>> before the gong goes down i want to thank ms. goldstein and the people that work in the board of appeals office for their helpfulness and their kindness since we first filed an appeal in december, and i want to ask -- i want to note first that again they're only four out of five board of appeals members present which again recommends that this be postponed until all five members of the board are here and present. i make that request madam president. >> your requesting to continue your request for a rehearing to date when all five of us are here? >> that's correct which presumably would be the next meeting of the board. >> and the reason is solely

because there are four of us here? >> that is correct. the reason is based upon due process to be heard by a appellate tribunal without all members presents constitutes a deprivation of due process. >> well, i have my own opinion of that argument, and we do have our own process here. i'm wondering what prejudice it would be to postpone for one week? what's the prejudice here? >> to the determination holders i suppose it's the prejudice -- >> it's being held up. >> the letter of determination is suspended until -- >> oh it is. i thought the last decision released. okay. i don't think the basis that you've stated is sufficient to move it another week. >> it will be noted for the record that there are only four

of the five members of the board of appeals members present and again before the gong goes down to my friend from hastings has everybody who is present of the four who are present read our brief in support of the request for rehearing? >> [inaudible] >> may i have an answer to that question? >> i don't think it is for us to state for you whether we have read the briefs or not. i think that's not for us to communicate to you here. you have made your submission. we have received it. >> it's shameful not to be able to answer a question as to whether briefs which are

encouraged and your rules have been read. it becomes an idle gesture, an idle act of the not only was the president absent on that date but thereby lost interaction with him and the benefits and comments by her. you never secondly disclosed those three who were present whether or not you read the brief which your rules encouraged us to take time and effort to file. you never responded to the matter of illegal action by the dismissed zoning administrator who on november seven, 2008 unilaterally changed a fundamental condition in

violation of the san francisco planning code without notice to the neighbors, us. unlike all four other letters of determination issued by that particular zoning administration. and a rebuilt park merced with 8,900 units, another the 3,000 units that exist now, and 18,000 more or less people residing there, not the 6,000 who reside there now requires a new environmental review. that is not eight years old but which considers current conditions. one of those is the approved permit for the rebuilding of park merced. a

rehearing is imimperative in these circumstances to present manifest injustice, violation of the san francisco planning code by a then zoning administrator and a deprivation of due process to tax paying residents of the city and county of san francisco. >> [inaudible] >> thank you commissioners. steve betel on behalf of the permit holder. we are asking to you deny the request for rehearing. the standard for rehearing are new and different material facts or circumstances have a risen or such facts or circumstances could have affected the outcome of the

original hearing. there is nothing in the testimony tonight that establishes those things. first of all as you know you had a quorum on january 9 with 4 members. your rules that are universally applied indicate four members may conduct business of this board, and you only delay or continue matters if the presence of the fifth commissioner would have affected the outcome. in this case the vote was four-zero to deny the request so a fifth member would have made nor difference to the case. there were also no procedural irregularities also. mr. kopp raises the letter of determination and it's not before you. it was final in 2008. there was request for determination. there is no reason the hearing can elevate

that determination into something appealable or subject to your consideration and factually that letter in 2008 did not eliminate one of the pedestrian walkways in the site was in mr. kopp's letter. there are still two walkways extending from the project towards park merced and third the project itself approved almost two years ago is not a new fact. it was known on january 9. they considered this project as the environmental analysis so there have been environment review, consideration of the project along with this project. there is no reason a new environmental review needs to be conducted at this time so on those bases i ask you to deny the request for rehearing. thank you. >> thank you. mr. sanchez. >> thank you. scott sanchez planning department plan. i

really don't have much to add except i have been in front of this board for seven years and i find it the best prepared in the city and county of san francisco and prepared for the hearings and ask insightful hearings. during that time the board has consistently applied the policy where there are four members that they will hear the item and if the missing member's vote would have made a change in the decision they would continue themselves so i don't see anything raised tonight was new information that wasn't presented at the previous hearing and i respectively request that the board deny the request. >> thank you. is there any public comment on this item? please step forward.

>> my name is dr. terrance faulconer. i am a [inaudible] committee man for the last 39 years to the republican central committee and delegate for the coalition of san francisco neighborhoods and member of the park merced coalition. i lived in san francisco all my life. i know the area very well. i think what he was aiming at and some of the others were trying to raise there were a lot of changes since this was considered originally seven and a half years ago. park merced wants to do a drastic rebuilding. they want to get the population up from 6,000, 7,000 people up to 25,000 to 30,000 people stuffed in a small area. since then 19th avenue has been declared a double ticket area because of traffic

difficulties already. there is increased population pressure on it if they do in fact tear park merced apart and get rid of the garden apartments and build the towers. there are a lot of problems with this. there are material changes in condition and no matter how you want to put it when people knew it the changes that have occurred are drastic and will change more. this whole thing needs to be looked at along with park merced because you will have much heavily stress on 19th avenue. you will have a higher accident rate. you will have more people getting in accidents and ending up in the hospital. god forbid maybe a couple of people killed. this whole thing is a big problem. it's been sketchily handled and park merced was chopped up and pieces were sold off and different developments

were approved at different times and the thing is going to be creating a lot more pressure than it has. i think you need to take a look at t i remember one of the colleagues of quentin kopp and was hl richardson and one of the lines in the california legislature is "what makes you think we read the bills?" and this is the same thing. i suggest you read everything you can on this because it's a terrible problem for the city. it will bring more pressure and more auto accidents and more difficulties. i strong urge you to take a careful look at this. it's beyond personalities. it's a problem. thank you very much. >> thank you. next speaker please. >> good evening commissioners. my name is julian lagos and i am

here before you on behalf of the coalition to save park merced a group dedicated to save our community for future generations of san franciscans to am can. we support the appellate on a repercent for 800 brotherhood way for the following reasons. on the last hearing on this matter january 9, 2013 the appellant asked the four commissioners present then whether they had read his legal arguments submitted weeks in advance of the hearing. not one commissioner answered in the affirmative. later it was reported by journalist tim redmond in the edition of the san francisco bay guardian that only two commissioners he contacted had read the arguments at some point in time. in the interest of justice we believe it's a duty of all five commissioners to do their

homework and read the legal papers of all parties prior to making a decision on important matters such as a proposed plan development which would seriously impact a community such as ours in park merced. failing to do so under minds due process and public confidence in our system of government. secondly, it has been brought to our group's attention not that all neighbors residing within the 150-foot radius of the project were notified of the january 9, 2013 board of appeals hearing including those living on josepha avenue and along the 300 block of font boulevard and 100 block of garace drive. this agency's failure to notice the residents of the january 9 hearing constitutes denial of due process and grounds for a

rehearing. for the aforementioned reasons we believe it's incumbent for the board to give the rehearing and his constitutional right of due process. thank you. >> thank you. >> next speaker please. >> my name is kathy lens. i am representing park merced coalition and group of residents and interested people in san francisco reserving park merced for future generations. we support quentin kopp proposal of due process that the president of the board was not present at the last hearing. we also want to say although this is a very narrow question this is much bigger than this narrow legal question. i attended every hearing over the park merced

project for the last two years. 800 brotherhood way was never mentioned. i don't know if was in the eir but it was never mentioned. it would be egregious to allow this to go forward because no eir's have been done with the project. together these projects are devastating to the environment and the school across the street. the planning comgz authorized increased air pollutants and toxins and add this project to that what are the school going to have? toxic air quality. are you going to have your children continue to attend the school? i ask you to stop this project now. thank you. >> thank you. >> any other public comment? seeing none commissioners the matter is submitted.

>> well, i'm happy to begin, and i was present at the last hearing, and i just wanted to state that at the time of the last hearing mr. kopp made almost the same arguments, i will call them, as he did today, arguing that he wanted all five commissioners here. that he felt that we were not prepared -- actually accused of us not reading briefs, and i just want to state we do take an oath when we agree to volunteer for this commission, and part of that oath includes the promise and the oath to be well prepared for all hearings and be ready to vote on all matters before us, so i personally take great offense at the accusation that any member of this board is not well prepared and has not put

in hours upon hours to prepare for each and every matter before us. we are public servants here, and as a fellow former public servant i would think that mr. kopp would afford us that same presumption of competence and dedication to what we have taken on when we take an oath to do the work here, so i have not heard apart from making that very clears -- i have not heard anything that would sway me to vote to grant a rehearing in this case. there's no new material facts, nothing whatsoever presented to us that would make me vote to grant a rehearing. >> i'm in concurrence with that opinion. it is a narrow issue that is before us which is the zoning administrator determination. i have heard nothing that is new with

respect to that. the issues that have been brought fortare better heard at either planning or the board of supervisors where they have the purview of those issues. >> i would echo the sentiments of my fellow commissioners and while just the i would like to reiterate that the position of not responding to the question of whether or not the commissioners have read the briefs is i believe a principled one and it's not to be taken as a presumption that we have not read them even though that is the allegation that has been hurled at us in the public forum and i do personally do as well

take offense. i know judges are often considered people not to read the briefs and maybe that's why that allegation has been thrown this way because he's been on the receiving end of the same, but i think in this case i would wholeheartedly concur with my fellow commissioner that we do take this role very seriously. i spend enormous times in litigation and i add to this time by being on this board and it's a privilege to do so and i take it seriously and dedicated to it and i believe it's the same for my fellow commissioners. on the merits here for the request i concur and i actually move to deny. >> thank you. mr. pacheco if you could call the roll please. >> we have a motion from the president to deny this

rehearing request. on that motion commissioner fung. >> aye. >> commissioner hurtado. >> aye. >> vice president lazarus is absent. commissioner honda. >> aye. >> thank you. the vote is four-zero. this hearing rerequest is denied and a notice of decision will be released. >> thank you. we will move on the next rehearing request at 79 new montgomery street and the board received a request on paawan kothari for the the chai cart vs. dpw bsm and at that time the board voted four-one. commissioner hurtado absent and remove the permit based on dpw's analysis. the project is charter schools and the chai

cart vs. dpw bsm and we will start with the requester. >> i got it. thanks so much. >> you have three minutes. >> hello i am paawan kothari. i'm the owner of the charter -- the chai cart. i am sorry i missed the last hearing and i had the date on wrong and because of the mistake of putting that on my calendar and completely missed it and i'm here to request the board to allow me to present my case, and i apologize for missing it, and i did put a lot of time if you all read the brief that i had submitted. i did put a lot of time collecting all the information and preparing the brief. it was just a mistake and i just want

to get a chance to actually present my case, and also i want to make sense -- before that and since then i got other permits from the department of public works which i appreciate a lot. thank you. and i honestly feel that there was some kind of a mistake made for this decision and i want that chance. thank you. >> thank you. >> mr. quan. >> good evening commissioners. john quan from the department of public works. i want to go back -- this is a rehearing request and in order for you guys to grant that my understanding has been there has to be additional information provided or manifest injustice. the department doesn't feel additional

information was provided. the appellant provided it and we provided statements at the hearing. it appears if there was injustice it was not caused by either this board nor the department rather for whatever reason, the applicant failed to show up. we are not here at this point to argue over the merits of the permit or it is merits of the rehearing and we don't believe there are merits to this case. >> any public comment on this item? seeing none commissioners the item is submitted. >> i -- you know if it was an honest mistake then i think we should allow her to present her case. >> i agree. i mean i think -- sorry. >> no, go ahead.

>> i find the appellant's testimony very truthful and i think it would be manifest injustice not to allow her to present her case. >> she was speaking about the planning commission versus us. >> i concur with my fellow commissioners. life happens and evidently this is very important to her so i think a rehearing should be granted. >> i would move to grant a rehearing in this instance. i'm sorry. >> that's okay. >> did you want to say something. >> only that i would normally -- i would feel differently if the requester was represented by an attorney and in this case it appears that she isn't, so i don't cut that much slack for attorneys missing deadlines, so anyway i concur with my fellow commissioners. >> commissioners, we need a

date in the motion. >> what do you recommend? >> well -- >> they're loaded between now and april. >> i was going to say for the board's sake april looks best. i know it puts off for a while for the requester. >> april fifth. >> 10. >> tenth? okay. >> okay. >> excuse me, tenth. all right. >> the department -- okay. >> okay. we have a motion from commissioner fung to grant this rehearing request and set the rehearing on the merits for april 10. on that motion president hwang. >> aye. >> commissioner hurtado. >> aye. >> and vice president lazarus is absent. commissioner honda. >> aye. >> thank you. the vote is four-zero. this rehearing is granted and set for april 10.

thank you. >> >> okay. the next item on the board's calendar is 4d which is three jurisdiction requests. the support property is at 68 presidio avenue. the board received a letter from steven greenwald and roashiel alpert and take issuance over the following dates in the application submitted respectively. the appeal periods ended on november 14, 2011, march 20, 2012 and april 27, 2012 respectively and jurisdiction requests were filed then. the project for item one is remove sheet rock at all

floors and removal limited to 50% of each floor and not significant change, replace existing sheet rock and property line, no structural work. second is remodel bathrooms and miscellaneous improvements and elevator and the permit number is listed and extend elevator to garage level, add one bedroom and bath. since there are three requests there is nine minutes total. >> i had a procedural question. i have also submitted a request for continuance and i am

wondering whether the board want to hear that matter also at this time or after the jurisdictional? >> the request for continuous with respect to the later -- the things later on the docket? >> the request was for both items. the reason is because -- >> what item numbers? >> okay. that will be the last two items on the calendar. >> right. okay. >> so you're seeking request to continue the jurisdiction request as well as the appealing hearing. >> that was the request that was asked for, but i am prepared to give the board the reason, and if the board doesn't want to grant continuance for the jurisdictional request i am prepared to address the board even though we only received the plans to review them yesterday.

>> and you're referring on the continuous only with respect to 10a and 10b and not with respect to the jurisdictional request. >> (inaudible). >> wait. i think she is asking for the board to consider continuous for all the matters. >> including today's. >> but i'm prepared to talk about the jurisdictional request item because i am finally able to look at the plans to provide you the reasons why we're asking for it. >> okay. which one is it? i am confused. do you want to do the jurisdiction request today or continue all the items that are before us today? >> let's do the jurisdiction request -- >> hold one minute counselor. perhaps we could break into the two. we could deal whether we're interested hearing the arguments on a continuous first and make a decision on that. >>i just want to know what they want first which is you wa