gracias. >> good afternoon, my name is -- i am a mother, and i live on that block. i am four buildings down, and i am on the tenant council, and i am so worried. a part of selling drugs. a lot of danger. people injecting themselves openly on the streets, and also, when you have a baby carriage, not moving out blocking or pass. i ask you to do this. director told -- goldstein:

saint you. next speaker. >> i have been for five years in the tenderloin. i want you to consider them part of your community, because they are, and folks here today are very concerned. not just the families, but also the seniors and the elderly who are all concerned about the dangers in the tenderloin. regardless, it is going to bring an element. a drug dealing culture. we need to get control of it. you have heard from us. you have heard from the child- care center on the block. you have heard from the preschool around the corner and those from family housing. you have heard from the other tenant leaders.this is unanimoue

community. this is really a concern, and we ask you please to say no to the pharmacy. please side on the side of the community. i thank you for your time. director goldstein: thank you. is there any more public comment? please step forward. >> my only plea to you is to consider this pharmacy. my two children were born and raised in the tenderloin, and as crazy as it might sound, there are families who are living there. we are dealing with crime and violence. police. you heard it all. -- please. please consider not on turk. there will be more crime and more narcotics on our streets.

director goldstein: thank you. anymore public comment is closed seeing none, commissioners, the matter is before you. -- any more public comment? public comment is closed. seeing none, commissioners, the matter is before you. president goh: commissioners? >> [speaking spanish] gracias. >> hi, my name is -- rodriguez. i am here to ask you to consider the pharmacy.

i have a son who goes to the daycare which was mentioned before, around the corner from that particular block. i just wanted to share with you that we are afraid it is going to get more dangerous around there, and we ask you to consider that. thank you for your time. director keppler -- director goldstein: thank you. commissioners, the matter is before you. president goh: director gol dstein -- director goldstein: i suggested she could use the same size font to level the playing field. president goh: i do not remember if she did so. thank you.

just to remind, and i had to remind myself, originally, the hearing was scheduled for august 18, and it was rescheduled to october 6 at the request of bay drugs because they had someone who was going to be out of town and that they needed more time to prepare their brief. then-president peterson -- i was not president at the time. and then, another reminder, it was on october 13 that we did vote to revoke the permit, and then on november 12, -- it was originally scheduled november 17. at the request bay drugs, they

were again rescheduled. on december 8, it was a special item and an unusual request to submit a supplemental briefing and evidence, and this was in response to our findings, and we allowed that, and i think that is one of the reasons we are in this pickle today. since i am already talking, i will keep talking, and that is i find that there is manifest injustice in this situation, and i would be inclined to grant the re-hearing. i do think the permit was enacted in bad faith, and now, the appellant has quite competent counsel, -- commissioner hwang: i would concur with the comments of

president goh. i am very moved by the comments from the public tonight, and i appreciate everyone coming out tonight. i also appreciate president goh going through that timeline, because i remember making some changes, and i think there are sufficient facts and circumstances for a rehearing. that would be my vote. commissioner fung: when we first heard this case, i shared a similar thought, that the potential for similar land uses can create abuses and therefore

have a significant impact upon the community, and i voted that way in the initial hearings, and i voted to revoke the permit. the question is now in terms of the process, is a rehearing -- there is a very narrow window in terms of how one approaches back, and it is set to very high standards. probably, i think we are one of the few if not the only similar agency in san francisco that has a rehearing component to its charge.

the two portions that were raised, contrary to most of the public comment, which had nothing to do with the merits of the rehearing request, one is whether it is new information that is provided that relates to the ability to have had legal counsel. i do not consider that to be new information. there was a number of times where testimony occurred, where the ability to breach occurred, -- to brief occurred, and i do not think they are required to put forth a position and a

point. i continue to feel that the potential for misuse is there, and, therefore, whether the question of manifest injustice comes into play. and i guess i will go with my heart to this time and vote for a rehearing. vice president garcia: yes, we are going to be hearing this again. very, very difficult. granting a rehearing. it has been mentioned that this original permit was obtained in bad faith, and what i feel most strongly about, having to deal

with any particular aspect of this case, is the fact that i would not want to be a party to, regardless of how reliable some witness or appellant may be about whether or not work commenced without a permit, i do not want this board to do that. i do not want to be a part of that. no problem. the reason we are in this pickle does not have to deal with we gave this a continuance and we not give that one. the reason we are in this pickle is that we granted jurisdiction, and i voted for it, beyond what had been granted, a certificate for final completion. cfc. we abuse our own discretion. -- abused our own discretion. i do not feel anything new has taken place, and mr. wagner,

something to the fact that i did not go along with the fact that this was standard. i absolutely agree. had the findings clearly reflected that, i would have voted for it. but what i would not vote for is to have this board declared that were started without a permit without dbi, to that effect. and to go beyond that, you know, the resale and sale of legal drugs, we had had an affidavit that there was a nexus. in the papers, we had heard something about there may be some nexus, and then we read further that there was some negotiation, and the permit

holder could mitigate these problems. then, no one showed up en for that conversation. -- showed up for that conversation. one additional pharmacy is going to exacerbate this problem -- i did not say that flippantly, because i do not feel flip about it. i think it is a terrible situation in the tenderloin. i am very sympathetic to everyone who lives there. and i wish the police department and the board of supervisors and anyone else who had any authority concerning what goes on there would pay greater attention, but for someone opening a legitimate business there, with no scientific evidence that there is a nexus between opening their and some exhibition -- some exacerbation of the crime

situation, i was uncomfortable. we have rules of this board, not rules, but the practice, if we match american -- one commissioner is absent, we would continue it to see that that missing commissioner which supplied that fourth vote. that is the situation we find ourselves in regent to see if that one missing commissioner -- to see if that one missing commissioner would supply that fourth vote. that is the situation we find ourselves in, because i do not vote. commissioner hwang: we do not need dbi to find that the permit was granted in error or in bad faith. i think that simply just because they did that does not mean that

we have to, too. i also do not want to sit and be silent, and hearing my fellow commissioners state that we abuse our own discretion, i object to that. i do not believe that is what i have done. vice president garcia: before you make a motion, the reason i stated that i want to that from dbi is that appellants have said that work started in april. april went by, and may went by, and no notice was given note to dbi. no request. it makes one wonder if there was actually work done without a permit. director goldstein: i might suggest we take a straw poll. commissioner fung: i think we should go ahead and continue

this. i think it is an appropriate policy that we have had, and i do not need to drag this out. i think the appropriate time where there is another slot is march 23. director goldstein: so, director hwang, are you making a motion? commissioner hwang: i move to continue it. director goldstein: commissioner fung? commissioner fung: i move that we continue this. director goldstein: mr. pacheco,

if you could call the wall on this item, please recall the wall -- if you could call the roll on this, please? secretary pacheco: this is only to allow commissioner peterson to participate on this boat. on this matter, president goh, supervisor alioto-pier, -- supervisor alioto-pier --

director goldstein: welcome back to the meeting of the board of appeals for mark shapiro -- for march 9, 2011. mr. pacheco, could you please read the next item? secretary pacheco: item 4b, is subject property at 1338 filbert

street, a letter from susan brandt-hawley, attorney for jerry demartini, requestor, asking the board to allow the filing of appeals against -- against bpa. >> we request a continuance. this way, we can have all of the board members here. president goh: commissioners? vice president garcia: this is based on the fact that we only have four people? president goh: and then -- >>

and then i also heard president gooh say that -- goh say that there might be a time constraint. >> we request that you do not grant a consistent -- continuance. you are going to do what you are going to do, but i hope you at least will hear the arguments. i do not think they will be long, before you decide this. president goh: you understand, too, that if we require the vote of commissioner peterson, we grant the continuance. thoughts, commissioners? commissioner fung: i think we have -- president goh: commissioner hwang? i do not see a motion to continue, so we will hear the case.

>> this is not the matter of an untimely appeal. it was timely. there was a conditional use as part of this project, and we feel that you should take jurisdiction here because the conditional use is unrelated to the building permits issued that would come before you, and, in fact, the main issues that are before you have to do with things that occur due to changes to the project after the april 2010 conditional use was approved -- that occurred due to changes to the project after a april 2010. they were not appeal to this body. that was in april. in june, new plans were submitted that significantly changed the 32-foot-high, 138-

feet long retaining wall, and it was significantly changed, how that was proposed to be built. we have a report from a doctor and an engineer who indicates that the proposed method of construction would cause the broader range of property along the street, with significant environmental problems -- would cause we -- the watering of the property. both the exterior and interior changes. and changed the application, so instead of the one application that was filed in 2008, there were now two applications, and two of the three are dated 2010. with new information, change to the wall, these permits -- this has been pending for years because it is a problematic due

to construction. -- it is problematic due to construction. while the charter says, and there are walls saying -- rules saying that it is not before you, that only makes sense if it makes a use that has something to do with the permit itself, and here, that is not the case. for example, you would not want to set up a system or a lau situation where someone could come in and allow additional parking -- or allow a situation where someone could come and and allow additional parking. that is what has happened here. the parking spaces are not the issues that we would like to bring to this board's attention. we understand there are fire sprinklers required in the new construction. . we are very concerned about the

geo technical issues -- geo- technical issues. [bell] commissioner fung: did you appeal this? >> we did appeal the categorical exemption to the board of supervisors. they claimed it was untimely. we just did that. it was first deemed timely, and then it was deemed untimely. vice president garcia: if you could give me a short answer, detaining wall, the changes? >> could you say that again? vice president garcia: sure, is the work on the retaining wall that you want to bring before this board related to the work having to do with a reconfiguration of the parking and/or the dwelling unit that is

subject to the cu? >> no. vice president garcia: it is totally separate. you feel the work does not have to be done on the retaining wall? >> i will need to take a temperature or two, of course president garcia -- or two, vice president garcia. it has nothing to do with the number of parking spaces or the number of units. really big parking spaces instead of smaller, for example, you could have different numbers of units, so it is unrelated to the conditional use, and i think it is important, again, to underscore that. these plans were june, september, conditional use in april. vice president garcia: i think you said that. president goh: the cu, the

original parking garage permit was october 27, 2008. >> that is correct. president goh: and then the other two were won in 2009 and one in 2010. -- there were one in 2009 and one in 2010. >> there were two in 2010. president goh: maybe i will address this to someone else, but if it requires a cu, then go and get a cu. that is the package. if you wanted to do something to the property later on, you could go in and apply for a permit for something else, and i think what your opponent is arguing is that the something else would necessarily be wrapped into that cu, and what seems to me, and i

need to hear from the other side, but it seems that if it is something else, but if we went that route, and i am sorry if i am repeating, i just was not quite following. if we went that route, all you would have had to do is get a cu, and then we could not touch it. is that your -- ok, i have a question for planning then. but that is exactly what we say is happening. things have changed -- >> that is exactly what we are saying. things have changed. we waited now for the building permit to be issued so we could come before this body, but otherwise, yes, somebody could, just like here -- i am not saying they did it. there is no bad faith that needs to be attributed or anything like that, but it could happen. someone could come in and get a

cu for a couple of parking spaces, and their project would be off limits. nobody has reviewed this. president goh: ok, i think i understand. it does not sound like your microphone is on. >> i will try to speak loud. -- commissioner hwang: i will try to speak loud. are you suggesting that this is not subject to review other than our board? is that your argument? would they be subject to the board of supervisors approved >> no, it would be to this body. we did try to appeal the categorical exemption, as well, and were told we cannot do that, as well, but that is not before you tonight. we could try to do a ceqa, and the only other appeal would be to you, and that is what we have done in a timely way.

commissioner hwang: thank you. >> it could be that there is a different decision for the two, the one with 2010 and 2008, but in our opinion, it applies to all three. commissioner hwang: what do you mean by that? >> the change to the containing wall and the parking spaces, -- the change to the retaining wall and the parking spaces, at that time, there was one application pending for 2008. we believe they were all changed by the building permits and retaining wall and excavation changes that have happened in the last eight months. certainly, the september 2010 permit should not be considered to be part of anything to do with the cu timing wise. it is really confusing. if i am not making it clear, i am sorry. .