polk street in the polk street commercial district. the space is currently vacant. the restaurant does not have a permit at this time and the permit will be subject to subject 312 neighborhood note. the restaurant would be eligible for a beer and wine license. however, no liquor service would be allowed without further authorization for a bar. future restaurant must be full service in character and a small self-service restaurant would require further conditional use authorization and a large fast food restaurant is not permitted in the district. the project is supported by the lower polk neighborhood group. the neighborhood group that covers the polk street and this portion of polk street and i got a letter just a moment ago from a representative of lower polk and they regret that their employment has taken them away and they won't be able to speak in support of this project today, but they were here to support. and department has also received communications from the middle court neighborhood no exthat

they are opposed to the project because the tenant is unknown and the food service use ve placing a retail space. the police department has not taken a position on this request. and in addition to the neighborhood group comments, the department has received one letter in opposition from a neighborhood who is opposed for basically the same reasons that middle polk opposes. when a restaurant tenant is chosen for this space, they would be required to give notice under plan code section 312 and anyone objecting could file a request for discretionary review and bring the matter before the planning commission. they recommend approval of the request for a full service restaurant as it complies with the planning code to the policies of the general plan. i'll be happy to answer any questions you may have. >> thank you. president miguel: is there any

project sponsor? >> good afternoon. david sternberg, the architect chrt project. and i'll be very brief. i want to reiterate basically that this is just a placeholder at the time. the real estating a has been marketing this space and thinks the only real tenants that have viability for any time of length of time because we have had many other tenants in the space that just turn over are full-service restaurants. it is basically a space holder to save a little time and i do want to stress the fact that any particular restaurant does al need to go through the 312 notification and can be brought back through d.r. before the commission. so it seems that the concerns of anybody would be met with the particular restaurant that gets finalized in the space. that' all i really had to say. i'm available to answer any questions if you'd like. thank you. president miguel: thank you.

is there any p public comment o this item? >> good afternoon, commissioners. i'm with the middle polk association. we respectfully disagree. we think that changing retail to food service should require a full hearing that is noticed with a particular restaurant in find. the discretionary review process, i don't understand how that works but from the woman who spoke in public comment before, it caused the people who wanted discretionary review some money to do that where under this process it's the general public that has a chance to have input as to what goes into their neighborhood. so we would not be totally opposed to having food service

replace retail if the conditions were proper. and with that food restaurant would be. >> thank you. is there additional public comment on this item? public comment is closed. commissioner borden? commissioner borden: i understand the concern of middle polk. and even if somebody came through with a conditional use for a restaurant, saying they wanted to do hot food, say, they could still do indian food or somebody else could come in all together. to say that the use runs with the tenant and not the applicant

at the time and the public pause in consideration doesn't make sense to make this retail sense into a restaurant space. and it sounds like there is issues trying to get retail in this space. that area of polk there is a need for more eyes on the street because it starts to get a little less -- there is a gap between activity on the street there and there's been issues with prostitution and other. and night eyes on this street seems like it would be a good advantage that a restaurant provid provides. if you look at the neighborhoods that are thriving in general, they are also restaurants that have helped rejuvenate the neighborhood. and part of the challenge is people aren't doing retail. shops are shutting down on every street. i see it even in my neighborhood which has a thriving retail environment and it is an increasingly difficult conversation and restaurants have been the saving graces mof of the neighborhood corridors and as a matter of fact, we have seen a number of n.c.d.'s come before the commission requesting

to lift the number of restaurants they are allowed and to provide conditional use for the restaurants allowed in the neighborhood because they found the previous prohibitions were too restrictive and hurting the viability and i understand the concerns because it's easier when you know who the tenant is and the d.r. process is a more appropriate way to deal with the issue related to the actual person going in there, so i would move to approve. >> second. president miguel: commissioner antonini? commissioner antonini: and regardless of what type of restaurant may go in there, as long as if that restaurant were to go out of business and be replaced, i think it's 18 months

and longs vacancy is no longer than that and the conditional use is in place with a different type of restaurants and it's three years in this area? i know there are different areas have different periods of time and north beach has a much narrower time as long as it fits the necessary requirements in terms of a full service restaurant and each time there is a change like that, there is additional 312 noticing as to the change and often they have to post a sign in regards to the fact there are going to be alcoholic beverages served also. i'm in favor of this project. president miguel: commissioner sugaya? commissioner sugaya: under the scenario if it's approved and it is a c.u. and a restaurant and

is it a specific restaurateur that comes in and one of the neighborhood groups or somebody files a d.r., what kind of powers does the commission have under d.r. short of overturning the c.u.? can we condition anything and everything at that point? >> thank you. good afternoon. >> i didn't mean everything and anything, but -- >> in this case i believe that once the building permit comes through, there will be a section 312 notification and one can file a discretionary view and bring it before the board who would be able to condition that permit. however, that permit is not appealable to the board of appeals because it is issued pursuant to a conditional use. so that is my understanding but would defer to the city attorney.

sh commissioner sugaya: for example, we could condition hour of operation and garbage pickup and storage within the building. there is no entertainment here at the moment, so these are not issues but we have the leeway to look at all those parameters. >> i would suggest if the commission is interested in putting limits on those issues to include them in the conditional use permit that the condition is authorizing today. i'd have to look further and do further research on how extensive the review might be of a building permit once it is authorized because the conditional use permit should

control those issues. if the commission does want to address the issues, i would suggest adding those as conditions to this conditional use permit or to include them in this approval. >> commissioner lee? >> you are opposing this because this is too many restaurants or is the liquor license or whant want to keep retail? i'm surprised. normally you are in sync with the lower polk. >> we are very much in sync with lower polk and to say we're opposing the project, our viewpoint is there is no project because there is no restaurant. and to go with what the city attorney just said, if it is true that the commission can't put conditions after the conditional use process, then you're in a position where you don't know what your you aer

approves today. if we knew what was going on in there and had time to talk to the people going in there i understand the need to have a space rented and to do business. and we're not blanketly opposed to replacing retail with food service. it's just that we don't know. it's an unknown process here. we don't know -- >> i understand where you're getting at. thank you. president miguel: in a way it doesn't matter who goes in first. they could go out of business after a week and a month later they could go out of business and someone else could come in and you could have a mexican restaurant a chinese, italian restaurant of any type following each other. this commission does not approve

tenants. we approve the conditions on land use. commissioner moore? commissioner moore: i do believe that lower polk requires a balance, a careful balance of who is there. we have an area which is really trying to pull itself up and i am prepared to fast track a realistic c.u. at the time when there is an offer for someone to move into the space. i am not prepared to move into a theoretical c.u. approval for the reasons that were stated and what middle polk's concerned about. i can not really support the motion on the floor. president miguel: commissioner olague? vice president olague: i can see where both the commission and the polk association are coming

from. i just tend to see a use here but i don't see any specific conditions which is i think the point that commissioner sugaya was making. and usually when we do look at these situations, we do have a project before us and even though it can change to a mexican or indian restaurant, the conversations we have here when we change the different types of uses, they do involve the specifics of how the space is going to be use and what hours and the nature of whether it's a bar or restaurant that's open to 1:00, midnight, 10:00, whatever, and there are the usually we don't hit here and dismiss it as a restaurant and not get into specifics about those type of details. we can go on hours here talking about conditions that will be

imposed on the store and even though the space isn't attached to the use, frequently when we condition and there is more information on there i would lean toward the arguments of middle polk although i understand commissioner borden's logic completely. i have never seen anything like this actually. usually someone comes with an actual project before us, not focussing on the use. this actually i have never seen 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 wt