>> i just want to make sure, there are a lot of people that showed up and anyone does not want to make this meeting any longer. we just all wanted to show up and say that we are here because we do want it to be granted for this to go through and be seen through to the end. >> your name? >> ricks' no snow. collects any other public comment? -- >> any other public comment? seeing none, we will start with rebuttal.

>> does anyone have any feelings about this? it seems like this is a little bit complex. i should be able to do this less. i will focus very specifically on the conclusive effect of the certificate of use. the hotel conversion ordinance, the code speaks to this issue. it speaks to the requirement before the certificate of use can be issued that that particular use proposed by the application complies with the planning code. i brought my ministry of code with me. the provision that i'm talking about, there is a whole scheme that set forth in the ordinance that deals with how we deal with applications for a permit to convert. the specific session -- section is 41.14, 41.15, 41.16 of the do

not trigger code. -- of the administrator code. "a permit to convert shall be denied by the director of the apartment building inspection if the proposed conversion or the use to which the unit would be converted is not permitted. this certificate that i heavily rely on, could not have been issued if the use was not allowed under the city and the planning code. whatever words are written on it, that does not change the requirements and the law. if there was an error in the issuance of this, this is a process to undo that. they had a right to come here and appeal that in 2002. when they did not do that, it became final. people need to be able to rely on the finality of permits and not worry that 10 years later,

they will have to be dealing with some argume this does not have the effect that the law says it has. the effect is to allow a tourist hotel in this location under both of the initiative code and the planning codes. that is the main legal point of why we are here. i want to deal with some of the records which reported to, which by the way, i don't have and and when you talk about a residential units, you are talking about the use by the weak, not a permanent residence, not the use by the occupancy on the long term basis tend to the transient hotel taxes are paid on that. that is a commercial use. the weekly use which is technically a residential use, a commercial use. i am asking to have this be

heard. >> counselor, if you feel that the 2002 is final, why do you need this hearing? >> i am concerned how the tenderloin housing and it would use its determination and some sort of litigation with my clients. that determination is out there. it will become final. now, we will have two competing decisions coming out of the city under which one would argue, and i am sure the clinic will argue this. they make a lot of ordinances and many cases. they have argued that this does not comply with the zoning because this somehow tromps the certificate of use. you folks should clarify this. you should make these decisions makes sense but it does not make any sense right now. >> it should be clarified the

possibility that this could become a sro? >> i am not sure i could do that tonight but as part of an overall decision. i regret the fire. perhaps vice have some responsibility for it but it is the issue. i'm here talking about the law. you are a cause i judicial body. i know that you're committed to making a correct judicial decision and this truncated process is not the best way to do it. >> i was surprised when some person voted no on the same issue. it did not make any sense and you should clarify. >>

>> thank you, members of the board. the ultimate issue, it does the 2002 certificates of use create any new fact that justifies every hearing? i do not think it does. it does not apply to the planning code or any other zoning laws. the invocation of the ellis act does not give the owner the right to rezone the property. because of that, the new certificate of use, because they filed the ellis act and withdrawn the property, and that was the only evidence presented to support the certificate of use. because of that reason, and

because of the court of appeals decision, it is not determining anything under the planning code, the issue becomes, what is the fact that merits rearing? the certificate of -- merits rehearing? it is not a fact that would change the zoning. the fact they have lessened the nonconforming use during the 1980's to have more residential use indicates to me that this is not a 100% tourist hotel. lastly, it would still have to be terminated under the nonconforming use provisions of the planning code. it would have had to be terminated by 2007 unless they received a certificate -- a conditional use authorization

from the planning code based on an application filed before 2007. which they did not do. there is no reason to grant rehearing, it because it will not get any different result as far as whether the hotel is in compliance with the planning code. i do not think the certificate of use has any percussive effect because it was not prior in time to the zoning administrator's determination. the application to convert was clearly based on the hotel conversion ordinance being pre- empted. the court of appeals specifically said the city cannot impose the hotel conversion ordinance requirements on the hotel. that is why the certificate was changed to permit the hotel

conversion ordinance on a -- 200 tourists rooms. i do not think it is a new fact that changes the zoning. >> i do have a question. most of the reasons he gave had to do with hurdles that would have to be over, by the request for rehearing. that would be things that would be harmful to the request. a side of the fact that you have to prepare briefs and appear before us -- >> i think we have a long period of time in which this hotel has

continued to operate in violation of the determination under the planning code. there's been no determination by any city agency that he is exempt from that. it is just delaying the process further and to lead the city's position -- deleading that the city's position that it is not a lawful nonconforming use. there is no other hardships to -- there is no particular hardship to the letter of determination holder. >> thank you, sir. >> mr. sanchez? >> regarding the nonconforming termination, it has been department practice, they can

still go to the planning commission. they did have this question pending before the board of appeals. they didit would have been prevd from going in 2007. they could still go to the planning commission and seek an extension of the nonconforming use. this was done several times for the bar in the same building. first, in 1990. they have extended hours, the operate until 2:00 a.m. they extended again in 2009 and finally removed that determination. that is the thing that has been nonconforming in the building. they could still come in for a conditional use to seek the operation if this board finds they are in nonconforming tourist hotel.

on the permit to converge, i do not have any records that the planning department did review that. i do not have any indication or record that the planning department did review and authorize anything related to the permit to convert. i think that is all the wanted to say. >> i think it would be beneficial to us to have that individual from a different department. >> definitely. she was going to come this evening and i said this is just a request. ultimately, no matter what road we go down, it is going to be back at the board of appeals. but said the board does not pursue or doesn't allow the rehearing, are we going to

enforce on the tourist hotel? if we do, that is something that is appealable back to this board. someone would could request another letter of determination and bring it back to the board of appeals. i really appreciate the time of all the parties involved. i feel is something that is something best dealt with it -- dealt with the appeals process. >> commissioners, the matter is submitted. >> i will start. i appreciate the briefing. i definitely would like written at something from the zoning administrator. he spoke so quickly, i could not retain all the information. i thought that would have been helpful. it is clear that i am inclined to grant -- grab the rehearing

request, especially when i heard the letter of determination holder suggest there would not be great harm. >> i would concur. the issue on of whether there is new information, i find the 2002 certificate of use is new information. more important, the community deserves a resolution of this. perhaps, i am being optimistic, this board can come to a resolution. we will attempt it. we have attempted many difficult

issues in the past. i would support a rehearing. >> it looks as though there are no other comments. i hope i did not cause someone who had come here to testify not testimony -- not to testify. it seems like most people in the room are going to get what they wanted. i hope everyone is satisfied carry [applause] -- i hope everyone is satisfied. [applause] thank you for entertaining us tonight. that was an interesting ping- pong game. i move that we grant aid -- grant a rehearing. the new facts have to do with the 2002 certificates of use. >> we would need a hearing date. i would recommend something in

it didn't so the parties have time to prepare their briefs -- something in june so the parties have time to prepare their briefs and have everyone in attendance. >> it looks as though they might be conferring on a date. >> what are the dates? >> june 13 and 20. those are the two board meetings in june. >> 20 would be better. >> up to you. >> i am sorry, that is not a good day for me. >> we would not have a full cadre of board members on the 20th. >> the 13th does not work for one of the?

>> [inaudible] >> and the board is meeting on july 11 and july 25. >> you may have a new board by then. [laughter] there are three members that go up for reappointment or substitution. >> the people -- >> i might be able to make the june 20. it depends when i am back in town. maybe i can try. i will prioritize the list. >> ok. >> if we find out that we have to reschedule, someone will be in touch with you all for alternate dates. maybe you could tomorrow send in those states anyway as the contingency. >> [inaudible] >> you need to speak into the microphone. >> we would like to have a full

panel of five members to hear the matter. we want to schedule on a day when everybody is here. >> ok. there is a motion to -- >> a motion to grant the rehearing request and set the meeting for june 20. [roll call vote] thank you. the vote is 5-0. the rehearing request is granted. the board's original decision of 1998 is set aside and the new rehearing on the merits is to and 20th. thank you. >> let's take a quick break. my apology is -- to whoever is waiting on the next ca

>> we will resume the meeting. this is the san francisco board of appeals. item #6 has been withdrawn. we have heard item number seven. we will move on to item number eight. laurie herraiz versus the department of building inspection. the property is at 395 arkansas street. protesting the issuance, the permit to alter of building, complete internal remodeling, add new windows, and expand existing debt. -- deck. all the board members are here and we will begin with the appellant.

>> you have seven minutes. >> thank you. thank you for staying so late and not running out for food. i live in the property directly adjacent. this is a neighbor who lives on the other side of the property as well. we filed this complaint because of things we saw going on out in the field that we thought needed to come to the attention of the department of planning and building inspectors. the things we did not think were kosher given our own experiences. with three -- we have three main concerns. the timing of the permits and how that coincides with the work that was done. the scope of the permit. and the removal of hazardous

materials. and the methods that were used. it is my understanding that the first permit was granted in october 2011 for kitchen and bath remodel. into january, the work that we celadon was a complete demolition of the interior -- that we solve done was a complete demolition. remover -- removal of part of the exterior wall on the second floor. new construction that built out the bay window. building out over the sidewalk. that is an important point because the bay window permit is the one in question. that has already been started. a lot of the work is outside the scope and outside of the timing of the permit.

my third point is about the removal of hazardous materials. neighbors have conversations with the contractors. we had questions about asbestos and lead. we were assured there was no asbestos in the building. subsequently, after this appeal was filed, there was asbestos testing and there is. there had not been any testing done before. the house was netted with a black netting. if the homeowner ask me if i had any concerns and i pointed out that there was a 12-inch gap all the way up the side of the house. i was very concerned about lead, having gone through similar remodel in my house. he assured me that would be sealed the properly before any further work was done. i came home from work to days

later, and half of that exterior wall was gone already. there was no lead testing done or notification done on that either. during the demolition process, the contractors dumped things into the backyard. it seemed like it was a very haphazard, it did not look like there was any effort to contain the dust. it looked very amateurish. we talked with the homeowner several times. each time, we got a different answer. there seem to be a pattern of things not being consistent. for instance, the permit he applied for on february 3, that happened after two neighbors filed official complains. it was only then that he filed this permit.

i also want to point out that in the three houses closest to the house in question, there are a total of five children living from the ages of 1 to 10. that is why i take the asbestos abatement very seriously. i wanted to bring this to the attention of the planning department. we have confidence in the system, but there is no way you can monitor everything that goes out in the field. given our interactions with the homeowner, and the consistent pattern, that is why we filed this appeal. as a homeowner, we are wondering why he can do these things while

the rest of us play by the rules. thank you. oh, i have pictures. this is the state of the house now. the only approved permits is forgotten -- active and kitchen remodel. this is the second floor. it has been removed. this is new construction on the second floor. the february permit was asking to enlarge a bay window. it involves more than in march meant. it is going out over the perimeter -- enlargement. it is going out over the perimeter of the house, on to the sidewalk.

there has been tremendous demolition. it does not coincide with the timing or the scope of the permits. thank you. >> what was the response? did you talk to building inspectors when you filed the complaints? number notices of violations issued? -- were there notices of violations issued? >> i called the planning department and talk to stephen smith, i believe. i explained what was going on. my understanding is that on february 3, at the permit was filed for, but there was an appeals process. you cannot start construction until that appeal process has run its course. that is my understanding.

all of this demolition has happened to clearly before the appeal process has ended. i talked to mr. smith about this and he said, that they have started construction? let me called the inspector that was on site for that. that was the end of the conversation. it gave me the feeling that, you know, construction had jumped the gun. the asbestos issue is a big one to me as well. the house -- i feel very familiar with this process because i just did a major remodel. a 10-month project, got the permits, played by the rules. i do not understand -- there was no notification about this. it is a pretty significant

project going on. all the asbestos had been removed without any net team or any kind of protection. -- netting and any kind of protection. we did talk to the building department. this at our best route was to appeal the permit. >> what is it that you're asking of this board? >> i am questioning the process. of applying for a permit to do a kitchen and bath remodeling. what i am saying is a major remodel -- what i am seeing is a major model. and then applying for permits to do what has already been started. >> we want to put the brakes on the whole team -- whole thing for safety reasons. as the project moves forward, the homeowner will be compelled to take the appropriate safety steps for the remainder of the project.

>> what was the last date that you saw construction taking place? >> it was the day before the appeal. february 21, i believe. >> i am confused on the facts. work should not have been happening? >> they applied for their permanent on february 3. there is a 15 or 18-day appeal process. >> if you believed all of this construction. now i get it. and did you see the bay window being constructed and extended prior to the issuance of their permanent? that is what you stated? >> yes. >> thank you. it was only after