were not fileded and obtained prior to construction, and which delayed the construction should not be blamed miss gallagher, but clearly somebody else's oversight. and recently i have learned that the construction includes building of a green waste area. and and to have this green waste area located in the middle of the park on the summit, seems to be very, very poor choice and poor decision, and to allow the dump trucks basically to be able to drive through the park across the park to get to this green waste area also seems to be very, very poor planning. having a plaza park a few blocks away would not increase driving and this park already has an area that is used for

green waste. and it's nicely blocked with trees, and would not be as obtruive. the with i think the overall quality of the project management is not up to par. i'm speaking from a professional standpoint, x thank you very much. >> thank you.

next speaker. >> my name is patricia lovelock and i'm here to support miss gallagher's appeal. i was one of the people at the meeting which the historian for 30-45 minutes sat in supervisor farrell's office and very calmly and very competently described what he had viewed personally as the archaeological remains at the summit. at that time, we were told, i believe it was primarily -- that they would be looking into that. we have been asking for documents. since oh, i don't know, maybe the last hearing i have been trying to get hold of the mayor's office on disability and mr. kevin jensen regard something questions with the ada. no response except for one partially responsive answer. i don't understand city people not providing questions to their constituency. i am a disabled individual.

right now the road to the shed requires that the cars pass over the ada access path. that is very dangerous for people who may be using that. we have seen cars in that park for years. we have photographs of cars in the park that are from the people from raj goldberg. i rec and park and i have a picture that shows that the shed is absolutely smack dab in the middle of one of the historic panels that we were told had to be saved. i have also seen the

information submitted to design review and this was on a plan, not a picture. and we compared those, and we cannot see that anything was changed. these are our concerns. i know that the ada parking space up there is not needed, but if you put a workshop up there, rather than a shed, you do need to have it. possibly. it's not even clear on that. and i have asked from the mayor's office of disability and mr. jensen information regarding that. also the historic review report was inadequate. it didn't mention davidson's observatory and they described things up there that were not part of the mansion, which we could have told them, but they overlooked that. we're asking that the same thing that they require for all of these other projects in the

city, when archaeological things may be found that they do a report and provide it to the public as we have asked. thank you. any other public speakers? if not we'll start rebuttal. miss gallagher, you have three minutes of rebuttal. >> a lot of concern delay about the park and why? until august 22, when she was told by a local historian, whose credibility she actually entrusts, on july 17th, that there were ruins of the household house there. household's house is not just a little house. this is one of the most disputed propertis in the

city's history and the carrier report, this ch was the historic review evaluation, the basis of the entire review they specifically state that this property was very important to the history of this park. so why destroy it? in fact, mr. richards explains in order to preserve this, they need to maintain those paths. that is part of what you were shone with the picture from miss lovelock and these paths are removed in order to make way for the storage facility and we don't understand what is wrong with using the storage facility down below? children have been playing nearby that storage building since it was built in the '70s. if you think that these doodles are the same as these plans and

commissioner hwang you are familiar with these plans. there are no bubbles or clouds to indicate change in location. if you look at the north and east indicators, nothing has changed. so i don't know what civic design -- how they could have possibly been removed? as for what has been destroyed up there, if you look at this as what this claiming is the trail and you look at what has been the same material. we pointed out those remains moved across that summit space. this was the davidson observatory, as well as the holiday house and it's not something that should be treated lightly. as far as the ada review, please look at that permit, stamped from november of 2011. these plans weren't issues until august of 2012 because they were forced to go back and

redesign several elements one of which was a change. we're told it's a misnomer that it's called a workshop, container a. if it's not longer a workshop, the ada review is not relevant. because storage is not a principle activity and does not require parking. what does require parking is the new picnic areas that do not have any accessibility, despite the violation of ada and local laws. i think this needs further review and i ask you to please deny this permit or at least give those people interested in this, the 120 people who signed the petition of about saving the trees that the park, rather than taking them down in order to put in a maintenance shed. please, give us some time and give us some records so we can show you exactly what is going on here. >> thank you, miss hobson.

>> i am going respond to a couple of new issues that were raised. i just wanted to respond to the discussion about historian rand richards. we certainly expect mr. richards as a historian and he is well-versed in the history of san francisco, but he not an archaeologist. i don't ask for his opinion as a final determination on the presence of archaeological resources at the site. though i find him to be a very reliable and good source of history of the park. and so we have consulted him on many occasions. and respect his opinion. i did want to say that i also thought it was interesting that one of the speakers brought up that they had photographs of cars in the park, and one of the arguments by the appellant is that cars have not been

present in the park and yet they have said look there were cars in the park historically and that is actually the truth. up -- prior to this renovation, the gardener's shed was used as the storage facility and vehicles were always driving around it to pick up equipment. it was a conscious decision to abandon that building for that purpose and move storage to the summit because the playground is being modified with a $500,000 gift from the community. this is going to be a large state-of-the-art playground with a lot of children. it's not going to be the little, you know, 500 square feet tot lot that was there before. we don't want vehicle traffic around the play area. that is why using that gardener's shed is not appropriate going forward after this renovation happens. and then finally i did want to

say i think that the neighbors of atilla plaza park might have something to say about the idea of moving this maintenance facility to atilla plaza park. my park is too good for it and put it to another park is really a disingenuous argument. we have ada representatives here in the audience and can certainly speak to the issues regarding the need for parking space at this facility. i trust his opinion. he is an expert. thank you. >> mr. sanchez. >> just briefly the location of the storage shed, the staff

has no issues with it. thank you. >> the matter is submitted. >> commissioners? >> well, i really don't have much to say in addition to what i have heard here tonight. i don't believe that there is any basis -- there is not sufficient evidence to show me that this permit was issued in error. i believe the permit does meet the requirements of the planning code, the building code and the ada. >> i would echo that, and would add that when there are comments made about a facility such as the storage or green waste facility could go to any other park, it suggest to me it's not an issue specific to lafayette park, it's an issue that somebody just doesn't want

it and if it's not good enough for lafayette park it's good for somebody else's park and that does not help me persuade me to see that point of view and so i would concur. >> some of the issues brought up today where r better brought up in front of the parks and recreation commission. we're dealing with permits and whether the issues related to expenditures, how it was approached in terms of certain presentations, and other things, it's really a question of management. and that doesn't necessarily rise to the level of dealing with the entitlements inherent here. is there a motion, commissioners? >> yes, i would move to deny the appeal for the reasons stated in the briefs submitted

by parks and recreation. >> >> when you are ready. >> we have a motion from commissioner hurtado to deny this appeal and uphold the permit. on the basis stated in the respondent brief from recreation and park on that motion vice president fung? >> aye. >> president hwang is absent. commissioner [hra*-urs/]? >> aye. >> the vote is 3-0 and the permit is upheld on that basis. >> thank you. we'll call the next item. >> you want to break, madame director, commissioners? a short break? okay. sure. ? >> we'll take a break. >> two-minute break. [ gavel ]

>> welcome to the october 24th, 2012 meeting of the san francisco board of appeals and we're calling item no. 6, appeal metropol regarding non-compliance by the jones restaurant and bar, with the conditions of approval under conditional use motion no. 17565, specifically condition no. 8, related to the hours of operations for the outdoor area. and we will start with the appellant. or the appellant's representative, please step forward, you have seven minutes. >> good evening, commissioners, i'm here on behalf of the metropol cooperation, the owner and operator of jones here in the city. >> would you state your name for the record.

>> peter glikshtern. the planning commission erred in their determination for us to operate as jones. in any event the conditional use permit made available by the planning commission to the public at the time we were doing our due diligence with regard to the property placed into restriction on the hours of operation. in the summer of 2009, metropol corporation was formed and entered into a long-term lease, purchased a liquor license and made improvements to the property at 620 jones. to-date we have invest more than $2.5 million in the subject property to create the restaurant and bar know known as jones. furthermore metropol has a lease and other long-term liabilities of over $500,000

per an numb. the planning department's determination and zoning administrator's subsequent upholding of this determination that the above referenced property -- i'm sorry -- is in violation of the planning code is actually in[kr-ebgts/]. our restaurant is located in the basement at the 620 jones street and its address and entrance is at 620 jones. furthermore, the findings section of motion 17565, which

you have copies, cation no. 207-137 -- 1382c. paragraph 2, describes our patio as "an open air garden that is accessible only to the basement revel of the gaylord hotel located at 620 jones street.." as such the roof of the building at 560 geary street is an extension. accordingly the existing bar and restaurant use at the basement of 620 jones street is a permitted use and extension to our patio is also a principally permitted use because the only matter of accessing the patio is through the basement of the building at 620 jones.

therefore, no condition use permit is required. this argument aside, we relied on the conditional use permit that was publicly available on the website of the planning department as further assurance that our business complied with all applicable regulatory commitments and specifically in making investments at 620 jones we relied on information provided bit planning department on its official website. specifically the planning department website contained a conditional use permit on may 13, 2008 at the request of a group which undertook to develop the property prior to us. the conditional use permit provided on the planning department's website set forth seven conditions. none of which limits the establishment hours of operations. i believe you all have a copy

of that conditional use perform. we were all therefore very, very surprised by the planning department's march 5th enforcement notification alleging that jones was subject to further conditions including a requirement that the outdoor area close at 12:00 midnight. both the enforcement notification ubsquent note of penalty include a copy of the conditional use permit. the copy of conditional use permit, which we have not seen prior to the enforcement notification, conflicted the case that was available to the public. the planning department sets the rules of the game. they have an obligation to adhere to the rules that they themselves set. it's intrinsically unfair for the planning department to effectively change the rules after the fact.

to reiterate, we relied on the publicly available information provided by the planning department in making our investment of more than $2.5 million to develop jones. entering into a long-term lease, hiring staff, doing all of it. the publicly available information provided by the planning department did not indicate that there were any restrictions with regard to hours of operations. the operation of the outdoor area from 12:00 a.m. to 2:00 a.m. is of absolute crucial importance to the success of jones. the outdoor area represents fully two-thirds of our total square footage. it's what makes us unique in all of san francisco and northern california, really. we viewed the outdoor area specifically as a source of differentiation and competitive advantage. these are the other premises, and marketed our project to investors accordingly. when you go to our website, the

first thing you see is our slogan, our tag line. it reads, "take it outside." have we reason to believe we would be required to shut the outdoor area at 12:00 midnight we would have neither made the investment or entered into our lease. enforcing such a restriction now when we have relied on public records made electronically available by the planning department's website would substantially impair our reasonable expectation of realizing a return on our investment. our attorney inserted that language. i am here to tell you that enforcing this restriction will likely put an end to an otherwise successful new business in the city of san francisco that is creating jobs and helping to make our city a more vibrant place to live and work. i sincerely hope that you will side with us on this matter. thank you for your time and

consideration. > >> i have several questions. anybody else? first is when you did your due diligence, did you run a title check? >> i'm sure our architect did that, yes. >> was it recorded and therefore show up on title searches (yes, sir, and this one did. it wasn't that we weren't away of the cu the cu publicly available only had seven conditions. >> i understand what you looked at it on the website, was that also correct and you went down to the county's recorder's office and look at what is there? >> no, sir. >> okay. have there been complaints against the outdoor usage? >> i don't know, sir. i'm not aware of any complaints, specific complaints. >> okay. and to what degree do you think

that the outdoor contributes to the financial well-being of your operation? >> it's absolutely vital. it seems like it's not such a big deal between midnight and 2:00 a.m. we're open from 5:00 through until 2:00. but a vast majority -- i believe what would be a vast majority of our patrons would opt for other options in their evening if they knew they had had to cut sht short at midnight and simply wouldn't show up for the earlier hours. >> thank you. >> is there anyone here representing the subject property owner? seeing no one, mr. sanchez? >> thank you. scott sanchez, planning department. i wish i could just distract you by saying that giants are

up 6-1 and leave it at that, but unfortunately, we failed the appellant and we failed the neighbors in properly doing our job. so i will outline the process of events here for the board. so in incidence of 2007 conditional use application was filed for the bar and restaurant called alths and there was a hearing in march of 2008. at this hearing there were neighbors that expressed concern about the operation of the outdoor activity area associated with the restaurant. so the planning commission did add additional conditions to the approval. we typically give draft motion and that draft motion had seven conditions. at the hearing the planning commission added five additional conditions, 8-12 that included closing the

outdoor time at 12:00 a.m. and no amplified music except in cabanas was part of the proposal. no outdoor entertainment except twice a month before 7:00 p.m.also lighting couldn't cause a glare and entertainment commission had to review the application. so those were the motions -- the motion was adopted with those additional conditions. however, the motion was not finalized with those additional conditions and as to vice president fung's comment about the nsr, the notice of is special restrictions would have only included 1-7 and would not have included the others. the appellant did their research on the property and their due diligence and aware of the conditional use application and give them credit for doing the proper research. unfortunely when they went to our website to look to the motion it was a motion that didn't have the complete list

of conditions of approval. neighbors raised concerns about the hours of operations and noted to the entertainment commission there were limitations -- further limitations on the use and couldn't be open past 12:00 a.m. per the planning commission. it's my understanding that the entertainment commission continued that item to the call of the chair. after that hearing i received a call from the executive director of the entertainment commission about what was going on there. at that time in the end of april, early may be discovered that that motion was finaled without the complete conditions of approval. we issued an amended motion that included the additional conditions of approval and sent that to the entertainment commission and to the applicant on file for the cu and the property owner. it should be noted that the appellant was not the applicant of the cu, so they did not receive it from the property owner and did not receive it

from the entertainment commission and that was the last we heard until this year with a complaint from the neighbor with the outdoor area operating past 12:00 a.m. in march we sent an enforcement notice and the appellant responded promptly, two days later. there was a meeting on the 13th of march. i think it was explained that the process -- you could legalize the extended hours. however, you need to go and amend the conditional use authorization that was previously granted to remove that condition of approval. and i don't any of the other conditions of approval were a problem for the appellant, if i remember correctly. it was just limitation on the hours of operation. so with in a, i think they had set up an appointment time for an intake for the conditional use authorization amendment.

however, they showed up and decided they did not want to pursue that and probably feeling that something was fundamentally unfair with the fact that they had done their due diligence and relied on city records and can certainly understand that. they were informed of the enforcement process and what that would entail. so we noticed a issue of violation penalty. they made a zoning administrator hearing request, which is part of the due process rights. it is a hearing that i hold with the appellant and other parties. and we listen to additional arguments. we had that meeting on july 10th, and i expressed at that hearing that it was clear that the department had made a mistake. i expressed sympathy to the appellant and even stated in our final notice of decision, i think this -- like i said, this is a