separate internet address, each of the nine physical stores and the nine internet stores operate under the banner and does business as an oska store. >> thus it has 18 retail establishments in the united states and is subject to the formula use requirements of the planning code. we all know that internet commerce is an increasingly powerful form of retail activity as illustrated by the growth of internet on the mall such as amazon.com. a growing number of retailers now operate both brick and mortar stores and also internet stores. of the 9 oska usa internet stores, 8 of them are internet branches of the eight brick and mortar stores that were open for business on january 7th, 2013, a ninth store is part of

a philadelphia shop named susan roberts clothing which also carries other brands, now her site is dedicated exclusively to oska products and shown on the website as one of the stores, each of the nine osca internet stores has its own internet address and therefore it is a separate formula retail establishment. again, they offer oska products and operate under the baners. these stores exponentially magnify the 8 brick and mortar stores, both of them should be counted in determining whether oska meets the 11 retail establishment thresholds for treatment as a formula retail store. i have carried the oska line for the last seven years and i build a following for the line.

as a result i was one of the top retailers in the usa. as an international corporate chain with existing in europe and in shanghai and in the united states they could have found another part in san francisco, instead, no, they chose to open up on fillmore street less than a block away from my store hoping to take advantage the fact that my small independent boutique build up this business and they would have a ready market place. my sell of clothing sells 20 percent of my total sales. the opening of this oska store will definitely impact my business which i have offered for 34 years on fillmore street. first as (inaudible) and i have already been impacted by other chain stores on the block, fisher and others, i no longer carry these products because i cannot compete with these

corporate chain stores. the formula retail use ordinance was adopted to protect the small businesses being forced out due to ex-ka lating rent stemming from the proliferation of corporate chain stores, one look at fillmore street will show you how many small businesses have been forced out due to the escalating rents that only formula retail stores can afford. if san francisco cannot control the continuing invasion of formula retail and other chain stores we will soon lose all of our essential services such as shoe repair, hard ward and dry cleaning as well as the coffee shops. >> the alterations are subject to the conditional use requirements. however these formula retail use requirements were not considered before dba issued the building permit to oska

landlord on january 7, 2013, the permit was issued in error and thiser subject to the conditional use requirements and accordingly i ask that you sustain my appeal. >> the other permit that you have appealed who is the permit holder there? >> the managing director of oska. >> thank you. >> you are welcome. >> thank you. >> we can hear from the permit holder now? >> thank you commissioners to giving us this opportunity to present our case first and foremost i want to say that this permit has absolutely

nothing to do with oska, it has to do with public safety. now for the last 22-plus years there has been a store in this place. any retrofit, foundation work would have required significant work that would require the place to be vacant. the last 22 years we could not do this work for the first time in 22 years, this place is vacant. the subject space, 2130 fillmore street, the landlord tan is actually following the city's advisement of updating soft story buildings such as this to make it a safer building for not only the residents but for the people who walk in the stores every day. now, i have a contractor's report right here this was performed in 1986 when the building was purchased and it clear lie states in this report that the brick foundation and was build on and around 1900.

what i would like to also note this this permit in this report here, it says, 1900, brick foundation and it does say that there is no seismic up grades to this building and any work would require significant amount of work. and just to verify that this report was correct since it has been a long time. we actually just cut out a four-foot wide section of the wall to indicate and show that the foundation is indeed brick and you can see here that the brick building, i mean the bricks are coming apart, kind of. and it is kind of scary, thinking this entire building is held up this way. i have additional pictures showing this as well and what i just want to reiterate again is this is not about oska regardless of who were to move into this lease space we would have asked to do this work. once a new retailer moves into this space there would be no way for us to come in and do the work. so we are asking that the board

allows us to do this work for public safety. i lived through the 1989 earthquake i want this building to be safer for myself and everyone who enters this building. i do want to take this opportunity to also address a couple of the points that the appellant has stated in her brief and i will have john devalen come up and speak towards that but i do want to say that prior to signing the lease with oska i did do my due diligence and determined that the store was not a formula use retail space. we would not have signed the lease if we felt that was the case. let me turn it over to him. >> good evening, commissioners, john cevalen on behalf of oska while it is not involved with the appeal, it is clearly the focus of the appeal and we want to speak to the issues in her

brief. we have entered to a lease with the owner of 2130 fillmore to operate a store. the permit is not related to the use of the retail space. the permit before you tonight is solely for structural strengthening and would need to be conducted before regardless of whot tenant is. >> they have filed a separate permit which has been appealed and will be before you on may 15th. >> while we may be discussing in more detail the character of oska at that separate hearing, i wanted to set the record straight on a couple of the issues that she has brought up in the appeal brief. there are currently only 8 locations in operation in the united states. there is one additional one currently in the process of opening in beverly hills and i wanted to point out a couple of errors in the list from the brief i have not seen the list that she brought you here

tonight. there is only one oska store in chicago and the address in the catalog was incorrect. so there is just one store in chicago. there is no oska store in evanston and it was a space that was being looked at but has been leased out to another party. there is no store currently opened in san francisco, oska operated a temporary pop up store on 19th street but that closed in december of 2012. and finally there is no store in healsberg, they are looking at a location there and has not filed for any permits and not expected to open in the near future. >> since it has only 8 stores in the u.s., with only store expected to open in the near future, it is in the a formula retail use under the planning code which is defined as a retailer having eleven or more stores in operation in the united states. now, she things up a unique argument regarding the internet addresses and internet stores. i would be interested to here

mr. sanchez's take on this but this say radical departure for how the code is interpreted and written in the first place and i have never heard of a suggestion that an on-line store counts as a retail establishment. once again the permit before you is a matter of public safety and should not be delayed due to the considerations about the potential tenant in the future. we have got the whole team here tonight, but in consideration of your time, and also considering the fact that there is going to be hearing on the building permit that we have filed for the tenant build out, we are not going to have anyone come up but i urge the commission to ask any questions of us if any comes to you. thank you very much for your time. >> thank you. >> from the department? >> before you go that way. for the property permit holder, how many floors are in this building? >> two floors. >> and the second floor are residential units? >> residential units

>> 7 units on the second floor, and 4 retail spaces on the first floor. >> since you are there, you basically are taking this word on voluntarily because you have the opportunity since the tenant moved out. >> you were not approached by the building department to say this is mandatory. >> absolutely not. the landlord has been in real estate for a while i just i am his daughter so i live in the building he is concerned about the safety and i have been living there for nine years and i love the building and the area. we just want to keep the building safe. it has been owned by my family for many years and we want to keep it safe, it is an asset. >> we are willing to spend the money and listening to the city and following their advisement. >> i also have a question. so you have how many retail spaces on the lower level? >> four. >> and have there been vacantcy since you have owned the building? >> there is one vacantcy and when they have looked at it and

i believe that the previous owners had done some work in one of the other spaces that became i guess vacant because they looked and it the foundation was down. >> and so, still unreinforcemented brick? >> partial. >> this side of the building because we wanted to double check, what happened is as soon as they left the space we knew that there is basically is a combination typical combination of brick and concrete forms of foundation. so we did not know at that point in time whether or not it was brick or not. what we did is we opened the space and low and behold it was a brick foundation. >> i am more concerned about the space that became vacant. so at that time, did you check? >> we did. >> and so that area did not require any structural modifications? >> no it did not. >> thank you. >> you mean your seismic only

applies to one quarter? >> absolutely not. if we could we would look at the entire space as a whole because that would make it more structurally sound to do it all at once but it is not possible because there are residents and tenants in the space right now. so what the landlord has adjusted what he would like to do as soon as any tenants move out of the space, he would have contractors structural engineers come in and take a look to determine whether or not any work needs to be done. and so that is what he has done for this space. >> so did he have the same contractors and engineers look at the space that became vacant prior? >> yes, he did. >> do you have any reports to substan ate that? >> it is basically our family, you know, we have a property management company. i don't know i will have to check to see if we have any pictures? >> okay. >> believe me, like this we want to make sure that the building is safe. if it needed to be done we would take care of it.

>> okay, thank you. >> thank you. >> who is up first? >> mr. sanchez, thank you. >> thank you, the planning department. as it has been noted the subject building permit on appeal is to update the concrete foundation and replace the damaged studs and also 20 percent ungrade for ada access believe. this permit does not change the use, there is a subsequent permit that was issued on march fourth and that is to remodel an existing retail space within the existing mixed used tenant building and for any retail establishment that is on appeal. that is the permit that creates oska. if the concerns over the establishment of oska, then the ax action has no bearing on tha. we found this is not a

formula retail use. when the change of use or when the tenant improvement permit was issued by the planning department and issued in march fourth, they the applicant submitted a formula use affidavit which stated that they only have 8 operating. we have also separately requested materials from them, which show that they only have eight operating and tried to clear everything that i can on the internet to try to find if they have more than eleven or more establishments in the u.s. and they did not. and so, for that reason, we found that they are not from retail use and the argument is that they have internet stores, and that does not count towards the eleven establishments. you have to have eleven retail establishments that are open to the public that maintain common characteristics such as signage, merchandise and uniforms and that is the basis and that is what section 303 defines as formula retail use.

and so, because of that, we found that is not affirming retail use. that said, of course, this board does have great latitude and jurisdiction when reviewing the permits. while it may not be a form law retail the board can consider the arguments made by the neighbors but i would suggest that is the permit that would be on appeal to the board on may 15th, which deals with the actual change of use and the establishment of an oska at that location. additionally, if somehow, they open additional stores such that they have eleven stores operating the day that this comes before the board, then they would be considered formula retail use, the board would apply the law of the day and would i believe, deny the permit because it would not have it would be a formula retail use and not have the appropriate lease authorization and the board has to apply the law of the day when you hear

the permit that is before you. so, but it does not sound like that is a possibility given that they don't have enough stores in the pipeline to trigger the threshold in the next couple of months. because of that we found that it is not formula retail. and available for any questions. >> i have a quick question on the pop up stores. what do those count as? >> those are generally not permitted stores, they are usually temporary uses that come in. but if a pop up store goes into a retail, if you have a retail space and a clothing shop out of business and someone wants to open up a pop up store in that location, it is not a change of use under the planning use if you are selling jeans and clothing before. it would not be a change of use, and we would not have any issue with that under the planning code and no notice is required for retail use. it would only be an issue if that pop up use was also a

formula retail use. so if the gap opened up a pop up store on 19th street that would be a violation because that would be a formula use without conditional use authorization but the oska that opened on 19th street they were not formula retail use at the time that it opened and now have closed there is no we would not have a case there any way. >> so those halloween stores? >> those, could be if a formula retail use halloween store. >> the halloween stores, i am trying to understand this concept of the temporary pop up, it is considered and treated as if it would be subject to the same use requirements? as anything else? it is not exempted from these rules, right? >> planning code section 205 deals with the uses and we say that a pop up store is not a

temporary use and it does not meet the definitions in 205 and so it would be subject to the regular requirements of the planning code. >> thank you. >> question, the change of use here is from mail service to clothing retail is that what triggers the... >> planning code section 312, we outlined certain uses which would require the neighborhood notification for changes of use and a general retail use like a clothing store does not trigger a neighborhood notification. so in this case, they are doing the permit work to do the interior model to establish the new retail use which functions differently than the previous use. >> so the permit is really for the build out. >> yes. and for the change to accommodate a new tenant? >> i understand. so my question is, would the potentially, normally if that is the right way to put it, if you knew that you were going to

do that and you are doing the seismic work, would you maybe combine those into one permit? >> not necessarily, it completely depends on the project sponsor and you may have cases where the building owner wants to do kind of the interior capitol improvements and they will file that and execute it and you have the tenant that is the leasecy and they want to file a separate permit so that they can separate what they are responsible for a little bit more clearly. >> is it oska that is filing for the permit? >> i believe that the oska is the permit holder on the second permit on at peel. i believe that is the case. >> that further clarifies. >> if there was a temporary pop up store and it no longer exists as of today, then it does not count. >> that is correct >> it could pop up in the clothes but it looks like there

are 20 that popped up and closed. >> you know what i am saying? my question is would that not then be considered, would that not given that they had a store, i mean it would still be under the 11 stores if it was just one, let's say that there were four out there that popped up four different times in san francisco? the last couple of years, and then i just want to understand the rule here. would that or those then count towards the eleven? >> if they are closed no. >> it is only what is operating. >> okay. >> if they had five or six pop up stores elsewhere in the u.s. now? then that would count towards their formula retail use. >> okay. >> if i could just add, i am certainly not a retailing expert. but my understanding of the pop ups concept is that it is meant to be sort of a public relations tool and a way to suggest something that is coming. so for example uniglow had a

pop up store somewhere else downtown for a couple of months and hit the holiday season but also to let people know that they were coming to a permanent site in san francisco. >> i think that it is used serially. >> i think that we are going to see more of these in the version of a food truck. >> thank you. >> i have a question for the oska. >> go ahead. >> so, you guys are coming in and is part of your lease, are you requiring this work to be done? >> it is come ng before. >> let me clarify, oska did not require this as a term to the lease, this is something that the landlord was already

intending. >> mr. duffy. >> okay. >> this is just from the department and a point of view on the department and someone wants to take out a brick foundation and upgrade it with the concrete foundation they are going to spend, 20 percent upgrade of accessibility at the entrance door and it appears that it was approved properly and so i am available for any questions. a seismic upgrade will go through the two stories and this appears to be for the ground floor and secondly a seismic solution for a building that is much larger than this,

i'm assuming that four retail spaces face the street and therefore the building is quite wide if you do it only with one end you are creating exentricities it is not the best way to do it what would be for public safety or for or seismic upgrade in general. would you, concur. >> i agree, i think that a few weeks ago he had it and the balance and i don't think that you were here, and the i am pabl and the engineers had to get up and dispute each other.

it is voluntary and it is not a seismic upgrade that is taking out a portion of a brick foundation, but i did hear the young lady say that it was a part of the foundation which did kind of get me thinking like you just as you said, that definitely is needs to be analyzed maybe for that. and maybe we should do that. >> okay >> it seems that the permit as i said from our point of view if that is going to create an imbalance in the foundation, then maybe that needs to be addressed. and we can take the public comment on this item, could i see how many people are interested in speaking on this, if you could raise your hand? >> okay. again, i would ask that if you are willing and if you fill out a speaker card that will help us in the preparation of

minutes. if you would be kind to line up on the far wall that will expedite the process. >> how many minutes? >> it seems that there are a half dozen. how many people are going to speak? >> given the hour, i would like to limit it to two minutes. thank you. >> and if you have to speak, three minutes, let me know. >> thank you hwang. >> i am here because i am a consumer and i have been a customer for 30 years and i feel very strongly in terms of this city's protection of the small independent small business and i think what we are seeing is you will be dealing with the permit on may

15th on this matter and just as a matter of policy and a point that i would like to put on record is that i feel that when these international brands intrude on commercial corridors and disturb or small businesses that have been loyal to our citizens and providing great service, in our community, that we need to take a look at that as a policy issue. i think even if it does not fit the formula ordinance, i think that needs to be tweaked. and i have spoken to the small business commissioners and i may also and some members of the board of supervisors that needs to be reviewed. but this other matter that commissioner fung raises, as far as the common sense, i am not an, engineer, we are very much focused on the seismic safety and building the new terminals and i feel that that point needs to be explored because just common sense tells me if you are fixing little bit

here what about the rest of the building? i think that it is logical that the imbalance and what is going to do to the building is at risk and i hope that you will consider that. >> next speaker, please? >> thank you commissioners, my name is beverly and i represent the independence of the fillmore area where my store has been for the last 26 years. while i understand the obvious appeal, of land lords, in renting to large, well financed formula stores, mainly for higher rents, i am here to focus on the value of the independent store owners. those without corporate money. and independent owners provide hand held customized services which lend to the cache of our wonderful city of san francisco. the founding cache that made

this city a great landmark for stores to be attracted to and come to exhibit their wares. these absentee land lords file companies tend to extract a great deal from the neighborhood. they have a groovy address in a cool neighborhood. but without infusing any of their own resources, ie, the merchant association which i have been a member of for 26 years sponsors several events during the years. and they often heard response of these corporate foundation stores, is that we think about it or we will have to contact corporate and so their answer is, they can't respond in the moment, and in (inaudible) of what is going on in the spirit of fillmore. they are contrived, computerized and robotic responses allowing more mall-type of stores is damaging to san francisco culture. we are on