violate the zoning in that way in order to accommodation. >> so we are really constrained to the zoning? >> yes, i believe so. i mean, that certainly there are things that could be done on the ground floor but to have it be spaced that is habitable and not a separate dwelling unit that is considered the dwelling unit under the planning code. commissioners, the matter is submitted. >> >> one last question, mr. sanchez. this district is predominantly rh 2? >> and so when you go to the south the 29th street and that is nc three and so it is a

higher density and otherwise this block that you can put it on the overhead so that you can see and it is not adjacent to the zoning change? >> no, it is several properties in, so you can see on the overhead here. and... >> it could have stopped flickering. >> this is the c3 on 29th street and otherwise the major of the block going toward duncan is all r2 two and based on the sand born it appears that there are quite a few single family dwellings that make it a bit older. and one apartment building. >> thank you. >> any comments? >> i have a motion, if you want to hear it. >> okay. >> commissioner? >> i am going to move to continue this to the call of the chair. >> well, with two-year review

period. >> i would lean to accept that. >> any further comments? >> okay. >> go ahead. >> >> we have a motion then from commissioner fung. to continue this matter to the board's indefinite calendar, the call of the chair. the public hearing has been held. and it is to prevent displacement of the kur ant tenant, correct? >> correct. >> and in two years after the places and the calendar again? >> yes. >> two year intervals? >> on that motion, to continue

this matter to the call of the chair, president hwang? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> commissioner honda? >> aye. >> thank you. >> the vote is 5-0, this matter is continued to the board's indefinite calendar, the call of the chair, thank you. >> okay, we will move on to item 7, appeal number 1 3-030, mio ota doing business as mio inc verses the department of building inspection, at 2130 fillmore street, also known as 2118 to 2128 fillmore street. protesting the issuance to monique romos to alter a building, with the retail space with the existing mixed use building and renovation of the

ground store level for a new retail establishment and no structural work. for the hearing today and we will begin with the appellant, you have seven minutes. >> good evening, president hwang and commissioners. my name is mio ota and i have been in a merchant for my street for the last 35 years, and 1978, i have seen fillmore street go through many changes. and currently, there is a proliferation of retail stores and to fillmore street. and many that attempt to enter fillmore are disguising the fact that they are formula retail stores and my appeal against monique and oska that they are a formula store. they have gone to great lengths to disguise their intentions as

formula retail. and although, they currently have nine stores open, they would have had 12 by now except, that i began my first appeal in january of this year. in their discussing here, they have put that store on hold. and it was intended to open by this spring and that is why, they listed the address in their store brochure. once the appeal was filed, they withheld opening that store. however, on gra*ig's list as of april 8th and continues now, they are hiring for that store. and i am sorry to point to the print is small but they are currently seeking sales associates and holders for two

new northern california locations that will open within a few months. secondly, evanston, illinois, they say that they have leased that out to a gallery, and i talked to the commerce in evanston just today. they gave me links that show everything in their records oska is still on the lease. they have not leased it out to an art gallery. and in the evanston patch they announced that it is a new store due to open soon. and in the visiting downtown evanston, again, it says opening soon. on the face with the announcement that said that it was opening too, but they erased all of those announcements. i also have a client who does live in evanston and she shoped at lake forest illinois store

and was told that for her convenience she would be able to shop in evanston very soon. so then, the main store on 19th street, because of my first appeal it was opened and they quickly closed it after i submitted my brief in february. however, they said that they closed it in 2012, in fact the president had an affidavit saying that this was just a pop up store and we will close the store in 2012. however, i went up to the street area and i interviewed merchants and people who worked there and they all agreed that it closed at the end of february. on facebook, they also noted the announcement that the store closed january first, 2013, but they posted this february 28th. since then, all of these

announcements have been erased. and in their men's catalog, they do list the men's store on castro street. now, it makes one wonder just how or to what extent they will go to disguise their intentions. the main store, although it presently has been removed on all signage, they still hold the lease to it. and if they are calling this a pop up store, does that mean that it is going to pop up as soon as this hearing is over? and in helsberg in evanston will... they are really slated to open just as soon as this hearing is over. so, i am asking you to look at their intentions that would have made 12 stores and a

formula retail store. now with the internet. i gave you a list ofal of their internet stores and if we come to the internet. and you have the commissioners to interpret the code, which does not say internet stores are not retail establishments, it just says, retail activities can be counted as retail establishments. >> the fact that they have 18 stores, if you take the physical and the on-line stores they have a great amount of power over an independent store like me. at the time that it was created ordinance was not created and

it is now in a giant way and so much so that there is talk of taxation because that will create money and we cannot deny that any internet activity can become a retail establishment because many stores do not have physical stores, but they have an internet presence, such as amazon. and so, for that reason, i ask you to open your minds and realize that internet can be interpreted as a retail establishment. again, the reason for this appeal, also goes to the heart of the matter in that i had built up a significant audience for oska. and they are attempting to come on to fillmore and tap into the clientele that i created. they are also doing the same. and the other retailer there

was also a important oska retailer and they have taken a space across the street from her and if you are going to protect the small businesses, i really ask you to consider, their inspections and thank you very much. >> miss ota? >> yes. >> do you... permit holders brief included one letter indicating that you are not ordering anything from oska. >> i didn't get to that point. >> the order that the presented in their documents is fraudulent. i never submitted that over that. i don't know who they belong to. however, i do have with me, my fall order here that i paid for

and were in the store, $26,000 dollars worth. and they are saying that. they have made every attempt to disguise their intention to open their own store because it is closed for profit. and they can make 700 percent markup on the cost of their goods and me as a little person has 120 percent markup. for example, if i have 100 item that i bought from oska i would mark it at $220. that same item cost them $40. and they have been marking it at $270. so, there is a reason why they are tapping into the helsberg store. >> thank you. >> that answered my question. >> thank you. >> we can hear from the permit

holder now. >> good evening, commissioners, john, kevel here and i am here on behalf of the permit holder and the permit under appeal will allow for the build out of a retail space at the subject property at 2130 fillmore street to be occupied by an oska store, it is a high end fashion retailer managed and part owned on the west coast. and i first like to have monique give you background on herself and the store. she is part owner. >> >> my name is monique, and i am a partner in the oska business in northern california. and it has been my pleasure to represent the company to do the best that i can since i became a partner in the business two years ago. and i have a long career in fashion and can honestly say that i found my true home here and the level of support that i have given to kul vait a team in subquebt shop is

unprecedented. that we are rolling out stores with no regard to the local landscape is counter to the way that we operate. >> i was born in san francisco and i have lived in the city for most of my life and i have respect for the culture of the city and the unique character and the individuality that each neighborhood offers and my goal is to add something to the that is unique and special. and our valley shop we hear every day that the clients love the entirement that we provide. they love the clothes and the colors that we offer. they pull me aside and tell me how much they love working with the members of our team. these are the clothes that they have been waiting to wear >> they shop with us because they like how they feel in our clothes. they love how they feel when they leave. this is not something that any brand can maintain on a large scale in a personal experience that needs to be cultivated. >> when i was approached to be a partner one of the concerns was location, at this time, it was important to us not to open too close to her. and when we chose the valley

location, i visited her personally and to let her know it was happening and stated it was important that we work together. and i wanted to make sure that i offered items that were different from the items that she offered and once we opened we directed plans to her when we did not have a size or color that they were wanting. this ended when the orders were too low and we could no longer see what items she had in stock, although she had been a successful retailer over the course of 2006, 2008 she had reduced her stock of the line until august in 2012 when she dropped the line completely. she dropped it even after i volunteered to drive where oska was being shown to wholesale to work with her and the agentelferris. she wanted to see if on a real person. >> it was difficult to see how it fit a real bod yafter strieg on a great deal of the collection for over two hours i was not her normal customer and

that trying on clothes for her was not helping. >> after i learned that she dropped the collection it was a priority for me to find an open shop in san francisco. after looking at the union square and the area we decided on fillmore and lucky to find a space at 2130 fillmore and this business is essential that your brand be represented in the proper way in the right locations. when she decided not to move forward that signaled the need to find a san francisco location. i believe that i was more than sympathetic and respectful for her situation but there are limits. i should also mention that taking that much time to work with her was not ever something that i had to do and i chose to she had been in business a long time and it was important to recognize that. and so this is where we ended up in this room not talking to one another in front of the aboard and i hoped for a different out come. i hope to work together to build the brand and i hope that most of the people have never heard tf before this hearing. for me this is where the excitement lies, i am thrilled to build it in the my own way.

i am desired to see a brand that people associate with san francisco. i am so optimistic about this that i have enlisted friends to join me, some relocating from other states to do so wha. we are creating is not a traditional retail situation, we are creating a family that is helping each other through this time. we are excited to be in this community, for many, the move to the valley is a challenging one, we hope that this will end so we can move forward. this brand is very special, few companies are designing clothes for the women. we are meeting with the thanking notes and them that come to shop. and we have the client that salt lake city, because she likes working with us specifically. >> and i respectfully and humblely ask the board to support the planning department with the original determination that my shops are not formula retail and that we are allowed to move forward. thank you for your time. >> thank you commissioners. >> i want to speak to the form

law retail issue. so, to be clear, the planning code detains the formula retail as retailers that operate at least 11 stores in the united states. since last hearing, oska has opened a location in beverly hills and up to 9 stores and therefore, just not a formula use under the code. and on-line stores also do not count toward the formula threshold that would be a really significant departure from past practice and this has been confirmed by mr. sanchez and he is also determined that oska is not a formula retail use and therefore the formula use controls do not apply. and just to also mention that even if one other store opened it would still be under the threshold for the use limit. but beyond that, not only is it a form law retail use, it really does not resemble the type of change that those controls were put in to effect to protect the city from. monique is a san francisco native, she is a part owner of

the business. and managing partner of osk on the west coast. she is using her experience in the fashion and business side of the industry to create a unique and hyper local experience for her customers. and monique and her team design each shop that they open. also has create aid northern california catalog for northern california and using local models and doing a photo shoot at the beach. and monique has compiled a team that includes friends and colleagues from the industry that are here today. and i want to mention one of her friends, jason, raise your hand. has moved here from virginia specifically to help her in her vision of growing her business. so this is beyond just a business decision, this is really monique's passion. and while san francisco understandable has become sensitive to formula uses in recent years, monique's business does not resemble that and in fact it is a business that we should be encouraging thank you. >> i have a question for you.

>> yes. >> let's assume that we find that you are formula retail store, does that preclude you from opening up this location? >> what that require is that we need to go to the planning commission to get a conditional use authorization as a form law use. >> and what would that entail >> rescinding the permit and filing a conditional use application and getting a hearing schedule at the planning commission. >> what would you have to prove at that hearing? >> well, there is a lot of discretion that is left to the planning commission, there are five criteria that they consider, when thinking about a form law retail use, one are and mr. sanchez that i refer to you you have back up here written down. one is the number of other formula retails in the area, and another one is the similar, the number of similar uses in the area. and those are the two main ones that come to my mind right now. >> i will ask mr. sanchez as well.

>> great. >> thank you. >> and i have a question >> sure. >> and in the appellant's exhibit 3, they have a page that i think comes from the (inaudible) material and it lists ten stores which includes heisberg, could you clarify what is the situation is? >> and absolutely. and i think that a lot of this goes to under scores monique's situation here which is she is new to the business and sthe has been given a lot of free reign out here, she is... it is as little or as much as they wants to make from it. this is why we have situations where her and jason started a pop up store in the castro to see how it worked experimenting with that. heilsberg is another location that they are looking at a store right now. they have been caught up with the situation here in san francisco, and again, because this is really monique's show she does not have any time or energy to put towards new stores at this point because of her focus has been here.

>> but it is listed along with nine other stores? >> yes. >> and you will see in there too there is a couple of catalogs that shows incorrect addresss in chicago it shows that there is a store in evanston, there is no store in evanston, once again this is a situation monique is talking about experimenting with different stores and thinking about different ideas and communicating that back to the main organization, but, clearly before any of it has even happened. and as a result, there is no heils berg and there is no store in evanston. >> come on up. >> i should mention that there was some, there were things that were wrong in the catalog and the main company had wrong addresses and they had two in chicago, which was not the case, we had... >> you are saying that your marketing team is inadequate? >> say that again? >> you are saying that your marketing team for oska is

inadequate? >> we have a freight elevator, or a freight side and the front side of the building and they had both addresses for deliveries, and they listed both in the catalog but that is not two that helps to drive up the number. >> besides that that there is the facebook and the craig's list. back to the question regarding heilsbeger. the appellant stated that your potential location in helsberg is close proximity to a vendor that supplied your goods for a long time. >> she had for a while, for a few years, and the way that i understand it, she was way behind on checks that she had written, she had written several checks for prepayment and kept asking them to hold them and the next one would come up and she would have to hold that. >> currently on the heils berg

location it states that you are going to do an art gallery. >> no. >> so that is not... >> evanston. >> actually, yeah, and that is leased out. >> and okay you have a pop up store on 19th street and you don't have a lease on that. >> so what happened with 19th straoelt and we had the pop up shop and released with the good in the city at the end of december and when this came up we decided to go month to month in january. and we decided to hang up in the storage and we process the class gla*s and use it as storage because we had all of the goods that were shipped to us for the location that we needed to store somewhere and so we went month to month with the landlord at that time and it was too expensive for the storage. and so we moved everything out and i believe that it is already leased to someone else. >> okay. >> and actually just to follow up on that, if we could get the

projecter please? >> yeah, this is the date stamped photo from march and this was before the last hearing just showing that the location is closed and clearly there is no retailer in that space. >> i am just concerned about the lease. >> absolutely. and as monique said the lease has ended. >> thank you. >> and thank you. >> mr. sanchez? >> thank you, scott sanchez, the planning department. so the subject property is located within the fillmore street neighborhood commercial district and would require a conditional use authorization for farm you la use and we have reviewed the terms submitted by both parties and found that this is not consistent for the formula uses in terms of the threshold. you do have to have at least eleven stores opened and the 12th store that would trigger the conditional use authorization and so based upon the information that we have seen, they do not have eleven stores opened.

and in terms as if the conditional use authorization was required, and it is noted that there are five criteria that the planning commission would review and it it is noted that the existing concentration of the uses within the district is one and the availability of the similar retail uses in the district is number two. and the compatibility of the proposed formula retail use with the existing architect you aral and character of the district is number three. and the retail rates in the district for four and the mix of city wide serving retail use and neighborhood serving retail uses in the district. the formula retail use controls the first added to the planning code in 2004, and in nine years it has been amended nine times. and it was created i would argue that internet based retailing was pretty prominent and the early 2000s it has been amended and no addition of the requirement that we count the internet based retailers and in fact i don't know exactly how i would count that, is it based upon how many warehouse distribution centers there are?

and how many people have the website opened at one time and the idea behind the formula use controls is that it is the aesthetic impact and for example the starbucks because they had a hearing on that last week and denied the conditional use of authorization for market street and those are based upon the concentration of the uses within the neighborhood. and so if you have an internet based use, how does that contribute to the formula uses in the neighborhood and it is about the physical impact and about you see the starbucks and maybe i should not be using them as an example. you see the same signage everywhere that you go and you see the similar cookie cutter uses throughout the u.s. and that is something that the formula retail use controls try to limit or try to address. it is about those visual impacts. s and so, we reviewed the materials and do not find that this meets the threshold for triggering a conditional use authorization requirement, certainly if they reopened a store, or with a pop up store

and that is the 12th store and then that would trigger the conditional use authorization. but, given for what we have seen in the materials now, they do not have eleven stores opened in the u.s., this will not be the 12th store that is operating, therefore, i would not trigger, the planning code requirements for the formula retail use and we have been applying this consistently since 2004 and so almost a decade of applying these requirements and when someone is seeking whether or not they are formula use and this is the standard that we tell them is how many stores are opened and that is consistent on the application. and so, that information that i wanted to present to the board and i am available for any questions. >> go ahead. >> are you saying that small business concerns are concerns of unfair competition do not enter into this planning code section? >> there was a business protection act and there was a requirement for authorization that was passed in 2007.

we have not been challenged in the courts as far as i am aware on our formula use controls based upon past cased thatvy seen, i think that the courts have upheld the courts controls based upon the aesthetics issue and i kind of to say that these controls are based upon small business protection and changing for the market place and in that regard. and so, i think as they were originally crafted. they are very much related to the aesthetics of formula retail uses. >> okay, thanks. >> may i... >> sure. >> so, if a store is the eleventh store of a national group, what happens after that, is really then immaterial, right? i mean if the 12th, 13th and 14th opens, the deed is done and the stores hope here and that is that. >> and we will retreat these

and if someone is opening a 12th store at this location? we treat that as the same as someone opening the 1000th store. [stand by change of captioner]