board. the residential units, whether or not they were there, they got out of the residential rental game. 2002, there was a permit to convert. we don't have any records that indicate that this was done. if you look at the note on there, it says that it is really addressing just chapter 41 of the administrative code, not dealing with the planning code compliance issues. what we have here is no longer a residential hotel. what use is it? this is under a permit that was not available at the time. that does seem to be new information. a little bit about the zoning history, 1957, up to 1960, this

would have been located in the commercial district. we had about six or seven zoning districts in the city that was commercial. in 1960, it resound to r-four. this allowed any nonconforming motel to maintain, carry on as they were panther 1978, there was rezoning to the residential district prohibiting any hotels of more tha and it can't do away with the ability for that motel to continue operating. there would be the expiration for that and that would be in 2007. the nearest commercial district is a block away and it also prohibits tourist hotels. that is the presentation, i'm available for any questions should there be any. >> and mr. zoning administrator, a couple of questions.

let's go back to the question that i asked the appellant, this certificate of use process, can you explain in a little further detail for us what is involved in that and specifically what kind of review then correlates to the issuance of that? >> yes, i have limited knowledge of that. that is within the department of building inspection services. that is different. i did speak with the head of housing services and we did discuss the process a little bit. typically, we are notified of these and we respond to them but i don't have any record of us responding to this. i'm understand there was active litigation around this at that time and i was not personally involved in this and i cannot speak to any of the litigation

issues that might have been going on with this back in 2002 but it is my understanding that we do typically review the permit. >> ok. perhaps this is not necessarily germain to the decision making tonight but should it go into a rehearing process, there will be questions relating to some of the previous department actions related to termination clauses, related to the use, things like that that popped out when i was revealing some of the information. would you share any thoughts on this particular case? >> well, the big question is, now that it is no longer a

residential, they can go to any member of permitted uses within the zoning district, be this the apartments, the density here loallows one unit per 1000 squae feet. there are requirements for parking and open space. open space come other things like that need to be satisfied. so, there are other options within the current zoning. the question that should this be before the board, i think that would be one of the questions that the board would be able to answer. what is the produce? should this be reverted back to the previous nonconforming tourist hotel use? that is something that could be within the purview of this board to decide, given that that is

what it had been in the past. because of the unique nature of the ellis act, does that mean that they can go back to that? that is a question that the board has the jurisdiction to answer. >> it does not really matter of brother or not we had grant and the rehearing and some determination was made that they could become apartments or become a residential motel, which they claim they are now. if they wanted to do 10 apartments, would they have to go through -- >> not at all. right now, the question is exactly what is the current use. if we were just to classify the current use as group housing, and they wanted them to have that be dwelling units, they could do that without any kind of dwelling unit -- that would be required now.

>> does the department others on the administrator have the direction for this board as to how we should go in terms of granting or not granting a rehearing? >> the bourse typical rules are that there are new information manifesting, this was heard by the board in 1998. there is argument that there is new information which i believe is pretty slim given what has happened past 14 years. >> of the new information, it does that even have -- given what you have stated on the face of it alone, it has no bearing. does it have any impact on planning and zoning, which is what the -- is all about, right? to what extent is that worth looking at? >> we're looking at the

residential hotel aspect of it. that is not the case because of the 2002 decision. in some ways, you could argue that this is moved because the primary question is is this a residential hotel? that would be answered by the 2002 action. that kind of overrides the aspect of the lod. the core question was, whether or not it was a residential hotel. >> ok. you did not submit any written materials for this rehearing? >> no, i apologize for that. i was looking at it on the basis of the facts. is seem like there was no information that would justify -- >> no greater, right? >> well, not on this one.

i believe that it would be well handled by this board. >> if you were the zoning administrator in 1997, would you have made the same determination that was made given what you have seen in the files? >> i think perhaps i would have come to the same conclusion but i would have arrived at it differently. i think that there are facts to establish that there had originally been a tourist hotel but i do believe that there is also substantial evidence that shows that it did change into a residential hotel over time. >> prior to 1960. >> not prior to 1960 but prior to at least 1979. there is also the question of a nonconforming use and they are moving away from that to another use which is widely permitted. group housing is principally permitted in the district at this density.

they move more closely towards a permitted use category. this changes from year to year. there are numbers that show maybe 17 one-year, three the next, 17 the next. there is a variation and i am not able to be definitive on anything. we have an appeal, we have public notice, we have hearings at the board of appeals. maybe the board of appeals is better equipped to deal with something like this. >> thank you. >> it looks like -- would like to be able to speak again. we will have public testimony and then we will grant with everyone's intelligence, both sides. we will deviate from our normal course and we will grant each

side two or three minutes. we are going to restrict, and i will explain why, we will restrict public testimony to one minute because what we're dealing with is a very narrow issue. we're not dealing whether this should be a motel or that it is going to be sro. we are dealing with whether this board should grant a rehearing of those issues. we are not deciding those issues this evening. you are free to talk that anything, you could come up here and talk about the giants, but i would prefer that you stick to what is at issue and that is a request for a rehearing and that narrow issue. you don't need to repeat what someone else said. we're going to lead off with everyone else's permission the supervisor to who has patiently waited to address this board.

>> i think we have a backlog across the city so i appreciate it. this is not a question whether it should be tourism or residential use, this is about whether we should grant a rehearing. based on the conversation we have had, there is a standing for that. this has been out there since the 1990's. the board could not muster the votes to deny a rehearing. 14 years later, had there been evidence of a legitimate case for that. the minister believes that there is that information. this is an entirely new body that should hear this case and the merits of it. the zoning administrator has explained this. they would really benefit from the public process. in addition, all of our records

have shown that this is a tourist hotel. i think that it wants this board to really take a look at it with fresh eyes and resolve this issue once and for all. >> can i have a show of hands on how many people that like to speak on this item? >> if people would like to, you can line up along the far wall to be the next to speak. >> my name is daniel donnelly. this is a neighborhood that has starbucks and we have schools in the area, this is a business area. there are street cars nearby, there are other hotels and motels in the area and they are

residential areas also. we have schools in the area of there is no reason to have this in the sunset district. king street has and the buildings, the candlestick park building -- area has and the buildings. they can put this anywhere in the city, why the sunset district? >> thank you. next speaker. please step forward.

>> thank you for letting me speak, commissioners. i would like to show a support for a rehearing and this might encourage your decision. >> i appreciate that suggestion. >> please state your name. >> daniel stricter, i owned a bar in the building. it is pittsburgh's bar. >> is there any other public comment?

>> i am the son and, of the gentleman that this case is about. >> as a member of his family, your time is included with the attorney. thank you. >> any other public comment? >> 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