determination that the proposed use complies with the requirements of the planning code. that can be found at section 41.15c of the san francisco administrative code. specific permits and certificate that was issued to my client in 2002 was subject to both review by the planning commission and by the board of appeals. that right was found in section 41.1 at six of the administrative code. no appeal was filed this board in 2002. the time to file an appeal of this particular certificate is long past. he could have appealed that determination, tenderloin housing clinic could have appealed that determination. the certificate and per cent

that was issued in 2002 is now final be determined that was issued in to dozens to is now final. this board needs to offer a rehearing. i think the board's inability to muster a decision shows how difficult this case was for the boards, how complicated this question was for the board. we think is fairly straightforward. if you recall what occurred, it was a motion made by commissioner to uphold the determination. that motion failed 1-4. when a substantive motion was made, one of the persons who voted against it to uphold voted against the determination to overrule. we had a person who voted no on the same issue in the same case. not sure why that happened. we regret that it happens. that sense some signal to you that this is a troubling case to

the board. more importantly, it has been overtaken by events. case has been heavily litigated through numerous court proceedings involving but the city and the tenderloin housing clinic. the case was tried for rape court here in san francisco -- the court -- the case was tried for in court here in san francisco. the result in that case could be viewed as a mixed in terms of penalties that were awarded, the court refused to issue an injunction. that case went up to the appellant court and the appellate court affirmed that decision. that decision is final. the city filed a lawsuit trying to stop the operation of the property as the hotel. raise issues under the planning code, under the hotel ordinance. the city abandoned that lawsuit

and chose not to proceed. here we are. in the last 15 months, the superior court has dismissed that lawsuit. we left with the certificate of use and the operation of the property over the last 10 years as a tourist hotel. there are significant other legal questions that we raised in our brief. at the end of the day, it comes down to a question of fundamental fairness and trying to avoid the manifest injustice. in this particular case, allowing the kinds of inconsistencies that we see incident -- we see in this city decision making to happen. it had the effect of shutting down his business after 35 years. allowing that to happen would send a poor message to our citizens.

i ask that you correct that injustice. >> you represented him in the hearing that took place before this board? >> i have represented them since 1996 in every proceeding before the city. >> to make something clear, when there is an lod, it is not a hearing. someone requests a letter of determination, that is not a hearing. >> correct. the only hearing is when an aggrieved party files an appeal to this body. i suspect the question may go to the question of whether advice was given by the city attorney's office. >> you can go wherever you want to go. i am trying to get somewhere. >> there was no hearing when it was issued. there was a request for

information. the information that we obtained determined that the determination was wrong. it was sitting in the planning department's files. we did not even know about it. >> you might be answering the next question. it was going to go towards why were you on able before this board to demonstrate that this business had been operating as a tourist hotel since 1957? >> the city did not bother to look at its zoning file. this happened in a 30-day period. we were in court with the tenderloin housing clinic. we were defending ourselves against a whole array of claims. by the end of the day, at those records turned up in discovery in the litigation with the city. could we have found it?

perhaps i should have been more diligent. the zoning administrator, when he issues a decision that was shut down a small business an intact family, should have looked at is on file. >> you are going beyond the question. the next question has to do with -- never mind, i will wait. >> i very much appreciate your time. >> i know you like cases that span many years. the certificates of use that was the principal part of your president -- presentation, you cited the section that talks about what is involved in that. in this specific case, it in the

issuance of this certificate, what review was there? >> i am not certain exactly how much review occurred. i do know that i would be very surprised if the city attorney's office did not have a look at it. i do not believe whether there was a planning department review of that determination. >> there is no categories where there are signatures required? >> the application does have a procedure. it should. it should. the code itself requires that a review and requires that approval in order for the permit to issue. i think that is fine on now. this determination is not final, which creates two competing decisions by the city. >> even though this hotel --

hotel, motel, which is it? >> motel. >> it has operated as a motel ever since then, it was never a residential -- >> that is correct. >> some procedure in order to satisfy some administrative need of the courts or the planning department? >> involves the effort to trump the requirement of the administrative code. the property had to be withdrawn from the residential market. i do not believe you will see any names, no evictions, nobody was displaced from the property when that happens. i do not believe there is any evidence of any substantial residential use. of course, people do live in motels. this property has been operating commercially since day

one. there was a mistake made. i mean, the form was sent to the wrong place. it never got returned. when you ever owned the property before my client, the form never got returned to say, no, we are not a residential hotel. by default, at this property was classified as a residential hotel. we reminded that with our litigation. -- -- we remedied that with our litigation. i hope this board does the right thing and perhaps this inequity. >> not that i want you to lead me where this court might i to go, but with that represent the fact that it was never anything but a tourist hotel? without lead one to think that

-- with that lead one to think that it should have been overturned based on manifest injustice? >> it should have been overturned based on the facts in front of the board. four of the commissioners refused to uphold this. >> you did not try to have it overturned -- >> we are here now doing that. >> when i went back before the board in 1997, that was not the plea? >> the plea was error of law. the facts did not support the determination. that is the only facts in this record. i do not know if you've had a chance to look at it. if you look at the rapiecord, there are no facts of this hotel was -- did this property was ever operated as a residential hotel because it was not. >> there is no record when it

was constructed and those permits were issued that said it was being billed as a hotel? >> it is a motel, they are in the records, yes. there are also fell and broke records. -- there are also found a book records. this is a motel. >> y do you think a the zoning administrator did not take this into the account? >> they were involved with litigation with a property owner. the determination was part of a litigation strategy. the city attorney was prosecuting that litigation and appeared here in front of this board and gave a presentation in an effort to get that determination of put. it was being done as a part of a litigation strategy that failed. >> is the documentation -- did it show up in the rehearing process?

>> we did not have any access to it. thank you very much, commissioners. >> i have a question. i am looking at your papers on page 6. it seems to me that commissioner fung was asking questions, the focus of your view, the the certificate of use, right? >> it qualifies for a rehearing under your specific role. it was a new fact before the board. >> ok. the second paragraph under 0.3, page 6, 2002 certificate postdates 1998 determination. therefore, to the extent they are in conflict, the certificate should be deemed to supersede the determination.

is there any authority for that? >> when you have a final administrative decision, not appealed, a permanent trumps and non-final one. that is a straight forward doctrine. i hope that is correct. that doctrine comes from traditional law. >> i do not see any citations of any law, that is why i am asking you. >> i think it is a very straightforward and -- >> it ise mcman case. i would be happy to get you a citation on that. where there is an appellate process, to challenge something,

that process is not taken advantage of by somebody wants to come back later and challenges. there has to be some finality of a permanent. >> the basis, related to the desire bite your client to dig out of the business of right -- by your client she gets out of the business of renting? >wasn't related to evidence submitted with respect? >> that happened years earlier. >> that was the basis. >> the certificate had to be issued. >> that is what you submitted in support, correct? >> one of several things i submitted. >> i have nothing further for now. >> thank you. >> good evening, commissioners.

on behalf of the tenderloin housing clinic. i want to address -- i would like to touch on one matter. if i could have it on the screen. . i want to clarify this flier went out, apparently sending misinformation about our involvement in trying to convert this particular hotel. as stated, in two rooms for homeless people, welfare recipients, and felons. we have had no involvement in any effort to house homeless people at the hotel. we have not had any involvement with the beach motel since it was resolved in 1998. mike understanding is that the mayor's office has no designs on

this hotel. i want to make that very clear. we did not get involved with this process until i got a call saying the board wants to resolve this matter. it has been pending on your calendar for many years. there will be some public testimony that somehow we will force this to be a homeless shelter. that is not the case. that could continue as apartments, the restriction on renting houses -- has expired. there is no move to try to turn this into any homeless shelter or housing for homeless people. the problem with the argument is that the face of the certificate of use issued in 2002 the allies

eight. it specifically states that the designation does not supersede the requirements of any other city code. those designations -- is only issued because the entire property has been withdrawn from residential use. that is the reason the certificate of use was issued. the court of appeals says the hotel owner does not have to comply with the provisions of the hotel ordinance. both the city and mr. patel agreed to be bound. it specifically said it has nothing to do with the zone or the planning code and the court of appeals said their decision has nothing to do with the zoning and planning code. also, the courts of appeal have routinely stated that the

invocation does not give the property owner are right to do it yourself zoning. ok? they cannot invoke it and not complied with zoning provisions that uniformly applied to this property and other properties in the neighborhood and get some other the subsequent use of the property other than residential housing, residential rental housing, excuse me. they do not get a right to surpass the planning code provisions that generally applied to the neighborhood. every single court of appeal decision has confirmed that. it is and the statute itself. all this appeal is about is whether the zoning administrator determination must correct. and it clearly was because under standard nonconforming law, it is up to the property owner to show evidence of the

nonconforming use. all the evidence that is evidence that was cut and was presented at the initial hearing. as you can tell from reading the transcripts, it was a full and fair hearing. no additional evidence was provided that convinced this body to overturn the zoning administrator's decision. therefore, it is upheld. he is also incorrect but somehow the cou -- designing administrators determination was final at the time this board failed to uphold that. it was final. the request for rehearing does not suspend the determination. it was a final decision. even if it were to be determined to apply only -- to apply it to limit the planning codes provisions, which it does not,

even if it was, it was not prior to this zoning administrator's determination. therefore, it is not binding on this board. >> let's deal with the first thing you started with. the flier. what was the original reason that they got involved with this to begin with? >> we have been interested in maintaining the supply of residential hotels in san francisco. if you know the history of residential hotels, you know there was a tremendous amount of demolition and removal of residential hotels back in the tenderloin back in the late 1970's and early 1980's. that is why the ordinance was enacted. the tenderloin housing clinic was one of the chief sponsors, one of the major organizations pushing for the preservation of residential hotels. that has been our historic

mission. we have uniformly monitored residential hotels to make sure they are in compliance. since the beach hotel had a 20 residential certificate of use, and zero tourist use, we noted that it was the owner agreed and signed a stipulation. that was appealed, lost at the court of appeals >> you have pretty much answer that question. the original intent was to maintain whatever housing was there even though it has been testified to that there was no housing.

>> the report said that there was residential tenants in the hotel. >> you would dispute that it ever operated as a hotel? the reason to do that was to preserve what it considered to be housing was the same next -- the reason to do that was to deserve as considered housing or was this a mischaracterized use? >> we have never seen it characterized at the time that the zoning change. we requested the lod to see whether this was a lawful

nonconforming use. >> you know where i am going. i am much more concerned about the legal finery are around this. was it really a hotel that someone had not done proper paper work on and so therefore it is classified as residential when in fact as a matter of operation, it was actually a motel? >> because the bird and -- >> yes, i know. -- because of the burden. >> yes, i know. >> there was a residential use as well as a tourist to ususe. i can assure you that on the

screen. >> they were able to operate as residential and they were required to. >> yes, this would be under the hotel convergence use. >> so, to protect their own interest, they were possibly lied about the use in order to apply? >> or, they could be operating as a residential mixed use hotel, of which there are many in san francisco. >> they are under violation because they're not allowed to operate as a hotel? >> correct. >> i will show you some random ones. the report to the city and and

the data that is. the 15th, 1985, this has two residential units. >> they are making a declaration against their own interest. >> apparently.

>> you can read by the week for a number of weeks. >> any other questions? thank you. >> mr. sanchez. >> thank you, good afternoon. i am coming to this with fresh chives. i was not the zoning administrator when the letter of determination was issued but i did review the materials and tried to compile a history of

facts. we can go through what may have happened and the background. it appears that the permit in 1957 to build a building that would contain 12 -- 1012 in units. they did convert that to a motel use and as appellant showed, this shows minutes from a planning commission meeting which was in 1957, 1958. as reported, a letter from the property owners that they wanted to convert this to a motel use. the motel use was converted. the records from 1960-61 show this as a motel. there is one dwelling unit associated with it. that to continue for many years. >> was this ever occupied as the

residential use? >> no, it does not appear that it would have been occupied as residential. maybe they had received a permit, been granted a permit, and then decided to change their mind. we have a survey that shows this as a motel. how long are they doing this for? one night? seven nights? is probably is a feel fluctuation and variation in the construction and operation. 1979 is a critical year, that is the hotel conversion and demolition ordinance which said that if you are a hotel that has residential use and was looking at occupancy of 32 days or more,

that would be covered under this conversion ordinance. it seems that they did have at that time, i did review the same records that was presented and the department of housing inspection services. there is variation. it could be 17 units or a variation in the 80's. in 1997, the level of the termination says that this is a residential hotel, which would be correct. based upon our records, looking at the 1979 hco, this was continue at the call of the chair in 1998. this almost came back and this request was on the agenda in 2002, 2006.