director goldstein: welcome back to the meeting of the board of appeals for mark shapiro -- for march 9, 2011. mr. pacheco, could you please read the next item? secretary pacheco: item 4b, is

subject property at 1338 filbert street, a letter from susan brandt-hawley, attorney for jerry demartini, requestor, asking the board to allow the filing of appeals against -- against bpa. >> we request a continuance. this way, we can have all of the board members here. president goh: commissioners? vice president garcia: this is based on the fact that we only

have four people? president goh: and then -- >> and then i also heard president gooh say that -- goh say that there might be a time constraint. >> we request that you do not grant a consistent -- continuance. you are going to do what you are going to do, but i hope you at least will hear the arguments. i do not think they will be long, before you decide this. president goh: you understand, too, that if we require the vote of commissioner peterson, we grant the continuance. thoughts, commissioners? commissioner fung: i think we have -- president goh: commissioner

hwang? i do not see a motion to continue, so we will hear the case. >> this is not the matter of an untimely appeal. it was timely. there was a conditional use as part of this project, and we feel that you should take jurisdiction here because the conditional use is unrelated to the building permits issued that would come before you, and, in fact, the main issues that are before you have to do with things that occur due to changes to the project after the april 2010 conditional use was approved -- that occurred due to changes to the project after a april 2010. they were not appeal to this

body. that was in april. in june, new plans were submitted that significantly changed the 32-foot-high, 138- feet long retaining wall, and it was significantly changed, how that was proposed to be built. we have a report from a doctor and an engineer who indicates that the proposed method of construction would cause the broader range of property along the street, with significant environmental problems -- would cause we -- the watering of the property. both the exterior and interior changes. and changed the application, so instead of the one application that was filed in 2008, there were now two applications, and two of the three are dated 2010. with new information, change to

the wall, these permits -- this has been pending for years because it is a problematic due to construction. -- it is problematic due to construction. while the charter says, and there are walls saying -- rules saying that it is not before you, that only makes sense if it makes a use that has something to do with the permit itself, and here, that is not the case. for example, you would not want to set up a system or a lau situation where someone could come in and allow additional parking -- or allow a situation where someone could come and and allow additional parking. that is what has happened here. the parking spaces are not the issues that we would like to bring to this board's attention.

we understand there are fire sprinklers required in the new construction. . we are very concerned about the geo technical issues -- geo- technical issues. [bell] commissioner fung: did you appeal this? >> we did appeal the categorical exemption to the board of supervisors. they claimed it was untimely. we just did that. it was first deemed timely, and then it was deemed untimely. vice president garcia: if you could give me a short answer, detaining wall, the changes? >> could you say that again? vice president garcia: sure, is the work on the retaining wall that you want to bring before this board related to the work

having to do with a reconfiguration of the parking and/or the dwelling unit that is subject to the cu? >> no. vice president garcia: it is totally separate. you feel the work does not have to be done on the retaining wall? >> i will need to take a temperature or two, of course president garcia -- or two, vice president garcia. it has nothing to do with the number of parking spaces or the number of units. really big parking spaces instead of smaller, for example, you could have different numbers of units, so it is unrelated to the conditional use, and i think it is important, again, to underscore that. these plans were june, september, conditional use in april.

vice president garcia: i think you said that. president goh: the cu, the original parking garage permit was october 27, 2008. >> that is correct. president goh: and then the other two were won in 2009 and one in 2010. -- there were one in 2009 and one in 2010. >> there were two in 2010. president goh: maybe i will address this to someone else, but if it requires a cu, then go and get a cu. that is the package. if you wanted to do something to the property later on, you could go in and apply for a permit for something else, and i think what

your opponent is arguing is that the something else would necessarily be wrapped into that cu, and what seems to me, and i need to hear from the other side, but it seems that if it is something else, but if we went that route, and i am sorry if i am repeating, i just was not quite following. if we went that route, all you would have had to do is get a cu, and then we could not touch it. is that your -- ok, i have a question for planning then. but that is exactly what we say is happening. things have changed -- >> that is exactly what we are saying. things have changed. we waited now for the building permit to be issued so we could come before this body, but otherwise, yes, somebody could, just like here -- i am not saying they did it.

there is no bad faith that needs to be attributed or anything like that, but it could happen. someone could come in and get a cu for a couple of parking spaces, and their project would be off limits. nobody has reviewed this. president goh: ok, i think i understand. it does not sound like your microphone is on. >> i will try to speak loud. -- commissioner hwang: i will try to speak loud. are you suggesting that this is not subject to review other than our board? is that your argument? would they be subject to the board of supervisors approved >> no, it would be to this body. we did try to appeal the categorical exemption, as well, and were told we cannot do that, as well, but that is not before you tonight. we could try to do a ceqa, and

the only other appeal would be to you, and that is what we have done in a timely way. commissioner hwang: thank you. >> it could be that there is a different decision for the two, the one with 2010 and 2008, but in our opinion, it applies to all three. commissioner hwang: what do you mean by that? >> the change to the containing wall and the parking spaces, -- the change to the retaining wall and the parking spaces, at that time, there was one application pending for 2008. we believe they were all changed by the building permits and retaining wall and excavation changes that have happened in the last eight months. certainly, the september 2010 permit should not be considered to be part of anything to do with the cu timing wise.

it is really confusing. if i am not making it clear, i am sorry. .commissioner hwang: ok. i may have questions at another time. >> i am nearby. director goldstein: sir? >> i am with the property owners and permit holders. i want to back up. i have been doing this for a long time. i actually have never had the opportunity to argue this point. it has been a very clear world to be under the charter for a long, long time -- it has been a very clear notec clearl -- a very clear rule.

once you are there, the entire project is before the planning commission, and at that time, i think it was april or august last year, and for getting the dates, but at that time, the planning commission makes a lot of findings. they make very narrow findings, on things like parking, and the project has to go to the planning department to get a conditional use, but once it is there, in addition to making specific narrow findings, the commission must also been very broad findings for the project. they need to make findings like whether the project is necessary, the entire project, not just the parking or the dwelling unit merger, whether it is necessary and desirable, whether it is compatible with the neighborhood, if it is detrimental to the neighborhood. they have to approve the project, regardless of what the trigger is. with respect to the permits, i

think these zoning administrator should confirm, there is no direct relationship air -- i think the zoning administrator should confirm there is no direct relationship. you can get this approved through the appeal process without filing one building a permit. there are a thousand strategies as to why you would file a building permit first. trying to get some information from the department of building inspection, or they come later. they often come later. then again, there are a variety of strategies where depending on the strategy, where they will -- " what position they will take. i think that they note -- the thing to keep in mind, especi walt -- wall, it has been shown in the plans from day one. this project has needed and always will need a container --

retaining wall. i am sure as many of the commissioners know, once you start going through your plan, plans involved. revisions get filed, plans it filed, and you need to submit more details, -- plans get filed, it you need to submit more details. -- plans get filed, and uyou -- you need to submit more details. vice president garcia: 1 would need -- one would need a cu. it is not at all clear that you would need a cu to do the geo- technical work, and that is what

i struggled with, when someone were to appeal that to the board of supervisors, they did hear those geotechnical issues? >> commissioner garcia, that is an excellent question. i do think that extremely technical issues are somewhat of a red herring here, but let me be clear. the planning commission was the place to raise this first, and the second place to raise it would have been the ceqa. i have heard people raise that issue of the planning commission, and i have heard commissioners concerned about something like that in cases where you have a steep slopes and things like that, so without question, -- where you have a steep slope and things like that.

in regards to the ceqa process, they failed to do that in a timely manner. the geotechnical report was provided years ago. that has been available to the public for four years. never touch, never looked at, until now. there has been plenty of opportunity well before we get to this point for that issue to a been raised on a number of levels. vice president garcia: maybe i understand, and maybe i do not. if they were to go before the board of supervisors, underneath, something has to do with the geotechnical report, but the question had to deal with that a cu is appealable.

they would have heard issues dealing with this retaining wall? >> correct. commissioner fung: counselor, i do not have the first page of the third permit. describe for me what that permit was for. >> which permit number are we talking about? >> ending -- commissioner fung: ending in 91, 91. secretary pacheco: 91, commissioner fung, is a remodel of two cottages. commissioner fung: so it says the same thing? ok. president goh: i have a question, based on responses to

vice president garcia. are you finished? ok. if the planning commission heard all of those issues when they granted the cu in april of 2010, i do not understand how they could have hurt the issues that had to deal with the permits applied for in september 2010 and only just recently granted. >> ok, commissioner, president goh, the planning commission will review all -- will review any fat, any concern about a cu that is raised with them, a technical issue, or not. as part of a discretionary review, it does not have any role, and neither does this body, in my opinion, have any role in this.

i have been here a long time. a geotechnical report are the people at the department of building inspection are the only people qualified in san francisco to review. for the planning commission frankly or this respective board to have been willing -- have dueling geotechnical experts before them -- president goh: we do do that. >> the issues could have been raised at the planning commission. president goh: sorry to interrupt you. this seems like a rightness issue. they were granted only recently. the issue i propose is the real question. >> well, i guess then that the

entire issue goes back to the jurisdiction and the fact that how could the department of building inspection be issuing this permit under any circumstances if the cu was not granted? it seems like a simple rule, where the conditional use for the project should encompass all of the permits related to the project, and you do not need to vote -- to vet every issue. i think that is kind of the point i am trying to make. president goh: i think i understand your point. i do not know if i agree with it, but i think i understand it. permits related to that or something else, whatever,