anyone? >> i move to deny the jurisdiction request based on the fact that section 108 does not require notice under these circumstances. >> call the roll, please. >> on that motion from commissioner to deny the jurisdiction request, commissioner fong? >> aye. >> aye. >> president wong? >> aye. >> aye. . [speaker not understood] the vote is 5 to 0, it is denied, and no appeal may be filed. >> i'd ask you to quietly leave the room, please, so we can move on. >> thank you. >> is stephen williams still in the room, mr. williams? >> he's outside. >> before we actually -- before you get him, i just want to -- we were thinking of having yours come before the next item out of order because we think it's going to be a quick one.

is that -- okay. okay, great. >> i'm going to start calling these because there are four of them. so, we're going to take items 8a through 8d next. these are appeals numbers 12-158, 12-1566, 12-167, and 12-168 all dealing with the property at 23 95 26 avenue. these are all filed by stephen williams and they're against the department of building inspection appealing the issue on [speaker not understood]. one is a permit to alter a building, to have tenant improvements to commerce unit number 1, new interior parties walls, one office, conference room great room existing upgrade for a-d-a compliance. another is a plumbing permit for new a-d-a bathroom sink in break room. another is a plumbing permit to

replace a heater furnace, and the final one is a electrical permit to replace 24 new lights and 30 switches. ~ commercial and mr. williams, we elect today hear this case out of order with the understanding the parties have reached some agreement and that this item would go quickly. >> yes, i was contacted by mr. sanchez today and he said that the department -- essentially the permits have been withdrawn by the project sponsor except for a remodel of the bathroom. the neighbors never opposed the remodel of the bathroom so it was my conclusion we could agree the permits could be amended in some way so as to condition them to allow only the remodeling of the bathroom. and that's what we're asking the board to do. >> is there agreement, mr. blackstone? >> scott sanchez, planning

department. if i can briefly summarize the discussions we had today. that would be work allowed on the building limited to improvement only to the bathrooms to make them a-d-a compliant. there would be no change of use. the permit is incorrect currently in stating that it's an existing office use and proposed office use. that would need to be corrected for mixed use retail and residential proposed retail and residential. i think action should be taken on all of the permits because there are plumbing and electrical permits that could be relevant to the a-d-a upgrades as well. so, the board could take action, grant appeal on all four permits with the understanding that the scope would be limited to a-d-a upgrades only and the bathroom and there would be no change of use and existing proposed uses would be clarified as retail to retail. i'm available for any questions. >> glad stone for mr. weston, the owner. yes, i agree with mr. sanchez. and with the permission of mr. williams, perhaps we can have

your board take jurisdiction to order revisions to the permit. as i mentioned in my brief under section 104 of the building code, mr. duffy is familiar with the board, has special jurisdiction to pause revisions and permit to go through building department. mr. duffy to come back to work with us to revise and it doesn't need to come back to you unless you want it to. mr. duffy can work with mr. badiner to make sure that this for -- >> mr. san che. >> excuse me, mr. sanchez. and i'd be okay with that if mr. williams was okay with that. and mr. sanchez? >> thank you. >> mr. williams here? >> yes, the neighbors never had objections to an upgrade to make the bathroom a-d-a compliant.

>> answer my question of mr. glad stone just stated. is that yes? >> yes. >> okay. >> those permits are condition to allow work just to the bathrooms. >> that's what i understand. okay. >> so, it's a proposal to continue the items to allow the parties to revise them or to have the board make those revisions now? >> thank you, scott sanchez, planning. the board grant the appeals on all the items, limit the scope of work to only a-d-a renovations to the bathroom. no other work. and that there be no chase of use, and that the existing and proposed use be clarified to be retail. >> okay, everybody is nodding. >> if that's the proposal i would like to get clarity on the individual permits so that we know exactly what we're saying with respect to the notices of decision for each one. >> inspector duffy, do you have [speaker not understood]?

>> commissioners, i was just -- i don't know if anybody addressed it. how much of the work had actually been done before the permit got suspended. if the work got started, i didn't hear that being said. they already started building partitions, that could be an issue. we may have to revert it back to the original. i'm not sure, maybe there's a simple answer to that question. >> i believe there is, mr. duffy. if the only portion of work is the a-d-a bathrooms, then everything else is not approved. >> i know. if they had already started constructing -- >> they'll move it. >> that might need to get put in. >> all right. >> i would agree. if there is work other than the bathroom work and the permit is needed to undo that, that is perfectly appropriate and we will follow through with that under the, you know, under the

review by mr. duffy, absolutely. >> okay, commissioner, it sounds like a simple fix. but in order for the board to execute any decisions that you made, we need to be able to address each individual permit to know if they're being amended and how. >> it looks from the agenda caption that the first permit in the 12-158, the entire scope could be struck except for that last part, upgrade existing bathroom for a-d-a compliance with a finding that mr. sanchez talked about, that retail to retail use, or what have you. and then -- >> planning permit new a-d-a bathroom. >> right. then someone should come up, either d-b-i or permit holder and clarify whether the board can uphold these other permits. >> that's right. and what would they need to be -- >> right. and if they're related to the bathrooms. >> the other option is the matter gets continued so the parties can sort this all out and bring a tidier resolution

to the board. >> i think we're waiting for d-b-i to advise on the other three permits. >> commissioners, mr. glad stone and i were speaking. go ahead. >> before you start, is this something that you can do on the fly or would it be preferable from your perspective to have a little more time to sort this out? >> with the electrical permit and the plumbing permit, it does give us the specific scope of work. maybe not here tonight. it could not be in front of you in your brief. but it would describe probably electrical work to be done throughout the space. so, that permit needs to be specific just to the rest rooms. that needs to get changed and

the plumbing permit probably as well. the only other plumbing that could maybe be in the space would be for the break room. and that may be on there. >> it seem more preferable to continue this even if it's just one week. >> just to clean it up? >> yes, i think that would be preferred if all parties can make it next week. >> yes. >> mr. williams, is that good? >> yes. >> o'dea, thank you. ~ okay, thank you. >> thank you. we should take public comment, then. is there any public comment on this item? okay. seeing none, commissioners. >> i'm going to move to continue this one week to the next meeting so that the parties can sort out the specific issues that need to be resolved as to each permit that's on calendar for today. >> thank you. >> we have a motion from the

president to continue appeals 12-158, 167, ~ 166, 167, and 168. may 18, to give the parties clarification as to what dined of ruling they would like in this settlement. on that motion, commissioner fong? >> aye. >> aye. >> and commissioner hurtado? >> aye. >> aye. >> and vice president lazarus? >> aye. >> aye. >> commissioner honda? joieaye. >> professor: thank you. the vote is 5 to 0. all four matters are continued one week to may 15th. ~ >> okay, thank you. so, we'll call item number 5 which is a special item, the subject property at piers 27 through 29. the board of appeals action is to determine whether to accept the port commission's delegation of authority to hear and decide an appeal of the entertainment commission's issuance of a conditional place of entertainment permit, permit

number ec-1 178 issued to matt prieshoff doing business as life nation/america's cup pavilion, piers 27-29 property under jurisdiction of the port commission and if the board accepts such delegated authority to ratify staff action accepting an appeal and setting the hearing for may 8, 2013. we can start with a representative from the entertainment commission report who would like to speak to this item to the board. >> good evening, president hwang -- >> you have three minutes. >> director goldstein, members of the board, adam dan water from the office of he economic work force and development. the project director to speak on the issue of delegated authority. we've been working closely with our partners down at the port. i have susan reynolds, the director of real estate for the port, remains the balance of my

time. i want to impress upon you how the board of appeals accepting this appeal is in the public interest. the port commission could establish an appellant process for hearing this, but no such appellate process does exist. ~ this body typically hears appeals at place of entertainment permits and has relevant expertise in terms of transportation, noise, neighborhood impacts and other concerns to adjudicate that. and all parties at the table from the appel apt be to the mayor's office to the port to the entertainment commission have requested that this body be the adjudicatory body for this issue. with that general overview i'd like to invite susan reynolds from the port to specifically discuss the port's delegation of that authority to the entertainment commission through the m-o-u for the last decade. >> mr. reynolds, may i interrupt for just a moment? i apologize for not having stayed this earlier. i was a member of the port

commission when certain votes were taken on matters ~ that may be heard this evening and i did consult with the city attorney's office and have been advised that there's no conflict in my participating in tonight's deliberations. thank you. >> good evening, i am susan reynolds, director of real estate for the port of san francisco. and the port has operated for nearly a decade through delegation entertainment related permits. the port commission acted to delegate this authority to the entertainment commission through resolutions 2004-53 and 2007-39. also providing authorization to the executive director to enter into m-o-us to support the resolutions. entertainment commission has issued approximately eight fixed place permits since 2004. it has also issued numerous time event -- one-time event permits on the port property such as events in and around

taint park for races, for marathons, and for expanded restaurant activities. the permit being discussed today is not different from past practice for previous events on port property. the appellant has brought focus to the fact that the latest m-o-u was not executed until recently. however, the proper delegation of authority does not require execution of the m-o-u. resolution 2007-39 was legislation that was passed by majority vote and thus executed by the port commission. the resolution reads in its entirety, the port gives its express approval to the entertainment commission to exercise the powers and perform the duties set forth in chapter 90 of the san francisco administrative code with respect to events and establishments to be held or operated on property in the

jurisdiction of the port. thus, this enacted legislation was signed by the port commission secretary on may 22nd, 2007. thank you. >> ms. reynolds? >> yes. >> the previous speaker indicated that the port has no process for adjudicating appeals. >> no, it doesn't. we've never -- all of our -- >> that was not my question. >> oh, okay. >> i'm curious now. during the charter revisions that took the appeal or port privilege from the board of appeals, the port was highly supportive and that they would have a process in place. and you're now telling us there is no process? >> there has not been a process. >> i say that only the port could create such a process at the commission, but no process currently exists given the timely nature of these events.

these are for the america's cup races this summer. the first events proposed at the end of this calendar month on may 31st. so, for this body to not accept that delegated authority and to suggest that the port commission would create that appellate authority, i'm not sure that there would be time to serve the public interest and create that at the port commission is all i suggested. >> i don't think that was the suggestion. >> that's okay. we'll follow-up on this. >> i have a question, though. which is is it the case that since the authority of this board was changed in the charter, there has been no appeal to any port delegated issuance of a permit by the entertainment -- has that been the case or has there been a few that have come before this board? does anyone have an answer to that? have there been no appeals?

>> not that the port is aware of. if they've been appealed, they've gone directly to the entertainment commission. >> but the entertainment commission has a process that can be then appealed. >> correct. and to my knowledge, i don't believe there's been an appeal. >> okay. >> i believe that in 2005 there was one similar request to our board to hear an appeal of an entertainment commission issued suspension of a permit and this board declined at that time. >> we declined jurisdiction, okay. >> there was a night club on 3rd street. >> i have another question and i'm sorry i didn't catch your name. can you tell me what that is? >> adam dan water, economic work force. >> what -- i mean, given what seems to be exigent circumstances for this

particular permit and the statement you made about it, us taking jurisdiction as being in support of the public's interest, what would happen if we didn't? if we decline jurisdiction, i would like to know. >> i believe if the board were to decline jurisdiction that the port commission would have to hear that process. though as director reynolds has described, the port commission has expressly delegated all permits to the entertainment commission and the appeal to this body. so, i'd have to go back and review the resolution that the port commission approved to see if they would, in fact, establish that appellate process. >> president, another possibility is that there would just be no appeal option. >> okay, thank you.

>> so, there would be no appeal to the superior court, then? >> within the city. >> so the next step would be superior court. >> any further questions from these representatives? we can hear from the appellant. >> members of the commission or board of appeals, my name is keith wagoner. i am from the law firm lipy gaffney wagoner. we represent the appellants for the waterfront, gary botto and fred. on the question of the board's jurisdiction, it is a fundamentally simple question which is that there was no effective delegation from the

port to the entertainment commission at the time that this permit was issued. therefore, the entertainment commission did not have jurisdiction in the first instance to issue any permit and, so, there's no permit for this board to assume jurisdiction over. also with regard to the amendments that have been requested, the same is the case. the m-o-u was not signed until two weeks after the permit was issued until a couple of days after the amendments that are before this board were requested. the port has said that essentially the delegation was effective immediately upon the legislative act of the report in delegating. the problem with that day is the port, when delegating the authority said it's subject to the m-o-u. there was no m-o-u. it was not signed until two weeks after this permit was issued. so, for that reason -- essentially, the procedures

were not in place. in our brief we cite to the fact that it is required that there is essentially effective safeguards in place, that's what the m-o-u is for. and, so, this board, as far as we are concerned, the entertainment commission had no authority to issue the permit. this board's jurisdiction over permits is appellate in nature. this board cannot issue the permit. the entertainment commission could not issue the permit, so, this board has nothing to review on appeal. what we do agree with is that the board disagrees on that point which we maintain. then in that case there would be a delegation from the port to the commission and in that case, if the delegation was effective, which once again we believe it is not and that is our position, then in that case it would have been a permit

issued under the jurisdiction of the entertainment commission. examine if that is the case, then there would be appellate jurisdiction. so, once again, two-step process -- >> i think that's your time. i'm sorry. >> two-step process which in the first place there is no permit that could have been issued. but if this board disagrees and that there was effective delegation, which we dispute, then that permit would have been issued by the entertainment commission, not the port under the entertainment commission dell gaythed jurisdiction meaning that this board would not have jurisdiction. thank you. >> your contention is that the m-o-u had to be in place? >> yes, commissioner. >> is that a legal opinion? >> excuse me? >> is that a legal opinion? >> that is our opinion on behalf of our client. and one that we are prepared to

pursue. >> what's your authority for that, i think is the question? >> the nature of the resolution itself which said that the port is delegating its authority pursuant to the adoption of the m-o-u. >> where is that language? >> in the resolution. >> can you point us to it? that would be helpful. >> i don't have the copy of the resolution with me. >> my fellow commissioner here -- >> the port was saying, we delegate -- there was a legislative act, but the legislative act contemplated the consummation of an m-o-u. and that m-o-u was not consummated until two weeks after this permit was issued. >> give us a minute to find the exhibit. you said it's 13? >> i'm looking at 13 of the entertainment commission submittal. under the recitals of the original m-o-u, recital f, san

francisco first delegated its authority to issue entertainment related permits in july 2004, an m-o-u which expired on june 30, 2005. the port and entertainment commission a graced to hold [speaker not understood]. why would that hold over not be applicable in terms of the action that was taken? >> because we believe it's the port that was saying, we need to have this new m-o-u. what the entertainment commission was agreeing to accept is maybe what the entertainment commission was willing to accept, but the question is at what point was the port's delegation actually effective? was it the diderction that is the dispute. one for this board to decide. we believe that it would be effective at the point where all conditions were met which is adoption of the m-o-u and their position of the other side is that essentially the legislative act, whether there was ever any m-o-u to this day, what they're saying is to this day there could be no m-o-u, but it's fine for the entertainment commission to

continue to issue permits in the absence or would be fine theoretically in the absence of any m-o-u. >> but isn't that what was what was intend with the agreement to hold over the original m-o-u? >> we believe not. >> i would -- may i just say something really briefly? i think the question of the port's delegation does not necessarily turn on the m-o-u, although i think a port commission was [speaker not understood] delegating authority would be in effect a direction for the staff to follow through. and i think it would be effective on the adoption of the resolution, the resolution does that. however, i think the staff from the port is here today to request delegation in furtherance of this commission and the commission has been advised by the executive director that there would be a hearing today on this matter and has not objected. so, i assume there is other basis of finding that request for consent before the

commission, regardless of what the m-o-u itself says. you can find implicit consent -- there is express for content in ~ consent by the staff of the commission. the timing of the request is not important. the timing of the request itself is not important. what is important is the request was made to you before you act and you are now being asked, and you are then in the position to decide whether or not you are going to accept jurisdiction. >> if we can hear now from the permit holder. >> good evening, commissioners. steve battle for [speaker not understood] on behalf of [speaker not understood] and

live nation. we would request that you do take jurisdiction of this appeal. i'm not going to get into the niceties of the delegation of authority by the port, but i would say that we in good faith applied for our permit to the entertainment commission on the basis we understood the delegation was in effect. the permit was heard by the entertainment commission. we submitted plans. we submitted the materials that are necessary for an entertainment permit to the entertainment commission. and, so, we acted in good faith with the understanding that the entertainment commission had jurisdiction over the permit and, therefore, that if there was an appeal that this body would also have jurisdiction of the appeal. we would request that you do take jurisdiction and join in the port's request. thank you. >> counselor, as an attorney, what is your opinion when there is a permit issued and an m-o-u

that affects that permit issued after the fact? >> commissioner fong, i'm not a municipal law attorney so i'm not going to be able to offer you a detailed legal opinion on that. i would say that it seems to me that the delegation occurred upon the port resolution. the memorandum of understanding really describes the processes by which that delegation will be exercised, but it doesn't -- it's not a prerequisite for the delegation to actually occur. >> thank you. there are more attorneys out there i can ask. >> mr. vettle, at the entertainment commission hearing, were there objections at that time to the proper jurisdiction -- >> i don't believe so. no, there were not. >> thank you. >> we can take public comment now on the question of the board's acceptance of the delegation of authority. can i see a show of hands how

many people wish to speak on that issue? no public comment, then. >> [speaker not understood]. >> on the question of the board's jurisdiction to entertain the merits. [speaker not understood]. there will be an opportunity to if this board decides to accept jurisdiction to speak to the merits. >> my name is sam berg man. i'm not an attorney. there's been a great deal of technical discussion during the last few minutes. and i don't know whether i will have a chance to make a public comment if the board decides not to take action. so, i'm asking, is this the appropriate time to make a

public comment or will i be given time after the app is heard? >> why don't you go ahead and make your comment. >> thank you. i appreciate this opportunity. my name is sam berman. i'm a resident of 101 lombard. this is one of several condo buildings located less than 500 feet from the outdoor stadium where the proposed concerns are to occur and i appreciate this opportunity to address the appeals board because we don't know what to do if you don't undertake this appeal in some way. i'm expressing to you the concern of many of the 600 residents in this closely located neighborhood who believe that it is highly inappropriate to