the length of the agenda and the volume of speakers. our legal system will provide you with a verbal warning 30s before your time is up. please note that there is a delay between the live proceedings and what is broadcast and live streamed on tv and the internet. therefore, it's very important that people calling in reduce or turn off the volume on their tvs or computers. otherwise there is interference with the meeting. if any of the participants or attendees on zoom need a disability accommodation or technical assistance, you can make a request in the chat function to alec longway, the board's legal assistant, or send an email to board of appeals at sf gov. org now the chat function cannot be used to provide public comment or opinion. please note that we will take public comment first from those members of the public or physically present in the hearing room. now we will swear in or affirm all those who intend to testify. please note that any member of the public may speak without taking an oath pursuant to their rights under

the sunshine ordinance. if you intend to testify at any of tonight's proceedings and wish to have the board give your testimony evidentiary weight, raise your right hand and say, i do. after you've been sworn in or affirmed. and do you swear or affirm that the testimony you're about to give will be the truth? the whole truth, and nothing but the truth? okay. thank you. if you are a participant and you're not speaking, please put your zoom speaker on mute. so, commissioners, we do have one housekeeping item. item number five, appeal number 23, dash 069 at 46 homestead street has been withdrawn and will not be heard tonight. so we'll move along to item number one. general public comment. this is an opportunity for anyone who'd like to speak on a matter within the board's jurisdiction, but that is not on tonight's calendar. is there any member of the public who wishes to speak on an item that is not on tonight's agenda? i don't see anyone in the room. i see one hand raised on zoom. richard rothman, please go ahead. you need to unmute. yes good evening. commissioners my name

is richard rothman and i understand you're going to be hearing the upper great highway appeal again. we are asking for a hearing and i would suggest that, uh, you take a trip out to jfk and the chain of lakes on a friday afternoon around 330 and all. i'll say is you can see the effects of closing the upper great highway on friday afternoon in golden gate park. thank you. okay. thank you. is there any further general public comment? please raise your hand. i don't see any. so we'll move on to item number two. commissioner comments and questions. commissioners. i think we're i think we're good. okay. thank you. we are now moving on to item number three, the adoption of the minutes commissioners before you for discussion of possible adoption of the minutes of the february 21st, 2024 meeting and prior to the hearing, i spoke with deputy

zoning administrator tina tam about item seven. this is appeal number 24. dash 001 at 680 1/12 avenue. this was the case that had the proposed ceramic studio in back. and miss tam clarified that the planning commission's decision was made based on the plans dated september 21st, 2022, not september 1st, as reflected in the draft minutes. consequently the draft minutes should be amended to reflect this correction commissioner, i move to adopt the minutes of the february 21st, 2024 meeting with the tina tam correction. okay okay. is there any public comment on this motion? please raise your hand. i don't see any. so on the motion to adopt, as amended by tina tam, uh, by commissioner trasvina, uh, president lopez. aye. vice president. lemberg. aye commissioner epler i commissioner swig i that motion carries 5 to 0, and the minutes are adopted, as amended. okay we

are now moving on to item number four. this is a special item. the department of building inspection will discuss the solar photovoltaic permit process in san francisco. so uh, welcome and thank you for spending your wednesday evening with us. thank you. it's my honor. uh, president lopez, vice president lindbergh and commissioners, uh, my name is james zhang. i am the senior engineer and manager of the specialty plan review for the department of building inspection. specialty review covers, uh, mechanical and electrical, uh, plan review and so solar pv permitting is really , uh, within my jurisdiction. and that is why, uh, i come to you this evening to do this presentation. um first off, i'd like to brief you, uh, the new solar, uh, roof requirement

under the california energy standard. uh we have the under the new code effective, uh, one 123. uh, we have a enhanced expanded solar requirement in the past code cycle. uh, it was pretty much a solar readiness requirement requiring the building designate a certain area on the rooftop for solar, for future solar installation. but come this 2022 code cycle. uh, it actually requires the actual installation of the solar pv system. uh, based on. on either the building size and usage, uh, or or, uh, the minimum. um, uh, uh, solar power , uh, wattage based on the useful roof area, i.e. the solar access roof area or sarah. um, they also are applicable this

requirement are also applicable for new multifamily and most of the new commercial buildings. um, next, i'm going to talk about the solar, uh, the contractor eligible to pull solar permits. so they are, uh, the a class contractor, general engineering contractor, or c10, uh, who are the electrical contractor or c40 six uh, solar, uh, contractor with doubt the ability of installing the battery energy storage system. um, uh, the general contractor to, uh, be licensed contractor are also eligible to pull permits for solar system provided the solar system is part of the new constructions. uh, now, what type of permit can

a solar pv system be permitted? most of the, uh, solar pv installation could be permitted by electrical trade permit. uh, and trade permit only. for the trade permit. uh uh, is quicker to issue the cost of the permit is not as much as as the building permit. um, so for the, uh, over close to 1200 solar permit, uh, that dbe issued in the last year, uh, only 6% of the, uh, eight, less than 8% of all the solar permits require a building permit. so under what circumstances? the pv system requires solar permit. um, only under the circumstances that the building structural enhancement is required to support such solar system. then and only

then, a building permit is required and. um in terms of solar inspection, uh, the method of or require amount of solar inspection are based on the solar system's capacity. if it's under four kilowatt. um then the contractor or the homeowner can require test schedule a electrical inspection and electrical inspection only online. on uh with dbe website, uh, for the for the solar permit holder that are using solar plus . solar plus is a online platform, um, uh, mandated by, by, uh, by the state, um, for our jurisdiction, for jurisdiction of our size is mandated by by the end of september 2023. uh, jurisdiction must have a online permitting

platform, uh, to streamline and expedite the solar permit. so for those permit holders using solar plus, they are required to get their system, inspect it by fire department before they can call for electrical inspection. now, the last type of permit building building permit holder are required to get their pv system inspected. also by, uh, fire department and by electrical inspection division before they can schedule a final inspection with the building inspector. now um, i would like to devote the next, uh, few, uh, slides, uh, address using the california solar rights act and solar. it is meant, um, the

california solar rights act limits, uh, the ccnr's and local governments restriction on, uh, on the solar pv installation based on california civil code section seven, 14 and seven 14.1 um, the act also established the legal right to a solar easement, which protects the access of the sunlight, uh, across adjacent property. um, it also describes the minimum required isn't needed to create such a solar easement. um, the related code section is california civil code section 801 and 801.5, um. however for obtaining a solar easement, um could be difficult and costly because, uh, an easement has to be based on

bilateral negotiation of the, um, of the property owner, uh, on which the solar system is installed with the neighboring, uh, property owner. and that that that could be time consuming. and uh, the legal cost of crafting and, and, uh, validating such a easement, uh, could be substantial as well. um i like to share a relevant, uh, court case. that kind of established a precedence on, on, uh, solar, uh, easement. and that is the zebra with the county of santa clara. um the case is the basic facts of the case is as follows. back in 1997, the, uh, the county of santa clara purchased a land parcel that is next to, uh, this

zephyrus, uh, development. um, they are 5 or 6 trees at the time. back in 1997, um, and. back then the trees height, uh, did not impose any. he did not cast any shade on the neighbors. uh, solar system. but over the next 15 years, uh, those trees grows. 10 to 15ft per year. so by 2024 or 2023, those trees has grown to a height of over 100ft. so so they really cast, uh, very substantial shade, shade on the pv system. um, on the property and the property owner noticed their, uh, solar system really starts malfunctioning because of

the lack of sunlight not being able to reach their, uh, 15 year old solar system. um, so they take the, uh, they take the county. well, despite the fact that the county has made verbal promise that. they will trim the tree, uh, to the height that they they will not impact, um, the functionality of the pv in such a significant way. they, um, that the bottom line is the county did not carry out their promise, and that remains a concern. so, uh, zephyrus took them to court in 2024. and after you know, this legal fight and maneuvers, um, the, uh, the presiding judge, uh, ruled that the, um, in favor of the county

for the reason that there was not a written, um, solar, uh, easement agreement in writing in immeasurable terms is so, um. they, um, they they are a few essentials, uh, required to make an enforceable, uh, solar easement agreement. and the most important thing is that it the easement solar easement must be expressed in writing in a measurable terms. it must be, uh, also specify under what circumstances the easements condition could be altered or terminated. but in this case, none of them exist. so the end result is that the court ruled in the county of santa clara's

favor. so that's my, uh, brief presentation. and here's, uh, uh, my contact and my associates contact at, um, uh, as you may know, uh, d.b. has two functional arms. one is, uh, the permitting side or the plan review side, uh, with which i'm working. uh, and the other arm is inspection and the pv inspection, uh, really falls into the jurisdiction of ide. electrical inspection. and i also list the chief electrical inspector. uh, ken birx contact information. so um, if any of you or any of your constituents have won our need, our assistance, uh, please encourage them to, uh. get ahold of us and we'll be happy to assist. okay. thank you. thank you very much. we do have a few questions.

questions? commissioner swig, and then thank you very much. thank you for that presentation. very informative. and now i'm going to put a couple of real life spins on it so that you can testify for the record to, uh, clarify to the public a couple of what ifs. uh, we had a what if, um, where, uh, somebody was adding, uh, a height onto an outdoor building. somebody had put in, um, um, um, panels on their roof next door, and there was a complaint that, no, you can't add height on to your building because we have panels and you're going to block our sunlight. so what you were would you please clarify? i know what you just said, but i want you to clarify in a real life situation. so unless that person with the panels had a preexisting easement agreement that that that protected those panels, um, then they have their

kind of out of luck. yeah. if somebody next door wants to, wants to go up, is that correct? that is correct. uh, commissioner, despite the fact that the california, uh, solar right act, um, implies that everybody should have the right to access, uh, uh, the sunlight for the sake of regenerating renewable energy. that's solar energy. um, it, um. it it it is of paramount importance that, uh, such easement, uh, i.e. uh, the protection, uh, of the, uh, the right of the existing solar systems, uh, the right of access to the sunlight. um such easement is not enforceable unless it is in writing, in clear and measurable terms and

agreed by both parties, meaning the party owning the pv system and the party next door or the adjacent party, uh, entertaining the idea of building a vertical condition that could potentially shake out the solar system, blocking their access to some sunlight. thank you. and as i was listening to that very same testimony was going through my mind is why would anybody be, um , grant an easement, uh, to a to a next door neighbor? um, if they had any intent ont of wanting to do, uh, maximize the potential of their building and, and what are the terms of a, uh, what are the terms of a negotiation to, to get an easement? because if i own a, a building that's three stories tall, but i'm entitled to take that building to six stories. um

because of the zoning. why would i? well, what what what would what would what would motivate me as that person to grant an easement to the next door neighbor to protect a potential installation of a of a panel? just to i mean, that's real life. what what what does that what does that negotiation sound like? that, that that's my presentation implies that there could be very costly, time consuming an. and effort consuming um but we all know that if you let's say sunset district for instance, where i, where, where i live, uh, even, even if my neighbor is proposed to, to, uh, to expand vertically with one with a single storey, which is, uh, unlike me, to have a very significant, uh, shading

effect if i have a, a solar system existing on my rooftop. um, that proposal still planning department still require them to, to send out notice to neighbors. if i remember correctly, within 100ft or even 300ft for notice that that is the time to raise the question. hey if you're not talking about a single story vertical addition , um, as a plan checker, i have seen, um, uh, property having proposing not a single story, not three story. i can i have personally seen as many story as nine stories. uh, just. for to bring more, uh, housing units into the housing market. some of them affordable and we all know

how important that is. um, and if you're talking about that significant a, uh, a vertical condition, it will have a very similar effect to that 150ft trees. and tree. you can trim that. if it's a building, there's no way to trim them. right. so um, i guess the key takeaway is to, uh, engage in the negotiation process. i don't know that negotiation may be, um, in the form of if, for whatever reason, that the planning commission did grant that that significant vertical addition and maybe the property owner owning the pv system can can ask for other form of, um, uh, compensation or maybe even propose some sort of a solar system on the neighboring, uh, building things with that 6 or 7

storey, uh, addition because they is at a highly unlikely somebody else will shake their system. but but when you are uh, when i mentioned that that the new requirement, uh, for, for the pv system, um, um, the, the cut off is ten storey if you're building is more than ten storey, then your building is much more likely to obtain an exemption for installing solar panels because that one that many storey, ten plus storey, uh, are the building system, the mechanical system are contending for that very limited. and, uh, roof area. you have to put your chiller, your, your hvac, your exhaust fan. so the higher the story, the less the actual solar pv installation requirements are . so that's unlikely. if,

however if it's not if under ten, then the next door neighbor may be able to negotiate. well, since you're blocking my sunlight, what about you yield a portion of your rooftop? uh, for my solar system. so that i can still somehow retain somehow of some, at least some of my renewable energy generation, you know, that kind of thing. or maybe just asking for some sort of a financial compensation. so it sounds, but you have to make that request in time before your before it's too late. yeah. so it sounds like that that story is still in evolution. um the other thing is and another real life circumstance, we had just a couple of months ago, um, somebody, uh, made an appeal, uh, against a building that was installing, um, pv on or the,

uh, panels on their roof. and because they said, well, it's our view went from we used to look at onto a roof that was simply a roof. and now we're going to look out onto a roof that's full of panels, and they're going to reflect sunlight, and it's going to ruin our quality of life. and maybe our health and blah, blah, blah, blah, blah. um and just for the for the record, and we denied that appeal. um, but just for the for the record, how does the these new laws or the evolution of that law, uh, is that going to sustain what what we, what we did is deny the appeal. and can anybody put those panels on their roofs? um, for their own purposes, that, uh, uh, unfortunately that, that that is, i believe, is outside of building department's jurisdiction, that. i'm sorry. can you speak into the microphone? we can't hear you. thank, uh. sorry that may be a

better answer. by by the by our colleagues and planning department. um, if you if somebody is complaining about, um, the. uh, sun reflection that that that that sounds like some sort of a light pollution, uh, to me, which could be i recognize that could be very uncomfortable, but but unfortunately, that that that is not the jurisdiction. so maybe mr. teague will write us a note to that effect and go on the record at some point about that. okay. okay. thank you. commissioner trasvina. thank you. i appreciate your presentation. i just had a very quick question on on your last slide. you referenced the zipper case. yeah. and it's 20 years old. it's unpublished. is that is that the last best. uh guidance from the courts? yeah. well, that's the last known and is the closest being santa clara

is the, uh, not very far from from our city and county. uh, so therefore, i, i believe that's the most relevant court case. okay. well i doesn't impress me. is that that's close to us, but it seems like in the last 20 years, the this has this technology has evolved. i'm just i'm just surprised that that no other courts have really looked at that. yeah, but but but the engineering, uh, fundamentals of, uh, solar panel relying on sunlight to generate energy that remains unchanged, i believe. and, uh. thank you. yeah okay. thank you so much. i don't see any further questions. thank you. uh we thank you. we will now see if there's any public comment for this item. anybody in the room? so mr. zon, you can be seated. thank you. uh, good

evening, commissioners. my name is alex landsburg. i'm with the electrical industry. this is actually 40. witness that he was here because i'm here on another item. i actually had a question for the presenter. and i don't know if it's through you, uh, but how would dbe consider the pv installation with or without battery storage that are not connected to the grid, uh, that are purely independent? uh, and powering building equipment without ever connecting to the grid. was that something you would permit? you know what this is really like an offline type of question. this is public comment on his presentations. if you want to connect with him separately, that's great. yeah. uh did you i'll put up my, uh. okay. contact information up again for you to note that down. yeah. maybe, maybe if you could just address your question, i couldn't pass up the opportunity . yeah. if we could pass. okay. flash up your your contact information, that'd be helpful.

yeah okay. is there any public comment on this item in the room? anybody on zoom? okay i don't see any public comments. so we this concludes that item. thank you so much for joining us . we are now moving on as i previously mentioned, item number five that appeal has been withdrawn. so we're moving on to item number six. this is appeal number 20 4-002. mark maloof versus department of building inspection planning department approval. subject property. one 4014 street appealing the issuance on december 29, 2023 to deca holdings llc of an alteration permit installed 20 electric vehicle chargers for 40 vehicles, convert from vehicle storage lot to fleet charging use. this is permit number 2022 ten, 1946 57, and we'll hear from the appellant. first, welcome. that's up and running okay. right now. good evening.

my name is mark maloof. uh, the appellant um, i am a business representative, union representative with teamsters local 665. this appeals for a building permit issued to establish fleet charging at 140 14th street. at this fleet, charging will provide a charging facility for autonomous vehicles that will deliver people and packages in our city 24 hours a day, seven days a week. that is why the board of supervisors requires fleet charging to obtain a conditional use approval, something that this building permit was not required to do for too long. fleet charging companies have exploited a loophole in the planning code to avoid conditional use approval because they don't want public scrutiny by the autonomous vehicle. companies like waymo, zoox, or even cruise will rely on fleet charging facilities to power autonomous vehicles as they replace good paying parcel

delivery jobs, so they don't want to go in front of the planning commission for approval and don't want to play by the rules as i yield the balance of my time to our land use attorney peter ziblatt, who will provide more detail about the basis of our appeal of this building permit. thank you. mr. green, can you please shut the door? i am peter ziblatt, land use counsel to the appellant. obviously, we are appealing the issuance of this building permit. as mr. maloof just noted, because it required conditional use approval. now, fleet charging serves as the base station for our autonomous vehicles in the city as we know. as he noted at and the fleet charging companies and their partners have rushed throughout the city to establish fleet charging uses in pdr district. in the pdr district, this property is in the pdr district, pdr one zoning district, and in general fleet charging does require conditional use approval , with one exception. there's a loophole which has now been closed by the board of supervisors. as of yesterday,

that allows fleet charging to go forward as a use without conditional use approval. if you first establish either vehicle storage or private parking lot as the existing use. overhead. uh. using the item there. okay, we pause the time. that's fine. thank you. yeah, i appreciate that. there's always some technical glitch here. do you want to zoom out a little under fleet charging right here where my pen is pointed. it's a conditional use approval. see, there's the footnote 24. it's permitted where existing use is vehicle storage or private parking lot. so the question is, what do these terms mean? what are we talking about here. we're talking about two different uses defined in the planning code overhead. please overhead. again

. vehicle storage is a retail automotive use that provides for the storage of busses, recreational vehicles, mobile homes, etc. it's what you and i would commonly consider. like any storage facility for vehicles. what is a private parking lot? it's a non-retail automotive use. what that means is there's no public access. it's a private parking lot for a private property owner. private parking lot is very different than a vehicle storage lot, and it's important. so let me show you an image of the subject property overhead, please. zoom out. please or is that fine? that might help. yeah. okay that's the subject property. that's the quote unquote vehicle storage lot. this image was taken from the san francisco planning website. the image is dated february. i'm sorry, july 18th, 2022. after after vehicle

storage was established here. i'm going to continue with a couple images here. bear with me . this is 201 toland street. also an image taken from the san francisco planning website, where a private parking lot use was actually legally established in the planning records for waymo, it looks, as you can see in this section here, very similar to the subject property. we. by way of example, here is vehicle storage. interestingly enough, this parcel, this image in red is adjacent to the subject property. there's the autonomous vehicles in a private parking lot. right next door is what we would all commonly call vehicle storage. as an rv. there's a storage shed. there's cars. that's vehicle storage. once again, it's a public use where people store items, not a private parking lot for a private company. so you're probably asking, well, what are we talking about? why are you

even talking about this? it's very important because. because under the back to the planning code table here. a well, that's not going to quite get there. a private parking lot required a conditional use approval, meaning that it was easy to call it a vehicle storage lot because that's permitted. you can and they used it for a private parking lot. and the reason is because because you didn't have to go through conditional use approval, which is the whole point of this exercise and the whole reason i'm here as a result by calling it vehicle storage. but using it as a private parking lot. they used it for a use that required a conditional use permit and are now establishing fleet charging by going through the loophole as vehicle storage. now our our request is clear for this type of land use chicanery can't continue icu. and the reason we

are here is to appeal this item and say go back to the beginning . let's clean up the record here . it's not the planning department, it's not db i's fault. this has nothing to do with them. the applicant came in with an application for vehicle storage, turned around and used it for private parking for autonomous vehicles that come and go out of that facility, not for vehicle storage. and the reason was to avoid conditional use approval for a private parking lot. thank you, thank you. are you finished? we do have a question from commissioner trevino. okay. thank you. sorry i should thank you. thank you for your testimony and the written submission as well. i want to focus on the letter that you just described. yes. within the paper is a description of there was discussion on both sides saying that that that was pending legislation. and are you

is that the same legislation that you now say was passed by the board of supervisors? yeah. so, so good question. because i was i was intimately involved with that. so the loophole has now closed. but pursuant to an amendment offered at the land use committee on monday at the board of supervisors, it established a cut off date of january 11th, 2024, meaning any application including this one has been grandfathered in for a lack of better terms. so there protected so that i don't quarrel with that issue anymore because through the legislative process, this application, as well as a host of others that came in before january 11th, 2024, now can utilize the loophole. so that part of your argument is, is it changed in the last 48 hours, is gone? yes. the remaining is what the actual usage was. correct. thank you. okay thank you. we will now hear from the permit holder. and if i

could get the computer slide show please. uh computer, please . okay uh, good evening, commissioners john kevlin here with ruben jason rose on behalf of the permit holder, decca holdings. i'm going to use my time tonight to make some corrections, clarifications and fill some omissions that the appellant has made regarding the subject permit. what you'll see is that the permit holders meticulously followed all permitting and zoning requirements with respect to the property. at 140 14th street. so let's get started. uh, first i want to make sure the board is absolutely clear about the site at issue in this appeal. the site, which is a surface lot, is actually made up of five different parcels as per dbe procedure, every time any change is made to the site as a whole, five separate permits need to be filed. the subject appeal tonight deals with a single fleet charging permit that applies to only one parcel at the site. the other four parcels

have fleet charging permits that have been issued and were not appealed. and you can see. one 4014 is identified on the screen. there um, so from here i'm going to walk through the appellants arguments one by one. so the first argument and really what is at the heart of this appeal is that that a vehicle storage lot use was never properly established at the site . this is simply not true. um, now but first, why is that even important? and you know, the mr. ziblatt made this point in his remarks. the planning code, zoning table that applies at the site allows fleet charging use to be approved without conditional use authorization. if the legal existing use is either a private parking lot or a vehicle storage lot, this fact is not in dispute. i think we've heard it acknowledged tonight, acknowledged in both briefs as well. and that's exactly what happened here. what you have on the screen here is the building permit for the establishment of vehicle storage lot in 2021, after the fire that had occurred

at the site. the permit clearly shows empty paved lot as the existing use and vehicle storage lot as the proposed use. the planning department's note clearly states change of use to vehicle storage area. and then there are also permits effectuating the same change of use for the four other lots as well. and we included that in our brief. this is really the entire crux of the appeal. no one disputes that the planning code allows for this change of use from vehicle storage lot to fleet charging without a conditional use authorization on the permit holder. clearly established vehicle storage lot via a building permit the appellant missed. this permit was not in the brief. i think that's what happened here. this is the beginning and the end of the legal issue. it is a legal vehicle storage lot, permit approved and issued in december of last year. authorize using conversion to fleet charging without a conditional use, as is what the code says now. oops uh, appellant's second argument is that the permit holder pursued serial permitting to establish the future fleet charging use. in essence, the appellant

charges the permit holder with converting the property to vehicle storage lot for the purpose of then qualifying for the ability to convert the site to fleet charging without conditional use. authorization once again, a simple look at the facts undermines this argument. the permits establishing vehicle storage lot at the site were all closed out by december of 2021. in green below the original fleet, charging legislation wasn't even introduced at the board of supervisors until the next month. january 2020, and most importantly, the inclusion of the conditional use requirement to establish fleet charging in pdr zoning districts didn't even get proposed until july of 2022. seven months after the property was already fully converted to a vehicle storage lot. so the suggestion that the permit holder converted the property to vehicle storage lot just to qualify for the ability to convert to fleet charging can quickly be debunked here, since there is no way they could have known this process would have even been in place. process was introduced seven months later.

uh, the appellant also suggests that the ability to convert from a vehicle storage lot or a private parking lot was in some was some sort of loophole that was unintended by the board of supervisors. again, a simple look at the legislative history quickly disproves this suggestion. at the land use committee. this was discussed in detail. um, supervisor melgar actually asked the question, do we know which sites are going to be impacted by this exception from the conditional use requirement? supervisor peskin replied, yes we do. i have a list of 12 that we are aware of. one 4014 being on the site. and then he finished. quote the footnote would allow these those 12 sites to be permitted. so so pretty clear evidence that the board of supervisors knew exactly what they were doing when they created this exception from the conditional use requirement. and it makes sense, right? i mean, having for from a policy perspective, we've got existing lots throughout the city. why would we not want to encourage them to, uh, convert to ev storage rather than just, uh, fossil fuel cars. and then

the final argument, which i think we've already i identified as moot, which is that, you know, we shouldn't be applying the law that was in effect in december 2023 when the permit was approved. not even the law in effect as of today, but the law that's pending at the board of supervisors. i this board is well aware that we should be applying the law. that's in effect at the moment the permit is reviewed and approved, but beyond that, as we just heard yesterday, the legislation was updated, amended and approved by the board of supervisors on first reading, which set a grandfathering date of january 11th, 2024. this permit on file 14 months before that, well before that. so, uh, it's a moot point either way, whether you apply today's law or the law that's coming, it's the same. so, um. yeah. so in closing, i think we've got a very clear record to show vehicle storage lot was, uh, properly established at the site via permit prior to any changes in

the law regarding fleet charging . uh, we all agree that the law does say that you can convert without a conditional use authorization. uh, when you have an existing vehicle storage lot. and of course, the legislation. i don't think we need to even talk about it anymore. so for these reasons, i respectfully request that the board deny the appeal. and i'm here if you have any questions. thank you. i don't see any questions at this time. we'll now hear from the planning department. good evening, president lopez. commissioners corey teague, zoning administrator from the planning department. um so essentially, there's only one question before the board tonight is whether this one permit was issued in error or was it issued properly? um, i think the, uh, uh, permit holders brief and their presentation, ian does a very good job of kind of outlining in

a very organized and accurate manner. um, how how the permit was met, all the planning code requirements at the time that it was issued, and therefore it was , uh, legally issued. um, and then not only that, but the previous permits to convert to vehicle storage, which are not the subject of the appeal tonight, but were, um, relevant to this permit being able to be issued as a principally permitted use and without a conditional use authorization on those permits are also, um, legally and validly, uh, issued. um, so it's definitely the planning department's position that this permit before you tonight was issued legally, um, and was not issued in error. um it is, though, important to just acknowledge that fleet charging and a lot of the policy issues around it, it's a new use. you know, it's only been a use in the planning code for a short time now with the regulations that came with it. as we've

heard, there's new legislation to evolve those controls further. i'm sure there will be legislation in the future. this is an evolving technology and issue that's facing the city. so we definitely understand the challenges. um, both for the public and other stakeholders and the departments to kind of keep up with this, um, and this is part of why we needed to create fleet charging as a land use definition. and have those controls adopted originally is to be able to, you know, better, better understand and also regulate these activity fees. um, so i know that this specific land use, fleet charging and vehicle storage and the nuances there, i don't think these are topics that have really come up before, before the board of appeals. so i'm definitely happy to answer any questions that you may have about those definitions and those regulations, maybe more broadly. but again, just to reassert that for this specific

permit, um, i think the permit holder did a really good job. so i'm not going to, you know, double back on any of those details and laying out how now, um, while the, the provisions for how fleet charging are principally permitted are proposed to be changed and will be changing in the future for this particular permit. uh it was principally permitted at the time and the permit was issued correctly. so respectfully request that you deny the appeal and i'm available for any questions you may have. thank you. we have questions from vice president lemberg and commissioner eppler. thank you, mr. teague. as always, i, um, have a very narrow question, which is regarding the, uh, alleged or proposed change of use that occurred several years ago. um, i just want to get your opinion on that. get your, uh, the planning department's position on whether that change of use was, uh, was applied correctly, legally, and all of that, i it it seems that you've

endorsed the permit holders brief, which i understand. i just want to hear it specifically. sure. and that's a fair question because i think the appellant raised, you know, slightly different question, which is you know, these lots got valid permits to change the use of vehicle storage. and then they kind of raised the question , were they actually used as vehicle storage or were they used as a different use. um, now that's the part i don't know the answer to that 100, because i don't believe i've looked at that specific question. um, if there was a concern that a any particular property is being used as a use that's not permitted, that's more of an enforcement issue. so even if that had been the case and there was an enforcement situation, then we would have required them to stop using it for whatever other use it would have been. um, whether it be fleet charging or anything else, um, that wouldn't have affected what the underlying legal use would have been, which would have still been vehicle storage. um, it's hard to tell from the pictures.

and this is again where we get into some nuance with the land use definitions, because we have multiple uses that are related to parking or storage of vehicles. and the difference in these are, you know, there's a lot of nuance. so on paper and pictures, they kind of can look very similar. even though how they're actually being used and operate or operated are the distinction in the land use definition. so i don't know if that answers your question. it does. and then one follow up question, one of the things that, uh, that the that the appellant pointed out, um, was the, the entry in, in the, in the, in the i don't actually know what this is called now that i'm thinking about it, the, the record that you look up on the website for the property, uh, the one dated 12 2923 definitely does say specifically , um, no change of use was issued. is that was that an error or was that like, what's the context behind that? i think i did look at that. um, and, and my recollection is that so that

language is a note from a staff person who's reviewing that permit, and they're kind of notes that are in kind of chronological order. and i think that that reference was to it wasn't specifically saying that permit was not for a change of use, because the permit very clearly was for a change of use. and the comments were very clear that this is for a change of use. like, that's what the permit was. so so, um, i didn't find that to be kind of a compelling argument to say that the permit wasn't actually a change of use when it very clearly was. okay. thank you. sure commissioner eppler, um, you largely answered my question when responding to commissioner lemberg, but i'm going to kind of run through it again and make it a little bit clearer for me. um, so, so, um, you know, let's let's use a hypothetical case in a pdr one g. i go out and i apply to have a storage yard that's a permitted use. i go, i file, i get that use. so i bring in the things that i'm going to store there, which are volatile materials which the storage of volatile materials are not

permitted use. and i knew i was going to do that the entire time. let's just say i knew i was going to bring those materials there. that's why i wanted to store. but i got the storage yard use instead of the volatile materials use, which i could not get that that storage yard use is still valid on the property, even though i walked in and, and, you know, did something entirely inappropriate in terms of storage there. correct if that storage use is permitted as a princely permitted use, then the answer to that question is yes, right. if it was permitted in a different way, if it was a, um, a legal, nonconforming use or if it was a conditional use, those are subject to kind of abandonment provisions. in my hypothetical, i walked in and asked for the storage use, and that one, you're correct. that was kind of the point. that was one of the points i was making, which is if you get the legal permit and it's finalized, right. so you you, uh, legally change the use to use a and then at some point you start using it for use b, the still legal

underlying use is, is you say right and it doesn't change. you know, regardless of what i do, the legal underlying use is the legal underlying use at that point in time. correct. and then as you said, the mechanism to deal with my improper use is then an enforcement issue and not a change of use at that time. correct. got it. thank you. thank you. president lopez. thank you for your testimony. um, just a quick confirmation. so we've had the parties, uh, stayed on the record. their interpretations of the recent legislation and i know that it's hot off the press within the last 48 hours, but i also know that you follow these things closely. i just wanted to check if, uh, if your perspective on the legislation aligns with with with theirs or if there's anything that you see differently that would be germane to the case. no, i think my position is very much aligned with the permit holders description of the legislation, both kind of historically and leading up to the new legislation. and then the

recent, um, proposal as of monday. just to follow up quickly, the legislation has not been enacted and signed into law . correct? correct. so it's as if it doesn't exist legally. correct. it's like as of today. yes. and then relative to win this permit was issued. definitely. right. thank you. thank you. no further questions. thank you. okay we will now hear from the department of building inspection. um, good evening, president lopez. vice president lehmberg commissioners matthew green, representing the department of building inspection this evening. um for this lot, um, just from history, there was a massive fire back there in 2020, dbe issued an emergency order. um since the building spanned several lots, we issued three emergency orders to demolish the building. um, a permit to demolish was issued in october of 2020, and the permit

was finally completed in 20th november of 2020. um so there was a there was a permit issued in september of 2021 with the description repair, damage, asphalt and stripe. the storage lot. and that's where the comment were made about the change of use. um, just to address, uh, vice president lemberg's question about the comment. um, that was made by dbe staff about there's no change of use. i think he was saying there was no permit that actually had the specific language change of use, which sometimes we see change of use from, say, restaurant to, um, coffee shop or something like that. we do see permits like that, but i would say that this permit, the 2021 permit, it did clearly go through the process and was established as a change of use permit. um, the permit before us tonight was filed in october of 2020, 22, after review by all the appropriate, uh, city departments, including the fire department, health department, planning and dvi. the permit was issued in january

12 to 2024. uh dba believes the permit was reviewed properly and issued properly, and is code compliant and recommends that the board um, denies the appeal and upholds the permit. i'm available for any questions you may have. okay. thank you. i don't see any questions. thank you so we will now move on to public comment. is there anyone in the room? thank you. and after you're done, if you could fill out a speaker card. so we get your name correct for the minutes, that would be great. sure. thank you. i promise not to ask anybody any questions. uh this time. so. hi. uh uh, members, board members. uh, my name is alex landsburg. i'm the research and advocacy director for the san francisco electrical. i'm sorry. uh, construction industry. the labor management committee of ibew, local six and the san francisco electrical contractors association here to urge you to reject this appeal. uh, this is i think, as we've seen, this is fairly frivolous. we're supportive of the site being

used for electrical vehicle charging. uh, ev chargers will be installed by ibew, ibew members, and sfca the local san francisco contractors. projects like this, um, the, uh, more we, uh, meet demand for green jobs in san francisco. uh and the, you know, as we've seen, change of use permits were properly granted. uh, this thing was submitted long before anyone envisioned, um, the legislation that passed on its first reading yesterday. and the amendments that that supervisor peskin added in there would have exempted this project, uh, from, um, from, uh, from coverage by it. anyway, um, our members are looking forward to, to getting getting to work on this. we have a lot of people, a lot of work, uh, just because of the collapse of the tenant improvement sector, uh, with with offices and, and, um, and, you know, frankly, just getting, uh, getting the infrastructure that we need for the green energy transition is just absolutely

vital to make happen. so we look forward to your rejection of this appeal. thank you. thank you. is there any further public comment? yes. good evening. members of the san francisco board of appeals. my name is jackson napier, speaking on behalf of the san francisco chamber of commerce. the chamber urges the san francisco board of appeals to deny the appeal and vote to allow the site at 140 14th street to be used for electrical vehicle charging. the san francisco chamber of commerce supports and encourages innovative environmental and sustainable solutions to jumpstart our local economy. as we continue our economic recovery from the covid 19 pandemic, we need to change the narrative that it is difficult to operate a business in san francisco. denying this appeal sends a message to businesses across the country that san francisco supports and welcomes new, innovative businesses. we urge you to deny the appeal without delay and vote to allow electric vehicle charging at 1/14 14 or 1 4114 140 14th

street. thank you, thank you. if you could fill out a speaker card, that would be great. thank you. is there any further public comment in the room? i don't see if you're on zoom and you want to provide public comment. please raise your hand. i don't see any. so we're going to move on to rebuttal. mr. ziblatt, you have three minutes. thank you. overhead again please. thank you . if you need help zooming out, alec could get it this time. my technological, uh, limitations are very obvious from the 1980s. technology i think so, yeah. there we go. thank you. um i appreciate the applicants comments. applicants, attorneys. mr. kevlin, i have great respect for him. um, it was pretty apparent to me what was conspicuously absent from his, uh, presentation. was any discussion about what the property was being used for. now, if i i'm not going to tell anybody how to defend or proceed on a case, my opinion would be i

would provide receipts showing that i was actually doing vehicle storage activities at that property. i would show contracts with individuals who were storing vehicles. there for, but there was nothing like that. there was none of that evidence because the reality is it wasn't ever used for vehicle storage. to the board's questions regarding, well, is it okay if you come in and call it vehicle storage and then start storing hazardous materials there? are we okay with that? well the question really has to come back to the board. are we okay with that? are we okay with an autonomous vehicle company or their contractor. is establishing this? looks like zoox or waymo, one of the two established private parking for their vehicles. not a vehicle storage lot. a vehicle storage lot, by definition, has cars staying for 72 hours or more. we know autonomous vehicles don't sit there for 72 hours or more. they go in and out mapping the city. this was a private parking lot. use this board does not reject this appeal request. they

go back and establish that use legally. it just says it doesn't really matter what you do with the property, so long as you document it correctly. that will be the unintended consequence here. so i appreciate your time tonight and i respectfully request that you that you uphold the appeal and request that the applicant go back and get conditional use approval for the actual use of the property, which is a private parking lot. thank you. thank you. i don't see any questions. so we'll now hear from the permit holder. thank you. commissioners, i don't think i have anything else to add. so in respect for everyone's time, i'm going to just sit down unless there are any questions for me at this point, i don't see any questions. thank you, thank you. we'll hear from the planning department. again, the only additional bit of information i would add is that vehicle storage is a uncommon use. we don't have that many places in

the city that get authorized for it. um, it a lot of times it is single tenant. i mean, i think more recently what we tend to see in vehicle storage, um, is like car sale lots that need off lot storage of vehicles because they can't store them all on the lot. and so again, it's not for a parking use. it's to store the vehicles, um, for some longer period of time until their used elsewhere. um, so i just wanted to be kind of clear about what vehicle storage kind of is and isn't. and again, i, you know, i don't have any specific information regarding the issue of how specifically the site was used, um, up until it was authorized for fleet charging, but available for any other questions you may have. thank you. i don't see any questions at this time. anything further from dubai? okay. thank you. so, commissioners, this matter submitted. uh, commissioners, let's let's start at the other end of the galley here. commissioner swig, um, i see no

problem with the permit, so i would deny the appeal. all right. um if we an appeal and there is an enforcement action on the use and the, um, permit holder was is appealing that that enforcement action. this would be a very different sort of case because we'd be looking at the uses and what's permitted there. and the discrepancy between the two. but we're not looking at that today. and that doesn't mean that land use doesn't matter, and it doesn't mean that planning doesn't matter. but what also matters with that is the legislative intent of those things that give rise to the code that we're interpreting. and it seems on the record that the legislative intent was to allow for, uh, fleet charging in certain places and, uh, by name. this was one of those that was identified. you don't often get that, but that that that's there and when that planning needs to change because circumstances changes the proper way of dealing with that is through the legislative process. and that is also happening right now. um, and so,

you know, i it's not that, you know, as the appellant stated, it wouldn't matter if a, um, you know, a toxic chemicals were being kept on the site. the proper mechanism for that is for enforcement. it's not to undermine or get rid of or nullify the underlying zoning that is already or the underlying use that is already on the parcel. so the underlying use in this case would allow for fleet charging to occur without a conditional use. you know, bat on them for doing something that might have been wrong in between. that should have been enforcement action. if it was a problem, there was not. um, so in that case, yes, i would vote to deny the appeal and to pull the permit on the basis that was properly issued. um, i was about to say a lot of the things that commissioner eppler just said. so i instead, we'll just say that i fully and wholeheartedly endorse everything that he just said. i'm very sensitive and, uh, i'm very sensitive to the

underlying issues, uh, behind this appeal. uh, and, you know, i certainly have some concerns that are outside the scope of this, uh, of this appeal tonight . but, uh, overall, there's, uh, i have not seen a legal basis to overturn the permit and therefore, i have to vote to, uh, to deny the appeal. i would deny the appeal as well. the appellant may have some compelling arguments, but not in this proceeding. uh, the issues, as my colleagues have described, there may be issues regarding the actual use. uh, but the department's made clear and i think we've all established that that's not it's not required, and it doesn't affect this. this, uh, permit. uh, i'm also not persuaded by the actions or the semi actions of the board of supervisors, as i think we need to defer to actual law and it's not yet law. uh, but even if you

say even even if you disregard the apparent effort to get a law passed and assuming i have no idea whether the mayor would sign it or not, i assume she would, um, even without that, we go back to we go back to the current status of the law. and i find the appellants arguments unavailing. so i would, uh, uphold the appeal, uphold the permit as properly issued. thanks, everyone. i'm in line with with the comments of commissioner eppler and everybody else. uh, i think i am also sympathetic to the appellants last point with respect to the, uh, actual use. uh, but uh, but to then, uh, turn on to the permit holder and ask them to verify the actual use, uh, in order to qualify for the appeal, feels like a bridge too far and out of step with,

uh, with the normal process that we go through with, with these types of decisions. uh, so with that, i would move to deny the appeal on the basis that the permit was properly issued. so that's the motion on the table. yes okay. thank you. so on that motion, commissioner trasvina, i, vice president lemberg, i commissioner eppler i commissioner swig i so that motion carries 5 to 0 and the appeal is denied. thank you. so we are now moving on to item number seven. this is a special item, um, discussion and possible action. the board shall consider adopting a resolution which allows for remote public participation at board hearings. the resolution further encourages parties and their representatives to attend hearings in person, but allows for their remote participation. and i did set out kind of an extensive history and agenda. uh, basically on october 17, 2023, the board of supervisors

discontinued remote public comment by members of the public, except as necessary for disability accommodations. thereafter, the mayor's office instructed commissions to adopt the board of supervisors new rule, and we had a hearing to discuss this on december 6th. and the result of that hearing was that then president swig asked me to draft some language memorial izing the consensus at the hearing on december 6th. so that's what is before you. uh, commissioners, any any discussion? maybe we'll start with commissioner trasvina this time. go ahead. sorry. um i just, i, i'm very supportive of this, uh, of this resolution as drafted. and i want to thank miss rosenberg for your, uh, efforts. and in drafting this, i think you did an excellent job. and in encapsulating what we, uh, discussed at our december

6th hearing, um, and i am very i am very happy to support this resolution. that's all i wanted to say. and if i, if i could add just on, on the point where we apparently depart from the mayor's direction, uh, i recall when the board of supervisors made their change, barring, uh, remote testimony, there were some very specific and egregious reasons for them to do so that we have not had to deal with and i think the spirit of this board has been to extend ourselves to the public and make ourselves available to the public. so i'm i, for one, am willing to take the risk, uh, that the board of supervisors has had to deal with. i don't think we'll have to deal with it. and i think on balance, um, we want to be make ourselves fully available to the public. and i and i support the resolution. commissioner eppler,

um, i want to echo both of my fellow commissioners comments. um, you've, uh, executive director rosenberg's done a great job of making us make sense in this, in this resolution. and i deeply appreciate that. commissioner swig, um, yeah, i want to echo everything that's been said and echo, uh, the appreciation for executive director, also for the leadership of our president. president uh, emeritus, uh, commissioner swig, uh, who, uh, you know, shepherded that that conversation, uh, in a, in a productive fashion. and i think we have, uh, you know, like, uh, commissioner trasvina said, uh, something that reflects the spirit of wanting more, uh, public input and public involvement in our proceedings. and i think that's a that's a positive thing. um procedurally, do we need a motion to adopt? we

need public comment first. and someone is here to speak. so is there anyone in the room who wants to provide public comment? hello um, corey teague, zoning administrator for planning department. i just thought it'd be interesting to know. i mean, on this issue, the planning commission has stopped taking remote comment. except when there are accommodations requested. and, um, but just for your information, zoning administrator hearings for variances and enforcement hearings, we have continued to have remote hearing, uh, remote access and public comment, um, and plan to do those through at least the spring, um, and then kind of reevaluate there. so just wanted to give you that information. um, so that you're aware of it. thank you. thank you. is there anyone else in the room who would like to provide public comment? okay. i see a

caller, um, on zoom, please go ahead. you need to dial star six to unmute yourself. okay go ahead. uh, this is sue hester. uh, we deserve a remote call in on this item. i encourage the commission to hold fast with your position. it's reasonable for people to have disabilities. and a lot of people can't take the time. a lot to come to city hall. so maximum participation is helpful to input the last hearings that you had were informative and so if i had reason to comment, i would have commented. but but today this comment is keep your legislature in intact. the fact that the

planning commission abolished public comment should not affect you at all. thank you very much. okay thank you. is there any further public comment on zoom? i don't see any. so president lopez, we would need a motion to adopt the resolution. so moved. oh okay. so we have a motion from president lopez to adopt the resolution on that motion. commissioner trasvina, hi. vice president lundberg i commissioner epler i commissioner swig i okay. that motion carries 5 to 0 and the resolution is adopted. and that would conclude the hearing. thanks everybody. you did that much better than .

that but >> how are you feeling? long hard day, it's so good to see all of you today. i know people had to get through traffic but as i scan the audience, i'm excite today see so many familiar faces. we are here to celebrate san francisco, there on your hill, my city, fair as the queen of ol', supreme in her 7 hill