okay. good evening and welcome to the march 27th, 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. the board's legal assistant, alex, and i'm julie rosenberg, the board's executive director. we will also be joined by representative from the city departments that will be presenting before the board. this evening. up front, we have tina tam, the deputy zoning administrator representing the planning department, and matthew green, deputy director of inspection services for the department of building inspection. we also expect representatives from the

department of public health, michelle vega, the principal environmental health inspector, and janine young, senior health inspector for 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. people affiliated with these parties must include their comments within these seven, two, three 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. long, 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. if you have questions about requesting a rehearing, the board rules or hearing schedules, please email board staff at board of appeals at s.f. gov. org now, public access and participation are of paramount importance to the board. as of 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 gov tv 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. the link to the live stream is found on the home page of our website at sf forward slash boe. 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 under hearings and three you can attend by telephone. call one (669) 900-6833 and enter webinar id 889 5424 2637 and again, sf tv 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 dial 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 three minutes and our legal assistant 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 their volume or on their tvs or computers, otherwise there's 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 and again, the chat function cannot be used to provide public comment or opinions. please note that we will take public comment first from those members of the public who are physically present in the hearing room. now we will swear in our firm 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, do you swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? okay. thank you. if you are a participant, you're not speaking. please put your zoom speaker on mute so the item number one is 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 calendar? okay, i don't see any hands raised on zoom, so we'll move on to item number two. commissioner comments and questions. commissioners i think we can move forward. okay. thank you. so we will move on to item number three, the adoption of the minutes commissioners,

before you for discussion and possible adoption are the minutes of the march 13th, 2024 meeting. commissioner trasvina, thank you, president lopez. i move to adopt the, minutes of the march 13th, 2024 meeting. okay. thank you. is there any public comment on this motion? please raise your hand. i don't see any public comment. so on that motion, president lopez, i vice president lundberg i commissioner epler i commissioner swig i so that motion carries 5 to 0 and the minutes are adopted. we are now moving on to well let's do we have a representative from the department of public. oh, mr. lipton okay. thank you, henry lipton is here representing the department of public health, so we're moving on to item number four. this is appeal number 24. dash 016, electric city versus department of public health. subject property, 1347 polk street. appealing the issuance

on february 6th, 2024, to electric city of a notification of tobacco permit denial. denial of retail tobacco sales permit for the following reasons one. pursuant to san francisco health code, section 19 dot 4f3, no new permit shall be issued if the applicant will be within 500ft of a school establishment is located within 500ft of one school two pursuant to san francisco health code 19 h point 4f4. no new permit shall be issued if the applicant will be located within 500ft of an existing establishment, the applicant's establishment is located within 500ft of four other establishments that have valid retail tobacco sales permits, and three pursuant to san francisco health code 19 point 4f5 and 19.5 a no new permit shall be issued in any supervisorial district that has 45 or more establishments with at chief tobacco sales permits. the establishment is in soup supervisorial district three, which currently has 95 valid retail tobacco sales permits.

this is permit number 97731 and we will hear from the appellant first. welcome. you have seven minutes. good evening. members of the board, my name is randy schmidt. my client, mr. sultani, is here, he also wants to testify under oath, the reason why this whole, enforcement action began was beginning october of last year, mr. sultan was approached by a gentleman that he later learned was the shop around the corner to try to purchase his shop. and at the time, mr. sultani had no interest in selling his shop, shortly thereafter, i guess it's pine street. gifts moved in, basically copying his entire format of doing business. mr.

sultani had applied back in 2018. for a tobacco permit and between 2018 and 2020, he did not pursue it because his other business lines, essentially electronics, were doing quite well. so he did not pursue the, the tobacco products at that time. in 2010 or 2020. obviously covid hit and he shut down the store, he just reopened it last year, october of 2023, began selling, tobacco products. and he believes that he can, comply with the 500ft within a school by, essentially, moving the items that are offending the city, to the back of the store. so they're not within 500ft of the of the school. the place

around the corner is still. i just went there today, went by there still. they're still violating the ordinance, he wishes to comply. he understands, that, you know, he's willing to do whatever it takes to comply. after he got the application on file, he then got the license from the state. okay, so that's why he thought he was okay. the city never followed up. he doesn't. mr. soltani, do you recall getting this email from the city, which is exhibits? exhibit e? i do not recall. okay. it's possible. went into his spam folder, he never got another email from the city. there's internal emails between on, i believe it's miss young and a few other people in november of 2018. he never he was never copied on any of those

, he does not recall. do you recall getting inspected in november of 2018? i do not recall that. no okay. so they never sent a follow up email. he was led to believe that he was okay with, his permit. and this whole thing came a result of the whistleblower, mr. pine street gift shop, which is exhibit h, which coincidentally, the from line is essentially blotted out or redacted, it just says dear sir or ma'am. and then they blew the whistle on mr. soltani and it just says kind regards, taxpayer, we believe if we were ever given the right to do discovery, that that's the person that blew the whistle on him because he was trying to buy the business from him. and mr. soltani said, no, thank you. i want to keep it. and they're

essentially right around the corner from each other. competitors one thing is, mr. soltani, you you're okay with, if the board says you can only do, what is it, ten feet or ten linear feet of shelf space or 10% of your business? the floor space. you're okay complying with that? currently that's what that's where we stand is the ten linear feet. yeah. right. if the city were visited by janine young on the 18th of december, that's where we were standing was the ten linear feet. there's five cabinets. each one is two two feet by one feet width. so right. or two feet width by one foot depth. right. and i mean he's okay with complying with that. obviously he's covered up the offending products. he would like to be able to sell those if possible, and more importantly, he wants an exception from the

code, i noticed that the city's brief says, well, the court i read the city has no discretion. but then on page six, beginning at line 17, they specifically say that the planning department has, discussed an because the code says may. so we would like an exception, to that section. and i'm sorry, i see the timer here is that up to my rebuttal time or is that this is your first seven minutes? you have a minute and 35 seconds. we just paused it. so then you'll have three minutes later. three minutes later. okay thank you, thank you. so he did not know mr. soltani, did you know that your application had ever been put on hold? i was not aware of that. no. okay so the city admits that the application was put on hold in 2018, and then

for five years, he was led to believe that he was okay with the application. it's only in december of 2023 that he gets inspected, and then he gets the notice of cessation, which he's complied with, through now. but, the time that he bought the business, it had previously been a barber shop which moved across the street, he's been a good neighbor to all his, fellow business owners, except for the pine street gift shop, obviously, and they are directly abutting the redding school, which is completely offending under the code. so he doesn't think it's fair that, this person is getting away with it. blew the whistle, and then now he's been told 30s you have 30s left. 30s. okay i would like to submit. and then if i can retain

this amount of time on rebuttal, you'll have three minutes and rebuttal. okay. oh you won't. yeah. we don't usually shuffle it. oh, we don't get to move it around. okay. sorry. may we add that, when me and my sister previously were, partners in another smoke shop in hayward, california, we owned that place for about ten years, we were never aware of any sort of health. thank you. that's time. okay. thank you. you'll have more time in rebuttal. okay. we will now hear from the department of public. oh i'm sorry. we have a couple questions, gentlemen, commissioner trasvina and then vice president lemberg has a question. yes absolutely. thank you. i and i thank you for your presentation. both. the written submission is very thorough and presents a complete story. and both of your presentations this this evening to do as well. i have a question for mr. soltani, but i also have a question for counsel. i'll start with a question for counsel. and that is on the issue of the source of

the complaint. are you are you stating that people can file a complaint except in certain circumstances, and that this complaint falls under that circumstance? can can you elaborate a little bit more as to why it matters who filed the complaint? it. well, obviously anyone can file a complaint. we're not disputing that. the issue is that he believes that this person essentially targeted him because he's a competitor. he tried to buy the business. and when mr. soltani said no, that's when this whole thing started. well that might mark the person as a bad person. but is there is there anything else that we need to take into account on that, on that issue? can you think of anything that, it's just basically he's trying to drive us out of business in order to, you know, release the building and, and take it upon himself to be there, i have text

messages from the guy, from, from last year, from about. can you speak in the microphone? months last year. and, the gentleman has you know, been really relentless about coming in there and purchasing the property, and he he's texted me at 2 or 3 in the morning, actually, just to see if he can purchase the property from me, you know, and that's, that's where we stand as far as. okay. thank you. and mr. soltani, the question i have for you is when you bought the business or when you moved in. yes. were there representations made to you that there was an active tobacco license, or is that something you assumed or there was in two different instances. one was from my landlord. the landlord told me that it was previously a smoke shop. so, that gave me the inclination that it could continue to be a smoke shop, the second thing was when i did

apply for the license. the state license, i believe it was on spirit street, when i applied over there, they never gave me any extras to go to the department of public health, which when we were in hayward, that's all we had on our wall, was just basically our tobacco license. and we're good to sell for ten years. never had an issue. so that's where my, you know, my understanding was as far as what we needed in order to sell the tobacco, but we never actually sold the tobacco from 2018 until 2023. and the reason why was because, first of all, from 2018 to 2020, as he explained, the electronic sales was doing pretty good. so i never felt the need of bringing in the tobacco sales to supplement the sales, the second reason was in 2020, the day of corona, when it when it hit, we closed the store down because the economy was really bad. there was so much crime going on in the streets. so basically we closed the store down for three years. and three years later,

after paying the lease, that we've been on a five year lease on the place, three years later, i reopened the store under the belief that bringing in the tobacco might supplement some sales and bring in some new customers and new clients. thank you. yes, thank vice president lundberg. thank you, i my question is specifically regarding the actual ordinance that these permits are granted under and specifically what exception you are claiming, that this permit be granted under. well, i believe the i believe the city cites it. it's at page six, it's, 19 h point six. i'm not asking for the citation. i'm asking for which exception under that ordinance that you are asking for an exception under for on behalf of your client. oh, okay. it's 19.2, 19.2, which

it says tobacco retailers whose principal business is selling tobacco products. so if he has to change his business to principally sell tobacco products, he'd be willing to do that. right. but you understand still that there's a prohibition on new tobacco permits in supervisorial districts with more than x number of tobacco shops. right. so you understand that that the city could not grant a new permit under that code section, because there's over 45 in that supervisorial district, right? yes. yeah. i mean, i mean, i have to concede that. yes. okay. there's no issue with the map or, it was it was just a little, red flag to me because you said that. oh, he's willing to put it under. so it's not within 500ft of a school, but the city cites two additional independent, independent code sections in which this also wouldn't apply,

which are the, the 45 in the supervisorial district and the within 500ft of two other existing establishments is, is and then it lists several exceptions. is there one of those exceptions that you're arguing that this permit should be granted under. you know, linear feet. yeah i mean, obviously the ten linear feet and the 10% is an exception that he can obviously comply with. but he would like a one time permit for selling tobacco products, not just the glass paraphernalia. has that, has that even been submitted. that application? not to my knowledge, not yet. which application is that? the other one. i don't believe so. the only thing we submitted was the health. health? yeah. the only

application that was submitted was the 2018 one. okay. which was not acted upon for five years. okay. thank you. you can be seated. thank you. we'll now hear from the department of public health. good evening, commissioners. my name is deputy city attorney henry lifton, and i'm appearing on behalf of the department of public health, as you've heard this evening, there's really no, disputed facts about any of the, provisions. of 19.4, the applicant has conceded that this establishment is in a supervisorial district with over 45 permitted establishments. there are four other permitted establishments within 500ft, and

it is within 500ft of a school. nor does it matter that he can move products within the store, to greater than 500ft, because the health code specifies that that 500ft is measured from the closest point on the property line. so that fact, frankly, does not matter, nor has applicants actually cited any exception that would apply to this case, you asked him commissioner lehmberg, whether any applied. they did not actually point to a specific exception in health code section 19.6, and the reference to ten linear feet, i assume, is the reference to tobacco paraphernalia under the planning code, which is just entirely separate and not applicable here. to the health code, i'd like to address a couple other of the arguments that, the applicant has made here tonight. and in his brief. so first of all, there's this allegation

about a whistleblower, senior inspector janine young, who is here and also has submitted a declaration in support, has made very clear that no allegation was made by pine street gift shop or anyone associated with that entity as a basis for, investigating electric city. nor, frankly, does it really matter. the source of the complaints. the law is the law. and there is a, you know, regardless of whether somebody complains or not or the source of it, the department has an independent duty to investigate each, each establishment that is offering tobacco products for sale. i would also mention that before she even visited, electric city inspector young also. so, did a complaint inspection, at pine street gift shop and the department issued a notice of initial decision finding violations at pine

street gift shop. so it's not the case that. well, they're getting left off. they're off the hook. and this, establishment has been singled out, there's also no issue about grandfathering in, prior provision, as the applicant suggested in his brief, the tobacco permit that was previously held by it is vapor 13, which was issued in 2014. that ended in 2015. and under the health code and the business and tax regulations code, there's simply no way to transfer it to a new business, so there's no grandfathering issue at all. the applicant also raises an issue of estoppel, this kind of unfairness idea that, you know, the application was not not acted upon in 2018. and so therefore, you know, he was led to believe that there

was some sort of, implicit permission by the department of public health. and when asked, like, what are the reasons that you were led to believe that none of those representations was made by the department or anybody from the city, it was made by a landlord. and, you know, he got a state tax license. none of that's relevant to whether the department actually approved the permit application. i don't think it's reasonable to just kind of assume like, oh, i haven't heard anything. so therefore i'm just going to go ahead and assume that my application has been approved. but even if the department had acted in 2018 on the permit, the application permit would have been denied because there were more permitted established events in 2018 than there are right now. so the fact that the applicant was able to sell anything at all is frankly additive and beyond what should have been allowed. so, you know, it is it is what

it is that the department did not act from 2018 until 2023 to 2024. but, you know, as you've heard, the applicant wasn't actually selling tobacco products for the majority of that time. and had it been processed on time, then the application would have been denied, so frankly, there's really no discretion here for the for the departments. none of the exceptions apply. and we'd respectfully ask that you affirm the denial of the application. and i'm happy to take any questions you have. thank you. we have a question from commissioner swig, so your testimony is consistent with the findings of this body, for many years. and and, and just based on three of them, which is that it's nontransferable to the school, 500 square, 500ft from the school, and, and, and 345 existing permits prevent an

additional permit within a supervisorial district that's, we've heard consistent, and so you're, you're your testimony from my view, is consistent for the benefit of the, of the appellant. however has there ever been, a an application or an appeal where the department has, has, said, okay, we'll bifurcate those things and, and, you know, there's only one thing wrong or there's only is there are those has there ever been an exception and a bifurcation from those those at least those three elements that led to the, issuance of a permit, not to my knowledge, commissioner swig. i mean, we do have, senior inspector janine young. if you'd like, we could ask her to testify that i think she has a

greater historical knowledge. and i'd be happy to have her come up and just confirm that fact. if that's we are we are familiar with miss young and we've heard from her before and would always a pleasure to hear from her again. and then i'm going to ask you one more question. are you doing. good evening. very tired. a lot of work going on, thank you and good evening, commissioners. i'm inspector senior inspector janine young from the health department, and i have been with the health department doing enforcement work for over 30 years. i have been doing enforcement work in the retail tobacco and smoking program, since 2010. and so to your question, no, the answer is no. we have not, approved a permit, even if, the applicant met every condition but one, in fact, i will say that we make it our, part of our role is to really

try to help our applicants understand kind of when we get the application, we always hope that people will call us first before they even apply. so they understand, kind of like the landscape and density and what the outcome would be, and so even in 2018, that was a reason why i went, the application had already come in. no one had contacted me. there was some communication between planning. no one knew what was going on. so i elected to go and actually have a face to face conversation and to see exactly what was happening, which is why i took pictures to establish that there was no tobacco cell. and that's one of the, i think, reasons that, there was such a lapse because there were no tobacco sales. and so we were really focusing we were a small team focusing all the locations where people were actually selling tobacco really need to hear from us, or whether they could have the permit or not. and then and then if we denied that, they

will. they were right here at the board of appeals to try to see if they could get the permit, some other type of way. okay. why you're there. i'm going to ask the second question, because you're certainly can probably answer it. the issue, the issuance of a state permit, so, it seems that the appellant feels misled in that the state of california issued him a permit to sell tobacco products, which would leave him to the assumption that he could sell tobacco products in the city of san francisco. can you give us some information around that? and clearly, in this case, unlike in some housing situations, city city law overrules any state, guidance, i'm assuming. and how do you prevent somebody from being misled that a state license actually allows you to sell tobacco products? can you

give us some background on that, please? yes. thank you, so the california department of tax and fee administration is the state agency that applies tobacco sales throughout the state of california. and so actually, our team has reached out to the cdtfa to see if we could kind of partner some type of way. but the cdtfa was very clear. they said that with the number of jurisdictions and all the different permitting requirements, that they could not possibly try to set up like something separate or different from us, so but but they are looking into it. so we are hoping that in the future we can do something that they can kind of, even as an education to, to ask people to come to their local jurisdiction first before they apply for the cdtfa, the other thing, around the cdtfa that we are revamping our website, we're having a new web design, and that's one of the things that we're going to

really, focus on is to have businesses to say, hey, talk to the health department first before you even sign a lease and before you go to the state. so we're hoping with the, like i meant, it's in the design stage, we got some drafts, and that's what we're hoping that really is communicating to our businesses. and then we're also, building partnerships with the office of small business because they really are the, agency that really, you know, works with our businesses. so we are starting to have meetings, and we're hoping that that's another avenue that we can really get the information out to. please come to the health department first so that we can explain and let you know whether a tobacco permit is available. so i'm going to use i've stopped trying to figure out the state of california because city just is complicated enough. but where are you going with this? is that are you recommending or are you

going to implement a process where at some point it says is warning, even though you may have been issued a tobacco license to sell tobacco by the state of california, that license is not valid in the county of san francisco. yes okay. yeah, we're working on that. all right. thank you. thank you, president lopez. yes. thank you, for mr. lifton, you you mentioned earlier that the facts in 2018, with respect to the number of tobacco permit holders in the district were were worse for the appellant than than today. can you tell us if 19 was essentially the same in 2018? in other words, were the issues that that you've presented the three problems with? the, the subject, permit? would those three issues have

also existed under the code in 2018, generally, yes. the density ordinances, which is what the department calls this, you know, article 19 of the health code was enacted effective january first, 2015 or thereabouts, so businesses would in 2018 would have been subject to the same requirements, assuming reading elementary school was hasn't been established in the last couple of years, would have also been, you know, a separate reason, to deny it. i focused on the larger number of permitted establishments just because that's the, you know, the facts that inspector young was able to testify to, but certainly there probably would have been other reasons that the permit would have been denied in 2018. thank you. okay. thank you. i don't see any further questions. thank you. so we will now hear from the planning department. did you want to weigh in? good evening,

president lopez, vice president lundberg. members of the board. i'm tina tam, deputy zoning administrator. i'm here to focus more on the current use of the property in relation to the planning code. 1347 polk street is a two story commercial building in the polk street neighborhood commercial district, located on the southwest corner of polk and pine. the property contains three separate tenant spaces based upon the appellant's testimony. electric city is a computer and phone repair shop. this business moved in to 1347 polk street in 2018. in 2023, the shop keeper of electric city introduced the sale of tobacco and tobacco paraphernalia to. according to the df staff, more than half the store is currently devoted to tobacco and tobacco

paraphernalia sales. the appellant, a matsutani, the shopkeeper of electricity, has been interested in selling tobacco products since 2018. in 2018, the planning department did receive a health referral from df for electric city to sell tobacco and tobacco related products. at that time, the planner, who was assigned to this referral reached out to mr. sotonye and asked for more information about the type of tobacco products for sale. the type of tobacco product is important because planning code section 723 and 790 .123 states that the sale of tobacco paraphernalia is prohibited anywhere in the polk street neighborhood commercial district for planning code section 102, a tobacco paraphernalia establishment is defined as the sale of any device or instrument for the smoking, ingest, or

inhaling of tobacco or products prepared from tobacco or controlled substances. this means selling even a single smoking device is not allowed at this location. after sending the email in 2018 asking for more information about the operation of the business, the planner waited but never got a response from mr. soltani. as such, the planning department never gave mr. soltani approval to operate a tobacco paraphernalia establishment, also known as a ppe. based on permanent history, there has never been any legally established ppe at this location . in vapor city, which is a ppe had occupied 1347 polk street back in 2015. however, vapor city was never legally permitted at this location. in fact, the planning department issued vapor city a notice of enforcement stating that htps are prohibited

in the polk street neighborhood. commercial district, and i believe vapor city vacated this property shortly after the nob was issued. given no tpps are allowed, nor any tps grandfathered in at this location, the department respectfully ask that you deny the appeal and uphold the denial of the permit. that concludes my presentation. happy to answer any questions. okay. thank you. i don't see any questions at this time. so we will now see if there is any public comment for this item. is does anybody in the room want to provide public comment? anyone on zoom? i don't see any hands raised. so we will move on to rebuttal. so, mr. schmidt, mr. sultani, you have three minutes. thank you again, i don't think we've ever contended that the

license that the previous tenant had was transferable. it's more of a question of lulling, when mr. sultani, submitted the application in the application itself says he had to choose one box, if you look at exhibit. wherever the application is. sorry i just had it. but yes, the application says check one box that applies. and so at the time, because he was just getting into this spot, he checked gift shop. so, mr. sultani, why did you not check, the box that says vape or tobacco products? i was under the impression that gift into the microphone, please. i'm sorry, i was under the

impression that gift and novelty was pretty much an all in one type of a thing. just like, as if a bodega type of a establishment. and in your previous businesses where you've operated had, smoke shops. yes. did you have to declare to those jurisdictions that there was only one? never have we had to declare it to any other, establishments other than the state. so, for example, as i stated earlier in hayward, when we had the smoke shop, we only had our state licensing. and even over here, when we got our state licensing, we were never directed towards going to the public health. and as janine young actually stated a little earlier, she said that they're trying to make that, you know, the public aware of those types of things where in 2018 i was not aware of it. she stated that she had came down there and had a face to face with me, the only face to face that i've had with this, janine young, was in december 18th of 2023, which is

five years after the establishments have been opened, besides that, the planning department, actually stated that we have over 50% of our establishment dedicated just to the tobacco and paraphernalia which i can pull up our, our camera system right now on my phone, our we only have as far as tobacco. there's two of the, the cases, which are two feet by one foot depth, those are the only things that are, dedicated to tobacco. other than that, we do have pipes and things of that sort that might fall under the paraphernalia category. 30s, that's that's pretty much what i wanted to, you know, clarify that we never have had over 50% of our thing. it's pretty much about four feet of the store that has tobacco. the other, there's six more feet that has the, glass paraphernalia and the and the tobacco has been covered

up. yes. the tobacco has been covered since the day she came, no sales have been made. it's all been covered. and the other thing is, we don't know what to do with it. basically, if this. thank you. that's time. yeah okay. thank you. we do have a question from commissioner swig. these are all tough, always tough cases that come in front of us. we've had gas stations, liquor stores, grocery stores. i've been sitting on this commission 7 or 8 years, it's always small business, and it's always entrepreneurs and small business format. do you and you heard my line of questioning, are there any exceptions ever? the answer was no, the planning department, doubled down on that. and and carved out that even in the area there is a,

smoking paraphernalia is not even allowed in stores much less smoking products, tobacco products, and you also heard me talk, ask the question about to the health department. basically, shouldn't there be a better way where there's in in red type when somebody is trying to seek information, caution, you know, warning, state, state licensing, doesn't work here, and i and i'm really sorry for yourselves and others who have come in front of us, that you've been misled by a landlord that you have not been able to do the due diligence, adequate due diligence to understand all these things. but is there anything it's going to be very

hard for us, i think, to find in your favor. but is there is there is there is there anything? i'm really sorry, but is there anything that we've gone through your checklist and there are no exceptions. there are no carve outs. are we missing something? because i like to bend over backwards to try to try to help, especially small business. you're asking about the due diligence. but when i renewed the state licensing on in september of 2023. yeah i explicitly asked the lady over the phone because i didn't renew it online. i actually called the state and i asked them, am i able to sell tobacco? she said, you can go ahead and sell tobacco starting today. so i said, okay. she said, print out the, the licensing, put it on your wall and you're able to sell. i mean, i don't understand yet. yes, there is the, you know, the federal and then there's the state and there's the city, but the thing is, the city and the state should have been you know, corresponding with each other at

least where, when, when i'm speaking to a representative of the state board and they're they, they tell me that i'm able to sell and then somebody from the city comes and tells me that i'm not able to sell. so that's where i've been misled. i've been misled by the actual, appointments of the state. yeah, i understand that. i'm. and i'm sorry about that sympathetic. empathetic. all the above, but unfortunately, my empathy doesn't change the law, and, and , and obviously there is no answer for that. we are governed by, laws of the city and county of san francisco and the city and county of san francisco in this area has the, as the, the, the, the law states differently than the state. and it's unfortunately, you know, here

the, the, the statement that you're only as strong as the weakest link and unfortunately, you may have found the weakest link who may have given you the wrong answer, which is unfortunate. but as far as the city, i hope that you've heard. and have you heard, all the elements here and that that make that argument. unfortunately moot? i have heard that. yes. and, you know, the other thing that i am confused about is, yes, i have been misled by my landlord into signing in that five year lease. but besides being misled, doing my own homework, the place was previously a smoke shop, so, you know, unfortunately, as we've heard illegally, and that doesn't set unfortunately, that doesn't set the precedent as we've heard from planning. yes. just because somebody else operated illegally doesn't mean the next guy can come in and do it illegally. i understand that. so i'm i just wanted to, in

situations like this, i always like to speak up because your your situation, will assist. maybe somebody else. as department of health hears that this is a flaw that exists, as as planning might hear that this is a flaw that exists. not. i'm not blaming planning or i'm not blaming d-p-h. that's how you you learn. but you understand that the system sometimes is flawed. there is a lack of communication and that unfortunately, that your your situation might help somebody later. i hope you understand that. do you understand that? i fully understand that. and reading these emails and all these, exhibits and things of that sort that came in, i understood this previous to coming over here. and me and randy have went over this, about how it's going to be very hard and very difficult. and, you

know, the reason why we're actually here today was just to actually have some sort of an exception because of the fact that, you know, i am a small business, i am a family, i have a family of four. it's really hard. i had to actually borrow the money in order to purchase the tobacco and things of that sort. and now it's just been sitting on the shelf. thank goodness. it's not like a perishable which would be thrown in the garbage, but other than that, the things sitting on the shelf were actually asking for some sort of an extension or some sort of a, what do we call it, a carve out? yeah yeah, a carve out. yeah. do you understand that? i asked that same question when you heard that. i asked that same question of d-p-h. and we, we can't we have pretty broad powers here, but we can't break the law. and that's why i asked d-p-h can we do a carve out? is, has there been a history of any carve out and there is no history of any carve out. and so we can't create law around here. i'm very sorry. well, if i may, one last point. just because there hasn't

been one in the past doesn't mean there shouldn't be one in this case. and, councilor, that is exactly why, your client hired you to ask that question. and unfortunately, we as as sympathetic as i think everybody on this board is to the circumstance, sympathetic to small business, sympathetic to, as i said, small grocery stores, gift shops, tobacco shops, would be tobacco shops in a transferred license, gas station operators. we can't change that. so i'm really sorry about that. thank you very much, thank you for your understanding. thank you. thank you everyone. yeah. with that, we're submitted. yeah. thank you. we'll now hear from the department of public health. thank you. i'll be brief, nothing you heard on rebuttal is, you know, change the fundamental facts of this case or the law, you know, we are, of course, cognizant of the impact on small businesses, but unfortunately, the department

does not have discretion in this matter. and i just want to point out, commissioner swig, to your point about the cdc cdfa, license on the actual application, which is an exhibit d, page two, the department did notify my applicants that you need both the state license and a city permit to operate. so i do want to stick up for the department for how they operated back then. but i do take your point that that process can always be improved, i know senior inspector young asked to say a word, so i'd like to, turn my remaining time over to her and otherwise, i'd ask you to affirm. thank you. what i would like to share with this commission is that since september 2023, our office has been receiving a lot of calls from our small businesses that have a tobacco permit. and they're calling me on almost on a weekly basis about the number

of businesses that are in the soma and the tenderloin that's in the mission. and the excelsior, that are operating without a tobacco permit. and they are, you know, letting me know that it's not fair that they're paying a lot of fees and licenses. and it's an unfair business practice because these, locations, because they don't have a tobacco permit, then they are not paying, like the san francisco cigaret litter abatement fee and some other fees. and so, so, i right now have about over a dozen, open enforcement cases. and so it's really tough right now. and we really are doing our best to really try to inform the, the applicants about the fact that you can't sell, tobacco prints without our permit. you can't sell, there's very, very strict

criteria that you must meet in order for the health department. and so i'm really hoping, you know, that this board continues to just uphold, you know, our decision on, on these tobacco permit denials. and because we're probably going to see more, cases like this. thank you . okay. thank you. is there anything further from the planning department? okay. so, commissioners, this matter is submitted, commissioners, why don't we start at the far end of here with commissioner swig, as i said before, the law is law. we can't change it. there are no carve outs. as the as the department of health and council stated, even if you bat two for three, it doesn't matter, or or two for two for three, in a positive sense, if you're if you're a loser on the third item, you still can't get the, the permit, we've been through

this before in this commission. we have been consistent in, denying these appeals, and i would make a motion to deny this appeal for all the reasons stated that, it does not sit in compliance with city statute. i would generally agree with that. i think, you know, unfortunately, this law does is, adversely impact small businesses because small businesses are the type of businesses that sell this regulated product. and i think that miss young gave a great policy reason for why it's important for us to hew to the law on this, and that is that there are people who are going through the process appropriately and paying the appropriate fees and doing all the things correctly. and it would be unfair to carve out, exceptions to that and give an advantage to people that are not in that process or have not been in that process. and so, yeah, i agree with commissioner swig's analysis. otherwise i have

little to add. i agree with the outcome. i, i do very much appreciate the lines of questioning from commissioner swig regarding, what what can be improved and also miss young and the department's commitment to improve the processes, particularly in regard to, collaboration with the cdtfa. i recently just dealt with the cdtfa in my private practice for the first time, and i was shocked by how difficult it was, to obtain, state sales permits. it was, it was extremely burdensome and time intensive and overwhelming, frankly. and i'm an attorney. i do this for a living, so i really do appreciate, your efforts to, you know, increase public awareness and business awareness to business owners, or potential business owners as to how, you know, what they can and can't do or what they should and shouldn't do as far as, starting

new businesses and, with that, i also support commissioner swig's motion. i support the motion as well. i think the city process was correct. however, the mr. sultani and his attorney make a very compelling and sympathetic case, and there can be exceptions, just not by this board. this the policy that the board of supervisors established, this policy. we as a city are against smoking. we are a city is against selling tobacco. we as a city are against selling it and having access to kids 500ft from their school. those are very, very important things that those the people who are benefiting from the anti tobacco policy, they aren't in this room. they don't need to be in this room because we're deciding this based upon what, what the what the policies currently say. but we as a city are, are, have taken that

position and the city can can evaluate what is right or not right, which goes back to the people on the second floor of this building, also so on the i think the first floor of this building is the office of small business. you're struggling, you and many others are struggling, small businesses looking for ways to increase your increase your profits or get your profits and that's where other offices can can advocate, and try to assist small businesses. but as for as for what's before us, the , the application of a policy duly, duly established by the mayor and by the board of supervisors, this is what this policy is saying, is that we're discouraging the selling of tobacco products, whether it's concentrated in one particular district or whether it's near a school or for other reasons. and for those reasons, i, i, i encourage those and other others who may be coming before us in

the future to that, that their, their, their concerns are well placed. they need to be lodged elsewhere, but for our role, it is to it is to look at the policy, see whether it's properly applied. and in this case, i believe it was. i'll join my colleagues in, in this vote. thanks, everybody, nothing significant to add. i agree with what's been stated about, both the sympathy for, the appellant as a small business owner, and also the, the, the needs of, of the question before us this evening, i think the appellant you know, may have heard me ask about what i thought was a potential avenue, to relief related to the delay, but it sounds like even if this had been, processed immediately in 2018, the outcome would have been the same, so with that, i,

let's go to a vote. okay, so we have a motion from, commissioner swig to deny the appeal and uphold the determination denying the retail tobacco sales permit on the basis that it was properly issued as the applicant did not qualify for a permit under the code on that motion. president lopez i commissioner trasvina i vice president lehmberg. i commissioner epler i. so that motion carries 5 to 0 and the appeal is denied. thank you. we are now moving on to item number five. this is appeal number 24. dash 007 sonia smith versus department of building inspection, planning department approval subject property 163 28th street appealing the issuance on january 12th, 2024 to sarah ahmadian and andrew swerdlow of a site permit, two story top floor addition on two story single family house, new third floor with two bedrooms, two bathrooms, washer dryer, new

fourth floor with one bedroom, one bathroom and one roof deck. this is permit number 2021 0129 3667 and we will hear from the appellant. first, miss smith is joining us on zoom. i believe. hi. hi. welcome you have seven minutes. thank you so much. i'm sorry. i wish i could be there in person, i have a number of small children running around. if you hear them. that's. that's what's going on. i was hoping to, get there in person, and i had a child care, situation. so, thank you for taking the time, you know, to hear some of my concerns about the building, i am the property owner of 170 valley street, so i'm diagonally adjacent to the rear of the property, and i was concerned that the property was going up

two floors, which seemed, sort of extreme for me, for the neighborhood, although that's not my area of expertise. i know it would go up a story higher than, the property to one side of it. and two stories to the other side, there are some apartment buildings in the blocks, sort of around in this neighborhood, and, but i'm not really aware of any single family homes that go up four stories, that in and of itself is, you know, not, you know, i'm not really sure what the particulars are, with the planning department. around that, my primary concern was for, privacy, for the neighborhood, for, my bedroom, which, has a window, to the rear of the property, and, i would say not so much going up the one story, but going up the two stories with the windows, that

can see into my, my window and property, was a concern for me, i did get in touch with or, the architect for the project, who was kind enough to talk with me and send me some, plans. but then i also had a sick baby. and, i think some of our communication dropped off, i understand that he feels like it might be possible to remove a small window on, one side of the property. that the owners are, amenable to that. and i had also, talked with him about maybe talking with speaking with his clients about planting some trees, unfortunately, some of the trees that were on the, in the back of the property that's, directly next to, this property that's under that will be under construction, were removed by

the my neighbor to the rear or the, the landlord to the rear, so that sort of increases my concern for the mutual privacy of the different, homes in the area. the, i guess i'm trying to think of what else i do know. the architect had submitted, some sort of diagrams and information on, which show a little bit more perspective on the, on the buildings, i did notice that, you know, he had marked where there are four story buildings in the area, i would just say that all of those are, multi-unit buildings. either for, i can look back to it, one of them has four units, and then the other two have two unit condos, so i do think it's unusual, to have a four story

building, single family home in this area, and i, and i am concerned about, how we might mitigate some of the privacy concerns. i also, having small children, you know, concerned about just the construction is sort of, like, handled in a way. you know, that's safe and thoughtful, in terms of, like, debris and dust and, different things like that. i did, i guess, a neighbor had saw that i had made an appeal, really to have a conversation, with the owners of this property, and had expressed to me, that in the past that there had been some issues, with the neighbors, with the prior phase of construction, and, you know, one of them, which was sort of like,

removing, an older structure and potential, like contamination of their property, where their grandchild was, who later tested , like, positive for lead exposure and i don't really know , like, the, totality of, of that, but, as, as a mother of small children, it is also a concern that i have, let's see, i think that's probably, what i, what i have, i just wanted to open the conversation about, privacy and mitigation and just learn also a little bit more about the thought process around , going up four stories as it is unusual and i think, you know, had it been going up, so it'll, if this structure is four stories, the neighbor to one

side of it will be two stories, and then to the other will be three. so i think, i just like to hear a little bit more as well, maybe from the building owners sort of, what, what they, have in mind for, like, anything to maybe, like, help, promote our mutual privacy and also, to make sure that the building process is, you know, is, just taking into mind sort of like neighbors and children and, and sort of open communication in. okay. thank you. are you finished? yes. i'm finished. okay. thank you. we have a question from commissioner trasvina. thank you for your testimony, miss smith, you mentioned a couple of times opening conversations, and i'd like to explore that. i'm wondering whether you have you had any direct conversations with the permit holder, or is

your knowledge of, of the project based upon the architect materials and the matters that were presented in this case, i have spoken directly with the architect, who provided me with some, diagrams and information, but not directly to the property owners, based on what you've know to date, do you think there's a chance that further or discussion with the permit holder would reach some kind of reasonable or conclusion that you would settle with, settle for, i'm absolutely open to that . thank you. thank you. i don't see any further questions at this time. so we will now hear from the permit holder. hi,

sorry, i couldn't be there. i have a child situation, childcare situation as well, and i have a little pit as well. so i totally understand your concern, and, in terms of our permit, the reason that we are building more a little bit because my parents are moving in with with me, because i have a little child to take care of their child. and this house is not, like, designed to have that many people in in it, so that's the reason that we are we are having, we needed a bigger space. and, you know, i have to take care of my parents and the kids. so that's basically the reason. and, and i'm very like, you know, empathetic with the with your view because i have, i have a little child as well. so

i understand that, you know, there are there are concerns. so that's why we are here to, to, you know, see how we can help to figure out, you you feel comfortable with, with our plan and as you mentioned, our architect is, is working with you to figure out what is the best way to create that privacy for you, you know, i'm not an architect, and i, like all i know, basically is, like, how can i have a better a little bit bigger space? so my parents here, and, and i'm happy to like, you know, work with the architect in any capacity to make sure that your concerns are, are done. thank you. and i believe the architect is here. yes mr. cumbie, please go ahead. thank you, can i get the overhead, please, as well? overhead, please, david cumbie, the architect for the permit holder overhead, please. thank

you, this is a, as you heard, a single family house, two story addition to a two story house, this project was approved without any, discretionary review hearing. there's no queue or variance required for the approval, as you heard from the appellant, her property is, behind my client, but not directly behind. it's to the southwest. east, so i should touch quickly on the heights. you mentioned the number of four story structures on 28th street. this image, refers to the four story structures facing 28th on both sides of the street. there are three others in the immediate vicinity. two with no front setbacks. we have a front setback at our uppermost floor. our third and fourth floors are both, minimal ceiling heights. there are only eight feet. the code minimum is seven foot six. so we've tried to keep that height to a minimum, we wanted to preserve the large rear yard,

which is 59ft, five inches deep. the lots in this area have, 114 foot depth. so it's a little bit deeper than the typical lot. so some of the rear yards are quite large, so that means that we as a vertical addition, we maintain that 59 foot five inch distance from our back wall to the property line. and then the as exhibit c shows. can you help them zoom out, please? thank you. the appellant's property has a proximate rear yard setback. i had to estimate that of 35 to 40ft. so the dashed red line indicates that there is about 95 to 100ft between the back walls of the two properties, so we feel that distance would not constitute a significant privacy concern, the again, looking at that in the site plan. our property here has

a much larger rear yard setback than the adjacent neighbors on either side. so we're maintaining that large rear yard and that larger separation, the windows that face the rear yard at the third and fourth floor are bedroom windows. so the more active spaces, the more social spaces of the house are at the second floor level, the living dining kitchen. so there's really not much visual access from those kind of more active social spaces. and the only deck at the rear yard is shifted over toward the east side of our property. so it's shifted away from the appellant's property, which is to the southwest. and there is currently a pretty significant amount of, vegetation between the two properties. there's a number of trees on the appellant's property at 170 valley, as she noted, one of the trees was recently, unfortunately removed at 175, and there are some newer planting, at the back of my client's property, which is still maturing. so it's going to

grow over time. but there is some measure of privacy provided between the properties by the existing vegetation as well, so we're certainly open to, as the appellant noted, we've discussed potentially, removing the window at this corner of the fourth story bedroom, which is relatively speaking, closer to her property. and we're certainly open to talk talking about other vegetation options at the back of our property, we just need to figure out what's feasible to get back there. we might have to get access to another neighbor's property to do that. so we just want to be sure it's a realistic option. but, overall, we're open to those discussions, but we feel the permit was properly issued. and, we hope that you, uphold the permit and deny the appeal. thank you. we have a question from commissioner swig. i very much appreciate your presentation. and i really appreciate the statements made by your client, with her,

understanding of her neighbor and her willingness to, listen to requests, and show flexibility in that. and you alluded in your presentation the removal of a potential window. and we can talk about that later. sure or not, have there, what has been the formal dialog, if any, between the new the two neighbors so far, have you had direct contact with, the appellant? and what are the requests that you specific requests that you've heard from the appellant? i really didn't hear in the appellant's testimony. so it was hard to hear any real specifics, only allusions to. yeah, privacy, but can you help me and tell me, as have you had dialog and what is that dialog? what were the

topics of that dialog? yeah, we did have a little chance to talk before the before the hearing, and there was not a brief filed for the appellant, as you know, but, the two the two topics that we touched on removing that window and potentially increasing the level of vegetation at the back of our property, seemed to be heading in the right direction. i'm not, you know, specifically. sure, if that would satisfy everything that that was, desired on the part of the appellant, but that was the kind of what we felt were reasonable kind of elements that we could investigate to reach a conclusion. here we are kind of at 11th hour here. where we wish this might have occurred earlier, were there in the development of your plans in the at the time, at the time of, did this go in front of planning commission or not? no, there was no hearing. right. but there there was 311 notice. yes yes.

and so in that 311 notice occurred when, 2022, but to be fair to the appellant, i think she bought the house after that was, i see so that's why she was not aware of the. okay all right. well, thank you for your flexibility. thank you. thank you for pointing out the possibility of making some, compromise. and that's deeply appreciated. that's all i have. thank you. i don't see any further questions. you can be seated. thank you. we'll now hear from the planning department. thank you, tina tang, for the planning department. 163 28th street is an existing two story, single family dwelling in the r-2 zoning district. constructed in 1904, the property was evaluated in 2021 and determined to not be a historic resource.

the permit is to construct a two story vertical addition to the existing dwelling. the new third story will contain two bedrooms and two bathrooms, and the new fourth story will contain one bedroom and one bathroom and a roof deck at the front of the property. there is no change to the existing footprint of the building. the permit was filed on january 29th, 2021 and issued on january the 12th, 2024. the appellant is sanjay sonia smith, the adjacent neighbor to the south. at 170 valley street, senja cited concerns related to the height of the new addition and privacy to her rear windows and yard. she did not file an appeal brief as you heard during the 311 modification process. the department did not receive any discretionary review requests for the project. the project complies with the planning code and is consistent with the residential design

guidelines. the proposed four story is set back 15ft from the front building wall. the existing building depth is 54ft and six inches, and will stay as 54ft, six inches. the building will continue to have a setback of approximately 60ft from the rear building, rear property line. i'll go ahead and show some graphics really quickly just to give you some context and orientation, here is a block and lot map of the property. the subject property is in blue. it's on 28th street and the appellant's property is in red on value street. here is a sanborn map again the subject property. the footprint of the

subject property is in blue and the appellant's building footprint is in red. this is the street view of the subject property right here on 28th street, you can see in the immediate context you have some three story buildings, nearby. here is an aerial photograph showing the subject property here at the four forefront. and then the appellant's property back here on valley. this is a another aerial photograph showing the back side of the subject property here on 28th in the appellant's property on valley. this is a site plan showing the proposed project.

the proposed project is going to be three stories in height. the fourth story will be set back 15ft from the front, as i mentioned, there's no change to the building footprint. so the building depth will remain 54ft, six inches. leaving 60ft for the for the rear yard. this line dotted in black is the required rear yard line. that's the planning code 30% rear yard. so this is where you can build up to and still be within the building parameters. here's a an elevation of showing the existing two stories and the proposed four story, with the fourth story setback from the street wall. given the distance between the subject and the appellant's building, which is close to about 100ft, the planning department does not

believe the project will cause a significant privacy impact to the appellant's property. the neighborhood is a mix of tall two stories, mostly three and some four story buildings. the proposed four story building will therefore not be out of character with the neighborhood. as such, the planning department recommends to the board to deny the appeal and uphold the permit. on the basis that the permit was properly issued. that concludes my presentation. happy to answer any questions. thank you. we have questions from commissioner swig and commissioner trasvina, so you you have no objections to this overall, you have no objections to this development, the planning department does not. right, and sorry, when i say you, it's, you know, you are the mind department, and furthermore, i wanted to you to surface again, looking at this, looking specifically at more at

the slide that the, the project sponsor brought in, the it was clear to see that the and you, you showed it on the sanborn map, etc. the, could this project have been a whole lot larger? i'm going to go ahead and put the slide back up. this this again, is a site plan of the proposed project showing the location of the of the of the addition, which is on top of the existing building, having the four story setback from the street. this is the street, this is the, the existing rear yard, 60ft, the neighbors. the appellant's property is right here, this is the required rear yard line. you can build up to 40ft in this location. there isn't a building here. i think there's a deck here, a one story deck. but, yes, there could be a

potential of building more on this lot than what it's currently proposed. right. and, and if, if, for example, could you keep that up, please? thank you, if, for example, the project sponsor, would have built wouldn't have done the setback from, from the front. would, would, would that have been a bone of contention for you or or did did is that that setback just really good, and sensitive architectural design. but could they have gone. did they need the setback in the front, the code doesn't require them to have a setback. we ask for that. yeah we felt like you do have a two story building on the left, and it's nice to have some sort of, transition so that it's not a full four at the front. it's a design

consideration that we recommended. we asked for that setback. we consistently ask for that. if you're kind of a kind of a kind of a building that's a little taller than your neighboring building is to go ahead and provide that setback so that it's not so harsh at the street. so the, the, the architect and the project sponsor were accommodating. and in listening to your suggestion and, and put it in there. that's correct. it went through our, our our our our design review process with our staff architect. there was a back and forth between staff architect and the and the project team about what's appropriate, and there's been sculpting of the project to this, to this current sort of form. thank you. and, final question with regard to, the accommodation of removing a window which looked to me as, as rather small, is that something that we should, further recommend to the project

sponsor, or should we just leave it, as a voluntary issue? if the project sponsor wants to do it or not, as, as an accommodation to the neighbor. do you have any , you've already stated it's 100, 100ft difference. you don't see the privacy issue, and, and, and i was just wondering, is that something that we should this commission should actually get involved in because, it really isn't something that that planning is, looks across site at. i think the building, the building separation is very sufficient. we see a lot more, sort of closer, closer context where buildings are very close to each other with their windows facing each other. in this case, we feel like it's 100ft and there's some landscaping and trees in between a fence. other

buildings, in fact, and based upon what i can tell for the for the proposed rear elevation, the windows are kind of kind of moved as far away from the appellants property, kind of towards the right, the east, which i think is a consideration that was made to kind of address some of the concerns that you're hearing tonight. yeah. okay. i'm thank you very much for that testimony. thank you, commissioner. thank you. just following up. but from a little bit different perspective, a couple of your answers to commissioner swig were related to it's legally compliant. it could have been in effect worse for the appellant, including including on the privacy issue. what i'm what i'm wondering about not not in comparison to other buildings, but more, objectively, we've established

there's 100ft between the proposed building and, and the, the appellants, property, building. correct i believe so this is this is, put this back up here. i believe the project architect put this up earlier and this is part of his brief that i kind of borrowed, but it shows the building, the building separation so close to 100. i think it's a 95. maybe i didn't do the actual measurement. it's 60 on the subject property and maybe 35 on the appellant's property. and do we know whether there are any, any blockages of the view between one end and the other? here's an aerial photograph showing again the subject property here and the appellant's property here. there seems to be a cluster of trees nearby. that could kind of help,

could minimize some of that potential privacy concern. can you estimate the back wall? how far the dais is from the back wall here to the back wall? any any any idea? i'm just i'm trying to figure out in comparison what 100ft looks like between two different places. maybe 20, 25ft, maybe from from where i'm standing or from where? okay, well, the back wall, i'm guessing so. so if it's 25ft there, then it'd be like 40, 40ft here. it would be double that. maybe yeah, 3035. okay. that helps just just to establish what what what the real, real context is here. great. thank you. okay. thank you. i don't see any other questions at this time. so we

will now hear from the department of building inspection. good evening, president lopez. vice president lemberg. matthew green, representing the department of building inspection tonight, the permit before you is for a two story vertical addition on a single family. two story structure, permit was originally filed in january of 2021. it was reviewed by all the necessary or the appropriate city departments, including planning dbe fire department, puc, and dpw. permit was approved in september of 2023 and finally issued on january 12th of 2024. dba believes the permit was reviewed and approved properly. is code compliant and we recommend you deny the appeal and uphold the permit, just a reminder, this is a site permit. construction won't begin until the first construction agenda is issued, i don't have much more to add, but i'm here for any questions you may have. okay i don't see any questions at this time. thank you. we'll move on

to public comment. is there anyone in the room who would like to provide public comment at? sure. no problem. we won't start your time until you're ready. overhead please. thank you. okay. very good. good evening. i'm george shields and i live in noe valley, and i have no beef with either side, the appellant or the permit holder. i'm here to talk about the demolition calculations. if you can see on this thing in the overhead. this is a document from a joint hearing dbe and planning in 2018. and what it says in that first thing is building permits for vertical additions are the most common source of unauthorized demolitions. and i read the agenda last night, and i saw this project and i looked for the demo calcs on the plans in your packet, and there are no demo calcs on the plans in your

packet, and there are no demo calcs on the pem. and the demo calcs are section 317. it's in the planning code. it's been there since 2009. you probably familiar with it and, what it does is it monitors what is removed. it is to prevent alterations from becoming demolitions. it's to allow reasonable alteration. so i looked at this further and i thought, okay, no demo calcs, even though it's two story expansion, which means the roof is going to come off, that's a big deal. you can't just plunk two floors on an existing building. what i did see, which was not mentioned by mister green, is that there were two previous permits that totally gutted the property just prior to this permits being applied for, and if i can show again. so my question is, is this serial permitting? i'm not accusing. i'm asking because the permits in the plans in your packet show existing that was done under two

different permits in 2019. this is the rear and this is the original rear. so you can see that there were things cut out so removed. so that would be vertical removal. here's another picture that shows the roof line. there you can see it's a peek roof. that's horizontal removal. here's another one. the other thing i discovered is that there was an in-law in this property when it was purchased. here's the information about it from 2019. just before those permits were applied for. there was a kitchen in that in-law and it was sold with the idea that it was an in-law. there was no mention on those two permits from 2019 about a kitchen removal. so my only question is this. this is a policy issue that's why i'm here. it's a policy issue that you may be faced with because i don't know if the commission planning commission is going to deal with it anymore. the planning commission has said that no valley is the epicenter of de facto demolition. my question is, is this a de facto demolition with serial permitting? and is this a

problem that needs just to be looked at? i sent some material to miss rosenberg that if you're interested in this issue, i hope that you'll follow up with it, because i think it's an ongoing issue, not only in ojai valley, but the city and in the priority equities geographies. thank you very much. thank you. is there any further public comment in the room? okay. i see someone dana atherton is on zoom. please go ahead. you need to unmute yourself. hello. i am the owner of 159 28th street, to the east, next door to 163. and, and i would just like to comment about the privacy issues, because i did have conversation with the planning department, and with attendance of the architect and

we spoke about the problems in the first phase of this project, which which, there was no abatement for, for, lead or, asbestos during the tear down of what was originally told to me and 20 others that i hosted at my house to hear about what their plans were, which was basically a kitchen, bathroom remodel, which turned into a total tear down. now, we tolerated this within the neighborhood, but what i want to bring this up only because is what we were told and what was done were two different things. and with the fact that there

debris was held in the backyard for over six months, never cleared nor nor was there any netting around the property to abate any, asbestos or lead. and this building was built, i believe, in 1908. my property right next door was built in 1910. so i just want to bring to the attention of this committee or hearing or, forgive me for not using the right words to describe your, this hearing, but, i did have conversations on, like i said, with the architect and one of the planning commissioners and it was promised to me that any,

with the construction of the two, stories up would not only look into my skylight, into my bathroom, but i had asked in the past, would they not not use the windows that were illegally put in onto the side of the building that looked into not only my bathroom, but directly into my bedroom? thank you. that's time. well, they just regarded this. thank thank you, mr. atherton. your time is up. is there any further public comment on zoom? i don't see any. so we're going to move on to rebuttal. miss smith, you have three minutes in rebuttal. hi again. i'm sorry

there's children noise, children being children, i might have to shush them. if we could pause the time, please. time has paused. so kind. i wish that, life had a pause button when i needed to shush my children more often, i appreciate, i appreciate that. i appreciate the perspective shared by, different people who work professionally in these areas, i am just you know, a home owner and a neighbor, with concerns for my privacy, i will say that the height of the building, and the angle, you know, i didn't have time to, maybe illustrate it better. i guess i will say that the foliage between the yards has been greatly reduced. sadly because of the removal of

a tree from the, building to the back of me, so, i wish i could express that. just like the sheer height of the building, there is an intrusion and infringement on my, on my privacy, and it's really hard to, you know, i have trees, and i'm hoping they'll grow bigger, but they're not going to go, you know, 40ft. so, i am willing to, you know, talk to my neighbors more to try to see what their, you know, if there are things that we can do that could add to our mutual privacy, and, and, you know, i would nobody wants to be in conflict with their neighbors. so i also hope that, you know, maybe they'll be able to reach some understanding with any of the other neighbors that might have, have some complaint.

okay. thank you. are you finished, yes. thank you. okay. i don't see any questions at this time. so we will hear from the permit holder. and i'm not, thank you for, for your concern. and i'm happy to talk to you. and, you know, as i said, i'm not an architect, so that's why i think david is there to also support and make sure that everybody is, going to be supported through this process. and, you know, i'm a neighbor as well. and i want to make sure that that, your concerns are heard. so if i'm not answering the questions correctly because i don't know the architectural design, so please feel free to email him as much as you want. and if you don't get the answers, like, just, you know, you can always, like, ask me as well, and then i'll ask him. so happy to contribute in any, forum that i can. okay. mr.

comey, did you want to. yeah i certainly think we're open to removing that. that smaller window that's closer to the appellant's property. and we're certainly open to the discussion of additional vegetation. just exactly what that is. i can't really specify right now without more discussion with the neighbor and what species of tree and that sort of thing. but we're certainly open to those kind of additive measures to try and increase the privacy between the properties. that's all i have. okay. thank you. just the planning department, if anything, further department building inspection. good evening again, matthew green representing dvi. i'd just like to address some of the comments in public. comment, db is aware of the issue with the over demolition. so every vertical addition permit we do reach out before the start of construction. it explained the you know what is allowed and what is not. and we require a start of work inspection to go over the plans to make sure the

work is done. according to the approved plans, there was some concern about lead as well. so even though the building was renovated in 2021, the building code is very clear. if the building is built before 1990 1979, it's presumed to be have lead based paint unless the owner wants to go through and get it tested and prove that it's not lead based paint, presuming it's lead based paint, they're required to keep old construction debris within the construction area, prevent migration outside the construction site, and, clean, clean, clean the site every day, i can't address what happened in the 2021 permit, but those would be requirements for this new permit and any violations of the lead ordinance. he can file a complaint and we would follow up that immediately, i would just say, if you do want to make changes in the windows, i would, you know, recommend a special conditions permit. so that we document that and make sure it's done. that's it. and i'm bill for any questions you may have. thank you. i don't see any questions at this time. thank

you. so, commissioners, this matter is submitted, commissioners, let's start at this end, of the body with, commissioner trasvina. thank you, president lopez. i wanna thank everyone who participated in this hearing, from from the city and from the public eye during the time i've been here. i've never heard such non-adversarial rebuttals, it seems to me that it. the parties are very conscious of each other's needs, and desires. and i think that in this particular case, there's a chance that if there's further dialog among the various, parties, individuals, neighbors that it it's a chance that the appellant might be able to see that the privacy concern is not actually as great as she feels, and that on the other

hand, that the, the permit holder could work out something on the window. and i think in general, that the parties are better able to reach a decision that they will own, and that they can they can decide better, better than we can. so in this particular case, i'd like to hear what my colleagues have to say, but i would be willing to continue this for 30, 45 days to give the parties a opportunity to resolve this. and i note mr. green talks about the conditional use permit for the window. i'm guessing that's going to take a little bit of time and money and i think i think we might be able to have a mutual resolution of this by the parties within a short period of time. thank you. i am amenable to the, to the idea of a continuance, although i don't strictly think it's necessary in this case. i actually think that, because of the, extreme

reasonableness of the permit holder and of her architect, and their seeming willingness to compromise, i'm not actually sure that we need to, even consider granting this appeal, as i think they will actually take into account the neighbors concerns. anyway, but but i am open to the idea of a continuance. if if the parties agree to it and if they think it would be useful, which i'm certainly willing to ask the parties about, i could go either way. i would think tonight i don't think there's a basis to grant this appeal, i'll say that straight up. i don't think there's a basis to grant this appeal, unless the parties wanted to agree to something very specific. but i, again, don't really see that as necessary here. i do see commissioner swig shaking his head a little bit, so i'm

interested in his comments, my interest in this is to ensure that we, we end up with a situation where the parties can reasonably we deal with the matters between them, and, and ensure that that happens from a procedural standpoint. and so, the idea of a continuance, has floated through my brain, but you know, whether or not it's necessary, i'm willing to listen to additional conversation. yeah i agree with everybody's points of view except for the continuance, continuances. when you've, taken the care to present, a set of plans that meet, building department approval, planning department approval, and there is really no legal precedent to deny, to,

uphold the appeal really puts an extra stress and burden upon the permit holder, and i don't really think that's fair, appropriate. mr. trizzino. maybe, because that because both parties are not fighting about anything, and one has said, yeah, we'll we'll take out the window. so mr. green, i need your help. so, mr. what do we do? so here we have, a very flexible permit holder who said, yeah, i'll take out a window, but i'm sure that permit holder doesn't want their project stalled any further than it has because just by virtue of the

fact that an appeal has been filed, this has stalled the project. so this is a further burden that i'm trying to alleviate from the permit holder. and there is really no basis to, to uphold an appeal here. so what is the swiftest, understanding that there's no, this is fully volunteer ism on, on the part of the permit holder to say, okay, i'll cut out the window, now, how do we do that without that volunteerism turning into a penalty, and which is more time taken away from starting this project, which is clearly going to get started, so how do we how do we deal with that window issue, sustain the permit and, and not stall it any further because it has been stalled already, well, if you believe that the permit holder is going to follow through and change that window

design, you could uphold this permit and they would get a revision during the project to reduce the size of the window, if you want to, you know, document it today. you can, uphold the permit with a special conditions permit, reducing the size of that window. if you want to clearly. and we get we issue those special conditions permits fairly, fairly quickly. i mean, it's over the counter work with, julie and myself, and we get it done. so. right. so that's the question. so, so to stall this and by, you know, by having another hearing on that subject, really we don't need to do that is your point. we can we can we can tag on the special conditions requirement to remove that, the, the discussed window and, and get this done tonight. yeah. correct. if you, if you continue that and that was the solution. we still end up with a special conditions permit. right. you just make that decision 45 days from now. so

there's no no need to continue. we can get the we can get the business done tonight because i don't see us fighting over the, you know, the issue with the window or not. the issue with the window. there's no fight here. just a continuance is going to inconvenience the permit holder further, which is why i winced. by the way, i don't like i don't want to inconvenience the permit holder, who has acted so nicely because we've seen really bad behavior and this is like really great behavior. so, so what? so. but so just to avoid any confusion, you might want to clarify the exact size of the reduction of the window with the architect here so that we can we know exactly what we're going to approve when they come in for the special condition. could the architect come and join you so we can get clarity around that. and then the commissioner may get more comfortable and enable us to move, move, get around. is that around getting us to move forward tonight and achieve exactly the same thing that we would do overhead? please. not

to. sorry. yeah wolfvision. that's. that's a view i've never seen before. great. so, we're it's not a reduction of window. it's a removal of this this window and skylight at the corner of the fourth floor. how would how would you technically describe that? so that we could document it fully in a motion tonight, please, removal of window and skylight at the southwest corner of the fourth floor. it looks like there's more than one window. can you clarify? there's what's that little rectangular box to the left. isn't that a window? oh,

that window is, it's on the wall. setback so it's not that window. correct that that window is on the at the light. well, behind the it's a little confusing, by the way. the rendering is set up here, but yeah, that's a separate. okay. so there i see i see okay south. so julie let's because i'd like to make a motion for discussion. and so with mr. green's help, now that we know the detail around that thank you very much. i appreciate your we could also accept that photo if you want to circle the window. and we can just attach it to the decision. okay. could could mr. green help me with a motion that would. that's very clear removal of the window. right. that's okay. very clear motion would be to, uphold the permit with the appeal and issue the permit on the condition that it be revised to require the removal of the window and skylight at the southwest corner of the building

, with example attached tonight, correct? yes. okay. point of clarity. southwest corner or southeast corner? southwest. southwest. okay. thank you. did you did you want that submitted into the record? yes. okay. yeah. that that would be. can you circle the window and skylight, please. oh i see yeah. when we can attach that to the decision. okay. so for me that motion commissioner, which i'm pleased to make with, miss rosenberg's assistance, as always, shu. thank god. and what's the basis of them? are we going through the motion process now or other? i'm going to make that. yes, i'm going to make no. we have another speaker. so yes, we'll go back to commissioner trevino once the motion is made. yeah, i'll make the motion then. then commissioners can comment on that, that that motion base based on that, the permit was properly issued, however, the,

the permit holder is making an accommodation on, a benevolent contribution, to the to the appellants. okay. commissioner well, with all due respect to my senior colleague, i think we're on the one hand, not stretching far enough, and on the other hand, stretching too little. if we establish that the permit was properly upheld, then we we're crafting this idea of the benevolent contribution of the of the permit holder. i don't know where that stands. legally, we're assuming that that satisfies the legitimate needs of the appellant. we haven't

heard from her and we don't know. and the there are other issues that, that, that she raised that may or may not resolve that, and, and we're kind of putting the pressure on the, the permit holder to agree to this tonight, i think that we would be better off giving them even a short amount of time. we've got another we've got a hearing on on on april the 3rd, just a week away. have them take a few days to figure this out. come back on april the 3rd. give them three minutes because the continuance or or just say, did we reach an agreement or not? and then we can come back and do this. i'm just i'm just i'm uncomfortable assuming that we can get this resolved from the dais and not giving the, the, the parties the opportunity to come up with something again, they can own. so that's my that's my concern. perhaps our

colleagues and commissioner sweet can persuade me otherwise, would you like to ask the appellant whether this satisfies her, need and whether, that's what i would do just right now. she's on the. she's here virtually, because i, i think any this is this is a this is a project that the planning department says is, works under any circumstances. in fact, the project could be far grander than it is. there's been self-discipline by the architect and the permit holder to keep it smaller than it is. there's been, there's been dialog between the permit holder and the appellant resulting in the permit holders volunteerism about, taking care of those windows. i think this is just a perfectly executed thing. and

we're, we're we're going to reward that good behavior by the permit holder, with their volunteerism and listening to the appellant, to getting this done so they can get on with their project, that's my point of view. but if you would like, i would, i would support that. if you ask the, the appellant right now, does this satisfy her needs or would she like another week to hammer something else out? i think we're opening pandora's box personally unnecessarily because it's a compliant project. there's no doubt it's not even a risk of that. so but if you'd like to ask the appellant, that that would, that might do some good and satisfy yourself. so that's what i would do. go for it. go for it. or i can ask the i can ask the appellant. well if, if i could have the floor just to share my thoughts before we go too far down the path of various

motions. but, i'm not so in favor of a continuance. i agree that we're we're kind of punishing good behavior on the part of the permit holder, with further delays, so if i were to stack rank the three outcomes that i see before us, you know, obviously there's the potential for, granting the appeal, but i don't realistically see that as being in play this evening as between, denying the appeal outright, granting the appeal with the amendment or or granting a continuance, if the parties agree to that, i would i would say that the continuance is, the one that i prefer the least as between those three, i

think i think we have a good project here, that's code compliant, with, with parties with, with the permit holder. that seems very conscientious, that that has, expressed and i think exhibited a willingness and openness to, connecting with, with the neighbors. and so i'm not sure that that the, even the, the, the, the amendment, much less the, continuance are necessary conditions to, to further, changes to, to accommodate the, the preferences of the neighbors. so that's that's my position. commissioner trevino. yeah. just two, two quick points. one is this notion of punishment. it's not punishment. it's no more punishment than we didn't meet last week. had we met last week,

this would have been on the agenda. and then if we postpone it, we postpone it today. so it's punishment. no it's not punishment. and i think that's a little going too far in terms of if it's clear that we don't want to give the give the, parties that opportunity and extended opportunity to, to resolve this. and if we're, if we're going to require a resolution of it tonight, then yes, commissioner swiger. absolutely. right. we should be asking the appellant her views on whether this idea that you have presented of removing the window or whether the permit holders or architect has, has suggested that if both parties are agreeing to that, then i think that would help inform us, make a decision from the dais. since we're not going to we're not we are trying to get the parties who are reasonable to resolve this themselves. so if miss smith is on the line, if she can let us know her thoughts on whether, this, removal of the windows,

satisfies her concerns, that would be helpful to our decision . yes. hi. i appreciate the, flexibility, to remove the window, i, i think. i better understand from hearing the planning department sort of just aspects of this project and the different, accommodations or the thought process, behind, the construction, and i would just ask for good faith. i guess dialog between us as neighbors in terms of, trees or foliage or something like that, going forward, that would be i can't really speak to procedurally how we get there, but that would be

my desire. thank you. vice president lemberg. thank you. i just want to. i actually would like to hear from both parties regarding whether the specifically whether they think a continuance would be helpful in any way, because i feel like that's a really important question. if a continuance is even on the table at all, if, you know, i hear, i hear obvious willingness from both sides to work with each other, but that's not the same question to me as whether a continuance for to another meeting would be helpful would be helpful for either party. i think. so i would like to ask both of the parties if what your thoughts on a continuance are to work out some sort of agreement or if we're if you're good with us, just, granting the special condition that we've kind of hammered out here on the, on the bench, i had some traffic, can i add

something? yes, please. so, you know. so, we are, as i said, we are happy to talk about it, and see how we can, you know, think about all the concerns that you have. but as both of us, like, very busy moms, like, i spend like, two hours on this and, like, you know, and my family really want to move in to this place, as soon as possible. so i really appreciate if you understand my concerns as well, i mean, legally, i don't really i don't i didn't hear any problems, but i really want to, like, help. so if we can, like, be done sooner for even, like, time wise, both of us, like, as you said, you're like, you know, is your time that you want to have with your kid right now, right, and for me as well, i want to be with my kid and not spend too much time on this. so, so that's that's all i'm, like, adding here. thank you. and miss

smith. i agree that, you know, i don't think we want to, draw it out unnecessarily. and my only, you know, besides the accommodation, of removing that small window, again, if maybe we can discuss, again, planting greenery or or trees or something that can provide mutual privacy, and i have kids screaming at me as you speak, so, i yes, i, i understand that, so i would be open to. sorry, i can't even focus the, yeah. happy to talk about the trees. that might be, like, the faster way to do that. and i talked to david about it, like, the best, like, thing that we can use. like, the biggest thing that,

like, really makes sure that you feel comfortable. i very much appreciate that. so i, and i certainly don't want to, you know, throw unnecessary roadblocks, into a project that's already been, approved. so thank you both. i appreciate that, too. thank you. commissioner eppler, you know, i think i think that that those of us on on, on the dais have kind of forgotten that, you know, we volunteer a lot for these evening meetings, even those of us with small children and so it's not always convenient for, for other folks who to do this sort of thing. and i know that's something that i forget, from time to time as well, i think we should call the question. i, i agree with that. let's go ahead. okay so we want to hear, commissioner swig's motion, we have a motion from commissioner

swig to grant the appeal and issue the permit on the condition that it be revised to require the removal of the window and skylight at the southwest corner of the building, as identified on the schematic submitted at the hearing. this motion was made on the basis that although the permit was properly issued, the permit holder is making a benevolent accommodation to the appellant. so on on that motion we say julie, just to just to add on, it was the southwest corner of the fourth floor of the building. just adding those two words in there. thank you. southwest corner of fourth floor of the building. thank you. so on that motion, president lopez, i commissioner trevino, i vice president lemberg i commissioner epler i okay. so that motion carries 5 to 0 and i do have a question for the permit holder and the appellant, under the rules, a dissatisfied party has a right to request a rehearing.

that's why we don't issue the decision. immediately. if you waive that right, then we can issue the decision tomorrow. do you feel would you state on the record that you want to waive the right to a rehearing, or is that for me, for both of you, for both the permit holder and the appellant, yes, i'll waive that. right. okay miss samadian. yes. yes. okay. great. so we'll issue the decision tomorrow and then mr. cumbie, will talk about the process to get a special conditions permit. i'll send some instructions. okay. thank you. everyone so that concludes that matter. and we are now moving on to item six a and six b. six a is appeal number 20 4-005 martin ang versus department of building inspection. planning department approval subject property 939 lombard street appealing the issuance on january 11th, 2024 to burn special works llc of a

demolition permit. demolition of type five one story carport. this is permit number 2021 0709 4044 and six b is appeal number 24. dash 006 martin ang versus department of building inspection, planning department approval also at 939 lombard street appealing the issuance on january 11th, 2024 to burn special works llc of a site permit to erect four stories, no basement type five b single family dwelling unit. this is permit number 2021 07094046. and we'll hear from the appellant first. welcome, mr. ang, good evening, honorable commissioner, lopez and fellow commissioners and, and also julie rosenberg, okay. this this case, is really unique, one of a kind. and the is not an owner move in and it's

, speculation. all the previous buyers and owners never think about, building it. and every time there's something happening, the russian new neighbors will rush in and stop everything. but now, lately, i guess they have new people and the older have either passed away or gone like johnny hacker. so anyway, if this thing is have to go to court, i think the lawyers will take it out as if there are a whole bunch of laws and i'm not a lawyer, and i and i didn't, able to, you know, this about a thousand pages, and i know the state won in a hurry to have 82,000 units, but this one is not it, so based on the laws and, and also the city have, they don't deal with

public safety or any, any of other dust or dirt or how is it affect the school, the kids. so in court, those things will be brought out and also the, they were thinking about doing it with a 750,000. and then i complain about that now they double to one 1.5 million. but 1.5 million is still not going to be enough to build a 5000ft!s with elevator and all that. so, so what are they going to cut corners and make it cheap and make it, cut corners? okay. i will go into details because i, i'm not able to put everything together, in one. so they are building one house. it's already a house there for 4000ft!s in te back. and that's at least about 3.5 million. and they could build, total four units, so, so

they could build three units and not one big house, a monster house. it really benefit. no one benefit, not for the city. it really hurt the city. hurt the school, and they were and actually, i think the developer is not good for the developers. not a good project, so it's not benefiting no one, not the neighbors. and i want to go through some, some pictures very quickly. computer. yes. okay. yeah. so this is, the project is about half a block below the crooked lombard. so we have accidents there in the microphone, please. thank you. okay. we have accidents there quite often. and lately they have a motorcycle. skaters hundreds of them going down the hill. police wouldn't dare to do anything. and they scrape the sidewalks and everything, tire marks. and we have accidents

there, there, there are two deaths over in the last couple of decades. and one construction, the rocks fell on the worker, and he died. and anyway, so. okay. and then the street, there's only two lanes there. there's always illegal parking because if this project is built, it's going to take 3 or 4 years. it might even take longer. it might never be, going to finish. and so there are people moving. look, look at the take up the whole street. so people have to cut around them. eventually something's going to happen. some accidents and all the trees are going to be gone. the heart attacks and there were no garages up there before. and people love that garden. the open space, because you already have a huge house there. there's going to be a big privacy issue between the two houses. it doesn't matter. it's owned by one owner or two owners, the parking there is a free two

hours and the parents of the school always fighting for those spaces. it is always packed, and it's going down, and then you can see the whole school there before i forget, it just dawned on me, about about this land is 30,000ft!s. if they want to buid a school there today will cost them at least 35 million, because the land is worth 30 to 35 million. after this monster house is built, it's going to hurt the value of the land. it's going to hurt the functionality of the playground and the school. you're going to get hammer to drill. it's going to go on for years. it's not going to finish in one year. no way across the street took them 4 or 5 years. and a lot of, neighbors threatened lawsuits, so if this thing doesn't go if you go into the court, i'm sure they're going to find something. but during construction, you're going to have problems with,

drilling down. they claim they're going to drill 25ft down. that's going to create a lot of integrity, racket, the grounds is solid rock in russian hill. so so it could create a collapse of buildings, earthquake, flooding that's happening today. i mean, big high rise collapse houses get washed away or flip over. it happens, so there, the parking again and see how how, how how some people put the scaffolding. so this is going to happen constantly going to affect the children and the double park. and then you got a fire truck you're going to block up the whole street. and then you got, construction workers going in every day because there's so many buildings and houses. they're they're remodeling. they're doing something plumbing, electrical, everything, and then you got this car double parked here or

this car have. don't even have a driver. the guy parked there and run into the school. i think he left it there for at least 15 minutes. there's nobody in the car, so someone from the back would easily smash into it. eventually. might hit a kid and might hit the parent. and we got, by the way, we got maybe, 10 million people go by the street driving and walking. so they're going to see all this construction, and see how this car illegal parking, someone have to go around them. and it's dangerous. and then there's a lot of films and commercials. it's going to affect the city. going to lose some revenues from movies, from commercials. they have to cut the block, the street with the construction for four years. nobody wants to do it. and the tourists don't want to walk by there either. they're going to jaywalk across the street or, and so there's

constant, concern action and the sidewalk. see, the moving truck is in there. so you have this going on every day and then and the school playground, you've got hundreds of kids in the next four years, you're going to have thousands of children will be affected. their health might be. and it's going to bring a class action lawsuit. and it's, you know, people park there and moving things, this and then from the crooked street. so they're going to run down that hill, so see how all those cars parked there, a big truck and you got delivery construction workers fighting for the parking spot. how much time? i'll have about six minutes. right and see how this building, how ugly it is. i overheard some somebody

say some tourists from europe walking by. what an ugly building. it's hurt. the image of san francisco. cheap you have to do it for a low budget. you know, you need the 5 million to build it. okay. that's what the tourists say. i mean, if you go to italy and all the roofs are red, i mean, it's very uniform. how they how they have strict control. this is not strict control. and it's going to hurt the school value of their land. so, so in ten years, 20 years, they may want to sell it for 30 to $50 million. that how it's going to hurt the value 100. and it cast the shadow and everything. so you see how the kids and if this during construction and then after the shadow, they cannot play up to the lot line. there is no school

right up to the lot line with another building next door. not even in san francisco, anywhere i've seen in the world. so this is not they're going to lose half their playground or even not even go there. i don't think you want your kids go to school there. you could be breathing the dust and the chemicals, they already got this, house there with the facade. historical designation. they they won't let you tear it down. so that house is already. and they going to hurt the value of each other if they build a house in the front. top of privacy. even if you own both houses, you don't want to see your kids or or your guests, you know, you you want your curtains to be open, see, toilets are, you know, delivering on the sidewalk and, and so on. and. so you so there are hundreds of kids on the playground constantly, even after school. so after it's

built, they're going to it's going to be a long time. and, and that's a house in the back. it's a, it's a big house. it's 4000ft!s, so all the greeneries will be gone, and the school is 30,000ft!s, so you see the bus, they're double park going by the school bus. so? so that's dangerous when people coming down the hill, they might not see it. and that happens. and see there's another illegal, car have to go past by and this is going to happen, very dangerous during construction, and then and then you got a green parents. that's their home, their the city birds officially by the supervisors. so they they're going to lose their, one

of the heart attack. and then you have this kind of construction going on, recently. so. so this street is going to be it's going to be a nightmare. and i don't think the people realize it. and most parents don't even know about it. anyway, you have some notes. why don't you come and finish a little bit? yeah. yeah, you can take. yes. my time. we'll pause it. time? yeah. time is paused at 240. and if you could identify yourself for the record , this is miss falkenstein. sure. yeah. that's fine, if you could, fill out a speaker card after you're done. thank you. how much time do i have left? two minutes and 40s. oh cool. okay, that should be. let me try to do the quick. i've got overhead. please do you want to face forward? you. yeah better. thank you. okay. great. hi my. good evening, commissioners. my name is stephanie falkenstein,

and i'm here today on behalf of the jaqua elementary school community, joining the theme of earlier speakers. i am a parent, my son, and, husband are at home right now, and what i am reaching out about is slightly different. my request is that the health and safety of over 200 students and staff are taken into consideration when evaluating the permits for 939 lombard, we understand we've been through this process. the daca hearing the sequa that a four story building technically is meets the zoning requirements and would normally just check the box, we understand that shadows on the school yard and playgrounds are not protected, even if the students are there all day, parks have protections, but schools do not. understood, however, i will do argue for the uniqueness of this situation at the sequa hearing, we were told that there are other schools on hills such as mira loma, which actually sits on the top of a hill. so by know other schools know buildings nearby. so the

schools in reference are not remotely like elementary school, i would like to say that the positioning of the school will be on top. this building, sorry, will be on top of that retaining wall. so if you see that brown building right there, that's the little garage that's going to be demoed right on top of that is where a building with a footprint going almost all the way back to the building, you see in the back there will be there. plus it will be four stories. so it's basically like a four story wall on top of a single story wall already, abutting the playground. and it's not just the shadows. we're really concerned about potential landslide risk, we request that, basically, i'm just going back to my notes. apologies. we request that appropriate studies are conducted, whether that is a full eir study or, at a minimum, a noise study. traffic impact study, and an air quality impact report. given the, we say, the unique nature, we're over 200 students are in staff use this

facility. we all day long and that the construction will be on top of those students seconds left. oh, sorry. oh, that already lands. landslide risk, this is not. this was something that was actually noted in the geological study and also happened two blocks from this school's location. so this is not an anomaly, also, those peers are going to be loud. we are concerned about ground contaminants since the digging will be that that deep, in addition, we would like a proposed safety plan as it relates to noise and air quality. a full construction schedule, our duration project. thank you. thank you, commissioner trasvina. i do have some questions for you, miss falkenstein. i was very persuaded by in the record your your advocacy as well as the other parent parents, and i was surprised to see reference to the principal saying there were

no there were no concerns. yeah, i can speak to that because i actually am the chair of the school site council and work with the principal quite closely. i asked him about it and he said the architect came by of this building, spoke to me for ten minutes, and i didn't really understand what was going on. and i said, okay, let me know when there's construction. at the time, the principal of elementary was an interim principal, so he wasn't even in authority as a full fledged permanent principal. so kind of like a temporary. i'm glad to see you here tonight and making your presentation because to me, parent that the council's really make a difference for the voice of the school. the previous matter we just had, we spent a lot of time talking about privacy. are there any privacy issues for the children on the on the playground with a what it seems to me is a building that's going to be abutting, abutting the abutting the property. i

will say that i did have an earlier conversation. so and the architect are not strangers to me because i also am very involved. so i'm also family chair of the russian hill neighbors, and so they let me in on the design, use landing zone, use meeting and i and that was discussed the privacy because that came up from someone else and they did change the roof deck situation. but for me personally, my concerns are more around the safety of students and the safety and just the viability of the structure, because it is quite a large structure that is not going to be supported by the current retaining wall, and that to me means that it requires a little bit further, like check the box to dig in a little bit deeper for, you know, i'm learning that, you know, you can have required agents put on construction to reduce to mitigate dust and noise, and yeah, i'm very i'm very concerned. right. like, i'm part of this community and our community has spoken many times and i think they're very

disheartened by the responses that we've gotten, to date. so i had one other question, and that's you referenced it as reference in the in the materials about shadows and the difference between a, a shadow on a school versus a shadow on a park. i'm more interested in is there actually going to be a shadow and the principal all in one of the documents said this would not affect the after school, program on the playground, having the shadows. so can you do you are you familiar with that? i'm interested that he said that because i. i'm surprised if principal sanchez said that, but we actually did request a shadow study, which was submitted. i think it is in your in your briefing. it's like a 246 page packet. i understand, but i think it's actually in there and it does show a shadow. we're actually a late start school. so when the shadow does hit, it's actually going to be a impacting the school day because the school day itself goes until 345

and aftercare goes till 630 on site. thank you. you're welcome. thank you. okay. thank you. we will now hear from the permit holder. good evening. excuse me. good morning. good evening, commissioners tara sullivan from ruben junius and rose here on behalf of the project sponsor, mister keene, the holder of the two mentioned permits the appeal before you this evening is for 939 lombard street. we request that the board deny this this this appeal and uphold the issuance of the permits. the permits, which are for the demolition of a carport and construction of a residence at the front of the property, conform to the applicable provisions of the city's planning code and design guidelines. this is the third time the appellant has appealed city approvals in an attempt to stop the project solely to protect his private views. he has not provided any legitimate grounds on which to base the appeal or overturn the permits. the project has undergone multiple reviews by city

agencies and bodies, which have approved or upheld the project at every step of the way. while we respect the appellants concerns, there are no unusual circumstances that warrant granted these appeals, nor is there any indication that the project would have an extraordinary impact on any public or private interest. i would like to note for the record, that the adjacent yukiwo elementary school itself has not filed an appeal for this permit, and the appellant is not a representative of that school much. while much of the appellants arguments focus on the alleged impacts of the project would have to the school, the school itself has voiced no formal objection to the project. as detailed in our appeal brief. i'd like to provide a brief summary of how the of the project and the path it has taken to get here before this commission. mr. keen is seeking to demolish a 512 square foot carport at the front of the property and construct a new single family residence that will be 40ft in height. this property is unusually long. it is 137.5ft deep, with a single family house at the rear of the property. after completion, the property will feature a two home lot with a code compliant shared

rear yard of over 34ft wide. the planning department reviewed the project and after a few revisions to address some privacy issues to the school, sent it out for 311 notice. in april of 2023. in may, the daca was filed by the applicant by the appellant. the requests raised several of the same issues that that are present in the present appeals, including temporary construction impacts and neighborhood character concerns. planning staff found that the project complied with the planning code policies and the residential design guidelines. further staff noted that the project would create a condition that is similar to the adjacent neighbors. it is four stories in height and aligns with the front and rear walls of the adjacent street fronting property, which happens to be the appellant's house. ultimately the staff found that the project was compatible with neighborhood character, noting that construction impacts were not within the purview of the department to regulate. on june 29th, the planning commission heard the dr. and voted to uphold the permit the project and not take dr. as a part of the project's approval. it also underwent ceqa review, extensive

ceqa review, and it received a class one and class three exemption. the appellant filed a sequa appeal on july 28th to the board of supervisors. the appellant raised several issues, such as the potential hazard of the retaining wall construction, impacts that would generate noise, dust, traffic and other disturbances, the loss of animal habitat and greenery, shadow and compatibility with the neighborhood. as with this appeal, the appellant spent much time speculating on possible impacts and negative consequences of the project and said at the time the only remedy was to deny the project outright . the board of supervisors heard the appeal in september of 2023 and at the conclusion of the hearing, voted unanimously to uphold the ceqa determination and approve the project on january 11th of this year. the permits were issued by dbe and on january 15th of this year they were appealed to this commission. moving to the merits of the appeals, the appellant raises a variety of issues. issues related to the ceqa exemption, such as the structural issues such as the retaining wall, disturbance to

wildlife, shadow and the like, are not under the jurisdiction of this commission. the board of supervisors already opined on those issues. in september of last year. the appellant does raise issues with respect to neighborhood character. he says that the project's modern, simple, ugly design house with cheap, unhealthy building materials will be a laughing stock, hurt the image of san francisco, and drag down property values. we do not believe that these serve as an adequate basis to grant the appeals, as these are highly subjective opinions. further the appellant has not provided any specifics about how the project does not meet neighborhood character. department staff reviewed the project for design and found it was compatible with the planning commission, agreeing at the daca hearing. the appellant has offered no architectural alternatives or design suggestions. he simply does not want to see a new house on this property. i would like to point out a mistake in our appeal brief. we mistakenly said that mr. ng had constructed the second building on his lot in the 1990s. rather, those two buildings already existed. he merely subdivided them and separated it. we apologize for the error, but it doesn't affect

the conclusion that the project here before you is similar to the conditions in the adjacent properties next door. the appellant's other concerns, such as those relating to property values and the respondents budget and financial well-being, are not within the scope of permit review and do not provide an adequate basis to overturn these permits. so in conclusion, the appellant's concerns have been considered several times by the planning department, planning commission and the board of supervisors. each of which found the project supportable and approved it. while we again appreciate and respect the appellant's concerns, there's nothing in the record that demonstrates the granting of the permits will adversely affect the public welfare or any interest of the public, we don't believe that there is any basis to further delay this project, and we respectfully request that you uphold the appeal, there are a few issues that have come up, regarding in the testimony from the appellants team. i do want to mention that there are other schools, and i do have images of other schools throughout the city that are very, very dense neighborhoods such as this

property. and i can show them to you if you would like, as, as regarding the seismic load and seismic structure of the wall, there have been extensive studies done. this was discussed at the board of supervisors, i'm not a detailed expert on this, but in short, there are going to be peers that are going to be constructed 15ft below the length of the adjacent wall. so it's going to go 15ft below the house is going to be sitting on those piers. the loads of those piers, it's going to actually displace and remove some of the pressure that currently exists on that retaining wall to the school. so in essence, based on all the structural facts that we've been, you know, we've done that we've gone through with dbe , that there are no risks to the retaining wall, no other risk for seismic, you know, degradation of the property, and we can go into more detail on that as well. but again, we respectfully request that you uphold this appeal. i'm here. the property owners here. the architect is here to answer any questions that you may have.

thank you. thank you. i don't see any questions at this time. so we'll now hear from the planning department. once again, tina tam for the planning department, 939 lombard street contains two structures. an existing two story single family dwelling at the rear of the property and a two car parking garage at the front, located in the rm one zoning district and a 40 x height and bulk district, the permit is to demolish the existing two car parking structure and construct a new four story, single family dwelling at the front of the property. the appellant is martin ng, the adjacent uphill neighbor to the west at 949 and 953 lombard street. martin is concerned about traffic hazards as well as noise, dust and

chemical impacts during construction to nearby residents and students. at icu elementary, you is, the school on the downhill side to the east. martin also believes that ceqa review the california environmental quality act was not properly or adequately conducted for the project. martin's proposed solution is to deny the permit. the planning department supports the proposed project as it complies with the planning code and the residential design guidelines. the proposed dwelling is within the buildable area of the lot. it does not trigger any variances. the proposed dwelling is four stories in height and aligns with the front and rear wall of the appellant structure. the proposed dwelling on the subject property would create a condition that is similar to the adjacent neighbor to the west, including the appellant's property where there's a building in the front and a building at the rear. as you

heard from both parties, martin did file a discretionary review request. his issues in his request are the same issues as in this permit appeal at the june 29th, 2023 planning commission d.r. hearing, president tanner noted that she didn't love seeing a large, single family dwelling during a time when we're experiencing a housing crisis. but she acknowledged that the project is code complying, and there was already sculpting of the project to be more compatible with the neighborhood without any further deliberation. the commission voted 4 to 2 to not take dr. and approve the project as proposed. and as you heard again, shortly after the planning commission hearing, martin ng filed a sequa appeal to the project and that was heard before the board of supervisors at the september 12th, 2023 hearing where the board of supervisors voted 11 to 0 to deny the appeal and uphold the planning department's secret

determination that the proposed project is categorically exempt and no further environmental review is required. i'm going to go ahead and just briefly go through a bunch of graphics to orient you to the project and project site. so this is a block and lot map of the property, the subject property is in blue, and the appellants property is in red. and. this is a sanborn map. showing again the existing single family house at the rear of the subject property and the two car garage at the front. and again, this is the appellant's property to the west.

this is an aerial photograph, looking south, you see the subject property right here. you can see the, the septic dwelling at the back. you see that the appellant's property is on the right hand side. that's separated by a nine foot wide driveway, that takes you and gives you access to the building at the back. and you see on the left, that's on the downhill side of the street. here's another aerial photograph showing, this is looking west. you see yakubu school, at the bottom, the subject property in the middle and the appellant's property, at the top in the same photographs, you see the number of windows the appellant has on

his building and this very large size balcony that looks out over the little two storey garage that's on the on the subject property. this is a, street view looking at the two car garage that's proposed for demolition. you see a little bit of the appellant's property on the right. this is a view at the bottom that's looking uphill on lombard again. you see the two car garage on the left hand side of the of the street sidewalk and the appellant's property at the top. this is, a street view looking down on lombard street, you see the two car garage, and then you see a little bit of, the beginning of the, the sort of the yard space that's below

grade for yiwu. these are elevation drawings of the of the subject property that shows the existing condition at the top with the two car garage. you see part of the existing dwelling at the back peeking up. and then at the bottom elevation is the proposed project, you can see from this drawing the building that's four story, is consistent with the other four story, which is the appellant's property, and it steps sort of down along with the topography of the street. this is a west elevation showing the existing condition. this is the little garage that you see and the appellant's property that, that's in the background with all his windows and balcony

. this is the new elevation of the west side, showing the new single family that's being proposed. and you see part of the appellant's building sort of in the background. these are renderings of the project, this is looking slightly uphill, of the subject property with the appellant's property to the right. and this is facing directly, from the street. given the project is code complying, there are no entitlements or variance needed and has gone through a series of design review with our departments staff architect. the department respectfully asked that the board deny this appeal and uphold the issuance of the permit on the basis that it was properly issued. that concludes my presentation. i'm happy to answer any questions. thank you.

commissioner swig, two questions, please. one, it was referenced that in discussion with planning department. that planning department, suggested that, changes, to the subject property for the purpose of privacy with regard to the elementary school, can you, just tell us where those changes were done that resulted in this plan? yes. thanks for the question. i, i might have to bring up the architect to kind of answer that, but i believe it's this elevation that's adjacent to the playground that went through a number of redesign to minimize the number of openings, windows, you can tell there's landscaping on the balcony so that there is the ability for someone to. i'm not sure whether these are occupiable. i think there might be roofs, i like to have the architect confirm that, but the, the consideration is that limit

the number of windows as much as possible on this elevation taken into remove or set back any sort of rooftop decks or balconies. so there is sort of the minimal minimization of privacy impacts to the school yard. at your suggestion, the architect can come forward to assist you in answering that question. then i have one more question. curtis hollenbeck, the architect. so we after we met with them, we made a few changes. we brought all the window sills up to five feet so a person standing could still see out, but they wouldn't be able to see down along that property line. we pulled the roof deck further off the property. the fourth story, we cut back an additional five feet, originally we had an elevator and a stair penthouse that went up to the roof, martin's building does have a huge roof deck in a penthouse, but we were removed. the elevator and the stair penthouse

. when we did meet with the russian hill dwelling association, one of the members had previously lived across from the schoolyard, and he took a little bit of fence to the privacy because he said he could see into the schoolyard and he did not feel like a villain. we respected their their request for their privacy, but we also felt like, we don't. and somebody isn't inherently evil because they can see into a public space or a playground, but thank you, thank you, one more question, please. can you fill out a speaker card, please, if i may make one? we also added our green roof decks, to help also camouflage the roof deck. thank you very much. curtis. curtis, can you fill out a speaker card so we get the spelling of your name correct? thank you, same question i asked in the last hearing, did they max out on this building in your opinion, or could it have been

an even larger structure? i believe it's pretty close to the maximum build out. again, there's a structure in the rear. they have to maintain the amount of open space between the buildings. the, the buildings, all around this property are pretty maxed out. they're very dense. you have a lot of multifamily buildings. many of these are four stories in height, it's within context, we believe, with the neighborhood character, they did reduce the size of their penthouse and they that was something that was permissible by the code. and that's not part of the project anymore. okay. so there's nothing in this project that keeps you up at night. i'm sorry. i'm sorry. there's nothing in this project that's keeping you up at night. i don't think so. all right. thank you. okay. i don't see any further questions. so we will now hear from department of building inspection. good evening again,

matthew green representing the department of building inspection, there's two permits before you here. one to demo the carport and then replace that with a four story, single family dwelling, permit was originally filed in july of 2021. it's been reviewed by all the relevant departments, including the planning department, derby fire, dpw, and puc. permit was approved in december 26th, 2023, and finally issued january 11th of this year, there's been concerns about the construction. i just like to add there inform you of what the requirements are for the demolition and the excavation. so, during the demolition, they have to water down the construction areas and make sure you provide enough water to keep the dust. to a minimum. and during the excavation, they have to mitigate all dust, clean the streets daily. and they also have to use dust enclosures, dust enclosure curtains and dust collectors as necessary to

control the dust. so there are requirements in the building code to keep the dust in the work area, i was concerned about if there's a concern about lead paint for the demolition, it has the same requirements that we mentioned earlier. old work debris has to be kept in the work area. they have to prevent all migration. since this is also located near the school, the san francisco health department would be involved as well because of the children. so there's a special program with the health department to mitigate the lead exposure to children, there's also concern about the construction hours. i'll add state law allows construction from 7 a.m. to 8 p.m. seven days a week. that being said, i will say the building permit has been properly reviewed. it's code compliant, we recommend denial of the appeal and uphold the permit, once again, this is a site permit, so no construction will begin until the, construction addenda is issued and approved. i'm available for

any questions you may have. thank you. commissioner swig, we've had the discussion about, hillsides and slipping and potential landslides and stuff like that. what would you, in this case, where it is on a hill where a weight is clearly being added to that hill with the addition of a significant building, what does the fbi do to assure that? we've heard we've heard about the pilings going in in testimony, what does ppe do to protect the children next door at the school? what does the dvi do to protect, for that matter, the uphill neighbors from, a landslide that might occur, and what what?

well, what what what is the what is the procedure for assuring ensuring that the retaining wall will be supported and that the neighbors uphill and downhill will be protected? well, i, you know, just add this is a very hilly city, building on hilly lots is nothing new. right. so there'll be, the structural addenda hasn't been approved yet. it still goes through approval. so a lot of times they do, for the uphill lot, they'll excavate in sections, pour in sections so you don't undermine, all at once so that you take out one section for the concrete, then that's supported. then you take out the next section, pour the concrete there, take the next section so you're not doing it all at once, for the downhill lot, i mean, it's, it's in the contractor or the developer's best interest to do this as carefully as possible so he doesn't, bring any liability upon himself. so that's understood by all all construction projects. yeah. i

bring the subject up because one, i wanted the public to hear it, too. i want the testimony to be on the record and, and, and, and three it was it seemed to be the, the only solid potential issue that i heard in the appellant's brief, that was something that was a mechanical or a. a solid metric, let's say. so. so it's it is your view or there are protocol. are there is it your view and are there protocols in place to, alleviate the concerns of the up uphill and downhill neighbors from any slippage on the hill from this construction? is the question. yes. it just this normal construction practices that will be maintained. i think it's more

concerned with the down. you're more concerned with the downhill, right. the school rather than the uphill. so you know, those piers will be dug, individually. they're going down to the bedrock. that's to prevent the full, full weight of the, you know, matte slab construction going on on that, on that soil, preventing the surcharge on the retaining wall. right so, i mean, that's like i said, the full concern drawings haven't been approved yet. so but just based on what i've heard and seen, that's why those piers are going down to limit the pressure on the school's retaining wall. thank you. okay. and we have a question from president lopez. thank you. he's having technical difficulties. that's i have to physically, raise my hand like we did in the old days, mr. green, i'm also focused on the landslide risk, let's call it, could you just

give us a little bit more color? i know that this is a site permit and a demolition permit. we don't have a building permit in front of us. obviously i would imagine that the reviews that you just described would not end with the demolition permit. and would continue and also happen with a building permit. but could you just give us a little bit of color on that ? well, so this is this is a building permit, just the site permit section of it. right. and then each construction addenda, you have a structural addenda, you'll have the architectural addenda. there might be other landscaping addendums. you go through different separate approval process. the site permit is what's appealable. so that's that's what's before you today. but but the like i said, no construction can begin until the construction to, until the first structural addenda is issued. and that'll go through extensive review by dbe engineers and will be designed by the private engineer. thank you for that. for that clarification. so, so there would be if i'm hearing you

correctly, there would be, that review taking place at this stage. and then with it as, as, as elements of the structure, you know, get those addenda submitted and approved. that's an ongoing review for, for those types of risks. is that correct? correct. okay. thank you. okay. thank you. i don't see any further questions. thank you. so we're moving on to public comment. is there anyone on zoom who would like ■to provide publc comment? please raise your hand. i don't see any public comment. so we're going to move on to rebuttal. mr. ng. yeah, you have six minutes in rebuttal, six minutes for 16 minutes and 16 minutes. but yeah, you had 14 minutes before you have six minutes now. anyway i'm 70 years old and i, i have no way of i have no heirs and i don't have

kids going to school. okay. and i do plan to donate the building, you know, even the city of san francisco could come and get it. okay so anyway, my building is not right. next to the school. their building is they have zero lot line. okay as i, as i said, this is unprecedented. okay and this is a public safety, and i think the only way is, is the court going to go the court the court is going to take care of that public safety issue, because it's not the city and it's not the planning department, and this is speculation. okay. so let's look at common sense, okay. public danger. there's liability for the city, from the children and the there there are companies who take the medical exam for the children today and examine them after the construction and see what

happens. the mental capacity, the intelligence, disability and health. there's no way they can stop the dust and dirt. i've been i've been into enough constructions, okay. and in this construction might never finish because of the construction costs and the financing costs and then you might have bankruptcy and then. and in the middle of it, if the ground breaks and somebody's going to file a lawsuit and stop the whole construction, and that happens and you can go on for ten years, so the permit fees and everything and the city attorney, and the lawsuits is going to wipe out everybody. and this project, is it probably is not going to make make economic sense for the developer, not for the city. and it's going to walk into more traps. and it's good. you're going to have 100 million tourists going to see this ugly building and the construction inconvenience. okay. and the

steep hill, there's no changes and, and then a 9.0 earthquake could wipe, wipe, wipe out the building. okay and the san francisco, owned this valuable piece of land. i would protect it. and try to sell it, you know, for 40 million later, with this building, it's going to hurt the value. at least wipe out a few million. okay and the zoning. is not just by zoning. you know, there are other factors, and, and the sequel was being skipped, based on the recent law and past, and did put an interim control stop. the construction at all period, and then it expired. and then the governor. and so that's what happened today, and then, so there, there don't forget all other schools building are very close, but they were built 100

years ago. my, my building was built 100 years ago. so but today things change. so you got to think about the kids and, and there's going to be an endless lawsuit. it's going to be, be a class action, and i'm not going to be here. so i'm not going to benefit one way or the other. and i'm not going to be living there. i, i would like to go there nursing home, you know, but, you know, you can't climb the hill and climb the stairs. and in the biggest danger during the construction, the school function will not going to be able to function 100. it's like lost half the value of your home and the school. they're going to get a hammer. hammer and the drill and the you know. well i know that and the children are not going to play up to that and they're going to lost half the function, the school. and i don't think you want your kids to go go there. and then after construction and, and the land

is lost value and the school function and privacy and everything and the shadow, the children need sunshine to, you know, and then the, the risk of the unfinished building is very high because of construction costs, construction materials coming from china of, overseas. they cannot get here with a few missing parts. the building cannot get, cannot move in. if that building is on the market, you're going to have homeless people break in, like san francisco art institute. they have to kick out maybe 100 people every week. so this house is not going to be any different. matter of fact, there were homeless there a few days ago. we have to call the police, so the and the building department and, you know, the fbi have been on it for years, and i and then there were there are some inspectors i know they

didn't i don't know why the net worth is over 10 million. you know, and then the developers have not dealt with the school. they ignore it and they have never talked to me. then they the russian hill asked them for little. they just changed a tiny bit, they haven't changed. they they they they don't need to build a big house like that. it does not benefit the rich. it does not benefit the poor. it does not have affordable housing. it will hurt everyone. it will take away the workers to do the do the affordable housing, there is no gain for the city before and after the project. i think the land is, is, is the, is the light the end of the tunnel is worth, you know, a lot of money, be patient and stop this construction. thank you. that's time. thank you. okay, okay. thank you. i'm sorry. the time is up for him.

okay. we didn't see a hand up when we were at public comment, so i called out president lopez. did you want to allow it or. no we did call out, and we waited. so? so let's. yeah let's let's, let's let the rebuttals go, and then maybe we could do a brief second call for public comment before deliberations. okay. thank you. thanks thank you. tara sullivan reuben and rose again on behalf of the permit holder, several items. i just want to again reiterate the project is code complying, it's going to undergo as as dbe representatives have mentioned, rigorous dbe review for seismic excavation and whatnot. and i just want to mention that there are two levels of review for the seismic issues here. the first one round went under sequa,

where there were extensive geotechnical reports prepared and analyzed by the department, things such as the lateral lateral spreading, densification in landsliding faults, earthquake shaking and liquefaction were all studied and analyzed. particular to this site, the geotechnical report found that with all the appropriate required code issued code requirements from dbe that there will be no issues related to any adjacent properties here regarding those issues. the second round of review will happen when the permit is actually going through the more structural, detailed level of review at dbe that the project is located on a 25% slope. it's not within the slope protection act, but it is within the 25% slope, which requires, additional and, inter-departmental review. so there can be peer additional peer reviews of the, the drawings and the studies to make sure that all the structural issues related to this building,

the piers, the adjacent properties, liquification everything is done according to code and to the highest level of safety. so there's already been analysis done of all these issues. there is going to be an additional, detailed, very lengthy multi-month process happening at dbe when the permits get in front of them, all the other environmental issues regarding shadow and whatnot were covered in sequa. there was a shadow analysis done on this property. it showed a some shadow in the corner and the afternoons, as board of supervisors found that that was acceptable and approved the project, i have photos of other schools that i will just because i have them and it keeps coming up. i'd like to get the overhead, please. there are many schools here in the city that are located in very dense neighborhoods. let me try and zoom in a little. i can't zoom in. this is the gordon law school at 950 clay street. oh, yeah. no worries. thank you. it automatically focuses okay, you

can see the school. it is surrounded by residential development. this is the john yee chin school at 350 broadway. right here. very dense neighborhood with adjacent properties around it. this is the alex alice fong youth school on 12th avenue, out in the avenues. and you can see there's residential development directly abutting it. the chinese immersion school on waller street and, also surrounded by residential development. those are but a few schools that are located in dense neighborhoods such as this. the conditions here, the property, the project will have a minimal impact to the school, and again, i just respectfully request that you deny the appeal and uphold these permits. thank you. thank you. commissioner swig, i just a short question, although i'm probably asking for redundancy when the board of supervisors denied the appeal, on the sequel

report, they had the opportunity of reviewing all of the, the, the reports with regard to landslides that the that that whole section and they also had the entire report, with regard to, privacy, etc, etc. etc, etc. basically all of the all of the issues that the appellant brought up to us tonight with regard to the seismic stuff and the geo stuff and all that and the privacy issues, those were all in the sequel report, which was evaluated by the board of supervisors and, and from which they denied the appeal. correct. you are correct. they had the reports and the planning department, i think i included it as an exhibit. did an extensive report and discussion of all of those reports as you answer my question. thank you

very much. commissioner trasvina has a question. yeah. in in your in the future, development of this property and anticipated interactions with the san francisco school district, we also be in communication with the school site council. yes. actually, the project sponsor has already been in contact with them. there was outreach at the beginning of february asking for an update on the construction. and he said that, you know, he will reach out when construction does begin. thank you. thank you. i don't see any further questions, so we'll now hear from the planning department. once again, tina tang for the planning department, i don't have too much to add other than perhaps redo some of the notes and comments that the department , presented at the ceqa appeal at the board of supervisors hearing, this is in regards to construction impacts.

construction is expected to take approximately 12 months, with the proposed structure being erected and exterior finishes in about 14 weeks. the project would be subject to the dust control ordinance. there are well established best practices for managing dust during construction. typically, some combination of water and barrier measures. the project sponsors construction contractor would be required to use these measures as appropriate. in order to minimize dust from construction. construction noise would be perceived as an annoyance to those students, and teachers of the school as well as nearby neighbors, but noise from construction of an infill single family residential building in an urban setting of san francisco would not constitute an unusual circumstance. the project construction would be temporary in nature and would not include excessive amount of excavation, the project construction would not cause the school to close and will not preclude the use of the outdoor

area. and as you heard from, building chief matt green, there are stringent permitting regulations and requirements related to coordination of construction activities within various city agencies to ensure that there are minimal, feasible levels of disruptions to circulation, public right of way, and public safety, in regards to commissioner swig's question, other topics that were covered as part of the ceqa appeal hearing included geology, shadow and hazardous materials. i have no further comments other than to go ahead and recommend that you deny the appeal and uphold the issuance of the permits. thank you, commissioner swig. nothing further. okay. thank you. nothing further from dubai. and so we will take that caller, natasha, please go ahead . you need to unmute yourself. hi. thank you, i'm natasha babayan, local resident, parent

at for 11 years, teacher for five, but my, a couple of comments. the first is my understanding of the geologic study that was done was that it was not based on architectural drawings, rather it was a general review, so their opinion is not based on architectural design or the building being four stories tall, so that's a concern, the second is that i strongly believe that conditions needed to be added to the permit, including proposed proposed safety plan that takes into consideration consideration in the usage of the school yard, also would like on record consideration of noise during drilling. piers, this this is certainly an unusual circumstance in this neighborhood. that school has stood there for 40 years. there has not been anything like that, no massive four story single family homes, have gone up

anywhere near that school which has stood there for 40 years. this is absolutely an unusual circumstance. and the noise would be prohibitive for students who are learning. you're talking about the entire school day, plus the after school program being impacted. so so, those are my comments. thank you, thank you. so, commissioners, this matter is submitted and we have two separate permits that are appealed. thanks, let's start with commissioner swig, i have, no issue with this permit, the planning department has fully vetted it. the planning department had the opportunity of doing. doctor did not find merit, and even doing doctor, a sequa, a sequel report is unusual for us, and unusual for

a project of this size, the board of supervisors had the benefit of looking at that, that secret report. and, via the appeal. and denied that appeal. so so, the planning department has fully reviewed the project. the project made some suggestions. the project developer made adjustments to the project. according to the recommendations of the planning department, we investigated fully in our conversations this evening the issue of, the failure of the of the retaining wall and the hill and the issues of preventing that from happening. i had satisfactory

answers on that, and again, the secret report has extensive studies and i know that there were based on history, there will be more. so, this project is compliant. we will be overruling the recommendations of the planning department. we would be overruling the recommendations of the board of supervisors, and we would be overruling the recommendations of the planning department in general. so i don't feel like doing that. and so i don't find any merit in supporting an appeal. excuse me, i, i, i do generally agree with commissioner swig. i do. certainly have sympathy for the school community next door, this is not the thing that you wanted to see have happen there, but it is a thing that does happen at school sites throughout the city

, i know that at my own sfusd school site, there is directly adjacent to it a 40 foot plan. that's been submitted, and it will look out over our lunch yard. and it is that thing i know the other elementary school in our neighborhood, star king. it's a quarter of a block away from a block size like 300 unit housing development. that's an order of magnitude different in terms of impacts and peering and everything else is directly across the street from what's going to be another version of that in several years. and so it's there are mitigation factors that are used because this does happen in the, in the city in different places. and i do accept that it's unfortunate that it's happening directly next to your school, but as, as commissioner swig i think eloquently pointed out, the process to evaluate whether it meets the standards and the code has has been fulsome to this point. and as we get to the actual design, components,

architectural components that still need review by dbe will continue to be fulsomely reviewed because i don't think dbe wants to make a mistake on this one either. so thank you to everybody who spoke tonight. i share commissioner eppler's. view on the unfortunate miss, for the school community. it's, you know, undoubtedly an unfortunate situation for the students and the teachers and the and the parents and the whole community. but i'm not sure that there's anything we can do about it necessarily, other than the several different types of processes that the city representatives from planning and dbe tonight have laid, laid out. that will happen. anyway, i overall agree with the with with the outcome here. i don't see a basis on which to grant these

appeals tonight, and for that reason, i will be voting to, to deny both of the appeals. however, i want to take this opportunity to soapbox a little bit, in a way that i think might be a little bit valuable as one of the very few, stylish, queer san francisco historians with a formal position in city government, i if this was going up next to my house, i would protest this, too. and it's necessarily necessarily speaking . there is no accounting for taste in permitting processes. however, there is accounting for taste. if you want your neighbors not to hate you. and i would really like to make a plea to the developer who has developed projects before and probably will after this as well. this is a city full of edwardians, victorians, art deco art nouveau, beaux-arts, spanish, mediterranean, modernist, mid-century, streamline moderne, lots and

lots of different types of architecture. we need lots more of that, and if you were to build overall what this is, is that if you make an attempt to blend into the neighborhood, and russian hill is one of the great neighborhoods in san francisco as far as architectural heritage and diversity, if you make an attempt to bless. into the neighborhood and blend into the surrounding buildings, you will find less pushback from from the community around you. and i. i felt like i needed to say all that tonight. all that said, i agree with what miss sullivan said. legally speaking, i agree with what planning and dp said. legally speaking, i don't think there's any basis to grant this appeal. i just wanted to say that thank you. i thank my. fellow commissioners. i thank the parties and everyone who's who's participated in this hearing. we've heard a lot of objections to the building here,

most of these objections are properly not before us. they are matters that as as as commissioner swig recited matters that dbe. matters at the board of supervisors and other places and they have been addressed. i do believe, though, that, the, testimony of. the president of the school site council is critically important here and going forward, as i believe this this development is going forward, it's critically important both for the school district and the school council to be in active communication. with the developers and the property, the, the permit holder , and vice versa, the school district has got a lot going on. they've got a big debt that they're facing. i would be as, as as mr. ng points out, the value of the, of the property of at, at equal. they're looking at closing schools. they're looking at, disposal of properties. this

is one where this could have an impact on the school. that's not our issue, our issue or all the things that that we that some of the things that we have talked about, some of the, some of the things we've talked about are not our issue, but on this one, i would just encourage the permit. the permit holder and the owner of 939 lombard and everybody working on this to work closer with both the school district and the school site council, there's this is heavy parents and particularly the moms are always asked to do the heavy lifting and in this case, there's no greater steward for the children and the community than the school site council. nothing against the principal of the school district. they've got a lot going on, too. but i think that's going forward both for the for the reasons of, of, of neighborliness as well as ultimate, doing the best we can to protect, student safety and well-being, i. would encourage

that to occur, but i will vote to with my colleagues on this matter. commissioner swig, you want to go first? no, please, first of all, excuse my lack of sensitivity about the schools. i do have the same sensitivity as my fellow commissioners about the schools. i just was into the metrics of the legalities, what i would like, either from planning and or dbe if we deny the appeal tonight, just for the comfort of the community, for of the representatives, the, the speakers who talked about the interruption to the school, are my fellow commissioner who talked about design issues and sensitivities. obviously, we're not in that that point yet, but can you give us a calendar if we were to deny the appeal,

tonight, what comes next? when does that when might that come in the form of further hearings. so the feedback which was suggested by, my fellow commissioners, might occur. or is the site the site is not the building permit, is it? who wants to who wants to talk about this? this is this is for the comfort of the neighborhood, the community. clarification just what happens now? i don't think there will be any other hearings if you deny this appeal. that's what that was. my suspicion. okay okay. thank you. right. so. so, where does, mr. green, since you're up, commissioner trasvina made a good point. all the commissioners made good points, with with with issue to the feedback from the neighbor, which is the school, since that

seemed to be the focus of discussion and concern from my fellow commissioners, where where is where is the opportunity for the, the school to be concerned and show concern to, planning and dbe about the health and welfare of the students and the and that related community. well, once construction starts, if they're not following the proper, you know, dust mitigation measures and lead paint measures, you can file a complaint with dvi and we'll follow up. also, since it's like i said, since it's, located next to a school and there's children involved, the health department would be involved, would be interested in any migration of lead paint. yeah. because as i was as i was listening to my fellow commissioners, i, i many years ago, i did the same thing. we

had a site permit and i said, okay, we'll get back to this when the building permit comes. and i was corrected, by scott sanchez. at that point. au contraire, mon frere. this is it, this is it. so i'm hearing listening very closely to my fellow commissioners and their concerns, and i just wanted to make it very clear to them, that which i was reminded of by myself that this is the this is the last shot on on this permit, so. correct. if there's any revision permits as the project goes on, those can be appealable as all as well. but there's that doesn't necessarily mean there will be any revision permits. okay. thank you very much for that clarification. i'm sorry for the interruption, but i thought it was appropriate. no need to apologize. thank you. yeah, i share an echo. the comments of my fellow commissioners, and thank, the

appellants, for the positions that they presented, before us this evening, i would encourage you to connect with mr. green here, so that, if as much as, we, we understand that the developers are completely incentivized to follow the dust ordinance. and all the safety measures that, that the dbe, will will monitor with the construction, it doesn't hurt to have another set of eyes to, to make sure that those procedures are being followed and that, the safety of, of the student community, and frankly, the, the broader community, is, is being preserved, every step of the way , and also echo, the, the suggestion that the communication remains strong with, the school site, the

district and the, the parents association, with that, i will make a motion to deny both, both appeals on the basis that the permits were properly issued. okay. thank you on that motion, commissioner trevino i vice president lundberg i commissioner eppler i commissioner swig i. so that motion carries 5 to 0 and the appeals are denied. and that concludes the hearing. thanks everybody

>> [music] art withelders exhibiting senior art work across the bay for 30 years as part of our traveling exhibit's program. for this exhibits we partnered with the san francisco art's commission galleries and excited show case the array of artist in historic san francisco city hall.

>> [inaudible]. call me temperature is unique when we get to do we, meaning myself and the 20 other professional instructors we are working with elders we create long-term reps i can't think of another situation academically where we learn about each other. and the art part i believe is a launching pad for the relationship building:see myself well. and if i don't try when my mom again. she may beat the hell out of mow

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support the program. because i think ida elder communities don't get a lot of space in disability. we want to support this program that is doing incredible work and giving disability and making this program what supports the art and health in different way bunkham art as a way of expression. a way of like socializing and giving artists the opportunity also to make art for the first time, sometimes and we are excited that we can support this stories and honor their stories through art. we hope the people will feel inspired by the variety and the quality of the creative expressions here and that viewers come, way with a greater appreciation of the richness what elders have to share with us.

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