there is no way around the planning code prohibition. so, my view is we should resolve it for this very important community business. no other business in the castro has come forward to me and said, hay, i have the same problem, we can have that conversation about the broader code change whether it's in the upper market nct or city-wide. >> okay, thank you. thank you, commissioner. >> commissioner borden. >> yeah, i'm very supportive. i think that we've heard no opposition to the change from ncd to nct. it sounds like people are on board with the height change and i would support the [speaker not understood] correct it for lots along the way. i understand people say it could be specialty use. we have these situations all the time. we approved philanthropic uses which applies to certain lots because the project sponsor we had earlier in sacramento

street was also specific more to a lot we were able to expand it. something that might be easier to consider to look at this more broadly if the legal asian of existing off-site kitchens, having a process or pass maybe city-wide for that. i imagine there are a lot of illegal off-site kitchens. the issue around food trucks, i have a restaurant right on the corner from where i live that also has a food truck. i see the food going back and forth. i know other [speaker not understood] don't have brick and mortar restaurants. they're [speaker not understood], one first step just might be legalization of an existing off-site restaurant and ncts throughout the city could be step one. and then step two, looking at -- because obviously most people are fine with the status quo. the issue is we don't know if we do a new balance, creating

kitchens all over the place. the issue was not going to the next step. >> this makes sense with cafe floor, with the commercial being in the front and kitchen being in the back. it is pre-existing many years. we had the castro country club. it had been turned into another use a long time ago. we all supported that use continuing because it made sense. i think there are instances in which we want to support our small businesses and local businesses in the community and needing to do those things. it is true that in that nayerction, i was shocked when that cafe went out of business. it always seemed like a thriving restaurant and it didn't continue. the new place is going in there concept is going to work out. there seemed to be a turn over in the neighborhood, we can

support that, the owner having a track record the last 32 years. it says a lot about this business. i agree when i think of cafe floor. it is a gateway when you're coming up market street. i think it makes a lot of sense. again, i would support looking at a legalization process for an existing off-site kitchen. maybe that is something staff can talk about whether you considered this versus the blanket allowance. >> i think as staff, we considered the ordinance thats was before us, which very specific in a geographic area. * and in talking through the specific issues associated with cafe floor, we were just exploring whether or not, a, we were comfortable with drape creating a legal nonconforming use, whether there was a way to avoid that situation. and then secondly, whether we could craft something that was narrow enough that would not

create sort of unintended consequences, but would be more broadly applicable to the west side of one block of the city. and that's how we came to that tentative solution and i'm sure we're open to talking more about that. >> did you at all -- do we have any sense of the issue around illegal or secondary or off-site kitchens? do we have any sort of knowledge or information about that? >> no, commissioners. i think part of the issue here was trying to avoid a nonconformity when we could. that was part of the reason for the recommendation. secondly, recommend, this is only in an ncd district. it wouldn't allow these off-site kitchens in a residential district. my feeling as we discussed it in staff, it didn't seem to be that much of a problem frankly. it's an operation that happens in the board committee of a restaurant, any restaurant in the city and i didn't see it from a land use standpoint, i didn't see the concern about having that same operation a

block away or a few hundred feet away. i just didn't present land use conflicts from our standpoint. that's why we recommended city-wide. i didn't know if the commission would like to do it in the district or some other narrow area that makes sense. frankly my bigger concern was sort of setting up a system where we had a creating and nonconformity here that seemed a little awkward to us when the land use itself didn't seem to be -- have a negative impact. >> i personally could go either way. i know the concern particularly in the area of food trucks. people could turn their kitchens into service or food trucks. they may already do that. i don't know what the implications are. i guess the challenge with that -- i mean. i personally think it sounds fine. at a minimum if there were a pass for legalization of off-site kitchens, you could have a sense of the scope of the issue before them going to the next step. that might be kind of an

interim thought. >> commissioner hillis. >> so, i'm also supportive of the legislation. i think probably if we use the words unique, funky and [speaker not understood], they're all probably in violation of the planning code. if we looked around. [laughter] >> we could use that adjective unique funky, in violation of the planning code. it's amazing cafe floor is only 900 square feet when you walk by. it feels bigger. there is a lot happening obviously. it is a very active space. so, i'm okay with the legislation. i'm okay recognizing this as an exception for one business. i mean, i think we did that just before, you know, on the sacramento street. we broadened it. but we broadened it recognizing it is not applying to anybody else. so, we're kind of going through the motions. i think that's the planning code is for making things everything uniform. the planning commission i think has a role in recognizing we live in a pretty unique

geographic area with unique buildings and, you know, these exceptions come up. so, i'm okay making an exception limited to cafe floor. just a question on the health -- we talked a bit. what does the health department say about this? i imagine to the kitchen they don't like it because it's in violation. i mean, they're okay with the fact they're going to permit an off-site kitchen separate from the establishment. >> my understanding from enforcement staff is all permits that are required could be obtained within this one-year period including the health permit. >> and then on the broader legislation with 65 feet, i didn't see on the corner of market and castro and 17th are those already 65 feet, those corridors? you add the ones on noe and there was discussion, i mean, i think three corners should be added, but there was no discussion about the ones on castro and market. are those already 65 feet, like

the gas station? i know we -- we approved that project. >> we approved the project. >> but the other gas station on the market street side, the north side of the street -- south side of the street, is that 65 feet already? okay. >> on noe and 16th? >> market and castro. i think it is. >> [inaudible]. >> it's just those are not and we're coming back to look at the 65-foot issue. i think we should look at that corner, too. >> i'd like to just confirm that. >> great, thank you. >> commissioner antonini. >> i have some comments and i have a question. ms. hayward, i'll ask the question and do the comment second. there's talk about adding height allowances on a specific parcel, that being the gold's gym or active fitness, whatever it is. and we're also talking about extending that to any other buildings in the district that

are not historic. >> that corner per se. >> yes, and i'm in favor of that. but there was some specificity about a particular project at the gold's gym site which would be affordable rental housing. there's no project before us yet, so, our approval is just for this height increase, but we're not obliged to a particular project. it could be whatever the owner of the property would want to build that is -- you know, could obtain conditional use presumably would be what would happen. we're not approving a particular project. that was just what i was clarifying. >> that's right. the project would be put before you separately. >> so, then, my other question is i understand you suggested some things and i'd like to perhaps make a motion to approve with these things or at least clarify what the staff recommendation was subject to, you know, it was okay with the supervisor. i think you wanted to include a

parcel with the additional height zoning, and that was just brought up by commissioner hillis as to it looks like that one little part, although i think we already approved a project on it. but one of your map shows that area at castro and 17th street, i believe it is, is separate from the rest of the district. and i thought you had said in your remarks that you wanted to include that as part of this zoning also. >> i'm putting that back up on the overhead just to take a look to clarify. but our recommendation was to convert the whole of the remaining upper market ncd to the nct and there are two parcel here that i'm pointing to that were not included in the proposed legislation. the department's recommendation is that these parcels be included in the upper market nct. >> i think both of those i would be in favor of.

it sounds reasonable to me. and then i think you also wanted to remove the sunseting for the allowances, i guess it was the food service off-site. * and also to extend the off-site food service to anything within that district. >> planning's recommendation is actually to -- with criteria that are set forth in the case report in the draft motion to apply that to all nc districts in the city, not just the upper market nct, but i've heard discussion that we should come back. >> that would sound reasonable to me, too. and then there were some technical changes that you had not specifically said that that would be part of it. and then the final thing was i think the height changes -- or is that separate legislation for the height changes? >> so, planning -- staff recommends that you direct us to come back with separate legislation that would do two things. one, add two additional parcel

that would be up zoned to 65 feet in a manner consistent with the market octavia plan. there are two additional corner parcels there that are not historic resources that we believe could be 65 feet. and then the second is to correct what we believe is an error within the nct whether it be 7 parcels that has a 60, 65 foot height designation and two that have a 50-55 foot height legislation. and that would be separate legislation initiated by you. >> great. well, if it's appropriate, i'd like to make a motion for approval. and i would just add the following things that i'd alluded to those in my conversation, that we would allow the provision for off-site full-service food service at other nc districts throughout the city that apply to the criteria here. and then we would remove the sunseting * for this specific

instance here that was i believe in the original legislation. and the technical changes that ms. hayward could allude to later. and then the height changes for nonhistoric within the district, not involving the ones that you're alluding to for the later legislation. and if i have included everything that staff had brought up, please correct me if i did not. >> the only thing i'd like to clarify is that basically all -- anything to do with height including amending the height district and including two separate parcels would be in separate legislation. >> so, that would not be part of this legislation? >> that's correct. >> if i could ask, supervisor wiener, if you could comment on my motion, if it sounds appropriate to you or it embodies what you're trying to accomplish here. >> thank you. so, planning staff, in terms of the recommendation that the

sunseting for the off-site kitchen be eliminated and that there be city-wide legislation, i have not accepted that. i stand by the legislation in terms of limiting it a by time and location, understanding there may be a forward -- project going forward for a broader position. i would support [speaker not understood]. in terms of the additional lots, if the commission directs staff to do that, presumably staff will come forward with legislation for the commission and ultimately the board to consider at that time, but not part of this legislation. >> supervisor, as a corollary or a revised motion, would you be supportive of legislation that allowed for off-site food service only within the district, this district we're speaking to? >> my request would be limited

to the geography and time that is set forth in the legislation now because even though it may end up being a very good idea to apply it to the upper market nct or more broadly, i think that that is beyond the scope of what we're trying to address with this legislation. so, i'm not expressing opposition to what you're saying, commissioner, but i think it would be best to proceed with the limited version as proposed. >> okay, thank you, supervisor. i would probably modify my motion to just leave it to what we are dealing with. of course, eliminating the sunseting, including the technical changes and leave it at that. i just had one other comment i wanted to talk a little bit about this off-site food issue in terms of what i'm seeing across the city. i'm seeing closure of restaurants. i'm seeing a lot of new restaurants, but a lot of the new ones seem to be a little bit higher price point most of the time. some of the more traditional

restaurants, particularly those, i'm thinking of cafe fior and many others, i think they are struggling with increased costs relating to health care costs and sick leave time and a lot of things that are probably good policies and help employees, but they undoubtedly raise costs and it's only going to get worse as there will be further costs raised by national legislation that's been implemented. i think whatever we can do, it may be for off-site [speaker not understood]. places you can go to with the family or on a night when you don't want to spend a lot of money and you can get something to eat that's a good quality food, i am certainly in favor of. and that's a conversation for another day. >> commissioner sugaya. is there a second to that motion? no? >> i think we need another

[speaker not understood] of the motion. [laughter] >> commissioner antonini and i are on the same page, i think. conversion from nct to nc -- d to t expands that we're following the staff recommendation to expand it through the whole upper market area. and then we're okay with the height change as presented here. and then we're okay with cafe floor's off-site kitchen as presented by the supervisor. >> no, no. >> his legislation is for a temporary permit, which expires after one year. and that's -- >> i'm sorry, commissioner. that's in opposition to -- not opposition. staff is recommending a permanent change. >> that's right. >> but i think commissioner antonini -- >> no. >> [speaker not understood].

>> yeah, the sunset provision is in there. everything else you've stated is in my motion and it would only apply to the properties that were specified, that being cafe fior for the off-site and the gold's gym property for the height increase at this time. >> and we're asking staff to consider expanding off-site food provisions throughout, at least the upper market area and, i don't know, it depends on if you want to look at it city-wide. but we're encouraging you to do that. we're also incorporating the minor technical changes that ms. hayward mentioned. and we're also incorporating into the motion at a future time to fix the existing height limit errors on market street. >> separately. >> separately.

>> i'm not sure what you said about the sunset. are you saying it should stay in place or it should not? >> accepting the supervisor's legislation. >> one year, yes. >> [speaker not understood]. >> your motion is that it be one year, is what the supervisor's proposal. >> yes, that you guys staff and consider more permanent legislation throughout the immediate district which would then make it legal at that point. >> commissioner hillis. >> i would second that, with the sunset provision. >> commissioner antonini second. >> if we're keeping the geographic provision, limited to cafe floor, i support keeping the sunset provision in. >> they'd have to come back in another year. i'm the maker. [speaker not understood]. >> we got the sunset provision

in, right? yes, sunset is in there. >> commissioner moore. >> i'd like to ask supervisor wiener one more time, perhaps to state concisely why one year because i still don't get it. if the cafe floor, which is in a very specific location different from the street frontages and what's back on the rest of upper market street, i'd like you to explain why it's one year. how can a business owner structure the legalization of this business which involves other things than just the legislation, operate by this just happening one year. beyond that all the questions arise again and you'll come back and we'll do it again. >> i think commissioner sugaya may have stated it in -- may have misspoke. it's not a temporary permit.

the -- it will be a one-year window to come forward and apply for and obtain the permit and then at the end of the year that permit, it would become a legal nonconforming use, but they would not have to then try to get another permit. so, we have a one-year window to do it, but the permit would then continue. >> so, what you're saying contingent [speaker not understood] get the permit and all the things that's good with it in one year. i missed -- there is a broader misunderstanding in this room that this would only be applicable to one year of performance. >> there will be a one year window to obtain the permit and that will continue thereafter. >> i appreciate the clarity on that because that puts the pressure on the owner. >> they would be back in a year. >> [speaker not understood]. i appreciate your saying that. thank you. >> thank you. >> and i would very much be in support of that aspect. i would still think that we need to ask the department to

look where a similar provision is possible in the city, particularly when you have in many cases residential neighborhoods right adjoining these thing. that's where i think the department's questions are, the real questions. but i think to look at the broader resource in different -- in a different climate of are we creating in-city urban gardens and fruit production, the preparation of harvesting within the city and providing remote kitchens for serving restaurants is a real possibility. so, i like that to be part of the bigger discussion and support the motion as it's created, amended to clarify by commissioner sugaya and commissioner antonini. >> commissioner wu. >> thank you. if i could ask the director to speak more about this, the idea of creating a nonconforming use. i feel like it's a clunky use

of the planning code. because we're trying to create not so many conforming uses. >> that was our concern. i totally understand the commission wants to make sure there is certainly an advantage to making sure that this one business can survive and has a short time period to legalize. but in general, the planning code tries to minimize nonconforming uses because the goal of nonconforming uses is to eventually go away. i mean, it's like advertising signs. the idea that eventually the advertising signs would go away, but i understand the reason for this particular one. we were looking at it from the standpoint of is this a land use that is otherwise a problem and we didn't see the impact that would suggest this is actually happening quite a lot in the city, but i understand that the commission prefers to marrow it and have a larger discussion about the concept. >> for me i would have been

comfortable approving it for the entire nct. i want to support cafe floor, but i'm uncomfortable creating a [speaker not understood] use. what i'm hearing is trailing legislation. but i also think that -- well, i'll just leave it at that. >> commissioner sugaya. >> yeah, i'm comfortable with where it is as a comaker of the motion. and i think that if i didn't characterize it -- it isn't a temporary thing. i fully understand what the supervisor's legislation is. i think that it's also a way of saying that if, you know, ha it can't be expanded. it's a nonconforming use and, therefore, it is what it is. but -- and it's attached to -- i suppose it doesn't have to be attached to cafe floor.

it could be an off-site kitchen for another restaurant, i assume. so, it could -- someone else could utilize it. as long as it didn't change use, it can stay where it is. but if it did, then the whole thing goes away. that said, i think there appears to be full support for the staff looking at expanding the legislation to include what commissioner wu just spoke about. but i'm uncomfortable in doing that because this has not been vetted before anyone and the community and the merchants associations and everyone else were looking at a specific application for cafe floor. but i think there's another discussion that needs to be had with the community groups about expanding it all over the upper market area. and for us to take a vote on that i don't think is appropriate. >> so, are you, commissioner sugaya, removing that portion of your -- your portion of the motion? >> no. i'm saying staff should go ahead with that.

and it would go through the normal kind of public hearing and community process and the supervisors indicating interest in it, too, so. >> commissioner antonini. >> yeah, ms. hayward, maybe i can get a clarification on what commissioner sugaya is alluding to. [speaker not understood] or is it limited to just cafe fior? if it was a different business it wouldn't apply? >> my understanding is commissioner sugaya you are recommending approval as in this draft, providing specificity where applicable. [speaker not understood] that space on noe street could serve potentially as an accessory food process you can use with any restaurant within 300 feet. the owner of both properties is the owner of cafe floor.

and that would sunset after one year. >> [inaudible]. if there is another restaurant within 300 feet they presumably can take advantage of this. it does require 312 notice. >> as always is the case if cafe fior becomes cafe milano next week. it still would apply, okay, thank you. i agree with commissioner sugaya in that we are agreeing with almost everyone who spoke today, including those who spoke against it to say we want this to be looked at in a broader sense, but we're supporting the legislation as opposed at this time and that's what we direct staff to continue the trailing legislation to. >> commissioner wu. commissioner wu. thanks. i want to explain in advance. improbably going to vote no on the motion. it's not supporting cafe floor. i think it's not quite the right planning code fix, even though it might seem to be fixed in the trailing

legislation. i think we have a precedent of doing this kind of fix within the commercial corridor on other items and i just wanted to make that explanation. >> commissioner sugaya. >> one last thing. i'm comfortable with it being the one-year provision because i don't want this to be seen as rewarding cafe fior. i think this puts a little bit of a less of a -- i don't know the right word. i think we've had other instances before the commission in which owners of businesses have done what you might call illegal things or not followed specifically that the conditional use term, for example. we've had one on polk street lately that came to us and said, we've been doing this five years and therefore you should approve it. whereas we previously approved

the previous conditional use. and that happened even more recently where we had one on stockton street and north beach where the use was for a bookstore and cafe. it had not operated it that way for a number of years. they came in and said, we need to legalize this. we did. i didn't vote for it, but we did. so, i don't want the message to go out to businesses that you can just go willy-nilly doing things and then if you get caught or something like that, then you come in and say, i've been doing this for a long time and therefore you have to give me the permit. and i think this is a little different than sacramento street also because of the ownership and quote -- i don't like to call it illegal situation, but sacramento street, i don't think that use wasn't already in there, was it?