in it the six years that i have been here. that being said, i think i'm going to refrain because it's supposed to be unnecessary and desirable and would be influenced by the nature of the use of the space. not just the restaurant now. and we don't have anything here. so i can see the cautionary note to that. i'm going to stick to that scenario. president miguel: commission ee borden. commissioner borden: for me the most productive thing is if there were conditions, all of our restaurants have similar conditions and the only condition that would be different would be really the two timing and if they want to have entertainment, that is something they have to come back for. if they want a liquor license, that is something they have to come back for so there's nothing other than food service and the hours of operation that we particularly have -- we can add all the extra trash and a lot of the conditions, most of the

standard conditions that we put on these sort of uses but if there are ones that are missing, we can add them. the only real differences that we usually debate about is the liquor license and hours issue and the entertainment issues an and those would both have to come back to the commission. so in my perspective, that is kind of why i'm not concerned about it because you can't do anything crazy with the space because you can't without coming back to the commission again to do that. i think the other thing is that traditionally in a project where the sponsor is the restaurateur coming in, they themselves are paying for the tenant improvements usually as part of the expense of opening their restaurant. it sounds like in this case this architect is going to go ahead and put the tenant improvements in. i don't know if ultimately that will be in the rent or something, but it would seem to be an advantage for the potential new tenant to not have to make that investment in the

tenant improvement to convert it to the restaurant. and that would be the advantage of doing it in this approach if you are trying to encourage local businesses that might have problems getting money for the tenant improvement up front. if that is indeed the thing. but i guess my point is that based upon the issues we generally are concerned about, entertainment, liquor license, the only thing this is doing is allowing them to prepare and serve food. the other things within the hours of the window of what conditional use for restaurant use is and again, if people want to stick to their conditions on the time and in anticipation we would rather have a future restaurateur come back to us for a later time, that would make a lot of sense because that is the only real other issue that i think you need to be addressed at this point absent what they have to come back for in the future. president miguel: i have to agree with commissioner borden

fully on this one. time is the only thing i can think of that would be possibly changed in this regard. and i also appreciate the fact that the property owner is trying too fast track the rental. and in these economic times that is totally logical. commissioner antonini. commissioner antonini: i would also agree with commissioner borden and president miguel. in fact, i can't ever remember that we have conditioned a restaurant on the type of food being served. in fact, i think that discussion may have come up once and we mentioned that it isn't within our power to say it has to be a greek restaurant but it can't be a chinese restaurant. it has to be indian but not italian. i don't think that's what we're really empowered to do. but what we can do and i think maybe we can talk about what the code and what is code compliant and we have already been told that assuming they get the proper permit from abc, it is

beer and wine would be allowed in the full service. and probably are hours of operation that are allowed as a right. maybe staff could let us know what those are and what we're approving. >> rick crawford. commissioner, the hours of operation in the district by right are until 2:00 a.m. >> could be up to that time. so if there are commissioners who feel they would rather this be not that broad, we certainly could add an amendment to that. but at this point i think that that would be fine with me. and i think there are standard conditions as far as the treatment of garbage, so that already is part of it. basically we have a formula for which this would have to comply and the only variable would be

the type of food that's being served. so i'm fine with the motion as it is. president miguel: commissioner lee. commissioner lee: on the one hand, i hate empty spaces but on the other hand i know that area very well and we do have quite a few restaurants there. one just closed a block away on the corner of sacramento and but it goes back to me with this is that we have never done this before in the eight years of this planning commission and also as a planning commission in the mid 1990's. and i can never remember a time that we ever prequalified a certain use. i think commissioner moore and olague have good points here. is it necessary and desirable? do we need another restaurant? if it is, what type of restaurant? i understand from developer and the owner what he wants to do is say, look, i've got this ready for you. come, if we build it, you will come because that place has gone over several different hands and

used to be an antique store. i used to go in there all time. i am torn on one hand but if we add another restaurant which we're doing on union street and i think 24th and we added more. and it's sort of i have a mixed feeling on this because we do have quite a few restaurants there. people want more retail. we do know retail is decreasing all along polk street. i'm just torn, but if i take a look at the definition is it desirable and necessary to have that restaurant, my personal view that we don't in that neighborhood. president miguel: comment from staff? >> commissioners, i just wanted to reiterate that the conditions under exhibit a, the conditions of approval in front of you are the standard full service restaurant conditions that you see routinely. i think it may be also out of

the ordinary for you to see these type of projects in a single use, but in a multiuse building you do approve retail uses and restaurant uses without really knowing what's coming in. look at it that way as well. i wanted to point that out. president miguel: thank you. commissioner sugaya. i'm sorry. commissioner moore. commissioner moore: i think the more i listen to the argument of the other commissioners, all well made points and why i'm convinced i need to hold back partially because setting a precedent at this particular time is very dangerous. any land use, any c.u. could come forward asking for the same thing. small or larger or everything in between. i do not believe i am prepared this time to tip the balance to look broadly at issues which are affected by real applications rather than just facilitating the rental of real estate. i do believe that we can fast track and we can fast track the people who want to move into

vacant space and have c.u.'s in a very kind of focused way. and i would be all for giving that to the public, but i am not prepared to do something we have never done and i don't think is on the right principles of why we are sitting here. president miguel: commissioner olague. vice president olague: is retail banned in this area? is it a nonallowable use? just not allowed. or is it a c.u.? it's a c.u.. >> i'm sorry, a d.r., c.u., okay. >> part g because i's a neighborhood commercial district. i just wanted to clarify that because some neighborhoods, of course, like north beach and others it's just not allowed and the restaurant desirable at this space? i'm not convinced of that necessarily at this time. and again, why put the burden on

the neighborhoods. president miguel: commissioner sugaya. commissioner sugaya: yes. i don't live too far from here and i know there are a number of restaurant closings and another has closed within two blocks and agree with commissioner lee. president miguel and this particular application is in their neighborhood and they are in favor of this. and so that would be one important point. and the other thing is we do this often in other situations. for example, we'll approve a project that has as part of its component a grocery store without knowing what the grocery store is going to be. in fact, often times we hope it's going to be a grocery store

but we don't necessarily condition the project so have a grocery store but there will be retail and i am still in favor of the motion. anything further? >> should the commission choose not to support this conditional use today. we recommend that you include in your motion that you would accept that the reason is because there is not a specific tenant and you would accept conditional use in less than 12 months because otherwise they could not come back in less than 12 months if they had a tenant. vice president olague: that is good. >> is there a difference in doing the tenant improvement to the cost of the tenant and to put it into the rent as opposed to the up front cost? the problem with old restaurants is thousands of dollars to renovate and you are going to

put in a new restaurant. is there an economic benefit to the potential leasee? >> honestly, we were not intending to do the improvements. we were going to rely on the tenant for that as far as i know with the real estate agent. but i think there is always some sort of trading back and forth and if the tenant wants to put a lot of money into a space, the owner is motivated to get less rent or pony up some money. and quite honestly from the marketing of the space and the past experience with the space, the only people that seem to be interested in the space are restaurants, full service restaurants. and so this is really the benefit of the potential tenant is all we're looking for here. we know all other restrictions

that may be problematic would be before you again. it is really just time. and the benefit of the tenant to go for the permits in a quicker fashion than the conditional use hearing again. >> have you seen these people look at the other spaces by any chance? >> our space seems to be attractive to restaurants for two reasons. one is because it's small. it is 1350 square feet and is not a huge investment and a huge move for somebody, first of all. second of all, the nice thing about it is that it's not a building above it. it is a single story building and so that is also attractive from a noise point of view and interrupting residential

neighbors. yeah, there are restaurants closing but there are definitely restaurants looking at the space. and as i said, there appears to be no other contenders that are in any way looking at this space except for full service restaurants. >> thanks. president miguel: commissioner moore. commissioner moore: i want to thank the director for adding what he did. it is an important consideration and whichever way the motion goes, you would strongly encourage that would be added including letting the applicant know it's not about him but the process of how it's done. >> commissioners, the motion on

the floor is to approve and the motion is for approval and on that motion. [vote taken] this motion fails with a 3-4 vote. vice president olague: i'm going to move to deny the c.u. but with the language that the director suggested we add. >> commissioner, we would recommend you do a motion of intent to deny. vice president olague: that is right. motion of intent to deny. with the language included if you would repeat it. >> something to the effect that the commissioners would consider an application with a specific tenant in less than 12 months without prejudice.

president miguel: is there a second? >> second. >> thank you. commissioners, the motion on the floor is to to deny with specific language that would allow it to come back without prejudice if a specific tenant is identified. on that motion, please vote. >> that motion passes on a 5-2 vote with commissioners antonini and borden voting against. when will this come back, commissioners? >> can we do it next week? >> next week would be great for the intent to deny. it won't take that long.

we'll put it on the top of the calendar. great. >> i can have that motion to the commissioners next week. >> thank you. >> commissioners, just to state for the public the motion will not be in your packet. so it won't be linked to the calendar, the final motion won't be linked to the calendar. we can make it available to the public as soon as it's available. justi just to let you know. so this is coming back next week. thank you, commissioners. president miguel: before we proceed to the next item on the agenda, i know there are a number of people in the audience that are here regarding the booker t. washington community project. it may very well be an hour

before we get to that just so they know. >> thank you. commissioners, we now are on item number 7. case 2010.0080t and the planning code to various sections of the planning code amendments and to various sections of articles 7, 10, and 11. >> good afternoon, commissioners. tara sullivan from the planning department. the item before you is a comprehensive code cleanup and passed at the july 8 hearing by this commissioner. it is a large document that is in front of you. it is amending mainly clerical errors occurring in the code for the past several years and also has a few additional cleanups and particularly to articles 7,

10, and 11. the historic preservation commission heard this yesterday and obviously under the charter if any ordinance pertains to preservation issues, they have the right to review and recommend to the board of supervisors. at that hearing the h.p.c. took extensive and went through page by page and went through articles 10 and the amendment. we did not get to article 11 and we have continued that to the next hearing which is in two weeks. based on that, the department is going to ask the commission that the item be continued until the first or second hearing after the summer break. but i am here and would like to go through if you are amenable some of the sections we are proposing amendments to, not 10 and 11 per se but some of the things in the attachment. if you would like me to do that, we can walk through that. >> and i am not at the moment

inclined to continue this item, so if you would continue. >> i want to highlight several attachments from your pacts starting with attachment c. actually, i want to highlight attachment b which you have had since july and i can answer specific questions. i am not going to go through each one of them. this is the spread sheet that itemizes the clerical errors in the larger document. >> attachments c-h have proposed amendments. attachment c deals with formula retail uses in section 303 and as you know and was discussed earlier today, formula retail uses came into effect around the commercial district and north beach and hayes valley and with the conditional use in the past 10 years and there was a voter

reven dumb and authorizations -- and referendums and they have incorporated formula retail concerns rc3 and rc 4 and articles eight in the eastern neighborhood as well as in soma and chinatown has its own prohibitions and c.u. arguments and pointed to article 7 and the department feels that is the inappropriate place and there is a section in the the conditional use section of the code that we are proposing to consolidate and there is no change to the definitions, to change to requirement. it is literally expanding on the formula retail definition in this section and clearly lays out what sections require c.u. and what sections should not allow formula retail and

everything else. that is the first major change in terms of the planning code. again, it is not a substantive change but putting everything into one location. attachment d deals with 309 of the planning code. i was asked by several staff people to look at this code. it was put in 1985 when the downtown element was passed and mainly deals with permit review and the c3 downtown zoning district. you should be familiar with the process, but i was asked to look at this code section because it is very confusing to read and hard to understand what the process is and what the requirements are. i worked with several people in the department, mainly the northeast quadrant who deals with this and the zoning administrator with the past and current acting as well as the director of neighborhood

planning and we are proposing amendments one of which i would like to highlight because it has come up as an issue for some people of the community that there is a requirement that requires when they receive the application for 309 permit or review that we have to notice that application and if someone filed a building permit, we would have to notice that the building permit has been filed with the department and is requesting a 309 review. the department has not been doing this for several years and most likely that the notice to approve application or more often than not it comes to the planning commission and we have hearing notification

requirements. everyone felt that was appropriately handle on the back end and some believe it should occur again at the front of the application and this is with the commission's call and the department would like to remove that from the planning code. everything else in the 309 is basically cleanup in terms of making sure it's clear with the process. i'm not going to go through each section unless you have specific questions. attachment e is highlighting the medical cannabis definition which has had a long, complicated amendment history since it was put into the planning code in 2005 and there were existing deadlines they had to follow by and kept being extended and the dates were coming and going in the planning

code. that definition is probably one of the more difficult planning conditions to understand. we are not changing any of the requirements. but we are making it very easy, hopefully easier to read that you have to be within 1,000 feet of a school, 1,000 feet of community facilities and recreation centers. so we're streamlining that throughout the code and making a nice, clean definition. obviously there are extensive amendments to 10 and 11 that we are proposing. in addition to what we have proposed in the general cleanup and i would like to say that -- i would like to say that -- do you want me to wait? article 10 and 11 are outdated. prop j was passed a year and a half ago and the historic preservation commission has been

a seated commission for a while and there has been attempts to overhaul and rewrite articles 10 and 11. we have requests from this commission as well as the h.p.c. to at least clean up the planning code to put in historic preservation commission into articles 10 and 11 and remove the commission where the powers have been removed and basically make it conform to article 10 and 11 was a starting point and we have received self-additional recommendations from the public and many of which we have . we are as a department unwilling to amend additional or accept additional modifications. we have been working with the h.p.c. and yesterday accepted many more modifications and we will go through article 11 as well and there will be additional modifications for 10 and 11. i am not sure how to approach 10 and 11 with this commission. i just either do a summary memo

or go through it entirely at your call. alatchment h as several smaller amendments that have come up since they initiated the code cleanup in july. one of them is a simple amendment to section 134. at some point and the report mentions that what was happening with the code and why this is a large cleanup is we were losing track in the city attorney's office of amendments and where they were in the timeline. eastern neighborhood was drafted years before it went into effect and other larger piece of legislation went into the code and then eastern neighborhoods accidentally erased a bunch of stuff out of the code. that kept happening and has been happening for many years. one of the things that was erased inadvertently in section

134 market and octavia a couple of parcels that needed to be put back into the code in terms of rear yard requirements. so we are asking that to occur. and section 201 and we want to make a few minor modifications to the tables in terms of moving thingses around and putting headers in. section 309 a request to have a good catch to someone in the public that there is an exception that is no longer applicable and is moot and has been removed through eastern neighborhoods. so we're striking that. the other one, the last one which i know has been something you have received several emails on is the section 311 modifications that we have received or asked to make at this point. obviously this is a long-term process to amend the d.r. process and we are not trying to amend the d.r. process. there is no intent to amend any of the d.r. process.

what we were asked to do by the d.r. team and the department was to streamline and cleanup this part that deals with the notification package. and what specifically has to go in the 311 package that gets mailed out for 30 day. it is not meant to remove any of the requirements both written and planneded note. i have realized there is a word that is somewhat ambiguous and would ask the commission strike that. for example, the notification package for a project under 311 shall include a written notice and reduced size drawings of the project. that is very vague and makes it sound like the department will not provide drawings. access is a bad word and will say shall include written notice and drawings. we are acknowledging that was a

poor choice of words there and further down in this code section. i do want to highlight that this change to section 311 is, if anything, making the notification package stronger. it is requiring more drawings and more specificity to the drawings and the written notification. and so i just wanted to put that out there. i know this one has been a topic of much controversy, and again, it is not the department's intention to circumvent the d.r. process or any notification process. that is basically it for section 311 and that will basically conclude my presentation unless you have questions. >> can i just have a quick quick question on that thing. >> under e are you going to strike access to --