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. .commissioner hwang: ok. i may have questions at another time. >> i am nearby. director goldstein: sir?

>> i am with the property owners and permit holders. i want to back up. i have been doing this for a long time. i actually have never had the opportunity to argue this point. it has been a very clear world to be under the charter for a long, long time -- it has been a very clear notec clearl -- a very clear rule. once you are there, the entire project is before the planning commission, and at that time, i think it was april or august last year, and for getting the dates, but at that time, the planning commission makes a lot

of findings. they make very narrow findings, on things like parking, and the project has to go to the planning department to get a conditional use, but once it is there, in addition to making specific narrow findings, the commission must also been very broad findings for the project. they need to make findings like whether the project is necessary, the entire project, not just the parking or the dwelling unit merger, whether it is necessary and desirable, whether it is compatible with the neighborhood, if it is detrimental to the neighborhood. they have to approve the project, regardless of what the trigger is. with respect to the permits, i think these zoning administrator should confirm, there is no direct relationship air -- i think the zoning administrator should confirm there is no direct relationship. you can get this approved through the appeal process

without filing one building a permit. there are a thousand strategies as to why you would file a building permit first. trying to get some information from the department of building inspection, or they come later. they often come later. then again, there are a variety of strategies where depending on the strategy, where they will -- " what position they will take. i think that they note -- the thing to keep in mind, especi walt -- wall, it has been shown in the plans from day one. this project has needed and always will need a container -- retaining wall. i am sure as many of the commissioners know, once you start going through your plan, plans involved. revisions get filed, plans it filed, and you need to submit more details, -- plans get

filed, it you need to submit more details. -- plans get filed, and uyou -- you need to submit more details. vice president garcia: 1 would need -- one would need a cu. it is not at all clear that you would need a cu to do the geo- technical work, and that is what i struggled with, when someone were to appeal that to the board of supervisors, they did hear those geotechnical issues? >> commissioner garcia, that is

an excellent question. i do think that extremely technical issues are somewhat of a red herring here, but let me be clear. the planning commission was the place to raise this first, and the second place to raise it would have been the ceqa. i have heard people raise that issue of the planning commission, and i have heard commissioners concerned about something like that in cases where you have a steep slopes and things like that, so without question, -- where you have a steep slope and things like that. in regards to the ceqa process, they failed to do that in a timely manner. the geotechnical report was

provided years ago. that has been available to the public for four years. never touch, never looked at, until now. there has been plenty of opportunity well before we get to this point for that issue to a been raised on a number of levels. vice president garcia: maybe i understand, and maybe i do not. if they were to go before the board of supervisors, underneath, something has to do with the geotechnical report, but the question had to deal with that a cu is appealable. they would have heard issues dealing with this retaining wall? >> correct. commissioner fung: counselor, i

do not have the first page of the third permit. describe for me what that permit was for. >> which permit number are we talking about? >> ending -- commissioner fung: ending in 91, 91. secretary pacheco: 91, commissioner fung, is a remodel of two cottages. commissioner fung: so it says the same thing? ok. president goh: i have a question, based on responses to vice president garcia. are you finished? ok. if the planning commission heard all of those issues when they granted the cu in april of 2010,

i do not understand how they could have hurt the issues that had to deal with the permits applied for in september 2010 and only just recently granted. >> ok, commissioner, president goh, the planning commission will review all -- will review any fat, any concern about a cu that is raised with them, a technical issue, or not. as part of a discretionary review, it does not have any role, and neither does this body, in my opinion, have any role in this. i have been here a long time. a geotechnical report are the people at the department of building inspection are the only people qualified in san

francisco to review. for the planning commission frankly or this respective board to have been willing -- have dueling geotechnical experts before them -- president goh: we do do that. >> the issues could have been raised at the planning commission. president goh: sorry to interrupt you. this seems like a rightness issue. they were granted only recently. the issue i propose is the real question. >> well, i guess then that the entire issue goes back to the jurisdiction and the fact that how could the department of building inspection be issuing this permit under any circumstances if the cu was not granted? it seems like a simple rule,

where the conditional use for the project should encompass all of the permits related to the project, and you do not need to vote -- to vet every issue. i think that is kind of the point i am trying to make. president goh: i think i understand your point. i do not know if i agree with it, but i think i understand it. permits related to that or something else, whatever, and no one would review it. >> they are wrote checked by the planning department. -- they are checked by the

planning department. there is if you came through and -- if we were granted say eight parking spaces and we filed a buildling permit for 12, the planning department would not sign off on that permit. we would never get to this point. >> i think the point is whoever used the planning department. there's no further level of review. i mean, that's what we typically do. >> respectly, then the charter provision must mean something. commissioner peterson: as i read it it says permits pure sunt to a considerable -- per sunt to a conditional use. let me find it here. a building or demolition permit for a project that has received

a permit or lines per sunt to a conditional authorization. i'm wondering what the world pursuant means here. and then i guess my concern is where is the next level of review. and if this type of permit is on a subject or a building that was outside of the scope of what was part of the conditional use authorization, then would we then get to review that? would that be your position? >> it carefully checks and verifies that the building permit has been issued consistent with and pursuant to the c.u. that's the check. if there's evidence that there's been a grows change in

the project, i suppose there could be an issue. but there's been no -- for example, the issue about the retaining wall and geotechnical issue, that's been a part of this project from day one. so projects issued pursuant to the c.u. that had a retaining wall in it from day one i believe are covered by 4.106. >> right, but your opposition says it's unrelated. each side has its own argument. i'm done with you. >> thank you. president goh: mr. san zphezz >> good evening, scots -- scott sanchez, planning department. this certainly is a good legal issue and discussion. there is a use authorization that does authorization the -- authorize the projects, the renovation of the unit, the

parking. the planning commission considers the entire project. the first permit, the 2008 permit, which i believe deals with the parking. the two subsequent permits submitted after the conditional use hearing which deal with the cottage units. you can submit the building permit application after the hearing so. if you don't prevail at the planning commission you haven't spent money on the application. you typically have up to three years to get a building permit application and the board does review those. any did he have vacations we review and we view them to be major deviations, we take it back. in regards to other appeal

venues. there was variance for this which was not appealed to this board. variances, even though they're associated with e.u., -- e.u.'s can still be taken to the board of appeals. the environmental review and conditional use, those were not appealed in a timely fashion either. there are several appeal mechanicisms that are available and the appellant did not go to any of these. i think the president was referring to the potential for some trickery here. i honestly would doubt that. i mean this in a nice way -- people want to avoid going to the planning commission. in order for someone to go to the planning commission and try to get some entitlement that

day then later try and manipulate and pull something over the neighbors, i have not seen that happen, honestly. i don't know that that's something people would try to use as a mechanism. those are my comments on this and i would be available for any questions. >> you mentioned four times of appeal processes the requester or appealer could seek out but you didn't address the question that i and i think president goh is concerned with. is there no further review after the planning department or the planning commission determines that a project or a building has been done -- built in compliance with the c.u. is there no further level? >> we have the conditional use authorization, which can be appealed within 30 days. after that the building

application comes to the planning department and it is reviewed by all the appropriate agencies. it's not as if the planning department is -- it goes as a normal building permit would. that charter says that permit cannot be appealed to this board. >> but can it be appealed to the board of supervisors? >> not under that mechanicism. and that's the chaferter. >> i think i heard you say -- >> the standard condition of approval is that they have three years to generally receive the building permit application. some people will submit it immediately after they get their authorization. some people, months or years after. >> that's the hard thing for me to understand, is if they go

three years out and it's not exactly the work that was part of the project that the planning commission approved. you know, fit seems peripheral or different. >> if there are changes then we will review that and if we make the determination that they were significant changes then we will have them go back to the planning commission. >> but i guess in other situations the planning departments and the building and d.v.i.'s aren't the end to have story and if somebody disagrees then they have a right to appeal. in this situation it sounds like what you're saying is it just doesn't exist. >> i don't think i'm saying it. the charter is saying it. it's what we have to work with. >> ok thank you. >> thank you. commissioner fung: mrs. sanchez, are you familiar with the scope of work envisioned in these three -- mr. sanchez, are you familiar with the scope of

work envisioned in these three projects? >> i have a general understanding -- commissioner fung: can you summarize what is involved within each of them? >> it's my understanding the first permit, the 2008 permit, and perhaps the permit holder's representative can give a more thorough analysis. it's my understanding the first one deals with parking only. then there are two other -- commissioner fung: before you leave that. and where is the parking being provided? underground? >> yes, i believe so. commissioner fung: beneath the cot ages? >> that's my understanding, yes. commissioner fung: and how about the other two? >> the other two are dealing with the cot ageses themselves and those renovations which address the dwelling units, which are also address in the conditional authorization. they merged 10 dwelling units

to four dwelling units. commissioner fung: those remaining two permits dealt with either the removal walls or things to allow larger units? >> that's my understanding. so each of the three permits deals specifically with an element of the conditional use. that's my understanding of the scope of the permits. commissioner fung: do you know why the retaining wall is required? see, we have no graphics in this package. >> i would defer to the project counsel's sponsor for more details on that. >> any further comment on that question? commissioner fung: i can wait. >> there is no rebuttal. if you'd like us to move into public comment we can do that. >> i would actually like to hear from mr. junius, the

questions asked by commissioner fung regarding the scope. >> i'm sorry, the last question i missed. the project has three major components. the first is the garage. a major excavation lifting the cottages up. and the other two permits relate to above grade changes, which are significant interior changes to the cottages, maintaining them to the historic preservation's determination and finally, building an addition in the rear that's part of the retaining wall that's always been part of this project, between the back of the cottages and the rear property line. the new addition to all cottages represents a building in the back and putting parking in. that's what the c.u. was granted for. commissioner fung: is retaining wall is under which permit? >> i believe the last one. the second one, sorry. commissioner fung: has the --

are these cottages on independent lots or on a common lot? >> there was some confusion there. before my client purchased the actual property i believe they were con doed. we're proceeding to recondo them again. they are on one single lot, i believe. >> seems to be a lack of clarity, at least on my part. you obviously know the project very well but we don't have any graphics and we're taking your word for your position that the retaining wall is -- has always been part of the c.u. authorization, part of the scope of the project, but we're hearing from the requester that it is completely unrelated. that's two opposite arguments, so we -- i feel a little -- i feel the need for more information and i don't know

if, you know, i know a continuance is requested but that would not be usual for me. >> if i may, i'm not sure the requester here is saying that there was no retaining wall. i think she might be saying that the retaining wall has changed. i think that was her exact terminology. it probably has changed. technical drawings -- projects have all, once they do -- go through a c.u. process to a technical design required, to -- so there's no question that we changed the retaining wall. we didn't need that detail. part of the c.u. was we were going to have a retaining wall. we don't need to know a lot of the technical detail until we know we have a project and that's when the details get fleshed out and refined. i think that's what she's referring to.

certainly there's been a refinement of the design. that always happens. >> i would actually like to hear from the requester as respected by your opponent. >> thank you. as i understand it, and i haven't been involved as long as the others have been, that there was always a retaining wall, that's true, but it significantly changed in terms of all of its basic components. and why we're saying it's not part of the c.u. is the c.u. was for just the merger and the increased parking spaces and the retaining wall is unrelated to the need for the c.u. you could have had a project without a c.u. that had this retaining wall and these properties. the problem with the retaining wall is the plans for it and the way it's designed, which now calls for a design that will create a dewatering and an instability of the prorlts on larkin street.

that's what dr. harp says. we've had no forum to analyze that problem. yes, there was a retaining sketch, i suppose and the designs and plans for that have changed in a significant way that now threatens properties on larkin street from our point of view. they filed revised plans in june of 2010 then we got our extra report and then they applied for the new permits. that's why it's had no oversight and we argue is it was certainly not addressed by the planning commission and at that time there was not the dewatering problem and the lack of tie-in with neighboring properties and so there was no reason for people to be concerned about it. when they came back with revised plans in june that's when the problems started to become apparent and we kept trying to find a forum and we've been waiting for this board to deal with this. >> thank you.

>> any members of the public who would like to speak on public comment on this item? if so please raise your hand. it seems there is no public comment. then, commissioners, the matter is yours. president goh: commissioners. commissioner fung: i have some random thoughts at this point. on a less serious note, when the permit holders represented indicated that it was a long, long time ago that this board did not here conditional uses, i was on this board when we used to hear conditional uses and we heard environmental review appea that makes me feel really old. i am really old. thank you. this issue has come up and --

and based upon my interpretation of the charter, and i know that perhaps the city attorney's office may disagree with me on that -- i don't think it's so clear cut that a conditional use eliminates all aspects of the permits from review by this particular body. but at the same time, the appellant also had other options. there were other options for review. highly technical ones for the building commission. the gio technical aspects of it are appealable to the building commission, who does not have some of the same, i believe,

perhaps apply to this body, who was targeted in some of the charter revisions. the -- and i can think of instances where a certain type of conditional use, perhaps, has zero correlation or nexus to a particular permit. i'm not sure what that nexus may be in this particular mansion? . we have no idea of the full range of language that was used in the reviews. we have the planning department's determination on the c.u. we have no idea what the permits do other than the general descriptions of them and i can see where one could make an argument, as an

example, that if one was merging multiple units into one that, no doubt, is part of the conditional use application. however, i'm not sure that all elements of the permit are so clear cut as being related to the c.u. >> i would agree -- go ahead, please. >> i just wanted to say that's what i'm struggling with. irked put on the record, too, that i'm familiar with miss grant holley and then i consulted with her eight, nine years ago on a pro bono basis for a neighborhood issue and that will in no way affect my decision making today. but that -- vice president garcia:, if you don't mind, since i'm talking,