some of these citywide issues of preservation, and also of the various agencies that have jurisdiction, and i think the planning department shares that, however, their approach could be different than certain individuals in the community. we have looked and number of situations here, and there were different permits. it was agreed that one of the permit early on, the way it was done was extremely insensitive, and the fact that it had a very low new ceiling, it would cut across the existing window pattern, and this board rejected this permit. we looked at how certain elements of the dan could be done to minimize this impact on the exterior of the building.

i know that in this particular permit, the ceiling height is at 11 feet. i am assuming based on the drawings that it is above the head height of the windows and therefore has not the same impact as previously. the question comes to mind than of what is occurring with the entry, and we need to look at what is appropriate for the entries because there are other issues in clay, and i said that last time. there are issues of ada accessibility, issues of adapting to the slope of that particular street, and there are issues related to what is constructive role in terms of getting access in. these agreements that have been brought before us attempt to put

some sort of framework over the review in terms of the next 12 years and future modifications of the exterior of this building. it does not, in my opinion, it does not do much. it just codifies a potential direction between the two parties, but it does not really say much. the ultimate enforcement has to be by those who have funded for it, and that is city planning. it is their agency that really needs to enforce this, and i have perhaps a little more confidence in their department and the qualifications of the preservation staff. i have met most of them. there are now degrees in preservation, and it is

interesting to the extent that it has become a major field of study. i am of opinion that should they want to have a private agreement, that is fine, but i am comfortable with the enforcement's in the review provided by the planning department. commissioner peterson: i will go now. commissioner fung articulate the issues and the background well. i have a concern that would shift this to one side. i actually think that could be unconscionable. usually with these clauses, the burden is borne by the losing party, and there is a

determination of the prevailing party and so forth. i do think that there is a good point that something should be in writing so there is something that we can all look back 10 years from now and understand what the agreement was, so i would be inclined -- i was inclined to accept the agreement drafted aboard by zoning with the help of the zoning administrator, but, again, thank you for all of your efforts. your energy toward this is very admiral -- admirable, as are those by the permit holders. vice president garcia: in defense of mr. bley and for those who took the time out to come here this evening, i do not think there is anything he has said that means he is not fully behind the endeavors of this

particular organization, and i am sure he wishes them very well. i understand his frustrations and concerns about enforcement. we, ourselves, on this board sometimes go through a process and thinks the problem is solved, and then for some reason does not get fully enforced. there is no way around that that i can see. i think ultimately, the green star is for go, and i think it is a reasonable document. i agree with the comments of commissioner peterson that we are not about to get involved in awarding legal fees to anyone, and i think that number two on this agreement is probably -- and i do not know that it has that much teeth to it. i do not know if that is proper construction, but at any rate, i think it is worthwhile that we codify that in places. beyond that, i have no comments.

president goh: i agree with a lot of what has been said. i think there are issues with planning and staff training, issues that might result in an efficient scrutiny. for a building like this, it seems to me at least a potential, it is a historic building. even if it is not a designated landmark, but it deserves a higher level of scrutiny, and if it does not rise to a level of being taken to the -- as an aside, maybe it should. and we heard commissioner fung talking about where certificates are needed for even changing paint color. there is one city that needs to

be under glass, and it was also voted in a magazine as the number one destination, that beat out san francisco, so that is my side. i agree with some of what has been said about the shifting of fees. i am not so sure we can do that, but i wonder if the extra notice federer as requested -- that was requested, i think it was 90 days, and then i am wondering about the other fees. when an appeal is taken at least to us, and what do we charge for an appeal? this could be a planning appeal it is several hundred dollars. it is expensive.

i do not know if the commissioners would consider some modification to our own fees. with the director, the annual report coming later on in the evening, we probably have got timing. what did the other commissioners think about that? >> there is only one exception, which is for financial hardship. president goh: i say. if anything is going to happen to this building. mr. sanchez, maybe we can hear from you. halbur and some would that be to your department? >> scott sanchez, planning department.

so if i understand, there would be a 90-day notification if this were to be removed? or -- president goh: it was in the third option. the second paragraph from the end. director goldstein: president goh, that looks like that is 90 days for something that comes before the board. president goh: thank you. vice president garcia: where do we stand on this?

if we were vote to uphold, we are allowed to adopt language that is in the green star. i am particularly interested in number two on that, having to deal with the nsr, so how do i get there? >> it would be placing a condition that would require a four you are votes, and if you are inclined to do that, i would point out one concern is the end of the green star version, at the end of this paragraph about a 12-year moratorium, not allowing the parties -- and the release modification. if he was willingly consented to that, that would be all right, but that seems like something that would deprive the between two parties, not the city. vice president garcia: actually,

i would stop that paragraph. right. president goh: so this nsr would not have an expiration. does that paragraph not give it one? commissioner fung: i think it only talks about the elimination. >> if i could ask for clarification? with the board be up holding the release of suspension, allowing the permit to move on, and acknowledging that separately an agreement would be recorded, or would you be conditioning the release of suspension based upon this actually being recorded it, and so an action of this board to force or to require the recording of the nsr. whether or not you are acknowledging the private agreement, that would be handled between the parties probably, or

if you're taking action and requiring -- president goh: i do not think we have gotten there yet. vice president garcia: that is what my motion was. >> so if they wanted to remove this in the future, i guess the process for them would be to request a letter of determination. we would say no, we cannot remove the nsr because the board has required this. president goh: that is right, so if we remove that paragraph, it would be in perpetuity. >> yes, and then someone could appeal that, and it would come back before this board. >> and the poor forma, -- vice president garcia: in the pro forma, there is nothing unusual about having this nsr? president goh: vice president

garcia, you are deleting that last paragraph? vice president garcia: yes, it would and at the end of paragraph number two. not paragraph number two, paragraph enumerated as number two. president goh: understood. director goldstein: that was a motion, right? so we need to have their way to identify this document. we really cannot identify it by the green starts. mr. it as submitted, but i believe it is number two? vice president garcia: with city planner, scott sanchez.

secretary pacheco: so we can go by that. president goh: september 30, 2011. mr. sanchez appears to have a comment. >> to include in a language that the board of appeals is requiring it. otherwise, in the future, this will appear on the record, but nobody will have an idea how it got there, so this would be to make sure that their action is noted here. in kind of typical format for a notice of special restriction. >> mr. sanchez, normally are notice is also recorded, and would that not serve the same purpose? >> i think we would want to be clear that we are recording both. usually, the nsr is included.

president goh: we're talking about this actual nsr. director goldstein: ok, so if you are in agreement with adding that, vice president garcia, we would have the board -- board vote on your motion, which is to grant the appeal, uphold the release of the suspension on condition that an nsr against its property be imposed, with language that it will be by this board and that it contained the language on this document dated 9/30/11, no. 2, submitted tonight, the extent that we reach through item number two on the document, so it contains everything up and throw item number two. vice president garcia: i agree

with everything was said, but i do not know where the date came from. director goldstein: at the very top. vice president garcia: ok, i did not see that. thank you. director goldstein: we can call the roll on that motion. secretary pacheco: 7, just to be clear, the paragraph that deals with the deference, that whole paragraph is being deleted. director goldstein: correct. secretary pacheco: so, again, we have a motion from the vice president, to grant the appeal, with the request for release of suspension on condition that a notice of a special restrictions be recorded on the land records with a note that the board is imposing this record nation --

recordation, and that that paragraph is being struck, the last paragraph. director goldstein: and i would also add that the parties have agreed to the key terms. vice president garcia: thank you. secretary pacheco: and with that they have agreed to the key terms of the nsr. on that motion what all of those conditions and that basis, commissioner fung, president goh: , commissioner peterson, and commissioner hwang is absent. thank you, the vote is 4-0, and this is up held with that condition and that basis. thank you. president goh: great. we are going to take a short break.

[gavel]