they can come forth with anything. >> an alternative might be achieved by continuing this matter would be that perhaps the project sponsor might say that it would be less expensive for him rather than to participate in the plans but to anticipate the cost that would be incurred by the appellant and ordered to move these. it might not be very complicated. it might just involve shifting the direction of the gas meter so that can be read from the street. it might be possible to attach something to the sprinkler system so that you can detach it in some other direction. i would be in favor of a continuance given the comments that were offered by commissioner fo.

>> do you have a date? june 5th or 18th perhaps? >> june 8th or 15th, is either one of those acceptable? -- june 8th or 15th, perhaps? >> the sooner, the better. >> i move to continue this to june 8th. with the parameters that i laid forth and form some basis for discussion. >> are you interested in any supplemental briefing or opportunity for the party is simply to report back orally? >> i think they should just

report back. >> time for them to speak at the next hearing? >> three minutes. >> no additional briefing and. >> the motion is from commissioner fong to continue this matter to june 8th. the public hearing has been held. this is to allow time for the parties to settle. additional oral testimony will be allowed three minutes or so. on that motion -- >> aye. >> aye. >> aye. ] >> nop -- >> no. >> shall i call last item? and that is item number 10,

appeal number 11-031, the property is at 1566-1568 haight street. this appeals a notice of violation and penalty dated august 24th, 2009, addressed to maybelle schumacher trust, regarding the legal expansion of the restaurant and bar space without required conditional use authorization. if we can start with mr. maloney or whoever is here to represent the appellant. parks commissioners, i am the owner of mark 10 mac's

restaurant. -- martin mack's restaurant. one thing that did happen, code enforcement had come out and give us an all clear. we had taken that. we realize we have to go back to the planning commission. we are quite willing to do this. we're willing to do that. we know that we had this very safe. this is the way should have been forced 21 years ago or 22 years hopefully, that is what happens. if you have any questions, i'm available to answer them. >> it is there anyone here for the subjects property owner?

>> i appreciate the efforts of the appellant to work with the planning department to come into compliance with the code and to make sure that the board understands, it it is my understanding to do with the penalties and of the board would be willing to reduce the amount of the assessed penalties. we september a notification on june 15, 2009, notice of violation and penalty was issued august 24, 2009. penalties began to accrue 15 days after that notice of violation penalty was issued if it's not appealed to this board n november 20609, we performed a site visit and reminded the apellant that there was an active notice of violation and penalty and that they agreed at that time to file a condition of use authorization. there is additionally condition of use submittal for january 15, 2010 but it's my understanding

the apellant did not show, did not arrive to that appointment. we called and reminded them of the requirements on january 15. scheduled another intake appointment on january 26 and arrived at the appointment but did not have complete application for submittal. we then followed up again february of 2010, did also another notice on march 10th, 2010 and another phone call again in may. there was i think a c application scheduled for april 13th and it was eventually moved to may 20th, i think because may 20th is when we actually received the complete application s we stopped the penalty accrual when the application has been received. we see that as a good-faith effort to come into compliance and will then stop the penalties from accruing. and it's my understanding we had actually stopped the clock maybe a bit earlier.

i think on april 13th because we had 225 days from september 2009 to april 2010 in total penalty is 56,250 dollars at $250 per day. the board can reduce it down to no less than $100 a day under planning code section 176, which would be down to $22,500. so that's just -- i wanted to give the board the overall picture there. as i noted through the time line, there were efforts here and there to submit applications and they were not ultimately met. we even stopped our clock perhaps a little bit early. prior to receiving a complete application but we felt at least they made a good fainlt effort there and there's a good violation of the conditions of approval for the previous operations as well as the fact it expanded. had there not been a previous

authorization, the fact they expanded the use would attribute to the authorization. and they filed their application in working with us. so we put that before the board for the board to consider. >> what is the position of the department then? >> i think the department would be willing to have there be some modification here and i think with support, the board exercising its discretion to the extent that it feels appropriate, you know, i would suggest that there is the penalty amount, overall amount from $250 down to $100 and the code doesn't allow anything less than $100. but then there's the clock issue, when it starts and stops and when the board feels that they made their good faith effort to come into compliance. so i said they had initially scheduled a -- an intake, i believe, january 5th but did not show. so that was the first time that

we met with them in november and they agreed they would file but it was still some time after that. so possible dates for the board to criminal. >> didn't you say it was january 26 they filed an application but the application was not complete? >> that's right. they came in but i have in the notes here they did not bring the application for submittal. >> they came in but they didn't van application? >> yeah. >> ok. >> when did you receive any documentation from them? >> based on the notes that i have here, it would appear that the actual application was submitted on may 20th. i don't know if the apellant has any other information. i couldn't find any other documents in the file that related to responses.

so i think what we have the appointment in one has to call up and request an appointment for an intake. >> so your 225 days is from august 24 of '09 plus 15 days all the way until may 20? >> that's correct. >> ok. >> i hope that's 225 days. that's what i have in the notes here. >> i thought you said september -- >> september, 15 days from august 24 submittal. it becomes effective and penalties start accruing 15 days after that so it would have been in september. >> got it. >> do you think the department's time line is generous or reasonable? >> i think that we have been

fair, if i'm not under-exaggerating. >> is there any public comment? seeing none, mr. maloney, you have rebuttal time if you would like to say something more. have you three minutes. >> when we did this, we went through the planning department and obviously health and fire. we got approved by the planning department. we got to this stage because we got an area permit to do the demme mission after the fire and we had removed everything. that store had not been a store in 20 years. we used it for garbage because we didn't have a garbage area. when we spoke to the fire department, the battalion chief asked me could we put in a

second exit, he said fire safety overruled everything else and he would vouch for that and he stated i could get a letter from him at any time. in the meantime there was seven months of confusion because when the court enforcement people investigated us, we gave them the plans, code enforcement took the plans, had them for two weeks and came back and said everything was in order. in between that time two people from the planning department came in. they didn't call and make an appointment or anything. i just happened to be there. they said they weren't happy -- planning department weren't happy so i went back, brought the plans back to me the following friday and told me everything was in order again. so when we went back, there was a lot of stuff going on in our own personal life. when we went back to the city, we had a meeting with the planning department. i had written a letter to scott because he was the planner 22 years ago when we first did this job and we only had one exit, which was absolutely ridiculous for 22 years when we had the

fire department come in every friday night for every year for 21 1/2 years we're open. and their big issue was we only had one exit. i thought this was a no-brainer, we were making two exits. we're fully sprinkled throughout the building, two layers of sheetrock in every exterior wall, most people have two but we have three for whatever reasons. we have no planning going back to the planning commission but we really feel this is excessive -- an excessive fine. there was a lot of confusion. i would suggest in the future maybe with the cities and likes of scott and joe duffy here, maybe there should be a lot more collaboration between different departments, the fire department and health department, where there mob a moderator that we can talk to and say can we get something resolved here? because there was a lot of stuff flying around. we didn't think we were out of line in what we did. thank you. >> sir, your fire occurred when?

>> sorry? >> your fire? >> the fire? it occurred in -- >> when did it occur? >> september of 2008. >> and eight. and then when you -- you indicated that two members of the planning department came by, what was that time period? >> that was in 2010. i'm not sure what time. can i check with my wife please? >> sure. i kind of give you the time. it took us 5 1/2 months to get the permit. we had the fire in the middle of september of 2008 and it took us three months due to the construction, which brought us into june of 2009.

a nsh who w.h.o. complained about everything forever. she filed a larger complaint. we had not even thought this was an issue anymore. we have forgotten about the store thing. it was only 300 square feet to begin with. so then my time line might not be exactly right. but then we had -- we had code enforcement people came to us and ran it by us and took the approved plan and then he came back. in the meantime, the planning department came to us and they didn't ask me -- i didn't know they were comment renting and they said they were in violation. he came back and said we were ok, everything checked out. everything is done and there isn't a problem. then the planning department kept sending us other stuff. when we finally went back, we didn't know what to do at this stage really but when we finally went and sat down with the planning department, we went not

having the paperwork ready because we asked him what did you need us to do at this time. >> when was that? >> that was in the end of 2010, i suppose. >> the end -- >> i was in the planning department -- >> do you have a date when you went with them? >> i was in the planning department on the thursday before christmas, for example, because i tried -- i talked to scott on the phone from the planning department, from the fourth floor and he put me on to another guy, who i told you i will call him and he was gone on vacation he came back to me in january. i called him the second time in january and came back to me. i left two messages with him before that. scott will know who that guy is. he's the deputy, i think. >> and the first intake session that was scheduled with you for january 5th, you didn't show up, is there a reason? >> no, we did show up.

when we went to sit down, from the planning department, her boss, we asked them what do we actually have to do to make this? my wife was with me at that meeting. they gave her a list of stuff to do because she's more confused than i am that this could be done on the computer. and we did all of this immediately within a week. >> scott sanchez, planning department. i would like to begin by clarifying a few points. first, i was a case planner on the project in 2002. conditional use request to amend their entitlement and part of that was to expand it and do seating at the front. that did not move forward.

there was opposition from one of the neighbors and that case did not move forward. there was the fire in 2008, there was a permit for some of the reconstruction there that planning did review and approve and that reflects the current layout. however, on those plans it showed the existing conditions as being essentially what they are now. or not significantly different. so i can put on the plans here. this is i think where some of the confusion resulted from on the overhead. we have the existing first floor showing essentially for the full bar not showing what should be the small retail space off to the side and then proposed plans which have the reconfiguration of it and show the proper exiting. this was reviewed with the understanding this was not an

expansion of the use. so i think that perhaps this is where the confusion had resulted from. >> what's the date of this? what's the date these were brought in to review in planning? >> these were received january 23rd, 2009. it was approved on january 29th. >> thank you. >> and that's available for questioning. >> you made mention of being in the property, when the first one they were attempting to expand, was that really 22 years ago? >> no, no, 2002. but there have been a series of cases '89, several in the '90's and 2002, previous to the case they filed now.

>> i didn't think you possibly could have been old enough to have been representing -- thank you. >> commissioners, the matter is submitted. any other comments, commissioners? >> i think the permit holders should get some credit for making the effort to go through this process. the only thing that affects my thinking on this was the fact there was no response to some of the earlier n.o.v.'s that occurred and so, therefore, i'm looking at not penalizing to the

extent that the planning department has posed to him. but also looking at some form of nexus to the time frame. i would pose the following, that is, the start date for the planning department was september something. i would say that the start of the apell ant's -- apellant's efforts to get the conditional use was before christmas when he met and i think that's a more rm time frame. and i would also recommend we reduce it from the maximum possible of $250 a day to $100 a day, which is what -- which is the minimum that we can reduce it to.

>> by your calculus, commissioner, how many days would there be? >> planning was imposing penalties september 1 20rks09? >> i think it looks like september 5, it looks like. >> the department's past practice had been to start penalties before the 15-day appeal period and i have since changed that so we don't actually start accruing penalties until the end of the 15-day appeal period but this was issued prior to that change in policy so i think it did have an earlier date, you're correct, of september 1. >> it says september 1 right in here. >> i think i had misspoke in saying 15 days. that's our current policy to allow someone the full 15 days. >> so following along commissioner fung, if we said september 5 to, say, december

15, i get 101 days. >> september 15 wouldn't it be? >> it was august 24. if we go by the 15 days, 15 days before the penalties started accruing because that's the time they could have appealed it. am i correct? i'm seeing puzzled places. >> let me do this another way. i think the penalty should be reduced to somewhere around 10% of what they're at. >> ok, that's harder. >> the board needs to define -- >> the board should define the duration of the violation and then impose penalties for the amount of time that there was a violation. >> 56 days. >> i don't think that works either.

i think we need beginning date, ending date and a reason for those dates. >> i think that's what -- >> is there a date for the before christmas meeting? >> i have on the record a site visit for november 24. that may be a suitable end date and we can calculate the days. >> so i would say from september 8, which is 15 days after the august 24th letter to -- what was that date, mr. sanchez? november what? >> so 77 days. >> november 24. >> thank you. >> so we're going from the ending of the appeal period to the negotiations attempting to clear it. for the record, i want to say, too, this is very confusing.

if you don't have an attorney and you're trying to do it yourself, it's very confusing with many moving pieces and even if you're not an attorney and you're not -- even if you are an attorney but you're not a land use attorney, it's still very confusing. i think that's the reason it seems the board is amenable to decreasing the penalty. although we haven't heard from everyone yet. >> i would be acceptive of those dates, september 8 through november 24. >> the planning department calculates on a daily basis of business. >> using the 100 dollar multiplier? >> we would arrive then at 7,700. >> it appears mr. sanchez is doing the math. no, he's not. is that your motion, commissioner?

>> unless somebody else has comments. >> no comment. >> i move to -- >> grant the appeal. >> and reduce the penalty to $100 per day, is that correct. >> that's correct. >> and to run the penalty to run from september 8, 2009, to november 24, 2009. >> that's correct. >> i think we are where we want to be but something is niggling at me and i want to ask you a question, mr. sanchez f. i could. if one goes for a permit and they have to do to d.p.h. and d.p.w. and all of these different agencies, is it made known to them clearly that this isn't the end of the process? ok, you got this from d.p.h. but there are other requirements you now have at planning, it seems like that comes up every once in a while but pretty rarely. >> yes, i think we have a good working relationship with the different agencies and this comes up a lot with any food

service and business. we get a referlt from public health. public health informs them of the permitting process as well. it still can be confusing given the number of agencies and we do our best to deal with them. i think in the case here what the issue was, wasn't so much a breakdown in the process but a breakdown with the permit itself. we had a building inspector saying this complies with the plans. the plans are accurate. and that everyone could agree to that fact it had been built to the plans. but the issue was we had incorrect information shown as the existing condition. when planning reviewed it, we weren't able to make the appropriate determination on the project when we reviewed it. so that's where the problem was, we didn't have accurate information on the building permit. so now we're trying to rectify that and go through the process and legalize what they had shown as existing conditions. >> thank you. >> commissioners, shall we call the roll then? ok.

>> the motion is from commissioner fung to grant the appeal and this n.o.v. & p. is modified in two ways, that the penalty accrual period will run from september 8, 2009 to november 24, 2009, and that the daily penalty amount be reduced to $100, correct? >> correct. >> on that motion, president goh? >> aye. vice president garcia:? >> aye. >> commissioner peterson? >> aye. >> and commissioner hwang? >> aye. >> thank you. this satisfies the appeal and it is mod 2350eu in those two ways. >> there's no further business, mr. goh. >> we're adjourned.

>> good morning. i've got my giants cap