the home page of the arts commission website, sfarts commission >> good evening and welcome to the july 21st, 2010 board of appeals. the presiding officer is tanya pettersson and joining her is joining vice-president goh, commissioner fung and commissioner hwang. we have some representatives from city departments such as

the deputy director of building inspection. also the acting zoning administrator representing the planning commission and planning department. please go over the ft meeting guidelines and conduct the swearing in process. >> the board request that you turn off all phones and pagers. please carry on conversations in the hallway. the permit holders and respondents have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must complete their comments within the seven minute time period. members of the public for not affiliated have up to three minutes each. to assist the board, members of

the public who wish to speak on a particular item are asked but not required to submit a speaker card or business card to forward -- to board staff. we also welcome your comments and suggestions. there are customer satisfaction forms on the left part of the podium. if you have questions about requesting a rehearing, rules, or schedules, please speak to the board staff after a break. the board office is located, 1650 mission street. the meeting is broadcast live on san francisco government television, sfgtv, cable channel 78. thank you for your attention. at this point, we will conduct

our swearing in. if you intend to testify, please stand, raise your right hand and say "i do," after you have been sworn in or firm. -- or affirmed. do you solemnly swear that this will be the truth, the whole truth, and nothing but the truth? >> thank you. >> we have one housekeeping item this evening which has to do with item number6, p.o. number 10-058. this matter has been rescheduled to september 8th, 2010, and will not be heard this evening. notices have gone out and no action is needed by the board. we go to item number one, public comment. is there a member of the public of like to speak on an item that is not on the agenda? if so, please step forward.

>> good afternoon, commissioners. getting a permit to is at a fraction of the cost of the organized activity. our firsthand experience is that they claim and prove that they have a connection with planning and building officials able to circumvent the code. they deal with retired or those that are semi-retired architects or engineers. the professional permit to and the contractors drew the plan wherever they wished and they put their stamp on the plan knowing that it contained false information.

they claim that they have an existing garage but they still do not have one. one permit is for a -- but this is a new edition. it is approved and without any public notification. the allowed them to do this until it was completed. -- they claim that this is not the same as the one that actually exists. they have claimed that these

are the existing. when we complained to the director, he used the preprogrammed address book to call the expediter. he warned them about the complaint against his plan. when the deputy director wishes for his dream house to be built, -- postponed his vacation and did it for free. they did not submit any thank or even a copy of the plants. don't worry, they have building and planning officials working for them and they give them statements to support them before the planning commission and the board of appeals. why a are the planning and building officials willing to be part of these activities? if you don't do anything, you

will get nothing. thank you. >> good afternoon, commissioners. we have five adjacent properties that surround us. the owners of three of these properties use the same expediter and architect. one of them was able to build an addition that exceeds the height limit without a permit. this requires a notification. the zoning administrator ignored his own staff and did nothing. the owner of the second property submitted false plans and claimed that they had an existing gargar-- garage. they claim that they were not

excavating 250 cubic feet of soil. an inspection revealed that the garage did not exist but they are activating over 1000 cubic feet of soil. the owner of the third property submitted 11 rescissions' of false plans and they were looking to legalize an illegal debt -- 11 revisions of false plans and they were looking to legalize an illegal deck. the zoning administrator of granted a variance. we have proven many of their false statements at the public hearings and the staff was left speechless. in justice still prevailed. you three ladies are lawyers,

officers of the court. don't you think that your decisions have been influenced by their plans and decisions? they have violated our constitutional rights by withholding talking -- documents. don't you believe that your decisions are inaccurate and unfair and unjust to the public? you should not support illegal and false statements. thank you. >> is any other public comment under this item? seeing none, we will move to item number two. seeing 9, we move to item number three, the adoption of minutes. before you for discussion and possible adoption are the minutes of july 14th, 2010.

commissioners, any comments? >> i move to adopt the minutes of the july 14th, 2010 meeting. >> is there any public comment on the minutes? >> on that motion, -- >> aye. >> aye. >> aye. >> aye. >> aye. >> thank you, and the vote is 5- 0. >> please call item number 4-8. -- 4-a. >> this is a jurisdiction request, no suspect -- no

specific subject property in fault. this is a letter from clary sage organics, requesting that of the board take jurisdiction over a letter of determination by the zoning administrator regarding the "athleta" brand of clothing and the formula used classification under the planning code. >> please step forward if this is what you have requested. >> thank you, good afternoon. i am the general manager of clary sage organics. on behalf of our business and the merchants association, we would like to summarize our request. on march 18th, mr. abrams

requested a letter of determination regarding the retail store and there was no letter associated. the zoning administrator issued a determination that this letter would not be considered as a formula retail designation as there are no other of these businesses in the u.s.. we learned that they were interested in the junior league store located across the street from our business. as detailed, this set in motion a series of conversations in conjunction with the plan department and the merchants association. in response to our request, mr. abrams has argued that we have not argued of the letter of the termination within the 14 days that were allowed. there was no address the sensitive with the request so we would not have any idea that would be relevant to our neighborhood. in looking at attachment one, all of the letters of the

termination submitted in 2001 have letters associated it. there is no way that we would know that the letter of the termination what impact us. this was -- we actually did pursue action after we learned of the letter within 14 days of our knowledge. our hope is that "athleta" would find a different space. we did not know that we could file a jurisdiction request until we were told that we could go to the board of appeals. we did submit to this within 15 days of running this was an option. we rely on the stated intent of the code and a basic notion of fairness. the stated code is to preserve the diversity and distinct nature of the san francisco neighborhoods. when a major corporation with like to open a new store, we

believe the strategic intent should be considered. gap inc owns three brands that are considered a form of a retail use. -- formula retail use. there should be additional scrutiny of this brand and others that are owned by major corporations. the lack of notice it eliminates any bylaw with local businesses and associations. this effectively precludes businesses from knowing that they have an issue. >> thank you. >> now we can hear from mr. abrams. >> at good evening.

we are here to risk west that the board the 90 request because it -- that the board denied the request because we legally notified everyone. even if this board determines that the jury of the occasion was correct but -- could not have known about letter because of the notice situation, we still feel that it would be on sale -- unfair to grant the jurisdiction request because the appeal was not timely filed after there was notification of the existence of the letter or the store being planned.

given the circumstances, it would be unfair if you grant the jurisdiction request because we think that there are other and more corporate forms for this to be considered, for example the planning commission. -- appropriate places for this to be considered. the planning commission has tried authority to discuss the appropriateness of land uses. also amendments to the planning code, if there's a decision or a letter of the termination or the definition of formula retail is not appropriate. turning to the record, as was indicated, the letter of the termination was issued on april 8th. at that point, we had no lease on fillmore street. we were looking for places to

rent throughout the city. the request was made. we understood our legal rights and the legal position. the record shows that -- became aware on may 12th. two days later, she was made aware of the fact that you could make a request for any activity of the property. she was aware of where the property was located, the procedures that you are allowed to do such as filing a notification request. that was not filed until three weeks later. there was a three-week wait. the planning department notified her of a letter of the termination. she was notified of the letter of the termination.

-- determination. thank you. >> is there any public information on either the business plan or the business model? >> no, there's not. >> we probably have two more questions. >> you have mentioned she became aware of the letter of the termination. >> she became aware of the location of the store on may 12th. two days later, getting notified of the letter of determination. june 7th, she was provided with the letter. the appeal was not filed for

three weeks. >> on june 7th, she became aware of the letter or she received the letter? >> she received a letter in an e-mail from the planning department on june 7th. >> thank you. >> council, so you referenced letter from the planning department and it mentions that you can appeal this within 15 days. >> it does. >> there is no notice about a concerned neighbor filing an appeal at that stage of the game. >> i think if i was a merchant and interested in retail in particular and i became aware of about a letter that allows you to file a determination, it would have been appropriate and reasonable to file an appeal.

there seems to be the strong feeling that the company does not -- does represent for miller retail. it would of been a brit to have an inquiry at that point. she knew where the store would be located. on june 7th, when she actually had the letter, she said there was a two-week appeal. . -- there was a two-week appeal period. >> by april 8th, did your client know where -- >> no, they did not. >> thank you. mr. sanchez. >> thank you, good afternoon.

the letter of determination was initially filed in march of 2010. it was filed in february of 2010. no notification is required for a letter of determination. this did not address a specific property. there is no requirement that this address a specific property. at the time, they simply indicated what the business was, how it would operate, and whether or not it would be considered for a retail use. this is not a requirement, this is something that they did voluntarily to get a response from the department. the proper way of addressing this would be a discretionary review. as was noted, this was filed by a representative of the appellant.

the building permit to invoke this use is not a formula retail use. the permit was submitted in july 1st. july 7th, we sent out the notation to someone affiliated with the request. no discretionary review request was filed during the time. the change of use request was filed to the concerned parties. the person who requested this can explain why that happened. i would be happy to go into why this is not a form of a retail use. they only had one other store, not 11 or more. this was an independent company purchased by gap in 2008.

looking at some of the materials available on line, if you purchase something online from the store, you cannot return it to a gap store. we see this as a different type of operation. the determination was correct. we request that you deny the jurisdiction request and we are available for questions. >> -- >> this was submitted on july 1st. this time has already expired to file the discretionary review. this was given to representatives. i have the request here.

>> does this have to do with a permit? >> what is before you is the letter of determination. in order to evoke that letter, they need to have the building permit. that was filed. with that permit, we did a notice to the -- folder and we gave them 10 days to have discretionary review. that was never filed. we have done everything by the book and we can approve that permit. we're waiting for the board's action on the jurisdiction request. >> although they could still file for jurisdiction -- >> they would be able to appeal the issuance of the permit. >> under what section of the planning code or is there any section that would deal with the fact that if this operation was to be a successful ended in --

and it had more than 11 stores, what would happen to the store that locates on fillmore? >> if the permits are approved and issued, it would be a legal nonconforming use. at the time that the permit is issued and the time they commence discussion, then they would be ok to proceed. if they want to come in for a 12 store on fillmore are something else, they would be subject to formulae used provisions. >> i have a couple of questions. >> can these be filed for an entire neighborhood or an entire street?

>> yes, we have them that are filed by neighborhood groups for entire neighborhoods and that is something that the neighborhood groups to and they are given a lower rate for that. individuals can request the is for as many properties they would like. they would have a slightly higher fee than a neighborhood group. there is no limit to the properties. >> the margins could request these on five blocks of fillmore? boston merchants -- of the merchants could request these? >> yes. >> how often is this issue without an address associated? >> this year, we have had maybe two or three. i think that i have a list. if i can put on the overhead,

these are the letters of determination that we have issued so far this year and there is only one other that does not have an address. >> these are at various locations. these are at existing locations, right? >> yes, i believe so. >> the one that you have start is really the one with no address. >> this is something we have done for many years. there are letters of the terminations that we have for the facilities and the excess reuse facilities and letters of the termination. -- these are the letters of the termination-- determination that we have for the facilities and the reuse facilities and letters of determination.

>> would this be the first? >> i would not want to say if this is the first or not the first. >> even if there had been an address, there would have been no notice? >> yes. >> this would be triggered even for an lod/ >> we would have this as the established policy in the department. right now, there is no requirement that it goes to a -- holder for anyone other than the requestor. we are moving towards that. even if a property had been identified in the march letter, there was no -- at the property at that point and there would have been known notification performed. i am not aware of the department

knowing anything about the much later. there was a project review meeting that the project sponsor health. i am not aware of the department having any knowledge of the location in march, april, were made. >> thank you. >> i will ask you the same questions. the april 8th letter of determination, this says that someone has a right to appeal within 15 days. if no one knows the address, what is this right we are giving the public by means of a notice of appeal? people might not know. >> whether or not someone would feel that this was an incorrect determination and whether this should be considered a formula retail use. this is not a