many people. we do lots of good work in this community and i don't think that we should be pitted against another person. i think we can coexist quite well together. he is obviously a very skilled businessman and i think he could quite easily make up any shortfalls by not having this rooftop of a bar. thank you for your time. >> i have a clear that he that good as the minister -- i am a queer, latina buddhist minister. the enforcement should not rest on a citizens having to call and complain.

it is not fair to put the burden of compliance on the shoulders of residence. the main planners in this process feel that to rely on an enforcement solution such as this is not advisable. instead, a permit that insists on a physical solutions such as finding acceptable hours has a much better chance of being successful. the equipment justifications are very important. it needs to be involved to be able to approve those. i would like to invite all of those that are here against the permit right now. they want to vote to deny rooftop restaurant bar and upholding the eastern neighborhood. this decision supports coexistence among residents.

the continuing 7780 square foot restaurant and bar. [chime] i have one more thing to say. if you decide to move forward, we ask for a reasonable continuance so that they can work together on adequate conditions. these agreements were made and can speak more about that. [chime] >> my name is richard, i am an employee of the restaurant. i would like to start off with one thing.

there is no audible music that can be heard from the rooftop. secondly, we are very mindful of the noise which is made from any aspect of the restaurant. also, the type of clientele, and we talked a little bit about it. we have a clientele that reaches from all parts of the bay area from the silicon valley area. they are moving into san francisco. we are attracting a very genuine clientele. the restaurant, which is a dynamic restaurant to all different cultures, we are definitely a community give back. we give a lot as you can see from the latino community.

the location itself as a place where people come and enjoy themselves. we are not the only bar and restaurant. happy people are upset by that, that is what the mission is known for. and the impact that it has, we have wives, families, and i 100% support the owner of this business. i think it would be very wrong to stunt the growth, i think that you should take that into consideration.

>> i am here to support the bar that has been in operation for seven years. they have gone through some studies regarding the sound, and i also want to, if we lose, the city has been trying very hard to retain small businesses.

[unintelligible] >> good afternoon, commission. as you all know, the economy is not what it is. jobs right now are very limited. right now we have 40% women, 50% hispanic, our staff has been working here for years. i started as a buster and i am now director of operations. i am very happy with where i am now and i definitely want to be there for a long time. ahead of the workers and families, we ask that you support us. we appreciate your time.

>> we want to support them, i'd go there most all the time. our vide[unintelligible] they said it is a most beautiful place that had beautiful atmosphere, pleasant atmosphere. my friends' kids came to san francisco. they went there and they said that they love it.

so please, consider this business. i love it myself. thank you. president olague: is there additional public comment? we have no more speakers cards. >> thank you for this opportunity. i am a member of mission council. i understand redevelopment and importance to the city. i live in the same house i grew up with. this is a history of acceptance. they have accepted us and we have accepted them.

there are over 50 people employed, half are latino. the buddhist community is not interactive with us, and if you look at the people that show up, it is not averse. we are hearing a lot about diversity. look in the mirror. he has bent over backwards, shortened to the back, put up barriers people were able to meditate. that type of extortion is uncalled for i am tired of

people telling us what to do. look at the permits. it is for residential, not some sort of center. they tell you that they offer yoga class is, you have to pay. there is a retreat center they are trying to buy. the community has spoken, please support us. [applause] >> afternoon, commissioners. i went to school here, the mission.

[unintelligible] i am here to support them because, myself, i was there every day. he offered his place for no charge at all. he is a person that is very group conscious and is a good man. when you have people coming to san francisco, i have taken them there and have been very satisfied because it is a beautiful place and the owner is a wonderful person. president olague: is there any additional public comment?

seeing none, public comment is closed. commissioner miguel: ok. i am really annoyed. i am annoyed that this has degenerated in my estimation to a fight between mission district advocates and the buddhist center. i have to presume my other commissioners are not here to adjudicate such fights. they should not be here in the first place. with that being said, i have a few questions. to the department, is there anything, because i may have missed it, in the conditions for the code as to the square footage of the occupancy levels? >> not in the planning code,

that would be a building code requirements. commissioner miguel: do you know what that would be? >> on the plan, the architect and engineer labeled it as 299 occupancy. commissioner miguel: thank you very much. and i did not get the name of the operations manager, but i have a question for you if i may. i noticed the hours of operation are from 3:00 p.m., i presume you do not do lunch? >> correct. commissioner miguel: how late is your kitchen open? >> on the terrace? commissioner miguel: if i come in at 10:00, do i get serve? your full menu is available? >> the full menu is available until closing time. commissioner miguel: i will note

that foreign cinema's operations are until 2:00 a.m.. i looked over the conditions of approval that were requested and i will phrase if the opposition to this. i have some problems with it. no alcohol does not work for restaurants. they asked for a six-month review. i would be amenable to that. i think 299 or 300 people is a bit much, in my estimation. i was interested in the square footage restaurant service occupancy at 120. i think there is a compromise that might be worked out there that is in the 175 or not even

200 range. with that, the request for the last evening at 7:45 is a bit ridiculous. most of san francisco doesn't start eating until that our, particularly in establishments such as this. it won't work at all. this is a very unfortunate and convoluted history that i would rather not deal with here or any other similar situation. i have to look at this, this is a conditional use coming to us fresh to take a look at, and that is the only way i can look

at it. perhaps the zoning administrator can clarify the concept of a rooftop use. i think we deserve to hear it from you. >> i can't do that without going a little bit into the convoluted mess of it. they have been operating illegally since at least 2005. commissioner moore: 80 speaking to the microphone please? -- can you speak into the microphone please? >> police said they could not have any commercial activity on those upper levels. in response to that, they filed a request for a director's hearing. we reissue the letter on february 24, 2009 denying the

request for the other administrative review process. they appealed that to the board of appeals. and several days later, they filed their conditional use to legalize, which we previously said there was no way to legalize it. we would review its against the planning co. we reversed the initial determination. we could not justify not accepting the conditional use. the argument that they did not put forward, all permitted uses must be conducted in a closed building. they comply with outdoor activity areas. it is defined as an area and not

including primary circulations located outside of a building or in a courtyard that is provided for the use and convenience of patrons including but not limited to sitting, eating, drinking, dancing, and food service activity. reading that which deals with the subject of the zoning district, it allows the outdoor activity area principally permitted and is conditionally permitted at located elsewhere. as you know, the controls contain the controls by story. under the provision of the activity area, there is no such break down. the controls are simply if it is in front for a conditional use elsewhere on the lot.

and looking at the definition of 1 45.2, it says that it is allowed and pursuant to the following, outdoor activity areas as permitted as principal use is located outside of a building and continued to the front property line. the outdoor activity area that does not comply with the provisions of the subsection is permitted as conditional use. nowhere does it say that the outdoor activity area can't be at the same level or story of the other associated use. with these arguments that were put forward, it was pointed out that there was this prohibition on commercial uses of the ground floor.

the full language is that most conditional uses are prohibited among -- above the second story. sorry. i tried to give them the microphone there. those are the reasons why we allowed a conditional use authorization to be filed. i believe in july of 2009, the zoning administrator had first notice of violation penalty. they deemed it that they could said that under this. we were working with them on the application. they were not making good-faith efforts and they decided to go ahead with the board of appeals hearing. we were working on the conditional use authorization. that matter was scheduled for hearing. in a briefing to the board of

appeals, they threw away their conditional use application and said that they were pointing at plans that labeled this as a roof deck under previous authorizations. it is true that it is labeled as a roof deck, but it was a roof deck for the residential and other hotel uses. we went to the board of appeals, and they made it clear to the project sponsor that they were not inclined to accept the argument that it was an existing legal use especially since they could not point to a conditional use authorization. it was denied about a decade ago. that is the history on that. the board of appeals continued at the matter to try to motivate the project sponsor to work with the department.

we went back for a hearing on february 10 when we reported back that they had made progress on their application. it continued to the call of the chair and there have been no penalties assessed for this because the notice of violation was brought to the call of the chair. it brings us to today, the matter now being before this commission for your consideration to either approve as proposed with the conditions, to modify in some way, or to simply deny the application. president olague: a couple of commissioners have questions related if you do not mind. >> i have one question to the zoning administrator. the outdoor activity use is

predicated or whatever the term is on an interpretation that most commercial uses are prohibited. this would constitute one of those uses that are not prohibited. is that correct? >> they are usually required to be within a building unless they are at an outdoor activity area. >> the use of an outdoor -- i think what they are arguing is that the use of that outdoor area as a bar, restaurant, or extension as an accessory use should not be allowed because it is a commercial use. you know what i am trying to get at? we have no way to judge at this point what most commercial uses

really means. if someone came to us with a commercial use above the second level that happened to be something, they could argue that it follows that most commercial uses are prohibited. how do we know that is okay or not ok? it describes the neighborhood commercial district. it is followed by the actual table that sets forth the prescriptive controls for the district. while it says most commercial uses are prohibited, it goes on to say that you can have an outdoor activity area. it is no way limited by level. commissioner moore: excuse me.

on the code discussion with the zoning administrator, my question to you is that there is a complete misunderstanding of what happens between the ground floor and all of the other stores above it. it has been a description of previous approvals that deal with a hotel occupancies and residential units as these have disappeared. have they been satisfied someplace else? >> those other uses have not disappeared and it is a requirement that they maintain the minimum of open space usable that they are doing on the deck. they may want to put it on the overhead to show that the entire deck is not devoted to the

outdoor activity area. it is also devoted to the open space for the other uses in the building. commissioner moore: since we all are quite familiar with shielding or needing to shield occupancies for the presence of alcohol and other things, by the very nature, the people are not able to participate and i think it would be rather detrimental for both facilities to be next to each other. it is a big question that presents itself to me as the delta between quiet sit-down for eating and those of 290 people maximum suggested occupancy. it not only raises the question about structural integrity, that has the predominant use of the

five floors of occupancy. if i understood commissioner miguel correctly, dining is being served from the ground floor kitchen. i think the elevator and stairs would continue to be occupied which would potentially be in conflict with existing in the emergency. i think this project cannot be discussed until all of those particular issues have been fully examined so we have a realistic application in front of us. and it leaves every other question open as well. >> on the overhead now, plans of the roof deck, to the right is the area for the subject used, the conditional use. to the left of the additional open space for the nine

residential units. i don't know if there is any other open space or if this is the entire open space. >> there is a rear yard area that is designated near the original application as some open space. >> there is additional open space, and in regard to the exiting, there is no outstanding enforcement issue from the fire department or department of building inspection. we don't like enforcement cases, we don't like having to bring things before you for review after the fact. but one of the benefits of that if i can collect that is that these issues have been displayed. the building department and fire department have been acceptable of the exiting for the use. should the commission approve this, it would comply with the relevant fire and building code

requirements. commissioner miguel: can i require on this line? commissioner antonini: i havne'en't finished yet. president olague: maybe we go back to commissioner miguel's comments then we move forward. commissioner miguel: under 7c, uses -- it's talking of permitted as located on tehe same lot. that pretty much says it in my mind. it doesn't deal with floors. ok. just as where i am, i would be willing to support or make a motion to approve the