access, and something called "social connection" with the adjoining property was a part of the required condition to deal with transportation congestion problems, and the ability of many future residents at the project site to use the municipal railway, so that the condition required pedestrian paths across park merked. now, it's not paths. it's a path, singular and giving notice of letters of determination does it with no notice to the applicants. the

only notice reflected on that letter of determination was to the planner assigned to the project in the planning department. the respondents raise the point that the time to appeal that expired. how the heck can anybody appeal something with respect to which no notice was given? then on april seven, 2009, about nine months later, same zoning administrator issues another letter of determination determining there has been no lapse, and the conditional use authorization remains valid. that letter of determination sets no date of lapsing, and as a matter of fact the owner

doesn't even submit a building permit application until late in the year 2012. in its year the planning department mischaracterizes the grounds and claims not so slyly the appellant argues that the zoning administrator doesn't have the authority to interpret conditions of appeal. that's not what the appellants argue. there are matters with respect to which interpretation is valid and legal by the zoning administrator, but interpretation is not the same as changing or modifying, and what the action of the zoning

administrator constituted was a modification which under the planning code only can be effectiated by the planning commission itself. therefore, the appellates ask that you revoke and declare null and void a permit which has [inaudible] by reason of a failure to comply with the condition established by the planning commission on may 19, 2005. >> thank you. >> okay. we can hear from the determination holder now, mr. guttle. >>

>> good evening commissioners. steve guttle from farella braun & martel on behalf of the permit holders. let me briefly describe the project to you. 800 brotherhood way is a 7.7-acre site and approved for a subdivision with 182 units to be built. it's a complicated project. it required a host of permits since 2005 all of which are now in place. it is has been a challenge to finance the project during the recession and financing stopped across the country. that situation is resolving itself and the project has a new sponsor and financing is in place and posed to start construction in the new few months pr this appeal

is denied. the planning commission adopted this mitigation and conditional use permit in 2005 and update this in 2005. there was no appeal of the pud to the board. the appellants, the same group sued the city in 2005. the superior court upheld in 2006 and the board of appeals did the same in 2007. there was a tree removal permit issued and this board up leld that permit in 2007 and this city and the board was sued and the superior court denyd that writ and up held the permit. they have been diligent with the map and puc and relocation agreement with the

arts commission and restore the statute at the site and install a traffic signal with mta and sidewalk ordinance that the board of supervisors approved lasted year and a second tree removal permit. in august of september of 2012 my client submitting grading and permit applications and now currently under review. site work is scheduled to begun this spring. the approval of the conditional use permit is unusual. let me quote it verbatim "if there is lapse for three or more years and null and void and reverse to permit permitted in the district" and lapse and issued between three years or any

particular action within the three years and. conform we're are compliance of this we asked that the zoning administrator to make sure it didn't lapse and pursuing the project. the zoning administrator issued determinations in 2007 and 2009 and again in 2012. neither of those first two determine actions were appealed. the october 2012 is the subject of this appeal and the only subject of this appeal. in issuing the 2012 letter of determination the zoning administrator had ample evidence that did not lapse for a continuous period since 2005 and summarized in the brief and attached are exhibits.

accordingly there was no abuse of discretion by the zoning administrator. the appellants tried to complicate this deal. first they did the zoning administrator had no authority to issue this and the brief goes into detail of the authority who does have to issue such determine actions. a second as mr. cobb just stated they're asking to review a 2008 letter of determine action concerning a different letter of approval. that was not appealed in 2008 and cannot be the subject of appeal now. the third they're requesting that the board reconsider the planning board's conditional use findings in 2005. they ask you to revisit the wisdom of this project. that decision in 2005 was appealed to the board of supervisors and only within 30 days. neither of those things happened. the conditional use permit is now before you and nor could it be before the board of

supervisors. we are requesting that you focus solely on what is before you. what is the zoning administrator abused his discretion of october of last year and determining we didn't abandon the permit for the continuous use of three years. as the litany of the permits we obtained, the other actions we obtained and the documentation in our brief demonstrates there is no period of lapse of that permit of the use much less a three year lapse. the evidence is overwhelming that the zoning administrator didn't abuse his discretion and looked at the facts and we didn't abandon the project and the use didn't lapse and that the project can move forward. members of our team are here tonight and can answer questions you may have and chris hawk from mission development

group and another colleagues and thank you very much and ask you to up hold the zoning administrator's determination. thank you. >> thank you. mr. sanchez. >> thank you, as noted this is appeal from the zoning administrator letter of determination and requests that the department specific ask that the time lapse of approval of the authorization has been violated and i would answer that question and response. background on the project. it's located at 800 brotherhood way and residential low mix zoning district and height district. the subject property is more than 7 acres so it's a large project. the project sponsor began with the application in 2003 with submittal of environmental review application. it was consequently heard by the

planning commission in 2005 and in may and the planning commission heard appeal of the mitigation and environmental determination for the project as well as the conditional use authorization for the planned use development, pud. it's something that is allowed under the planning code and section 304 where if you have a large property more than a quaker acre then you can go through this process. the pud allows for density increase. it allows you to go up to the next allowable zoning density district minus one and allows for other mot ifzs to rear yard so the project was approved for 122 lots with up to 182 dwelling units. i will note while there were exemptions from the area and rear yard requirements of the planning code the project didn't require variances and handled

the pud process and under the limits of the planning code. they didn't seek the ability to go up to the next highest district. based on the lot size they are allowed up to 408 units and up to the next one is 557 and this is well within the amounts allowed under the planning code. i would note that the planning department decision of conditional use of approval and in paragraph five of a.d and states "if there is a lapses for three years or more and null and void and revert to use principally permitted in rm1 and four zoning district". it would be noted it didn't require them to get building permits within three years in fact the

code states that the planning commission may put time limits as a condition of approval and otherwise if there are no time limits it's within a reasonable amount of time, so the planning commission did say that three years was a limit. didn't say they had to obtain building permits within that time. as i read it they need to work on the project on fulfilling a project and if there sigh lapse it's a violation of the commission. in 2005 the approval of the mitigation was appealed to the board of supervisors and on the conditional use authorization. the board of supervisors upheld that in august and subsequently a lawsuit was lyleed to the california superior court and the matter was finally dismissed in march of 2007 by the california court of appeal and

requested a letter of determination and the conditions of approval and the authorization itself during the time of the appeal and the lawsuits which the letter of determine action was issued in 2007 that confirmed that. there were subsequent letters of determination as noted in the 2009 which requested a determination on the lapse period and we found in 2009 that the lapse period had not been violated. you will note in 2008 the department of public works approved a map for the project. the project sponsor continued to make good faith efforts to work with the department and work with our team to come up with an application of permits for the individual units because each lot needs a application and we're reviewing 122 permits for the project and ensure they comply with the requirements of the planning commission's

decision and submitted permits for grading in 2002 and seven different building types repeated throughout the development and they submitted the prototype for those in september of last year. in october they requested a determination which is on appeal now that the type lapse period has not been violated and we found based upon their continued efforts over the years didn't violate the conditions of approval. i will the appellant in their brief did argue didn't have the ability to argue the conditions of approval. i understand the nuisance raised in the arguments but the planning code is clear and the zoning administrator has the ability to enforce and determine conditions of approval. also argues were raised about the merits of the project and explained clearly. the merits

of the project should be in a appeal of the authorization to the board of supervisors. no valid appeal was filed at the time and finally there were issues with a letter of determination with compliance with another issue of approval. that is now more than four years ago. to my knowledge no request for jurisdiction to this board that the matter be brought back to the board. that is now a letter of determine action and by more than four years so with they am available for any questions that the board may have. thank you. >> just a point of clarification. you said the grading permit application was submitted 2002? >> no, so. submitted early 2012 within three years of the letter of determination and the state of the time lapse had not been violateed. >> i have a question. in general what is the purpose of a time lapse period, of imposing

one? what is the purpose of that? >> fwrairchgly the planning commission has discretion and the time and performance conditions they place on conditions of approval. the typical one is you have to obtain the building permit within three years but again most projects and conditional and authorization and restaurant in a neighborhood district, not for a subdivision with 122 lots and more than 180 units so i think that the condition of approval that the commission adopted in 2005, and i am speculating here, but i believe it allows flexibility and size of the project and flexibility to pursue it. >> okay. >> i have a question. it seems to me it does hinge on the lapse use question and this may sound a little convoluted, but are there documents or other

material that an applicant could submit to you that might look like something is happening but in fact isn't? does that make sense? >> yeah, i i think what they have done here and they worked with several planners because planners have rotated off this project but speaking with the planners they felt they were making honest efforts to commence work with the project and i am getting calls from the project sponsors' attorney regarding how we're reviewing and interpreting those building permits. we are actively reviewing the permits filed so i feel there are good faith efforts to move that on. if we sent them a notice of planning department requirements and they didn't respond to that and three years passed that would be a violation of that condition of approval but seems they are continuing to make efforts and the commission in 2009 acknowledged the state of the

economy so that is a factor and some projects may not move along in a timely fashion because of the economy and ability to obtain financing and that might have caused delays and the litigation. >> and arguably you have some discretion what are "good faith efforts" to not have a lapse of use? >> correct and i believe the applications filed and the work with us and other agencies is significant to find they have not violated the time lapse provision. thank you. >> mr. sanchez, along the same lines then. part of the documentation that was provided to you with the letter requesting the letter of determination supposedly had a lot of detail what efforts had been ongoing and you didn't

include that in our -- you did not include that portion of the attachments with your copy of the letter from the attorneys. >> if i understand you correctly it wasn't that it wasn't referenced in the letter of determination or included in our brief? >> no. it was the level of activities, the detail on dll going to demonstrate -- not a lapse, part of lod's requesters' letter and i believe you didn't include those as part of your -- >> are you correct and i felt that the request for letter determine action request. >> >> stood on its own and referred to that and the information in the request was sufficient simply regurgitating the material in the request and our letter of determination posted

on the website does include that so that information was all available and that is attachment to our determination and incorporated by reference. >> okay. >> thank you. >> okay thank you. so we will take public comment now. can i see a show of hands how many people are planning to speak on this item? okay. same process as before. i ask that you prepare a speaker card if you're willing to do that so we can prepare the minutes properly and i want to remind the rules of the board that representatives of a body shall address the body during that time and may not speak during public comment and with financial or close connection with a party, family members, architects or contractors or similar paid agents and i want to emphasize this section. appeals with an organization is a party officer

members or governors members of the organization so please make note of those restrictions. if people could line up on the far wall for me that would be very helpful whoever you would like to speak and whoever wishes to speak first can approach the microphone. >> good evening. david pilpow, speaking as an individual. i review the file on this matter. i believe that the lapse of use really is the central issue here. neither of the parties appeared to address the definition of lack of use -- excuse me, of lapse of use. it's not clear if that is defined in the planning code or if that's merely a term of art that the zoning administrator may define or monitor.

depending on what constitutes a lapse of use it maybe that the permit holder at issue here has not properly exercised their authorization and may well have lapsed in their use of that authorization. if that is the case then i believe this board should up hold the appeal, over turn the determination and require the project sponsor to apply for new conditional use authorization but again that really turns on the definition of lapse of use. a couple other points. i think the conditions of approval and any mot ifzs to those conditions as referenced in the 2008 letter are not properly before the board and to bring them before would require a new drmentation letter that

the appellants could seek determining compliance with conditions of approval i think is also somewhat beyond the scope of this appeal, and i would encourage the appellants if they want to be notified of issues with respect to this property in the future to seek that notation as referenced in the previous case. i also would wonder about the ceqa status of this project. if the mitigated negative declaration is still valid for this project given changes in project conditions, circumstances, et cetera. if the city's environmental review officer needs to issue a letter to file so indicating. it would seem to me to the extent that this board is making a discretionary approval tonight that might have an impact on

the environment that you're relying on some ceqa determination, and if that mnd is not valid or arguably changed due to park merced or san francisco state or other changes to the project or other circumstances then i think that environmental determination might be at issue in your discussion tonight. thank you very much for your time and i was not sworn in earlier so do i need to verify that i blah,, blah? >> if you would like to be you can be sworn in. >> okay. i hereby affirm that the statements that i made are true to the best of my knowledge. david pilpow. is that good enough? >> thank you. next speaker please. >> good evening commissioners.

my name is julian lagos and the founder and chairperson of the save park merced. it's a neighborhood organization founded in 2007 for the purpose of preserving our historic community as an affordable place to live in san francisco. i come before you tonight to reiterate our support for this appeal brought by the brother hood way coalition as stated in january 33, 2013 letter to this body. we agree with the appellant's argument that the permit expireed in march 2010 and the new owners should reapply for the permits if they wish to develop at the site especially given the fact that the proposals by park merced and san francisco university were never factored into the planning department's study of the

brother hood way project at the time. additionally i would like to say for the record in recent weeks our organization has tried to reach out to the current owners of the property to discuss the development plans and impacts on our community, both with phone calls and emails have never been returned which in our opinion is a strong indication they don't wish to engage in serious dialogue with the residents about the project. finally also for the record people purporting to represent the brother hood way and coming into the community and marking trees and vegetation for removal to facilitate their project. we believe these actions were premature and illegal and clearly demonstrate the arrogance that the developers have for our residents. we

urge you to consider the additional facts in your deliberations tonight and decide to do the right thing and follow the law and up hold this appeal. thank you. >> thank you. next speaker please. >> good evening. thank you for hearing us out. i am mike dwier and born and raised in san francisco and i guess maybe i'm the only one that sees the irony over all of the argument on brother hood way going on tonight but i am here it's been stated there has been material changes to the area in both traffic congestion, usage by the local residents for riding bikes, hiking, running. there is a huge amount of traffic coming down and the congestion is traditional and from 2005

current. >> >> the situation is not the same. however, the key point i am here to discuss tonight there was a material change made by the zoning administrator who took it upon himself to cut down access to brother hood way for transportation purposes for multiple pathways to one path way. that simply is not acceptable with 182 units being built and i think we all understand that. i'm not sure how that hald. i was not part of that promise but at a minimum that part should be revisited. i understand the issues here are limited for the board of appeals but no doubt in my mind that is a material change to the conditional use permit and should have been referred to the planning commission and not the zoning administrator and i thank you for your time. >> thank you. next