supervisor daly: welcome to the september 16 -- director goldstein: welcome to the november 16, 2011, meeting of the board of appeals. we have these commissioners with us, and we also have victor pacheco, and i am cynthia goldstein, executive director.

the senior building inspector is here, and we are joined by legislative affairs staff and the zoning administrator. at this time, mr. pacheco, we will go over the board meeting guidelines and conduct the swearing-in. secretary pacheco: the board requests that you turn off all phones and pagers and so they do not disturb the proceedings. please carry on conversations in a hallway. the board rules for presentation are as follows each have seven minutes to present their cases and three minutes or rebuttals. people affiliated with these parties must include their comments within the seven or three-minute period. members of the public were not affiliated with the public -- with the parties have up to three minutes each to address the board and no rebuttals. to assist the board in the accurate preparation of minutes,

members of the public who wish to speak on the item or oust but not required to submit a speaker card or a business card when you come up to speak. speaker cards and pans are available on the left side of the podium. the board welcomes your suggestions and comments, and our customers' satisfaction forms, as well. if you have a question about a rehearing, speak to board staff during a break or call the board tomorrow. we are on mission street. this meeting is broadcast live on san francisco government television, sfgtv, cable channel 78, and dvd's of this program are available directly from sfgtv. we will conduct our swearing in

process. if you wish to have the board it your testimony evidentiary weight, please stand, raise your right hand, and say "i do" after you have been sworn in or affirmed. please note that any member of the public may speak about taking an oath pursuant to their rights under the sunshine ordinance. ok. do you solemnly swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? thank you. director goldstein: thank you. we will start with item number one, which is public comment. is there any member of the public to wishes to speak on an item not on tonight's calendar? seeing none, item number two is commissioner comments and questions. commissioners? seeing none, we will move to item number three, which is the adoption of minutes. before you for discussion and possible adoption are the

minutes from october 26, 2011. president goh: comments, commissioners? i will move for their adoption. director goldstein: are there any comments? seeing none, mr. pacheco, could you read the roll? secretary pacheco: on that motion to accept the minutes of october 26, 2011. those minutes are adopted. director goldstein: item number four is a special item, an informational presentation on proposed planning code amendments. i think that the zoning administration. administrator would like to introduce this to the board. >> good afternoon, president, members of the board, scott sanchez, planning department. the presentation on planning code amendments, and we think this is relevant to this board because many of the amendments deal with things that are commonly before you, in

particular dealing with the limited commercial uses, lcu's, which are often appealed to this board. this provides an alternate method for dealing with those requests and also deals with modifications to restore buildings and providing incentives to do that, so without further ado, i will turn this over to our current planning and legislative affairs division's aaron star. thank you. >> good afternoon, president, commissioners. i have a powerpoint presentation for you today. so the proposed legislation was introduced by supervisor chiu earlier this year. it is a very diverse piece of legislation that is about 351 pages and touches on just about every aspect of the planning code, so in order to sort of oil

that down for you, i have put it into nine different sections. the first is coda simplification. reduced off street parking requirements, historic, and small neighborhoods serving businesses, reduced variance is, and -- variances, control changes, and additional map changes. so i am well aware -- i am sure you are well aware that this has become more complex. more things that were added to it were necessary to address the emerging code changes in different neighborhoods and various parts of the city. however, since it always a also contains redundance language, some definitions are listed in several places, and also includes several outdated sections. the proposed legislation looks to clean that up, and, for

example, two of the areas of concern are the consolidation in dealing with section 136, new controls modeled after other controls, which are very comprehensive, and it also reduces the amount of automobile use definitions, by consolidating some into one section. it does a lot to reduce of street parking requirements and dense, mixed-use districts, particularly rc districts. i am sorry, like the tenderloin or along van ness. it removes the 1 to 1 requirements, making this consistent and removes the minimum parking requirement in broadway and the north beach commercial districts and the

chinatown mixed use districts, and also increases the authority of the zoning administrator to waive parking requirements under section 161. the proposed legislation also proposes changes that will help preserve historic buildings and expands the tdr program to allow development rights to be transferred route the c3. currently, they are only allowed to be transferred in the individual c3's. and there is something to facilitate adaptive re-use, and this is also currently allowed for article 10 buildings, which are landmark buildings. it gives the authority to credit off-site publicly accessible open space towards open space requirements in article 10 and 11 buildings and allows them to

waive certain code requirements when dealing with residential use. currently, many of these come in for variances, and these are often granted routinely, and allowing these for a process for applicants, as well as the city. it also encourages commercial, and one thing i am told that you deal with quite a bit are limited commercial uses. this legislation would allow limited commercial uses to be reinstated three conditional use authorization, so if a commercial news existed since 1961, and they could document that, probably having to come in and get a conditional use to have that use reinstated at the planning commission. it also seeks to expand the limited corner use, which is actually in the provision in the code that was adopted free- market octavia rezoning effort.

currently, limited corner commercial usages are limited to 1200 square feet, and it would increase it to 2500 square feet and would allow them within 100 of the quarter rather than just 50 feet. -- 100 feet of the corner. the proposed legislation also reduces variances and increases code compliance. it also increases as a right parking in the c-3. the idea is, if that is what we are granting them, we might as well just made that the code requirement, but we can also give a takeaway if someone were to succeed that one to to, rather than just a simple 39 procedure on the conditional use, and that threshold is a little bit higher -- rather than just a simple 309 procedure.

in addition, the legislation has certain exemptions to allow automotive service stations along primary transit streets or citywide pedestrian networks to be exempt from the conversion process, so right now, you have to show that the gas station is not viable, or it needs a conditional use to be removed. this would allow the za greater authority for these gas stations to close without additional process, and again, it gives the za more under section 161. it also does incentivizes parking -- it also dis- incentivizes parking in the c- 3. parking lots would have to cease

operation within five years of this legislation passed, as currently proposed. it prohibits surface parking lots along the northeast waterfront. it restricts the long-term parking rate structure, which is intended to discourage long-term commuter parking in the downtown, and it would also include accessory of street parking and gross floor area calculations. but it does several things for affordable housing, --

vice president garcia: questions? >> is ok to hold them. i am almost done. this could potentially bands flashing signs from the embarcadero to the scenic sign the start. it prohibits signs of certain sizes, limiting them to the roof of a building, currently got up to 10 feet. it gives the authority more authority. there are more zoning uses. not only would they have more opportunity to put proper business signs on their business, but they could also ed awnings to their business, which understand that this body has done but in the past. it changes rc controls to

recognize the mixed use nature of the rc districts. and finally, it removes the van ness special sign destructor a map change, as i mentioned before, and it adds the embarcadero to be seen extreme district, and that is the 351 pages in a nutshell -- it removes the van ness special sign district due to a massive change, as i mentioned before, and it adds the embarcadero to be seen it -- cnooc -- scenic district. vice president garcia: there migh consideration that may make someone exempt from costa-hawkings? did i state that in a way that would be understandable?

>> scott sanchez. this is not a new provision. there is currently a far exemption for affordable units, said this would not be adding a new requirement to the code but rather expanding it to other districts, and i think that is an extra point that is taken and something that we can raise to the city attorney's office. this is something we presented initially to the planning department few weeks ago, and one of the goals was to come to the various boards, the board of appeals, and it's and feedback on the legislation, so we will take that question, and we can discuss it further with staff. vice president garcia: thank you. commissioner hwang: where is this legislation right now? what is the status >> they continued until december 15 for the supervisor to perform a little more outreach on it.

there were a lot of concerns, particularly with parking in c-2 districts, which is what most of the properties are resigned. commissioner hwang: thank you. commissioner fung: were their studies related to certain areas that support the legislation? as an example, the elimination of parking requirements for affordable housing? >> i do not believe we are limiting parking for affordable housing. in dance, urban neighborhoods, we found it to be an effective tool, so this is sort of a continuation of that. >> i just wonder of studies

done -- commissioner fung: i just wonder about studies done. did the department study the results of that on patterns within those areas? >> no, i do not think we did, but just as a reminder, this was introduced by supervisor chiu, so we are just responding to his legislation. commissioner peterson: thank you for the overview and summary, because it was quite a bit to get through. thank you. president goh: my view of it was that it was informational and not that you were collecting our feedback in order to take back to the supervisor. >> i would be happy to take back any feedback you give me. i can certainly laid back to the

supervisor -- i can certainly lay that to the supervisor's aides, and one commissioner was interested in what you had to say. president goh: i think the changes in article 10 and a level, there is plenty to say that they do not encourage the preservation of buildings, so, i mean, you have heard it. i am sure you will hear more of it. just mr. sanchez's comment was leading me to believe that you would go back and say that the board of appeals had not said anything, so i wanted to make it clear that there was plenty to say about those things. the changes to article 10 and 11. it was my understanding that you were coming here, that this was an informational, and that is how i am taking it. >> sure. understood. vice president garcia: one thing

that struck me when i was reading this, and maybe turn to page eight, because it is kind of convoluted and hard for me to follow what my thought was, but it seems as though this legislation is going to ask for a cu, that a cu be obtained in order to change something having to do with parking and conform to standards necessary or desirable, and there is already a 309 review, and what i do not understand is why not as a bill that into the 309 review? because even though it is more expensive to the developer, a book is also going to be more expensive to the city, -- it is also going to be more expensive to the city. we do not want to does

incentivize you for doing that, but it seems that -- we do not want to disincentivize you to do that, but it seems that the za could do that. as opposed to requiring a cu. >> ok. vice president garcia: in the interest of saving money and not further burdening developers. >> thank you. scott sanchez again. the section 309 process is before the commission, so it is not atypical for them to have a section 309 and conditional use, as well, and we would have that. this is where you have an autonomous before the planning commission. vice president garcia: it seems the way this paragraph was written that the intention was to say that where you to have some change in what is now of

right as a result of some of this legislation, we are going to make sure that you go through more process, the cu process, and have it be more expensive, and that very language in there. >> i do not think it is about the process but about having a higher standard or threshold for approval, versus just added processes, but we can take those comments and look at that. vice president garcia: thank you. director goldstein: any other additional comments? is there any public comment on this item? ok, well, to move on to item number five, and thank you very much, mr.star. item five, appeal number 11-094. winfield design international

inc., appealing notion of violation and penalty dated august 19, 2011, addressed to thomas shuen and m.j. gaines at winfield design international, regarding noncompliance with the conditions of approval of planning commission motion 16 546. we will begin with the appellant. you have seven minutes. >> good evening, members of the board. i represent winfield design international, inc. the property in question on 23rd street, number 3000, and we are a small corporation that is owned by two owners, thomas shuen and milton gaines.

for the appellant. the property had been previously used as an industrial site, operated by winfield design international inc. winfield applied for a permit to develop an apartment project. the city and county of san francisco required as a condition for obtaining a building permit an inclusionary housing requirement of bmr units, under planning code section 315.

also, winfield had to record a notice of special restriction on the property, which included the fact that these bmr units were a part of the property. the important part here is back winfield design did not receive any concessions from the city in order to obtain a permit, and we contend that winfield is therefore not required to provide these bmr units, and being required to have a conditional use permit requiring the bmr units, that this

violated costa-hawkins. at the time, my clients were not aware of that. recently, the polymer case came down, which is cited in both the braves, and a polymer case pointed out that under costa- hawkins, the owner of the residential property may establish the initial rent and all subsequent rents if they qualified under the costa- hawkins act, and my client so qualifies. in discovering that my client qualifies under that act, and after enduring what we

considered to be well in- intentioned -- well-intentioned but overreaching enforcement by the mayor's office of housing, my client has decided to appeal the penalty that is imposed against it for allegedly violating the conditional use permit. we contend that my client, requiring to have these bmr units, as denied equal protection, that the costa- hawkins act is being violated, and there is an amendment to the united states constitution, and

the california constitution. the essence is the statute of limitations bars my client from pursuing the appeal. that is under government could -- code 65009, which has a strict 90-day limitation, which we agree does not apply in the case where there is a constitutional violation, or the original use is illegal. that is set forth in a case