that people did not want so they did not come in and buy it. ultimately they threw a lot of the stuff away. and they adjusted their business model. their big mistake is that they should have came forward and said this is not practical. it is not pragmatic. they should get a new principle use, self service restaurant and wine shop. and something very unique open space in an enclosed area where people can get together. that, to me, is very practical. we are in the year 2010. they are running out of money. there is no more cushion. they put $2.1 million into a building which i thank you for, prior to that it was a complete eye sore. and it is probably never going to come back to us. but we can solve a problem. instead of create new ones or make new ones. what we can do today is move a

step in the direction to take a new use, self service restaurant, wine shop in the open space. what i like about the open space is a lot of non-profits right now are drying up and they need venues and space. this is a perfect space. recently an event there was and over 100 people showed up. it was a wonderful event. the city needs to look at adjustments of models, more practical uses during this economic recovery. we are probably going to be in this for about five more years at the least. i don't see any light switch. they own the building. let's grant them the new use, more practical use and thank you. >> thank you. is there additional public comment on this item?

>> good afternoon commissioners. we have met with the project sponsor and the ownership group of this particular building. we met with them close to a dozen times, looked at their model and what they have. in north beach there are few places where someone can get self service food. people weigh out their own amounts of food and it is something that is relatively nice. i haven't seen too many people go in and buy pasta and olive oil. very close by is a meat market right up the street, across from the meat market there is a produce market. further up that street there is another produce market. there is plenty of places to buy produce, meats and burdens. obviously it is one of our concerns is what can we do to help businesses survive in this economy. we are in support of the change of use on this particular venue

and would like to see the people who are currently serving businesses that serve produce and meats also stay in place. but we do think this is an appropriate change of use for this particular location. i thank you. >> thank you. is there additional public comment on this item? >> good afternoon commissioners. i am a resident in north beach. went to school here. live in the neighborhood. i go upon and down the street. i am in favor of the market the way it is. the building is excellent. beautiful looking building. if i want cheeses i will go around the corner. i shop and eat in north beach almost every night. a farmer's market people go to. china town a bunch of different grocery stores. where can you find a pound of food for $8.75 in this time and

era? i doubt it. i go and get a pound of food. it is pretty ridiculous to be able to have a price like that in a time and era when the economy is down and people are not making so much out there. i am a business owner. times are not as good as they are. everybody knows that. i am in favor of leaving it exactly the way it is. it is a gorgeous building. i find that people want to go get groceries, there are so many spots down china town from the gentleman was saying earlier, trader joe's, safe ways and up to grant street and the nature store. they are loaded up and down. you don't need to put groceries there. they will lose money on it. i can tell you that by living in the area. last i checkeded there is a farmer's market they have on a sunday there. that is where i am at. i am in total favor of the

market the way it is. hope you leave it the way it is. thank you so much commission. >> additional public comment on this item? >> i am a resident in north beach. simply i have to say that the reality for me is that i would not shop and don't shop at any of the small groceries in north beach. i do entirely all of my shopping at safeway and trader joe's. but the market is great for getting take out dinner and a bottle of wine. i like it how it is and i wouldn't grocery shop there. thank you. >> hi. i work in the area by the fisherman's wharf and north beach. i have seen the situation from different perspectives. on a personal matter i think that it can be a easy decision

to make but my opinion i think when people work hard and want a business to thrive they will do their best to comply and provide a best service for the community and for the business. they attempted to do groceries. i think what they do now is working best for them. they have grown their business in ways that you don't see up front from catering to wine sales. it is not just about the liquor sales. i think in my business i am able to work with them and i ordered from them today. they are able to provide a service for me when i say i want something done and have it ready and prepared they are able to accommodate me where some businesses may not. so i hope you make the right decision today and i thank you for your time. >> thank you. is there additional public comment on this item?

if not public comment is closed. >> i wanted to thank staff for their work. i think we have an exceptional team now in the enforcement division of our department. i was here for the hearing in 2007. i have gone by that site several times. i don't think they ever conformed to any of the original conditions that we placed on that project. i don't think it is appropriate to grant this when the original conditions of approval were never adhered to. and i asked staff several times about this since 2007 because i remember what we approved. and i saw what the use was and it did not seem to conform to our original conditions. that being said i think that

perhaps if those original conditions had been adhered to and still no success then perhaps we would be in a position to be discussing whether or not to change the conditions. you know, i don't think that is what we are faced with here. so i actually support the staff recommendation for disapproval. so i will move that we take staff recommendation and disapprove the conditional use authorization. >> second. >> well, i disagree. i was there. i think the second day they were open. i was really impressed with how nicely it had been fixed up and having seen that sit in disarray for 10 years and seeing nothing working. we had a couple of approvals that came before us that were

not approved. you know probably would not have worked any better and nothing happened and nobody was investing in this. i would say there is a variety of things when i went in there. i doubt there was the percentage of grocery that needed to be done even at the beginning. but there were groceries. there was some wine sales. there was a lot of takeout food and food to eat there. there are a variety of uses. we have to realize that markets of these sizes are blends. you have a deli. these all have some groceries but predominantly these businesses survive on the other things they do. they do deli service. they do a lot of that. they do some sales of various other things. technically as we are trying to modify this agreement they should be categorized as a different category than grocery

based upon the parameters we have seen. the other thing that was brought up is the store front. now i don't remember the store front restoration as being part of the original motion. i was digging through my storage room but you know i am not saying it was not. however i looked at the renderings of the building in its original form and then what it was before it closed. and in my opinion it was not very good looking when it started and got worse as the years went over. i think to restore something that is not very attractive and practical is not a smart thing to do and to the extent that, you know, that is part of the issue. that could be discussed. but i think what they did is a lot more attractive than a virtual restoration of what was there. and i would assume it is based on that picture we are seeing here in our materials. so they have a lot of support

as was mentioned today. a lot of people came out to support it. and certainly i think we could very well see a vacant site if we do not allow them to continue on with what they are doing. you know the other thing is and it has been admitted that the neighborhood did not buy the groceries that were there. to the extent that you could really have a full service grocery. because the competition is too much. you have all of these hybrids that are around there. the meat market, you have the things in the marina. you have a lot of produce markets, farmer's markets. there are a lot of options for food and a lot of people may work outside of north beach and on their way home they will go someplace andells get their groceries, which a lot of people do. so it is really tough. the few that do survive, there are little groceries in glen park it it was one that we

approved. it is a nice little grocery store. little big near square footage. that may be a more unique situation because you do not have the variety of things that you have in north beach and glen parkas far as other choices for groceries. so that does work there. because there are a lot of hills there as there are in north beach but you have more choices closer by in north beach. so, it is possible but unlikely that a stand alone grocery store being a strirkt definition of grocery will survive at that location. they spent $ million in upgrades. i think that i would be very happy to allow them to continue on in the form they are in. so i am not supportive of the motion. we will see what the other commissioners have to say. >> yes, i second that.

because i would like to support the staff on this one. the original approval and condition of approval all referenced either the wine or the restaurant type use to be subordinate to the grocery store. those were never the primary uses of this building. if you look at the plans that were given to us in this packet, the one labeled existing floor plan, it is ludicrous to me to think you can sell groceries on 10 shelves. the fountain in this middle of the space takes up as much as the shelving for groceries as there is. there were choices made early on somewhere. i don't think it was ever intended that groceries be sold as the primary use with the others being secondary. and that was the reason i voted for this was that the grocery store use was the primary use and the other two things were

supposed to be secondary and accessry. those were the only ways that those two uses could have been approved under that conditional use in the first place. that is the reason i am supporting staff. in terms of the exterior condition number six says the building exterior will be returned to its original appearance et cetera. that was part of the original approved motion. >> there is a lot of nostalgia for the old rossi market. that will never happen again. let's admit that without question. i also question whether or not the present owner or last two or three owners of the building did their market research prior to attempting to buy or open a

business. but that is not up to this commission and it is certainly not up to me personally how one goes ahead and commits a sum of money to a business. my problem is the absolute and blatant disregard of a commission action here in 2007. the very fact that they came in to the commission, made their application on a conditional use, went through the entire process, everything was laid out. means that they had knowledge of the process. and if they had knowledge of the process and wished to change those conditions, then they had knowledge of how to do that. i have been in that place

within the last month three different times. each of the times i was the only person in there by the way. the percentage and actual amount of floor space there, you just have to eyeball it to understand. i mean i did not have to go in with a tape measure to know it was totally disregarded as to the original condition. and i cannot as a commissioner ok something that is in blatant disregard of commission action. it goes against everything i know of in how the process should work and how it does work and i appreciate the fact that there is an action with

the department as far as enforcement is concerned. i think it is totally proper. i would also support the motion. >> yeah, i guess i wanted to support your comments because that is again it is clear to me that our conditions, original conditions were completely ignored and it almost seems deliberate or blatant on many levels. i have been going by that place since we last conditioned it. and i remember it first came here it was a controversial hearing in 2007 and they wanted to put in a full restaurant on the side i believe it was a thai restaurant and we didn't approve it because we didn't continuing was an appropriate use for that site. we limited the amount of space that could be used for that restaurant. i feel our conditions were completely blown off. in other situations we imposed certain conditions.

there is a public process. people come in. rarely taken lightly. there have been instances even with other projects who do not follow our conditions similar actions have been taken against them whether it is closure or any number of things. this seems appropriate in this sense to deny this to you. >> i have some questions just in general on enforcement. going toorned a lot of neighborhood markets, mostly the smaller ones, some of which morph into delis and sometimes have events and various other things. are we doing the same enforcements on all of these little markets? what is the rule? the rule is a certain percentage must be devoted to

dry goods. >> the main limitation is with alcohol sales. they are limited beer and wine to 15%. beyond that the planning code and zoning administrator sbragse over the pasta,llowed delis and that kind of thing to operate as an accessry to the use, typically there is some seating outside for that. this use is different. they came in for the small self service restaurant because they will have seating inside. they are serving other types of hot dishes. the market that you spoke of earlier in glen park has a deli. they serve sandwiches. you can go in and get sandwiches. they have prepared foods that you sell in a case that you purchase to take home or give it to them and they will warm it up for you but they do not

function as a restaurant. so beyond that, that is pretty much what the other stores are doing. the canyon market in glen park does that. buy rite on 18th does the same thing and most of the other small markets have a deli component because it is a very profitable thing for them and helps them make extra money. their main thing is selling groceries. >> i guess my question is more of the mom and pops that you see throughout the city probably do in fact have a higher than 15% beer and wine. >> typically they don't unless they have additional authorization for liquor sales, they tend toing within the parameters. and if we know about it, we take enforcement. obviously we are not in every

small and pop convenient store in the city. but i think we need to distinguish between convenient stores and the small stores that sell a few thing and beer and wine and liquor is the main component of their sales. this is a larger store. it is almost 6,000 square feet. it would not make a good convenient store. >> there is no restriction that convenient stores have to be below a square footage. >> you know it is a legal non-conforming situation. >> what i think with the mom and pops i am familiar with it might be buy sales volume. you are talking about the actual shelf usage.

how about storage. if part of your store is devoted to storage of groceries or other items would that count? >> includes the management office and cleaning area and things like that. now in small convenient stores typically there is not room for that. but in a store of this size or some of the other grocery stores in the 5,000 to 6,000 square foot range they have a back room. that is not considered in. >> case in point a market that took out their back room and made it more roomy within the market itself. it was a huge change. my only question i guess on

this what i am hearing is the biggest violation is the excessive beer and wine sales as opposed to -- beyond 15%. not the other uses such as permitted uses such as takeout food and food served on the premises and the fountain. >> the restaurant portion does appear to be operating within the parameters set by the commission in 2007. the grocery store is not. the wine sales has exceeded the area that is permitted and the grocery part, -- the 2007 action was in part to preserve that grocery store. if we do this and this we can still sell the groceries. but they didn't. they went on and put in the restaurant and the wine sales but they did not really develop the grocery portion. the other concern is the facade

and i realize that a lot of people like the facade the way it is now however the building is a historic resource and has been determined to be that by the department. and to change the facade in the way they have really takes away the historic character of that building. it had a very distinctive facade of its period and the improvements that they made, granted they were extensive and expensive went in the opposite direction of what the commission asked them to do. >> don't they have to get plans approved as they go forward through the permitting process? >> yeah. >> somebody signed off on it. >> yeah. >> it is not entirely their fault. they may have gone against the specific dictates of the c.u. but somewhere in permitting went ahead -- ok. thank you very much. appreciate it. well i still will probably vote against the disapproval because

i think there is room for latitude here and i think we should work with them to have them do this and have the larger wine and beer sales which seems to be able to keep them afloat and there might be other ways we can insist on having more groceries in there if that is what the feelings of the commissioners. but i think to force them to go back to the original c.u. entirely is probably unrealistic. >> the motion on the floor is for disapproval of the permit. on that motion. >> no. >> aye. >> aye. >> aye. >> motion fails on the 3-1 vote. >> move to continue. >> i don't know when. i guess when we have a fifth

commissioner. we do have five on the commission. so it could be to a time when we think we will have now a full commission or where we think we could get a deciding vote. >> the only thing that i can is for one week when commissioner moore is back. i can't predict when anyone cells appointed. do you want to continue in a week? >> maybe indefinite i guess would be better, probably. indefinite would probably. >> yes. at this point unless you know of other weeks when you think we will have a full commission beyond next week full as it stands now.

>> i don't show anyone else out on that day. >> all right. i will move for the 14th if that seems to be the first available time that we will have a full commission, and it may be a little fuller by then. you never know. >> is there a second? >> i just want to know the implications of not continuing the item. >> my understanding is that as it stands they do not have approval for the conditional use they have requested. denying this motion does not mean the project is approved but it requires a request of a conditional use. and they don't have one. so they do not have approval to

do what they propose. >> basically the c.u. is denied. there is no mechanism for you to approve the use. >> but it is not disapproved either. it could come back at some time i guess. if you are disapproved you can't come back for a year. >> the only thing is not limited is their ability to come back in less than a year. >> they could bring it back at another time. >> they clearly do not have a approval for the c.u. >> yes, absolutely. >> and we clearly do not have a second for a continuous. so that motion dies. >> thank you. >> thank you. again to reiterate for the public the c.u. has not been approved which would allow the

project sponsor to be bringing it back on a future date. commissioners you are now on item number 132010.0366 c for 1501 sloat boulevard lake shore plaza shopping center. >> good evening president and members of the commission. michael smith planning department staff. you have a request for a conditional use authorization to establish a formula retail large fast-food restaurant doing business as chipolte to replace the existing pizza hut in the lake shore neighborhood. the project seeks to amend motion number 11545 to remove board of supervisors condition which limits the types of food that can be sold at large fast-food restaurants within