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>> good evening, and welcome to the december 8, 2010 meeting of the board of appeals. the presiding officer is tanya peterson. joining her is kendall goh. to my left is the deputy city

attorney who will provide the board with any needed legal advice this evening. i am sent via bornstein, the executive director. -- i am cynthia bornstein, the executive director. at an audience, laurence kornfield of the department of building inspection, scott sanchez, the zoning administrator, it will also be representing the planning department. we also have carla short with the department of public works. at this time, if you could please go over the meeting guidelines and to up the swearing and processed -- swearing in process. >> the board request that you turn off all phones, beepers, and pagers so they did not

disrupt the meeting. appellants, permit holders, and it apart and responders have seven minutes each to present their cases and three minutes for rare bottle. people affiliated with these parties must include their comments with in these time frames. members of the public were not affiliated with the parties have up to three minutes each to address the board and no rebuttal. members of the public who wish to speak on an item i asked but not required to submit a speaker card or business card to board staff when you come up to the lectern. speaker cards and pans are available on the left side of the podium. we also welcome your comments and suggestions. there are survey forms on the podium as well. if you have questions about a rehearing or rules or hearing scheduled, please speak to board staff during a break or after the meeting or call the board office tomorrow morning. the board office is located at

1650 mission street, room 304. this meeting is broadcast live on san francisco government television, sfgtv cable channel 78, and dvd's of this meeting are available for purchase directly from sfgtv. at this point, we will conduct the swearing and process. if you intend to testify in any of tonight's hearings, please stand, raise your right hand, and say i do after you are sworn in. do you solemnly swear or affirm the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? thank you. >> thank you. president peterson and members of the board, we have one housekeeping item this evening, item number 5c, a rehearing request regarding the property

at 10 lundy lane. an appeal has been filed with the board of supervisors and just this afternoon we received information that appeal has been deemed a timely and will be heard by the board of supervisors on january 11. that means it means to move off of the board calendar until after january 11. i wonder if the parties for that matter are here if they could come forward? any representatives? president peterson: let's wait until its regularly scheduled time. >> ok. and there is one other item, deputy director kornfield is raising a permit penalty,

consenting to reduce the penalty to two times. commissioners, i don't know if you want to take this as a housekeeping item or if you want to hear the item. president peterson: i suggest it is a housekeeping item. >> is mr. snyder here? >> yes. >> if you could call that item and we will take public comment and the board will take a vote. >> item 8, appeal number 10-091, property at 38 santa rita. it is construction work done without a permit. >> mr. snyder, it did you have any comments that you would let to say? is there any public comment on this item? ok, commissioners, if you choose to follow what deputy director kornfield is suggesting, you

could make a motion to reduce the penalty. president peterson: so moved. commissioner garcia: before we vote, could i ask what type of windows are now there? >> laurence kornfield, the department of building inspection. my understanding after talking to the chief inspector for the district, the windows were installed, shape and size reduced, and changed the material, and the permit applicant removed all of that and restored them to their original construction type. at great expense. commissioner garcia: thank you. and thank you. >> call the roll, please? >> on the motion to reduce the penalty to two times the regular fee -- [roll call vote]

thank you, the vote is 5-0, the plea is reduced to two times. it -- the penalty is reduced to two items. >> we move to agenda item one. is there any member of the public would like to speak on any item that is not on tonight's agenda? please step forward. >> the overhead, please? good evening, president and commissioners. i have an important announcement for everyone in the room who has a case before you not. all the powers of the state housing law are vested with the

department of housing and community development. the state housing law, item four, the department has been held with the state housing wall, staff investigates complaints and allegations of not enforcement, including over enforcement of the code by local building departments, housing department, health department, fire department, or fire districts anyone who is getting an injustice before the billing department, the planning department, or before this board can file a complaint to housing and community development. it could you leave this on, please? here is the e-mail, their website. if you do a search under the department of housing and community development, you look at this site. if anyone would like any information from me, i have a lot of information about what is happening here. i have proven already that this board does not meet the required

qualifications remanded by the state, and they keep on going on and making judgments on all of these cases, and they are really not legal. thank you very much. >> thank you. any other public comment on this item? seeing none, we move on to item two, commissioner, and questions. commissioners? seeing none, item number three, the adoption of the minutes. before you for discussion and possible adoption of the minutes of the board meeting of november 17, 2010. president peterson: i move to adopt the november 17, 22 minutes. >> thank you. is there any public comment on the minutes? seeing none, if you could call the roll, please? >> on that motion from the president to adopt the november 17 minutes --

[roll call vote] thank you, the vote is 5-0. the minutes are adopted. >> thank you. if you could call item four, then. >> calling item 4, special item, appeal number 10-073, housing corps inc. for says dvi, planning department approval, subject property at 281 turk street, consideration and possible action on the request of the permit holder bay drugs to allow some middle of supplemental briefing and evidence in response to the board's draft findings. >> thank you. commissioners, they have provided a court reporter to transcribe this item and are requesting that the transcript

be deemed the official record of the proceedings. the permit holder has agreed to provide the board and the appellate with a copy of the transcript at no cost, and if you are in agreement with this, a motion is needed. >> is that for this proceeding? >> this particular item. president peterson: i will so moved. >> thank you. is there any public comment on the use of a court reporter? seeing none, if you could call the roll, please -- >> on that motion from the president to certify the transcription as the official record of the proceedings -- [roll call vote] thank you, the vote is 5-. -- the vote is 5-0. >> before you is whether you will accept the new information and evidence requested to be submitted by the permit holder in association with the draft findings.

with the president's consent we can give each party three minutes to argue this point, starting with the permit holder. >> good evening, commissioners. my name is diana sam, the attorney for the permit holder. the crucial issue here is did bay drugs do required permit work prior to the time they got there. on may 24? if a drug's followed the rules, then they had a vested right, and this board has no legal basis to revoke the permit. there is a case on this and is the congregation vs. the city of los angeles. there are two people involved here, guy is here this evening. these are real people.

this is their livelihood. they want to open up a pharmacy. they signed a lease, caught the permits. they did everything required by law. they spent about $100,000 of their own money, plus they are on the hook for the three-year lease. they even got a certificate of completion from the city. then the appellate comes along and says, we don't want this. and now their livelihood and over $100,000 is taken away from them. if this board is going to do that, it ought to at least get all of the evidence and hear all the evidence that is relevant. most of the evidence in the board's findings relies on the palate, the appellant's testimony, the appellate's email. her testimony and e-mail about construction is based on what she saw from outside. in fact, what happened was quite

different. the contractors declaration showed he did no work which required a permit before they got the permit on may 24. for example, the appellate says there is framing out of what looks like a counter wall. a drug has clarified at in an additional evidence that we would like to some that what the appellant may have salt in the contractor's declaration. it says, what she must have seen was a temporary wall i installed to hide the tools and materials. this wall does not affixed to the premises in any way and no permit was required to install this wall. also, this board should receive additional evidence from bay drugs because the brief made no mention that they had done work that required a permit prior to the permit, dust in the wrist binding, they naturally did not

respond to this allegation. the allegation appears in the rebuttal brief. bay drugs did not have a chance to give a response. there responded and the limited time they had at the october 6 hearing. under the law, you cannot take away to people's right to pursue their livelihood after they got a permit and spent over 100,000 hours on something. thank you. -- $100,000 on something. thank you. commissioner garcia: that is to say if they accept the premise that they had a vested right. you are not saying that this board has a right to revoke a permit that has already been granted, right? >> yes, that is a case that is on point. they have a vested right because there was a permit that was supplied to dbi and the planning department and they spent some

money on. commissioner garcia: maybe i asked the question poorly. it would be required, the basis that would be required is that it would be established there is a vested right? >> correct. commissioner garcia: you made it sound like any permit that came before the board we would not have the authority to overturn, and i wanted clarity on that. >> let me repeat -- commissioner garcia: if there is a vested right, but that has to be established. >> then the question is how one gets a vested right. commissioner garcia: i understand that. i was wondering if you were being overly general or if there was a provision so. the other question i have, it seems as if the arguments have more to do with the request for rehearing that it would have to do with getting new facts in that would go towards what is before us tonight, which are the

findings. so maybe you could clarify that for me? >> well, no, i have declarations from the contractor that said he did not do any permit work prior to getting the permit. they're relying on a letter from the construction company from september 18, 2010, which says there was site preparation and demolition. the board said, there you go, but they did work without a permit. the contractor's declaration clarifies that by saying, no, the demolition that i was referring to in my september 18 letter was i scraped up some floor tile. that does not require a permit. commissioner garcia: ok, what that might cause the board to do would be to strike a sentence that has anything to do with whether work was done prior to

getting a permit, when actually it would seem with the board is relying upon in its decision -- and by the way i was the minority on that -- is item six, which has to do with community standards. how do you overcome that burden? >> if the permit holder has his vested rights, which i think it does because they got the permit legally and spent the money, and there is case law that has a vested right based on those facts, then we don't even get to the neighborhood problem. commissioner garcia: okay, i guess you are laying the basis for a case in superior court? because there is no request here that i am aware of for rehearing. >> not yet, because we don't have to ask for a rehearing until the findings are found. commissioner garcia: okay, that clears that up.