>> good evening. welcome to the february 16, 2011 meeting of the san francisco board of appeals. the presiding officer is president goh. we will join -- we will be joined by commissioners garcia,

fung, and peterson. commissioner hwang will be absent this evening. at the controls, we have our legal assistant and a legal process corporation. we are joined by some department representatives. the deputy director of building inspection is here, laurence kornfield. next to him is scott sanchez, zoning and a stricter -- zoning the administrator. we are also joined by dr. ojo of the department of public health. please conduct the swearing in process. >> the board requests that you turn off all phones, beepers, and pagers so they will not disturb the proceedings. please carry on conversations in the hallway. appellants, permit holders, and

department respondents each have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must include their commons within this time. members of the public who are not affiliated have up to three minutes each to address the board, and no rebuttals. to assist in the accurate proportion of minutes, members of the public are asked but not required to submit a speaker card or business card to staff when you come up to the lectern. cards and pans are available on the left side of the podium. the board welcomes your comments and suggest are customer satisfn forms on the left side of the podium. if you have questions about requesting a rehearing or hearing schedules, please speak to board staff during a break, or call the office tomorrow morning. we are located on mission street.

this meeting is broadcast live on san francisco government television, cable channel 78. dvd's are available for purchase directly from sfgtv. at this point, if you intend to testify at any of tonight's hearings, please stand, raise your right hand, and say, "i do ." do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? >> thank you. members of the board, we have two housekeeping items. the first is respect -- is in respect to item five, an appeal of an electrical permit at 750 and over st. -- andover street.

he no longer wishes to hold the permit. we can briefly here from the public if he wishes to speak. he is saying he does not. we can take public comment and then consider a motion. is there any public comment on item 5? seeing none, commissioner stacks president goh: -- commissioners? vice president garcia: -- president goh: seeing none, i will move to grant the appeal. >> call the roll, please. >> on that motion from president goh to grant this appeal and deny the permit -- commissioner fung: i vote no, --

i intended to vote no, but based on their request, i will vote yes. vice president garcia: yes. commissioner peterson: aye. >> the vote is 4-0. the appeal is granted. >> the second housekeeping item is in regards to item 10, appealed 10-144, to alter a building on 19th street. the parties have reached an agreement and asked to grant the appeal and condition the permit with the terms stated in their joint letter, dated february 9, 2011. i do not know -- they are here? both parties? great. if you have any comments, you can step forward. otherwise, if the commissioners have questions for you, we can have those post down. if not, we can take public

comment and then have a motion on this item. is there any public comment on this item, item 10? seeing none, is there a motion? president goh: i will move we grant the appeal and condition the permit as described in the letter. >> call the roll on that, please. >> the motion is from the president to grant the appeal and condition the subject permit with the agreed upon conditions dated 2/10/11. >> i am sorry.

it is february 9. >> we will go by the date of the letter. on that motion -- vice president garcia: aye. commissioner fung: aye. commissioner peterson: aye. >> the vote is 4-0. the appeal is granted. the permit is conditioned with these agreed upon conditions. >> thank you. moving to item one, public comment, is there a member of the public would like to speak on an item that is not in tonight's calendar? seeing none, item 2 below is commissioner comments and questions. the you have any comments? president goh: i am going to miss meetings during june 15, june 29, and july 13. >> any other commissioner comments? vice president garcia: i am

going to miss the meeting on april 6. >> is there any public comment on this item? seeing none, we can move on to item 3, the adoption of minutes. but for you are the minutes of the board meeting on february 9, 2011. president goh: if there are no comments, i will move to adopt the minutes. >> is there any public comment on the minutes? seeing none, call the roll on the minutes, please. >> on that motion from president goh to adopt the february 9 minutes, commissioner fung? vice president garcia: aye. commissioner fung: aye. commissioner peterson: aye. >> the book is 4-0. those minutes are adopted. >> please call item 4a.

>> it is a rehearing request for the property at 1269 lombard street. we have a letter from joseph butler requesting a rehearing. on december 15, the board voted to uphold the granting of the front step back and a rear yard variances. the variants holder is tom burwell. >> president goh, my name is joseph butler. i am requesting a rehearing. subsequent to the hearing on december 15, 2010, which funded -- bound a recorded document on the adjacent parcel was not recorded against both

properties. it was signed by both former project sponsors, both of whom borrowed money to do the project from the variance holder. if you grant this variance and do not give a rehearing, it will preclude a condition of approval but was assigned at by the san francisco planning department in 1998. i read to you from exhibit 4 of my brief. the parties acknowledge the overlapping would stare and landing which is the subject of this agreement and on the land of pro 69 lombard street was originally constructed to serve the upper storey and was recommended under conditions set by the planning commission. i will tell you that conditions of the approval can be considered as recommendations. but make no mistake. they are requirements.

further down -- the stair shall exist. that is pretty clear. it shall exist and be maintained under the conditions to allow permits for conduction -- for construction of the property. even know the stair belongs on a lot of 1269, the owners are acknowledging that they need to replace it. they're building permits say they are going to -- their building permits say they are going to excavate on 1269. they were willing to use those properties freely to benefit each other. now that their divorce is settled and they have both been foreclosed on, suddenly these conditions go away? i do not understand that. the project was built at 1271- 75.

when does the stair come back? if you grant this variance, there will be no stair, ever. have we down the page of attachment a, -- halfway down t he page ohe page of attachment . this all refers to the exhibit and a -- exhibit a. it has a porch and stair on it. the variants will preclude replacement of that stair. all the other conditions of approval that were granted the same time for both properties -- president goh: i have a question. the handwritten document you were just reading from -- where does that appear? that was the thing you did not have previously? >> correct.

in my request for a rehearing, exhibit b, an agreement for stair and landing, recorded 10/29/99. president goh: and it was recorded on the other property? >> i know. that is why i did not have it. president goh: and it was supposed to be recorded under 1269? >> i would imagine that if applied to both properties it would have correctly been recorded, yes. president goh: thank you. >> mr. gladstone? >> brett gladstone, representing the property owner. just to give you a little

background on where we have been in previous hearings, the planning commission had three hearings. we unanimously approved the demolition and the new building. the a historic preservation board voted unanimously and had no problem with the new building. you buy a four-one, commissioner goh dissenting, approved the variants. -- the variance. the board of supervisors has upheld this. although your decision is not to be based on the support for the opposition, my client would like to thank the 900 member strong russian hill neighbors, all of the property owners who support, the only people who showed up at the board of supervisors hearing

recently. only one of the six adjacent residents has ever opposed the project. we are looking forward to getting on with it. we do not believe the criteria is met. mr. butler can argue the merits of the case tonight, but the criteria before you is whether there are documents that could have been provided to you previously showing why the could not. mr. butler just mentioned that the agreement he put before you was between the adjacent neighbors regarding the stairway. it was found by him in december, nine days before he submitted the planning commission hearing brief. thus, he had it well before his brief to you on the variantce several months ago. he did not mention it in in his brief to you. he just admitted it. i am not sure he meets the criteria. even if you want to accept that as new evidence, this is from

the same agreement he just quoted. it shows that agreement was about a shotgun marriage between my clients' predecessor and the property owner next door. here is why that is clear. i will read it to you. it is shown on mr. butler's brief. he showed it to you as his exhibit b. what it says is, "parties of disagreement agree that maintenance of the stair is burdensome, and if approval to remove the stairs should be granted in the future, they agreed to cooperate and assist in a reasonable manner in all efforts to physically remove the stair." i wanted to remind you that the zoning administrator and city attorney indicated that that document appears to be still a condition of approval of the

previous 1998 planning commission decision, a decision which both of those people told the commission is void. thank you. >> mr. sanchez. >> thank you. scott sanchez, planning department. i do not have much to add here. i think there has been vetting of this issue of conditions of approval, what conditions of approval applied. the was a long history to the project. the variance was on the adjacent property. the project was constructed on the adjacent property. the project that was on the subject property has been abandoned. the have a new project. that is what is before you know. there was confusion about conditions of approval for the adjacent property. we were not able to find the

variants associated with that adjacent property. we do not have evidence that there are conditions of approval that preclude development of the subject property in the manner proposed. even with that, the planning commission and the zoning in minister would have been the initial hearing bodies, and it would've been the same body this time around. the planning department and zoning commission had approved that. there has been a ceqa appeal. i am available for any questions. vice president garcia: prior to getting the brief from mr. butler, did planning have exhibit b? >> we did not have a copy that i am aware of. vice president garcia: the line,

b2, quoted by mr. gladstone -- do you feel as though that precludes this from being relevant? >> i would draw two points. first, the appellant raised that maintenance of the stairs -- i think we have to understand what the stairs are therefore through the agreement -- are there for to the agreement. it is for appearance only. it is not actually used by the adjacent property. they are only to maintain it. they are not to actually use the stairs. it acknowledges that it was a recommended preservation, not a required preservation. as the permit holder pointed out, this agreement allows termination if the stairs are removed. this year's open -- the stairs were removed.

there are no conditions of approval to require the stairs to be here. the planning commission has reviewed and approved this. the appellant is highlighting plans from the late 1990's which were abandoned. this project proceeds that project. vice president garcia: -- president goh: would one expect to see this recorded on a pro 69 -- on 1269? >> i cannot say. this appears to be terms of their private agreement. i am not aware of any conditions of approval on the subject property that would prohibit the removal of the stairs. president goh: i guess i am wondering about that. if it comes all the way to hearing, we can adopt conditions. but if the parties make an

agreement and withdraw their appeal, those conditions -- i am concerned this is creating a situation where we will encourage people to come all the way to hearings, because there will be concerned that their conditions will not be upheld in the future. >> conditions that are adopted by the zoning administrator or planning commission as part of conditions of approval are recorded on the subject property. and when it is a building permit, special restrictions cannot be adopted. vice president garcia: mr. butler, do not do that again. it is distracting. we know it is there. when he is speaking, do not do a demonstration. >> thank you. for the building application, there would be a notice of restrictions. for the variances associated with these projects, there would be nuts of special restrictions on the subject