and i would also argue while they may have entered into contract obligation, that letter of determination was on the public record since 2010. so that was out there for the public to be aware of and i don't know why they would have entered into a lease when i would assume that they would have full knowledge that location was a suitable location. i guess i would want to clarify that the suitable location, because we're not speaking to whether or not it's an appropriate use for that location. we're not getting to that argument, that is a question for the planning department to make a determination on if this was not located within a thousand feet of the recreation center this. is located within a thousand feet of the recreation center and it's not a property that can have an mcd on it under the planning code. so i wanted to clarify that.

we're not making a determination on the quality of use, but it has the restrictions because of the proximity to another property. with that i'm available to answer questions. thank you. >> mr. sanchez, if you could direct me to the provisions of 790.141 that require or indicate that the measurement must be done in a straight line? i would like to focus on that language. >> so the language included on page 2, in the second paragraph, the language -- the parcel containing an mcd must not be located within a thousand feet. >> let me just -- >> i request can put it on the overhead. >> it's on the 2010 lod as well. is this correct.

for example, notification, we notify property owners within 300'. we notify and do a radius around the property in order to find that. so that is standard practice for any time the code says "within," that is how we have done it. there used to be similar

restrictions on adult entertainment -- on massage facilities, it used to be a thousand-foot requirement on those as well. that is how we could calculate it. >> do you see no wiggle room on the term and definition of "parcel?" as the appellant would like us to sort of read into this language? >> i mean, i am sympathetic to that. to me it would be the other way around. if you had a very, very large parcel, a large park that had maybe a small recreation facility. i mean, i think maybe there would be some cause for discretion in a case like that, but in a case like this, i don't feel that there is any wiggle room, honestly. i think we made an appropriate determination three times now, that this parcel is within a

thousand feet of the other parcel of the merced heights playground and that contains a recreation facility that is primarily used by those under 18. and i believe almost the entire merced heights playground is within a thousand feet as well. >> i just want to be very clear. i think i heard the appellant said and if it's different from your measurement, if you were to take and subdivide the parcel on which the proposed mcd is located, if you were to subdivide it into subparcels or i don't know what the term is, but if each sort of leased space were a stand-alone property with it's own sort of parcel site. if you were to measure from that point to the perimeter, the closest point of the area on which the playground was located, would that be a 1005 by your measure, by your straight line? >> we did not measure that. >> okay.

>> from the leased space to the park, we did not measure that, because the code, i think is very clear saying "the parcel." >> so you wouldn't dispute the 1005-foot measurement? >> we haven't done a review of that, so i couldn't dispute it. >> okay >> is there any public comment on this item? seeing no public comment, mr. girardi, you have three minutes of rebuttal. >> thank you. what i said i was at the merced playground and unable to walk on my own and find cambon. it's not -- it's not an easy path to walk, although some computer systems it's .5 miles to walk. i guess i'm going to lean on what you said is that the

parcel containing the mcd, the parcel could be -- the leasehold, the space that we leased for this project is a parcel of land. and if you measure from the parcel of land where the mcd is to be located, and you measure to the merced heights playground, it's over a thousand feet. it would be unfair to tether the entire stripmall. it just doesn't make sense to attribute the space to the mcd for the entire parcel, the parcel we leased is where the mcd will be and as a result we are outside of the 1,000-foot radius that. is all. >> on the question of the request to your client's third

lod request and it appears on what mr. sanchez stated from what it appears to me just looking at it, look thats like another one was filed that you had an opportunity to appeal it to the board, because you already knew what the answer was and came twice. can you respond to that? >> absolutely. i'm a lawyer. when i go to court and you talk to the clerk, the clerk says i can't give you any legal advice. the planning commission is very different and whoever answers the phone is free to tell you what to do and i defer to their knowledge and mistakenly i did this. the first request was made by a party i have no idea who with it was. >> what i heard was the chronology, which was different from what i had originally understood and maybe i misunderstoodown the

three-unit building back when the neighborhood plan was being developed i went to several public hearings because i was

concerned about the zoning classification contemplated for this building next door and someone might come along and decide to put a restaurant, or liquor store next to my resident and i wanted to make sure that my neighbors and i would have some input into change of use. i as was assured repeatedly it would not take place without us getting prior notice, so concerns could be identified during the review of the permit. section 312 of the planning code is our safeguard. well, guess what? now i am before you tonight because the change in use is the type that i have been assured could not take place without prior notice to me and my neighbors is taking place without any notice whatsoever. i beg you to not force me, my wife, my tenants and my neighbors to live next to a restaurant that will pollute our homes with kitchen exhaust

with developlation and restaurant operation noise, especially without having given us an opportunity before this evening to register our concerns. this forum is not a level playing field in which for us to be getting our first bite at the apple on this issue and i really wonder why. the guy wants to have a restaurant, okay, follow the proper channels, give people notice and work with them to resolve problems rather than sliping it under the radar by manipulating the system and browbeating inspectors. i also believe that by interpreting the new restaurant ordinance in the manner it's been interpreted, my neighbors and i have been completely cut off from seeking review of this project before the permits were

issued. i urge you to revoke this perform and -- permit and spent tens of thousands of dollars to be with you tonight and what we have discovered is that this thing has some serious problems and i don't think i should be doing the due diligence on this at my expense. thank you very much and i defer to my attorney. >> that means that every starbucks, every pete's, every doubt nut shop in a residential district, every gas station that serves food can become a restaurant without any notice to their neighbors. i believe that is the actual implication of the zoning administrator's decision. fortunately i don't think you have to reach the section 312 issue in this case, because we have a fatally defective permit as a result of inadequate

review by the building department. mr. duffy is going to address those issues and i believe he will confirm what i'm about to tell you. december 3rd, monday of this week, housing inspection division of dbi issued a notice of violation after inspection of this subject hood feature before you tonight. the construction of this hood and duct work in its existing location within a substandard light well and residential building where tenants are living results in substantial housing code violations. >> make sure there is a copy given to the permit-holder. >> december 3rd, two days ago.

in addition, what we have learned from the review by the building inspection department is that the applicant submitted blatantly inaccurate plans that failed to show their residential level of occupancy in this boeing that was being impacted bit exhaust duct for this hood. the applicant concealed that the vent travels through a second floor light well and residential levels of occupancy that are occupied by tenants here with you tonight and who will be testifying. they failed to show a series of bedroom windows in front of which this duct feature was placed. we already have a substandard light well by placing this large duct feature in the middle of the light well the housing department determined a housing violation occurred. we have a permit that involves heat, smoke and fire-creating feature, that was installed in an r2 residential building and was approved without any review whatsoever by the fire department. the fire department review was

absolutely required and mr. duffy will tell you why that is the case. in addition, today i learned that a correction notice was issued by inspector duffy, basically confirming everything that i just told you. this permit is fatally defective for the reasons that i explaineded. if it had received fire department review, and in addition, it doesn't pass the housing code. >> the fighter captain was to attend, but he had some dental work and i have talked to the fire department and they have not seen them. the areas of concern that they have is the exhaust duct penetrating two fire-rated walls without required dampers. it's a defective requirement

and the fire department has absolute jurisdiction. it also has issues with where the exhaust is going. there is a 10' rule that the exhaust has to be within 10' of an opening. it's not, it's 2 feet away the drawings actually say there is a sprinkler system here. there is no sprinkler system. you can't have a duct next to windows here and when you actually look at the drawing, that they submitted and hopefully i can show this. there is requirements that this duct be 10 feet away from the property line. they are showing penetrating walls. the fire department would never have approved this and the health department housing would never allow a duct shaft. it's not permitable in a shaft.

>> you also have to have access to the shaft for the cleanouts. >> what shaft? can you point to the picture? >> the shaft that they are doing is right here and they are showing a clean out in the sheet metal without understanding that they have to have a clean out in the sheet metal and the fire-rated wood shaft.. they are penetrating what they call a one-hour wall, with a positive air make up for the exhaust fan for the hood . that is a rated wall and they need a fire damper there, in case there is a fire in the system. there is also an issue about penetrating. >> there is something block the overhead. >> i think the shade. >> the way it's folded.

i don't know what the problem is. >> this is the penetration through this one-hour wall. it's a tradesmen -- is that better? it's a tradesman exit. they call it a tradesman, but it's a required exit from the rear yard and if you are going to penetrate that with an air intake, you have to have a fire smoke damper there, which is what the fire department would have caught. they also have a penetration from the restaurant into the entrance into the building. which would have required a fire smoke damper and more or a more important issue, a fundamental issue, they failed to get a permit for change in use from the previous use to a less than 50 restaurant >> thank you. >> and the last thing is what is more important and this is a housing issue, these are the windows.

here we show one window, there are five windows in this light well and where they have drawn this shaft is directly in front of a bedroom window. directly in front of a dining window, which is a significant housing complaint in my discussions with rose marie the chief housing official this morning, they said this duct could never be in the shaft. no way, no how. >> thank you. >> we can hear from the permit-holder now. >> good evening madame chair lady and good evening members of the board. my name is gus and even as you

look at, this we have a lot of contradictions that are occur. now we only came across these citations this evening, at least i did and we had basically no time to respond to them. to make matters worse, you have a citation dated on the 3rd of december. you have another here dated the 4th of december. they are diametrically different. this one is talking about the violation. and this one is talking about a correction notice. and there is much difference between them. and the violation or the citation that mr. duffy is aware of is the one that is asking for correction. this is the one that we got from here. we just got this a few minutes ago.

while mr. boskvich was talking. the issue is whether or not an installation or addition of a hood requires this notification. yes, the zoning administrator and mind you the zoning administrator has authority to make interpretations on the zoning code, as far back as 1996 has interpreted level 3 notification not to require for mechanical equipment additions. what level 3 is what 312 is to commercial or neighborhood-commercial users. basically the zoning administrator has seen it fit to be consistent and make the same interpretation with this particular project. now what we have seen here is first of all, we are disputing

that it needed any 312 notification on the current planning code. basically these people would like you to come and address the issue of code amendment here. this was done. they never went there to appeal or comment on it, but bringing it here. it's a fact that the zoning administrator will know that addition of a limited restaurant to a coffee shop from january of this year has the same definition and therefore need nod needed no notice. it's not a change of use and, in fact it's not an addition. it has been like that from the beginning of the year and done by the city. so we're not coming here to debate that.