i no longer want an extension. i would move out of that house tomorrow, but nobody would buy that house. nobody would touch it because of this history. we did move out. we moved back in because we had no choice. money does not grow on trees. the cannot afford it. we just want a roof over our heads. we want toilets that flush. i am sorry. i do not know what else to say. tell us what to do and we will do it. we are trying to do it. last year, the big issue with the new roof was the dormers. we could not replaced farmers on a historic building. that was the big issue. there was no issue of the fact that one was illegal there so you could not re-roof. she focused entirely on the addition of new dormers. that is not an issue on this permit, so now there is another permit. part of the house is illegal. you cannot re-roof it.

to me, this is punitive. you're telling me i cannot have a roof because it was built in whenever? i do not know what to do. if i could sell this house in the morning i would. nobody would buy it from me. the other option is to give it back to the bank. i am not prepared to lose everything because i happened to buy a house with a neighbor who for whatever reason feels she can control my life and every aspect of it. thank you. would you like to see this? this is the plan from 2007 that we have submitted. that is still on file with the planning department today. vice president garcia: that will be part of the record. >> thank you. >> one point i would like to

bring to your attention is that when our inspectors go out on a complaint, they really focus on the complaint only. so if we get a complaint for maintenance issues, that is really what the inspector is focusing on. that is what the inspector is going to write up on a notice of violation, if it comes to that. they may not be focusing on something that happened 30 or 40 years ago. they would not even know whether there was an addition done with or without a permit at that point. they are just looking at the issue there were dispatched to investigate. i just want to make sure that was clear with the commission. vice president garcia: thank you. >> commissioners, the matter is submitted.

commissioner fung: last year when we heard this appeal, we did quite a bit of work to try to get to what were fact, what were allegations, and what were possibilities in this particular case. the permit history shows gaps, severe gaps between what was originally permitted, what was allowed. there was a fire. there was a number of other things that allowed some level of alterations. there were gaps in the permit history with respect to the

scope of where this building is now. at the same time, there was before us two permits. some of the issues related to the gaps were dealt with in those permits. some were not. there were also a significant number of novs. we tried to get to a correlation between the novs and the various allegations, and those issues which this board would have been sympathetic to, in terms of what maintenance. there were a number of things discussed. then the permit got withdrawn.

i have come back with a number of things. i am leaning toward allowing the maintenance permits to go forward because there is such a backlog of other novs that deal with the other issues. i doubt that the resolution of these maintenance novs is going to resolve the cloud on the property title, because there are other novs that are there. i think whatever happens in terms of the final resolution of this, i probably will not be on this board. vice president garcia: i guess part of the motivation -- a little background first. i am not saying this in defense

of this board. i do not think we are heartless assault. i think sometimes we end up harming people in our efforts to not being. part of the history of this was there was of this maintenance that did not take place contemporaneously with someone trying to get a permit. that raises a question. if a roof is allowed to remain open and have water coming in, windows are allowed to remain broken and have water, and, if mold is allowed to happen and not have that we mediated, it makes one wonder. is there something of a brick going on here? and then, with all due respect to ms. wuerfel, she does

seem a little jealous about what goes on with this house. maybe she is jealous about upholding the code. but one wonders about that. my inclination after tonight is if they want to say re-roof around a dollar that might be illegal, and it ultimately cost them more to remove it and then have to re-roof again, i do not think i am the person to tell them they cannot do that. if they want to put a door, replace the door on a patio on a part of the building that is not legal, and it turns out that they have to remove that part of the building, along with the door they just installed, maybe that is not something i should concern myself with either. my inclination right now,

pending the comments of my fellow commissioners, it is certainly no problem. the second protest has to do with the roof. definitely we ought to let that go. but i also feel we ought to uphold the other permits and allow them to do this. if it turns out that by doing that they create more problems for themselves, hopefully they will understand if we were inclined to prevent that from happening. commissioner peterson: i echo those comments. last year when we heard this, i think ms. wuerfel made some valid points regarding the historical aspects of this property and so forth. but we are in a situation now where a family needs a home. there are very serious maintenance issues. i think as the public speaker

mentioned we have to move forward. i would agree with all permits. it does not appear these permits were issued in error. if in the future dbi needs to be diligent -- it is harming the neighborhood entirely to let this property slide. over a year ago when we heard it -- we have heard since 2002 this property has been held up. at some point, the city has to let this family live in a safe home. i would uphold all permits. commissioner hwang: i for many of the same reasons would feel the same way. to the extent that it is a moving target as to what the problem is every time, i find that to be deeply problematic. it does appear, when you came

before us before, you are trying to address some of these novs. for this reason, i would move to uphold the permits that are issued. >> the motion is to deny the three appeals and uphold the three permits. commissioner fung: due to the fact that they are responding for an nov. is that acceptable? >> on that motion -- commissioner peterson: aye. vice president garcia: aye. commissioner fung: aye. >> the motion carries 4-0. [applause] we can move on to itunes -- items 9a and 9b, dean preston

versus -the department of building inspection, a permit to alter a building, at chase bank. it protests a permit to install awnings, the window and brick wainscot and modifications, revised floor heights, and revised and reconstruction revisions for the door. we'll start with mr. preston. vice president garcia: mr. preston, can i make the same plea to you that i made earlier

, and agree on nine minutes? 9 and four? >> yes. vice president garcia: thank you very much. commissioner peterson: i know mr. preston from law school. it will not impact my ability to be impartial today. >> thank you, commissioners. my name is dean preston. i am a resident within five blocks of the subject site where the chase bank branch is to be installed. we are appealing permits for the chase bank at the visit darrow - - at divisadero and oak street.

we are back because we have not had the opportunity for a hearing, a conditional use hearing at planning. this is a vibrant small-business corridor that has successfully opposed chain stores moving into the neighborhood for years. chase proposes to merge three storefronts, and this project is in an nc-2 zoned area. there are several issues. the primary issue is formula retail. others have become apparent through the briefing from planning as well as from the permit holder. first, the formula retail law covers banks. the bank's claim there is an exemption for them from the formula retail laws, and they are absolutely incorrect. with due respect, they are

mistreating the formula retail law, as is the planning department. second, from the papers filed, the square footage of the project appears to exceed 3999 square feet, which under the applicable law requires conditional use regardless of how this board determines the formula retell issue. the issue raised by planning in their brief -- the walk up atm included in the permit requires conditional use and planning code 312 notification. on the formal retell issue, there is an attempt here to create an exception for banks. i would caution the board that the legal analysis being used would create an exception not only for banks, but for numerous categories of business types

that are not specifically mentioned by name in the formula retail law. the issue is a non-issue -- sales and services retail. that includes all of the different types of retail establishments. if you look at the definition of sales and services, it is extremely broad.

it is a place that provides services to the consumer. that is what the bank does. that is what all the businesses listed under sales and service retail do. it is an all inclusive category. financial-services is one of the types of sales and service retail. there are many others. all of them are covered, whether they are separately name or not. the planning department position is the fact that some types of retail are also specifically listed in the formula retail law. it means the law only applies to those specifically listed types of businesses. i urge you to take a look at the planning code zoning control table for the nc-2 area, which

makes it clear that financial services is a subcategory of sales and services retail. what the planning department is doing through their analysis is they are effectively eliminating the broadest phrase from the formula of retail as a result of effectively striking not, they are limiting the power miller retail law, despite its terms and despite the purposes of the law. there is no legislative history, no purposes, no findings that anyone could point to that would justify this kind of exemption for banks or for any of the other types of businesses that are clearly service retail but are not separately listed. for example, car rental agencies, the tourist cartels, backs. do we seriously believe the poor miller retail law -- who

seriously believe the formula retail law does not cover them? this is spelled out in the for miller retail law, which anticipated the situation where someone would obtain permits without disclosing their formula retail and without neighborhood modification and a conditional use hearing. chase must go to the conditional use process, and the board should require that of them. this warrants revocation of the permits or alternatively a continuance to determine whether the square footage of this property progress conditional use regardless of the determination on the scope of the formula retail law. as mentioned, the cut off in this area is 3999 square feet.

if it is larger than that, conditional use is required. the permit itself is attached to the permit holder's 3. -- holder's brief. it discloses a mere 43 square feet below what would trigger signals -- what would trigger conditional use. i would think that alone would warn someone from planning going out to the property and measuring. it is a little too easy to come up with a figure a few square feet under the cut off. we have been unable, despite the appearance of neighbors, to get anyone out to do that inspection and objectively measure this space to see whether conditional use is required. fortunately, the matter became clearer when the floor plan was

disclosed as part of the exhibit c in the permit holders brief. there is a poor plan that shows the total square footage of the entire property. if one measures out, as i did, the small area for a walkway, even if you take up the walkway and a shaded area that is a common area, even if you take that out, you still come up with 4100 square feet. but i think the proper measurement is actually 4753. regardless, it is essential, to the extent the permit holder denies it exceeds 3999 square feet -- direct city staff to make an objective measurement of the space. finally, as mentioned, the

walkup facility was an issue raised by the planning department. we would agreed with the revocation of the one permit that failed to go through cu, given the walkup facility usage. thank you very much. >> we can hear from the permit holder now. >> good evening. and thanks for your patience. i will try to break -- try to be as brief as i can. i think our brief adequately addresses the formula retail issue. the law on that did not specially apply to chase. as we pointed out in our brief,

the planning department has consistently found that financial institutions are not subject to the formal retell definition. we are provided, i think, a pretty broad history of different places in which that has happened. thus even if this board were to decide that was an incorrect interpretation, it would probably have to go to a new legislative process. the planning department, having been charged with implementing the code and having done so in a consistent manner overtime has reinforced that is in fact the law. our brief also explains the more detailed intricacies of where different things are defined in the statute. unless anybody has a question about that, i was not going to go through all of those details again for you. i do want to talk about the other issues a little bit more. the square footage -- the plans clearly show the square footage

is. i personally am not qualified to perform the measurements myself. the engineers do that when they look at the plans. the space is clearly measured out to 3946. i do have a plan in front of me that shows the area that i think is in question. i think this is probably the best one. i have copies for everybody. i have 10 more copies of these plans. these plans are slightly revised as well to address the atm issue. it is only three pages. >> for the parties as well? >> yes.

>> if we take a look at the shaded area, it is the area covered by the permit. that is the area that should be measured. if you look right here, this is a maintenance and storage area that is being retained by the landlord. it is not space that is available for this particular use. it is not space that is part of the area chase will have control of. it is not part of the bank. it is not for them. it is a several story building with multiple tenants. the landlord needs a space in their to store maintenance equipment. that is what that space is for. we would be happy to have anybody from dbi come out and measure the space. we are confident in the measurement we set forth. i did also want to share with you, to reinforce that -- i have

a copy of the lease for the premises. it has been redacted to remove some sensitive information. i do not have copies of this for everybody. but i will put that appear to show you. it is hard to read because it is small, but if you look right here it says that the lease square footage is 3946 square feet. we all know the value of real estate in san francisco. surely if the landlord was willing to give chase more space, there would be charging them for it and it would be covered in this place. i can show you, if you are interested, the copy of the least i am showing you. the executed copy of the leaks, in case there are any doubts about that. to address the atm issue, which

was raised at the last minute in the zone and administrators brief -- zoning administrator's brief. there was a misunderstanding at the planning counter with the planner that originally reviewed the plans. they did not notice or did not see that the atm was one that was a walk up facility on an exterior wall that would have required a 312 notification, not a conditional use permit, as the appellant has argued. having failed to notice this, and having had some miscommunication about it facing rather than the sidewalk -- it is inside of a breeze way. the original one was inside of a breezeway facing the parking lot. i guess that was part of the misunderstanding. the planner went ahead and let the plans go forward without the

312 notice. as soon as we became aware of it, we prepared revised plans to bring the atm inside the building so it is no longer qualifying as a walkup facility. we shared those plans with the planning department. i will let mr. sanchez speak to that. i believe he can confirm that is in compliance. those are the plans you have in front of you. i think the third page is the easiest one to see it on, if you want to take a look. this area right here is where the atm use to face the outside. you can see now that the atm is inside the vestibule of the building. it will no longer be located on an exterior wall of the building. we would ask that the board approved that modification tonight and thus resolve the 312

notice that was missed in error by several different players. i do want to say in addition, to address some of the earlier comments of the appellant about community outreach and the community lack of involvement in this project, you have with our brief a list of the community outreach activities that chase undertook in this never heard. those included specifically meetings with two own neighborhood associations. at one of those meetings, the appellant himself was present. the meeting occurred before and the permits were issued on this project. it was clear at that meeting, as evidenced in some of the group's newsletters, that chase was not applying for a conditional use permit and was asserting they were not covered by the formula retail law. you can see from the material i

have attached that chase made multiple community contacts, invited comments, sat down with people on multiple occasions. the notion that the neighborhood was somehow excluded from this process is incorrect. in addition, as we have demonstrated tonight, chase is committed to being compliant with the city codes and being a good community team player, having had this one issue brought to their attention about the atm. they immediately changed the plans to comply with the code. i think that is reflective of their entire way of doing business not only with this location. i will leave it for questions. i will point out that there are representatives from chase here that can answer particular questions i might not be able to, as well as the building owners are here as well. questions?