[gave;] -- [gavel] director kalkstein -- goldstein: welcome back to the meeting. i will not say the date because i believe we are close. two minutes on the clock for rebuttal. commissioner hwang: i do not think my questions were fully answered. we were interrupted. you were midsentence. >> well, i do not know if i was mid sentence.

you're asking me what the catch- all category referred to. commissioner hwang: i am going to stop you right there. the category that i believe -- the listing that we saw a first on mr. sanchez' ipad and mr. hernandez' sheet of paper, the retail and sales and service, retail sales and service, and then with in that had the other category, as was pointed out by mr. preston, and the relevant

code section on formula retail, and my question to you wrote -- to you is what under the formula we telco a provision would fall into that sort of generalized but not catch-all category -- but is what under that formula retail provision would fall into that? >> i guess the answer, to the question before, was accurate, in that in the planning code itself, in section 790, that is where the categories of usages are defined, and there is a definition for services, financial. it is a retail use, which provides banking services to the public, savings-and-loan and credit unions, when occupying more than 15 feet of frontage or

a certain square footage, so there is a certain definition of "services, financial." in the definition of formula retail, it lists the more general categories, and those things would apply to something that may lead to the proper definition that is not otherwise found in the planning code as a use category. old thing is about use categorization -- the whole thing is a bad use categories. -- is about to use categories. -- about use categories. this is not specifically defined. it is not that you would find a definition of, like, a walk-up facility. paul -- you will find

definitions of other specific types of uses, and i hope that is an answer to your question, because i am not sure i have it. commissioner hwang: i get it. thank you. anything else? vice president garcia: and you have saved two minutes for mr. preston. >> i am here on behalf of the brennan family. what we have here is one main permit, which is not appealable, 99% at this project, and all over the project, it says "chase bank." it was signed by a a senior

planner. it was signed off by a senior planner. one had a mistake on it and had an atm on the exterior, and that required the 312 notice. that is it. nothing else. we had the zoning administrator, the planning department, the person who interprets the planning code, the planning commission, all of the workers at the planning department, and inspector dufty, who interprets planning department code, and there is no issue with the building department, so the next issue is that we are humble me requesting that this board make a revision. we have plans. to approve this president as it is. that will allow us to not have to come back before this board in six weeks with another permit. if we do not get four votes tonight, we pull a permit again, by the same planner, showing the atm, that meets all of the requirements of this boards, all of the requirements of the building department and the

planning department, and if mr. preston wishes to appeal that, only two votes are needed to appeal that, and that is not going to happen. he is going to need four votes to sustain his appeal, and that is not going to happen, and that is going to waste everyone in this room umpteen days, and if there was not a mistake with the atm, we would only need two board members to uphold the permit and deny mr. preston's appeal, so what we are homily asking you tonight is to amend this permit what we are homily -- humbly asking is to have senior inspector joe dufty or one of his associates come out and confirmed that the building is, in fact, and the leasing area is under 4000 square feet. thank you. note -- director goldstein:

director sanchez? -- mr. sanchez? >> scott sanchez, planning department. i really do not have much to add. we have applied this consistently. to my knowledge, the other banks that have been created recently, the chase bank on fulton,. -- had that been subjected, it would require section 312 notice, at least, because that was prior to the conditional-use of four retail uses. -- it conditional use for retail uses. there are other banks. no conditional use. there was an item heard by the planning commission.

the planning commission did not -- may be the zoning administrator answered it, but that was something that was accepted by the planning commission. that is not a formula retail use. it was stated in our case report it is not a formula retail use, and the planning commission denied it for other reasons, and we have been very consistent in our application. i understand is a disagreement between the appellant and the department and how we are applying this. i respect the appellant and appreciate his argument. however, we simply have a disagreement. we deal with financial-services, not listed amongst bars, movie theaters, restaurants, all of the other uses that are specifically called out. since it is not called out, it is not subject to the formula used controls, and we have applied those appropriately, in the planning commission has also applied this appropriately.

so i am available for any questions. commissioner hwang: has anybody in the past objected to the planning commission note -- commission, financial uses? >> to my knowledge, there has been no appeal to the determination that financial services are now subject to formula control. commissioner hwang: my next question is, so what would fall under that category? i think the list has created a lot of questions, the one that mr. hernandez initially put up, or, actually, you put up, but i did not see the header, so there are other things listed. i did not memorize all of them on the list, but i did see automotive. when those fall within the formula retail -- with those

fall within the formula retail? " what would fall in that general category? >> basically, everything that we have been applying formula used to. commissioner hwang: what else? >> a formula clothing store, a coffee shop. they are not listed on the controls. it would include a bar, a dried- up facility, eating or drinking -- a dried-up facility. -- a drive-up facility. commissioner hwang: i do not have the number memorized. sales, service, retail category. >> there is a definition of 790,

which talks about general retail sales service, and then there is from 1988. this is not personal service. it is not personal service, and if they do not board overnight -- if they do board overnight, then it is an animal hospital. that is the only one i could find, and there may have been a sudden one related to a catering establishment, and a catering establishment that is not open to the public is not a retail use. >> what would fall into the sales commissioner -- commissioner hwang: what would fall in the other? >> it gives a fairly exhaustive list of types of retail uses that would be considered under

790.102. commissioner hwang: where is that? >> i can put it of further -- under the overhead, if you would like. commissioner hwang: sure. if i could have the overhead, please? so we have general groceries, which include a diverse variety of complimentary food and non- food commodities. we have specialty groceries,

which are similar but are generally considered -- he shops, confections, etc.. -- tea shops. tobacco and magazines, self- service laundromats, household goods -- commissioner hwang: is that list considered exhaustive? >> it depends, because there are so many variations and so many creative applications of business establishments that may fit under this use. it may fit under a restaurant use. it is not exhaustive. there may be something else we apply under this category. commissioner hwang: thank you. commissioner.-- commissioner fung: mr. sanchez, historically, we know that banks had a

moratorium against them, or there was definitely a c.u. of some form. since this came out in 2004, has this occurred somewhere in san francisco, and, therefore, the issue of definition of specific news was brought forth? -- specific use was brought forth? >> no. financial-services, it goes back to the late 1970's and early 1980's, when there was a proliferation of branch banks, and then, since that time, it does not seem to have been in use, even the controls regulating financial services being adequate to address those concerns, or it is just the nature of the baking industry, perhaps, that has changed, but we believe -- or it is just the nature of the banking industry.

if that is not the case for this community, they can always approached their supervisor for legislation, and that would either create a separate commercial district for dis -- divisadero. there are other ways of dealing with that, special use, etc. thank you. note -- director goldstein: is there anything more? ok, seeing nothing more, commissioners, the matter is submitted. commissioner fung: can i move my car? [laughter]

i guess those of us who have worked with planning codes throughout our professional career, there is an understanding that no planning code is 100% perfect, and the question of definitions continually arises, and there are a number of different ways to deal with that. we understand how some of those questions are dealt with in san francisco, through determinations by the zoning administrator. for those of us to have to work with them, we also understand a history of how those things are interpreted, and in my opinion,

the definition within the formula retail is quite clear as to what is there, and i do not think it includes financial- services. the question is, it is not necessarily one of whether there is an automatic conditional use for the review for the financial services, since that is handled in a different manner in terms of what is principally permitted and what is conditionally permitted. in this instance, i find that the definition of formula retail services. commissioner hwang: i have to say that i drew the different conclusion after hearing them speak to this question, and for

that reason, i found most compelling the argument put forward by the appellant that the formula retail definition does include in those catch-all specific provisions -- i think, for that reason alone, i would be inclined to grant the appeal. however, i would also be interested in seeing and directing the department of building inspections to do the measurement that was put in question by the appellant and continue until we get that.

there are a number of things to balance here, but one thing, he has a right to rely on some consistency in the application of the law, and i think the fact that the planning department has done this on the exclusion of financial-services, chase was entitled to rely on that. also, i did what i could, and the purpose was the concern over displacement of local competitive businesses, most notably the starbucks and the mom-and-pop café, and that that was a similar concern. i think it is in a different body than ours, but having said that, i do think the community

would like assurances on the square footage that the department should be able to comply with that fairly easily, but otherwise, i find the proper application of the formula retail as well as -- and i am ok with modifying the walk-in atm, as well. vice president garcia: i think at some point if the planning department had codified whether or not this falls into a category -- i am losing my train of thought here, formula retail. i think we would still be here. i think the appellants would just have a different argument, which is not a criticism of the appellant by any means. the basic idea is that people in the neighborhood, some people in the neighborhood, do not want a bank to be there. and that is understandable.

you might prefer some sort of, you know, smaller operation that would have the same foot traffic and do the same thing that this bank purports to do, this business purports to do, and i think i would strongly agree with the fact that this is not formula retail by practice and by the different arguments that have been presented as to whether or not it falls in that category, and so then we have to fall back on the type of district this is, and this is a permitted use, it becomes a right, and i do not think enough reasons were given as to why it should not exist there, given that fact, but one thing i do want to say is that i am tired. nobody said anything that was not worth listening to.