organizations. the twin peaks tavern at 401 castro street is associated with the lgbt history known as the first bar in san francisco to operate with the large expenses of glass allowing people to see, insed of hiding those in side. it is in the heart of castro and continues to serve the community. it's been in operation since 1972. also before the full board on tuesday was an appeal of the subdivision for one capital avenue. this project was before the planning commission in 2010 as a rezoning from p to rh-1, also needed a pud and the conditional use authorization to build 28 single family homes on previously surplus public lands. since the commission hearing the project has a new owner, habitat for humanity and they bought the

entitlements. they retained the features of the entitlements, and instead of providing 15% inclusionary housing on site, they are providing 100% affordable family sized home ownership housing. appellant raised concerns about the change in ownership. staff explained ownership has no bearing on the subdivision approvals. supervisor cohen asked habitat if there were any common areas where the appellant could use to access for their own gardening. supervisor avalos stated he had mediated a meeting between the opponent and habitat offered to build raised beds on the appellant's property but the offer had been refused. with that the public hearing was closed and the board voted to deny the appeal. and then the board lastly voted on a final reading of the

ordinance introduced by supervisor campos allowing personal service uses on the heard this and approved it at your november 29 meeting. there are two new pieces of legislation introduced this week coming your way. first was introduced by supervisor ferrell and it would allow medical service in the sacramento neighborhood commercial district. it would permit a change of use from business or professional service to medical services on the first floor. also this week supervisor avalos introduced a rather large ordinance titled conversion, demolition and conformity of residential uses. this would revise the criteria for residential conversion and standardize definitions for these uses across various use districts, permit enlargement of dwelling units which are non-conforming as to density in

the districts where these dwelling units are principally increase into the non-conforming elements of height bulk are required rear yards or setbacks. this would permit alterationses to non-conforming uses or non-conforming structures to comply with disability access requirements, or in order to provide the secure bicycle parking. lastly it would establish a strong presumption in favor of preserving dwelling units in enforcement of requirements for these non-conforming uses, structures or lots. so those are the two new ordinances. we will schedule both of them for hearing before you. the zoning administrator did pass on a short report from the board of appeals this week. they elected their officers and selected commissioner chris hwang as president, and commissioner ann lazarus as vice president.

>>@nrí7 good afternoon -- >> were there questions? commissioner moore. >> commissioner moore: ms. ms. rodgers. a very special element to it. just wanted to mention that. >> thank you for that. >> president fong: commissioner antonini. >> commissioner antonini: thank you. a couple of things i was interested in learning the twin peaks tavern allegedly the first of the bars with windows where you could look in. the first of the so-called fern bars because i thought ith&::úss henry -- it would be the late 60's early 70's. but on another note, i heard about the avalos legislation. and, now, i remember we've, on numerous occasions considered our policy on demolitions and

reset the policy accordingly. so i don't understand why -- i guess its strfl administrative i don't know why the board of supervisors -- >> the clerk of the board has not transmitted the full ordinance to us yet but we will, in our analysis, review, as you said, we've done recent updates to our merger criteria and will review that history when we bring the ordinance before you. >> commissioner antonini: but we would presumably be the decision-making body on that if it's planning code. >> the board of supervisors is the city's legislative body so you as the primary land use body you get to make a recommendation to themn is non-binding, and the final vote will be at the board of supervisors whether to change that law or not. >> commissioner antonini: i just remember previous instances of us discussing these policies such as mergers and demolitions. revised them over the last few

years, and i've never heard of any appeals or any action by the board of supervisors on our policies in the past. i guess it doesn't mean they can't do it, but its kind of a change. >> we'll get that history and i'm sure supervisor avalos would like to explain the impetus of the legislation at the hearing. >> commissioner antonini: thank you. >> thank you. >> good afternoon, commissioners, tim frye, department staff, here to share with you the results of yesterday's historic preservation commission hearing. there are two items that were on their calendar, that i think are noteworthy to share with you. one was the review and approval of an interpretive display for the site occupied by the roache building at the intersection of mission and 15th street. the building was demolished to make way for 181 off street

parking spaces. the project was reviewed and cleared through ceqa in 2000 by this commission and one of the mitigation measures outlined in the final environmental impact report was the creation of an interpretive display that was publicly accessible, that outlined not only the history of the roache building, which was an important lithography and printing business in the city but the building functioned as a social hall for the german-american community. it was meant to cover all of the history of the building and be located with adjacent to a public right of way. the historic preservation review commission reviewed the content and found it to be adequate however the design, which includes a series of printed ceramic tiles, they felt was disruptive to the content on the interpretive display.

while they did approve the content and the location, they did ask the project sponsor to continue working with the planning department on either a suitable material to properly display the information, or to redesign the interpretive display to better follow the ceramic tiles that are being proposed as the mounting mechanism for the display. the second item is the commission provided recommendation on a mills act contract for 201 buchanan. this is the nightingale house on buchanan street near waller, instructed in 1882 -- constructed in 1882 this is the first mill's act contract to be heard by the commission and the board of supervisors since supervisor wiener sponsored it

for property owners to take advantage of the property tax savings. the commission commended the new property owners to their commitment to fully restore the nightingale house. much of the property tax savings will go into the full restoration of the property. the commission did#clunanimoy approve the project and afforded a positive recommendation to the board of supervisors, with a couple of caveats or conditions to continue working with staff on a few minor details of the contract, mainly the phasing of the restoration to make sure that staff has the most updated information about when work will occur, and when staff needs to go out there to review the completion of that work, according to the state mandated requirements of the program. that conclude my presentation. and unless you have any comments. thank you. >> president fong: thank you. commissioner sugaya. >> commissioner sugaya:

mr. frye, in terms of the mill's act in general, i know that under supervisor wiener's revisions there is now a yearly kind of process, as i understand it. and the initial deadline for let's say 2013 is may 1. but if someone turns in an application for mill's act, let's say next month, will that get scheduled before may 1, before the hpc, or will you hold all applications until may 1 and then start the hearings process? >> commissioner, you are correct. the may 1 is the deadline -- or the annual deadline for the mill's act contract program. however if we do receive any applications in advance of that, we will start working on them right away, mainly to give the assessor enough lead time. the technically has 60 days to respond. they have the opportunity or

discretion to hold on to them until may 1 but we work on them until they start to trickle in. >> if the assessor does the work would you then carry those on through to the board of supervisors? >> that is correct. >> thank you. >> commissioners, that will place you on item 7, discussion of state court decision. >> to him lack rits from the city attorney's office. as you know, just before the end of the year, there was a state court decision on the litigation, and tom is here to give you the update on that. >> good afternoon, president fong and commissioners. as many of you recall, in june of 2010, i think june 24, a project came in front of the

certification of an eir, a conditionalpjx use authorizatio, and an application to the zoning administrator for a variance. at that time, there was a motion to certify the eir. it received three votes in favor, four votes opposed. so the motion failed. there is no subsequent motion to not certify it. the then-commission went on to the next item on the agenda which was the conditional use authorization, which was denied. the zoning administrator subsequently denied the variance application because the -- cu had been denied. subsequent to that, the department of building inspection canceled the related

demolition permit application, and building permit application associated with the proposed project. in july of 2010, the project sponsor and the property owner filed a state court action against this city, challenging the denials. in december of 2010, they filed their first amended complaint and petition for writ of mandate, which we litigated. and we filed what's called a demur which is a motion to dismiss, which was granted i believe on july 1, 2011. the project sponsor and property owner were given leave to amend. they did. in an august of 2011, they filed the second amended complaint which included 11 causes of action. they were challenging the

decisions -- all the denials, damages, based on the denials, undertakings, and federal civil rights statutes. the city filed a demur to the second amended complaint and also a motion to strike portions of the second amended complaint. in october of 2011, part of the complaint was stricken, and part of the complaint, the court sustained our demur. but in most part, the court overruled. and the question that the court decided was had the plaintiffs, both the developer and the property owner, alleged an

exception to the requirement that they ex-awft their administrative remedies. we argued strenuously that they had not, and the trial court concluded that they had. the city attorney's office felt that the trial court was wrong, as a matter of law. there is a number of cases from the california supreme court. and so we decided that it wasn't -- it was an important enough issue to seek immediate relief from the california court of appeal. so in november 2011, we filed a petition for writ of mandate with the california court of appeal, asking that the court instruct the trial court to sustain the demur, and dismiss the entire case.

after a lengthy briefing and a lengthy period of time, on december 21, 2012, the california court of appeal did that. they issued a decision, which i have a copy for people who haven't received them. but it's public document and it just says we've reversed the decision of the superior court refusing to sustain the demur to the second amended complaint in its entirety, we direct the court to sustain the demur to the second amended complaint in its entirety without leave to amend. on december 28, 2012, the project sponsor filed a petition for rehearing, asking the court to reconsider this -- its

decision. on january 9, the court of appeal denied the petition for rehearing. one of the causes of action that the superior court -- the trial court agreed with the city was, in the second amended complaint, they sought a court order, compellin_j@/ the city to issuea demolition permit. we argued that in san francisco, demolition permits, like all permits, are discretionary and a court cannot compel the city or the commission or the department of -- inspection to exercise its discretion in any way. the project sponsor and the property owner also filed a petition for a writ of mandate

in the california court of appeal in november of 2011, contending that the trial court was wrong, and that the court should have compelled the city to issue the demolition permit. that petition for writ of mandate was denied by the mandate was denied by the california court of appeal43 according to the california court of appeal's website, they will be issuing a -- which will send the city's case back to the trial court. i'm happy to entertain any@%( [d questions about the court decision. >> president fong:

commissioner antonini. >> commissioner antonini: one thing i didn't understand completely, during this, is there was an action that was taken by i believe it was either superior court or an appeals court in august of 2012, where they did agree with project sponsor on the issue of whether it was appealed to the board of supervisors or not. and it seems to me that this seems to be a yes or no issue. how could it be confusing, whether or not project sponsor appeal to the board of supervisors, it would be a matter of record if they did, or maybe they tried to do it and it wasn't accepted. i don't understand how that would be a gray area. >> i'm not familiar with the decision that you're referring to by the -- from the california court of appeal. i'm not aware of any -- >> commissioner antonini: that was part of your presentation

today. >> deputy city attorney mar leta burn. i think i understand where the confusion is. the question in the litigation wasn't whether or not they had tried to appeal to the board of supervisors. they had not tried to appeal that decision to the board of supervisors. so the question that the court had to answer was, given that they did not try to appeal, was that failure to exhaust their administrative remedies, meaning they hadn't gone through the entire city process. >> commissioner antonini: i got it. so there was no question that they had not. that was a given. and so that was the basis for our first motion. in response, there are some judicially recognized exceptions to the exhaustion of administrative remedies requirement. their first argument -- and i

want to make sure i get this right -- so the trial court overruled the city's demur, because it found that the developer and the property owner cu to the board of supervisors, and i'm going to quote from the trial court's order, because the board of supervisors is the body that started the landmarking process, and it continues to landmark the building through other city agencies like the planning commission. the board of supervisors adopted a resolution which initiated the then fact finding process to determine whether or not 1601

larkin should be designated a local landmark. that went to the then-advisory historic preservation commission. and to this body, that made a recommendation to the board of supervisors that it be designated a local landmark but the board never took that action. and we were involved in the litigation back in -- through 2007 through 2009. so what the project sponsor and the property owner argued and there's no use appealing the supervisors because the board of supervisors wanted to designate it as a local landmark. so why should we go to the board of supervisors to ask permission to tear it down and build condos

when they have already indicated that they wanted to be designated a local landmark. and what we argued in the trial court and in the court of appeal that, as a matter of law, that that is insufficient. another argument which they made, at the end of the trial court proceedings, and in the court of appeal, was that it would have been futile to appeal the denial of the cu to the board of supervisors because since there was no certified eir, the board was without authority to grant the cu. because you can't -- because this project needed a certified eir, the board couldn't -- under their theory,g2jpñ could not hn appeal of a denial of a cu, where there was no certified

eir. and the court of appeal rejected that argument as well. >> commissioner antonini: interesting, yeah. it's always been my experience, just in relation to this, that -- been reticent to approve environmental pieces, and not do the conditional use on the same day because of this appealability, whereas once the -- you know, it has to be appealed as a group, if both have been passed. so i can understand where the argument was being made to the courts on that. and then the final thing, which you didn't mention but probably isn't part of this is the fact that whether or not a religious institution is -- can be compelled to preserve one of their structures if they're not using it. and i know this is another state issue that probably was not a matter of this particular action. but i know that was argued by

project sponsor. >> that waszqjyí argued in the litigation that was involved over the landmarking. and it was tangentially argued in this case in regards to the demolition permit that, based -- they argued that based on the court of appeal decision in the landmarking dispute, we hadlú( o discretion to deny the demolition permit, because of that issue. but they are challenging that decision on religious basis in the federal action, which is

also still pending. >> commissioner antonini: that's still active. okay. thank you. >> president fong: any additional comments? okay. thank you very much. >> thank you. >> president fong: opening it up for public comment. joe butler, rowena jen, her oshi. >> good afternoon, president fong, members of the commission, joe butler and i represent the friends of first st. john's united methodist church. as an architect in the city, we are pleased that the city has won its case in state court, and we would ask that the city continue defending the decisions of this panel in the federal court lawsuit as well. we think that the case that's before the city is important to other historic resources,

including the one which is at question here. and we would hope that the city would continue in its efforts to secure, as it were, the ability of this planning commission to make decisions on replacement buildings without, which, as you know, no demolition permit can be issued. thank you very much@%(hk. commissioners. my name is rowena jen, adjacent neighbor to the east at 1600 larkin street, have been there since 1972. i was not very prepared for this meeting today because i heard from judge beerl that there would be no action until march. so i had to cancel an appointment to get here, but that's fine. but since the last hearingynno@n december 13, 2012, after repeat

requests by this commission, including commissioner antonini, who was for the project, and the mpna members, and neighbors, we still have not seen the kind of security that we asked for when the first 30 foot ledge fell off the roof. in 2009, when dawn asked them can you just make it safe so somebody doesn't get killed walking on the sidewalk. and i agree with dawn and basically there are a lot of children, mothers walking with strollers, very elderly people with walkers, people walking their dogs, joggers. i don't want parts of the building just falling off on people because a developer and the sponsor just don't care and they just want to make some money or change the neighborhood, market rate condos, whatever, you name it, they don't want the church, they don't care about the neighbors.

when that happened, at the first request from mpna, we had retaliation because there were holes punched out on the corner of the church. and then after that, after all day saturday of hiring cherrypickers, they brought a drill and took out the entire stucco wall, and said they needed to make a hole really big for dry rot by dbi. dbi inspector came out and didn't do anything because he's a friend of the developer. solar lights were put in after many requests, but then they go off at night, before i go to sleep. some were replaced so they're making some kind of effort. but only one stays on, on the corner of play street. and its kind of dim, so it doesn't really do that much good. since june 15,