president hwang: thank you. >> and the next one is from yelena to carla, and they are talking about how they would handle the problem and if they are going to discuss it with the director of public works, and that one is dated march 27, and the response is april 2, where they say they have made contact with the director of public works and will proceed with the discussions as to the process going, and so this also indicates that the hearing is on

the calendar for april 23, so what i did want to talk about in the remaining time that i have is that we are talking about saving the trees, whether or whether not a library is built. the trees need to be pruned into a vase shape, and they need to be topped. the barbarous had recommended six them 8 feet of topping -- the arborist had recommended six them 8 feet to take the weight off of the trees themselves. during construction, the trees could be wrapped, protecting the words, and this could be done by issuing an addendum to the contract, but everybody on board would need to be with protecting the trees, especially the construction inspectors who would be watching contractors to avoid damage that

could sap traunch this, so we are -- is that it? i thought i had more time here, thank you. it is possible to save the trees and to build a library is what the bottom line here is, and i hope he will consider that. thank you. president hwang: on the last point, i have been looking at this law that ms. short put up with it going to the property line, where it basically would require -- >> i think i know which one. president hwang: is that the result that you would like to see proof like a half a trade? >> yes. it is not as good as if the

trees had more space and the building had been designed that it would have given them more space by moving them over, but this is an example on fillmore st.. i actually measured from the building, a three-story building, to the stem of the tree, 3 feet, 9 inches. what we have on columbus beat is 5 feet between the trunk of the tree and where the property line is. president hwang: what about the issue of the roots? >> this is something where we do not know where their roots are. some people mention that there was a building on the site and that they may not be that bad. a ficus is an incredibly tough trade, and it there was a tree that could save -- could survive this atmosphere, it would be it.

it would seem that the trade should be given a chance. they had not been maintained before, which is why they are in this condition, and just to kill them just because they not been maintained it seems rather rude. president hwang: so your response effectively as we do not know where they are, so it is not necessarily an issue, is back it? >> well, the arborist who was hired by the city mentioned in their report, they only did a report on one of the trees, that it could probably survive but that the limbs would be in danger, which is why it continually needs to be monitored and needs to be continually pruned to make sure that does not happen, even after the building is built.

they would still need to maintain these trees. president hwang: anna a couple of more questions. the significant tree, what if it was as ms. short attested to prove does that change your analysis at all? >> well, i am not an expert on that code. president hwang: an expert will speak on it, but what is your analysis? >> it is my understanding that the process is the same for both. president hwang: so there would be no distinction? >> well, there were seven issues that were supposed to be analyzed by the director of public works or whoever was doing the analysis, and we have no evidence that any of those were -- i should not say any of them, that those all were taken into consideration in the

director's decision to put out this order. president hwang: if it is not a significant tree, and it was not determined to be a significant tree, the analysis may not have been done? >> presumably, but as i said, i am not an expert. here is a -- president hwang: i have another question. talking about the lawsuit, and there have been different, enters -- different commenters, this tree relates to the lawsuit itself? >> yes. the open space that would be provided if there were not a building, that needs these

trees, it would be pretty bare without mature trees, if it stayed open space. i would not say state because right now it is a parking lot. president hwang: and i do not have a copy of the lawsuit and do not know the ins and outs of that. is it the case then, your position then would be that you need the trees and order to maintain open space? is it not true that you could maintain the open space -- have the open space with out the trees? >> you would have the open space without the trees, but it would not be interactive. president hwang: it the loss it were to prevail in maintaining the open space, the trees are not necessarily -- i want to know the answer. i am just asking. >> i hope i can answer. president hwang: are the trees part of the open space lawsuit

itself? >> they are. president hwang: ok. thank you. >> what i have here is one of the trees. it is not the trees' fault. in terms of breaking up the space, they do need to have some space around them. president hwang: ok. >> that is it. director goldstein: thank you. we can hear rebuttal. >> hello, this is leni again. i do want to clarify something about the loss it. the challenge, the legal challenge of this project is on three fronts. one is on the ceqa, and one is on the general plan referral, and one is on the charter amendment. i do not believe the trees are specifically named in any part of this lawsuit. there are only three challenges,

so i just wanted to -- this is my understanding, and the other one that i wanted to address is i am afraid i did not make myself clear in answering your question regarding the timing of the lawsuit versus the timing of the construction start. my understanding is that the lawsuit determination will come out in the next couple of weeks, so by the end of july, beginning of august, we should have a determination from the judge, and in the meantime, the project is also moving forward, and we anticipate starting construction sometime in august, so if it ale best. we can keep moving the project forward. we do not have any other options but not to do that, so hopefully this will get into a point of resolution and inclusion, and the project can happen. that is all i have to say about this, what i wanted to address.

>> thank you. carla short, department of public works. just a few things i wanted to clarify. it is true that in 2010, i looked at the trees. just to be clear, i never said that they were fine. if you look at the report, i said the trees that structural problems, that one of the trees was in fair condition, and that one tree, i will put up on the overhead, has had substantial limb failures. this is not a change in assessment. it was changing conditions that led to a different assessment. just to address the question about notifying the public. quickly. arco says we have to make an effort, and the way we do that, and we have done that for many many years, and that is that we put the notices on the trees and on the corner of the block, so these were posted a public notice, and in the corners of

the block were posted with public notice, and then when the hearing was requested, and clearly the public was aware that the trees would be removed, we we posted -- we posted them again, and lastly i would say that the initial hearing was a dpw hearing, and now we have a board of appeals hearing, so this is an independent process, and that was not the last thing, but there have been four arborists that have looked at the trees, and all four arborists and said there are issues with these trees. commissioner hillis: can i ask a question? the prior situation, making the determination, what is different about this case? >> i think there are a couple of things that are different, and i will say many of these cases do not and up before you because

they get overturned at the department, just as we were overturned with our initial assessment of two of the trees, and they do not come before the board, so it is not uncommon for the dpw and the officer, based on the trees, to actually allow for the removal. at 1190 mission, the project focused at the dpw hearing on the cost impact to shifting the pedestrian path into the roadway, so it was feasible, presumably feasible, to build that building and preserve those trees, and they focused at our hearing on a warning to pay those additional costs that they would have to take that roadway lane. this case, the conclusion of the dpw director was that it would not be feasible to build this building because of the impact to the trees during the construction, so it was not just

convenient to the building, it was impact to the trees. commissioner hillis: and do you share that opinion? >> yes, it the building is billed as proposed, i do. it is likely that they extend well belong -- -- well beyond the drip line of the tree, and i think there would be a very definite impact. president hwang: if i miss characterize this, i am sorry, but might understanding is that you cannot build where there are interesting trees. is that the situation here? not you, but dpw is potentially trying to build where the trees are? i know there is one in a footprint of the building itself, and you cannot get around that, but do you know

what i am talking about? as i understand it, based on the limited amount of testimony i heard, when you are designing your building and determine where to place it, this one is obviously going to the property line, so if it is doing that such that it would impact those trades, i do not know if this is a question for you -- ok, the project manager. >> they sometimes require people. >> the project architect is here. if i may ask her to address it? president hwang: i would like that to be addressed. thank you. >> my name is marcia. i am with an architectural company. just so i'm clear on your question, you are asking if this

is a policy question about placement of buildings? president hwang: i have a question that was raised in my mind when i heard about two people talk about an architecture test, s i said, i may have not heard it correctly or misunderstood it, to build where the trees a exist. i am sorry, but that is how i understood it, so i need help here. >> i do not know of any test, and i did not hear that in the testimony this afternoon that specifically. i think as professionals, we look at all of the constraints on every side and combine that with the uses and the program requirements, and this particular project has had a great deal of pressure from a lot of different areas in terms of using the best, the

resources to their highest and best use, for the library, for the playground, and for the open space in north beach, so there has been a lot of balancing and issues on this project, and a great deal of time and discussion has gone out to the public and what all the different aspects, and this was the selected master plan would review by the community and the various departments, so this particular project is complex with the decisions that were made, but it is within the city code of where you can build. the property line on columbus avenue. president hwang: thank you. director goldstein: commissioners, then the matter

is submitted. vice president fung: maybe it depends on the date. the architectural examine used to be two parts. for those of us who took the older exam, there are many things. there are two things about this case, before i get on to some of the merits or the pros and cons of this specific appeal, and one is that i do notice that there are some inconsistencies in the department documentation from a historical perspective of what we have seen in the past. secondly, from a personal point

of view, and i am also a resident of the area, and my family has been utilizing this facility and a playground for decades. i am not in total agreement with the nature of the master plan and how it wound up. however that said, the question before us is about these trees, and i am supportive of renewal, not only in terms -- also in terms of the vegetation that frames are sites and are buildings, so i am supportive of upholding the department. commissioner hillis: i would agree with that. i put a lot of stock in the analysis of dpw and carla short. these trees are older than most that we see. it is great to have them in the

trees scape. but it does not seem that there is an alternative to have the library constructed to the property line and keep these trees, so i would agree. i would ask dpw to not demolish the trees prior to construction of the library. i think that is the intent. there is a lawsuit pending. we would want to see it, or i would want to save the trees destroyed only when a part of a larger plan. commissioner hurtado: i put a lot of weight on the testimony

in the community, and there was a lengthy process that happened here in terms of planning for this site and for the replanting of trees to increase the green ness of the playground and besides, so with all due respect to the trees, i do believe that the effort here is to increase the greenness, even though it will take some years down the road. i think it will increase the green in this area and will improve the community's sense of their ability to be able to use this space and enjoy it and also for the kids in the neighborhood. to me, that outweighs any detriment from removing these trees. president hwang: i would agree with my fellow commissioners on

all of those points. i think a lot of my questions were answered in the rebuttal. i appreciate the distinction is made between the street, the significant trees, and also the sort of implications that there was a sudden change in assessment. i appreciate how that was addressed by the department in terms of the structural soundness or the lack there of of these trees, so i am prepared to uphold the department and permits. vice president fung: i move to uphold the department and the permit. director goldstein: vice president fung, is this based on the order? vice president fung: yes. director goldstein: ok.

thank you. madam clerk -- secretary pacheco: we have a motion, and on that motion, president hwang, commissioner hillis, commissioner hurtado. thank you. the vote is a four-zero. it is upheld on that basis. director goldstein: thank you. director goldstein: -- we will move forward with the director goldstein: welcome back

tabora impurity before july 11, 2012. item number 6. protesting the issuance of a mobile food facility permit, the sale of sliders, tater tots, and beverages, and we will start with the appellant. step forward. you have seven minutes. >> good evening, commissioners. i am counselor for the appellant. the rincon center is all present tonight, and let me just tell you know the restaurants are. you are familiar with them. the catering, mediterranean cuisine, soma chicken, rincon grille, the cheese steak shot,

thai to go, and rincon market, and others, and the property management is also present and in support of the appeal. they are here this evening. one overriding concern i would like to draw to your attention, while briefly addressed, primarily, rincon grill, they would like you to take note of the fact that these restaurants are all part of the food court/retail concept, and they are there to promote a food court eating establishment, and it just goes against the whole theory of that to put competing restaurants in the same food court, and our position is the food trucks here is so close,

and the menu is so similar that it destroys that concept, and that is why all of the restaurants are participating in this appeal. i would like you to direct your attention to our exhibit four, which is on this like now, and start with our first point, which is that we believe that contrary to the dpw findings, the entrance to the food court is right here. that is spier's street. if you do a google map, and you plug in the addresses of these two prospective businesses, you will get a finding that says they are over 300 feet, in fact 404 feet apart. however, the entrance to the food court, it really is as we

say in our brief right across the street from the food truck. this exhibit was prepared by our architect, and we think it is the correct way to measure the 300-foot distance. moving on to some of the points raised by the permit holder, we think the fact that rincon grill -- clearly, they compete. the standard is not that some percentage of the items on the food truck compete. that is not the standard.

there are similar items, and that is what the code says, "similar," and here we have identified them. you have a direct competition, identical food items that are within 300 feet of each other, and we think that is grounds to deny the permit. the intent is to protect competing foods. you have a well crafted retail concept here that really gets destroyed by the introduction of two competing food businesses. one person is going to lose, and that is not what is intended by this concept, and that is not what is intended by the statute. thank you very much. president hwang: i would like to

understand a little bit more the entrance of rincon, where rincon grill is located on your exhibit four. >> yes. president hwang: you said yours is more accurate in terms of the distance, the 300-foot radiant -- radius. where is it? >> it is right here. president hwang: and then where is the actual grill itself? >> it is a right inside that door. the food court is right where i am pointing, and the a is where the truck is. we are not having a problem with the distance. it is just how they measured it.

commissioner hurtado: i have a question. where exactly is it located? >> rincon grill, where my clients serves sliders, is right inside this door, 101 spear. commissioner hurtado: and a food truck? >> right here at this a, 60 spear. commissioner hurtado: do you know what that is, 16 psear? president hwang: that is the food truck. commissioner hillis: what is 60 spear? >> it is an office building. commissioner hurtado: ok. president hwang: