2013 meeting of the san francisco board of appeals. thank you all for your patience this evening. we are calling item number 7, appeal number 13-0 24, legacy 455 market street lp versus the department of public works bureau of street use and mapping, property is at 455 market street protesting the issuance on february 15, 2013 to kabob trolley llc of the mobile food facility permit, sale of >> aye. gyros, kabobs and soft ruination, 11 mff-0 147 and we will start with the appellant. ~ is on for hearing tonight and we will start with the appellant. you have 7 minutes. ~ good evening, my name is cathy mckenna. i represent the retail [speaker not understood] market building a 4,000 square foot commercial

use building on first and market street. i would like to oppose the permit that was -- that has been issued by dpw for a push cart to go in front of our building. the reason cited in the brief specifically, the competition to our current tenant that pay high rent serves about four retail tenants that serve food and drinks. i average the rent that they pay right now which is $6700 a month. they also pay operating expenses for us to maintain the building for them, keeping it clean in the exterior and interior. and that equals about $2600 a month. i'm not quite sure how much it is for a permit for a push cart, but it's probably a lot less than what our tenants are paying. some other concerns that we had is market street is really heavily congested and a push

carton a sidewalk we feel would infringe on people's walking during the day, during the rush hour. also could be a cleaning concern that might fall on some of our maintenance personnel. according to dpw and san francisco health department, kabob trolley reported that the employees would be using the jack-in-the-box rest room which is located on first street in the middle of the block which is far more than the 200 feet requirement forest room access. so, i'm not quite sure which rest rooms they'd be using because they certainly would not be able to use the rest rooms within the building or within our retail tenant spaces that pay rent. so, we just ask that you revoke the permit for the kabob trolley based on those item. thank you. >> any question?

i can get you a business card. thank you. >> we can hear from the permit holder now. good evening, good evening. my name is david chalk. on behalf of the permit holder and responding tonight. in the written appeal the appellant submitted to draw the board's attention to item number 7, it says we are members of the building owners and managers association who are formally opposed to growing trend of mobile food facilities. i think that's basically an acknowledgment that they're not per se opposing this particular food facility, but they just have a distaste for mobile food facilities. and permit was issued in accordance with dpw regulations and there is a finding -- pardon me one moment. there are a couple of significant findings at the initial hearing at which the

permit was issued. finding number 1 under pwc section 184.85, applicant provided drawing showing minimum six-foot clear path travel for pedestrians. so, i think that's a pretty clear showing that there's not going to be an undue problem of congestion by the food cart. finding number two, that the owner has an issue of unfair competition and noted specific finding no like foods are within a 300 foot radio per pwc section 104 [speaker not understood]. this food cart sells product called halalgyros and there are no other establishments competing with that particular product. and i'm not sure why appellant mentioned how much rent the tenants pay. i don't see that as particularly significant. they pay more rent than the

cart holder -- permit holder pays. and regarding the bathroom issue, there was actually subsequent to our brief being submitted, the permit holder did obtain a signature on rest room verification form for mobile food facility from the department of health from a different location located at 5 25 market street. so, they just obtained this recently. i didn't have this when we submitted our brief. i don't know if you want to have it submitted on the record. but there was a signature obtained by a facility at 5 25 market street which we believe is within the required 200 foot radius that the dph -- i'm not sure -- >> could you put that on the overhead, please?

would you refer to the overhead? pardon? >> can you just tell us what it says? >> what's the date on that, is that today's date? 5-6 -- may 6. >> so, it was recently obtained? yes, subsequent to our submitting our brief -- >> was there nothing in place at the time? i believe there was not a signed -- i believe -- and i don't want to say this on the record, i'm not certain. i believe that the appellant contacted the department of health to question the rest room issue. and then in the time subsequent when we submitted our brief in support of -- in opposition to the appeal that the permit holder -- he's here if you want to ask him specifically. but my understanding is that he received a call from the department of health inquiring about the rest room issue because it was raised to them by the appellant. and then he subsequently went and obtained the signature --

>> okay, okay. yeah, that's my understanding. >> i'm sorry. just so i understand, does that say they can use that rest room? it does indeed. >> okay, thank you. and, yes, it does specifically say that. >> how far away is that, do you know? we don't have precise measurement. permit holder thinks it's within 200 foot radius. >> okay, but that was not a basis for the permit being granted because it wasn't in place at the time the permit -- there is a representative from dph here who can address that, you know. it wasn't raised as an issue at all in the issuance of the permit. >> okay, thank you. >> commissioner, my understanding is that these permits are issued conditionally and that getting this rest room certificate is part of what's required before operation can begin. i believe that sounds right what the procedure is. >> are you done with your presentation?

i just wanted -- we submit that the appellant hasn't presented any compelling evidence or any evidence at all in support of this appeal, basically the permit was issued. the permit holder and permittee was found to be in compliance with relevant code sections. and specifically there was a finding that there will be no undue competition. there's no vendors of the same product that the permit holder will be selling at the location. and the permit holder is complying with the requirement that they have a sick-foot pedestrian clearance so there is no evident submitted at all by appellant that there will be an undue pedestrian congestion problem. and they make -- they indicate there possibly will be an additional cleaning expenses, additional burden to their sidewalk maintenance expense, but that is not substantiated by any evidence at all. so evidence that the appellant

basically no evidence whatsoever. we feel that the permit was properly issued. we respectfully ask that the board uphold the issuance of the permit. >> sorry, one more question. what are the hours of operation in the permit? >> can i ask my client the permit holder specifically? ~ i'm not 100% sure. would that be okay? >> come up to the podium, please. asaad mine. >> what days? 7 days a week. >> before you leave, counselor, do you have the radius map? showing this location? i do not. i don't have a radius map, no. it's part of the

requirements we did submit a radius map to -- >> i understand. do you have the map? we don't have it. commissioner, i can give you our map which is 150 feet if that would help you. >> no, that's okay. i want to see what other restaurants are there. >> you have a minute left. we don't have the map with us tonight unfortunately, but there was a finding at the hearing where the permit was issued that there are no like foods within 300 foot radius per pwc section 18.4 88. we don't have that radius map with us tonight. that's all we have to say at the moment. thank you. >> commissioner fong. >> good evening, commissioners,

john kwong from the department of public works. the appellant and applicant holder did provide a brief to the board and i believe there is really nothing that the department can add to -- in providing a brief. what we can do is provide you some history of the process as it relates to this -- for this location. in september of 2011 the department received application for a mobile food to be placed in this location. we provide public notification number. we received two letters of objection from commissioner wakefield and from focacia objecting to this location in writing. we had a public hearing, a director's hearing in january 2012 where 7 individuals came and presented objections to the permitting of this location. the objections were similar -- actually, nearly identical as

it relates to both the objections to the department and to the brief that was submitted to this board. in our review, we determined that there were no like foods specifically, that the suggestion that it would provide congestion to the sidewalk was not -- we did not believe to be correct. that -- the suggestion there would be additional sidewalk maintenance is alleviated by the permitting requirement that the merchant themselves must clean a minimum of 100 feet surrounding areas of all debris left in the area. based upon that information we provided tentative approval to the applicant, okay, for this permit and then that -- this is the reason for the appeal. prior to the issuance of the permit, we would need to receive the san francisco fire department approval for any open flame source.

the department of public health approval for both the sanitation and the rest room along with business certificate. we have received all three at the time of permit issuance. we have not received any information at this point in writing from the department of public health as it relates to specific concerns to the bathroom. it appears that there is some, obviously, given that the applicant has gone back to the department of public health for clarification. let me show a picture of the proposed location. you can see from the picture the bike rack located at this location, and there is a muni pole located at this location. the food cart will be placed between the two locations. given the location of the cart and the furnishings along market street at this specific

location, it is highly unlikely that people would meander in and out of the pole and these bicycle racks as a normal pedestrian path of travel. therefore, we did not believe that was going to be an issue specifically. we followed the process, obviously. and we believe that this permit is appropriate. i'm here to answer any questions that you guys may have. >> mr. kwong, in your analysis of being no like foods, what restaurants are within that radius of the required radius here? >> i know staff reviewed it. the objections here specifically were for fall city diner, focacia and -- take a look -- star bucks. those were the ones listed in the brief. >> in the brief. are those the only ones? those are ones that were in the immediate area. there were no other food

locations at the time of permit application that i know of. none were reported to me that there were any foods related to either kabobs or gyros in that immediate area. >> do you have any knowledge about this bathroom issue and the reference to the original bathroom facility thing that jack-in-the-box which was perhaps outside the required radius and now they've shifted? or is that strictly the dph issue? >> this is a strictly dph issue. however, if at any time either health department or fire department inform us that their permit is invalid, the department will suspend the mobile food permit pending resolution of the issues as it relates to fire, health, and it cannot be resolved in a reasonable time, we will seek to revolckv the permit. >> but dph would be the one to

calculate the distance and okay or not okay the bathroom facility? >> that would be correct. ~ >> thank you. >> is anybody from dph here? >> is there public comment on this item? please raise hands of anyone that would like to speak. no public comment on this item. we can move into rebuttal. mc ~ ms. mckenna, you have three minutes. thank you. as far as some of the comments that were made, i can pretty much determine that the chipotle mexican grill at 5 25 market is more than 200 feet. you're going to be looking into that. and there really are no other restaurants that are within 200 feet besides our [speaker not

understood] you saw on our map, that's our building with the arcade there. my point is that our tenants pay high rent in that building. and to sell food there, even though there isn't the competition of gyros, but they sell soft drinks and we want to promote our retail tenants by not giving them any unfair competition. since they pay that rent. ~ and i guess that's my rebuttal. thank you. >> okay, mr. chalk. yes, i'm just not sure what relevance the rent that the tenants pay to this board here in consideration of the appeal. it seems like the singular issue is the bathroom issue and

i honestly -- it doesn't seem like either of us is absolutely certain of the footage between the mobile cart facility and the bathroom that my client obtained the signature for use of. but that's a matter that the department of health will be investigating. like you said, these permits are issued conditionally and if there is a finding there is a problem with it, the bathroom issue, i believe that would be addressed between the dph and the permit holder. i don't see it as any grounds to grant the present appeal. >> thank you. questions? >> thank you, mr. fong. anything further? okay, nothing further, then, commissioners, the matter -- >> i have another question for mr. kwong. what else is in this area in terms of food carts or food trucks? >> along this block, i don't

believe there's really anything along this block. i know the closest one i believe was a vietnamese, i believe, food truck -- i mean food stand near to what used to be e-train which was a couple blocks away. >> i remember that one. >> is the closest one on 2nd street, then? >> there's been a few food trucks that was in the middle of the block there. it's been a few cold trucks in the area. i don't remember whether there was one on 2nd street in this case. i'm sorry. >> it's a fairly long block. >> i know typically these food trucks are clustered in a bunch on 4th street, stockton street. there's a cluster on mission street near second, but really, i don't remember seeing any in this immediate area. >> okay, thank you. >> does the department actually

-- speaking of clusters, does the department take that into consideration? >> we are taking that into consideration. >> now you are or had you had been and just -- >> in the beginning the legislation is for fairly silent on evaluating and based upon the continued evolution of [speaker not understood]. we start looking at the issue of saturation, the issue of clustering. >> okay. okay. >> thank you. >> yeah, i'm pretty certain that there is no basis to revoke this permit. i mean, i've heard no evidence indicating that it was issued in error. there are no like foods. i believe the rest room issue will be resolved by the department of public health. so, i don't see any basis to overturn this permit.

>> i would concur. >> i also concur and would move to deny the appeal. >> on the basis that it's code compliant? >> yes. >> okay. mr. pacheco, when you're ready. >> we have a motion from the president to uphold this permit opt basis that it is code compliant. ~ on the on that motion, commissioner fong? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> commissioner honda? >> aye. >> thank you. the vote is 5 to 0, this permit is upheld on that basis. >> okay. items 8a through d have already been declared. we move on to item number 9, vikki hart versus the building inspection.

the property is at 5 25 folsom street, museum park retail llc, permit to alter a building interior tenant improvements rest rooms for men and women, demo interior partition and doors, new offices and conference rooms and new key under separate permit. this is on for hearing tonight and we will start with ms. hart . you have 7 minutes. i'd like to, as a point of order, the following information that wasn't included in our brief. i apologize, but we did not receive the charles m. salter & associates comprehensive acoustic report until the day after our brief was filed. but could the board have the conditions? >> i'm sorry, i didn't understand -- we wanted to give out our conditions now. they weren't in our brief. >> what conditions? the conditions that we'd like to ask for.

>> oh, that is based on your consultant's report? yes. >> and the report had not been available to you at the time -- it's not ours. >> right. so, i don't understand what -- >> i think they're saying that they have conditions that you'd like -- that they'd like you to approve, but they couldn't put them in their appellant brief because the acoustic wasn't available at the time they submitted the appellant brief. >> okay. that's fine. i can submit this? >> sure. >> [speaker not understood]. >> yeah, have you given it to -- >> and to d-b-i. >> are you indicating that you are in agreement now with the permit if these conditions are added? is that what you're saying? yes, we would be. >> have you raised them with the permit holder?

shall i start now? >> have you brought this to the attention -- is this the first time they're seeing this? yes. >> why is that? because we weren't able to get to any agreement before now. >> so, you put this together after your -- we put it together since we've seen their information. >> how much time has passed? we got it on the second of may. what happened is that the conditions are based on the findings of the acoustical report that was included in their brief. it was a comprehensive acoustical report. we are asking to repeal before we submitted our brief. we never got it until the day

after we submitted our brief. >> okay. ~ i'm just asking her about the process because if they're hearing it for the first time, what are we, the eighth, ninth? the eighth, a little bit longer. so, if you've had it for five days at least, right, and you had no opportunity, are you saying you've had no opportunity to bring it to the attention -- we didn't have it for five days because we were going over the report. we all hired our own acoustic -- >> why don't we hear the case. >> i'm just trying to understand. okay, thank you. well, thank you. okay. my name is vikki hart and i'd like to thank the members of the board of appeals for taking the time and effort to help us resolve this issue. i feel very privileged to live in san francisco. a city that has a board of appeals process. i'd like to thank victor pacheco for had i professionalism. he was so helpful in 2008 with the cas appeal. now we have returned and he

continues to provide wonderful guidance. ~ had i please help us resolve this issue to i don't have to bother victor with another appeal. ~ his the commercial owners and homeowners share a common goal, to have a long vacant commercial space occupied. we agree it would support and supply office space. we're not ask you to revoke the permit. we made a good faith effort and tried to reach an agreement before the hearing. the reason for filing this appeal is to resolve the history of noise and vibration transfer to our multi-use condominium building. there is a shared 6 to 8-inch concrete post tension slab separating our homes from the commercial space at 725-7 27 folsom street. i am here today to propose a reasonable resolution ~ which includes use restriction and acoustic plan and verification. i am requesting a two-part solution from the commercial space owners. number one, isolate the noise and vibration from their

mechanical systems, especially those attached to their ceiling and our floor. number two, reduce the airborne noises from the activities of their permitted 72 occupants. i'm asking the board to direct the commercial owners for now and for the future, please be a good neighbor. isolate your noise. on behalf of the homeowners and residents of [speaker not understood], i'd like to introduce [speaker not understood] who will speak about use restrictions and acoustical plan and verification. good evening. my name is mari eki, my husband and i have been homeowners and residents in the park since it opened in 1989. it was promoted as the first luxury building in soma which paved the way for many more mixed use luxury condominiums in the area now called soma yerba buena. the following information is not included in our brief. i apologize, but we did not receive the charles m. salter & associates comprehensive acoustic report until the day after our brief was submitted. the results of the acoustic

analysis are predicated on a quiet environment not exceeding 72 dba. any tenant having late meeting -- late night meetings, parties, music or training with amplified audiovisual will be outside the parameters of the analysis and would not be permitted. use restrictions would be consistent with the activities of the traditional office tenant. if we rely on informal agreements, we will have difficulty enforcing these restrictions. our concerns have not been fully addressed by the permit holder's brief and unless required, we have doubts they will fully implement the finding of the salter report. we are asking the board to uphold the permit with the following conditions, use restrictions and acoustic plan and verification. the salter report conclusions are based on assumptions for normal office activity, not exceeding 72 dba during the day and 66 dba at night. these are normal speech activities ranging from a

conversation to a group presentation or conference call. here are four reasonable use restrictions based on the salter report. one, no group meetings or parties after 8:00 p.m. two, no amplified or live music, kerr yoke i disk jockeys playing music, permanent portable music system or speakers mounted to ceilings or walls. three, no activities such as video games or recreational activities that would result in cheering, shouting or singing. four, the hours of business operation should be limited to 8:00 a.m. to 10:00 p.m. here is a two-part acoustic plan. one, all mechanical and instructional systems should be installed compliant with specifications from the salter report. two, no mechanical systems can be mounted to the steel platform located in the loading dock area over the walkway west of 725 - 727 folsom street.

verification, salter & associates should confirm to the appellant they have reviewed the final set of plans and specifications including tenant improvement mep, and their recommendationses have been integrated into the plans. when construction is completed, salter & associates would provide a closure letter after verification. in the future, any tenant improvements for 725 - 727 folsom street should be reviewed and approved by salter associates for compliance with the established acoustic sounders outlined in their report. we are asking the board to uphold the permit with the conditions i just outlined, enforced by a notice of special restrictions recorded on the land records and attached as an addendum to the tenants' lease. thank you. on behalf of the homeowner and residents of museum park i'd like to introduce our acoustic co