findings specifically are around the shadow impact on the open spaces. president chiu: is there a second? seconded by supervisor campos. any discussion? can you repeat the motion? is it to reverse the certification of the final eir, tabling item 21? is there any discussion? rollcall vote. supervisor mirkarimi: aye. supervisor alioto-pier: no. supervisor avalos: aye. supervisor campos: aye. president chiu: no. supervisor chu: no. supervisor daly: aye. supervisor dufty: no.

supervisor elsbernd: no. supervisor mar: aye. supervisor maxwell: no. >> there are 5 ayes and 6 no's. supervisor elsbernd: i move item 21. president chiu: he tables item 21 and 23. seconded by supervisor dufty. supervisor mirkarimi: aye. supervisor alioto-pier: aye. supervisor avalos: no. supervisor campos: no. president chiu: aye. supervisor chu: aye. supervisor daly: no. supervisor dufty: aye. supervisor elsbernd: aye. supervisor mar: no. supervisor maxwell: aye.

>> there are 7 aye's and 4 no's. president chiu: the motion passes. if we could recall the mission miracle mile business approving district item, please? >> we have the election results of voting for the mission miracle mile, 82.56%. there is no majority protest. we may consider adopting the resolution. president chiu: is there any discussion? can we take a roll call on the resolution?

supervisor mirkarimi: aye. supervisor alioto-pier: aye. supervisor avalos: aye. supervisor campos: aye. president chiu: aye. supervisor chu: aye. supervisor daly: aye. supervisor dufty: is absent. >> there are 10 aye's. president chiu: you can now call the item related to the appeal hearing, please. >> items 26-29 comprise a special order, the hearing of persons interested in the decision of the planning commission's conditional use authorization.

the motion approving the planning commission on property located at the grand avenue address. item 29 is to have the clerk prepare findings. >> we have an appeal in front of us, and the hearing will consider whether the planning commission's granting to allow entertainment use in the bar and restaurant is appropriate. as we have proceeded before, we will proceed as follows. up to two minutes in support of the appeal, 10 minutes supervision by planning, 10 minutes for the sponsor of the representatives, and up to two

minutes per speaker in opposition of the appeal, and three minutes for a rebuttal. are there any questions about proceeding? as the supervisor for the district in which the project is located, i will make a brief introductory remark. this is the first time that i have gathered at the requisite signatures, and i want to thank my colleagues that have signed that for this appeal. i thought this was worth the hearing for a couple of reasons. not just because my neighbors were united in asking for the appeal and because the san francisco police department had asked for the appeal, but you are now seeing in documents that the planning department has reversed itself and asked us to disapprove. with that, why don't we proceed with the hearing? i will ask representatives for the appellants.

supervisor elsbernd, do you need to be excused? that is for the next item. >> i am the president of the hill dwellers. we have heard some amazing discussion, and we're seeing a permit on other entertainment. why are we spending our time on this? it is because of neighborhoods, the gems that we hope to get for america's cup. as we look at each home, they all add together to become the fabric of our city and make a difference. this board unanimously reversed.

when it appears before you, it is a serious matter and something that we take very seriously and believe in our position. we're the oldest preservation organization founded in 1954. what we're asking you to do here today is support the planning department reversal. the planning department conducted a thorough investigation after the appeal. this is not just about a karaoke machine. this particular site we are

talking about -- it is a north beach special use district. these restaurants are actually two different restaurants. fast forward to the 80's. this was right before the controls were being implemented. we joined these two restaurants and added a second-floor restaurant. i think it is well known that a lot of commercial district controls second floor restaurants. they are not allowed. before the controls were implemented, it was essentially grandfathered in. that is the basis of this

appeal. the trick with nonconforming use is that it cannot be intensified. there are nonconforming uses. what is happening is, the owner of a restaurant is fundamentally changing a restaurant into a sports bar. it has become not really a full- service restaurant. the documents submitted to the board were extremely long, but i think it was the last exhibit where a series was reviewed on- line. the review says it is an awesome sports bar. cheap drinks. that is not what is supposed to be happening.

the involvement with these particular spaces actually spend a couple of decades. it actually went belly-up in 2001 and new owners came to take over the space. they applied for a permit. a restaurant down the street said that wasn't fair, we could not do that, so you should not be able to either. there was an issue that erupted. we worked with the attorney that was actually here at 4:00. they negotiated and spent a lot of hours a notice of special restriction. we need to get a restaurant into the space and have a properly served business.

and also, it would run with the property so that no matter how many times it changed over, this would be enforced. that was the purpose of putting together the nsr. the king of thai owners from -- continued to operate as that, but slowly and surely, pool tables and karaoke machines have fundamentally altered this restaurant. and most recently, they came before the planning commission and said that we want to see you for other entertainment. i think president miguel asked about the entertainment, and it passed without question. none of the documents or a past

negotiations was before the planning commission when they made this vote. the premise of the planning commission vote could not have been proper and we did not have all the information. there is a long due diligence period. it was no one else's. the board of appeals issued findings -- none of this was presented to the planning commission.

currently, it violates the planning code and the north beach control. we worked together to come up with this nsr, she was the attorney representing the prior order -- ownder. -- owner. she remembers the planning staff at that time undermined the process and it was a valid reason for the appeal. without taking up too much more time, it police reports the department's request -- thank

you. president chiu: why don't we move for public speakers in support of the appellant. first speaker, please? >> good afternoon. i have been a resident of north beach continuously since 1962. i want to thank you for being present for our issue. when the kerry of the machine was requested of the planning commission, it did not sound too

threatening, and we didn't make a protest at that time. it has come out that the new owners concealed the restrictions on their behalf and the previous activity about restricting this site. i have been here long enough that i will remember la ventura. everyone i ever met eight there, going back to the 50s. i arrived in san francisco in 1948. it is -- the situation was explained, but it is complicated. the current owners concealed the restrictions on their deep, and i think as elected representatives, it is your responsibility to support the planning department particularly in these very unusual situations where there are reversing themselves. thank you.

>> i am a resident of north beach near the corridor. written agreements would know this as special restrictions. the special nature of north beach and any commercial district, you have very defined types of uses. the broadway commercial corridor with type, density, heavy entertainment, a wonderful neighborhood that will hopefully be revived and has a good focused nightclub, high use area

that can be monitored. as one moves away from the broadway corridor, you have smaller neighborhoods, restaurants, and cafes that still have entertainment. but much more in tune with the smaller scale, restaurants, and cafes. the process, unfortunately in this case, seems to have been somewhat clouded by factors that i don't understand the nature of. but certainly, the overall planning needs to be adhered to. thank you. president chiu: next speaker. >> that afternoon, supervisors. -- good afternoon, supervisors. i lived a few blocks from --

live a few blocks from king of thai. i am here to speak in support of the ballot, because i have seen the change in that area for the past 10 years, and specifically since the restaurant has changed into a half-bar half-restaurant hybrid, it has become increasingly unsafe to hang out, especially at night and on the weekends. we would actually go and hang out on broadway every now and then, and even though it was kind of a neighborhood like

that, we felt safe enough to go to the restaurant there and hang out. now it has changed completely. there are more and more establishments that tried to change their permits one way or the other and have additional entertainment. if you don't support the ballot, your green lighting the trend and changing the neighborhood into something completely different. president chiu: if anyone wishes to speak, light up on the center aisle. >> i urge you to reject the

appeal. for as long as i can remember, i have been going across the street for decades and i am familiar with this corner. the illegal change and the ridiculously tacky signs have had a significant impact on the quality of life for nearby residents and passers-by. i was quite happy to come down. others are saying that it is kind of a magnet for people from

the broadway corridor. please grant the appeal and reject this review. >> i am also a resident of north beach. i love thai food, and i love that corner. i just wanted to add to the discussion that everybody makes mistakes. the planning department made a mistake by not making a site visit to the restaurant, and so they didn't discover that the restaurant had turned their second floor into a bar. they also didn't tell the planning commission that there were all of these prior agreements that required that the second floor be a restaurant and not a bar. so there were mistakes upon mistakes, and now the planning

department acknowledged that they made a mistake, and they have changed their position. i would urge you to approve this conditional use permit for all the other reasons that the folks have brought up. >> you guys know me, i am a longtime community activist. i lived on grant avenue for 33 years, so it holds a very special spot in my heart. my husband and i, and good memories. you can imagine the concerns about the situation.

moving around the corner, a full-blown nightclub was evolving. from the avenue to central station, a couple of the commissioners verbally attacked the san francisco police department representatives, suggesting a sergeant shouldn't be wasting his time at a

planning commission meeting and should be out on the street protecting san francisco. they also said they never explained their criteria. it is my understanding that that criteria had been explained several times. [chime] i think you know where i am going with this. president chiu: any other members wish to speak? why not remove to the presentation by the city department? i'm not sure which of you would like to go first. >> this is a conditional use

permit granted. it specifically allows them to install a karaoke machine. they have done an extensive report on the history and i can go into that if you would like. the appeal was filed a few months ago but there is a 2005 notice on the property. it did not include a proper bar that we would know of.

we asked our department staff to investigate the property, and there was a violation. there was a full bar on the second floor with taps and bottles, and we respectfully request that this body uphold the appeal, overturn a conditional use so we can bring this new information to light. >> i have a couple of quick questions for you. under the plan encoder, neither boar nor restaurant are permitted above the ground floor? >> part of that is correct. basically, the second floor use

is illegal. it is a use that was in existence prior to a zoning changing. there was -- that bar and restaurant use on the second floor cannot expand or intensify due to the fact that those uses are not permitted. >> and just to clarify, would you have observed -- what you have observed is intensification? >> absolutely. president chiu: under the planning code, could they get a cu? >> no.

president chiu: it sounds as if the staff had not found the history, he talked about what happened and why it took so long? >> i think that they did adequately see what happens. the special restriction was not highlighted and did not pop up when the planner was checking for the site. the project sponsor and commission with this information, including the dwellers brought this to our attention. the plan at the time -- planner at the time in turn made it's approval based on de information

or lack thereof -- based on the information or lack thereof. president chiu: it is fair to say that you would have made a very different recommendation? >> we would not have brought this to the planning commission. we wanted to make sure that they were conforming into being a good neighbor to the community. president chiu: thank you. it looks like we have the commander here today. you have all received a copy from the chief. are there things you like to inform us on