had they not ever filed for this letter, there probably would have been no -- on the property. we would have approved a permit at the ministry of sleep. the project would be built. -- we would have approved the project administratively. this was done pursuant to the -- and know -- was filed. now we are here on this jurisdiction request. >> i am not blaming counsel, i'm sure his client was assessing the risk. it is the right of appeal within 15 days. that could be a field goal only for the project sponsor. this is rendered moot if no one knows about it. >> often, the letters only go to

the requester and it is on a website. >> if you're watching a property -- ok, thank you. what is the notice with the building permits? >> the permit that we received, because this is not a formula retail use and a neighborhood district, this does not require any notice. the only notice was 10 days in forming the right of discretionary review. >> i have a follow-up question. i don't understand when the 10- day period starts on july 1st if the permit is held up by the request to us. >> we're holding this out of courtesy. there is no hold on the

determination, this is just a jurisdiction request. the building permit was submitted on july 1st, we did the permit on july 17th and we are holding this as a matter of courtesy to find out what will happen with the board's decision. if the appeal is filed, i don't think that this would be approved and issued until we have the issuance. >> if this is not file, then this is not correct. >> they have filed to the building permits. we have an accurate notification. this opened up the 10-day window

for filing discretionary review. >> the permit is not correct if we took jurisdiction and determined that there was a formula retail. >> you don't have jurisdiction. you have not chosen to do so. >> our potential ruling could make this move. >> that's why we are holding it. >> when you say holding it, this is not issued it but you don't mean you are holding the time in which someone can file dr? >> no, this has already closed. the question of the form of a retail use would be opened up. >> this seems like this kind of compression process. it seems reasonable that perhaps this party might have waited to see where this would go and

deciding whether or not to file for dr. >> speaking with them, that is probably why they did not file. i think that this is a matter of process and what came first or second. they would have the right to do so, even if it was determined not to be a form of a retail use. >> even if we were to grant jurisdiction, the door is shut on dr, so we would be back to deciding if the lod was properly issued.

>> the question on what would happen if the board takes jurisdiction and determines this is a formula retail use, then it would require a conditional use. if the board finds that this would be a conditional use, then they would have to file these applications. >> which would reopen this process? >> which would have a hearing before the planning commission. this would at 3-6 months to the process after the board makes a decision. >> thank you. >> is there any public comment on this item? seeing none, commissioners, the natomas before you. >> man i asked -- amana i asked

the jurisdiction requester to come up here? mr. sanchez said that you did not file dr because he waited to see what this process would be? >> yes, it is possible that we made a mistake. we were on a little confused from the process standpoint. the deadline close to two days before we were going to come before you. our understanding was that the relevant question here before you was whether this was considered a formula retail use and if so, this takes into play a lot of other checks and balances. that would guide subsequent -- all of the other things on the

building permit. this was not going to be affective if this appeal was denied and they continue for the form of a retail use. our understanding was that that was the relevant question. if we made a mistake not asking for this, this was our mistake. >> can we allow mr. abrams? >> it is stated that you have three weeks from the time that you received the lod and nothing was filed until three weeks later. >> unfortunately for us, we did not have the luxury of hiring a legal team. we have three weeks from the

time that we heard of the later of the termination but we were told that we had 15 days to appeal this. how would we have got a notice of this? we had some communication with the planning department. we found out that after asking a series of questions that there was no notice required. at this point, is there any way for us to open the appeal. we could submit this jurisdiction. within 15 days of knowing that this was an option, we did file. the first week was spent trying to figure out what to do. >> right. >> your submission to us, item

seven, the state's may 20th if. my next page shows june 29th. why don't you brief me on the dates that you submitted on that page? >> i am happy to give you my copy. basically, on may 25th, this is when -- got information on how to file this and trying to figure out how to explore her objections. on june 3rd, we sent a letter. we were reiterating our concern about leasing to the gap and we were concerned that the fillmore street association did not give information. are there other viable tenants?

barney's was one of the viable tenants. >> my a question is related to those states. -- dates. thank you. >> i would like a chance to respond. >> we have done -- we have had a lot of public outrage on this -- out reached on this. we met with this business and others after locating this store. it is not technically correct to say that the association are opposed to this use. that is not correct. they have not taken a formal position.

i think overall, the facts speak for themselves. they were made aware of the store location and they knew exactly where it was when they got the lod in the middle of june. two weeks after that, that is when they found the ability to do the jurisdiction of request. this is on the web site. this is clearly indicated that this is something that we could do. this is not everyone's bread and butter. the appeal is for a reason. given the time frame, it would be inappropriate to do this at this point. >> can you explain the public out reach? >> we have a team including the

owner. we have gone up and down the street asking for the opinions about the store and informing them of it. in fact, we received very little opposition to having the store there. other tenants and other merchants on the street had been favorably disposed. >> thank you. >> you describe the store to the merchants. did you go into the fact that this would be like a pilot for forma retail? >> no. if it was discussed that the gap has three other stores. they have another store which is just an internet retailer that shells -- sells shoes.

they have been run as the cadillac-based business. they have been operating from the internet and the catalog. this is the first store that they have been opening. >> i am asking whether or not it seems as though there is some attention -- attention one day to have this expanded operation? >> i cannot speak to that. there is no concrete plan to expand and open a new store. >> are they sought plans? -- soft plans? there was some attention to go beyond this operation to see if you could not work out some details that would cause whoever

it is that runs this, whether it is the gap, or some other company to have some stores in operation. >> the mill valley store, this would have been the first store that has been a few -- a true flagship store. this was to test the layout and see how it was run. >> going after the idea, is it absurd to talk about this as being a potential form of a retailer? >> i don't think that this is absurd. given the state of the economy and given the lack of concrete plans to expand, it would be inappropriate to say that this is or is not form of a retail. this is a plan where it is one in existence. this was purchased by the gap

but they run stores off of the internet as well. i don't have a business plan, there is no published business plan. there are not any leases signed for stores. >> how many other single store operations to they have? >> there are the three brands that they have -- the gap, banana republic, and old navy. >> are there any single store operations under the ages of the gap? -- aegis of he -- the gap? >> there is a specialty store that sells merchandise from time to time. >> what about the stores such as

old navy, banana republics? and did stay open there's or get them to expand? -- theirs or get them to expand? >> i cannot say. they were lucky enough to be successful and contribute to san francisco's business. >> even if it was a pilot store, this is not falling within the legislation a form of the retail. >> that is correct. the intention of the form of a retail ordinance as drafted is to protect the character of neighborhoods and not have stores that have common features

with other stores being built. it is interesting that barney's was referenced as an appropriate tenant. they have much more than 11 stores. it is confusing as why they would be appropriate but not athleta. this does not fall under formula retell definition. >> the use of the word flagship is probably -- >> the stored in mill valley does not have the finish to it and it does not represent what this would look like. >> thank you, sir.

>> i will provide you with the letters that we have from the pacific heights neighborhood association. they are open to doing the appeals process. if there is an intention to make this a formula retail use, should there not be an opportunity for neighboring businesses to be considered? the businesses and communities that we have spoken to are specifically supporting the idea that there was no notice and we had no opportunity. >> i think you have a letter from one of the associations in here already. >> is one of those a july 15th letter from the pacific heights resident's association?

>> following on president peterson's comments, and here we have a letter of the termination with no address that offers a right to appeal. there was no notice. this is giving the right of appeal to no one. i think that for us to not grant jurisdiction in this case, we would have to say that there is no right to appeal for an lod issued with no address. the jurisdiction request your -- requester did file after learning that an appeal to us was an option.

she filed only 8 days late of considering the actual notice of june 7th and that it is not the notice of learning that the board of appeals was a possibility. with that, she filed well within 15 days. they cannot afford counsel and the process was confusing. the process is confusing and there is no address on an lod. i am confused by the idea that the door could be shut on dr following commissioner garcia's language when a decision that could move that issuance has not been reached.

i am not quite sure how that is consistent with due process. i would be inclined to to vote for granting jurisdiction in this case. this tends -- this depends on the comments of my fellow commissioners. >> this issue has come up before. what are the rights of individuals with respect to an lod when there is no notice of requirement? we have been sympathetic to allowing parties at least their day in court, so to speak. i did have some stories i wanted

to tell but i don't think that it deals with the request itself. i think that it is appropriate for us to grant them time and present their case. >> i would concur based on the reasoning set forth by vice- president goh. vice president gore. -- vice president goh. vice president goh: you can't but think of the merits addressing this and i have difficulty seeing how a pilot store does fit within the formula retail and the comments are puzzling about barney's, being a chain as well.

commissioner hwang: i think while it's not well liked here is a competitive nature and not the issue we're supposed to be addressing today and whether there was proper notice and whether you came as quickly as you could to address the situation. i think it is very confusing about the letter determination on april 8. i don't know how anybody interested in the city is supposed to guess if it's going to impact their particular neighborhood, and i agree with your frustration. my only problem, though, is you're certainly aware the shop is coming to the fillmore street and should you come to the board then, i would have been a bit more sympathetic to the tardy of notice. so i think i would only support an opening of the jurisdiction if it were done on an expedited basis because i do think you're now putting athleta at a

disadvantage. they are allowed to rely on these deadlines and we're now into late july, now two months you've known about this. this is where i'm coming down with this. commissioner garcia: i agree more with president peterson than the comments made by the other commissioners, and mostly for this reason -- several reasons. one, there was no requirement for notice. it is troubling there was no address on this, like who would want to, you know, file an appeal on this when they don't know who is going to be impacted by it, so that's trouble. but there's precedent for that. but, you know, the merits aren't there. and i agree, it may grow to be and may evolve to be formula retail, it is not currently

formula retail, so there's that issue we tend to look at when we're trying to solve whether or not to grant jurisdiction. i think the thing that's most compelling to me is the fact that having missed out on this process for the l.o.d., possibly reasonably so for the appeal of the l.o.d., it's remarkable to me that this requestor did not avail themselves totally of whatever processes were still available to them. so having this -- absolutely, had i been them, gone to planning, made sure i knew what my rights were and would have filed the d.r. but i wouldn't have said i'm going to roll the dice and hope that i prell veil -- prevail when i go before the board of appeals and then it'sness for me to filed a d.r. i think if we were to say we'll give you jurisdiction -- they're in bad shape if when

the issue came before us we'd decided that the z.a. had not competed its authority, had been correct, there was no manifest justice when he issued the statements in light of this issue of the l.o.d. so right now i, too, am very sympathetic to these people. i hope, as very often happens, this goes into your neighborhood and increases your business. it is not improbable that that will happen. but as of right now, i do not intend to support a request for jurisdiction. is there a motion? vice president goh: i was going to make a motion but waiting until i had our council's

attention. how many votes do we need for jurisdiction? >> four votes. vice president goh: i'll just make a few more comments because it seems clear we won't have the votes. i was trying to stay away from the merits of the case as we try to do and we're looking at jurisdiction requests. it may be that their intention, the gap's intention is to only have one shop or maybe even 10 shops and come in underneath a formula retail. but we also heard they don't have any bricks and mortar store subsidiaries that have even one fewer than 10, they only have many, many, many. so i do think it's putting pressure on our formula retail

ordinance. in terms of the questions the various commissioners asked about and then when it hits 10, then what? then it hits 11. so i guess i'll go ahead and make the motion. are there comments from other commissioners? i make a motion to grant the jurisdiction request. >> ok. thank you. mr. pache counter, o, if you could call the roll, please. >> on that motion from the vice president, grant the jurisdiction required, commissioner hwang. >> aye. >> president peterson? >> no. >> commissioner garcia? >> no. >> commissioner fung? >> aye. >> the vote is 3-2 to grant. the rules require four votes to grant jurisdiction or jurisdiction is denied. >> thank you.

president peterson: we can move on to item number five, if you'd call that item, please. >> calling item 5, bill number 10-056. elizabeth kantor versus department of public works, urban forestry, property at 835 wisconsin street. the appeal on may 10, 2010 of a tree removal permit, order 178.654. president peterson: thank you. since this is a denial we'll start with the department, ms. short, you have seven minutes. >> thank you. carla short from the department of public works, bureau of urban forestry. we received an application to remove one tree at 835 wisconsin. they accept the information provided by the applicant the tree is 26 years old with a trunk diame