public can be safe, we clearly can't ignore public safety concerns and our feeling was that this tree was shedding limbs and causing sidewalk damage and it was appropriate to remove at this time. thank you. >> could you address the concern by the appellant that the replacement timeline is one that is too long. how soon would this tree be replaced once removed? >> i can't make any guarantees because as an example, once the tree is removed, we also have to use a giant machine to grind out the stump so we can plant in that location. we have one large stump grinder that can get two feet of depth which is what we need to plant a replacement tree and it was in the shop for 8 months last year, 8 full month, it went in for one problem and because it was sitting on the shop for

weeks on end, it had three additional problems that had to be fixed, that put us on a big delay for our replacement trees, so there are extenuating circumstances and i hesitate to commit to a replacement timeline but i can say, stump grinder is up and running, we have been planting as many empty basin that is we can and we would try our very best to try to get this tree replaced as quickly as possible, i would like to say that it could be within a couple of months of removal. >> okay, that sounds reasonable: >> we'll just note that we don't have that language reasonable amount of time, just as a side note. we always try to be reasonable. >> thank you. >> thank you. >> okay. if we could take public comment. is there anyone who would like to speak on this item?

>> yes? . >> good afternoon again, commissioner, members of the public, star child, if we could have the photos up here that the department of public works brought in again to look at the tree. thank you. does this show up automatically? there we go. okay. i would like to point out, you can see that all three of the main trunks of the tree are covered in foliage at the top. you know, none of them have foliage going up the trunk so i'm not quite sure what that was about, the one limb or trunk not having foliage, but you know, this is a beautiful

large tree, this took decades to grow, you know, you can't even wrap your arms around the trunk, i don't know what they're planning to put in but typically, you know, things put in to replace these kinds of trees are not suitable replacements, it wouldn't be anything this large or beautiful. i mean, noe is a beautiful street because of it being tree-lined and i think that makes people more likely to want to walk down the sidewalk on that street. also, the planter next to the tree as you can see, here on -- >> there are other conversations in the hallway, there's overflow rooms in 408 and 201 if you want to converse, okay, 408 or 421. >> it's not super visible from this photo, the only sidewalk damage is right here next to the tree and across from the

tree is a planter which i'm not sure if that's city owned or privately owned but that could easily be moved, it has some relatively small shrubbery in it and that would double the width of the sidewalk there and allow people to get easily by the tree even if this part of the sidewalk were left unprepared. however, i think that could also be easily repaired by putting some filler concrete and make a little bit of a slope there but i think that's not even necessary for the sidewalk to be perfectly usable and ada compliant for it to be four feet wide if that planter were relocated. visually, the tree looks pretty healthy, i'm not an arborist but i couldn't see any evidence of limb failures, something three or four inches coming out from the top up there would not have been necessarily visible but not a great hazard either.

when you hear limb failure and is look at the tree, you think as one of the trunks coming down, it was a minor relatively speaking for size of the tree limb failure and i just think it's criminal that we would tear down -- kill a tree like this and, you know, i don't think the department has its policies right, i respect the spokeswoman, they may be well intentioned but there's a lot of trees that have been coming later in the city and i think this is part of a pattern and also the earlier item with tearing out all the grass in golden gate park to put in astro turf, this is a pattern in the city and i would urge you to please save this tree. thank you. >> thank you. >> is there any other public comment on this item? okay, seeing none, we will move into rebuttal, you have three minutes of rebuttal.

mr. burkett? >> taz dpw did note, they did not bl*ifr to me any documentation about the tree limb failure. i was told by the board of appeals, the senior clerk typist that that would be delivered to me as a port of the process of this appeal, so i assumed at that point that i would get something from either the department of public works or the board of appeals regarding that because i was told that in verbal by the senior clerk typist at that time. she also told me that the requestor, in other words, she said she believed somebody had to request dpw to remove the tree, and dpw says that they were removing the tree at their own request, and that was never given to me. the third item that i wanted to mention is the planter, that planter, i don't know who owns

that planter, and like star child pointed out, if that planter were moved, there's probably between five and a half to six feet clearance between the crack that the tree has caused in the sidewalk and the nearest house which is more than adequate ada compliance. i don't know who own that is planter, i don't know whether it's a city-owned planter, a privately-owned planter or who has that planter and she mentioned also within a reasonable time. when they came and posted the notices to remove the trees at 152 church street, one directly in frnt of the kh*urmg and one off to the left -- yes, off to the left of the church as you face church street, i called the department of public works and asked them what they were doing, they said they had to remove the trees because they

were unhealthy and they would be replaced within the reasonable time and that was the quote i was given and i asked what would a reasonable time would be, and they told me within several months at that time, that was three years ago. that's not within a reasonable time to me, and if they remove this tree, what to me is within a reasonable time, is it going to be several months, it's not proven to be several months in the past. thank you. >> there are several other people on noe that said they would like to be here but because they did not have adequate notice, either they didn't get the mailings or they didn't pay attention to them and they were unable to be here

and they want the tree to be saved. thank you. >> thank you. >> ms. short, you have three minutes of rebuttal. >> okay, i'll just try to address a couple of the points that were just raised. i think there may have been some confusion about whether or not someone that to request for a tree to be removed because we have a hybrid maintenance responsibility model in san francisco, so about two-thirds of the street trees are the maintenance responsibility of the adjacent property owner and if those trees are to be removed, that property owner has to file a tree removal permit application and they have to request to get a permit to remove that tree. however, one-third of the trees are still being maintained by the department of public works and in those cases, we do inspections on the tree that is we maintain and we might identify a tree to be removed

and that's what happened in this case. i will note that we have been contacted in the past since 2008 by the immediately adjacent property owner as well as some of the other people who called in those service requests to look at the tree when these limbs have fallen or when they've had concern. this is a tree that has been on our radar but it is up to the department to determine whether or not we want to remove this tree because it is a tree that we have had the maintenance responsibility for. the other thing i would like to emphasize, i think there may have been a misunderstanding, when the appellant was filing the appeal, he thought his request was going to be forwarded to the department because i usually respond to a brief and that's my trigger to get you my brief on time and the appellant didn't file a brief so i also failed to file a brief so i'm not sure where that's where the confusion over

the documentation came. i think the last thing i would add rez is our concerns is multilateral so it's not simply the sidewalk damage although the fact that the damage occurs opposite the lean is a concern, in order to be ada compliant, we can't leave a damaged sidewalk like that and there is some damage on this side, this is the worst o*f the damage, it is a privately maintained planter box, but even if we were to try to move that planter box, you know, we don't know what would happen underneath the sidewalk and whether or not roots would have to be removed in order to repair the sidewalk, we still have this pattern of limb failure and that was the other concern that led us to determine that we should be remove lg this tree at this time. the last thing i'll say is this photograph shows the limb that does not have -- that has very

limited foliage at the top so it's not visible in the first photograph because the other two limbs and their foliage makes it look as though the third limb has foliage at the top but it really doesn't. thank you. >> thank you. >> commissioners, the matter is submitted. er >> i personally wanted to note that the photograph of the tree and its grandness was very compelling and i too felt a pang of sadness that this is going to have to be removed as i'm sure the spokeswoman from the department of public works who in fact is an expert in trees, she's an expert arborist, so i know from the level of complaints and the length of time that has taken place before this removal decision was made, it was considered -- i think a serious

amount of consideration was given to protect this tree and i feel completely satisfied by what i've heard today with respect to the decision-making process that took place to uphold the removal. >> and i'm in agreement and i really don't have anything more to add to that, other than i find the testimony of the expert arborist to be compelling as to the reasons for needing to remove this tree. >> i guess i appreciate there's been watchful waiting for four years, so that's to me a pretty good determination that the time has come to take that down. >> i'm going to move to uphold the permit, deny the appeal.

>> would that be for the reason stated in the dpw order? >> that's correct. >> thank you. >> on that motion from the president to deny this appeal, uphold the permit on the basis stated in the dpw order. on that motion, the vice-president is absent. commissioner hurtado? >> aye. >> commissioner lazarus? >> aye. >> thank you, the vote is 3-0, this permit is upheld on that basis. thank you. >> okay, we're going to take a short break and resume >> we are moving on to item number 7 rkts appeal number 12-707. protest thing issuance on may

18, 2012 to pickle/besser family trust of a permit to alter a building, interior soft dem in addition only on ground floor and basement, no exterior work per ab-017, the application number is 2012/05/14/0406, it's on today. have you gotten confirmation pr the interpreter that they are set up and ready to go. >> the last day that ms. wong left, she didn't mention it. >> she said she needed one more minute. >> i can go double check. >> if you would nlt mind or maybe she'll see me asking for it and maybe she'll come in. >> to come to this room? >> well, i just want to make sure -- >> okay, thank you so much, okay. so, president hwang. >> yes, and i just wanted to say, thank you all for coming

out here, i know you've waited a little while but i wanted to take this out of order and i wanted to hear from mr. duffy first just so i can focus on what the permit is that we're dealing with today. >> good evening, commissioners, this building permit's for 4218 mission street is only for dem -- demolition on the ground floor and basement, no exterior work, it lets some people do some interior demo, it's not a change of use, a lot of people use it and simply because it's sometimes for demolition, it's

easier to find out what the structural elements of the building are and it exempts them from doing any accessibility work because it can be done then on the future permit, so this is only simply for interior demolition, it doesn't change the use and occupancy of the building. >> do you know what that is? >> yes, on the building permit application, it stated there's retail and occupancy and a single family home on r3, a single family dwelling unit and it's a basement type 5 construction, so the existing use is retail and as of this permit, the use does not change, it's still retail. i believe there is a future permit file for a change of use. >> and that is not before us today? >> that is not before us tonight, no. >> okay.

>> okay. and i might ask you to come back up after the appellants have spoken. >> so should we hear from the appellant then? >> yes. >> we'll hear from the appellant now, 7 minutes. >> good evening, board members, i'm leon chow, the appellant and probably it will take less than 7 minutes. first, i want to address to the board that, yeah, i do understand that this is an interior permit, but my brief is an argument is opposing the permit on the unit used for the mcd, medical cannabis dispensary, so my argument is

that it is not necessarily limited to -- for the details of interior is, and i understand that the permit departments that have talked about that the use is the retail, but you also understand that the use for the retail is more the medical cannabis dispensary, so i stand with what i submitted on my brief and i will be very short on that as i said before and real clear that i state my position that the permits should be repealed because it lies within 1 thousand feet of schools and this needs to be repealed because it lies within 1 thousand feet of certain recreation buildings and schools and child care facilities, and it also should

be repealed because it also lies within the radius of accessible to children under 18 either on a facility or also within heavy traffic like fast food chains like kfc or other religious organizations that heavily traffics within the districts, within the, you know, distance, and i also want to address that, you know, on my brief that this is about the high density, high concentrations of the mcd and i continue to say that this is my condition, there will be proceedings later on for this

hearing that argument will be up to the board member here whether there is certain organization of facility is tribute within -- prohibited within a thousand feet or not prohibited within a thousand feet. a similar case two years ago in 2010, 3139teraville about the mcd which i believe the board member is here and you have your decisions on, i understand there will be a difference in between each mcd permit and because of different locations, i just want to emphasize that the concern about closer distance within the distance on child care, on schools and other organizations serving people under 18 is more in 4218

mission street, so i'd like you to take the considerations on that. i know there will be a lot of speakers who want to also address the case. i want the board member to really consider this is really about the neighborhood, the residents who live, raise their children around the area. thank you. >> i just want to be clear of the arguments you made today and in your briefing are for a future permit that has not yet been issued, correct? we've got a likeness issue, don't you agree? >> i have discussion with mr. pacheko when i submitted by appeal filing, and you know,

understanding that without understanding the process of difference in between the two permits, that, you know, i will proceed it, but it's also been rescheduled hopefully looking for the exterior permit has been issued. that's why i also make a request on rescheduling and state my reasons for that because i want to actually address all the exterior permits too, but it was -- i believe it was denied by you. >> it was objected to by the other party and that other party has a due ro kress right when an appeal is filed to have a hearing scheduled, go as scheduled. i'm not going to take away anyone's due process right, i'm not going to take away your right to appeal, but if you look at this room and look at

the hour, it's within your rights to bring this appeal and to argue for something that is not before us, that's within your right but i just wanted to make clear for the record that the arguments you're making are for a future permit that's not been issued, correct? >> i hear you. >> correct? yes, okay, thank you. >> mr. chow, do you have any arguments that go to the permit? excuse me, let me finish my question, please. do you have any arguments as to why the permit that is before us tonight should be revoked? i'd like to hear about those if you have any arguments relevant to this permit. >> as i hear from the department that you call for and before me and the argument is that this unit is using for retail and i believe -- i believe, you can correct me if

my belief is wrong, the use is for medical cannabis dispensary and i'm here opposing the retail use. i know and understand that the technicalities of arguments about this is interior and there will be exterior permits coming up, i also understand too, but, you know, my argument today, i know that it's late, but i'm arguing about the use of this unit area that the parcel that's been using is for the medical cannabis dispensary. >> okay, i understand your argument and obviously it's up to us to determine whether it's relevant to what we're hearing tonight which is this permit

before us, so do you have anything else to add? >> no, you know, i will -- i totally understand about this is the board decision, board member decision, and i try the best i can to actually make it my case. i understand that there will be at the beginning, there's two permits, and i do try to also look into combining the two, but you know, as i said, as president hwang has been talking about and there's a due process and -- >> okay, thank you. >> thank you. >> okay, thank you, we can hear from the permit holder now. >> good evening, board members, i'm joe al ford, i represent

the permit holder, kevin read is also president here today, i will try to be brief. as this board is well aware, there's no jurisdiction here. i understand the appellant would like to challenge all mcd's at any level in any proceeding. i suppose due process allows him to do that no matter how frivolous these appeals may be, in particular here, the appellant is seeking to drive up the cost associated with constructing a well managed medical cannabis dispensary, he's driving up those costs by filing what is a frivolous appeal for purposes of these proceedings. his arguments are all directed to the use of this facility, that was already determined in a different proceeding back in february, on february 16th of 2012, the planning commission approved the use permit or at least prelim nailer approved

the use permit, the appellant is seeking to challenge that determination but this isn't the appropriate method of doing that. there was an appeals process that he could have employed connection with that approval, that process wasn't used, instead he waited until the dispensary tried to bring the dispensary into compliance with san francisco rules dealing with that and then he tries to challenge a building permit or a demolition permit which is what's at issue here, and there is a tremendous distinction between a use permit which is not in issue today versus a demolition permit which is at issue today. this demolition permit is for the interior of the facility, it has no impact on the outside neighborhood or no detrimental impact on the outside neighborhood, there hasn't been a contention made that there's no reason to overturn the

granting of this demolition permit, so in short, the members of the board recognize, there's simply no jurisdiction here. there may be -- it may be true that down the road, there might be some rightness to a right permit challenge, but that's not what we're here today. we're here today to see if we should make important interior renovations, there was a reason why the green cross got the use permit. the green cross got the first medical cannabis dispensary permit and it did so because the various boards that the green cross has been in front of recognized mr. read to be a responsible dispensary operator. they decided tha