director goldstein: good evening, and welcome to the may 30, 2012, a board of appeals. the presiding member is commissioner hwag, and joining her are commissioner frank fung,

hillis, and hurtado. there is a vacancy, and the board may have a meeting, and they can overrule with three members. four votes are not needed to overrule a department to action. to my left is the deputy city attorney. her name is francesca, and scott sanchez is here. he is the zoning administrator, also representing the planning department and planning commission. joseph duffey is here, representing the building inspectors. and two others are here representing the regulatory health matters from the department of public health. at this time, mr. pacheco, if you could please go over the meeting guidelines and conduct the swearing in process? secretary pacheco: the board

requests you turn off all cell phones and pagers and carry on our conversations in a hallway. the rules of presentation are as follows. permit holders and department representatives each has seven minutes to present their cases and three minutes for rebuttals. parties affiliated with visa must include their comments within that time, and members of the public who are not affiliated with the party have up to three minutes each to address the board but no were bottles. to assist the board in the actor appropriation of minutes, members of the public who wish to speak on an item are asked but not required to submit a speaker card or a business card when you come up to the podium. speaker cards are available. the board also welcomes your comments and suggestions. there are forms on the left side of the podium, as well. if you have questions about

requesting a rehearing or about rules, please speak to someone or call the office. we are located on mission street, room 304, and this meeting is broadcast live on san francisco government television, sfgtv, cable channel 78, and dvd's of this meeting are available directly for purchase from sfgtv. thank you for your attention. at this time, we will conduct our swearing in process. if you intend to testify at anything tonight and have the board did your testimony evidentiary weight, please stand, raise your right hand, and say, "i do," after you have been sworn in or a firm. annie lennox speaking without taking this oath, pursuant to the sunshine ordinance in the ministry of code. thank you.

but -- members can speak without taking the oath. anyone else? 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. director goldstein: thank you, mr. pacheco. vice president hwang, commissioners, we have one house keeping issue about erecting a building on natomas street. that matter has been withdrawn and will not be heard this morning, so we can move them to item number one, which is public comment. is there any member of the public that which is to speak on an item not on tonight's calendar? ok, seeing none, we will move on to item two, which is the election of officers, or opposite. with the resignation of commissioner michael garcia, who was the president of the board, the office of president is now

vacant, and the board needs to hold an election in order to fill it. the torrent of this presidency -- the term of this presidency will be after january 15, 2013. is there any member of the board who would like to nominate a colleague or themselves for the office of president? commissioner: i will. i will nominate commissioner hwang. director goldstein: ok. are there any other nominations? seeing none, are there any comments on the nomination of commissioner hwang for president of seeing none, then, mr. pacheco, could you please call the roll? secretary pacheco: we have a motion from commissioner hurtado to elevate vice president hwang to the presidency of the board of appeals. on that motion, commissioner

fung. commissioner fung: aye. secretary pacheco: vice president hwang, commissioner hillis. the vote is a four-zero, and chris hwang is elevated to the position of president. [applause] president hwang: thank you. director goldstein: seeing that vice president hwang been elevated, the position of vice president is now open. either any nominations? presidents hwang: i nominate commissioner fung. director goldstein: any other nominations? is there any public comment? seeing none, mr. pacheco, could you please call the roll? secretary pacheco: we have

denomination from our new president hwang elevate commissioner fung to the position of vice president. on that vote, commissioner fung, hillis, hurtado? the vote is 4-0, and commissioner frank fung is elevated to the position of vice president of the board. director goldstein: congratulations to you both. item number four, -- item number three, commissioner comments and questions. seeing none, we will move to item number four. for your discussion and possible adoption are the minutes from the meeting of may 16, 2012. president hwang: i move their approval. director goldstein: other any

comments on the adoption of minutes? seeing none, mr. pacheco, could you read the roll, please? secretary pacheco: on the motion from president hwang to adopt the minutes, vice president fung, commissioner hillis, commissioner hurtado? thank you. the vote is 4-0. those minutes are adopted. director goldstein: ok, i will call the next item, which is the beginning of our addendum item, number fivea. the board received a letter from peter ryan, the attorney for the north waterfront restaurant group, asking that the board to jurisdiction over permits 0021 and 0035, permits that issued by the department of public works bureau of st. use and mapping on february 21, 2012, and march 8,

2012, respectively, and they ended march 7, 2012, and march 23, 2012, respectively. it is for a sale of everything except for hot dogs for both permits, and i believe that's commissioner hillis as a comment to make. commissioner hillis: yes, i asked to be recused from this item. my employer had something with the permit holder. so i am requesting a refusal. director goldstein: ok, so we need -- commissioners, when a member asks for that, we need a boat and a motion. president hwang: i move that we uphold the refusal. director goldstein: any comments? seeing none -- vice president fung: and director, can you outline what is required in terms of voting? -- madam director? director goldstein: yes, there

will be three votes, and in this case, with one commissioner recused, seeing how this is of the vote happens, if there are two commissioners in support of jurisdiction and one against, then the board would have the discretion to continue the case to a time when we have another seated member, and that member could cast the deciding vote. so if you could call the roll please? secretary pacheco: on that motion from president hwang to reduce commissioner hillis on item 5a, vice president fung, commissioner hurtado? commissioner hurtado, you are recused. director goldstein: we will

start with the requester. you will have six minutes because there are two. >> good evening, commissioners. thank you for your time this evening. my name is peter ryan, and we represent the restaurant association, and just for your information, those restaurants consist of the american pop, -- pub, togos, baskin-robbins, a diner, and others, and our representatives of certain of those companies here this evening. we are asking for jurisdiction, and we realize that we have a high standard to meet, but we

think the matter is fairly simple, and we would direct you to off the grid, the own brief of the matter. and this contains an admission that they initially located this permit -- the initially low k the permit seven no restaurants would have the opportunity to appeal. subsequently, it was learned that the location was on port property, and dpw did not require notice, as would have been required, so there alone, you have a city action which prevented our clients from filing a timely appeal. if you allow the appeal, i think

you will find that even though some of these restaurants are not within 300 feet, they are all greatly affected by this. we are here to talk about this when you hopefully give us jurisdiction to file the appeal. so with that said, by the emission that grumpy is did not give notice, we think that the standard has been met, that there was no notice given, that that was a city action, and that you should allow these people to have the opportunity to be heard on the appeal. if you have any questions, i would be happy to entertain them. thank you very much. director goldstein: thank you. mr. gladstone.

>> good evening. i have six minutes. i will probably share that. i worked off the grid with a company of facilities with the opening of the vendors to operate trucks to provide this. they are generally not in the business of owning and operating those trucks, with one exception. my remarks today are after talking to john, and directs this program, at the department of public works. and you may have this confirmed by his representative from dpw tonight. first, i went to make an important correction. the paragraph labeled number one in my letter, and i apologize that it was only two days or so.

what i said is that dpw had declined to file a new application once it became aware of the fact that it had approved an application for port property. in fact, dpw did not ask the clients to file a new application, and none was made. what are the implications? even though we all admit that there was a technical failure for dpw to send out a written notice that it sends out to 300 feet, in that, and not only is there not a mistake, but it caused the lack of notice, and i have always maintained that it

is the party claiming the lack of notice, it if it got notice on its own are could never easily got a notice on its own, then you cannot say that it was the city that resulted in the failure to make the appeal, and our position is that there are two factors that indicate they have either had actual notice, actually saw a truck out there, or they had constructive notice, and by constructive notice, the city did publish in its proper place, the proper location, and its publication was available to everyone in the neighborhood, and they did correctly notice in that publication the correct site. dpw does it by mail notice, but it also doesn't by publication, and it is our position that as long as one of those two is done correctly, that is all the

notice that needs to be given. so on the question as to why gr umpy's had notice, there are two permits before you. this is one of the rare times, and the other is for several locations for off the grid. dpw gave notice during the same time. that is the 15-day period. it so happens, and my client will show you prove, that off the grid did have a location within 300 feet of grumopy's during the 15-day period before it expired -- within 300 feet of

grumpy's./ you can have it in the 50 days, and that food truck was there, and grumpy's very well could have appealed. no malice was attended here. you just heard that the client purposely located 300 feet away from grumpy's and the others to avoid notice. that is one way to look at it, but the reason that off the grin has a fantastic record of notice is that they do the research to find locations that are three a hundred feet away from other businesses with similar food. why? it is not to avoid an appeal, is to make sure the other businesses feel comfortable that their customers will go to their

place. the client wants to make sure that it does not give the competitors, potential competitors, a feeling that this will be so close as to interrupt their business. by the way, we do not feel it in trust their business. that is an impression other businesses have, but you will hear later that they are entirely different services. three seconds. would you come up, please? this is the owner of off the grid.

>> i have a permit, and you can see the permit is from september 2011. this is proof that we were out on september 9, 2011. i am happy to answer any more questions. president hwang: was the date? you were there seven days later? >> yes. vice president fung: did you handle the discussions of the department? >> yes, that is correct.

vice president fung: and you were told by dpw that you did not have to have a new permit? >> that is correct. president hwang: far away is the truck at this point? >> the current distance is approximately 250 feet at the closest and 427 feet away from subway. at its closest, we moved 30 feet from our initial location, at its farthest 100 feet.

president hwang: you highlighted the day. >> the group permit was issued at a later date. they were submitted at the same time. commissioner: those dates do not coincide? >> it is a little bit complicated.

that permit i have a copy of that. this is what i am referring to. president hwang: this is rather than the 2012 issuance date? >> when we went in to renew the permit, the reissued it as that 35 number. i do not know why they did it -- they reissued it. president hwang: