>> it was an exciting event for those who wanted some long needed improvements. >> they saw it and they took care of it. >> the project is expected to open in spring, 2013. for more on the playground, includud

[gavel] director goldstein: good evening, and welcome to the august 22, 2012, meeting of the board of appeals, and with us today is president hwang: , -- president hwang, vice president fung, and joining us should be commissioner hurtado. there is one vacancy. when there is, they may overruled by three members. four votes are not required to overrule a department zone action. robert will provide any needed legal advice this evening. at the controls is the board legal assistants, victor pacheco, and i am cynthia

olstein -- goldstien, the director. scott sanchez is representing the planning department. mr. duffy, representing the department of building inspection, and we also have patrick o'riordan, and john. -- john kwong. if you could, please, mr. pacheco, go over the royals. secretary pacheco please turn off yourself funds -- secretary pacheco: please turn off your cell phones and have conversations in the hall. the comments must be within the seven to three-minute periods,

and some not affiliated have up to three minutes each to address the board but no rebuttals. to assist the board in the after preparation of minutes, members who wish to speak on item are asked, but not required, to submit a speaker card or business card to board staff when you come up to the podium. speaker cards and pens are available on the left side of the podium. the board also welcomes your comments and suggestions. there are customer-satisfaction forms on the left side of the podium, as well. if you have questions about requesting a rehearing or rules, please discuss this with staff after the break or meeting or call tomorrow morning. the board of appeals office is located at 1650 mission st., room 304, between van ness and dubois avenues. it is broadcast on sfgtv, cable

channel 78, and dvd's of this are available directly from sfgtv. at this time, we will conduct our swearing-in process. if you wish to testify and have the board in your testimony evidentiary weight, please stand, raise your right hand, and say, "i do" after you have been sworn or affirmed. there is the right of the sunshine ordinance in the ministry of code. thank you. do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? thank you. director goldstein: thank you, mr. pacheco, and we will start with item number one, public comment for items that are not

on our agenda. is there anyone who would like to speak under that item? seeing none, we will move to item number two, commissioner comments and questions. commissioners? seeing none, then either number three is the adoption of minutes. commissioners, for your consideration and possible adoption of the board minutes from the august 15, 2012 meeting. president hwang: if thou art -- if there are no amendments, i would move to adopt. director goldstein: are there any amendments? seeing none, mr. pacheco, could you please call the roll, please? secretary pacheco: the vote is 3-0, those minutes are adopted.

president hwang: we are going to take a very short break. threre director goldstein: ok, we are resuming the august 22, 2012, meeting of the san francisco board of appeals, and we have item number four, a rehearing requests, where the board voted 4-1, with commissioner garcia

dissenting, to grant the appeal and revoke the findings for a later time. the board voted with president s -- hwang absent. the permit number is 11wr-0002. we will start with the requester. ms. earnst, you have three minutes. >> i am government and utility counsel. thank you for this opportunity to request a rehearing in consideration of the permit. the relocation, the decision was not in compliance with state and local law and will expose the city to on necessary legal liability as crown goes the next

step to protect our rights. we have the right to deploy in the public right of way. cities may have reasonable control over the public right of way but only to the extent that they treat all entities equally. on this street, there are numerous utility attachments that are on the street, and so the minimum definition of reasonable is that everybody be treated equally, and by having our equipment not be allowed on the street, it violates the public utilities code. second, we do have this properly vested under the common law. after the first time the permit was revoked that crown had properly relied on, we went to the court of appeals and put in a state, which is why the site has been able to continue in operations. the vested rights have not been terminated.

we went through the process, but it still does not eliminate our vested rights, so we request a rehearing so that this permit be allowed to stand, and finally, under the tillage edition at, there is a requirement that denials be based on substantial evidence, and the substantial evidence standard is fairly strict in california and generally across the country. it does not very all of that much, but a president not liking and installation is not a basis under the federal telecommunications act for denial. the objections and concerns of mr. and mrs. cooper regarding this location, which is near their residence, the visual impact is minimal, which is what dpw and the planning department found. also, we have gotten two ceqa approvals for this location from both the california public utility commission and the city planning department, both which found that this installation

does not have a significant effect on the environment, including the evaluation of the visual impact. if the denial goes through, the visual impact, but i would like to show you a new case, and in recognition of this type of installation that just came down from the court of appeals, in robinson versus the city of san francisco, this installation is three times larger than our installation, and the court of appeals recognized that, quote, the installation, like this one and other ones, would be perceived in existence of existing overhead wires and poles and that the visual impact would be minimal, so we request a hearing to evaluate the installation in light of the other surrounding law. thank you. president hwang: is that a public case? >> yes. it has not come out yet. the disease into -- a decision

to publish was, i believe, monday. president hwang: thank you. director goldstein: thank you. mr. cooper? >> thank you, commissioners. i am the appellant in this case. i do not have a ton to add to my written remarks. i do not think that nextg has raised any issues that would have been undone at the time of the hearing, and i do not think they and able to show manifest injustice, and i guess ms. earnst raised a few points, and one is the vested rights, which, i read the decision by the courts, and i did not see anywhere where they actually kind of overturned the board's previous decision that vested rights did not apply in this

case because there has never been a properly issued permits at this site, a determination that the board made last time is that a properly issued a permit is required in order to result in vested rights, which has never occurred here. the installation picture that ms. earnst is obviously a different location. we are on a quiet, residential street. it is a protected street. it has a good view, and i could actually see it looked like the n-judah turn, a little bit of a commercial corridor. it is not quite the same location. the city has the ability to be a productive partner in where we put this equipment. and we are allowed to make rules about what is an appropriate place for this equipment, and nextg is indicating that a

utility pole in a protected location, they are allowed to be accessed at will, and i think that that is the wrong message, and that is part of the reason article 25 came to be, and the board of supervisors passed that ordinance, which was to slow that down a little bit, because they have largely been given free rein. members of the community up until article 25 were not provided notice and could not be active participants in the process, and so, i am hopeful we can come up with a more reasonable approach than just giving free rein to companies like nextg. that is all i have to say. president hwang: thank you. director goldstein: thank you.

mr. kwong. >> thank you, john kwong, the department of public works. we do not have really much to add, and they were suggesting that this was free rein. it is not. anyplace of wireless facilities in view corridors with excellent view, the placement of these facilities in historic neighborhoods and also a historical -- under the old article, when it is around areas of recreational park jurisdiction, over recreation or parks, it is also required for a certain level of oversight to ensure that it is satisfactory to the department of recreation and parks, some to suggest that there is free rein is not necessarily correct.

there are certain oversights that we are required to provide under article 11.9b and also under article 25, for clarification. thank you. president hwang: thank you. director goldstein: thank you. is their public comment on this item? ok, seeing none, then, commissioners, the item is submitted. vice president fung: commissioners, i have not heard or seen anything in the brief that is new, and we should let this go to its next venue. commissioner hurtado: i feel the same way, and i apologize for being late, too. vice president fung: i am going to do nine the rehearing request. director goldstein: ok, mr.

pacheco? secretary pacheco: the vote is 4-0. this rehearing tonight, and a notice of decision shall be released. director goldstein: thank you. we will move on to item number five, appeal no. 97-165, bhazubhai patel, the subject property at 4201-4211 judah street. this is protesting the issuance of a letter of determination dated november 19, 1997, addressed to timothy lee at tenderloin housing. we will start with the appellant. >> thank you, director goldstein. my name is andrew.

i am the attorney from patel. we submitted a letter to you with the proposed state and a decision which was stipulated by the determination holder, the tenderloin housing clinic, where a person's -- representative is present tonight. mr. collier represents the clinic at this point in time, and other than requesting after these many, many years we finally move on and allow my client to continue to run his hotel and to seek a conditional- use authorization to extend the operation of the hotel as is stipulated to an agreed to, i would ask that you adopt the stipulated decision, and if you have any questions for me, i am happy to answer any questions you have. president hwang: mr. collier,

would you like to speak? >> good evening, members of the board. my name is steve collier, tenderloin housing clinic staff attorney. yes, we have agreed and stipulated to the findings and determination that are presently before you. the matter should be decided by the planning commission to see if they will approve a conditional use. i think that is where the issue is better set, and that is why we agreed to the stipulation. president hwang: thank you. director goldstein: mr. sanchez? >> thank you. good afternoon, president hwang, commissioners. we have a of -- we have reviewed what was put forward to the --

to us. there is information that was not previously provided. this board agreed to the rehearing request because of some of this new information that has become available. it is required to go before the planning commission in order to continue the use as a tourist motel. so that due date would have been several years ago now, but they would not have been able to file the c.u. because it has been more than a decade now, so the result of this appeal will allow the appellant to move forward with the conditional- use to legally continue the tourist mattel use. that would be a hearing for the planning commission to make a decision about the appropriateness of the continuation of that use, and i am available for any questions. thank you. director goldstein: is there any public comment on this item? do any of the parties wish to

rebut anything? ok, commissioners, the matter is submitted to you, and i want to make one note. this is under the standard of error, use of discretion. president hwang: i want to be clear with the zoning administrator that are comfortable that you erred? not you, but your office? because that is what we are going to have to do in that the information was not present at the time of the determination letter, ok? vice president fung: commissioners, we have granted an appeal before an accepted as the basis a stipulated agreement without that kind of fighting. i would just assume not enter that into the record. >> you are required to find that

either the zoning administrator heard or use discretion, so i would recommend that we do included in the findings. -- to include it in the findings. vice president fung: ok, our c.u. is quite big. president hwang: i would be inclined to grant the request, to have the stipulation permitted on the basis of the zoning administrator abused his discretion in light of absence of information available, or i should say erred, in light of the absence of relevant information in 1997. director goldstein: so, president hwang, is your motion and to adopt the findings as proposed and agreed to?

ok. so the motion is to grant the appeal and overturned a letter of determination adopting the findings -- and overturned a letter of the termination of adopting the findings and adding an additional note that the zoning administrator failed to recognize the information that was available about the nonconforming use back in 1997. president hwang: more gentle. thank you. secretary pacheco: so, again,

the motion is from the vice president, or the president of to grant the appeal, overturn the letter of -- as proposed by the appellate attorney, with the finding of error by the zoning administrator -- can you repeat that again? for not -- director goldstein: for failing to recognize the nonconforming use. secretary pacheco: for failing to recognize the information available in 1997 regarding the nonconforming use. excellent. on that motion, vice president fung, commissioner hurtado, and commissioner lazarists. -- lazarus. the appeal is granted. it is overruled with the adoption of those findings and the error, and it is a rehearing and no additional rehearing is

allowed. a notice will be released. president hwang: thank you. director goldstein: we will then move on to item six, which is in two parts, 6a and 6b, john carey versus the department of building inspection and also versus the department of zoning administrator. the property is at 135 el camino del mar, appealing a denial for a permit to alter a building, no. 200865117, 200864297, and 200989665. there was a veranda, upper floor, and tears, and front room at first for hour, building of the property line at the

southeast corner of the rear property. the appeal number 12-035, is about the rear yard and noncompliance structure variance for the required rear yard, and that was constructed beyond the scope of a building permit number 9802662, and documented in building permit application number in 2010/1/7/04 three five eight. we will start with the appellant and the appellants representative. you are entitled to 14 minutes. there are two items. >> 14 minutes. i am an attorney, but i do not think i can talk to that long. good evening. i come to the meeting early and late. i was the attorney, and i will not take up too much time. i just want to point out a few

things. director goldstein: would you like to state your name? >> my name is john carey. ms. hester makes use of talking about -- she was not there, i was, and they are totally incorrect. the settlement with the city had to deal with matters other than what we are talking about now. the city had insisted on remaking the underpinnings of the area, including the underpinnings of the house, under the promise that they would give them the platform to reconstruct their house that was exactly like the platform they had before the disaster. that did not happen. they included in the best interests of the city that they would take away the substantial underpinnings of the house, so there was a lower portion of the house which was never capable of being reconstructed. the case was long since settled

by the time the case was made. it was not a part of the settlement, it is a reduction in the total settlement because that was not part of what was promised. that is part of the reason that the subsequent applications were made. to get this covered and move forward. there is some extraneous information in the braves, which is that they have not lived in the house since 1995 -- some extraneous information in the briefs. this is no relevance except that the neighbor bought his house 10 years after the disaster and did not have to live through it. it is a representation that mr. greavy banta over backwards. that is more hyperbole than anything else. there is a very troubling accusation in year from,

apparently, mr. sweeney, who was present, -- a troubling accusation in here. someone forges something, someone familiar with the engineering procedures of the city. it is more troubling that accusations like that can be made without a hearing, evidence, proof, a jury, or anything else. those applique -- allegations up and flying around for quite some time, in that understand the process because i have been a commissioner in the past in other cities, but i do not think it is right to rely on unsubstantiated, even if it comes from a man with great experience to earnestly believe that there was some untoward event. there is no evidence that he has the ability to do that. he never did this type of work in his professional career. there is no evidence that anybody who worked