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>> good evening and welcome to the march 21, 2012, meeting of the board of appeals. the presiding officer is for president michael garcia. joining him is commissioner fung, commissioner hillis, and commissioner hurtado. vice-president -- will be out this evening. she will provide the board with any legal advice this evening. at the control is the board's legal assistant and i am the board's executive director. we are also joined by representatives from the city department that have cases before the board. scott sanchez is here. he is the zoning administrator. he is representing the planning department and the planning commission. we are joined by joseph duffey, the senior building inspector representing the department of a building inspection. and john hwwang representing the department of public works and

mapping. at this time, if you could go over the board meeting guidelines. >> the board requests that you turn off all phones and pagers so they will not disturb the proceedings. please carry on conversations in the hallway. the rules of presentation are as follows -- the appellant, permit holders, and department representatives each have seven minutes to present their cases and three minutes for rebuttals. people affiliated must include the comments within the seven or three-minute periods. those not affiliated will have three minutes to address the board without rebuttal. to assist the board in after preparation of minutes, members of the public who wish to speak are asked, but not required, to submit a speaker card when you come to speak at the podium. speaker cards and pens are available on the left side of the podium. the board welcomes your comments

and suggestions. there are customer satisfaction survey forms on the left side of the podium. if you have questions about requesting a rehearing, please speak to board staff during the break or call the board office tomorrow morning. the board offices located at 1650 mission street, room 304. this meeting is broadcast live on san francisco government television, sfgtv. dvd's of this meeting are available per -- for purchase directly from sfgtv. at this point, we will conduct our swearing in process. if you intend to testify at any of tonight's hearing, please stand and raise your right hand and say i do after you have been sworn in. please note that any member of the public may speak without taking this both pursuant to

their rights under the sun shine ordinance in the administrative code. thank you. do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? >> i do. >> thank you. >> we have one housekeeping item. it is an appeal no. 10, a protest of a site permit on eureka street. that matter has been withdrawn and will not be heard this evening. we move on to item number one, general public comment. is there any member of the public who would like to speak on an item that is not on tonight's calendar? seeing none, item number two, commissioner comments and questions. commissioners. seeing none, we will move on to the adoption of minutes, item number three.

for your consideration are the minutes of the board meeting of march 14, 2012. president garcia: i move that we adopt the minutes as written. >> thank you. is there any public comment on the minutes? seeing none, if you could please call the roll. >> on the motion to adopt the march 14 minutes. commissioner fung: aye. commissioner hillis: aye. commissioner hurtado: aye. >> the vote is 4-0. those minutes are adopted. >> thank you. we are going to call item no. 9 out of order. the parties of that matter have settled and would like to ask the board to modify the permit based on their settlement. if they could please step forward together. either one of you can address

the board as you wish, or both of you, about the settlement and what you would like us to do. >> after a several year processed with multiple appeals, this matter has been put to rest to the satisfaction of everyone here. we are presenting a set of plans with -- which show projections that bring this project in line with the section 106 clearance, which was received for the project in 1999. short of presenting you with those plans, the only other thing to say would be that it might go in the record that that is exactly what has happened. it has been shown to you in all of the previous hearings. we are back to the plans as they were in 1999. thank you, commissioners. >> we did walk through the project site with the appellant.

we a d -- we agreed on the line items to be dissolved. we both agree on terms. >> if one of you could set aside what those terms were, it would be helpful. >> the doorway, which we have seen many times, will be restored flush with the facade, either with the original door and if that door is not available, in which a duplication out of similar materials, the exact size as the original. as well, the dropped ceiling that was proposed will not block the windows as was decided should not happen in the case of #739 commercial almost one year ago. >> i concur with those statements. president garcia: we have two

commissioners who were not here for the early hearings so i'm going to ask if they have any questions or either one of you before we decide what we are going to do on this. it appears they do not. >> the plans that you submitted to the board are dated january 12, 2010, pages a1 and a3. those reflect the changes you have made. >> no. those are the plans with problems to them. the most recent plans should be dated sometime in the last couple of weeks. i brought into your office on behalf of mr. lee's organization last week. >> are they dated january 12? >> they are dated january 12, 2010. >> than the date was not changed. they are different than the

plans with the permit. >> ok. is there any departmental comment? is there any public comment? seeing none, commissioners, the matter is submitted. president garcia: this has been looked at by both dbi and planning? it is sick to think that you think any -- that you think it is fine? is there a motion? commissioner fung: the appropriate motion would be to grant the appeal and condition it upon the adoption of the plan. >> right. to modify the permit as reflected. commissioner fung: so moved.

>> if you would call the roll on that. >> we have a motion from commissioner fung to grant this appeal to condition the permit with the adoption of revised plans. pages a1 and a3. on the motion to grant, all told, and modify the permit with these plans -- president garcia: aye. commissioner hillis: aye. commissioner hurtado: aye. >> this permit is modified. thank you. >> then we will move on to

taking another item out of order with the president's consent, this is item number 11. christopher price purses the department of building inspection with planning department approval. it is on 110 lombard st. and it is protesting the issuance of a permit to alter a building to create a new 10 foot high, fire- rated wall in an existing court. there was a supervisor in this matter the other day and the appellate has asked that the board continue its hearing on this matter until after the ceqa appeal is considered by the board of supervisors. we have not received a timeliness determination yet as to whether the board of supervisors will accept this appeal. i believe president garcia has agreed to give the parties to minutes each to discuss whether the matter should be continued this evening.

we start with the appellant. the appellants attorney. >> good afternoon. president garcia: let's give them three minutes both, if they need it. would you repeat your name? >> my name is krista shaw. i am council for the appellant. we are asking that the matter be continued pending our ceqa appeal. we are also hoping to be able to come to an agreement with the neighboring property so that we do not have to waste any more of the city's resources in hearings. there is also litigation pending and with all of those items outstanding, it does not seem to make sense to tie up the boards time with a hearing on

the permit at this time, especially given that the environmental review is in question. if you would like, we can move to the merits of the argument -- president garcia: right now, we are hearing on the continuous issue. how long is your window of opportunity bint to appeal? >> the cat x accompanied this building permit and it was dated early february. under the city attney's guidance, we are timely on the ceqa appeal because it is pending before your board. president garcia: how long into the process did you wait to file your appeal on the cat x? >> we filed it yesterday. i was brought in on this matter last week. the council that were handling it previously were from out of san francisco and not as familiar with the local procedures. the building permit was issued

and the cat x was issued february 3. >> what is the basis of your appeal? >> is a home that was built at the turn of the century. the project proposes construction of a fire wall. we are uncertain what all of the structural issues are at this time. their plans indicate that several openings would have to be closed as a result of the construction on their property. the basis for the ceqa appeal is that the categorical exemption did not take any consideration to our client's home next door. we believe the environmental review is inadequate. >> is your client's building a landmark? >> is not. but it is a category a resource.

president garcia: and the historical aspect of it was reviewed by planning? >> the cat x document indicates only a category b structure. based on the face of the cat x it does not appear that our clients home was considered. because it is a category a resource, it deserves to be considered and it is part of the product description, given that the project would require closure of several openings in the house. president garcia: thank you. >> good afternoon, president garcia and members of the board. we are working with the project sponsor in the response to this appeal. you heard from ms. shaw

yesterday. she recently got into this case but there is a lot of history. on february 7, the appellate filed a lawsuit about an easement that they do not have property -- on our property that they do not have it jurisdiction over. they do not have a prescriptive easement and we will prove that in court. up to the time they file the lawsuit today, they could have gone to court for an injunction, which would have included you having to hear this hearing. an injunction would be the probability of proving the prescriptive easement. at had six or seven weeks to do that and they have not done it. on february 3, the permit was issued an the categorical exemption was issued and i think is probably very relevant to show you that categorical exemption. here it is.

there is the front page. if you take a look, by the way, the planner is elizabeth wattey, a very capable and experienced environmental planner. it is initialed under 8, other were consistent with the secretary interior standards pertaining to the far wall. she was fully aware of the radiance of these buildings, took a look at the preservation issues. the prior page has a box checked saying this is a preservation asset. it was all considered as part of that categorical exemption. it says, "known historic resou rce." there is nothing to be gained by putting this off to listen to the same material again after the planning department has already considered it.

it is a fire walter it is a safety issue. i can show you the plans and we will get into that if we have a hearing. but the appellate house is not occupied and has not been occupied for the last year except for maybe one week. the owners travel a lot. this fire wall is going to sit between their house and our five-unit building. it is going to protect us from a boiler room which is there. the windows and door she is talking about, there are two windows and two doors. one is in a mechanical room and the other is in a stairwell. the door is surplus because it leads to the garages. there are two front gates to the garage that open onto lombard street. i urge you to allow us to proceed. there is nothing to gain by waiting. frankly, there are problems with waiting. thank you.

>> is their departmental comment? >> scott sanchez, planning department. i want to clarify one point about the ceqa check. overall, it was finalized by a very capable planner, but it was additionally reviewed by one of our preservation specialists. it did have two planners are reviewing the analysis. it was clearly shown as a category eight known historic resource and that was included in our evaluation. the ceqa appeal was filed yesterday. it could've been filed any time after the ceqa was issued more than one month ago. the city attorney has yet to make a decision about the timeliness. that is all i will say. thank you. >> is there any public comment on the continuance question? seeing none, commissioners, the matter is yours. president garcia: before we deliberate, would you, madam

executive director, or the city attorney, explain what the effect would be if we would hear this? and the board of supervisors were to hear it also? if the city attorney determines it was timely, what would happen to our process? >> if the city attorney determines it is timely and the board of supervisors here is the appeal and decides the underlying and our mental evaluation is faulty, then any decision that this board makes would be moot. president garcia: not mooted by the board of supervisors taking jurisdiction, only if there were to decide that the cat x is invalid. >> correct. president garcia: thank you. any comments? >> i would be inclined to hear the matter. i do not think we need to wait.

i would be inclined to hear the case. commissioner hurtado: i would be inclined to continue it. commissioner fung: perhaps i am too much a traditionalist. this board has always preferred when there was a potential cat x appeal. president garcia: i guess i could make a difference. we need three votes in order to continue. my feeling is that, i know it is not a city policy, but the cat x issue has to do with state laws. not any thing with the city. it would be one thing, and i regret this, ms. shaw is new to

the case, but it seems difficult moments before something is heard before this board, there is an abuse of this process. someone appeals it to the board of supervisors and it prolongs the process. i know what the tradition of this board is. i know what we normally do here. given the statements made by the zoning administrator as to the individuals who dealt with this at the planning level and the fact that category a was taken into consideration by two different people who are skilled in this particular area, i am going to not support a continuance so if someone who wants a continuance wants to make a motion, we will vote on that. >> in the absence of a motion, we will hear the case.

president garcia, i recommend until we wake that it is normal order to hear it. president garcia: i would agree with that. >> i will call item no. 4, a jurisdiction request subject to the property that is at 2825- 2827 greenwich street. the board received a letter -- a letter from gregory hanson asking that the board take jurisdiction over bpa no. 2012 /01/24/2796. it was issued on january 24, 2012. the appeal period ended on february 8, 2012 and the jurisdiction request was received at the board office on march 7, 2012.

the project is to remove an illegal unit at the back of the garage, to install drywall @ sailele walls, and sealing a descent to unit above. there are also seeking a continuance. president garcia: if someone is seeking a continuous, we will hear that. >> i had spoken with the executive director today in contemplation of requesting a continuance and but we never said that in and are not, at this time, requesting a continuance. >> my apologies. if you would care to go forward with your three minutes to argue the matter of. >> mr. hanson is going to begin. >> thank you very much for hearing my request today. with the request of the the building permit issued on january 24 and the appeal period

that ended on february 8, the first time i had any awareness of such a permit was when a copy of the permit was taped to my front door on the 30th of january. at such time, i called an attorney who i had worked with in the past on occasion and asked the attorney what to do. the attorney said, you need to go find -- he is an attorney who specializes in that land use issues and some legal area that i needed help in. i went about the business of trying to find an attorney. i finally did find one who agreed to represent me on a contingency basis for a buyout negotiations and suggested that the best thing i could do to help myself is start doing some

research. he suggested that i see if there is a certificate, a certificate of final completion on the file and is there a way i could go about appealing the permit. i went about doing my research, made many trips back and forth to the planning office, the building department, and learned that there is a lot of compelling reasons to believe that my apartment is a legal unit. with that, i am not an expert. i would like to turn that over to mr. kristol to present to you. -- mr. driscoll to present to you. that is pretty much it. >> thank you. tonight, we are just addressing whether the appeal should be heard. as mr. hanson indicated, there is some efficacy in explaining

why we want to be heard ultimately. this is a 1938 building that was recently constructed as a two- story building. i have seen a permit that allowed the additional unit to be constructed in 1940. also, i understand this is an rh2 zone now. i have seen the zoning map that showed that it was originally r3. i want the board to realize that this is not a pro forma appeal or request for jurisdiction but that there is some substance triet one thing i would like to amplify on what my client said it was he received notice on january 30. that is correct. it was attached as an exhibit to a 60-day notice attempting to terminate his tenancy. other than that, he had no notice of these proceedings. what this comes down to is the

right to be heard. thank you. commissioner fung: do you have a response to the current holder where they indicated the december date of correspondence? it was december something, the correspondence with the appellant. >> excuse me. i was just retained a couple of days ago and have not had a chance to review it. >> mr. schlarb or your counsel? >> good evening. i am speaking on behalf of jeff schlarb. this is a jurisdictional request. nothing has been stated by the request for, mr. hanson, indicating he has satisfied it

any of the necessary threshold's in order to justify the right to have this matter proceed. in particular, to grant lee jurisdiction that the board must find that the city intentionally or inadvertently was late in filing the appeal. there is nothing before the board that suggests that. unlike what mr. hansen had stated, exhibit b, which is referenced in the materials are presented to the board, clearly, in december of 2011, he refuses to provide information regarding his tendency and references an attorney who is representing him at this time, robert peterson. mr. hanson is now on his third attorney. while i understand that mr. hanson may be disappointed about the fact that he is residing in an unwarranted unit, my clients are new owners, trying to do the right thing and remove what is not permissible.