opened after my notifications went out. i started this process back in november and i do believe there were three or four restaurants in the process of being built and opened on mission street. i do not believe they were open for business at the time the notifications went out. i cannot speak to that. that is all i got. thank you. >> good evening. department of public works. the statement by one of the general public related to not be notified is very similar to the situation that happened several months ago for the mobile food court that was placed adjacent to the etrade building.

the department notification for this permit -- it is a function of when the restaurant opened. that would define whether they would have been notified or not. other than that, the department has nothing to add that is germane to testimony by the appellant and the applicant. >> the appellant claimed if they appealed, i know that you cannot predict, but what would dpw have done if they appealed? >> the department is required to evaluate a variety of things. if it was within 300 feet, it is highly likely that this department would have denied

this location to the applicant. however, in this case, based upon -- it was slightly outside of 300 feet. approximately 400 feet away. that is beyond what we believe to be -- what is defined under the code as it is established. president hwang: what does the code say? i did not see it anywhere. >> notification is 300 feet or the length of the block, which is ever -- which ever is more. if it is a mobile carts, it is from the address to 300 feet. if they were offering -- operating during regular business hours. anyone in the area can object.

it is a case where the basis upon how the code is set up indicates that is what the department should concentrate on. president hwang: makes sense, thank you. vice president fung: length of the block is the diameter of the circle? board becomes the radius, whichever is longer? >> -- or does it become the radius, whichever is longer? >> if the block is more than 600 -- >> as the radius? >> the full length of the block. vice president fung: you also have restrictions were mobile food facilities are in proximity to each other. that would be correct?

refresh my memory. >> typically, as part of the evaluation process, we evaluate the various brick and mortar businesses in the immediate vicinity, but also whether our any other food trucks operating within the radius of the application area. president hwang: the matter is submitted. >> i can get is pretty straightforward. -- i think it is pretty straightforward. i am familiar with this area. there is a lot of competition for the lunchtime clientele. to me, what is determinative is the code.

the distance requirement for giving notice makes sense to me. you cannot have a blanket ban on like food indefinitely. you have to have some sort of distance within which you want to protect existing businesses from competition from these type of food cards. this situation, it is pretty clear that the like foods is outside the radius. to me, that is determinative. in my opinion, and i've said this before, if businesses are in disagreement with this permitting process, the proper avenue to address that is to the board of supervisors to change the permiting law. that is not our role. for that reason, i would uphold this permit. vice president fung: i am in

disagreement with that position. we have had these food carts cases where people have tried to come in and take somebody else's location. therefore, bill licensing as a correlation -- the licensing has a correlation to a specific location. most of the notification processes relate to an address, and therefore, the property. the building department and planning department correlates to a 300-foot radius from the four corners of that specific lot, which is then governed by that address. there is a disconnect between taking a simple mid-block

radius when the location is further down the corner. i would except that the rincon center falls within the 300 foot radius. i would also make the location that they are similar food. president hwang: i think your point is well taken. i found that to be intriguing as well. in trading or perplexing, odd. -- intriguing more perplexing, i did you ever, that is what the code -- odd. however, that is what the code calls for. >> there needs to be a new look at the code and legislation. we have seen instances like this

where people can make a good case for not doing the proper measurement. i would have to agree. >> i would make a motion to uphold the permit. based on the reasons stated by dpw and based on my comments as well. >> we have a motion from commissioner hurtado. correct? on that motion --

thank you. the vote is 3-line. this permit is upheld on that basis, thank you. -- the boat is 3-1. this permit is upheld on this basis, at thank you. >> we will move forward in calling item #7. patrick buscovich versus the department of building inspection. we will ask you to please leave the room quietly. we would very much appreciate it. the subject property is at 69 montezuma's street. this is an appeal the denial on january 26, 2011, of a permit to alter a building. when the appellant is ready, we will start.

>> he does tend to be some diagrams and pictures of what he is going to show. president hwang: i think that is helpful. i assume the other side has received these. >> i tried to give it to him earlier. he gets worried when i hand him stuff. >> you do not have a laptop? >> [inaudible] i think i have seven minutes.

give me a second. thank you for allowing me -- my name is patrick buscovich. this case is pretty straightforward. if you break it down to what is about. i need to apologize. they have made mistakes here.

the project opponent has made mistakes. all these people have made mistakes. this is a very complicated case where the original developer lied to the city. if you except the mistakes, how we move on? we're asking the board to make a decision. in -- the original developer came to the city in 1982 and said there is a 12 by 20 garage on my lot. he was trying to get a second car to get a second unit. we have testimony from the neighbor. he filled out an application and he also gave a disclosure to the city that this is 12 by 20. there is a garage. because of that, the planning department made some mistakes. everybody in this project made mistakes. they thought there was a garage.

during the actual project, the developer changed his mind because of the neighbors dr'ed it, and came up with another story. it is a mass. when the drawings got to the building department, the building department allowed someone to exit through a garage, which you cannot do. how do i know there is not a garage? if you go [inaudible] that is the garage that everyone is centering this case on. that garage, you can look at it and realize the dimension of that structure is not the 12 by 20 the developer said.

it is 10 by 12. when you look at the brief by the neighbor, he said it is 10 by 12 and he rented it. wire all these documents that come after this say that it is -- why are all these documents that the map to this say that it is a garage? i showed this being built in 1915. in 1928, the owner of the land decided that what was their -- he needed a garage. he pulled a permit in 1928 to tear this thing down and build a 25 foot by 25 broad. 500 square feet and replace this barn. for some reason, he decided he did not want that. what was left was this course barn. as you go through time, this urban myth that there was a garage there is all fallacy. how do i know?

there is the map from 1920. you can see that little dot. it is about 10 by 12. in a 10 by 12, i researched every car that was available in the 1920's. the smallest car is this roadster. it is over 13 feet long. what was there was not a garage. whatever reason planning is trying to say there are a bunch of problems with the history of this. since there was a garage, do not worry about all the errors. we need to move forward to say there was a garage there in 1980. we need to require this unsafe condition to proceed. i would to lead to invite the fire captain to talk about the existing conditions. >> good evening, commissioners.

i worked in conjunction with the building department. i would like to explain the fire department's position for new construction as it relates to single-family dwellings. the fire department does not have jurisdiction when a single- family dwelling is presented for review as far as construction. our department's jurisdiction picks up after the building is built. the fire department is concerned with access to the building, ok, and is concerned with specific requirements in the building department as far as you cannot accept a garage. i am not here to speak on the complicated issue as far as how this got here. i went to the fire department and presented the position to the lieutenant and he reviewed

the condition. it is the fire department's position that there is a problem. there is a problem with the access to the structure if the condition is left to remain and a car was parked there. you can see some of this picture, that is the access point. a current car will provide absolutely no access for the fire department to enter the building. for the occupancy to egress -- the occupants to egress. it was presented to the fire department as a complaint. it would issue a notion -- a notice of violation and starred the abatement process. that is all i have to say. >> i would like to introduce the occupant of this building. that photograph was taken by the developer. [inaudible] you cannot even get around this car.

>> we on the property at 69 montezuma's street. we bought our house in 1988 and have lived there continuously since that time. for over 20 years, no one has parked in the entryway. my statement is going to be brief because the legal and historical arguments will be presented. what i want to stress is the members of this board, by upholding my neighbor's right to park in this entryway to my home, the city is taking the position that pleases me, my wife, my family and friends and possibly the department -- the fire department in danger. the space in question may be illegal in many ways, but most importantly, it in its

dimensions. i feel certain there is no other homeowner in san francisco that has been forced by the city to provide parking for a neighbor that jeopardize their safety. i feel it should be incumbent upon all city agencies to place the safety and well-being of the citizens above all else. thank you for your time. vice president fung: were you aware that needed to have a permit to close of that space? >> yes. nope. at the time i did it, i did not know that. when i was given notice, we paid

the penalty. >> mr. sanchez? >> thank you. good evening. thankfully, this is a fairly unique case. the appellant has listed a variety of arguments. i would like to go back to the beginning and reiterate the facts. the subject property is located in a single-family zoning district. the adjacent property is a duplex. it was constructed pre-1900. the adjacent property was vacant save for a garage. it does show an auto brides --

garage. garage -- that is what we are relying on we are making our determination. at the time, the properties were under one ownership. from 1971, they were under single ownership. it appears that in 1982, there was a parking easement. that parking for the units, one parking spaces was provided on the property of 69 montezuma. when the permit was submitted in 1984, the plans referenced this easement. it makes reference, it also has a curved cuts. -- curb cut.

that was reviewed by the department of building inspection. the permit was subsequently issued. there was discussion in the late 1980's with the then zoning administrator about changing the easement. he said a variance would be required. it was very clear there were two parking spaces at 69 montezuma, one for the property at 69 montezuma and one for the adjacent property. this is the evidence that was presented to our department. we were brought into this because of the fact that the second garage space was closed off. the easement was denied to access that parking space. there is no variants on record to remove the parking that has

been provided. this was an enforcement issue. there was a directors hearing on it. our department became involved. i reviewed all the facts. i denied the permit that is at issue here based upon the facts that i had. the parking that was being removed was code required parking and it could not be removed. the variants today has been saw. -- variance today has been s ought. the removal of the parking goes back several years. there had been several discussions with the parties. we're hoping -- we were hoping the matter would be resolved outside the board of appeals. but we are here today and based upon the evidence, i have to determine that there is required

parking for the adjacent property that is being provided on the subject property. that can only be removed with a variance. that is why the denial of the permit is appropriate. there were some questions about gaming the system. i am not sure how that argument works. i am not sure how that manipulation place through. i do not know how it is relevant. vice president fung: was there any board of appeals decision -- >> not that we could find. >> if your position is to deny the permit, but the work has already been done, what happens? >> we denied knowing they would

have the right to appeal to this board. this board has the authority to make what they feel is the appropriate decision. at the board upholds the denial of the permit, they will need to restore the parking or seek a variance. those would be the two options going forward. >> all retroactive. all the work has been done. >> to legalize the condition. >> on top of an easement. >> the easement is a separate issue. the reference to the city being a party, that is a private matter. what that easement does is guarantees the code required parking is required. >> in terms of a variants, that would be an option.

planning could not grant of variance to allow for the work here that was done after the fact? >> the easement is a private matter, so the parties would need to resolve that outside of city channels. >> in the meantime, you could grant a a variance. >> we would prefer to have that issue resolved. that was the subject of the court case. i do not think that has been resolved. ideally, that would be resolved. >> ideally, but let's say appeal after appeal after appeal. it is locked down in the court system. is there an automatic -- cut the easement is a separate issue. -- >> the easement is a separate issue. the easement -- they can still

provide parking. the code -- the planning code does not require parking. we can separate the two issues. >> who can apply for the easement? >> it is a private matter. >> if you can apply for the variance? who gets to file for that? >> the chicken or the egg, take your pick. that is an excellent question. >> the appellant could file an easement. but they do not own the property because they do not control the easement. >> if a decision is granted, that could be appealed. that could be the subject of a lawsuit challenging the validity of the easement as well.

hopefully, the easement issue will be resolved. >> that has to be fairly common. we have that easements before where there is a common area. who gets to apply for staff in areas where there are easements? >> easements are not to comment. especially something this specific. a lot of easemen+ access. you would have a property that would be separated -- maybe is a landlocked lot. he would have an easement across somebody else's property. it has to be maintained free and clear. this is a very unique situation. the building is built above the easement. it is a unique case. >> can you speak at all to the safety issue that was referred

to earlier? >> no, not within the purview of our department. i would note that it does appear -- it was approved as such by the department of building inspection. >> where did the plans show egress? >> it is one of these where -- let's see. they call it as injury and parking -- as entry and parking deck. i do not think there