the united states which offers alternative mall-type of standardized stores, please keep the appealing independent environment alive on the fillmore, thank you. >> thank you. >> next speaker, please? >> hi, commissioners, (inaudible) i am the president of the san francisco council of district merchant associations. this appeal is about the permit for the foundation repairs not the seismic and i have worked in the construction business and i am aware of what they are trying to do, i do come mend the (inaudible) it is a big deal with ada and accessibility. but what we are concerned about is this is tied into the lease? is this what is being done is going to back with oska they want this to be done? otherwise they won't sign the lease? and i want to make sure this is not tied in and a separate

thing. i would like to see the permit to be okay to give the permission that it does not relate to oska the way that i am hearing it. at the same time i would like to be assured and guaranteed that it is not tied in any way to oska that it is just to repair the foundation needed and put in the handicapped bathroom and they can search for a business that will not be a retail that this may be. my concern for the merchants we don't want to be a city of one huge mall where you can have formula retail and all of us small business folks will be employees of the corporations that is what happens. if we want to be who we are, independent, diverse, and we get the employment to local people and that is what we like and that is what i like to see to make sure that this repair is not part of the lease for the oska. thank you. >> thank you. >> next speaker please?

>> good evening, president hwang, board members and staff. my name is penny (inaudible) and i am a long time resident of san francisco and i have lived here for over 50 years. i have shopped all over the city. and i have shopped at appellant's store and in addition i have over 30 years of experience as a practicing lawyer, representing public agencies exclusively. i was formally a senior attorney for the city of berkeley where i advised the planning commission among others. i also spent 15 years as an assistant city attorney with the city of hayward where i was the primary land use attorney and i advised the planning commission, my last ten years, the last ten years of my career i am retired from 2000, to 2009 were as assistant general council for the san francisco

redevelopment agency. >> i am sorry, it has been pointed out that you are the agent. >> that was my mistake on the cover sheet. i believe that to be the case from some e-mails that we had received. but she explained to me that she is not. >> i apologize. >> we may have i may have contributed some what to the misunderstanding and describing myself as a consultant. but i am unpaid and a relative of the appellant's sort of assume that i would be representing the appellant. but i am not currently licensed to practice law. i hung up the shingles in 2009. >> how are you related to the appellant? >> i am not. >> i thought that you said that you were a relative. >> relative said that she is the appellant's attorney. >> apologize for interrupting.

>> there is a question about the physical stores operated by oska as of the time that the january 7th permit was received. there are still questions which remain. but, nevertheless, it is clear that they have at least 8 traditional brick and mortar stores currently. it is also clear based on a review of the website if you look carefully at it that they have a very sophisticated marketing and business plan which come in place partnering each of us on the ground physical stores with a separate internet store. so essentially we have a situation here where each of us, eight to ten, however many on the ground stores there really are is one branch of an oska store in addition to each of those oska stores has a

relationship in the air with a separate internet address that gives the consumer the access to a wider range of oska products. we all know that internet retailing is a part of modern retailing and three, it... >> i am sorry, now your time is up. >> i wanted you to finish, but you kept going. thank you. >> could i just get one point. >> >> there is nothing in the formula retail that excludes internet retailers. thank you. >> next speaker please? >> good evening, commissioners, my name is paul wormer. i was one of the folks who filed an initial appeal on the first formula retail store covered on the ordinance to go over and that was the ralph

lauren store and we remembered at the first hearing when their architects said you know we have discovered people don't like to go to the mall any more for our kind of store because all of the stores are the same. so we are moving out and we are looking for neighborhood districts like this to move into. and indeed, just about all of the stores that are opening on fillmore these days are not formula retail because they are the first or the second or the third in the roll out of a formula retail bohemeth, athletic came in and we are just one store in a year and a half? how many? the juice bar on the corner of sacramento and fillmore. that offered aparently significant money to the landlord to get rid of coffee bean and an existing franchised

formula retail location. it was evolution fresh, it is a starbucks, the first roll out of a major chain, so there are serious gaps in the way that the formula retail legislation is analyzed and applied, some of which are legislative correction, but i think that some of which really need the attention of the way that the zoning administrator does... bear that in mind. >> thank you. >> the next speaker? >> madam president? commissioners, i'm thomas ren olds the president of the merchant's association. i am happy to tell you that things are good on fillmore and we have no empty storefronts we are one of the most desirable streets in the country, we are happy about that and it has had negative effects that mostly formula retail has helped to deter the larger chains from

coming to fillmore street but there are unintended consequences since the law was written several years ago and one of them is the spin offs that are coming from the gap and starbucks as they find ways around the literal reading or the application of the law and another is international stores, where the latest come to fillmore street to announce that it is coming to fillmore street has less than 11 in the u.s. and 202 worldwide. so those are larger policy issues that have led a lot of retailers and retailers to target fillmore street as a location that they have to locate before they get to eleven. and in the last two years, about 20 stores have opened on our street. none of them had more than 11 stores when they opened. almost all of them have more than 11 stores now. so, the result has been that our hardware store is now a french clothing store and the cleaners is now a chase bank and the thrift shop is now a

part of the gap empire and i could go on and what has happened is that the fair amount of disengenuous or we call it a gallery or pop up or we put it in some else's name and even the permits none of them have oska's name on it and it has turned the statute on its head and a lot of this is not in the statute. first it was told how many they had last halloween. and then it was how many they have as of the first permit. and then it was how many stores they have operating. but this language is not in the statute. you have the opportunity to look at what is really going on here. and combine the question of oska and the rebuilding of this store and we hope that you will do that. >> thank you. >> any other public comment? >> okay, seeing none, we will

start with rebuttal, miss ota you have three minutes. >> i was appellant of alan tan and when i was there we had to do our own foundation and it was the building and it was a total mess. he had the opportunity before (inaudible) moved in to rec identify the foundation and did not. secondly, with regard to the pop up store. i went down and interviewed the mer dhant chants and they all agreed that is closed at the end of february and at the put up a posting saying that a pop up store was never that was closed on january 1 and it was posted on february 28th, two months after the fact. they still occupy the building and still are in that. i think that they plan to turn it back into a oska men's store as soon as all of this blows

over. they can't take away the business that ye built up in the area, this is the kind of people that we are dealing with here and the chains are ready to swallow up our small merchants. >> i have a question. you stated that they had a chance to fix if it. >> they were there from 1980 to 2012. before they moved in there was a vacantcy, i knew what the condition was because we had to do the work on the foundation. i think that they saved the money and rushed in the tenant and hoped that they do not find

out how bad it was. i was a tent ant from 1978 to 88. >> thank you. >> tan, you have three minutes. >> i would like to add just to the point that she just made that when alan purchased, the building in 1986, it was owned by multiple parties. there are three are four parties that owned the building and everyone had to be in agreement. and secondly i think that prior to the 1989 earthquake there was not that much of a push, you know, on land lords to do any type of work. subsequent to after the 1989 earthquake there has been a lot more discussion about what can we do to make building safers and that kind of addresses why this was not taken care of when

this space was vacant, 22 plus years ago, i don't know the exact, like the full details, but i do know that this was this building was owned by four people and in 1989 people were thinking what else can we do about that? and another thing that i want to mention is that we actually made the request, when they were in discussion with the lease oska wanted to open a store sooner and wanted to take over the space as soon as the left and it was our request that we could postpone it six weeks to do the work and i have e-mails and whatnot going back and forth because we thought it was four weeks and we talked to the contractors and they said six weeks. so it was our request to do that. it was not oskas i think that if it was their choice they would have wanted to start a bit earlier. >> do you have anything? >> thank you. >> well, i have a question for

you. >> so, the work was not a precondition of them signing the lease. >> no it is not. >> was it offered as an incentive? >> no. >> was if in the lease. >> the only thing in the lease is that the landlord will take back possession of the building, the reason that it was all put together was because the money was paid to (inaudible) to vacate the space so that is why it was incorporated where all three parties needed to agree on everything, they agreed to leave, january 31st, and our request was we wanted landlord wanted to take position of the building. what it states in the lease is that the landlord will take position of the building from february first to march 15th and retain possession during that time frame to do any seismic or improvements i think what it says is capitol improvements which may include seismic up grades and then, therefore, on march 15th and there after, it was we would

return the space to oska for them to do whatever work they needed to do for the build out. >> okay. >> well you have not hit that date. >> yeah. >> that is part of your lease agreement. >> that you negotiated for jet mail leaving and oska moving in, and the landlord your family's management company to maintain possession, is there a consideration given by oska for purposes of these. >> no there isn't. >> absolutely not. and actually it clearly states that the landlord during that time frame whatever seismic or capitol improvements are done is paid for by the landlord and subsequent to that anything else is the building or the space is as you know, what is the word that was used i can't

recall. but, essentially, yeah, it was, stipulate ed in the lease that we are going to be doing capitol improvements. >> and i would appreciate commissioner fung pointing out the issue and the fact that the foundation work is only on part of the building dbi is going to be paying attention to that and the impact on the rest of the building. based on what you stated earlier, i was under the impression it was going to actually support the second floor. >> you know i could have alan actually come up and speak. i don't have a background. he does, he can speak towards exactly what they are doing. >> i mean earlier your comments and argument was to make sure that everyone felt safe. >> i think that anything other than and please mind i am not and i don't have engineering background, from my understanding with speaking with alan and the contractors

that anything is better than a brick foundation, obviously the ideal situation is to do the foundation so it is connected in this case it is not feasible. you kind of look's options that are available and the options are that we have a vacant space whoever is going to be in that space, idealy we want to do something. >> there are three other retail spaces that are occupied? >> is that the situation? >> that is correct. >> and a second floor of seven units. >> that is right. >> yeah. >> could i clarify was the jet nail lease up? >> no it was not up. >> they were incented to vacate early. >> they had the problems to pay the rent. their rent was below market. they actually came to us and jet mail contacted me in regards to negotiating i guess a termination of their lease and the oska had you know, and

jet mail, i guess initially discussed and then jet mail contacted me and said that he would like to leave but he would leave if he was consider some consideration by oska. basically buying his lease is what that was. so, it was jet mail that contacted me. >> so those negotiations were between jet mail and oska. >> correct. >> and i was contacted after when they had already agreed upon something. so i am not privvy to that information, but my understanding is that they discussed it first and then jet mail decided that they wanted to leave and contacted me and said here is the situation and i was hoping that you can work with us and i said okay, let's work on something just because we knew for the past year or so he has been having a hard time paying rent. >> thank you. >> thank you. >> the department rebuttal?

mr. sanchez? >> no. your time is up. >> just in regards. >> you are not having any additional time. unless the president agrees to it. >> i am sorry. no. >> >> commissioners, the matter is submitted and the department has no rebuttal. >> i almost said it at the beginning of this, you know that the hearing on the use is really going to be that the may hearing. and i don't think that anybody disputes that some seismic effort is always helpful in a building especially in san francisco. there are technical questions that were raised and i hope that the building owner and permit holder is aware that they should consult with their

structural engineer because when you make one part of the building stiffer it has a tendency to attract any seismic forces to that point and if you are only doing it on a voluntary basis you are not upgrading the building very much and it cause more damage than if the entire building was left alone. there is no doubt that the brick foundation is not very helpful in our city. i would assume that the soil conditions there in the fillmore is quite different than in the marina and therefore a little bit more stable, but still that kind of foundation needs to be replaced and they should have a longer term program to upgrade the entire building. i have no idea what the building even looks like, but the soft story program really applies to the buildings that have a lot of glass and openings at the ground floor. it appears that the structure and the original wood structure

of it is substantial and the upgrade of that is relatively easy. but that is all of a technical nature. the question is, is the nature of this particular permit, and then, the nature of the appeal that is against this permit. i'm not prepared to accept an appeal on this scope as currently indicated for ada purposes and seismic and probably will hear the arguments that were made tonight on the may 15th date. >> i will concur with commissioner fung. >> i will entertain a motion, if anyone has one. >> i am going to move to up hold the permit as currently scoped for ada and seismic on the bases that it is code

compliant. >> we have a motion from commissioner fung to up hold this permit on the basis that it is code compliant. on that motion, president hwang? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> commissioner honda. >> aye. >> thank you, the vote is 5-0, this permit is upheld on that basis. >> okay. we will call item number 1 0, appeal number 1 3-013, peter linn verses the department of building inspection with planning department approval. subject property at 1325 portola drive protesting the issuance on january 30, 2013 to sofia new of a permit to alter a building, comply with violation of 201299633, revision to bpa no, 2006/09/06/0482 to document the

accurate building height relationship between the proposed elevation of 1325 portola drive and the neighboring building to the west. this is application, 2012/03/27/6917. and we will start with the appellant and you will have seven minutes. >> good evening, board members, i would like to thank you all for looking into this matter. we have been up here many times over the last few years. and on 1325 portola was first proposed and approved it was to be six inches taller than the neighborhood 1337, initially, 1337 was a bench mark used for the height shown. the original drawings showed the highest point the pique to be 6 inches tall and her this

approved by the san francisco home owner's association and the building department. those original drawings were later proven to be of incorrect scale and in fact 1325 will be a full six feet taller. to this day it has never been identified or located. after the building department approved the plans, the own, attempted to widen the home and build deeper into the lot and raise the roof and the height of the roof and widen the driveway and somehow actually granted a wider curb cut as well. some you you may remember these issues. you the board saw through all

of this back then and brought her back into compliance, i would like to thank you for that. this project was allowed to be built as tall as proproesed and it will be a negative impact on my home, i live behind and due east of 1325. and this home will effect my afternoon sun from the west, 1325 will be blocking a significant amount of sunlight and air flow any way, but this extra six feet in height further blocks the afternoon sun as well. if this project had been originally build as proposed this never would have been an issue, the owner has stated that this different in height is due to a change in grade of portola drive, it does rise in elevation but gradually, the rise from lot to lot is approximately 3 and a half feet. what they are going to do is have a 6 foot jump between one roof to the next. this arupt jump in height

appears out of character for our area. all of the neighborhood homes do have an increase in height as they proceed up the drive however this increase in height is gradual and actually flows well with the grade of the street. 1325, will have a abrupt jump conflicting with the look of the neighborhood. this area in question of 1325, as even yet to be built. it currently exists only on paper, this will be an attic area. less than 5 feet tall, inside when finished. the change on proposing will in no way effect the residents living there the attic area could never be considered living space, it would merely be a shorter attic, what i am asking for is a compromise to have this finished roof line be built at a lower height. this could be a far less steep pitch or a flat sloped roof, i was been in touch with the board chair and they will open

to look laog at proposals and the original proposals were fine with everyone in the neighborhood however those drawings were misleading, unfortunately what isleing built is different than what was originally depicted. there has never been a physical marker on site showing the finished height of this home. we don't know where it ends. and all that they have is bench mark for the house next door. as i stated before, we have dealt with this very same problem concerning this project many times. you the board of appeals are a great help in the past in keeping in project on the right path and i would greatly appreciate the board's help again. and i am in no way suggesting that this home be greatly altered or anything of that nature. i am asking that be built more in line of what was originally proposed. at this point, i would like to show, this is the copy of the original drawings. and i am not sure where they

are establishing their elevations from this is going to be too small to see, it shows 1337 next door, 134.5 feet. and then we have 1325 portola at 135 feet and it is clear enough that this thing will not bring in that tight. but, it was very clear on the original drawings. and what they are now proposing is a height of or well, upon me calling the building commission, they resubmitted their plans and showing it now to be 6 feet taller. i know that the builders are

here saying that this has been a financial burden with all of these delays. i just like to say beforehand, all of these delays were due to circomventing the system. they are all self-inflicted problems. i don't want you to be fooled into believing this was a mistake. i think that this was done on purpose. this was drawn up by a licensed architect. and it is has just been one mistake in their favor after another. and really the way that this has been going on, they are really making a mockery of the whole system for the building system and this board and attempting to any way. >> thank you very much. >> thank you. >> mr. linn, in your brief you discussed that you disagreed with the representation of the permit holder on what is north?